[1]  A lawyer, as a member of the legal profession, is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice.  

    [2]  As a representative of clients, a lawyer performs various functions. As advisor, a lawyer provides a client with an informed understanding of the client's legal rights and obligations and explains their practical implications. As advocate, a lawyer zealously asserts the client's position under the rules of the adversary system. As negotiator, a lawyer seeks a result advantageous to the client but consistent with requirements of honest dealing with others. As an evaluator, a lawyer acts by examining a client's legal affairs and reporting about them to the client or to others.  

    [3]  In addition to these representational functions, a lawyer may serve as a third-party neutral, a nonrepresentational role helping the parties to resolve a dispute or other matter. Some of these Rules apply directly to lawyers who are or have served as third-party neutrals. See, e.g., Rules 1.12 and 2.4. In addition, there are Rules that apply to lawyers who are not active in the practice of law or to practicing lawyers even when they are acting in a nonprofessional capacity. For example, a lawyer who commits fraud in the conduct of a business is subject to discipline for engaging in conduct involving dishonesty, fraud, deceit or misrepresentation. See Rule 8.4.  

    [4]  In all professional functions a lawyer should be competent, prompt and diligent. A lawyer should maintain communication with a client concerning the representation. A lawyer should keep in confidence information relating to representation of a client except so far as disclosure is required or permitted by the Rules of Professional Conduct or other law.  

    [5]  A lawyer's conduct should conform to the requirements of the law, both in professional service to clients and in the lawyer's business and personal affairs. A lawyer should use the law's procedures only for legitimate purposes and not to harass or intimidate others. A lawyer should demonstrate respect for the legal system and for those who serve it, including judges, other lawyers and public officials. While it is a lawyer's duty, when necessary, to challenge the rectitude of official action, it is also a lawyer's duty to uphold legal process. A lawyer should avoid even the appearance of impropriety.  

    [6]  As a public citizen, a lawyer should seek improvement of the law, access to the legal system, the administration of justice and the quality of service rendered by the legal profession. As a member of a learned profession, a lawyer should cultivate knowledge of the law beyond its use for clients, employ that knowledge in reform of the law and work to strengthen legal education. In addition, a lawyer should further the public's understanding of and confidence in the rule of law and the justice system because legal institutions in a constitutional democracy depend on popular participation and support to maintain their authority. A lawyer should be mindful of deficiencies in the administration of justice and of the fact that the poor, and sometimes persons who are not poor, cannot afford adequate legal assistance. Therefore, all lawyers should devote professional time and resources and use civic influence to ensure equal access to our system of justice for all those who because of economic or social barriers cannot afford or secure adequate legal counsel. A lawyer should aid the legal profession in pursuing these objectives and should help the bar regulate itself in the public interest.  

    [7]  Many of a lawyer's professional responsibilities are prescribed in the Rules of Professional Conduct, as well as substantive and procedural law. However, a lawyer is also guided by personal conscience and the approbation of professional peers. A lawyer should strive to attain the highest level of skill, to improve the law and the legal profession and to exemplify the legal profession's ideals of public service.  

    [8]  A lawyer's responsibilities as a representative of clients, an officer of the legal system and a public citizen are usually harmonious. Thus, when an opposing party is well represented, a lawyer can be a zealous advocate on behalf of a client and at the same time assume that justice is being done. So also, a lawyer can be sure that preserving client confidences ordinarily serves the public interest because people are more likely to seek legal advice, and thereby heed their legal obligations, when they know their communications will be private.  

    [9]  In the nature of law practice, however, conflicting responsibilities are encountered. Virtually all difficult ethical problems arise from conflict between a lawyer's responsibilities to clients, to the legal system and to the lawyer's own interest in remaining an ethical person while earning a satisfactory living. The Rules of Professional Conduct often prescribe terms for resolving such conflicts. Within the framework of these Rules, however, many difficult issues of professional discretion can arise. Such issues must be resolved through the exercise of sensitive professional and moral judgment guided by the basic principles underlying the Rules. These principles include the lawyer's obligation to zealously protect and pursue a client's legitimate interests, within the bounds of the law, while maintaining a professional, courteous and civil attitude toward all persons involved in the legal system.   

    [10]  The legal profession is largely self-governing. Although other professions also have been granted powers of self-government, the legal profession is unique in this respect because of the close relationship between the profession and the processes of government and law enforcement. This connection is manifested in the fact that ultimate authority over the legal profession is vested largely in the courts.  

    [11]  To the extent that lawyers meet the obligations of their professional calling, the occasion for government regulation is obviated. Self-regulation also helps maintain the legal profession's independence from government domination. An independent legal profession is an important force in preserving government under law, for abuse of legal authority is more readily challenged by a profession whose members are not dependent on government for the right to practice.  

    [12]  The legal profession's relative autonomy carries with it special responsibilities of self-government. The profession has a responsibility to assure that its regulations are conceived in the public interest and not in furtherance of parochial or self-interested concerns of the bar. Every lawyer is responsible for observance of the Rules of Professional Conduct. A lawyer should also aid in securing their observance by other lawyers. Neglect of these responsibilities compromises the independence of the profession and the public interest which it serves.  

    [13]  Lawyers play a vital role in the preservation of society. The fulfillment of this role requires an understanding by lawyers of their relationship to our legal system. The Rules of Professional Conduct, when properly applied, serve to define that relationship.  

    [13A]  A lawyer owes a solemn duty to uphold the integrity and honor of the profession; to encourage respect for the law and for the courts; to act as a member of a learned profession; to conduct affairs so as to reflect credit on the legal profession; and to inspire the confidence, respect and trust of clients and the public. To accomplish those objectives, the lawyer must strive to avoid not only professional impropriety, but also the appearance of impropriety. The duty to avoid the appearance of impropriety is not a mere phrase. It is part of the foundation upon which are built the rules that guide lawyers in their moral and ethical conduct. This obligation should be considered in any instance where a violation of the rules of professional conduct are at issue. The principle pervades these Rules and embodies their spirit.

    [14]  The Rules of Professional Conduct are rules of reason. They should be interpreted with reference to the purposes of legal representation and of the law itself. Some of the Rules are imperatives, cast in the terms "shall" or "shall not." These define proper conduct for purposes of professional discipline. Others, generally cast in the term "may," are permissive and define areas under the Rules in which the lawyer has professional discretion to exercise professional judgment. No disciplinary action should be taken when the lawyer chooses not to act or acts within the bounds of such discretion. Other Rules define the nature of relationships between the lawyer and others. The Rules are thus partly obligatory and disciplinary and partly constitutive and descriptive in that they define a lawyer's professional role. Many of the Comments use the term "should." Comments do not add obligations to the Rules but provide guidance for practicing in compliance with the Rules.  

    [15]  The Rules presuppose a larger legal context shaping the lawyer's role. That context includes court rules and statutes relating to matters of licensure, laws defining specific obligations of lawyers and substantive and procedural law in general. The Comments are sometimes used to alert lawyers to their responsibilities under such other law.  

    [16]  Compliance with the Rules, as with all law in an open society, depends primarily upon understanding and voluntary compliance, secondarily upon reinforcement by peer and public opinion and finally, when necessary, upon enforcement through disciplinary proceedings. The Rules do not, however, exhaust the moral and ethical considerations that should inform a lawyer, for no worthwhile human activity can be completely defined by legal rules. The Rules simply provide a framework for the ethical practice of law.  

    [17]  Furthermore, for purposes of determining the lawyer's authority and responsibility, principles of substantive law external to these Rules determine whether a client-lawyer relationship exists. Most of the duties flowing from the client-lawyer relationship attach only after the client has requested the lawyer to render legal services and the lawyer has agreed to do so. But there are some duties, such as that of confidentiality under Rule 1.6, that attach when the lawyer agrees to consider whether a client-lawyer relationship shall be established. See Rule1.18. Whether a client-lawyer relationship exists for any specific purpose can depend on the circumstances and may be a question of fact.  

    [18]  Under various legal provisions, including constitutional, statutory and common law, the responsibilities of government lawyers may include authority concerning legal matters that ordinarily reposes in the client in private client-lawyer relationships. For example, a lawyer for a government agency may have authority on behalf of the government to decide upon settlement or whether to appeal from an adverse judgment. Such authority in various respects is generally vested in the attorney general and the state's attorney in state government, and their federal counterparts, and the same may be true of other government law officers. Also, lawyers under the supervision of these officers may be authorized to represent several government agencies in intragovernmental legal controversies in circumstances where a private lawyer could not represent multiple private clients. These Rules do not abrogate any such authority.  

    [19]  Failure to comply with an obligation or prohibition imposed by a Rule is a basis for invoking the disciplinary process. The Rules presuppose that disciplinary assessment of a lawyer's conduct will be made on the basis of the facts and circumstances as they existed at the time of the conduct in question and in recognition of the fact that a lawyer often has to act upon uncertain or incomplete evidence of the situation. Moreover, the Rules presuppose that whether or not discipline should be imposed for a violation, and the severity of a sanction, depend on all the circumstances, such as the willfulness and seriousness of the violation, extenuating factors and whether there have been previous violations.  

    [20]  Violation of a Rule should not itself give rise to a cause of action against a lawyer nor should it create any presumption in such a case that a legal duty has been breached. In addition, violation of a Rule does not necessarily warrant any other nondisciplinary remedy, such as disqualification of a lawyer in pending litigation. The Rules are designed to provide guidance to lawyers and to provide a structure for regulating conduct through disciplinary agencies. They are not designed to be a basis for civil liability. Furthermore, the purpose of the Rules can be subverted when they are invoked by opposing parties as procedural weapons. The fact that a Rule is a just basis for a lawyer's self-assessment, or for sanctioning a lawyer under the administration of a disciplinary authority, does not imply that an antagonist in a collateral proceeding or transaction has standing to seek enforcement of the Rule.  

