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End-of-life notice: American Legal Ethics Library

As of March 1, 2013, the Legal Information Institute is no longer maintaining the information in the American Legal Ethics Library. It is no longer possible for us to maintain it at a level of completeness and accuracy given its staffing needs. It is very possible that we will revive it at a future time. At this point, it is in need of a complete technological renovation and reworking of the "correspondent firm" model which successfully sustained it for many years.

Many people have contributed time and effort to the project over the years, and we would like to thank them. In particular, Roger Cramton and Peter Martin not only conceived ALEL but gave much of their own labor to it. We are also grateful to Brad Wendel for his editorial contributions, to Brian Toohey and all at Jones Day for their efforts, and to all of our correspondents and contributors. Thank you.

We regret any inconvenience.

Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.


Arkansas Legal Ethics

INTRODUCTION

0.1:100   Sources of Law and Guidance

0.1:101      Professional Codes

From 1908 to 1969 attorneys were governed by the Canons of Professional Ethics. These 47 rules are printed at 237 Ark. 984. Following the work of a special committee chaired by an Arkansas attorney, the American Bar Association adopted the Code of Professional Responsibility in August 1969. Three days later, the Arkansas Bar Association petitioned the Supreme Court to approve the Code for Arkansas attorneys. See Edward L. Wright, The Code of Professional Responsibility: Its History and Objectives, 24 ARK. L. REV. 1 (1970). The Court adopted the Code on February 23, 1970. See Thomas A. Robinson, The Arkansas Code of Professional Responsibility, 33 ARK. L. REV. 605 (1980).

0.1:102      "Other" Law and Moral Obligation

Arkansas has stated that the “appearance of impropriety” principle is “a factor that should be considered in any instance in which a violation of a rule of professional conduct is at issue.” See 0.1:104 and 1.9:230. In addition some Arkansas statutes regulating attorneys remain on the books and may be applicable.

0.1:103      Background of the Arkansas Rules of Professional Conduct

In late 1983 President of the Arkansas Bar Association Dennis Shackleford appointed a committee chaired by Herschel Friday to consider the adoption of the Model Rules in Arkansas. In January 1985 the House of Delegates of the Arkansas Bar Association approved the committee's report and recommended the adoption of the Rules, with minor changes from the Model Rules. The Rules were adopted by the Arkansas Supreme Court on December 16, 1985, to be effective January 1, 1986. See Per Curiam, 287 Ark. 495, 702 S.W.2d 326. The rules have been modified several times since then, and the rules contained in this narrative are current as of September 1, 1998.

0.1:104      Unusual Aspects of the Arkansas Ethics Rules

Arkansas has three particularly unusual aspects of ethics. First, under AR Rule 3.7 the disqualification that applies to an attorney who is likely to be a necessary witness is imputed to the entire law firm. See 3.7:300.

Second, despite the elimination of the phrase “appearance of impropriety” from the Rules of Professional Conduct, the Arkansas Supreme Court has expressly relied upon and approved of the concept in conflicts of interest cases. See 1.9:230.

Third, AR Rule 1.15 requires mandatory participation in the IOLTA program. See 1.15:110.

Other deviations from the Model Rules are contained in this narrative.

0.2:200   Forms of Lawyer Regulation in Arkansas

0.2:210      Judicial Regulation

Amendment 28 to the Arkansas Constitution, adopted in 1938, allows the Supreme Court to “make rules regulating the practice of law and the professional conduct of attorneys at law.” This language, combined with the express separation of powers doctrine of the Arkansas Constitution, casts doubt on the validity of any legislative attempts to regulate attorneys. See Ball v. Roberts, 291 Ark. 84, 722 S.W. 2d 829 (1987) (striking down statute determining competency of attorneys to represent indigent criminal defendants).

Pursuant to that authority, the Arkansas Supreme Court has created the Board of Bar Examiners, the Supreme Court Committee on Professional Conduct, the Supreme Court Committee on the Unauthorized Practice of Law, the Supreme Court Committee on the Client Security Fund, the Arkansas Board of Legal Specialization, and the Arkansas Continuing Legal Education Board.

