Ligon v. Clouette
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Cite as 2011 Ark. 68
SUPREME COURT OF ARKANSAS
No.
10-844
STARK
LIGO N ,
EXECUTIVE
D IR EC T O R , SU PR EM E CO U R T
COMMITTEE ON PROFESSIONAL
CONDUCT,
APPELLANT,
Opinion Delivered FEBRUARY 17, 2011
APPEAL FROM THE SUPREME
COURT
COMMITTEE
ON
PROFESSIONAL CONDUCT
VS.
JAMES P. CLOUETTE,
ARKANSAS BAR NO. 74025
AFFIRMED IN PART; REVERSED
AND REMANDED IN PART.
APPELLEE,
DONALD L. CORBIN, Associate Justice
This is an appeal from a disciplinary action by the Supreme Court Committee on
Professional Conduct (Committee) against attorney James P. Clouette. The Committee’s
Executive Director, Stark Ligon, brings the appeal from a June 24, 2010 order filed by Panel
B of the Committee cautioning Mr. Clouette upon a finding that he violated Rule 8.4(b) of
the Arkansas Rules of Professional Conduct (Rules). Director Ligon (the Director) raises two
points on appeal: (1) that Panel B erred in cautioning Mr. Clouette for the violation of Rule
8.4(b) because Clouette’s misconduct constituted “serious misconduct” as defined in section
17(B) of the Arkansas Supreme Court Procedures Regulating Professional Conduct
(Procedures) and, thus, warranted the more severe sanction of disbarment or suspension; and
(2) that Panel B erred in finding that Clouette did not violate Arkansas Rule of Professional
Conduct 8.4(d). As this court has jurisdiction of appeals involving attorney discipline, our
Cite as 2011 Ark. 68
jurisdiction is pursuant to Arkansas Supreme Court Rule 1-2(a)(5) (2010). We affirm the
Committee’s findings but remand for modification of the sanction imposed.
The record reveals that on March 27, 2009, Clouette was charged by felony
information with one count of possession of a controlled substance, methamphetamine. This
Class C felony charge arose after bank personnel reported finding a small plastic bag, with
what was later determined to be methamphetamine, in the bank lobby. Video surveillance
from the bank showed Clouette walking across the lobby when a white spot materialized on
the floor behind him. This video footage led to Clouette’s arrest and the felony charge.
Clouette was tried before the bench and found guilty on November 23, 2009.
Pursuant to Arkansas Code Annotated section 5-64-413 (Repl. 2005), the circuit court
deferred judgment and placed Clouette on probation for a period of two years. In an order
of probation filed on January 5, 2010, the circuit court imposed several conditions of
probation, including completion of a drug rehabilitation program, submission to weekly drug
screens, participation in this court’s Judges and Lawyers Assistance Program (JLAP), and
payment of certain fees and costs.
Clouette was served with a formal complaint filed by the Director on January 11,
2010. Therein, the Director alleged that the finding of guilt of the felony charge of possession
of methamphetamine entered against Clouette was a serious crime and resulted in violations
of Rule 8.4(b) and (d). Clouette filed a response, asserting that although the circuit court
entered a finding of guilt, no judgment of conviction had been entered and that once he
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successfully completes probation, there will never have been any charges pending against him.
Further, he responded that he did not believe there had been a violation of Rule 8.4(b)
because his conduct was not an offense involving violence, dishonesty, breach of trust, or
serious interference with the administration of justice. Clouette asserted that any substanceabuse problem that he might have should be handled by the Arkansas Lawyer Assistance
Program, now known as JLAP, and not by the Committee. Finally, Clouette asserted that he
did not violate Rule 8.4(d) because his conduct alone, the possession of drugs, was not
prejudicial to the administration of justice.
