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THE LAWYER·TO·LAWYERCONSULTATION PANEL

A national panel of lawyers, listed by fields of law,who agree to advise fellow lawyers by phone(also available for association and referrals). The1974 directory holds a Certificate of Compliancefrom the American Bar Association. The directoryIS $10. For information on the directory or membership on the panel, write or call collect: TheLawyer-to-Lawyer Consultation Panel, 5325 Naiman Parkway, Dept. JA-1, Solon, Ohio 44139(216) 248"l135. '

JANUARY 1975VOL 9, NO.1

THE OFFICIAL PUBLICAliONOF THE

ARKANSAS BAR ASSOCIATION

OFFICERSJames B. Sharp, PresidentRobert C. Compton, Vice-PresidentJames M. Moody, Secretary-Treasurer

EXECUTIVE COUNCILDouglas O. Smith. Jr.Robert Hays WilliamsThomas F. ButtJulian B. FoglemanDavid SolomonWayne BoyceHerman Hamilton, Jr.John A. Davis, tilLeRoy AutreyWinslow DrummondLeonard ScottBoyce Love

Ex-OfficioJames B. SharpRobert C. ComptonJames M. MoodyJames E. WestR. Keith ArmanGuy Amsler, Jr.

EDITORC. E. Ransick

EDITORIAL COMMITIEEDonis 8. HamiltonSamuel C. HighsmithRobert T. Dawson

~e

ArkansasLawyer

SPECIAL FEATURES

The Human Backbone Dr. Hoyt Kirkpatrick 41975 Midyear Meeting 22National Conference of Commissionerson Uniform State Laws 23An Introduction to Securities Lawand Practice - Part II Walter W. Davidson 30Travel Adventures 21The Speakers' Bureau 16Aegis 19Recent Literatu re 2677th Annual Meeting 37Legislative Package 40

REGULAR FEATURES

President's Report .........•.......... James B. Sharp 2Juris Dictum C. R. Huie 13Legal Economics Richard A. Williams 36Law School News J. Steven Clark 29Oyez-Oyez B. Tarkington 3In Memoriam 38Executive Council Notes James M. Moody 17Service Directory 16

Published bi·monthly by the Arkansas Bar Association, 400 West Markham, little Rock, Arkansas 72201. Second class postage paid at Little Rock, Arkansas.Subscription price to non-members of the Arkansas Bar Association $6.00 peryear and to members $3.00 per year included in annual dues. Any opinion expressed herein is that of the author, and not necessarily that of the Arkansas BarAssociation, The Arkansas Lawyer, or the Editorial Committee. Contributions toThe Arkansas Lawyer are welcome and should be sent in two copies to the Arkansas Bar Center. 400 West Markham, Little Rock. Arkansas 72201.

All inquiries regarding advertising should be sent to The Arkansas Lawyer,above address.

January 1975/Arkansas Lawyer/1

PIISIIIIT~S

IEPOITby James B. Sharp

LEGISLATIVE PROGRAMWith the splendid cooperation from the mem

bers of your House of Delegates, and under theable leadership of Henry Woods as Chairman, during November your Legislative Committee has hadregional, legislative dinners throughout the State.Those groups in attendance were members of theGeneral Assembly, members of the Judiciary,members of the Legislative Committee of ourAssociation, and our Legislative Liaison Representative, James R. Rhodes. From the lively interestshown at each of these meetings in the discussionof the legislative program adopted by your Association, as the occasions arise, you who are activein politics should expect calls to assist the Legislative Committee and James R. Rhodes in obtainingpassage of this legislation. Please do your best tohelp, but please don't make these Bar Associationrepresentatives think that you are doing them apersonal favor. The members of the LegislativeCommittee draw the same salary from the BarAssociation that you do. In the past, your help hasalways made the difference between success andfailure.

MIDYEAR MEETINGWe should be very proud of the work that we

have received from the Commissioners from Arkansas on Uniform State Laws. Dean Robert A.Leflar and Mr. Joe Barrett now are lifetime members of the National Conference of Commissionerson Uniform State Laws - honors well deserved.

William S. Arnold of Crossett, Philiip Carroll of Little Rock, and J. C. Deacon of Jonesboro have rendered exemplary services to this conference, and,in turn, to the State of Arkansas. Largely as a resultof the high esteem in which these Arkansans areheld by the other commissioners, your Committeeon Continuing Legal Education, chaired by MartinGilbert, and the two Co-Chairmen for the MidyearMeeting, William S. Arnold and Phillip Carroll,have arranged for the Midyear Meeting one of themost outstanding arrays of experts on evidencethat can be found anywhere. There is hardly a lawyer in Arkansas that does not encounter the Law ofEvidence at many stages in his practice. Since thisis such a basic topic, and since the proposed rulesof evidence for our Federal Courts will probably beadopted soon, most of us will have a very practicaland timely interest in this excellent program.Please take note of the activities of the ladies andthe enjoyable social affairs already planned. Yourprograms for this outstanding event have alreadybeen forwarded to you and I urge you to registernow for this great January meeting.

SEMI·ANNUAL MEETINGThe House of Delegates has a very busy session

scheduled for Thursday morning, January 16th.These meetings are always open to all members ofthe Association, and i urge any of you who can tobe present to hear these proceedings. It will be afine opportunity to learn of various matters inwhich your Association now is engaged.

LETTERHEADS. $') QOO FOR

FRH PIlOOf"$ 1000.. V' AMERICA'S

Parchment Stock lOWEn "It/eu

samuel F. Beller has announced theopening of an office for the practice oflaw at Batesville. Erwin, Bowie & Boyce,Newport, has announced the associationof Harold S. Erwin for the practice oflaw. West Fork, Arkansas has a secondattorney with the opening of the officesof David Brand\. Richard L. Arnold hasbeen appointed Chief Law Clerk for United States District Judge Robert W. Porter in Dallas, Texas. Rick Weaver, nativeof New York, has announced the opening of his law office in Clarksville. Georgia Kimbro Elrod has joined her husband John Elrod and his father RussellElrod in the practice of law in SiloamSprings. B. Michael Easley, native ofKentucky, has joined Knox B. Kinney ofForrest City in the practice of law. He.bert Ray, formerly of Springdale, hasmoved his law office to Salem. Arkan~

sas. George D. Ellis has joined Laser,Sharp, Haley, Young & Boswell and willbe practicing in the Bryant office. B.Richard Allen has announced his association with Gerald W. Carlyle for thepractice of law in Newport. Harold H.Simpson II has become associated withSPitzburg. Mitchell & Hays of Little Rock.

Thomas M. Hughes III, formerly withCNB, has opened his law office inBeebe. Philip Farris has opened his office for the practice of law in Batesville.

Mrs. Eyelyn Drake has moved her lawoffice to Heber Springs. Robert D.Stroud has recently become associatedwith the Batesyi lie law finm of Murphyand Blair. Fitton and Meadows, Harrison,have been joined in the practice of lawby Donald J. West. Thomas M. HughesIII, formerly with CNB, has opened hislaw oHice in Beebe. Philip Farris hasopened his office for the practice of lawin Batesville. Daye W. Harrod, formerlyof Greers Ferry, has moved his office toHeber Springs. Ben E. Rice, Jacksonviile City Attorney, plans to open expanded law office facilities in January.John Elrod of Rison retired in Octoberand Sanford Beshear, Jr., his partnerwill continue practicing at their offices inthe courthouse. Rodney C. Wade, formerly of Crossett, now ;s in practice withEubanks, Flies & Hurley of Little Rock.Associate Justice George Rose Smithspoke at a November meeting of theCraighead County Bar Association. Newofficers have been elected for the Student Bar Association - LR Division: JoePurvis, President; Doug Mays, VicePresident: Martha Lou Grubbs, Secretary; and David Calhoon, Treasurer.

the practice of law at Horseshoe Bend,Arkansas. Wade, McAllister, Wade &Burke, P. A. announces that John R.Eldridge, III and Betty J. Burke are nowassociated with the firm. R. EdwardBuice, recently elected City Attorney ofEureka Springs, is an associate of Ledbetter & Associates, ltd. of Harrison.

By B. Tarkington

Drew Bowers, 88. of little Rock, washonored in a session of Federal DistrictCourt especially called for Drew BowersDay. Harvey L. Bell, Little Rock. hasbeen appointed by Gov. Bumpers asState Securities Commissioner. John S.selig, Little Rock. is now Vice Presidentand General Counsel of First ArkansasBankstock Corporation. James E. Baine,with the Murphy Oil Corporation in EIDorado, passed the Louisiana State BarExam. At the annual meeting of the Arkansas Savings & Loan League in HotSprings, Ike Allen Law., Jr. of Russellville. was elected as Chairman of theSavings & Loan Section for next year. E.Mac Anderson, Magnolia. was the principal speaker at the attorney's forum ofthe League's meeting. Four attorneyswere named by the Supreme Court to theState Board of Law Examiners: ErnestG. lawrence, Jr., Bentonville; Chancellor Kenneth B. Balm, Pine Bluff:Philip E. Dixon, Little Rock: and WilliamK. Ball, Monticello; their terms expiringin 1977. The North Pulaski Bar Associa~tion will supplement the efforts of the Le~

gal Aid Bureau of Pulaski County by providing legal services each Saturday toeligible residents of Pulaski Countynorth of the Arkansas River. Bill R.Holloway, Lake Village, was a speakerat the Mississippi Trial Lawyers Associa~

tion. The Arkansas Municipal JudgesCouncil met in November and new offi~

cers were elected; Judge Dean Morley,North Little Rock. President: Judge Edward Grauman, Helena, Vice~President

and Judge Milas Hale, Sherwood,Secretary-Treasurer. Sid McMath, ChiafJustice Carleton Harris, and Jim GuyTucker were speakers at this meeting.J. L. Shaver, Jr., Wynne, was elected asPresident of the Northeast Arkansas BarAssociation at its November meetingwhich also honored Judge Charle.Light. The Woodruff County Bar now haseight members and new officers:George Proctor, President; and T. B.FitZhugh, Secretary-Treasurer. ArkansasCounty Bar Association also has newofficers: F. Russell Rogers, President;Malcolm Smith, Vice~Presidentand Vir·gil Moncrief re-elected Sec.-Treas.Gregory P. McKenzia has opened hislaw office in Ozark. James W. Atkins,former assistant Attorney General, hasopened a law office in Mountain Home.Forrest E. Dunaway is now engaged in


THE HUMAN BACKBONE-Dr. Hoyt Kirkpatrick

This article is written as a response toa request by Mr. Robert Dawson. Mr.Dawson asked that I write a discussionof conditions involving the vertebralcolumn which might be of interest to attorneys. He asked that I start with thepremise that attorneys know nothingabout the anatomy and function of thevertebral column. I do not share thisopinion at all, as the various attorneyswith whom I have been associated incourt and in depositions have uniformlyappeared to me to be sneaky smartabout this whole subject.

The paper represents an expansion ofportions of lectures given at the University of Arkansas and University of Oklahoma Law Schools in medico-legalseminars. I apologize in advance for theelementary nature, but the discussionsimply represents an over-view of a verycomplex and complicated SUbject. Theintimate anatomical details which mustbe considered in the individual assessment of these patients have been intentionally omitted.

In this discussion consideration willbe given to injuries to the vertebralcolumn commonly seen in an active orthopaedic practice. These injuries occurin every way you can imagine and somein ways none of us can conceive. Recurrent patterns develop. Assault by auto,assault by machinery. assault by slippery floors, assault by motorcycle andassault by heavy loads are all seen frequently and in general make up a greatpercentage of the ordinary practice oforthopaedic surgery.

The human backbone or verteoralcolumn was never designed for use inthe erect posture. The mechanical principles of design work well for aquadriped posture, but not a biped. In infancy, the entire vertebral column is a Ccurve which gradually changes as theinfant assumes the erect posture until, inadult life, four curves have deveioped.Two of these curves are lordotic, or convex forward curves, and two of them arekyphotic, or convex backward. Lordoticcurves are present in the cervical spineand in the lumbar spine, and kyphoticcurves are present in the dorsal or thoracic spine and in the pelvis or sacrococcygeal area. The number of degrees inthe lordotic curves equals the number ofdegrees in the kyphotic curves, thusallowing for the fully erect posture. Thekyphotic curves of the vertebral columnare much more rigid than the lordoticcurves due to the presence of the ribcage about the dorsal curve and the factthat the sacrum and coccyx are fused

4/January 1975/Arkansas Lawyer

into single bones. Spinal motion, therefore, is primarily present in the lordoticcurves of the back, and it is not surprising that primary back injuries occur inthese areas of greatest motion. Study ofFigure 3, which is a lateral view of thevertebral column, will show that thepoints of greatest arc are in the mid-cervical spine and at the lumbosacral joint.These areas represent the points ofgreatest motion in the back. They alsorepresent the areas of greatest stressand are the points at which injury is mostlikely to occur.

Figu,. 1, 2, 3The structure of the vertebral column

is that of a series of cylinders withnumerous processes growing out ofeach. A vertebra consists of a vertebralbody, transverse processes, pedicles,laminae and spinous processes. On either side of the vertebra posteriorly is asuperior and inferior facet so that eachvertebra may articulate in its posteriorportion with the vertebrae above andbelow it. Between the vertebral bodiesare the intervertebral discs - to be discussed later. Certain vertebrae havespecialized functions so that these vertebrae are anatomically different. Forexample, the first cervical vertebra isshaped like a washer to assist in rotationof the head on the neck. The second cervical vertebra, the axis, provides an axleor odontoid process for the same purpose.

Figurel 4, 5(Individuel typel 01 vertebree)

The head is a 10-12 pound ball sittin~

on top of the cervical vertebrae. It is heldby a group of ligaments and musclesspreading out to the shoulder girdlesand upper chest wall, much in the manner of guy wires holding up a pole.Longitudinal muscles are also present,but these muscles are much more formotion than they are for stability. Themuscles about the cervical spine include the trapezius and paravertebral extensors behind and laterally, the sternocleidomastoids laterally and anteriorlyand the scalene muscle groups anteriorly. Lesser longitudinal muscle groups,such as longus colli and multifidus muscles are much less important. ligamentous structures such as ligamentumnuchae, anterior and posterior spinalligaments, the interspinous and interlaminar ligaments also add to the stability of the neck. However, these are staticbraces and do not give the active sup-

Continued on P-V- 6

Dr. Hoy! Kirkpatrick is an orthopedic surgeon with the Holt-KrockClinic of Fort Smith. Dr. Kirkpatrick is a native of Fort Smithand did his undergraduate work atNotre Dama and graduated fromthe St. Louis University SChool ofMedicine. He did advance study atU. S. Naval Center in Bethesda,Maryland; Alexandria Hospital InAlexandria, Virginia; University ofMaryland Hospital; Baffimore CityHospital; Kerman Hospital forCripple Children in Baffimore; andthe University of Illinois. He hasbeen an instructor at the University of Arkansas School ofMedicine and has lectured at theUniversity of Arkansas and University of Oklahoma sChools of Law.He is married to the former Elizabeth Louise Rhodes, who is agraduate of the University of Arkansas. They have five children,Terry Kirkpatrick Guzman, agraduate of the University of Arkansas School of Law who iscurrently serving as an instructorat Drake University School of Law;Neal Kirkpafrlck, a graduafe of theUniversity of Arkansas School ofLaw, who is presently serving inthe JAG Corps at Ft. Benning,Georgia; Dennis Kirkpatrick, whois attending graduate school at theUniversity of Southern California;Michael Kirkpatrick, who is as~nior pre-med student at HendrixCollege; and Kelley Kirkpatrick,who is a sophomore student at theUniversity of Texas.

)'""~)w",," VERTEBRAEVERTEBRAE

1 --SACRUM

--SACRUM COCCYX

COCCYX

Figure 1 Fi gure 2

} CERVICAL} CERVICAL VERTEBRAE

VERTEBRAE

TRANSVERSE TRANSVERSEPROCESS PROCESS

VERTEBRAL VERTEBRALBODY BODY

DORSALSPINOUS VERTEBRAE

DORSALPAOCESS

VERTEBRAE

FrOlll, or alllnopOItnlor VlfW of thf vfrlfbral eolumn, l\lulUltUll itslubdl'l'1I10llJ.

Baek or pOitno-anttnor VltW of tht vtrttbral column.

Figure 3

t

The Arkan... Lawyer is indebted to Matthew Bender& Co., Inc. for permission to reprint the FIGURES usedby Dr. Kirkpatrick with his article. The FIGURES arefrom Proving Medical Olagnool. and Prognool. andthe Attorney.' Taxtbook of Medlclna published byMatthew Bender & Co.. Inc.

