Ligon v. Stewart

• Decision Date: 12 April 2007
• Docket Number: No. 06-260.,06-260.
• Citation: 369 Ark. 380,255 S.W.3d 435
• Parties: Stark LIGON, Executive Director, Supreme Court Committee on Professional Conduct, Appellant, v. Jerry Wayne STEWART, Arkansas Bar # 75125, Appellee.
• Court: Arkansas Supreme Court

255 S.W.3d 435

369 Ark. 380

Stark LIGON, Executive Director, Supreme Court Committee on Professional Conduct, Appellant, v. Jerry Wayne STEWART, Arkansas Bar # 75125, Appellee.

No. 06-260.

Supreme Court of Arkansas.

April 12, 2007.

Stuart Vess, North Little Rock, AR, for appellant.

Stark Ligon, Executive Director, Supreme Court Committee on Professional Conduct, Little Rock, AR, for appellee.

ANNABELLE CLINTON IMBER, Justice.

This is an original action under the Arkansas Supreme Court Procedures Regulating Professional Conduct of Attorneys at Law ("Procedures") in which Petitioner Stark Ligon, as Executive Director of the Arkansas Supreme Court Committee on Professional Conduct ("Committee"), seeks the disbarment of Respondent Jerry Wayne Stewart ("Stewart"), an attorney licensed to practice law in the State of Arkansas. Our jurisdiction is proper pursuant to Procedures § 13(A) (2006).

A chronology of the relevant facts is as follows:

• January 10, 2006—Stewart entered a plea of guilty in circuit court to the felony criminal offense of DWI-Fourth, and the court sentenced him to two years in prison and an additional two years suspended imposition of sentence.

• January 13, 2006—Judgment and commitment order filed of record in the circuit court.

• February 24, 2006—Order entered by Panel A of the Committee after presentation of a file-marked copy of the felony-conviction judgment, which order reflects the Committee's directive that a disbarment proceeding be instituted against Stewart in accordance with Procedures § 15(C)(1) (2006) and the Committee's interim suspension of Stewart's privilege to practice law.

• March 13, 2006—Petition for disbarment filed by the Committee in this court, asserting that (1) Stewart's conviction constitutes a "serious crime" as defined in Procedures § 2(J) (2006); (2) his conduct violated Rule 8.4(b) of the Arkansas Rules of Professional Conduct, which provides that it is professional misconduct for a lawyer to commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects; and (3) his conduct constitutes "serious misconduct" as defined in Procedures § 17(B) (2006).

• April 27, 2006—This court appointed the Honorable David Bogard as special judge to preside over the disbarment proceedings. See Ligon v. Stewart, 366 Ark. 229, 234 S.W.3d 315 (2006).

• September 21, 2006—The prosecutor filed a motion to revoke suspended imposition of sentence in the criminal case based on allegations that Stewart had engaged in the unauthorized practice of law in violation of Ark.Code Ann. § 16-22-501(a)(2) (Repl.1999).

• October 5, 2006—Bench warrant issued ordering Stewart to appear before the circuit court on October 13, 2006, and answer the State's revocation motion.

• October 19, 2006—Disbarment hearing before the special judge. Stewart's counsel, Stuart Vess ("Vess"), appeared and informed the special judge that his client was absent due to illness. Counsel's request for a continuance was denied. The Committee presented the testimony of witnesses and exhibits in support of its allegations in the petition. No witnesses were called by Stewart's counsel. Although the special judge granted Stewart's request to submit an affidavit by October 25, 2006, on condition that he appear for cross-examination on October 27, 2006, no affidavit was submitted.

• October 27, 2006—Letter opinion issued setting forth the special judge's findings of fact and conclusions of law: (1) Stewart's DWI conviction constitutes a "serious crime" and "serious misconduct" as defined in the Procedures; (2) Stewart violated Rule 8.4(b) of the Arkansas Rules of Professional Conduct; and (3) Stewart's actions in practicing law without a valid license constitute "serious misconduct" as defined in the Procedures. The special judge recommended that Stewart be disbarred from the practice of law in Arkansas.

• December 13, 2006—Stewart arrested on the October 5 bench warrant directing him to appear before the circuit court and answer the State's revocation motion. Within two hours of his arrest, Stewart's blood-alcohol level registered .32%, or four times the amount necessary to be charged with DWI.

