author:
Bill Penix, Special Chief Justice.
      John A. Fogleman, Justice,

text:
    Phinis W. SLIGH and Beulah SLIGH and PINE BLUFF PRODUCTION CREDIT ASSOCIATION v. O. F. PLAIR
    77-116
    569 S.W. 2d 58
    Opinion delivered July 10, 1978
    (In Banc)
    [Rehearing denied September 11, 1978.]

      Robert E. Garner and Bridges, Young, Matthews & Davis, for appellants.

      Paul K. Roberts, for appellee.
   Bill Penix, Special Chief Justice.

On February 11, 1932, O. F. Plair and L. J. Plair, his wife, conveyed by warranty deed 53.5 acres of land in Bradley County, Arkansas to their daughter, Beulah Slight and “her bodily heirs”. The consideration was $900 to be paid over five years for which a lien was retained. The deed recited:

. . . the further consideration and condition that the said Beulah Sligh shall live upon the premises herein conveyed and shall not mortgage, sell or in any way alienate the same. Such conditions to be binding upon and to be observed by grantee herein, and in case of any violation or non-observance of the above condition, then this deed shall be null and void and the said premises shall then and there, and wholly and absolutely revert to the grantors herein, their heirs, executors, administrators and assigns, and no act or omission on the part of any of the later shall be a waiver of the enforcement of such conditions. . .

Beulah Sligh and her husband, Phinis W. Sligh lived on the lands until 1941 or 1942 when they moved into the nearby city of Warren. They continued to use the lands for agricultural purposes.

In 1966, Beulah Sligh conveyed one acre of the 53.5 acres to her sister-in-law and husband, Mr. and Mrs. Salter. At that time, O. F. Plair suggested to his daughter, Beulah Sligh, that she not sell anymore of the land. The Slighs mortgaged the 53.5 acres and other lands to First Savings and Loan Association in 1970. They executed a second mortgage in 1972 to Pine Bluff Production Credit Association.

In 1976, when the Slighs were delinquent on their mortgage payments, First Savings filed this action for foreclosure. The Pine Bluff Production Credit Association, having the second mortgage, was named a defendant. In July, 1976, the father, O. F. Plair, filed his intervention contending the two mortgages were breaches of the conditions of the 1932 deed entitling him to retake possession of the property. During the 44 years from execution of the deed to his daughter to his intervention in this action, O. F. Plair lived near Beulah Sligh in Bradley County and they visited. After Plair’s intervention, Pine Bluff Production Credit Association amended and made as parties defendant the three children of Beulah and Phinis Sligh, Freddie Charles Sligh, Betty Lou Sligh, and Patricia Powell.

At the trial, Mr. and Mrs. Sligh and their children, Freddie Charles Sligh, Betty Lou Greenwood and Patricia Powell, all stipulated that Pine Bluff Production Credit Association and First Savings could have judgment foreclosing and terminating any interest these parties might claim in the 53.5 acres. First Savings waived any rights against the 53.5 acres.

The Chancellor awarded judgments to the lenders against the Slighs and gave Pine Bluff Production Credit Association “judgment as against Betty Lou Greenwood, Patricia Powell and Freddie Charles Sligh foreclosing and terminating any interest that [they] may claim in and to the 53.5 acre tract. . . ” However, the Court held that Beulah Sligh by the sale or mortgages had committed a forfeiture of a condition subsequent and title to the 53.5 acres thus reverted to O. F. Plair.

Beulah Sligh violated conditions set out in the deed when she moved from the farm to town 34 years before O. F. Plair intervened in this suit. Again, she acted contrary to the terms of the deed when she sold off an acre ten years before the intervention. Her mortgages in 1970 and 1972 also violated the terms of the deed.

The 1932 deed purported to create a fee tail estate with a condition subsequent. O. F. Plair did not declare a breach of condition until 44 years after his deed. This was after other violations of conditions which obviously had been known to him. Regardless of the wording of the deed suggesting that no act or omission on the part of O. F. Plair would be a waiver of enforcement of the conditions, this Court will not allow a reverter to O. F. Plair. Conditions subsequent are not favored and are to be construed most strongly against the grantor to prevent a forfeiture. See cases collected at 26 C.J.S., Deeds, § 141 et seq.; 28 Am. Jur. 2d, Estates, § 166 et seq.; Annot., 39 A.L.R. 2d 1168.

The Arkansas Supreme Court has long held that “. . . slight circumstances will often be seized upon to prevent such forfeiture. ” Jeffries v. State for Use of Woodruff County, 216 Ark. 657, 226 S.W. 2d 810 (1950). This Court has further noted that:

Any conduct on the part of the party having the right to declare a forfeiture which is calculated to induce the other party to believe that the forfeiture is not to be insisted on will be treated as a waiver.

Kampman v. Kampman, 98 Ark. 328, 135 S.W. 905 (1911). See also Terry v. Taylor, 143 Ark. 208, 220 S.W. 42 (1920); Bain v. Parker, 77 Ark. 168, 90 S.W. 1000 (1905). The Court here holds that O. F. Plair did not exercise, but waived, any right of re-entry he might have had. No forfeiture will be ordered where, as here, the deed anticipated more than one condition subsequent and the grantor failed to act within a reasonable time after he could have asserted a forfeiture.

Pine Bluff Production Credit Association is entitled to a foreclosure decree of the interest of Beulah Sligh in the 53.5 acres, less the one acre deeded to Mr. and Mrs. Salter. The Sligh’s three children, Freddie Charles Sligh, Betty Lou Greenwood and Patricia Powell having stipulated in open court that Pine Bluff Production Credit Association have judgment foreclosing and terminating any interest they might have in the 53.5 acres, are estopped from asserting any personal interest in the lands in the future. However, the 1932 deed to Beulah Sligh created a fee tail and vested only a life estate in her with a contingent remainder in the heirs of her body. Such remainder interest will not vest until the death of Beulah Sligh. It is possible, but not certain, that such interest will vest in the three children at the death of Beulah Sligh. If one of the three children should predecease Beulah Sligh, then a portion of the contingent remainder could vest in grandchildren who would not be estopped against Pine Bluff Production Credit Association. Ark. Stat. Ann. § 50-405 (Repl. 1971); Fletcher v. Hurdle, 259 Ark. 640, 536 S.W. 2d 109 (1976).

The lower court is reversed and this case is remanded to the Chancery Court of Bradley County with directions to enter a decree in conformity with this decision.

Special Justice John F. Stroud, Jr., joins in the opinion. Fogleman and Byrd, JJ., dissent. Harris, C.J., and Holt, J., not participating.

John A. Fogleman, Justice,

dissenting. The petition of the intervenor-appellee Plair was granted by the chancery court and title to the disputed land vested in him. Plair’s intervention alleged that he had previously had no information that Beulah Sligh had mortgaged the land conveyed by Plair to his daughter Beulah and her bodily heirs. There is evidence to sustain this allegation which the chancellor obviously believed. It is not contradicted. The majority ignores this fact. This fact necessarily had a significant bearing on the trial court’s holding, since appellant Pine Bluff Production Credit Association pleaded waiver and estoppel. It should not be ignored. It was not clearly against the preponderance of the evidence. It is also significant that the Slighs did not plead waiver or estoppel — and for good reason, apparently. No issue was raised in the trial court on the question as between Plair and the Slighs. Even so, the Slighs are included in the notice of appeal and listed as appellants without ever having filed a pleading in response to Plair’s intervention.