-...-_- SACRU M

,JL---t--COCCYX

~~~~\-_SPINOUSPROCESS

INTERVERTEBRAL

VERTEBRA~L__~ -F~~~~~~;~~FORAMINABODY

Sidf or Illeral VlfW of th vutfbrJI column.

January 1975/Arkansas Lawyer/S

most striking and the patients will tracethe involved nerve root or roots quite accurately in their description of their diffiCUlty. An accurate and detailed history isof specific value in the diagnosis of aherniated intervertebral disc. Reflexchanges appear early in the course ofthe condition and atrophy of the involvedmuscle groups, that is in those musclessupplied by the involved nerve, also appears early and is ordinarily progressive.

The diagnosis of a herniated intervertebral disc is reached by considerationof the characteristic history and thephysical examination and by cervicalmyelography. A cervical myelogram reoquires hospitalization. The examinationis carried out in the x-ray department. Aspinal puncture is done and 5-6 cc·s. ofspinal fluid is removed for analysis. 912cc's. of Pantopaque solution is then

lat.ral a~p.ct

Cd....tood proc...IL-->--Impr...lon lor alar

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Figure 4

l'an...., ••prouu

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'od,

C.rvical 7

Sup.rior up.,t

lod,

Sup.. rior up.' I

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Sup.rior up.. ,tOdoNollIS prou'"

within normal limits.A more serious sprain will give the

same complaints, but they are more severe. The headache is worse and may bereferred to the base of the skull or behind the eyes. In this situation, theneurological examination will still benegative. but x-rays will show a straightor a reversed cervical curve. The treatment is the same, but it must be continued much longer and some degree ofpermanent impairment may result.

The ruptured cervical disc is a resultof severe neck sprain or a severe liftinginjury. It is characterized by neck painand radicular pain, ordinarily in one arm.The most common levels are those ofC4-5 and 5-6, because these are thelevels in the cervical spine subject to thegreatest stress and in which the greatestdegree of motion occur. Arm pain is

The various types of ver-tebrae, with superior view on the left andlateral view on tbe right.

BACKBONEContinued from page 4

port and the dynamic protection of themuscle groups.

WHIPLASH INJURY:This is a bad term. In my opinion, it

has no real significance in orthopaedicsurgery. The reason for this is that theterm is not a diagnosis. It describes themethod by which an injury occurs ratherthan the findings as a result of injury.The term does, indeed, have a dramaticring and suggests sinister overtones, butit does not have any definite surgicalmeaning. I much prefer the diagnosis of"cervical sprain", as this term leads itself to a classification of the severity ofinjury. This classification is based on thedepth and the importance of the struc·tures injured, and allows one to evaluatethe severity of injury.

For example: 1) A mild strain of themuscles of the neck will recover promptly and leave no permanent impairmentof function.

2) A severe sprain with stretch injury tothe interspinous and interlaminar ligaments will result in long term partial dis·ability, but usually an eventual recovery.

3) If the laminae of the vertebrae areactually pulled apart, the underlyingligamentum f1avum or yellow ligament isstretched and then en/oided. This is aserious injury because of possiblebleeding about the spinal cord and subsequent swelling of the ligament, withthe danger of cord pressure.

As the depUl of the injury progresses.the intervertebral discs may rupture orone or both of the facet joints may frac·ture or dislocate or the vertebral bodymay be fractured. All of these injuriesare exceeding serious and the catastrophic possibility of quadriplegia with totaland permanent loss of function exists.

The typical patient with a sprain of theneck complains of pain in the neck andshoulders due to trapezius musclestretch and headache. There is ordinarily no arm pain. Such pain is referredalong one or more of the cervical nerveroots and is known as radicular pain.The headache is usually about the occipital or back portion of the head. It maybecome quite severe. The musclegroups become tight and are describedas in "spasm". This muscle tautness orspasm - a state of continuous contraction - is nature's way of holding thearea immobilized so that healing mayoccur. With external support, medicationfor pain and time for healing, the injuryresolves, and the patient recovers. Aboutthe only physical findings which may befound are those of limitation of motion ofthe neck, tight muscles, tenderness andareas of point tenderness. A negativeneurological eXJ=lmination is ordinarilvpresent and the x-rays are uniformly


Splrw

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Thoracic.

lumbar S

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lumbar 1

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Figure 5

COMPLICATIONS OFMYELOGRAPHY:

1) Allergy: A careful history for ailergyto iodine containing compound must betaken prior to the myelogram. In thecase of allergy, the examination shouldnot be done.

2) Infection: The examination must becarried out under aseptic conditions asthis complication may be quite severeand might even result in a meningitis orworse, a myelitis.

3) Headache: This is a quite commonoccurrance following myelogram, but itis ordinarily self-limiting, ordinarily dueto leakage at the needle site and may ordinarily be controlled by simple bedrestand the use of intravenous fluids. In myexperience, the accuracy of a well donecervical myelogram is excellent. In myopinion, operation for cervical discectomy should not be done in the presenceof a negative myelogram.

introduced. This solution has severalatributes: I) II is visible on x-ray. 2) II isheavier than spinal fluid. 3) It is cohesiveand thus forms a column which may bemoved up and down the spinal canal bvraising or lowering one end of the x-raytable. When the Pantopaque is properlypositioned and the position verified byfluoroscopy, films are taken. The normalcervical myelogram has a characteristicoutline and thus extradural defects suchas ruptured cervical discs show as in·dentations of the column of dye. The indentation produced by a herniated discis quite characteristic in appearance andis earily differentiated from defects dueto degenerative arthritis of the neck(spondylosis) or the defect of a cordtumor. Following the completion of theexamination, the dl ':' is removed insofaras pcssible. The patient is kept at bedrest for approximately 24 hours followingthe examination.

The various types of vertebrae, with superior view on the left andlateral view OD the right.

CERVICAL DISCOGRAM:In this examination, Pantopaque is ac

tually injected into the cervical discs. Xrays will then show Pantopaque leakingout of the disc space, and in addition,the arm pain as described by the patientwill be reproduced. In our practice, wedo not use the cervical discogram, feeling that physical rupture of the annulusfibrosis in the cervical spinA is apt tolead to as much difficulty as it resolves.This feeling is not shared by all orthopaedists and neurosurgeons throughoutthe country. Many feel that discographyis a great aid in proving or disprovingthe presence of a ruptured cervical disc.

TREATMENT:Conservative treatment of the hernia

ted disc is similar to that of the severesprain of the cervical spine. Bed rest,with head halter traction, muscle relax-

ing medication, a contour pillow, localmeasures such as moist heat and medication for pain will help if the cervicaldisc is not large or if there ;s not severepressure on the nerve root. Should theherniated disc be of a large calibre, however, an operation may become almostmandatory. The operative treatment ofthe herniated cervical disc has been entirely changed in the past few years byCloward of Honolulu. Cloward developed the anterior approach to the cervical spine, completely changing the results of the surgical therapy. Prior to theuse of this method, results of operativetreatment were most discouraging, primarily because of the postoperative painstate which persisted. This was due tothe very close quarters involved in the

interior anatomy of the cervical spinefrom the posterior approach. In myopinion, the anterior approach has completely revolutionized cervical spine surgery with results so greatly superior tothe pcsterior approach that the laller isonly used rarely, and then for neoplasticdiseases or for fracture and dislocation.

ANTERIOR CERVICALDISCECTOMY TECHNIQUE:

The operation is conducted underendotrachael anesthesia, ordinarily onthe right side of the neck. The incision istransverse, ordinarily in a skin crease.The faschial sheath between the strapmuscle and the carotid sheath is identified and blunt dissection is utilized to ex-

Continued on page 8

January 1975/Arkansas Lawyerl7

BACKBONEContinued lrom page 7

pose the underlying structures. The midline of the paravertebral fascia is utilizedfor opening of the disc space. Orientation as to the level is obtained by x-raycontrol. The disc space is evacuated ofits contents and a bone graft is insertedand impacted. This graft is obtainedfrom the pelvis. The wound is closed after hemostasis is obtained. Postoperatively, semi-rigid bracing is employedwith later physical therapy and activeexercises after the fusion is identified onx-ray. The primary complication of thisoperation is quadriplegia so that greatcare is necessary when the depths of theinterspace are evacuated.

Fracture and dislocation of the cervical spine results in long-term disabilitywhich may be permanent in nature andtotal in degree if spinal cord injury of aserious nature is present. A simplebruise of the cervical spinal cord may result in physiological transection of thecord due to bleeding or hematomylia.

Localized pressure about the cord dueto bony fragments or epidural hematomamay also gIve a permanent paralysIs, butis less likely to do so. Treatment is longterm in nature and often requires surgical intervention.

This surgical treatment may bethrough either the anterior or the posterior approach depending on the circumstances of the individual injury. The surgery may vary from simple removal ofsome fragments and decompression ofthe cord with section of the dentate ligament up to the entire replacement of thevertebral body with bone graft to thecontiguous vertebrae above and below.In any event, these are extremely serioussituations requiring absolutely topnotchoperative facilities and the presence ofwell trained and experienced neurosur-

, geons and orthopaedists. Fractures anddislocations of the cervical spine are absolutely catastrophic injuries with transection of the cord occurs. The diagnosis is obvious due to the quadriplegiawhich is present and the x-ray appearance. Disability is total and permanent.Treatment is supportive in nature andlifelong in duration. If the injury is abovethe 4th cervical vertebra, the ordinary result is fatal, either immediately or shortlythereafter, due to paralysis of the diaphragm. Lower transection levels alsoresult in a greatly decreased life expectaney, most often due to repeated boutsof ascending urinary tract infection or repeated episodes of pneumonia.

DORSAL SPINE:Injuries of the dorsal spine occur due

to hyperllexion or to hyperextension. Thehyperflexion injury or jack-knife injury ismuch more common. This injury resultsin strain of the dorsal musculature,


sprain of the interspinous and interlaminar ligaments and compression fractureof the dorsal spine. Unless the injury issevere enough to produce pressure onthe spinal cord with resultant paralysis,treatment is quite simple and consistsprimarily of bedrest, hyperextensionexercises and possibly the use of abrace. The hyperextension body casthas largely been discontinued. The fracture of the dorsal spine will take somethree to six months to heaL but thephysical impairment arising from this injury is ordinarily not severe, unless cordinjury has occurred resulting in a moreor less severe degree of paraplegia.Long term disability due to the alteredmechanics of the spine present when acompression fracture has occurred is ordinarily not too severe. Arthritic changesin later life are, of course, to be expected, again because of altered mechanics in the entire vertebral column.Most fractures of the dorsal spine do notrequire surgical intelVention and mostfractures do not have neurologic involvement. When surgery is required,however, it is my feeling that the anteriorapproach is to be preferred because ofthe much greater exposure which can beobtained and because of the more secure fixation which is possible.

LUMBAR SPINE:All of the conditions described in the

celVical spine occur in the lumbar areaas well. In addition, the very commonpresence of congenital anomalies contributes to low back disorders. In variousstudies, these anomalies are describedin from 10 to 20% of the population as awhole. The severe congenital anomaliesplay no part in a discussion of injury tothe back as they are so severe andcause such profound disability that thepatients afflicted with them are really notactive enough to be injured. Conditionssuch as meningocele and meningomyelocele or a spina bifida, so serious as toconstitute rachischisis or split vertebra,are not compatible with an active life.Fortunately, such severe and seriousconditions are rare and the much morenumerous minor anomalies allow a moreor less normal life. These conditionsmake up such things as spina bifida occulta, asymmetrical facets, spondylolysis or spondylolisthesis. These conditions tend to decrease the stability of thelumbar spine further and to cause a simple straining or spraining injury to bemuch more severe and to hang on muchlonger than would be the cause if theywere not present.

Injuries to the low back constitute byfar the greatest simple industrial hazard;I think it is probably fair to say that theexpense of these injuries cost industrialcasualty companies as much or morethan do all other industrial injuries combined.

The low back injury typically occurswhen one is engaged in heavy lifting orwhen one has a sudden strain on the lowback. For example, a co-worker dropsthe other end of a load. Sudden jerksand jars will cause a rupture of the discas will a hyperfiexion injury to the lowback. A Jack-knife injury in a collision orthe feet flying out from under are bothcommon causes of a herniated disc. Theintervertebral disc is a remnant of thenotochord. The disc consists of a stronginterlaced fibrous ring about the periphery and this structure is called the annulus fibrosis. Solid end plates of thevertebrae above and below make up thetop and botlom of a small. flat. discshaped cylinder which contains a semiliquid center or a nucleus pulposus. Theunit thus formed makes up a hydraulicshock absorber which is, indeed, the primary function of the intervertebral disc.In its uninjured state with a semi-liquidcenter, the intervertebral disc is difficultto injure. If, however, aging changeshave occurred, or if the disc has beenpreviously injured, or due to any cause,the semi-liquid center of the disc has become dried or degenerated or inspissated, a very trivial injury can cause aruptured disc. I know of examples of persons who herniated a disc completelyinto the spinal canal from maneuverssuch as sneezing, stepping off a curb orlifting up a powder puff. Most often. however, the force involved is considerableand is of a lifting or spraining type aspreviously described. When an intelVertebral disc ruptures, back pain is quitesevere. As further changes develop andthe nerve root on the involved side becomes more and more involved, ordinarily the back pain will get belter or maydisappear entirely. When back pain isthe only complaint, one should suspecta central rupture of the disc rather thanone which occurs to either side. Thecentral portion of the distal' end of thespinal cord or the cauda equina will beinvolved rather than one of the rootscausing radicular pain into the leg. Bladder and bowel involvement may occurwith a large central rupture of a disc.The most common history of a rupture ofthe intervertebral disc is that of one ofthe injuries of the types described aboveresulting in back pain. Radicular paindown the leg will occur and this is particularly severe. As the leg pain increase,the back pain will tend to decrease. Theleg pain is sharp and shooting in natureand is referred along one specific nerveroot. Numbness or paresthesia or hypesthesia or even anesthesia of the affectednerve roots is a common complaint.Since pain is a purely SUbjective complaint, really meaning nothing except tothe person who is having it, descriptionsof radicular pain in herniated disc situations will vary widely. Such terms as

Different forms of injured intervertebral discs compared with a normalone.A. A true posterior protrusion.B. A normal Disc.C. A posterolateral protrusion without tearing or rupturing the annulus

fibrosul.D. A posterolateral protrusion with rupture of the annulus tibrosus.E. A posterolateral protrusion with rupture of the annulus tibrosus

and with fragmentation of disc substance.

Figure 6

something must be done now, even if itis wrong.

The above indications pertain when amyelogram is either a strong positive, orequivocal in such a way that a hiddendisc may be present. It is my opinionlumbar discography has the same disadvantages as cervical discography, andthis procedure is not used in our practice.

The surgery necessary for correctionof a herniated intervertebral disc consists of hemi-laminectomy and discectomy. With the patient in a flexed position, a small portion of the lamina aboveand below the involved disc space is removed, the underlying ligamentumflavum is removed, the nerve root is dissected free and moved toward the midline. The disc space is thus visualizedand the herniated disc is removed withpituitary ronguers. This operation is anextremely useful one and one which hasenjoyed a large degree of success, Theoperation has been used since 1934,when it was accidentally done by Mixterand Barr in Boston while operating for a

Continued on page 10

APOST.

and sciatica may be treated successfullyby conservative means, utilizing bedrestwith or without traction, and a series offlexion exercises to the low back. Livingwith a ruptured disc which is not causinga great deal in the way of symptoms islargely an educational matter. Indeed,one entire fairly new system of treatmentof low back disorders hab been developed in Sweden, utilizing an educational approach to the problem.

The conservative approach to lowback disorders, specifically the herniated disc may fail, however, and insuch conditions and under such conditions, surgery may be indicated. Theindications for early surgery in a situation of a herniated intervetebral disc, inmy opinion, are these:

1. Failure of conservative treatment.2. Intense and continued pain requir

ing the use of narcotics for relief.3. The development of progressive

muscle weakness about the lower extremities, or progressive bladder andbowel dysfunction.

4. The absolute insistence of this patient that this pain is so severe that

B

c

Figure 6X-rays are of little help when they are

plain films. An acute back injury willshow a reversed or a straight lumbarspine and possibly a decrease or a tilt ofthe involved interspace. These changesare not diagnostic, but should make onesomewhat suspicious. Should the neurological examination begin to showchanges, a lumbar myelogram is indicated. It the lumbar myelogram isunequivocal and a large defect is noted,surgical intervention should then beconsidered, As described above, myelography is not entirely without danger andits use should be reserved to such persons in whom a positive finding is anticipated. A lumbar myelogram will answerseveral questions: 1) Is a disc present?2) If a ruptured disc be present. what isits levei? 3) if a ruptured disc be identified, is it large enough to require surgery?

Figure 7The same dangers are present in lum

ber myelography as are present in cervical myelography. The lumbar myelogram, in my opinion, is not as accurateas the cervical myelogram. The columnof oil may be far enough separated fromthe posterior longitudinal ligament that aherniated disc of fairly large caliber canbe present without showing on themyelogram. Fortunately, the errors inlumbar myelography are primarily thoseof false negatives rather than false positives so that an unindicated surgery maybe largely avoided.

Surgery is by no means indicated inevery case of a herniated disc. A largeproportion of individuals with back pain

shooting, burning, tearing and burstingare all employed. The paresthesias maybe described as numbness, tingling,needle sticking, etc. All of these patientsare most graphic in their description ofpain and paresthesia and occasionally adiagnosis may be made on history aloneif the patient is a good historian.

The typical physical findings are thoseof limitation of back motion, tendernessin the iliolumbar area of the back orabout the interspinous ligaments, a positive straight leg raising test. reflexchanges, particularly a decrease in thetendoachilles or heel reflex, atrophy ofmuscles of the calf and muscles of thebuttocks. One of the earliest findings ofmuscle atrophy is sagging of the buttocks as the patient stands in the erectposition. Weakness of the muscles ofthe foot, particularly those of dorsiflexionof the foot, is also a valuable diagnosticaid. II a person is unable to walk on theheels or if a dropfoot gait develops following a lifting or straining injury, thediagnosis of a complete herniated discis to be strongly considered.

