Wilson v Neal, 99-103

• Decision Date: 11 May 2000
• Docket Number: 99-103
• Citation: 16 S.W.3d 228
• Parties: Jimmie L. WILSON v. James A. NEAL 99-103 ___ S.W.3d ___ Opinion delivered
• Court: Arkansas Supreme Court

Jimmie L. WILSON v James A. NEAL

99-103 ___ S.W.3d ___

Opinion delivered May 11, 2000

Supreme Court of Arkansas

Appeal from Phillips Circuit Court; John B. Plegge, Judge; affirmed.

1. Appeal & error -- decision affirmed where majority of justices unable to agree on single ground for reversal -- no precedential value. -- Where a majority of the justices of the supreme court were unable to agree on a single ground for reversal, the decision of the circuit judge was affirmed, but the opinions of the supreme court had no precedential value.

2. Judges -- presumption of impartiality. -- There is a presumption of impartiality on the part of judges.

3. Judges -- recusal -- trial court's discretion. -- The decision to recuse is within the trial court's discretion and will not be reversed absent abuse.

4. Judges -- bias -- question confined to conscience of judge. -- The question of bias is usually confined to the conscience of the judge.

5. Judges -- abuse of discretion -- test for prejudice or bias. -- An abuse of discretion on the part of a judge can be shown by proving bias or prejudice; to decide whether there was an abuse of discretion, the supreme court reviews the record to see if any prejudice or bias was exhibited; there is a duty not to recuse where no prejudice exists.

6. Judges -- disqualification -- party seeking must prove bias or prejudice. --The party seeking disqualification bears the burden of proving bias or prejudice.

7. Judges -- recusal -- no prejudice shown -- circuit judge did not abuse discretion in declining to recuse. -- Where, following remand, the circuit judge appeared to hear the evidence presented in an impartial manner, and where appellant cited no example of bias at the hearing and thus demonstrated no prejudice, the supreme court held, in the absence of a showing of prejudice, that the circuit judge did not abuse his discretion in declining to recuse.

8. Attorney & client -- sanctions -- disbarment not appropriate. -- Where appellant had ample letters of recommendation from community leaders; where he had engaged in public service since the time of his misdemeanor convictions; where the conduct at issue occurred almost twenty years earlier; where appellant had already experienced significant penalties and sanctions for his conduct; and where certain aggravating factors were absent in the case, the supreme court, taking all of the circumstances under consideration, affirmed the circuit judge's conclusion that disbarment was not an appropriate sanction.

9. Attorney & client -- sanctions -- supreme court may impose disbarment sanction for fixed term of years. -- The supreme court has precedent for meting out a disbarment sanction for a fixed term of years.

10. Attorney & client -- sanctions -- distinction between suspension & disbarment. -- The distinction between suspension and disbarment is obviously a critical one; following a suspension for a term of years, an attorney may apply for reinstatement under the Procedures Regulating Professional Conduct, Section 7K, which entails little more than showing the Committee that the attorney's license fees are current and that he did not practice law during the period of suspension; following disbarment, however, an application for readmission to the bar made to the Board of Law Examiners as well as approval by the supreme court, pursuant to Procedures, Section 7L, are required; that is much more onerous and is comparable in effect to an initial application to practice law and entails a character and fitness evaluation by the Board of Law Examiners and even, in some cases, taking the bar exam again.

11. Attorney & client -- sanctions -- readmission impossible when disbarment based on dishonesty. -- When a disbarment is based on dishonesty, readmission is an impossibility.

12. Attorney & client -- sanction -- circuit judge had authority to suspend appellant for five years. -- The circuit judge had the authority to suspend appellant from the practice of law for five years. [wbj]

George Hairston; Roy C. Lewellen; and Wilson & Valley, by: E. Dion Wilson, for appellant.

Robert J. Donovan, for appellee.

Robert L. Brown, Justice.

This case involves the discipline of an attorney, appellant Jimmie L. Wilson, where a majority of justices has been unable to agree on a single ground for reversal on the core issue of the proper sanction. Thus, the decision of the circuit judge is affirmed, and the opinions of this court have no precedential value.

The circuit judge determined that Mr. Wilson should be suspended from the practice of law for five years with credit given for the time he was previously disbarred from practice by this court. Two issues have been raised by Mr. Wilson in his appeal: (1) the circuit judge erred in failing to recuse in this matter; and (2) the five-year suspension ordered by the circuit judge exceeded the permissible sanction under our rules. Appellee James A. Neal as executive director of the Supreme Court Committee on Professional Conduct has cross-appealed on the basis that disbarment is the appropriate sanction. On two of the three issues, a majority of the court agrees. All seven justices agree that the circuit judge's decision not to recuse was not an abuse of discretion. Justice Brown, Justice Imber, Justice Thornton, Justice Smith, and Special Justice Burnett agree that the circuit judge's denial of disbarment should be affirmed.

