Opinion
July 9, 2001
Upon the invitation of this Court, the American Bar Association Standing Committee on Professional Discipline sent a team to examine the structure, operations, and procedures of our lawyer disciplinary system for the purpose of making recommendations for improvements to the system. On February 25, 2000, the Standing Committee issued its report to the Court containing its findings and recommendations. We reviewed the report and consulted with members of the Committee on Professional Conduct and the staff of the Office of Professional Conduct. On December 14, 2000, we published for comment proposed changes to the Procedures Regulating Professional Conduct of Attorneys at Law. A number of comments were received, and we thank those persons for taking the time to assist in this process.
After reviewing the comments and upon further deliberations, we have made substantial changes to the draft which was previously published, and the Court is now prepared to adopt amended procedures. Accordingly, we hereby amend and republish the Procedures Regulating Professional Conduct of Attorneys at Law as set out below. These changes shall be effective January 1, 2002.
In addition, we hereby adopt two amendments to the Model Rules of Professional Conduct: Rule 1.4(c) and Rule 1.15(d)(1) and (e). These two rules are republished following the Procedures, and they shall be effective January 1, 2002.
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SECTION 1. SCOPE.
A. Purpose. These Procedures are promulgated for the purpose of regulating the professional conduct of attorneys at law and shall apply to complaints filed and formal complaints instituted against attorneys after the effective date of these procedures, and within the purview of the jurisdiction and the authority of the Supreme Court Committee on Professional Conduct. From the effective date hereof, these Procedures shall apply to transfers to inactive status, to reinstatements, and to the extent that limitations and special requirements pertain, to attorneys presently suspended, disbarred or who have surrendered their law licenses. Every attorney now or hereafter licensed to practice law in the State of Arkansas shall be a member of the Bar of this State and subject to these Procedures. The jurisdiction of the Supreme Court Committee on Professional Conduct shall extend to lawyers in active, inactive or suspended status.
B. Rules of professional conduct adopted. The court has adopted the Model Rules of Professional Conduct of the American Bar Association, as amended, as the standard of professional conduct of attorneys at law. An attorney who violates any provision of the Model Rules, or these Procedures, shall be subject to the provisions herein.
C. Nature of proceedings. Disciplinary proceedings are neither civil nor criminal but are sui generis.
D. Repealer. To the extent that former rules or existing provisions of the Arkansas Code Annotated are in conflict with these Procedures, they are hereby overruled and superseded. These Procedures shall not be deemed exclusive of, but supplemental to those provisions of the Arkansas Code Annotated that are not in conflict herewith.
SECTION 2. DEFINITIONS. As used in these Procedures, unless the context otherwise requires:
A. "CLERK" means the Clerk of the Arkansas Supreme Court.
B. "COMMITTEE" means the Supreme Court Committee on Professional Conduct.
C. "COMPLAINANT" means the person(s) initiating a complaint, or the Committee when acting at its own instance or on behalf of another in initiating a complaint.
D. "COMPLAINT" means an inquiry, allegation, or information of whatever nature and in whatever form received by or coming to the attention of the Office of Professional Conduct or the Committee and concerning the conduct of a person subject to the jurisdiction of the Committee.
E. "FORMAL COMPLAINT" means a complaint directed to an attorney by the Office of Professional Conduct setting forth the alleged violation(s) of the Model Rules and informing the attorney of the right to file a written response.
F. "LESSER MISCONDUCT" is defined in Section 17 (C).
G. "MODEL RULES" means the Model Rules of Professional Conduct of the American Bar Association, as amended, and any statutory provisions or rules adopted by the Arkansas Supreme Court regulating the professional conduct of attorneys at law.
H. "OFFICE OF PROFESSIONAL CONDUCT" means the staff office managed and supervised by the Executive Director, which is responsible for receiving and investigating all complaints concerning members of the Arkansas Bar, presenting cases before the Committee panels, and litigating cases from the Committee before any court of this state.
I. "RESPONDENT" or "RESPONDENT ATTORNEY" means an attorney against whom a formal complaint has been initiated whether or not the attorney has failed to file a written response.
J. "SERIOUS CRIME" means any felony or any lesser crime that reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects, or any crime a necessary element of which, as determined by the statutory or common law definition of the crime, involves interference with the administration of justice, false swearing, misrepresentation, fraud, deceit, bribery, extortion, misappropriation, theft or an attempt, conspiracy or solicitation of another to commit a "serious crime."
K. "SERIOUS MISCONDUCT" is defined in Section 17 (B).
L. "SUBSTANTIAL" when used for the purposes of these procedures in reference to degree or extent, means beyond mere suspicion or conjecture and of sufficient force and character to compel a conclusion one way or another with reasonable and material certainty and precision.
M. "UNAVOIDABLE CIRCUMSTANCES" means circumstances not attributable to negligence, carelessness, fault, or the lack of diligence on the part of the respondent attorney.
SECTION 3. COMMITTEE ON PROFESSIONAL CONDUCT.
A. Composition/Term of Office.
(1) The Supreme Court shall appoint the members of the Committee on Professional Conduct to assist in enforcing these Procedures. The Committee shall consist of two separate seven-member panels. Each panel will be comprised of five attorneys, one chosen from the State at large and one from each of the four Congressional Districts. Two non-attorneys will be chosen to serve on each panel, and these four lay members will be chosen from the State at large. Members shall not be permanently assigned to a particular panel, but the composition of the panels shall rotate among the members from time to time. Each appointment shall be for a term of six years unless otherwise designated by the Supreme Court. Members may be reappointed to one successive six-year term. Terms shall be staggered. Vacancies occurring from causes other than expiration of term of office will be filled by the Supreme Court as they occur, and the person so appointed shall serve the remainder of his or her predecessor's term. Committee members shall serve until their successors are appointed and certified. The Committee shall elect one of its members as Chairperson and another as Secretary. The Committee, consistent with the provisions herein, may adopt such internal, operating rules and policies as may be necessary to facilitate the performance of its duties, responsibilities, and administrative functions.
(2) Members shall refrain from taking part in any disciplinary proceeding in which a judge similarly situated would be required to recuse.
(3) Seven reserve members shall be appointed to serve as a pool from which replacements may be drawn in those instances in which members of the Committee are disqualified or unable to serve. Five of the reserve members shall be lawyers with at least one from each Congressional District. Two of the reserve members shall not be lawyers and shall be selected from the State at large. In other respects, the terms of service for reserve members shall be the same as provided for the Committee. Reserve members shall possess the authority, powers, immunities and entitlements as provided for the Committee by these Procedures, and which are necessary and appropriate for the discharge of their duties and function. The Committee Chairperson or Executive Director shall appoint reserve members to serve, individually or collectively as the situation requires, in those instances in which members of a panel of the Committee consider themselves disqualified or are unable to serve. Reserve members serving as replacements shall be selected so as to maintain the appropriate lawyer/non-lawyer composition. Reserve members do not have to be selected unless the required quorum of the Committee or a panel thereof is not present. If necessary, the Supreme Court may appoint additional persons to serve as reserve members to permit the Committee to discharge its duties.
B. Quorum. A majority of the Committee shall constitute a quorum for the conduct of Committee business, but the Committee shall not sit en banc for disciplinary proceedings. When the Committee is authorized to act in a seven-member panel, five members shall constitute a quorum.
C. Authority/Powers.
(1) The Committee, through its panels, shall have, and is hereby granted, authority to impose any sanctions deemed appropriate as provided in Section 7 (Procedure), Section 17 (Sanctions), and Section 18 (Fines, Costs, and Restitution).
(2) The Committee, through its panels, is hereby authorized to take action by written ballot subject to the requirements and limitations set out in Section 10 of these Procedures.
(3) The Committee, through its panels, is authorized to conduct hearings at either:
(a) The request of the panel; or
(b) The request of the respondent attorney after written ballots are taken.
(4) The Committee is authorized to hold meetings to conduct the business of the Committee which consists of, but is not limited to, the election of officers, the determination of pending complaints, and such administrative matters as required.
(5) The Committee shall have the authority to employ, with the consent of the Supreme Court, an Executive Director who will not be a member of the Committee, and shall not have a vote on any matter presented to the Committee for decision. The Committee, acting through its Chairperson, may temporarily employ or designate from the staff attorneys of the Office of Professional Conduct an acting Executive Director in any case in which the Executive Director or the Senior Staff Attorney (pursuant to Section 5 (D) (3)) is unable to act, or recuses, or disqualifies.
(6) The Committee shall maintain a permanent office under the supervision of the Executive Director for the conduct of its business and the maintenance of the various records of the Committee.