,,,

January 1975/Ar1<ansas Lawyer/9

Schematic diagram to illustrate the appearance of the x·ray films in •myelographic study. Since these are anteropostenor views, the patient'snght is OD the left side of the drawing.A. Normal.B. The thecal sac is shorter, a finding whicb may he congenital or

traumatic in origin. The lower nerve sleeve at L·t is absent on theleft. With a history of trauma, this finding suggests a space·occupying lesion which oblitentes the nerve sleeve.

C. The indentation of the thecal sac on the left side of the patient hetween L·t and L-S is a filling defect. The thecal sac is not symmetrical and is narrowed at L·s. The findings are abnormal andsuggest that a large mass has compressed and altered the ()nloursof the thecal sac.

D. A large filling defect in the thecal sac 00 the patient's left at L-4and L-5.

E. Absence of 1st sacral nerve root 00 patient's left.

ing their symptoms or malingerers. ltmeans purely that such people are ordinarily doing heavier work than thosewho are treated on a private basis, orthat third party intervention is present.The stimulus to return to work, and remain at work, is much greater in the private patient. The primary difference,however. in my opinion, is the heavierwork done by the industrial patient.

ADDITIONAL DIAGNOSTICAND TREATMENT AIDS

Thermography: Ultrasensitive heatsensors have been developed during thepast ten years, primarily for military use.These have been adapted for use inmedicine, however, in an instrumentcalled a thermogram. By virtue of increased blood supply, inflammatory conditions may be accurately delineateddue to their increased heat productivity.The primary use of this in orthopaedicsurgery is to diagnose and to localizerheumatoid arthritis. Tumors also havean increased blood supply and thermography is readily utilized in the diagnosisof certain tumors, namely carcimona ofthe breast. The fibers which carry temperature are the same nerve fibers whichcarry pain sensation. There is considerable evidence to show that an actualpain state, due to any state, will causechange in the thermogram. It is inaccurate to state, at this time, that a thermogram is an actual measure of pain, butsuch studies are underway at this moment and may, some time in the near future, give us a much more accuratemeans of measuring pain states due toany cause, and especially those due toinflammatory causes.

CHEMICAL TREATMENTOF HERNIATED. DISCS:

Several years ago Dr. Lyman Smith, inCleveland, began experimenting with anenzyme which liquifies the intervertebraldisc. This enzyme was obtained from thepapaya plant and is called Chymopapase. Some 10,CXJO cases have now beendone at the hands of various investigators. The procedure is still experimentaland the drug has not yet been releasedby the FDA.

The procedure consists of a lateral approach by needle to the intervertebralspace and the performance of a discogram to be positive that the needle is inthe right space. Chymopapse is then injected into this with resultant liquification of the intervertebral disc. The results, to date, have been comparable tothose results obtained with a well performed laminectomy. There is a verygreat advantage in that the spinal canalhas not been invaded surgically and thatscar formation does not occur. Severalproblems remain to be resolved about

SPINAL FUSION:In my experience fusion is not indi

cated as a primary procedure at the timeof laminectomy. If some condition bepresent which warrants fusion aboveand beyond the presence of an intervertebral disc, then one might consider primary fusion. This refers to such thingsas severe degenerative arthritis of thelumbar spine, marked asymmetry of thefacets, spina bifida, spondylolysis, etc. Asevere degree of instability of the lumbarvertebrae noted at time of the laminectomy may also be an indication forfusion. I do not feel that the results 01>tained from the laminectomy and fusion,done simUltaneously, are as good as theresults obtained from laminectomy alonewith fusion later, if indicated due to additional reasons.

There is a definite difference in the results obtained from laminectomy doneon private patients and those patientswho are operated on an industrial basis,or in those patients with whom litigationis involved. This does not mean that allpersons involved in litigation, or who arebeing cared for under the workmen'scompensation program, are exaggerat-

A

B

Continued from page 9

suspected spinal cord tumor. Since thenmany millions of laminectomies havebeen done throughout the world with re·suits varying widely according to thepapers of different investigators. Grading of the results of this procedure, inour practice, is as follows:

1) Excellent-This patient really neverknows he has had a back operation. Heis able to continue his regular work andhe has no remaining difficulty.

2) Good-This patient is able to remainat work and is able to do heavy activity.He does, however, have occasionalback pain. He has no leg weakness anddoes not lose time from work.

3) Fair·This patient has occasional frequent episodes of pain in the back. Hemay have some degree of radicular painin the leg. He may miss some time fromwork.

4) Poor·This patient continues to haveback pain and leg pain and is unable towork.

5) Failure-This patient is no better thanbefore his operation and, indeed, may beworse.

Figure 7

BACKBONE


()(j~ NEW A/)P~ESS :ARKANSAS BAR ASSOCIATION

ARKANSAS BAR CENTER400 WEST MARKHAM

LITTLE ROCK, ARKANSAS 72201

the procedure, notably anaphylacticreaction due to the drug. To my knowledge only two deaths have been reported in the approximately 1,000 or socases which have been done. One ofthese was due to infection and one dueto incorrect use of the procedure. Theprocedure and drug have not yet beenreleased for general use; however, thisis expected within the year. The American Academy of Orthopaedics is presently engaged in some courses andworkshops directed toward familiarizingindividuals in the use of this new approach to herniated disc disease.

The psychology of the person with theinjured neck, or injured back, deservesconsiderable consideration. It is apparent that injuries of the neck or back, orinjuries regardless of where they occurin the vertebral column, take a long timeto heal. A person with such an injury hasno honorable scars to show for his pain;he is not immobilized in a plaster cast,he has no steel plates, rods or other devices that demonstrate his discomfortand he has no obvious external causefor his disability. A workman with abroken arm is in a cast but he knows thatsooner or later the cast will be removedand he will be able to return to work. Theworkman with the severe back sprain orwith a ruptured disc or with a chronicallysore neck does not know when he willreturn to work, or if he does return if hewill ever be hired again. The patient isseverely depressed. He has seen numerous doctors. He has been in contact withinsurance adjusters and with attorneys,or he may have impending litigation. Allof these conditions contribute greatly, inmy opinion, to additional tension, increasing his disability, and mitigatingagainst an eventual good result. I knowof no way in which his situation can bealleviated other than simply to wait it out.

Sooner, or later, he will largely recover.It is important, I think, that immediatetreatment be instituted in all cases. It ismy personal feeling that a patient with adisc problem should be investigatedthoroughly and promptly, that the discbe handled by operable or non-operablemeans, whichever is indicated, and thattreatment be continuous until the patientis restored to a work capacity. If lightwork is available for him, or if it can bemade available, light work should beutilized. An individual recovering from alow back operation working at a light jobis a useful member of society, but an individual recovering from a back operation, who is not working, is an invalid.Some ten to fifteen years ago a neurosurgical group in Memphis, headed bySemmes and Murphey, published anarticle in the Journal of the AmericanMedical Association. This article was

entitled "Whiplash Injuries Ten YearsLater". In the article a discussion is heldregarding a group of individuals whohave been injured, and all of whom havereceived substantial disabilities rangingfrom 10% to 25% of the body as a whole.Some ten years later practically all of theindividuals have resumed normal activities. In this paper the psychologicalovertones of neck injuries were described in detail. Semmes, Murphey, et al.described the tensions to which patientsare SUbjected when examined by plaintiff's doctors and defendant's doctors,when they had depositions, when theygave depositions to various attorneys,and when they went to court for judgment.

All of these tensions, which were notreadily apparent, were said to contributegreatly to the patient and made the eventual disability greater. When these 1en-

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3ions were removed, disability largelyresolved itself.

I have reserved until last the questionof permanent impairment of function. Inthis connection, it is my feeling noblanket statements can be made.Estimation of permanent impairmentmust be based, in my opinion, on the individual case and must include such factors as range of motion, strength ofvarious muscles, speed and accuracy ofmovements, reflex change, x-ray changeand Earle-McBride catch-all classification "Worth As A Workman". Certainly,with accurate diagnosis, with promptand vigorous treatment, and with an intelligent approach to living with decreased function of the vertebralcolumn, most individuals can be restored to an active normal, or near normal life, and invalidism be greatly reduced.

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3:

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JURIS DICTUMby C. R. Huie

Executive Secretary, Judicial Department

Mr. Justice Lyle Brown of the Arkansas Supreme Court recently invited our attention to an article by William Nash. Esquire appeanng in the June 1974 issue of the The New Age, official publication of the Supreme Council3JO Scottish Rite of Freemasonry ofthe South Jurisdiction. United States of America. He observed that the little known facts concerning Albert Pike's tenure as a Justiceof the Arkansas Supreme Court deserved wide circulation among the Bench and Bar of Arkansas.

It is therefore with gratitude to Mr. Nash for his meticulous research and scholarly treatment of the subject, and to Mr. Pauler. Editor of The New Age for his permission. that we repnnt Mr. Nash's article.

I

ALBERT PIKE: JUSTICE 0 F THESUPREME COURT OF ARKANSAS

The several biographies of Albert Pikeand other specialized studies of his lifemention that for a time he served as amember of the Supreme Court of theState which he adopted and in which hewas made a Mason, but none gives anadequate presentation of the background leading to his appointment or ofhis work on the Bench, This is understandable in view of the fact that Pikewas blessed with a long life. rich in experience in many different spheres.while his tenure on the Bench was shortlived. obscure and less striking thanmany of his other undertakings. Nevertheless. it may be useful and perhaps interesting to review the circumstancesthat led to his appointment, to correlatehis activity as a jurist with his work inMasonry. and to explore briefly his contributions to the case law of his State.

His career as a jurist began and endedin the troubled war years when Arkansaswas a member of the Confederacy. Withthe Nation at war. on May 10. 1861 aConstitutional Convention in Little Rockaccepted the provisional Constitution ofthe Confederate States of America. OnJune 1 the Convention adopted a newState Constitution which provided for anelection to be held on the first Monday inOctober, 1862 for State officers to servethe State as a member of the Confederacy.

In the race for Governor, Henry M.Rector, the incumbent, was defeated byGen. Harris Flanagin, then with the Confederate forces in Tennessee. He returned to Little Rock for his inaugurationon November 15th, and to assume hisduties as Governor, but when Federaltroops occupied the city on Septem ber10. 1863 he transferred the seat of

government to Washington, Arkansas,then a city of some importance near theTexas border and at a safer distancefrom the Federal troops.

The war in Arkansas did not progresswell for the Confederate army, and theresoon developed a movement to returnthe State to the Union, a movementgiven impetus by Lincoln's AmnestyProclamation of December 8. 1863. Aconvention assembled in Little Rock onJanuary 4, 1864, which elected IsaacMurphy Provisional Governor and calledan election for March 14, 15 and 16 topass on a new State Constitution and, asa member of the Union, to elect State officers.

A new constitution was adopted. andMurphy was elected Governor. T. D. W.Yonley was elected Chiet Justice, andCharles A. Harper and Elisha Baxterwere elected Justices of the SupremeCourt. The Legislature, under a newconstitution, met from April 11th to June2nd.

On August 9th Governor Flanagincalled a special session and the "Contederate Legisfature" assembled September 22. 1864.

Thus, at the moment there were twoGovernors: Flanagin of the ConfederateState and Murphy of the Union State; twocapitals: Washington, Arkansas for theConfederate State and Little Rock tor theUnion, and there were two legislatures.each in session during the period. Therewere also two Supreme Courts.

It was against this background thatGovernor Flanagin, on June 8. 1864, appointed Albert Pike a Justice of the Arkansas Supreme Court to join Elbert H.English and constitute a two-jUdgecourt. His commission, of record in Arkansas Supreme Court Record Book H,page 19. for 1864, recites:

THE STATE OF ARKANSAS TO ALLWHOM THESE PRESENTS SHALLCOME-GREETING!

Know Ye, That, reposing special trustand confidence in the ability, honestyand fidelity of ALBERT PIKE, of the Stateof Arkansas, and by virtue of theauthority in me vested by law, I, HarrisFlanagin. Governor of the State of Arkansas, do hereby appoint and Commission the said ALBERT PIKE. a judge ofthe Supreme Court, in the State of Arkansas. to fill the vacancy occasionedby the resignation of the Hon. Hulbert F.Fairchild. He. the said ALBERT PIKE. ishereby authorized and impowered tohold said office of Supreme Judge during the time prescribed by law, and he isauthorized and required to do and perform all and singUlar the duties incumbent on him as a Judge of the SupremeCourt aforesaid according to law andtrust reposed in him.

In Testimony Whereof, I have hereuntoset my hand and caused the Seal of theState of Arkansas to be fixed atWashington. this the eighth day of June.in the year of our Lord, One ThousandEight Hundred and Sixty-four.(SEAL) H. FLANAGIN.

The last official act of Governor Flanagin, apparently, was the issuance of aproclamation on May 23. 1865 to callupon the citizens to assist in the prevention of crime then on an increase in theState. Lee and Johnston had surrendered and. on June 15th. a Committee on"Law and Order" met in the Courthousein Washington and adopted a resolutionrecognizing the government at LittleRock. This led to a general acceptanceof the Murphy government.



GENERAL ALBERT PIKE

ALBERT PIKEContln.-d from page 13

In keeping with this action, there wasadded to the Supreme Court record ofPike's Commission the following mar·ginal notation: "The proceedings subsequently recorded in this Record Book,having taken place since the adoption ofthe Constitution of 16th March, 1864, areconsidered to be null and void and sotreated." The notation is undated andunsigned.

The course of events is here tracedwith some care and in some detail indates in order to set in perspective hiscontemporary service in Masonry.

Pike's services as a Justice involvedparticipation in two advisory opinions tothe Governor. The calling the generalelection for the first Monday in October,1664 Flanagin knew that counties in thehands of the enemy would not respondand that without the members of thelegislature from those counties therewould be no quorum at the regular session, as required by the Constitution. Accordingly, he asked the Court whetherhe had the authority to call a special session to fill vacancies in the Legislatureand to hold a special session, to whichEnglish and Pike replied that the Executive had the inherent power to callspecial elections and to hold specialsessions of the Legislature at any time.Hence the election on July 25th and thespecial session of the Legislature onSeptember 22nd.

When the Legislature assembled onSeptember 22nd it did, in fact, lack aquorum. Flanagin then asked the Courtwhether the Legislature could legallyproceed in the absence of a quorum.The Court answered that if there was aquorum based on members from counties not under the control of the enemy,the Legislature was empowered toproceed.

In addition to these two advisory


opinions, Pike wrote four opinions accepted later by the Court and reportedand at least one opinion not so accepted.

Prior to his appointment to the Court inJune, 1864 Pike had completed perhapshis most arduous Masonic work. He wasmade a Mason in Western Star LodgeNo.2 in Little Rock in 1850 and had received all of the York Rite Degrees before February 9, 1853. Albert GallatinMackey conferred the Scottish Rite Degrees, the Fourth through the Thirty-second, on Pike, on March 20, 1853 inCharleston, South Carolina. He wasCoroneted an Inspector GeneralHonorary of the Thirty-third Degree onApril 25, 1857 at New Orleans. Appointeda Deputy of The Supreme Council in Arkansas on March 30, 1853, he established a Grand Consistory in ArkansasAugust 2, 1858. He was elected an Active Member of The Supreme Council ata Session in Charleston. South Carolina,March 20, 1858 and elected SovereignGrand Commander January 2, 1859.

Meanwhile, with the same vigorousenthusiasm that marked his meteoricrise in the Scottish Rite, Pike had undertaken a revision of the rituals which hesaw accomplished and finally acceptedby The Supreme Council in April, 1861.He continued his work of revision thereafter, and possibly at the same time heworked also on Morals and Dogma, andit is likely that he was so engaged while;erving as a Justice of the Court.

Having in mind this intense intellectual activity in Masonry. one must wonder to what extent, if any, his writings inMasonry spilled over into the law.

His four opinions, Trapnall v. Burton,Marshall v. Green, Branch v. Mitchell,and Twombly v. Kimbrough are found inVolume 24 of the Arkansas Reports.December Term, 1866, at pages 371,411,431 and 459, respectively. The Courtwas not in session following the 1863June term until the 1865 December term,in which only one decision was handeddown. In the 1866 June term there werefive decisions. and in the Decemberterm. fifty decisions. of which four werethose of Pike, His Chief Justice, ElbertH. English. contributed three. Theseopinions had been prepared quite sometime previously. had been reviewed bythe Court after the return of the State tothe Union. and had been adopted asopinions of the Court.

Pike's opinions are quite lengthy. hisfour constituting only 8 percent of theopinions reported in the 1866 Decemberterm. but accounting for more than 28percent of the pages in the Report.

Notwithstanding what must have beenhis tremendous expenditure of intellectual effort in the revision of the ritualsand the composition of Morals andDogma, a careful reading of the four

opinions. as lengthy as they are. discloses no idea, no suggestion of principle, no language directly traceablefrom the rituals or from his great work.From these. the profane would catch nogleam of esoteric Masonry.

In Trapnall v, Burton, Pike discussesand develops at considerable length titleto lands acquired by adverse possessionfor the statutory period of seven years.elaborating on the elements of adversepossession, and holding in the instantcase that whatever title plaintiff mighthave had was lost by adverse possession held by defendants and theirpredecessors in title. Additionally. Pikeheld for the defendants on the ground ofequitable estoppel in that plaintiff disclaimed to the defendants any intentionto claim the lands and thereby knowingly permitted the defendants to buy andimprove the lands when they might nothave done so otherwise. At a time whenthere was little case law in the State andthe Court had to resort extensively to theEnglish Common Law and the maximsof Aoman Law, Pike's well-reasonedopinion was a valuable contribution tothe jurisprudence of the State and, ofcourse, remains good law today.

This case does hold some additionalinterest. Among the defendants were theTrustees of SI. John's College, an institution of higher learning and perhapsthe first in the State, sponsored by the"Grand Lodge of Free Masons and theMasonic Fraternity of Arkansas." Plaintiffs objected to the testimony of one ofthe Trustees on the ground that he was aMason and, therefore, disqualified fromtestifying on behall of the College sponsored by Masons, an objection whichPike quickly dismissed with the reasonthat the Trustee had no pecuniary interest.

Pike might well have resorted to thelanguage of Masonic ritual in the discussion of equitable estoppel but did not.

In Marshall v. Green, Pike confirmedthe finding of the lower court that underthe testimony presented a conveyanceof lands by a son to his father was infraud of creditors and should be setaside.

