Opposition Brief — Sexton v. Arkansas Supreme Court Committee on Professional Conduct

Supreme Court, U.S,

FILED

No. 897 1OSS MAR 8 1990

CLERK

JOSEPH F. SPANIOL, UR,

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER-TERM, 1989

SAM SEXTON, JR. «sunt peeENBEERS Ges er ec ree. Petitioner

VS.

ARKANSAS SUPREME COURT COMMITTEE

ON PROFESSIONAL CONDUCT ..........0220000- Respondent

ON PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF ARKANSAS

RESPONSE TO PETITION FOR

WRIT OF CERTIORARI

STEVE CLARK

Attorney General

By: R. B. FRIEDLANDER

Solicitor General

200 TOWER BUILDING

323 CENTER STREET

LitTLE Rock, ARKANSAS 72201

(501) 682-3637

Attorneys for Respondent

ARKANSAS LEGISLATIVE DIGEST, INC

QUESTIONS PRESENTED

Respondent disagrees with Petitioner’s characterization

of facts contained in the record which form the basis for his

presented questions. Therefore, Respondent would submit the

following:

WHETHER RESPONDENT’S RULES AND PRACTICE

WHICH PROVIDE FOR EVIDENTIARY SUBMISSION

TO IT PRIOR TO A HEARING (AT THE ACCUSED

ATTORNEY ’S OPTION), OFFENDS THE DUE PROCESS

CLAUSE OF THE FOURTEENTH AMENDMENT. OF

THE UNITED STATES CONSTITUTION?

II.

WHETHER THE RESPONDENT COMMITTEE MAY

SUSPEND AN ATTORNEY’S LICENSE UPON A FIND-

ING OF VIOLATION OF A DISCIPLINARY RULE

PURSUANT TO A “PREPONDERANCE OF THE EVI-

DENCE” STANDARD WITHOUT VIOLATING THE

DUE PROCESS CLAUSE OF THE FOURTEENTH

AMENDMENT TO THE UNITED STATES CONSTI-

TUTION?

Il.

il

TABLE OF CONTENTS

QUESTIONS PRESENTED o.vch ios cccccccsartace

SABRE I CON os 600s 65s kes cadesedeanenes

REASONS FOR DENYING THE WRIT....:.......

Respondent Committee did not violate Peti-

tioner’s due process rights by submitting the case

for disciplinary ruling prior to a hearing as that

was Persscney’s COME. i io 65's ob kao ete esis,

Respondent Committee utilized a ‘“‘preponder-

ance of the evidence”’ in determining Petitioner’s

case and the Arkansas Supreme Court utilized

this standard in its de novo review of Petitioner's

COE ccccccoesviwires ees tdunGehUNEEPASRWES Medes 60%

10

16

16

ill

TABLE OF AUTHORITIES

Page

CASES:

FTC v. Cement Institute, 333 U.S. 683,

68 S.Ct. 793, 92 L.Ed.2d 1010 (1948) ............... 8

Gagnon v. Scarpelli, 411 U.S. 778,

SS S.Cx. W756, 96 L..Ed.2 GS6 (1975) 2.0 wcncccccces 7

In Re Bartlett, 283 Or. 487, 584 P.2d 296 (1978) ........ 1]

In Re Goldstein, 103 I11.2d 123,

Be PR I Ct FEDS vices de cus cnivccecceses 12

In Re Neville, 147 Ariz. 106, 708 P.2d 1297 (1985) ...... 1]

