Lawyer The Arkansas
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Inside: SJR8 The Medical Marijuana Amendment Member Spotlights—Practicing Overseas The Frank Broyles Publicity Act Online Pro Bono Portal
Vol. 52, No. 2, Spring 2017 online at www.arkbar.com
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PUBLISHER Arkansas Bar Association Phone: (501) 375-4606 Fax: (501) 375-4901 www.arkbar.com EDITOR Anna K. Hubbard EXECUTIVE DIRECTOR Karen K. Hutchins EDITORIAL BOARD Anton Leo Janik, Jr., Chair Haley Heath Burks Judge Brandon J. Harrison Ashley Welch Hudson Jim L. Julian Philip E. Kaplan Tory Hodges Lewis Drake Mann Gordon S. Rather, Jr. David H. Williams OFFICERS President Denise Reid Hoggard Board of Governors Chair Brian M. Rosenthal President-Elect Anthony A. (Tony) Hilliard Immediate Past President Eddie H. Walker, Jr. President-Elect Designee Suzanne Clark Secretary F. Thomas Curry Treasurer Shaneen K. Sloan Parliamentarian Aaron Squyres Young Lawyers Section Chair Gregory Northen BOARD OF GOVERNORS James Paul Beachboard Arkie Byrd Thomas M. Carpenter Sterling Taylor Chaney Suzanne G. Clark Grant M. Cox Don R. Elliott Bob Estes Frances S. Fendler Buck C. Gibson Paul W. Keith Leslie J. Ligon Jerald Cliff McKinney Brandon K. Moffitt Wade T. Naramore Laura E. Partlow Kristin L. Pawlik Brant Perkins Colby T. Roe Robert M. Sexton Andrea Grimes Woods
LIAISON MEMBERS Brian M. Clary Judge Casey Jones Judge Wiley Branton Jeffrey Ellis McKinley Stephen A. Hester Gregory Northen Patti Julian Richard L. Ramsay Karen K. Hutchins
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 2016, Arkansas Bar Association. All rights reserved.
The Arkansas
Lawyer Vol. 52 No. 2
features
10 Drawing the Line on Senate Joint Resolution 8 By Denise Reid Hoggard 12 ArkBar Member Spotlight —J.D. Gingerich By Anna Hubbard 16 The State of Medical Marijuana By Erika Gee
Cover photo by Michael Pirnique.
22 The Ethics of Representing Marijuana-Related Businesses By Justice J. Brooks, I 24 Guns or Ganja: Pick One and Only One By Michael K. Goswami 30 My 20 Years in Thailand By Mike Doyle 32 Trading Pine Trees for Palm Trees: Practicing Law in U.S. Territories By Josh Rovelli 36 The Frank Broyles Publicity Rights Protection Act of 2016: Potential Minefields By Uche Ewelukwa Ofodile 42 The Arkansas Supreme Court Goes to War: A Sampling of Legal Issues Confronted by the Court During World War I By J. Cliff McKinney 46 Online Pro Bono Portal Comes to Arkansas By Jordan Rogers 48 Procrastination: A Sign of Something Deeper? By Sarah Cearley Contents Continued on Page 2
Lawyer The Arkansas Vol. 52, No. 2
in this issue ArkBar News
4
Congratulations to New ArkBar Members
8
2017 Mock Trial Competition
14
Arkansas Bar Association Annual Meeting
28
2016-2017 Sustaining Contributors
34
Disciplinary Actions
51
In Memoriam
59
Classified Advertising
60
columns President’s Report
7
Denise Reid Hoggard
Young Lawyers Section Report
9
Gregory J. Northen
The Arkansas
Lawyer A publication of the Arkansas Bar Association
Vol. 51, No. 1, Winter 2016 online at www.arkbar.com
Inside: Same-Sex Marriage Judicial Campaign Finance The Arkansas Supreme Court During World War II Arkansas LLCs Guardianships of Minors
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HOUSE OF DELEGATES Delegate District A-1: Mary Elizabeth Buckley, Jon B. Comstock, Andrew T. Curry, Susan K. Kendall, George M. Rozzell, Ryan Scott, Vicki S. Vasser-Jenkins Delegate District A-2: Earl Buddy Chadick, Leslie Copeland, M. Scott Hall, Jason M. Hatfield, Brian C. Hogue, Alan Lee Lane, Richard Kyle Lippard, Joshua D. McFadden, W. Marshall Prettyman, Jr., Sarah A. Sparkman, Rick Woods Delegate District A-3: Aubrey L. Barr, Veronica Lawson Bryant, Michael Alan LaFreniere, Candice A. Settle, Samuel M. Terry Delegate District A-4: Sam D. Snead Delegate District A-5: Wade A. Williams Delegate District A-6: John D. Van Kleef Delegate District A-7: Samuel J. Pasthing Delegate District B: John T. Adams, Amber Wilson Bagley, Carrie E. Bumgardner, Bart W. Calhoun, Tim Cullen, Tony Anthony DiCarlo III, Jason W. Earley, Edie Ervin, Adam Fogleman, Caleb Peter Garcia, Shana Woodard Graves, Stephanie M. Harris, James E. Hathaway III, Christopher Heil, Glen Hoggard, Amy Dunn Johnson, Jamie Huffman Jones, Joseph F. Kolb, William C. Mann, Patrick W. McAlpine, Kathleen Marie McDonald, Jeremy M. McNabb, Chad W. Pekron, John Rainwater, W. Carson Tucker, Jonathan Q. Warren, Thomas G. Williams, David H. Williams, George R. Wise, Jr., Kim Dickerson Young Delegate District C-1: Roger U. Colbert Delegate District C-2: Michelle C. Huff Delegate District C-3: Robert J. Gibson, Hunter J. Hanshaw, Ryan M. Wilson Delegate District C-4: Kara Lynn Byars Delegate District C-5: Matthew Coe, Sara Rogers, Albert J. Thomas III Delegate District C-6: Danny M. Rasmussen Delegate District C-7: Jimmy D. Taylor Delegate District C-8: Kandice A. Bell, Brent J. Eubanks, John P. Talbot Delegate District C-9: Katelyn Burch Busby, Chase Adam Carmichael, Lee Douglas Curry Delegate District C-10: Joshua Reed Thane Delegate District C-11: Sterling Taylor Chaney, Taylor Andrew King Delegate District C-12: Kurt J. Meredith, Brenda Sue Simpson Delegate District C-13: Brian M. Clary, John Andrew Ellis Law Student Representatives: Kristen A. Callahan, University of Arkansas School of Law; David Garrett Morgan, UALR William H. Bowen School of Law
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ArkBar News ArkBar 2017 Mid Year Meeting held in Little Rock February 15-17, 2017 The Association’s Mid Year Meeting was held in Little Rock February 15-17, 2017. The meeting included two and half days of CLE seminars held at the Capital and Marriott Hotels. Dr. Casey Rockwell of Little Rock served as the chair of this year’s meeting. New this year was the first UA Little Rock William H. Bowen School of Law/Arkansas Bar Association Symposium. The event focused on “The Third Branch and Dark Money: Selection Systems, Disclosure, Recusal and Similar Issues.” Stephens Insurance, LLC sponsored two afternoon receptions for all attorneys. Association president Denise Reid Hoggard of Little Rock welcomed around 80 attorneys, judges and members of the Arkansas legislature to the February 16 reception in the Riverview Room of the Marriott Hotel. Save the date for next year: February 7-9, 2018 in Little Rock.
Bill Cobb, John Monroe, Richard Henry and Olin Wage
Carol Goforth, Denise Hoggard and Sally Field
Karen K. Hutchins, Mary and Tony Hilliard
Casey Rockwell, George Carder, Ret. Justice Paul Danielson and Judge Michael Medlock
George Rozzell and Kristin Pawlik
Prof. Lynn Foster and Brant Perkins
Representative Carol Goforth, Patti Julian and Representative Clint Penzo
Dean Stacy Leeds and Suzanne Clark
Kathleen McDonald, John Baker and Jim Hathaway
New forms updated regularly. 24 new probate forms!
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ArkBar News
Oyez! Oyez! ACCOLADES The Hon. Lavenski R. Smith of Little Rock, Arkansas, became the Chief Judge of the United States Court of Appeals for the Eighth Circuit on March 11, 2017. He is the first African-American to serve as the Eighth Circuit’s chief judge. Herby Branscum of Perryville received the University of Central Arkansas Distinguished Alumni Award. The University of Arkansas School of Law Women Law Student’s Association honored Dina Wood with the Gayle Pettus Pontz Award. Brad J. Williams recently earned board certification in DUI Defense. Steve Quattlebaum of Quattlebaum, Grooms & Tull PLLC was inducted as a Fellow into the American College of Trial Lawyers. John Tull of Quattlebaum, Grooms & Tull PLLC was recently inducted as a Fellow of the International Academy of Trial Lawyers. E. B. (Chip) Chiles IV of Quattlebaum, Grooms & Tull PLLC was recently inducted as a Fellow of the American Academy of Appellate Lawyers. Joseph R. Falasco of Quattlebaum, Grooms & Tull PLLC has been elected to the Federation of Defense & Corporate Counsel. The Arkansas SHRM State Council named Friday, Eldredge & Clark attorney H. Wayne Young as the recipient of the 2017 Russell Gunter Legislative Advocacy Award. Arkansas State University dedicated a new Pre-Law Center named in honor of John V. Phelps and Tom D. Womack of Womack, Phelps, Puryear, Mayfield and McNeil of Jonesboro.
APPOINTMENTS AND ELECTIONS James D. Lawson of Hamlin Dispute Resolution, LLC has been selected to serve a threeyear term on the Board of Directors of the Association of Attorney-Mediators.
WORD ABOUT TOWN Quattlebaum, Grooms & Tull PLLC announced that Kenneth N. Hall joined the firm’s Springdale office. The Danielson Law Firm announced that former Arkansas Supreme Court Justice Paul Danielson and former Fayetteville District Judge, David Stewart, have joined the firm. Dustin K. Doty has joined Wright Lindsey Jennings as a member of its Trial Team, practicing in the firm’s Rogers office. Friday, Eldredge & Clark, LLP announced that three new attorneys joined the firm: Kael K. Bowling, Katelyn M. Eaves and Allison C. Pearson.
Arkansas Leaders on Capitol Hill During ABA Day
Representatives from Arkansas visited Capitol Hill during the American Bar Association’s ABA Day in Washington D.C., April 25-27, 2017. Pictured above, Association ABA Delegate Rick Ramsay, Senator John Boozman, Executive Director of the Arkansas Access to Justice Commission and Foundation Amy Johnson and Association Past President Harry Truman Moore. The leaders visited with members of Congress about the importance of Legal Services Corporation funding, which supports the delivery of legal aid by 133 programs around the country including the Center for Arkansas Legal Services and Legal Aid of Arkansas.
Wills for Heroes Events
Please send Oyez announcements to ahubbard@arkbar.com.
ArkBar Welcomes New Staff Member The Arkansas Bar Association recently hired Stephanie Smith as the new Data Administrator. “We are excited to have Stephanie join the team,” Membership and Marketing Director Crystal Newton said. “Her experience in data entry and customer service will make her a true asset to the ArkBar.” “Stephanie’s extensive experience in data administration and team leadership will help us continue to provide highquality member services,” Executive Director Karen Hutchins added. Prior to joining the association, Stephanie worked in the Stephanie Smith insurance field for over 10 years. She enjoys warm weather, animals and spending time with her family. She lives in Maumelle with her husband Britt and children Haylie, Gracyn, Carter and dog Willow.
Many thanks are owed to the 45 attorneys who volunteered in Fayetteville and Little Rock in April, providing free legal services to over 60 clients and their spouses. The Wills for Heroes pro bono clinics specifically serve police, firefighters, first responders, and veterans, in order to thank them for the services they provide to our community every single day. The attorneys donated their time to create simple wills and powers of attorney.
Vol. 52 No. 2/Spring 2017 The Arkansas Lawyer
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Please visit the ABA Retirement Funds Booth at the upcoming Arkansas Bar Association Annual Convention for a free cost comparison and plan evaluation. June 14-16, 2017, Hot Springs Convention Center, Hot Springs, AR The ABA Retirement Funds Program is available through the Arkansas Bar Association as a member benefit. Please read the Program Annual Disclosure Document (April 2016) carefully before investing. This Disclosure Document contains important information about the Program and investment options. For email inquiries, contact us at: joinus@abaretirement.com. Securities offered through Voya Financial Partners, LLC (Member SIPC). Voya Financial Partners is a member of the Voya family of companies (“Voya”). Voya and the ABA Retirement Funds are separate, unaffiliated entities, and not responsible for one another’s products and services. CN1029-19104-1117 - 2015
PRESIDENT’S REPORT
Of Battlefields and Drawing Lines Denise Reid Hoggard Denise Reid Hoggard is the President of the Arkansas Bar Association. She is an attorney with Rainwater, Holt & Sexton in Little Rock. The phrase “drawing the line in the sand” meant certain death in the battle for Col. William Travis and his troops at the Battle of the Alamo on March 6, 1836. As the Mexican Army demanded that he and his troops surrender, Col. Travis admitted defeat was inevitable and used his sword to draw a line in the dirt. He then asked volunteers to cross that line with him and stand their ground. Judge Brian Miller, Chief Judge for the United States District Court, Eastern District of Arkansas, recently spoke about what drawing the line means in his family. His great grandfather Abraham Miller (1849-1913) was born a slave in St. Francis County. His grandfather became the first black doctor at Helena Hospital. That’s quite a leap forward. His great grandmother Eliza Miller was pivotal. She said: “From this point forward whether it be those who come after me or those look up to me, I will do what I can so they will have a better life.” She sent her son to Boston for medical school. That helped change the future of the Miller family. His aunt, Sharon Miller, worked as an NAACP attorney. She took the stand that she was going to do something positive. At one point, a noose was placed around Mrs. Miller’s neck in a courtroom because of unpopular positions she was advocating and arguments she was making. But she persisted because it wasn’t about her.
Judge Miller’s aunt, Maxine Miller, stepped into an elevator that wasn't there. She suddenly became a paraplegic and her life took a dramatic turn. She regrouped and went to work as a school librarian. She chose to live her life inspired and with joy. She drew the line on letting circumstances become excuses. As lawyers, we pledge to draw a line against injustice. As Americans, we pledge our allegiance to justice for all. In September 2016, Gloria J. Browne-Marshall spoke at the UA Little Rock William H. Bowen School of Law about her book “The Voting Rights War and the NAACP Struggle for Justice.” She talked about how important it was for white people to come alongside people of color to work together for change. She said there had always been white allies, people of good conscience, who stood with those whose rights were being oppressed. We need more people of good conscience. In looking back at this year, and preparing for our Annual Meeting June 14-16, there are points I want to leave with you. Our title for the meeting is “Lawyers Leading in Times of Change.” There are changes that are upon us as a profession. Those changes are in the manner in which we deliver legal services, how the public perceives us, and how we serve our clients. We can’t stop change from coming, but we can affect the ways in which we respond.
“There are changes that are upon us as a profession. ... We can’t stop change from coming, but we can affect the ways in which we respond.” So my first observation is we need to find common ground to stand together and be difference makers who draw the line. We can all shape outcomes and make things better for those who come after us. Volunteer and take ownership of some issue that intrigues you or challenges you. I’m not talking about just in the Association or in the legal profession. Find what feeds your soul and makes life better for the community, the state or its people. Be a positive force wherever you are and change the future for those who come after you. Second, run for political office and be statesmen and stateswomen. It is a sacrifice to run for and serve in the legislature. It requires putting your law practice on hold during the campaigns and legislative sessions, but it is important that this be done. We can’t let circumstances become excuses. We are trained and skilled by our education to disagree agreeably. Lawyers know how to build consensus. We can be an important part of making sure the law is not simply good enough, but that the law goes beyond good to become the best it can be for all
Arkansans. I call upon you to either run for or support fellow lawyers who want to serve in any elective office. Third, we have watched social media and internet marketing be used to advance a branded product and influence consumers. Lawyers should carefully manage having a social media and marketing presence. As we grapple with important social or legal issues, we should remember as we tweet, or Facebook, or use other social media, to keep our discourse civil. We build up, or reinforce, the public’s perception of our profession by the messages we send. There should be points we don’t go beyond and lines we won’t cross. Fourth, harness technology to become more efficient. Look at ArkBar Docs, an online platform for legal form templates that helps us create documents more efficiently. Consider how limited scope representation through unbundling of legal services can help pro se litigants afford to purchase just the services they need. Making sure legal services are available to everyone makes justice for all a reality. And it is what people of good conscience do.
Vol. 52 No. 2/Spring 2017 The Arkansas Lawyer
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ArkBar News
Congratulations to the New ArkBar Members Admitted to the Practice of Law April 2017
Governor Asa Hutchinson speaking to the crowd in the Old Supreme Court Chamber at the State Capitol.
Association President Denise Hoggard speaks to the crowd
On April 28, 2017, the Arkansas Bar Association held a welcome event at the Old Supreme Court Chamber in the Arkansas State Capitol for all new attorneys following the Arkansas Supreme Court’s swearing-in ceremony. Governor Asa Hutchinson, Association President Denise Reid Hoggard and Arkansas Judicial Council President Judge David Guthrie and other representatives from the Arkansas Bar Association, the Young Lawyers Section, Judicial Council, Federal Courts, and State Judiciary welcomed the new attorneys and their families. The new attorneys had the opportunity to have their photograph made by a professional photographer, Michael Pirnique. The new members were provided a copy of the Statute of Limitations handbook and other valuable resources to help them with the beginning of their practice.
Judge David Guthrie speaks to the crowd
Greg Northen, Denise Hoggard, and Judge David Guthrie
Welcome Newest ArkBar Members William Lee Ables, Jr. Jonathan Cody Arnold Joshua Andrew-Paul Baxter Amy Lee Boler Shelby Elizabeth Carpenter Ashley Jordan Davis Cody Shawn Dennis Joshua Clayton Dickinson Jessica Catherine Fritts Aaron Rachael Glass Kayce Michelle Hall Kolby Harper Jonathan Christopher Hill Thomas Dean Holland Myranda Michelle Holloway
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Doyle Amos Hopkins Jessica Lea Hopkins David Conrad James Brent Alex Johnson Vicki Lynn Jones Walter Lee Kroptavich Hill Kelli Lauren LaPorte Lyn Marie Suzette Liberty-Ellington Andrew Jared Middlebrooks Miles Scott Morgan Lindsey Elizabeth Lee Moss Stephen Anthony Napurano Olivia Palmer Jimmie Samuel Patterson Ann Christine Pederson
Evan Matthew Pence Miriam Elizabeth Ramirez Chloe Elizabeth Roane Nathan Parham Roberts Abraham Samir Clayton Blair Sexton Blake C. Speights Wyatt Daniel Swinford Audrey Kathleen Trevino Dylan Michael Weisenfels David William West Kevin William White Maranda White Will Garrett Wilkins
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YLS REPORT
Step Up to the Plate Gregory J. Northen
The blanket of yellow pollen coating everything and everyone these days confirms that Spring has officially arrived in Arkansas. Notwithstanding the annual sinus assault, there are a few good things that it brings with it: daylight savings time and the lateevening sunsets, for example, as well as sunny days, fishing, and other outdoor activities. In our house, one of the biggest days of this season, though, is Opening Day of Major League Baseball. Baseball may or may not be America’s favorite pastime, but it has been a staple in my life for as long as I can remember. When my sister and I were growing up, our dad used to shut off the cable television during the school year so we would have less distractions from school activities and homework. Interestingly, our dad couldn’t wait until the actual end of school to turn it back on; it would mysteriously come back at the first of April. Funny how that coincides with Opening Day. I am a Texas Rangers fan, so that means I hate myself a little bit. It’s almost as challenging as being a Razorback football fan, but at least I can truly say I am a loyal fan (unlike some of these fresh-gear-wearing Cubs “fans” I see around these days). Even so, I enjoy the game of baseball more than the players that happen to be on the Rangers in any given year.
