Judicial Discipline & Disability Comm'n v. Simes

• Decision Date: 05 November 2009
• Docket Number: No. 09–443.,09–443.
• Citation: 2009 Ark. 543,354 S.W.3d 72
• Parties: JUDICIAL DISCIPLINE AND DISABILITY COMMISSION, Petitioner, v. L.T. SIMES, Respondent.
• Court: Arkansas Supreme Court

2009 Ark. 543

354 S.W.3d 72

JUDICIAL DISCIPLINE AND DISABILITY COMMISSION, Petitioner,

v.L.T. SIMES, Respondent.

No. 09–443.

Supreme Court of Arkansas.

Nov. 5, 2009.

David A. Stewart, Executive Director, and David J. Sachar, Deputy Executive Director, Ark. Judicial Discipline & Disability Comm'n, Little Rock, for appellant.

George E. Hairston, New York, NY, Terrence Cain, Little Rock, for appellee.

ROBERT L. BROWN, Justice.

The Judicial Discipline and Disability Commission (“the Commission”) recommends that this court permanently remove Judge L.T. Simes from the bench without the possibility of returning to that position by election or appointment. The Commission bases this recommendation on its findings that Judge Simes violated (1) Canon 4(G) of the Code of Judicial Conduct by engaging in the practice of law while he was a circuit judge; (2) Canon 4(E) by serving as a fiduciary of an estate of someone other than a family member; and (3) Canon 2 by failing to avoid impropriety or the appearance of impropriety. We hold that the findings of the Commission are not clearly erroneous, but we reject the recommendation of removal. We suspend Judge Simes from the bench, without pay, until the end of his current term, which is December 31, 2010. We further deny Judge Simes's motion to strike extraneous material from the record.

The facts are these. On January 14, 1976, L.T. Simes filed a petition as the attorney of Lazora Corbin to have an administrator appointed for the estate of her father, Quincy Chandler. He next filed an acceptance of appointment as administrator, and on March 19, 1976, by order of the probate court, he was permitted to serve as the administrator of the Chandler Estate without bond. One of the assets of the estate was a tract of farm land, which was leased to a third party. On July 18, 1986, an order was entered by the probate court, directing that all farm rental income of the Chandler Estate be paid to attorney Simes, as administrator of the estate. Judge Simes now contends that he received the first annual rental payment in 1989.¹ Fourteen years after attorney Simes became administrator of and attorney for the estate, in July 1990, he received a letter from Lazora Corbin, which said, “You are here by [sic] discharged as my attorney on July 9, 1990.” The letter also asked him to “deliver” the legal file to attorney Charles Allen. According to Judge Simes, he then sent a copy of the file to Mr. Allen.

After July 9, 1990, Simes, both as attorney and after he became judge, continued to receive rental payments in connection with the Chandler Estate and never moved the court to be removed as administrator of or the attorney for the estate.² In January 1997, after having been duly elected circuit judge on November 5, 1996, Judge Simes assumed the bench as a full-time judge for the First Judicial Circuit. After becoming a judge, he still did not take action to remove himself as the administrator of the Chandler Estate or to remove himself as attorney of record for either Lazora Corbin or the estate. He continued to receive annual rent checks, but he filed no accounting for the checks received as part of the probate administration.³

On February 23, 1998, Judge Simes sent a letter to Linda White, the Phillips County Clerk, which stated:

Enclosed herein you will find check # 5603 in the amount of $1440.00 dated November 7, 1997. Do you have an account in your office where this money can be kept and distributed according to a Chancery Court order? As you are aware, I no longer practice law. My last notion was that Charles Allen represented the estate. Please check your files and see who the attorney is and a copy of this pleading can be sent to them as well. If you have any further questions, please feel free to call. Ms. White responded to Judge Simes on March 25, 1998, answering, in part:

We did not find an account for this money to be kept and distributed by a Chancery Court Order. Also, I spoke with Charles Allen to see if he had handled this case and he told me he had not. The only other attorney I could find who signed off on any paperwork was Eddie Schieffler who was a court-appointed attorney for John Chandler.

Please find enclosed the letter and check you mailed to our office. If there is anything we need to do that I am not aware of please let me know.

The record does not reflect that Judge Simes took any further action to resolve the matter of who represented the estate upon receiving Ms. White's correspondence.