The mailing address for the Arkansas Supreme Court is the Justice Building, 625 Marshall Street, Little Rock, Arkansas, 72701; the telephone number for the clerk of the court is 501-682-6849. The website for the Arkansas Judiciary is www.state.ar.us/ supremecourt/.

0.2:220      Bar Organizations

The Arkansas Bar Association is a voluntary bar. Its offices are at 400 West Markham, Little Rock, Arkansas, 72201; its phone number is: 501-375-4605. The website for the Arkansas Bar Association is www.arkbar.com/. Since 1992 the Professional Ethics and Grievances Committee of the Arkansas Bar Association has issued advisory opinions. Relevant opinions are contained in this narrative.

0.2:230      Disciplinary Agency

The Arkansas Supreme Court Committee on Professional Conduct has 5 attorneys and 2 non-lawyers appointed by the Arkansas Supreme Court. The offices of the Executive Director and the professional staff are at the Justice Building, 625 Marshall Street, Little Rock, Arkansas, 72201; the phone number is 501-376-0313. Information about the committee is contained on the website at www.state.ar.us/supremecourt/.

The Committee, which has existed since 1939, has exclusive state wide authority to discipline attorneys. See Howard W. Brill, The Arkansas Supreme Court Committee on Professional Conduct 1969-1979: A Call for Reform, 33 ARK. L. REV. 571 (1980).

0.2:240      Disciplinary Process

The current Procedures of the Arkansas Supreme Court Regulating Professional Conduct of Attorneys at Law were adopted and became effective in January 1998. See Per Curiam of January 8, 1998, ___ Ark. ___, ___ S.W.2d ___.

The Executive Director has the authority to investigate charges of attorney misconduct. The investigation may be based upon referrals from state or federal judges, from clients of attorneys, from information in the media, or from other sources, regardless of nature or form. Section 1(E). If necessary, the Executive Director provides assistance for the preparation of the complainant's affidavit. Section 3(B)(2). The Executive Director may dismiss complaints that lack sufficient grounds to support further proceedings. Alternatively, the Executive Director may encourage reconciliation or further communication between a client and an attorney. Section 3(B)(3).

Upon a determination that a complaint should be processed formally, the Executive Director forwards to the attorney a copy of the formal complaint. Section 5(E). The attorney has 20 days to respond, and the complainant may then reply to the response. Section 5(F). At this stage the written record, together with exhibits and prior sanctions imposed on the attorney are sent to the seven members of the committee. Upon a majority of the written ballots, the Committee may vote to take no action, to impose sanctions, or to require a private evidentiary hearing. If the committee votes to impose sanctions, the attorney may request a public hearing before the committee. Section 5(H). An attorney who fails to timely exercise his right to a hearing under Section 5(H) after the committee has imposed sanctions has failed to exhaust his administrative remedies and thus waives any judicial review. McCullough v. Neal, 314 Ark. 373, 862 S.W.2d 279 (1993) (3 month suspension for neglect in handling probate matter). At the de novo public hearing the Executive Director acts as counsel in presenting testimony and other evidence before the committee. Section 5(J). The burden of proof in disciplinary matters is on the Executive Director who must establish misconduct by a preponderance of the evidence. Section 5(B,C). Disciplinary actions are not subject to any statute of limitation. Section 5(D).

Because disciplinary proceedings are neither civil nor criminal but sui generis, Section 1(C), the committee is not required to strictly adhere to the rules of evidence or civil procedure, Finch v. Neal, 316 Ark. 530, 873 S.W. 2d 519 (1994) (reprimand for failure to communicate with opposing counsel before entry of order); Sexton v. Arkansas Supreme Court Committee on Professional Conduct, 299 Ark. 439, 774 S.W.2d 114 (1989) (one year suspension affirmed), cert. denied, 494 U.S. 1066 (1990), or to the Administrative Procedure Act. Supreme Court Committee on Professional Conduct v. Muhammed, 291 Ark. 225, 723 S.W. 2d 828 (1987). However, the basic elements of due process must be satisfied. Sexton v. Arkansas Supreme Court Committee on Professional Conduct, 730 F.Supp. 285 (W.D. Ark. 1990).

