*1 Ark. 543 AND JUDICIAL DISCIPLINE COMMISSION,
DISABILITY Petitioner,
v. SIMES, Respondent. L.T.
No. 09-443. Supreme Arkansas. Court 5, 2009. Nov.
73 Stewart, Director, David A. Executive Sachar, Deputy and David J. Executive Director, Discipline Ark. Judicial & Dis- Comm’n, Rock, ability appellant. Little Hairston, York, NY, George E. New Rock, Cain, appellee. Terrence Little BROWN, ROBERT L. Justice. Judicial (“the Commission”) recom- permanently mends that this court remove L.T. Simes the bench without possibility returning position to that appointment. election or The Commis- sion bases this recommendation on its find- (1) ings Simes violated Canon 4(G) of Judicial Code Conduct engaging in while he practice law (2) 4(E) judge; circuit Canon serving fiduciary of an of some- as a estate member; family one other than a copy then sent impropriety to avoid by failing Canon file to Mr. Allen. hold impropriety. We appearance are findings that the 1990, Simes, as attor- *3 July both After erroneous, we reject but ney judge, he became continued and after suspend removal. We recommendation of in connection payments rental receive bench, pay, without with Estate and never moved from the the Chandler term, to be removed as administrator which is end current until the of his attorney estate.2 In of or the for the 31, deny We further December 2010. |shaving 1997, duly after been January to strike extraneous Judge Simes’s motion judge on November circuit elected material from the record. aas full- Judge Simes assumed the bench 14, January these. On facts are _|The Circuit. judge time First Judicial 1976, petition a filed as L.T. Simes a he still did not becoming After to have an ad- attorney of Lazora Corbin remove as the ad- take action to himself for the estate of her appointed ministrator or to of the Chandler Estate ministrator father, He an Quincy next filed Chandler. attorney of record for remove himself as as administra- acceptance appointment either Corbin or the estate. He Lazora 19,1976, tor, by of the on March order checks, receive annual rent continued to court, to serve probate permitted he was accounting for the checks but he filed of the Chandler Es- as the administrator administra- part probate received as tate without bond. One assets tion.3 land, was a of farm which the estate tract 23,1998, February Simes sent On 18, party. July On
was leased a third White, Phillips a Coun- letter to Linda 1986, by probate an order was entered Clerk, ty stated: which court, directing all farm rental income you find check Enclosed herein will paid attorney Chandler Estate be # in the amount of dated $1440.00 as administrator the estate. 7, you 1997. Do have an November contends that he now your money where this account office rental payment the first annual ceived according kept can be and distributed attorney years Fourteen 1989.1 you As are Chancery a Court order? attor- Simes became administrator aware, My longer practice I no law. last estate, 1990, July he re- ney for the represent- was that Charles Allen notion Corbin, letter Lazora ceived a your ed estate. Please check files said, discharged “You are as [sic] here attorney copy who the is and see 9, attorney July on 1990.” The letter my can to them as pleading be sent him file to legal you questions, asked to “deliver” If further well. please free to call. attorney According Allen. feel Charles 1988, 31, relieving him as in the case and order October order counsel 1. In an entered contempt attorney’s motion probate pay is no evi- considered fees. There attorney filed the lessee. Mr. dence that either Allen or probate referred to Simes as the The effect to the ever an order to that submitted attorney for the Es- "Administrator and probate court. tate.” finding in a order before 3.This was consent record, According attorney Simes 2. Supreme Court Committee on Profession- Allen, least to Mr. on De- sent at two letters Conduct, September al on 2006. entered He cember 1993 and Allen that he Mr. to enter said wanted responded Arnold hearing September Ms. White held a 25,1998, with part: to the motion answering, March accounting by Daggett filed on behalf of account for this find an We did Daggett estate. Simes and Mr. kept distributed money to each made a hearing, statement at the Also, I Chancery spoke Court Order. Arnold Chandler testified. On October if had Allen to see Charles 2005, Judge Simes filed a Petition for At- case and he told me he had handled this torney’s Fees and Executor’s Fees before only not. other I could Arnold, seeking payment *4 signed any paperwork find off who on $13,940.77, to cover claimed service to Schieffler who was a court- Eddie the estate as both and administrator law- John appointed attorney for Chandler. yer 1976 March through find the letter and Please enclosed Judge 1998. The fees by claimed Simes you check mailed to our office. If there for work done in as administrator and is we need to do that I am not anything attorney, bench, after he assumed the in- aware let me know. please of White, cluded the letter Linda to Probate Judge does not record reflect UThe Clerk, 23, 1998; on February a letter from Simes further to took action resolve Smith, Clerk, Deputy Probate 15Connie who represented matter of estate 25, 1998; March and a conversation with upon receiving correspon- Ms. White’s 25, attorney Charles Allen on March dence. Following hearing, Judge Arnold en- 2003, attorney Dag- In January Jesse 25, 2005, tered an order dated October and by been gett, who had retained the heirs Simes Judge concluded had breached Estate, Judge the Ghandler contacted fiduciary duty to the estate that he and requested accounting Simes and $24,138.03, owed the estate a total inclu- 11, payments. May annual farm rental On interest, payments sive of for the rent 2004, the heirs the Chandler Estate had collected and failed to disburse petitioned Judge Kathleen Bell for an ac- Judge paid judgment. heirs. Simes ap- counting and have Arnold Chandler Judge peti- Arnold’s order also denied administrator of the estate. pointed as attorney’s tion for and administrator’s fees Thereafter, Judge Judge Bell ordered Judge and found Simes had violated accounting Simes to file final for the Rules of various Professional Conduct.4 29, 2004, by period estate October for the Judge Judge Arnold also noted that Simes 18, Judge from March 1976 to date. Bell’s 2004 comply Judge had failed or- accounting Simes did not file the as accounting he file final for the order that Judge dered. Bell Judge discharged Judge Judge did not appeal estate. appointed as and Ar- administrator Arnold’s order. nold in Succes- Chandler Administrator 2005, Arnold re- On October sion of the estate. to the Arkansas Su- ferred 18, 2004, preme
On November Bell Court Committee on Professional cused, (CPC), W.H. “Dub” Ar- letter and Special Conduct attached Sep- his order On appointed copy nold was to decide the case. letter.5 1.4(a) (diligence), Ligón, (keeping 4. Rule October Stark Execu- 1.3 5. On CPC, 1.4(c) informed), (noti- reasonably client tive Director of the forwarded fying receipt to the the client of his of funds Arnold's letter and order entitled). appropriate.” [it] "for whatever action deems the client (2000). a de This conducts Findings a Consent tember review, and, agreed after a review of by the novo was entered CPC Order record, may accept, reject, wherein we entire violating modify, part, or in the Commis- by the CPC for whole was cautioned Id. findings Professional Conduct and recommendations. various Rules of sion’s court, however, pay restitution will not reverse was ordered This they amount are findings unless $2,122.99 attorney’s fees incurred. erroneous. Id. that: provided part order
