*1 673 no had conditions right require they imposed, under Also, could have and Vassaur Peek Kennedy. performance bond, which a supersedeas avoided by posting performance do. chose not to they
Affirmed. Fogleman Byrd, Harris, JJ., disqualified C.J., Henry and not Woods participating. Special Justice Winslow Drummond join opinion. Special Justice Sam A. WEEMS v. THE SUPREME COURT COMMITTEE ON PROFESSIONAL CONDUCT 900 523 S.W. 2d 74-143 delivered Opinion February Rehearing Opinion Denial of [Supplemental 16, 1975, p. 685-A.] June *2 Hankins, D. Wilson and Stuart W. Zachary appellant. Bramhall, P. Gill Thomas M. appellee. John M. Conway, Charles Special appellant, Justice. Weems, Sam A. has from a of the Circuit appealed District, Court of Arkansas Northern rendered on County, November him con- finding guilty unprofessional law, duct at an license attorney’s canceling him from in of law in this barring practice engaging State. the pleadings record the entire including
From facts case, we find pertinent in this of testimony transcript as follows: be Con- on Professional Court Committee The Supreme “Committee”, after receiv- duct, as the hereinafter referred information, alleged an commenced investigation ing Weems, a licensed at- A. Sam misconduct professional of law principally in Arkansas torney engaged and Arkansas County. Prairie County misconduct and that notified of the charges A said Committee. hearing would be held before hearing where the appeared had before the Committee *3 thereafter the and were fully presented person, charges of Circuit Court Arkansas filed a in the Committee complaint had, Division. A trial Northern being judgment County, of this is the entered which subject against appellant, (3) three The gross complaint charges appeal. alleged aris- I misconduct against appellant; Charge Minton, referred to from Roe sometimes ing representation “Minton”, as from II Leroy, Charge arising representation Houten, to as Vivian Van sometimes referred Catherine and Houten”, “Van and III representation Charge arising Thurston sometimes National Insurance Company, hereinafter referred to as “Thurston”.
Roe Minton Charge. Arkansas, Hazen, Minton, Roe employed him in a on a health insurance claim represent appellant Mutual the Prudence Company, policy Casualty against The hereinafter referred to as “Prudence”. appellant thereafter, Minton, filed suit Prudence for as attorney 1970, in favor on secured a consent and January $5,000.00. for Prudence was Roe Minton placed a received and on May appellant receivership $5,000.00, to the order from the receiver check payable Weems, did Sam A. “Roe Minton and Attorney”. Appellant funds, Minton of the these Roe receipt not notify promptly of Roe Minton’s an endorsement the same caused day on it the draft and name to be on placed Carlisle, Bank account at the Citizens checking appellant’s Carlisle, Arkansas, referred to hereinafter as “Carlisle Bank”. Roe Minton did not authorize endorsement draft. be contends otherwise will hereinafter (Appellant discussed.) account in Carlisle Bank checking not identified as trust account and was the depository other funds to the were checks belonging appellant drawn on said account by appellant payment clients, monies owed ex- other appellant personal Thereafter, Minton, and business Roe penses, expenses. bills, order to borrowed Twelve Hundred Dollars pay ($1,200.00). In with Roe Min- January, appellant, Minton, ton and Mrs. at a cafe in Vails De Bluff discussing Minton’s insurance claim stated: “Now understand you your we not there but are it until money up going accept they the back and interest on those back pay you premiums are did premiums they supposed pay.” later, that he had Two received weeks say money. 22, 1972, Roe Minton died January without pay- receiving ment from the On the appellant. Saturday following Minton, burial of Roe Mrs. Minton called the if Roe Minton’s death would interfere with collec- inquire tion from the insurance and the company stated, ma’am, “No I have contacted them already settle, are should be they ready you getting check in a few did When the check not arrive from the days”. Minton, *4 Minton, of son Roe appellant, went to the Dwight Sears, Prudence, office of Mr. Max the receiver for at which $5,000.00 time he was shown the check for made original by Weems, to receiver Roe Minton and Sam A. at- payable which had been in Weems’ torney, Sam account in deposited 17, Thereafter, Bank Carlisle on 1971. on May February 24, 1972, the to be caused delivered to Mrs. Minton appellant $3,333.34, a check to her in the amount drawn on payable Weems, the trust account of Sam A. with the nota- attorney, tion thereon “insurance settlement less fees”. From the legal $5,000.00 date of the receiver receipt 17, 1971, Prudence on $3,- until check for May delivery 24, 1972, 333.34 to Mrs. Minton on there were oc- February casions when on the funds and Bank deposit Carlisle banks, all other accounts of in other including appellant Bank, trust account in the Farmers and Merchants did $3,333.34 have sufficient to funds therein owed pay or his Roe Minton estate. Roe to use have the authority did not
