Arkansas Bar Ass'n: Adoption of New Supreme Court Rules on Professional Conduct, Matter of, 83-187
| Decision Date | 11 March 1985 |
| Docket Number | No. 83-187,83-187 |
| Citation | 687 S.W.2d 118,285 Ark. 488 |
| Parties | In the Matter of the ARKANSAS BAR ASSOCIATION: Petition for the ADOPTION OF NEW SUPREME COURT RULES ON PROFESSIONAL CONDUCT. |
| Court | Arkansas Supreme Court |
Our original opinion of April 16, 1984 denied in its entirety the Petition of Messrs. Gill, Stroud and Cloar, acting as an ad hoc committee of the Arkansas Bar Association. A petition for rehearing was filed by Professor Howard W. Brill, urging partial adoption of the petition rather than rejecting it entirely, and a petition for reconsideration was filed by the petitioners suggesting that we had made a significant miscalculation of the committee's position with respect to the rule changes proposed by the petitioners.
By our Per Curiam order of June 4, 1984, this proceeding remained open for further discussion and pleadings by interested parties and in order to afford the committee an opportunity to respond more fully.
Pursuant to the Per Curiam order the case was scheduled for oral argument with John P. Gill appearing for the petitioners and Jerry Cavaneau, Chairman of the Committee on Professional Conduct, appearing for the committee. At oral argument it developed that while the committee was decidedly opposed to some of the proposed changes, it was favorably inclined toward others, and as a result, the two groups were requested to meet and determine areas of agreement. That has been done and we are provided with a detailed report of the committee's position, incorporating into new rules those features of the petitioners' proposals with which the committee agrees. We are asked to approve the new rules, numbering twenty-two in all.
In summary, the changes provide that an attorney, upon receiving notice of a complaint filed against him, may request a hearing before any vote is taken by the committee, or may wait to see what action the committee takes upon the complaint and any supporting documents and affidavits, and then request a hearing if he/she is dissatisfied with the action taken. In other words, the attorney's right to a subsequent hearing is preserved. [See Rule 5(2)(B)(1) ]. The committee believes this change meets a major objection of the petitioners to current procedures.
The changes include a letter of warning, not a disciplinary action and one which shall be confidential, not heretofore provided for. [See Rule 5(B)(2) ]. On this point, we note that under existing practice, the letters of reprimand issued by the committee do not state the reason for such reprimand. A brief statement of the grounds included on the information copy forwarded to us would be helpful to this court and we ask the committee to incorporate this practice in the future.
Provision is also made for a suspension by the committee, not now authorized by the rules. [See Rule 5(B)(4) ].
The proposed changes authorize the Executive Secretary, when instructed by the committee, to notify the appropriate prosecuting attorney of any evidence of a crime which comes to the attention of the committee through its investigation or hearing of complaints. [See Rule 10(A) ].
Other provisions include the maintenance of a public record by the Clerk of the Supreme Court of all licensed attorneys, those no longer licensed, and the reasons such license is no longer held, e.g., deceased, suspension, disbarment, surrender, fee delinquency, disability, retirement, et cetera. [See Rule 10(B) ].
Rule 11 contains requirements for an attorney who becomes disbarred, suspended, or surrenders his license to notify his clients in writing within twenty days regarding arrangements for other representation, the delivery of any papers or property to the client, the refunding of any unearned fees, in the case of pending litigation, filing with the court notice to opposing counsel, and other steps necessary to the orderly withdrawal from practice. Noncompliance is subject to contempt proceedings.
A copy of the proposed rules promulgated by the committee, with changes shown by underlining, is attached to this opinion as an appendix. Rule 15 is deleted at this time.
We agree with the committee's recommendations and approve their adoption. We express our special gratitude to the petitioners, Messrs. Gill, Stroud and Cloar on behalf of the Arkansas Bar Association and the Arkansas Bar Foundation, to the members of the Committee on Professional Conduct and to Professor Brill for their continuing interest in improving the procedures under which lawyers practice their profession and account for their conduct.
Rehearing granted in part.