That consent conduct, attorney, as an “Judge Simes’ Practice Law _|¿. 1.15(b), |nin that he Rule violated Model question We turn first to the Estate of promptly deliver to the failed while practiced law whether represented the funds Quincy Chandler he was the bench. years checks three rental vio concluded that Simes’s conduct *5 2000 and 2002.” 4(G), presid lated which restricts a Canon 2006, 16, an Ashley Higgins, On March appearing from law or practicing Helena, sent attorney in a letter in state. The any as counsel in court this in- regarding Judge Commission following specific Commission made Mr. in the Chandler Estate. volvement findings in of its conclusion: support 25, 2005 or- Higgins included October (cid:127) payments Rental from the Chandler by Judge Arnold. The Com- der entered Judge to Estate continued be made assigned case number 06-174 mission he his role long Simes assumed 2006, and, 27, it complaint, on March Judge. as Circuit Mr. acknowl- Higgins, sent a letter (cid:127) assuming Subsequent position and to edging receipt complaint, of Judge claimed Judge, Circuit Simes Simes, Judge informing him of the com- for fees attorney’s monies to him owed inviting and within 30 plaint response for fees and executor’s from the Chan- days. delays various and continu- After dler Estate. ances, three-person panel of the Com- (cid:127) The letter hearing on the disciplinary mission held a Lazora did not serve to release Corbin 16, 2009, Higgins complaint obligations attor- him from his as the Following February and ney for administrator hearing, panel report issued a Judge Simes either Chandler Estate. 18, 2009, on March in recommendations knew, known, have that it or should it recommended that which do so. the bench. permanently removed from (cid:127) in a appeared as counsel 28, 2009, the April On full Commission time he during court of this state in entered unanimous final decision judge. circuit serving as a recom- adopted findings panel. mendation That recommen- court argues now to this of the full is now be- dation there is no evidence the record that this for final fore court decision. he law finding practiced support 4(G). Instead, In in violation of Canon Judicial that he was in a no-win Thompson, v. this court stat- Simes asserts if he judicial-disci- petitioned of review situation and that had ed standard for as counsel for the Chan- 341 Ark. 16 S.W.3d court withdraw pline cases.
77 Estate, have, fact, he would That dler been order said that as an acting 4(G). practicing attorney law violation Canon and 2002 when he received farm neglected rental cheeks and to this question answer centers them deliver to the estate. what practice constitutes law and Thompson, Simes’s actions. In There is no doubt ac- judge’s emphasized practice that “the of law in Thompson tions on the practicing-law attorney is not confined to question egregious services were more than justice; a court of it also Estate, includes Simes’s actions in the Chandler so, legal service of a nature rendered outside but even finding Commission’s pending courts and unrelated to matters engaged practice law, 341 thereby 4(G), courts.” Ark. at 16 S.W.3d violated 19Canon (citing Undem v. State Bd. Law not According erroneous. Exam’rs, 266 Ark. S.W.2d he was unable to withdraw as coun- (1979)). Thompson, accept this court sel for Lazora Corbin or as finding ed the then- estate because he would violate Canon 4(G) Judge Thompson engaged had in the prac by moving a court to be relieved. tice of law where the evidence he Clearly, though, showed his withdrawal as counsel actively participated in negotia parties granting settlement all and an order tions on he represented behalf clients withdrawal should transpired before before he became circuit he assumed the bench.
Judge Simes asserts that the Commis- It is conceivable that some judges might findings in sion’s the case are inadvertently instant clear- remain listed as attorney the ly erroneous because there is no they evidence record on a case after a become actively that he anything did that sitting judge merely overlooking could and that defined practicing as law. He contends the would fact not constitute the practice practiced however, that the he Commission found of law. In this Judge do, law based what he attorney on did which Simes remained of record and was he attorney failed withdraw as the knowingly continued to receive rent checks of record in the The case. Commission on of the after he sworn behalf estate was answers in that 1990 letter from Lazora as a He had judge. correspondence Judge Corbin not serve probate February to terminate with the clerks in and responsibilities attorney Simes’s as her March 1998 about role rental and the he, fact, checks, and that perform attempted continued to and later to bill attorney Additionally, functions for the estate after estate for those services. he letter actively was received. The Commission worked with the new at- estate’s points to the evidence in the torney, Daggett, record that Jesse to construct an ac- years Simes continued to receive rental of the for the before counting estate payments bench, intended for the estate he and he after assumed the and he judge. became a circuit The petitioned Judge attorney’s Arnold for fees CPC, also cites the consent from order as well as administrator’s fees for services to, agreed provided which as evidence to the estate from that he engaged through Simes admitted March over a was practice year of law he judge. judge.6 while was a after he became a circuit hearing Sep- Daggett pretty At the before Arnold that on he had "worked hard tember told the as a serving time that he was for fees further petition Simes’s Judge. finding he that Circuit supports the Commission’s (cid:127) counsel, court, a as while appeared before violates The conduct of judge. sitting he was a restricting Four a E Canon serving fiduciary capacity. admittedly roles Judge Simes’s |ioWhile Judge Simes’s rebuttal the Commis- as administrator essentially findings point sion’s on this is times, to have blurred appear estate he as made with Can- same documentation, orders, based on 4(G) law. He regarding practice on court, it is this clear judgments before steps to that he could not take maintains he he wore both hats after assumed as of the estate be removed administrator beyond mere in- bench. His actions went practicing law in violation of Can- without facts, accord- advertence or inaction. The 4(G). He on also contends that Com- ingly, finding support |na finding he mission’s served 4(G) violated Canon only by evi- fiduciary capacity supported law. engaged practice perform any that he duties dence failed may he have owed the estate as fiducia- Fiduciary II. Service as ry. claims Judge Simes also 4(G) issue, Judge As with Canon finding erred argument arguments fiduciary he to the Chandler served as point. are on this unpersuasive dissent he was a while Com negligent that he or inade- The fact specific findings point mission’s duties quate performing as adminis- were: change trator of the estate does (cid:127) appointed the ad- to be the court- fact that continued ministrator Chandler Estate Es- ordered administrator *7 and served as ad- Also, after he became a circuit tate until ministrator that estate dis- mentioned, he rent already as by Order of the Circuit charged Court payments, away, filed then them and Arkansas, Phillips dated County, quested fees as the administrator after day May, the 20th find- took the bench. The Commission’s (cid:127) steps took no not errone- ings point on this are removed the administrator himself as ous. upon assuming of the Chandler Estate Simes, argues Judge dissent The Judge. of Circuit position bench, was assuming only impru- (cid:127) Judge Judge Bell ordered Simes to file unprofessional dent when he received and accounting a final of the estate in rental checks and Chandler Estate not which he did do. away The them without distribution. filed (cid:127) bench, Judge After he assumed the Judge further advocates dissent claimed the estate owed him Simes merely actions acts negligent were fees. money for administrator’s and a service to constitute (cid:127) lawyer the administra- estate as either administrator. Judge Simes served as receiving multi- disagree.
