IN RE PROCEDURES ARK. SUP. CT. REG. PROF'L CONDUCT OF ATT'YS AT LAW (Per Curiam)

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Cite as 2018 Ark. 105 SUPREME COURT OF ARKANSAS Opinion Delivered: March 29, 2018 IN RE PROCEDURES OF THE ARKANSAS SUPREME COURT REGULATING PROFESSIONAL CONDUCT OF ATTORNEYS AT LAW PER CURIAM The Arkansas Supreme Court Committee on Professional Conduct (“Committee”) has submitted to this court its recommendations for two procedural changes to Section 13 of the Procedures of the Arkansas Supreme Court Regulating Professional Conduct of Attorneys at Law (“Procedures”). One change involves the location of trials in disbarment proceedings. The other rule revision sets forth a procedure for negotiated settlements in disbarment cases. Section 13 is set out below, with the proposed revisions first shown in strike-through and underlined format to indicate deleted language and new language, respectively, followed by a clean version containing Section 13 as revised. We accept the Committee’s recommendations, adopt the amendments to Section 13 of the Procedures, and republish the Procedures as attached. These amended Procedures shall be effective immediately. We express our gratitude to the members of the Committee for their work in conducting a review of the Procedures and recommending the changes that we adopt today in an effort to improve the disciplinary process. Procedures Regulating Professional Conduct of Attorneys, § 13 SECTION 13. DISBARMENT PROCEEDINGS (FORMER) 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. The special judge, the Executive Director, or the Clerk shall shall determine the proper location or locations in the State of Arkansas for the proceedings and shall arrange for a courtroom or other suitable facility in Pulaski County in which all or part of the proceedings shall be heard. The special judge shall have discretion to determine the manner and location of all such proceedings and may designate one or more locations for all or part of the proceedings. The special judge may hear preliminary and post trial matters and take other such actions outside of Pulaski County to the same extent that the law permits judges sitting by assignment or on exchange to do so. With the consent of all the parties, the judge may conduct the proceedings outside of Pulaski County. All allegations of violation(s) of the Rules by the attorney, notwithstanding the situs of the alleged conduct, shall be heard in this proceeding. 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. A disbarment proceeding may be tried on the original petition for disbarment, any amended petitions for disbarment, and such other allegations and charges 2 as to which the respondent has been given adequate notice and opportunity to defend. After a Committee panel votes to initiate disbarment, it shall not be required that any additional charges or allegations in the disbarment proceeding be considered and voted on by a Committee panel. At any time during the pendency of a disbarment proceeding, the Respondent Attorney and the Executive Director may submit to the special judge a joint petition for the approval of an agreed disposition of the disbarment action in whole or in part. Any such proposed agreed disposition entered into by the Executive Director shall also be approved by the Executive Committee of the Committee on Professional Conduct prior to submission to the special judge. If the joint petition is approved by the special judge, it shall then be promptly submitted to the Supreme Court for approval. If the joint petition is approved by the Supreme Court, such approval shall be a final judgment in the action. If the joint petition is not approved by the Supreme Court, the disbarment action shall continue before the special judge. B. The judge shall first hear all evidence relevant to the alleged misconduct and shall then make and file with the Clerk a written 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 3 the factors discussed in Section 13(B). Before filing the findings and conclusions, the judge may solicit proposed findings of fact and conclusions of law from the parties and may submit a draft thereof to the parties or counsel for all parties for the purpose of receiving their objections and suggestions. The judge shall make a recommendation as to the appropriate sanction from those set out in Section 17(D). 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, which shall include all pleadings, orders, and other appropriate materials filed with the Clerk of the Supreme Court. Upon the filing, the parties shall file briefs as in other cases. If any sanction is recommended by the special judge, the respondent attorney shall brief first, as the appellant. The findings of fact filed by the special judge 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 of law license, 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. Procedures Regulating Professional Conduct of Attorneys, § 13 SECTION 13. DISBARMENT PROCEEDINGS (REVISED) 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. The special judge shall determine the proper location or locations in the State 4 of Arkansas for the proceedings and shall arrange for a courtroom or other suitable facility in which all or part of the proceedings shall be heard. The special judge shall have discretion to determine the manner and location of all such proceedings and may designate one or more locations for all or part of the proceedings. All allegations of violation(s) of the Rules by the attorney, notwithstanding the situs of the alleged conduct, shall be heard in this proceeding. 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. A disbarment proceeding may be tried on the original petition for disbarment, any amended petitions for disbarment, and such other allegations and charges as to which the respondent has been given adequate notice and opportunity to defend. After a Committee panel votes to initiate disbarment, it shall not be required that any additional charges or allegations in the disbarment proceeding be considered and voted on by a Committee panel. At any time during the pendency of a disbarment proceeding, the Respondent Attorney and the Executive Director may submit to the special judge a joint petition for the approval of an agreed disposition of the disbarment action in whole or in part. Any such proposed agreed disposition entered into by the Executive Director shall also be approved by the Executive Committee of the Committee on Professional Conduct prior to submission to the special judge. If the joint petition is approved by the special judge, it shall then be promptly submitted to the Supreme Court for approval. If the joint petition is approved by the Supreme Court, such approval shall be a final judgment in the action. If the joint petition 5 is not approved by the Supreme Court, the disbarment action shall continue before the special judge. B. The judge shall first hear all evidence relevant to the alleged misconduct and shall then make and file with the Clerk a written 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 Section 13(B). Before filing the findings and conclusions, the judge may solicit proposed findings of fact and conclusions of law from the parties and may submit a draft thereof to the parties or counsel for all parties for the purpose of receiving their objections and suggestions. The judge shall make a recommendation as to the appropriate sanction from those set out in Section 17(D). 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, which shall include all pleadings, orders, and other appropriate materials filed with the Clerk of the Supreme Court. Upon the filing, the parties shall file briefs as in other cases. If any sanction is recommended by the special judge, the respondent attorney shall brief first, as the appellant. The findings of fact filed by the special judge shall 6 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 of law license, 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. [Effective January 1, 2002. Amended effective March 29, 2018.] HART, J., dissents. 7

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