The opinion
W.H. “Dub” Arnold, Chief Justice, concurring in part; ustice, disagree with my fellow justices that disbarment is not the appropriate sanction in this case. The appropriate sanction is not only important to the appellant in this case, Mr. Wilson, but it is ultimately important to the entire legal profession, in that this court has previously held that appellant’s conduct constituted a violation of Rule 8.4(b) of the Model Rules of Profession Conduct, which regards the commission of a “criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects.” See Wilson v. Neal, 332 Ark. 148 , 964 S.W.2d 199 (1998) (noted as Wilson IV by my colleagues). Mr. Wilson was convicted of five counts of “knowingly” converting money and property that belonged to the federal government in violation of the law. This court agreed with the trial court that these convictions, even though they were misdemeanors, involved dishonesty and a breach of trust, and seriously undermined “the confidence of the public in our legal profession.” Id. at 161 , 964 S.W.2d at 205-06 , (quoting In re Lee, 305 Ark. 196 , 806 S.W.2d 382 (1991)).
The power to regulate and define the practice of law is a prerogative of the judicial department as one of the divisions of government. See Neal v. Wilson, 316 Ark. 588 , 873 S.W.2d 552 (1994); Weems v. Supreme Ct. Comm. on Prof. Conduct, 257 Ark. 673 , 523 S.W.2d 900 (1975), reh’g denied, 257 Ark. 685 -A, 523 S.W.2d 900 (1975). Our responsibility is set forth explicitly in Amendment 28 to the Arkansas Constitution, which states: “The Supreme Court shall make rules regulating the practice of law and the professional conduct of attorneys at law.” This court accepted the responsibility assigned to it by the Constitution and set the standards high in order to protect the public, as well as the integrity of the legal profession. We have held that truthfulness, honesty, and candor are “necessary characteristics for establishing a candidate’s good moral character and hence his or her fitness to practice law.” Shochet v. Arkansas Board of Law Examiners, 335 Ark. 176, 187 , 979 S.W.2d 888, 894 (1998) (quoting Application of Jenkins, 467 A.2d at 1088).
Each year, law school graduates who have passed the bar examination appear before the Supreme Court to take the oath of office. A portion of that oath states: “I will, to the best of my ability, abide by the Model Rules of Professional Conduct and any other standards of ethics proclaimed by the courts. . . .” These same graduates are reminded that they have become a part of the legal system and that they must be good stewards for the profession. What example is set when lawyers violate the rules, and the proper sanction is not imposed? Lawyer professionalism will be taking a tremendous toll on public trust and confidence.
Our court has demanded of the lawyers of this State high standards; and, as late at June of last year, in Neal v. Hollingsworth, 338 Ark. 251 , 992 S.W.2d 771 (1999), this court held that a violation of trust and dishonesty would not be tolerated. We said in Hollingsworth:
This type of misconduct can only be characterized as serious, substantial, and egregious. Under these circumstances, we hold that the trial court clearly erred when it imposed a mere six-month suspension from the practice of law. The only appropriate sanction commensurate with Mr. Hollingsworth’s actions is disbarment.
Id. at 276 , 992 S.W.2d at 784 .
In the case now before us, my colleagues admit that when applying appellant’s conduct to the American Bar Association Standards for Imposing Lawyer Sanctions, disbarment clearly appears to be the appropriate sanction, based on appellant’s actions. In light of our decision in Hollingsworth, they attempt to distinguish and minimize Mr. Wilson’s conduct based, primarily, upon the fact that the victim in Wilson’s case was merely the government, and not a client, as was the case in Hollingsworth. I find that distinction to be rather offensive, given that the government is the “people”; and those “people” happen to be you and me.
It is hard for me to believe that my fellow justices could conclude that Mr. Wilson’s conversion of government property and conspiracy to defraud the federal government of well over $700,000, among other crimes, .warrants any sanction less than complete disbarment — particularly in light of our decision in Hollingsworth. I might also point out that Mr. Hollingsworth, unlike Mr. Wilson, was neither charged, convicted, nor served time in the penitentiary for his actions. It is clear that Hollingsworth is, indeed, distinguishable from Wilson; however, in my opinion, Wilson is more egregious than Hollingsworth.
Finally, I must take exception to my fellow justices’ logic regarding the reason disbarment for a term of years would be an inappropriate sanction. They state that if this court were to disbar the appellant for a term of years, rather than a lifetime disbarment, that fixed-term disbarment would be tantamount to a complete disbarment, since appellant would have to apply for reinstatement under Section 7K of our Procedures and would never be readmitted because the very basis of his disbarment is conduct involving dishonesty. What? This analysis is illogical.
In other words, it is apparently the opinion of my fellow justices that the appellant should not be disbarred for a term of years, even though his conduct warrants disbarment, because that very conduct would keep him from ever having been admitted to the bar in the first place. What better argument for complete disbarment than that very rationale? — let us not disbar him, because based on his conduct, if we do so, he could never be readmitted to the bar. That is ludicrous and is a pathetic reason for imposing a lighter sanction. I believe my fellow justices have lost sight of the fact that it is a privilege to hold an attorney’s license, not a God-given right.
In my opinion, the decision in this case in no way advances the public trust and confidence in our profession. I believe a dangerous precedent is being set, moving the standard which guides the actions of attorneys to a considerably lower level. I, therefore, respectfully dissent.
Special Associate Justice JAY F. SHELL joins.