    [21]  The Comment accompanying each Rule explains and illustrates the meaning and purpose of the Rule. The Preamble and this note on Scope provide general orientation. The Comments are intended as guides to interpretation, but the text of each Rule is authoritative.

Rules text

    (a)  "Belief" or "believes" denotes that the person involved actually supposed the fact in question to be true. A person's belief may be inferred from circumstances.  

    (b)  "Confirmed in writing," when used in reference to the informed consent of a person, denotes informed consent that is given in writing by the person or a writing that a lawyer promptly transmits to the person confirming an oral informed consent. See paragraph (e) for the definition of "informed consent." If it is not feasible to obtain or transmit the writing at the time the person gives informed consent, then the lawyer must obtain or transmit it within a reasonable time thereafter.  

    (c)  "Firm" or "law firm" denotes a lawyer or lawyers in a law partnership, professional corporation, sole proprietorship or other association authorized to practice law; or lawyers employed in a legal services organization or the legal department of a corporation or other organization.  

    (d)  "Fraud" or "fraudulent" denotes conduct that is fraudulent under the substantive or procedural law of the applicable jurisdiction and has a purpose to deceive.  

    (e)  "Informed consent" denotes the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.  

    (f)  "Knowingly," "known," or "knows" denotes actual knowledge of the fact in question. A person's knowledge may be inferred from circumstances.  

    (g)  "Partner" denotes a member of a partnership, a shareholder in a law firm organized as a professional corporation, or a member of an association authorized to practice law.  

    (h)  "Reasonable" or "reasonably" when used in relation to conduct by a lawyer denotes the conduct of a reasonably prudent and competent lawyer.  

    (i)  "Reasonable belief" or "reasonably believes" when used in reference to a lawyer denotes that the lawyer believes the matter in question and that the circumstances are such that the belief is reasonable.  

    (j)  "Reasonably should know" when used in reference to a lawyer denotes that a lawyer of reasonable prudence and competence would ascertain the matter in question.  

    (k)  "Screened" denotes the isolation of a lawyer from any participation in a matter through the timely imposition of procedures within a firm that are reasonably adequate under the circumstances to protect information that the isolated lawyer is obligated to protect under these Rules or other law.  

    (l)  "Substantial" when used in reference to degree or extent denotes a material matter of clear and weighty importance.  

    (m)  "Tribunal" denotes a court, an arbitrator in a binding arbitration proceeding or a legislative body, administrative agency or other body acting in an adjudicative capacity. A legislative body, administrative agency or other body acts in an adjudicative capacity when a neutral official, after the presentation of evidence or legal argument by a party or parties, will render a binding legal judgment directly affecting a party's interests in a particular matter.  

    (n)  "Writing" or "written" denotes a tangible or electronic record of a communication or representation, including handwriting, typewriting, printing, photostating, photography, audio or video recording and electronic communications. A "signed" writing includes an electronic sound, symbol or process attached to or logically associated with a writing and executed or adopted by a person with the intent to sign the writing.

Section (n) amended and effective by per curiam order June 26, 2014.

 

Confirmed in Writing

[1]If it is not feasible to obtain or transmit a written confirmation at the time the client gives informed consent, then the lawyer must obtain or transmit it within a reasonable time thereafter. If a lawyer has obtained a client's informed consent, the lawyer may act in reliance on that consent so long as it is confirmed in writing within a reasonable time thereafter.

Firm

[2]Whether two or more lawyers constitute a firm within paragraph (c) can depend on the specific facts. For example, two practitioners who share office space and occasionally consult or assist each other ordinarily would not be regarded as constituting a firm. However, if they present themselves to the public in a way that suggests that they are a firm or conduct themselves as a firm, they should be regarded as a firm for purposes of the Rules. The terms of any formal agreement between associated lawyers are relevant in determining whether they are a firm, as is the fact that they have mutual access to information concerning the clients they serve. Furthermore, it is relevant in doubtful cases to consider the underlying purpose of the Rule that is involved. A group of lawyers could be regarded as a firm for purposes of the Rule that the same lawyer should not represent opposing parties in litigation, while it might not be so regarded for purposes of the Rule that information acquired by one lawyer is attributed to another.

[3]With respect to the law department of an organization, including the government, there is ordinarily no question that the members of the department constitute a firm within the meaning of the Rules of Professional Conduct. There can be uncertainty, however, as to the identity of the client. For example, it may not be clear whether the law department of a corporation represents a subsidiary or an affiliated corporation, as well as the corporation by which the members of the department are directly employed. A similar question can arise concerning an unincorporated association and its local affiliates.

[4]Similar questions can also arise with respect to lawyers in legal aid and legal services organizations. Depending upon the structure of the organization, the entire organization or different components of it may constitute a firm or firms for purposes of these Rules.

Fraud

[5]When used in these Rules, the terms "fraud" or "fraudulent" refer to conduct that is characterized as such under the substantive or procedural law of the applicable jurisdiction and has a purpose to deceive. This does not include merely negligent misrepresentation or negligent failure to apprise another of relevant information. For purposes of these Rules, it is not necessary that anyone has suffered damages or relied on the misrepresentation or failure to inform.

Informed Consent

[6]Many of the Rules of Professional Conduct require the lawyer to obtain the informed consent of a client or other person (e.g., a former client or, under certain circumstances, a prospective client) before accepting or continuing representation or pursuing a course of conduct. See, e.g, Rules 1.2(c), 1.6(a) and 1.7(b). The communication necessary to obtain such consent will vary according to the Rule involved and the circumstances giving rise to the need to obtain informed consent. The lawyer must make reasonable efforts to ensure that the client or other person possesses information reasonably adequate to make an informed decision. Ordinarily, this will require communication that includes a disclosure of the facts and circumstances giving rise to the situation, any explanation reasonably necessary to inform the client or other person of the material advantages and disadvantages of the proposed course of conduct and a discussion of the client's or other person's options and alternatives. In some circumstances it may be appropriate for a lawyer to advise a client or other person to seek the advice of other counsel. A lawyer need not inform a client or other person of facts or implications already known to the client or other person; nevertheless, a lawyer who does not personally inform the client or other person assumes the risk that the client or other person is inadequately informed and the consent is invalid. In determining whether the information and explanation provided are reasonably adequate, relevant factors include whether the client or other person is experienced in legal matters generally and in making decisions of the type involved, and whether the client or other person is independently represented by other counsel in giving the consent. Normally, such persons need less information and explanation than others, and generally a client or other person who is independently represented by other counsel in giving the consent should be assumed to have given informed consent.

[7]Obtaining informed consent will usually require an affirmative response by the client or other person. In general, a lawyer may not assume consent from a client's or other person's silence. Consent may be inferred, however, from the conduct of a client or other person who has reasonably adequate information about the matter. A number of Rules require that a person's consent be confirmed in writing. See Rules 1.7(b) and 1.9(a). For a definition of "writing" and "confirmed in writing," see paragraphs (n) and (b). Other Rules require that a client's consent be obtained in a writing signed by the client. See, e.g., Rules 1.8(a) and (g). For a definition of "signed," see paragraph (n).

Screened

[8]This definition applies to situations where screening of a personally disqualified lawyer is permitted to remove imputation of a conflict of interest under Rules 1.11, 1.12 or 1.18.

[9]The purpose of screening is to assure the affected parties that confidential information known by the personally disqualified lawyer remains protected. The personally disqualified lawyer should acknowledge the obligation not to communicate with any of the other lawyers in the firm with respect to the matter. Similarly, other lawyers in the firm who are working on the matter should be informed that the screening is in place and that they may not communicate with the personally disqualified lawyer with respect to the matter. Additional screening measures that are appropriate for the particular matter will depend on the circumstances. To implement, reinforce and remind all affected lawyers of the presence of the screening, it may be appropriate for the firm to undertake such procedures as a written undertaking by the screened lawyer to avoid any communication with other firm personnel and any contact with any firm files or other information, including information in electronic form, relating to the matter, written notice and instructions to all other firm personnel forbidding any communication with the screened lawyer relating to the matter, denial of access by the screened lawyer to firm files or other materials relating to the matter and periodic reminders of the screen to the screened lawyer and all other firm personnel.

[10]In order to be effective, screening measures must be implemented as soon as practical after a lawyer or law firm knows or reasonably should know that there is a need for screening.

Comment [9] amended and effective by per curiam order June 26, 2014.

These regulations are cumulative to and explanatory of the Arkansas Rules for Minimum Continuing Legal Education (hereinafter the Rules) which were adopted by Per Curiam Order of the Arkansas Supreme Court on March 6, 1989, 298 Ark. Appendix (1989). In the event of a conflict between these regulations and the Rules, the provisions of the Rules shall prevail. Rule 6 of the Arkansas Rules of Civil Procedure shall govern calculation of time whenever an action is required to be taken under the Rules or these Regulations unless otherwise provided. Members of the Arkansas Continuing Legal Education Board (hereinafter Board) and the Secretary to the Board (hereinafter Secretary) shall be absolutely immune from suit for all conduct in the course of their official duties in connection with the administration of the Arkansas Minimum Continuing Legal Education Program (hereinafter CLE).

[1] An independent, fair and impartial judiciary is indispensable to our system of justice. The United States legal system is based upon the principle that an independent, impartial, and competent judiciary, composed of men and women of integrity, will interpret and apply the law that governs our society. Thus, the judiciary plays a central role in preserving the principles of justice and the rule of law. Inherent in all the Rules contained in this Code are the precepts that judges, individually and collectively, must respect and honor the judicial office as a public trust and strive to maintain and enhance confidence in the legal system.

[2] Judges should maintain the dignity of judicial office at all times, and avoid both impropriety and the appearance of impropriety in their professional and personal lives. They should aspire at all times to conduct that ensures the greatest possible public confidence in their independence, impartiality, integrity, and competence.

