Forrest S. Latta, President

August 2023

Volume XLVII, Issue 8

In This Issue...

Ann's Article...........................Page 2

CLEs......................................Page 5

Lawyer Assistance.................Page 7

Mentoring Moment.................Page 8

Young Lawyers.......................Page 9

Significant Decisions...............Page 10

In the News.............................Page 11

Mobile Bar Foundation............Page 12

Birthdays.................................Page 15

  2023 OFFICERS

President - Forrest S. Latta

President Elect - Raymond L. Bell, Jr.

Vice President - Judge Judson W. Wells, Sr.

Secretary - Gordon G. Armstrong, III

Treasurer - Mary Margaret K. Bailey

Asst. Treasurer - Brian K. Smithweck

Executive Director - Ann Forbes Sirmon

Editor - Tiffany Ray

President’s Message

National sports analyst Danny Sheridan will speak August 11 at our preseason MBA luncheon, marking his 37th consecutive appearance. Be sure to register early to claim your seat as this meeting is always full. It will be sponsored by the Tom James Company, the Nashville-based home of American-made professional clothing customized to fit you perfectly. Its manager, Barry Helms, is a former Crimson Tide cheerleader. As with every meeting, please make a habit of greeting and thanking our sponsors, as we could not do without them.

Wonderful news from the Alabama State Bar Annual Meeting! Our own Celia Collins was named recipient of the Maud McClure Kelly Award during the meeting at the Grand Hotel. This annual award honors one of the state’s outstanding woman lawyers. The award’s namesake was Alabama’s first woman lawyer, admitted to practice in 1907. Its first recipient was Alabama Supreme Court Justice Janie Shores. I am glad to see the entire state recognize what we already knew: that Celia Collins has modeled a life of professional class and achievement her entire career.

Congratulations also to Raymond Bell, our current MBA President-Elect and At-Large Bar Commissioner, who was appointed to serve on the Executive Council of State Bar President Brannon Buck. I am delighted to see the Mobile Bar Association regaining an active role in State Bar leadership, something we have been talking about for several years.

The MBA Young Lawyers Section has outdone itself again. This year’s Annual YL Charity Golf Tournament raised over $18,000 for the Dumas Wesley Community Center, which benefits underserved youth, low-income seniors, and homeless women and children. Congratulations to President John Leech, Jr. and the entire Young Lawyers Section on this highly successful event. You bring honor to our profession.

A U.S. Citizenship Naturalization Ceremony is something everyone should experience. For America’s newest citizens and their families, it is a dream come true. For the rest of us, it is a reminder of how we discount and take for granted our American freedoms and citizenship. Every 9th-grade class should be required to attend one of these ceremonies. My thanks to U.S. District Judge Beaverstock and U.S. Magistrate Judge Katherine Nelson for the invitation.

For those who attend court in Baldwin County, be advised that if you don’t have a Baldwin County Bar membership card, you cannot bring your cell phone or iPad past security. You will have to return it to your car.

The Law Library – Monument to our History

Fifty years ago last month, in this column, MBA President Alex Howard, who later became a federal judge, reported “a real crisis at our Law Library.” It had incurred a $6,400 deficit due to rising publication costs. President Howard announced he was referring the matter to the “Legislation Committee … to request that our local legislative delegation take the necessary action to increase the trial tax” to prevent future deficits. He described the Law Library as “[t]he most important and worthwhile project our Association has ever undertaken.”

Many may not know our Law Library was the main purpose for incorporating the MBA in 1869. Association members paid $50/share to assemble an outstanding library, complete with a Law Librarian, first housed in the old courthouse (until the 1888 fire) and later in city hall and other downtown buildings. As the Association grew, the librarian’s duties evolved to include the role of Executive Secretary to the Association. The year Alex Howard’s column was written, the Executive Secretary was Margaret Prendergast (1951-1982), who was the last person to serve in the combined roles of Law Librarian and Executive Secretary. She was honored by MBA members in 1976 with a special certificate. (See below).

The Mobile Bar Association’s library was said to be the best in the state outside that of the Alabama Supreme Court. In 1947, as expenses mounted, the MBA lobbied the legislature for creation of a law library fee to be paid in all circuit and district court cases. The MBA then gave Mobile County its historic library, nearly 100 years in the making. The library was placed under the official management of the Presiding Judge of the Circuit Court, who was authorized to hire a librarian to run it. The role of the MBA Law Library Committee then transitioned to one of active oversight, advising the Presiding Judge.

