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VIII. MAINTAINING THE INTEGRITY OF THE PROFESSION

8.1   Rule 8.1 Bar Admission and Disciplinary Matters

8.1:100   Comparative Analysis of Arkansas Rule

8.1:101      Model Rule Comparison

The Arkansas Rule is the same as the Model Rule.

8.1:102      Model Code Comparison

The comparison accepted by the Arkansas Supreme Court is identical to the comparison in the Model Rules.

8.1:200   Bar Admission

8.1:210      Bar Admission Agency

The Arkansas Board of Law Examiners consists of 11 attorneys, appointed by the Arkansas Supreme Court for a three year term. For each examination, an individual examiner is assigned responsibility for one of the 11 subject areas tested on the examination.

8.1:220      Bar Admission Requirements

The judicial branch has the inherent power and exclusive jurisdiction to admit attorneys to practice. Feldman v. State Board of Law Examiners, 438 F.2d 699 (8th Cir. 1971). Although sometimes the practice of law is described as a privilege, not a right, Kelly v. Rogers, 258 Ark. 865, 529 S.W.2d 647 (1975), an applicant may not be denied admission without valid reasons. Taylor v. Safly, 276 Ark. 541, 637 S.W.2d 578 (1982). The Court may constitutionally refuse to accept the recommendations of the Board of Bar Examiners. Feldman v. State Board of Law Examiners, 438 F.2d 699 (8th Cir. 1971). Federal district courts generally lack subject matter jurisdiction to review a state's denial of admission. See Partin v. Arkansas State Board of Law Examiners, 863 F. Supp. 924 (E.D. Ark. 1994).

The applicant for admission has the burden of demonstrating eligibility, and must do so by a preponderance of the evidence. In re Application of Crossley, 310 Ark. 435, 893 S.W.2d 1 (1992). In particular, Rule XIII requires that the applicant have good moral character. Mere immorality is not sufficient to justify exclusion from practice; the immoral act or behavior must have a rational relationship to fitness for the practice of law to justify exclusion from practice. Schware v. Board of Bar Examiners of New Mexico, 353 U.S. 232 (1957); In re Application of Crossley, 310 Ark. 435, 839 S.W.2d 1 (1992).

Only one Arkansas appellate decision focuses on good moral character as raised by conduct prior to law school. In Partin v. Bar of Arkansas, 320 Ark. 37, 894 S.W.2d 906 (1995) the applicant had three drug-related convictions over a 13 year period before entering law school. The Board, in an 8 to 3 vote, denied admission, and the Supreme Court unanimously affirmed. While acknowledging the passage of time and the rehabilitation efforts of the applicant, the opinion focused primarily on his apparent lack of candor in his statements to the Board and "his failure to exhibit remorse or acceptance of the criminality of his actions." See Marshall S. May, Note, The Good Moral Character Requirement for Arkansas Bar Applicants, 49 ARK. L. REV. 829 (1996). In unreported decisions, the Board of Bar Examiners denied admission to an applicant who had been convicted of fraud involving financial institutions prior to law school and an applicant who had been found civilly liable for a check kiting scheme conducted while in law school.

In addition to good moral character, the applicant has the burden of demonstrating emotional and mental stability. The Board has denied, and the Court has affirmed, admission to a law school graduate whose chemical dependency and use of illegal drugs indicated unfitness to practice law. In re Application of Crossley, 310 Ark. 435, 839 S.W.2d 1 (1992) (applicant failed to show complete rehabilitation; the court suggested re-application after two years of sobriety). As revised, Rule XIII permits a deferral of an initial admission decision when the applicant's ability to practice law is impaired by alcohol or substance abuse. The applicant and the committee may enter into a deferral agreement, after which the Board shall determine whether the applicant has complied with the agreement and whether to recommend admission.

All applicants must pass (1) the Multi-State Professional Responsibility Examination, and (2) the Arkansas Bar Examination. The latter consists of one day of 11 essay questions (five from the Multi-State Essay Examination and six drafted by Arkansas examiners) and one day of the Multi-State Bar Examination. The essay questions count 2/3 and the MBE counts 1/3 of the total score.

8.1:230      Admission on Motion

Rule XII, which was adopted pursuant to Amendment 28, and which provides that only graduates of American Bar Association approved law schools may take the bar examination, overrides Ar. Code █ 16-22-101. Petition of Pitchford, 265 Ark. 752, 581 S.W.2d 321 (1979). The "diploma privilege", which automatically admitted graduates of Arkansas law schools, was abolished circa 1950. Admission to practice by reciprocity based upon experience in another jurisdiction was abolished in 1985. All applicants for admission must take the Arkansas Bar Examination. Kelly v. Rogers, 258 Ark. 865, 529 S.W.2d 647 (1975).