Due process requires that the attorney be given notice of the alleged violations. See Fitzhugh v. Committee on Professional Conduct, 308 Ark. 313, 823 S.W.2d 896 (1992); Walker v. Supreme Court of Arkansas Committee on Professional Conduct, 275 Ark. 158, 628 S.W.2d 552 (1982). The failure to notify the attorney of specific rule violations prior to the hearing constitutes a fundamental defect in the proceedings. See Colvin v. Committee on Professional Conduct, 305 Ark. 239, 806 S.W.2d 385 (1991) (suspension reversed and remanded). The attorney must be charged with and disciplined according to the ethical standards in effect at the time of the alleged misconduct. Sexton v. Supreme Court Committee on Professional Conduct, 295 Ark. 141, 747 S.W.2d 94 (1988).

Following the de novo hearing the committee is permitted to increase the sanction. See Dodrill v. Executive Director, 308 Ark. 301, 824 S.W.2d 383 (1992) (reprimand increased to one year suspension after hearing which found that attorney demonstrated incompetence, abusive behavior, harassing motives and derogatory remarks in bankruptcy court). An attorney who fails to appear at a committee hearing may be held in contempt. Supreme Court Committee on Professional Conduct v. Muhammed, 291 Ark. 225, 723 S.W.2d 828 (1987) ($500 fine). See Section 7(G).

In determining the appropriate sanctions, the Arkansas rules distinguish between serious misconduct and lesser misconduct. Serious misconduct is conduct in violation of the Arkansas Rules of Professional Conduct that would warrant a sanction terminating or restricting the lawyer's license to practice law. Section 7(B). Serious misconduct covers the following considerations: the misappropriation of funds; the likelihood of substantial prejudice to a client or other person; dishonesty, deceit, fraud or misrepresentation; a pattern of similar misconduct; a prior record of public sanctions; or a serious crime, including false swearing, interference with the administration of justice, or misrepresentation. Lesser misconduct is conduct in violation of the Arkansas rules that would not warrant a sanction terminating or restricting the lawyer's license to practice law.

The rules specifically list 13 factors to be considered in imposing sanctions, including the damage to clients and to the profession, the avoidance of repetition, the profit to the attorney, the prior disciplinary record, and the deliberate nature of the misconduct. Section 7(F). The attorney may be fined $1000 and may be assessed the costs of the proceedings.

The committee has six sanctions available to it: (1) a warning letter (which is confidential); (2) a public letter of censure or reprimand; (3) temporary suspension from the practice of law, pending a final adjudication; (4) suspension from the practice of law for a fixed period of time, up to two years; (5) probation in the form of written conditions for a fixed period of time permitting the lawyer to practice, but under the supervision of another attorney; and (6) a recommendation to bring disbarment action in Circuit Court. Section 7(D). With the approval of the Supreme Court, the Committee may accept the voluntary surrender of a license. Section 7(H). The surrender of a license is absolute. In re Webster, 307 Ark. 40, 816 S.W.2d 612 (1991).

Actions for disbarment are conducted pursuant to the Rules of Civil Procedure, but without a jury. Section 5 (K). Weems v. Supreme Court Committee on Professional Conduct, 257 Ark. 673, 523 S.W.2d 900 (1975). The trial judge may disbar the attorney or impose lesser sanctions.

Section 7(I) requires that a disbarred or suspended attorney cease practice, notify clients and take other specified steps. When an attorney is suspended or disbarred, the attorney has 20 days to notify clients, refund fees paid in advance that have not been earned, and take other mandated steps. Section 7(I). Upon the attorney's failure to comply, the Court may hold the attorney in contempt. See In Re Contempt of Simpson, 309 Ark. 488, 832 S.W.2d 216 (1992) (master appointed to make findings of fact as to conduct of suspended attorney).