The appellant in order borrowed and the Minton’s money, appellant honored. could be Mrs. Roe Minton check sent to in Farmers and account had a trust appellant Arkansas, time the Arc, from the in Des Merchants Bank ac- Sam Weems’ personal was receiver’s check knew the and the count until appellant February account. a trust purpose Van Houten
Thurston Charges. Houten, Van wife Houten and Vivian Van Catherine Houten, Van were Leroy injured respectively daughter motor vehicle while belonging Leroy driving of a Loretta Thompson. Van Houten as a result collision as an Van Houten attorney employed appellant Leroy in their his wife and Van Houten and daughter represent Van Houten’s claim Loretta Leroy Thompson. against National Insurance automobile was insured Thurston it in a it represent Company, employed for to the motor vehicle claim damage subrogation who insured Allstate Insurance Loretta Thompson, 14, “Allstate”. On hereinafter referred July Company, Court as 1970, filed suit Prairie Circuit attorney claims, and as Van their for the Houtens claim Thurston. Van Houten Leroy subrogation suit, ad- and the to the filing Subsequent for a the claims for Allstate settlement negotiated justers Houtens, claim all Van including subrogation 1971, wrote three drafts On Allstate Thurston. September draft delivered the same to the One and thereafter appellant. $5,300.00 “Leroy in the amount payable Houten, and as husband and Van Catherine individually wife, Arkansas; and their Sam Route attorney, Stuttgart, $2,- Arc, Weems, draft in amount Des Arkansas”. One *5 Houten, Route 500.00, to Van was “Vivian payable Weems, Arc, Des Arkansas; her Sam attorney, Stuttgart, $1,205.93, in the amount Arkansas”. draft One Insurance to “Thurston National Company, payable Arkansas; at- Rock, and their Street, Little Markham West draft Weems, Arc, Each Arkansas”. Des Sam torney, and all inwas full settlement any thereon that it reflected 17, 1970, in Lit- on . accident . . out claims arising June on own name Rock, endorsed Arkansas. tle appellant and without thereafter, notice without drafts and each said Houten, Van of Vivian the names endorsed authority, and Leroy National Insurance Company, Thurston on their Van Houten respective Van Houten and Catherine names were written clients’ The endorsements drafts. made not have been by appellant to so as appear endorsements. bank would order that the question his account in the drafts in all three appellant the endorse- of the clients authorized Bank. None Carlisle Bank the Carlisle account in ment of drafts. The checking Roe Minton used for the was the same account deposit draft. into his the three drafts
At the time appellant deposited funds Bank and commenced account at the Carlisle using own, nor Thurston had as his neither the Van Houtens been settlement, advised aggregate by proposed appellant settlement, nor the the total amount participation 28,1971, Allstate each client in the settlement. On October that she confirm letter to Vivian Van Houten requested 30, 1971, to draft of her and the issuance September $2,500.00. Houten Weems in the amount Sam Leroy.Van had no Van Houten that she behalf Vivian replied advice as to of the draft and “why knowledge requested if offer settlement has claim has not been settled and any father’s car been made by you damage my regard Thereafter, to the to mother”. my Leroy regard injury to execute a Van Houten was requested $6,- for the for all the Van Houten claims sum release 000.00, amount offered which pay by per- Mr. Van Houten refused the offer and thereafter sonal check. for asked Van Houtens to execute release $7,800.00. as to how Van Houten became suspicious Leroy the claims. much Allstate Leroy willing pay Butram, ad- met with Sam Weems Van Houten John Allstate, on which time Mr. December at justor on behalf of what he was Butram willing pay explained
679 Houten claims of the Van all for the settlement Allstate did not Van Houten claim. Mr. agree Thurston and the 1971, 30, met with Mr. on December and thereafter settle for the first time saw in Little Rock and in his office Butram 30, on had issued September drafts Allstate copies 1971, endorsed and by which had been Van Houten secured in his account. Mr. and thereafter as his of the withdrawal $7,800.00 for the amount claim Allstate settled his the Van Houtens. The which Allstate appellant repaid paid 22, 1971, $7,500.00 on December and the Allstate remaining $300.00 thereafter. shortly ever draft
No Thurston saw original representative it, no of Thurston Allstate representative payable of the draft authorized endorsement by appellant. that claim had been settled Thurston had no knowledge 1971, 14, Mr. until when were so advised December they Butram of It was not until Allstate. January $803.96 Sam A. Thurston sum check Weems paid Bank, amount drawn on his account at the Carlisle which the balance due Thurston on its total claim after represented therefrom one-third as fees. (1/3) attorney’s subtracting Thurston never to the on Professional Committee complained Conduct.
