Ligon v. McCullough
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SUPREME COURT OF ARKANSAS
No.
04-1395
STARK LIGON, Executive Director,
Supreme Court Committee on Professional
Conduct,
PETITIONER,
Opinion Delivered April
2, 2009
A N O R IGIN AL
DISBARMENT
AC T IO N
FO R
VS.
R E G I N A L D
S H E L T O N
MCCULLOUGH, Arkansas Bar No. 85102,
RESPONDENT,
ORDER OF DISBARMENT ISSUED.
JIM HANNAH, Chief Justice
Stark Ligon, as Executive Director of the Arkansas Supreme Court Committee on
Professional Conduct (“the Committee”), petitions this court to impose the sanction of
disbarment in this original action against attorney Reginald Shelton McCullough. Acting
under section 13(D) of the Arkansas Procedures Regulating Professional Conduct, Special
Judge John Cole issued findings of fact and conclusions of law finding that seventy-five
violations of the Arkansas Rules of Professional Conduct were deemed admitted by
McCullough and that fifty-two of the violations constituted “serious violations” under section
17(B) of the Arkansas Procedures Regulating Professional Conduct.1 In addition, Special
Judge John Cole noted that McCullough had previously received fourteen public sanctions,
1
Judge Cole also found that given McCullough’s prior disciplinary record, along with the “sheer
volume” of the complaints, the incidences of lesser misconduct collectively constituted serious
misconduct.
including one caution, nine reprimands, and four suspensions of various lengths from thirty
days to an indefinite period based on the interim suspension. Special Judge John Cole
recommended that McCullough be suspended from the practice of law for three years in
addition to the pending interim suspension, pay restitution of $74,067, pay a fine of $10,000,
and pay the full costs of the disbarment action. The Committee argues that disbarment is the
appropriate sanction. We agree. Our jurisdiction is pursuant to Arkansas Supreme Court
Rule 1-2(a)(5).
On December 30, 2004, the Committee filed a Petition for Disbarment. That petition
was subsequently amended to add additional allegations. By a February 24, 2005 per curiam
opinion, this court appointed the Honorable John Cole to sit as special judge and hear the
disbarment proceeding. See Ligon v. McCullough, 361 Ark. 41, 204 S.W.3d 64 (2005).
Hearings before the special judge commenced in 2005. McCullough failed to timely respond
to discovery, and the accusations against him were deemed admitted. Special Judge Cole
proceeded to hear evidence on the sanction. Both the Committee and McCullough put on
evidence regarding aggravating and mitigating factors. McCullough was limited to medical
witnesses, but he also proffered what he believed a number of witnesses from the legal
profession would have stated, which was that he should be returned to practice as a valuable
member of the profession. On February 13, 2007, Special Judge Cole issued his findings of
fact, conclusions of law, and recommendation for sanctions pursuant to Procedures Regulating
Professional Conduct section 13(C).
The authority to regulate the practice of law arises from Arkansas Constitution
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amendment 28 and amendment 80, section 4. Further, the power to regulate the practice of
law is an inherent power of the courts. See In re Anderson, 312 Ark. 447, 851 S.W.2d 408
(1993); Hurst v. Bar Rules Comm., 202 Ark. 1101, 155 S.W.2d 697 (1941); see also Beene v.
State, 22 Ark. 149 (1860).
Section 1(C) of the Procedures Regulating Professional Conduct provides that attorney
disciplinary proceedings are neither civil nor criminal in nature but are sui generis, meaning
of their own kind. See Ligon v. Dunklin, 368 Ark. 443, 247 S.W.3d 498 (2007). The special
judge’s findings of fact are accepted by this court unless they are clearly erroneous. Id. This
court imposes the appropriate sanction as warranted by the evidence. Id. There is no appeal
from this court’s decision on attorney discipline except as may be available under federal law.
Id.
After the committee perfected its appeal, McCullough sought and received a thirty-day
extension in which to file his responsive brief. McCullough subsequently sought an additional
thirty-day extension to file his responsive brief. The court granted the additional thirty-day
extension clearly declaring that it was McCullough’s final extension. With the final extension,
McCullough’s brief was due September 24, 2008. On February 13, 2009, McCullough filed
a motion to file a belated brief which was denied by the court.
Special Judge Cole’s detailed Findings of Fact and Conclusions of Law consume sixtyfour pages. His findings and conclusions are not challenged by McCullough on appeal
because McCullough failed to timely file a brief. However, Special Judge Cole’s findings of
fact were not clearly erroneous. A finding is clearly erroneous when, although there is
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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. Stewart, 369 Ark. 380, 255
S.W.3d 435 (2007). Special Judge Cole’s findings of fact and conclusions of law are not
clearly erroneous.