[3] The Arkansas Code of Judicial Conduct establishes standards for the ethical conduct of judges and judicial candidates. It is not intended as an exhaustive guide for the conduct of judges and judicial candidates, who are governed in their judicial and personal conduct by general ethical standards as well as by the Code. The Code is intended, however, to provide guidance and assist judges in maintaining the highest standards of judicial and personal conduct, and to provide a basis for regulating their conduct through disciplinary agencies.

[1] The Arkansas Code of Judicial Conduct consists of four Canons, numbered Rules under each Canon, and Comments that generally follow and explain each Rule. Scope and Terminology sections provide additional guidance in interpreting and applying the Code. An Application section establishes when the various Rules apply to a judge or judicial candidate. 

[2] The Canons state overarching principles of judicial ethics that all judges must observe. Although a judge may be disciplined only for violating a Rule, the Canons provide important guidance in interpreting the Rules. Where a Rule contains a permissive term, such as “may” or “should,” the conduct being addressed is committed to the personal and professional discretion of the judge or candidate in question, and no disciplinary action should be taken for action or inaction within the bounds of such discretion.

[3] The Comments that accompany the Rules serve two functions. First, they provide guidance regarding the purpose, meaning, and proper application of the Rules. They contain explanatory material and, in some instances, provide examples of permitted or prohibited conduct. Comments neither add to nor subtract from the binding obligations set forth in the Rules. Therefore, when a Comment contains the term “must,” it does not mean that the Comment itself is binding or enforceable; it signifies that the Rule in question, properly understood, is obligatory as to the conduct at issue.

[4] Second, the Comments identify aspirational goals for judges. To implement fully the principles of this Code as articulated in the Canons, judges should strive to exceed the standards of conduct established by the Rules, holding themselves to the highest ethical standards and seeking to achieve those aspirational goals, thereby enhancing the dignity of the judicial office.

[5] The Rules of the Arkansas Code of Judicial Conduct are rules of reason that should be applied consistent with constitutional requirements, statutes, other court rules, and decisional law, and with due regard for all relevant circumstances. The Rules should not be interpreted to impinge upon the essential independence of judges in making judicial decisions.

[6] Although the black letter of the Rules is binding and enforceable, it is not contemplated that every transgression will result in the imposition of discipline. Whether discipline should be imposed should be determined through a reasonable and reasoned application of the Rules, and should depend upon factors such as the seriousness of the transgression, the facts and circumstances that existed at the time of the transgression, the extent of any pattern of improper activity, whether there have been previous violations, and the effect of the improper activity upon the judicial system or others.

[7] The Code is not designed or intended as a basis for civil or criminal liability. Neither is it intended to be the basis for litigants to seek collateral remedies against each other or to obtain tactical advantages in proceedings before a court.

“Aggregate,” in relation to contributions for a candidate, means not only contributions in cash or in kind made directly to a candidate’s campaign committee, but also all contributions made indirectly with the understanding that they will be used to support the election of a candidate or to oppose the election of the candidate’s opponent. See Rules 2.11 and 4.4.

“Appropriate authority” means the authority having responsibility for initiation of disciplinary process in connection with the violation to be reported. See Rules 2.14 and 2.15.

“Contribution” means both financial and in-kind contributions, such as goods, professional or volunteer services, advertising, and other types of assistance, which, if obtained by the recipient otherwise, would require a financial expenditure. See Rules 2.11, 2.13, 3.7, 4.1, and 4.4.

“De minimis,” in the context of interests pertaining to disqualification of a judge, means an insignificant interest that could not raise a reasonable question regarding the judge’s impartiality. See Rule 2.11.

“Domestic partner” means a person with whom another person maintains a household and an intimate relationship, other than a person to whom he or she is legally married. See Rules 2.11, 2.13, 3.13, and 3.14.

“Economic interest” means ownership of more than a de minimis legal or equitable interest. Except for situations in which the judge participates in the management of such a legal or equitable interest, or the interest could be substantially affected by the outcome of a proceeding before a judge, it does not include:

(1) an interest in the individual holdings within a mutual or common investment fund; 
(2) an interest in securities held by an educational, religious, charitable, fraternal, or civic organization in which the judge or the judge’s spouse, domestic partner, parent, or child serves as a director, an officer, an advisor, or other participant; 
(3) a deposit in a financial institution or deposits or proprietary interests the judge may maintain as a member of a mutual savings association or credit union, or similar proprietary interests; or 
(4) an interest in the issuer of government securities held by the judge.

See Rules 1.3 and 2.11. 

“Fiduciary” includes relationships such as executor, administrator, trustee, or guardian. See Rules 2.11, 3.2, and 3.8.

“Impartial,” “impartiality,” and “impartially” mean absence of bias or prejudice in favor of, or against, particular parties or classes of parties, as well as maintenance of an open mind in considering issues that may come before a judge. See Canons 1, 2, and 4, and Rules 1.2, 2.2, 2.10, 2.11, 2.13, 3.1, 3.12, 3.13, 4.1, and 4.2.

“Impending matter” is a matter that is imminent or expected to occur in the near future. See Rules 2.9, 2.10, 3.13, and 4.1.

“Impropriety” includes conduct that violates the law, court rules, or provisions of this Code, and conduct that undermines a judge’s independence, integrity, or impartiality. See Canon 1 and Rule 1.2.

“Independence” means a judge’s freedom from influence or controls other than those established by law. See Canons 1 and 4, and Rules 1.2, 3.1, 3.12, 3.13, and 4.2.

“Integrity” means probity, fairness, honesty, uprightness, and soundness of character. See Canon 1 and Rule 1.2.

“Judicial candidate” means any person, including a sitting judge, who is seeking selection for or retention in judicial office by election or appointment. A person becomes a candidate for judicial office as soon as he or she makes a public announcement of candidacy, declares or files as a candidate with the election or appointment authority, authorizes or, where permitted, engages in solicitation or acceptance of contributions or support, or is nominated for election or appointment to office. See Rules 2.11, 4.1, 4.2, and 4.4.

“Knowingly,” “knowledge,” “known,” and “knows” mean actual knowledge of the fact in question. A person’s knowledge may be inferred from circumstances. See Rules 2.11, 2.13, 2.15, 2.16, 3.6, and 4.1.

“Law” encompasses court rules as well as statutes, constitutional provisions, and decisional law. See Rules 1.1, 2.1, 2.2, 2.6, 2.7, 2.9, 3.1, 3.4, 3.9, 3.12, 3.13, 3.14, 3.15, 4.1, 4.2, 4.4, and 4.5.

“Member of the candidate’s family” means a spouse, domestic partner, child, grandchild, parent, grandparent, or other relative or person with whom the candidate maintains a close familial relationship.

“Member of the judge’s family” means a spouse, domestic partner, child, grandchild, parent, grandparent, or other relative or person with whom the judge maintains a close familial relationship. See Rules 3.7, 3.8, 3.10, and 3.11. 

“Member of a judge’s family residing in the judge’s household” means any relative of a judge by blood or marriage, or a person treated by a judge as a member of the judge’s family, who resides in the judge’s household. See Rules 2.11 and 3.13. 

“Nonpublic information” means information that is not available to the public. Nonpublic information may include, but is not limited to, information that is sealed by statute or court order or impounded or communicated in camera, and information offered in grand jury proceedings, presentencing reports, dependency cases, or psychiatric reports. See Rule 3.5.

“Pending matter” is a matter that has commenced. A matter continues to be pending through any appellate process until final disposition. See Rules 2.9, 2.10, 3.13, and 4.1. 

“Personally solicit” means a direct request made by a judge or a judicial candidate for financial support or in-kind services, whether made by letter, telephone, or any other means of communication. See Rule 4.1.

“Political organization” means a political party or other group sponsored by or affiliated with a political party or candidate, the principal purpose of which is to further the election or appointment of candidates for political office. For purposes of this Code, the term does not include a judicial candidate’s campaign committee created as authorized by Rule 4.4. See Rules 4.1 and 4.2.

“Public election” includes primary and general elections. See Rules 4.2 and 4.4. 

“Third degree of relationship” includes the following persons: great-grandparent, grandparent, parent, uncle, aunt, brother, sister, child, grandchild, great-grandchild, nephew, and niece. See Rule 2.11.

 

COMMENT

[1] Regarding the term “judicial candidate,” in Arkansas, there are no retention elections, and selection by appointment arises in limited situations, such as to fill a newly created judgeship or a vacancy.

The Application section establishes when the various Rules apply to a judge or judicial candidate.

I. APPLICABILITY OF THIS CODE

(A) The provisions of the Code apply to all full-time judges. Parts II through V of this section identify those provisions that apply to four distinct categories of part-time judges. The four categories of judicial service in other than a full-time capacity are necessarily defined in general terms because of the widely varying forms of judicial service. Canon 4 applies to judicial candidates.

(B) A judge, within the meaning of this Code, is anyone who is authorized to perform judicial functions, including an officer such as a, magistrate, special master, referee, or member of the administrative law judiciary. Members of the executive branch, such as administrative law judges and hearing officers, are not subject to this Code.

COMMENT

[1] The Rules in this Code have been formulated to address the ethical obligations of any person who serves a judicial function, and are premised upon the supposition that a uniform system of ethical principles should apply to all those authorized to perform judicial functions.

[2] The determination of which category and, accordingly, which specific Rules apply to an individual judicial officer, depends upon the facts of the particular judicial service.

[3] In recent years many jurisdictions have created what are often called “problem solving” courts, in which judges are authorized by court rules to act in nontraditional ways. For example, judges presiding in drug courts and monitoring the progress of participants in those courts’ programs may be authorized and even encouraged to communicate directly with social workers, probation officers, and others outside the context of their usual judicial role as independent decision makers on issues of fact and law.