Attorneys who have been suspended may not be employed in any capacity whatsoever with a lawyer, law firm or lawyer professional association. Section 7(J). Disbarred attorneys may be employed only under prescribed conditions.

Appeals of committee action are taken directly to the Supreme Court and are reviewed de novo. Section 5(L). See Purtle v. Committee on Professional Conduct, 317 Ark. 280, 878 S.W. 2d 714 (1994) (letter of reprimand reversed because the sanction was not supported by substantial evidence); Martindale v. Richmond, 301 Ark. 167, 782 S.W.2d 582 (1990) (appeal from letter of caution); Sexton v. Supreme Court Committee on Professional Conduct, 297 Ark. 154-A, 761 S.W.2d 602 (1988) (piecemeal appeal not permitted). But the Court does not reverse findings of fact unless they are clearly erroneous. Supreme Court Committee on Professional Conduct v. Muhammed, 291 Ark. 225, 723 S.W.2d 828 (1987). In reviewing the sanctions imposed, the Court has refused to engage in a comparison with sanctions imposed in other disciplinary matters. Clark v. Supreme Court Committee on Professional Conduct, 320 Ark. 597, 898 S.W. 2d 446 (1995); Colvin v. Committee on Professional Conduct, 309 Ark. 592, 832 S.W.2d 246 (1992).

Following a period of suspension, an attorney desiring reinstatement petitions the Executive Director. Section 7(K). A suspended attorney is not automatically readmitted, but must apply to the committee pursuant to Section 7(K) and demonstrate compliance with the rules and the terms or conditions of the suspension. Sexton v. Neal, 304 Ark. 660, 803 S.W.2d 928 (1991). A suspended attorney may be required, along with other conditions, to take the Bar Examination again before seeking reinstatement. In re Dodrill, 260 Ark. 223, 538 S.W.2d 549 (1976).

Attorneys who have been disbarred or who have voluntarily surrendered their licenses may seek re-admission through the Board of Law Examiners. See 8.1:200. A disbarred attorney may seek readmission only after five years and by petition to the Arkansas Board of Bar Examiners. Section 7(L). The rules prohibit readmission if the disbarment was based upon conduct that reflects adversely on the individuals's honesty or trustworthiness or upon a felony conviction, unless the culpable mental state was that of negligence or recklessness. Section 7(L)(2). In recent years the Supreme Court has consistently denied readmission to former attorneys. See In re Petition of Butcher, 322 Ark. 24, 907 S.W. 2d 715 (1995) (license surrendered in 1985 for conduct involving clients; committee recommendation for reinstatement denied); In re Petition of Anderson, 312 Ark. 447, 851 S.W.2d 408 (1993) (felony conviction for distribution of cocaine in 1985; surrender of license in 1986); In re Petition for Reinstatement of Lee, 305 Ark. 196, 806 S.W.2d 382 (1991) (felony conviction for mail fraud for false billing statements in 1985; license surrendered in 1986); In the Matter of Fray, 284 Ark. 581, 684 S.W.2d 243 (1985) (disbarred for altering a court record to aid a client; committee recommendation of reinstatement denied); Scales v. State Board of Law Examiners, 282 Ark. 578, 669 S.W.2d 895 (1984) (conviction for embezzlement from estate in 1975; license surrendered in 1975; applicant had repaid only a small portion of the funds embezzled from his client); In re Petition of Shannon, 274 Ark. 106, 621 S.W.2d 853 (1981) (license surrendered in 1974; applicant had failed to make restitution for embezzlement). Further, a former prosecutor who was disbarred for the misappropriation of clients' funds and convicted in 1975, see Ex parte Weems, 277 Ark. 133, 639 S.W.2d 514 (1982) has petitioned the Board of Law Examiners four times unsuccessfully for re-admission. ARKANSAS GAZETTE, June 26, 1987. On occasion the Board has required a former attorney to pass the Arkansas Bar Examination before it will rule on the petition for readmission. See In re Baxter, 323 Ark. 232, 913 S.W. 2d 791 (1996).