Gregory J. Northen is the Chair of the Young Lawyers Section. He is an attorney with Cross, Gunter, Witherspoon & Galchus, P.C. in Little Rock. It is a game with a simple premise—throw the ball, hit the ball, score more runs than the other team—with a vast number of game strategies to win. As coined by baseball legend Yogi Berra, “Baseball is 90% mental, and the other half is physical.” This is because baseball includes many individual feats, such as strike outs, home runs, diving catches, etc., but requires a cohesive team effort to consistently win. There are several instances in a baseball or softball game where the batter is considered to have succeeded by getting him/herself out. For example, hitting a fly ball to the outfield for an out in order to advance a baserunner (i.e., sacrifice fly) is not credited against the batter’s batting average even though it resulted in an out. Hitting a deep fly ball to advance the runner hurts the batter’s odds of getting on base and, thus, the batting average, but it helps the baserunner’s odds of getting to second base, which improves the team’s chances of scoring a run, which increases the likelihood of winning the game. Thus, in baseball, sacrifice is teamwork. Our bar association also relies on sacrifice to be successful. Our members volunteer their time and efforts on numerous projects, committees, legislative affairs, continuing education, community outreach, and continually
working to improve our profession in Arkansas. As a YLS member, I know it is a difficult time in our careers to sacrifice our most coveted possession: our time. Whether it’s sacrificing more time away from family and/or friends, adding one more “thing” on the never ending to-do list, or sacrificing our own personal time for much needed rest and relaxation (physically and mentally), it is hard to give up more of our time to others. As YLS Chair this year, asking for others’ time has been the most difficult task because I know how much of a sacrifice is being requested. We have many open doors at the Arkansas Bar Association and in the Young Lawyers Section. Special thanks to John Rainwater and Jessica Vaught for presenting “Managing Student Loan Debt” at both law schools last month. John also presented to Central High School on “Know Before You Owe.” We had two Wills for Heroes pro bono clinics in April in Fayetteville and Little Rock (thanks in huge part to Caitlin Savage!). We also have several committees that can always use more help with drafting and updating important materials for both legal and civic education. Check out our Facebook page for more details on those events and groups. If you don’t want to jump in feet
first to a YLS event, come to the Annual Meeting in Hot Springs this June and attend the YLS meeting on Friday. You will meet other YLS members, other ABA members, and hear about ways that you can get involved. I know, it is a sacrifice to give up our time. Like baseball, a sacrifice is sometimes necessary to aid the team. Even a small individual effort can improve the odds of helping someone else along the way, which helps our bar association, which helps lawyers, which helps other people. Will you step up to the plate? If that doesn’t motivate you, we have a hospitality suite on Thursday night at Annual Meeting this year. We are not above buying your time every now and again!
Caitlin Savage and Greg Northen at the Little Rock Wills For Heroes Event on April 29.
Vol. 52 No. 2/Spring 2017 The Arkansas Lawyer
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Drawing the Line on Senate Joint Resolution 8
By Denise Reid Hoggard
The Arkansas Bar Association, as the statewide association representing Arkansas lawyers, has drawn the line against Senate Joint Resolution 8 (SJR8), which passed the General Assembly this session and will appear on the 2018 ballot as “An Amendment Concerning Civil Lawsuits and the Powers of the General Assembly and Supreme Court to Adopt Court Rules.”
Denise Reid Hoggard is the President of the Arkansas Bar Association. She is an attorney with Rainwater, Holt & Sexton in Little Rock.
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T
alk Business and Politics and Hendrix College conduct polling after our legislative sessions.1 According to Talk Business, for the first time, the Arkansas Legislature after this session received a failing grade. Less than one third approved of the legislature’s performance. The session was punctuated by heated gun debate, taxing of Internet sales, trying to raise funds for roads, and implementing legislation for medical marijuana. One group that saw the session much more favorably was the Arkansas Chamber of Commerce which announced that business won in this session and cited, among other things, reforms to the legal system.2 The Arkansas Bar Association, as the statewide association representing Arkansas lawyers, has drawn the line against Senate Joint Resolution 8 (SJR8), which passed the General Assembly this session and will appear on the 2018 ballot as “An Amendment Concerning Civil Lawsuits and the Powers of the General Assembly and Supreme Court to Adopt Court Rules.” SJR8 sets limits on recovery and the limitations extend to all cases. It modifies the definition of “non-economic damages” to include “loss of life or companionship, or visible injury.” It caps these noneconomic damages for wrongful death or injury to person or property at $500,000, or three times the compensatory damage award. It provides an exception to caps when a defendant intentionally pursues a course of conduct for the purpose of causing injury or damage to another. It authorizes the General Assembly to amend or repeal a rule of pleading, practice or procedure prescribed by the Supreme Court, or alternatively, to adopt its own rules of pleading, practice and procedure which take precedence over the Court’s rules. It also caps attorney fees in contingency cases to one third of gross recovery in all civil actions. While attorneys may disagree about some provisions of SJR8, we oppose the measure on two points: (1) it usurps the Court’s rulemaking authority thereby violating the separation of powers and unleveling the playing field for litigants; and (2) it will negatively affect our
ability to represent some of the poorest people in Arkansas. We hold inviolate our duty to protect the third branch of government as a separate but equal branch and to ensure it is as free from political influences as possible. We have worked cooperatively with the Arkansas Judicial Council on issues that address our Court and the fair administration of justice. We did so again in the 2017 legislative session. Chief Justice John Dan Kemp and I testified against SJR8 at both House and Senate committees. Justice Kemp testified only as to the rule-making provisions. On our website at www.ArkBar.com, you can review the notes from his comments. He told the committee, “One of the grounding principles of our democracy, established at the time of our country’s founding, enshrined in our national constitution and replicated in the constitutions of each of our states, including our own, is the separation of powers of each of the branches of government.” He added that Section 3 of SJR8 destroys the delicate balance which our state constitution provides. Chief Justice Kemp explained the meticulous process used by the Court in making rules including study and review by committees and publication with a comment period from the public and bar. Rulemaking authority is reserved to the Court, and our Courts traditionally have functioned in that manner, with deference to the areas where the legislature has control over substantive law. Amendment 80 confirmed exclusive authority to the Supreme Court over the rules of pleading, practice and procedure for all courts. The Association and the Arkansas Judicial Council worked together to propose Amendment 80 which was referred to the ballot by the legislature and approved by 57.1% of voters in 2000. It speaks volumes about SJR8 that it is opposed by both the Association and the Arkansas Judicial Council (as to the rulemaking authority) and that neither entity was approached to vet SJR8 or be involved in drafting a proposal which so substantially changes our Constitution’s judicial article. During the legislative debate this session, SJR8 proponents said that prior to the passage of Amendment 80, the General Assembly had rulemaking authority. A detail of the history of the Court’s rulemaking authority is enlightening.
“We need to stand together, whether we are solo practitioners, local and affinity bars, or public interests groups, to protect and defend our civil justice system. This is one of those times where we draw the line in the sand. The Association stands on the side of justice for all. We encourage you to stand with us.” “Prior to Amendment 80, the Supreme Court struggled to reconcile what it referred to as its ‘constitutional and inherent power to regulate procedure in the courts’ with the authority of the General Assembly to enact statutes addressing procedural issues. . . . In early 1990, the Court explained that it ‘share[d] the rule making power’ with the General Assembly. At year’s end, however, the Court redefined the parameters of this shared authority. ‘[D]eference to legislation involving rules of evidence and procedure will be given only to the extent the legislation is compatible with our established rules,’ the Court said. ‘When conflicts arise which compromise these rules, our rules remain supreme.”3 We can agree our democratic system depends upon three branches of government functioning within their proper spheres, subject to the checks and balances put into place by our founding fathers. Indeed, Governor Asa Hutchinson made separation of powers the subject of his address at our 2016 Annual Meeting. SJR8 is an attack on the judicial branch function. It would allow the legislature to write the rules of evidence and rules of civil and appellate procedure, for example. Leaving the judicial branch in control of the rules of courts also provides Arkansans with stability and predictability that business and the public need in governing their conduct. In addition to testifying against the rulemaking provisions of SJR8, I also testified about the impact capping contingency fees in all civil cases would have on access to our courts. The American Bar Association studied attorney fee and damage award caps and found they were not about making sure there were just results, but were about tilting the playing field. The ABA has found empirically that caps diminish access to the courts for
low wage earners, like the elderly, children, and women. SJR8 proposes to cover all civil actions, not just personal injury, wrongful death, and medical malpractice cases. As such, it is one of the broadest caps in the nation. One in four Arkansans live at or below 125% of the federal poverty level. Even those who live above that level in Arkansas would be hard pressed to pay for legal services on an hourly basis for any serious injury or substantial property loss. SJR8 advantages the wealthy and disadvantages the rest. Justice for all necessarily means our courts must be open to poor, working poor, and the middle class in our state. Much money has been spent in Arkansas to coin the moniker “greedy lawyer.” It is logical that similar advertising will be used by the proponents of SJR8. It negatively and unfairly besmirches our entire profession. We need to stand together, whether we are solo practitioners, local and affinity bars, or public interests groups, to protect and defend our civil justice system. This is one of those times where we draw the line in the sand. The Association stands on the side of justice for all. We encourage you to stand with us. Endnote: 1. Poll: Arkansans Disapprove of State Legislature’s Performance, http://talkbusiness. net/2017/04/poll-arkansans-disapprove-ofstate-legislatures-performance/. 2. TB&P Daily: Arkansas State Chamber CEO Randy Zook gives the session an ‘A-,” http:// talkbusiness.net/2017/04/tbp-daily-arkansasstate-chamber-ceo-randy-zook-gives-the-session-an-a/. 3. David Newbern, John J. Watkins & D.P. Marshall, Jr., 2 Arkansas Civil Prac. & Proc. §1:3 (5th ed. 2010).
Vol. 52 No. 2/Spring 2017 The Arkansas Lawyer
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ArkBar Member Spotlight
J.D. Gingerich
Retired Longtime Director of the Administrative Office of the Courts Assumes New Role as the Founding Director of the State Courts Partnership, a collaboration between UA Little Rock William H. Bowen School of Law and the National Center for State Courts.
J.D. Gingerich recently retired as the director of the Administrative Office of the Courts. At the time of his retirement in March, he was considered the longest serving state-court administrator in the United States. He began his service as AOC Director in 1988 and served under the leadership of seven chief justices and during the administration of five governors. In his role as director, he worked with judges and court employees in every city and county in Arkansas to assist in the efficient management and operation of the state’s court system. Gingerich said that he is extremely proud of the accomplishments of the Arkansas Judicial Department over the last 30 years. “The thing I am most proud of is the staff at the Administrative Office of the Courts,” he said. “We have outstanding people with incredible credentials who serve the courts in order to ensure justice. I am extremely proud of the work that they do.” “The privilege of working with every justice and judge in the state of Arkansas has been a huge honor and a great joy,” he added. “We are blessed to have some jurists who are committed to their work and who are willing to subject themselves to having to run for office to serve” Chief Justice Dan Kemp said in a press release regarding Gingerich’s retirement, “I have worked with J.D. since he first became the director of the Administrative Office of the Courts. I appreciate his service, leadership, and wise counsel during his tenure 12
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with AOC. I wish him well in his future endeavors.” While he has retired as director of the AOC, Gingerich is continuing his career working to improve the courts. He began a new position as the founding director of the State Courts Partnership, a collaboration between UA Little Rock William H. Bowen School of Law and the National Center for State Courts (NCSC). The NCSC is an organization dedicated to helping courts plan and implement improvements with the goal of saving time and money while ensuring judicial administration that supports fair and impartial decision-making. This is the NCSC’s first formal partnership with a law school. Gingerich said his role involves helping with consulting and research projects as well as working to engage the law school faculty and law students where possible. “This collaboration will bring new opportunities and allow the law school to better serve the Arkansas legal community while creating new research learning experiences for the students and faculty at Bowen,” then-Dean Michael Schwartz said in a press release about the partnership. Gingerich said his role involves “very different kinds of work, all court related, on many different topics all over the country.” He is currently leading a special committee formed by the Conference of Chief Justices out of concern over the immigration arrests that are occurring in courthouses across the
country. He plans to include law students who are interested in immigration law to observe the work of the committee. “This is an opportunity for students to have the experience of seeing how some of the issues they have been dealing with in the classroom play out,” he said. He recently spent a week in a courthouse in Minnesota helping the court to redesign a more efficient calendaring and assignment system for cases. The center also does some international consulting, often in post-conflict countries or places where they have had serious issues with justice sector integrity or structure. “A lot of times the international consulting will involve short-term training for judges, prosecutors or attorneys which is a good example of where we are likely to take interested faculty on assignments in the summer,” he said. “The law school already has a connection with a university law school in Mexico, so there are already some international relationships that we will try to build onto so we are working together.” Gingerich will continue to pursue his passion of improving court systems now on a national and international level with his new role of founding director of the State Courts Partnership. Gingerich is proud to use his decades of experience to lead this new effort to improve the legal system.
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mock trial
2017 Arkansas High School Mock Trial Competition Thank you to all of the volunteers who made the 2017 Mock Trial Competition a success
Springdale Har-Ber High School Carolina Team came out on top over their Navy Team at the conclusion of the Annual Arkansas High School Mock Trial State Tournament. Over 200 high school students from across the state gathered in Little Rock on March 3-4, 2017, for the event, with 29 teams competing. The students from the Springdale Har-Ber High School Carolina Team represented Arkansas at the National High School Mock Trial Championship in Hartford, CT May 11-13, 2017. The Honorable Mary Spencer McGowan presided over the final round of competition at the U.S. Federal Courthouse and Arkansas Bar Association President Denise Reid Hoggard, and Arkansas Bar Foundation Past President Frank B. Sewall served as scoring judges. Special thanks to the ArkBar Mock Trial Committee, Arkansas Bar Association, Arkansas Bar Foundation, and the Arkansas Bar Association’s annual sponsors. Front Row: Frank Sewall, Denise Reid Hoggard, Tania Martinez, Katelyn Capdeville, Olivia Moore, Anna Cook, Caroline Eastep, Ally Layman, Pablo Manon, Judge Mary S. McGowan. Back Row: Andrew Wiederkehr, Josh Blount, Jack Jasinski, Lilly Christiansen, Caleb Strickland, Sojas Wagle, Geovani Perez, Barrett Moore Pamela Abrams Alice Abson Charlotte A. Aceituno Charles Greg Alagood Elizabeth Joyce Armstrong Amy C. Bagnall Andrew D. Ballard Sherry P. Bartley Melanie Beard Caroline S. Bednar Michael A. Bell Vada Berger Sherri Black Judge Troy B. Braswell, Jr. T. Scott Brisendine Beverly I. Brister Sydney Lynn Brown Jordan Broyles Mary Elizabeth Buckley Elizabeth C. Caldwell Kenneth Chitwood Brian M. Clary Degen Duane Clow Tracy Lynn Cole Robert S. Coleman, Jr. Judge Cathleen V. Compton Cory S. Crawford Sarah E. Cullen Tim J. Cullen
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Frederick H. Davis Jason Davis Meagan Elizabeth Davis Amber Davis-Tanner Tamera Lee Deaver Sarah DeLoach Tracey Michele Dennis Natalie J. Dickson Dustin A. Duke Bob Estes Zarina Faretdinova Amy B. Fields Jenna Reed Fogleman Sherry Furr Caleb Peter Garcia Tonya S. Gierke Connie L. Grace Adrienne Morris Griffis Judge Milas H. Hale III Megan Dooley Hargraves Harvey Harris Patricia Sievers Harris Floyd A. Healy Michael B. Heister Christine M. Hendrickson Rick D. Hogan Denise Reid Hoggard Glen Hoggard Ben Hooten www.arkbar.com
Nicholas D. Hornung Johnathan D. Horton Lori D. Howard James Owen Howe Ashley Welch Hudson Michael Anthony Hylden Scott A. Irby Michael Raye Jackson William Owen James, Jr. Alexander Taylor Jones Daveante Jones Gregory T. Jones David C. Jung Michael Kiel Kaiser Rebecca B. Kane Sarah Keith-Bolden Allison Koile Dominique Lane Nathan Daniel Lewis Jennifer Norsokapie Liwo E. Lee Lowther III Charles Lyford William C. Mann Judge D. Price Marshall, Jr. Steven M. McClelland Judge Mary Spencer McGowan Destiny L. McHughes Anthony L. McMullen John Donald Miller III
Peter A. Miller Luther Mitchell Sandy Bailey Moll Barrett Moore Nicki N. Nicolo Ashley E. Norman Lisa Norris Gregory J. Northen Bridget Hillebrand Norton Sandi O’Brien Robert Christopher Oswalt Valerie L. Palmedo-Goudie Constance Brown Phillips Sally Porter Joseph Wayne Price II Kendra Khrystal Pruitt Tucker Raney Scott P. Richardson Bonnie Lee Robertson Danielle Elders Robertson Beryl Rushefsky Judge Ernest Sanders, Jr. Amber R. Schubert Frank B. Sewall Michael N. Shannon Kayla Lynne Shirey Keesa M. Smith Robin C. Smith Dusti Standridge
Andrea Catherine Stokes Ginger M. Stuart Matthew Suffern Judge Richard D. Taylor Geoffrey Thompson Jordan Brown Tinsley Kristin Nicole Titley Justice Annabelle Imber Tuck Cynthia Uhrynowycz Judy Vance Judge Joe Volpe B. J. Walker Joshua D. Waters Judge Morgan E. Welch, Jr. Matthew D. Wells Eric D. Wewers John Mark White Judge Phillip Whiteaker John L. Wilkerson Media Wilkins Stacy R. Williams Andrea Grimes Woods Eric P. Woodward James W. Wyatt H. Wayne Young, Jr. Colleen A. Youngdahl
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Vol. 52 No. 2/Spring 2017 The Arkansas Lawyer
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Arkansas Medical Marijuana Amendment of 2016
The State of Medical Marijuana By Erika Gee
T
here have been years of public discussion on both sides of the issue of medical marijuana in Arkansas. Surprising many observers, a ballot measure which would have legalized medical marijuana nearly passed in November of 2012, with a final tally of 51.44% against with 48.65% for the measure.1 After that near-victory, two separate medical marijuana measures were certified for the November 2016 ballot: the Arkansas Medical Marijuana Amendment of 2016 (Issue 6) and the Arkansas Medical Cannabis Act (Issue 7). In the months leading up to the November 2016 election, many members of the community, including the Governor and the State’s Surgeon General, were opposed to both measures, chiefly due to concerns over treating marijuana as a medication. Nevertheless, after Issue 7 was removed from the ballot by the Arkansas Supreme Court,2 Issue 6 passed with 53.09% to 46.91% of the votes cast and became effective the very next day, November 9, 2016. This article will summarize the current state of medical marijuana after all of the changes made to Issue 6 by the 91st General Assembly, with the addition of the clarifications provided by the rulemaking by the Arkansas Department of Health (DOH), Department of Finance and Administration’s Alcoholic Beverage Control Board (ABC) and the Arkansas Medical Marijuana Commission (MMC).
Erika Gee is a partner at Wright Lindsey Jennings and is a member of the firm’s Government Relations Practice.
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Issue 6 Issue 6 legalizes the use of marijuana by patients with specific “qualifying” medical conditions, as certified by a physician, but does not authorize growing marijuana at home or legalize the recreational use of marijuana.3 It also allows for the formal designation of “caregivers” to assist patients in obtaining and consuming marijuana.4 It authorizes at least 20 but no more than 40 dispensaries and at least four but no more than eight cultivation facilities.5 Three different state agencies are designated to oversee implementation and regulation of the industry: the Medical Marijuana Commission, which is responsible for rulemaking and decisions on licensure for dispensaries and cultivation facilities; the Department of Health, which is responsible for registering patients and caregivers and for overseeing product testing standards; and the Alcoholic Beverage Control Board, which has the broadest responsibilities, including security regulations, licensure of employees at dispensaries and cultivation facilities and overall enforcement. Although Issue 6 gave a short timetable to complete the rulemaking process and begin taking applications, Act 4 of 2016 gave the three agencies an additional 60 days to complete their rules.6 All three agencies have now finalized their proposed rules regarding their respective areas of authority prior to the deadline. As of this writing, emergency versions of these rules have been approved by a legislative committee but they still await final review. The MMC has until July 1, 2018, to begin accepting applications for cultivation facilities and dispensaries, and it appears that it will meet that deadline.