The case proceeded to a ballot vote before Panel A on March 19, 2010. Clouette then
requested a public hearing, which was held before Panel B of the Committee on June 18,
2010. At the hearing, Clouette testified that he has been practicing law for the last thirty years,
with his practice made up of predominantly criminal-defense cases. Clouette admitted that
he was charged with and found guilty of felony possession of methamphetamine. Clouette
stated that he could not specifically state that the drugs found in the bank lobby belonged to
him but that it was possible because he was using drugs at that time. Clouette went on to state
that he did not dispute the circuit court’s finding of guilt. Clouette admitted that he had a
drinking problem and formed a drug habit later in life, stating that his usage was small and
primarily occurred on weekends. Clouette stated that he realized using drugs was a bad
mistake and he had no one to blame but himself. Clouette stated that he was participating in
the JLAP program as part of the circuit court’s order of probation, as well as attending
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Alcoholics Anonymous meetings. He also explained that he is drug tested every week, at his
own expense, and that the test is administered by the bailiff in the Fourth Division Circuit
Court. Clouette admitted that the publicity related to his case did impair the amount of
business in his practice, but later stated that he had only two clients ask for their money back.
Clouette admitted that his conduct was disrespectful to the justice system and that he felt
“terrible for the bar as a whole” because of his conduct. As for prior disciplinary proceedings,
Clouette stated that he had two rules on clerk over twenty years ago, and was also referred
to the Committee in 2009 because of an invalid order of extension.
Bailiff Clyde Steelman of the Fourth Division Circuit Court also testified and stated
that he had been involved in drug testing Clouette since May 2009. He stated that either he
or one of his employees tests Clouette on a weekly basis and that Clouette has tested negative
for controlled substances on each of those occasions.
Bill Luppen, also a criminal-defense attorney, testified that he deals regularly with
Clouette and has never seen him impaired or what appeared to be impaired in terms of his
representation. Luppen also stated that if the Committee chose to place Clouette on probation
or require that he be supervised by another attorney, Luppen would be willing to serve in that
capacity.
The Committee entered its Findings and Order on June 24, 2010, unanimously finding
that Clouette violated Rule 8.4(b) by illegally possessing a controlled substance,
methamphetamine, a Class C felony and “serious crime” as defined by the Procedures. The
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Panel reasoned that the circuit court’s finding that Clouette was guilty of the charge and his
subsequent probation constituted “a criminal act that reflects adversely on the lawyer’s
honesty, trustworthiness or fitness as a lawyer in other respects” and was, thus, a violation of
Rule 8.4(b).
The Panel also found, by a vote of four to three, that Clouette’s conduct did not
violate Rule 8.4(d), which prohibits an attorney from engaging in conduct prejudicial to the
administration of justice. The Panel then, by a vote of four to three, voted for the sanction
of a caution, with the three dissenting members voting for a reprimand. In addition, the Panel
voted to place Clouette on probation for the same time period ordered by the Pulaski County
Circuit Court and subject to the same conditions, including drug testing. The Panel stated
that Bill Luppen, or another attorney mutually agreed upon by Clouette and the Director,
would serve as Clouette’s probation monitor for the Committee and was to report any
violations of the terms of probation to the Committee. From that order comes the instant
appeal.
The standard of review for an appeal from the Committee is as follows:
Pursuant to section 12(B) of the Procedures, our standard of review when reviewing
a decision of the Committee is de novo on the record. A de novo review on the
record determines whether the factual findings were clearly erroneous, or whether the
result reached was arbitrary or groundless. Due deference is given to the Committee’s
superior position to determine the credibility of the witnesses and the weight to be
accorded to their testimony. However, conclusions of law are given no deference on
appeal. The Committee’s findings of fact will not be reversed unless the findings are
clearly erroneous, and the action taken by the Committee will be affirmed unless it is
clearly against the preponderance of the evidence.
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Ligon v. Rees, 2010 Ark. 225, at 13–14, ___ S.W.3d ___, ___ (citations omitted).
As his first point on appeal, the Director asserts that Clouette’s criminal misconduct
constituted serious misconduct and thus warrants the sanction of disbarment or suspension of
his license. Clouette counters that the sanction of disbarment is not available as no disbarment
action has been instituted. He further argues that the Committee’s imposition of a caution was
not clearly erroneous. Before addressing the merits of the Director’s argument, we first look
to whether the sanction of disbarment is available in this matter.