In Re O’Byrne, 298 Or. 535, 694 P.2d 955 (1985)........ 12

In Re Pyatt, 312 S.E.2d 553 (S.C. 1984) ...........eee. 12

In Re Ruffalo, 390 U.S. 544,

OB SAR. TREE, Be EEG.Be 197 (19GB) 2. ccc cecnvcces 5

In Re Richard V. Watson, 482 N.E.2d 262 (Ind. 1985) ...12

Matter of Kali, 124 Ariz. 592, 606 P.2d 808 (1980) ....... 12

Morrisey v. Brewer, 408 U.S. 471,

92 S.Ct. 2593, 33 L.Ed.2d 484 (1972) ............... 7

Muhammed v. Arkansas Supreme Court

Committee on Professional Conduct,

291 Ark. 29, 722 S.W.2d 280 (1987)........ceseeee 13

NLRB v. Donnelly Garment Company, 330 U.S. 219,

236-237, 67 S.Ct. 756, 91 L.Ed. 854 (1947)........... 8

Sexton v. State, 295 Ark. 141, 747 S-W.2d 94 (1988) ...... 4

Sexton v. State, 297 Ark. 154-A, 761 S.W.2d 602 (1988) ...2

IV

TABLE OF AUTHORITIES

Page

CASES:

Sexton v. Supreme Court Committee on

Professional Conduct, 299 Ark. 439,

FES DO BOWER ind cbs Deeicndbabanesss ée 3, 6

Withrow v. Larkin, 421 U.S. 35, 95 S.Ct. 1456,

a ee ere TeeT yy Tree eee eee eee 7

Wolff v. McDonnell, 418 U.S. 539, 563,

94 S.Ct. 2698, 41 L.Ed.2d 935 (1974) 2... 0c .sesciee 12

OTHERS:

ee UR ae er Pee ee ere ree 9

Code of Professional Responsibility

Disciplinary Rule 5-104(A) ............. 10, 11, 12, 13

Rule 7(a) of the Arkansas Supreme Court

Regulating Professional Conduct of

HNN EE 6 aA a ae Cine e de ce erlschdvanekacci 1]

0 em ae IS

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1989

No.

SADE TERT, FR os scr cccecscesscavanpecscessce Petitioner

VS.

ARKANSAS SUPREME CourT COMMITTEE

On PROFESSIONAL CONDUCT .........00ee000- Respondent

ON PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF ARKANSAS

RESPONSE TO PETITION FOR

WRIT OF CERTIORARI

STATEMENT OF THE CASE

On January 23, 1987, Respondent Committee charged

Petitioner with violation of Rules 1.8 and 8.4 of the Model

Rules of Professional Conduct as adopted by the Arkansas

Supreme Court and in effect on that date. The charge was

brought pursuant to a complaint filed with Respondent

Committee. Subsequent to the filing of the complaint,

Petitioner filed a response, but requested no hearing. Pursuant

to Rule 5(B)(1) & (2), Petitioner had been furnished with a copy

of the formal complaint and advised he was entitled to file

a written response in: affidavit form with any supporting

evidence desired. Petitioner was also advised that a hearing

could be requested before any vote was taken by the Committee

and that, in the absence of such request, the file would be sent

to the Committee for vote by ballot as provided in the Rules

of the Arkansas Supreme Court Regulating Professional

Conduct of Attorneys at Law (‘‘Rules’’). Petitioner was also

notified that should he be dissatisfied with the ballot vote, his

right to a subsequent hearing would be preserved. Petitioner

requested no hearing, but instead submitted a response to the

Committee. Copies of the complaint, response and a synopsis

of both were sent to individual Committee members along

with paper ballots. The individual members forwarded the

completed ballots back to the executive secretary of the

Committee who compiled the results. After learning that the

Committee had voted to_suspend his license for a one-year

period, Petitioner Sexton requested a public hearing which

was held August 29, 1987. After that de novo hearing, the

Committee voted to suspend Petitioner's license. That decision

was appealed by Petitioner to the Arkansas Supreme Court for

its de novo review and on March 28, 1988, that Court reversed

and remanded the action of the Committee, stating that

Petitioner could only be charged with violating the Code of

Professional Responsibility, which was in effect at the time he

committed the alleged offense — in 1983. Sexton v. Supreme

Court Committee on Professional Conduct, 295 Ark. 141, 747

S.W.2d 94 (1988) (Sexton I). Petitioner was then charged with

violation of Disciplinary Rule 5-104(A) of the Code of Pro-

fessional Responsibility (““DR 5-104(A)’’) and the Committee

voted to suspend his license for one year after hearing two days

of testimony, on December 3, 1988 a..d February 11, 1989.