tor an estate of a decedent not a We The acts family ple of the estate Judge’s during rental checks on behalf member try everything everything.” long and to find and account addition, filing while on the bench then them in Judge and as a result of Simes’s ac- tions, in Judge some fashion were actions taken the Chandler Estate was inadequate- ly represented Simes’s dual and fiducia- years, roles as for many the heirs of ry. subsequent His imperfect perform- estate were legal forced take action against ance regard Judge checks cannot and Judge Simes operate receipt pay as a defense to his initial ordered to a substantial amount of interest, filing money, and of the checks. Nor can we including to the estate for agree Judge did not the rental appreciate Simes checks that he mishandled. facts, | acting the fact that lawyer question, he was both These created ^without appearance, minds, administrator for estate. in reasonable recognized manifestly that he perform was unable to acting petitioned both when he duties with integrity, impartiality, roles acts competence. Arnold for fees for done both capacities.
IV. Process Due Appearance Impropriety liJII. 8(D) A. Rule Violation Commission further found that strongly asserts that require Simes violated Canon 2’s procedural due-process and substantive ment impropriety that he “avoid and the rights were violated because the Commis appearance of impropriety all sion failed to comply with its own rules First,
judge’s activities.” notifying him days within 90 of receipt does not finding address this his initial first made him on brief, although he does take issue with the the Chandler Estate. specif finding in reply brief. ically maintains that there were multiple provides Canon 2 that “a judge shall complaints with respect his involvement comply with the law and shall in the Chandler before Ashley Hig act at all promotes times in a manner that gins’s letter was received the Commis public integrity confidence in the im- sion March 2006. Simes also partiality judiciary.” The commen- “opened adds that staff tary to Canon 2 further reads: investigation proceed and monitored the Actual improprieties under this stan- ings Judge Arnold, before Bell law, dard include violations *8 attorneys in the practicing First Judi provisions rules or specific other this cial Circuit file complaints continued to on code. appearance The test for of impro- the Chandler matter.” priety is whether the conduct would cre- ate in minds a perception reasonable notes, rightly As state judge’s ability carry judi- to out judges protected due-process rights, cial responsibilities with im- integrity, basic of which components are fair partiality, competence impaired. is ness, meaningful charges, notice and a added.) (Emphasis meaningful Because we have fol- opportunity defend oneself. State, lowed the Commission’s recommendations See Anderson v. 266 Ark. 683 4(E) 4(G) (1979). respect with According to the 14 Canon S.W.2d Simes, violations to the there effect that was actu- actions in Simes, impropriety al part due-process rights instant case violated his accept read, we the Commission’s its own Rule in 2006 recommenda- which tion with part: to Canon as well. The Judge. Ex- Estate. Commission Notice Chandler
Mandatory Bell inquiring a letter to cause shown and sent cept upon good Commission, no ac- into the status of the estate and the approval of the com- than dismissal final copy accounting tion other questing any complaint taken as to plaint shall be ordered to make. is not notified about which contends, however, that Commission 11fiThe (90) receipt ninety days within investigation it “simply involved complaint. such open- of information or inferences before 8(D) & R. Discipline 114Ark. against Judge reflecting a case 13, 2008, (amended on March proceed with the obligation not [its] 90-day requirement). delete the process proper without investi- disciplinary Judge Simes claims point, On this of the information gation and evaluation complaints re- the Commission received it.” forwarded to in May Estate garding the Chandler question The for this court decide Halbert refer- Attorney from Charles brought to the whether the information 04-206; January 2005 from ence to case attention of the before Commission Murray; in October 2005 Attorney “complaints,” Higgins letter were 2006 from Stark and March Ligón; meaning in “action” within the resulted Higgins.7 8(D). so, If former Rule following concedes maintains that received notice in its before court: brief complaints such within (cid:127) concerning It information thus, and, ninety days, complaints in the matter of Judge Simes’s conduct must be dismissed. The Rules do not filing “any in- “complaint,” define but reference including cor- complaint, the formal complainant aby formation submitted Ligón. from Stark respondence brought otherwise to the attention of (cid:127) Womack, made investigator, Its Lance & Dis- Discipline Commission.” Ark. Jud. “preliminary inquiries concerning this 8(A). ability R. Former Rule Comm’n concerning matter when information 8(C) “Optional was titled Notice to Judge’s continuing involvement “[njotice Judge” provided during disclosed with the estate was complaint has been received inter- investigations. other Womack may inquiry given or an undertaken Daggett, viewed Jesse Ark. time.” Jud. & Disabil- family. by the Chandler hired 8(C) (2006). ity R. Comm’n (cid:127) investigation into anoth- part As of an February On Halbert Murray, er filed Todd Charles concerning complain- Bell the wrote a letter contacted *9 Murray appear anything case he believed 7. There does not to be in the instant Todd complaint made a Charles Halbert complaint regarding record that Es- filed a Chandler regarding However, in connection the Chandler Estate nothing in in tate 2005. However, with Mr. case 04-206 in 2004. supports testimony. There is the record Judge Halbert did reference involve- disagreement no between ment in a letter dated in the Chandler Estate the Commission that 2005, 22, primarily February related to notice of Simes's actions in the ceived action, disciplinary case a different 05-123. Ligón, Stark in October Womack, investigator Lance for the Com- Ashley Higgins in March disciplinary hearing in mission testified him, following Simes’s actions he would have differently acted be- Mayor Johnny fore Judge regard West Helena Weaver’s Arnold and with complaint against Judge relating to Consent Order made with the Committee Bell, police give fired chief Vincent OS- Professional Conduct. We case this letter, argument little Again, 123.8 At credence. the conclusion Mr. commu- nications by Halbert wrote: Mr. Halbert or Mr. Ligón, which occurred be- irregular inap- am other aware of lifiI fore Higgins letter dated March propriate judicial conduct on behalf of did not simply require notice to your I have attached for they Simes because