In Branch v. Mitchell, the question waswhich of two chains of title to realproperty was superior. with Pike holdingthat once the United States of Americahad made a valid conveyance it had notitle thereafter to convey.

Finally, in Twombly v. Kimbrough,Pike held that a tax sale of lands notmade in accordance with the statute isvoid.

In a fifth opinion, Arkansas v. Williams(not adopted by the Court for oblliousreasons, although said to be the opinionin which Pike took his greatest pride), aquo warranto proceeding initiated in theSupreme Court put in issue the right of

OLD COURTHOUSE, WASHINGTON, HEMPSTEAD COUNTY,WHERE LEGISLATURE SAT IN SEPTEMBER, 1864

Samuel W. Williams to hold the oHice ofAttorney General under the Murphygovernment in Little Rock. Pike de~

fended the Confederate government atWashington. Arkansas. on the basis thatthe State's sovereignty pre-existed theUnion, that this sovereignty had beenpreserved during the Union and wasproperly exercised when the State withdrew from the Union to join the Confederacy, that the State Constitution of1864 was adopted without legal authority. and that, therefore. the governmentclaiming to exist under that Constitutionwas without authority. The outcome ofthe war, of course. decided otherwise.

During his service on the Bench, Pikewas in illustrious company. His ChiefJustice was in all likelihood betterknown to Arkansas Masons than Pikehimself. Elbert H. English first served asGrand Master in 1849 and later for theyears 1859 throu9h 1868, inclusive,longer than any other incumbent. Hewas the Grand Master while Pike was onthe Bench. English was Eminent Com~mander of Hugh de Payen's Commandery No, 1, established by Pike forthe years 1860-1862 and 1866, and served as Grand High Priest of the RoyalArch for the years 1874 through 1877, inclusive. Albert Pike communicated thetwenty-nine degrees of the Scottish Riteon eleven "active and eminent Free~

masons" in Arkansas in 1859. amongthem English. who in the same year wasCoroneted and made an Honorary Member of The Supreme Council.

L E. (Luke) Barber, Supreme CourtReporter for Pike, was Grand Master forthe years 1852, 1853, 1857 and 1858, andwas one of the first eleven to receive the

Scottish Rite Degrees from Pike. OnMarch 30. 1860 he took his seat as anActive Member of The Supreme Counciland is listed as the Sovereign Grand Inspector General in Arkansas in March.1860, apparently the first in Arkansas,

Sam W. Williams. subject to Pike·sopinion in the quo warranto proceedings. Williams v. Arkansas, was also avery popular Mason. serving as GrandMaster in the years 1870 and 1871. He.too. was among the first eleven.

Thus, the men most closely involvedwith Pike in his year on the Bench, menwith whom he must have made almostdaily contact, were all closely bound to

him by Masonic ties. men who wereeminent in York Rite Masonry. holdingthe highest offices of the Order. and menon whom he himself conferred the Scottish Rite Degrees. and with at least oneof whom he served on The SupremeCouncii. Yet none of this is suggested inthe four opinions in the Official Law Re~

ports.While on the Bench. Pike had one

more Masonic experience, little noted. toadd coior to the bright tapestry of his life,He was Grand Orator of the Most Worshipful Grand Lodge of Arkansas for1864. :/, .,.,.

-'

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NOTE: Any organization desiring to usethe free services of the Speakers Bureaushould request the related pamphletfrom the Arkansas Bar Association. 400West Markham. Little Rock, Arkansas72201 (375-4605). The pamphlet givesthe necessary instructions, etc.

If an Association member wishes toparticipate as a speaker in the SpeakersBureau. the member should send nameand topics to the Arkansas Bar Association.

THOMAS A. DAILY of Fort Smith. Chairman of the Association's Consumer LawCommittee. was the featured speaker at

the Annual Banquet of the GreenwoodChamber of Commerce, LEWIS H,MATHIS of Little Rock addressed theHilltop Kiwanis Club on Tax and RelatedProblems, The November meeting of theJacksonville Rotary Club was addressedby JAMES BUTIRY. WILLIAM T. KELLYpresented a program on Pensions andProfit Sharing to the Hilltop KiwanisClub. RALPH G. BRODIE addressed theKiwanis Club on Estate Planning. Mr.Brodie used the Arkansas Bar Foundation's Pamphlet on Wills as a handout inthis connection. Moral Law was the topicof discussion when JIM NASH of LitlleRock addressed a Kiwanis Group in little Rock on December 19. J-",<-

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EXECUTIVE COUNCILNOTES

By James M. MoodySecretary-Treasurer

IWDCommonwealthU' FederaL

Recent Federal Government legislation now enablesself-employed individuals to create their own retirementplans that allow you to deposit up to 15% of your grossearnings, not to exceed $7,500 annually. And, it'scompletely deductible on your tax returns with interestearned tax free until distribution of the funds.

COMMONWEALTHFEDERAL'SRETIREMENTFUNDA SERVICE FOR THE SELF-EMPLOYED

Membership remains at a satisfactorylevel with 1,820 active members of fheAssociation and 93 new members approved by the Council for a total of 1,913.Bill Wilson is working on delinquentmembers who should be encouraged torestore their active status.

John Stroud reported on the activitiesof the Bar Foundation and its presentplans to raise money for scholarshipsand other programs.

Col. Ransick announced plans for thenext INTRAV excursion entitled "BalkanAdventure. "

Savmgs and Loan Assoclallon

determine the basic needs for such aprogram and the number of lawyers whoare willing to participate in it.

Jim Sharp reported that the legislativecouncil had voted to approve an appropriation of $50,000 for the civil procedurecommittee for its study of the rules. Thefunds are to be applied over a period oftwo years.

The law school committee has hadseveral meetings with the University'snew president regarding the status of thelaw school in Fayetteville and the proposed day law school in Little Rock.

At its regular meeting on November23, the Executive Council was primarilyconcerned with hearing reports from thevarious Association committees and acting on their recommendations and requests.

Jim Harper of Rather, Beyer & Harperreported to the Council on proposedchanges in the professional liability insurance furnished to the Association byContinental Casualty Company. Two basic changes in the existing coveragewould provide for a single limit of liability of $100,000 per claim with anaggregate limit of liability of $300,000 onthree claims per policy; and the exclusion of all work done under the regulations of the Securities and ExchangeCommission, Coverage for an additionalpremium can be obtained for SEC work.These changes were necessitated by theinsurance company's loss experienceand were approved by the Council onrecommendation of the Association's Insurance Committee.

Jim Sharp reported that all meetingsbetween local bar associations and theirlegislators had been held and that barsponsored legislation was being favorably received. Jim Rhodes will replaceBill Wilson as the Association's liaisonman with the legislature. Jim will needthe cooperation and assistance of allmembers of the Bar in contacting legislators for their support.

The Council concluded considerationof the legislative program with an approved amendment to the proposedpublic defender bill concerning its funding and in refusing to refer the consumerprotection bill back for additional consideration. The public information bill isstill under stUdy by the jurisprudenceand law reform committee but will be inform for consideration by the House ofDelegates at its next meetino.

The Council heard a report from BobJones on a proposed statewide lawyerreferral service but deferred action onthe proposal until the Committee can


l8/January 1975/Arkansas Lawyer

Zip, _'--~ - __ '---_.....J

Address _

Name _

City _

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Great partnership:Orville &Wilbur

...another great partnership:RRKAnSAS BAR RSSOCIATIOn &

:.CNA!insuranceNow working together to provide you with along-term stable prog ram to combat theprofessional liability problem.

With a partnership like this, wouldn't you expectmore? There is, if you just participate. Thefuture is uncertain-protect it.

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SAFEGUARDING YOURPROFESSIONAL FUTURE

• Editor's Comment:AEGIS is a feature offhe Arkansas BarAssociation's educational program concerning docket controland other areas ofhigh risk experience inprofessional liabilitycases.

"A Word To The WiseIs Sufficient"

If It's In Writing!the problem

the result

advice

A homeowner suffered a loss of some valuable antiques throughburglary. After five months of negotiations he could not reacha satisfactory settlement with the insurance carrier. He thenreferred the matter to an attorney who had represented him inprior dealings. The attorney orally agreed to handle the case.

After a short period of time, the client allegedly asked theattorney to withdraw from the case because he wanted to pursuethe matter on his own.

Nothing more was accomplished and the statute of limitationsran out. The insurance carrier refused settlement because theone year in which to file suit had lapsed. The claimant theninitiated a professional liability suit against the attorney for hisalleged failure to protect the interest of his client.

A compromise settlement was made through the attorney'sprofessional liability insurance policy because of the conflictingtestimony between the attorney and his client as to the scopeand duration of the representation.

Always confirm in writing to the client when fhe scope or natureof the representation changes or ceases.


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2O/January 1975/Arkansas Lawyer

TRAVEL ADVENTURESIn 1972, the Arkansas Bar Association

began a travel program in cooperationwith INTRAV of Saint Louis. the travelcompany that has spent years developing deluxe personalized vacation atcharter cost savings.

Orient Adventure

Our first travel adventure in 1972 wasto the Orient, where we visited Tokyoand Hong Kong with many excitingsidetrips. Tokyo is the world's largestcity with a fascinating mixture of temples, towers and palaces. Here we foundgracious traditional Japanese gardensand over two thousand Buddhist Temples and Shinto Shrines. Then on toHong Kong, "Pearl of the Orient," with aBritiSh tradition and the intrigue of theFar East. From here, many took an optional sidetrip to Kyoto. capital of feudalJapan and Bangkok. the fairy-tale city. inthe ··Land of Smiles"·

Mediterranean Adventure

We had a good response to the OrientAdventure, and as news traveled aboutthe quality of our first INTRAV vacation,response to our 1973 Mediterranean Adventure was an even bigger success.The group went via chartered World Airways to Nice. France, where we boardedthe Paquet cruise liner, MERMOZ. Portsof call included Sicily. Malta, Crete,Rhodes, Izmir, Turkey. Mykonos andAthens. The MERMOZ was really thegroup's floating resort hotel for twoweeks. Members enjoyed cabaretshows, a costume ball, French cuisineand beautiful weather - the perfect atmosphere for a relaxing vacation.

spent in Copenhagen, Denmark'scosmopolitan capital, with "the fun-loving Danes." Everyone who participatedin the Scandinavian Adventure enjoyedtraveling through the oldest kingdom inEurope - Vikingland!

Balkan Adventure

Our 1975 vacation plans have beenmade. And, if you have not traveled withthe Bar Association in the past. here isyour opportunity. It's a two·week trip tothe Balkans - Romania, Yugoslavia andTurkey with an optional sidetrip to Kiev,Russia. We will depart Little Rock onJuly 19. 1975. by chartered jet and flydirect to Bucharest. Romania.Bucharest. Romania's SOO-year-oldcapital. has broad. tree-lined boulevards.city lakes and well-kept parks thatcharm the most traveled visitor. There isa feeling of anticipation just knowingyou are behind the Iron Curtain, yet thepace is friendly and easygoing. Antiques. wood carvings and embroideriesare good bargains. Sample Sarmale, anative dish of spicy meat wrapped incabbage leaves. Or order your favoritesteak and potato. Take an excursion intothe lush countryside, passing small neathouses and Gothic fortress-like castles.Don't miss the brooding castle of CountDracula and the optional sidetrip to Kiev.Russia.

Istanbul is in vast contrast to thepeacefulness of Bucharest. Goldendomes and minarets dot the horizon. Anair of intrigue permeates the city. Here isthe tabled Blue Mosque of Sultan Ahmetand Sancta Sophia built by Constantinein 325 A. D. Visit the Topkapi Museumwith its priceless collection of jewels,

ceramics and religious relics. In theGrand Bazaar shops bulge with trinketsand treasures. Copper and brass lamps.kettles and pitchers. Bursa silks.leathers, hubbly-bubbly pipes and oriental rugs create a montage of sensualsights and sounds. Nightclubs featureTurkish folk dancing. Try the nationaldish, shishkabob. with a glass of goodTurkish beer. History buffs undoubtedlywill take the optional sidetrip to Izmirand the ancient ruins of Ephesus.

Leave the hustle and bustle of Istanbulfor the calm and ancient walled city ofDubrovnik, Yugoslavia, perched on arocky peninsula overlooking the Adriatic. Residents take great pride in theirchurches, monasteries, art galleries.museums and hundreds of apartmenthomes that are physical reminiscencAsof the medieval past. Take a drive to therestored fishing village of Sveti Stephan.Or have dinner in a Benedictine Abbeyon a nearby island. Pigskin luggage, filigree jewelry, embroidered blouses anddyed wood rugs are especially good bargains. Yugoslavians are friendly, gregarious people who enjoy life in this historicand daZZling seaside resort area. It willbe a perfect climax to your Balkan Adventure.

Whether you have traveled with the A:kansas Bar Association-sponsored INTRAV trips in the past, or are a potentialfirst-timer. we hope you will join us nextJuly for this vacation of a lifetime. Forfurther information or to make reservations for the Balkan Adventure, pleasecontact the Arkansas Bar Association at400 West Markham in Little Rock or telephone 501/375-4605 today. Space islimited. ~,

"'-SCandinavian Adventure

We chose to go to Scandinavia in1974. This fantastic trip took us to Stockholm. Helsinki and Copenhagen. Stockholm is a city set on islands and rockybluffs overlooking a lovely harbor thathas a fascinating mixture of old andnew. Then on to Helsinki called the"white city of the North," which is thecapital of Finland. While in Helsinki.many of us participated in an optionalovernight excursion to Leningrad. Ahighlight of this sidetrip was a visit to theworld-renowned Hermitage Museum.The last exciting days of the trip were


1975 MIDYEAR MEETING

As you know. the Federal Rules of Civil Procedure were adopled In 1938, twenty-one 01 the eighty-six rules dealing with evid·ence In 1961, Chief Justice Earl Warren appomted a SpecialCommitte on Elvdence to study the feasibIlity of umform rules ofevidence for use in the Federal Courts Thirteen years of studyand debate followed It IS predicted that the amended FederalRules of EVidence resulting from this monumental effort Will havebeen enacted by Congress before the end of 1974

The specter of separate rules of evidence for federal and statecourts IS not a pleasant one. The National Conference of Com·mIssioners on Uniform State Laws last summer approved newUniform Rules of Evidence. patterned after the Federal Rules. foradoption by the slales Arkansas must give immediate conSideration to these proposed rules.

Four of the most distinguished legal scholars In the UniledStates will review both sets of rules and outline the diHerencesbetween them at the Mid-Year Meeting of the Arkansas BarAssociation in January. 1975 No Arkansas Lawyer who intendsever to appear again in court can afford to miss this meeting

J

Co-Chairmen1975 Mid-Year Meeting

,

FOREWORD

Wilham S Arnold andPhillip Carroll

DEAN EMERITUSMASON LADD

PROFESSOR EMERITUSRICHARD H. FIELD

JANUARY16-18

CAMELOT INNLITTLE ROCK,

ARKANSASPROFESSOR

ROBERT E. KEETONPROFESSOR

E. WAYNE THODE

22/January 1975/Arl<ansas Lawyer

NATIONAL CONFERENCE OF COMMISSIONERSON UNIFORM STATE LAWS

Dr. Robert A. Lellar

(Editors Note: It is particularly fitting at the time of the 1975 Midyear Meeting to carrythis article in The Arkansas Lawyer; and to recognize the five current Arkansas Commissioners and their many outstanding predecessors. Commissioners William S. Arnold and Phillip CarroiJ are the Midyear Meeting Co-Chairmen; and CommissionersJoe Barrett, Robert A. LefJar and J. C. Deacon are presiding at the various sessions.Most important of ail is the Midyear Meeting's subject matter-the Uniform Rules ofEvidence.)

Joe Barrett

John C. Deacon

William S. Arnold

Phillip Carroll

In Arkansas too few lawyers are acquainted with the organization and function of the National Conference of Commissioners on Uniform State Laws notwithstanding that Arkansas has played asignificant role in the respectable recordof achievement by that institution. A briefhistory of the Conference and Arkansasparticipation in it is informative.

In 1881 the Alabama State BarAssociation brought the subject of uniformity in state law to the attention of Barassociations in other states. In August of1889 the American Bar Associationadopted the following resolution uponmotion of W. A. Collier of Tennessee;

Recognizing the desirability of unitormity in the laws of the several states,especially those relating to marriage anddivorce, descent and distribution 01property, acknowledgement of deeds,execution and probate of wills; thereforebe it

RESOLVED, That the President of thisAssociation appoint a committee, consisting of one from each state, who shallmeet in convention at a time and placeto be fixed by the President, and compare and consider the laws of the different states relating to these subjects,and prepare and report to this association such recommendations and measures as will bring about the desired result.'

The New York le9islature in April, 1890authorized the Governor to appoint threecommissioners "to examine the SUbjectsof marriage and divorce, insolvency, the



considering such subjects as CivilProcedure, Enforcement of Judgments,Administrative Procedure, Evidence,Uniform Commercial Code, Workmen'sCompensation, Water Resources, Exclusive Forum in International Sales, CivilRights, Uniformity of Private International Law, Anti-discrimination andDisclaimer of Gifts and Bequests.

CommiSSioner Edward L Wright inaddition to serving on the Committee onScope and Program and the ExecutiveCommittee was a member of draftingcommittees considering such subjectsas the Commercial Code. SocialWelfare. Enforcement of Foreign Judgments. Rules for Traffic Court Procedures and Insurance.

Commissioner Nash served on drafting committees considering the Validityof Corporate Guaranties. Civil Rights ofConvicted Persons and Retail Installment Sales.

Commissioner McAdams during histenure of office was on the drafting committee for the Uniform Probate Code.

Commissioner Ramsay was on drafting committees considering Simplification of Real Property Transfers, Cost andExpense of Civil Litigation and Supervision of Trustees for Charitable Purposes.

Commissioner Robert R. Wright, nowDean of the College of Law at theUniversity of Oklahoma but at the time aProfessor of Law at the University of Arkansas, during his three-year tenure wasa valuable member of the drafting committees on the Probate Code andEminent Domain.

Commissioner Deacon, presently amember of the Executive Committee.served on drafting committees for Release on Ball. Marriage and Divorce. andwas Chairman of the drafting committeeon the Eminent Domain Code.

Commissioner William S. Arnold wasa member of the drafting committee onJury Selection. and is now a member ofthe committees on Rules of Evidenceand Residential Condominium Sales.

Commissioner Carroll is now servingon the drafting committee of the Newsmen Privilege Act and Rules of Evidenceand has been serving as the Arkansasmember of the Legislative Committee.

Beginning in 1953 Marcus Halbrook.as the Director of the Arkansas Legislative Council. was elected by the Conference as an Associate Commissioner.He was joined in 1970 by Kern L Treat.the Research Director of the Council.

Commissioners Barrett and Edward LWright were for several years membersof the Executive Committee at the sametime. This was the only time in the history of the Conference that two Commissioners from the same state"werechosen to serve together on this important committee. Barrett is the only Commissioner from Arkansas to serve as

LENGTH OF SERVICE4 years7 years

20 years3 years

18 years5 years~ years21 years

6 years3 years

31 years29 years12 years4 years4 years6 years3 years7 years5 years4 years

on Uniform State Laws and made an a!'propriation for a contribution to the budget of the National Conference and forthe expenses of the Arkansas Commissioners. Prior to that time the Commissioners from Arkansas were named bythe Chief Executive relying upon his inherent appointive power. Commissioners from Arkansas serving prior to1945 did so at their own expense and thebudget of the Conference came fromcontributions by other states and by theAmerican Bar Association. Consequently, it was only in 1945 that this state began to assume its full responsibility as amember of the National Conference.

Twenty Arkansas lawyers and lawprofessors have represented this State inthe Conference from 1906 to the presenttime. They are listed below with the yearof appointment and the length of service.