As already stated, a majority of the court does not agree on the appropriate sanction for Mr. Wilson. Justice Thornton, Justice Smith, and Special Justice Burnett conclude that the circuit judge was limited to a one-year suspension under the Procedures then in effect with credit given for the period when Mr. Wilson was precluded from practicing law. Justice Brown and Justice Imber agree with the circuit judge that a five-year suspension is appropriate with credit given for the period when Mr. Wilson was precluded from practicing law. Chief Justice Arnold and Special Justice Shell conclude that disbarment is the appropriate sanction. Because a majority does not agree to reverse or modify the sanction imposed by the circuit judge, his decision is affirmed.

The opinion by Justice Brown affirming the circuit judge on all three issues is presented first followed by the opinion of Justice Smith in favor of a one-year suspension and the opinion of Chief Justice Arnold in favor of disbarment.

The conduct of Mr. Wilson at issue occurred almost twenty years ago. Disbarment proceedings have been ongoing for ten years. This is the fifth appeal we have had in the case. See Wilson v. Neal, 332 Ark. 148, 964 S.W.2d 199 (1998) (Wilson IV); Wilson v. Neal, 329 Ark. 125, 947 S.W.2d 338 (1997) (Wilson III) (per curiam); Neal v. Wilson, 321 Ark. 70, 900 S.W.2d 177 (1995) (Wilson II) (per curiam); Neal v. Wilson, 316 Ark. 588, 873 S.W.2d 552(1994) (Wilson I); see also Neal v. Wilson, 112 F.3d 351 (8th Cir. 1997) and Neal v. Wilson, 920 F.Supp. 976 (E.D. Ark. 1996). In Wilson I, we reversed the circuit judge who had found that Mr. Wilson's disbarment was barred by the statute of limitations, and we remanded for further proceedings. In Wilson II, we granted a writ of certiorari and held that then circuit judge Olly Neal lacked the authority to sanction Mr. Wilson because a special circuit judge had been assigned to hear the case. In Wilson III, we denied Mr. Wilson's mandamus petition to include the federal record as part of his disbarment appeal. In Wilson IV, we reversed the disbarment order of the circuit judge and remanded the matter to that judge for him to consider the aggravating and mitigating standards of the American Bar Association in deciding the appropriate sanction.

The genesis of this matter was a disbarment complaint filed by the Arkansas Committee on Professional Conduct ("Committee") on October 9, 1991, after Mr. Wilson pled guilty to five misdemeanor offenses in federal district court as a result of a plea bargain with the United States Attorney. The criminal conduct involved had occurred ten years earlier in 1981 and 1982. The guilty pleas took place on August 22, 1990. Mr. Wilson pled guilty to three counts of violating 18 U.S.C. § 658 by "knowingly" disposing of soybeans and rice that were mortgaged and pledged to the FmHA, and two counts of violating 18 U.S.C. § 641 by "knowingly" taking money from a Department of Agriculture bank account and using it for unapproved purposes.¹ In 1985, the United States District Court suspended his license to practice law in the federal courts pending final resolution of any disciplinary action against him by the Committee and by this court. As a result of his guilty pleas, he served four and one-half months in federal prison.

This court affirmed the fact that Mr. Wilson violated Rule 8.4(b) of the Model Rules of Professional Conduct in Wilson IV. There, we held:

Although all five crimes were misdemeanors, we agree with the trial court that these convictions involved dishonesty and a breach of trust, and seriously undermined "the confidence of the public in our legal profession." See In Re Lee, 305 Ark. 196, 806 S.W.2d 382 (1991). Because we have no hesitation in holding that Wilson's convictions reflected adversely on Wilson's fitness to practice law, we affirm the trial court's finding that Wilson violated Model Rule 8.4(b).

332 Ark. at 161, 964 S.W.2d at 205-206. However, with regard to the appropriate sanction we concluded that the circuit judge had erred in finding that a violation of Model Rule 8.4(b) automatically required disbarment. We directed the circuit judge to evaluate and weigh certain aggravating and mitigating standards adopted by the American Bar Association in deciding the proper sanction. On remand, the circuit judge ordered that Mr. Wilson be suspended from the practice of law for five years, but he made no findings on specific aggravators and mitigators. This five-year suspension is the sanction before us in...