This arrangement was celebrated by the Bar, which was thus relieved of a major ongoing financial responsibility. It was the idea of Tom Twitty, who received special recognition in 1964 when he was honored by the Mobile Bar Association with a handsome Certificate of Appreciation for being “one of those most instrumental in securing passage of the Law Library Bill in the Alabama State Legislature.” The certificate now hangs in the Mobile County Law Library. (See below).

Much has changed since then. While most of us haven’t set foot in the Law Library in years, it still represents 150 years of time and investment, and it contains many books, codes, and treatises not available online. It is on the 3rd floor of the Mobile County Courthouse and open to the public, as statutorily required. The space is impressive, looking out upon the courthouse atrium. It includes the book collections as well as computer workstations and small meeting rooms. The current librarian is Patricia Evans, who is very welcoming, but the library is seldom visited, and it lacks even an informational website. Go check it out.

Recently our Law Library Committee Chairman, Chris Estes, and Immediate MBA Past President Brian Murphy have been evaluating the Law Library to determine whether it can be made more useful to our MBA members, especially those working in small offices that may lack affordable access to online research subscriptions. This evaluation process has been well received by Presiding Circuit Judge Wesley Pipes, who is open to any suggestions from the Bar. 

If you have any thoughts or ideas for how our Law Library can be improved to better assist you in your practice, please send them to Chris Estes or to me.

Forrest S. Latta

Mobile Bar Association, 2023 President

Certificate received in 1976 by Margaret Prendergast

Tom Twitty

Certificate of Appreciation received in 1964 by Tom Twitty

ADVANCE REGISTRATION DEADLINE IS MONDAY, AUGUST 7, 2023.

Hope everyone is having a great summer, though it has certainly been hot! Fingers crossed – no hurricanes!

I recently attended an Indian wedding, a very beautiful and ceremonial occasion. The heart of the wedding ceremony was not just about dedicating yourself to your new spouse but also bringing honor to your family and vowing to do charitable work. This was a recurring theme throughout the weekend.

The ceremony gave me an opportunity to reflect on the Mobile Bar Association and its members. Recently, our very own Celia Collins received the 2023 Maud McLure Kelly Award from the Women’s Section of the Alabama State Bar. Congratulations, Celia! During the luncheon, Judge Dawn Hare stated, “During Celia’s career, she is lifting while climbing.” Celia has that great quality - as do many of you - of having a successful law career and, at the same time, encouraging and mentoring younger lawyers. Again, the value of charitable work.

Very soon, the Mobile Bar Association will ask members to sign up and volunteer on committees for 2023. Please take this as your call to action! The Mobile Bar Association is YOUR association, and we want YOU to volunteer with us. We have numerous ways for you to get involved and volunteer. Small. Large. You can give a little or a LOT.

Sure, it does take away from your career/billable hours; however, it provides valuable networking opportunities and helps to promote a positive image of the legal profession and the Mobile Bar Association.

During the Indian wedding ceremony, the mother of the groom stated, “If you have a giving heart, you are remembered.” How do you want to be remembered? Let charitable work be a part of you. I grew up with parents who participated in and encouraged charitable work, and it remains a big part of my life.

We have much going on for the month of August, and we look forward to seeing you soon!

We are always interested in hearing your thoughts and ideas about how to improve the Mobile Bar Association and our activities. Please feel free to contact me any time by phone at 251.433.9790 or by email at [email protected].

Article to read:

Click here - Practice like a solo.

Onward,

Ann

P. Ann Forbes Sirmon

Mobile Bar Association, Executive Director

Bankruptcy Section Meeting

Tuesday, August 8, 2023 | 12:00 - 1:00 p.m.

Available CLE Credits: 1.0

To register, contact Herman Padgett by email at [email protected].

Mobile Bar Association CLE

Topic: Government Plaza Courtroom Technology Training

Thursday, August 10, 2023 | 11:00 a.m. - 12:00 p.m.

Available CLE Credits: 1.0

Cost: FREE

LOCATION: GOVERNMENT PLAZA, COURTROOM 6500

Advance registration deadline is Wednesday, August 9, 2023.

ADVANCE REGISTRATION DEADLINE IS WEDNESDAY, AUGUST 16, 2023.

In-House Counsel Section Lunch and Learn

Wednesday, August 23, 2023 | 12:00 - 1:00 p.m.

Available CLE Credits: 1.0 | Cost: Cost of Lunch

LOCATION: BLUEGILL RESTAURANT

George Simmerman will offer a one-hour CLE on the Opportunities and Risks of Contracting to Do Business with the Federal Government. Mr. Simmerman’s bio is available here.