Under section 13 of the Procedures, the process for a disbarment action, as relevant to
the instant matter, is as follows:
(A) An action for disbarment shall be filed as an original action with the Clerk of the
Supreme Court. Upon such filing, the Arkansas Supreme Court, pursuant to
Amendment 28 of the Arkansas Constitution, shall assign a special judge to preside
over the disbarment proceedings. . . . In disbarment suits, the action shall proceed as
an action between the Executive Director and the respondent. Proceedings shall be
held in compliance with the Arkansas Rules of Civil Procedure and the Arkansas
Rules of Evidence, and trial shall be had without a jury.
(B) The judge shall first hear all evidence relevant to the alleged misconduct and
shall then make a determination as to whether the allegations have been proven. Upon
a finding of misconduct, the judge shall then hear all evidence relevant to an
appropriate sanction to be imposed, including evidence related to the factors listed in
Section 19 and the aggravating and mitigating factors set out in the American Bar
Association’s Model Standards for Imposing Lawyer Sanctions, §§ 9.22 and 9.32
(1992). See Wilson v. Neal, 332 Ark. 148, 964 S.W.2d 199 (1998).
(C) The judge shall make findings of fact and conclusions of law with respect
to the alleged misconduct of the respondent attorney and the imposition of sanctions,
including the factors discussed in subsection 13(B). . . . The judge shall make a
recommendation as to the appropriate sanction from those set out in Section 17(D).
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(D) The findings of fact, conclusions of law, and recommendation of an
appropriate sanction shall be filed with the Clerk of the Supreme Court along with a
transcript and the record of the proceedings. Upon the filing, the parties shall file briefs
as in other cases. The findings of fact shall be accepted by the Supreme Court unless
clearly erroneous. The Supreme Court shall impose the appropriate sanction, if any,
as the evidence may warrant. In imposing the sanction of suspension, the attorney may
be suspended for a period not exceeding five (5) years. There is no appeal from the
decision of the Supreme Court except as may be available under federal law.
(Emphasis added.)
Here, there has been no compliance with section 13. No action for disbarment was
instituted with our clerk. A special judge has not been appointed to hear evidence and to
make findings of fact, conclusions of law, or any recommendation for this court to review.
As such, the sanction of disbarment is not available in this case.
In so ruling, we reject the Director’s assertion that this court has the inherent authority
to order an attorney disbarred. This court’s authority over the discipline of attorneys does not
mean that we will ignore the specific procedures set forth for instituting a disbarment
proceeding. While we do conduct a de novo review of the record before us, we will not go
so far to order disbarment in the absence of the Director initiating a disbarment proceeding.
If the Director felt that disbarment was the appropriate sanction, he had the option of
complying with section 13 and instituting such an action before this court. He chose not to
do so, and we will not now impose the sanction of disbarment.
Next, we turn to the Director’s assertion that the Committee clearly erred in voting
to caution Clouette after finding that he committed serious misconduct and violated Rule
8.4(b). Section 17(B) defines serious misconduct in relevant part as follows:
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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:
...
(6) The misconduct constitutes a “Serious Crime” as defined in these
Procedures.
Section 2(J) of the Procedures defines “Serious Crime” as being “any felony . . . .”
In the instant case, even though the circuit court deferred imposition of sentence, the
fact remains that the court found that Clouette was guilty of the felony offense of possession
of methamphetamine. It is this finding that supports the Panel’s conclusion that Clouette
violated Rule 8.4(b). Notably, Rule 8.4(b) 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.” Rule 8.4(b) does not require that an
attorney be convicted in order for the Committee to enter a finding of professional
misconduct. See Ligon v. Newman, 365 Ark. 510, 231 S.W.3d 662 (2006). Because our own
case law is dispositive of this issue, we need not address the Director’s reliance on cases from
other states regarding the issue of whether a criminal conviction is required as a prerequisite
for a finding of misconduct.
Turning now to the issue of the sanction, we note that the Procedures provide in
relevant part:
D. Types of Sanctions. Misconduct shall be grounds for one or more of the
following sanctions:
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(1) DISBARMENT: The termination of the lawyer’s privilege to practice law
and removal of the lawyer’s name from the list of licensed attorneys.
(2) SUSPENSION: A limitation for a fixed period of time on the lawyer’s
privilege to engage in the practice of law.
