IN
THE SUPREME COURT OF ARKANSAS
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L. Lynn Hogue, Individually; and the People of the State of Arkansas, Upon the Relation of L. Lynn Hogue |
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vs. |
Case No.99-1451
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James Neal, in His Capacity as Executive Director
of the Arkansas Supreme Court Committee On Professional Conduct; and Carlton
Bailey, Sue Winter, Dr. Patricia Youngdahl, Richard A. Reid, Kenneth Reeves,
Bart Virden, and Win A. Trafford, in Their Capacity as Members of the
Arkansas Supreme Court Committee On Professional Conduct
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PETITIONERS’
REPLY TO RESPONDENTS’ |
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COME NOW L. Lynn Hogue
(“Professor Hogue”), individually and as a member in good standing of the
Arkansas Bar Association, and the People of The State Of Arkansas, upon the
relation of L. Lynn Hogue (collectively “Petitioners”), and tender this Reply
to Respondents’ Brief in Response to Petition for Writ of Mandamus, as follows.
ARGUMENT
Respondents make three points in their Response. None is correct.
First, Respondents assert that Neal has the discretion to ignore complaints against attorneys for as long as he likes. Common sense belies that assertion. It also fails as a matter of law because the Procedures of the Arkansas Supreme Court Regulating Professional Conduct of Attorneys at Law (“Disciplinary Procedures”) require Neal to make and act upon a decision about each complaint promptly and efficiently. §§ 3(A), 3(B)(2).
Second, Respondents assert that the Committee has discretion to ignore complaints against attorneys by judges. As a matter of common sense that second assertion is farther afield than the first. Further, this assertion, too, fails as a matter of law because the Disciplinary Procedures give Neal and the Committee no discretion as to how to treat such writings. § 5(A).
Third, Respondents assert that because the disciplinary process is privileged, they must deny all the allegations in the Petition. Privilege with regard to Professor Hogue’s complaint, however, cannot be asserted against Professor Hogue. Even if it could, secrecy in this particular case serves no beneficial purpose because the allegations and the identity of the accusers are already public. On the contrary, in this particular instance cloaking these proceedings in secrecy is harmful because it erodes confidence in the disciplinary system and allows it to operate ineffectually. Regardless of the purpose or effect of secrecy, moreover, stonewalling is improper because secrecy could be maintained by other, judicially acceptable, procedures.
Respondents maintain that mandamus is inappropriate in this case because the Disciplinary Procedures permit Executive Director Neal to ignore complaints against Arkansas attorneys for as long as he likes. Here, he has ignored Professor Hogue’s complaint for fifteen months. It is obvious and straightforward, however, that Neal has no such discretion. Common sense and well established law necessitate the conclusion that Neal and the Committee must act. Respondents’ cited case law, moreover, does not support their assertions to the contrary.
Neal cannot, as Respondents assert, sit and do nothing when complaints are filed against Arkansas attorneys. If Neal were allowed to block all progress on disciplinary matters by refusing even to decide whether complaints should become formal, no complaint would ever reach the Committee. Likewise, if Neal were permitted to refuse to serve formal complaints when they issue from judges, the Committee would never have the chance to vote and discipline offenders. The Committee would be reduced to a government subsidized boondoggle and the public’s faith in Arkansas’ system of discipline for those who most directly affect the laws would be destroyed. This Court’s supervision by writ of mandamus in necessary to prevent further injury to the public confidence. Neal and the Committee are pledged to protect this system, not to fiddle while it burns.
Contrary to Respondents assertions, the Disciplinary Procedures make plain that Neal must not ignore complaints. Instead, Neal’s duties are clearly established. First, Neal must decide “promptly and efficiently” whether each incoming complaint alleges any violation of the ABA Model Rules of Professional Conduct (“Model Rules”). Disciplinary Procedures §§ 3(A), 3(B)(2). Second, if there is an allegation of a Model Rules violation, Neal must decide “promptly and efficiently” whether that allegation is supported by sufficient evidence. Id. Third, if Neal determines there is no allegation of a Rules violation or that there is not enough evidence, Neal must inform the complainant by letter so that the complainant may request a review of that determination within twenty days. Disciplinary Procedures, §§ 3(A), 3(B)(4)(a).