As a reminder, In-House Counsel Section meetings are limited to MBA members who are currently fully employed by a company and handle its legal affairs, as opposed to attorneys in private practice. We look forward to seeing members of the in-house counsel community at the meeting. If you have any questions or would like to join the section, please contact Julia Shreve at [email protected].

ADVANCE REGISTRATION DEADLINE IS MONDAY, AUGUST 21, 2023.

EARLY BIRD REGISTRATION DEADLINE IS MONDAY, AUGUST 21, 2023.

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LAWYER ASSISTANCE

By Beth Rehm, Lawyer Assistance Committee Member

STRESS – How to Tame It

Let’s face it. We as lawyers have a stressful job: We deal with deadlines, frequent phone calls, long hours, wondering if we gave the right advice to a client, and problems with work/life balance—just to name a few. In recent years, we have heard much about “mindfulness” and being in the present. We have been offered apps that make soothing sounds, narrate bedtime stories for adults, and guide us through meditation. Sure, the arrival of this technology is a welcome addition to managing stress, but what can we do to alleviate stress in the daytime hours when we are not trying to fall (and remain) asleep?

Breathe

We often hear “just breathe.” Sounds simple enough (after all, we do it all the time), but how do we breathe to calm ourselves or take a mental break? Until a couple of years ago, I did not understand how to breathe for relaxation. As a visual learner, the most helpful aid for proper breathing is a toy ball that expands and contracts. I breathe in deeply while I expand the ball, and then breath out while contracting the ball at a slower rate.  This makes my exhale slower, which helps reduce adrenaline. Try a few techniques, and see what is best for you.

Exercise and Never Underestimate the Power of Nature

Sometimes a breezy walk around the block is a quick fix to calm down, particularly if you can walk where there is some greenery. It is amazing what fresh air can do for the soul. In 2021, I understood the value of nature when, out of the blue, I was invited to raft the Colorado River through the Grand Canyon for seven days and seven nights. I never would have planned a trip like this myself, but I am so grateful I had the opportunity to be completely away from technology and just be a part of the Grand Canyon for a week. It opened my eyes to mindfulness and being in the present. The trip had such a soothing effect on me that I have plans to walk a portion of the Camino de Santiago from Portugal to Spain this fall. If you have not heard of it, look it up. Plan a vacation that truly immerses you in nature—or just walk at Blakely for a day.

Other Techniques

Some stress management techniques work well for some and not for others. You have to experiment and learn what grounds you. For tactile people, rubbing a smooth stone, a coin, or some other object may ease anxiety. Adult coloring books can be wonderful. Being able to visualize a calming place you have been before can also calm nerves. If you try this technique, really feel the place with all of your senses—what is the temperature, is there a breeze, is the sun on a particular part of your body, what sounds and smells surround you. Breathe deeply and go there in your mind.

Honestly, I could go on and on about techniques, but before concluding, I do want to mention journaling. Journaling is whatever you want it to be, whether it is writing about an emotion or a problem, or expressing stream-of-consciousness thoughts. Do with journals what you want - you can reread them to see your progress, or never pick them up again. While I am sometimes hesitant to journal, every time I do, I feel refreshed.

Remember, however you feel, you are never alone.

Breathing ball open.

Breathing ball closed.

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MENTORING MOMENT

By Greg Vaughan, Mentoring Committee Member

Before you ask for directions…do your homework

When I got my start at the law firm of Richardson, Spear, Spear & Hamby at 169 Dauphin Street, I paced the halls on an almost daily basis seeking guidance from the lawyers who were brave enough to keep their office doors open. One of my frequent targets was MBA member Jene “Jeno” Owens. He was always welcoming and generous with his time and advice (much more than I ever have been). I can’t recall Jeno ever sending me away or telling me that he was too busy or in the middle of something - even though I’m certain that I interrupted some trial prep or brief drafting once in a while.

Before disturbing Jeno and the other lawyers there, I didn’t prepare as I should have. Oftentimes, it went something like this: I’d barely knock on the door, then barge in with an unprepared, unrehearsed, 20-minute rambling complaint about lawyer “x.” As I think back on it, I wasted more of their time than necessary.  

