May 20, 2016

MEMBER SPOTLIGHT: An Interview with Barkley Clark

Mention the name “Barkley Clark” and most lawyers think of the Uniform Commercial Code because of his long-standing, well-regarded legal treatises, which focus on the Uniform Commercial Code. Early on, Clark based his practice on the UCC, and from that sprang a 50-year career that has included not only writing about this important statute, but also practicing law in this area, teaching lawyers and future lawyers, serving as expert witness and on a bank board. But Clark’s interests go beyond the UCC. He spent 10 years on the Lawrence, Kansas, City Commission and served two terms as mayor of the city. He and his fellow commissioners helped to stop a big enclosed mall from being built in downtown Lawrence, so that its vibrant small businesses would flourish. Clark also spent several years on the Denver Urban Renewal Authority during the early efforts to develop lower downtown Denver (LoDo).

Clark is a partner at Stinson Leonard Street LLP and he still finds the UCC endlessly fascinating as the centerpiece of his practice. With his wife, Barbara, he writes two monthly newsletters, Clarks’ Bank Deposits and Payments Monthly, and Clarks’ Secured Transactions Monthly, which he uses to update the treatises, The Law of Bank Deposits, Collections and Credit Cards, Compliance Guide to Payment Systems, The Law of Secured Transactions under the UCC, and The Law of Product Warranties. Here’s a recent conversation we had with him.

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You specialize in various aspects of commercial law for banks and other financial institutions. When you were young lawyer starting out, what made you choose this specialty in the law?

I went to Harvard, and there was a huge array of offerings in various areas, which was a lucky thing for me. At the beginning of my second year in law school I made my decision, based on a comment made by my commercial law professor, Vern Countryman. He said that the UCC was just getting enacted around the country. He suggested that I seize the day and take advantage of the fact that I could be on the ground floor of the UCC by taking two or three specialty courses in the area. Then when I went into practice, I could hit the ground running in this important area of business law. That was 1963, and lo and behold, it was great advice. It’s a big, important statute that codifies the law of sales, negotiable instruments, bank deposits, letters of credit, and secured transactions.

For some reason, I have always had a great interest in statutes and principles of statutory construction. I like the rigidity and the framework of a statute, the idea of trying to master a statute and then practice in that area of the law. I also came from a family of bankers, and I was interested in banking law from an early age. The UCC seemed a good fit.

What kind of person does well in this practice? Do you have to be good with numbers?

I’m not great with numbers, and I don’t think you have to be interested in numbers. I took a required course on legal accounting when I was in law school, and of course a subject like that is very important. But in terms of working with numbers constantly and creating models and that sort of thing, no, that’s not my cup of tea.

To me if you spend enough time with a statute and also write about it, you can seek to master it, at least to some extent. One of the nice things about statutes is the legislative history and the canons of statutory construction. The UCC has legislative history built right into it because it has its own Official Comments.

The UCC has generated an enormous amount of litigation since the early ’60s when it started up. When I look back over my 50 years of practice, I see all the case law it has generated, and there’s no doubt that the case law is one of the exciting things about a statute.

You’re well known from the many treatises that you’ve written. What led you to take an interest in writing treatises?

I’ve always had an academic bent. Treatises are a long tradition in the law, and to write a treatise on the UCC, you’ve got to work with the statute itself. You’ve also got to deal with the case law under it. My firms have always been strongly supportive of my publication efforts. I also get interesting cases to work on in practice.

I started with bank deposits and collections. Credit cards were just coming of age at that time, which was about 1970, so I titled the treatise, The Law of Bank Deposits, Collections and Credit Cards. Then in 1980 I moved to a second treatise, The Law of Secured Transactions under the UCC. In 1984 I did another one focused on the law of warranties under the UCC.

They must be updated, right?

These three treatises are constantly updated. To help with the updates, Barbara and I developed two newsletters. Those newsletters are modified and folded into the updates of the treatises. The newsletters go out every month, and the treatises get updated three times a year.

Do you have a blog?

My law firm has one, in the banking and financial services area.

For your monthly newsletters, you write them with your wife. Do you divide up the labor?

Absolutely. Barbara enjoys the writing and the digging into particular litigation and regulatory issues. She was a practicing litigator herself for a number of years. We’ve worked together on the newsletters and the treatises since 1995. We try to write them in a breezy way. Her involvement has just been vital because there’s so much going on, and I couldn’t do it all myself.

How can someone receive the newsletters?

By contacting our publisher, LexisNexis. They are certainly interested in selling both the newsletters and the treatises.

You’ve served as outside director of a national bank. How did this experience inform your practice and your thinking about the UCC?