Petitioners do not dispute that Neal has the discretion to decide that a complaint does not allege a Model Rules violation. Likewise, Neal has discretion to decide that there is not enough evidence to support a complaint.* But, Neal must decide. Further, he must do so “promptly and efficiently.” Disciplinary Procedures §§ 3(A), 3(B)(2). He has no other choice. In this particular regard, therefore, he has no discretion at all. That Neal has discretion as to what choice he makes is immaterial since this petition seeks merely to compel him to make a choice. In their argument, however, Respondents appear to have confused the existence of discretion with the duty to exercise it.
Although mandamus will not lie to determine what choice Neal makes, it has been settled for a hundred years that mandamus is appropriate to force him to choose. Hanley v. Arkansas State Claims Commission, 333 Ark. 159, 164, 970 S.W.2d 198, 200 (1998)(“We have also held that although the writ cannot be used to control or review matters of discretion, it may be used to force an official to exercise that discretion.”); Saunders v. Neuse, 320 Ark. 547, 551, 898 S.W.2d 43, 46 (1995)(“The writ of mandamus will not lie to control or review matters of discretion; it will lie only to compel the exercise of that discretion.”); Rolfe v. Spybuck Drainage Dist. No. 1, 101 Ark. 29, 140 S.W. 988, 989 (1911)(“Mandamus will not lie to control or review the exercise of the discretion of judicial officers, but such remedy can only be invoked to compel such officers to exercise such discretion and act.”); Maxey v. Coffin, 94 Ark. 214, 126 S.W. 729 (1910)(“It is well settled that mandamus will lie against judicial officers to compel them to act, but not to control their decisions.”); Garland P. & D. Co. v. State, 94 Ark. 422, 127 S.W. 454 (1910)(“The writ of mandamus . . . will not be granted to review the exercise of any discretion of any officer or board; it can only be invoked to compel the officer or board to exercise such discretion.”); Branch v. Winfield, 80 Ark. 61, 95 S.W. 1007 (1906)(“Mandamus will compel a judge to act when he should act and refuses, but it will not be used to tell him how to decide a judicial question.”). Neal and the Committee have a job to do. They cannot simply sit and do nothing.
The cases Respondents rely upon do not support their argument. One supports granting the petition in this case, one is fully consistent with doing so, and the other two are inapposite.
State Child Enforcement Unit v. Grimmett, Sheriff of Lafayette County, 292 Ark. 523, 731 S.W.2d 207 (1987) supports granting the petition in this case as to Professor Hogue’s complaint and as to Judge Wright’s Order. In Grimmett, this Court reversed a refusal to grant a writ of mandamus, thus compelling a sheriff to seize a home. This Court held that there being a proper writ of execution, the Sheriff had a plain and specific non-discretionary duty to seize the home. That holding supports compelling Neal to make the necessary decision about Professor Hogue’s complaint. Like the sheriff, Neal has a plain and specific duty: to decide whether the complaint alleges a violation and has evidentiary support. That holding also demonstrates that because the Disciplinary Procedures unequivocally require Neal and the Committee to treat Judge Wright’s Order as a formal complaint and serve a formal complaint on the President, mandamus will lie to force them to do so.
Boone County v. Apex of Arkansas, Inc., 288 Ark. 152, 702 S.W.2d 795 (1986) is perfectly consistent with granting the present petition. The case concerned allocation of a limited and insufficient number of new beds among nursing homes. The administrative body charged with the task denied the petitioners’ application for beds. The petitioners then improperly sought to use mandamus to achieve judicial review of that discretionary administrative decision, even while an administrative review was already pending. Of course, their petition failed. Conversely, in the present case Neal has steadfastly refused to make any decision, and until he does, no administrative appeal is even possible. Mandamus is therefore appropriate to compel that decision so that Professor Hogue may appeal it if necessary.
Sexton v. Supreme Court Committee on Professional Conduct, 297 Ark. 154A, 761 S.W.2d 602 (1988) and Manila School District Number Fifteen v. White, 338 Ark. 195, 992 S.W.2d 125 (1999) are simply inapposite. Neither case is of interest because whereas Sexton and White were disputes about which law to apply, in this case there is no such dispute. In Sexton, an attorney whose license had been suspended sought to force the Committee to apply the ABA Standards for Attorney Discipline and Disability Proceedings. This Court, however, had never adopted those Standards. As a result, obviously, the Standards did not apply and mandamus was inappropriate. 297 Ark. at 154C, 761 S.W.2d at 603. Conversely, in White, the school district had alleged the Teacher Fair Dismissal Act did not apply, but this Court found it did. Therefore, this Court affirmed issuance of the writ of mandamus. 338 Ark. at 201, 992 S.W.2d at 129. In stark contrast with both Sexton and White, in this case there is no dispute that the Disciplinary Procedures apply.
