Forrest S. Latta, President

June 2023

Volume XLVII, Issue 6

In This Issue...

CLEs......................................Page 4

Mentoring Moment.................Page 7

Lawyer Wellness....................Page 8

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

Women Lawyers.....................Page 12

VZC Bar..................................Page 13

Significant Decisions...............Page 14

In the News.............................Page 15

Mobile Bar Foundation............Page 16

Birthdays.................................Page 19

  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

Law Day 2023 was outstanding! For the first time, the Liberty Bell Award was shared by several organizations and will be displayed in the new Africatown Heritage House. Thank you again to our keynote speaker, Congressman Bradley Byrne, and to Cat Kirkland and the entire Law Day Committee for an amazing job.

Congratulations to Cunningham Bounds and its Chief Operating Officer, Geoffrey Williams, who was named President of the International Association of Legal Administrators at its recent annual meeting in Seattle. What an honor for the firm, for Mobile, and for the local ALA Chapter!

Let me commend our Section/Committee Chairs on some amazing spring programs, many with CLE credit! They are too many to list, but one that stands out is the Federal Court Section’s judge’s panel, in which participants discussed things like how to best handle a deposition impasse, recent juror attitudes post-Covid, and options for jurors to ask questions of witnesses. Very outstanding. You can sign up for any Section on our MBA website.

Interesting data about our Bar

Good career decisions depend on good information. Our Mobile Bar Association is one of the nation’s best, and we are having a great year! But we are not resting on our laurels. A Strategic Planning Committee comprising younger members of our Bar is looking toward the future. What kind of Association do they want to be a part of? How can we help them succeed? And how can we best accomplish our public service mission? We want to address these topics from a position of strength.

Why these questions now?? Well, let me share some data I have gathered while serving on the Board of Bar Examiners and as MBA President. I recently shared these points with our Chief Judges and MBA Past-Presidents. As lawyers, we are responsible to the public for our license, both personally and collectively. Think of our profession as a large law firm tasked with helping the public solve hard problems and serving the diverse needs of our community.

Consider these points while reviewing the above graphics:

1. The charts show the age distribution of Alabama lawyers by birth year. The same age pattern demonstrated in the statewide data also exists in Mobile. The average MBA member is 55 years old. There are 100 MBA members aged 66-70, compared with only 44 who are in the 26-30 range. The future is very bright for our younger members!
2. As future retirements loom, it is worth noting that law class sizes have shrunk by nearly half at Alabama’s three accredited law schools, down to approximately 380 combined. Cumberland now admits 150 (whereas my entering class had 275). Alabama (150/class) and Jones (80/class) round out the group. Incidentally, annual in-state tuition at UA Law is $24,000 per year, Jones is $40,000, and Cumberland is $44,000, plus living expenses.
3. At a rate of 380 new law graduates each year, Alabama cannot replace the future retirements statewide, especially given the number of law graduates leaving Alabama, according to the Alabama Commission on Higher Education. As the chart shows, only about half of recent graduates have remained in the state. Many are choosing Nashville, Atlanta, and other growing markets, which are competing for our top talent.
4. The number of diverse candidates who graduated from Alabama’s three accredited law schools remains low. A total of 29 students identifying as African American graduated from our accredited law schools in 2021. Graduates identifying as Asian or Hispanic were even fewer. Talented candidates from historically underrepresented groups like these are highly sought after in the Alabama legal marketplace.
5. Alabama had the nation’s lowest pass rate on the 2021 bar exam at 48 percent. That is despite also having the lowest cut score (i.e., minimum passing grade), 260. A closer look, however, reveals a brighter picture. If we count only the accredited law schools, Alabama’s pass rate jumps to 80 percent and into the nation’s Top 10, which is excellent.
6. The pass rate for Alabama’s unaccredited law schools in July 2022 was a dismal 8 percent (12 passing scores out of 145 examinees). Alabama has a large number of examinees from unaccredited law schools—it’s second only to California. No other state is close, and most states have none.
7. The bar exam pass rate nationally has declined every year for the last 10 years, prompting much head scratching. A new Uniform Bar Exam is being pilot-tested for a 2026 roll-out. It shifts away from memory-based questions about black-letter law to a mixture of question types that test reasoning and application. This may improve the pass rate, but there is debate about whether the exam is being watered down.
8. The ABA House of Delegates thus far has rejected calls to eliminate the LSAT as a requirement for law school admission. However, pressure remains strong to give law schools the ability to make the LSAT optional for at least part of each new class.
9. The new Artificial Intelligence program Chat GPT already has passed the Uniform Bar Exam. A new wave of AI computer-assisted tools reportedly has the potential to turn certain types of law practice into “click work” using human co-pilots who may not need a law license.
10. Civil and bankruptcy filings are currently down by more than 50 percent overall over the last three years, with bankruptcy showing a slight uptick.