Qualifying Conditions Issue 6 has legalized medical marijuana use by registered patients diagnosed with one of the following conditions: cancer, glaucoma, HIV/AIDS, hepatitis C, amyotrophic lateral sclerosis, Tourette’s syndrome, Crohn’s disease, ulcerative colitis, post-traumatic stress disorder, severe arthritis, fibromyalgia, Alzheimer’s disease, or a chronic or debilitating disease or medical condition or its treatment that produces cachexia or wasting syndrome, peripheral neuropathy, intractable pain which has not responded to ordinary medications, treatment, or surgical measures for more than six months, severe nausea, seizures, including epilepsy, or severe and persistent muscle spasms, including multiple sclerosis.7 The DOH is authorized to add to the list of qualifying conditions. As part of its newly-proposed rules, the DOH established a petition process for those seeking to add new conditions.8 The rule sets a high bar for a new condition by requiring a significant amount of information in the petition, including evidence “generally accepted by the medical community” that the use of medical cannabis alleviates suffering caused by the proposed qualifying condition and letters of support from physicians.9 If a petition meets all requirements, a public hearing will be held and then the Director of the DOH will make a final decision.10 It is also important to note that once a proposed condition has been rejected, the Director may summarily reject subsequent petitions unless they present new scientific research.11 Patients and Caregivers Issue 6 establishes a process for the DOH to register patients and their designated caregivers.12 That framework was then expanded upon and implemented by the DOH in its proposed rules.13 Briefly, in order to become a qualifying patient, a patient over 18 must present an Arkansas driver’s license or photo ID, submit “written certification”—not a prescription—from a physician establishing that the patient has a qualifying medical condition and pay a fee of $50.14 For a minor, the patient’s parents or guardians must give written consent to the use of medical marijuana and register to become the minor’s designated caregiver.15 Act 479 of 2016 modified Issue 6 to prohibit members of the United States military or Arkansas National Guard from becoming qualifying patients or designated caregivers.16
“Even without criminal enforcement, the conflict between state and federal law has significant implications for banking, insurance, gun possession and many other aspects of business and daily life which rely upon an interpretation of federal law.” Residents of other states may also qualify to obtain medical marijuana while visiting in Arkansas, if the visiting patient comes from a state which issues medical marijuana patient registration cards and the patient presents his or her card to the dispensary.17 The path to become a designated caregiver is a bit more complicated, requiring identification of the applicant’s qualifying patient and a criminal background check, as well as a $50 fee.18 The DOH will deny applications for qualifying patients and designated caregivers if the applicant has had a registration revoked in another state, the certifying physician did not have a physician-patient relationship with the applicant, or if the certification or application is fraudulent or falsified.19 Each registration is good for one year before it must be renewed. Although legislation was proposed to extend the registration period for patients with chronic conditions, it did not pass. All information regarding patients and caregivers is designated as confidential and cannot be released under the Arkansas Freedom of Information Act.20 The other regulating agencies (MMC and ABC) may access registry information, if necessary, and the DOH is also authorized to verify registry status—but no more—to law enforcement personnel.21 Cultivation Facilities Issue 6 authorizes up to eight cultivation facilities, which will serve as the primary source of all medical marijuana products in the state.22 The MMC has decided to initially license five cultivation facilities with the remaining three facility licenses held in reserve. The facilities can technically be located anywhere in the state, so long as they are not within 3,000 feet of an existing public or private school, church or daycare and they comply with local zoning, if any.23 The MMC’s proposed rules provide that the distance should be measured from the facility’s
front door to the nearest property line.24 The MMC has indicated a reluctance to authorize a facility in a county in which a majority voted no on Issue 6, although no such provision was included in the rules. These facilities will have broad authority regarding the production of medical marijuana; they may cultivate, prepare, manufacture, process, package, sell and deliver marijuana to a dispensary.25 In fact, the only aspect of the market in which the facilities cannot participate is the retail sale of medical marijuana. In order to be eligible for consideration, an applicant must first meet minimum requirements for residency, Arkansas ownership and criminal, professional and financial history.26 The MMC has also imposed high financial requirements for these facilities: the application must also be accompanied by proof of assets or a surety bond in the amount of $1,000,000, plus proof of at least $500,000 in liquid assets.27 In addition, the application fee is $15,000, half of which is refundable if the applicant is not selected.28 If the applicant is selected, a licensing fee of $100,000, along with a performance bond of $500,000, is due to the MMC within seven days.29 The cultivation facilities will be chosen by the MMC based on its evaluation of a written application which includes extensive merit-based criteria.30 This criteria is intended to assess the applicant’s suitability to run a cultivation facility, and includes questions regarding: (1) general experience in running a business and any specific experience in a regulated, high-security or agricultural industry; (2) the operational plan for operating the facility, including the ability to grow sufficient product with a consistent cannabinoid profile and comply with all regulations; (3) a timeline for opening a facility; and (4) proof of financial stability and resources, including no history of bankruptcy in the last eight years.31 The MMC may also award “bonus points” to applicants with: (1) an affiliation
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with a physician or pharmacist; (2) proof that the facility will positively impact the economy or diversity of an area; or (3) proof that the facility will benefit the community through substance abuse or compassionate care plans, plans for research and education or percentage of ownership by Arkansas residents.32 The scoring rubric for the merit criteria is not yet available at this writing, but it will be published before the application period begins. The MMC is expected to open the application process July 1, 2017, with an application closing date 90 days later. With that timeline, the MMC will evaluate the applications and award the cultivation facility permits within a few months, probably before the end of 2017. In turn, medical marijuana will likely first become available to patients a few months later, or sometime in early spring of 2018. Dispensaries Issue 6 authorizes up to 40 dispensaries, dispersed throughout the state in rough proximity to the location of qualifying patients.33 The MMC has decided to initially license 32 dispensaries, with the remaining eight dispensary licenses distributed to address demand or diversity goals. Unlike cultivation facilities, the dispensaries will be awarded by geographical zone and, once awarded, can only be operated in the zone authorized.34 The MMC has divided the state into eight geographical regions and intends to license four dispensaries in each region. The dispensaries cannot be within 1,500 feet of an existing public or private school, church or daycare and must comply with local zoning, if any.35 The dispensaries will also have broad authority on the retail side of medical marijuana, with the ability to “acquire, possess, manufacture, process, prepare, deliver, transfer, transport, supply, and dispense marijuana, marijuana paraphernalia, and related supplies and educational materials to a qualifying patient or designated caregiver.”36 Unlike the limitation placed on cultivation facilities, dispensaries are authorized to engage in wholesale sales of marijuana to cultivation facilities and other dispensaries as well as retail sales to patients.37 Issue 6 also authorizes dispensaries to grow up to 50 “mature marijuana plants,” plus unlimited additional seedlings.38 Under the ABC’s rules, a “mature plant” means only the plants in the final “flowering” stage of growth, so dispensaries could conceivably grow hundreds of immature plants and seed18
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lings in addition to the 50 mature plants.39 The prospect of cultivating dispensaries has been controversial and legislation was introduced to prohibit it, but the bill did not gain sufficient support. For the majority of the MMC’s public deliberation over its proposed rules, it favored choosing dispensaries through a lottery-based process. As outlined in the rules it published for public comment, an application meeting basic requirements would be placed into a lottery pool of applicants, who would then draw numbers to determine the order of appearance before the Commission for a hearing on the application. Once all 32 licenses were awarded, no further applications would be reviewed or considered. After the comment period and the public hearing, the MMC stated that the lottery was the subject of “hundreds” of public comments in opposition and reversed course, deciding that dispensaries will also be chosen based upon merit criteria. The minimal standards and merit-based criteria for the dispensary applications will be nearly identical to the requirements for the cultivation facilities.40 For dispensaries, however, each geographical zone will be separately scored and awarded.41 Dispensary applicants also have a lower financial threshold, with a requirement for proof of assets or a surety bond of $200,000 and at least $100,000 in liquid assets.42 Application fees will be $7,500, with half refundable if the application is not successful.43 If it is successful, a license fee of $15,000 along with a $100,000 performance bond must be submitted to the MMC within seven days.44 Finally, under a bill passed late in the 91st General Assembly, dispensaries will now also be required to designate a “pharmacist consultant,” who will develop educational materials, procedures and policies and conduct staff training, as well as be available by telephone or videoconference consultations with staff or patients.45 The requirement of a pharmacist was enacted, in part, as recognition of the fact that patients will not have a prescription or otherwise receive any medical guidance regarding their use of medical marijuana. Product Testing, Labeling and Advertising Issue 6 required the DOH to establish labeling and testing standards for medical marijuana, but did not specify any parameters for those standards. In the DOH’s proposed rules, it requires that samples from
each batch (10 lbs or less) of medical marijuana be tested by a certified laboratory for: pesticides, moisture content, concentration of tetrahydrocannabinol (THC) and cannabidiol (CBD), and heavy metals.46 Samples from each process lot of medical marijuana concentrates and extracts must also be tested for solvents, unless the concentrate or extract was produced through mechanical extraction or used water, animal fat or a vegetable oil as a solvent.47 As outlined in the DOH proposed rules, the labeling for each product must include a significant amount of information, including the THC and CBD concentration, date of harvest, name of strain, activation time, the name of the testing laboratory, all required warnings, and a “universal symbol” indicating that it contains marijuana.48 The rules prohibit labeling with misleading statements or labels that are attractive to minors.49 The ABC has overlapping authority on labeling, as it regulates packaging, advertising and marketing. Under its proposed rules, dispensary advertising and marketing cannot include any content that might “reasonably be considered to target children,” including cartoon characters or toys.50 In addition, packaging cannot be shaped in a manner likely to appeal to children, including packaging in the shape of an animal, vehicle, person or character, or as something that closely resembles familiar food and drink items or candy.51 Dispensary advertising cannot promote transportation of marijuana across state lines, display consumption of marijuana, encourage its use as an intoxicant, or encourage excessive or rapid consumption.52 Dispensaries must also ensure that no more than 30% of the audience for a program, publication or website featuring its advertising can be reasonably expected to be under the age of 18.53 Cultivation facilities are not permitted to advertise at all to the general public. Limitations Issue 6 explicitly allows any kind of medical marijuana or product to be sold and permits any method of consumption.54 However, this wide-open product market proved to be a focus of the recently-concluded legislative session and, as a result, the agency rulemaking has incorporated some limits on smoking marijuana and on the type, shape and flavor of products which may be sold. Act 1024, which created “pharmacist con-
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design likely to appeal to minors, including anything modeled after an item primarily consumed by or marketed to children, products in an animal, vehicle, person or character shape, products that closely resemble familiar food or drink items, including candy, or any product that is made by applying extracts to commercially available candy, food or drink.59 The ABC’s final version of the proposed rules also prohibits items which resemble cookies or brownies. Finally, Act 593 addresses the concerns of employers regarding medical marijuana use by employees—and enacts some additional limitations on use by qualifying patients in the process. The Act authorizes employers to establish a drug-free workplace policy and to take disciplinary action or refuse to hire on the good faith belief that an employee used marijuana or was under the influence during working hours.60 The Act also allows an employer to prevent a qualifying patient from holding a “safety sensitive position,” defined as a position involving a safety sensitive function under the federal regulations governing drug and alcohol testing, or which has been designated by the employer as one which would pose a threat to health and safety if performed under the influence of marijuana.61 sultants,” also limited the range of materials which may be sold by dispensaries. Although Issue 6 allows the sale of unprocessed marijuana flower buds for consumption by smoking, Act 1024 prohibits dispensaries from selling any paraphernalia requiring combustion to be properly utilized.55 Although it is not specifically prohibited, this Act will likely also prevent the sale of marijuana that is pre-rolled into marijuana cigarettes, or “joints.” Act 740 adds additional limitations on smoking marijuana.56 Under this Act, patients are prohibited from smoking marijuana anywhere that smoking tobacco is prohibited, in the presence of a pregnant woman or someone under 14 years old, inside any motorized vehicle or in a place that is likely to cause a person who is not authorized to use it to become under the influence.57 It also prohibits patients under 21 from smoking marijuana at all.58 Although none of the bills banning edible forms of marijuana ultimately became law, the General Assembly’s concern over any product which might appeal to children was incorporated in the ABC rules. It has prohibited any marijuana item with a shape or 20
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Conclusion Although the General Assembly and the Executive Branch agencies have taken their duty to implement Issue 6 seriously over the last six months, there still remain many open questions about medical marijuana in Arkansas. Federal laws criminalizing possession and use of marijuana still remain in force, making involvement in the medical marijuana market as a patient or a licensee potentially risky. A chief question, then, is the Trump administration’s intentions on enforcement. If this administration breaks with the policies established under President Obama, it could have serious consequences for the emerging Arkansas market. Even without criminal enforcement, the conflict between state and federal law has significant implications for banking, insurance, gun possession and many other aspects of business and daily life which rely upon an interpretation of federal law. Ultimately, Arkansas, Washington D.C. and the 27 other states which have legalized some aspect of medical marijuana use must look to Congressional action to resolve this issue.
Endnotes: 1. Arkansas State General Election November 6, 2012 Official Results, http://results.enr. clarityelections.com/AR/42843/113233/ en/summary.html (last updated Nov. 21, 2012). 2. Benca v. Martin, 2016 Ark. 359, 500 S.W.3d 742. 3. Op. Ark. Att’y Gen. No. 2016-007 (2016), available at http://www.arkansasag. gov/assets/opinions/2016-007.pdf. 4. Id. 5. Id. 6. Act of Jan. 23, 2017, No. 4, available at http://www.arkleg.state.ar.us/ assembly/2017/2017R/Acts/Act4.pdf. 7. Op. Ark. Att’y Gen. No. 2016-007, supra note 3. 8. Rules and Regulations Governing Medical Marijuana Registration, Testing, and Labeling in Arkansas, Arkansas Board of Health Department of Health (draft), Section XXII, p. 23, (Jan. 26, 2017) available at http:// www.healthy.arkansas.gov/aboutADH/ Documents/1.26.17MMRules.pdf [hereinafter ADH Rules]. 9. Id. at 24. 10. Id. 11. Id. at Section XXII(E), pg. 24. 12. Op. Ark. Att’y Gen. No. 2016-007, supra note 3. 13. ADH Rules, supra note 8, at Section XXII, p. 23. 14. Id. at Section IV, p. 6. 15. Id. at Section IV(C), p. 7. 16. Act of Mar. 14, 2017, No. 479, available at http://www.arkleg.state.ar.us/ assembly/2017/2017R/Acts/Act479.pdf. 17. ADH Rules, supra note 8, at Section IV(D), p. 7. 18. Id. at Section IV(B), p. 6-7. 19. Id. at Section IV(F), p. 8. 20. Id. at Section IV(G), p. 8. 21. Id. 22. Op. Ark. Att’y Gen. No. 2016-007, supra note 3. 23. Id. 24. Rules and Regulations Governing the Application For, Issuance, and Renewal of Licenses for Medical Marijuana Cultivation Facilities and Dispensaries in Arkansas (draft), Arkansas Medical Marijuana Commission, available at http://www.mmc. arkansas.gov/Websites/mmsar/images/ AMMCFinalDraftRules.pdf [hereinafter AMMC Rules]. 25. Op. Ark. Att’y Gen. No. 2016-007,
supra note 3. 26. AMMC Rules, supra note 24, at p. 5. 27. Id. at p. 6. 28. Id. at p. 10. 29. Id. at p. 14. 30. Id. at pp. 9-12. 31. Id. 32. Id. at pp. 12-13. 33. Op. Ark. Att’y Gen. No. 2016-007, supra note 3. 34. AMMC Rules, supra note 24, at p. 20. 35. Id. 36. Op. Ark. Att’y Gen. No. 2016-007, supra note 3. 37. Id. 38. Id. 39. Rules and Regulations Governing the Oversight of Medical Marijuana Cultivation Facilities and Dispensaries by the Alcoholic Beverage Control Division (draft), Arkansas Alcoholic Beverage Control Board, available at http://www.dfa.arkansas.gov/offices/abc/ Documents/ABC_MMRules.pdf [hereinafter ABC Rules]. 40. AMMC Rules, supra note 24, at pp. 27-29. 41. Id. at p. 29. 42. Id. at p. 22. 43. Id. at p. 26. 44. Id. at p. 30. 45. Act of Apr. 6, 2017, No.1024, available at http://www.arkleg.state.ar.us/ assembly/2017/2017R/Acts/Act1024.pdf. 46. ADH Rules, supra note 8, at p. 14. 47. Id. 48. Id. at pp. 9-10. 49. Id. at 12. 50. ABC Rules, supra note 39, at p. 37. 51. Id. at p. 29. 52. Id. 53. Id. at p. 38. 54. Op. Ark. Att’y Gen. No. 2016-007, supra note 3. 55. Act of Apr. 6, 2017, No.1024, supra note 45. 56. Act of Mar. 29, 2017, No. 740, available at http://www.arkleg.state.ar.us/ assembly/2017/2017R/Acts/Act740.pdf. 57. Id. 58. Id. 59. ABC Rules, supra note 39, at p. 26. 60. Act of Mar. 23, 2017, No. 593, available at http://www.arkleg.state.ar.us/ assembly/2017/2017R/Acts/Act593.pdf. 61. Id.
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Arkansas Medical Marijuana Amendment of 2016
The Ethics of Representing Marijuana-Related Businesses By Justice J. Brooks, I Since the passage of the Arkansas Medical Marijuana Amendment of 2016 (“Medical Marijuana Amendment”), marijuana related businesses (“MRBs”) are soliciting lawyers to provide legal advice and assistance. Some have posited that a lawyer advising or assisting a client on the cultivation or dispensing of marijuana under state law is in violation of Rule 1.2(d) of the Arkansas Rules of Professional Conduct given that those activities are still illegal under federal law. However, other states interpreting language identical to Rule 1.2(d) have come to different conclusions and neither the Supreme Court of Arkansas nor the Arkansas Committee on Professional Conduct (“ACPC”) has taken a public stance on the issue. This leaves lawyers interested in representing MRBs with two choices: (1) risk violating Rule 1.2(d) by working with MRBs or (2) deprive MRBs of needed legal representation. The Conflict: Federal v. State Law Under the federal Controlled Substances Act (“CSA”), it is illegal to manufacture, distribute, or dispense marijuana.1 In spite of this fact, 29 states and the District of Columbia have legalized marijuana for medical or recreational purposes.2 In doing so, many of these states have relied upon the Obama Administration’s CSA enforcement policy—the United States Department of Justice (“DOJ”) will forgo the prosecution of individuals who are in full compliance with state medical marijuana laws and do not implicate federal enforcement priorities.3 While that policy may have allowed MRBs to operate with a reduced risk of prosecution, it did nothing to change the fact that marijuana is illegal under federal law.
Justice J. Brooks, I, is an attorney with Quattlebaum, Grooms & Tull PLLC, where he primarily practices in the areas of commercial litigation, employment litigation, tort litigation, and both state and federal regulatory issues.
