Opinion
Opinion delivered May 13, 1996
The Arkansas State Board of Law Examiners has studied the issues raised where an applicant has exhibited recent behavior which brings into question the character and fitness of the applicant for initial admission to the Bar of Arkansas. The Board has concluded that the time has come to implement an alternative procedure whereby such applicants may have an opportunity to establish the requisite character and fitness in order to secure admission to the Bar of Arkansas. After considering a variety of proposals, the Board recommends the adoption of a deferral of licensure program.
In the opinion of the Board, this procedure balances the Board's obligation to protect the public interest when considering applicants for initial admission, and the applicant's obligation to establish to the Board's satisfaction a degree of good moral character and emotional stability which might warrant his or her admission to the Bar of Arkansas.
In the course of developing this deferral of licensure program, the Board scrutinized the entirety of our existing Rule XIII, presently titled "General Information." The Board suggests that the existing rule be given a new title and reorganized. The objective is to more precisely describe the procedures to be followed in connection with the admission process.
The Court finds that a deferral of licensure procedure is a worthwhile addition to the existing methods through which an applicant for initial admission may secure admission to the Bar of Arkansas. The Court also finds that it is appropriate to revise the organization and description of our existing Rule XIII.
Effective immediately, the Court hereby adopts and republishes in its entirety the attached Rule XIII, which will supersede existing Rule XIII. However, the provisions for deferral of initial admission shall not become available until the February 1997 Arkansas bar examination.
ARKANSAS RULES GOVERNING ADMISSION TO THE BAR
Rule XIII.
STANDARDS FOR ADMISSION — INITIAL REVIEW
The practice of law is a privilege. Admission to practice is based upon the grade made on the examination, moral qualifications, and mental and emotional stability.
In addition to meeting all other requirements of the Rules Governing Admission to the Bar, every applicant for admission to practice by examination and every applicant for reinstatement of license to practice must be of good moral character and mentally and emotionally stable. The determination of the eligibility of every such applicant shall be made in accordance with this rule and the burden of establishing eligibility shall be on the applicant. The standard of proof in these proceedings is preponderance of the evidence.
Every such applicant shall complete and file with the Executive Secretary of the Board an application, verified under oath, on a form approved by the Board. The Board shall require the submission of proof of good moral character and mental and emotional stability, and the Board may conduct whatever investigation it deems appropriate as to any applicant and may, at its discretion, require additional proof of these qualifications. Upon receipt of a petition seeking reinstatement of license to practice law after disbarment, or surrender of license, the Board shall cause a public notice of the pendency of the petition for reinstatement to be placed in a newspaper of general circulation in the State and at least one newspaper of local circulation. The determination of the site for publication of the local notice shall be left within the discretion of the Executive Secretary based upon the circumstances surrounding the applicant's surrender or disbarment. These notices shall be published at least 30 days prior to the hearing or decision by the Chair pursuant to this rule. The notice shall solicit information regarding the petition and shall be in such form as shall be designated by rule of the Board.
Any applications for initial admission, or reinstatement after disbarment, surrender, or suspension pursuant to Rule VII(D) shall be submitted to the Executive Secretary of the Board. The Executive Secretary shall review all such applications. Any application which raises questions of eligibility based upon the standards as set out in this rule shall be referred to the Chair of the Board for review. The Chair, applying the standards as set out in this rule, shall determine: whether the applicant is eligible for initial admission or reinstatement; whether to recommend the deferral of the initial admission decision; or, that the Chair is unable to determine eligibility for initial admission or reinstatement.
INITIAL ADMISSION OR REINSTATEMENT GRANTED
In the event the Chair determines that an initial applicant is eligible, the Chair shall notify the Executive Secretary, who shall then certify to the Clerk that the initial applicant is eligible for admission to the Bar of Arkansas. In the event the Chair determines that an applicant for reinstatement whose license has been suspended for failure to pay fees only is eligible, the Chair shall certify to the Clerk that the applicant is eligible for reinstatement to the Bar of Arkansas. In his or her discretion, the Chair may condition such reinstatement upon the applicant for reinstatement taking the examinations as set forth in Rule IX or its successor rule.
In the event the Chair concludes that an applicant for reinstatement after disbarment or surrender of license is eligible, without the necessity of an evidentiary proceeding, the Chair shall so notify the applicant. The applicant will then be required to file a motion with the Arkansas Supreme Court as set forth in the portion of this rule titled BOARD DECISION — EVIDENTIARY HEARING INITIAL ADMISSION OR REINSTATEMENT RECOMMENDED. In his or her discretion, the Chair may condition such reinstatement upon the applicant for reinstatement taking the examinations as set forth in Rule IX or its successor rule.
DEFERRAL OF INITIAL ADMISSION DECISION
In the event the Chair concludes that an initial applicant might otherwise be eligible for admission absent circumstances as set out hereafter, then the Chair may defer a determination of the eligibility decision and provide the applicant with the alternative of participation in a deferral of initial admission program as more fully described below. The circumstances which might warrant such a deferral are: an applicant currently has a condition or impairment resulting from alcohol and other chemical or substance abuse which in any way currently adversely affects the applicant's ability to practice law in a competent and professional manner.