Petitioner appealed this final decision to the Arkansas

Supreme Court. As noted in the Petition for Writ of Certiorari,

between the first and final decisions of the Arkansas Supreme

Court, Petitioner filed a ‘‘Petition for Prohibitory aid

Mandatory Relief’’ which was denied on the basis that all

issues presented therein could be raised on appeal. Sexton v.

Supreme Court Committee on Professional Conduct, 297 Ark.

154-A, 761 S.W.2d 602 (1988) (Sexton II).

In its decision dated July 10, 1989, the Arkansas Supreme

Court held Petitioner failed to comply with the terms of DR

5-104(A) and upheld the decison of the Committee to suspend

Petitioner’s law license to practice in state courts for a period of

one year. Sexton v. Supreme Court Committee on Professional

Conduct, 299 Ark. 439, 774 S.W.2d 114 (1989) (Sexton IIT).

On July 28, 1989, Petitioner filed a Petition for Rehearing

with the Arkansas Supreme Court and a Motion for Stay of

Mandate pending his application for certiorari to this Court.

The Arkansas Supreme Court denied the Petition for Rehear-

ing on September 11, 1989, and granted Petitioner’s Motion to

Stav the Mandate pending his Petition for Writ of Certiorari.

This Response to Petitioner’s Petition for Writ of

Certiorari is now submitted.

Respondent notes that there are several misleading state-

ments made by Petitioner in his Statement of the Case.

First, the rules of Respondent Committee do not require

the Committee to vote to take action against an attorney

accused of rule violations prior to holding a hearing. Instead,

Rule 5(B)(1) & (2) provide that an accused attorney may request

a hearing before any vote is taken by the Committee and that

when such a request has been made, no ballots shall be sent.

Rather, a public hearing shall be held in accordance with the

Committee rules.

Further, although Rule 7(A) provides that if the Com-

mittee finds there is ‘“‘a reasonable ground” to believe that the

attorney has been guilty of misconduct it may take disciplinary

action, this Rule was not applied in any of Petitioner's

hearings before the Committee and/or the Arkansas Supreme

Court. Rather, those bodies made determinations based upon a

“preponderance of the evidence”’ standard. This matter will be

more fully discussed in the argument portion of this Response.

Finally, although Petitioner is correct that no provision is

made in the Rules for appeal, prior to the original complaint

being filed against a Petitioner with the Committee, the

Arkansas Supreme Court had certainly allowed appeals to it

from a Committee adjudication. See Walker v. Supreme Court

Committee on Professional Conduct, 275 Ark. 158, 628 S.W.2d

552 (1982). That Court expressly declared a right to appeal

exists in Sexton v. Supreme Court Committee on Professional

Conduct, 295 Ark. 141, 747 S.W.2d 94 (1988).

REASONS FOR DENYING THE WRIT

RESPONDENT COMMITTEE DID NOT VIOLATE

PETITIONER’S DUE PROCESS RIGHTS BY SUB-

MITTING THE CASE FOR DISCIPLINARY RULING

PRIOR TO A HEARING AS THAT WAS PETITIONER'S

CHOICE.

Contrary to Petitioner’s assertion, his petition presents no

issues of significance to another attorney involved in dis-

ciplinary proceedings: As stated, Rules 5(B)(1) & (2), (as found

at Appendix Pg. 44 of the Petition), provide that any accused

attorney may request a hearing before a vote is taken by the

Committee. In the absence of such a request, the file is sent to

the Committee for vote by ballot. Nothing in the mentioned

procedure precludes an attorney from a right to a subsequent

hearing should he/she be dissatisfied with the ballot vote.

Where an attorney has initially requested a hearing, no ballots

are sent and the matter is set for public hearing immediately.

