Summary
taking client funds for personal use, charging fees for work never performed, and failing to keep clients apprised of matter that was dismissed due to his own misconduct warranted disbarment
Summary of this case from Ligon v. TappOpinion
04-1395
Opinion Delivered April 2, 2009
An Original Action for Disbarment, Order of Disbarment Issued.
Stark Ligon, as Executive Director of the Arkansas Supreme Court Committee on Professional Conduct ("the Committee"), petitions this court to impose the sanction of disbarment in this original action against attorney Reginald Shelton McCullough. Acting under section 13(D) of the Arkansas Procedures Regulating Professional Conduct, Special Judge John Cole issued findings of fact and conclusions of law finding that seventy-five violations of the Arkansas Rules of Professional Conduct were deemed admitted by McCullough and that fifty-two of the violations constituted "serious violations" under section 17(B) of the Arkansas Procedures Regulating Professional Conduct. In addition, Special fact were not clearly erroneous. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed. Ligon v. Stewart, 369 Ark. 380, 255 S.W.3d 435 (2007). Special Judge Cole's findings of fact and conclusions of law are not clearly erroneous.
Judge Cole also found that given McCullough's prior disciplinary record, along with the "sheer volume" of the complaints, the incidences of lesser misconduct collectively constituted serious misconduct.
Conduct
Special Judge John Cole made the following findings of fact and conclusions of law:
1. Smitherman complaint:
In violation of Arkansas Rules of Professional Conduct, 1.4(b), 3.4(c), and 8.4(d), McCullough in representing Mack Ray Dodson in a criminal matter failed to advise Dodson, the prosecutor, and the circuit court that he had been suspended from the practice of law, and further, McCullough failed to appear at three separate noticed hearings on March, 4, 2003, May 29, 2003, and July 22, 2003.
2. Elaine Turner Complaint:
In violation of Arkansas Rules of Professional Conduct 1.2(a), 1.3, 1.4(a), and 1.6(d), McCullough accepted representation of Kirk Turner on post trial proceedings, accepted full payment for his work and then failed to take any action in the matter. He further failed to keep Turner advised of the status of the matter, failed to respond to client inquiries and correspondence, failed to respond to client telephone messages and failed to respond to correspondence of the Arkansas Supreme Court Committee on Professional Conduct attempting to assist Turner in obtaining a response from McCullough. Further still, McCullough failed to return the unused portion of his fee.
3. Audrey Reed Complaint;
In violation of Arkansas Rules of Professional Conduct 1.1, 1.3, 3.4(c), and 8.4(d), McCullough failed to provide competent representation in failing to respond to a motion for summary judgment that resulted in his client's case being dismissed. He also failed to respond to a court order regarding the response to the motion for summary judgment.
4. Thomas Deen Complaint:
In violation of Arkansas Rules of Professional Conduct 3.4(c) and 8.4(d), McCullough failed to appear at a noticed hearing on July 6, 2004, in a criminal matter. He also failed to appear at the hearing on his own motion that the trial judge recuse. He delayed the proceedings and prejudiced the administration of justice.
5. Other Matters:
In violation of Arkansas Rule of Professional Conduct 3.4(c), McCullough failed to pay an obligation ordered by the Arkansas Supreme Court Committee on Professional Conduct on May 28, 2003 (R. 3.4(c)), to pay costs ordered by the Committee on July 15, 2003, and to pay fees and costs ordered by Committee on Professional Conduct on March 1, 2004.
6. Mark Latta Matter:
In violation of Arkansas Rules of Professional Conduct 1.1, 3.4(c), and 8.4(d), McCullough failed to file a compliant brief before this court in a criminal appeal. He also again failed to file a compliant brief after subsequently being ordered to do so.
7. Regina Hayes Complaint:
In violation of Arkansas Rules of Professional Conduct 1.4(a) and 8.4(d), McCullough failed to respond to multiple requests for information by client Hayes, failed to keep Hayes advised of the status of her case, failed to respond to client correspondence, and failed to pursue or advise Hayes that he would not pursue any action in her case.
8. Missy Engel Complaint:
In violation of Arkansas Rules of Professional Conduct 1.2(a), 1.3, 1.4(a), 8.4(c), and 8.4(d), McCullough failed to prosecute Engel's matter pursuant to court rules which resulted in dismissal of Engel's action. Further, McCullough failed to advise Engel of the reason for the dismissal and committed fraud and deceit in allowing her to believe that he had voluntarily dismissed the complaint. Further still, McCullough provided Engel a copy of a motion to
justice from lawyers who have not discharged their professional duties to clients, the public, the legal system, and the legal profession. Stewart, 369 Ark. at 384, 255 S.W.3d at 439. The practice of law is a privilege, not a right. Stilley v. Ligon, 370 Ark. 294, 304, 259 S.W.3d 395, 402 (2007). We are certainly mindful that an attorney earns his or her livelihood by practicing law, and that to lose the license to practice means not only the loss of earning a livelihood, but also the loss of one's profession and many years of education.
However, those who have taken the oath as an officer of the court owe a high level of fidelity to their clients. Norfleet v. Stewart, 180 Ark. 161, 169, 20 S.W.2d 868, 871 (1929); see also Baker v. Humphrey, 101 U.S. 494, 502 (1879). In issues of misuse or misappropriation of a client's money, the slightest divergence from rectitude breaches the oath, the trust between attorney and client, and the confidence that the public must be able to place in the profession. Id. See, e.g., Neal v. Hollingsworth, 338 Ark. 251, 992 S.W.2d 771 (1999). Under these circumstances, the public and the profession are best served by firmly applying the rules. Id.
Serious Misconduct
Special Judge Cole found that at least seventy-five violations of the Arkansas Rules of Professional Conduct were deemed admitted. He determined that fifty-two of the violations constituted "serious violations" under section 17(B) and (C) of the Arkansas Procedures Regulating Professional Conduct. Special Judge Cole noted that McCullough had previously received fourteen public sanctions and four suspensions. Section 17(B) and (C) of the Procedures Regulating Professional Conduct defines misconduct: for his own use and taken funds from clients as fees for which work was never done. This constitutes serious misconduct under section 17(B) (1), (3) and (4) as misappropriation, dishonesty or fraud, and a pattern of similar misconduct. Further, McCullough's prior record of public sanctions demonstrates a substantial disregard of the lawyer's professional duties and responsibilities. Section 17(B) and (5). Misuse or misappropriation of money from a client constitutes serious misconduct that requires strict application of the rules. See Norfleet supra.
McCullough not only failed to provide services promised, he misled clients about the status of their cases and failed to apprise them when the case was dismissed through his own misconduct. This conduct also constitutes breaches of trust that seriously undermine the confidence of the public in the legal profession. See Wilson v. Neal, 332 Ark. 148, 964 S.W.2d 199 (1998). For our legal system to function properly, a client must be able to trust his or her attorney, and it is the responsibility of this court to see that the public is justified in believing that attorneys are worthy of that trust. See In re Butcher supra. McCullough's conduct is gravely serious and warrants disbarment.
Order of disbarment issued.