It was very helpful. People on our board would call on me on various issues, sometimes on the deposits/payment side and sometimes on the secured lending side. I served as a resource for the board when it made sense for me to weigh in. I was on the bank board for five years. Now a lot of my practice is serving as an expert witness in the UCC area. In serving as a consulting and testifying expert, it has been very helpful for me to have had that background as a member of a bank board in opining on various banking industry practices. Often I join with some of my colleagues at Stinson to go into banks and hold seminars in recent developments under the UCC and related laws. Over the years, I have worked with both the American Bar Association and the American Bankers Association.

You’ve also been a professor of law, teaching for over 20 years. What do you like about teaching?

It’s tremendously rewarding. The biggest thing about teaching in a law school setting is what I learn from the students. I’ve taught at various law schools around the country, and in each class it seems there’s some student who comes up with a point that I had never considered before, and it teaches me something. It’s a conversation. The same is true when I’m teaching lawyers at a CLE session, although that audience obviously has a lot more experience. I have always viewed teaching the UCC as a way to teach statutory construction in general.

You’ve been involved in writing statutes. Can you talk about that experience?

I have worked with various legislatures, particularly the Kansas legislature, helping them to draft UCC-related statutes. Then I’ve worked with various national organizations like the Commissioners on Uniform State Laws and the American Law Institute. The most fun of all was in the early ’90s, working with the Uniform Law Commission, updating Article 9, which deals with secured lending against personal property collateral. We had a study committee that met for three years in a row, and we went over every aspect of Article 9 – at least it seemed like it. It was a wonderful lesson about how difficult it is to draft a statute, even though our study committee didn’t do the actual word-by-word drafting.

The UCC is probably the most carefully drafted statute of all time and, in my view, it’s a lot more readable than that other statutory Goliath, the Internal Revenue Code. The unique thing about the UCC is that it’s got legislative history built right into the statute in the form of Official Comments.

You’ve also had an interesting political life, serving as mayor of Lawrence, Kansas. How did you get involved in politics? What did you set out to accomplish and did you accomplish it?

I got interested in local government because I was born and raised in Denver and went back to Denver after law school to practice law. I got involved in local government in Denver because the mayor appointed me to the new urban renewal commission, which was established in order to redevelop the dilapidated downtown area. We had eminent domain powers, which was a very important instrument in the redevelopment of downtown. At the time, a lot of people were moving to the suburbs, and we wanted to strengthen the downtown. It’s very satisfying to visit LoDo today and see the tremendous development that has taken place over the years.

Serving on the Denver Urban Renewal Authority wetted my appetite for local government. So when I moved to Lawrence to teach at the University of Kansas Law School I ran for and was elected to two terms on the Lawrence City Commission from 1973 to 1983, and served two terms as mayor. We had a lot of things going for us in those days. Lawrence had a healthy economy, it was a university town, and we had home rule, which gave us a lot of legal authority. We built a city hall, a community center. We even got into the social services arena in a way that cities normally don’t. As mayor, of course, I had to deal with things like the guy who called me in the middle of the night complaining about a stray dog. If you’re the mayor, you’ve got to respond to things like that.

Probably the most dramatic thing we did in Lawrence was to decide that we didn’t want a mall developer building an enclosed mall to dominate the downtown. We wanted the downtown to continue to be strong and to keep our smaller shops and other businesses. This, like the Denver situation, was a very satisfying victory because Lawrence still doesn’t really have a big enclosed mall and downtown Massachusetts Avenue is just as strong as it can be and the center of life for the town.

What advice would you give a new attorney who is just starting out?

I always found it very helpful to develop an expertise, a niche. If you’re going into solo practice, you often can’t do that. But if you’re at a firm, and it’s possible to specialize, I’d recommend it. The foundation of my career has been the teaching, writing and practicing of law under UCC, and it has been very satisfying.

Take a shot at doing some writing. Most law firms will appreciate that. It’s also a way to develop and telegraph your expertise to the larger client base. Be patient. Everything is cyclical in the law. When I started in 1965, the market was greatly in need of lawyers. That’s not so true anymore. Law schools are contracting in size and it’s often very tough to get an offer from the firm you want. But if you just keep working at it, and you’re willing to have some flexibility, and you know that there’s some area that you really like, try it. Consider a spot in-house or with a local government. Or if you’re interested in banking law, try working in a bank as an in-house counsel; you’ll see everything that goes on, from soup to nuts. Take an active part in the local and state bar associations. The American Bar Association is wonderful. I’ve always enjoyed speaking to the Business Law Section of the ABA.

What has been the value of your involvement in the ABA?

One of the most enjoyable times I ever had was an ABA program in San Francisco, maybe five, six years ago. I had the pleasure of being on a panel with Jim White who is a superstar UCC guru. We had a great time dissecting various provisions of the code in the area of foreclosures against consumer debtors. There must have been 300 or 400 people at the program. A number of people came up to us afterwards and said that the program was a great study of the UCC and some difficult provisions in the area of foreclosures on personal property and consumer protection. The ABA’s programs are one of the best ways to develop your law practice and to sharpen your expertise, both as an attendee and a presenter. Seek out those opportunities.

Thank you so much!