In this case, Petitioner did not request a hearing initially,

but instead chose to submit a written response. That written

response was forwarded to members of the Committee who

proceeded to vote, by paper ballot, on whether violation of

ethical rules had occurred and subsequently, a sanction to be

imposed.

While this Court has recognized Jn Re Ruffalo, 390 U.S.

544, 88 S.Ct. 1222, 20 L.Ed.2d 117 (1968), that the disbarment

of an attorney is a punishment or penalty, it has only stated

that such proceedings are quasi-criminal in nature. Jd. at 550.

Accordingly, this Court has held that an accused attorney is

entitled to procedural due process. The Ruffalo holding has

been adopted and applied in the Sexton trilogy of cases. See

Sexton III, at 299 Ark. 439, 774 S.W.2d 114 (1989), where the

Arkansas Supreme Court stated:

Certainly,we-could never tolerate denial of the right to

practice law without fully affording due process to the

practicing attorney.

Id. at 446.

In rejecting Petitioner's argument that the Committee

should have recused itself from hearing any further evidence as

to-his-ease because some members had expressed opinions

prior to the hearing, by their ballot vote, the Arkansas Supreme

Court noted that the rules of the Committee had been followed

in every respect. It stated:

The mere happenstance that a trier of fact has expressed

an opinion on a matter under consideration does not

automatically disqualify that person from further par-

ticipation. Frequently we reverse a trial judge and remand

the case for another trial. Even though we may reverse a

trial judge, on remand the judge is considered fair and

impartial.

Id. at 448.

Also, the Arkansas Supreme Court discussed several of the

cases cited by Petitioner as allegedly supportive of his position

that because a hearing examiner or judge sat as a factfinder ata

previous stage, he or she should be disentitled to sit in any

subsequent stage just because they ruled against a party in the

first hearing of the matter. The Arkansas Supreme Court

distinguished those cases cited by Petitioner and Respondent

goes further to distinguish these same cases cited by Petitione1

in his first point.

Of course, Respondent does not deny that procedural due

process applies to attorney disciplinary proceedings.

However, attorney disciplinary proceedings are analo-

gous in no way to the situations presented in Gagnon uv.

Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973) or

its predecessor, Morrisey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593,

33 L.Ed.2d 484 (1972). In Gagnon, supra, this Court held that

it was unreasonable and violative of due process to have parole

officer (Gagnon) or probation officer (Morrisey) sit as tri-

bunals to make determinations of whether reasonable grounds

existed for revocation of parole and/or probation. This Court

determined that such a finding should be made by someone not

directly invoived in the revocation process, as were parole and

probation officers, by virtue of their roles and functions.

Certainly, in attorney disciplinary proceedings, no issue

of the loss of freedom or liberty is presented. This fact alone

takes this type of cases out of the scope of Gagnon, supra, and

Morrisey, supra. Additionally, Respondent Committee does

not act, as do parole and probation officers, directly to do

initiate investigations concerning an accused, recommend

whether proceedings be instituted against an accused and then

subsequently sit as a tribunal over that matter. Rather,

Respondent Committee responds to complaints filed by the

public. Any independent investigation is accomplished by its

executive secretary and evidentiary matters are presented to

Committee members !n a balanced and impartial manner.

Thus, the constitutional flaw found in the Gagnon and

Morrisey decisions is not present here. Rather, the situation

posed in this case is much more similar to Withrow v. Larkin,

121 U.S. 35, 95 S.Ct. 1456, 43 L.Ed.2d 712 (1975), where a

physician's license was at issue. There, this Court stated:

The contention that the combination of investigative and

adjudicative functions necessarily creates an unconsti-

tutional risk of bias in administrative adjudication has a

much more difficult burden of persuasion to carry. It

must overcome a presumption of honesty and integrity in

those serving as adjudicators; and it must convince that,

under a realistic appraisal of psychological tendencies in

human weakness, conferring investigative and adjudica-

tive powers on the same individuals poses such a risk of

actual bias or prejudgment that the practice must be

forbidden if the guarantee of due process is to be

adequately implemented.