In order to reverse the chancellor the majority must say that the chancery court’s finding of fact was clearly against the preponderance of the evidence. He specifically found that the “waiver, if any, . . . cannot adhere to the benefit of Pine Bluff Credit Association.” Questions of waiver and estoppel are almost invariably questions of fact based upon conduct of a party. Lawyers Trust Co. v. City of Houston, 359 S.W. 2d 887 (Tex., 1962). When they are not purely questions of fact, they are usually mixed questions of law and fact. In. considering such questions, the conduct shown should be carefully inspected and all the evidence on the subject impartially scrutinized. Ray Dodge, Inc. v. Moore, 251 Ark. 1036, 479 S.W. 2d 518; Sirmon v. Roberts, 209 Ark. 586, 191 S.W. 2d 824. It must also be remembered that the burden of proving waiver, and all its essential elements rested upon Pine Bluff Production Credit Association. Planters Mut. Ins. Co. v. Loyd, 67 Ark. 584, 56 S.W. 44, 77 Am. St. Rep. 136; Hartford Fire Ins. Co. v. Enoch, 72 Ark. 47, 77 S.W. 899. A careful scrutiny of the evidence in the light of the law of waiver tends to sustain the chancellor. I do not see how such a scrutiny can be said to show that he held contrary to the preponderance of the evidence.

Waiver is the voluntary and intentional relinquishment or abandonment of a known right. Ray Dodge, Inc. v. Moore, supra; Keith v. City of Cave Springs, 233 Ark. 363, 344 S.W. 2d 591; First National Bank of Mineral Springs v. Hayes-McKean Hardware Co., 178 Ark. 429, 10 S.W. 2d 866; Sovereign Camp, Woodmen of the World v. Newsom, 142 Ark. 132, 219 S.W. 759, 14 ALR 903; 28 Am. Jur. 2d 842, Estoppel and Waiver, § 158. Doing something inconsistent with the right or with its possessor’s intention to rely on it, with full knowledge of the material facts may constitute waiver. Ray Dodge, Inc. v. Moore, supra; Sirmon v. Roberts, supra; Sovereign Camp, Woodmen of the World v. Newsom, supra. See also, Phoenix Ins. Co. v. Flemming, 65 Ark. 54, 44 S.W. 464, 39 LRA 789, 67 Am. St. Rep. 900. If Plair did not know that the Slighs had mortgaged the land, he cannot be said to have known of his right to declare a forfeiture on that ground. The burden of proof of Plair’s knowledge was on Pine Bluff Production Credit Association. Phoenix Fire Ins. Co. v. Flemming, supra. He certainly is not charged with knowledge of the recording of mortgages subsequent to his conveyance to his daughter. Since they were not in his line of title, he was not required to look for them. Turman v. Sanford, 69 Ark. 95, 61 S.W. 167; Singer v. Nolon, 99 Ark. 446, 138 S.W. 958; Rozzell v. Chicago Mill & Lumber Co., 76 Ark. 525, 89 S.W. 469. His waiver must be found in other conduct.

There is no evidence that the property was ever mortgaged prior to 1970, and no evidence that Plair knew of any mortgage until he learned of this foreclosure suit shortly before he asked permission to intervene. Mrs. Sligh testified that she did not tell her father when the 1970 mortgage was given to First Savings and Loan Association. There is not one word of evidence that Plair had ever waived the condition that Beulah Sligh “shall not mortgage . . . same.” The conditions are not interdependent. The majority, without citation of authority, somewhat ambiguously states that “[n]o forfeiture will be ordered, where, as here, the deed anticipated more than one condition subsequent and the grantor failed to act within a reasonable time after he could have acted.” Why not? I suppose the majority means that Plair was required to act within a reasonable time after Beulah sold one acre “about 1966,” or perhaps when the Slighs started living in Warren in 1942. But if a condition subsequent is continuing in character, contemplating the continual refraining from doing certain acts, the waiver is operative only on past breaches. 28 Am. Jur. 2d 297, Estates, § 168; Annot. 11 LRA (n.s.) 398, 404.

The majority’s quoted statement is clearly contrary to Arkansas law. Waiver of one ground of forfeiture, of which the party having the right to declare a forfeiture has knowledge, does not constitute a waiver of another ground of forfeiture of which he has no knowledge. National Life & Accident Ins. Co. v. Davison, 187 Ark. 153, 58 S.W. 2d 691; Planters Mutual Ins. Co. v. Loyd, supra.

As recognized in the cases cited, there may be a waiver of a condition in part but not otherwise. Annot. 39 ALR 2d 1116, 1132. And the waiver of a forfeiture resulting from the breach of a condition subsequent in favor of a named person and for a stated purpose is limited to the terms of the waiver, and does not destroy the condition altogether. Moss v. Chappell, 126 Ga. 196, 54 S.E. 968, 11 LRA (n.s.) 398 (1906).

Obviously the condition that Beulah Sligh “shall live upon the premises” is wholly unrelated to the condition that she “shall not mortgage, sell or in any way alienate same.” But the majority says that a waiver of one condition is a waiver of all. Why? Again the majority’s statement is contrary to Arkansas law. The waiver of one condition is not waiver of another. Hartford Fire Ins. Co. v. Enoch, supra.

Although the Slighs did not live on the property, the evidence showed that Plair intended that they have a home there; they built a house there, which was always occupied either by someone working on the land or by one renting the house; they truck farmed the land, raised cotton or had a chicken operation on the land up until the present; they still maintain the property and it is in “tolerable fair condition.” Beulah Sligh said that after she and her husband moved off the farm they used the land “just like we had always done” except for renting the house to various people. The father said he felt they were still using the home and taking care of their stock. Why was it a waiver of a condition against mortgaging the property for the father to be satisfied with this arrangement to the extent that there was no forfeiture against his daughter?

The one acre sale is even less basis for finding waiver. It was a sale to Beulah Sligh’s sister-in-law. Beulah Sligh testified that she sold the property to the Salters because they wanted to retire and “they were in the family.” When this was done, Plair told his daughter, according to her, “I don’t want you to sell any more of it off.” The father said he told her: “Don’t you sell any more.” The daughter said she told him she had no intention to do so. Why is this sale of one acre to a relative a waiver of the condition that the property not be mortgaged? In the very next section to that cited by the majority from 28 Am. Jur. 2d, Estates, I find in § 167, p. 295, this appropriate and applicable language:

A mere indulgence is never to be construed into a waiver of a breach of condition. ***** and mere silence or delay is not sufficient to establish such a waiver, especially since the grantor may not have been aware of the breach. *****

Plair’s indulgence of his daughter’s leaving her dwelling house on the land, accompanied by its maintenance in liveable condition, so she could return to it, of her cutting timber, which probably made the property more desirable for the uses to which it was put and his indulgence when less than 2% of the total acreage was sold to a member of her family, certainly should not be considered as a waiver of future breaches, particularly when the father made it quite clear to the daughter that he would tolerate no more sales. It is a particularly weak and insubstantial basis for overturning the trial court’s holding.

The majority has actually failed to make the important distinction as to the difference between waiver of a breach and waiver of a condition. The most vital inquiry is whether the condition itself was waived or whether given breaches were waived. 28 Am. Jur. 2d 296, Estates, § 168; Annot. 39 ALR 2d 1116, 1131; Moss v. Chappell, supra. If the condition was not waived (and admittedly Plair made it quite clear to his daughter that he was not waiving the condition, even though he waived a breach), waiver of a breach is not to be construed as a waiver of all right to future performance. 28 Am. Jur. 2d 296, § 168. See Kampman v. Kampman, 98 Ark. 328, 135 S.W. 905; Moss v. Chappell, supra.

The greatest flaw in the majority’s conclusion, however, is the writing off of the clear language of the deed. The words “and no act or omission on the part of any of the latter shall be a waiver of the enforcement of such conditions” are unambiguous. The majority writes these words out of the deed by saying, “Regardless of the wording . . . this court will not allow a reverter to O. F. Plair.” Again the statement is without citation of authority, and again, I ask “Why?”

This clause was deliberately inserted to prevent any attempted application of the much criticized rule in Dumpor’s case, (4 Coke, 1196), i.e., that, where the condition is negative, i.e., that a lessee will not do a particular act without license from the lessor, if license be once granted, the condition is gone, and the estate discharged of it. See discussion in An-not., 11 LRA (n.s.) 398. Even in the absence of such a clause, a waiver of past breaches of a condition cannot be construed into a waiver of all rights to future observance and performance. Ritchie v. Kansas N & D Rwy. Co., 55 Kan. 36, 39 P. 718 (1895); Rumford Falls Power Co. v. Waishwill, 128 Me. 320, 147 A. 343 (1929). This principle was clearly and specifically recognized in Kampman v. Kampman, supra, cited in the majority opinion. The holding in the Maine case just cited is particularly applicable here, and is well stated in a headnote which reads:

Under deed containing condition subsequent providing for forfeiture of estate conveyed, if grantee shall erect or maintain within twenty-five years any building on lot conveyed, except dwelling house suitable for not more than two families, where grantee erected dwelling house suitable for three families without consent and objection by grantor, and later moved another dwelling on lot against grantor’s objections, grantor was entitled to forfeiture.