The records of the Conference reflectsustained activity of the Arkansas Commissioners in the work of the Conference.

Commissioner W. H. Arnold was amember of at least five drafting committees considering such SUbjects as WarLegislation, Registration of Land Titles,Prohibition, Child Labor and InterstateCompacts. He also served on committees handling administrative problems ofthe Conference.

Commissioner Rose in addition to being a member of the Committee onScope and Program, served on draftingcommittees considering such SUbjectsas Labor Laws, Evidence, Doing Business by Foreign Corporations, Death inCommon Disasters, Vegetable SeedLaws, Civil Procedure. SimultaneousDeath and Administrative Procedure.

Commissioner Barrett, in addition toserving as Chairman of the ExecutiveCommittee. as Vice President and President. served on drafting committees

YEAR APPOINTED NAMF1906 John Fletcher, Little Rock1909 John Moore, Little Rock1909 Ashley Cockrill, Little Rock1913 Joseph Hill, Fort Smith1914 Frank Pace, Little Rock1914 Nathan B. Williams, Fayetteville1917 W. H. Arnold, Texarkana1919 George B. Rose. Little Rock1923 J. H. Hamiter, Little Rock1940 Frank Pace. Jr., Little Rock1943 Joe C. Barrett, Jonesboro1945 Robert A. Leflar, Fayetteville1945 Edward L. Wright, Little Rock1957 William Nash, Little Rock1962 Herbert H. McAdams, Jonesboro1962 Louis Ramsay, Jr,. Pine Bluff1967 Robert R. Wright, Fayetteville1967 John C. Deacon, Jonesboro1969 William S. Arnold, Crossett1970 Phillip Carroll, Little Rock

CONFERENCEContinued lrom page 23

form of notarial certificates and othersUbjects; to ascertain the best means toeffect an assimilation and uniformity inthe laws of the states, and especially toconsider whether it would be wise andpracticable for the State of New York toinvite other states of the Union to sendrepresentatives to a convention to draftuniform laws to be submitted tor the approval and adoption of the several states

'"

In August, 1889 the American BarAssociation adopted a resolution recommending the passage by each state andby Congress for the District of Columbiaand the territories of an act similar to thefirst section of the New York act. It is notknown whether the ABA resolution in1889 furnished the inspiration for theNew York act of 1890 but undoubtedlythe action of the. Association gave impetus to the formation and growth of theconference.

By 1891 five states, Pennsylvania,Michigan, Massachusetts, New Jerseyand Delaware, had followed the exampleof New York by creating Commissionson Uniform State Laws. The first meetingof the Conference was held at Saratoga,New York in August, 1892. It was calledthe "Conference of State Boards ofCommissioners for Promoting Univormity of Law in the United States."Seven states were represented at thatmeeting. By 1900 some 32 states hadnamed representatives to meet and workwith commissioners from other states.The name of the organization waschanged to National Conference ofCommissioners on Uniform State Laws.

Arkansas was first represented in theConference in 1906 but it was not until1945 that the Arkansas legislature formally created the Arkansas Commission


President of the NCCUSL and also holdsthe record of all Commissioners in theNational Conference by attending 30consecutive annual meetings of theConference.

The current appointive Commissioners from Arkansas are Jack Deaconof Jonesboro, William S. Arnold ofCrossett and Phillip Carroll of LittleRock. Joe Barrett of Jonesboro, by virtueof his 31 years of service, and Dr. RobertA. Leflar of Fayetteville, having servedas a Commissioner for 29 years, are bothLife Members of the Conference. Mr.Deacon serves as Chairman of the Arkansas Commission on Uniform StateLaws.

The function of the National Conference is to draft uniform and modelacts for enactment by the states, the District of Columbia and the Commonwealfh of Puerto Rico. The Conference undertakes such drafting onlywhen it is determined by the Conferencethat uniformity of the law among theseveral political jurisdictions of theUnited States is both feasible and practicable.

The NCCUSL meets annually for approximately 10 days to consider thedrafts of the proposed uniform acts onwhich the Commissioners have beenworking during the year. The drafts arethen considered line by line and fullydiscussed and debated by all of theCommissioners sitting as a Committeeof the Whole. All committee drafts receive study by the entire Conference forat least two years before final adoptionand many uniform acts were the workproduct of several years. Law professorsare sometimes employed as reporterdraftsmen on the larger acts which aremore time consuming and complex.Frequently, technical experts in the fieldunder study are assigned to the draftingcommittee as advisors and sit with theCommissioners in their frequent draftingsessions held between annual meetings.

The success in achieving uniformityhas been greatest in the field of commercial law. For example, every jurisdiction represented in the Conference enacted the Negotiable Instrument Act andonly two jurisdictions (Louisiana andPuerto Rico) have not yet adopted theUniform Commercial Code.3 The Reciprocal Enforcement of Support Act,frequently referred to as the "RunawayPapa Bill," was quickly enacted in alljurisdictions. The Uniform PartnershipAct was enacted in all but eight jurisdictions. The Veterans Guardianship Act,the Testamentary Addition to Trust Act,the Simplification of Fiduciary securityTransfer Act, the Limited PartnershipAct, the Declaratory Judgment Act, theCriminal Extradition Act, the Attendanceof Out-of-State Witness Act and the Anatomical Gift Act have all received wide

enactment. The Arkansas Securities Actwas drafted by and received final approval of the Conference while an Arkansas Commissioner was its President.

Arkansas has taken advantage of thework of the Commissioners by adoptingfifty-two uniform and model acts draftedby the Conference. Only sixteen stateshave a higher record of enactments thanthe State of Arkansas'

The membership of the National Conference is divided into seven Divisions.Commissioners are assigned to one ormore of these Divisions and a number ofArkansas Commissioners have servedas Division Chairmen, as well as chairmen of drafting committees.

The Executive Committee of the Conference is the administrative body duringthe interim between annual meetings. Itdetermines the SUbject matter forlegislative drafting, establishes policy,approves assignments of Commissioners to Section membership, selectschairmen and members of drafting committees and prepares the budget.

Probably the next most impcrtant committee of the Conference is the Committee on Scope and Program. An ArkansasCommissioner served on this Committeeas early as 1927 and another served onthis committee in the late Forties.

At the present time members of theNational Conference include Commissioners from each of the fifty states, fromthe District of Columbia and from theCommonwealth of Puerto Rico. PastPresidents of the Conference and Commissioners who have served in the Conference for twenty years and have beenactive and diligent in the performance oftheir duties are eligible for election to lifemembership in the Conference. Underthe Arkansas act adopted in 1945 conferring legislative authority upon the ChiefExecutive to appoint Commissioners,those elected to life membership remainmembers of the Arkansas Commission.

Most jurisdictions represented in theNational Conference have a minimum ofthree Commissioners although somehave more and a few have less. This iswithout regard to population. For example, California presently has nine Commissioners while New York has but two.Variations in the size of the membershipfrom the different jurisdictions is notsignificant in the promulgation of uniform acts since in voting for approval ofthe text, the vote is by states rather thanby headcount. Something like 70% ofthe Commissioners are active practitioners, 20% law teachers and 10%judges of state or federal courts. TheCommissioners, therefore, represent afair cross-section of the competence ofthe Bar of the United States and in considering drafts the Conference has thebenefit of able and imaginative law professors as well as the benefit of presid-

ing judges who can visualize how an actwill likely be applied by the Courts.

It will be observed that in addition tovery active participation in the NationalConference by Commissioners from Arkansas, this state has made extensiveuse of the work products of the Conference, yet this result has been withoutfanfare.

The selection of Commissioners fromArkansas has always been on a professional basis, political considerationshave been cast aside by the appointivepower. All Commissioners from Arkansas serve without compensation andare seldom reimbursed fully for their personal expenses. Commissioners fromArkansas have been outstanding lawyers and teachers whose motivation hasbeen the improvement of legalprocesses in the administration ofjustice.

*****

FOOTNOTES:1. Laws of 1890. Chapter 205. page 413.2. XIII Reports of American Bar Association.29-337.3. Louisiana found diffiCUlty in integrating theUCC into its Civil Code but enacted 3 of the 9Articles of the Code.4. 1963 Handbook of National Conference ofCommissioners on Uniform State Laws.pages 454-482.

Notice

All lawyers who are members of theMassachusetts Bar must register with theBoard of Bar Overseers by December 2.1974.

Lawyers who have actually retiredfrom the practice of law can register asinactive without paying the fee but thosepersons who are actively practicing laweven though out of state must register asactive members of the Massachuseus Barwith the Board.

For information contact:Board of Bar OverseersP.O. Box 797Boston. Massachusetts 02102


l\ecent JLtteratureEdited by Jas. Wm. Spears, Professor of Law. andDavid R. Hendrick, Jr., Associate Professor of Law.

University of Arkansas School of Law - Uttle Rock Division.

With this issue of The Arkansas Lawyer we introduce a new feature on recentliterature. It is our hope that these reports will help you. the practicing attorney. gain access to some legal research and writing which otherwisemight not come to your attention.

We have noticed that a number ofstate bar journals carry regular featureson recent developments. Unlike Arkansas, many jurisdictions no longer haveofficial reports. Bar publications in thosestates may perform a genuine service byreporting synopses of new decisionswell ahead of the National Reporter System's advance sheets. and by reportingcases from courts of limited jurisdictionwhich would otherwise go unreported.Some bar publications include reviewsof significant recent developments in thelaw. but we are not convinced that suchan enterprise would be worthwhile inThe Arkansa. Lawyer. Attorneys in Arkansas already have available a numberof weekly and monthly publicationswhich cover new law. while The Arkanas Lawyer is issued only quarterly.Further. the Arkansas Law Review is intended to provide in-depth treatment ofsignificant cases and statutes.

We suspect. however. that much professional and law review research andwriting of value to practitioners goes unread and unused. because attorneys areunaware of it. Therefore. we have accepted the assignment to sift through recently published legal periodicals and tocite in this column a continuing sampleof useful articles. notes, and comments.

Some Initial thought. -1) We will seek to publicize articles of

a practical nature. A great amount ofperiodical literature is written primarilyfor the use and benefit of teachers andstudents. Nonetheless, we have the impression that some attorneys avoid thequest for a gold mine. because thedigging can become very time-consuming.

2) By practical we mean somethingbroader than just "practice tips." Wemean commentaries which. within their


topics, analyze important cases. presenttheories and arguments for applicationto future cases, spot decisional trends,outline or summarize the law on an important point. etc. We will attempt to exclude literature of local interest only toother jurisdictions. articles of a highlyspeculative or philosophical cast orotherwise too remote for direct application, and the obviously worthless. Due tothe tremendous volume of legal publishing we cannot review each article, therefore. inclusion of an article is not arecommendation of its quality. but onlyits apparent value.

3) Hopefully, the timely pieces will be:Jalanced by those of more lastingaurhoritative value, although commentary. like primary authority, ever tends tobecome stale.

4) Commercial publications will begenerally avoided on the theory that theyare sufficiently publicized.

5) This effort is not a substitute forreference to the Index to Legal Periodicals. Space limitations will permit onlya fraction of valuable works to be cited.Also. books. pamphlets. and tapes maybe included in future editions.

6) Our citation form for new periodicals will not correspond to that of theIndex or of A Uniform System of Citation.Periodicals are issued as paperbackswith pagination cumulative; we will employ a citation form designed to facilitatefinding most issues from information ontheir spines or covers. Thus: volumenumber name (date) and pages inclusive of the article: for example. V17 N4Standard L. Ray. (July 1974) at pp. 697722.

7) The topic headings we employ aread hoc. They are not keyed to any otherindex or law book publishers system. Togain space we will not repeat citations.We trust the readers will scan the wholefeature.

8) From time to time we plan to include special features. such as that inthis edition on major law libraries in Arkansas.

Your suggestions are welcome. Let ushave your views on the value of this typeof information service.

BANKRUPTCY

With the downturn in economic activity we are witnessing an upturn inbusiness and personal financial failures.From a mass of new writing in this fieldwe include:

• "Executory Contracts in Bankruptcy:Part II" by Professor Vern Countryman ofthe Harvard Law School. This long article seems to be a definitive treatmentof the subject. V58 N4 Mlnneaota L. Rey.(March 1974) at pp. 479-587. Note: Part Iof this work appears in 57 Minn. L. Rev.439 (1973).'''A Bankruptcy Trustee's AvoidingPower. a Creditor's Attachment Lien.and the Alter Ego Doctrine" a studentnote. V48 N1 Southern California L. Rey.(Oct. 1974) at pp. 56-91. See especiallypp. 65.Jl6.•"The Future of Testimonial Immunity inBankruptcy Proceedings," a studentnote at V48 N1 Southern California L.Rey. (Oct. 1974) at pp. 92-120. Seeespecially pp. 92-109.• "The New Rules In Straight and Chapter XIII Bankruptcies" by Clive W. Bare.Bankruptcy Judge for the Eastern District of Tennessee. ThiS lengthy articlereviews the new rules and forms of practice effective late last year pursuant toChapters I-VII (sections 1-72) and Chapter XIII (sections 601.Jl6) of the Bankruptcy Act. II U. S. C. Sec. 1 et. seq.(1970). V41 N4 Tenn.....a L. Rey.(Spring 1974) at pp. 587-634.• "Bankruptcy or Not? Advice for Attorneys Who Counsel Consumer Debtors" by Associate Professor Douglas Q.

Wickham of the University of TennesseeCollege of Law. V41 N4 Tenn...ee L.Rey. (Spring 1974) at pp. 667-681.'''Bankruptcy and the Land Sales Contract: The Rights of the Vendee vis-a-visthe Vendor's Bankruptcy Trustee" byD. M. Lynn, a lawyer practicing inDallas. Texas. This article does containsome local law. but it includes valuableobservations for Arkansas practitioners.V5 N3 Texa. Tech L. Ray. (Spring 1974)at pp. 677-702. See especially pp. 687680 and 697-699.

I.

CONTRACTS·COMMERCIALLAW-INSURANCE

The American Bar Association Sec·tion of Corporation, Banking andBusiness Law has again made an annual review of the Uniform CommercialCode. Several authors contribute theirfindings in:

• V29 N4 The Business Lawyer (July19741 at pp. 1225-1314.

The President has exercised hisauthority under the 1973 amendments tothe Par Value Modification Act (P. L. 93110) and soon American citizens mayonce again buy. hold and trade gold as acommodity. Three authors in two recentarticles assess the prospects for using"gold clauses" in contracts:

"'Restoring 'Gold Clauses' in Contracts" by Rene' A. Wormser and DonaldR. Kemmerer. Mr. Wormser practiceslaw in New York City. while Or. Kemmerer teaches economics at the University of Illinois, Champaign. V60 Ameri·can B. Assn. J. (Aug. 1974) at pp. 942946.

'''Value Clauses - Forms of Contractual Protection Against Changes ofValue of Money" by E. Hirschberg. anIsraeli lawyer and Research Fellow atBar Sian University. V79 N9 CommercialL. J. (Sept. 1974) at pp. 350-354.

Five articles are printed in the most recent The Forum, the journal of the Section of Insurance, Negligence and Compensation now of the American BarAssociation. based on papers presentedat the annual meeting last summer inHonolulu. Hawaii. The articles exploredifferent aspects of a common fact situation involving the re-Ietting of construction subcontracts. They include:

· "Contract Changes and Extras Clauses. Their Validity and Binding Effect" byJohn Michael McCormick, who practices law in Los Angeles, California. Vl0N1 The Forum (Fall 1974) at pp. 5-27."'Contract Changes and Extras ClauseImproperly Applied - Contractor's Refusal to Perform" by John J. Petro. an attorney from Columbus, Ohio. VlO N1The Forum (Fall 1974) at pp. 29-34.

·"Deviations in Re-let Contract Do NotDischarge Surety Where Right ofChange Was Reserved" by Robert E.Leslie, a practitioner from San Francisco. California. V10 N1 The Forum(Fall 1974) at pp. 37-49.• "Deviations in Re·let Contract. Complete Discharge of Surety" by PenroseWolf. Assistant Secretary of the HertfordInsurance Group. V10 N1 The Forum(Fall 1974) at pp. 51-61.'''Deviations in Re-let Contract. Pro

Tanto Discharge of Surety to Extent Prejudicial" by Robert D. Carnaghan, attorney and manager in the Claim Department of the Fidelity and Deposit Company of Maryland. V10 N1 The Forum(Fall 1974) at pp. 63-72.

CRIMINAL LAW AND PROCEDUREJuvenile inmate and defendant

problems abound. A recent symposiumon Juveniles and the law sponsored bythe Section of Criminal Justice of theAmerican Bar Association yielded(among others) the following article:•"Trying a Juvenile Right to TreatmentSuit: Pointers and Pitfalls for Plaintiffs"by Patricia M. Wald and Lawrence H.Schwartz, bofh attorneys in the Districtof Columbia associated with the MentalHealth Law Project. V12 N1 The Amerl·can Criminal L. Rev. (Summer 1974) atpp. 125-163.

Like a majority of the other states, Arkansas has re-enacted the death penaltyfor certain crimes. A student noteexamines these step-children of FurmanY. Georgia in:• "Discretion and the Constitutionality ofthe New Death Penalty Statutes. V87 N8Harverd L. Rev. (June 1974) at pp, 16901719.

Some lingering questions posed byGideon Y. Wainwright are explored in:"'An Indigent's Right to the AffOrney ofHis Choice" by Peter W. Tague. V27 N1Stanford L. Rev. (Nov. 1974) at pp. 73-99.

Two items that could also be listed under TAXES conclude this heading:·"Income Tax Evasion: Dealing With theIRS Special Agents and Prosecutor" byHenry B. Rothblatt. noted criminal lawyer and former speaker at an ArkansasBar Association Program reprinted fromthe New Vork L. J. Rothblatt's comments appear at V10 N5 Criminal L. Bull.(June 1974) at pp. 437-442.·"The PriVilege Against Self-incrimination in Federal Tax Investigation" byGraham Stafford, a New Orleans lawyer.and T. Victor Jackson, a pre-hearing attorney for the Michigan Court of Appeals. V34 1~4 Loulslena L. Rev. (Summer 1974) at pp. 703-743.

EDUCATION-5CHOOLS ANDCOLLEGES-CONSTITUTIONALLAW-SEARCH AND SEIZURE

Disturbances in the schools continueto receive much publicity and to generate not a little litigation. Thus. we list thefollowing:.. "College Searches and Seizures: Students. Privacy. and the Fourth Amendment" by Richard Delgado, AssistantProfessor of Law at the Arizona StateUniversity. V26 N1 Hasllngs L. J. (September 1974) at pp. 57-88.· "Search and Seizure in the PublicSchools" by Kelly Frels. a Houston.

Texas practitioner. V11 N4 Houston L.Rev. (May 1974) at pp. 876-893.· "Common Law Rights for Private University Students: Beyond the State Action Principle" is a student note in V84N1 Vale L. J. (November 1974) at pp.120-150.

PROPERTV-TRUSTSAND ESTATES-TAXATION

· "Securities Regulation of Real EstateDevelopments - Financing Arrangements Considered as an Extension ofCredit" by Janet Hart, Assistant Director,Division of Supervision and Regulation,Board of Governors of the Federal Reserve System. The article is part of a securities symposium. V35 N2 Ohio StateL. J. (1974) at pp. 300-308.· "Current Developments in SummaryForeclosure" by James M. Pedowitz. atitle insurance executive and AdjunctProfessor. New York University LawSchool. V9 N3 Reel Property, Probateand Trust J. (Fall 1974) at pp. 421-432.

On September 2, President Fordsigned into law the Employees Retirement Security Act of 1974, a significantbody of new rules affecting pensionsand financial planning (effective dateJanuary 1, 1974). Transcripts of remarksat a symposium on this subject held lastJuly 11 and 12 in Washington. D. C..have recently been published in the Na·tlonal Tax Journal. The symposium wassponsored by the National Tax Association - Tax Institute of America and theFund for Public Policy Research. We listonly certain pages:· V27 N3 National Tex J. (September1974) at pp. 433-440 and pp. 445-465.Herein a discussion of Private EmployeePension Plans and Individual RetirementAccounts.