Conduct
Special Judge John Cole made the following findings of fact and conclusions of law:
1.
Smitherman complaint:
In violation of Arkansas Rules of Professional Conduct, 1.4(b), 3.4(c), and
8.4(d), McCullough in representing Mack Ray Dodson in a criminal matter
failed to advise Dodson, the prosecutor, and the circuit court that he had been
suspended from the practice of law, and further, McCullough failed to appear
at three separate noticed hearings on March, 4, 2003, May 29, 3003, and July
22, 2003.
2.
Elaine Turner Complaint:
In violation of Arkansas Rules of Professional Conduct 1.2(a), 1.3, 1.4(a), and
1.6(d), McCullough accepted representation of Kirk Turner on post trial
proceedings, accepted full payment for his work and then failed to take any
action in the matter. He further failed to keep Turner advised of the status of
the matter, failed to respond to client inquiries and correspondence, failed to
respond to client telephone messages and failed to respond to correspondence
of the Arkansas Supreme Court Committee on Professional Conduct
attempting to assist Turner in obtaining a response from McCullough. Further
still, McCullough failed to return the unused portion of his fee.
3.
Audrey Reed Complaint;
In violation of Arkansas Rules of Professional Conduct 1.1, 1.3, 3.4(c), and
8.4(d), McCullough failed to provide competent representation in failing to
respond to a motion for summary judgment that resulted in his client’s case
being dismissed. He also failed to respond to a court order regarding the
response to the motion for summary judgment.
4.
Thomas Deen Complaint:
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In violation of Arkansas Rules of Professional Conduct 3.4(c) and 8.4(d),
McCullough failed to appear at a noticed hearing on July 6, 2004 in a criminal
matter. He also failed to appear at the hearing on his own motion that the trial
judge recuse. He delayed the proceedings and prejudiced the administration
of justice.
5.
Other Matters:
In violation of Arkansas Rule of Professional Conduct 3.4(c), McCullough
failed to pay an obligation ordered by the Arkansas Supreme Court Committee
on Professional Conduct on May 28, 2003 (R. 3.4(c)), to pay costs ordered by
the Committee on July 15, 2003, and to pay fees and costs ordered by
Committee on Professional Conduct on March 1, 2004.
6.
Mark Latta Matter:
In violation of Arkansas Rules on Professional Conduct 1.1, 3.4(c), and 8.4(d),
McCullough failed to file a compliant brief before this court in a criminal
appeal. He also again failed to file a compliant brief after subsequently being
ordered to do so.
7.
Regina Hayes Complaint:
In violation of Arkansas Rules of Professional Conduct 1.4(a) and 8.4(d),
McCullough failed to respond to multiple requests for information by client
Hayes, failed to keep Hayes advised of the status of her case, failed to respond
to client correspondence, and failed to pursue or advise Hayes that he would
not pursue any action in her case.
8.
Missy Engel Complaint:
In violation of Arkansas Rules on Professional Conduct 1.2(a), 1.3, 1.4(a),
8.4(c), and 8.4(d), McCullough failed to prosecute Engel’s matter pursuant to
court rules which resulted in dismissal of Engel’s action. Further, McCullough
failed to advise Engel of the reason for the dismissal and committed fraud and
deceit in allowing her to believe that he had voluntarily dismissed the
complaint. Further still, McCullough provided Engel a copy of a motion to
voluntarily dismiss that was not filed until nineteen days after the court has
already dismissed the action.
9.
Flora Cosby Complaint:
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In violation of Arkansas Rules of Professional Conduct 1.1, 1.3, and 8.4(d),
McCullough failed to respond to a motion for summary judgment and allowed
entry of the dismissal of his client’s action.
10.
Linda Faye Battle Complaint:
McCullough agreed to analyze whether Battle’s brother might be eligible for
a reduced sentence through post conviction proceedings. In violation of
Arkansas Rules of Professional Conduct 1.16(a), 1.2(a), 1.3, 1.4(a), despite
being retained to do so, he did not pursue the matter, failed to communicate
with his client, failed to keep his client advised of the status, and failed to
respond to client correspondence and phone calls. Further, he failed to account
for or return the unused portion of his fee.
11.
Calvin Lamont Walker Appeal Matter:
In violation of Arkansas Rules of Professional Conduct 1.1, 3.4(c), and 8.4(d),
McCullough failed to file a record and perfect the appeal. He also failed to
obtain a partial record to pursue his application to declare Walker indigent.