II. [Reserved]

III. CONTINUING PART-TIME JUDGE

A judge who serves repeatedly on a part-time basis by election or under a continuing appointment, including a retired judge subject to recall who is permitted to practice law (“continuing part-time judge”),

(A) is not required to comply:

(1) with Rules 2.10(A) and 2.10(B) (Judicial Statements on Pending and Impending Cases), except while serving as a judge; or

(2) at any time with Rules 3.4 (Appointments to Governmental Positions), 3.8 (Appointments to Fiduciary Positions), 3.9 (Service as Arbitrator or Mediator), 3.10 (Practice of Law), 3.11 (Financial, Business, or Remunerative Activities), 3.14 (Reimbursement of Expenses and Waivers of Fees or Charges), 3.15 (Reporting Requirements); and

(B) shall not practice law in the court on which the judge serves, shall not appear in any criminal matter in the county in which the judge serves, and shall not act as a lawyer in a proceeding in which the judge has served as a judge or in any other proceeding related thereto. 

COMMENT

[1] When a person who has been a continuing part-time judge is no longer a continuing part-time judge, including a retired judge no longer subject to recall, that person may act as a lawyer in a proceeding in which he or she has served as a judge or in any other proceeding related thereto only with the informed consent of all parties, and pursuant to any applicable Arkansas Rules of Professional Conduct.

[2A] Paragraph (B) does not, as a general rule, prohibit a continuing part-time judge from practicing law. However the position of a judge in presiding over a criminal matter and then appearing as a criminal defense attorney in a court of general jurisdiction and opposing that same prosecutor creates an appearance of impropriety, even when the proceedings are separate. Accordingly, continuing part time judges are prohibited from appearing in any criminal matter in the county where the judge serves, regardless of how the criminal matter arises.

[3A] Because the position of the judge is paramount to the judge’s private law practice, the judge should be particularly sensitive to conflicts that may arise when the judge presides over matters involving particular attorneys and then, in his or her private law practice, appears in adversary proceedings in a court of general jurisdiction opposing the same attorneys who appear before the judge. Opposing counsel may be hampered in vigorous advocacy against an attorney who wears judicial robes and presides over cases involving that counsel. The primacy of judicial service and the obligation to avoid even the appearance of impropriety mandate caution in accepting civil cases in disputed matters. 

 

IV. PERIODIC PART-TIME JUDGE

A periodic part-time judge who serves or expects to serve repeatedly on a part-time basis, but under a separate appointment for each limited period of service or for each matter, 
(A) is not required to comply:

(1) with Rule 2.10 (Judicial Statements on Pending and Impending Cases), except while serving as a judge; or

(2) at any time with Rules 3.4 (Appointments to Governmental Positions), 3.7 (Participation in Educational, Religious, Charitable, Fraternal, or Civic Organizations and Activities), 3.8 (Appointments to Fiduciary Positions), 3.9 (Service as Arbitrator or Mediator), 3.10 (Practice of Law), 3.11 (Financial, Business, or Remunerative Activities), 3.13 (Acceptance and Reporting of Gifts, Loans, Bequests, Benefits, or Other Things of Value), 3.15 (Reporting Requirements), 4.1 (Political and Campaign Activities of Judges and Judicial Candidates in General), and 4.5 (Activities of Judges Who Become Candidates for Nonjudicial Office); and

(B) shall not practice law in the court on which the judge serves or in any court subject to the appellate jurisdiction of the court on which the judge serves, and shall not act as a lawyer in a proceeding in which the judge has served as a judge or in any other proceeding related thereto.

 

V. PRO TEMPORE PART-TIME JUDGE

A pro tempore part-time judge who serves or expects to serve once or only sporadically on a part-time basis under a separate appointment for each period of service or for each case heard is not required to comply:

(A) except while serving as a judge, with Rules 1.2 (Promoting Confidence in the Judiciary), 2.4 (External Influences on Judicial Conduct), 2.10 (Judicial Statements on Pending and Impending Cases), or 3.2 (Appearances before Governmental Bodies and Consultation with Government Officials); or

(B) at any time with Rules 3.4 (Appointments to Governmental Positions), 3.6 (Affiliation with Discriminatory Organizations), 3.7 (Participation in Educational, Religious, Charitable, Fraternal, or Civic Organizations and Activities), 3.8 (Appointments to Fiduciary Positions), 3.9 (Service as Arbitrator or Mediator), 3.10 (Practice of Law), 3.11 (Financial, Business, or Remunerative Activities), 3.13 (Acceptance and Reporting of Gifts, Loans, Bequests, Benefits, or Other Things of Value), 3.15 (Reporting Requirements), 4.1 (Political and Campaign Activities of Judges and Judicial Candidates in General), and 4.5 (Activities of Judges Who Become Candidates for Nonjudicial Office). 

VI. TIME FOR COMPLIANCE 

A person to whom this Code becomes applicable shall comply immediately with its provisions, except that those judges to whom Rules 3.8 (Appointments to Fiduciary Positions) and 3.11 (Financial, Business, or Remunerative Activities) apply shall comply with those Rules as soon as reasonably possible, but in no event later than one year after the Code becomes applicable to the judge. 

COMMENT 

[1] If serving as a fiduciary when selected as judge, a new judge may, notwithstanding the prohibitions in Rule 3.8, continue to serve as fiduciary, but only for that period of time necessary to avoid serious adverse consequences to the beneficiaries of the fiduciary relationship and in no event longer than one year. Similarly, if engaged at the time of judicial selection in a business activity, a new judge may, notwithstanding the prohibitions in Rule 3.11, continue in that activity for a reasonable period but in no event longer than one year.

Amended and effective by per curiam order December 15, 2016.

Section 1. The procedure set out in this administrative order is intended to apply when the judge of a circuit court shall fail to attend on any day scheduled for the holding of that court due to an emergency or sudden illness, or when a judge’s disqualification from presiding in any pending case is unanticipated. It should be employed to address unforseen situations in which a replacement cannot be assigned pursuant to Administrative Order No. 16 – Procedures Regarding the Assignment of Judges. Administrative Order No. 16 requires that when a circuit judge is temporarily unable to serve, first, the other judges in the circuit should attempt to cover the absence; next, the Chief Justice should be requested to make an assignment; lastly, Administrative Order No. 1 should be utilized.

Section 2. When a special judge is to be elected, notice shall be given by the clerk of the court to the regular practicing attorneys in the county served by the court in the most practical manner under the circumstances, including giving notice by telephone or by posting the notice in a public and conspicuous place in the courtroom. Upon notice from the clerk of the court, the regular practicing attorneys attending the court may elect a special judge. The attorneys present in the courtroom shall elect one of their number as special judge. The election shall be conducted by the clerk of the court, who will accept nominations from the attorneys present. Only attorneys who are qualified to serve as special judge may vote in the election of a special judge. The election shall be by secret ballot. The attorney receiving a majority of the votes shall be declared elected as special judge. He or she shall immediately be sworn in by the clerk and shall immediately enter upon the duties of the office. He or she shall adjudicate those causes pending at the time of his or her election.

Section 3. No person who is not an attorney regularly engaged in the practice of law in the State of Arkansas and duly licensed and in good standing to do so, and who is not a resident possessed of the qualifications required of an elector of this state, whether registered to vote or not, shall be elected special judge. A law clerk is not eligible to be elected as a special judge.

Section 4. For purposes of this rule, each division of circuit court in a multi-judge county shall be considered to be a separate court.

Section 5. The clerk of the court in the county in which the special judge election is held shall make a record of the proceedings, which shall be a part of the record of the court and shall be in substantially the following form:

IN THE __________ COURT OF _______________ COUNTY, ARKANSAS
IN THE MATTER OF __________________________, SPECIAL JUDGE
Now on this ________ day of ____________________, ______, Honorable ______________________________
[notified the clerk that he/she was unable to attend or preside over this court on this day]
[failed to attend and preside over this court on this day].
WHEREUPON, the Clerk gave notice pursuant to Administrative Order No. 1 that an election was to be held for a Special Judge to preside during the absence of said Judge.
AND THEREAFTER, Honorable ____________________, an attorney at law, a resident of the State of Arkansas and possessing the required qualifications, having received a majority of the votes cast at such special election, at which only the practicing attorneys in attendance in the Court were allowed to vote, was found and declared to be duly elected Special Judge to preside during the absence of Honorable ______________.
WHEREUPON, the Clerk did administer the oath of office required by law for such Special Judge, and he/she assumed the bench and entered upon the discharge of his/her duties herein.

___________________________________
Clerk

OATH OF OFFICE
STATE OF ARKANSAS )
COUNTY OF __________ )
I, ______________________________________, do solemnly swear that I will support the Constitution of the United States and the Constitution of the State of Arkansas, and that I will faithfully discharge the duties of the office of Special Judge of _________ Court, _____________ Division, __________________________ County, upon which I am about to enter.
_________________________________________
Special Judge

Witnesses:
__________________________________________
__________________________________________
__________________________________________

Subscribed and sworn to before me this ____day of _______,_____.
__________________________________________
Clerk

By:
__________________________________________
Deputy Clerk

History

History. Adopted December 21, 1987, effective March 14, 1988; amended May 24, 2001, effective July 1, 2001; amended May 27, 2010.

All laws in conflict with the Arkansas Rules of Civil Procedure, Rules of Appellate Procedure and Rules for Inferior Courts shall be deemed superseded as of the effective dates of these rules.

(a) When an initial record or pleading is filed with the Clerk of the Supreme Court and Court of Appeals, a cover sheet shall be completed and filed. The cover sheet shall be used for case initiation purposes. The cover sheet shall not replace or supplement the filing and service of other papers as required by law or the Rules of the Supreme Court and Court of Appeals.

(b) The Administrative Office of the Courts shall be responsible for the content and format of the cover sheet and instructions for its use.

The Clerk shall not accept an initial record or pleading that is not accompanied by the cover sheet. The Clerk shall place the completed cover sheet in the case file.

The attorney or pro se litigant at the time of filing an initial record or pleading shall be responsible for completing the information on the cover sheet. The cover sheet shall be typewritten; however, a pro se litigant  may submit a handwritten cover sheet.