Waiver is more readily found in the actions of insurance companies than in any other case. But even then, the validity of such a non-waiver agreement as that which appeared in this deed is recognized. This does not mean that a non-waiver agreement cannot itself be waived, but, in order to effect a waiver, there must be conduct amounting to an estoppel. Queen of Arkansas Ins. Co. v. Forlines, 94 Ark. 227, 126 Ark. 719. A clear statement of the rule in respect to insurance companies is found at 39 C.J.S. 675, Insurance 704a, viz:

Nonwaiver clauses. Stipulations in the policy that the conditions thereof shall not be waived by certain acts may be altered or waived by subsequent contracts or may be waived by acts and conduct amounting to an estoppel, but, in the absence of such a waiver, are valid and operative.

We have said that, in order to be binding, a waiver must operate either by estoppel or be based upon some consideration. Continental Ins. Co. v. Stanley, 263 Ark. 638, 569 S.W. 2d 653; Lawrence County v. Stewart Bros., 72 Ark. 525, 81 S.W. 1059. While it has been said that waiver need not be based upon a technical estoppel, we have said that a correct statement of the law is that when there is no express waiver, it is recognized in all cases where the question is presented that the elements of estoppel exist. Phoenix Ins. Co. v. Flemming, supra. This requires a showing of a change in position in reliance upon the conduct alleged to be the basis of an estoppel. Christmas v. Raley, 260 Ark. 150, 539 S.W. 2d 405.

The chancellor correctly held that waiver by Plair, if any, did not inure to the benefit of Pine Bluff Production Credit Association, the only appellant having any right of appeal. “. . . [T]he party claiming the waiver must show that he relied upon . . . conduct [of the party having the right to insist on a forfeiture] or that he was misled to his injury, or that he changed his position to his damage or that he paid a consideration for the waiver.” Beene v. Green, 127 Ark. 119, 191 S.W. 915. See also, 28 Am. Jur. 2d 295, Estates, § 167.

The question whether waiver is to be found depends upon the effect of the conduct of the party against whom it is asserted upon the other party. 28 Am. Jur. 2d 843, Estoppel and Waiver, § 158. See also, Moss v. Chappell, supra. There is not one word of testimony to even suggest that Pine Bluff Production Credit Association ever knew of, much less relied upon, any conduct of Plair, in taking the mortgage from the Slighs or in making the loan it secured. And it was charged with notice of the conditions of the conveyance to Mrs. Sligh.

I would affirm the decree.

I am authorized to state that Mr. Justice Byrd joins in this opinion.

      The sister-in-law and husband, Mr. and Mrs. Salter, who were deeded one acre of the 53.5 acre tract by Beulah Sligh in 1966, were not parties to this action.

      We take note of Ark. Stat. Ann. § 50-405.1 (Repl. 1971), which purports to set up a provision for the dissolution of an estate tail by joint undertaking of the grantor, all life tenants and all contingent remaindermen signing. This statute would not apply to the facts above.


source: Caselaw Access Project

author: PER CURIAM John A. Fogleman, Justice, George Howard, Jr., Justice,

license: Public Domain

text:
    ARKANSAS BAR ASSOCIATION, Petitioner In re: Amendments to the Code of Professional Responsibility and Canons of Judicial Ethics.
    77-330
    July 17, 1978

      Jeff Starling, of Coleman, Gantt, Ramsay & Cox, and W. Russell Meeks HI, of Barber, McCaskill, Amsler & Jones, for petitioner, Arkansas Bar Association.
    Legal Aid Bureau of Central Arkansas, petitioner, pro se.

      Robert M. Cearley, Jr., for Arkansas affiliate of American Civil Liberties Union.
   PER CURIAM

After considering the petition of the Arkansas Bar Association and the responses, and petitions thereto filed by the Attorney General, the American Civil Liberties Union, The Legal Aid Bureau of Central Arkansas and ACORN, ACR and the Arkansas AFL-CIO, we have made the following amendments to the Code of Professional Responsibility to-wit:

1. Ethical Consideration 2-2, is amended to read as follows, in its entirety: The legal profession should assist nonlawyers to recognize legal problems because such problems may not be self-revealing and often are not timely noticed. Therefore, lawyers should encourage and participate in educational and public relations programs concerning our legal system with particular reference to legal problems that frequently arise. Preparation of advertisements and professional articles for lay publications and participation in seminars, lectures, and civic programs should be motivated by a desire to educate the public to an awareness of legal needs rather than to obtain publicity for particular lawyers.

2. Ethical Consideration 2-3, is amended to read as follows, in its entirety: Whether a lawyer acts properly in volunteering in-person advice to a nonlawyer to seek legal services depends upon the circumstances. The giving of advice that one should take legal action could well be in fulfillment of the duty of the legal profession to assist nonlawyers in recognizing legal problems. The advice is proper only if motivated by a desire to protect one who does not recognize that he may have legal problems or who is ignorant of his legal rights or obligations. It is improper if motivated by a desire to obtain personal benefit, secure personal publicity, or cause legal action to be taken merely to harass or injure another. A lawyer should not initiate an in-person contact with a non-client, personally or through a representative, for the purpose of being retained to represent him for compensation.

3. Ethical Consideration 2-4, is amended to read as follows, in its entirety: Since motivation is subjective and often difficult to judge, the motives of a lawyer who volunteers in-person advice likely to produce legal controversy may well be suspect if he receives professional employment or other benefits as a result. A lawyer who volunteers in-person advice that one should obtain the services of a lawyer generally should not himself accept employment, compensation, or other benefit in connection with that matter. However, it is not improper for a lawyer to volunteer such advice and render resulting legal services to close friends, relatives, former clients (in regard to matters germane to former employment), and regular clients.

4. Ethical Consideration 2-5 is amended to read as follows, in its entirety: A lawyer who writes or speaks for the purpose of educating members of the public to recognize their legal problems should carefully refrain from giving or appearing to give a general solution applicable to all apparently similar individual problems, since slight changes in fact situations may require a material variance in the applicable advice; otherwise, the public may be misled and misadvised. Talks and writings by lawyers for nonlawyers should caution them not to attempt to solve individual problems upon the basis of the information contained therein.

5. Ethical Consideration 2-6 is amended to read as follows, in its entirety: Formerly a potential client usually knew the reputations of local lawyers for competency and integrity and therefore could select a practitioner in whom he or she had confidence. This traditional selection process worked well because it was initiated by the client and the choice was an informed one.

6. Ethical Consideration 2-7 is amended to read as follows, in its entirety: Changed conditions, however, have seriously restricted the effectiveness of the traditional selection process. Often the reputations of lawyers are not sufficiently known to enable nonlawyers to make intelligent choices. The law has become increasingly complex and specialized. New lawyers are willing and competent to deal with every kind of legal matter, and many nonlawyers have difficulty in determining the competence of lawyers to render different types of legal services. The selection of legal counsel is particularly difficult for transients, persons moving into new areas, persons of limited education or means, and others who have little or no contact with lawyers. Lack of information about the availability of lawyers, the qualifications of particular lawyers, and the expense of legal repi mentation may lead nonlawyers to avoid seeking legal advice.