A series of papers were delivered atthe annual meeting of the Sections ofReal Property. Probate and Trust Law ofthe American Bar Association lastAugust in Honolulu, Hawaii. These commentaries have been updated to reflectthe enactment of the Employee's Retirement Security Act of 1974:• "Coverage and Vesting Requirements"by Philip S. Neal of the D. C. Bar. V9 N3Real Property, Probate and Trust J.(Fall 1974) at pp. 433-437. Mr. Neal discusses coverage, participation, vesting,and decrued benefits.· "Benefit Limitations and Individual Retirement Accounts:" by John A. Cardonof the D. C. Bar. V9 N3 Real Property,Probate and Trult J. (Fall 1974) at pp.438-445.· "H. R. 10 Plans and Lump Sum Distributions" by California attorney Norman B.Baker. V9 N3 Real Property, Probateand Trust J. (Fall 1974) at pp. 446-450.Mr. Baker includes Defined Benefit



LITERATUREContinued from Dage 27

Plans and the new tax-free Rollover con·cept.· "Fiduciary Responsibility and Invest·ment Limitations" by T. Neal McNamara.an attorney from San Francisco. California V9 N3 Real Property, Probate andTrust J. (Fall 1974) at pp. 451-456.• "Reporting of Requirements" are discussed by San Francisco executiveJames B. Zischke at V9 N3 RealProperty, Probate and Trust J. (Fall1974) at pp. 457-460.

Note: A question and answer sessiontranscript is included at pp. 464-470 ofthe Journal.

TORTS-PERSONAL INJURYCommon carriers are held to the

"highest degree of care" for the safely oftheir passengers and. according to a recent case, this standard includes a dutyto warn passengers before a flight ofanticipated weather disturbances notserious enough to cause flight cancellation. but serious enough to be of concern to passengers. Fleming Y. DeltaAIrlines, 359 F. Supp. 339 (S. D. N. Y.1973\ is the subject of the following student notes:• "Torts-Negligence-Air Carrier Held to aDuty to Warn Passengers Before Departure, Where Turbulent Weather Is Anticipated During the Flight." V42 N3Fordham l. Rev. (March 1974) at pp.698-706.... Airlines-Duty to Warn-CommonCarrier Have A Duty to Warn Passengersof Predicted Turbulence Prior to Flight."V5 N3 Texas Tech l. Rev. (Spring 1974)at pp. 817-823.

TRADE REGULATION-ANTITRUST... Antitrust-Standing and Passing On"by Jerry L. Beane. an attorney practicingin Dallas, Texas. V26 N3 Baylor L. Rev.(Summer 1974) at pp. 331-352."'Antitrust and Foreign Trade: Exemption for Export Associations: by John R.Allison, Assistant Professor of BusinessLaw. The University of Texas at Austin.V11 N5 Houston L. Rev. (July 1974) atpp. 1124-1150.• "Buyer Liability for Inducing or Receiving Discriminatory Prices. Terms. andPromotional Allowances: Caveat Emptor in the 1970's" a comment by Associate Professor Paul J. Galanti of theUniversity of Indiana Indianapolis LawSChool. V7 N6 Indiana L. Rev. (May1974) at pp. 962-1000.

The Directors of the three major lawlibraries in Arkansas have kindly furnished us with the following statementsof their rules and regulations. J- .........

28/January 1975/Arkansas lawyer

THE UNIVERSITY OF ARKANSAS LAW LIBRARYAND

THE PULASKI COUNTY LAW LIBRARY

400 West MarkhamLittle Rock, Arkansas 72201Phone: 501-375-8223

501-375-8224

Days of operation: Seven days a week. Closed on all University of Arkansasholidays (Schedule does not necessarily coincide with State or Federal Holidays).

Hours of operation: Monday-Friday 8:00 a.m. to 10:00 p.m. Saturday 8:30a.m. to 5:00 p.m. Sunday 2:00 p.m. to 10:00 p.m.

Number of volumes: Approximately 41 ,()(x)

Users: Library is maintained primarily for the use of Law School faculty andstudents and practicing attorneys in Pulaski County. Other lawyers and nonlawyers are welcome.

Materials may not be removed from the library except duplicate textbooksmay be checked out for 24 hours.

Research: No researching because of limited staff.

Reproducing: Photocopier available: ten cents per page charge,

Specialties: All legal periodicals indexed in the Index to Legal Periodicals.Back issues being purchased as reprints become available. Annotated statutes of all states: selected casetles by Candyne, All and IBP, Selected StateShephard's Citators: PLI Materials.

Professional Personnel: Ruth Brunson. Law Librarian; Lambert DeCora.Assistant Law Librarian.

ARKANSAS SUPREME COURT LIBRARY

1st Floor Justice Building (on Capitol grounds)Little Rock, Arkansas 72201Phone: 374-2512

Days of operation: Monday through Friday. Closed on all days that are legalstate holidays.

Hours of Operation: 8:00 a.m. until 4:30 p.m.

Number of Volumes: Approximately 65,000

Users: The library is maintained primarily for the use of the Supreme Courtbut anyone (both attorneys and non-attorneys) is welcome to come in and usethe library. No books can be taken from the library. If assistance is needed thestaff will be glad to help in any way they can.

Research: No researching because of limited staff.

Reproducing: Xeroxing machine operated by staH. len cents per pagecharge.

Specialties: Session acts and annotated statues of all states. and most of thestate reports from other states. Many English reports.

Professional Personnel: Ruth Lindsey. Law Librarian; Bill Somers, AssistantLibrarian.

By J. Steven ClarkDirector of Admissions

Fayetteville, Arkansas 72701Tel. 575-5604

LAW LIBRARY

UNIVERSITY OF ARKANSAS SCHOOL OF LAW

Law Student Research Service:A research pool sponsored by the Student Bar Association is available to all

members of the bar. Write Mr. Paul Young at the Law School.

Professional Personnel:George E. Skinner. Law LibrarianMs. Maurice Pope. Asst. Law LibrarianMs. Sara Fleming. Reference and Circulation Librarian

Phi Alpha Delta: Don Ries of Fayetteville. Vice·Justice of PAD; Leon Jamisonof Monticello. Clerk PAD: Jim Greshamof Fordyce. Marshall PAD: and JenniferPrice of Fayetteville. Placement Coordinator PAD. The Delta Theta Phi atficers are George Bailey of Atkins. Dean;Fred Hart of Little Rock. Vice Dean.

January 25th Mssrs. Walter Niblock,Phillip Lyon and Robert Branch are going to present a seminar on theeconomics of law practice at the Fayetteville Division.

For the third straight year theWashington County Bar Associationbested the Law School All-Stars in touchfootball at Razorback Stadium. J._~

Collection and ItI Use:The collection of 80,000 volumes is primarily available for students and

faCUlty of the law schooL but is also available for other University students andfaculty and members of the bar needing use of its service. Loan privileges ofcertain materials are available. Copying service is available for ten cents perpage plus postage.

The library maintains a complete collection of all state reports and statutesas well as those for the BritiSh Commonwealth. 550 titles of legal periodicalsare among the holdings. An extensive collection of treatises. administrative re·ports. looseleaf services. all Shephard's Citations. as well as comprehensivecollections of tax laws. labor law. and International law are available.

Hours:Monday-Thursday. .. . 8:00 a.m.-12:00 MidnightFridays '" .. ..8:00 a.m.-l1:00 p.m.Saturdays.... .. 9:00 a.m.- 5:00 p.m.Sundays 1:00 p.m.-ll:00 p.m.The Law Library is closed on University holidays and open only from 8:00

a.m.-5:00 p.m. on Monday-Friday during vacation periods.

Editor: and Paul Young, Jr.. of Pine Bluff.Business Manager.

Mr. Jack King. a second year law student. has given a scholarship in thename of John Cravens. deceased. ofOzark to the Law School Foundation.These scholarship funds are to be usedfor general student scholarships.

Professor Morton Gltelman is workingon the publication of a new edition of

the text. Case. and Materials on LandUse, together with Dean Robert Wrightof Oklahoma and Professor Jacob Beuscher.

Newly elected officers of the lawschool's professional fraternities areCarter Hardage of Little Rock, Justice of

Dr. Robert Lellar's new book Appellate Judicial Oplnlona has been pUblished by West Publishing Company. Theforward for the book was written by theHonorable Warren E. Burger, ChiefJustice of the Supreme Court of theUnited States. The text is designed Primarily for the use of newly named appellate Judges and will be used as the textbook In the seminars for appellateJudges.

Additionally, Dr. Lellar published anarticle entitled "Appellate Judicial Innovation" in the Oklahoma Law Review.In October Professor Leflar conducted atwo-day short course on "Opinion Writing" for the five newly elected justices ofthe Supreme Court of Tennessee at Vanderbilt University.

Professor William W. Lancaster contributed a chapter on "Federal Taxesand the Insurance Agent and Broker" tothe newly published book, Relponslbilltles 0' Insurance Agents andBrokers, (Matthew Bender. 1974) byJudge Bertram Harnett of the New YorkState Supreme Court.

Dean Wylie Davis attended a multistate bar examination committee meetIng In Chicago, October 25 and 26. Thecommittee prepared contracts and questions for the 1975 multi-state bar exam.

New officers for the Student BarAssociation were elected in December.The officers are as follows: Tom Wynneof Fordyce. President Wayne Davis ofPleasant Grove. Vice President; DanLeeman of Gandonville. Missouri. Treasurer: Peggy O'Neal of Fort Smith,Secretary; and David Switzer of Peoria.Illinois. FaCUlty representative.

Professor George Skinner. member ofan ABA inspection team, inspected thelaw library of Southern University LawSchool in Baton Rouge. November 21and 22.

New elected officers for the law reviewinclude what is believed to be the firstwoman editor-in-chief. Ms. Susan Webber of Texarkana. Other officers areMark Grobmyer of Little Rock. ManagingEditor: Phy'lIis Johnson of Fayetteville,Articles Editor: Wayne Ball of San Antonio, Texas, Comments Editor; WalterPupko of New York, New York, Citations


-Walter W. Davidson

An introduction toSecurities Law and Practice

Part II

This is only an overview of a field oflaw fraught with hidden historical andtechnical developments related to the remedial purposes of securities laws. Thereader accordingly should refer to theprecautionary comments noted in Part Iof this article.

Anti-Fraud and Non-DisclosureProvisions under State and Federalsecurities Laws -

The Securities Act of 1933 (15 U.S.GASections 77a-77aa (1970) ) ("1933 Act").the Securities Exchange Act of 1934 (15U.S.G.A. Sections 78a-78hh-1 (1970))("1934 Act"), other Federal securities en·actments, the Arkansas Securities Act(Ark. Stat. Ann. Sections 67-1235 - 671263 (1973 Supp.) ) ("Ark. Sec. Act") andrules and regulations adopted undereach of these enactments prohibit awide variety of misconduct of personsengaged in securities activities and ingeneral broadly require registration orexemption and prohibit direct and indirect conduct of any person in connec·tion with the offer, sale or purchase ofany security which operates as a fraudor deceit upon another person. Further,such acts and rules adopted pursuantthereto make it unlawful in connectionwith the purchase or sale of a securityfor a person to make any untrue state·ment of a material fact or to omit to statea material fact necessary in order tomake the statements made in the light ofthe circumstances under which theywere made. not misleading. See. 15U.S.G.A. Section 77g (1970) (1933 ActSection 17(a) ); SEG Rule 100.5 (2 Fed.Sec. Law. Rep. Section 26.744) adoptedpursuant to 15 U.S.G.A. Section 78j(1970) (1934 Act Section 10); Ark. Stat.Ann. Section 67-1235 (1966 RepL) (all ofwhich have similar wording): and otherstatutory provisions cited hereinafter.

It should be noted that although theterms "fraud" and "deceit" are usedthroughout these enactments. thereterms are not limited by common law

JO/January 1975/Arkansas Lawyer

(Edltoria' Note: This is the second andfinal part of an article, the first part ofwhich appeared in the October, 1974issue of The Arkansas Lawyer which included a discussion regarding situationsin which securities questions normally

concepts. Ark. Stat. Ann. Section 671247(d) (1966 RepL). Selig Y. Novak, 506S.w.2d 825 (Arl<. 1974). Myzel Y. Flalds,386 F.2d 718 (8th Gir. 1967) and AffiliatedUta CItizens Y. U.S., 406 U.S. 128 (1972).

There are several punitive sanctionsfor violations of these laws including,among others: loss of license orprivilege to engage in regulatedsecurities activities. injunctive sanctions, criminal prosecution and civilliability.

Conduct Giving Rise To CivilLiabilities

The violation of various securitieslaws and rules and regulations gives riseto either specified or Implied civilliabilities. In most situations. however. claimsare found on the failure of the allegedwrongdoer to register the security or tomake proper disclosure in connectionwith a securities transaction.

There are a number of subtle differences in the various federal laws andrules which may tend to make one or theother more appropriate under particularsituations. These differences are discussed in 1 A. Bromberg, SecuritiesLaw: Fraud, Section 2.1 (1973) (herein·after citied as Bromberg). The mostsignificant difference between theselaws and rules is the applicability of the1933 Act only to the offer or sale of asecurity.

Insofar as Arkansas law. atl civilliabilities arising under the Ark. Sec. Actare set forth in Ark. Stat. Ann. Section67-1256 (1966 RepL) which is essentiallya reproduction of the Uniform SecuritiesAct in that regard. To date the ArkansasSupreme Court has not considered thequestion of an implied remedy for viola·tion of any provision of the Ark. Sec. Actnot set forth in Section 67-1256.

Failure To Register The Securily -15U.S.CA Section 77e (1) (1970) (1933 ActSection 12(1 ) provides:

"Any person who - (1) offers or sells

arise, federal securities acts, the generalregulatory approach of the ArkansasSecurities Act end Rules of the StateSecurities Commissioner, certain keydefinitions, the expanding scope ofsecurities laws to reorganizations.)

a security in violation of section 77e ofthis title (Section 5 of the 1933 Act whichrequires registration of the security withthe SEC).... shall be liable to the per·son purchasing such security from him.who may sue either at law or in equity inany court of competent jurisdiction. torecover the consideration paid for suchsecurity with interest thereon, less theamount of any income received thereon,upon the tender of such security. or fordamages if he no longer owns thesecurity. "

Similarity. Ark. Slat. Ann. Section 671256(a) (1966 RepL) provides;

"Any person whol - (1) offers or sellsa security in violation of Section ... , 7(Section 67-1241 which prohibits any offer or sale without registration or exemption therefrom)..... is liable to the person buying the security from him, whomay sue either at law or In equity to recover the consideration paid for thesecurity, together with interest at six percent (6%) per year from the date ofpayment. costs. and reasonable attorneys' fees .. .,

A suit based upon failure to registerthe security need not show a causal relation between the violation and the pur-

Walter W. Davidson

chase. Generally a causal relation couldnot be shown in such cases except byimplication, Le.. if the security had beenregistered the investor safeguards inherent in the registration process wouldhave been brought to bear and the salethus avoided. The purchaser's case inchief in such situation merely requiresproof (i) of the purchase of the securityfrom the defendant as an offeror or sellerand (ii) lack of registration of the se·curity. See III L. Loaa, SecuritiesRegulelion Ch. 11 B. 3. page 1643 andCh. l1C.l.(b), page 1692 (Second Ed.1961) (hereinafter cited as Loss) and VIL. Los., Securities Regulation page3828 (Supp. To Second Ed. 1969).

The seller (or "controlling person" orother specified persons who may beheld liable under these statutes, as discussed hereinafter) then has the burdenof proving any exemption from registra·tion which may be applicable. See Ark.Stal. Ann. Section 67-1248 (d) (1966Rep!.); Lively v. Hirschfield, 440 F.2d 631(10th Cir. 1971); and I Loaa, Ch. 3D.4.page 712 and cases cited in notes 21and 22 thereat. Allhough courts havebeen reluctant to do so, certain defensessuch as waiver, estoppel, laches and inpari delicto have sometimes been successfully asserted in defense of actionsbased upon such securities violations.See Tucker v. McDell'a, Inc., 359 S.W.2d597, (Tenn. 1962); Streley v. UniversalUranium and Milling Corp., 289 F.2d 370(9th Cir. 1961); and Blanka v. AmericanSouthern Truat Co., 9 S.w.2d 310 (Ark.1928). See, however Ark. Stat. Ann. Section 67-1256(g) (1966 Rep!.) whichprovides: "Any condition, stipulation, orprovision binding any person acquiringany security to waive compliance withany provision of this act or any rule or order hereunder is void."

Misstatements or Omissions inRegistration Statementa - 15 U.S.C.A.Section 77k (1970) (1933 Act Section11 (a) ) creates specific liabilities as todesignated persons in the event theregistration statement (filed with theSEC) contained an untrue statement of amaterial fact or omitted to state amaterial fact required to be stated therinor necessary to make the statementsmade not misleading, at the time suchpart became effective. However, theSection contains a number of defenseswhich are somewhat limiting and confusing compared to other liability sections of federal secruities law which itoverlaps. Consequently, this Section hasbeen used as a basis for recovery only ina few cases. III Loaa Ch. l1C.l. (e), page1721. Fortunately, the Uniform SecuritiesAct omits any provision comparable to1933 Act Section 11 (a) and accordinglythe Ark~ Sec. Act avoids the overlap ambiguities.

Misstatements or Omisslona In the

Offer or Sale of a Security - One suchoverlap occurs with 15 U.S.C.A. Section771(2) (1933 Act Section 12(2)) whichdeals with the general offer or sate of asecurity rather than the registrationstatement in particular. The language ofthis Section, which applies when interstate commerce facilities have beenutilized, is almost identical to Ark. Stat.Ann. Section 67-1256(a) (2). which applies to all sales of securities in the Stateof Arkansas. The Arkansas statute provides:

"Any person who - (2) offers or sellsa security by means of any untrue statement of a material fact or any omissionto state a material fact necessary in order to make the statements made, in thelight of circumstances under which theyare made, not misleading (the buyer notknowing of the untruth or omission), andwho does not sustain the burden of proofthat he did not know, and in the exerciseof reasonable care could not haveknown, of the untruth or omission, isliable to the person buying the securityfrom him, "

The drafters of the Uniform SecuritiesAct. then cognizant that a number ofcourts had implied remedies for violations of securities laws (inclUding SECRule 10b-5) and aware of the overlapconfusion related to 1933 Act Section11(a). sought to clearly specify the situations where civil liabilities would arise.Loss and Cowell, Blue Sky Law Section410. pages 390-392 (1958). See However,Lane v. Midwest Bancshares Corp., 337F. Supp. 1200 (E. D.. Ark. 1972).

Under Ark. Stal. Ann. Section 671256(a) (2) and 1933 Act Section 12(2) abuyer seeking recovery for the purchaseof a security is required to show that theoHeror or seller effected the transactionby means (i) of an untrue statement of amaterial fact or an omission to state amaterial fact necessary in order to makethe statements made, in the light of circumstances under which they are made,not misleading. and (iil that he did notknow of the untruth or omission. Proof ofreliance and other elements nowrequired as to untrue statements in SECRule 10b-5 claims were not intended tobe required of the buyer in such actions.See III Loaa, Ch. l1B.3.(i) page 1645footnote 83 and Ch. ltC.l(c) pages1699-1705.

The Seller (or "controlling person" orother specified persons who may beheld liable under these statutes mayavoid liability under these laws by meeting the burden of proof that he did notknow. and in the exercise of reasonablecare could not have known, of the untruth or omission; or by proof of estoppel, waiver. laches, ratification or in paridelicto to the extent that the court considers such defenses to be properlyassertable in the particular case. See III

Loas, Ch. 11 B.8. (b) page 1676; Lane v.Midwest Bancshares Corp., supraj andthe prior citations under "Conduct Giving Rise to Civil Liabilities - Failure toRegister the Security" above.

15 U.S.C.A. Section 770 (1970) (1933Act Section 15) and Ark. Stal. Ann. Section 67-1256(b) (1966 Rep!.) both providefor joint and several liability of controlling persons when the seller is liableunless the controlling persons can sustain the burden of showing lack of knowledge or reasonable grounds for notknowing such facts. In addition to thebroad term "controlling persons," Ark.Stat. Ann. Section 67-1256(b) also specifies that "every partner, officer, or director of such seller, every person occupying a similar status or performing similarfunctions, every employee of such aseller who materially aids in the sale"and certain other persons are also liableunless they sustain such burden of proofof lack of knOWledge.

SEC Rule 10b-S, 1933 Act Section17(a) and other Implied Llabllitiea Unlike the 1933 Act, no express civilremedy was set forth in the 1934 Act.However, it is now clearly establishedthat a right of recovery and injunctiverelief properly may be granted againstviolators of certain SEC ru les adoptedpursuant to the 1934 Act. Remedies areafforded to those persons designed to beprotected by such rules. There areliterally tons of accumulated writingswith respect to various facets of impliedliabilities arising under Federal and statesecurities laws. Professor Alan R. Bromberg's three volume loose leaf publication entitled Securities Lawj Fraud-SECRule 10b-S and discussions included atIII Loas, Ch. 11 C.7 page 1757 as supplemented in 1969 will provide the readerwith initial source materials for research.