Rule adopted by per curiam order June 20, 2013 and effective August 1, 2013.

(f) PDF documents shall be submitted on a Compact Disk (CD), Digital Video Disk (DVD), portable "flash" or "thumb" drive, or on other electronic media that may be commonly used for transporting digital information. Only one electronic media copy of PDF documents shall be submitted with the filing of the original paper documents. PDF documents shall not be submitted by email. Evidence of service upon opposing counsel of the electronic media containing the PDF documents must be furnished at the time of filing the original paper documents. Provided however, electronic media containing the PDF documents shall not be served on incarcerated pro se litigants.

Amended and effective by per curiam order September 12, 2013.

A JUDGE SHALL UPHOLD AND PROMOTE THE INDEPENDENCE, INTEGRITY, AND IMPARTIALITY OF THE JUDICIARY, AND SHALL AVOID IMPROPRIETY AND THE APPEARANCE OF IMPROPRIETY.

A JUDGE SHALL PERFORM THE DUTIES OF JUDICIAL OFFICE IMPARTIALLY, COMPETENTLY, AND DILIGENTLY.

A JUDGE SHALL CONDUCT THE JUDGE’S PERSONAL AND EXTRAJUDICIAL ACTIVITIES TO MINIMIZE THE RISK OF CONFLICT WITH THE OBLIGATIONS OF JUDICIAL OFFICE.

A JUDGE, CANDIDATE FOR JUDICIAL OFFICE, OR JUDGE-ELECT SHALL NOT ENGAGE IN POLITICAL OR CAMPAIGN ACTIVITY THAT IS INCONSISTENT WITH THE INDEPENDENCE, INTEGRITY, OR IMPARTIALITY OF THE JUDICIARY.

Amended and effective December 15, 2016.

The following definitions are set forth: The word "Section" refers to sections of the per curiam of July 5, 1983. "Board" hereinafter referred to, is the Certified Court Reporter Examiners Board. "Certified Court Reporter", or its abbreviation, "CCR", means any person holding a valid regular or temporary certificate in one of the methods approved herein as a certified verbatim reporter. The Certificate shall reflect the method of certification according to the system tested. "Verbatim Reporting" means the making of a verbatim record of court proceedings, depositions, or proceedings before any grand jury by means of manual or machine shorthand or mask dictation. No system of direct electrical recording shall be considered a means of verbatim reporting.

 

A. Purpose. These Procedures are promulgated for the purpose of regulating the
professional conduct of attorneys at law and shall apply to complaints filed and formal
complaints instituted against attorneys after the effective date of these Procedures, and within the
purview of the jurisdiction and the authority of the Arkansas Supreme Court Committee on
Professional Conduct. From the effective date hereof, these Procedures shall apply to transfers
to inactive status, to reinstatements, and to the extent that limitations and special requirements
pertain, to attorneys presently suspended, disbarred or who have surrendered their law licenses.
Every attorney now or hereafter licensed to practice law in the State of Arkansas shall be a
member of the Bar of this State and subject to these Procedures. The jurisdiction of the Supreme
Court Committee on Professional Conduct shall extend to lawyers in active, inactive or
suspended status.
B. Rules of professional conduct adopted. The court has adopted the Model Rules of
Professional Conduct of the American Bar Association, as amended, known now as the Arkansas
Rules of Professional Conduct (the "Rules"), as the standard of professional conduct of attorneys
at law. All attorneys are subject to these Procedures.
C. Nature of proceedings. Disciplinary proceedings are neither civil nor criminal but are
sui generis.
D. Repealer. To the extent that former rules or existing provisions of the Arkansas Code
Annotated are in conflict with these Procedures, they are hereby overruled and superseded.
These Procedures shall not be deemed exclusive of, but supplemental to, those provisions of the
Arkansas Code Annotated with which the Procedures are not in conflict.

A judge shall comply with the law, including the Arkansas Code of Judicial Conduct.

As used in these Procedures, unless the context otherwise requires:
A. "CLERK" means the Clerk of the Arkansas Supreme Court.
B. "COMMITTEE" means the Arkansas Supreme Court Committee on Professional
Conduct.
C. "COMPLAINANT" means the person(s) initiating a complaint, the Executive
Director when acting at his or her own instance, or the Committee when acting at its own
instance or on behalf of another in initiating a complaint.
D. "COMPLAINT" means an inquiry, allegation, or information of whatever nature and
in whatever form received by, coming to the attention of, or initiated by the Office of
Professional Conduct or the Committee and concerning the conduct of a person subject to the
jurisdiction of the Committee.
E. "FORMAL COMPLAINT" means a complaint directed to an attorney by the Office
of Professional Conduct setting forth the alleged violation(s) of the Rules and informing the
attorney of the right to file a written response.
F. "LESSER MISCONDUCT" is defined in Section 17(C).
G. "OFFICE OF PROFESSIONAL CONDUCT" means the staff office managed and
supervised by the Executive Director, which is responsible for receiving and investigating all
complaints concerning members of the Arkansas Bar, filing formal complaints, presenting cases
in hearings before the Committee panels, and litigating cases from the Committee before any
court of this State.
H. "RESPONDENT" or "RESPONDENT ATTORNEY" means an attorney against
whom a formal complaint has been initiated, whether or not the attorney has failed to file a
written response.
I. "RULES" means the former Model Rules of Professional Conduct of the American
Bar Association, as amended, and, after May 1, 2005, the Arkansas Rules of Professional
Conduct, and any statutory provisions or rules adopted by the Arkansas Supreme Court
regulating the professional conduct of attorneys at law.
J. "SERIOUS CRIME" means (1) any felony, (2) any lesser crime that reflects adversely
on the lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects, or (3) any crime
a necessary element of which, as determined by the statutory or common law definition of the
crime, involves interference with the administration of justice, false swearing, misrepresentation,
fraud, deceit, bribery, extortion, misappropriation, theft or an attempt, conspiracy or solicitation
of another to commit a "serious crime."
K. "SERIOUS MISCONDUCT" is defined in Section 17(B).
L. "SUBSTANTIAL," when used for the purposes of these Procedures in reference to
degree or extent, means beyond mere suspicion or conjecture and of sufficient force and
character to compel a conclusion one way or another with reasonable and material certainty and
precision.
M. "UNAVOIDABLE CIRCUMSTANCES" means circumstances not attributable to
negligence, carelessness, fault, or the lack of diligence on the part of the respondent attorney.

A judge shall act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety.

COMMENT [1] Public confidence in the judiciary is eroded by improper conduct and conduct that creates the appearance of impropriety. This principle applies to both the professional and personal conduct of a judge. [2] A judge should expect to be the subject of public scrutiny that might be viewed as burdensome if applied to other citizens, and must accept the restrictions imposed by the Code. [3] Conduct that compromises or appears to compromise the independence, integrity, and impartiality of a judge undermines public confidence in the judiciary. Because it is not practicable to list all such conduct, the Rule is necessarily cast in general terms. [4] Judges should participate in activities that promote ethical conduct among judges and lawyers, support professionalism within the judiciary and the legal profession, and promote access to justice for all. [5] Actual improprieties include violations of law, court rules or provisions of this Code. The test for appearance of impropriety is whether the conduct would create in reasonable minds a perception that the judge violated this Code or engaged in other conduct that reflects adversely on the judge’s honesty, impartiality, temperament, or fitness to serve as a judge. [6] A judge should initiate and participate in community outreach activities for the purpose of promoting public understanding of and confidence in the administration of justice. In conducting such activities, the judge must act in a manner consistent with this Code.