Our profession needs to be prepared for these demographic trends. For example, Georgia now has six counties without a single lawyer. This affects more than just the quality of legal services; lawyers play an important “social capital” role in every community, large or small.

So what is the answer? Much to say about this. My personal preference is to not lower the standards but broaden access and affordability for students who can meet those standards.

I personally wonder if it is time for Mobile to have its own law school. Maybe it’s a pipe dream. Four years ago I served on a committee of Troy University Trustees tasked to explore the potential for a law school in Southeast Alabama. We determined that the most geographically underserved region is the Mobile Bay area. There is no law school within 150 miles in any direction.

With such a lack of convenient, affordable access, many of our brightest local students have little chance to enter the profession, especially those from diverse backgrounds. Many of these students, after getting a law degree, would stay home where they already are part of our culture.

We have a wonderful Bar Association, and we plan to keep it that way! I welcome your feedback!! I hope this information is interesting, and we will give you an update on our Strategic Planning Committee soon.

Have a great summer!

Forrest

Forrest S. Latta

Mobile Bar Association, 2023 President

Mobile Bar Association Lunch & Learn CLE

Topic: Medicaid and SSI

Speaker: Stephanie Booth of Gulf Coast Elder Law, LLC

Wednesday, June 7, 2023 | 12:00 - 1:00 p.m.

Available CLE Credits: 1.0

Cost: MBA Member $20.00, with lunch and Non-member $25.00, with lunch

LOCATION: ATHELSTAN CLUB

Advance registration deadline is TODAY - Monday, June 5, 2023.

Workers Compensation Section Lunch and Learn

Topic: Compensation Claims by State and Federal Workers

Speaker: Bobby Mudd, Solo Practitioner

Monday, June 12, 2023 | 12:00 - 1:00 p.m.

Available CLE Credits: 1.0 | Cost: $18.00, for lunch

LOCATION: ATHELSTAN CLUB

Advance registration deadline is Friday, June 9, 2023.

Mobile Bar Association CLE

Topic: Government Plaza Courtroom Technology Training

Friday, June 16, 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, June 14, 2023.

Criminal Law Section Lunch and Learn

Speaker: Assistant U.S. Attorney General Marc A. Starrett

Monday, June 26, 2023 | 12:00 - 1:00 p.m.

Available CLE Credits: 1.0 | Cost: $18.00, for lunch

LOCATION: ATHELSTAN CLUB

Advance registration deadline is Friday, June 23, 2023.

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MENTORING MOMENT

By Greg Vaughan, Mentoring Committee Member

Let’s have a “talk”…about fees and billing.

I’m not sure why, but having “the talk” with clients or prospective clients about fees has always been a challenge for me. I’ve heard some good tips over the years about fees and billing, and here are a few. I credit these to MBA members Alison Herlihy, Bill Lancaster, and David Hamby.

No free initial consultations

Unless you’re working on a contingent matter, Alison does not recommend a free initial consultation for a few reasons. For one, if you offer free initial consultations, you will find no shortage of people who want legal advice—but few will want to pay. This can also create a conflict if they don’t hire you but have consulted with you for advice. Alison also warns against the “cocktail party conversation” where you’re discovered to be the lawyer in the room and may end up fielding questions for free—and potentially creating conflicts of interest.