PROPOSAL OF SUPREME COURT COMMITTEE ON
PROFESSIONAL CONDUCT
______
RULES OF THE COURT REGULATING PROFESSIONAL CONDUCT OF ATTORNEYS AT LAW
The following rules are for the regulation of professional conduct of attorneys at law and shall apply to all complaints against attorneys filed hereafter. Every attorney now licensed shall be a member of the Bar of this State, and subject to these rules, or those hereafter made. To the extent that former rules are in conflict, they are hereby overruled and superseded.
The Code of Professional Responsibility (the "Code") was adopted by the American Bar Association on August 12, 1969. This Court adopted the Code by Per Curiam Order dated February 23, 1970, and, except to the extent it has been or may be amended by this Court, this Code shall be the standard of conduct of attorneys at law. Any attorney who violates any provision of the Code, or these Rules, shall be dealt with as provided herein.
The present Supreme Court Committee on Professional Conduct shall continue. The Committee will consist of seven members which shall be appointed by the Court to assist the Court in enforcing these Rules. The present Committee members shall continue to serve their present terms. Five members of the Committee shall be lawyers, one from each Congressional District and one from the State at large, and shall be appointed for seven-year terms. The other two members shall not be lawyers, shall be selected from the State at large, and shall be appointed for four-year terms. The Committee shall elect one of its members as Chairman and another as Secretary and shall adopt rules regarding its procedure. A majority shall constitute a quorum.
The Committee shall provide for its use a seal of such design as it may deem appropriate and, in the performance of duties imposed by the Rules of this Court, and by its own regulations in aid of the Court's Rules, shall have the authority to issue summonses for any person or subpoenas for any witness, including the production of documents, books, records, or other evidence, directed to any sheriff or state police officer within the State, requiring the presence of any person or the attendance of any witness before the Committee for the purpose of testimony, or in furtherance of investigation. Such process shall be issued under the seal of the Committee and be signed by the Chairman, Secretary, or by the Executive Secretary thereof. Disobedience of any Committee order, summons or subpoena, or refusal to appear or testify shall be regarded as contempt of the Supreme Court.
EXECUTIVE SECRETARY AUTHORIZED
(1) The Committee shall have, and is hereby granted authority to employ, an Executive Secretary who shall not be a member of the Committee, and shall have no vote on any matter presented to the Committee for decision. The Executive Secretary may be paid such reasonable salary and expenses as may be deemed necessary and appropriate by the Committee, payable from funds alloted the Committee. The salary and expense shall be subject to the approval of the Court.
(2) The Executive Secretary shall serve at the will of the majority of the Committee, and shall devote his full time and effort to promptly and efficiently receive, investigate, and process complaints and perform such other duties as are required by these Rules, or by the Committee.
(1) It shall be the duty of the Executive Secretary to receive all complaints against any member of the Bar, oral and written, to interview complainants, assist them in the preparation of a detailed complaint in affidavit form pursuant to the Rules of the Committee, and to conduct such additional investigation into the facts as may be required. The Executive Secretary shall then furnish to the attorney complained against a copy of the formal complaint and advise the attorney that he may file a written response in affidavit form with any supporting evidence desired. He shall also advise that the attorney may request a hearing before any vote is taken by the Committee and that, in the absence of such request, the file will be sent to the Committee for vote by ballot as provided in these Rules, with the attorney's right to a subsequent hearing to be preserved, should he be dissatisfied with the ballot vote. At such time as the Executive Secretary has received from the attorney a written response, or has given the attorney at least ten days in which to file a written response, he shall prepare seven copies of the complaint, the response, and exhibits, if any, and such other information, memoranda, and recommendations which he may have prepared and send a copy to each member of the Committee.
(2) Where the attorney has requested a hearing, no ballots shall be sent, and the matter shall be set for hearing to be conducted under the rules for public hearings. With all other files, the Executive Secretary shall submit to each Committee member a written ballot to be filled out and returned to the Executive Secretary. Said ballot shall contain appropriate spaces for (a) the signature of the Committee member, (b) the date (c)...
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