Muhammed v. Arkansas Supreme Court Committee On Professional Conduct, 86-145

Decision Date12 January 1987
Docket NumberNo. 86-145,86-145
Citation722 S.W.2d 280,291 Ark. 29
PartiesWali MUHAMMED, Appellant, v. ARKANSAS SUPREME COURT COMMITTEE ON PROFESSIONAL CONDUCT, Appellee.
CourtArkansas Supreme Court

Wali Muhammed, Little Rock, pro se.

Steve Clark, Atty. Gen. by David S. Mitchell, Asst. Atty. Gen., Little Rock, for appellee.

NEWBERN, Justice.

This appeal is from a determination by the Arkansas Supreme Court Committee on Professional Conduct that the appellant's attorney's license be suspended for one year. The appellant contends that the evidence before the committee was insufficient to support the suspension, that the committee's action was contrary to the law and the facts, and that the committee lacked authority to suspend his license.

The committee found the appellant had violated DR 1-102(A)4 which was in effect at the time of the appellant's alleged misconduct and which provided that a lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misconduct. See T. Robinson, The Arkansas Code of Professional Responsibility, 33 Ark.L.Rev. 605, 616 (1980). Rule 8.4(c) of the Model Rules of Professional Conduct which became effective January 1, 1986, (see our per curiam order of December 16, 1985) contains virtually the same provision. We find the evidence was sufficient and the committee had the authority to effect the suspension. After summarizing the evidence before the committee, we will discuss first the committee's authority and then discuss together the appellant's contentions that the committee's decision was not supported by sufficient evidence and was contrary to the law and the facts.

The complaint to the committee against the appellant was filed by Robert L. Pierce, an attorney. Pierce had represented Jimmy Wilkerson in pursuing a workers' compensation claim against Wilkerson's employer. Pierce's representation of Wilkerson terminated and was taken over by the appellant and the appellant's law partner Mike Smith. Pierce and the appellant both testified they had reached an agreement to split equally the attorney fee to be received from the insurance company which would pay the workers' compensation claim. Pierce testified he learned from Mr. Baldridge, an insurance company official, that the Wilkerson case had been settled. Later he spoke with Baldridge and learned the insurance company had issued the attorney fee check. He testified he then tried numerous times to telephone the appellant who would not return his calls, and he thereafter filed his complaint with the committee in the form of an affidavit.

Pierce's affidavit, which he reaffirmed in his testimony, stated that when he learned from Baldridge that the insurance company check had been sent to Smith and Muhammed, he asked Baldridge to send him a copy of the front and back of the check. The check, a copy of which was before the committee, shows endorsement by "Pierce and Stanley." Pierce's affidavit stated that neither he nor Mr. Stanley nor Mr. Robinson (apparently another partner of Pierce) endorsed the check. The complaint was dated December 6, 1985.

Pierce further testified that the appellant came to Pierce's office in December after Pierce had made the complaint which formed the basis of this action, and gave him a check for $400. Pierce testified he asked the appellant why the check was only for $400 and not $450 or half the $900 fee and that the appellant had no explanation but said he would pay the rest. He testified he also asked the appellant why he had endorsed his (Pierce's) firm's name on the check. He said the appellant "replied, gave his answer," and the issue was dropped from that conversation.

Presumably the answer given Pierce by the appellant was the same as the appellant's testimony before the committee. The appellant testified that he had endorsed the check by signing it "Pierce and Stanley" after having been specifically authorized by Pierce to do so. He further testified that he mailed his firm's check for $400 to Pierce in September, rather than delivering it December, 1985, and that the reason it was for $50 less than half the $900 fee was that he had subtracted his expenses of $100 before dividing the fee. The appellant produced for the committee's inspection his firm's check to Pierce and Stanley in the amount of $400, dated September 16, 1985. The deposit stamp on the back of the check showed it was deposited on December 16, 1985.