In January 2003, attorney Jesse Daggett, who had been retained by the heirs of the Chandler Estate, contacted Judge Simes and requested an accounting of the annual farm rental payments. On May 11, 2004, the heirs of the Chandler Estate petitioned Judge Kathleen Bell for an accounting and to have Arnold Chandler appointed as administrator of the estate. Thereafter, Judge Bell ordered Judge Simes to file a final accounting for the estate by October 29, 2004, for the period from March 18, 1976 to date. Judge Simes did not file the accounting as ordered. Judge Bell also discharged Judge Simes as administrator and appointed Arnold Chandler as Administrator in Succession of the estate.

On November 18, 2004, Judge Bell recused, and Special Judge W.H. “Dub” Arnold was appointed to decide the case. Judge Arnold held a hearing on September 29, 2005 with respect to the motion for accounting filed by Daggett on behalf of the estate. Judge Simes and Mr. Daggett each made a statement at the hearing, and Arnold Chandler testified. On October 10, 2005, Judge Simes filed a Petition for Attorney's Fees and Executor's Fees before Judge Arnold, seeking payment of $13,940.77, to cover his claimed service to the estate as both administrator and lawyer from January 1976 through March 1998. The fees claimed by Judge Simes for work done in 1998 as administrator and attorney, after he assumed the bench, included the letter to Linda White, Probate Clerk, on February 23, 1998; a letter from Connie Smith, Deputy Probate Clerk, on March 25, 1998; and a conversation with attorney Charles Allen on March 25, 1998.

Following the hearing, Judge Arnold entered an order dated October 25, 2005, and concluded that Judge Simes had breached his fiduciary duty to the estate and that he owed the estate a total of $24,138.03, inclusive of interest, for the rent payments he had collected and failed to disburse to the heirs. Judge Simes paid the judgment. Judge Arnold's order also denied the petition for attorney's and administrator's fees and found that Judge Simes had violated various Rules of Professional Conduct.⁴ Judge Arnold also noted that Judge Simes had failed to comply with Judge Bell's 2004 order that he file a final accounting for the estate. Judge Simes did not appeal Judge Arnold's order.

On October 27, 2005, Judge Arnold referred Judge Simes to the Arkansas Supreme Court Committee on Professional Conduct (CPC), by letter and attached a copy of his order to the letter.⁵ On September 12, 2006, a Consent Findings and Order was entered by the CPC and agreed to by Judge Simes, wherein Judge Simes was cautioned by the CPC for violating various Rules of Professional Conduct and was ordered to pay restitution to the Chandler Estate in the amount of $2,122.99 for attorney's fees incurred. That consent order provided in part that: “Judge Simes' conduct, as an attorney, violated Model Rule 1.15(b), in that he failed to promptly deliver to the Estate of Quincy Chandler the funds represented by three rental checks for the years 1997, 2000 and 2002.”

On March 16, 2006, Ashley Higgins, an attorney in Helena, sent a letter to the Commission regarding Judge Simes's involvement in the Chandler Estate. Mr. Higgins included the October 25, 2005 order entered by Judge Arnold. The Commission assigned case number 06–174 to the complaint, and, on March 27, 2006, it sent a letter to Mr. Higgins, acknowledging receipt of his complaint, and to Judge Simes, informing him of the complaint and inviting his response within 30 days. After various delays and continuances, a three-person panel of the Commission held a disciplinary hearing on the Higgins complaint on January 16, 2009, and February 18, 2009. Following the hearing, the panel issued a report and recommendations on March 13, 2009, in which it recommended that Judge Simes be permanently removed from the bench. On April 28, 2009, the full Commission entered a unanimous final decision in which it adopted the findings and recommendation of the panel. That recommendation of the full Commission is now before this court for final decision.

In Judicial Discipline and Disability Commission v. Thompson, this court stated the standard of review for judicial-discipline cases. 341 Ark. 253, 262, 16 S.W.3d 212, 215 (2000). This court conducts a de novo review, and, after a review of the entire record, we may accept, reject, or modify, in whole or in part, the Commission's findings and recommendations. Id. This court, however, will not reverse the Commission's findings unless they are clearly erroneous. Id.

I. Practice of Law

We turn first to the question of whether Judge Simes practiced law while he was on the bench. The Commission concluded that Judge Simes's conduct violated Canon 4(G), which restricts a presiding judge from practicing law or appearing as counsel in any court in this state. The Commission made the following specific findings in support of its conclusion:

• Rental payments from the Chandler Estate continued to be made to Judge Simes long after he assumed his role as Circuit Judge.

• Subsequent to assuming his position as Circuit Judge, Judge Simes claimed monies owed to him for attorney's fees and for executor's fees from the Chandler Estate.

• The letter Judge Simes received from Lazora Corbin did not serve to release him from his obligations as the attorney for and the administrator of the Chandler Estate. Judge Simes either knew, or should have known,...