Explain how you earn your fee

Bill credits his tip on fees to his mentor, Mac Varner, of Vicksburg, Mississippi. Here it is: everybody is worried about how much a lawyer is going to cost. Don’t use the word “fee.” Instead, tell the potential client you want to be “fair” to them about what you charge—but to do so you must be fair to yourself. Explain the term “overhead”—that you’ve sat down and figured how much it costs to run the office—and that your charges go to overhead first. Also discuss how your charges take into consideration the experience that you have accumulated over the years. Lastly, advise the client that the fee structure will be reduced to a written agreement, and they will receive a copy—and always ensure that at the end of the discussion the potential client has had an opportunity to have their questions answered.

Never, ever, send a bill without a status report

Since my start with David Hamby, this advice has served me well. This is easy to follow and will reduce calls from angry clients. If you work on hourly matters and send regular bills, why would you ever want to send one without a status report? It takes only a few minutes to advise the client what has transpired (i.e. what you have billed for)—and what you expect to occur next. And, you get to bill for your time in preparing the report. It’s a no-brainer. If you don’t already do this, give it a try, and I’m confident you will see a drastic decline in calls from clients asking, “Hey, I got the bill, but what’s really going on in my case?”

***

I’ve spent a lot of time around more senior lawyers and judges through my involvement in the Bar’s mentoring program. My collection of Bar Bulletin 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, suggestions for future topics, or want to pass along some good vibes, please send me an e-mail at: [email protected] or call 251-432-8883.

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LAWYER WELLNESS

By Hank Caddell, Lawyer Assistance Committee Member

TO ALL OF US SUFFERING FROM STRESS AND ANXIETY:

 CONTEMPLATE MEDITATION!

           “You should sit in meditation for twenty minutes every day –

           unless you are too busy. Then you should sit for an hour.”

 -Zen proverb

If we don’t experience stress and anxiety doing our jobs as lawyers, we are probably not getting it done! The problem is that, all too often, the stress and anxiety go into overdrive, taking a serious toll on us and the people around us. As an antidote, please consider meditation.

Meditation practices may be as old as the human species. Through the ages they have been associated with Christianity, Judaism, Islam, Hinduism, Buddhism, and many other faiths. But they need not be connected to a religious practice. The techniques of meditation are surprisingly simple, and the benefits can continue to grow in one’s life as the practice moves forward.

And what’s not to like about the reported benefits:

• Lower blood pressure
• Reduced stress
• Better sleep
• Improved emotional regulation
• Increased focus
• Enhanced mood
• Reduced aggression
• Greater adaptability
• Healthier aging process
• A greater sense of empathy and connection with others

My own involvement in meditation began as a third-year law student, when I felt overwhelmed by anxiety over my third-year paper and the prospect of entering into a profession which was not on my list while I was growing up. I attended a day-long instructional program headed by a Zen Master, a journalist who had covered Nuremburg and then moved to Japan for twenty years. Meditation seemed to really click with me, and I was off and running.

In essence, meditation is an effort to deliberately quiet the mind in order to get away, to some extent, from all the static, distractions, and stress so abundant now in our lives. Among the worst culprits are these little smart phones we carry around with us, dominating as many as 24 hours of the day. Obviously, those should be turned off and put in another room. Also, I am advised that one should get away from pet cats, though maybe dogs are another matter. The idea is to go “inside” to find the creative energy to face the challenges on the outside.

There are many brands of meditation with ardent devotees – Zen Meditation, Transcendental Meditation, Mindfulness Meditation, Contemplative Prayer, and many more. There are a number of groups in Mobile that can help get you started, or you can access the web, get the technique, and start yourself. See Ready to Give Meditation a Try? by Kimberly Goad. This is a beginner’s guide to quieting the mind in time of stress, available from AARP (April 21, 2020). Click here to search for and view the guide on the AARP website.

So contemplate meditation. It’s never too late, and I believe the benefits to you will soon snowball!

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YOUNG LAWYERS SECTION

By John Leech, Young Lawyers Section President

The annual YL Golf Tournament was held May 5th at Springhill Golf Course. It was a great success thanks to our sponsors, supporters, participants, and committee members, who work diligently each year to make sure the event is done well. Thank you to all who participated this year!

On May 4th, we held our May YL Social & Golf Tournament Kickoff Party at El Papi, sponsored by Taylor Martino. Turnout was great. It was an excellent way to start the festivities of the golf tournament. We appreciate Taylor Martino’s support and everyone in the Bar who attended.