7. Ethical Consideration 2-8, is amended to read as follows, in its entirety: Selection of a lawyer by a nonlawyer should be made on an informed basis. Advice and recommendation of third parties — relatives, friends, acquaintances, business associates, or other lawyers — and disclosure of relevant information about the lawyer and his practice may be helpful. A nonlawyer is best served if the recommendation is disinterested and informed. In order that the recommendation be disinterested, a lawyer should not seek to influence another to recommend his employment. A lawyer should not compensate another person for recommending him, for influencing a prospective client to employ him, or to encourage future recommendations. Advertisements and public communications, whether in law lists, telephone directories, newspapers, other forms of print media, television or radio, should be formulated to convey only information that is necessary to make an appropriate selection. Such information includes: (1) office information, such as, name, including name of law firm and names of professional associates; addresses; telephone numbers; credit card acceptability; fluency in foreign languages; and office hours; (2) relevant biographical information; (3) description of the practice, for example, one or more fields of law in which the lawyer or law firm practices; and (4) permitted fee information. Self-laudation should be avoided.

8. Ethical Consideration 2-9, is amended to read as follows, in its entirety: The lack of sophistication on the part of many members of the public concerning legal services, the importance of the interests affected by the choice of a lawyer and prior experience with unrestricted lawyer advertising, require that special care be taken by lawyers to avoid misleading the public and to assure that the information set forth in any advertising is relevant to the selection of a lawyer. The lawyer must be mindful that the benefits of lawyer advertising depend upon its reliability and accuracy. Examples of information in law advertising that would be deceptive include misstatements of fact, suggestions that the ingenuity or prior record of a lawyer rather than the justice of the claim are the principal factors likely to determine the result, inclusion of information irrelevant to selecting a lawyer, and representations concerning the quality of service, which cannot be measured or verified. Since lawyer advertising is calculated and not spontaneous, reasonable regulation of lawyer advertising to foster compliance with appropriate standards serves the public interest without impeding the flow of useful, meaningful, and relevant information to the public.

9. Ethical Consideration 2-10 is amended to read as follows, in its entirety: A lawyer should ensure that the information contained in any advertising which the lawyer publishes, broadcasts, or causes to be published or .broadcasted is relevant, is disseminated in an objective and understandable fashion, and would facilitate the prospective client’s ability to compare the qualifications of lawyers available to represent him. A lawyer should strive to communicate such information without undue emphasis upon style and advertising strategems which serve to hinder rather than to facilitate intelligent selection of counsel. Because technological change is a recurrent feature of communications forms, and because perceptions of what is relevant in lawyer selection may change, lawyer advertising regulations should not be cast in rigid, unchangeable terms. Machinery is therefore available to advertisers and consumers for prompt consideration of proposals to change the rules governing lawyer advertising. The determination of any request for such change should depend upon whether the proposal is necessary in light of existing Code provisions, whether the proposal accords with standards of accuracy, reliability and truthfulness, and whether the proposal would facilitate informed selection of lawyers by potential consumers of legal service. Representatives of lawyers and consumers should be heard in addition to the applicant concerning any proposed change. Any change which is approved should be promulgated in the form of an amendment to the Code so that all lawyers practicing in the jurisdiction may avail themselves of its provisions.

10. Ethical Consideration 2-11 is amended to read as follows, in its entirety: The name under which a lawyer conducts his practice may be a factor in the selection process. The use of a trade name or an assumed name could mislead nonlawyers concerning the identity, responsibility, and status of those practicing thereunder. Accordingly, a lawyer in private practice should practice only under a designation containing his own name, the name of a lawyer employing him, the name of one or more of the lawyers practicing in a partnership, or, if permitted by law, the name of a professional legal corporation, which should be clearly designated as such. For many years some law firms have used a firm name retaining one or more names of deceased or retired partners and such practice is not improper if the firm is a bona fide successor of a firm in which the deceased or retired person was a member, if the use of the name is authorized by law or by contract, and if the public is not misled thereby. However, the name of a partner who withdraws from a firm but continues to practice law should be omitted from the firm name in order to avoid misleading the public.

11. Ethical Consideration 2-14 is amended to read as follows, in its entirety: In some instances a lawyer confines his practice to a particular field of law. In the absence of state controls to insure the existence of special competence, a lawyer should not be permitted to hold himself out as a specialist or as having official recognition as a specialist, other than in the fields of admiralty, trademark, and patent law where a holding out as a specialist historically has been permitted. A lawyer may, however, indicate in permitted advertising, if it is factual, one or more particular areas of fields of law in which he practices. A lawyer practicing in a jurisdiction which certified specialists must also be careful not to confuse nonlawyers to his status. If a lawyer discloses areas of law in which he practices or to which he limits his practice, but is not certified in Arkansas, he, and the designation authorized in Arkansas, should avoid any implication that he is in fact certified.

12’. Disciplinary Rule 2-101 is amended to read, in its entirety, as follows: Publicity:

(A) A lawyer shall not, on behalf of himself, his partner, associate or any other lawyer affiliated with him or his firm, use or participate in the use of any form of public communication containing a false, fraudulent, misleading, deceptive, self-laudatory or unfair statement or claim.
(B) In order to facilitate the process of informed selection of a lawyer by potential consumers of legal services, a lawyer may broadcast, subject to DR 2-103, the following information in the geographic area or areas in which the lawyer resides or maintains offices or in which a significant part of the lawyer’s clientele resides, provided that the information disclosed by the lawyer in such publication or broadcast complies with DR 2-101 (A).
(1) Name, including name of law firm and names of professional associates; addresses and telephone numbers;
(2) One or more fields of law in which the lawyer or law firm practices or a statement that the lawyer or law firm specializes in a particular field of law practice, to the extent authorized under DR 2-105;
(3) Date and place of birth;
(4) Date and place of admission to the bar of state and federal courts;
(5) Schools attended, with dates of graduation, degrees and other scholastic distinctions;
(6) Public or quasi-public offices;
(7) Military service;
(8) Legal authorships;
(9) Legal teaching positions;
(10) Memberships, offices, and committee assignments, in bar associations;
(11) Membership and offices in legal fraternities and legal societies;
(12) Technical and professional licenses;
(13) Memberships in scientific, technical and professional associations and societies;
(14) Foreign language ability;
(15) Names and addresses of bank references;
(16) With their written consent, names of clients regularly represented;
(17) Prepaid or group legal services programs in which the lawyer participates;
(18) Whether credit cards or other credit arrangements are accepted;
(19) Office and telephone answering service hours;
(20) Fee for an initial consultation;
(21) Availability upon request of a written schedule of fees and/or an estimate of the fee to be charged for specific services;
(22) Contingent fee rates subject to DR 2-106(C), provided that the statement discloses whether percentages are computed before or after deduction of costs; and that the client is responsible for the costs regardless of the outcome of the litigation.
(23) Range of fees for services, provided that the statement discloses that the specific fee within the range which will be charged will vary depending upon the particular matter to be handled for each client and the client is entitled without obligation to an estimate of the fee within the range likely to be charged, in print size equivalent to the largest print used in setting forth fee information;
(24) Hourly rate, provided that the statement discloses that the total fee charged will depend upon the number of hours which must be devoted to the particular matter to be handled for each client and the client is entitled to without obligation an estimate of the fee likely to be charged, in print size at least equivalent to the largest print used in setting forth the fee information;
(25) Fixed fees for specific legal services, which must be accompanied by a description of the services which shall not be misleading or deceptive, provided that the statement discloses that the quoted fee will be available only to clients whose matters fall into the services described and that the client is entitled without obligation to a specific estimate of the fee likely to be charged in print size at least equivalent to the largest print used in setting forth the fee information;
(C) Any person desiring to expand the information authorized for disclosure in DR 2-101 (B), or to provide for its dissemination through other forums may apply to the Supreme Court of Arkansas or its designee. Any such application shall be served upon the Supreme Court of Arkansas or its designee, who shall be heard, together with the applicant, on the issue of whether the proposal is necessary in light of the existing provisions of the Code, accords with standards of accuracy, reliability and truthfulness, and would facilitate the process of informed selection of lawyers by potential consumers of legal services. The relief granted in response to any such application shall be promulgated as an amendment to DR 2-101 (B), universally applicable to all lawyers.
(D) If the advertisement is communicated to the public over radio or television, it shall be pre-recorded, approved for broadcast by the lawyer and a recording of the actual transmission shall be retained by the lawyer and he shall contract with the radio or television station for the preservation of a recording of the transmission by the station for a period of not less than one year.
(E) If a lawyer advertises a fee for a service, the lawyer and other members of his firm where a firm name or address is used must render that service for no more than the fee advertised.
(F) Unless otherwise specified in the advertisement if a lawyer publishes any fee information authorized under DR 2-101 (B) in a publication that is published more frequently than one time per month, the lawyer shall be bound by any representation made therein for a period of not less than 30 days after such publication. If a lawyer publishes any fee information authorized under DR 2-101 (B) in a publication that is published once a month or less frequently he shall be bound by any representation made therein until the publication of the succeeding issue. If a lawyer published any fee information authorized under DR 2-101 (B) in a publication which has no fixed date for publication of a succeeding issue, the lawyer shall be bound by any representation made therein for a reasonable period of time after publication but in no event less than one year.
(G) Unless otherwise specified, if a lawyer broadcasts any fee information authorized under DR 2-101 (B), the lawyer shall be bound by any representation made therein for a period of not less than 30 days after such broadcast.
(H) This rule does not prohibit limited and dignified identification of a lawyer as a lawyer as well as by name:
(1) In political advertisements when his professional status is germane to the political issue.
(2) In public notices when the name and profession of a lawyer are required or authorized by law or are reasonably pertinent for a purpose other than the attraction of potential clients.
(3) In routine reports and announcements of a bona fide business, civic, professional, or political organization in which he serves as a director or officer.
(4) In and on legal documents prepared by him.
(5) In and on legal textbooks, treatises, and other legal publications, and in dignified advertisements thereof.
(I) A lawyer shall not compensate or give any thing of value to representatives of the press, radio, television, or other communication medium in anticipation of or in return for professional publicity in a news item.