(7) The seal heretofore adopted by the Committee shall be the official seal for its use in the performance of the duties imposed by these Procedures.
(8) The Committee, through its panels as described herein, shall have the authority to issue summonses for any person(s), or subpoenas for any witness(es), including the production of documents, books, records, or other evidence, in the same manner as is provided for civil process pursuant to the Arkansas Rules of Civil Procedure, requiring the presence of any person, or the attendance of any witness before the Committee for the purpose of testimony, or in furtherance of an investigation. Such process shall be issued under the seal of the Committee provided for in subsection C(7) of this Section and be signed by the Chairperson of the Committee, Secretary, the chair of a panel of the Committee or by the Executive Director. Any subpoenas issued herein shall clearly indicate that the subpoenas are issued in connection with a confidential investigation under these Procedures and that it is regarded as contempt of the Supreme Court for a person subpoenaed to breach the confidentiality of the investigation. If found to be in contempt of the Supreme Court under these Procedures, a person may be punished by incarceration, imposition of a fine, or both. In addition, it shall be grounds for discipline under these Procedures for a subpoenaed attorney to breach the confidentiality of the investigation. It shall not be regarded as a breach of confidentiality for a person subpoenaed to seek or consult with legal counsel in regard to the subpoena, nor shall the confidentiality apply to subpoenas issued in connection with a public hearing.
(9) The Committee, through the Chairperson, a panel chair, or the Executive Director, may seek immunity from criminal prosecution for a reluctant witness, using the procedure of Ark. Code Ann. §§ 16-43-601 to 606 (1987).
(10) The Committee may propose rules of procedure for lawyer discipline and disability proceedings for promulgation by the Supreme Court, and comment on existing and proposed rules.
(11) The Committee shall periodically review the operation of the system with the Supreme Court.
(12) The Committee, working with the Office of Professional Conduct, shall inform the public about the existence and operation of the system and the disposition of each matter in which public discipline has been imposed, a lawyer has been transferred to or from disability inactive status, or a lawyer has been reinstated. Communication options should include toll-free telephone and the Internet.
(13) The Committee shall perform administrative oversight over the Office of Professional Conduct which shall include: reviewing the productivity and efficiency of the office; assessing caseload management; reviewing and making recommendations concerning budgetary matters; making recommendations to the Executive Director; and improving the statistical records of the office. Administrative responsibilities may be delegated to panels of the Committee on a rotating basis, which may include an Executive Committee selected by the Committee.
(14) When so requested by a Federal Judge under the Uniform Federal Rules of Disciplinary Enforcement adopted by the United States District Courts of Arkansas on May 1, 1980, or successor rules, the Committee may act as the disciplinary agency and the Executive Director as counsel in a federal disciplinary action. Any additional expense incurred in the processing of a federal complaint will be paid from the funds arising from the assessments levied pursuant to the Uniform Federal Rules and available for that purpose. When final action is taken under a federal complaint, a report of that action will be made to the Federal Judge who referred the matter, and the Committee may also furnish to the Federal Judge any other information from its files necessary to fulfill its duties as disciplinary agency.
D. Immunity. The Committee, its individual members, Executive Director and employees and agents of the Committee are absolutely immune from suit or action for their activities in discharge of their duties hereunder to the full extent of judicial immunity in Arkansas .
E. Expenses. From the funds established and appropriated by the Arkansas Supreme Court and in accordance with budgetary limitations, members of the Committee shall be entitled to receive their travel and hotel expenses, reimbursement for postage, stationery, communications, an attendance allowance, other incidental expenses including stenographic bills and court costs chargeable against them , and to attend training and continuing education programs. All such items shall be paid by the Clerk by check on such funds. Accounts must be itemized and certified by the Chairperson, Secretary, or the Executive Director of the Committee as true and correct.
SECTION 4. COMMITTEE PANELS.
A. General. The Committee may delegate to panels composed of less than the full membership of the Committee the power to act for the Committee in discharging the powers and duties hereunder. Specifically, the Chairperson of the Committee shall appoint seven-member hearing panels. The Chairperson of the Committee shall also (i) establish the rotation by which members are assigned to panels, (ii) establish the rotation by which panels are assigned complaints; and (iii) designate the chairs for panels
B. Appointment. Each panel shall consist of five lawyer-members of the Committee and two non-lawyers. A lawyer member of each panel shall be appointed its chair by the Chairperson of the Committee. A panel member whose term has expired may continue to serve on any case that was commenced before the expiration of the member's term. Five members shall constitute a quorum. The panel shall act only with the concurrence of at least four members. Reserve members may be appointed to serve on a panel pursuant to Section 3 (A) (3).
C. Powers and Duties. Panels shall have the following powers and duties:
(1) To conduct proceedings during the ballot phase concerning formal complaints of misconduct, petitions for reinstatement, and petitions for transfer to and from disability inactive status;
(2) To conduct hearings;
(3) To adopt written findings of fact, conclusions of law, and recommendations prepared with the administrative assistance of the Office of Professional Conduct; and
(4) To discharge other duties imposed by these Procedures.
SECTION 5. OFFICE OF PROFESSIONAL CONDUCT.
A. General. The Executive Director of the Office of Professional Conduct shall be an attorney actively licensed to practice law in the State of Arkansas, shall serve at the will of the Court, and shall devote full time and effort to promptly and efficiently perform the duties stated in this Section, and such other duties as directed by the Committee.
B. Duties-Office.
(1) The Executive Director may attend and, at the request of the Committee, act as counsel in presenting testimony and other evidence at any hearing pursuant to these Procedures.
(2) The Executive Director, or in his or her absence or disqualification from a case the acting Executive Director, shall have power to administer oaths in all matters incident to the duties imposed by these Procedures and such power and authority shall be coextensive with the State.
(3) The Executive Director shall be responsible for the administration of the business office and the security of the records. As authorized by and upon such terms as the Committee shall direct, the Executive Director may employ such personnel, including, staff attorneys, investigators, temporary employees, and retain independent counsel, as may be required to perform the administrative, investigative or legal functions of the Committee. The Executive Director and the professional staff of the Office of Professional Conduct shall periodically attend training and continuing education programs.
(4) The Executive Director shall receive reports from financial institutions pursuant to Model Rule 1.15 (d) (1) indicating that a properly payable instrument has been presented against a lawyer's trust account containing insufficient funds, irrespective of whether or not the instrument is honored, and take appropriate action in response to such information.
C. Duties-Complaints
(1) It shall be the duty of the Office of Professional Conduct to receive and investigate all complaints against any member of the Bar. Such complaints shall be docketed and assigned a permanent file number. The Office of Professional Conduct and the Committee shall accept and treat as a formal complaint any writing signed by a judge of a court of record in this State regardless of whether such signature is verified.
(2) The Executive Director may refer matters involving lesser misconduct as defined in Section 17 (C) to alternatives-to-discipline programs approved by the Supreme Court. Such programs may include, in addition to the Arkansas Lawyers Assistance Program, programs for fee arbitration, arbitration, mediation, law office management assistance, psychological counseling, continuing education, and ethics.
(3) Upon a determination by the Executive Director that a complaint sets out allegations falling within the purview of the Committee, and those allegations are supported by sufficient evidence, the Executive Director shall provide any assistance needed in the preparation of the complainant's affidavit, and shall process a formal complaint pursuant to the procedures of the Court and the Committee.
(4) If a complaint does not set forth sufficient grounds to reasonably support preparation of a formal complaint but contains information indicative of a misunderstanding or controversy between an attorney and a client or a third party who may be aggrieved by the conduct or circumstances, and the best interests of the integrity of the profession and the valid concerns of the complainant would be served by reconciliation or communication between the parties, the Executive Director may, at the request of the complainant or in the judgment of the Executive Director, contact the attorney by telephone or letter advising the attorney of the nature of the complaint. The aforementioned procedure will not be considered a formal complaint.
(5) Review of the Executive Director's Decision.
(a) A complainant, who is not satisfied with the Executive Director's determination that the allegations of the complaint fall outside the purview of the Committee or that the allegations are not supported by sufficient evidence to file a formal complaint, may request a review of that determination.
(b) The request for review shall be filed with the Executive Director in writing within twenty (20) days from the date of mailing of the letter notifying the complainant of the determination of the lack of a basis for filing a formal complaint.
(c) The written request will set out in general terms the complainant's grounds for objection to the Executive Director's decision.
(d) Upon receipt of a request for review, the Executive Director will acknowledge in writing the request, and shall forward the complaint information to the Chairperson of the Committee on Professional Conduct for review.
(e) The Chairperson of the Committee shall forward copies of the Complaint provided by the Executive Director to five members of the Committee, one of whom will be a nonlawyer, directing that they review the Executive Director's disposition of the matter.