The trial court Mr. violated concluded that Weems had 1962), Statute §25-401, Arkansas Canon Canon (Repl. 9- (6); 9-102(A) (2); and 1-102(A) (4), Rules
Disciplinary 102(B) (1), (3) on (3), (4), each of the three Charges, also Canon Rule 5-106 on II and Disciplinary Charges case, III. From our examination of entire record in this we court, unable to of the trial its are say findings thereon, entered were against weight judgment evidence, 1 in violation Canon I. Viola- except Charge 1 was not I. tion Canon Charge alleged contends that scope appellate should be than heretofore review wider existing appeal court, circuit and cites from the decisions and chancery Court, Rule V of the Rule Regulating Supreme . follows: “. . Conduct of at Law Attorneys novo the record On the matter shall be heard de upon appeal, trial and this court shall made judge, pronounce before should been as in its have pronounced opinion, this means below.” contends that Appellant appellate *7 court is in no the court committed below way findings evidence, if and should make even the supported by indepen- fact, dent its own conclusions from the findings drawing evidence, where there is a conflict in direct facts and except the demeanor and witness only credibility which a decision could result. remaining gauge upon Arkansas, In Hurst vs. Bar RulesCommittee theState 202 1101, Ark. (1941), SW 2d 697 the court held that for disbarment of an are not criminal proceedings nature, but civil in their and as such are the rules governed by actions, to all civil and it is hence that the applicable required material be such cases established allegation only by of the evidence a reasonable prepondernace beyond Further, that, doubt. the court “it said: seems to us in view of disbarment, rules present procedures relating court on should even to the fin- appeal greater give weight of the lower tribunal. . .”. We reaffirm the dings teachings case, the Hurst supra.
This Court’s task is to whether the deter- proper inquire mination of the trial court was contrary weight evidence, and must affirm the of the trial court if it is not of the evidence. preponderance contends that he notified Roe appellant promptly $5,000.00 receiver of Minton of check receipt Prudence, he had oral from Minton to and that en- authority dorse his on check and the same and to hold name deposit until a collection could be had. A close complete does not the contention reading transcript support testified, Appellant “My arrangement appellant. Mr. would come in that he Minton was that when a check would I would it and we would have to it it and let sign sign clear before funds. We notified Mr. Min- we distributed any after, . ”. ton of this as I recall . . one and he called me right follows, Further, he testified as “As testimony, in appellant’s letter, (defendant’s exhibit soon as he received this particular ”. . . . he called me 10), 17, $5,000.00 on check May received
The appellant date to 1971, in a letter from as reflected states, this date “I am your the receiver which receipt $5,000.00 Mr. claim.” re: Minton’s in the check amount $5,000.00 endorsement check for reflects was therefore deposited Bank on Citizens May that he date. testified gave on or before that The appellant 10, notification, to Roe Minton exhibit written defendant’s thereafter Minton called authority and that gave Had the the check. endorse deposit Minton as he the letter to written and mailed claimed, him of of the check May receipt notifying the check Carlisle the same he day Bank, such Roe Minton call made by authorizing deposit any *8 made the written notification had could have been after only received Minton mail. been by by
Also, exhibit which the defendant in- defendant’s trial, was dated which the troduced May letter. The was not the true date the stated appellant that usual with to also reveals testimony regard or to a was to a tissue make make photocopy copies copy exhibit was neither a tissue the letter. The original proffered letter nor the a copy photocopy original original was letter. It a of a tissue The learned trial photocopy copy. notice, no fin- credence defendant’s judge gave purported that it no doubt fabrication and been made was having ding as in an an afterthought attempt implement cover-up. exhibit, to this all the evidence with we Considering regard that circuit not in error in that conclude was finding judge Roe no notice funds was Minton receipt given that was unauthorized endorse and appellant in his the check account. deposit
With to notice of funds and authori- regard receipt Houtens, Van to endorse the check to the Van ty payable of receipt had no notice of the they Houtens testified the endorsement of did not authorize that they funds check testified that by appellant. Although Van Houten he did notice authorized by Leroy give checks, case, the circumstances in- endorse ali Van Houten wrote Allstate in- the fact that Leroy cluding that of his his settlement and wife and about quiring circuit lead us to conclude the was not in judge daughter, error in no notice to and no from the Van authority finding Houtens. that, Thurston, testified he had
Appellant regard reason of with Thurston wherein authority by prior dealing he them and had him to endorse authorized represented they checks to them. did not other payable Appellant produce evidence Thurston. The prior representation represen- tatives of had Thurston testified that never matter, no Thurston to this and that one in represented prior had authorized the endorsement authority by appellant the check account. stated deposit appellant’s They further that the had of first knowledge receipt they check was when were notified of it Allstate. We con- they clude that the circuit not in error judge finding no to nor there was notice from Thurston. authority contends that the committee must elect either to Ark. Stats. Ann. 25-411 and proceed according § § 25-413 1962) or the Rules (Repi. Regulating Conduct and must such election state Attorneys, formally. X of Rule the Rules Professional Conduct Regulating is as follows: Attorneys
“RULES AND SUPPLEMENT TO STATUTES. The of, rules shall not be deemed exclusive but as adopted to, the statutes the State Arkansas. supplemental The committee or invoke the statutes may proceed hereunder if it do should elect to so.” has no cited that Appellant authority support position bar, must in election be stated. It is the case at that apparent Rules, the Committee chose to as the proceed provided by and a formal statement election is unnecessary.