In such cases, the applicant shall be notified of the Chair's determination by certified, return receipt, restricted delivery mail. The applicant shall have thirty (30) days from receipt of notice in which to advise the Chair that he or she is agreeable to deferral of determination of eligibility for initial admission on such terms, and for such period of time, as the deferral of admission committee may set. Failure of the applicant to timely agree to deferral shall cause the initial application proceeding to be referred to the Board and processed as set forth in the next section of this rule.
The Chair of the Board shall annually appoint a Deferral of Admission Committee composed of three (3) members. The committee members shall serve terms of one year subject to reappointment by the Chair of the Board. The Chair shall not be eligible to serve on the committee. The Chair of the Board shall designate the Chair of the committee.
In the event an applicant elects the option of deferral of determination of eligibility for initial instatement, the committee shall secure such evidence as may be necessary to establish the terms and duration of any deferral of eligibility determination. Such materials may include: documentary evidence supplied by the applicant; evidence secured by the Executive Secretary; evidence acquired by an informal conference with members of the committee; or such other evidence as the committee may consider necessary to their decision. Prior to establishing the terms and duration of any deferral of admission decision, the committee may elect to reject the applicant as a candidate for the deferral of determination of eligibility program. In such case, the applicant shall then be referred to the full Board and processed as set forth in the next section of this rule.
In the event the committee accepts the applicant as a participant in the deferral of eligibility program, then the applicant will sign an agreement with the committee which sets forth the terms and duration of the deferral understanding. All expenses relating to the deferral procedure shall be borne by the applicant, and this shall be part of the agreement. Within ninety (90) days of the applicant's acquiescence to the deferral agreement, the terms and conditions of that agreement shall be referred to the Board for review. In the event the Board, by a majority vote, concludes that the terms and conditions are insufficient, then the agreement shall be null and void and the matter shall be referred back to the committee. The committee may then, with the advice of the Board, revise the terms and conditions of the deferral agreement and the applicant will be given another opportunity to sign a revised agreement. In the event the applicant does not sign the revised agreement within thirty (30) days of notification thereof, the deferral of initial admission for that applicant shall deem to have been waived. The applicant shall then be referred to the Board for disposition in accord with the next section of this rule.
The deferral agreement may continue for a period not to exceed two (2) years.
At the conclusion of the deferral period, or anytime prior thereto, the committee shall determine whether the applicant has complied with all terms and conditions of the deferral agreement, and the committee shall so notify the Board. The Board shall then, by majority vote, make a determination as to whether the applicant has complied with the agreement. In the event of a favorable Board vote, the Executive Secretary shall then certify to the Clerk that the initial applicant is eligible for admission to the Bar of Arkansas.
In the event the Board determines that the applicant has failed to comply with the terms and requirements of the deferral agreement he or she shall be referred to the full Board for disposition in accord with the provisions of the next section of this rule.
REFERRAL TO BOARD — HEARING — PROCEDURES
In the event the Chair is unable to determine eligibility of the referred applicant, or in instances where other provisions of this rule mandate referral of the applicant to the full Board for determination of eligibility, then the applicant shall be notified of such determination. Such notice shall be sent by certified, return receipt, restricted delivery mail. The applicant shall have thirty (30) days from receipt of the notice of decision by the Chair finding inability to determine eligibility to request a hearing. Such request shall be in writing and addressed to the Chair of the Board and the hearing shall be set by the Chair of the hearing panel (to be appointed as hereinafter provided) for a day certain. Absent exigent circumstances, the hearing shall be conducted within 60 days after the Chair of the Board is notified that the applicant requests a hearing. For good cause shown, the Chair of the hearing panel may grant extensions of time.
The applicant shall be advised that he or she has a right to a hearing on the question and the right to be represented by counsel at the expense of the applicant. Upon request of the applicant, the Chair of the Board shall appoint a subcommittee from the Board comprised of not less than three members who shall proceed to a hearing as hereinafter provided. The Chair shall not be eligible to serve thereon.
This panel shall be appointed for the sole purpose of making a full and accurate record of all facts and circumstances affecting the application. The Chair of the Board shall designate a member to serve as Chair of the hearing panel.
The Executive Secretary of the Board shall act as evidence officer for the hearing and shall be charged with the responsibility of presenting any evidence that may be pertinent to the hearing, either for or against the applicant, and shall have the further responsibility of procuring evidence of parties or witnesses as hereinafter provided. However, for good cause shown, the Chair of the Board is authorized to appoint a substitute evidence officer.
The burden of establishing eligibility shall remain with the applicant. At the initiation of the hearing, the evidence officer shall provide a background of the actions that have been taken by the parties which have resulted in the necessity of a hearing, and the evidence officer shall establish that all procedural requirements have been met as required by this rule. The applicant shall then be permitted to present evidence in support of the application without regard to technical rules of evidence but subject, however, to cross-examination. At the close of the applicant's presentation, the evidence officer shall then present any evidence which is pertinent to the issues, subject to cross-examination, and the applicant shall then be permitted to introduce any evidence which may be pertinent in rebuttal, subject to cross-examination.