13. Disciplinary Rule 2-102 is amended to read, in its entirety, as follows: Professional Notices, Letterheads, and Offices:

(A) A lawyer or law firm shall not use or participate in the use of professional cards, professional announcement cards, office signs, letterheads, or similar professional notices or devices, except that the following may be used:
(1) A professional card of a lawyer identifying him by name and as a lawyer, and giving his addresses, telephone numbers, the name of his law firm, and any information permitted under DR 2-105. A professional card of a law firm may also give the names of members and associates. Such cards may be used for identification.
(2) A brief professional announcement card stating new or changed associations or addresses, change of firm name, or similar matters pertaining to the professional offices of a lawyer or law firm, which may be mailed to lawyers, clients, former clients, personal friends, and relatives. It shall not state biographical data except to the extent reasonably necessary to identify the lawyer or to explain the change in his association, but it may state the immediate past position of the lawyer. It may give the names and dates of predecessor firms in a continuing line of succession. It shall not state the nature of the practice except as permitted under DR 2-105.
(3) A sign oh or near the door of the office and in the building directory identifying thé law office. The sign shall not state the nature of the practice, except as permitted under DR 2-105.
(4) A letterhead of a lawyer identifying him by name and as a lawyer, and giving his addresses, telephone numbers, the name of his law firm, associates and any information permitted under DR 2-105. A letterhead of a. law firm may also give the names of members and associates, and names and dates relating to deceased and retired members. A lawyer may be designated “Of Counsel” on a letterhead if he has a continuing relationship with a lawyer or law firm, other than as a partner or associate. A lawyer or law firm may be designated as “General Counsel” or by similar professional reference on stationery of a client if he or the firm devotes a substantial amount of professional time in the representation of that client. The letterhead of a law firm may give the names and dates of predecessor firms in a continuing line of succession.
(B) A lawyer in private practice shall not practice under a trade name, a name that is misleading as to the identity of the lawyer or lawyers practicing under such name, or a firm name containing names other than those of one or more of the lawyers in the firm, except that the name of a professional corporation or a professional association may contain “P.C.” or “P.A.” or similar symbols indicating the nature of the organization, and if otherwise lawful a firm may use as, or continue to include in, its name the name or names of one or more deceased or retired members of the firm or of a predecessor firm in a continuing line of succession. A lawyer who assumes a judicial, legislative, or public executive or administrative post or office shall not permit his name to remain in the name of a law firm or to be used in professional notices of the firm during any significant period in which he is not actively and regularly practicing law as a member of the firm, and during such period other members of the firm shall not use his name in the firm or in professional notices of the firm.
(C) A lawyer shall not hold himself out as having a partnership with one or more other lawyers unless they are in fact partners.
(D) A partnership shall not be formed or continued between or among lawyers licensed in different jurisdictions unless all enumerations of the members and associates of the firm on its letterhead and in other permissible listings make clear the jurisdictional limitations on those members and associates of the firm not licensed to practice in all listed jurisdictions; however, the same firm name may be used in each jurisdiction.
(E) Nothing contained herein shall prohibit a lawyer from using or permitting the use of, in connection with his name, an earned degree or title derived therefrom indicating his training in the law.

14. Disciplinary Rule 2-103, is amended to read, in its entirety, as follows: Recommendation of Professional Employment:

(A) A lawyer shall not, except as authorized in DR 2-101(B), recommend employment as a private practitioner, of himself, his partner, or associate to a non-lawyer who has not sought his advice regarding employment of a lawyer.
(B) A lawyer shall not compensate or give anything of value to a person or organization to recommend or secure his employment by a client, or as a reward for having made a recommendation resulting in his employment by a client, except that he may pay the usual and reasonable fees or dues charged by any of the organizations listed in DR 2-103 (D).
(C) A lawyer shall not request a person or organization to recommend or promote the use of his services or those of his partner or associate, or any other lawyer affiliated with him or his firm, as a private practitioner, except as authorized in DR 2-101, and except that:
(1) He may request referrals from a lawyer referral service operated, sponsored, or approved by a bar association and may pay its fees incident thereto.
(2) He may cooperate with the legal service activities of any of the offices or organizations enumerated in DR 2-103(D)(l) through (4) and may perform legal services for those to whom he was recommended by it to do such work if:
(a) The person to whom the recommendation is made is a member or beneficiary of such office or organization; and
(b) The lawyer remains free to exercise his independent professional judgment on behalf of this client.
(D) A lawyer or his partner or associate or any other lawyer affiliated with him or his firm may be recommended, employed or paid by, or may cooperate with, one of the following offices or organizations that promote the use of his services or those of his partner or associate or any other lawyer affiliated with him or his firm if there is no interference with the exercise of independent professional judgment in behalf of his client:
(1) A legal aid office or public defender office:
(a) Operated or sponsored by a duly accredited law school.
(b) Operated or sponsored by a bona fide non-profit community organization.
(c) Operated or sponsored by a governmental agency.
(d) Operated, sponsored, or approved by a bar association.
(2) A military legal assistance office.
(3) A lawyer referral service operated, sponsored, or approved by a bar association.
(4) Any bona fide organization that recommends, furnishes or pays for legal services to its members or beneficiaries provided the following conditions are satisfied:
(a) Such organization, including any affiliate, is so organized and operated that no profit is derived by it from the rendition of legal services by lawyers, and that, if the organization is organized for profit, the legal services are not rendered by lawyers employed, directed, supervised or selected by it except in connection with matters where such organization bears ultimate liability of its member or beneficiary.
(b) Neither the lawyer, nor his partner, nor associate, nor any other lawyer affiliated with him or his firm, nor any non-lawyer, shall have initiated or promoted such organization for the primary purpose of providing financial or other benefit to such lawyer, partner, associate or affiliated lawyer.
(c) Such organization is not operated for the purpose of procuring legal work or financial benefit for any lawyer as a private practitioner outside of the legal services program of the organization.
(d) The member or beneficiary to whom the legal services are furnished, and not such organization, is recognized as the client of the lawyer in the matter.
(e) Any member or beneficiary who is entitled to have legal services furnished or paid for by the organization may, if such member or beneficiary so desires, select counsel other than that furnished, selected or approved by the organization for the particular matter involved; and the legal service plan of such organization provides appropriate relief for any member or beneficiary who asserts a claim that representation by counsel furnished, selected or approved would be unethical, improper or inadequate under the circumstances of the matter involved and the plan provides an appropriate procedure for seeking such relief.
(f) The lawyer does not know or have cause to know that such organization is in violation of applicable laws, rules of court and other legal requirements that govern its legal service operations.
(g) Such organization has filed with the ap-: propriate disciplinary authority at least annually a report with respect to its legal service plan, if any, showing its terms, its schedule ot benefits, its subscription charges, agreements with counsel, and financial results of its legal service activities or, if it has failed to do so, the lawyer does not know or have cause to know of such failure.
(E) A lawyer shall not accept employment when he knows or it is obvious that the person who seeks his services does so as a result of conduct prohibited under this Disciplinary Rule.