result review, a copy pleadings filed by “action” Commission following Chandler, the estate Quincy Phillips an investigation. While the 117Commission County No. Probate P-76-10A. Those admittedly failed notify Judge pleadings speak themselves. ninety within days of the Halbert and Also, noted, already as was the Commis- complaints, CPC action taken sion received com- copy a forwarded against in the form of an ad- plaint Judge Arnold sent to the CPC charges monishment formal based on October 2005. The record does not reflect not, however, those complaints. This did that Judge was notified nine- within preclude the taking Commission from for- ty days of the Halbert letter or of the CPC mal after filing action a subsequent communication. complaint, like the Higgins letter in the 7(A) Rule tak- provides “any action” instant where properly notice was en by the investigation Commission after given. shall be to the judge. Spe- communicated sum, no action against was taken cifically, contemplate the rules an investi- Judge Simes as a result of Halbert action, gation before whether that action letter or of the letter from the CPC. The be an admonishment or for- triggering complaint mandatory notice mal charges. clear to It is this court that Higgins was the letter because that letter any investigation following the Halbert let- did lead action the Commission with ter or the letter did not CPC lead to action Allegations, its Statement of notice Commission, by the as contemplated that instance was time- 7(A) 8(D). Rules ly. We hold no violation the nine- It was only Ashley Higgins after the hence, and, ty-day rule occurred no dis- letter to the Commission dated March 8(D) missal was warranted under Rule that “action” the form of formal based on these facts. charges, termed of allegations, statement was taken against Simes. B. Rule 9 Violation Simes, however, been had notified of argues Simes also that the Higgins by the 9(C) by failing Commission violated Rule letter dated March within the a probable-cause schedule determina 8(D). ninety days required Rule tion promptly Higgins letter was complains that had he in March 2006. The Commission pending complaint known about a responds required, Simes was *10 06-260, 8. pending This as well as 05-112 and before the Commission. facts, currently same related to the is that is no re- 8(H), Higgins expressly “there respond to the ter said Rule under allega- you respond to twenty receiving quirement that days within complaint Simes complaint.” Judge is tions this notice letter of it. That was notice not did serve Commission, 27, correct that the Commission March dated from the from allegations with a Commission, him statement According to the 2006. 2008, January 30, and did the director until file until Simes an answer did hearing until probable-cause hold a years after almost two March 21, March 2008. receiving complaint. notice ^Nevertheless, due-pro- Judge Simes’s |,sWe the Commission’s initially believe argument point this must fail. We cess misleading. point is In argument on this the Rules con- first believe it fails because 2006, that “after initial provided its rules a template probable-cause hearing prompt origi- investigation evaluation” of complaint after a sworn or statement of was complaint, nal not from the date of the allegations, and there whether was quired determine This Higgins complaint.9 was unsworn proceed and then either sufficient cause to of allegations The was done. statement (1) complainant to file a “de- to ask the and considered prepared by the director tailed, signed, complaint” sworn meeting at a on Janu- by the Commission pre- to have the or director 18, then ary was noti- 2008. allegations. Ark. Jud. pare a statement 2008, letter, 30, dated that 8(E) fied R. & Comm’n proceed had decided to (2006). The that the Com- Rules stated determination, which was probable-cause immediate- mission to serve set to occur on March 2008. ly complaint with a of the sworn or copy allegations by Commis- statement significant is question There that 8(G). R. After receiv- sion’s director. Id. delay Higgins com- occurred between the copy complaint of the sworn or prepara- plaint of March was re- allegations, statement allegations tion of Jan- statement a written answer within quired file then, 2008. is uary question, The whether 8(H). 9(C) days. twenty Id. R. Rule delay prejudiced Judge that Simes. required the Commission to schedule a argues preju- he was that- af- promptly probable-cause determination delay Lazora Cor- diced this because complaint either a statement ter sworn or Daphane granddaughter, Barksdale- bin’s allegations the director. time, disappeared during and he Arp, that argument before this unable to call her as a witness. He implies that its March 2006 letter conclusory makes statement Ms. regarding the unsworn Barksdale-Arp provided “could have detail 8(H)’s Higgins complaint triggered Rule happened information about what [sic] and, requirement respond among things, Lazora Corbin other days. The record with twenty why through within makes she not follow her clear, however, the March replace 2006 intent Simes as law- complaint letter did not a sworn or It clear to yer include the estate.” fact, court, however, may the let- allegations. statement of whatever disagree ting We must occur after sworn setting probable-cause prompt determi- allegations by director under statement of 9(C) 8(E). nation under Rule to the unsworn refers Rule Rather, Higgins complaint. prompt set-
83 |2nCorbin’s not lawyers motivated Ms. actions did his could their present case in change Judge obligations was, fact, given Simes’s under full. Simes Li the Code Judicial Conduct. ninety longer present than minutes to his result purely Simes’s misconduct Moreover, case. Judge Simes concedes of his actions inactions. and that Lance “eventually Womack did dis- close the information sought be elicit- argument point Simes’s on this ed.” unsupported and In undeveloped. Thompson, this court declined to address due-process challenge then-Judge by V. Sanction Thompson sufficiently it was where summarize, To this agrees court developed with citation to authority. with Simes