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Differing Interpretations of Rule 1.2(d) Individual states govern and enforce the ethical conduct of lawyers in their respective jurisdictions.4 In Arkansas, the Supreme Court promulgates the rules of professional conduct, and, at the court’s direction, the ACPC enforces those rules.5 Rule 1.2(d) of the Arkansas Rules of Professional Conduct provides: A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.6
States that have interpreted this language differ on whether it permits an attorney to advise and assist MRBs to comply with state marijuana laws. The State Bar of Arizona Ethics Committee (“Arizona Ethics Committee”) found that “a lawyer may ethically counsel or assist a client in legal matters expressly permissible under the Arizona Medical Marijuana Act, despite the fact that such conduct may violate applicable federal law.”7 In reaching its decision, the Arizona Ethics Committee noted that: [w]e decline to interpret and apply ER 1.2(d) in a manner that would prevent a lawyer who concludes that the client’s proposed conduct is in “clear and unambiguous compliance” with state law from assisting the client in connection with activities expressly authorized under state law, thereby depriving clients of the very legal advice and assistance that is needed to engage in the conduct that the state law expressly permits. The maintenance of an independent legal profession, and of its right to advocate for the interest of clients is a bulwark of our system of government. History is replete with examples of lawyers who, through vigorous advocacy and at great personal and professional cost to themselves, obtained the vindication of constitutional or other rights long denied or withheld and which otherwise could not have been secured.8 Still, lawyers may only advise MRBs if the following occur: (1) a client requests assistance related to an action permitted by the act; (2) the lawyer advises the client of the risks related to federal law; and (3) the client chooses to proceed with the action having been fully informed of the risk.9 The Ohio Board of Professional Conduct Committee (“Ohio Professional Conduct Committee”) came to the opposite conclusion in finding that “a lawyer cannot provide legal services necessary for a client to establish and operate a medical marijuana enterprise or to transact business with a person or entity engaged in a medical marijuana enterprise.”10 The Ohio Professional Conduct Committee reasoned that the language of Rule 1.2(d) prohibits lawyers from advising MRBs to engage in conduct they know is illegal under any law and “does not contain an exception if the federally prohibited conduct is legal under state law.”11 Lawyers, however, may still provide advice re-
lated to the legality of any proposed conduct under state and federal law.12 The opinions of the Arizona Ethics Committee and the Ohio Professional Conduct Committee accurately reflect the dilemma the ACPC faces in its interpretation and enforcement of Rule 1.2(d) in relation to lawyers who advise or assist MRBs. They also demonstrate the ethical uncertainty that plagues Arkansas attorneys interested in representing MRBs. Clarification Of Professional Conduct Rules In Other States To clarify this uncertainty, other states have changed the language or comments of Rule 1.2(d) to reflect the necessity of legal representation for MRBs. For instance, Rule 1.2(d) of the Connecticut Rules of Professional Conduct was changed to allow lawyers to “counsel or assist a client regarding conduct expressly permitted by Connecticut law.”13 In another example, the addition of Comment 14 to Rule 1.2 of the Colorado Rules of Professional Conduct provided clarity to lawyers representing MRBs. Comment 14 instructs lawyers that they may “counsel a client regarding . . . [Colorado’s medical and recreational marijuana amendments] and may assist a client in conduct the lawyer reasonably believes is permitted” under Colorado law.14 These changes to Rule 1.2 make it unambiguously clear to lawyers in those states that it is ethical to advise and assist all businesses legal under state law, including MRBs. Arkansas’ Proposed Solution On February 9, 2017, the Arkansas Bar Association submitted a petition to the Supreme Court of Arkansas requesting an addition to the Comments of Rule 1.2 that reflects the passage of the Medical Marijuana Amendment.15 The petition recommends that the court add the following comment: A lawyer may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of Arkansas law, and regarding conduct expressly permitted by Arkansas law, provided that the lawyer shall also counsel and inform the client in writing about the legal consequences of the client’s proposed course of conduct under other applicable state or federal statutory law, rule, regulation, agency policy, or case law when such law, rule or regulation may make the conduct
criminal or fraudulent.16 This language would allow a lawyer to counsel and assist an MRB related to the conduct permitted under the Medical Marijuana Amendment as long as that lawyer informs the MRB, in writing, of the potential consequences under federal law. It would also eliminate the uncertainty regarding the duties of a lawyer when representing MRBs. In response to the petition, the Supreme Court of Arkansas referred the proposed comment to the ACPC for input and suggestions. The ACPC submitted its report in regard to the comment on March 31, 2017, but the Supreme Court has yet to act. In the meantime, lawyers continue to speculate whether the representation of MRBs violates Rule 1.2(d). Endnotes: 1. 21 U.S.C. § 841. 2. State Marijuana Laws In 2017 Map, August 2, 2013, updated March 23, 2017, http:// www.governing.com/gov-data/state-marijuana-laws-map-medical-recreational.html. 3. See James M. Cole, Memorandum, Guidance Regarding Marijuana Enforcement, U.S. Department of Justice, Office of the Deputy Attorney General (August 29, 2013), available at https://www.justice.gov/iso/opa/resources/3052013829132756857467.pdf. 4. See David B. Wilkins, Who Should Regulate Lawyers?, 105 Harv. L. Rev. 799, 802-803 (1992). 5. See Procedures of the Arkansas Supreme Court Regulating Professional Conduct of Attorneys at Law (May 26, 2011), available at https:// courts.arkansas.gov/administration/professionalconduct. 6. Ark. R. Prof’l Conduct 1.2(d). 7. State Bar of Ariz. R. of Prof’l Cond. Comm., Formal Op. 11-01 (2011) (discussing scope of representation for marijuanarelated businesses), available at http:// www.azbar.org/Ethics/EthicsOpinions/ ViewEthicsOpinion?id=710. 8. Id. 9. Id. 10. Sup. Ct. of Ohio Bd. of Prof’l Cond. Comm., Informal Op. 2016-6, p. 1, (2016) (discussing ethical implications for lawyers under Ohio’s medical marijuana law). 11. Id. at p. 7. 12. Id. 13. Conn. R. Prof’l Cond. 1.2(d). 14. Colo. R. Prof’l Cond. 1.2 cmt. 14. 15. In Re: Arkansas Rules of Professional Conduct, Rule 1.2, Case No. CV-17-97 (Ark. filed Feb. 9, 2017).
Vol. 52 No. 2/Spring 2017 The Arkansas Lawyer
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Arkansas Medical Marijuana Amendment of 2016
Guns or Ganja: Pick One and Only One By Michael K. Goswami
Introduction to a Conflict of Supremacy Residents of the Natural State own firearms at a rate higher than every state with the exception of Alaska.1 With the recent passage of the Arkansas Medical Marijuana Amendment of 2016 (the “Marijuana Amendment”), Arkansas also recently joined the growing number of states that have legalized marijuana for medicinal purposes.2 Many Arkansans, as well as out-of-state residents, are now excited about the development of new medicinal and business opportunities generated by the passing of the Marijuana Amendment. Alongside these new prospects, however, may linger a multitude of associated problems for gun-loving Arkansans.
Michael Goswami is an attorney and MBA at Rose Law Firm in Little Rock, Arkansas, where his practice focuses on commercial transactions and regulated industries.
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Liberties Granted by the Second Amendment are Limited The intersection of federal and state law creates a scenario whereby being the holder of a medical marijuana card might place a person into an unanticipated, precarious scenario. The Second Amendment community lauded the 2008 Supreme Court decision in District of Columbia v. Heller, a decision brokered by the late-Justice Antonin Scalia, which cemented the individual’s right to possess a firearm for purposes unconnected with militia service.3 However, the Heller Court noted that the Second Amendment does not create an unbridled right to bear arms, and the decision was not intended to “cast doubt on longstanding prohibitions” on firearm use.4 A 2016 Ninth Circuit decision emphasizes that holders of a medical marijuana card are not exempt from the federal prohibition on firearm possession by marijuana users.5 Additionally, a 2014 opinion issued by the Fourth Circuit highlights that the personal right of selfdefense, a liberty solidified by Heller, does not outweigh the government’s interest in preventing drug-related crime, including the prohibition on the possession of firearms by marijuana users.6 Furthermore, published federal guidance and updated firearm transfer application forms demonstrate that the government desires to enforce the mandate that marijuana users should not possess firearms. As such, no matter the amount of protection afforded under the Second Amendment, it appears that the lawful use of marijuana under state law completely eviscerates one’s right to constitutionally bear arms.
Federal Law Trumps the Arkansas Medical Marijuana Amendment The language of the Marijuana Amendment is clear—a person who is lawfully engaging in the use of marijuana shall not be “denied any right or privilege.”7 However, the state of Arkansas only has the authority to govern the rights granted to citizens by the state of Arkansas. The Supremacy Clause contained in the United States Constitution states “the [l]aws of the United States . . . shall be the supreme [l]aw of the [l]and” regardless of the “[c]onstitution or [l]aws of any [s]tate.”8 Federal law, which reigns supreme, criminalizes the use of marijuana while simultaneously possessing a firearm. The fact that a state has legalized marijuana, whether medicinally or recreationally, does not affect this federal prohibition on firearm possession. The federal Gun Control Act of 1968 (the “GCA”) addresses certain “prohibited persons” who may not ship, transport, receive, or possess a firearm.9 The list of prohibited persons includes anyone who is an unlawful user of any controlled substance under the federal Controlled Substances Act (the “CSA”).10 Marijuana is listed in Schedule I of the CSA, along with heroin, LSD, and ecstasy.11 The GCA does not define who may be considered a “user” of marijuana, but the courts generally agree that a “user” of marijuana is one who regularly uses marijuana over an extended period of time.12 Sharp legal minds can quickly formulate the logical argument that a person is not an unlawful user of marijuana under the GCA if he or she consumes marijuana pursuant to proper state authority. In Wilson v. Lynch, a 2016 case decided by the Ninth Circuit, a medical marijuana card-holder (and thus, a presumptive marijuana “user”) desired to purchase a firearm from a federal firearms licensee (a firearms dealer known as an “FFL”).13 The “lawful use” argument was utilized in Wilson, but the court held that the hopeful firearm purchaser’s Second Amendment right was outweighed by governmental interest in preventing drug-related crime.14 Wilson highlights the intercontinental divide between federal marijuana law and state marijuana law that transcends not only the firearms arena, but also banking, real estate, transportation, taxation, and employment. Arkansas might grant marijuana users every conceivable right related to marijuana usage—but federal supremacy strongly frowns upon marijuana usage and simultaneous fire-
arm possession to the tune of $250,000 and up to 10 years imprisonment.15 Federal Efforts to Curtail Possession of Firearms by Marijuana Users The federal government is not naïve to the fact that 29 states (and, ironically, the District of Columbia) have enacted some form of legalized marijuana. Accordingly, the Bureau of Alcohol, Tobacco, Firearms and Explosives (the “ATF”) has altered its enforcement of firearms laws in the wake of state changes. As of January 2017, the Firearms Transfer Record ATF Form 4473 (“Form 4473”) recognizes these changes.16 Both the old Form 4473 and the updated Form 4473 seek information on whether a person is an unlawful user of any controlled substance.17 Question 11(e) on the updated Form 4473, regarding use of controlled substances, includes the following statement in bolded text: “[w]arning: [t]he use or possession of marijuana remains unlawful under [f ]ederal law regardless of whether it has been legalized or decriminalized for medicinal or recreational purposes in the state where you reside.”18 Additionally, in an open letter to FFLs drafted by the ATF in 2011, the ATF explicitly stated that persons who use marijuana legally under state law are nonetheless prohibited from possessing a firearm under federal law.19 Marijuana users who might consider checking “no” on Form 4473 Question 11(e) should note that it is a crime to submit a falsified document to the federal government.20 A submitted false statement can result in prosecution, although limited resources at the Department of Justice appear to make prosecution unlikely.21 However, in the event of prosecution for making a false statement on a Form 4473, an applicant is subject to a maximum of five years of imprisonment and hefty fines.22 As an additional concern to anyone submitting a Form 4473, a recent conversation with an ATF official revealed that the ATF has already started the process of cross-referencing applicant answers to Question 11(e) on Form 4473 with various state medical marijuana databases. It is unclear how the ATF will navigate the logistics of this process in Arkansas because Arkansas intends its card-holder registry to be confidential.23 However, the Arkansas Department of Health (“ADH”) is mandated to “verify to law enforcement personnel whether a registry identification card is valid.”24 Thus, anyone who is willing to risk
“It is fairly clear that firearm ownership or possession does not mix with marijuana usage under federal law.” the low percentage chance of prosecution for a false statement made on Form 4473 should reconsider such a course of action because the ATF appears to be actively seeking applicant information that it may be able to gather from the ADH. Moreover, federal officials are well aware that a large percentage of firearms sales lawfully take place away from the dealer setting and, therefore, without the formality of a background check provided by FFLs. Purchasers and sellers alike should be cognizant that the GCA also accounts for this scenario. Just as it is unlawful for a user of marijuana to possess a firearm, it is equally unlawful for a person to sell or otherwise dispose of any firearm to any person if the potential transferor has knowledge or reasonable cause to believe that the potential transferee is an unlawful user of any controlled substance.25 Published guidance states that a potential transferor’s awareness that a potential transferee possesses a medical marijuana card constitutes “reasonable cause to believe” that the potential transferee is an unlawful user of a controlled substance.26 State Licensing of Concealed Carry Permits Affected Transitioning to concealed carry licensing, the requirements for an applicant to receive an Arkansas license to carry a concealed handgun state that a person must not “chronically or habitually abuse a controlled substance.”27 The requirements also state that an applicant must not be “subject to any federal . . . law that makes it unlawful to receive, possess, or transport any firearm . . . and [must have] had his or her background check successfully completed through the . . . Federal Bureau of Investigation’s National Instant Criminal Background Check System.”28 For medical marijuana users applying for an Arkansas concealed carry permit, it appears the GCA might act as the prohibiting federal law. It is arguable that the Marijuana
Vol. 52 No. 2/Spring 2017 The Arkansas Lawyer
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Amendment supersedes these statutes because a person shall not be denied “any right or privilege” by virtue of lawful marijuana usage.29 Still, these statutes are currently on the books and appear to prohibit a lawful user of medical marijuana from receiving a permit to carry a concealed weapon. The determinative outcome likely rests on either a legislative fix or an interpreting tribunal. Until then, caveat applicänt. Concluding Remarks While the passing of the Marijuana Amendment is a boon for the medical community and the supporting industry, the Marijuana Amendment places the priorities of Arkansans at unforeseen odds. It is fairly clear that firearm ownership or possession does not mix with marijuana usage under federal law. Without movement from the federal government in the form of guidance or legislation, Arkansans with overlapping desire to use medical marijuana and own a firearm might be confronted with a tough choice. Endnotes: 1. Data published in 2016 showed that 58% of adult Arkansans own at least one firearm. Alaska, ranking first on the list, proudly sports that 62% of adult residents own at least one firearm. See Max Brantley, Arkansas: No. 2 in Gun Ownership, Ark. Times (2016), available at http:// www.arktimes.com/ArkansasBlog/archives/2015/07/06/arkansas-no-2-in-gunownership. 2. See Ark. Const. amend. XCVIII (the “Arkansas Medical Marijuana Amendment of 2016) [hereinafter referred to in the text and footnotes as the “Marijuana Amendment”]. 3. 554 U.S. 570, 128 S. Ct. 2783, 171 L. Ed. 2d 637 (2008). 4. Id., at 626, 128 S. Ct. at 2816, 171 L. Ed. 2d at 678 (2008). 5. See Wilson v. Lynch, 835 F.3d 1083 (9th Cir. 2016). 6. See United States v. Carter, 750 F.3d 462 (4th Cir. 2014). 7. Marijuana Amendment (§ 3). 8. U.S. Const. art. VI, cl. 2. 9. See 18 U.S.C. § 922. 10. See 18 U.S.C. § 922(g)(3). The Controlled Substances Act may be found at 21 U.S.C. § 801 et seq. 11. Schedule I substances are those which 26
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the government finds have high potential for abuse, no currently acceptable medical use in the U.S., and a lack of acceptable safety for use of the substance. See 21 U.S.C. § 812(b) (1). See also 21 C.F.R. § 1308.11 (Schedule I List). Cocaine, methamphetamine, and various opiates and opioids are listed in Schedule II. See 21 C.F.R. § 1308.12 (Schedule II List). Schedule II substances are those which the government finds have a high potential for abuse, instances of dependence, and do have accepted medical use in the U.S. See 21 U.S.C. § 812(b)(2). 12. See United States v. Grover, 364 F. Supp. 2d 1298 (D. Utah 2005). Congress did not intend the statute to cover isolated usage. See United States v. Augustin, 376 F.3d 135 (3d Cir. 2004) (reversing a conviction under the GCA when the only evidence against the defendant was a single proven usage of marijuana prior to commission of a crime perpetrated by firearm). 13. See Wilson v. Lynch, 835 F.3d 1083, 1099 (9th Cir. 2016). 14. See id. 15. See 18 U.S.C. § 924(a)(2). 16. A “Firearms Transaction Record” or “Form 4473” must be filled out by a transferee of any firearm from an FFL. This form precedes the background check performed by the FFL through the National Instant Criminal Background Check System (“NICS”). Private-party transactions are not subject to this requirement. 17. See Question 11(e), ATF Form 4473. The form is available for download at https://www.atf.gov/firearms/docs/4473part-1-firearms-transaction-record-overcounter-atf-form-53009/download. 18. See id. 19. See Arthur Herbert, Open Letter to All Federal Firearms Licensees, Bureau of Alcohol, Tobacco, Firearms and Explosives (2011), available at https://www.atf.gov/ firearms/docs/open-letter/all-ffls-sept2011open-letter-marijuana-medicinal-purposes/ download. 20. See 18 U.S.C. § 1001(a) (“[W]hoever . . . makes . . . any false . . . document”). 21. Although there were more than 27 million NICS checks performed in 2017, history showcases that only about six-tenths of a percent of NICS checks are denied. See NICS Background Checks: Month/Year, FBI, available at https://www.google.com/ur l?sa=t&rct=j&q=&esrc=s&source=web&cd= 1&cad=rja&uact=8&ved=0ahUKEwiA0Jis7
IvTAhUBDWMKHdtVBcAQFggdMAA&u rl=https%3A%2F%2Fwww.fbi.gov%2Ffilerepository%2Fnics_firearm_checks_-_ month_year.pdf&usg=AFQjCNF3B2nmv4 6tRg8q3pwDad76WEVV5w. Of the NICS checks denied, action was only taken against 254 people from 2008 to 2015. See Todd Beamon, Report: New Low for People Being Prosecuted For Lying in Gun Background Checks, Newsmax (Sep. 29, 2016), available at http://www.newsmax.com/US/gun-gunscontrol-rights/2016/09/29/id/750978/. This amounts to approximately four-tenths of a percent of denials being prosecuted. Id. 22. See 18 U.S.C. § 1621. Prosecutions are not reserved merely for false statements about previous action such as marijuana use or an existing felony record. In 2014, Abramski v. United States, 134 S. Ct. 2259, 189 L. Ed. 2d 262 (2014), considered the issue of punishment based upon a false statement regarding the intended recipient of the firearm (“straw purchasing”). 23. See § IV(G), Rules and Regulations Governing Medical Marijuana Registration, Testing, and Labeling in Arkansas, Ark. Dept. Health (January 26, 2017), available at http://www.healthy.arkansas.gov/ aboutADH/Documents/1.26.17MMRules. pdf [hereinafter “ADH Rules”]. The Department of Health will maintain a list of all persons who have been issued registry identification cards. The list shall be confidential and exempt under the Arkansas Freedom of Information Act (“AFOIA”). The list may be shared with the Alcoholic Beverage Control Division and the Medical Marijuana Commission, but only as necessary. § IV(G) ADH Rules. Act 5 of 2017 also clarifies that an application itself, along with all supporting information, is exempt from AFOIA. See 2017 Ark. Acts 5 (§ 2). 24. § IV(G)(3) ADH Rules, supra note 22. 25. 18 U.S.C. §§ 922(d)(3) and 3571(b)(3). 26. See ATF Open Letter, supra note 19. 27. See Ark. Code Ann. § 5-73-309(7). 28. See Ark. Code Ann. § 5-73-309(6). 29. Marijuana Amendment (§ 3). See also Proctor v. Daniels, 2010 Ark. 206, 392 S.W.3d 360 (noting language of a constitutional provision that is plain and unambiguous must be given its obvious and common meaning).