(f) The reviewing members, by majority vote, may approve the Executive Director's disposition of the matter, direct that an affidavit of formal complaint be prepared, or request further investigation of the matter by the Executive Director. Votes may be taken by written ballots on forms supplied by the Office of Professional Conduct or by telephone. With the administrative assistance of the Office of Professional Conduct, the result of the vote will be made known to the Chairperson of the Committee and the Executive Director by a member of the five-member reviewing body. If a formal complaint is instituted, members of the five-member reviewing body shall not participate in subsequent proceedings in the matter.
(g) The Executive Director shall then notify the complainant in writing of the results of the review and dismiss the complaint, initiate a formal complaint, or request additional information as appropriate.
(h) There shall be no further review or appeal of the Committee's final decision.
D. Staff Attorneys.
(1) All Staff Attorneys employed by the Executive Director shall be actively licensed to practice law in the State of Arkansas.
(2) Staff Attorneys shall serve at the direction and pleasure of the Executive Director and may perform all duties and possess all authority of the Executive Director as the Executive Director may delegate except for the final determination of sufficiency of formal complaints, and the authority and responsibilities provided in Sections 3(C)(8) (subpoenas) and 5(B)(2) (oaths), which authority may be exercised by the acting Executive Director in the absence of or upon the disqualification from a case by the Executive Director.
(3) In the event of the temporary inability of the Executive Director to fully discharge the duties of office, or when a vacancy exists in that office, the Senior Staff Attorney shall discharge such duties as the acting Executive Director. If the Executive Director determines that a conflict of interest exists for the Executive Director with regard to a particular complaint, complainant, or respondent, the Executive Director may recuse from the matter and the Senior Staff Attorney shall discharge such duties as the acting Executive Director for that matter.
E. Compensation/Expenses. The Executive Director and staff of the Office of Professional Conduct shall be paid such reasonable salary and expenses as deemed necessary and appropriate by the Committee. Employee salaries, benefits and expenses of the office shall be payable from funds budgeted to the Committee by the Arkansas Supreme Court.
SECTION 6. CONFIDENTIALITY/RECORDS.
A. Communications Confidential. Subject to the exceptions listed in subsections B and C of this Section:
(1) All communications, complaints, formal complaints, testimony, and evidence filed with, given to or given before the Committee, or filed with or given to any of its employees and agents during the performance of their duties, that are based upon a complaint charging an attorney with violation of the Model Rules, shall be absolutely privileged and confidential ; and
(2) All actions and activities arising from or in connection with an alleged violation of the Model Rules by an attorney licensed to practice law in this State are absolutely privileged and confidential.
(3) These provisions of privilege and confidentiality shall apply to complainants.
B. Exceptions.
(1) Except as expressly provided in these Procedures, proceedings under these Procedures are not subject to the Arkansas Rules of Civil Procedure regarding discovery.
(2) The records of public hearings conducted by the Committee pursuant to Section 11 of these Procedures are public information.
(3) In the case of disbarment, the Committee and the Office of Professional Conduct are authorized to release any information that either deems necessary for that purpose.
(4) The Committee is authorized to release information:
(a) For statistical data purposes;
(b) To a corresponding lawyer disciplinary authority or an authorized agency or body of a foreign jurisdiction engaged in the regulation of the practice of law;
(c) To the State Board of Law Examiners;
(d) To the Committee on the Unauthorized Practice of Law;
(e) To the Arkansas Client Security Fund Committee;
(f) To the Commission on Judicial Discipline and Disability;
(g) To any other committee, commission, agency or body within the State empowered to investigate, regulate or adjudicate matters incident to the legal profession when such information will assist in the performance of those duties;
(h) To any agency, body, or office of the federal government or this State charged with responsibility for investigation and evaluation of a lawyer's qualifications for appointment to a governmental position of trust and responsibility; or,
(i) Pursuant to the provisions of Section 9(A) and Section 15(B) of these Procedures.
(5) Any attorney against whom a formal complaint is pending shall have disclosure of all information in the possession of the Committee and the Office of Professional Conduct concerning that complaint including any record of prior complaints about that attorney. Procedures for discovery for formal complaints are set out in Section 8.
(6) The attorney about whom a complaint is made may waive, in writing, the confidentiality of the information.
(7) In all cases, the complainant shall be provided with a copy of the respondent attorney's affidavit of response and afforded a reasonable opportunity to reply.
C. Sanctions Made Public. When a public sanction becomes final under these Procedures, or when the Committee decides to initiate disbarment proceedings, a copy shall be forwarded to the Clerk and shall be maintained as a public record by the Clerk. Such information shall also be publicly disseminated, including release to the press and posting on the Arkansas Judiciary website. SECTION 7. PROCEDURE.
A. General. A panel of the Committee shall adjudicate all formal complaints alleging violation of the Model Rules that may be brought to its attention in the form of an affidavit, or in respect of which any member of the Committee may have information, and shall give the attorney involved an opportunity to explain or refute the charge.
B. Standard of Proof. Formal charges of misconduct, petitions for reinstatement, and petitions for transfer to or from inactive status shall be established by a preponderance of the evidence.
C. Burden of Proof. The burden of proof in proceedings seeking discipline or involuntary transfer to inactive status is on the Executive Director. The burden of proof in proceedings seeking reinstatement or transfer from involuntary or voluntary inactive status is on the attorney seeking such action.
D. Limitations on Actions. The institution of disciplinary actions pursuant to these Procedures shall be exempt from all statutes of limitation.
E. Evidence and Procedures. Except as noted in these Procedures, the Arkansas Rules of Evidence and the Arkansas Rules of Civil Procedure shall not generally apply to discipline proceedings.
F. Pleadings. All pleadings filed before the Committee shall be captioned "Before the Supreme Court Committee on Professional Conduct" and be styled "In re ________________" to reflect the name of the respondent attorney.
G. Prior Sanctions. Information concerning prior discipline of the respondent attorney shall not be divulged to the Committee members hearing or reviewing a complaint until after a finding of misconduct has been made unless said information is relevant for purposes of impeachment, or probative of issues pending in the present matter, including, without limitation, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. [See Ark.R.Evid. 404 (b).] If a panel is considering a matter by ballot-vote procedure, information concerning prior discipline of the respondent attorney, which is not subject to disclosure as set out above, shall be provided to the panel members in a sealed envelope accompanying the ballot, and shall not be unsealed and reviewed by the voting panel member until and unless the panel member shall mark the ballot finding a violation of a Model Rule.
H. Ex Parte Communication.
(1) Members of the Committee shall not communicate ex parte with the Executive Director or the staff of the Office of Professional Conduct, or the respondent attorney or his or her counsel regarding a pending or impending investigation or disciplinary matter except as explicitly provided for by law or these Procedures, or for scheduling, administrative purposes, or emergencies that do not deal with substantive matters or issues on the merits.
(2) A violation of this rule may be cause for removal of any member from the panel before which a matter is pending.
SECTION 8. DISCOVERY.
A. Scope. Within ten days following the filing with the Office of Professional Conduct of a request for a hearing by a respondent attorney after a ballot vote pursuant to Section 10(D) (3), the Executive Director and the respondent attorney shall exchange the names and addresses of all persons having knowledge of relevant facts. Within sixty (60) days following the filing of the request, the Executive Director and the respondent attorney may take depositions in accordance with Arkansas Rule of Civil Procedure 30 and shall comply with reasonable requests for (i) non-privileged information and evidence relevant to the charges or the attorney, and (ii) other material upon good cause shown to the chair of the panel before which the matter was pending.
B. Resolution of Disputes. Disputes concerning discovery shall be determined by the chair of the panel to which the matter was assigned. All discovery orders by the chair are interlocutory and may not be appealed prior to the entry of the final order.
C. Rules of Civil Procedure Not Applicable. Proceedings under these rules are not subject to the Arkansas Rules of Civil Procedure regarding discovery except those relating to depositions and subpoenas. SECTION 9. SERVICE OF COMPLAINT/ RESPONSE/ FAILURE TO RESPOND/ RECONSIDERATION.
Upon the filing of a formal complaint, the Executive Director shall:
A. Service of Complaint.
(1) Furnish to the attorney complained against a copy of the formal complaint and advise the attorney that he or she may file a written response in affidavit form with any supporting evidence desired. The attorney's mailing address on record with the Clerk shall constitute the address for service by mail. Attorneys shall be responsible for informing the Clerk in writing and within a reasonable time of any change of such address. Certified mailing of the formal complaint to said address shall be deemed a waiver of confidentiality for purposes of Section 9 (A)(2)(c).