Id. at 47.

Further, this Court noted that similar claims had been

squarely rejected in its previous decisions. For instance, in

FTC v. Cement Institute, 333 U.S. 683, 68 S.Ct. 793, 92 L.Ed.2d

1010 (1948), it was held that no decision of this [the United

States Supreme] Court would require us to hold that it would

be a violation of procedural due process for a judge to sit in a

case after he had expressed an opinion as to whether certain

types of conduct were prohibited by law. In fact, judges

frequently try the same case more than once and decide

identical issues the second time, although these issues involve

questions both of law and fact. Jd. at 702-703.

Also cited with approval by the Arkansas Supreme Court

in Sexton III, was NLRB v. Donnelly Garment Company, 330

U.S. 219, 236-237, 67 S.Ct. 756, 91 L.Ed. 854 (1947):

Certainly, it’s not the rule of judicial administration that

.. .ajudge is disqualified from sitting ina retrial because

he was reversed on earlier rulings. We find no warrant for

imposing upon administrative agency a stiffer rule,

whereby examiners would be disentitled to sit because

they ruled strongly against a party in the first hearing.

Applying these precedents in Withrow, supra, this Court

found no specific foundation had been presented for

suspecting that the [examining board for physicians] had

been prejudiced by its investigation or would be disabled

from hearing and deciding on the basis of the evidence to

be presented at [a] contested hearing. The mere exposure

to evidence presented in non-adversary investigative

procedures is insufficient in itself to impugn the fairness

of the board members at a later adversary hearing.

Sexton III at 448.

While the facts of Withrow are similar to those presented

in this case, here Petitioner cannot show that any evidence was

presented to the deciding tribunal that did not contain

whatever arguments, by way of written response and affidavits,

he wished to make on his own behalf. Nor can he show he was

not (1) given notice of the complainant’s position, (2) allowed

discovery, (3) allowed to present testimony at hearing, o1

(4) cross-examine witnesses. Indeed, Petitioner was accorded

much more due process than the physician in Withrow.

Simply, this Court has dealt squarely with Petitioner's

first argument previously in Withrow and Petitioner presents

no reason to change that ruling based on the record of that case.

In order for this Court to grant certiorari in this matter,

Petitioner has to show that the factual issue of whether the

Committee members were automatically biased by having

reviewed a complaint and response initially and later holding

a public hearing on the issue of his violation of ethical rules, is

significant enough to the body of federal law to warrant this

Court’s review.

No conflict among the circuit courts of appeals is

presented, no radical departure from precedent by the Arkansas

Supreme Court has been presented and no important question

under the Constitution of the United States as is required by 28

U.S.C. §1254(1) is present here. All procedural due process

elements have been accorded Petitioner and the Petition for

Writ of Certiorari should be denied.

10

Plainly the Rules do not provide that only after an adverse

ruling may an accused attorney request a public hearing.

Moreover, the recitation of facts in Sexton III shows that

Petitioner did not initially request any hearing, but rather,

voluntarily chose to submit his case by way of response. Only

after he learned of an adverse ruling by the Committee did he

exercise his right to have a hearing.

Finally, Petitioner vaguely asserts facial unconstitu-

tionality of the Rules of the Court Regulating Professional

Conduct of Attorneys at Law by stating those rules do not

require the Committee make available to the accused attorney

results of its investigation, memoranda submitted by the

executive secretary or any other material except the affidavit of

the complainant. Petitioner was permitted full discovery in

this case, as the record reflects.

Petitioner's first point is totally without merit and

certiorari should be denied as to his first point.

RESPONDENT COMMITTEE UTILIZED A ‘‘PRE-

PONDERANCE OF THE EVIDENCE” STANDARD

IN DETERMINING PETITIONER’S CASE AND THE

ARKANSAS SUPREME COURT UTILIZED THIS

STANDARD IN ITS DE NOVO REVIEW OF PETI-

TIONER’S CASE.