A complete transcript, in writing, of all proceedings and exhibits shall be prepared and a copy thereof provided to the applicant and to each member of the Board.
All costs and expenses incident to such proceedings, including the preparation and distribution of the transcript, shall be borne by the applicant. The applicant may be required to post a bond as set by the Executive secretary to insure payment of such costs and expenses. The hearing panel shall have authority to issue summons for any person or subpoenas for any witness, directed to any Sheriff or State Police Officer within the state, requiring the presence of any party or the attendance of any witness before it, to include production of pertinent documents or records. Such process shall be issued under the seal of the Supreme Court of the State of Arkansas and be signed by the Chair of the Board, or the Executive Secretary. The summonses or subpoenas shall be served in any manner provided by the Arkansas Rules of Civil Procedure for service of process. Likewise, the affected applicant shall be entitled to compel, by subpoena issued in the same manner, the attendance and testimony of witnesses, and the production of pertinent documents or records. The Circuit Court of Pulaski County shall have the power to enforce process. Disobedience of any summons or subpoena or refusal to testify shall be regarded as constructive contempt of the Supreme Court.
Failure of the applicant to timely request a hearing or tender the bond required by the Executive Secretary shall cause the application to be administratively terminated. After such administrative termination, the applicant must file a new application for initial admission or reinstatement, accompanied by the appropriate fees, and, in the Board's discretion, the applicant may be required to take the examinations set forth in Rule IX of these rules, or its successor rule.
BOARD DECISION — EVIDENTIARY HEARING
APPEAL AFTER DENIAL
At the conclusion of the hearing, a copy of the transcript of proceedings shall be submitted without comment by the hearing panel to each member of the Board. The Board, within thirty (30) days of receipt of the transcript, after considering the entire record de novo, shall by majority vote of the full Board, determine the eligibility of the applicant. Thereafter, within ninety (90) days of said vote the Board shall cause to be filed with the Executive Secretary the findings of fact and conclusions of the Board, a copy of which shall be delivered to the applicant. Any concurrence or dissent in writing shall be made a part of the record and a copy thereof furnished to the applicant.
Within thirty (30) days of receipt of written findings of the full Board denying eligibility, the applicant may appeal said findings to the Supreme Court of Arkansas for review de novo upon the record. Such appeal shall be prosecuted by filing a written notice of appeal with the Clerk of the Supreme Court of Arkansas with a copy thereof to the Chair of the Board. The notice of appeal shall specify the party taking the appeal; shall designate the order of the Board from which appeal is sought; and, shall designate the contents of the record on appeal. The notice shall also contain a statement that the transcript, or specific portions thereof, have been requested from the Executive Secretary. The Executive Secretary shall certify the record as being a true and correct copy of the record as designated by the parties and it shall be the responsibility of the appellant to transmit such record to the Supreme Court Clerk. The record on appeal shall be filed with the Supreme Court Clerk within ninety (90) days from filing of the first notice of appeal, unless the time is extended by order of the Arkansas State Board of Law Examiners. In no event shall the time be extended more than seven (7) months from the date of entry of the initial order of the Board. Such appeals shall be processed in accord with pertinent portions of the Rules of the Supreme Court and Court of Appeals of the State of Arkansas.
BOARD DECISION — EVIDENTIARY HEARING
INITIAL ADMISSION OR REINSTATEMENT RECOMMENDED
The Board may by majority vote recommend that an applicant be certified for initial admission to the Bar of Arkansas. In such cases, the Executive Secretary shall certify to the Clerk of the Supreme Court that the applicant is eligible for initial admission to the Bar of Arkansas.
In the event the Board, or the Chair of the Board, shall recommend reinstatement of an applicant subsequent to disbarment, surrender of license, or suspension of license pursuant to Rule VII (D) where a hearing panel has been appointed, the applicant shall have the burden of filing with the Court a motion pursuant to Rule 2-1 of the Rules of the Supreme Court, or its successor rule. Such a motion must be filed within thirty (30) days of receipt of notice that the Board, or the Chair of the Board, has recommended reinstatement. The applicant shall file a single copy of the original transcript of the hearing, if one has been conducted, or, the original copy of the authorization for recertification which has been issued by the Chair of the Board pursuant to this Rule. The motion filed in conjunction with the transcript or recommendation from the Chair of the Board shall briefly summarize the circumstances leading to the disbarment, surrender, or suspension. The matter shall then be referred to the Arkansas Supreme Court for disposition in accordance with regular motion practice pursuant to Supreme Court Rule 2-1 or its successor rule.
GENERAL
All other rules governing admission to the Bar are hereby amended to conform with the provisions of this rule.
The provisions for deferral of initial admission shall not become available until the February, 1997 Arkansas bar examination.
Any proceedings at which the testimony of witnesses is being taken under oath shall be open to the public.