8.1:240      Admission Pro Hac Vice [see also 5.5:230]

Rule XIV of the Rules governing admission to practice permits admission pro hac vice for non-resident attorneys. The requirements are that (1) the attorney be admitted to practice law in the Supreme Court of the United States, the United States Court of Appeals for the circuit in which he resides or in the Supreme Court or the highest appellate court of the state of his residence, (2) the attorney be in good standing in the court of his admission, and (3) the attorney sign a written statement submitting to all disciplinary procedures applicable to Arkansas attorneys. See, e.g., Walker v. State, 274 Ark. 124, 622 S.W.2d 193 (1981). The trial court may require that a non-resident attorney associate local counsel to be responsible for the progress of the case. Unresolved is the issue of the legal significance of pleadings filed by an attorney who failed to properly gain admission by this method. See B.A.R. Enterprises, Inc. v. Palin Manufacturing Co., 312 Ark. 500, 850 S.W. 2d 322 (1993). Pro hac vice is not available to attorneys residing in Arkansas; they must take the Arkansas bar examination. Willett v. State, 334 Ark. 40, ___ S.W. 2d ___ (1998) (Texas attorney residing in Arkansas and teaching at law school not permitted to file appellate brief).

Admission pro hac vice governs participation in litigation at both the trial and appellate levels. No comparable mechanism exists for non-Arkansas attorneys who carry on office practice, negotiate or advise clients in Arkansas. Arkansas has no special provisions for the admission of in-house corporate attorneys who serve only one client.

8.1:300   False Statements of Material Fact in Connection with Admission or Discipline

Arkansas has no case law or authority on this topic.

8.1:400   Duty to Volunteer Information to Correct a Misapprehension

Although Rule 8.1 does not explicitly require an attorney to come forward with negative information as to the qualifications, character or background of a bar applicant, a fair reading of the attorney's obligation to the profession and to the public mandates such disclosure in the absence of attorney-client confidentiality provisions.

8.1:410      Protecting Client Confidential Information

Arkansas has no case law or authority on this topic.

8.1:500   Application of Rule 8.1 to Reinstatement Proceedings

8.2   Rule 8.2 Judicial and Legal Officials

8.2:100   Comparative Analysis of Arkansas Rule

8.2:101      Model Rule Comparison

The Arkansas Rule is the same as the Model Rule.

8.2:102      Model Code Comparison

The comparison accepted by the Arkansas Supreme Court is identical to the comparison in the Model Rules.

8.2:200   False Statements About Judges or Other Legal Officials

A court has the power to strike an appellate brief, or portions of it, that contains intemperate language showing disrespect for the trial court. McLemore v. Elliot, 272 Ark. 306, 614 S.W.2d 226 (1981).

8.2:300   Lawyer Candidates for Judicial Office

8.3   Rule 8.3 Reporting Professional Misconduct

8.3:100   Comparative Analysis of Arkansas Rule

8.3:101      Model Rule Comparison

Arkansas has not adopted the 1991 amendment to the Model Rules protecting information obtained from a lawyers assistance program. The Arkansas Rule remains the same as the Model Rule adopted in 1983.

8.3:102      Model Code Comparison

The comparison accepted by the Arkansas Supreme Court is identical to the comparison in the Model Rules.

8.3:200   Mandatory Duty to Report Serious Misconduct

To implement the self-regulating aspect of the legal profession, Rule 8.3(a) requires the reporting attorney to act upon knowledge of a substantial violation. Knowledge means less than actual certainty, but more than mere suspicion. Knowledge can be "inferred from circumstances." See 0.4:450. Knowledge of insubstantial violations need not be reported. See Thomas M. Carpenter, A Question of Duty and Honor, ARKANSAS LAWYER (Winter 1995) 16. The attorney is to make a preliminary judgment as to whether the violation, considered from the perspective of an objective attorney, is substantial enough to trigger the duty to report. A failure to report is itself a violation of AR Rule 8.4(a). Arkansas attorneys have been disciplined for violations of AR Rule 8.3(a).

Complaints or evidence of attorney misconduct are directed to the Supreme Court Committee on Professional Conduct, the state-wide disciplinary arm of the Supreme Court. See 0.2:230.

8.3:300   Reporting the Serious Misconduct of a Judge

Charges of judicial misconduct are handled by the Judicial Discipline and Disability Commission.

8.3:400   Exception Protecting Confidential Information

While the limitation in AR Rule 8.3(c) prevents disclosure of confidential information obtained from a client, the attorney may have an obligation, under Rule 2.1 or under the general duty to the profession, to urge the client to permit disclosure. The limitation does not extend to information of misconduct by another attorney that is obtained from non-clients or by a successor attorney reviewing a file. Nor does the rule permit attorneys within a firm to internally discipline or sanction another member of the firm without reporting to the disciplinary authorities. See 5.1:200.

8.4   Rule 8.4 Misconduct

8.4:100   Comparative Analysis of Arkansas Rule

8.4:101      Model Rule Comparison

The Arkansas Rule is the same as the Model Rule.

8.4:102      Model Code Comparison

The comparison accepted by the Arkansas Supreme Court is identical to the comparison in the Model Rules.