It is difficult to discern the nature of all Petitioner's

arguments in his second point. Apparently, he contends that

because the Arkansas Supreme Court had not rendered a

decision prior to 1983 interpreting the ‘“‘full disclosure”

provision of DR 5-104(A), that his due process rights were

violated because he did not have notice of what conduct was

prohibited. Additionally, Petitioner contends that Rule 7(a) of

1]

the Arkansas Supreme Court Regulating Professional Con-

duct of Attorneys at Law violates his due process rights because

itonly provides that the Committee find a ‘‘reasonable ground

to believe’ that the attorney has committed an ethical

violation.

Petitioner's arguments are totally without merit. Just

because the Arkansas Supreme Court had never had occasion

to interpret the meaning of the “full disclosure” provision of

DR 5-104(a) prior to the decision in his case, does not mean that

there was any “‘retroactive’’ application of its judicial con-

struction. Carried to its logical conclusion, Petitioner's

argument would preclude a court from considering prece-

dential decisions rendered after the facts occurring in any given

case. Such a conclusion is ridiculous.

Plus, Petitioner was charged with knowledge of rules

applicable to his law license, in 1983.

The Arkansas Supreme Court merely relied on In Re

Neville, 147 Ariz. 106, 708 P.2d 1297 (1985), as persuasive in

interpreting the provisions of DR 5-104(a). That Arizona case

is not precedent in Arkansas, but since the Arkansas Supreme

Court had never construed the rule, it was within that court's

prerogative to rely on other jurisdictions.

Many cases, other than Neville, supra, which was decided

in 1985, stand for the proposition that merely advising a client

to seek outside counsel concerning a business transaction is

not sufficient to meet the full disclosure requirement of

DR 5-104(a). For instance, in In Re Bartlett, 283 Or. 487, 584

P.2d 296 (1978), cited by Petitioner, the Supreme Court of

Oregon held that the failure to advise clients to seek inde-

pendent legal counsel with respect to the purchase of a duplex

in which the lawyer held an interest and the transfer of the

client's interest in that duplex without the consent of the

12

receiver warranted suspension of that attorney for six months.

The Supreme Court of Oregon noted that there was “no

record” as to whether or not the accused made a “‘full disclosure

preceding the [clients] consent.4d_at 300. In Matter of Kali,

124 Ariz. 592, 606 P.2d 808 (1980), the Supreme Court of

Arizona upheld the suspension of Mr. Kali’s license for

entering into a business relationship with a client without

advising the client to seek outside counsel. The only outside

advice received by the client came from an accountant who had

been retained by the attorney and who had no independent

relationship with the client.

Numerous cases decided prior to Petitioner’s entry into a

business transaction with a client in 1983, had been decided

(and the decisions published) which held that merely advising

a client to seek outside counsel concerning a transaction is

insufficient to provide “‘full disclosure’ as is contemplated in.

DR 5-104(A). Certainly, numerous cases have been decided

after 1983 holding the same. See In Re Neville, supra; In Re

Richard V. Watson, 482 N.E.2d 262 (Ind. 1985); In Re O’Byrne,

298 Or. 535, 694 P.2d 955 (1985); In Re Goldstein, 103 I11.2d 123,

468 N.E.2d 959 (Ill. 1984); In Re Pyatt, 312 S.E.2d 553 (S.C. 1984).

Additionally, Petitioner asserts that the failure to enter

findings of fact and conclusions of law by Respondent

Committee violates his due process rights, citing Wolff v.

McDonnell, 418 U.S. 539, 563, 94 S.Ct. 2693, 41 L.Ed.2d 935

(1974) for the proposition that ‘‘due process’’ requires the

factfinder to state the facts upon which its decision is founded

and to state the reasons or conclusions of law which support

the action taken.