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ArkBar Member Spotlight—Practicing Overseas
My 20 Years in Thailand By Mike Doyle
It is 10 hours before Super so it sort of made sense but Bowl 51 is to begin, and I am looking back, doing that must about to set my alarm for 5:30 am have seemed like a truly weird tomorrow (Monday) Bangkok decision. I remember talking time so that I can get up in time with the Ouachita students to watch the game live due to the who had just returned from 13-hour time difference. I will this exchange program and watch at home while I get my listening to their stories, and six-year-old daughter ready for I became fixated on the idea school and make her breakfast. of doing something so off the All the while, she will be begwall and different. My parging me to change the channel ents thought I was completely to cartoons. No one else in my crazy but, as always, were supneighborhood will even know the Mike and his daughter Jessica in Sukhothai, Thailand (World portive. game is being played. Super Bowl Heritage Site) in 2016. Kazakhstan did not have Sunday–Thailand style. anything to do with me endI have lived and practiced law ing up in Thailand, other than in Thailand since 1996. That is when I first moved here from it was the first time that I was exposed to a completely unfamiliar Arkansas, only a few months after my law school graduation. environment and I liked it—A LOT. Kazakhstan was 60% ethnic Since that time, I have lived through the Asian Financial Crisis Russian, 40% ethnic Kazakh (descendents of the Mongols). No one (which started in Thailand), four military coups (Thailand is cur- spoke English nor were there any English language newspapers or rently under military rule), joined and eventually became a partner TV channels, and it was still very communist. There were no ATM of a local law firm, convinced a sweet (but tough) Thai-Chinese girl machines, no franchises of any kind, no supermarkets or conveto marry me, published three legal books and had a beautiful Thai- nience stores, and every time I wanted to call home I had to wait American daughter. During the same period, I have missed count- by a phone for two hours for a line to open. I couldn’t imagine a less family/friends’ weddings, reunions, funerals, and other events place more different than where I had grown up, but I had a chance back home that I really wish I could have been there for. Exposure to, literally, live on the other side of the planet and meet all sorts to Arkansas Razorback and Oakland Raider football has been tragi- of people. It was a great experience. That was 1992 and I was 21. cally limited to only what I watch when I come home for Christmas. When I returned to Arkansas I saw the world differently, and I I grew up in Jonesboro, Arkansas, and went to undergraduate was intent to find a way to live overseas again. I graduated from school at Ouachita Baptist University in Arkadelphia. I had a pretty Ouachita and then attended the University of Arkansas Law School normal life until my junior year when I told my parents that I wanted in Fayetteville. In my third year, I interviewed with some big interto be an exchange student to the former Soviet country of Kazakhstan national law firms in New York such as Baker McKenzie, Arnold in Central Asia. I had been studying Russian language and history & Porter, and Watson Farley, all of whom were interested in my (Kazakhstan is Russian speaking and majority ethnically Russian), Russian language ability, but I received no job offers. 30
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My older brother was a jewelry buyer for the Home Shopping Network at the time, and whenever he would come home to Arkansas he told great stories about his trips to Thailand to buy jewelry. He had always told me that if I wanted to work in Thailand after law school he could help me find a job. After New York, I gave him my resume and asked him to see what he could do. A few days later I received a phone call from a lady with a heavy accent named Nam Fon (means Rain Water in Thai) at 2 a.m. “This Michael Doyle?” “Yes.” “You a lawyer?” “Yes.” “We need you in Thailand immediately!” And that is how I got here. Within a few days, I received a Fed Ex with my plane ticket, and I was on my way to a country I had never visited and where I didn’t know a single person. That was 1996 and I was 25. Thailand is a developing country situated in the middle of Southeast Asia and borders Malaysia, Myanmar, Cambodia and Laos. It has a population of about 65 million people. My job was with a small law firm in the capital, Bangkok, a city of approximately 15 million. I immediately loved Bangkok and Thailand in general. The culture, the people, the food, the weather—I loved it all. My legal career, however, did not exactly sky rocket from the day I got off the plane. I went through a couple of jobs in my first two and a half years that were not a great fit, and then in 1999 I met a well-respected Thailand lawyer named Manop Nagadatta. Manop was the managing partner of a wellknown business law practice in Bangkok. He had, himself, been an exchange student to the U.S. and received his LLM at Tulane. He offered me a job and I immediately accepted. My plan was always to build my own book of business over time because I knew from my first two jobs that I did not want to be in the position where I was waiting for someone else to put work on my desk. In order to do that I needed to position myself in the market and continue to develop the skills that I thought I would need in
order to become successful. The first thing that I did was get involved in the community by doing things like joining a local Rotary club and the American Chamber of Commerce. I also had an idea to write a book. At the time, there were no good books on Thai investment law in English in bookstores, so I set out to write one. In 2004, I published “Doyle’s Practical Guide to Thailand Business” (now in its 4th edition and available in English and Japanese) and from that point on I became “the guy who wrote the book.” Another important thing that I did was get serious about learning Thai language. As I surveyed the other foreign lawyers in Thailand at the time, I observed that few, if any, were comfortable enough in their Thai language ability to participate in business meetings in Thai, and I saw that as an opportunity. I had a good idea from my experience studying Russian what it would take to achieve that level of fluency and knew that it would be well worth it. So I hired a teacher and started studying first spoken Thai and then later reading and writing as well which I continue to this day. Gradually, I became confident enough to do presentations and publish legal articles in Thai language and I am now working on a project to publish my first book in Thai. I also looked for ways to position both my firm and myself globally. I reached out to international firms that did not have an office in Thailand such as KL Gates, Dentons, Skadden, Ashurst and others and tried to build relationships so that when their clients had Thailand projects those
firms would use us. As I was still a relative unknown, implementing this strategy took time, but I was persistent, and eventually work started to come in. We also joined U.S. and European based international legal networks and started building relationships with successful U.S. regional firms such as Baker Donnellson, Husch Blackwell, Nixon Peabody, Sheppard Mullin, Barnes Thornburg, Mitchell Williams and others, and work started to come in from them as well. As our reputation grew, we also started receiving work from firms in the U.K., Singapore, Japan, Korea and, most recently, China. And things worked out. It was definitely never a flood gates situation, but every year we had more and more opportunities to do business with these firms and gain experience. We worked very hard to keep their clients happy. My primary market is not Fortune 500, but rather, the big small companies in the U.S., Canada, U.K., Japan and China that do between 50 to 300 million U.S. annually. These companies are typically either small listed or private, entrepreneurial companies that have resources but do not have an in-house legal team, and I (in my humble estimation) understand their needs and objectives better than any other legal service provider in my market. Our firm has now grown to 23 lawyers advising both foreign and Thai investors in the areas of foreign direct investment, corporate law, finance, tax, real estate, banking, securities and dispute resolution. I feel very fortunate to work with a team of very talented and motivated Thai lawyers. The road I have chosen has not always been easy and would definitely not be for everyone, but I have always been very happy with my decision to make Thailand my home and feel fortunate.
Mike Doyle is a Senior Partner at the law firm of Seri Manop and Doyle.
Vol. 52 No. 2/Spring 2017 The Arkansas Lawyer
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ArkBar Member Spotlight—Practicing Overseas
Trading Pine Trees for Palm Trees: Practicing Law in U.S. Territories By Josh Rovelli
Around Thanksgiving of 2015, an attorney recruiting me to work for his firm made the most outlandish pitch I had ever heard. He promised me a job where I would leave work every day at 4:00 p.m., and never work a weekend or holiday. In my off-time, I would drink from coconuts on world-class beaches, camp on one of the most remote islands in the United States, or fish in waters abundant with tuna and wahoo. I would wear shorts and flip-flops to work—even during court appearances. And, perhaps most importantly, he promised me an above-average salary for an attorney with my experience, and plenty of paid time off. The only catch was that I would have to leave Arkansas behind, and spend two years in American Samoa. As you can imagine, I was skeptical of this too-good-to-be-true proposition. But my wife and I decided that if the job was even half as good as advertised, we would be remiss to walk away. Almost a year later, I’m pleased to report that every outrageous promise was kept. I’m tanner than I’ve ever been, my blood pressure has fallen to a healthy level, and I spend my afternoons paddle boarding with sting rays. If you’re skeptical, I can’t blame you. But if you look for yourself, you will find a hungry job market in the U.S. Territories that is yours for the taking. The Pitch For new graduates, it’s no secret that the legal job market can be unforgiving. In the American Bar Association’s most recent employment survey, only 62.4% of new graduates landed long-term, full-time work that requires a law degree. While the numbers are more promising in Arkansas, there are still many new graduates struggling to get their foot in the door. Even for those attorneys who have secured their first 32
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gig, job satisfaction can often be elusive. Those looking to expand their expertise, develop their courtroom skills, or strike the perfect work-life balance might be looking for new prospects. Practicing in a U.S. Territory may present the ideal opportunity for growth and change. I can only speak to my experience over the past year, so this section will focus on life and the practice of law in American Samoa. However, attorneys practicing in other U.S. Territories have communicated similar experiences. For example, another Bowen graduate, Kendall Shortway, has had a comparable experience in the U.S. Virgin Islands. I also have colleagues in Saipan, Guam, and Palau who agree that practicing abroad is among the best professional decisions that they ever made. Practicing law in American Samoa is much like practicing in small town Arkansas. The bar here is small, and everyone knows everyone. With a few exceptions, the local lawyers fight hard for their clients, but are collegial and friendly in the right setting. The Territory’s small population, roughly 60,000, makes it impractical to pursue a niche practice, and instead opens all local attorneys up to a more general practice. Over the past year, I have handled a handful of admiralty cases, a few personal injury matters, several unwieldy transactions, and plenty of routine litigation. As a young attorney, I am grateful to have been exposed to such a wide variety of cases. American Samoa also poses unique legal challenges that attorneys in the continental United States will never encounter. For example, the High Court of American Samoa lacks the well-developed case law that state courts generally enjoy. Even simple questions of law are often unsettled, and this means that attorneys look to all 50 states for persuasive authority. Almost anything is fair game, which makes for creative and hard-fought lawyering. But, let’s be honest. If you’re thinking about flying across the world to live on a tropical island, you’re likely thinking more of the lifestyle than
the courtroom. I should offer an important caveat: island life isn’t for everyone. Nearly every U.S. Territory is economically depressed. In American Samoa, there is no shopping mall, no Starbucks, and no interstate. The average annual income here is around $24,000.00 per household, and most are either employed at the local tuna canneries or with the American Samoa Government. Living here takes an adjustment. But for the adventurous and flexible, American Samoa can provide a once-in-alifetime experience. The Los Angeles Times recently described American Samoa as “this weird, lost corner of America” where “the beach of your dreams awaits.” On American Samoa’s main island, Tutuila, you’ll find miles of lush jungle trails, which lead to scenic mountaintops, untouched volcanic beaches, or spring-fed waterfalls. No matter where you are, you aren’t far from a majestic reef where you might snorkel with a sea turtle, a spiny lobster, or a black tip reef shark. In the summer, you will feast on locally grown mangoes or avocados, and in the winter, you will watch humpback whales migrate through the bay. Nearly every business on island (including the law firms) closes at 4:00 p.m., and evenings are reserved for relaxation and family. If you’re feeling adventurous, you could catch a ferry or 10-seat plane from Tutuila to nearby Ofu Island. Per Lonely Planet, Ofu “looks like a hallucination: imagine the whitest possible sand leading to the bluest possible water, all surrounded by intense green hillsides cut by bays.” This will be the loneliest, least disturbed stretch of beach you’ve ever seen. And it’s about 30 minutes away from your office. For a young attorney, the benefits of this opportunity cannot be overstated. You will strengthen your resume, make a respectable amount of money, and refine your lawyering skills while basking in the sun on a tropical island. The Places The United States has 16 territories, but only five are inhabited: American Samoa, The Northern Mariana Islands, Guam, The U.S. Virgin Islands, and Puerto Rico. There are also a handful of “associated states” such as Palau and The Marshall Islands, which offer attorneys similar advantages to U.S. Territories. Each of these areas offer their own unique perks for attorneys to enjoy during their stay, but all feature mesmerizing beaches and other natural wonders.
In almost every U.S. Territory, there is a bar examination waiver for attorneys seeking to work in governmental practice. This means that Arkansas attorneys in good standing who are offered a job with an attorney general, legal aid, or a similar public interest practice will not be required to take another bar exam. If you wish to enter private practice, however, every jurisdiction except for American Samoa requires some form of bar examination or attorney’s examination. Each jurisdiction’s licensing requirements are contained within their Supreme Court rules, and are easily accessible online. The Jobs Attorney jobs in U.S. Territories are plentiful. Most attorneys go to U.S. Territories on a two-year contract, so law firms and attorneys general are almost always in need. However, open jobs might not always be easy to find. Attorneys general and private practitioners alike often have job vacancies, but advertise them locally rather than online. In short, you likely will not find territorial attorney jobs online, but they do exist. Do not be afraid to pick up the phone and call around, or to send emails directly. During my job hunt, I had long and productive conversations with several private practitioners, and the Attorney General of Palau and the Commonwealth of the Northern Mariana Islands. Most U.S. Territories have an Attorney General that is the jack-of-all-trades government lawyer. In American Samoa, the Attorney General is the immigration authority, the prosecutor, and the government advocate all rolled into one. Attorneys general offer a benefits package comparable to that offered to government lawyers in Arkansas. The Commonwealth of the Northern Mariana Islands, for example, pays its attorneys roughly $50,000.00 per year. Other benefits include round trip airfare to Saipan, the cost of shipping your household goods, and 26 days of paid vacation per year. The American Samoa Attorney General offers a similar package, but also throws in government subsidized housing which costs its attorneys only $100.00 per month. Two-year contracts are standard, and they are almost always open to renewal if you aren’t ready to go home at the end of your term.
Of course, having a prosecutor’s background is helpful. But most deputy attorneys general are inexperienced lawyers coming almost directly from law school. This is an excellent opportunity for a bold new lawyer looking to bolster his or her resume with quality courtroom experience. If government employment isn’t for you, each Territory also has a few mid-size firms that are always looking for new talent. Private practitioner salaries often outpace their government counterparts, but government lawyers enjoy more vacation days and other benefits. Private practice jobs typically require some degree of experience. As stated in the preceding section, private practitioners in U.S. Territories tend to be general practitioners by necessity. In private practice, you will be exposed to an array of legal arenas, such as admiralty and maritime, transactional matters, and regulatory compliance. You will need to be well rounded to thrive in private practice, as your research, writing, and courtroom skills will be put to the test nearly every week. Conclusion If you’re looking to expand your professional experience, strike the perfect work-life balance, or just get your career started, the perfect opportunity awaits attorneys who are adaptable and adventurous. All you have to do is trade pine trees for palm trees, and join me in a U.S. Territory.
Josh Rovelli is the senior associate attorney at the RDA Law Firm in American Samoa.
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2016-2017 ARKANSAS BAR ASSOCIATION
Sustaining Contributors
THANK YOU Benefactors 2016-2017
Benefactors are members who make a sustaining contribution of $250/year in addition to membership dues to support Association programs. Silas H. Brewer, Jr. Larry W. Burks Thomas M. Carpenter Earl Buddy Chadick Suzanne G. Clark William M. Clark, Jr. Jon B. Comstock Walter B. Cox James E. Crouch Steven B. Davis Sherry D. DeJanes Jack East III Judge Victor A. Fleming Matthew L. Fryar
Judge Robert F. Fussell Judge David F. Guthrie Stuart W. Hankins David Michael Hargis Charles L. Harwell Shelly Hogan Koehler Denise Reid Hoggard Scott Hunter Paul W. Keith William H. Kennedy III Judge Alice F. Lightle Charles Knox Lincoln II Col. William A. Martin Josh E. McHughes
Jerald Cliff McKinney II Philip E. Meadows Michael Millar Margaret W. Molleston Wm. Kirby Mouser Timothy J. Myers Debby Thetford Nye William L. Patton, Jr. Neal R. Pendergraft John V. Phelps Jerry D. Pruitt Michael R. Rainwater Judge John R. Scott Robert M. Sexton
Ted C. Skokos Don Allen Smith James D. Sprott Thomas S. Streetman Matthew A. Toback George G. Vaught, Jr. John Cogan Wade Eddie H. Walker David J. Whitaker Tom D. Womack Judge Susan Webber Wright
Patrons 2016-2017
Patrons are members who make a sustaining contribution of $100/year in addition to membership dues to support Association programs. Mark H. Allison Philip S. Anderson Elizabeth Ann Andreoli Ben F. Arnold Barry D. Barber Melody Peacock Barnett W. Christopher Barrier Kay Baxter David L. Beatty Paul B. Benham III Michael Stephen Bingham Allen W. Bird, II Judge Samuel N. Bird Margaret Long Blissard Will Bond
34
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Ted Boswell Robert Bruce Branch, Sr. Fred E. Briner Bill W. Bristow Christopher D. Brockett Ralph G. Brodie Thomas E. Brown Mickey Joe Buchanan Robert D. Cabe John C. Calhoun, Jr. Worth Camp, Jr. Jerry L. Canfield Mary C. Caroom Douglas M. Carson Robert M. Cearley, Jr. www.arkbar.com
Sterling Taylor Chaney Roger U. Colbert Charles T. Coleman Randy Coleman Nate Coulter Judge James O. Cox Michael A. Crockett Junius Bracy Cross Tim J. Cullen Niki Trang Cung F. Thomas “Tom” Curry C. Michael Daily Thomas A. Daily Kirk D. Darbe Judge Lawrence E. Dawson
Judge Robert T. Dawson Joseph B. Deacon Judge Beth M. Deere Don A. Eilbott Byron M. Eiseman, Jr. Preston Tull Eldridge John R. Elrod Stephen Engstrom Bob Estes Frances S. Fendler Lyle D. Foster Amy Freedman David M. Fuqua Price C. Gardner Buck C. Gibson
Patrons (cont.) 2016-2017
Charles Clifford Gibson III Pamela B. Gibson Sam E. Gibson Cheryl Gildner Dent Gitchel Morton Gitelman Roger A. Glasgow Dorsey D. Glover Judge Donald Goodner Richard E. Griffin Ronald L. Griggs Timothy W. Grooms Justice (ret.) James H. Gunter, Jr. David K. Harp Judge Eugene S. “Kayo” Harris Richard F. Hatfield Robert W. Henry Rosanna Henry Paul Herrod Joseph Hickey R. H. “Buddy” Hixson Glen Hoggard Cyril Hollingsworth Don Hollingsworth Robert M. Honea Robert Howard Hopkins Robert E. Hornberger Karen K. Hutchins James W. Hyden Robert S. Irving Judge Michael E. Irwin Donald T. Jack, Jr.
The voice of the Arkansas lawyer Randolph C. Jackson Amy Dunn Johnson Glenn W. Jones, Jr. Robert S. Jones Patricia R. Julian David W. Kamps Sean T. Keith Eugene T. Kelley Judson C. Kidd Judge Milam Michael Kinard Joseph F. Kolb Peter G. Kumpe Michael Alan LaFreniere Judge David N. Laser Charles R. Ledbetter Lance Lee John C. Lessel Stark Ligon Judge John R. Lineberger Stephen A. Lisle Patty Lueken David R. Matthews Sidney H. McCollum Michael S. McCrary Bobby McDaniel Dustin B. McDaniel James A. McLarty III James E. McMenis Philip Miron T. Ark Monroe III Orin Eddy Montgomery Charles M. “Skip” Mooney, Sr.
Harry Truman Moore Stephen E. Morley Tom C. Morris III Kenneth R. Mourton Rosalind M. Mouser Julie Mullenix Judge William David Newbern Stephen B. Niswanger Dana Daniels Nixon R. Gary Nutter James E. O’Hern III William L. Owen Nicholas H. Patton Kristin L. Pawlik Brant Perkins David M. Powell Donald C. Pullen Joseph H. Purvis Richard L. Ramsay Brian H. Ratcliff Chief Magistrate Judge J. Thomas Ray Robert James Reid Lewis E. Ritchey William S. Robinson Colby T. Roe Charles B. Roscopf Charles D. Roscopf John L. Rush Don M. Schnipper John S. Selig Frank B. Sewall J. L. (Jim) Shaver, Jr.
William Farrar Sherman Scotty M. Shively James W. Smith Richard Allen Smith Robert D. Smith III Vicki K. Smith Aaron L. Squyres Thomas S. Stone Judge John F. Stroud, Jr. James H. Swindle, Jr. Justice Annabelle Imber Tuck Marcus L. Vaden James R. Van Dover Glenn Vasser Vicki S. Vasser-Jenkins William A. Waddell, Jr. Wyman R. Wade, Jr. Danyelle J. Walker Judge Bill H. Walmsley Judge John C. Ward Stan L. Warrick John Dewey Watson Timothy Fagan Watson, Sr. Rebecca H. Winburn Teresa M. Wineland William R. Wisely Carolyn B. Witherspoon Rufus E. Wolff Marsha C. Woodruff Andrea Grimes Woods Eric Lane Worsham Dennis Zolper
Become a Benefactor or Patron member in 2017-2018 By making an annual gift to the Arkansas Bar Association, you will become a Benfactor or Patron Member. • •
Your gift helps to support the mission and many projects of the Association. You will receive recognition in The Arkansas Lawyer magazine.
• •
You will receive a speciality ribbon for name badge at the Annual Meeting. You will receive and recognition at the ArkBar Annual Meeting.