Further, he failed to respond to the clerk’s attempts to resolve the problem with
the record and failed to continue his representation of his client until relieved.
12.
Willie Watkin Matter:
In violation of Arkansas Rules of Professional Conduct 1.15(a), 1.15(b), and
8.4(c), McCullough failed to maintain a $100,000 settlement in his IOLTA
account until passed to appropriate parties. Further, he failed to notify health
care providers of the settlement, failed to deliver settlement funds due them,
and in the case of one provider falsely advised that litigation was still pending.
Further still, McCullough deposited the settlement check listing Medicare as
a payee without the endorsement of Medicare.
Special Judge Cole found that since being admitted to practice law in 1985,
McCullough has been suspended from practice on four occasions. He has received fourteen
public sanctions. It is also clear that throughout all the above-noted matters, McCullough has
shown a reluctance to assume responsibility for his own errors. He repeatedly blamed his
failure to timely file documents on clerks and his failure to respond to pleadings and discovery
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on an assertion that he never received mail. In these very proceedings, McCullough blamed
his failure to respond on having not received documents that were sent to him through the
United States Postal Service. No evidence was offered to show that the postal service failed
to properly deliver mail to McCullough. Further, Special Judge Cole found, and we agree,
that McCullough has never offered to reimburse clients for the funds that were intermingled
with his own or the fees that he should have refunded. In his testimony in this matter,
McCullough stated,
I have had financial problems. I just don’t know what happened to every
penny, dime and dollar, even though I wish I could tell you. I don’t know
whether I made bookkeeping mistakes, or if somebody working for me made
mistakes, but I realize it’s my responsibility, no matter who made the errors.
Stating that responsibility is accepted does not reimburse clients. Even if we were to
accept the recommended sanction and impose the proposed fines, McCullough’s clients
would not be made whole. Special Judge Cole found that there was misuse of client funds
and that there is no “stated intention or plan described to make whole the clients whose funds
were diverted.” Special Judge Cole found the conduct “egregious” under section 19 of the
Arkansas Procedures Regulating Professional Conduct. We agree.
Attorney Discipline
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. Stewart, 369 Ark. at 384, 255 S.W.3d at 439. The
practice of law is a privilege, not a right. Stilley v. Ligon, 370 Ark. 294, 304, 259 S.W.3d 395,
402 (2007).
We are certainly mindful that an attorney earns his or her livelihood by
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practicing law, and that to lose the license to practice means not only the loss of earning a
livelihood, but also the loss of one’s profession and many years of education.
However, those who have taken the oath as an officer of the court owe a high level
of fidelity to their clients. Norfleet v. Stewart, 180 Ark. 161, 169, 20 S.W.2d 868, 871 (1929);
see also Baker v. Humphrey, 101 U.S. 494, 502 (1879). In issues of misuse or misappropriation
of a client’s money, the slightest divergence from rectitude breaches the oath, the trust
between attorney and client, and the confidence that the public must be able to place in the
profession. Id. See, e.g., Neal v. Hollingsworth, 338 Ark. 251, 992 S.W.2d 771 (1999). Under
these circumstances, the public and the profession is best served by firmly applying the rules.
Id.
Serious Misconduct
Special Judge Cole found that at least seventy-five violations of the Arkansas Rules of
Professional Conduct were deemed admitted. He determined that fifty-two of the violations
constituted “serious violations” under section 17(B) and (C) of the Arkansas Procedures
Regulating Professional Conduct. Special Judge Cole noted that McCullough had previously
received fourteen public sanctions and four suspensions. Section 17(B, C) of the Procedures
Regulating Professional Conduct defines misconduct:
B. Serious Misconduct. Serious misconduct is conduct in violation of the
Model Rules that would warrant a sanction terminating or restricting the
lawyer's license to practice law. Conduct will be considered serious misconduct
if any of the following considerations apply:
(1) The misconduct involves the misappropriation of funds;
(2) The misconduct results in or is likely to result in substantial prejudice to a
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client or other person;
(3) The misconduct involves dishonesty, deceit, fraud, or misrepresentation by
the lawyer;
(4) The misconduct is part of a pattern of similar misconduct;
(5) The lawyer’s prior record of public sanctions demonstrates a substantial
disregard of the lawyer’s professional duties and responsibilities; or
(6) The misconduct constitutes a “Serious Crime” as defined in these
Procedures.
C. Lesser Misconduct. Lesser misconduct is conduct in violation of the Model
Rules that would not warrant a sanction terminating or restricting the lawyer’s
license to practice law.