• January 10, 2007—The circuit court granted the State's motion to revoke suspended imposition of sentence and sentenced Stewart to two additional years in prison.

The special judge's findings of fact and conclusions of law, as well as his recommended sanction, are now before this court. For the reasons explained below, we conclude that the findings of fact and conclusions of law are not clearly erroneous, and we accept Judge Bogard's recommended sanction of disbarment.

Section 1(C) of the Procedures provides that disciplinary proceedings are neither civil nor criminal in nature but are sui generis, meaning of their own kind. See Procedures § 1(C) (2006); Ligon v. Dunklin, 368 Ark. 443, 247 S.W.3d 498 (2007); Ligon v. Newman, 365 Ark. 510, 231 S.W.3d 662 (2006). The special judge's findings of fact are accepted by this court unless they are clearly erroneous. Ligon v. Price, 360 Ark. 98, 200 S.W.3d 417 (2004). This court imposes the appropriate sanction as warranted by the evidence. Id. There is no appeal from this court except as may be available under federal law. Id.

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. Dunklin, supra. We must view the evidence in a light most favorable to the decision of the special judge, resolving all inferences in favor of his or her findings of fact. Id. Disputed facts and determinations of the credibility of witnesses are within the province of the fact-finder. Id. The purpose of disciplinary actions is to protect the public and the administration of justice from lawyers who have not discharged their professional duties to clients, the public, the legal system, and the legal profession. Id. Applying the clearly erroneous standard of review mandated by Procedures § 13(D) (2006), we now consider Stewart's assertion that there is insufficient evidence to support the Committee's petition for disbarment.

In support of his challenge to the sufficiency of the evidence, Stewart contends that he was not convicted of a "serious crime" under Procedures § 2(J) (2006). He also disputes the finding that his actions after the interim suspension of his law license constitute the practice of law. As noted previously, the special judge found that Stewart's DWI conviction constitutes a "serious crime" and "serious misconduct" as defined in the Procedures, that he violated Rule 8.4(b) of the Arkansas Rules of Professional Conduct, and that his actions in practicing law without a valid license constitute "serious misconduct" as defined in the Procedures.

Section 2(J) of the Procedures defines "SERIOUS CRIME" as:

[A]ny 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."

Procedures of the Arkansas Supreme Court Regulating Professional Conduct of Attorneys at Law § 2(J) (2006). With regard to this section, Stewart specifically argues that, in the absence of a comma following the words "any felony," the phrase is modified and limited to felonies that reflect adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects. Thus, according to Stewart, a felony DWI conviction cannot be considered a "serious crime" under the Procedures. We find no merit in this argument.

It is well settled that we construe court rules using the same criteria, including canons of construction, that are used to interpret statutes. See Cortinez v. Arkansas Supreme Court Comm. On Prof'l Conduct, 353 Ark. 104, 111 S.W.3d 369; Gannett River States Pub. Co. v. Ark. Judicial Discipline and Disability Comm'n, 304 Ark. 244, 801 S.W.2d 292 (1990). We review issues of statutory construction under a de novo standard. Cooper Clinic, P.A. v. Barnes, 366 Ark. 533, 237 S.W.3d 87 (2006). Because it is for this court to decide the meaning of a statute, we are not bound by the circuit court's determination of the statute's meaning. Id. The first rule in determining the meaning of a statute is to construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. Id.

The language in Procedures § 2(J) clearly defines a "serious crime" as "any felony or any lesser crime that reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects...." Procedures § 2(J) (emphasis added). In other words, any felony constitutes a "serious crime"; whereas, any lesser crime will constitute a "serious crime" only if it reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer. The interpretation suggested by Stewart would render the words "any felony or any lesser" mere surplusage, leaving the phrase to effectively read "any crime that reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects...."

In the instant case, applying a de novo standard of review and construing Procedures § 2(J) just as it reads, the special judge did not err in concluding that the felony DWI conviction constitutes a "serious crime" as defined in the Procedures. It is undisputed that Stewart entered a plea of guilty to the felony offense of DWI. According to the Procedures, a certified copy of the judgment of conviction shall be conclusive evidence of the...