Responding to Count II of the petition, which seeks to compel the Committee to treat Judge Wright’s contempt Order as a formal complaint, Respondents assert that section 2(C)(1) of the Disciplinary Procedures grants the Committee discretion in that regard and “does not mandate any action on its part.” That assertion is incorrect because other sections of the Disciplinary Procedures clearly establish non-discretionary duties as to how to handle Judge Wright’s Order. Specifically, section 5(A) requires “The Committee shall accept and treat as a formal complaint any writing signed by a judge of a court of record of this State, regardless of whether such signature is verified” (emphasis added). Judge Wright of the Eastern District of Arkansas is a judge of a court of record in Arkansas and she signed the opinion. The Committee has received copies of that signed opinion from the Southeastern Legal Foundation and from Judge Wright herself. Mandamus, certainly, will lie to compel an official to perform acts which are purely ministerial, such as these in section 5(A), even if that official has discretion in other matters, such as those in section 2(C). See Wells v. Purcell, 267 Ark. 456, 465, 592 S.W.2d 100, 105 (1979).
Therefore, mandamus is appropriate to compel the Committee to “accept” Judge Wright’s writing and treat it as a formal complaint. To treat Judge Wright’s Order as a formal complaint, Neal “shall assign the case a docket control number,” § 3(B)(2), and Neal “shall furnish to the attorney complained of a copy of the formal complaint,” § 5(E)(1) and, if that attorney responds, Neal “shall provide a copy of the attorney’s response to the complainant,” § 5(F)(3), and so on. Further, Neal must carry out these purely ministerial tasks “promptly and efficiently,” § 3(A), which, at least as to providing a copy of the response, means within ten days, § 5(F)(3). Neal has no discretion whatsoever in these matters.
Respondents contend that section four of the Disciplinary Procedures mandates absolute silence on their part regarding the status or existence of the proceedings initiated by Professor Hogue’s complaint and Judge Wright’s contempt Order. They contend that they “cannot specifically admit or deny any of the allegations” and that therefore they “must respectfully deny each and every allegation of the petition.” Response to Petition for Writ of Mandamus, 2nd numbered para. Of course, that means they deny that James Neal is the Executive Director of the Committee. They deny that Professor Hogue is a member of the Arkansas Bar Association. They deny that Judge Wright held President Clinton in contempt of court. All of these denials are absurd and result from Respondent’s misunderstanding of the meaning and purpose of the Disciplinary Procedures’ confidentiality provisions and the means available to enforce them.
These proceedings are not, as Respondents assert, absolutely “confidential.” Instead, as the passage Respondents quote states, the Committee’s “actions . . . in connection with an alleged violation of the Model Rules . . . are absolutely privileged.” Disciplinary Procedures, § 4(A)(2)(emphasis added). Privilege and confidentiality are not synonymous. Whereas all parties are bound to protect confidentiality, the option to invoke privilege resides in the party to whom the privilege belongs. In this case, as to the status of his complaint, the privilege belongs to Professor Hogue. See, e.g. Younger v. Solomon, 113 Cal. Rptr. 113 (Ct. App. 5th Dist. 1974)(acknowledging complainant’s right not to be publicly identified). Consequently, the Committee cannot invoke the privilege to keep Professor Hogue in the dark about the status of his own complaint.
Any other interpretation leads to perverse results. For example, a client who complained to the Committee that her lawyer absconded with a trust fund is obviously entitled to know whether Committee plans to do anything about it. Under Respondent’s interpretation, however, the Committee has a duty not to inform the wronged client. That result is self-evidently distorted and proves Respondents’ interpretation unsound.
Other provisions in the Disciplinary Procedures demonstrate the fallacy of Respondent’s assertion that these proceedings must be kept secret even from complainants. For example, the Committee has an affirmative duty to inform a complainant if his complaint is rejected. Disciplinary Procedures, § 3(B)(4). Neal and the Committee must also give complainants an opportunity to read and reply to any response from the attorney they accuse. Disciplinary Procedures, § 5(F)(3). These provisions shatter the overarching assertion that the Committee must shroud these proceedings from Professor Hogue. Therefore Neal and the Committee cannot assert secrecy to prevent Professor Hogue from ensuring his complaint goes forward.
