Travis v. COMMITTEE ON PROF'L CONDUCT

• Decision Date: 09 April 2009
• Docket Number: No. 08-1341.,08-1341.
• Citation: 306 SW 3d 3,2009 Ark. 188
• Parties: Thomas Lewis TRAVIS, Appellant, v. SUPREME COURT COMMITTEE ON PROFESSIONAL CONDUCT, Appellee.
• Court: Arkansas Supreme Court

306 S.W.3d 3

2009 Ark. 188

Thomas Lewis TRAVIS, Appellant, v. SUPREME COURT COMMITTEE ON PROFESSIONAL CONDUCT, Appellee.

No. 08-1341.

Supreme Court of Arkansas.

April 9, 2009.

Thomas Lewis Travis, pro se.

Stark Ligon and Nancie M. Givens, Office of Professional Conduct, for appellee.

ROBERT L. BROWN, Justice.

Appellant Thomas Lewis Travis appeals from a decision of the Arkansas Supreme Court Committee on Professional Conduct ("Committee") finding him in violation of Rule 1.16(d) of the Arkansas Rules of Professional Conduct and reprimanding him and ordering him to pay costs in the amount of $350 and a fine in the amount of $1000.

The record reflects that Travis represented J. Matilde Martinez in various legal matters beginning in 2001.¹ In 2005, Travis's representation of Martinez ceased. Sometime later, Martinez retained the legal services of Misty Borkowski. On April 4, 2007, Borkowski sent Travis a letter, stating that she had been retained by Martinez and his business, Twin Brother I.N.C. The letter asked Travis for "any and all of Martinez's files, personal and/or business, specifically, but not limited to" six immigration petitions Martinez had filed on behalf of three family members and three workers. Attached to the letter was a signed authorization from Martinez for the release of his personal and business files. Travis did not respond. Travis also did not respond to Borkowski's telephone calls on Martinez's behalf.

On May 18, 2007, Borkowski hand delivered a copy of her April 4, 2007 letter to Travis's office and visited with him. During the visit, Travis informed Borkowski that it was his law firm's policy not to provide his clients with their files and that she should get the documents from Martinez because Travis had sent him the various orders and petitions at the time of their filing. Travis did agree to provide Borkowski with approval notices and final disposition notices from the various immigration matters. On June 19, 2007, having not received any of Martinez's documents, Borkowski sent another letter to Travis. In this letter, Borkowski memorialized her May 18, 2007 conversation with Travis and demanded that Travis release Martinez's file immediately. After Travis failed to comply with her demand, Borkowski and Martinez contacted the Office of Professional Conduct ("the Office").

Stark Ligon, the Executive Director of the Office, contacted Travis about Borkowski's problem in obtaining the Martinez file. In a letter dated September 24, 2007, Travis responded that it was his "longstanding practice and policy" that the files in his law office were his property. He claimed that the contents of Martinez's file were his work product to which Martinez was not entitled. Travis further wrote that "copies of applications, notices received from USCIS, orders from Immigration Court, etc. were provided to Martinez at the time prepared and signed ... or whenever received from the agency or court." The following month, Travis provided a few documents from his file to Borkowski, including two approval notices concerning Martinez's wife and mother and "a couple of personal papers."

On January 28, 2008, Travis was served with a formal disciplinary complaint filed by the Committee and supported by affidavits from Martinez and Borkowski. The complaint alleged that he had violated Arkansas Rule of Professional Conduct 1.16(d) by failing to surrender papers and property to which Martinez was entitled after their professional relationship was terminated. Travis responded and maintained that Martinez already possessed everything to which he was entitled and that anything else in the file was his attorney work product and property; that the file did not contain any of Martinez's original documents or property; and that "if new counsel does not know what to put on any new applications, and she is afraid of conflicting information, I can advise that I always put the truth, as it was told to me by Mr. Martinez."