Vol. 52 No. 2/Spring 2017 The Arkansas Lawyer
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The Frank Broyles Publicity Rights Protection Act of 2016: Potential Minefields By Uche Ewelukwa Ofodile
I. Introduction In 2016, the Arkansas legislature passed the Frank Broyles Publicity Rights Protection Act (“Broyles Act” or “Act”).1 Prior to the enactment of the Act, Arkansas recognized the tort of invasion of privacyappropriation under common law.2 The Act is significant because the right of publicity in the United States is essentially a state-based right and there is as yet no federal right of publicity statute. The Act comes at a time when social media is redefining what it means to be a celebrity and is also expanding the avenues for the exploitation of an individual’s personality. Because the right of publicity is not as well-understood or as widely practiced as other types of intellectual property rights, a lot of controversies and confusion surround this area of law. This article introduces the Frank Broyles Act, highlights thorny provisions of the statute, and discusses decisions of courts in other jurisdictions that may provide guidance for attorneys and courts in Arkansas.
Professor Uche Ewelukwa Ofodile is a law professor at the University of Arkansas School of Law in Fayetteville, Arkansas. She is the Co-Chair of the Intellectual Property Interest Group of the American Society of International Law. 36
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II. Right of Publicity: What is it? The right of publicity derives from the common law tort of invasion of the right of privacy3 and is defined as the right to prevent the unauthorized commercial use of one’s identity.4 No federal statute explicitly recognizes the right of publicity, although some measure of protection is available under the Trademark Act of 1946 (the Lanham Act). In the U.S., the right of publicity is protected primarily through state common law and/or statutory law and was first articulated by the Second Circuit Court of Appeals in 1953.5 Although about 38 states now recognize the right of publicity, not every state has codified this right. III. The Frank Broyles Publicity Rights Protection Act of 2016: Overview The key features of the Broyles Act are outlined in this section. Who is protected, what is protected, and the elements of a statutory right of publicity claim in Arkansas, as well as the key exceptions to the right of publicity in Arkansas are discussed.
A. What is Protected? The Broyles Act protects five aspects of an individual’s identity: name, voice, signature, photograph, and likeness.6 The Act does not protect every aspect of an individual’s identity. Thus, distinctive appearances, gestures, and mannerisms, as well as unique phrases are not explicitly recognized under the Act.7 B. Who Is Protected? The Broyles Act protects only natural persons, living or dead.8 Arkansas’ statutory right of publicity is not limited to celebrities. Members of church choirs, soccer moms, aspiring models, local farmers, and children are protected. The right is available “only to individuals maintaining a domicile or residence in the State” on or after the effective date of the Act.9 C. Duration of Rights; Postmortem Protection The Act offers robust post-mortem protection. This statutory right of publicity survives death and is fully descendible and transferable.10 The rights are exclusive to “[a]n individual during the individual’s lifetime” and to “[t]he executors, administrators, heirs, devisees, and assignees of the individual for fifty (50) years after the individual’s death.”11 An individual’s post-mortem right of publicity in Arkansas is not contingent on lifetime exploitation and is not lost if the individual’s successors fail to exploit it. D. Elements of a Right of Publicity Claim The Act reaches unauthorized commercial use of an individual’s protected identity. To make out a publicity rights claim under the Act, a plaintiff must plead and prove: • ownership of a valid and protectable right; • commercial use by a defendant of a living or deceased individual’s “readily identifiable” name, voice, signature, photograph, and/or likeness; and • lack of consent. Intent is not an element of a right of publicity claim in Arkansas and commercialization is not a prerequisite to a valid and protectable right of publicity under the Act. Furthermore, the Act provides that “[t]he existence or nonexistence of profits from the unauthorized commercial use shall not be a criterion for determining liability.”12 E. Key Exceptions and Exclusions The Broyles Act provides exemptions and exceptions from liability for a number of activities including inter alia:
•
use “[i]n connection with a news, public affairs, or sports broadcast, … an account of public interest, or a political campaign;”13 • use in “[a] work of political, public interest, or newsworthy value …;14 • use in a photograph or likeness where the individual appears as a member of the public, an attendee of a photographed event, or in a public place, and the individual is not named; and • specified uses by an institution of higher education or by a nonprofit organization, club, or supporting foundation. F. Common Law Right of Publicity Any pre-existing common law right of publicity does not survive the Act.15 This is very significant because unlike the statutory “laundry list” of particular means of appropriating an individual’s right of publicity, the common law right of publicity protects “identity” broadly construed. G. Remedies Remedies available under the Act are limited to injunctive relief, actual damages, and profits. Unlike Indiana’s right of publicity statute, the Act does not provide for statutory damages, treble damages, punitive damages, attorneys’ fees or costs.16 The Broyles Act does not appear to provide for preliminary injunctive relief either;17 a court may issue an injunction only “upon finding a violation.” Significantly, the remedies granted under the Act constitute the exclusive basis for asserting a claim for the unauthorized commercial use of protected identity in Arkansas.18 IV. Thorny Issues in the Frank Broyles Publicity Rights Protection Act of 2016: Guidance for Attorneys and the Courts Several provisions of the Act are likely to pose interpretive challenges for the courts. Moreover, with wide disparity in right of publicity laws of different states, difficult jurisdictional issues and choice of law issues should be expected. Faced with matters of first impression, courts in Arkansas could look to the decisions of courts in other jurisdictions for guidance. A. Protected Identity Arkansas law explicitly protects name, likeness, voice, photograph and signature. A lot of battles can be expected over what each term means. While “likeness” and “photograph” are defined in the statute, “name,” “voice” and “signature” are not defined.
One issue that may arise is whether “name” includes former names, assumed names, and nicknames. The Broyles Act is ambiguous on the issue. By contrast, Indiana’s right of publicity statute explicitly provides that “name” means “the actual or assumed name … that is intended to identify the person.”19 The Broyles Act protects an individual’s “readily identifiable” name. Consequently, “identifiability” will be the analytical key and the trigger. One of the Plaintiff’s challenges will be proving that he or she is readily identified by a given name. By analogy, an Arkansas attorney could turn to persuasive cases. In the case of Ali v. Playgirl, Inc., a drawing of a nude black man labeled “The Greatest” was found to infringe Mohammed Ali’s right of publicity.20 The Ali court took judicial notice of the fact that Ali had regularly claimed that appellation “the Greatest” for himself and that his efforts to identify himself in the public mind as “the Greatest” had been so successful that he was regularly identified as such in the news media. In the case of Abdul-Jabbar v. Gen. Motors Corp.,21 former NBA player Kareem AbdulJabbar successfully sued General Motors Corporation when the company used the name “Lew Alcindor” in commercial advertising. Kareem Abdul-Jabbar was named Ferdinand Lewis (“Lew”) Alcindor at birth, but had not used the name “Lew Alcindor” for commercial purpose for about 10 years at the time the lawsuit was filed. Voice misappropriation is a specie of the violation of the right of publicity. It is unclear whether the Broyles Act creates a cause of action for the deliberate imitation of an individual’s voice. Courts in California have generally construed the statutory protection of “name, voice, signature, photograph or likeness” more narrowly than the common law’s protection of “identity.” Thus, although California courts have upheld voice misappropriation claims involving sound-alikes, they have done so under California’s common law, not under the state’s right of publicity statute. In Midler v. Ford Motor Co., Ford Motor Company used a Bette Midler “sound-alike” in a commercial.22 The Ninth Circuit rejected Bette Midler’s statutory right of publicity claim even though the relevant statute prohibits unauthorized use of a person’s “name, voice, signature, photograph or likeness,” reasoning that the defendants “did not use Midler’s name or anything else whose use is prohibited by statute.” However, the same court concluded that Midler had
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stated a claim for violation of her California common law right of publicity because “the defendants ... did appropriate part of her identity” by using a Midler sound-alike. The Ninth Circuit reached a similar conclusion in Waits v. Frito-Lay, a case involving a Doritos commercial in which a relatively unknown singer was used to mimic Tom Waits’ gravel voice.23 The Broyles Act defines “likeness” as “a reproduction of the image of an individual by any means other than a photograph.”24 This definition could prove problematic. At what point does a caricature or an impressionistic resemblance become a “likeness”? Is there a difference between a robot with mechanical features and a mannequin molded to an individual’s precise features? Courts in California have generally construed “likeness” more narrowly than “identity.” In White v. Samsung Elecs. Am., Inc., the Ninth Circuit affirmed a decision of the district court that a robot that dressed and posed like Vanna White next to a “wheel of Fortune” was not White’s “likeness” within the meaning of California’s right of publicity statute. However, the Ninth Circuit also concluded that White’s claim for misappropriation of identity may be actionable under the state’s common law.25 It would appear that whether an animatronic figure is a likeness of an individual has to be determined without reference to the familiar clothing and setting typically associated with the individual.26 B. Commercial Uses and Incidental Uses The Broyles Act prohibits unauthorized commercial uses. Commercial use is defined as use “[f ]or advertising, selling, or soliciting purchases of products, merchandise, goods, or services,” and use “[o]n or in connection with products, merchandise, goods, or other commercial activity that is not exempt.” A challenge will be determining how and where to draw the line between commercial use and non-commercial use. Is the use of an individual’s identity for fundraising actionable? The Act is silent on the issue while Indiana’s law explicitly defines “commercial purpose” to include fundraising.27 What can be made of expressive works such as books, films, paintings, songs, and video games which communicate ideas but at the same time generate considerable profit for the producer? The Broyles Act exempts use of a protected identity in “[a] play, book, magazine, newspaper, musical composition, visual work, work of art, audiovisual work, radio or television program … or a dramatic, literary, or musical work.28 Even cases involving commercial advertisement can 38
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present complex issues for the courts. In 2009 when Michael Jordan was inducted into the Basketball Hall of Fame, two grocery chains, Jewel Osco and Dominick’s, ran advertisements congratulating Jordan on his induction. Dominick’s advertisement contained a statement “You are a cut above” over a steak coupon while Jewel Osco’s advertisement contained the store’s tag line “Good things are just around the corner.” In Jordan v. Jewel Food Stores, Inc.,29 one issue before the court was whether the store’s ad was fully protected noncommercial speech. The Seventh Circuit explored the boundaries of commercial speech and ultimately held that Jewel’s ad was not constitutionally protected speech. C. Consent Under the Broyles Act, consent is required to use one’s identity. The Act does not call for written consent, however.30 This could prove problematic particularly in the context of social media platforms. When users agree to a platform’s Term of Use, what exactly are they consenting to and to whom are they giving the consent? Does posting a picture on Flickr, snapchat or Twitter imply consent to everyone on the platform to use the photos? Few courts have defined “consent” in the right of publicity context. Fraley v. Facebook, Inc., a class action suit against Facebook for its Sponsored Stories, demonstrate that the issue of consent in the context of social media can prove to be very problematic and embarrassing for all concerned.31 D. First Amendment vs. Right of Publicity “The interaction between the right of publicity and the constitutional freedom of speech is perhaps one of the murkiest areas of right of publicity law.”32 While the federal circuits and state courts agree that the right of publicity must be balanced against First Amendment considerations, they disagree on how and where to strike the balance. When it comes to resolving the tension between the right of publicity and the First Amendment, courts apply vastly different tests. The tests are highly contradictory and unpredictable. At least five different tests have been applied. The Second, Fifth and Sixth Circuits apply the Rogers test,33 the Third Circuit and the Ninth Circuit apply the Transformative Use test,34 the Sixth Circuit has applied the Transformative Work test,35 and some Circuits (the Eighth, Tenth, and Eleventh) frequently use a more flexible, ad hoc balancing test.36 State courts are also coming up with their own tests. The Missouri
Supreme Court has applied a “Predominant Purpose” test.37 The U.S. Supreme Court has addressed the right of publicity only once in Zacchini v. Scripps-Howard Broadcasting Co.38 and has, thus far, offered no guidance on the issue. The good news is that Arkansas’ right of publicity statute permits broad First Amendment exemptions. The bad news is that there are a number of gray areas that are not addressed. For example, the Act specifically exempts the use of an individual’s protected identity in “[a] work of political, public interest, or newsworthy value including . . . a transformative creation of a work of authorship.”39 Unfortunately, the Act does not define “transformative.” E. Copyright Preemption Doctrine The “Copyright Preemption” doctrine is alive and well.40 Pursuant to 17 U.S.C. § 301(a) of the Copyright Act, federal copyright law preempts all state-law claims regarding rights that are equivalent to the exclusive rights protected under § 106 of the Act. To determine whether a state-law claim is preempted, courts generally ask two questions. First, does the claim fall “within the subject matter of copyright” as defined by 17 U.S.C. § 102”?41 Second, does the cause of action implicate rights that are “equivalent” to any of the exclusive rights of a federal copyright?42 To avoid copyright preemption, a right of publicity claim must contain at least an “extra element” that is “qualitatively different” from the elements required to prove copyright infringement.43 In a case decided on April 5, 2017, Maloney v. T3 Media, Inc., the Ninth Circuit ruled that a publicity-right claim “is not preempted when it targets non-consensual use of one’s name or likeness on merchandise or in advertising.”44 However, the Ninth Circuit held for pre-emption, concluding that “when a likeness has been captured in a copyrighted artistic visual work and the work itself is being distributed for personal use, a publicity-right claim interferes with the exclusive rights of the copyright holder, and is preempted by section 301 of the Copyright Act.” F. Actual Damages The only remedies available under the Broyles Act are actual damages, disgorgement of the defendant’s profits, and permanent injunctive relief. Consequently, significant battles over the calculation of actual damages can be expected. In calculating actual damages commercial injury to plaintiff is usually the primary focus and courts typically try to
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determine the fair market value of the property right in the plaintiff’s identity which the defendant used.45 While Bette Midler was awarded $400,000 for the Ford commercial and Michael Jordan got an $8.5M jury award against Dominick’s grocery chain, most cases will not result in a multi-million dollar award. Requests for damages have been denied where the plaintiff could not prove injury.46 G. Nationwide Injunction In fashioning injunctive relief, the geographical reach of the injunctions could prove controversial. Because the right of publicity is a state-based right, what is prohibited in Arkansas may be legal in other states. This begs the question of whether Arkansas’ courts have the power to issue nationwide injunctions when a complained-of act occurs outside Arkansas and is legal in the state in which it occurred. Nationwide injunctions in right of publicity cases are troublesome and could be found to violate the Due Process Clause and the Commerce Clause of the Constitution.47 Apart from the Constitutional questions, the interests of comity may strongly favor more limited injunctive relief. V. Conclusion The Frank Broyles Act gives individuals, celebrities and non-celebrities, the exclusive right to control, direct and commercially use their names, voices, signature likenesses and/ or photographs. Because the right to commercially exploit one’s protected identity can be an extremely valuable asset, this right cannot and should not be ignored in determining the value of a decedent’s estate. Entertainment lawyers, intellectual property lawyers, tax attorneys and even estate planning attorneys all need to be aware of the Frank Broyles Act. For all its growing popularity, the right of publicity law is very controversial and, as applied to nonadvertising uses involving expressive works, has to survive strict scrutiny. Although numerous calls have been made for a federal right of publicity statute, none appears to be in the horizon.48 Until a federal right of publicity statute comes into existence, attorneys and courts will have to grapple with constitutional restraints on state right of publicity laws, difficult jurisdictional issues, as well as complex choice of law questions arising from the fact that different states have widely divergent right of publicity laws. Given unprecedented technological advances, novel claims that implicate the right of publicity and raise novel issues in law should also be expected. 40
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Endnotes: 1. Ark. Code Ann. § 4-75-1101 (2016). 2. Olin Mills, Inc. v. Dodd, 234 Ark. 495, 353 S.W.2d 22 (1962); Stanley v. Gen. Media Communications, Inc., 149 F. Supp. 2d 701 (W.D. Ark. 2001). 3. Restatement (Second) of Torts, § 652A (1977); see also William L. Prosser, Privacy, 48 Cal. L. Rev. 383, 398-407 (1960). 4. J. Thomas McCarthy, The Rights of Publicity and Privacy § 1:23 (2d ed. 2012). 5. Haelan Laboratories Inc. v. Topps Chewing Gum, Inc., 202 F.2d 866, 868 (2d Cir. 1953). 6. Ark. Code Ann. § 4-75-1104. 7. Ind. Code Ann. § 32-36-1-6. Section 6 protects personality defined to mean: name, voice, signature, photograph, image, likeness, distinctive appearance, gesture, and mannerisms. 8. Ark. Code Ann. § 4-75-1103(2). 9. Ark. Code Ann. § 4-75-1113(b). 10. Ark. Code Ann. § 4-75-1104(b)(3)(A). 11. Ark. Code Ann. § 4-75-1107. 12. Ark. Code Ann. § 4-75-1109(c)(3). 13. Ark. Code Ann. § 4-75-1110(a)(1)(A). 14. Ark. Code Ann. § 4-75-1110(a)(1)(B) (ii). 15. Ark. Code Ann. § 4-75-1111(b). 16. Ind. Code Ann. § 32-36-1-10, Section 10 (providing for statutory damages, punitive damages, and treble damages). See also Ind. Code Ann. § 32-36-1-12 (providing for reasonable attorney’s fees, costs, and expenses relating to an action.). 17. Ind. Code Ann. § 32-36-1-12, Section 12(2) (providing for temporary or permanent injunctive relief). 18. Ark. Code Ann. § 4-75-1111(a). 19. Ind. Code Ann. § 32-36-1-3. 20. 447 F. Supp. 723, 728 (S.D.N.Y. 1978). 21. 85 F.3d 407 (9th Cir. 1996). 22. 849 F.2d 460 (9th Cir.1988). 23. Waits v. Frito-Lay, Inc., 978 F.2d 1093 (9th Cir. 1992); Midler v. Ford Motor Co., 849 F.2d 460 (9th Cir. 1988). 24. Ark. Code Ann. § 4-75-1103(3). 25. White v. Samsung Elecs. Am., Inc., 971 F.2d 1395 (9th Cir. 1992). 26. Wendt v. Host Int’l, Inc., 197 F.3d 1284 (9th Cir. 1999). 27. Ind. Code Ann. § 32-36-1-2. 28. Ark. Code Ann. § 4-75-1110 (a)(1)(B) (i). 29. 743 F.3d 509, 522 (7th Cir. 2014).
30. By contrast, Indiana’s right of publicity statute explicitly requires written consent. Ind. Code Ann. § 32-36-1-8, Section 8(a). 31. 830 F. Supp. 2d 785 (N.D. Cal. 2012). 32. Gil N. Peles Esq., The Right of Publicity: A Practitioner’s Enigma, 17(2) J. Of Intellectual Property Law 351-359 (2010). 33. Rogers v. Grimaldi, 875 F.2d 994 (2d Cir. 1989). 34. In re NCAA Student-Athlete Name & Likeness Licensing Litigation (“Keller v. Electronic Arts”), 724 F.3d 1268, 1271 (9th Cir. 2013); Hart v. Electronic Arts, Inc., 717 F.3d 141 (3d Cir. 2013). 35. ETW Corp. v. Jireh Publ’g, Inc., 332 F.3d 915 (6th Cir. 2003). 36. C.B.C. Dist. & Mktg., Inc. v. Major League Baseball Advanced Media, L.P., 505 F.3d 818 (8th Cir. 2007); Cardtoons, L.C. v. Major League Baseball Players Assoc., 95 F.3d 959 (10th Cir. 1996); Toffoloni v. LFP Publ’g Grp., 572 F.3d 1201 (11th Cir. 2009). 37. Doe v. TCI Cablevision, 110 S.W.3d 363 (Mo. 2003). 38. 433 U.S. 562 (1977). 39. Ark. Code Ann. § 4-75-1110 (a)(1)(B) (ii). Emphasis added. 40. Baltimore Orioles, Inc. v. Major League Baseball Players Ass’n, 805 F.2d 663 (7th Cir. 1986). 41. Carson v. Dynegy, 344 F.3d 446, 456 (5th Cir. 2003). 42. Id. 43. Michaels v. Internet Entmt. Group, Inc., 5 F. Supp. 2d 823, 837 (1998). 44. Case No. 15-55630 (9th Cir. Apr. 5, 2017). 45. Jordan v. Dominick’s Finer Foods, LLC, 115 F. Supp. 3d 950 (N.D. Ill. 2015). 46. Andretti v. Borla Performance Industries, Inc., 426 F.3d 824 (6th Cir. 2005). 47. Herman Millar, Inc. v. Palazzetti Imports & Exports, Inc., 270 F.3d 298, 323-324 (6th Cir. 2001). 48. International Trademark Association, Board Resolution: U.S. Federal Right of Publicity, 3 March 1998, available at http://www. inta.org/Advocacy/Pages/USFederalRightofPublicity.aspx.