15. .Disciplinary Rule 2-104, is amended to read, in its entirety, as follows: Suggestion of Need of Legal Services:

(A), A lawyer who has given in-person unsolicited advice to a nonlawyer that he should obtain counsel or take legal action shall not accept employment resulting from that advice, except that:
(1) A lawyer may accept employment by a close friend, relative, former client (if the advice is germane to the former employment), or one whom the lawyer reasonably believes to be a client.
(2) A lawyer may accept employment that results from his participation in activities designed to educate nonlawyers to recognize legal problems, to make intelligent selection of counsel, or to utilize available legal services if such activities are conducted or sponsored by a qualified legal assistance organization.
(3) A lawyer who is recommended, furnished or paid by a qualified legal assistance organization enumerated in DR 2-103 (D)(1) through (4) may represent a member or beneficiary thereof, to the extent and under the conditions prescribed therein.
(4) Without affecting his right to accept employment, a lawyer may speak publicly or write for publication on legal topics so long as he does not emphasize his own professional experience or reputation and does not undertake to give individual advice.
(5) If success in asserting rights or defenses of his client and litigation in the nature of a class action is dependent upon the joinder of others, a lawyer may accept, but shall not seek, employment from those contacted for the purpose of obtaining their joinder.

16. Disciplinary Rule 2-105, is amended to read, in its entirety, as follows: Limitation of Practice:

(A) A lawyer shall not hold himself out publicly as a specialist or as limiting his practice, except as follows:
(1) A lawyer admitted to practice before the United States Patent and Trademark Office may use the designation “Patents,” “Patent Attorney,” “Patent Lawyer,” or “Registered Patent Attorney” or any combination of those terms, on his letterhead and office sign.
(2) A lawyer who is certified as a specialist in a particular field of law or law practice by the Supreme Court of Arkansas or its designee may hold himself out as such, but only in accordance with the rules prescribed by that authority.

17. Disciplinary Rule 2-106, is amended to read, in its entirety, as follows: Fees for Legal Services:

(A) A lawyer shall not enter into an agreement for, charge, or collect an illegal or clearly excessive fee.
(B) A fee is clearly excessive when, after a review of the facts, a lawyer of ordinary prudence would be left with a definite and firm conviction that the fee is in excess of a reasonable fee. Factors to be considered as guides in determining the reasonableness of a fee include the following:
(1) The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly.
(2) The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer.
(3) The fee customarily charged in the locality for similar legal services.
(4) The amount involved and the results obtained.
(5) The time limitations imposed by the client or by the circumstances.
(6) The nature and length of the professional relationship with the client.
(7) The experience, reputation, and ability of the lawyer or lawyers performing the services.
(8) Whether the fee is fixed or contingent.
(C) A lawyer shall not enter into an arrangement for, charge, or collect a contingent fee for representing a defendant in a criminal case.

18. Disciplinary Rule 2-107, is amended to read, in its entirety, as follows: Division of Fees Among Lawyers:

(A) A lawyer shall not divide a fee for legal services with another lawyer who is not a partner in or associate of this law firm or law office, unless:
(1) The client consents to employment of the other lawyer after a full disclosure that a division of fees will be made.
(2) The division is made in proportion to the services performed and responsibility assumed by each.
(3) The total fee of the lawyers does not clearly exceed reasonable compensation for all legal services they rendered the client.
(B) This Disciplinary Rule does not prohibit payment to a former partner or associate pursuant to a separation or retirement agreement.

19. Disciplinary Rule 2-108, is amended to read, in its entirety, as follows: Agreements Restricting the Practice of a Lawyer:

(A) A lawyer shall not be a party to or participate in a partnership or employment agreement with another lawyer that restricts the right of a lawyer to practice law after the termination of a relationship created by the agreement, except as a condition to payment of retirement benefits.
(B) In connection with the settlement of a controversy or suit, a lawyer shall not enter into an agreement that restricts his right to practice law.

20. Disciplinary Rule 2-109, is amended to read, in its entirety, as follows: Acceptance of Employment:

(A) A lawyer shall not accept employment on behalf of a person if he knows or it is obvious that such person wishes to:
(1) Bring a legal action, conduct a defense, or assert a position in litigation, or otherwise have steps taken for him, merely for the purpose of harassing or maliciously injuring any person.
(1) Present a claim or defense in litigation that is not warranted under existing law, unless it can be supported by good faith argument for an extension, modification, or reversal of existing law.

21. Disciplinary Rule 2-110, is amended to read, in its entirety, as follows: Withdrawal from Employment:

(A) In general.
(1) If permission for withdrawal from employment is required by the rules of a tribunal, a lawyer shall not withdraw from employment in a proceeding before that tribunal without its permission.
(2) In any event, a lawyer shall not withdraw from employment until he has taken reasonable steps to avoid foreseeable prejudice to the rights of his client, including giving due notice to his client, allowing time for employment of other counsel, delivering to the client all papers and property to which the client is entitled, and complying with applicable laws and rules.
(3) A lawyer who withdraws from employment shall refund promptly any part of a fee paid in advance that has not been earned.
(B) Mandatory withdrawal.
A lawyer representing a client before a tribunal, with its permission if required by its rules, shall withdraw from employment, and a lawyer representing a client in other matters shall withdraw from employment if:
(1) He knows or it is obvious that his client is bringing the legal action, conducting the defense, or asserting a position in the litigation, or is otherwise having steps taken for him, merely for the purpose of harrassing or maliciously injuring any person.
(2) He knows or it is obvious that his continued employment will result in violation of a Disciplinary Rule.
(3) His mental or physical condition renders it unreasonably difficult for him to carry out the employment effectively.
(4) He is discharged by his client.
(C) Permissive withdrawal.
If DR 2-110(B) is not applicable, a lawyer may not request permission to withdraw in matters pending before a tribunal, and may not withdraw in other matters, unless such request or such withdrawal is because:
(1) His client:
(a) Insists upon presenting a claim or defense that is not warranted under existing law and cannot be supported by good faith argument for an extension, modification, or reversal of existing law.
(b) Personally seeks to pursue an illegal course of conduct.
(c) Insists that the lawyer pursue a course of conduct that is illegal or that is prohibited under the Disciplinary Rules.
(d) By other conduct renders it unreasonably difficult for the lawyer to carry out his employment effectively.
(e) Insists, in a matter not pending before a tribunal, that the lawyer engage in conduct that is contrary to the judgment and advice of the lawyer but not prohibited under the Disciplinary Rules.
(f) Deliberately disregards an agreement or obligation to the lawyer as to expenses or fees.
(2) His continued employment is likely to result in a violation of a Disciplinary Rule.
(3) His inability to work with co-counsel indicates that the best interests, of the client likely will be served by withdrawal.
(4) His mental or physical condition renders it difficult for him to carry out the employment effectively.
(5) His client knowingly and freely assents to termination of this employment.
(6) He believes in good faith, in a proceeding pending before a tribunal, that the tribunal will find the existence of other good cause for withdrawal.

Fogleman, J., concurs.

Howard, J., dissents.

John A. Fogleman, Justice,

concurring. In Bates v. State Bar of Arizona, 433 U.S. 350, 97 S. Ct. 2691, 53 L. Ed. 2d 810 (1977), the United States Supreme Court said:

*** And the special problems of advertising on the electric broadcast media will warrant special consideration.

Yet none of the proponents of rules governing advertising by lawyers advises us of any study made by anyone indicating what special consideration should be given television advertising. This court is not in any position to make such a study or arrive at any conclusions on the special considerations warranted without some guidance in the matter. I trust that some such study will be made by someone in the near future and that we will be advised of any recommendations on that subject and the reasons for them.