The and define the of law is a power regulate practice of the as one of the divisions prerogative Department Judicial
683 National, 48, 224 Ark. Bar vs. Union Arkansas government. 28 to the Constitution (1954). 2d 408 Amendment SW reads, the Arkansas State the rules shall make regulating Court
“The Supreme conduct of attorneys law and professional practice at law.” rules has substantive relating
The Court adopted en- to the conduct and rules relating professional procedural with thereof. The acts forcement Legislature regard are be of law con- and defining practice regulating and not in to be in aid sidered judicial prerogative National, thereof. Arkanaas Bar vs. Union supra. derogation next that “essential facts” contends Appellant record, that must in the the Rules jurisdiction appear “shall forth the facts that specific set complaint require misconduct”, Monks vs. citing Duffle, constituting alleged that (1924). 163 Ark. SW The complaint alleges Conduct, Court Committee Professional Supreme Court, in the Circuit Court of authorized charging Arkansas a licensed County, appellant, engaged and Arkansas Coun- law Prairie County further It states misconduct. ty, gross after a of which the filed hearing complaint notice, which and the received and at appeared, matters to the were charges fully presented pertaining statutes, Canons, the committee found violation of further Rules. charges Disciplinary complaint misconduct guilty gross professional third stated con- stated client representing party claim, for a time at a stated a stated stated cerning period to said and that with his conduct regard representation place, statutes, Canons, Rules violated certain and Disciplinary “essential facts” re- Court. The proscribed by Supreme Monks record. vs. quired by Duffle, supra, appear con- facts “set forth specific Does complaint IV of the Rule misconduct” required alleged stituting Conduct Attorneys? Rules Regulating *10 of the complaint three charges each final paragraph Cannons, statute, and of a violation particular alleges of the three each final Rules. The paragraph Disciplinary in his to the acts represen- relates clearly charges matter. Each charge client a particular of the stated tation sufficient facts” with clarity “specific informs defense, and, once the his him to in order to prepare permit determined, of the matter judicata res to constitute is charge IV of the Rules Rule Regulating consideration under is satisfied. Conduct Attorneys that Rule IV contends that requires The appellant misconduct, i.e. of the basis complaint original com a member or that statement affidavit complaint not As information, We do is agree. had mittee required. Rules, 465, 266 SW 2d 223 Ark. out in vs. Bar Armitage pointed 818 before the com (1954), purpose procedure without from those serious mittee is to sift substantial charges a hear serious, allow the where and implication, com formal if found in charges by violation bring ing, of a the creation Com have as their The rules purpose plaint. conduct of ethical standards mittee to maintain highest if be served there is can best law. This the practice purpose activities of of information access regarding free easy the rules that Bar. It is for this reason permit members source. Investigation information any investigation without an affidavit the Committee be commenced may form of the in or the client. The nature signed by being in to commence the committee formation which causes the of the source is not statement jurisdictional vestigation not required. contends that respect alleged The appellant l-102a(4)4 (6)6, Rules violations Disciplinary in con- which would show “engaged evidence fraud, or deceit misrepresenation, duct dishonesty, involving not of conduct” is sufficient other adverse or any engaged or or character to constitute required certainty degree In all three there was We do not charges, agree. culpability. of funds. The endorsement active concealment receipt use was deceitful and the money of the drafts Roe Minton he dishonest. own Advising purposes when he had at a time already to accept going
685 the same in his bank account to obtain seeking $6,000.00 a release for Van from the Houtens at a time when $7,800.00 had received him been in his already placed dishonest, deceitful, fraudulent, bank account was and a mis- of the true facts. The intention to representation permanently clients funds deprive appropriated necessary, and the action of the with his clients was dealing fraud, deceit, one and dis- continuing misrepresentation, had honesty. the benefit the use of the clients’ them its use to their deprived damage.