A. Composition/Term of Office.
(1) The Supreme Court shall appoint the members of the Committee on
Professional Conduct to assist in enforcing these Procedures. The Committee shall consist of
two separate seven-member panels, designated Panel A and Panel B. Each panel will include
five attorneys, one chosen from the State at large and one from each of the four Congressional
Districts. Two non-attorneys will be chosen to serve on each panel, and these four lay members
will be chosen from the State at large. Each appointment shall be for a term of six years, unless
otherwise designated by the Supreme Court. Members may be reappointed to one successive
six-year term. Terms shall be staggered. Vacancies occurring from causes other than expiration
of term of office will be filled by the Supreme Court as they occur, and the person so appointed
shall serve the remainder of his or her predecessor's term. If the remainder of the vacant term is
less than two years, the person appointed is eligible for appointment to two successive six-year
terms. Committee members shall serve until their successors are appointed and certified. The
Committee shall elect one of its members as Chairperson and another as Secretary. The
Committee, consistent with these Procedures, may adopt such internal operating rules and
policies as may be necessary to facilitate the performance of its duties, responsibilities, and
administrative functions. All such internal operating rules and policies shall be provided to all
Committee members.
(2) Members shall refrain from taking part in any disciplinary proceeding in
which a judge similarly situated would be required to recuse.
(3) Fourteen reserve members shall be appointed to serve as Panel C and Panel
D, a pool from which replacements may be drawn in those instances in which members of the
Committee are disqualified or unable to serve. Ten of the reserve members shall be lawyers with
at least two from each Congressional District. Four of the reserve members shall not be lawyers
and shall be selected from the State at large. In other respects, the terms of service for reserve
members shall be the same as provided for the Committee. Reserve members shall possess the
authority, powers, immunities, and entitlements provided for the Committee by these Procedures.
The Committee Chairperson or Executive Director shall select reserve members from a rotating
list to serve, individually or collectively, as the situation requires, in those instances in which
members of a panel of the Committee consider themselves disqualified or are unable to serve.
Reserve members serving as replacements shall be selected so as to maintain the appropriate
lawyer/non-lawyer composition. Reserve members do not have to be selected unless the
required quorum of the Committee or a panel thereof is not present. If necessary, the Supreme
Court may appoint additional persons to serve as reserve members to permit the Committee to
discharge its duties.
B. Quorum. A majority of the members of Panels A and B of the Committee shall
constitute a quorum for the conduct of Committee business. The Committee shall not sit en banc
for disciplinary proceedings.
C. Authority/Powers.
(1) The Committee, through its panels, shall have, and is hereby granted,
authority to impose any sanctions deemed appropriate as provided in Section 7 (Procedure),
Section 17 (Sanctions), and Section 18 (Fines, Costs, and Restitution).
(2) The Committee, through its panels, is authorized to take action by written
ballot, subject to the requirements and limitations set out in Section 10 of these Procedures.
(3) The Committee, through its panels, is authorized to conduct hearings at
either:
(a) The request of the panel; or
(b) The request of the respondent attorney after written ballots are taken.
(4) The Committee is authorized to hold meetings to conduct the business of the
Committee, which consists of, but is not limited to, the election of officers, the determination of
pending complaints, and such administrative matters as required.
(5) The Committee, acting through its Chairperson, may temporarily designate
from the staff attorneys of the Office of Professional Conduct an acting Executive Director in
any case in which the Executive Director or the Deputy Director (pursuant to Section 5(D)(3)) is
unable to act, or recuses, or disqualifies.
(6) The Committee shall maintain a permanent office under the supervision of the
Executive Director for the conduct of its business and the maintenance of the various records of
the Committee.
(7) The seal heretofore adopted by the Committee shall be the official seal for its
use in the performance of the duties imposed by these Procedures.
(8) The Executive Director or the Committee, through its panels, shall have the
authority to issue summonses for any person(s), or subpoenas for any witness(es), including the
production of documents, books, records, or other evidence, in the same manner as is provided
for civil process pursuant to the Arkansas Rules of Civil Procedure, requiring the presence of any
person, or the attendance of any witness before the Committee for the purpose of testimony, or in
furtherance of an investigation. Such process shall be issued under the seal of the Committee
provided for in subsection C(7) of this Section and be signed by the Chairperson of the
Committee, the Secretary, the chair of a panel of the Committee, or the Executive Director. Any
subpoenas issued herein shall clearly indicate that the subpoenas are issued in connection with a
confidential investigation under these Procedures and that it is regarded as contempt of the
Supreme Court for a person subpoenaed to breach the confidentiality of the investigation. If
found to be in contempt of the Supreme Court under these Procedures, a person may be punished
by incarceration, imposition of a fine, or both. In addition, it shall be grounds for discipline
under these Procedures for a subpoenaed attorney to breach the confidentiality of the
investigation. It shall not be regarded as a breach of confidentiality for a person subpoenaed to
seek or consult with legal counsel in regard to the subpoena, nor shall the confidentiality apply to
subpoenas issued in connection with a public hearing.
(9) The Committee, through the Chairperson or a panel chair, or the Executive
Director, may seek immunity from criminal prosecution for a reluctant witness, using the
procedure of Ark. Code Ann. ?? 16-43-601 to -606 (1987), as amended, and any successor or
other applicable statute.
(10) The Committee may propose changes to these Procedures for promulgation
by the Supreme Court and may comment on existing and proposed Rules.
(11) The Committee shall periodically review the operation of the system with
the Supreme Court.
(12) The Committee, working with the Office of Professional Conduct, shall
inform the public about the existence and operation of the system and the disposition of each
matter in which public discipline has been imposed, a lawyer has been transferred to or from
disability inactive status, or a lawyer has been reinstated. Communication options should include
toll-free telephone and the Internet.
(13) The Committee shall perform administrative oversight over the Office of
Professional Conduct which shall include: reviewing the productivity and efficiency of the
office; assessing caseload management; reviewing and making recommendations concerning
budgetary matters; making recommendations to the Executive Director; and improving the
statistical records of the office. Administrative responsibilities may be delegated to panels of the
Committee on a rotating basis, which may include an Executive Committee selected by the
Committee.
(14) When so requested by a federal judge under the Uniform Federal Rules of
Disciplinary Enforcement adopted by the United States District Courts of Arkansas on May 1,
1980, or successor rules, the Committee may act as the disciplinary agency, and the Executive
Director as counsel, in a federal disciplinary action. Any additional expense incurred in the
processing of a federal complaint will be paid from the funds arising from the assessments levied
pursuant to the Uniform Federal Rules and available for that purpose. When final action is taken
under a federal complaint, a report of that action will be made to the federal judge who referred
the matter, and the Committee may also furnish to the federal judge any other information from
its files necessary to fulfill its duties as disciplinary agency.
D. Immunity. The Committee, its individual members, its agents, the Executive Director,
and employees and agents of the Office of Professional Conduct are absolutely immune from suit
or action for their activities in discharge of their duties under these Procedures, to the full extent
of judicial immunity in Arkansas.
E. Expenses. From the funds established and appropriated by the Arkansas Supreme
Court, and in accordance with budgetary limitations, members of the Committee shall be entitled
to receive their travel and hotel expenses, reimbursement for postage, stationery,
communications, an attendance allowance, other incidental expenses including stenographic bills
and court costs chargeable against them, and to attend training and continuing education
programs. All such items shall be paid by the Clerk by check on such funds. Accounts must be
itemized and certified by the Chairperson of the Committee, the Secretary, or the Executive
Director as true and correct and for the official business of the Committee or the Office of
Professional Conduct.

A judge shall not abuse the prestige of judicial office to advance the personal or economic interests of the judge or others, or allow others to do so.

COMMENT [1] It is improper for a judge to use or attempt to use his or her position to gain personal advantage or deferential treatment of any kind. For example, it would be improper for a judge to allude to his or her judicial status to gain favorable treatment in encounters with traffic officials. Similarly, a judge must not use judicial letterhead to gain an advantage in conducting his or her personal business. [2] A judge may provide a reference or recommendation for an individual based upon the judge’s personal knowledge. The judge may use official letterhead if the judge indicates that the reference is personal and if there is no likelihood that the use of the letterhead would reasonably be perceived as an attempt to exert pressure by reason of the judicial office. [3] Judges may participate in the process of judicial selection by cooperating with appointing authorities and screening committees, and by responding to inquiries from such entities concerning the professional qualifications of a person being considered for judicial office. [4] Special considerations arise when judges write or contribute to publications of for-profit entities, whether related or unrelated to the law. A judge should not permit anyone associated with the publication of such materials to exploit the judge’s office in a manner that violates this Rule or other applicable law. In contracts for publication of a judge’s writing, the judge should retain sufficient control over the advertising to avoid such exploitation. A JUDGE SHALL PERFORM THE DUTIES OF JUDICIAL OFFICE IMPARTIALLY, COMPETENTLY, AND DILIGENTLY.

A. General. The Committee may delegate to its panels the power to act for the
Committee in discharging its powers and duties. The Committee or the Executive Committee
shall establish the method of rotation by which panels are assigned complaints.
B. Panels. Each panel shall elect a lawyer member of that panel as its chair. A panel
member whose term has expired may continue to serve on any case that was commenced before
the expiration of the member's term. Five members shall constitute a quorum. The panel shall
act only with the concurrence of at least four members. Reserve members may be appointed to
serve on a panel pursuant to Section 3(A)(3).
C. Powers and Duties. Panels shall have the following powers and duties:
(1) To conduct proceedings during the ballot phase concerning formal complaints
of misconduct, petitions for reinstatement, and petitions for transfer to and from disability
inactive status;
(2) To conduct hearings;
(3) To adopt written findings of fact, conclusions of law, and orders prepared
with the administrative assistance of the Office of Professional Conduct; and
(4) To discharge other duties imposed by these Procedures.

The duties of judicial office, as prescribed by law, shall take precedence over all of a judge’s personal and extrajudicial activities.

COMMENT

[1] To ensure that judges are available to fulfill their judicial duties, judges must conduct their personal and extrajudicial activities to minimize the risk of conflicts that would result in frequent disqualification. See Canon 3.

[2] Although it is not a duty of judicial office unless prescribed by law, judges are encouraged to participate in activities that promote public understanding of and confidence in the justice system.

Any court reporter serving in that capacity on or before January 1, 1983 may be issued a certificate as a Certified Court Reporter without examination provided the application is made prior to May 1, 1984 and is accompanied by a recommendation of a Circuit, Chancery or Court of Appeals Judge and two attorneys licensed to practice law in this state who certify that the applicant was a practicing court reporter on or before January 1, 1983.