Don’t do like I did. Before you ask a mentor for advice, try this approach instead:

• Schedule the meeting. Send an e-mail or text and ask their availability to stop by (or call) to discuss a case. Give a short synopsis (just a few sentences) of the issue in your e-mail. Be specific about how much time you need. This will ensure your mentor has an opportunity to prepare for you and be more focused and present when you are seeking advice.
• Before you meet, prepare. Know the facts of your case/issue cold, perform some introductory/basic legal research (if it’s a legal issue), and make an outline of what you’d like to cover.
• When you meet, be engaged. Take active notes when your mentor renders advice (it shows you’re listening), cover your outline so you don’t leave out an issue and have to come back, and respect your mentor’s time by not exceeding how many minutes you originally requested.
• After you meet, show gratitude. Send a follow up e-mail or text and give thanks for your mentor’s time and guidance. Here’s a novel thought – how about a handwritten “thank you” note? Or, if the mentor spent a great deal of time assisting you, how about taking them to lunch, coffee, or giving them a gift card to their favorite eatery? If you want to keep an open line of communication with your mentor, sincere gratitude goes a long way.       

***

I’ve spent a lot of time around more senior lawyers and judges through my involvement in the bar’s mentoring program. This collection of articles is some of what I have learned there – and some of what I’ve learned along the way.

If you have any questions, comments, or would like to suggest some future topics, please send me an e-mail at: [email protected] or call 251-432-8883.

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YOUNG LAWYERS SECTION

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In Luxottica of America, Inc. v. Bruce, No, SC-2022-0867 (Ala. June 30, 2023), the Supreme Court held that management personnel of a Sunglasses Hut franchise were not liable for defamation and invasion of privacy/false light arising from communications and the provision of photographs to a third-party nonprofit organization that posted the photos to social media groups in an effort to identify potential shoplifting suspects. While the franchise did share photos of the plaintiff with a third party, the Supreme Court held that such provision was made under a qualified privilege, as the store's asset-protection manager owed the store a duty to investigate shoplifting. Based on this determination, the Court subsequently held that the plaintiff failed to show actual malice, as necessary to defeat an affirmative defense of qualified privilege.

In Amanda Howard Real Estate, LLC v. Lee, No. 1210193 (Ala. June 30, 2023), the Supreme Court held that a noncompete agreement was nonbinding as it had not been mutually executed as prescribed by statute. According to the Court, even if the employee and employer had signed a separate employment agreement and the employee had fully performed under the noncompete agreement (otherwise giving rise to an exception to the statute of frauds), such performance could not excuse the failure of the employer to sign the noncompete agreement, as statutorily required by Ala. Code § 8-1-192.

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KUDOS: The Women’s Section of the Alabama State Bar presented MBA Member Celia Collins with the Maude McClure Kelly Award on June 14, 2023, during the State Bar’s Annual Meeting at the Grand Hotel. The award, named for the first woman admitted to practice law in Alabama, is presented each year to a female attorney who has made a lasting impact on the legal profession and has been a pioneer and leader within the state. 

Throughout her distinguished 43-year career as an employment litigator, Celia has remained active in women lawyers organizations—both formally and informally—on the local, state, and national levels. In the 1980’s, she co-founded the Alice Meadows Council, the precursor of today’s Mobile Bar Association Women Lawyers (MBAWL). In 2016, Celia was recognized by MBAWL as one of its Trailblazers.

Cunningham Bounds recently received Chambers and Partners' highest possible ranking - a “Band 1” ranking - in the practice area of “Litigation: Mainly Plaintiffs” in the 2023 Chambers USA guide, The Leading Lawyers and Law Firms in the USA (Alabama). In addition to the firm’s overall ranking, three Cunningham Bounds partners were individually recognized as leading litigation attorneys in this year’s rankings. They are: Skip Finkbohner, Lucy Tufts, and David Cain.

Office Space for Sale or Lease - 1904 Dauphin Island Parkway: Amenities include: Newly renovated, two to three lawyer offices, two conference rooms, and four bathrooms. The office space to hold five to seven support staff, fully equipped kitchen, storage facility, excellent visibility/signage, and up to 20 on-site parking spots. For more information or to schedule a visit call 251-888-8888 or email [email protected].

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The Delano Palughi Chapter of the St. Thomas More Society will sponsor the Annual Red Mass Celebration on Friday, October 6, 2023, at 12:00 PM at the Cathedral of the Immaculate Conception. A brief reception will be held following the Mass. Your support and attendance is greatly appreciated.

If you have any questions, please contact Greg McAtee at 251.689.4536.

Event: Mobile County Defense Lawyers Association

Date: Friday, August 4, 2023

Location: Government Plaza Ceremonial Courtroom

Time: Starts at 8:15 AM

For more information: Contact Brian Lockwood by email at [email protected].

For a full list of upcoming events in 2023, click here to visit our website.

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Listed below are members who celebrate a birthday in August.

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STAY CONNECTED