Petitioner has not been convicted of a felony in this case

and the panoply of constitutional rights does not attach to the

proceeding which resulted in his suspension. Even were the

lack of entry of findings and conclusions of law found to be

13

error, that error is harmless and/or has been cured by the

specific, thorough and meticulous factfinding engaged in by

the Arkansas Supreme Court in its de novo review of the —

allegations against Petitioner. See Sexton III, pages 441-444.

Specifically, the Arkansas Supreme Court stated:

In reviewing this case de novo from the record of the

proceedings before the Committee, we have determined

that the clients expected the appellant [petitioner] to

exercise his professional judgment for their protection

in this transaction. The appellant [petitioner] simply

did not make the ‘full disclosure’’ required of him by

DR 5-104(A) when he solicited the loan from his clients.

Finally, Petitioner submits that rules which allow the

Respondent Committee to sustain findings upon a quantum

of proof less than a ‘“‘reasonable ground to believe” violate the

due process clause of the Fourteenth Amendment.

Respondent assumes Petitioner means to state that a

quantum of proof which is ‘‘a reasonable ground to believe’

violates the due process clause. However, his argument is

irrelevant as the standard of proof applied in each and every

proceeding before the Committee and the Arkansas Supreme

Court concerning Petitioner a ‘“‘preponderance of the evi-

dence” standard was applied in determining whether violation

of ethical rules had occurred.

In a lengthy discussion in Muhammed v. Arkansas

Supreme Court Committee on Professional Conduct, 291 Ark.

29, 722 S.W.2d 280 (1987), the Arkansas Supreme Court

determined that the proper standard of review in a case

appealed to it from the Respondent Committee was whether

the findings below were clearly erroneous or clearly against the

14

preponderance of the evidence. Jd. at 35. The Arkansas

Supreme Court held at 36:

Professional Conduct, 275 Ark. 158, 628 S.W.2d 552

(1982), we had before us an appeal from discipline

administered directly by our Committee. Although not

explicitly, we apparently applied the same standard of

review we had applied in the reviews of court decisions.

We held the findings of the Committee to be supported by

a preponderance of the evidence and said: ‘the findings of

the Committee, in this respect [that the appellant had

violated the code] are not contrary to the weight of the

evidence and must be affirmed,’ citing Hurst v. Bar Rules

Committee of the State of Arkansas, 202 Ark. 1101, 155

S.W.2d 697 (1941). (Emphasis added.)

At page 447 of Sexton III, from which this Petition is

taken, the Arkansas Supreme Court held:

In reviewing the actions of the Committee we look to the

preponderance of the evidence and affirm the action taken

by the Committee unless it is clearly against the pre-

ponderance of the evidence. (Citation omitted.)

The arguments of Petitioner in his second point are all

without merit, lacking foundation in law or the facts presented

in this case.

Certainly, Petitioner does not assert the rights of all

attorneys within the State of Arkansas as he would have this

Court believe. Indeed, he does not even specifically relate to

this Court how the actual implementation of the Rules of

Respondent Committee or the de novo review of his case by the

Arkansas Supreme Court deprives him of any recognized due

process rights.

15

Facially, Petitioner’s claims do not fit within any of the

traditional areas meriting review by this Court. His case

presents no “important question under the Constitution of

the United States” as is required to gain the attention of this

Court.

16

CONCLUSION

For all the foregoing reasons and based upon the

foregoing precedents, the Petition for Writ of Certiorari filed

by Petitioner should be denied.

By:

Respectfully submitted,

STEVE CLARK

Attorney General

R. B. FRIEDLANDER

Solicitor General

200 Tower BUILDING

323 CENTER STREET

LITTLE Rock, ARKANSAS 72201

(501) 682-3637

\ P

Attorneys for Respondent

CERTIFICATE OF SERVICE

I, R. B. Friedlander, Solicitor General, do hereby certify

that I have served the foregoing, by mailing a copy of same,

U.S. Mail, postage prepaid thereon to the Honorable Dale

Price, Attorney at Law, 211 Spring Street, Little Rock,

Arkansas 72201 on this 8th day of March, 1990.

/s/ R. B. Friedlander