(2) Service may be effected on a respondent attorney by:
(a) Mailing a copy of the formal complaint to attorney's address of record by certified, restricted delivery, return receipt mail; or,
(b) Personal service as provided by the Arkansas Rules of Civil Procedure or by an Investigator with the Office of Professional Conduct; or,
(c) When reasonable attempts to accomplish service by Section 9(A)(2)(a) or Section 9(A)(2)(b) have been unsuccessful, then a warning order, in such form as prescribed by the Committee, shall be published weekly for two consecutive weeks in a newspaper of general circulation within this State or within the locale of the attorney's address of record. In addition, a copy of the formal complaint and warning order shall be sent to the respondent attorney's address of record by regular mail.
(3) An attorney's failure to provide an accurate, current mailing address to the Clerk as required by Section 9(A)(1), or the failure or refusal to receipt certified mailing of a formal complaint, shall be deemed a waiver of confidentiality for the purposes of the issuance of a warning order.
(4) Unless good cause is shown for an attorney's non-receipt of a certified mailing of a formal complaint, the attorney shall be liable for the actual costs and expenses for service or the attempted service of a formal complaint, to include all expenses associated with the effectuation of service. Such sums will be due and payable to the Committee before any response to a formal complaint will be accepted or considered by the Committee.
(5) After service has been effected by any of the aforementioned means, subsequent mailings by the Committee to the respondent attorney may be by regular mail to the attorney's address of record, address at which service was accomplished, or to such address as may have been furnished by the attorney, as the appropriate circumstance may dictate, except that notices of hearings and letters of caution, reprimand, suspension or initiation of disbarment proceedings shall also be sent by certified, return receipt mail.
(6) Service on a non-resident attorney may be accomplished pursuant to Section 9(A)(2)(a), (b) or (c), or in any manner prescribed by the law of the jurisdiction to which the service is directed.
B. Time and Manner of Response.
(1) Upon service of a formal complaint, pursuant to Section 9(A)(2)(a) or Section 9(A)(2)(b), or the date of the first publication, pursuant to Section 9(A)(2)(c), the attorney shall have twenty (20) days in which to file a written response consisting of an original and eight (8) copies with the Executive Director, except when service is upon a non-resident of this State, in which event the attorney shall have thirty (30) days within which to file a response. In the event that the Executive Director has not received a response within twenty (20) days or within thirty (30) days, as the appropriate case may be, following the date of service, and an extension of time has not been granted, the Executive Director shall proceed to issue ballots as provided in Section 10.
(2) At the request of an attorney, the Executive Director is authorized to grant an extension of reasonable length for the filing of a response. Subsequent requests for extensions must be in written form and will be ruled on by the Chairperson of the Committee, or the chair of the panel to which the matter has been assigned.
(3) The Executive Director shall provide a copy of the attorney's response to the complainant within ten (10) days of receiving it and advise that the complainant has seven (7) days in which to rebut or refute any allegations or information contained in the attorney's response. The Executive Director may include any rebuttal made by the complainant as a part of the material submitted to the Committee for decision and any such rebuttal shall be provided to the respondent attorney for informational purposes only, with no response required. If rebuttal to be submitted to the Committee contains allegations of violation of the Model Rules not previously alleged, it shall be in the form of a supplemental affidavit of complaint and the respondent attorney shall be provided a copy and permitted surrebuttal in the manner prescribed in subsection B(1) of this Section, except the time for doing so shall be ten (10) days.
(4) The calculation of the time limitations specified in Section 9(B) shall commence on the day following service upon the respondent. If the due date of a response or surrebuttal falls on a Saturday, Sunday, or legal holiday, the due date will be extended to the next regular business day.
C. Failure to Respond/ Reconsideration.
(1) An attorney's failure to provide, in the prescribed time and manner, a written response to a formal complaint served in compliance with Section 9(A)(2) shall constitute separate and distinct grounds for the imposition of sanctions notwithstanding the merits of the underlying, substantive allegations of the complaint; or,
(2) May be considered for enhancement of sanctions imposed upon a finding of violation of the Model Rules.
(3) The separate imposition or the enhancement of sanctions for failure to respond may be accomplished by the panel's notation of such failure in the appropriate sanction order and shall not require any separate or additional notice to the respondent attorney.
(4) Failure to respond to a formal complaint shall constitute an admission of the factual allegations of the complaint and shall extinguish a respondent's right to a public hearing.
(a) Provided, however, that a respondent attorney, within the time specified in Section 10(D) (3), may file with the Executive Director an original and eight (8) copies of a petition for reconsideration, stating, on oath, compelling and cogent evidence of unavoidable circumstances sufficient to excuse or justify the failure to respond. Otherwise, the panel's decision shall be final and will be filed of record with the Clerk.
(b) Upon the filing of a petition for reconsideration, the Executive Director shall provide each member of the panel a copy of the petition for vote by written ballot consistent with provisions of Section 10.
(c) If a majority of the panel, upon a finding of clear and convincing evidence, votes to grant the petition for reconsideration, the panel may:
(i) Permit the attorney to submit a belated affidavit of response to the substantive allegations of the formal complaint and the matter shall proceed as though the response had been made timely; and/or
(ii) Set aside any sanction imposed solely on the basis of the attorney's failure to respond.
(d) If the petition for reconsideration is denied, the panel's original decision and imposition of sanctions become final and will be filed of record with the Clerk. Appeal from the Committee's denial of reconsideration and the imposition of sanctions may be taken in the time and manner prescribed by the applicable provisions of Section 12. Provided, however, that such appeal cannot attack the substantive allegations of the complaint and shall be limited to the panel's denial of reconsideration.
SECTION 10. VOTE BY BALLOT.
A. At such time as the Executive Director has received from the attorney a written response or the attorney has failed to respond within the period provided in Section (9) (B), the Executive Director shall cause to be prepared seven copies of the complainant's affidavit, the response, rebuttal, exhibits, and a separate sealed envelope containing information concerning any prior discipline of the respondent attorney and shall send a copy thereof to each member of the seven-member panel to which the matter has been assigned. The members of the panel and its chair shall be selected by the Chairperson of the Committee. The Executive Director shall not take part in the deliberations of the panel. Each member shall vote by written ballot.
B. Each ballot shall contain appropriate spaces for:
(1) The name and signature of the panel member;
(2) The date;
(3) The member's vote on the action to be taken on the formal complaint; and,
(4) A place for the members to state which Section(s) of Model Rules, if any, are found to be violated.
C. If a majority of the panel returns written ballots expressing a desire to cause a respondent attorney, complainant, or other person to appear for the purposes of eliciting testimony, production of records and documents, provision of additional information or evidence, or for any other relevant purposes involved with a matter pending before the panel, a hearing will be scheduled and summonses or subpoenas may issue as required. Such evidentiary hearing shall not be public and no adjudicative decision will be pronounced or rendered at that time. The Committee, upon written ballot or voice vote, subsequently shall notify the respondent attorney of the decision and notify the complainant if no disciplinary action was warranted. Otherwise, the provisions of Section 10(D) (3) shall apply. Any recorded testimony, records, documents, exhibits or other evidence adduced at an evidentiary hearing may be received and made part of the record at a subsequent public hearing.
D. Results of Ballot Vote.
(1) In the event a majority of the panel votes to take no disciplinary action against a respondent attorney, the panel shall so advise the Office of Professional Conduct, which shall notify the complainant and the respondent attorney. The Office of Professional Conduct shall file a monthly report of such cases, by number only, as a public record in the office of the Clerk.
(2) If the vote is to warn, an appropriate letter shall be sent to the respondent and the complainant. The Office of Professional Conduct shall file a monthly report of such cases, by number only, as a public record in the office of the Clerk.
(3) If a majority of the panel returns written ballots to caution, reprimand, or suspend the attorney, the attorney shall be notified of the findings and decision of the panel , and be advised that he or she has a right, upon written request filed with the Office of Professional Conduct within twenty (20) days of service as defined by Section 9(A)(2), to a hearing before another seven-member panel of the Committee, none of which were members of the original panel, as provided in Section 11. The attorney shall also be advised that in the absence of a request for a hearing, such findings and order of the Committee will be entered in the files of the Committee and will be filed as a public record in the office of the Clerk.
(4) If a majority of the panel votes by paper ballot to initiate disbarment proceedings, the Committee shall proceed as set out in Section 13 and there shall be no public hearing before the Committee pursuant to Section 11. If the panel finds that a lawyer has committed acts against a client which constitute theft of property under Ark. Code Ann. § 5-36-103 (or its replacement), regardless of whether the attorney has been convicted, disbarment proceedings must be instituted.