The law in this field is still developingand varies in material respects in the different Federal circuits. The SEC did notadopt Rule 10b-5 until 1942 and thenonly in a very casual way. See Conlerence on Codillcatlon 01 the FederalSecurities Laws, 22 Bus. Law. 793, 922(1967). Historically. although 1933 ActSection 17(a). supra (Which applies onlyto offers and sales) reads substantiallythe same as SEC Rule 10b-5, it was notconstrued so as to imply any civil liability until after the first recognition of a10b-5 implied liability in Kardon v. National Gypsum Co., 69 F. Supp. 512 (E.D.Pa. 1946) and is still the subject of dispute in that regard. (This is relatively insignificant except for the fact that the1933 Act affords concurrent state andFederal jurisdiction while the 1934 Actvests exclusive jurisdiction in Federalcourts.) Although the U.S. SupremeCourt recognized the principle of implied liability in J. I. Case CO. Y. Borakl



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SECURITIESConUnt*t from ptlgtl 31

377 U.S. 426 (1964) (regarding anti-fraudproxy rules adopted pursuant to the 1934Act as amended) its first clear sanctionof implied liabilities under SEC Rule 10t>5 came in the 1972 case of Afflll.ted Ut.CItizen. Y. U.S., .upr•.

SEC Rule 10t>-5 reads'"Employment of Manipulative and

Deceptive DevicesIt shall be unlawful for any person,

directly or indirectly, by the use of anymeans or instrumentality or interstatecommerce. or of the mails. or of anyfacility of any national securities ex-

321January 1975/Arkansas Lawyer

change.(1) to employ any device. scheme or

artifice to defraud,(2) to make any untrue statement of a

material fact or to omit to state a materialfact necessary in order to make thestatements made. in the light of the circumsiances under which they weremade, not misleading or

{3} to engage in any act, practice orcourse of business which operates orwould operate as a fraud or deceit uponany person,

in connection with the purchase orsale of any security."

For the most part. civil liabilities havearisen out of clause (2) or Rule 10t>-5 and

have been limited by the "purchaserseller" rule adopted in Birnbaum v.N.wport Steel. Corp., 193 F.2d 461 (2dCir. 1952) except in situations where ithas been fairly clearly determined thatthe acts or course of conduct of thewrongdoer fell within the intended scopeof Rule 1Ot>-5. SEC v. C.plt•• G.lneR•••• rch Bur••u, 375 U.S 180 (1963);Vln. Y. Ben.flel.' Fln.nce Co., 374 F.2d627 (2d Cir. 1967); Supl. 01 In.ur.nc. Y.

B.nk... Lif... C••u.1ty Co., 404 U.S.6,12(1971); and Afflll.ted Ut. Cltlz.n. Y.

U.S.• supra.In the Eighth Circuit, (under Myz.' Y.

FI.ld., .upr. City N.Uon.' B.nk Y. V.nd.rboom, 422 F.2d 221 (8th Cir. 1970)and V.ncI.rboom Y. S.xton, 422 F.2d1233 (8th Cir. 1970) ) the traditional purchaser-seiler 10b-5 claim requires the injured party to sustain a burden of proofthat:

(i) there was a use of means or instrumentalities of interstate commerceor of the mails (an intrastate phone callis sufficient);

(ii) securities were bought from or soldto him;

(ii) the wrongdoer panicipated in thetransaction. aided, abetted or conspiredin connection therewith;

(ivl an untrue statement or omission(which need not meet common law fraudrequirements of affirmative mis·representations) was made to him;

(v) such untrue statement or omissionwas material (Le., encompassed factswhich in reasonable or Objective con·templation might affect the value of thesecurities involved):

(vi) scienter existed. only in the sensethat the wrongdoer knew or with theexercise of reasonable care should haveknown of the untruth or om ission;

(vii) he relied upon the untruestatement claimed as the baSIS for relief(and possibly. of non-disclosure isclaimed. evidence that he would haveacted differently if the undisclosed factsclaimed had been known by him); and

(viii) other features of the "in connection with" test described in City N.Uon.'Bank Y. Vanderboom. supra. are met(which in essence is a determination ofthe materiality and reliance featuresdescribed above and a predeterminationthat a reasonable investor in the exercise of due care would have been entitled to have relied upon the misrepresentations which were made to himby the wrongdoer or would have beenentitled to be told of the omitted items ofinformation by the wrongdoer in the lightof the facts existing at such time).

This last requirement has added thenecessity in some Federal ciICuits that incertain cases the injured party must alsoshow that "due or reasonable diligence"was exercised by him under the circumstances in making his decision to bUy or

sell. See Clement A. Evans & CO.tlnc. v.McAlpine, 434 F.2d 100 (5th Cir. 1970);and Jackoon Y. Oppenhelm, CCH Fed.Sec. L. Rep. Section 93.008 (S. D. N.Y.1971). The extent to which an injuredparty is reqUired to show due diligencemust obviously be balanced in eachcase against the fundamental purpose ofthe 1934 Act to substitute a philosophy offull disclosure for a philosophy of caveatemptor as discussed in the U.SSupreme Court decisions noted hereinbefore.

Earlier comments regarding possibledefenses to securities suits are essentially applicable In a 10b-S action. See 3Bromberg, Section 115 (1973).

While these vanous decisions presenta confusing picture of how to categorically determine whether 10b-S liabilitywill attach, it should be borne in mindthat courts considering these cases aredeveloping principles based upon alegislative Intent to elevate the standardsof conduct in securities matters and invariable Will continue to mold an Impliedremedy consistent with the purposes ofthe law and the equities of each case.The Ninth Circuit has candidlyrecognized this and in an excellentanalytical opinion adopted a so-called"flexible standard" in 10b-S cases whichstresses that the duty of disclosure isthat which the circumstances require.While Y. Abrams, 495 F.2d 724 (9th Cir.1974).

Since the Ark. Sec. Act like the 1933Act contains no specific civil remedy ina plaintiff-seller situation and the language 01 Ark. Stal. Ann. Section 67-1235(1966 Repl.) tracks SEC Rule 10b-5 virtually verbatim, it is possible that ourcourts might Imply a remedy in anappropnate situation See III Loss, Ch.116.6. and the Supplement thereto.

Need lor Specialization In TheRegistration Process -

As previously noted, registration maybe required under the 1933 Act, the 1934Act and/or various Blue Sky laws.Registration under any of these laws isat best expensive, technical and timeconsuming. In addition, various potentialliabilities attach as a result of theregistration process which dictates awatchword of enlightened candor for theattorneys, accountants, issuer and allother persons involved in the process.Experience can be critical in this specialized field, particularily with respect tonew offerings of securities.

Registration Under The 1933 Act To effect a registration under the 1933Act. a registration statement. inclUding awritten prospectus, must be filed withand cleared by the SEC pursuant toguidelines (somewhat deceptively calledforms - the most common being Form

5-1) promulgated by the SEC. Detailedinformation about all affairs of the issuerand the nature and propriety of the investment must be Vividly spelled out.

Except for newly formed entities, extensive finanCial statements prepared byIndependent certified public accountants In accordance with generallyaccepted accounting principles are reqUired, which generally must include acurrent balance sheet, five years (threeyears' audited) operating statements,surplus analysis statements, schedules,certam related reports, and a "cleanopinion" i.e., Without any seriousqualification. This is often impossible forcompanies that have not kept adequatefinancial information or followed independent audit procedures in the past.

Timing Invariably becomes critical inan offering and speedy printing of thevoluminous detailed informatIOn ISessential if any realistic schedule is tobe met. If the offering IS to be handled byan underwriter, either on a "firm underwriting" or a "best efforts" basis, salesefforts must be dovetailed to a sellingschedule consistent with marketingconditions. Much preliminary planning isneeded and operations of the issuer areseverely curtailed during the "prereg istration," "in-reg istration" and"post-registration" periods. A time schedule of four to six months to complete aregistration is not unusual and combined legal, accounting and printing expenses in the $50,000 range are to be expected. Underwriter discounts of 8% ofthe offering price and upwards will alsobe taxed as part of the outlay necessaryto obtain funds through a registered offering.

1934 Act Reglo1ratlons - Since aregistration under the 1934 Act relates tosecurities already outstanding, timing isgenerally less critical for such filings.When an offering is effected under the1933 Act. the prospectus used thereinserves as the basis of the initial registration statement under the 1934 Act.

Conversely, when an offering of anissuer, the securities of which areregistered under the 1934 Act. is madepursuant to a merger or otherreorganization the proxy statementscleared by the SEC usually provide mostof the material needed to complete a1933 Act registration (as discussed inPart I hereof). SEC theory under bothacts is meanmgful disclosure to securityholders and the investing public. Recentchanges in SEC rules have broughtthese enactments closer in this respect.

Reglo1ratlon Under Ark. Sec. Act - Ifa registration is effected under the 1933Act, a registration of the same securitiesby coordination may be completed under Arkansas law without a great deal ofdifficulty - provided the offering meetsthe "fair, just and equitable" standards

applied by the Arkansas Securities Commissioner ("Securities Commissioner").A public offering to be made solely in Arkansas on an intrastate basis (in relianceupon an exemption pursuant to SECRule 147 discussed hereinafter) is somewhat cheaper and quicker. However, it isstill expensive and time consuming;invokes a high fisk of violation of federallaws; requires a bond; generally eliminates effectuation through an experienced broker-dealer (thereby necessitating the Issuer to qualify in that regard);and limits post-offering marketability ofthe securities. The procedure was widelyused in Arkansas during the SO's and60's but is seldom used today bysecurities counsel

Exemptions From Registration

Ark. Sec. Act Exemptions - Underthe Ark. Sec. Act a security may be offered or sold without registration if thesecurity itself is exempt or if the transaction is exempt.

Ark. Stat. Ann. Section 67-1248(a) setsforth all "securities exemptions" andSub-section (b) thereof all "transactionexemptions. "

Certain securities, because of their nature, are exempt from registrationgenerally on the leg islative theory thatthey fall outside the scope of desiredregulation (e.g., non-profit organizations) or are issued by entities otherwiseregulated to an extent that registration isnot deemed to be necessary (e.g.,banks, savings and loan associations,etc.). Before concluding that anysecurity is exempt, the specific statutorylanguage should be critically reviewedand the administrative and judicialhistory ascertained. It should also benoted that: "Before a security may beissued as an exempted security under(67-1248(a) (3). (4). (5). (6). (8) or (10») aproof of exemption must be filed with the(Securities) Commissioner .. :' Ark.Stat. Ann. Section 67-1248(e) (1973Supp.).

Effective September 31. 1974, theSecurities Commissioner adopted a newRule 8.1. which, in effect. permits apublic offering up to a maximum of$200.000 by use of an abbreviatedregistration process authorized by Ark.Stat. Ann. Section 67-1248(a) (11) (1973Supp.). Use of this procedure will besubstantially limited by the terms of Rule8.1., however.

A transaction exemption is afforded ina number of situations where registration is either deemed to be too burdensome for the protection afforded (e.g ..isolated non-issuer transaction) or unnecessary because other protection insuch situations is regarded as sufficient(e.g., an offer or sale to a bank, saving



l

SECURITIESContinued hom page 33

institution. insurance company. etc.). Inplanning for the offer or sale of a securityby an issuer or control person, however.the most common transaction exemptions utilized will be Section 67-1248(b)(9) (the 25 offeree private placement);(10) (pre-organization offers and sales.without collection of any funds); and (11)(transactions pursuant to an offer to allsecurity holders). Each of these requiresprior filings of proof of exemption underSection 67-1248(0 and compliance withapplicable provisions of Rule 8 of theSecurities Commissioner.

Exemption under one state's law is noassurance of exemption under Federallaw or the Blue Sky laws of other states.

1933 Act Ex.mptlon. - Federalexemptive provisions under the 1933 Actalso follow a "security" - "transaction"exemption distinction. 15 U.S.C.A. Sections 77c and 77d (1970). However, withrespect to "exempted transactions," federal law sets forth an exemptive schemebroadly keyed to "intrastate offerings,""transactions by any person other thanan issuer, underwriter or dealer," and"transactions by an issuer not involvingany public offering." See 15 U.S.C.A.Sections 77c(a) (2), 77d(1) and 77d(2)(1970). An understanding of each ofthese exemptions requires careful review of their historical development bythe SEC and in the courts and an appreciation of the meaning of terms suchas "comes to rest," "offering," "integration," "underwriter" and "investment in·tent." Years of complicated tightening ofsuch exemptions has left securitiescounsel with an awareness of theprecarious nature of reliance on suchexemptions except in very limited situations See for example, Hili York Corp. Y.

Am. International Franchise, Inc., 448F.2d 680 (5th Cir. 1971) and SEC •. Contln.nt.1 Tobacco Co., 463 F.2d 137 (5thCir. 1972) whereby the so-called "privateplacement" exemption was severelynarrowed. The SEC came to recognizethe need for clearer guidelines and veryrecently issued new rules which set forthobjective standards 50 that reliableexemptions from registration mightprudently be predicated within theframework and purpose of the federalsecurities laws. These SEC rules.without elaboration, are:

a. Rul. 144 - Tron.'". ot R..trlcled5ecurltl... See SEC Securities ActRelease No. 5223, CCH Fed. Sec. L. Rep.section 78,487 (Jan. 11, 1972) and SECsecurities Act Release No. 5306, CCHFed. Sec. L. Rep. Section 2705F (Sept.26, 1972).

b. Rule 145 - "Reel...llleotlon. 01S.eurltl••, M.rg..., Con.olld.tlon.and Acquilltion. 01 A...,.... See SEC


Securities Act Release No. 5316, CCHFed. Sec. L. Rep. Section 79,015 (Jan. 1,19731.

C. Rul. 146 - "Prl••t. Oll.rlngExemption." See SEC Securities ActRelease No. 5487, CCH Fed. Sec. L. Rep.section 2710 (Ap. 23, 1974).

d. Rule 147 - "Introotot. Oll.rlngEx.mptlon." See SEC securities ActRelease No. 5450. CCH Fed. sec. L. Rep.section 79,617 (Jan. 7, 1974).

Careful review and compliance withsuch rules in applicable situationsshould afford counsel with adequateguidelines to protect Clients' interests.although the rules still require more thana casual understanding of securitieslaws and regulations and will take onclearer meaning as the SEC continuesto review specific situations and rendersadditional interpretive releases.

There are a number of other limitedexemptions from registration under thefederal securities laws. In addition a 50called Regulation A "small offeringexemption" exists for an offering up to$500,000 which is, in effect, a short formregistration process handled through theregional offices of the SEC instead of theWashington Office of the Division ofCorporate Finance.

Perfecting C.rtaln Exemption.From Reglotratlon Under The Arkan.eo Securltle. Act -

An attorney retained to assist in matters which involve an offer or sale ofsecurities should recognize that hisclient will very likely be called upon andneed to be able to prove full disclosureand registration or exemption. Theclient. despite protestation about timeand fees when the transaction is impending, will invariably claim relianceupon the advice and services of hislawyer when questions later arise fromthe SEC, Securities Commissioner.reviewing attorneys in acquisitionsituations. civil suits. criminal assertionsor otherwise. Unlike some areas of practice which may allow counsel to confinehis responsibilities, a securities practi·tioner will quickly find himself a "little bitpregnant" if he has allowed his Client tocut too many corners.

A specific statutory exemption shouldalways be pinpointed prior to expressingany opinion about the offer or saleunless registration is contemplated.Conformity with applicable rules andregUlations of the Securities Commissioner should then be confirmed. Ifthe Seller is not the issuer or a controlperson of the issuer, the "isolatednonissuer transaction" exemption willgenerally be available. See Ark, St.t,Ann. Section 67-1248(b) (1) (1973 Sup~.).

If however, the seller is the issuer, acontrol person of the issuer, has

acquired the securities from an issuerunder circumstances which imply thathe intended at that time to resell thesecurities or plans to offer a substantialblock of unregistered stock in successive transactions. the exemptionfrom registration most likely to be reliedupon will be the so-called "25 offereeprivate placement" exemption underArk, Sto" Ann, Section 67-1248(b) (9)(1973 Supp.) and Ark. Sec. Rule 8.K.(9/31/'74). This exemption, like its counter part under Federal law (SEC Rule 146,supra), is keyed to limited offers to asmall group of related investors whoacquire the securities with "investmentintent" (Le.. with no present intent toresell or make a public offering thereof)who have access to information whichwould be available through the registration process and to abbreviated disclosure sufficient to assure that adequate information is made available topermit the purchaser to "fend for himself." See SEC '. Roillon Purina, 346U.S. 119 (1953). Compensation for seiling the securities is precluded withoutthe consent of the Securities Commissioner under Section 67-1248(b) (9).

The perfection of the private placement exemption thus begins with counsel's critical determination, analysis anddocumentation of facts about the issuer,the security, and the seller which an in·telligent investor with hindsight mightlater decide was pertinent to his investment decision. Counsel's reviewshould at least cover prior offers andsales of securities by the seller and itscontrol persons, prior securities violations, financial statements. organizationand operation documents (e.g., minutebook. etc.), business information sufficient to determine the salient risk features. management qualifications andexeprience. affiliated transactions of anyconsequence and any significant matters which are indicated by such review.

The attorney should then prepare adocument to disclose such informationin a candid factual manner sufficient toapprise the purchaser of all materialnegative features of the investment andto document the purchaser'S sophistication, "investment intent" and acknow·ledgment that the security will bear alegend restricting retransfers consistentwith Ark. Sec. Rule 8.K.

Ark. Sec. Rule 8.K. spells out thespecific representations and documentsrequired to be filed with the SecuritiesCommissioner as the proof of exemption, which counsel should prepare andfile prior to indicating approval of any offer or sale. The exemption, of course, isvalid only if the otters and sales aremade consistent with the terms of theproof of exemption and counsel shouldtake steps to see that this is done. Ark.Sec. Rule a.A. also mandates retention

of records for five years to substantiatethis follow up. A client should be advisedof this and of his need to be able to verifycompliance.

In limited situations upon organizationof an entity a private placement exemption under Section 67-1248(b) (9) doesnot require a filing with the SecuritiesCommissioner. See Ark. Sec. Rule8.K.(3) which provides:

"The filing requirements of Section14(11 (67-1248(11) are not applicablewhere five persons or less form a corporation or limited partnership, or enterinto a trust agreement and receive thesecurities which are issued pursuant tothe incorporation, partnership agreement. or trust agreement. where the requirements of Section 14(b) (9) (671248(b) (9)) are otherwise compliedwith."

This Rule does not alleviate disclosurerequirements, although the process maybe somewhat abbreviated if a close relationship exists between members ofthe organizing group.

It should be noted that a filing requiredto substantiate a Section 61-1248(b) (11)exemption (for transactions pursuant tooilers to existing security holders).must" include a description of themethod by which full disclosure ofmaterial facts will be made to each offeree." Ark. Sec. Rule 8.L.

The preorganlzation subscriptionexemption under Section 67-1248(b)(10) has a long history of confusion asadministered in Arkansas. The languagepurports to exempt "any offer or sale."However, it precludes " ... payment ..by any subscriber" thus necessitatingregistration or another exemption tocomplete any sale. See Uniform Securities Act, Official Gode Comment Section402(b) (10). CCH Blue Sky Law Rep.• par.4932. page 734. If offers have been madeto more than 25 persons, the Section 671248(b) (g) private placement exemptionwill be unavailable and the only remaining alternative may be reg istration of thesecurities. As a result, this exemption isseldom used.