0.2:245      Mandatory Disbarment Upon Conviction of a Crime Involving Moral Turpitude

Section 6(B) directs the committee to institute an action of disbarment when an attorney is convicted of a felony or a crime which also violates Rule 8.4(b) of the Model Rules. Neal v. Wilson, 316 Ark. 588, 873 S.W. 2d 552 (1994). Typically the committee's policy is not to take any disciplinary actions until all criminal appeals have been completed. See Neal v. Wilson, 316 Ark. 588, 873 S.W. 2d 552 (1994). The judgment of conviction is conclusive evidence of the attorneys's guilt. The attorney may not offer evidence inconsistent with the essential elements of the crime, but is limited to mitigating factors that may influence the sanction to be imposed.

The attorney is estopped from relitigating the criminal conviction. Supreme Court Committee on Professional Conduct v. Jones, 256 Ark. 1106, 509 S.W.2d 294 (1974). An Arkansas attorney who is disbarred in another state will be subsequently disbarred by a summary proceeding in Arkansas. See Rule 7(M). See In re Lewis, 306 Ark. 293, 810 S.W.2d 45 (1991).

0.2:250      Sanctions in Judicial Proceedings

Trial and appellate courts have inherent power to hold attorneys in civil and criminal contempt. For example, Mitchael v. State, 309 Ark. 280, 828 S.W. 2d 844 (1992) (attorney who failed to file appellate brief and failed to respond to clerk's letter held in contempt and fined $500). See Howard W. Brill, A Proposed Contempt Statute, 1984 ARK. L. NOTES and Morton Gitelman, The Zealous Advocate and Contempt of Court: Attorney Contempt in Arkansas and the Need for Change, 1984 ARK. L. NOTES 39. But the courts have no authority to professionally discipline an attorney with suspension or disbarment. Davis v. Merritt, 252 Ark. 659, 480 S.W. 2d 924 (1972). That power rests exclusively with the Committee on Professional Conduct.

0.2:260      Criminal and Civil Liability

Arkansas attorneys have been professionally disciplined for violations of both state and federal criminal statutes. Disciplinary reports are summarized in the quarterly publication Arkansas Lawyer. Malpractice actions concerning Arkansas attorneys are collected in Section 1.1:300.

0.2:270      Federal Courts and Agencies

Federal courts in Arkansas have suspended attorneys from practicing before the courts and have also referred evidence of professional misconduct to the Supreme Court Committee on Professional Conduct for further action. See 0.2:230.

0.2:280      Ethics Rules Applied in Federal Courts in Arkansas

The federal courts for the Eastern and Western Districts have adopted the Model Federal Rules of Disciplinary Enforcement. Rule IV defines misconduct as a violation of the Rules of Professional Conduct as adopted by the Supreme Court of Arkansas.

0.3:300   Organization of This Library and the Model Rules

This narrative follows the organization employed by the American Legal Ethics Library.

0.4:400   Abbreviations, References and Terminology

0.4:410      "Belief" or "Believe"

The Arkansas definition is identical to the Model Rules.

0.4:420      "Consults" or "Consultation"

The Arkansas definition is identical to the Model Rules.

0.4:430      "Firm" or "Law Firm"

The Arkansas definition is identical to the Model Rules.

0.4:440      "Fraud"

The Arkansas definition is identical to the Model Rules.

0.4:450      "Knowingly," "Known," or "Knows"

The Arkansas definition is identical to the Model Rules.

0.4:460      "Partner"

The Arkansas definition is identical to the Model Rules.

0.4:470      "Reasonable" or "Reasonably"

The Arkansas definition is identical to the Model Rules.

0.4:480      "Reasonable belief" or "Reasonably believes"

The Arkansas definition is identical to the Model Rules.

0.4:490      "Substantial"

The Arkansas definition is identical to the Model Rules.

0.4:500   Additional Definitions in Arkansas

"Reasonably should know" when used in reference to a lawyer denotes that a lawyer of reasonable prudence and competence would ascertain the matter in question.