(5) If any findings of fact, conclusions of law, or other recommendations are necessary at the conclusion of the ballot process, they shall be prepared by the Office of Professional Conduct with the advice and consent of the panel.
(6) The panel may refer matters involving lesser misconduct to alternatives-to-discipline programs as explained in Section 5 (C)(2).
SECTION 11. PUBLIC HEARING. If a hearing is requested after a ballot vote:
A. A panel will be so notified, and the written ballots if any, will be destroyed. The prior findings and decision shall be for naught and a panel will hear the complaint de novo under the rules for public hearings. The public hearing shall be heard before a seven-member panel of the Committee, the members of which will be selected by the Chairperson of the Committee, none of whom shall have been members of the original ballot-vote panel.
B. The Executive Director shall set a date for the hearing and shall notify the respondent attorney and the complainant of the hearing date. Once a hearing is set, the granting of any request for a continuance shall be at the discretion of the chair of the panel. The chair of the panel may require a prehearing conference.
C. At the end of the hearing, the panel shall hold an executive session to deliberate upon any disciplinary action to be taken. The findings and decision of the panel shall be announced immediately. The votes of the individual members shall be announced if the decision is not unanimous.
D. If a majority of the panel votes to caution, reprimand, or suspend an attorney, the Office of Professional Conduct shall be so advised, and shall notify the complainant of the specific action taken against the attorney. The Office of Professional Conduct will prepare, with the advice and consent of the panel, the Findings and Order, and a copy shall be filed as a public record in the office of the Clerk.
E. If a majority of the panel votes to disbar, the Executive Director, shall file an action for disbarment as provided in Section 13. Alternatively, if circumstances require and with the Supreme Court's approval, the panel may retain independent counsel to prosecute the disbarment proceeding. If the panel finds that a lawyer has committed acts against a client which constitute theft of property under Ark. Code Ann. § 5-36-103 (or its replacement), regardless of whether the attorney has been convicted, disbarment proceedings must be initiated.
F. The Committee may refer matters involving lesser misconduct to alternatives-to-discipline programs as explained in Section 5 (C)(2).
G. Doctor-Patient Privilege Waived. Raising the defense of mental or physical disability by one who is the subject of a disciplinary proceeding shall constitute a waiver of the doctor-patient privilege.
H. Immunity for Disciplinary Proceedings. Except for perjury and false swearing, complainants, respondents and witnesses are absolutely immune from suit or action for all communications with the Committee and all statements made within the disciplinary proceeding.
SECTION 12. APPEAL.
A. A respondent attorney or the Executive Director aggrieved by an action of a panel taken at a public hearing, may appeal to the Arkansas Supreme Court by filing a Notice of Appeal with the Office of Professional Conduct within thirty (30) days after the filing of the panel's written action with the Clerk. In appeals directly from the panel, the action shall proceed as an action between the Executive Director and the respondent. The panel may stay the effective date of any action pending appeal to the Arkansas Supreme Court. There shall be no appeal by the respondent attorney of a panel's decision to file an action for disbarment pursuant to Section 13.
B. Appeals from any action by a panel after hearing shall be heard de novo on the record and the Arkansas Supreme Court shall pronounce such judgment as in its opinion should have been pronounced below.
C. Notice of appeal and perfection of appeal shall be in accordance with the Rules of Appellate Procedure — Civil and Rules of the Arkansas Supreme Court governing appeals in civil matters. If no appeal is perfected within the time allowed and in the manner provided, the action of the panel shall be final and binding on all parties.
SECTION 13. DISBARMENT PROCEEDINGS.
(A) An action for disbarment shall be filed as an original action with the Clerk of the Supreme Court. Upon such filing, the Arkansas Supreme Court, pursuant to Amendment 28 of the Arkansas Constitution, shall assign a special judge to preside over the disbarment proceedings. The Clerk shall arrange for a courtroom or other suitable facility in Pulaski County in which the proceedings shall be heard. The special judge may hear preliminary and posttrial matters and take other such actions outside of Pulaski County to the same extent that the law permits judges sitting by assignment or on exchange to do. With the consent of all the parties, the judge may conduct the proceedings outside of Pulaski County. All allegations of violation(s) of the Model Rules by the attorney, notwithstanding the situs of the alleged conduct, shall be heard in this proceeding. In disbarment suits, the action shall proceed as an action between the Executive Director and the respondent. Proceedings shall be held in compliance with the Arkansas Rules of Civil Procedure and the Arkansas Rules of Evidence, and trial shall be had without a jury.
(B) The judge shall first hear all evidence relevant to the alleged misconduct and shall then make a determination as to whether the allegations have been proven. Upon a finding of misconduct, the judge shall then hear all evidence relevant to an appropriate sanction to be imposed, including evidence related to the factors listed in Section 19 and the aggravating and mitigating factors set out in the American Bar Association's Model Standards for Imposing Lawyer Sanctions, §§ 9.22 and 9.32 (1992). See Wilson v. Neal, 332 Ark. 148, 964 S.W.2d 199 (1998).
(C) The judge shall make findings of fact and conclusions of law with respect to the alleged misconduct of the respondent attorney and the imposition of sanctions, including the factors discussed in subsection 13 (B). Before filing the findings and conclusions, the judge may submit a draft thereof to counsel for all parties for the purpose of receiving their objections and suggestions. The judge shall make a recommendation as to the appropriate sanction from those set out in Section 17 (D).
(D) The findings of fact, conclusions of law, and recommendation of an appropriate sanction shall be filed with the Clerk of the Supreme Court along with a transcript and the record of the proceedings. Upon the filing, the parties shall file briefs as in other cases. The findings of fact shall be accepted by the Supreme Court unless clearly erroneous. The Supreme Court shall impose the appropriate sanction, if any, as the evidence may warrant. In imposing the sanction of suspension, the attorney may be suspended for a period not exceeding five (5) years. There is no appeal from the decision of the Supreme Court except as may be available under federal law.
SECTION 14. RECIPROCAL DISBARMENT OR SUSPENSION.
A. The disbarment or suspension of any person from the practice of law in any other state shall operate as a disbarment or suspension of such person from the practice of law in this State under any license issued to such person by the Arkansas Supreme Court prior to his or her disbarment or suspension in such other state.
B. Upon presentation of a certified order or other proper document of a tribunal or a corresponding disciplinary authority of another jurisdiction evidencing disbarment or suspension, the Committee by summary proceeding shall cause a like sanction to be imposed and shall notify the Clerk of such action. Notice of the Committee's action shall be sent to the attorney's mailing address of record with the Clerk. SECTION 15. CRIMINAL ACTIVITY.
A. Reporting Determinations of Guilt. All prosecuting attorneys and judges participating in or presiding over a proceeding in which an attorney pleaded guilty to, entered a nolo contendere plea, or has been found guilty of a Serious Crime in any jurisdiction shall have the duty to report such conviction or plea to the Executive Director.
B. Notification of Possible Criminal Activity. When, in connection with an investigation or a hearing, either the Office of Professional Conduct or the Committee is presented with any substantial evidence of criminal conduct by any party which would constitute a Serious Crime in any jurisdiction, the Office of Professional Conduct on its own initiative or at the direction of the Committee shall notify the appropriate prosecutorial authority.
C. Procedures for Disbarment.
(1) When a complaint against an attorney is based on a conviction in any jurisdiction of a Serious Crime, or a crime which also violates Rule 8.4 (b) of the Model Rules of Professional Conduct, the Committee shall institute disbarment proceedings.
(2) Actions for disbarment based on the conviction of a crime shall proceed in accordance with the procedures in Section 13 of these Procedures.
(3) A certified copy of the judgment of conviction shall be conclusive evidence of the attorney's guilt.
(4) The attorney may not offer evidence inconsistent with the essential elements of the crime for which he or she was convicted.
SECTION 16. INTERIM SUSPENSION PROCEDURE.
A. An action for the interim suspension of a lawyer is initiated, adjudicated and imposed in the following manner:
(1) Pursuant to Section 17(E)(3)(a), an interim suspension may be imposed immediately upon a panel's decision to institute disbarment action on any formal complaint pending before it;
(2) Pursuant to Section 17(E)(3)(b), an interim suspension may be imposed upon presentation to a panel of the Committee of satisfactory proof that the attorney has pleaded guilty to, entered a nolo contendere plea, or has been found guilty of a Serious Crime in any jurisdiction;
(3) Pursuant to Section 7(E)(3)(c), a panel of the Committee may impose an interim suspension upon presentation of a verified petition by the Executive Director containing sufficient evidence to demonstrate that the attorney poses a substantial threat of serious harm to the public or to the lawyer's clients.