Testimony was also given by the appellant's law partner, Mr. Mike Smith. Smith testified that, at the appellant's direction, he had listened, by way of a speaker phone, to the telephone conversation between the appellant and Pierce in which they agreed to divide the fee equally and that the appellant in that conversation had discussed subtracting his expenses from the $900 fee with the remainder to be divided. Smith further testified that the $400 check from Smith and Muhammed to Pierce and Stanley was mailed to Pierce on September 17, 1985. Upon examination by a committee member, Smith testified he had not seen the check mailed but he had seen the appellant draw it in September and assumed it was mailed shortly thereafter in the normal course of their office's operations.

Smith testified that when the check from the insurance company was endorsed, the appellant wrote "Pierce and Stanley" and Smith wrote "Smith and Muhammed" and that that accounted for the apparent difference in the handwriting of the two endorsements which were written "at the same time."

1. The committee's authority

The appellant's brief does not argue or cite any statute or case supporting the position that the committee lacked the authority to suspend his license. In an earlier petition for a writ of mandamus, however, the appellant argued that the committee adopted as its own the new court rules on attorney discipline, on or about June 15, 1985, and that the committee had failed to follow the requirement of Ark.Stat.Ann. § 5-703(d) (Supp.1985) that the rules be filed with the Arkansas Secretary of State. We denied the appellant's mandamus petition on September 22, 1986. The appellant argued this point orally in this appeal, and the attorney general, acting as counsel for the committee, responded to the argument by pointing out that § 5-703(d) is part of the Arkansas Administrative Procedure Act which by its terms does not apply to the courts. Ark.Stat.Ann. § 5-701(a) (Supp.1985). To clarify the matter, we will address it.

The appellant's argument on this point fails for several reasons. First, he has presented us with nothing, other than his statement, to show that our committee adopted the rules. This court adopted them as our own rules on March 11, 1985, when we partially granted rehearing of our earlier decision not to adopt new rules. In the Matter of the Arkansas Bar Association: Petition for the Adoption of New Supreme Court Rules on Professional Conduct, 282 Ark. 605, 666 S.W.2d LIX (1984), reh. granted in part, 285 Ark. 604, 687 S.W.2d 118 (1985).

We adopted those rules to govern the procedure of our committee in considering matters of professional discipline of attorneys. Whether our committee adopted them independently is irrelevant. Clearly this court is not subject to the Arkansas Administrative Procedure Act.

Rule 7 of the Rules of the Court Regulating Professional Conduct of Attorneys of Law, the rules we adopted March 11, 1985, specifically provides that if the committee finds an attorney has been guilty of professional misconduct it may suspend the attorney. The committee thus had the authority to suspend the appellant's license.

2. Sufficiency of the evidence

The conflict between Pierce's testimony and that of the appellant and Smith is direct and substantial. Based on Pierce's testimony the committee could have concluded that the appellant endorsed the insurance company check, by writing "Pierce and Stanley" on it, with no authority whatever and that the appellant made no effort to pay Pierce until after Pierce filed his complaint with the committee. Had the committee believed the appellant's testimony and that of Smith, it could have concluded the appellant had Smith's permission to endorse his firm's name on the insurance company check and that the check drawn on the firm of Smith and Muhammed was mailed to Pierce in September. It was a swearing match.

The appellant cites three cases in support of his argument that the evidence against him was insufficient to support the committee's determination that he violated DR 1-102(A)4. The first is Fort Smith Gas Co. v. Cloud, 75 F.2d 413 (8th Cir.1935), in which a plaintiff's personal injury judgment was reversed because the trial court should have granted a directed verdict. In reviewing the evidence, the court of appeals concluded that the evidence showed the illness the appellee contended was caused by acts of the appellant was the result of voluntary and unnecessary acts by the appellee. The court noted that the appellee's own evidence also showed he did not contract the complained of illness until after he had, sometime after the alleged misconduct of the appellant, engaged in other acts which...

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