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Vol. 52 No. 2/Spring 2017 The Arkansas Lawyer
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The Arkansas Supreme Court Goes to War: A Sampling of Legal Issues Confronted by the Court During World War I By J. Cliff McKinney Last year, I wrote a similarly titled article discussing the Arkansas Supreme Court’s jurisprudence during World War II on the occasion of the 75th anniversary of the entry of the United States into World War II. This year marks the 100th anniversary of the United States entering into World War I, the first of the Twentieth Century’s catastrophic wars that brought about so much suffering, upheaval, and change. As with World War II, the Arkansas Supreme Court found itself indirectly part of World War I as it faced unique legal challenges and issues caused by the war. What follows is a sampling of cases that illustrate some of the unique challenges faced by the Court because of the “War to End All Wars.”
Photograph of the old Supreme Court Chambers in the Arkansas State Capitol. Photo by Michael Pirnique.
J. Cliff McKinney is a Managing Member of Quattlebaum, Grooms & Tull PLLC
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Life Insurance World War I had a significant impact on the insurance industry and raised many issues created by the wartime conditions and strains. The United States military suffered 53,402 battle deaths and 63,114 deaths from other causes during the war.1 The Influenza Pandemic of 1918-1919 also ravaged the nation, killing approximately 675,000 Americans, including 43,000 who had been mobilized for the war.2 This resulted in many opportunities to litigate the meaning of insurance clauses. A letter introduced into evidence in one case illustrates some of the insurers’ concerns. Written on January 4, 1918, in the midst of the war, the insurer noted while discussing methods of recruiting new policyholders, “In writing this business, under present conditions, we prefer you to get as young people [sic] as you can. We are accepting business from 16 years up. The younger business we get, the better it will be for us as to our average age, and under the war conditions, women are a better risk than men between 21 and 31, unless they have been exempted from the draft.”3 Many cases focused on military service exclusion clauses in life insurance policies. As just one of many examples, the case of Benham v. Am. Cent. Life Ins. Co. dealt with the payment of life insurance proceeds when the policy expressly excluded liability for death while engaged in military or navel service in time of war.4 Mr. Julius Benham, Jr., purchased $4,000 in insurance policies from American Central Life Insurance Company on December 20, 1916. The policies contained the following provision: Death while engaged in military or naval service in time of war, or in consequence of such service, shall render the company liable for only the reserve under this policy, unless the company’s permission to engage in such service shall have been obtained and such extra premium or premiums as the company may require shall have been paid.5
Mr. Benham joined the aviation branch of the military in 1918. Mr. Benham contracted influenza and died during training. He was buried with military honors at Marianna, Arkansas, and was admittedly under the control of the military during the length of his illness. The insurer refused to pay the death benefit to Mr. Benham’s family who brought suit. The question before the Arkansas Supreme Court was the meaning of the phrase “death while engaged in military service in time of war.”6 The Court found that this phrase meant dying while “performing some duty in the military service.”7 The Court found that Mr. Benham’s death “was in no sense caused by performing any military service, or in consequence of being engaged in military service.”8 The Court noted that the influenza that took Mr. Benham’s life killed soldiers and citizens alike. The Court reversed the trial court and awarded the life insurance proceeds to Mr. Benham’s heirs. Accident Insurance On March 16, 1917, Mr. Oscar L. Martin purchased an accident insurance policy.9 The policy provided that Mr. Martin would receive a monthly stipend from the insurer in the event he sustained “bodily injuries resulting directly, independently, and exclusively of any and all other causes, effected solely through external, violent, and purely accidental means, which shall wholly and continuously from the date of such injury disable and prevent insured from performing each and every duty pertaining to any and every kind of business, labor, or occupation.”10 Mr. Martin was subsequently drafted into the Army, and a German artillery shell disabled him. Mr. Martin sued the insurance company after it denied his claim. The Court sided with the insurance company finding that the policy only insured against an injury occurring from an unexpected event. The Court found, “It is true the insured became a soldier in the United States army by reason of the draft law after the United States had engaged in the war with Germany; but the two armies voluntarily engaged in battle, and there was a mutual design to kill and injure as many of the enemy as possible.”11 In affirming the trial court’s denial of Mr. Martin’s claim, the Court said that “it could not be said that a soldier injured by a bullet or piece of shrapnel from the enemy’s gun sustained an accidental injury.”12
Wills The case of Borchers v. Borchers raised issues of holographic wills and insurance beneficiary designations. Mr. Charles Borchers, whose parents were divorced, enlisted in the United States Army and died while in the service, though the case does not specify the cause of his death.13 After enlisting in the Army, Mr. Borchers purchased a life insurance policy from the War Risk Bureau of the United States and named his mother as the beneficiary. He later wrote a letter to his father ending with a postscript after the signature where he wrote, “Papa, if I die for my country, I want you to receive my insurance money. Goodbye.”14 After his son’s death, the father claimed that the letter constituted a holographic will making him the beneficiary of the life insurance policy. Mr. Fred Borchers introduced sufficient evidence to satisfy the court that the postscript was in his son’s handwriting. However, the son signed the letter before the postscript. The Court noted the requirement that every will must be subscribed by the testator at the end of the will. Since Mr. Borchers’ signature on the letter to his father appeared before the postscript, the Court would not consider the letter as a holographic will and found in favor of the mother. Landlord/Tenant Relations In Beeson v. La Vasque, Mr. V. A. Beeson operated a newspaper and printing establishment in Morrilton, Arkansas.15 Mr. Beeson was drafted into the Army but wanted his business to remain in operation. On June 30, 1917, Mr. Beeson entered into a lease with Mr. Arthur La Vasque whereby Mr. La Vasque leased the newspaper and printing establishment with the understanding that Mr. La Vasque would continue the existing business operations for a term to expire upon Mr. Beeson’s discharge from the Army but in no event less than one year. The lease also contemplated that Mr. La Vasque might be drafted and contained a termination clause in the event Mr. La Vasque was drafted and found a substitute tenant, though the facts do not indicate that Mr. La Vasque was ever drafted. On July 1, 1918, Mr. La Vasque abandoned the property, resulting in the discontinuation of the newspaper and the serious deterioration of the machinery and fixtures. Mr. Beeson was discharged from the Army on August 19, 1919, and sued
Mr. La Vasque for breach of the lease. Mr. La Vasque argued that the lease was invalid because the term was too indefinite to be capable of enforcement. While recognizing the general law that a lease with an indefinite term is invalid, the Court found that the term was not too indefinite given the circumstances under which the lease was entered. The Court found that Mr. Beeson’s “military service was bound to terminate, either by his discharge from the army or by his death.”16 The Court recognized that Mr. Beeson could have theoretically chosen to stay in the Army for an indefinite time after the war but found that the “unusual circumstances existing at the time” made it evident that the parties intended for the term to last just through the pendency of the war.17 The Court noted “the necessity of every one [sic] within the draft age making provision for the continuance of his business during the period of his service in the army.”18 The Court reversed the trial court’s decision in favor of the tenant and remanded for a trial on the merits Mr. Beeson’s claims for damages. Wartime Regulations Wartime regulations complicated the otherwise ordinary contract dispute between a seller and buyer of apples in the case of C.H. Robinson Co. v. Hudgins Produce Co.19 Hudgins accepted an offer to purchase a carload of apples for $526.40 plus freight charges. The apples that arrived were rotten, most likely because they froze during the trip to Arkansas. Hudgins attempted to reject the shipment of ruined apples, but a county administrator in Texarkana informed the company that “under the rules and regulations of the United States government during the war with Germany, they would have to accept the apples in order to conserve the food value of the shipment.”20 Hudgins complied with the regulation, paying $408.13 for shipping and the $526.40 purchase price. Hudgins was able to sell the apples for salvage to cover most of the shipping charges. Hudgins sued the vendor for the price paid for the apples and was awarded a judgment of $526.40 plus interest. The Arkansas Supreme Court upheld the verdict, finding no error in the instructions of the trial court regarding the law applicable to the conduct of Hudgins when forced by the wartime regulation to accept the damaged shipment of apples.
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Shortages In an example of the war having a tangential impact on more routine cases, the wartime shortages played a role in the divorce case of Koehler v. Koehler. In this case, Mrs. Mary Koehler sued for divorce from her husband, Mr. Robert Koehler.21 Mrs. Koehler alleged that she suffered both mental and physical abuse from Mr. Koehler. Mr. Koehler denied the allegations but counterclaimed for an annulment on the grounds that Mrs. Koehler fraudulently concealed that she was afflicted with syphilis at the time of the marriage. Mr. Koehler admitted to knowing that his wife had gonorrhea at the time of their marriage but denied knowledge that she had syphilis. The question in the case became when Mr. Koehler gained knowledge of her affliction. Evidence was introduced that a doctor treating Mrs. Koehler approached Mr. Koehler to discuss her treatment approximately a year before the divorce proceedings were initiated. The doctor explained to Mr. Koehler that the war had caused a shortage in the medicine needed to treat Mrs. Koehler’s syphilis. This discussion, triggered by the wartime shortage of syphilis medicine, established a timeline for Mr. Koehler’s knowledge of his wife’s disease.
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Since he continued to live with her for a year after unequivocally knowing her condition, Mr. Koehler forfeited any argument that he was entitled to an annulment, which meant that he was responsible for a property settlement with Mrs. Koehler. Conclusion These are just a few of the cases and issues that confronted the Arkansas Supreme Court during World War I, which, like World War II, impacted nearly every facet of life. World War I and II radically changed the world, and the Arkansas Supreme Court’s jurisprudence was also heavily impacted. We should not forget the impact those wars had on Arkansas’ lawyers and judges as we mark the 75th anniversary of World War II and the 100th anniversary of World War I. Endnotes: 1. https://www.va.gov/opa/publications/ factsheets/fs_americas_wars.pdf (accessed 11-29-16). 2. https://virus.stanford.edu/uda/ (accessed 11-29-16). 3. N. Am. Union v. Oliphint, 141 Ark. 346, 217 S.W. 1, 5 (1919). 4. All references in this section are to
Benham v. Am. Cent. Life Ins. Co., 140 Ark. 612, 217 S.W. 462 (1919). 5. Id. at 463. 6. Id. 7. Id. 8. Id. 9. All references in this section are to Martin v. People’s Mut. Life Ins. Co. of Jonesboro, 145 Ark. 43, 223 S.W. 389 (1920). 10. Id. at 390. 11. Id. 12. Id. 13. All references in this section are to Borchers v. Borchers, 145 Ark. 426, 224 S.W. 729 (1920). 14. Id. at 729. 15. All references in this section are to Beeson v. La Vasque, 144 Ark. 522, 223 S.W. 355 (1920). 16. Id. at 356. 17. Id. at 357. 18. Id. at 356-57. 19. All references in this section are to C.H. Robinson Co. v. Hudgins Produce Co., 138 Ark. 500, 212 S.W. 305 (1919). 20. Id. 21. All references in this section are to Koehler v. Koehler, 137 Ark. 302, 209 S.W. 283 (1919).
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Vol. 52 No. 1/Winter 2017 The Arkansas Lawyer
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Online Pro Bono Portal Comes to Arkansas By Jordan Rogers
The Access to Justice Commission, the Arkansas Bar Association and the American Bar Association have partnered to launch a new online pro bono portal in Arkansas. The site, ar.freelegalanswers.org, allows qualified clients1 to post a civil legal question to be answered by a volunteer attorney. The site works like a secure chat room, with both client and attorney able to post follow ups to the original interaction to clarify or add information. This online pro bono clinic model was first tested in Tennessee. That site, known as Online Tennessee Justice, eventually grew to assist thousands of Tennesseans.2 Based on the success of that program, the American Bar Association piloted an effort to expand the model nationwide. When the Arkansas Bar Association and Access to Justice were approached about setting up an online justice project in Arkansas, we were excited to do so because of the potential to address our rural access to justice crisis by connecting rural clients to a group of volunteer attorneys from across the state. We are all aware of the economic challenges that Arkansas faces as a rural, Southern state. However, many may not realize that the state is also facing a shortage of attorneys.3 Arkansas has the fewest attorneys per capita of any state in the nation.4 This problem is more acute in rural areas of the state, which have an even lower concentration of attorneys (many of whom are approaching retirement age). Furthermore, the areas which face the most severe attorney shortages are often the same areas of the state with the highest levels of poverty.5 The result is that many parts of Arkansas have a large poverty community with a need for pro bono legal assistance, but a dearth of local attorneys able to provide for that need. Arkansas’s legal aid providers, Legal Aid of Arkansas and the Center for Arkansas Legal Services, have an important role to play in addressing the rural justice gap. They have implemented outreach programs in rural areas, partnered with rural hospitals and clinics to create medical-legal partnerships, and devel46
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oped staffing policies that allow their attorneys to cover large service areas. However, the magnitude of the rural justice gap is such that legal aid will never be able to meet the demand on its own. The solution must also involve alterations to how our courts operate, policy changes, and involvement of the private bar. The good news is that Arkansas attorneys have shown that they are eager to fulfill their obligation to serve the impoverished, defenseless, and oppressed. This is demonstrated by the dozens of attorneys who show up to volunteer their services at pro bono clinics organized by the Bar and legal aid throughout the year. It is also borne out by what attorneys report on their pro bono compliance statements each year. In 2015, the most recent year with available data, over 84% of Arkansas attorneys reported doing some pro bono.6 Of those who reported doing pro bono, approximately 25% did 50 hours or more, meeting the Rule 6.1 target.7 Another 37% of respondents reported doing a significant amount of pro bono, between 20 and 49 hours.8 With ar.freelegalanswers.org, the hope is to match the many practicing attorneys in the state who want to do pro bono with indigent litigants who might not otherwise be served. AR Free Legal Answers allows us to better match supply and demand in several ways. By being online, ar.freelegalanswers.org addresses one of the largest challenges for rural litigants needing pro bono legal assistance in Arkansas—the need to travel long distances for a meeting. Functioning online also means that both client and attorney can choose the time that works best for them to communicate. Clients no longer have to take time off work to meet with a lawyer in their office or try to fit a hurried phone call into their lunch break. Furthermore, as an advice-only program, attorneys do not have to worry about the scope of their involvement. Volunteers select only the questions that they feel comfortable answering and decide when to close out the chat dialog, without any commitment to attend a hearing or trial. Of course, ar.freelegalanswers.org is no
replacement for attorneys taking full representation pro bono cases, and it’s no silver bullet that will end the justice gap. It does, however, have the potential to remove barriers to justice for hundreds, or even thousands, of low-income Arkansans each year. If you are interested in volunteering or would like to learn more about ar.freelegalanswers.org, please visit the website or email jrogers@arkansasjustice.org. Endnotes: 1. To be qualified, an applicant must have limited income and savings, not be incarcerated, and not be seeking assistance with a criminal case (with the exception of expungements). 2. Online Tennessee Justice, Online Tennessee Justice Service Report (April 30, 2016), http:// www.tals.org/sites/tals.org/files/4%2030%20 16%20OTJ%20Service%20Report.pdf. 3. Nigel Halliday, Bridging the Map: The Geography of Legal Need and Aid in Arkansas, 3 (2016) available at https://www.hendrix. edu/uploadedFiles/News/Images/News_ Release_Images/2015-2016/Bridging%20 the%20Map.pdf. 4. Id. 5. See generally id. at 5-7 (visualizing attorney distribution data and poverty concentration data). 6. Ark. Access to Justice Comm., Survey of Self-Reported Pro Bono Service for 2015, Arkansas Access to Justice (March 17, 2017), http://arkansasjustice.org/sites/default/ files/2015ProBono.pdf. 7. Id. 8. Id. Jordan Rogers is the Program Coordinator for the Arkansas Access to Justice Commission.
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JLAP
Procrastination: A Sign of Something Deeper? By Sarah Cearley, PhD, LCSW
“Sam” is overwhelmed by his work: research, motions, deadlines, getting calls and emails from clients. Sam knows that these things alone are not the problem because he knows he is capable of doing them. But the fear of making mistakes or not doing his job perfectly has plagued him since his first semester of law school. These fears and nagging thoughts seem to keep him from writing the motion, sending the email, or picking up the phone. So, he doesn’t face them. He procrastinates. He doesn’t think about them. He goes to Facebook or to chatrooms. He might go to the bar or out for a run. This is not logical or sensible-problem solving and, thus, it is even more difficult to admit to himself, a lawyer who was at the top of his class and always prided himself on his intelligence, academic mind, and abilities. Sam’s procrastination takes the form of looking for comfort in ways that keep him from facing his fears about himself and his intellectual and legal acumen. In fact, other factors that also play into procrastination, including time management troubles, disorganization, boredom, professional stress and burnout, substance abuse, and attention deficit can also originate in such underlying fears. As a lawyer though, this procrastination can generate challenges ranging from stress to financial loss to ethical dilemmas. Whatever form a lawyer’s procrastination takes, it can raise the risk of complaints about communication and diligence. In extreme situations, procrastination can even lead to disbarment. If procrastination is a concern, any gains in awareness of and 48
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understanding of that tendency can be helpful in avoiding client or disciplinary problems, as well as in protecting their business and financial bottom line. An investigation by the Missouri Office of Disciplinary Counsel found lack of communication and lack of diligence are in the top six of ethical complaints clients make about attorneys overall. In 2004, these two categories alone accounted for a little over 60% of total complaints resulting in investigations. In 2005, they accounted for 58%. There was a large gap between these two common complaints and the rest of the complaints on the top 15. There are some tools that are helpful in overcoming procrastination. In fact, through my time at JLAP, I have learned some from lawyers that are so simple it’s amazing how effective they are. The first is taken from the rooms of Alcoholics Anonymous: just do the next little right thing—the next small step—the one thing in front of you. You don’t have to write the entire motion; you just write the first sentence, or even just the first word. Then the next. And, I hear that before you know it, it’s noon and the work is done.
The second tool that made a difference in another lawyer’s work life came after facing the consequences of not communicating with clients. The lesson: the client and his problems are still there and further compounded when calls are not returned. This lesson came from experience. Our lawyer felt such anxiety over the calls that addiction found a foothold by first distracting her from the difficult feelings. In fact, substance abuse or behavioral addiction as a distraction works at first. Then it works while creating problems, and eventually, you are just left with the problems. In recovery, this lawyer found that when she just picked up the phone and made the call, the problems she expected didn’t materialize, the fear wasn’t realized, and the answer was simple. If you are an Arkansas lawyer, judge, a family member of a lawyer or judge, or a law student and you are dealing with procrastination, call JLAP. No matter where you live and work in Arkansas, we can help you find answers at no cost to you and with strong confidentiality to boot. Call Sarah or Laura at 501-907-2529 or email confidential@arjlap.org.
Sarah Cearley, PhD, LCSW, is the Executive Director of Arkansas Judges and Lawyers Assistance Program.
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DISCIPLINARY ACTIONS Judicial Discipline & Disability Commission Actions
Attorney Disciplinary Actions
On January 3, 2017, the Arkansas Judicial Discipline and Disability Commission announced the resignation and removal of Carroll County District Court (Western Division) Judge Timothy Paker in JDDC Case No. 16-329.
Final actions from January 1, 2017 - March 31, 2017, by the Committee on Professional Conduct. Summaries prepared by the Office of Professional Conduct (OPC). Full text documents are available on-line either at http:// courts.arkansas.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.]
On November 18, 2016, the Arkansas Judicial Discipline and Disability Commission announced that an agreed Letter of Informal Adjustment was issued to Sixth Judicial District Circuit Judge Mary McGowan, of Pulaski County, in Commission case #15-258. The full press releases can be found online at http://www.state.ar.us/jddc/ decisions.html.