The Appropriate Sanction
McCullough’s conduct rises to serious misconduct on multiple occasions. He argued
in the disbarment proceedings that disorders he suffers from, including major depression,
attention deficit disorder, sleep disorder, compulsive behavior, and anxiety disorder caused
him to struggle in his practice and commit the errors. We note first that McCullough has a
consistent history of missing deadlines that dates back to the early nineties. He also has a
consistent history of blaming his shortcomings on others that dates back nearly as far. Further,
we cannot help but note that during the period that he alleges he suffered most, he was able
to meet with clients and accept fees, which too often were taken without then providing the
agreed work. We do not see why he would be unable to meet basic trial and appellate
deadlines that were no more complex than making appointments and appearing at meetings
with clients. There is no evidence that McCullough’s mental problems were causing him to
act in a deceptive or dishonest manner. As Special Judge Cole found, McCullough was “not
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without the ability to recognize his shortcomings and advise his clients.” While we do not
discount the suffering of physical and mental disorders, we must closely examine the facts
where the disorder appears to have been used as an excuse and was not a cause. Our
obligation to the public and to the administration of justice in protecting against attorneys
who have failed to discharge their professional duties to clients, the public, the legal system,
and the legal profession requires no less. See Ligon v. Price, 360 Ark. 98, 200 S.W.3d 417
(2004). In In re Butcher, 322 Ark. 24, 907 S.W.2d 715 (1995), on an issue of readmission, we
noted that Butcher had shown that through treatment he was competent to practice law
despite his mental disorder; however, we also held that there was no direct proof that the
mental disorder caused him to act in a deceptive or dishonest manner. In the present case,
we commend McCullough for seeking treatment; however, there was no direct proof that his
depression and other disorders prevented him from acting consistently with his duties as an
attorney and an officer of the court.
None of the treating physicians opined that
McCullough’s health problems deprived him of the ability to comply with the requirements
of his legal practice. To the contrary, there is evidence that he was capable and failed to act.
After he asserted that he had succeeded with treatment, he failed to timely file his brief in this
very matter. This is a pattern with Mr. McCullough that exists today and predates the
ailments he alleges caused his failures. We are not unmindful that McCullough made no offer
and asserted no commitment to reimburse clients prior to the special judge’s recommended
order so requiring.
From the evidence presented we are left to conclude that one of two conditions is
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present with McCullough, both of which weigh heavily in our analysis on the proper
resolution of this matter.
Either McCullough is again competent to practice law as a
consequence of his treatment, in which case he continues to fail to attend to his duties as an
attorney by not answering requests for admissions and failing to file timely briefs, or he
remains incompetent due to physical and mental disorders. Having a mental disorder that
impaired his ability to practice law obviously would not entitle McCullough to continue
practicing law. In Ligon v. Price, 360 Ark. 98, 200 S.W.3d 417 (2004), the attorney claimed
that he would not have violated so many model rules but for a severe emotional impairment.
We stated that the purpose of disciplinary proceedings is to protect the public and the need
for protection is the same whether or not the attorney is mentally impaired. Price, 360 Ark.
at 117, 200 S.W.3d at 429 (citing Slaten v. State Bd. of California, 757 P.2d 1 (Cal. 1988)); see
also Ligon v. Stewart, 369 Ark. 380, 200 S.W.3d 417 (2007).
We now turn to the special judge’s recommendation that McCullough be suspended
from the practice of law for three years, that he pay restitution of $74,067, pay a fine of
$10,000, and that he pay the full costs of the disbarment action. We must respectfully disagree
with the special judge’s recommendation. McCullough has both misappropriated client funds
for his own use and taken funds from clients as fees for which work was never done. This
constitutes serious misconduct under section 17(B) (1), (3) and (4) as misappropriation,
dishonesty or fraud, and a pattern of similar misconduct. Further, McCullough’s prior record
of public sanctions demonstrates a substantial disregard of the lawyer's professional duties and
responsibilities.
Section 17(B)(5). Misuse or misappropriation of money from a client
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constitutes serious misconduct that requires strict application of the rules. See Norfleet, supra.
McCullough not only failed to provide services promised, he misled clients about the
status of their cases and failed to apprise them when the case was dismissed through his own
misconduct. This conduct also constitutes breaches of trust that seriously undermine the
confidence of the public in the legal profession. See Wilson v. Neal, 332 Ark. 148, 964 S.W.2d
199 (1998). For our legal system to function properly, a client must be able to trust his or her
attorney, and it is the responsibility of this court to see that the public is justified in believing
that attorneys are worthy of that trust. See In re Butcher, supra. McCullough’s conduct is
gravely serious and warrants disbarment.
Order of disbarment issued.
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