Ark. at at 223. Despite S.W.3d 4(G), 4(E), violated Canons delay lengthy preparing Commission’s Code of Judicial Conduct. We further re allegations against Judge statement of ject arguments that his due-pro unquestionably notice cess were rights violated based on failure Higgins complaint in a man- timely him of notify within ninety Moreover, Judge ner. this shows days, Commission violated Rule to him prejudice court this caused and that the proceedings were tainted and, delay, accordingly, reject we due- part bias and misconduct on the process argument point. on this question Commission’s staff. The now is C. Bias and Misconduct by court adopt whether the should the recom Staff mendation that Judge Simes be perma nently removed from the bench. further claims Findings the Commission’s Recom matter, As an initial the facts of this “predetermined mendations were distinguishable case are from those in the tainted the bias and misconduct of the case, Thompson only which is case staff and Commission members.” permanently where this has removed supports allegation by saying a sitting from the bench since the rules, that the Commission violated its own Commission was In Thomp- established.10 others, “clustered” arbi this case son, following the court listed the facts trarily ninety only allotted are to considered in removal cases: minutes present other among (a) allegations. whether the misconduct is an iso- Judge Simes adds that instance or investigator, pattern Wom- lated evidenced Lance ack, conduct; evade truth “attempted responding
fully” at the hearing. (b) nature, and frequency extent arguments We hold that with- these are misconduct; of occurrence of the acts discussed, out merit. previously As ¡a(c) whether the misconduct occurred Commission did violate its rules. courtroom; in or out of the Furthermore, the record shows (d) whether the misconduct occurred permitted Judge postpone many hearings judge’s official or in attempted capacity life; private accommodate his schedule so that he and passed pro- the voters of directed to "make Arkansas mission and this court implementing” Amendment Com- which established the cedural rules amendment. *12 84 CPC, has a
(e) ing caution and he has acknowl- to a judge whether against him. On Octo- history oc- of sanctions recognized that acts edged or a Pub- curred; ber Simes received Adjustment lic from Informal the Commis- (f) has evidenced whether he his robes appeared sion because modify change his con- an effort to profit, for the cover of music CD sold duct; exploitation of position which was an his of service on (g) length time |s^May On satisfy personal desires. bench; filed a Letter (h) there have been whether Judge Simes for Admonishment judge; about complaints this campaign funds dur- personally soliciting (i) upon has the effect the misconduct ing campaign, his 2004 reelection judi- of and for the integrity occurring misconduct ciary; and Finally, on capacity.11 official November ex- (j) the extent which received a Letter satisfy person- his ploited position his for fail- Reprimand from the Commission al desires. elec- ing promptly enter an in an order (cit- 278-79, at Ark. 16 226 341 at S.W.3d found tion case. Proceedings Against ing Disciplinary in the explanations that his for conduct Anderson, 426 138 Wash.2d 981 P.2d instant case “were not be believed.” (1999)). case, Judge Thompson, Former in his us, the In the case before misconduct violations, in- had many committed serious handling of the regarding Judge Simes’s cluding: pat- does not evidence a Chandler Estate (cid:127) con- Failing subrogation honor tern of the Chandler misconduct. While he and client had executed tract many years, ongoing for there (in the company with an insurance practiced allegation is no $30,000). amount almost fiduciary law or served as other (cid:127) report outside Furthermore, Failing properly the misconduct cases. income and financial interests to not occur in the the Chandler Estate did Supreme clerk of Arkansas Court recognize that there are courtroom. We State, in violation Secretary and the pending other matters before Commis- Arkansas Anno- of Canon Code but involving sion because 204(b). tated sections 21-8-203 and at they junc- have not been resolved ture, we not consider them. will (cid:127) Issuing fifty-nine over insufficient hand, operating from his fund over
On the other Simes has checks years refusing accepted responsibility any wrongdoing period five Estate, agree- compensate payees prose- other than until through Eighth transmitting messages, This solicitation court is aware that Circuit committees, per- campaign over their Appeals subsequently Court held that cer- their signature. the record provisions tain of the Minnesota sonal It is unclear from solicitation disci- violated First in this case whether Simes was Code of Judicial Conduct White, plined Republican Party soliciting from attor- v. contributions Amendment. See However, (8th Cir.2005). neys person. clear that In that F.3d 738 plaintiffs challenged only they fact Simes's violated the Arkansas conduct it oc- prohibited of Judicial Conduct the time were under the Code from solicit- Code groups large and from curred. contributions *13 DANIELSON, J., threatened to issue part eutor’s office dissents in in part. concurs warrant.
(cid:127) pay person- federal Failing to 1994 WILLS, J., participating. tax, financially despite being al income HANNAH, Justice, JIM Chief able to do so. concurring part in dissenting part.
(cid:127) a motor Operating vehicle a ficti- I concur in majority’s conclusion violation plate, tious license of Ar- findings of the Judicial kansas section 27-14- Code Annotated and Disability Commission l^that 4(G), 4(E), L.T. Simes violated Canons (cid:127) |^Depositing 2 client in a of the Cannons Judicial personal funds of Conduct are However,
account,
erroneous.
I dissent
rather
than an identifiable
majority’s
from the
suspend
decision to
trust account.
I
Simes.
believe that the Commis-
It
is clear that
the instant
sion
recommending
was correct
misconduct of
Simes does not rise
permanently
Simes should be
engaged
level of misconduct
Maintaining
moved from the bench.
pub-
then-Judge Thompson.
lic confidence in the integrity
judi-
ciary requires no lesser sanction.
,
We
that the conduct of
conclude
warrant permanent
does not
remov-
The matter raised
the Commission is
al from the bench.
conclude further
We
solely
confined
conduct
appropriate
that the more
sanction
concerning
the bench
Es-
suspension
pay.
conduct
without
notes,
the majority
tate. As
Dis-
Judicial
suspension
of
will continue until
end
&
cipline
v.
his term on December
after
course, resign judgeship can and vacate his (a) whether the misconduct is an isolat- time, allow would him pattern ed instance or evidenced a practice conduct; law. (b) nature, frequency extent and suspension Order of entered. Motion to misconduct; acts occurrence
strike extraneous material record de- nied. (e) acknowledged whether the has occurred; recognized or the acts Special Justice RON SHEFFIELD (f) whether the has evidenced an joins opinion. in this conduct; change modify effort HANNAH, C.J., CORBIN, J., length on the (g) the of time service bench; concur in part part. and dissent in [,7This over and
(h)
repeated
com-
misconduct
have been
whether there
years
he took the
for the six
judge;
about this
over
plaints
only
It
Jesse
when
bench.
ended
(i)
upon
has
the effect the misconduct
retained and obtained an
Daggett
B.
judi-
of and
integrity
probate
requiring
from the
order
ciary.
personal representative
*14
278-79,16
Thompson,
S.W.3d
Ark.