A. General. The Supreme Court shall employ the Executive Director of the Office of
Professional Conduct, who shall be an attorney actively licensed to practice law in the State of
Arkansas, shall serve at the will of the Court, and shall devote full time and effort to promptly
and efficiently perform the duties stated in this Section, and such other duties as directed by the
Court or the Committee.
B. Duties-Office.
(1) The Executive Director may attend and, at the request of the Committee, act
as counsel in presenting testimony and other evidence at any hearing pursuant to these
Procedures.
(2) The Executive Director, or, in his or her absence or disqualification from a
case, the acting Executive Director, shall have power to administer oaths in all matters incident
to the duties imposed by these Procedures, and such power and authority shall be coextensive
with the State.
(3) The Executive Director shall be responsible for the administration of the
business office and the security of the records. As authorized by and upon such terms as the
Court shall direct, the Executive Director may employ such personnel, including staff attorneys,
investigators, and temporary employees, and may retain independent counsel, as may be
required to perform the administrative, investigative, and legal functions of the Committee and
the Office of Professional Conduct. The Executive Director and the professional staff of the
Office of Professional Conduct shall periodically attend training and continuing education
programs.
(4) The Executive Director shall receive reports from financial institutions
pursuant to Rule 1.15(d)(1) indicating that a properly payable instrument has been presented
against a lawyer's trust account containing insufficient funds, irrespective of whether or not the
instrument is honored, and take appropriate action in response to such information.
C. Duties-Complaints
(1) It shall be the duty of the Office of Professional Conduct to receive and
investigate all complaints against any member of the Bar. Such complaints shall be docketed
and assigned a permanent file number. The Office of Professional Conduct and the Committee
may accept and treat as a complaint any writing signed by a judge of a court of record in this
State regardless of whether such signature is verified or any per curiam order or opinion issued
by any appellate court. The Executive Director may initiate a complaint at his or her own
instance.
(2) In lieu of filing and serving a formal complaint, the Executive Director may
refer matters involving lesser misconduct, as defined in Section 17(C), to alternatives-todiscipline programs approved by the Supreme Court. Such programs may include, in addition to
the Arkansas Judges and Lawyers Assistance Program, programs for fee arbitration, arbitration,
mediation, law office management assistance, psychological counseling, continuing education,
and ethics.
(3) Upon a determination by the Executive Director that a complaint sets out
allegations falling within the purview of the Committee and that those allegations are supported
by sufficient evidence, the Executive Director shall provide any assistance needed in the
preparation of the complainant's affidavit and shall process a formal complaint pursuant to these
Procedures.
(4) If the Executive Director determines that a complaint does not set forth
sufficient grounds to reasonably support preparation of a formal complaint but contains
information indicative of a misunderstanding or controversy between an attorney and a client or
a third party who may be aggrieved by the conduct or circumstances and the best interests of the
integrity of the profession and the valid concerns of the complainant would be served by
reconciliation or communication between the parties, the Executive Director may, at the request
of the complainant or in the judgment of the Executive Director, contact the attorney by
telephone or letter advising the attorney of the nature of the complaint and may attempt an
informal resolution. Such a procedure will not be considered a formal complaint.
(5) Review of the Executive Director's Decision.
(a) A complainant who is not satisfied with the Executive Director's
determination that the allegations of the complaint fall outside the purview of the Committee or
that the allegations are not supported by sufficient evidence to file a formal complaint may
request a review of that determination by Panel C.
(b) The request for review shall be filed with the Executive Director in
writing within twenty (20) days from the date of mailing of the letter to the address provided by
the complainant in the grievance or other document of initial complaint, unless notified by the
complainant in writing of a new address prior to the mailing of the letter, notifying the
complainant of the determination of the lack of a basis for filing a formal complaint.
(c) The written request will set out in general terms the complainant's
grounds for objection to the Executive Director's decision.
(d) Upon receipt of a request for review, the Executive Director will
acknowledge in writing the request and shall forward the complaint information, including the
complainant's grounds for objection to the Executive Director's decision, to five members of
Panel C, one of whom will be a nonlawyer, directing that they review the Executive Director's
disposition of the matter.
(e) The reviewing members, by majority vote, may (1) approve the
Executive Director's disposition of the matter, (2) direct that a formal complaint be prepared, or
(3) request further investigation of the matter by the Executive Director. Votes may be taken by
written ballots on forms supplied by the Office of Professional Conduct or by telephone. With
the administrative assistance of the Office of Professional Conduct, the result of the vote will be
made known to the Executive Director by the chair of Panel C. If a formal complaint is
instituted, members of the five-member reviewing body shall not participate in subsequent
proceedings in the matter.
(f) The Executive Director shall then notify the complainant in writing of
the results of the review and dismiss the complaint, initiate a formal complaint, or investigate
further, as appropriate.
(g) There shall be no further review or appeal of Panel C's final decision
on a review.
D. Staff Attorneys.
(1) All Staff Attorneys employed by the Executive Director shall be actively
licensed to practice law in the State of Arkansas.
(2) Staff Attorneys shall serve at the direction and pleasure of the Executive
Director and may perform all duties and possess all authority of the Executive Director as the
Executive Director may delegate, except for the final determination of sufficiency of formal
complaints and the authority and responsibilities provided in Sections 3(C)(8) (subpoenas) and
5(B)(2) (oaths), which authority may be exercised by the acting Executive Director in the
absence of, or upon the disqualification from a case by, the Executive Director.
(3) In the event of the temporary inability of the Executive Director to fully
discharge the duties of office, or when a vacancy exists in that office, the Deputy Director shall
discharge such duties as the acting Executive Director. If the Executive Director determines that
a conflict of interest exists for the Executive Director with regard to a particular complaint,
complainant, or respondent, the Executive Director may recuse from the matter, and the Deputy
Director shall discharge such duties as the acting Executive Director for that matter.
E. Compensation/Expenses. The Executive Director and staff of the Office of
Professional Conduct shall be paid such reasonable salary and expenses as deemed necessary and
appropriate by the Supreme Court. Employee salaries, benefits, and expenses of the Office shall
be payable from funds budgeted to the Committee by the Supreme Court.

A. A judge shall uphold and apply the law, and shall perform all duties of judicial office fairly and impartially.

B. A judge may make reasonable accommodations, consistent with the law and court rules, to facilitate the ability of all litigants to be fairly heard.

COMMENT [1] To ensure impartiality and fairness to all parties, a judge must be objective and open-minded.

[2] Although each judge comes to the bench with a unique background and personal philosophy, a judge must interpret and apply the law without regard to whether the judge approves or disapproves of the law in question.

[3] When applying and interpreting the law, a judge sometimes may make good-faith errors of fact or law. Errors of this kind do not violate this Rule.

[4] The growth in litigation involving self-represented litigants and the responsibility of courts to promote access to justice warrant reasonable flexibility by judges, consistent with the law and court rules, to ensure that all litigants are fairly heard. Examples of accommodations that may be made include but are not limited to (1) making referrals to any resources available to assist the litigant in the preparation of the case; (2) liberally construing pleadings to facilitate consideration of the issues raised; (3) providing general information about proceeding and foundational requirements; (4) attempting to make legal concepts understandable by using plain language whenever possible; (5) asking neutral questions to elicit or clarify information; (5) modifying the traditional order of taking evidence; and (6) explaining the basis for a ruling.

Amended and effective December 15, 2016.

A. Communications Confidential. Subject to the exceptions listed in subsections B and C of this Section:

(1) All communications, complaints, formal complaints, testimony, and evidence filed with, given to, or given before the Committee, or filed with or given to any of the employees and agents of the Office of Professional Conduct during the performance of their duties, that are based upon a complaint alleging an attorney has violated the Rules, shall be absolutely privileged and confidential and exempt from disclosure under the Arkansas Freedom of Information Act, Ark. Code Ann. sections 25-19-101 et seq., pursuant to Ark. Code Ann. section 25-19-105(b)(8), as documents protected from disclosure by order or rule of the Supreme Court of Arkansas; and

(2) All actions and activities arising from or in connection with an alleged violation of the Rules by an attorney licensed to practice law in this State are absolutely privileged and confidential.

(3) These provisions of privilege and confidentiality shall apply to complainants, except that a complainant may disclose the fact that he or she has submitted a complaint to the Office of Professional Conduct and the contents of the complaint.

B. Exceptions.

(1) Except as expressly provided in these Procedures, proceedings under these Procedures are not subject to the Arkansas Rules of Civil Procedure regarding discovery.
(2) The records of public hearings conducted by the Committee pursuant to Section 11 of these Procedures are public information.
(3) In the case of disbarment, the Committee and the Office of Professional Conduct are authorized to release any information that either deems necessary for that purpose.

(4) The Committee is authorized to release information:

(a) For statistical data purposes;
(b) To a corresponding lawyer disciplinary authority or an authorized agency or body of a foreign jurisdiction engaged in the regulation of the practice of law;
(c) To the State Board of Law Examiners;
(d) To the Committee on the Unauthorized Practice of Law;
(e) To the Arkansas Client Security Fund Committee;
(f) To the Commission on Judicial Discipline and Disability;
(g) To any other committee, commission, agency, or body within the State empowered to investigate, regulate, or adjudicate matters incident to the legal profession, when such information will assist in the performance of those duties;
(h) To any agency, body, or office of the federal government or this State charged with responsibility for investigation and evaluation of a lawyer's qualifications for appointment to a governmental position of trust and responsibility or for the discipline or sanction of any attorney; or,
(i) Pursuant to the provisions of Section 9(A) and Section 15(B) of these Procedures

(5) Any attorney against whom a formal complaint is pending shall have disclosure of all information, excluding attorney work product, research, and materials obtained and intended for use as rebuttal to any witness for the respondent attorney at a hearing, in the possession of the Committee and the Office of Professional Conduct concerning that complaint, including any record of prior complaints about that attorney. Procedures for discovery for formal complaints are set out in Section 8.

(6) The attorney about whom a complaint is made may waive, in writing, the confidentiality of the information.

(7) In all cases, the complainant shall be provided with a copy of the respondent attorney's affidavit of response and afforded a reasonable opportunity to reply, in accordance with Section 9(B)(3).

C. Sanctions Made Public. When a public sanction becomes final under these Procedures or when the Committee decides to initiate disbarment proceedings, a copy shall be forwarded to the Clerk and shall be maintained as a public record by the Clerk. Such information shall also be publicly disseminated, including release to the press and posting on the Arkansas Judiciary website.

(A) A judge shall perform the duties of judicial office, including administrative duties, without bias or prejudice.

(B) A judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice, or engage in harassment, and shall not permit court staff, court officials, or others subject to the judge’s direction and control to do so.

(C) A judge shall require lawyers in proceedings before the court to refrain from manifesting bias or prejudice, or engaging in harassment, against parties, witnesses, lawyers, or others.

(D) The restrictions of paragraphs (B) and (C) do not preclude judges or lawyers from making legitimate reference to personal characteristics when they are relevant to an issue in a proceeding.