B. The attorney shall be given immediate notice of interim suspension consistent with the provisions of Section 9(A). Within seven (7) days of notice of the imposition of interim suspension, the attorney may submit to the Executive Director an affidavit in rebuttal of the evidence before the panel of the Committee and a request for the dissolution or modification of the interim suspension. An original and eight (8) copies of the rebuttal and request will be submitted to the Executive Director which shall be forthwith disseminated by mail or facsimile transmission to the panel of the Committee for its reconsideration and expeditious action. Upon receipt of the panel's decision, the Executive Director shall promptly notify the attorney pursuant to Section 9(A)(2).
C. An attorney suspended pursuant to Section 17(E)(3) shall comply with the requirements of Section 21. The imposition of an interim suspension does not abate any pending disciplinary actions against the attorney.
D. An interim suspension imposed pursuant to Section 17E(3)(c) shall be dissolved upon the following conditions:
(1) The alleged misconduct did not result in a decision to initiate disbarment or in action by a panel of the Committee pursuant to Sections 9 (A)(1), 9 (B), and 10 (D)(3); and
(2) Ninety (90) days have elapsed from the denial of a request to dissolve or modify the suspension; and,
(3) The attorney complied with the requirements of Section 21 . SECTION 17. SANCTIONS.
A. Grounds for Discipline. It shall be grounds for discipline for a lawyer to:
(1) Violate or attempt to violate the Model Rules of Professional Conduct, or any other rules of this jurisdiction regarding professional conduct of lawyers; or
(2) Engage in conduct violating applicable rules of professional conduct of another jurisdiction in which the attorney is licensed or practices.
B. Serious Misconduct. Serious misconduct is conduct in violation of the Model Rules that would warrant a sanction terminating or restricting the lawyer's license to practice law. Conduct will be considered serious misconduct if any of the following considerations apply:
(1) The misconduct involves the misappropriation of funds;
(2) The misconduct results in or is likely to result in substantial prejudice to a client or other person;
(3) The misconduct involves dishonesty, deceit, fraud, or misrepresentation by the lawyer;
(4) The misconduct is part of a pattern of similar misconduct;
(5) The lawyer's prior record of public sanctions demonstrates a substantial disregard of the lawyer's professional duties and responsibilities; or
(6) The misconduct constitutes a "Serious Crime" as defined in these Procedures.
C. Lesser Misconduct. Lesser misconduct is conduct in violation of the Model Rules that would not warrant a sanction terminating or restricting the lawyer's license to practice law.
D. Types of Sanctions. Misconduct shall be grounds for one or more of the following sanctions:
(1) DISBARMENT: The termination of the lawyer's privilege to practice law and removal of the lawyer's name from the list of licensed attorneys.
(2) SUSPENSION: A limitation for a fixed period of time on the lawyer's privilege to engage in the practice of law.
(3) INTERIM SUSPENSION: A temporary suspension for an indeterminate period of time of the lawyer's privilege to engage in the practice of law pending the final adjudication of a disciplinary matter.
(4) REPRIMAND: A severe public censure issued against the lawyer.
(5) CAUTION: A public warning issued against the lawyer.
(6) WARNING: A non-public caution issued against the lawyer.
(7) PROBATION: Written conditions imposed for a fixed period of time, and with the lawyer's consent, permitting the lawyer to engage in the practice of law under the supervision of another lawyer.
E. Imposition of Sanctions. When a panel of the Committee finds that an attorney has violated any provision of the Model Rules, the panel is authorized:
(1) To cause a complaint for disbarment to be prepared and filed against the lawyer in accordance with Section 13. Disbarment proceedings are appropriate when mandated by Section 15(C) of the Procedures or upon a finding of "serious misconduct" for which a lesser sanction would be inappropriate. A finding that a lawyer has committed acts against a client which constitute theft of property under Ark. Code Ann. § 5-36-103 (or its replacement), regardless of whether the attorney has been convicted, shall result in the automatic filing of disbarment proceedings. Actions for disbarment address the overall fitness of a lawyer to hold a license to practice law. The Committee's written notice to institute a disbarment proceeding need not state specific findings as to the misconduct or Model Rule violations.
(2) To suspend the lawyer's privilege to practice law for a fixed period of time not in excess of five (5) years. Suspension is appropriate when a panel of the Committee finds that the lawyer has engaged in "serious misconduct", and, consonant with the pertinent factors enunciated in Section 19, the nature and degree of such misconduct do not warrant disbarment.
(3) To temporarily suspend the lawyer's privilege to practice law pending final adjudication and disposition of a disciplinary matter. Interim suspension shall be appropriate in the following situations:
(a) Immediately on decision to initiate disbarment;
(b) Immediately upon proof that the attorney has been found guilty of a Serious Crime in any jurisdiction, notwithstanding pending post-conviction actions; and,
(c) When a panel of the Committee is in receipt of sufficient evidence demonstrating that the lawyer has engaged or is engaging in misconduct involving:
(i) Misappropriation of funds or property;
(ii) Abandonment of the practice of law; or,
(iii) Substantial threat of serious harm to the public or to the lawyer's clients.
(4) To issue the lawyer a letter of reprimand. A reprimand is appropriate when a panel of the Committee finds that a lawyer has engaged in "lesser misconduct" that, by application of the factors enunciated in Section 19, warrants a sanction more severe than a caution. Additionally, in certain very limited circumstances, a panel of the Committee may find that a reprimand is appropriate for conduct otherwise falling within the definition of "serious misconduct" when application of the aforementioned factors substantially demonstrates clear and compelling grounds for sanctions less severe than restriction of the privilege to practice law.
(5) To issue the lawyer a letter of caution. A caution is appropriate when a panel of the Committee finds that a lawyer has engaged in "lesser misconduct" and application of the aforementioned factors does not warrant a reprimand.
(6) To issue a letter of warning. Prior to the preparation of an affidavit of complaint, or subsequent to a lawyer's affidavit of response but before a panel of the Committee has issued a formal letter of disposition in a pending matter, the Executive Director, with the written consent of the attorney and with the approval of and at the direction of the chair of a panel, is authorized to issue a non-public letter of warning against the lawyer. A warning is not appealable. Only in cases of "lesser misconduct" of a minor nature, when there is little or no injury to a client, the public, the legal system or the profession, and when there is little likelihood of repetition by the lawyer, should a warning be imposed. A warning is not a sanction available to a panel of the Committee when issuing a formal letter of disposition following public adjudication of the disciplinary matter.
(7) To impose probationary conditions. Prior to or subsequent to the filing of a formal complaint, a panel of the Committee may, with the written consent of the lawyer, place the lawyer on probation for a period not exceeding two (2) years. Probation shall be used only in cases where there is little likelihood that the lawyer will harm the public during the period of rehabilitation and the conditions of probation can be adequately supervised. Probation may be utilized concurrently with imposition of other sanctions not restricting the privilege to practice law or may follow a period of suspension. The probationary conditions shall be in writing and acknowledged, in writing, by the lawyer. A lawyer amenable to probation shall be responsible for obtaining the agreement of another lawyer, acceptable to a panel of the Committee, to supervise, monitor, and assist the lawyer as required to fulfill the conditions of probation. Assent to undertake supervision shall be acknowledged in writing to a panel of the Committee. Probation shall be terminated upon the filing of an affidavit by the lawyer showing compliance with the conditions and an affidavit by the supervising lawyer stating probation is no longer necessary and summarizing the basis for that statement. Willful or unjustified non-compliance with the conditions of probation will terminate the probation and subject the lawyer to further disciplinary action, to include imposition of a more severe sanction which could have been imposed originally but for the agreement to probation. An attorney subjected to such further disciplinary action may only offer evidence or argument relating to the willful or unjustified nature of the non-compliance. Unsuccessful rehabilitation or non-completion of the probation conditions will subject the lawyer to further disciplinary proceedings consistent with these Procedures. Except as necessary to the Committee's discharge of its responsibilities, terms and conditions of probation and reports related thereto which involve the lawyer's mental, physical or psychological condition shall be confidential.
SECTION 18. FINES, COSTS, AND RESTITUTION.
In addition to the Committee's authority set forth in Section 17 of these Procedures, a panel of the Committee in any case where a disciplinary sanction is imposed, may:
A. Assess the respondent attorney the costs of the proceedings, including the costs of investigations, witness fees, service of process, depositions, and a court reporter's services;
B. Impose a fine of not more than $25,000.00; and
C. Order restitution to persons financially injured by the conduct.
SECTION 19. FACTORS TO BE CONSIDERED IN IMPOSING SANCTIONS.