Estate, to make an account-
the Chandler
majority’s
the
conclu
agree
I
with
at 226.
his
to
administration
Thompson are distin
that the facts of
sion
This misconduct is
the Chandler Estate.
present
the facts in the
from
guishable
event;
rather
demon-
not an isolated
case; however,
disagree
Judge
I
pattern
of misconduct.
strates
pattern
not involve a
conduct does
The
at issue
misconduct.
misconduct
accepted responsi-
has not
Judge Simes
matter,
all
in one
but it
may have
occurred
only
It was
bility for his misconduct.
Judge
while
repeated over
over
attorney Daggett became involved
when
Judge
judge.
circuit
Simes served as
to account
Judge
began
try
Simes
than the
was different
Simes’s conduct
had
money
for the
he
ad-
Thompson.
For that
conduct discussed
Only
Estate.
ministration of the Chandler
reason,
are
I
the two cases
believe
Special Judge
hearing
before
W.H.
after
comparable.
2005, in
court
“Dub” Arnold
became involved
never filed an
Judge
found that
Simes had
his elec-
Estate in 1976
Chandler
ordered,
accounting
Judge
as
He
as the
judge.
tion as circuit
served
duty
had
his
to the Chan-
Simes
breached
attorney for
Estate and was
the Chandler
was liable therefore under
dler Estate and
County
Phillips
Probate
appointed
29-52-
section
Arkansas Code Annotated
representative
personal
as
Court
101(c)
an
(Repl.2004),
only
order
probate
Chandler Estate.
he
repay
Chandler
was entered
attorney
directing
court
an
entered
order
Estate,
the Estate
Judge
pay
receive,
personal representa-
as
money
long.
owed it
He
he had
for so
tive,
payments for
the annual rental
a total
pay
to and did
was ordered
Judge
property.
real
Chandler Estate’s
$24,183,which included interest.
a circuit
Simes became
course of the
I also note
1,1997.
hearing,
Simes filed a
above-noted
as
Upon
election
circuit
amount of
petition for
fees
accounting
Simes did not file an
nor did he
$13,940.77.
allegedly
It
included fees
an
probate
obtain
from
order
during
the time that
earned
personal represen-
discharging him as
serving
as a circuit
tative
the Chandler Estate.
been
previously
Simes has
sanc-
did not offer
reasonable or
of Judicial
explanation
why
as to
he failed to tioned
violations
Code
credible
out,
majority pointed
an
him or for
As
discharging
obtain
order
Conduct.
a Public Informal
The rental
Simes received
failing
accounting.
to file an
in 2004
Judge Adjustment
to be
checks continued
sent
December,
from the
year
and a Letter of Admonishment
Simes each
and each
disturbing is
proceeds
in 2006.
failed to disburse the
heirs Commission
12sMore
Judge Simes re-
Reprimand
failed
a Letter of
of the Chandler Estate. He also
21, 2008.
ceived on November
accounting
required.
file an annual
as
timely
suspend Judge
enter an order in an would
ninety
Simes failed
Simes for
represent-
had
days
election case.
pay.
without
Arkansas
quarterly report
ed
under
Let me begin
stating that I in no way
Supreme
Administrative Order No.
Court
sanction or
condone
Simes’s failure
3 that he had no cases under advisement
to act
regarding
He
Estate.
subsequently
May
then
entered on
should
removed himself as
signature
an
with a
date of
order
attorney
administrator
for the Estate and
Crumbly,
December
2006. See Willis v.
upon
Ms.
receiving
Corbin’s
In-
letter.
(2007).
370 Ark.
88 Further, he neglected (quoting became 16 S.W.3d at Ark. at Exam’rs, he re- the rental checks Bd. Law anything 266 do v. State Undem becoming except ceived 587 S.W.2d Ark. But, practice did this failure to act away. the active file them (analyzing “engaged removed). law”)) original of law or an admis- (emphasis practice constitute say law” of law? I cannot “practice practice have further defined We sion law, the Arkansas Con- Regulations practice in our that it did. To Board: tinuing Legal Education of a nature to legal had to render a service do, my opin- another. That he did as of law shall be defined practice rendered, ion, he failed to act behalf regardless where any service Furthermore, there- Estate. compensation whether no evidence for, legal knowledge legal presented or involving legal of a nature rendered service representation, It shall include advice. counsel, bench. during another his time advocacy, whether provision of And, merely court, acknowledges, majority in or rendered with out duties, of record remaining liabili- listed as regulations, to the rights, ties, equate practice of law. requir- of one does relations business *16 shall encom- legal services. It urges While private positions in pass public all checks is further evi- acceptance rental may attorney upon be called which the law, practice he Judge dence of upon the law or pass to examine in as capacity payments received those act, document, any or law. legal effect of Estate, not as at- an administrator of Legal Reg. Bd. Continuing Ark. Education Moreover, the evi- torney for the Estate. (2009). § 2.02 that, in the dence record demonstrates checks, Judge received certain canon, while Simes urges Judge Simes As them file them nothing he did but he a lack of evidence that that there is facts, I simply cannot away. Under these becoming judge. law after practiced ever ensure say Judge Simes’s failure to However, the Commission submits acceptance filing his withdrawal or in engaged practice Judge Simes practice constituted the of rental checks with- “by to ensure that he had failing law law, legal or of a nature to another. service proceedings further drawn from he to have Estate once claimed Chandler majority’s troubled I am further Addi- been terminated Corbin.” [Ms.] Judge engaged Simes observations that tionally, Judge points the Commission he corresponded of law in that practice acceptance of rental Simes’s continued regarding his role probate with the clerks prac- of his payments as farther evidence checks, that and the rental “he worked tice of law. Estate actively” with the for the accounting, and that he argument The is nonsensi- to construct an appeared our before the circuit court while cal. It is clear from definitions na- Part of Simes’s defense legal judge. that a service of practice of law charges that he the instant was “practice ture must be rendered indeed Here, he it would negligently took no action because feared law.” Simes |¡^interpreted law. In- practicing fail remove himself as failed act. He did deed, have come true. It seems representing fears letter; precisely howev- me that actions are upon receiving Ms. Corbin’s these er, taken under such before he those we would wish place that failure took well [S1 Each of these was docket an equates circumstances. actions as administrator to ser- situation; remedy vice. “Serve” “to clearly attempt an has been defined as hold discharge duty one office: or surely no would rather function: act in a capacity.” Webster’s Third Int’l ignored situation toto. More- New (2002). Dictionary over, question represented himself and did Judge then is Simes act way as an adminis- acting as counsel for anoth- trator Arnold, serving judge? while a circuit appeared er when he before The answer is no. clearly as the Estate had other counsel at that time.1 To find that actions constitut- these that, The record before us demonstrates practice serving ed the of law while he was while Simes received certain rental penalize Judge as a and to Young checks from Mr. for the Chandler simply misinterpretation them is office, property after taking misapplication of the canon. For these deposit them remit them reasons, my opinion it is that the Commis- Instead, Chandler heirs. he turned over finding sion’s violated Daggett to Jesse the uncashed checks 4(G) Canon erroneous. had received. Nor does record contain any acted, evidence that k(E)
II. Canon
way,
behalf of the
Estate or
4(E)
administrator,
capacity as
while a
Canon
of the Arkansas
Code
provides,
pertinent
Judicial
Conduct
said,
being
That
argues
part:
perform pro-
Simes’s failure to
A
shall not serve as execu-
fessionally or
diligence required
with the
tor,
personal rep-
administrator or other
by the fiduciary relationship he undertook
*17
resentative,
trustee, guardian, attorney
damaged the Estate and
con-
undermined
fiduciary,
other
the
except
bench,
fact or
thereby violating
fidence
estate, trust,
4(E). However,
person
a member of
clearly
Canon
canon
service,
then
judge’s family,
only
if such
speaks to one’s
not one’s failure to
service
with
proper
will
interfere
I fail
logic
serve.