Our annual Trivia Tournament is scheduled for July 13th at Moe’s BBQ Downtown. If you or your firm would like information on sponsorship opportunities or on how to enter a team, please contact our Trivia Committee Chair, Rachel Jernigan, at [email protected].

Our next YL Social will be at Cedar Street Social Club (4 N. Cedar St.) on June 22nd at 5:30 PM. This event is being sponsored by Long & Long, P.C., and we would like to thank them for their support. We are excited by the strong attendance each month at our YL Socials and encourage all of our members to attend, along with your summer clerks and staff.

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WOMEN LAWYERS

By Tiffany Ray, Women Lawyers President

Many thanks to all who attended Women Lawyers’ Lunch and Learn May 9 at the Federal Courthouse, and especially to Ginger Poynter, our treasurer, for planning the event, and Danielle Mashburn-Myrick for her thoughtful and informative discussion of bankruptcy issues for non-bankruptcy lawyers! It was our second CLE event of the year, and we were excited to see so many of you there.

NEXT UP is our annual TRAILBLAZER TEA! We are thrilled to honor U.S. Magistrate Judge Sonja Bivins as our 2023 Trailblazer and look forward to celebrating her at our signature event of the year.  

The Trailblazer Tea is scheduled for June 14 at 11:30 a.m. in the Crystal Ballroom of the Battle House Hotel. Tickets are $25 for MBAWL members and $30 for nonmembers. Tickets may be purchased by cash or check at the door or mailed in advance to: MBAWL, P.O. Box 235, Mobile, AL 36601.  Please note the deadline to register is June 7 at noon.  



Click here to register for the Trailblazer Tea.

Many thanks to our sponsors, including gold-level sponsors Burr & Forman, Cunningham Bounds, Hand Arendall Harrison Sale, and Taylor Martino. Our planning committee—Chairperson Valynda Jerome-Williams, Margaret Enfinger Pace, Jennifer Jayjohn York, and Tiffany Smith— has worked hard to plan a beautiful event. We look forward to seeing you there!

If you have any questions about upcoming events or becoming a member of MBAWL, feel free to email me at [email protected].

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VERNON Z. CRAWFORD BAY AREA BAR ASSOCIATION

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In Kawzinski v. Lyne, No. SC-2022-0818 (Ala. April 21, 2023), the Supreme Court held that the former spouse of a decedent failed to timely appeal a trial court’s order granting summary judgment to the personal representative of the decedent’s estate to quiet title to certain real property and ordering the sale of the property. Despite the fact that a subsequent order from the Elmore County Circuit Court stated that the original order quieting title and mandating sale was “not a final order,” the Supreme Court noted that it is well established in Alabama that in sale-for-division cases, both the order directing the sale and the subsequent order confirming the sale are considered final judgments for purposes of appeal pursuant to Ala. R. App. P. 4(a)(1). Therefore, despite the erroneous language from the trial court, the former spouse’s time to file an appeal began to run on the date of the original order quieting title and ordering sale for division.

In Lafayette Land Acquisitions II, LLC v. Walls, No. SC-2022-0765 (Ala. April 21, 2023), the Supreme Court held that a real property purchase agreement could not be avoided and would be enforced, as its terms were unambiguous and had been validly agreed to and bargained for. While the party challenging the agreement asserted several arguments based on circumstances surrounding the sale of the property, the Supreme Court held that the plain, unambiguous language of the agreement would not allow the Court to consider matters outside the four corners of the contract, and the challenging party had failed to provide or cite to any evidence supporting contractual arguments to invalidate the agreement.

In Flickinger v. King, No. SC-2022-0721 (Ala. April 21, 2023), the Supreme Court held that statements that an attorney was allegedly racist, which were shared by an area plaintiff’s firm with the attorney’s defense firm employer as part of an allegedly counterfeit social media profile, were sufficient to support a claim of tortious interference against the sharing plaintiff’s firm, though the same did not support a claim for defamation. According to the Court, while the statements were “ill-considered,” they were not actionable defamatory statements because the statements amounted to nothing more than expressions of opinion.    