The trial entered a disbarment order. judge permanent Although charges are proved against serious and law, demonstrate an unfitness we feel practice that in view of all the circumstances of the case the judgment should be modified.
We conclude that Sam A. Weems should be disbarred as an at law for a three period years period November the date the Trial Court entered, and that his license and law in practice right State Further, Arkanaas should be revoked. should Weems, Sam A. at disbarment, the end of the period make application law, readmittance to the State practice Board of Law Examiners shall at that time determine his fitness to law. is so
It ordered. Byrd William K. Ball, concurs. Special Justice, Holt, JJ., disqualified.
685-A
Supplemental Opinion Denial of Rehearing
delivered June 523 S.W. 2d *12 William K. Each of the Ball, Special parties Justice. has for and after petitioned carefully rehearing, considering these we have reached the conclusion that both petitions should be denied. which is appellant’s petition rehearing, primari- a reiteration of
ly some he made does arguments previously, not move us to further words.
In its petition rehearing appellee forcefully urges short of disbarment will with nothing permanent square of this Court handed down Opinion 1975. February that the in this is well Agreeing appellee’s position respect taken, we feel our earlier compelled supplement opinion we reached decision explain why to disbar the appellant for three instead of years permanently.
685-B — is a one before us and it record good Considering — find has been we that the unhesitatingly guilty nature and misconduct of a serious adversely professional Therefore, it is the his fitness to law. upon reflecting Court, of this as the enforcing agency charged duty standards responsibility maintaining highest and ethical conduct licensed lawyers prac- by Arkansas, tice law in the dis- State take appropriate measures. ciplinary
It has been to our satisfaction that the proved appellee, in addition to of conduct Ark. Stat. being guilty prohibited by Ann. 1962), 25-401 violated certain of the (Repl. § Rules set forth in the Code Disciplinary committee of the Responsibility prepared special American Bar Association and this recently adopted by In Court. Statement” it code “Preliminary prefacing said, “The one found severity judgment against guilty Rule should be Disciplinary determined violating character of the offense and the attendant circumstances.”
Certain attendant circumstances not in mentioned our earlier but relevance opinion having tending mitigate (1) this severity are the lack judgment against lawyer evidence of or misconduct on his past professional personal (2) the fact that his part, misconduct which professional on these fell short brought criminal in charges being nature, (3) the fact that his clients received all moneys entitled, which were (4) and they generally cooperative actions this the course of the lawyer during investigation the appellant. “* * *
In our earlier it was stated that the ac- opinion tions of the with his clients was a con- dealing fraud, deceit, one of dis- tinuing and misrepresentation, we are convinced honesty.” Actually, appellant’s issue, conduct in inexcusable, professional resulted in though inattention, the main from and and not disregard neglect, from a conscious desire or his plan permanently deprive clients Thus, of their even money. conduct though reflects on fitness to law and im- adversely practice 685-C nonetheless it several should not have
proper respects, deceit, been “a fraud, characterized as one of mis- continuing and representation, dishonesty.” to indicate should not be decision interpreted take “soft” or or will hereafter this Court has taken position some middle disciplining a “hard” stance or ground It evidence the Court. does members of the bar of wayward on its that the attorneys this Court’s dedication requiring and maintain fulfill rolls their responsibilities professional of ethical conduct. Each disciplinary standards highest other; any stands separate apart proceeding that, of Sam A. Weems we here in the case what are saying him misconduct while the charges while case have been satisfactorily proved, persuasive presented, been disbarment has considering permanent the offenses and attendant circumstances character for a three will served disbarment be best period justice our with his readmittance as ordered in earlier opinion, years of law conditions subject specified being in that opinion.
Petitions denied. Charles M. concurs. Justice, Conway, Special Byrd Holt, JJ., participating.
Charles M. Special Justice, concurring. Conway, I concur that the should be denied. petitions rehearing
I would not the Trial Court modify findings the acts as from in- characterizing attention, resulting disregard neglect. three (3) was for a disbarment judgment period the at- readmittance conditioned
years being upon determination at readmittance torney’s application time of his fitness to law. Such re- practice that should the desire law practice quires attorney again
685-D his disbar- that he maintain law during competence In of all ment be tested as other applicants. period required addition have the burden would applicant proving of the Committee Admissions that it satisfaction he would with the Conduct reasonable expect comply Court. adopted Responsibility that those conditions of are such to assure readmission who law are are admitted to worthy privilege.