to see the Commission’s
performance
judicial
duties.
in its assertion that
failure
perform
fiduciary equates
as a
ser-
4(E)(1)
Ark.Code Jud. Conduct Canon
a fiduciary
vice as
Canon
violation of
(2006). Here, Judge
argues
that
4(E).
while he
listed as administrator of the
was
Estate, he did not “serve” as administrator
Finally, Judge
peti-
submit a
a judge.
while he was
He contends that
tion for fees that included one hour and
because he refrained from
involvement
spent
fifteen minutes of time
while he was
However,
I cannot
say
Estate
he became a
that
|34the
petition
there
submission of
is no evidence that he served as
fee
constituted
Instead,
as an
I
I
service
administrator.
agree.
administrator.
probative
find that submission much more
undisputed
that
bit
Simes’s violation of
2.
Canon
mained
as the
listed
administrator of
say
being
Chandler Estate even after he became a
Because I
that merely
cannot
However,
judge in
I
say
1997.
cannot
that
listed or named as an administrator consti-
simply being
service,2
I say
listed or named on the court
tutes
nor can
that the fail-
4(G)
1.
specifically permits
Canon
the failure
While
to move
court to remove
pro
appointment
act
se.
one’s self from a case or from an
such
regarding
information
assuming matter when
by Judge Simes after
to act
ure
earlier,
during
separate in-
an admin-
disclosed
service as
was
bench constituted
him;
acknowledges
istrator,
vestigations
I
hold that
Commis-
would
part
investigation of another
Judge Simes’s conduct
that as
of its
finding that
sion’s
4(E)(1)
regard-
was
errone-
Bell
complaint,
it contacted
violated Canon
matter. The Commis-
ing the Chandler
ous.
sion, however,
“simply
that it was
contends
Rights
III. Due-Process
information
investigation of
involved
opening a case
or inferences before
majority
I
with
agree
While
Simes, reflecting
the [Commission’s]
were not
due-process rights
Judge Simes’s
with the disci-
obligation
proceed
not to
violated,
I
for different reasons.
do so
investiga-
process
proper
without
plinary
addition,
me
it is clear to
Commis-
of the information for-
tion and evaluation
rules;
with its own
comply
failed to
sion
Finally,
to it.”
warded
however,
noncompliance
its
did not violate
wholly
Simes has
failed
urges
due-process rights.
Judge Simes’s
any prejudice resulting
to demonstrate
Meaningful
A.
Notice
violation of the notice
alleged
from the
requirement.
investiga-
Judge Simes asserts that
of his involvement
tion
previously
This court has
held
began
well be-
the Chandler
gover
removal
a commissioner
in 06-171
fore
when
discipline
attorneys are
nor and the
filed. He contends that the Commis-
adversary
quasi-criminal
of a
proceedings
investi-
gave him no notice when the
sion
charged
one so
is there
nature
actually begun
and that he was
gation
procedural
process,
due
fore entitled to
Specifi-
by that lack of notice.
prejudiced
including
charge.
See
fair notice
fail-
cally, he
the Commission’s
avers that
Stilley
Supreme
v.
Court
'l
Comm.
Prof
Ark.
&
ure
abide
Jud.
Conduct,
S.W.3d 395
370 Ark.
8(D)
R.
him
prejudiced
Comm’n
Ruffalo,
re
390 U.S.
(citing In
by 13r,denying
of dis-
right
him his clear
*18
(at
(1968))
1222,
88 S.Ct.
dance with these information complainant submitted a or otherwise Discipline Disability & Jud. Comm’n [wArk. brought to the attention of the Commis- added). 8(A)-(D) Here, (emphasis R. that, true, stating sion facts if would be admits that it received earlier grounds discipline for shall initiate and investigation information conducted an inquiry relating the conduct of Judge Simes and his involvement in the mo- judge. The Commission on its own Estate, Chandler but asserts he re- may inquiry tion make timely complaint ceived notice of the a conduct of by attorney Commission received Ashley Screening. Upon B. a receipt of Higgins, which served as the basis for case complaint other as to information 06-171. might grounds conduct that constitute judge, of a discipline the executive My review reveals record discreet, a prompt, officer shall make 2004, perhaps early as eval- investigation knowledge of Judge had Simes and the confidential guidelines approved uation. Under Specifically, Chandler matter. the record Commission, ini- light following reflects the evidence evaluation, tial the ex- investigation (1) knowledge: by Judge an affidavit Kath- ecutive officer shall determine whether regarding leen Bell in the matter events proceed there exists cause to sufficient stating matter, her recusal from the probable to a cause determination. (2) referencing but a complaint;4 The officer all executive shall dismiss letter from Halbert re- Charles complaints sufficient cause garding both the Chandler matter and an- proceed is found. A as to report involving other matter dated matters shall (3) so dismissed be 2005; letter February dated furnished meeting. to the Commission its next March from the complainant, any, and the Bell, requesting responsive letter if given shall thereof, has been notice case; on the status of the Chandler Estate if writing the dismissal. (4) to the a letter Bell Com- informed Notice Optional Judge. mission, C. to the stating dated March Notice that a has she recused from the mat- had inquiry been or an ter; undertaken letter from the Committee *19 may any time. given Conduct, be at dated October Professional 2005, forwarding Mandatory Judge. copy
D. Notice to of Arnold’s the Estate; finally, Chandler Except cause with order in the good shown and Commission, of Hig- the the no ac- the March 2006 letter Mr. approval of of gins. language tion other dismissal of the com- Guided the Rule it than thought the 3. I note that rules were the both earliest allusion to Chandler the same the thus, 2005; apply 2004 and the same to may rules have from Estate matter come alleged by complaints the to case Charles Halbert 2004 in 04-206. years. brought have been in those undated, While Bell’s affidavit was the heading that it the affidavit reveals was in According testimony Wom- of Lance “Complainant to 04-206.” reference No. ack, investigator, any complaints, us nor dismissal from before earlier appear the record would prior two thereof.5 specific that were least there in-
lascomplaints
regarding
court,
on the record before this
[fflBased
Estate, specifi-
volvement
clear me that the
failed
it is
to
Commission
22, 2005
from
cally,
February
letter
set forth in Rule 8
procedures
to follow the
31, 2005 let-
Mr.