(3) INTERIM SUSPENSION: A temporary suspension for an indeterminate
period of time of the lawyer’s privilege to engage in the practice of law pending the
final adjudication of a disciplinary matter.
(4) REPRIMAND: A severe public censure issued against the lawyer.
(5) CAUTION: A public warning issued against the lawyer.
(6) WARNING: A non-public caution issued against the lawyer.
(7) PROBATION: Written conditions imposed for a fixed period of time, and
with the lawyer’s consent.
Ark. Sup. Ct. P. Regulating Prof’l Conduct § 17(D).
While there is a range of sanction available, even for serious misconduct, it was error
for the Committee to caution Clouette because section 17(E)(5) states that a caution is
appropriate for “lesser misconduct.” There is no dispute that Clouette committed serious
misconduct, thus, the sanction of caution was not available in this instance. Therefore, we
remand the instant matter to the Committee for consideration of the appropriate factors set
forth in section 19 of the Procedures and imposition of an appropriate sanction pursuant to
section 17.
As his second point on appeal, the Director argues that the Panel erred in finding that
there was no evidence that Clouette violated Rule 8.4(d). Specifically, the Director argues
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that the criminal misconduct of Clouette resulted in prejudice or diminution of respect for
the justice system.
Rule 8.4(d) states that “[i]t is professional misconduct for a lawyer to . . . engage in
conduct that is prejudicial to the administration of justice.” Rule 8.4(d) has been interpreted
to encompass a broad range of misconduct. See Walker v. Sup. Ct. Comm. on Prof’l Conduct,
368 Ark. 357, 246 S.W.3d 418 (2007) (failure to timely handle client’s case); Ligon v. Price,
360 Ark. 98, 200 S.W.3d 417 (2004) (failure to respond to discovery requests and other
pleadings); Gillaspie v. Ligon, 357 Ark. 50, 160 S.W.3d 332 (2004) (failure to file a timely
notice of appeal in a criminal case); Seeco, Inc. v. Hales, 334 Ark. 134, 969 S.W.2d 193 (1998)
(attorney’s participation in a series of events to force a trial judge to recuse in a particular case);
Fink v. Neal, 328 Ark. 646, 945 S.W.2d 916 (1997) (failure to make a reasonable inquiry into
facts during critical stages of litigation); and Clark v. Sup. Ct. Comm. on Prof’l Conduct, 320
Ark. 597, 898 S.W.2d 446 (1995) (ignoring a client’s case for nearly two years after defendants
filed a motion to dismiss). The common thread in the aforementioned cases is that an attorney
took some action or did not take action that directly impacted a client’s case. Here, there was
no evidence that any of Clouette’s clients were affected or prejudiced by his misconduct.
Moreover, while it is true that misconduct on the part of any attorney brings disrepute
to the legal system, we cannot say that the Panel in this instance clearly erred in finding no
violation of Rule 8.4(d). Here, the evidence was that Clouette was well respected and had a
solid criminal-defense practice. In fact, when asked by the Director whether Clouette’s felony
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drug possession undermined the public and client confidence in the criminal-justice system,
Luppen admitted that it was possible but further stated that
if you look specifically to Mr. Clouette, I would say that that has not happened, and
I will tell you that Mr. Clouette is an integral part of the criminal justice system in
Pulaski County. He has a wide practice. He represents lots of people, he does a really
good job, and I think the prosecutors and the judges and everybody here depend on
Mr. Clouette and his expertise and experience and his knowledge and skill to keep the
criminal justice system going. And I – you know, I can’t argue with you that, you
know, a lawyer in the criminal justice system having drugs is not a good thing, and
some people would say that that’s not good, but Mr. Clouette, just by his very
presence and his experience and it hasn’t – I don’t believe that it’s had that effect in
Pulaski County on the criminal justice system. . . .
I can’t say no, that nobody would think that that might hurt the criminal justice
system, but I haven’t seen that specifically in Mr. Clouette’s case.
In sum, we cannot say that the Panel clearly erred in finding no violation of Rule
8.4(d).
Affirmed in part; reversed and remanded in part.
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