Continued secrecy in this particular case serves no beneficial purpose because the allegations are already public. One purpose of secrecy is to protect the accused attorney from public knowledge of the accusations. Attorney Grievance Commission of Maryland v. Strathen, 411 A.2d 102 (Md. 1980). Secrecy does not serve that purpose here because the accusations in question have already been published by the United States House of Representatives on September 10, 1998, and hashed over in televised impeachment proceedings. Judge Wright’s Order also was widely published. Another purpose of secrecy is to protect a client’s private legal affairs from public disclosure, or to protect the identity of accusers who do not wish to be known. Younger v. Solomon, 113 Cal. Rptr. 113 (Ct. App. 5th Dist. 1974). Secrecy does not serve that purpose here because none of the accusers has ever been the President’s client and Professor Hogue has no objection to being identified as the accuser.
A third purpose of secrecy in proceedings before the Committee is to ensure proper conduct of the investigation. The Florida Bar v. Simon, 171 So.2d 372 (Fla. 1964). In this case, however, secrecy appears to be allowing the investigation to proceed anything but properly, or indeed, not to proceed at all. That result erodes public confidence in the attorney disciplinary system and threatens the profession’s privilege to govern itself. In fact, in view of the heightened public interest in attorney discipline for such egregious and well known offenses as those in this case, protection of the public and promoting confidence in the attorney disciplinary system counsel against continued secrecy. In re Dunietz, 687 A.2d 206 (D.C. 1996). When, as here, the existence of the complaint is public and the complainant has no objection, such that there is little confidentiality to protect, rules protecting secrecy in disciplinary investigations need not be strictly enforced. In re Charges of Unprofessional Conduct Against N.P., 361 N.W.2d 386 (Minn. 1985).
If this court finds in spite of foregoing that secrecy
must be maintained as to the general public in this case, then this Court
should order Respondents to answer the petition by admiting or denying the
allegations under seal. See, e.g. Massameno v. Statewide Grievance
Committee, 663 A.2d 317 (Conn. 1995)(sensitive material contained within
response to grievance complaint can be sealed upon motion). Petitioners have already requested by
separate letter to the Chief Justice that, to the extent necessary, these
proceedings remain removed from the public eye. Letter from L. Lynn Hogue to Chief Justice W.H. Arnold, dated December 13, 1999 and filed
simultaneously with Petition for Writ of Mandamus. Petitioners stand ready to accede to appropriate measures
necessary to fulfill the purposes of section four of the Disciplinary Procedures.
Petitioners cannot agree, however, to Respondents’ continued
stonewalling under the guise of discretion, confidentiality or privilege, which
is precisely the sort of conduct that necessitated the complaint and contempt
Order in the first place.
CONCLUSION
For the foregoing reasons, Petitioners respectfully request that their Petition for Writ of Mandamus be granted, or in the alternative that Respondents be compelled to admit or deny the allegations of that Petition, openly, under seal, or in camera, as this Court deems proper.
Respectfully submitted,
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L. Lynn Hogue,
Arkansas Bar No. 79165
SOUTHEASTERN LEGAL FOUNDATION, INC.
Tower Place Suite 2515
3340 Peachtree Street N.E.
Atlanta, Georgia 30326
Tel: (404) 365-8500
Fax: (404) 365-0017
IN THE SUPREME COURT
OF ARKANSAS
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vs. |
Case No. 99-1451
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James Neal, in His Capacity as Executive Director
of the Arkansas Supreme Court Committee On Professional Conduct; and Carlton
Bailey, Sue Winter, Dr. Patricia Youngdahl, Richard A. Reid, Kenneth Reeves,
Bart Virden, and Win A. Trafford, in Their Capacity as Members of the
Arkansas Supreme Court Committee On Professional Conduct,
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CERTIFICATE
OF SERVICE
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I, Stephen P. Gilmartin, do hereby certify that I have served a true and correct copy of the forgoing, Petitioners’ Reply to Respondents’ Response to Petition for Writ of Mandamus, upon Lynn Williams, Esq., Staff Attorney (Trial), Arkansas Supreme Court Committee On Professional Conduct, 625 Marshall Street, #2200, Little Rock, Arkansas 72201, in his capacity as attorney for Respondents, by Federal Express, tracking number 814035192706, this 22nd day of December, 1999.
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Stephen P. Gilmartin, Associate Counsel
SOUTHEASTERN LEGAL FOUNDATION, INC.
Tower Place Suite 2515
3340 Peachtree Street N.E.
Atlanta, Georgia 30326
Tel: (404) 365-8500
Fax: (404) 365-0017