In Bentley v. Bentley, No. SC-2022-0522 (Ala. April 21, 2023), the Supreme Court held that the consent of a co-executor of an estate was not required in order to bring a lawsuit on behalf of the estate when such suit was brought against the co-executor. Acknowledging, first, that under Alabama law, co-executors must act unanimously in making decisions that are discretionary and not within the normal process of administering an estate, and that an executor’s decision to file a lawsuit on behalf of the estate is discretionary in nature, the Court ultimately held that such general rules did not apply in the case of a co-executor bringing suit on behalf of the estate against another co-executor.

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BORN: On February 28, 2023, MBA Member Frederick T. “Erick” Bussey and wife DeLacy welcomed son Thomas Potter Bussey. Thomas comes from a long line of Mobile lawyers and joins older brother Lan. Thomas is the great-grandson of MBA Member Fred W. Killion, Jr., the great-nephew of MBA Member Fred W. Killion, III, and MBA Member James W. “Jimmy” Killion, and grandson of the late MBA Member Thomas P. “Corky” Ollinger, Jr. Welcome, Thomas, and congratulations, Busseys!

DIED: John Clanton Sport, father of MBA Member Jeffrey Sport, died on April 6, 2023. A native of Crenshaw County, John graduated from Dozier High School. During the Korean war, he served in the Army on an atomic gun crew patrolling the East German border. In 1956, he left the military to marry his high school sweetheart. John worked as a startup operator in various chemical/industrial processing plants around the globe, specializing in liquefied natural gas. He was an avid hunter and fisherman who loved spending time with his grandchildren and great-grandchildren. John is survived by his wife of over 66 years, their two sons, six grandchildren, and eight great-grandchildren.

The following applicants applied and were approved for membership by the Mobile Bar Association. They were welcomed into the Mobile Bar Association on Friday, May 12, 2023.

Active Membership

• Vallee Connor, graduated from Thomas Goode Jones School of Law in 2019, admitted to the Alabama State Bar in 2019, and is employed with Frances Hoit Hollinger, LLC.
• Scott A. Gray, graduated from the University of Alabama School of Law in 2013, admitted to the Alabama State Bar in 2013, and is employed with U.S. Attorney’s Office.
• Aryne Hudson, graduated from the University of Alabama School of Law in 2019, admitted to the Alabama State Bar in 2022, and is employed with Phelps Dunbar, LLP.
• James Adam R. Muns, graduated from Thomas Goode Jones School of Law in 2019, admitted to the Alabama State Bar in 2019, and is employed with Hernandez and Associates Law Firm, LLC.
• Vanessa Romero, graduated from Vermont Law School in 2021, admitted to the Alabama State Bar in 2023, and is a solo practitioner.
• Caleb D. Smoke, graduated from the University of Alabama School of Law in 2022, admitted to the Alabama State Bar in 2023, and is employed with Anders, Boyett, Brady & Smith.

Associate Membership

• Solita King, graduated from the Charlotte School of Law, North Carolina, in 2014 and is employed with Larimer Law.

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David Trice is now the Chief Compliance Officer and General Counsel for DocRx, Inc. His new address is 4636 Bit and Spur Road, Mobile, AL 36608. Phone (251) 308-1961, ext. 491, and email address is [email protected].

Searching for a Last Will & Testament of recently deceased Willie Daniel Coleman, Sr., a Mobile County resident. Please contact his son, Ashley Coleman by phone at (757) 753-0367 or by email at [email protected], if you have a LWT signed by his father.

Nice, affordable offices for rent in Midtown at the Loop. Located on Government St. next to Little Flower Catholic School. Plenty of free parking. The space includes 1-3 offices as well as a reception area, bathroom, and kitchenette. A conference room is also available for use. The offices are 134 sq.ft.; 146 sq.ft.; and 191 sq.ft. The waiting room is 147 sq.ft. Contact Mike McNair, office: (251) 450-0111; cell: (251) 510-3223. Email: [email protected].

Law office for sale in the Government Street/Loop area. Perfect space for two or three lawyers plus support staff. Office furniture for sale as well. If interested, please contact Cameron Weavil at (251) 438-6000 or [email protected].

In honor of: Justice Sarah Stewart

Donated by: St. Luke's Episcopal School, Class of 2023

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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 June.

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STAY CONNECTED