and the October
Halbert
respect
complaints
earlier
with
to
two
on Professional
ter from
Committee
received in 2005. Howev-
the Commission
Yet, the record
to reflect
Conduct.
fails
er,
say
the Commission’s
I cannot
ever notified
procedures
failure to follow its
was “so
complaints.
Simes of these
While
process as to raise the
violative of due
Commission,
per-
to Rule
pursuant
was
may
concern that fundamental fairness
investiga-
preliminary
mitted to conduct
Kirby,
In
re
have attached.”
N.W.2d
complaints,
tions
each of the earlier
into
(Minn.1984)
that,
(holding
despite
that the
appear
does not
record
given
concern
the insufficient notice
about
by the
proper procedures were followed
respondent
Board
with
earlier
respect
Commission
these
its
ignoring
Judicial Standards’s
own rules
complaints.
process).
was not
Proce-
violative
due
rule,
those
According
based on
that a
be
process requires
judge
dural due
evaluations, the
investigations
initial
that the
given
proceedings,
notice
“deter-
director of the Commission was to
heard,
opportunity
be
given an
be
mine
there
sufficient
whether
exist[ed]
proceedings against
and that the
de-
proceed
probable
cause to
to a
cause
Graziano,
In re
fair. See
essentially
& Dis-
termination.” Ark. Jud.
(Fla.1997).
tions rules, pline be should be determined imposed, was until after the to ant the it not to appli- and reasoned upon through served reasonable allegations of was statement of the text the [of canons] was an- cation required that he depend on such factors the seri- should swer.8 of whether transgression, the ousness court, it on the record before this Based pattern improper activity of there is any delay in certainly appears to me that activity improper of on oth- the effect the was conducting hearing the probable-cause system.” judicial Thompson, or on the ers as it not making, of the Commission’s did 227 (quoting 341 Ark. 16 S.W.3d at allegations serve the statement Conduct). Preamble, Jud. Ark.Code twenty-two some Simes until receipt majority, after of the initial com- noted the we have fur- months its As said, being plaint by Higgins. recognized Mr. That certain factors be con- ther lapse me not violate determining appropriate is clear to that this the sidered due-process misconduct, procedural judicial including: Simes’s sanction (1) rights. Again, process re- procedural due is an whether the misconduct isolated given quires judge conduct; that a be notice of the or pattern instance evidenced given (2) be proceedings, judge extent, that the nature, frequence the heard, (3) opportunity pro- misconduct; be and that the of the acts of occurrence essentially ceedings judge whether the misconduct occurred in or out Graziano, supra. already (4) fair. As set courtroom; See whether miscon- above, requirements forth were met those official judge’s capaci- duct occurred in (5) instant Simes’s life; ty private or his whether were vi- procedural due-process rights not acknowledged recognized that judge has (6) delay probable-cause olated his occurred; judge acts whether the hearing. change an effort or modi- has evidenced (7) conduct; fy length of time of his reasons, I with the For these concur bench; whether there service due-process majority complaints |44about prior have been rights were violated. (9) the effect the misconduct has judge; upon integrity Recommendation [WIV. (10) the judiciary; and extent to which the then, turn, I Commission’s recom- exploited position satisfy that Judge mendation Simes’s actions com- personal See desires. id.
pel removal from his of circuit position It is clear that Simes’s actions evident from the record It is assuming were handling Simes’s choices in bench epitome expects Estate matter while on the of what one from an attor- However, profes- ney. bench were not the most sanctioned our prudent sionally majority or were the that a Office of Professional for those choices Conduct lapses That additional judges lapses judgment. his situation would made. However, place judgment is not our standard for de- took termining disciplinary action. We have took office is also most evident and does “[wjhether disciplinary ac- of sanction. Like the require observed some sort brief, twenty days of In its shall answer within Commission states allega- required answer the com- the sworn or statement of days. plaint twenty wrong. A Jud. & within It is tions. See Ark. 8(H). plain reading the 2006 rules reveals that Comm'n R. *22 however, I majority, agree majority cannot with the As acknowledges, recommendation that way Simes’s misconduct is in no as egre- judgment gious Simes’s are of the sort lapses Thompson. as that Accordingly, require removal from bench. taking his a reasonable applica- and reasoned Certainly, canons; one of Judge Simes’s situation is tion of the text of looking lawyers which many who assume the seriousness of transgression, note, that, bench again, should take but whether pattern there was a of improper activity, does not warrant removal in this case. and the effect the improper activity judicial on others or sys- on the evi- presented While tem; examining set factors forth dence of other sanctioned behavior above, I law, as must under our case it is appear it does not that he my opinion that Judge Simes violated only previously engaged the actions that Canon and should be suspended nine- served as the basis of this does nor ty days pay. without appear actions Simes’s greatly judicial system. His reasons, affected For all I foregoing place misconduct took outside of the court- dissent spectfully part and concur in room, capacity not his as a and part. acknowledge Simes seems
the acts occurred. The acts in this case
appear been do to have isolated and
appear
require any
change
additional
modification on
nor do
part,
Simes’s
9. Even if I with the would still tion, with the sanc- 4(G) 4(E), examining Thompson Simes violated Canons I factors.