Proposed amendments to the Arkansas Rules of Civil Procedure have been made by the Arkansas Supreme Court Committee on Civil Practice.  They have been posted for comment at http://courts.state.ar.us/opinions/2007a/20070525/Rules-CivPro_AdminOrders_Rules-Evid_Rules-SCandCA.pdf

Comments should be made by August 1, 2007.

Lawyers are bound by ethics rules when they create their advertising.  Below is a perfect example why.

Two women lawyers in Chicago created the ad which has just recently been taken down.  Two prominent matrimonial lawyers made the following comments:

“It’s grotesque,'’ said John Ducanto, past president of the American Academy of Matrimonial Lawyers. “It’s totally undignified and offensive.”

Raoul Felder, prominent New York divorce lawyer, says, “This has to be the Academy Award of bad taste'’…and “I don’t think anybody walks away from that ad thinking more of the legal profession than they did before they saw it.'’

Ducanto is so unamused that he has taken action.  He has called the Attorney Registration and Disciplinary Committee of the Supreme Court of Illinois to sanction the attorneys.  “I don’t think they’ll just let this pass,'’ he said.  He adds, “I have been in practice for 52 years, and I’ve worked my ass off to change the image of this particular area of the legal practice, and to see some punk try and pervert the whole image in the interest of lucre. … Sure, she’s got a lot of attention, but it’s like a guy who spits on a table — you got the attention, sure, but what kind of attention is it?”

Source: ABC News Law & Justice site…read more at   http://abcnews.go.com/TheLaw/LegalCenter/Story?id=3147979&page=1

We’ve all done it.  You settle the divorce on the day of the hearing.  One of the attorneys is to draft the decree and send to the other for approval.  “Do we want to read it into the record?” one of the attorneys or the judge may ask.  Sometimes yes, sometimes no.

In this case, the answer (assuming the question was asked) was “no.”  Later, husband’s attorney, who was not supposed to have drafted the decree, drafted it anyway.  It was sent to the judge.  A notation was entered on the signature line for wife’s attorney that read “No objection received” and had unintelligible initials next to it.  The judge signed the decree and it was entered.

Evidently, wife finds out what has happened and files to have the decree vacated and/or amended.  The judge does not rule on the motion and therefore it is deemed denied.  She appeals.  The appellate court affirmed the trial court’s decision or lack thereof.  It seems that her fatal mistake was that evidently no facts were provided to the trial court (or the appellate court) showing how the decree failed to reflect what the parties had agreed to.  She merely requested that it be amended or vacated.  This was not sufficient.

Hard to say, but it seems that having read the agreement into the record would have helped her cause here.  However, providing facts in the motion to vacate or amend would have also solved the problem.  At any rate, be careful when you elect not to read the agreement into the record.

Here’s the link…. http://courts.state.ar.us/unpublished/2007a/20070516/ca06-1161.pdf

My wife and I watch the NBC television show Medium.  Recently, the main character’s husband, Joe DuBois, was held hostage along with other co-workers at his workplace by a gunman.  The gunman killed two of Joe’s co-workers before the police could stop him.  Needless to say, Joe has had difficulties coping with what he witnessed.

What does this have to do with law?  Well, last week Joe received a call on his cell phone from an attorney promising him “millions of dollars” for what he experienced at his workplace, obviously implying that this money would come from a lawsuit against Joe’s employer.  Joe had no idea who this attorney was and certainly never did anything to solicit the phone call.  Disgusted, Joe hung up on the attorney.

This scene prompted my wife to ask me if it was proper for an attorney to make such a call to a prospective client.  The answer, in my opinion, is absolutely not.

The Arkansas Rules of Professional Conduct are the ethical guidelines that attorneys must follow in the state of Arkansas.  They are largely based on the Model Rules of Professional Conduct of the American Bar Association, which are the guidelines used by most jurisdictions across the country.  Rule 7.3 governs the issue of “Direct contact with prospective clients” and provides that “A lawyer shall not solicit, by any form of direct contact, in-person or otherwise, professional employment from a prospective client with whom the lawyer has no family or prior professional relationship when a significant motive for the lawyer’s doing so is the lawyer’s pecuniary gain.”

In my opinion, calling a prospective client and starting the conversation with references to “millions of dollars” certainly indicates that the lawyer’s motive is pecuniary in nature, and therefore unethical - not to mention tactless and tasteless.  But, hey, its just a TV show!

However, there is a way that this particular attorney could have contacted Joe and it would have been ethically acceptable.  Subsection (b) of Rule 7.3 provides that the attorney may contact the prospective client by ”written communication,” which assumes by a mailed letter.  The subsection goes on to provide that the envelope containing the letter must have the word “Advertisement” in red ink on the bottom left corner of the envelope.  There are some other specifics that the lawyer must follow as well, but the point is that a written communication may have been proper in the above example.

This subsection is used extensively by personal injury attorneys in the area of automobile accidents.  If you’ve been involved in an automobile accident recently, you may have received a letter (or several as is usually the case!) in the mail from an attorney wanting to represent you.  You may also have asked yourself if it was legal (or ethical) for an attorney to send such a letter.  As long as Rule 7.3 is complied with, the answer would be yes.

Here’s a link to Rule 7.3… http://courts.state.ar.us/rules/profcond7.html#7.3

Arkansas’ Child Support Chart (actually called the Family Support Chart) has been updated.  The new chart became effective on May 3, 2007.

Interestingly, child support amounts in the lower half of the chart slightly increased while child support amounts in the upper half of the chart decreased.  I’m not quite sure how that happened.

Other Notable Changes

Administrative Order No. 10 provides various interpretations, guidelines, etc. regarding the chart and figuring net income for different types of pay (wages, salary, commissions, self-employed, etc.).  There are some interesting additions.

First, under Section III(b) Income Which Exceeds Chart, an example is given as to how to figure child support for a payor that has income which exceeds the chart.  We have long known that there are percentages applied for the number of children that are involved.  15% of the net income is used for one dependent, 21% for two, and so on.  But the example provided in this updated version of Administrative Order No. 10 clarifies how net income is to be calculated.  You do not take 15% (using one dependent for example) of the entire net income amount.  Instead, you go to the highest section of the chart, take that child support amount, and then apply the 15% to the amount above and beyond the chart and add them together.  For example, let’s say a payor has a net income of $6,000 per month.  The Family Support Chart only goes as high as a net of $5,000 per month.  So for one dependent, child support would be $691 based on a net income of $5,000 per month.  Then, you take 15% of the amount over and above the chart - in our example that would $1,000.  15% of $1,000 is $150.  So the total child support amount for a payor that has a net income of $6,000 per month, and one dependent child, would be $841 ($691 + $150).  This is a much different result than if you simply took 15% of $6,000 per month - which would be a child support amount of $900 per month.

Second, some clarification is added to the self-employed payor paragraph.  Line 22 of the payor’s tax returns (last two years) is to be used in calculating income.  A 2007 case is also cited as clarifying how to use the net worth approach in determining income.

Next, Section V. Deviation Considerations, a. Relevant Factors, has an added phrase to subsection 12 - “including the income of the custodial parent.”  This clearly means that the custodial parent’s income may be considered for purposes of deviating from the chart’s child support amount.

Also to Section V., a new section (c. Application of Deviation Factors) is added which makes it clear that the deviation factors are to be applied to the noncustodial parent as well as the custodial parent. (In practice I have always argued this, but its good to have it as an official part of the Administrative Order.)

Here’s the link to the new chart and Administrative Order No. 10…  http://courts.state.ar.us/opinions/2007a/20070426/PC_AdminOrdNo10.pdf