In addition to any other considerations permitted by these Procedures, a panel of the Committee, in imposing any sanctions, shall consider:
A. The nature and degree of the misconduct for which the lawyer is being sanctioned.
B. The seriousness and circumstances surrounding the misconduct.
C. The loss or damage to clients.
D. The damage to the profession.
E. The assurance that those who seek legal services in the future will be protected from the type of misconduct found.
F. The profit to the lawyer.
G. The avoidance of repetition.
H. Whether the misconduct was deliberate, intentional or negligent.
I. The deterrent effect on others.
J. The maintenance of respect for the legal profession.
K. The conduct of the lawyer during the course of the Committee action.
L. The lawyer's prior disciplinary record, to include warnings.
M. Matters offered by the lawyer in mitigation or extenuation except that a claim of disability or impairment resulting from the use of alcohol or drugs may not be considered unless the lawyer demonstrates that he or she is successfully pursuing in good faith a program of recovery.
SECTION 20. SURRENDER OF LICENSE, DISCIPLINE BY CONSENT.
(A) Surrender of License. An attorney may surrender his or her license upon the conditions agreed to by the attorney, the Executive Director, and a panel of the Committee. An attorney may offer or consent to the voluntary surrender of his or her license at any stage of the proceedings. No petition to the Supreme Court for voluntary surrender of license by an attorney shall be granted until referred to a panel of the Committee and the recommendations of the panel are received by the Supreme Court. (See Section 20 (E) (2), for procedure if Supreme Court does not accept the surrender.)
(B) Discipline by Consent.
(1) An attorney against whom a formal complaint has been served may, at any stage of the proceedings not less than ten (10) business days prior to the commencement of a public hearing before a panel of the Committee, tender a conditional acknowledgment and admission of violation of the Model Rules alleged, or to particular provisions of Model Rules so alleged, in exchange for a stated disciplinary sanction in accordance with the following:
(2) With service of a complaint, the respondent attorney will be advised that if a negotiated disposition by consent is contemplated that the respondent attorney should contact the Executive Director to undertake good faith discussion of a proposed disposition. All discipline by consent proposals must be approved in writing by the Executive Director, before they can be submitted to any other body.
(3) Upon a proposed disposition acceptable to the respondent attorney and the Executive Director, the respondent shall execute and submit a discipline by consent on a document prepared by the Executive Director setting out the necessary factual circumstances, admission of violation of the Model Rules, and the proposed sanction.
(4) The consent proposal, along with copies of the formal complaint, and the recommendations of the Executive Director, shall be presented to a panel of seven members for their votes by written ballot to accept or reject the proposed disposition. The respondent will be notified immediately in writing of the panel decision. Rejection will result in the continuation of the formal complaint process, using a different panel , by a ballot vote pursuant to Section 10 or a public hearing pursuant to Section 11, as the case may be.
(C) No appeal can be taken from a disciplinary sanction entered by consent.
(D) The panel shall file written evidence of the terms of the discipline by consent with the Clerk.
(E) Serious Misconduct. If the discipline by consent involves allegations of Serious Misconduct, the Supreme Court shall approve any agreed proposal and any sanction.
(1) The Executive Director shall present to the Supreme Court, under such procedures as the Supreme Court may direct, any discipline by consent proposal involving Serious Misconduct which the Executive Director has reached with a respondent attorney.
(2) If the Supreme Court does not approve of the proposed discipline by consent or the voluntary surrender of license, the matter shall be referred to a panel that has not rendered a decision in the case by ballot vote, which new panel shall resume, as practical, the proceedings at the stage at which they were suspended when the proposal was made and submitted to the Supreme Court. If both regular panels have been used in prior proceedings involving a case, the Committee Chair may form a third panel with seven of the reserve members (five attorneys and two non-attorneys) to hear the case.
(3) The fact that an offer and proposed sanction was agreed to by the Executive Director, the terms of the proposed discipline by consent, and the fact that the Supreme Court rejected the proposal shall not be disclosed to the new panel, except in those instances where disclosure of compromises is permitted under Rule 408 of the Arkansas Rules of Evidence.
SECTION 21. DUTIES OF SANCTIONED ATTORNEY.
In every case in which an attorney is disbarred, suspended, or surrenders his or her license, the attorney shall, within twenty (20) days of the disbarment, suspension or surrender:
A. Notify all of his or her clients and any counsel of record in pending matters in writing that he or she has been disbarred, or suspended, or surrendered his or her license;
B. In the absence of co-counsel, notify all clients in writing to make arrangements for other representation, calling attention to any urgency in seeking the substitution of another attorney;
C. Deliver to all clients being represented in pending matters any papers or property to which they are entitled, or notify them or co-counsel of a suitable time and place where the papers and other property may be obtained, calling attention to any urgency for obtaining the papers and other property;
D. Refund any part of the fees or costs paid in advance that have not been earned or expended;
E. File with the Court, agency or tribunal before which any litigation is pending a copy of the notice to the opposing counsel, or adverse parties if no opposing counsel;
F. Keep and maintain a record for each client of the steps taken to accomplish the foregoing;
G. File with the Clerk and the Committee a list of all other state, federal and administrative jurisdictions to which he or she is licensed or admitted to practice. Upon such filing, the Clerk shall notify those entitled of the disbarment, suspension or surrender.
H. The attorney shall, within thirty (30) days of disbarment, suspension or surrender of license, file an affidavit with the Committee that he or she has fully complied with the provisions of the order and completely performed the foregoing or provide a full explanation of the reasons for his or her noncompliance. Such affidavit shall also set forth the address where communications may thereafter be directed to the respondent.
I. Failure to comply with these Procedures shall subject the attorney to contempt of the Arkansas Supreme Court.
SECTION 22. EMPLOYMENT OF CERTAIN DISCIPLINED ATTORNEYS.
A. When attorneys have been placed on inactive status, suspended, disbarred, or have surrendered their licenses, they are ineligible to practice law within this jurisdiction until readmitted or reinstated.
B. After having surrendered his or her law license, or having been disbarred, or while on suspension or inactive status, an attorney shall not be employed in any capacity whatsoever with a lawyer, law firm or lawyer professional association. Employment is construed as the provision of any services or labor for the benefit of the law practice of the employing lawyer or lawyers, whether compensated or not, and irrespective of the location where the services or labor may be performed.
SECTION 23. REINSTATEMENT.
A. Following any period of suspension from the practice of law, an attorney desiring reinstatement shall file with the Executive Director a verified petition requesting reinstatement.
B. The petition for reinstatement shall be accompanied by proof of payment of an application fee of $100.00 to the Clerk.
C. The petition for reinstatement shall set out the following:
(1) That the attorney has fully and promptly complied with the requirements of Section 21.
(2) That the attorney has refrained from practicing law during the period of suspension;
(3) That the attorney's license fee is current or has been tendered to the Clerk; and
(4) That the attorney has fully complied with any requirements imposed by the Committee as conditions for reinstatement.
D. Any knowing misstatement of fact may constitute grounds for contempt, denial or revocation of reinstatement.
E. Failure to comply with the provisions of Section 21 (G) and (H) shall preclude consideration for reinstatement.
F. No attorney shall be reinstated to the practice of law in this State until the Arkansas Supreme Court has received an affirmative vote by a majority of a panel of the Committee.
SECTION 24. READMISSION TO THE BAR.
A. No attorney who has been disbarred or surrendered his or her law license in this State shall thereafter be readmitted to the Bar of Arkansas except upon application made to the State Board of Law Examiners in accordance with the Rules Governing Admission To The Bar, or any successor rules, and the approval of the Arkansas Supreme Court.
B. Provided, however, that application for readmission to the Bar of Arkansas shall not be allowed in any of the following circumstances:
(1) Less than five (5) years have elapsed since the effective date of the disbarment or surrender;
(2) The disbarment or surrender resulted from conviction of a Serious Crime in any jurisdiction other than commission of an offense for which the culpable mental state was that of negligence or recklessness; or
(3) Any of the grounds found to be the basis of a disbarment or any grounds presented in a voluntary surrender of law license are of the character and nature of conduct that reflects adversely on the individual's honesty or trustworthiness, whether or not the conviction of any criminal offense occurred. SECTION 25. INACTIVE STATUS.
A. Temporary Transfer to Inactive Status. The Committee is authorized to temporarily transfer an attorney to inactive status in the event that:
(1) The attorney has been judicially declared incompetent; or
(2) The attorney has been involuntarily committed due to incapacity or disability; or
(3) The attorney has alleged incapacity during the course of a disciplinary proceeding against him or her; or
(4) The attorney is found by the Committee to be culpable of habitual drunkenness or drug use substantially affecting the attorney's fitness to practice law; or
(5) The attorney is found by the Committee to have appeared in Court while under the influence of alcohol or drugs; or
(6) The attorney is found by the Committee to be unfit to practice law due to mental infirmity whether or not he or she has been judicially declared incompetent; or
(7) Without cause, the attorney requests to be transferred to a voluntary inactive status.