George Howard, Jr., Justice,

dissenting. In Bates v. State Bar of Arizona, 97 S. Ct. 2691, the United States Supreme Court stated, among other things, as follows:

“ [T]he consumer’s concern for the free flow of commercial speech often may be far keener than his concern for urgent political dialogue. Moreover, significant societal interests are served by such speech. Advertising, though entirely commercial, may often carry information of import to significant issues of the day. . . . And commercial speech serves to inform the public of the availability, nature, and prices of products and services, and thus performs an indispensable role in the allocation of resources in a free enterprise system. ... In short, such speech serves individual and societal interests in assuring informed and reliable decisionmaking.”

In my judgment, the proposal approved by the majority to a degree retards creativity and thus restricts the free flow of truthful information about the availability, nature and fees of attorneys in a setting where the Supreme Court of the United States found that “the middle 70% of our population is not being reached or served adequately by the legal profession.” Some of the reasons advanced for this “underutilization of lawyers is fear of the cost, and an inability to locate a suitable lawyer.”

The guidelines contained in the majority’s proposal are the standards that lawyers’ advertisement must conform to; anything to the contrary must be approved by the Court or its designee. Thus, it is clear that there exists a prior restraint in regards to the exercise'of First Amendment rights by lawyers. The Supreme Court has made it clear that commercial speech, as we have here, is entitled to the protection of the First Amendment. However, it is beyond debate that advertising that is false, deceptive, or misleading is subject to restraint, and regulation.

In my judgment, the proposal submitted by the office of the Arkansas Attorney General is more flexible and comes to grips with the problem to be remedied, while at the same time not imposing a prior restraint on the exercise of First Amendment rights.

Pertinent parts of the Attorney General’s proposal are as follows:

“DR2-101. In all forms of communication with the lay public on matters related to the legal profession or the practice of law, a lawyer shall not knowingly make any statement that is false or misleading, nor shall a lawyer omit to state a fact whose omission would render the communication misleading in whole or in part.
“DR2-102. A lawyer shall not initiate or maintain direct contact with a potential client or clients, personally or through agents or representatives, with a view toward employment, nor shall a lawyer recommend his own employment, or employment of his partners or associates, to a potential client or clients.
“DR2-103. In communication with the lay public a lawyer should avoid laudatory references to his own professional abilities, or those of his partners or associates and may not, in such communication, state or imply that the skill of the lawyer, rather than the merit of the claim, is more determinative of the outcome of litigation.
“DR2-104. In communication with the lay public with a view toward employment a lawyer may:
(a) Indicate one or more fields of law in which the lawyer practices, if accompanied by a statement, when applicable, that the lawyer’s practice is not limited to such field or fields and that the mention thereof does not indicate a certification of particular competence by any official entity;
(b) Indicate the no more than two fields of law to which the lawyer’s practice is limited, with a statement that such limitation does not represent a certification of particular competence by any official entity;
(c) indicate those fields of law in which the lawyer has been certified as a specialist by the Supreme Court of Arkansas.”

I, therefore, dissent in the majority’s approval of the following proposals submitted by the Arkansas Bar Association:

1. Disciplinary Rule 2-101.
2. Disciplinary Rule 2-102.
3. Disciplinary Rule 2-103.
4. Disciplinary Rule 2-104.


author: George Rose Smith, Justice. Darrell Hickman, Justice,

text:
    78-144. Robert SIKES, Printing Administrator, et al v. GENERAL PUBLISHING COMPANY, INC. 78-162. STATE PRINTING BOARD et al v. THE HURLEY COMPANY, INC.
    78-144 & 78-162
    568 S.W. 2d 33
    Opinion delivered July 17, 1978
    (In Banc)

      78-144. Bill Clinton, Atty. Gen., by: Peggy O'Neal, Asst. Atty. Gen., for appellants.
    78-144. Patten, Brown, Leslie & Davidson, by: Charles A. Brown, for appellee.
    78-162. Bill Clinton, Atty. Gen., by: Peggy O'Neal, Asst. Atty. Gen., for appellants.
    78-162. Gaughan, Barnes, Roberts, Harrell & Laney, by: Allen P. Roberts, for appellee.
   George Rose Smith, Justice.

For the purpose of this opinion we have consolidated these two appeals, one from the Pulaski Circuit Court and the other from the Ouachita Circuit Court.

The cases involve four state printing contracts that were at first awarded by the State Printing Board to the Hurley Company, as the lowest bidder. Within a few days after the execution of the original contracts the Board’s attention was called to the fact that the Hurley Company had not filed performance bonds within the time allowed by the Board’s regulations (7 days as to one contract, 10 days as to the other three). The Board promptly reviewed the matter at a meeting held on January 6, 1978, and voted to rescind the original contracts and to award three of them to the next lowest bidders and to readvertise the fourth, on which Hurley had been the only bidder.

These two lawsuits followed. Hurley sued the State Printing Board and its chairman, in the Ouachita Circuit Court, contending that it was taking an appeal under the Administrative Procedure Act from an adjudication by the Board. Ark. Stat. Ann. § 5-713 (Repl. 1976). The court first issued a temporary order staying any further action by the Board. When the case was reached on its merits the court held that Hurley had substantially complied with the performance bond requirement and that the Board had waived strict compliance by executing the contracts with Hurley. Case No. 78-162 is an appeal from that decision.

In the second case, General Publishing Company, which had been awarded one of the contracts as the second lowest bidder, brought suit in the Pulaski Circuit Court for a writ of mandamus to compel Robert Sikes, as Printing Administrator, to perform the ministerial act of delivering that contract, which had actually been prepared and signed for the Board before the restraining order was issued in Ouachita County. Case No. 78-144 is an appeal from the judgment of the Pulaski Circuit Court issuing the requested writ of mandamus.

The essential facts are not in dispute, having been stipulated in both cases. A regulation of the State Printing Board contains this provision, which was made known to all bidders: “Bidders must comply literally with all rules, regulations, laws, specifications, instructions, general provisions, and special provisions.” Another regulation provides that “the bidder will be required within seven (7) days [or 10 days] of the awarding of the contract to post a commercial performance bond” in a specified amount, depending upon the amount of the bid.

In November, 1977, the Board determined that Hurley was the low bidder on the four contracts now in question. Hurley was duly notified of the award, but it failed to post the required performance bonds within the period allowed by the regulations. Instead, on the last day Hurley filed a letter to the Printing Administrator, signed by an attorney-in-fact for a bonding company, saying with respect to one contract, for example, that a bond had been issued by the company’s Chicago office, that it was “enroute to me via U.S. Mail,” and that it would be delivered to the Printing Administrator upon its receipt by the attorney-in-fact. The chairman of the Printing Board, acting on his own initiative, decided that the letter was sufficient and signed the contracts, along with the Printing Administrator. The contracts were sent to Hurley.

When other bidders learned that Hurley had not filed its performance bonds within the time allowed, they filed protests with the Board. The matter was at once placed on the agenda for the scheduled January 6 meeting of the Board. Representatives of Hurley and of General Publishing Company attended the meeting and were allowed to state their positions, but no testimony was taken. After an extended discussion, which was recorded, the nine-member Board adopted motions, by votes of 7 to 1 and 7 to 0, rescinding the contracts because the performance bonds had not been filed by Hurley and, as we have said, directing that the contracts be awarded to the next lowest bidders or be readvertised where Hurley was the only bidder.

We consider first the Ouachita County case. The State Printing Law, Act 544 of 1975, created the State Printing Board and included among its duties that of serving “as appeals and review board for . . . contractors or prospective bidders over disputes arising from administration of the State Printing Law.” Ark. Stat. Ann. § 14-307 (Supp. 1977). Hurley relies upon that language of the statute to support its argument that the action taken by the Board on January 6 was an “adjudication” that was subject to judicial review under the Administrative Procedure Act.