SUSPENSION: NATIONS, HAROLD D. “H.D.”, Bar No. 2013215, of Heber Springs, in Case No. CPC 2016-139, by Findings & Order filed
February 15, 2017, had his Arkansas law license suspended for sixty (60) months and was ordered to pay $1,000 restitution for violations of Rules 1.1, 1.3, 1.16(d), 8.4(c), and 8.4(d) after he defaulted on a Complaint related to his former client Cynthia Zarth (Nelson), who employed Nations for an uncontested divorce in Crittenden County, Arkansas, and paid him his quoted fee of $1,000, which included a $165 case filing fee, on May 11, 2015. Nations prepared divorce documents, including a proposed decree which Mr. Nelson executed by June 1, 2015, in Tennessee. Ms. Zarth signed and then sent the executed documents to Nations. In August 2015, Zarth relocated to Michigan, provided Nations her new address, and remained in regular contact with him by text messaging. On August 31, 2015, Nations informed Zarth his mail to the court had been returned, and they would have to start the process all over. Nations mentioned to Zarth he was evaluating his choice of law as a career. On September 18, 2015, Nations informed Zarth another
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attorney would be taking over her matter from Nations, as Nations was voluntarily surrendering his law license the next week. Nations declined to provide Zarth the name of any attorney who would be taking over her divorce matter. Zarth found out Nations never filed her divorce in Crittenden County, and filed a grievance with OPC on September 24, 2015. The OPC director contacted Joe Denton, an attorney acquaintance of Nations, who agreed to assist Zarth in her divorce. Denton updated Zarth’s case documents, filed the Complaint for Divorce on January 8, 2016, and the final Decree was taken on March 10, 2016. Zarth does not know who actually paid the $165 filing fee for her case, but knows Denton did not receive any funds directly from her. An email from Denton to Ligon on August 30, 2016, reveals Nations sent Denton a $165 check, but Nations’ bank said it was not good. Denton paid for the Zarth filing fee from his funds. Zarth received no refund of any unearned portion of the legal fees or a refund of the $165 filing fee included in the $1,000 she paid Nations in May 2015. After his abandonment of Zarth in September 2015, Nations continued to accept clients in at least three court matters in Cleburne County. Nations received a separate reprimand for failure to file a response.
early September 2015, Owens sent Nations several texts asking what he was doing and finally asked for a fee refund. He replied that he was stepping away from law for a while and would send her a refund. He left Owens with no attorney and no funds to hire a new one. Owens filed a grievance with OPC on Nations in late September 2015. The OPC director emailed Nations, Joe Denton, and Owens on September 29, 2015, inquiring of Nations about Owens’ status. Denton responded on the same day and said he would try to help Owens. Denton, a Conway attorney, contacted Owens telling her he was a friend of Nations and wanted to try to help her. Denton entered his appearance in Owens’ divorce case on September 30, 2015. A property settlement agreement was worked out and the divorce became final when the decree was entered on October 26, 2015. Denton did not ask Owens for any payment, and she made none to him. It is Owens’ information that Denton received no payment from Nations for assisting her. Nations never made any refund to Owens. Since his dealings with and abandonment of Ms. Owens in midSeptember 2015, Nations has continued to accept clients in at least three court matters in Cleburne County. Nations received a separate reprimand for failure to file a response.
NATIONS, HAROLD D. “H.D.”, Bar No. 2013215, of Heber Springs, in Case No. CPC 2016-140, by Findings & Order filed February 15, 2017, had his Arkansas law license suspended for sixty (60) months and was ordered to pay $1,000 restitution for violations of Rules 1.3, 1.16(d), 8.4(c), and 8.4(d) after he defaulted on a Complaint related to his former client Peggy Lairson Owens. In April 2015, Owens needed an attorney to represent her in a divorce filed against her in Poinsett County, Arkansas. Nations agreed to represent Owens, quoted a full fee of $1,000, and she paid him on June 5, 2015. Owens did not hear from Nations for several weeks. In July 2015 he emailed her a copy of a proposed divorce decree. Owens had issues with it, and Nations was to request more information from her husband’s attorney. From then on Nations went silent on Owens. Her husband even contacted Owens asking what was going on with her lawyer. Starting in
NATIONS, HAROLD D. “H.D.”, Bar No. 2013215, of Heber Springs, in Case No. CPC 2016-142, by Findings & Order filed February 15, 2017, had his Arkansas law license suspended for sixty (60) months for violations of Rules 3.4(c), 5.5(a), 8.1(b), and 8.4(c) after he defaulted on a Complaint filed by Rodney Welsh. Welsh was a party in a divorce case in Cleburne County Circuit Court, where a decree of divorce was filed in the case February 18, 2014. On March 18, 2015, Nations, representing Welsh’s former wife, filed both a Motion for Contempt and a Motion to Modify Child Support against Welsh. Welsh represented himself in the new matters. On May 19, 2016, Nations called Welsh and left a phone message about the case. Welsh checked and learned Nations failed to timely pay his 2016 Arkansas law license renewal fee by April 16, 2016, and his law license was suspended from that date to June 1, 2016, when he paid his fee and was reinstated. Welsh filed a grievance with
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OPC on May 24, 2016. By emails on May 20 and 26, 2016, OPC contacted Nations and asked him for his informal response to the Welsh grievance. On July 2, 2016, Welsh received an email from OPC, copied to Nations, informing Welsh that Nations was to be contacting Welsh the coming week. On September 12, 2016, Nations sent Ligon an email, with attachments that appear to involve Welsh. The attachment for Welsh is a letter that purports to be dated July 11, 2014, addressed to Welsh, and apologizing for contacting Welsh about the case at a time when Nations’ law license was in suspended status. Welsh received no such letter from Nations. Nations received a separate reprimand for failure to file a response. NATIONS, HAROLD D. “H.D.”, Bar No. 2013215, of Heber Springs, in Case No. CPC 2016-147, by Findings & Order filed February 15, 2017, had his Arkansas law license suspended for sixty (60) months and was ordered to pay $665 restitution for violations of Rules 1.16(d), 8.4(c), and 8.4(d) after he defaulted on a Complaint related to his former client Bruce Smith. In March 2016, Smith needed an attorney for a divorce in Cleburne County, Arkansas. Smith contacted Nations, who agreed to represent Smith for $665 in cash, which included the $165 filing fee, for what was expected to be an uncontested divorce. Nations told Smith he would communicate with Smith’s wife, and if there were no problems, it would be an uncontested divorce and would be final in a little over thirty days after it was filed. Communication and contact by Smith with Nations became difficult. Nations never filed the divorce complaint for Smith. Nations’ Arkansas law license was in suspended status between April 16 and June 1, 2016, due to his failure to timely pay his 2016 license renewal fee. After reading negative reviews posted on-line about Nations, on April 28, 2016, Smith texted Nations and asked him for a fee refund. Nations took no action for Smith, and abandoned Smith as a client. Nations texted Smith on April 29, 2016, and informed Smith a refund would be coming, but he has not refunded Smith any amount. Smith contacted a North Little Rock law firm and paid the firm $550.00 to take up his matter. A divorce complaint for Smith was filed on May 18, 2016. On August 22, 2016, Smith appeared with new counsel in Heber Springs for his final hearing. Smith saw Nations in the courtroom representing a client. Smith reports Nations seemed unconcerned about Smith being there with a new attorney to do the job for him that Nations did not do after taking Smith’s money. Smith obtaining his uncontested divorce on August 22, 2016, on the grounds of eighteen months separation. Since Nations’ dealings with Smith in March 2016, Nations has accepted at least one other new client in Cleburne County. Nations received a separate reprimand for failure to file a response. NATIONS, HAROLD D. “H.D.”, Bar No. 2013215, of Heber Springs, in Case No. CPC 2016-151, by Findings & Order filed February 15, 2017, had his Arkansas law license suspended for sixty (60) months and was ordered to pay $2,500 restitution for violations of Rules 1.3, 1.16(d), 8.4(c),
and 8.4(d) after he defaulted on a Complaint related to his former client Mrs. Ashley (Mrs. Heath) Thomas), who had sons TM and JM by Jeffrey Mix. Paternity of the sons by Mix was determined in December 2012 in Cleburne County Circuit Court. In early 2015, Ashley needed a custody revision with Mix regarding their sons before they would start school in August 2015, so she could enroll them in schools closer to her home. Mix’s military status was a factor in the location of the sons’ schools. Ashley employed Nations in April 2015 for the legal work. Nations negotiated a $2,500 fee check from Heath on July 14, 2015. As shown by texts between Nations and Ashley starting April 7, 2015, through September 29, 2015, Nations informed her he was working on the papers. As the start of school approached in late July 2015, Nations had not served the father Mix and issues arose with Ashley. Mix was going to enroll the sons in school in Quitman or Heber Springs or Rosebud, when Ashley was trying to get them into Bee Branch. On August 3, 2015, Nations texted Ashley that he was going to transfer their matter to Conway attorney Joe Denton. On August 21, 2015, Heath texted Nations and asked for the refund of the $2,500 so they could get a new attorney. On September 10, 2015, Nations texted the Thomases that he had shifted a lot of his cases to other attorneys and his accountant was doing something for him, possibly about their refund. By text on September 15, 2015, Nations was confirming to the Thomases he would pay them the $2,500 refund when he had it, so they could hire Denton if they desired to. Ashley contacted Denton and was informed he had not heard from Nations about the matter. Nations has made no refund to the Thomases, despite promising to do so. Without the funds the Thomases paid Nations, they did not have funds to employ another attorney on this matter. On January 15, 2016, Heath filed a grievance against Nations with OPC, and Director Ligon contacted Nations, who responded. On July 2, 2016, Ligon requested that Nations write the Thomases. On September 12, 2016, Nations provided Ligon a copy of the letter (dated July 5, 2014) purportedly mailed to the Thomases. The Thomases state they have received no letter of any kind from Nations. Court documents show that Nations has continued to accept and represent clients in other court matters in Cleburne County.
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Nations received a separate reprimand for failure to file a response. REPRIMAND: KING, MICHAEL J., Bar No. 88124, of Hot Springs, in Committee Case No. CPC 2016-128, by Consent Findings & Order
filed February 17, 2017, was reprimanded and agreed to pay $8,000 in restitution to former client Albert Mack, III, for violations of Rules 1.5(a) and 1.16(d). King represented Mack and wife in a guardianship proceeding in Hot Spring County, Arkansas, in No. 30PR-12-194, from November 2012 through April 5, 2013, as they sought
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guardianship of their minor cousin Austin Prine, whose mother‘s whereabouts where then unknown and whose father was in prison. An Order of Guardianship was filed April 5, 2013. By early April 2013, Mack had come under suspicion for some alleged sexual misconduct with L. M., the minor (age four) female child (DOB 2008) of Mack and Mrs. Mack. Foreseeing the need for legal counsel in the matter, on April 10, 2013, Mack paid $1,500 to King as a retainer. Mack is not aware of any written fee or employment agreement with King for legal services in the rape / DHS matters. After his arrest and bonding out on the charge, Mack paid King $7,500 on April 12, 2013, as an additional payment on a quoted fee of $14,000 for King’s representation of Mack in both matters. On May 9, 2013, in Hot Spring County Circuit Court, the State filed a Class Y felony Rape charge against Mack, an offense punishable by 10-40 years or life in prison. On May 14, 2013, Mack borrowed $5,000 from Ms. Balentine, his mother, and paid King the final balance of the $14,000 legal fee. The docket sheet for the rape case shows 56
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the only appearance or entry attributable to King in the case is a Motion for Discovery to the State he filed on June 11, 2013. By letter of June 20, 2013, King notified OAH (DHS) that he represented Mack and a hearing was requested. This is believed to be the only document generated by King to DHS or OAH regarding Mack’s matter at DHS. Due to lack of contact and communication with King in June, Mack began to become anxious about his legal counsel and fate. He communicated with his mother. A non-lawyer acquaintance of Mack’s in Hot Springs directed Mack to Dr. William Viser in Arkadelphia, a counselor with experience in such matters. After visiting with Dr. Viser, Mack was referred to Arkadelphia attorney Bob Sanders. Mack then employed Sanders and paid his $15,000 legal fee with funds borrowed from his mother, Ms. Balentine. Dr. Viser worked with Mack and Sanders from late June 2013 through March 2014. Dr. Viser never had any contact with King about Mack. King had effectively abandoned his client Albert Mack by June 26, 2013. By letter of that date, Mack attempted to terminate the legal services of King and asked for an accounting of the $14,000 paid and a refund of unbilled/unearned fees, but received no response from King and no refund. From late June through July 15, 2013, Sanders had extensive written communications with the Hot Springs County Prosecutor on the criminal charge and with DHS on the Mack matter there. Most of these communications were also copied to King. After a hearing in the criminal case on July 15, 2013, at which King and the Mack family did appear, Sanders wrote King that day and asked about his future role representing Mack. King did not respond. King completely abandoned his client Albert Mack after July 15, 2013. After the July 15 hearing, Sanders again communicated extensively with the prosecutor and the court on behalf of Mack. Most of these communications were also copied to King. Sanders filed a motion for supervised visitation for Mack and the motion was set for hearing on September 11, 2013. King was notified of the hearing but did not appear. After a hearing on September 11, 2013, on September 24, 2013, Sanders wrote King about the status of Mack’s
matters. King did not respond. Thereafter, it appears Sanders no longer copied King on matters pertaining to Mack. On October 3, 2013, Mack’s rape case was set for a two-day jury trial on January 30-31, 2014. On January 10, 2014, Mrs. Mack signed an affidavit of non-prosecution for their daughter L.M., and the State nolle prossed the rape charge against Mack. In February 2014, the DHS case against Mack was closed. OPC notified King of the grievance on June 24, 2014, and requested his informal version of the matter. After several contacts, King replied by letter dated August 27, 2014, claiming, among other things, that King knew from previously representing the Macks in an “adoption” that Alfred Mack was a “high maintenance” client. King provided no documentation of his activity in representing Mack. The only fee amount King mentioned was a $7,500 retainer on the rape charge. King was involved in a personal Chapter 13 bankruptcy that was dismissed on July 15, 2013, for non-payment of the plan amounts. It appears that by then King was insolvent, while he was accepting the Mack fee funds. On July 25, 2013, a bank filed a foreclosure case against King and wife over debts from notes going back to 2008 secured by their residence and three vehicles. A decree of foreclosure was entered December 2, 2013, granting judgment against the Kings for about $262,840 plus $11,000 in attorney’s fees. Albert Mack received no accounting of the $14,000 fee paid nor any fee refund from King. NATIONS, HAROLD D. “H.D.”, Bar No. 2013215, of Heber Springs, in Case No. CPC 2016-157, by Findings & Order filed February 15, 2017, defaulted on a complaint by Circuit Judge Holly Meyer, and was reprimanded for violating Rules 3.4(c) and 5.5(a) and assessed $50 costs and received a separate reprimand for failure to file a response. Nations was licensed to practice law in Arkansas in September 2013. Under Rule 3 of the Arkansas Supreme Court’s Rules for Minimum Continuing Legal Education, he was required to obtain at least twelve hours of continuing legal education (CLE) each CLE year (July 1 - June 30) to keep his law license in good standing and not have it go into suspended status. Nations
failed to comply with the CLE requirement as of June 30, 2016, and thereafter was mailed notices of noncompliance, intent to suspend, and an order of license suspension during the period from September 6 November 7, 2016. Nations appeared in court before Judge Meyer and participated in a hearing on November 14, 2016. On November 15, 2016, Judge Meyer learned Nations’ law license was in suspended status at the hearing November 14, 2016, and she reported him to the disciplinary office. CAUTION: CLIFFORD, EUGENE P., Bar No. 2012100, of Little Rock, in CPC 2016-114, by Consent Findings & Order filed February 17, 2017, was cautioned and agreed to pay $500 in restitution to former client William Duffel for a violation of Rule 1.3 regarding Clifford’s handling of an ancillary probate matter on decedent Elizabeth Duffel.
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Lawyer The Arkansas
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IN MEMORIAM Boyce Ray Davis of Lincoln, Arkansas, passed away Thursday, January 5, 2017, at the age of 78. Boyce practiced law in Lincoln for 40 years. In 1972 he was an Arkansas Constitutional Convention Delegate. He was former Lincoln Mayor, City Attorney, Library Board member, choir director, Lincoln Leader newspaper owner and publisher of four newspapers. He penned a weekly column “On The Wry Side.” He was in the Naval Reserve. He was a member of the Arkansas Bar Association where he served on the Board of Governors, Executive Council, House of Delegates, Legislative Task Force, Professional Ethics Committee, and as Vice Chair of the Arkansas Bar PAC. The Arkansas Bar Association awarded him with the Charles Carpenter Award in 2003. Stephen Arch Matthews of Pine Bluff died March 1, 2017, at the age of 91. Steve graduated Valedictorian from Calico Rock High School in 1943. He served in the United States Navy from 1943-46, and was commissioned an Ensign in 1945. He earned his B.A. and L.L.B. (with high honors) from the University of Arkansas in 1948 and 1951 respectively, was admitted to the Arkansas Bar and to practice before the United States Court of Appeals for the Eighth Circuit and the Supreme Court of the United States in 1951. Mr. Matthews was in general civil practice with the firm of Bridges,Young, Matthews, and Drake in Pine Bluff from 1951 throughout his legal career. He was a longtime active member of the Arkansas Bar Association where he served as chair of the Senior Task Force. He was a Sustaining Fellow of the Arkansas Bar Foundation. He served as Foundation President in 1971-72. The Arkansas Bar Association and the Arkansas Bar Foundation honored him with the Outstanding Lawyer Award in 1967. He was a Fellow of the American College of Trial
Lawyers, a member of the International Association of Defense Counsel and President of the Arkansas Association of Defense Counsel in 1984-85. Glenn E. Pasvogel, Jr., of Little Rock died January 30, 2017, at the age of 71. Glenn attended Dana College and graduated from Elmhurst College. He obtained his J.D. Degree from DePaul Law School in Chicago and his Master of Laws from the University of Illinois. Following a judicial clerkship, he was hired as a professor of law at the University of Arkansas at Little Rock School of Law in 1971 (now William H. Bowen School of Law). He taught there until his retirement in 2006, and during his tenure he served for a period as Interim Dean of the law school. David Solomon of Helena, Arkansas, died March 23, 2017, at the age of 100. Last July he celebrated his 100th birthday with a community-wide celebration. Solomon was a leader of the bar in Phillips County, as well as the state of Arkansas. He was admitted to practice in Arkansas and Tennessee in 1939, after receiving an LL.B. from Harvard Law School in that same year. Prior to entering law school, he graduated from Washington University at Saint Louis. He returned home following law school and began to practice law. After serving three years in the Army during World War II, he again returned to Helena and reopened an office on Cherry Street where he practiced until 2015. He was honored in 2014 by the Arkansas Bar Foundation for his 75 years of active practice, which was thought to be a record. Solomon was always a solo practitioner whose practice ranged from helping individuals with minor or major legal challenges to complicated corporate transactions. He was a top trial attorney, who was invited to become a member of the American College of Trial Lawyers. He was a longtime active member of the Arkansas Bar Association where he served on the Board of Governors, Executive Council,
the Judicial Article Task Force, and Judicial Nominations Committee. The Association awarded him with the Charles Carpenter Award in 1989. He was an active Fellow of the Arkansas Bar Foundation and served as Foundation President in 1990-91. The Arkansas Bar Foundation and the Arkansas Bar Association awarded him with the Outstanding Lawyer Award in 1982 and the James H. McKenzie Professionalism Award in 2008. He served as a delegate to the Arkansas State Constitutional Convention in 1969. Locally, he was the Helena City Attorney in the late 1940s and early 1950s. The Honorable Perry V. Whitmore of North Little Rock, died February 7, 2017, at the age of 91. He attended Arkansas Teachers College from 19461948, followed by The University of Arkansas School of Law, graduating in 1951, but was immediately called to active Army duty. In Korea, 1st Lt. Perry Whitmore was awarded the Silver Star, two Bronze Stars and the Commendation Ribbon as Infantry Company Commander. Following his discharge in 1953, he entered law practice in Conway with the late Russell Roberts. In 1954, he married Marjorie Corbell of Nashville, Arkansas, and moved to North Little Rock. Following two years with the Arkansas Insurance Department he practiced law with the late Joseph Kemp. Later he practiced with the firm of Plegge, Lowe & Whitmore. Elected in 1978 Circuit Judge for Pulaski and Perry counties, he served 12 years and retired in 1990. The Arkansas Trial Lawyers Association named him Outstanding Trial Judge in 1982 and again in 1989-1990. In retirement he was recalled to preside in various courtrooms throughout the state.
The information contained herein is provided by the members’ obituaries.
Vol. 52 No. 2/Spring 2017 The Arkansas Lawyer
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