B. All trial judges have the duty to, and shall report to the Committee any attorney appearing before them who, in the trial judge's opinion, is under the influence of alcohol or drugs.
C. The Committee may vote by ballot as provided in Section 10 of these Procedures, on the issue of temporary transfer to inactive status or reinstatement due to an event described in subsections A (1), (2), (3) or (7) of this Section.
D. All other temporary transfers of an attorney to inactive status shall be made only after hearings initiated by the Executive Director or others and conducted in the same manner, where applicable, as provided in Section 11 of these Procedures. Provided further, however, the Committee may in its sound discretion hold a closed hearing and seal the record thereof.
E. For good cause shown, the Committee may order the attorney to submit to a medical, psychiatric or psychological examination by a Committee-appointed expert.
F. No attorney shall be entitled to practice in Arkansas while on inactive status in this State. Upon a transfer to inactive status the attorney, or his or her counsel as may be appropriate, shall comply with Section 21 of these Procedures.
G. The Committee may reinstate an attorney to active status upon a showing that any disability has been removed and the attorney is fit to resume the practice of law.
H. Reinstatement shall be accomplished in accordance with the provisions of Section 23.
I. The filing of a petition for reinstatement shall be deemed a waiver of the doctor-patient privilege regarding the disability.
SECTION 26. EXPUNGEMENT OF DISMISSALS.
After three years, the Committee shall expunge all records or other evidence of the existence of complaints terminated by dismissals or referrals to alternative programs pursuant to Section 5(C)(2), except that upon the Executive Director's application, notice to respondent, and a showing of good cause, the Committee may permit the Executive Director to retain such records for one additional period of time not to exceed three years.
A. Notice to Respondent. If the respondent was contacted by the Executive Director or Committee concerning the complaint, or the Executive Director or Committee otherwise knows that the respondent is aware of the existence of the complaint, the respondent shall be given prompt written notice of the expungement.
B. Effect of Expungement. After a file has been expunged, any response by the Executive Director or Committee to an inquiry requiring a reference to the matter shall state that there is no record of such matter. The respondent may answer any inquiry requiring a reference to an expunged matter by stating that no complaint was made.
SECTION 27. CONTEMPT.
The following shall be regarded as contempt of the Arkansas Supreme Court:
A. Willful disobedience of any Committee or panel order, summons or subpoena;
B. The refusal to testify on matters not privileged by law;
C. Knowingly to testify falsely before a panel of the Committee;
D. Engaging in the practice of law during a period of suspension;
E. Engaging in the practice of law after a disbarment or surrender of license; or,
F. Violation of these Procedures by any person.
MODEL RULES OF PROFESSIONAL CONDUCT
Rule 1.4. Communication.
(a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.
(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.
(c) A lawyer shall promptly notify a client in writing of the actual or constructive receipt by the attorney of a check or other payment received from an insurance company, an opposing party, or from any other source which constitutes the payment of a settlement, judgment, or other monies to which the client is entitled.
Rule 1.15. Safekeeping property.
(a) All lawyers shall hold property of clients or third persons that is in a lawyer's possession in connection with a representation separate from the lawyer's own property.
(1) Funds of a client shall be deposited and maintained in one or more identifiable trust accounts in the state where the lawyer's office is situated, or elsewhere with the consent of the client or third person. The lawyer or law firm may not deposit funds belonging to the lawyer or law firm in any account designated as the trust account, other than the amount necessary to cover bank charges, or comply with the minimum balance required for the waiver of bank charges.
(2) Other property shall be identified as such and appropriately safeguarded.
(3) Complete records of such account funds and other property shall be kept by the lawyer and shall be preserved for a period of five years after the termination of the representation.
(b) Upon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person. Except as stated in this Rule or otherwise permitted by law or by agreement with the client, a lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person, shall promptly render a full accounting regarding such property.
(c) When in the course of representation a lawyer is in possession of property in which both the lawyer and another person claim interests, the property shall be kept separate by the lawyer until there is an accounting and severance of their interest. If a dispute arises concerning their respective interests, the portion in dispute shall be kept separate by the lawyer until the dispute is resolved.
(d)(1) Each trust account referred to in (a) above shall be an interest-bearing trust account in a bank, savings bank, trust company, savings and loan association, savings association, credit union, or federally regulated investment company, and the institution shall be insured by an agency of the federal government. Each such account shall provide overdraft notification to the Executive Director of the Office of Professional Conduct for the purpose of reporting whenever any properly payable instrument is presented against a lawyer trust account containing insufficient funds, irrespective of whether or not the instrument is honored. The financial institution shall report simultaneously with its notice to the lawyer the following information:
(A) In the case of a dishonored instrument, the report shall be identical to the overdraft notice customarily forwarded to the depositor, and should include a copy of the dishonored instrument, if such a copy is normally provided to depositors;
(B) In the case of instruments that are presented against insufficient funds but which instruments are honored, the report shall identify the financial institution, the lawyer or law firm, the account number, the date of presentation for payment, and the date paid, as well as the amount of overdraft created thereby.
(2) A lawyer who receives client funds which in the judgment of the lawyer are nominal in amount, or are expected to be held for such a short period of time that it is not practical to earn and account for income on individual deposits, shall create and maintain an interest-bearing account for such funds. The account shall be maintained in compliance with the following requirements:
(A) The trust account shall be maintained in compliance with sections (a), (b) and (c) of this rule and the funds shall be subject to withdrawal upon request and without delay;
(B) No earnings from the account shall be made available to the lawyer or law firm; and,
(C) The interest accruing on this account, net of reasonable check and deposit processing charges which shall only include items deposited charge, monthly maintenance fee, per item check charge, and per deposit charge, shall be paid to the Arkansas IOLTA Foundation, Inc. All other fees and transaction costs shall be paid by the lawyer or law firm.
(3) All client funds shall be deposited in the account specified in section (d)(2) unless they are deposited in a separate interest-bearing account for a specific and individual matter for a particular client. There shall be a separate account opened for each such particular matter. Interest so earned must be held in trust as property of each client in the same manner as is provided in (a) and (b) of this rule.
(4) The interest paid on the account shall not be less than, nor the fees and charges assessed greater than, the rate paid or fees and charges assessed, to any non-lawyer customers on accounts of the same class within the same institution.
(5) The decision whether to use an account specified in section (d)(2) or an account specified in section (d)(3) is within the discretion of the lawyer. In making this determination, consideration should be given to the following:
(A) The amount of interest which the funds would earn during the period they are expected to be deposited; and,
(B) The cost of establishing and administering the account, including the cost of the lawyer's or law firm's services.
(e) All lawyers who maintain accounts provided for in this Rule, must convert their client trust account(s) to interest-bearing account(s) with the interest to be paid to the Arkansas IOLTA Foundation, Inc. no later than six months from the date of the order adopting this Rule, unless the account falls within subsection (d)(3). Every lawyer practicing or admitted to practice in this State shall, as a condition thereof, be conclusively deemed to have consented to the reporting requirements mandated by this rule. All lawyers shall certify annually that they, their law firm or professional corporation is in compliance with all sections and subsections of this Rule.
(f) A lawyer shall certify, in connection with the annual renewal of the lawyer's license, that the lawyer is complying with all provisions of this rule. Certification shall be made on the following form in a manner designated by the Clerk of the Supreme Court.
(g) A lawyer or a law firm may be exempt from the requirements of this rule if the Arkansas IOLTA Foundation's Board of Directors, on its own motion, has exempted the lawyer or law firm from participation in the Program for a period of no more than two years when service charges on the lawyer's or law firm's trust account equal or exceed any interest generated.
TRUST ACCOUNT/IOLTA CERTIFICATE
(All licensed lawyers in Arkansas must check the appropriate box and sign below)
I am a lawyer who in the course of the practice of law in Arkansas receives or disburses client funds, and, in order to comply with the Model Rules of Professional Conduct Rule 1.15, I have (my law firm has; or the public or private entity for which I work has) established one or more pooled client trust account(s), all of which are interest-bearing for the benefit of the Arkansas IOLTA Foundation.
I am engaged in the practice of law in Arkansas, but in the course of my practice I do not receive client funds.
I am not required to maintain a client trust account because I do not practice law in Arkansas, receive client funds in Arkansas, or receive funds from Arkansas clients.
Because I am a full-time judge, government lawyer or military lawyer, I do not handle client funds and do not maintain a client trust account.
____________________ Signature of Lawyer
______ ____________________ Date Supreme Court Number