8.4:200   Violation of a Rule of Professional Conduct

See 8.4:400.

8.4:300   Commission of a Crime

See 0.2:240, 8.4:400.

Because the licensed attorney occupies a position of public trust, criminal sanctions are imposed accordingly. See, for example, United States v. Fitzhugh, 78 F. 3d 1326 (8th Cir. 1996) (bribery); United States v. Post, 25 F. 3d 599 (8th Cir. 1994) (mail fraud).

8.4:400   Dishonesty, Fraud, Deceit and Misrepresentation

Historically the majority of complaints pursued by the disciplinary authorities involved the misuse of clients' funds and activities that were criminal in nature, such as bribery of witnesses or officials, the acceptance of bribes from criminal defendants and fraudulent billing of clients. The disciplinary focus has broadened as sanctions have been imposed against attorneys for professional incompetency, neglect of cases and clients, representation of parties with conflicting interests, fraudulent statements to third parties, improper business relationships with clients, ex parte communications, frivolous pleadings, and failure to keep clients informed. See Howard W. Brill, The Arkansas Supreme Court Committee on Professional Conduct 1969-1979: A Call for Reform, 33 ARK. L. REV. 571, 587-590 (1980). See the quarterly reports published in The Arkansas Lawyer.

Attorneys may be disciplined for conduct that is unconnected with professional activities and that does not harm clients. Comm. on Professional Conduct v. Jones, 256 Ark. 1106, 509 S.W.2d 294 (1974). Accordingly, attorneys have been disciplined for tax violations, public intoxication, possession of controlled substances, and shoplifting. The test employed by the rules is (a) whether a criminal act reflects adversely on the lawyer's honesty or fitness as a lawyer, or (b) whether other conduct involves dishonesty, fraud or deceit. Wilson v. Neal, 332 Ark. 148, ___ S.W. 2d ___ (1998) (attorney convicted of knowingly converting money that belonged to the federal government; although misdemeanors, they involved dishonesty and a breach of the public trust).

An attorney can be disciplined for violating the rules through the acts of another. Fink v. Neal, 328 Ark. 646, 945 S.W. 2d 916 (1997) (office staff had failed to comply with ˝ticklerţ system or had failed to mark file). An attorney cannot defend against disciplinary charges by arguing that the client demanded the action taken by the attorney, consented to it, or was benefitted by it. See Fitzhugh v. Comm. on Professional Conduct, 308 Ark. 313, 823 S.W.2d 897 (1992).

8.4:500   Conduct Prejudicial to the Administration of Justice

Intentional misconduct is not a prerequisite for finding a violation of Rule 8.4(d). Clark v. Supreme Court Comm. on Professional Conduct, 320 Ark. 597, 898 S.W. 2d 446 (1995) (attorney failed to respond to motion to dismissal and did not know of dismissal of action for two years); Finch v. Neal, 316 Ark. 530, 873 S.W. 2d 519 (1994) (attorney negotiated a settlement improperly). For example, an attorney who improperly took a default judgment and caused a writ of garnishment to be issued against a defendant who had answered the action was professionally disciplined. Fink v. Neal, 328 Ark. 646, 945 S.W. 2d 916 (1997) (attorney failed to make reasonable inquiry). The level of improper conduct, whether it be intentional, reckless, gross or simple negligence, may be relevant to the sanction imposed, rather than to the determination of unethical action. Id. Nor can an attorney avoid disciplinary action by taking corrective measures when the mistake is discovered. Id.

Conduct prejudicial to the administration of justice occurs when a party adds an attorney, shortly before trial, as a device to force judicial recusal. Seeco, Inc. v. Hales, 334 Ark. 134, ___ S.W. 2d ___ (1998) (in view of policy against ˝judge-shoppingţ, attorney disqualified).

8.4:600   Implying Ability to Influence Public Officials

See 8.4:400.

8.4:700   Assisting Judge or Official in Violation of Duty

Arkansas has no case law or authority on this topic.

8.4:800   Discrimination in the Practice of Law

Arkansas has no case law or authority on this topic.

8.4:900   Threatening Prosecution

See 4.4:220.

8.5   Rule 8.5 Disciplinary Authority; Choice of Law

8.5:100   Comparative Analysis of Arkansas Rule

8.5:101      Model Rule Comparison

Since first adopted in 1986, AR Rule 8.5 has provided that "A lawyer admitted to practice or practicing in this jurisdiction is subject to the disciplinary authority of this jurisdiction although engaged in practice elsewhere."

8.5:102      Model Code Comparison

The comparison accepted by the Arkansas Supreme Court is identical to the comparison in the Model Rules.

8.5:200   Disciplinary Authority

Arkansas has disbarred and disciplined attorneys for acts committed outside Arkansas.

8.5:300   Choice of Law

Arkansas has not adopted the 1993 amendments to Rule 8.5 which govern choice of law provisions.