Travis also filed a personal affidavit with his answer in which he raised the issue of whether he had an obligation to protect the personal information of the individuals on whose behalf Martinez had filed the six immigration petitions. In addition, he asserted that Borkowski could obtain any information she needed from the U.S. Citizenship and Immigration Services, the Little Rock Immigration and Customs Enforcement Office, or through a freedom of information request. Borkowski filed a response as the complaining witness in which she claimed that "the only real issue is for Martinez to obtain a copy of files regarding his business and personal immigration matters," and that "focus should be on Travis's refusal to provide the files and not the idiosyncrasies of immigration law."

In April 2008, Panel B of the Committee considered the formal complaint, Travis's response, and Borkowski's rebuttal and concluded by ballot vote that Travis's conduct violated Rule 1.16(d). Travis then exercised his right to a de novo public hearing before a different panel of the Committee under section 10.D.3 of the Procedures of the Arkansas Supreme Court Regulating Professional Conduct of Attorneys at Law. On July 18, 2008, the requested hearing was held before Panel A of the Committee. At the hearing, Panel A heard the testimony of Travis, Borkowski, and Martinez. On July 29, 2008, the panel filed its findings and order with the Clerk of the Arkansas Supreme Court, in which the panel found Travis in violation of Rule 1.16(d) of the Arkansas Rules of Professional Conduct. The panel then reprimanded him and ordered him to pay costs in the amount of $350 and a fine in the amount of $1000.

Travis now contends on appeal that the Committee erred in finding that his conduct violated Rule 1.16(d) of the Arkansas Rules of Professional Conduct. Travis argues, initially, that the immigration matters that he handled for Martinez involved "dual representation" and that he had a duty of loyalty and a duty of confidentiality to the six individuals on whose behalf Martinez petitioned. Next, Travis claims that Martinez had already received everything to which he was entitled because he was provided with copies of all of the documents prepared on his behalf, including the end products, during the course of his representation. Plus, he maintains that all of Martinez's original documents were copied and returned to him. Travis points out that he does not maintain a file on Martinez's behalf and the only documents in the file that he has not previously turned over consist of copies, internal notes, and research that he considers his work product. As a final matter, he emphasizes that he has taken the necessary steps to protect Martinez's interests and that it has not been alleged that he was negligent in his representation or that he left any matter unfinished.

The Office responds that Rule 1.16(d) does not require a problem with an attorney's work or that a matter be incomplete as a prerequisite to the lawyer's duty to return a client's file. The Office asserts that the Committee's finding was not clearly erroneous because it was undisputed that Travis's representation of Martinez had ceased, and when asked to provide the contents of Martinez's file, Travis refused. Responding to Travis's argument that because he provided the documents once during the course of his representation he no longer had a duty to provide duplicates, the Office argues that the attorney, and not the client, has the duty to maintain files and documents and that this requirement goes hand in hand with the privilege of practicing law. The Office adds that Travis's argument ignores the fact that Martinez paid for the documents in the file. As a final point, the Office notes that the problem with Travis's "dual representation" argument is that he openly admits that he provided the immigration documents to Martinez on behalf of family members and workers at the time they were filed. In addition, he refused to provide any legal documents to Martinez upon request on matters unrelated to the immigration petitions.

This court reviews a decision of the Committee de novo on the record and pronounces judgment as if its opinion were that of the Committee. Procedures Regulating Prof'l Conduct of Attorneys § 12.B; Cortinez v. Supreme Court Comm. on Prof'l Conduct, 332 Ark. 456, 966 S.W.2d 251 (1998). This court will not reverse the Committee's action unless its findings were clearly erroneous. Arens v. Comm. on Prof'l Conduct, 307 Ark. 308, 820 S.W.2d 263 (1991). The Committee is in a superior position to determine the credibility of the witnesses and weigh the preponderance of the evidence. Colvin v. Comm. on Prof'l Conduct, 309 Ark. 592, 832 S.W.2d 246 (1992).

In the instant case, Travis does not dispute the fact that he failed to provide Martinez with the documents from his file upon request. Instead, he offers several reasons for why he believes he was not required to do so. He also urges this court to define what a client is entitled to under Rule 1.16(d) and, specifically, what is encompassed by the term "papers and property."

We turn then to the language of Rule 1.16(d):

Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel,

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