That argument cannot be sustained. Administrative boards and commissions act at times administratively and at times judicially or quasi-judicially. But courts act judicially in reviewing administrative proceedings. The distinction is fundamental under the constitutional separation of powers.

The Administrative Procedure Act makes it clear that, under the act, the courts’ appellate review is confined to adjudications and does not extend to administrative rulings. An “adjudication” is simply a judicial determination. Webster’s New International Dictionary (2d ed., 1939). We quote the pertinent provisions of the Administrative Procedure Act, which make it clear that only “adjudications” are to be subject to direct appellate review by the courts:

Order and Adjudication — “Order” means the final disposition of an agency in any matter ... in which the agency is required by law to make its determination after notice and hearing. “Adjudication” means agency process for the formulation of an order. [Ark. Stat. Ann. § 5-701 (d).J
* ‡ $ jfc
In every case of adjudication, a final decision or order shall be in writing or stated in the record. A final decision shall include findings of fact and conclusions of law, separately stated. . . . Parties shall be served either personally or by mail with a copy of any decision or order. [§ 5-710 (b).]
(a) In cases of adjudication, any person who considers himself injured in his person, business, or property by final agency action shall be entitled to judicial review thereof under this Act. Nothing in this Section shall be construed to limit other means of review provided by law.
(b) Proceedings for review shall be instituted by filing a petition
(1) in the Circuit Court of any county in which the petitioner resides or does business.
$ ‡ * * $
(d) Within thirty days after service of the petition, or within such further time as the court may allow, but not exceeding an aggregate of ninety days, the agency shall transmit to the reviewing court the original or a certified copy of the entire record of the proceeding under review. [§ 5-713.]

It seems too clear for argument that the action taken by the Printing Board at its meeting on January 6 was not such an adjudication under the Administrative Procedure Act as to be subject to review in Ouachita County. The Board was not required by law to make its determination after notice and a hearing. The Board heard no testimony. It made to findings of fact or conclusions of law. No copy of any decision or order was served on the parties. No record of the proceedings was certified by the Board to the Ouachita Circuit Court, which heard the matter simply on a complaint filed by Hurley.

All that happened at the January 6 meeting was that the Board acted upon an administrative matter that was on its agenda. There was no adjudication within the purview of the Administrative Procedure Act. We do not imply that if Hurley’s property rights were adversely affected by the action taken at the meeting, it might not have had a remedy, as by seeking a writ of certiorari in Pulaski County, where state agencies are subject to suit. Ark. Stat. Ann. § 27-603 (Repl. 1962). But the Ouachita Circuit Court had no jurisdiction in the matter and should have sustained the Board’s motion to dismiss the complaint. We therefore reverse the judgment of that court and dismiss the action.

Turning to the Pulaski County case, we come at once to the merits. The State Printing Board has explicit statutory authority to adopt regulations and procedures for the discharge of its duties and responsibilities. § 14-307. The Board’s regulations warned bidders in the clearest possible language that literal compliance with its rules is required. Hurley did not comply literally with the requirement that a performance bond be posted within 7 or 10 days. The submission of a letter saying that a bond is in the mail and will be filed when received is not a literal compliance with the plain requirement that a bond be posted within a certain time. Thus the Board was unquestionably correct in deciding at its January 6 meeting that the Hurley contracts should be rescinded for noncompliance with the regulations.

There is no basis for holding that the Board waived its rule requiring literal compliance. When the bids were opened in November the Board quite properly awarded the contracts to Hurley as the low bidder. But, while the Board was not in session, its chairman decided by himself that Hurley was entitled to the contracts despite its failure to submit timely performance bonds. The chairman, of course, had no authority to make the decision for the nine-man board. When the Board met in January it correctly decided that the contracts should be rescinded. Thus, on the merits, General Publishing Company’s position is correct.

Nevertheless, the Printing Administrator and Hurley question General Publishing Company’s right to relief by mandamus. It is argued that the proper remedy was by a writ of certiorari to review the action of the Board. This argument disregards the obvious fact that General Publishing Company had no reason to question the Board’s January decision by certiorari or otherwise, because that decision was in its favor.

General Publishing Company’s grievance was simply that, after its contract had been executed on behalf of the Board, the Printing Administrator failed to perform the ministerial duty of placing it in an envelope and putting it in the mail. The Printing Administrator, as a witness, failed to offer any plausible explanation for his failure to act. There was certainly no question of fact for him to decide, in which case he might have had some discretion in the matter. Massey v. Enfield, 259 Ark. 85, 531 S.W. 2d 706 (1976). In the circumstances the Pulaski Circuit Court properly issued the writ to require the Printing Administrator to perform his statutory duty to deliver a contract that had been approved by the Board and properly executed. § 14-309 (A) (5). There was certainly no reason for the issuance of a writ of mandamus against the Board, which had fully and properly performed its duty.

In Case No. 78-162 the judgment is reversed and the cause dismissed. In Case No. 78-144 the judgment is affirmed. Inasmuch as both cases were advanced on motion as a matter of public interest, we find good cause for the issuance of an immediate mandate in each case. It is so ordered.

Harris, C.J., concurs as to the result.

Hickman, J., dissents in No. 78-144.

Darrell Hickman, Justice,

dissenting. I dissent from the result reached by the majority because I feel that mandamus is not the proper remedy under these facts.

It is well-settled law that mandamus will not lie where there is an adequate remedy at law. It is essential that before the writ can be issued, the petitioner must show a clear and certain legal right to the relief sought and have no other adequate remedy at law. Girley v. Wood, Judge, 258 Ark. 408, 525 S.W. 2d 454 (1975). The purpose of the writ is not to establish a legal right, but to enforce a legal right that already exists. Naylor v. Goza, Judge, 232 Ark. 515, 338 S.W. 2d 923 (1960). Perhaps most important to this case is the rule that mandamus will not lie when an issue of fact is present. Mothershead v. Ponder, Chancellor, 220 Ark. 816, 250 S.W. 2d 121 (1952).

These principles have been lost to the fact that this appeal is the consolidation of two separate circuit court actions. The appropriate action for General Publishing Company would have been to challenge the action of the State Printing Board, as was done in the Ouachita Circuit Court, rather than seek the mandamus against Sikes. Intervention in that action would have overcome the necessity of seeking the mandamus in the Pulaski Circuit Court, and even if the ruling was adverse, the appeal to this court would be preserved as shown by a portion of the majority opinion.

As noted, the purpose of this extraordinary writ is not to establish a legal right, which in effect has been done here, but to enforce a right that has already been established. Further, there must be no factual dispute as to whether that right had been established. In this case, the very existence of the Ouachita Circuit action was evidence that no legal right had been established; also, the factual dispute present in that action, i.e., whether the actual bond had to be posted, or whether notification that the bond was forthcoming was sufficient, certainly was an issue in the Pulaski Circuit action. It is difficult to understand why the fact that these two cases were consolidated on appeal should serve as the means for ignoring what we have established as precedent for the review of mandamus cases.

I am also not convinced that the mandamus was issued against the proper person. Robert Sikes was the State Printing Administrator, and if there was no dispute he could have simply made the contract to General Publishing Company a ministerial act. However, at the time the Pulaski Circuit action was filed, Sikes was effectively controlled by a stay order issued in the Ouachita Court. Although he was not made an actual party to the Ouachita action until after the mandamus was filed, he was nevertheless controlled by the stay order. His act of discretion, then, was really a matter of whether to act in contempt of a court order.

Sikes had received three orders from the State Printing Board. He was first told to issue the contracts to Hurley Publishing Company. He was then told by Jim Wooten, the chairman of the State Printing Board, to go ahead and issue the contracts despite the fact the actual commercial bond had not been posted during the requisite period of time. Finally, he was told by the State Printing Board to issue the contract to General Publishing Company. After all of this, he was told by Wooten not to issue the contract to anyone because of a court order. Only after the issue of compliance had been decided would mandamus be proper to force Sikes to mail the contracts to General Publishing Company. I do not disagree with the ultimate result reached by the court. Hurley did not literally comply with the rules and I would reverse the Ouachita Circuit Court on the merits.