Anticipated Resales, Pledges AndOther Evasions Of Securities Laws

The simple statutory terms of securities laws may appear to allow easyavoidance of registration and/or exemption requirements by making an initiallyexempted sale and later effecting resales to multiple persons; by creatingpledge situations which anticipateddefaults; or by other similar devices.Such practices are readily regarded asfraudulent efforts to evade securitieslaws by regulatory authorities. Thedefinition of "underwriter" and the concept of "investment intent" clearly

eliminate any legitimacy to such practices under federal law. See 15 U.S.G.A.Section 77b(11) (1970) (Section 2(11) ofthe 1933 Act) and I Loss, Ch. 3C(e) 2(b)p. 665.

Likewise Ark. Sec. Rule 8.K.(2) adoptsthe SEC position of the meaning of theterm "investment intent" and providesthat any ... "resale of the securitieswithin two (2) years of the date of purchase, in the absence of an unforeseeable change in circumstances orregistration, shall raise an inference thatthe person did not purchase the securities with investment intent." (emphasisadded) Exemptions available to resalesituations under Arkansas law (e.g., Ark.Stat. Ann. Section 67-1248(b)(1) (2) (3)and (13) (1973 Supp.) ) further limit planned resales by use of the term .. nonissuer" which is defined as ". notdirectly or Indirectly lor the benellt 01the Illuer." Ark. Stat. Ann. Section 671247(h) (1966 Rep!.).

A pledge of a security is excludedfrom "sale" definitions under the Arkansas Securities Act only if it is "bonafide" (Ark. Stat. Ann. Section 671247(j)(6) (1973 Supp.) and exemptedfrom registration only when it is ".executed by a bona fida pledgee withoutany purpose of evading (the ArkansasSecurities Act). Ark. Stat. Ann. Section67-1248(b)(7) (1973 Supp.).

Added Duties Of Counsel InSecurities MaUers •

An attorney undertaking representation in securities matters (other thanlitigation) must recognize that unlike histraditional adversary role which presentsa relatively clear single-minded sense ofzealous responsibility to a client. he isaccepting a role which will make conflicting claims on his sense of duty; and,for the benefit of his reputation and selfpreservation if nothing else, will requirethat he accept certain quasi-public

responsibilities in such regard. T~is areaof law is the subject of much debate as aresult of recent court decisions andpressure by the SEC, State SecuritiesCommissioners and others to raise thestandards of responsibility of attorneysin securities practice. See Escott v. Barchris Construction Corp. 283 F. Supp.643 (S.D. N.Y.. 1968); SEC v. NationalStudent Marketing Corp., 360 F. Supp.284 (D.D.C.. 1973); Garner v. Wolllnbarger, 56 F.R.D. 499 (S.D. Ala.. 19721.CCH Fed. Sec. L. Rep. par. 93.600. heardon remand from the Court of Appeals,430 F. 2d 1093 (5th Cir.. 1970); SEC v.Frank,388 F. 2d 486 (2nd Cir. 1968); andSEC v. Spectrum, LTD., 489 F. 2d 535(2d Cir. 1973).

The SEG. Securities Commissionersand the securities industry in generaldepend in large part upon the integrityand degree of professionalism exercisedby the attorneys who practice securitieslaw. See SEC Securilies Act ReI. No.5404 (June 18. 1973). An administrativeagency has a right to assume that an attorney is dealing fairly and honestly andin a non-adversary fashion in matterswithin the agency's administrative rolesuch as the processing of registrationsor exemption requests.

It is disservice to the legal profession,oneself and to the client to lead theclient into situations that invite litigationor administrative reprimand although thetransaction may be designed so as totechnically afford an opportunity toprevail at trial. The ABA National Institute sponsored by the Section of Corporation, Banking and Business Lawheld in October. 1974 centered on thetopic "Advisors To ManagementResponsibilities and Liabilities OfLawyers And Accountants." Theproceedings of this Institute, which willbe published in The Business Lawyer,should be very helpful to establish stand-ards in this regard. .:1..

THEARKANSAS

BARASSOCIATION


LegalEconomics

-Richard A. Williams

"But I Thought I Told You---"

Soon _

The usual stack of morning mail, piled high on his desk,awaited Anthony Advocate. He carefully slit each envelopeand skimmed Its contents When he had completed the task.Anthony tumed toward the door.

"Oh, Ms. Jones, he Intoned loudly, "would you mind comIng here for a moment?"

No response. A second and somewhat louder request followed. Still no response.

Aher a short walk down the hall, Anthony located Ms. Jonesat the copying machine. "All I need to do IS staple thesecopies," she said, "and then 1:11 be right there."

His phone was ringing as Anthony entered his office. Moments later Ms. Jones arrived. dictation pad in hand. Afterstanding in front of Anthony's desk long enough to ascertainthe call would last several minutes more, Ms. Jones returnedto her office.

"Oh, Ms. Jones, would you mind coming back in here?"The disconnected vOice stopped her In the middle of proofreading a lengthy metes and bounds legal description.

"Please send a copy of this to our client," said Anthony ashe handed Ms. Jones a letter. "But we need to open a new fileon thiS one. Call it 'Jackson v. Welch.' We represent Jackson.Now this Certificate of Amendment needs to be filed With thesecretary of State and County Cieri< of Grant County."

Another telephone Interruption sent Ms. Jones back to herdesk at this point. It was not until twenty minutes later that Anthony had an opportunity to resume hiS daily mail-answeringritual.

"This answer In the Smith case needs to be filed In Chancery Court. These letters should be put in the appropriatefiles. And this just requires a simple affirmative response. Wecan close this file now and send a bill."

Ms. Jones returned to her desk with her hands full of paperand her head full of instructions. As the day progressed, Ms.Jones faithfully performed her assigned duties

Before leaving the office that afternoon, Ms. Jones put theoutgoing correspondence on Anthony"s desk for his signature. He glanced qUIckly over each Item. Signed It, and handed It back to Ms. Jones.

"You did get the answer flied today In Chancery Court Inthe Smith case, didn't you?" asked Anthony as an aherthought.

"No'" replied Ms. Jones. "I was bUSy on other things andassumed It could be filed tomrrow."

"But I thought I told you this morning It had to be filedtoday," Anthony Sighed.

''I'm sorry but I really don't recall your telling me It had to befiled today," she inSiSted.

The next morning, before Anthony opened the mail. Ms.Jones asked for a word with him.

"If I may make a suggestion, there is a way to reduce boththe time you spend on correspondence and the likelihood of


my error In carrying out your instructions," she said."By the time you locate me and I walt while you are on the

phone. half the morning IS gone for both of us," she continued. "Then I am liable to forget or misunderstand some ofyour oral instructions. It just amazes me that lawyers. who aretaught to revere the written word. rely totally on oral messagesto office staff:'

"But I don't have time to write or dictate every Instruction toyou," Anthony countered.

"I know," Ms. Jones replied, "That's not what I meant. Whydon't I open your mail and attach thiS to each item?" She handed him a slip of paper about three inches square with the following instructions printed on it:

Our File Today _Make FileBnng File To Me _Copy to _

With Cover LetterNo Cover Letter

___ CallTell Him _Tickler for _Drah Reply (cc: _Route to _Court FIling (Due Date _

____ Circuit____Chancery____Probate____County____Federal D,stnct____secretary of State

"Most of your Instructions can be handled by checking theappropriate box," she added, "and there IS space at the bottom for a message. The printing cost is nominal:'

"That sounds pretty good to me," Anthony nodded."Try it; you'll like it," said Ms. Jones with a twinkle in her

eye as she returned to her desk, ~,

Leon Jaworski and Leroy Jeffers-Two Legal Giants Of Texas--Will Headline The 77th Annual

Meeting Of The Arkansas Bar AssociationJune 4-7, 1975

January 1975/Arkansas Lawyer/'ST

3Jn JMemoriamBlessed is the man who endures trial, for when

he has stood the test he will receive the crown oflife which God has promised to those who lovehim.

-James 1:12

ROBERT L. SEARCY, JR.1897-1974

Robert Lionel Searcy, Jr., of Lewisville, died recently in a Little Rock hospital.

Mr. Searcy held a degree from the University of Arkansas and the University ofVirginia, and was of the law firm ofSearcy and Searcy. He had been president and chairman of the Board of Directors of the First National Bank of lewisvi lie, past president and director of theRotary Club of Lewisville. and formervice-president of the Red River ValleyAssociation. He was a Presbyterian.

Survivors are two daughters, MiriamCandler Searcy, of Lewisville, and Rosemary Searcy Campbell, of Baton Rouge,Louisiana: four grandchildren and twogreat-grandchildren.

JOHN J. CRAVENS1923-1974

John J. Cravens, of Ozark, died October 5, 1974, at the age of 51.

A native of Logan County, Mr. Cravensattended Hendrix College at Conway.Louisiana State University, and was agraduate of the University of ArkansasLaw School. He had practiced law heresince his graduation in 1949. He was adeputy prosecuting attorney.

Mr. Cravens was a member of the Arkansas and American Bar Associations,and was a Mason and a Shriner. He wasa past president of the Ozark Lions Club,and was a member of the First UnitedMethodist Church.

Survivors include his wife, Mrs. MaidaKendall Cravens; a daughter, Mrs. Robert E. Freund of New York; his mother,Mrs. Norman J. Cravens of Paris, and asister, Mrs. Russell C. Faulkner, Jr., ofTexas.

JOHN L. SULLIVAN1895-1974

John L. Sullivan, of Little Rock, a former member of the State House of Representatives and Little Rock traffic jUdgefor nine years, 'died September 29, 1974.


Judge Sullivan also was a formerassistant city attorney and a formerPulaski County deputy prosecuting attorney.

Born at Brooklyn, JUdge Sullivancame to Little Rock in 1913 and beganwork at Peoples National Bank. nowFirst National Bank. Twelve years later,he graduated from the Arkansas LawSchool at Litlle Rock, and started practicing law in 1929.

JUdge Sullivan served two terms in theState House of Representatives from1941 to 1944.

In 1956 he was appointed traffic jUdgeto fill the vacancy created when JUdgeMurray O. Reed was elected PulaskiCounty Chancellor, and was re-electedin 1963 and served until 1968.

Judge Sullivan was a past statemaster, Fourth Degree, and a past grandknight, as well as a life member of theKnights of Columbus. He was a memberof Our Lady of Holy Souls CatholicChurch.

He was a member of the AmericanAssociation of Retired Persons, Chapter34, the Little Rock Lions Club, and theArkansas Bar Association, and was a lifemember of the Benevolent and Protective Order of Elks Lodge 1004.

Survivors are his wife, Mrs. HazelBillings Sullivan; a son, Joseph L. Sullivan of Blountstown, Florida; five grandchildren and five great-grandchildren.

CLIFTON (DEACON) WADE1910-1974

Former State Senator George Clifton(Deacon) Wade, aged 64, of Fayetteville,died November 1, 1974. Mr. Wade, aformer President Pro Tempore of theState Senate, was a lawyer here for morethan 40 years.

He attended public schools at Bigelow, Ciarksville, Batesville and Fayetteville, and received bachelor and law degrees from the University of Arkansas,which, in 1961, awarded him its distinguished alumnus citation.

He was a past member of the Central

United Methodist Church Board ofTrustees and a trustee of the church'sNorth Arkansas Conference and Western Assembly.

He was an Air Force major in WorldWar II.

Senior partner of the Fayetteville lawfirm of Wade, McAllister, Wade andBurke, he was a former member of theArkansas Board of Law Examiners, apast president of the Washington CountyBar Association and a member of thecounty, state and national bar associations and the American Judicature Society.

Mr. Wade served four terms in theState House of Representatives, beginning in 1947, and four terms in theState Senate, ending in 1970. He servedon the Legislative Council and the JointBudget Committee.

He was appointed by Governors SidMcMath, Francis Cherry, Orval Faubusand Winthrop Rockefeller to the Southern Regional Education Board and theLegislative Advisory Council of theSouthern Governors' Conference.

He was a delegate to the DemocraticNational Convention four times and wasa member of the Board of Trustees of Arkansas A M & N College.

He was chairman emeritus of the McIlroy Bank Board of Directors, a memberof the Board of Directors of ArkansasWestern Gas Company, an organizer ofthe Fayetteville Industrial Foundation, athree-time president of the FayettevilleChamber of Commerce, a past UnitedStates Commissioner for the WesternDistrict of Arkansas, and a member ofthe Board of Washington General Hospital.

Survivors include his wife, Mrs. VeraDrake Wade; a son, Lynn F. Wade ofFayetteville; a daughter, Mrs. Philip Colwell ot Fayetteville; his stepmother, Mrs.Mary Wynn Wade of Augusta; two sisters, Mrs. James Slayden of Texas andMrs. Jim Thomas of Jonesboro, and fivegrandchildren.


POSITION OPENEXECUTIVE DIRECTOR

The Legal Aid Bureau of PulaskiCounty announces an immediateopening for the position of Executive Director. The following information is intended to acquaintprospective applicants with thegeneral nature of the position andthe Legal Aid Bureau as anorganization.

The Legal Aid Bureau of PulaskiCounty is a county-wide non-profitlaw firm funded by the Office ofEconomic Opportunity to providefree legal services to qualifiedresidents of the county. The program has been in existence since1965. Presently there are seven attorney positions and eleven nonattorney positions. Funds for thebUdget are received from OEOLegal Services. Pulaski CountyBar Association and United Way.The program receives strong support from the local Bar Association.

The Executive Director acts asthe executive of the agency andthe chief attorney and is appointedby and accountable to the Boardof Directors for the conduct of theaffairs and operations of the program.

The Legal Aid Bureau of PulaskiCounty has been operating withinthe general realm of practice thatlegal services programs engagein. This includes, but is not limitedto, a substantial consumer lawpractice, family law cases, housing, welfare, social security, etc.

The program is seeking anaggressive and creative person,and we urge you to make this opportunity known to persons withinand without your program. We arean equal opportunity empioyer.

Please send resume and letterindicating your interest to:

L. Hobson Mahon. DirectorLegal Aid Bureau of PulaskiCounty1520 BroadwayLittle Rock, Arkansas 72202

f

DATE

OF

FROM

LITTLE ROCK. ARKANSAS

LITTLE ROCK, ARKANSAS

IN MEMORY OF THE LATE

IN MEMORY OF THE LATE

THE FAMILV Is BEING NOTIFIED

WE ACKNOWLEDGE YOUR GENEROUS MEMORIAL

GIFT IN THE AMOUNT OF _

WE ACKNOWLEDGE WITH GRATEFUL ApPRECIATION

THE RECEIPT OF A GENEROUS MEMORIAL GIFT

I

IIL ~

r--------------------------I MEMORIAL GIFTS

I "I' bl d . h . " H b f'

It IS more esse to glVt: t an to receiVe - Qwever, a mem er pro Its

both ways with a memorial gift to the Arkansas Bar Foundation. One's gilt isa beautiful way of honoring a former colleague. The family must be most

Iappreciative of such remembrance. The gilt is nvted in the Foundation'sMemorial Book and, of course, is tax deductible. Memorial gifts may be sentLo the Arkansas Bar Center. The memorial cards (below) of the Arkansas

IBar Foundation are formal and are promptly delivered upon receipt of the

I memorial gift.

IIII

Arkansas Bar AssociationLegislative Package

At the House of Delegates' Special Meeting onSeptember 19, 1974, the Delegates voted to havethe Arkansas Bar Association sponsor Bills for Actsto be entitled as follows:

1. "An act to permit Circuit Clerks to destroy outdated mortgages, and the records containing abstracts thereof, except for records of WheelwrightLiens; and to declare an emergency."

2. "An act to amend Section 24 of act 136 of 1941,as amended, (Ark. Stats. 63-123), in order to facilitate the filing of Arkansas estate tax returns byamending the Arkansas estate tax procedure so asto conform with Federal law; and for other purposes. "

3. "An act to provide for comparison of fault inactions for damages; and for other purposes."

4."An act to amend Subsection 2b of act 217 of1913 (Ark. Stats. (1947) Section 71-110); relating tothe liability of innkeepers for loss of or damage topersonal property of guests; and for other purposes. "

5. "An act to amend prargraph 1. of SubsectionC. of Section 1 of act 101 of 1963 (Ark. Stats. Section 27-2502 C.1.) to enlarge the basis for personaljurisdiction based upon conduct; and for other purposes."

6. "An act to amend act 61 of 1965 to enlarge theextent of powers of attorney for the benefit of the infirm; and for other purposes."

7. "An act to amend Section 4 of act 365 of 1953as amended, (Ark. Stats. Section 22-904) relating toretirement of judges; and for other purposes."

8. "An act to prescribe the annual salaries of thejudges of the Arkansas Supreme Court, the judgesof the Circuit and Chancery Courts in this state andthe executive secretary of the Judicial Department;and for other purposes."

9. "An act to amend various Sections of act 140 of1949, as amended, the probate code of Arkansas, toprovide for administration of estates of minors andincompetents and persons who have disappearedor been confined by a foreign power, to provide forpayment of money or distribution of propertywithout necessity of a guardian under certain circumstances, to improve administration of decendent's estates; and for other purposes."

1O. "An act to amend Section 2 of act 9 approvedJuly 13,1868, as amended (Ark. Stats. 29-124) to increase interest on judgments."

11. "An act to amend Arkansas Statutes annotated, Section 27-1160, to provide for the filing ofamendments to pleadings to assert counterclaims."

12. "An act to permit judges of the Circuit Courtsand Municipal Courts to order issuance of writs of


Ireplevin without notice to persons in possession ofperson property subject to claim of lien, to provideopportunity for hearing after seizure, and establishprocedure for application for such writs; and forother purposes."

13. "An act to establish a system of providingcounsel for needy persons who cannot afford to furnish their own counsel; and to establish the office ofa public defender; and for other purposes."

14. "An appropriation act for the public defenderprogram." J- -.

TAX NOTICE

Manager A. Robert Fortney of the Income TaxSection of Arkansas' Department of Finance andAdministration advises:

"A recent Attorney General's opinion (74-117),quoted in part herein, may be of interest to yourmembers.

'There is nothing in Act 55 of 1972 (codified asArkansas Statutes Annotated 84-2004.1 and 842004.2) that justifies limiting Subchapter S treatment to domestic corporations. The body of the Actitself makes no mention of domestic or foreign corporations but merely states that Subchapter S ofthe Federal Internal Revenue Code of 1954, asamended, is hereby adopted under Arkansas Income Tax Law.'

As a result of the above ruling the CorporationIncome Tax Unit, Income Tax Section, will acceptelections by any corporation, domestic or foreign,otherwise qualified as a Subchapter S corporationfor Federal Income Tax purposes. These electionsmust be timely filed (30 days prior to-to 30 days after the beginning of the tax year) with State of Arkansas separate from IRS.

Additonal questions can be answered by contacting Corporation Income Tax Unit, P.O. Box1272 CT, Little Rock, Arkansas 72203 or by phoneat 371-1371."

Arkansas statutes Annotated

Arkansas Eminent Domain DigestCompiled by the University of Arkansas for the Arkansas State Highway Commission.

207 Pages

22 Volumes with Current Supplement. $175.00* in the State of Arkansas.

$9.50*

WORKBOOK FOR ARKANSAS ESTATE PLANNERSMITCHELL D. MOORE. WILLIAM H. BOWEN

A Complete Source for Planning Estates in ArkansasPlanned exclusively for Arkansas lawyers, it is based on the statutes, cases, regulations. and tax situations of the state. This workbookserves as a guide to drafting a simple will, testamentary planning for benefit of minor or aged. forms of property ownership. purposes andtechniques of making gifts, drafting partnership and business purchase agreementS and many other important topics. The handy loose-leafformat makes this source a unique working tool-an invaluable reference for the Arkansas lawyer.

11 Chapters

REID'S BRANSONINSTRUCTIONS TO JURIES7 VOLUMES WITH CURRENT SUPPLEMENT

8125.00*

$35.00*

JONES LEGAL FORMSTHREE VOLUMES. 68 CHAPTERS

$60.00*

Contact Your Bobbs-Merrill Arkansas Representative,Mr. Joshua E. McHughes

920 West 6TH Street (501) 376·9131 Little Rock. Ark. 72201

• PII,lS Sfllpplng, flal'\dling and sales tal( wflere ilpphcable.

The Babbs-Merrill Company, Inc.4300 W. 62nd St. / Indianapolis, Indiana 46268

(Any reselle, is free to charge whatever puce it wishes for our books.)

We carefor more Arkansansthan anybody.Andwe're proudofthat.

We care about people. Arkansas people.®.

BlueCross®Blue Shield®of Arkansas

oQq:IX:oQ

......t.u

Documents

JANUARY 1975