COMMENT

[1] A judge who manifests bias or prejudice in a proceeding impairs the fairness of the proceeding and brings the judiciary into disrepute.
[2] Examples of manifestations of bias or prejudice include but are not limited to epithets; slurs; demeaning nicknames; negative stereotyping; attempted humor based upon stereotypes; threatening, intimidating, or hostile acts; suggestions of connections between race, ethnicity, or nationality and crime; and irrelevant references to personal characteristics. Even facial expressions and body language can convey to parties and lawyers in the proceeding, jurors, the media, and others an appearance of bias or prejudice. A judge must avoid conduct that may reasonably be perceived as prejudiced or biased.
[3] Harassment, as referred to in paragraphs (B) and (C), is verbal or physical conduct that denigrates or shows hostility or aversion toward a person on the basis of personal characteristics.

[4] Sexual harassment includes but is not limited to sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature that is unwelcome.

A. General. A panel of the Committee shall adjudicate all formal complaints alleging
violation of the Rules that may be brought to its attention and shall give the attorney involved an
opportunity to explain or refute the charge.

B. Standard of Proof. Formal charges of misconduct, petitions for reinstatement, and
petitions for transfer to or from inactive status shall be established by a preponderance of the
evidence.
C. Burden of Proof. The burden of proof in proceedings seeking discipline or
involuntary transfer to inactive status is on the Executive Director. The burden of proof in
proceedings seeking reinstatement or transfer from involuntary or voluntary inactive status is on
the attorney seeking such action.
D. Limitations on Actions. The institution of disciplinary actions pursuant to these
Procedures shall be exempt from all statutes of limitations.

E. Evidence and Procedures. Except as noted in these Procedures, the Arkansas Rules
of Evidence and the Arkansas Rules of Civil Procedure shall not generally apply to disciplinary
proceedings. The Executive Director and all other attorneys submitting documents in
disciplinary proceedings shall quote, highlight, or pinpoint cite the portions of exhibits,
transcripts, and other submissions on which they want the Committee members to focus, rather
than merely submitting voluminous documents without specific references.
F. Pleadings. All pleadings filed before the Committee shall be captioned "Before the
Arkansas Supreme Court Committee on Professional Conduct" and be styled "In re
________________," to reflect the name of the respondent attorney.
G. Prior Sanctions. Information concerning prior discipline of the respondent attorney
shall not be divulged to the Committee members hearing or reviewing a complaint until after a
finding of misconduct has been made, unless said information is relevant for purposes of
impeachment or probative of issues pending in the present matter, including, without limitation,
proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of
mistake or accident. [See Ark. R. Evid. 404(b).] If a panel is considering a matter by ballot-vote
procedure, information concerning prior discipline of the respondent attorney, which is not
subject to disclosure as set out above, shall be provided to the panel members in a sealed
envelope accompanying the ballot, and shall not be unsealed and reviewed by the voting panel
member until and unless the panel member shall mark the ballot finding a violation of a Rule.
H. Ex Parte Communication.
(1) Members of the Committee shall not communicate ex parte with the
Executive Director, the staff of the Office of Professional Conduct, the respondent attorney, or
his or her counsel regarding a pending or impending investigation or disciplinary matter, except
as explicitly provided for by law or these Procedures, or for scheduling, administrative purposes,
or emergencies that do not deal with substantive matters or issues on the merits.
(2) A violation of this rule may be cause for removal of any member from the
panel before which a matter is pending.

(A) A judge shall not be swayed by public clamor or fear of criticism.

(B) A judge shall not permit family, social, political, financial, or other interests or relationships to influence the judge’s judicial conduct or judgment.

(C) A judge shall not convey or permit others to convey the impression that any person or organization is in a position to influence the judge.

COMMENT

[1] An independent judiciary requires that judges decide cases according to the law and facts, without regard to whether particular laws or litigants are popular or unpopular with the public, the media, government officials, or the judge’s friends or family. Confidence in the judiciary is eroded if judicial decision making is perceived to be subject to inappropriate outside influences.

A. Scope. Within ten calendar days following the filing with the Office of Professional
Conduct of a request for a public hearing by a respondent attorney after a ballot vote pursuant to
Section 10(D)(3), the Executive Director and the respondent attorney shall exchange the names,
addresses, and telephone numbers of all persons having knowledge of relevant facts and of all
potential witnesses at the public hearing. Within sixty (60) days following the filing of the
request for a public hearing, the Executive Director and the respondent attorney may take
depositions in accordance with Arkansas Rule of Civil Procedure 30 and shall comply with
reasonable requests for (i) non-privileged information and evidence relevant to the charges or the
attorney, and (ii) other material upon good cause shown to the chair of the panel before which
the matter is pending for hearing.
B. Resolution of Prehearing Disputes.
(1) Disputes concerning discovery shall be determined by the chair of the panel
to which the matter was assigned. All discovery orders by the chair are interlocutory and may
not be appealed prior to the entry of the final order.
(2) Other prehearing disputes or motions, including a motion to dismiss the
complaint, shall be decided by the hearing panel chair, unless the panel chair determines that the
dispute or motion should be decided by the full hearing panel. If a motion to dismiss the
complaint is denied by the hearing panel chair or by the full hearing panel, that denial shall not
be grounds for disqualification or recusal of the chair or any member of the hearing panel
deciding the motion.
C. Rules of Civil Procedure Not Applicable. Proceedings under these Procedures are not
subject to the Arkansas Rules of Civil Procedure regarding discovery, except those rules relating
to depositions and subpoenas. Interrogatories, requests for admissions, and other forms of
discovery not specifically authorized in these Procedures are not available in proceedings before
the Committee.

(A) A judge shall perform judicial and administrative duties, competently and diligently.

(B) A judge shall cooperate with other judges and court officials in the administration of court business.

COMMENT

[1] Competence in the performance of judicial duties requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary to perform a judge’s responsibilities of judicial office.

[2] A judge should seek the necessary docket time, court staff, expertise, and resources to discharge all adjudicative and administrative responsibilities.

[3] Prompt disposition of the court’s business requires a judge to devote adequate time to judicial duties, to be punctual in attending court and expeditious in determining matters under submission, and to take reasonable measures to ensure that court officials, litigants, and their lawyers cooperate with the judge to that end.

[4] In disposing of matters promptly and efficiently, a judge must demonstrate due regard for the rights of parties to be heard and to have issues resolved without unnecessary cost or delay. A judge should monitor and supervise cases in ways that reduce or eliminate dilatory practices, avoidable delays, and unnecessary costs.

RESPOND/ RECONSIDERATION.
A. Service of Complaint.
(1) Upon the filing of a formal complaint, the Executive Director shall furnish to
the attorney complained against a copy of the formal complaint and advise the attorney that he or
she may file a written response in affidavit form with any supporting evidence desired. The
attorney's mailing address on record with the Clerk shall constitute the address for service by
mail. Attorneys shall be responsible for informing the Clerk in writing and within a reasonable
time of any change of such address. Certified mailing of the formal complaint to said address
shall be deemed a waiver of confidentiality for purposes of Section 9 (A)(2)(c).
(2) Service may be effected on a respondent attorney by:
(a) Mailing a copy of the formal complaint to attorney's address of record
by certified, restricted delivery, return receipt mail; or,
(b) Personal service, as provided by the Arkansas Rules of Civil
Procedure or by an Investigator with the Office of Professional Conduct or by an affidavit of
service signed by the respondent attorney; or,
(c) When reasonable attempts to accomplish service by Section 9(A)(2)(a)
or Section 9(A)(2)(b) have been unsuccessful, then a warning order, in such form as prescribed
by the Committee, shall be published weekly for two consecutive weeks in a newspaper of
general circulation within this State or within the locale of the attorney's address of record. In
addition, a copy of the formal complaint and warning order shall be sent to the respondent
attorney's address of record by regular mail.
(3) An attorney's failure to provide an accurate, current mailing address to the
Clerk, as required by Section 9(A)(1), or the failure or refusal to receive certified mailing of a
formal complaint, shall be deemed a waiver of confidentiality for the purposes of the issuance of
a warning order.
(4) Unless good cause is shown for an attorney's non-receipt of a certified
mailing of a formal complaint, the attorney shall be liable for the actual costs and expenses for
service or the attempted service of a formal complaint, to include all expenses associated with
the effectuation of service. Such sums will be due and payable to the Committee before any
response to a formal complaint will be accepted or considered by the Committee.
(5) After service has been effected by any of the aforementioned means,
subsequent mailings by the Committee to the respondent attorney may be by regular mail to the
attorney's address of record, to the address at which service was accomplished, or to such address
as may have been furnished by the attorney, as the appropriate circumstance may dictate, except
that notices of hearings and letters of caution, reprimand, suspension, or initiation of disbarment
proceedings shall also be sent by certified, return receipt mail.
(6) Service on a non-resident attorney may be accomplished pursuant to Section
9(A)(2)(a), (b), or (c) or in any manner prescribed by the law of the jurisdiction to which the
service is directed.
B. Time and Manner of Response.
(1) Upon service of a formal complaint, pursuant to Section 9(A)(2)(a) or Section
9(A)(2)(b), or the date of the first publication, pursuant to Section 9(A)(2)(c), the attorney shall
have thirty (30) days in which to file a written response consisting of an original and eight (8)
copies with the Executive Director. In the event that the Executive Director has not received a
response within thirty (30) days following the date of service and an extension of time has not
been granted, the Executive Director shall proceed to issue ballots as provided in Section 10.
(2) At the request of an attorney, the Executive Director is authorized to grant an
extension of reasonable length for the filing of a response. Subsequent requests for extensions
must be in written form and will be ruled on by the Chairperson of the Committee or the chair of
the panel to which the matter has been assigned.
(3) Within ten (10) calendar days of receiving the attorney's response to the
complaint, the Executive Director shall provide a copy of the attorney's response to the
complainant and may provide a copy of the attorney's response to any other person who has
provided an affidavit that was attached to the complaint and advise that the complainant and
others have fifteen (15) calendar days in which to rebut or refute any allegations or information
contained in the attorney's response. The Executive Director may include any rebuttal made by
the complainant and other affiants as a part of the material submitted to the Committee for
decision, and any such rebuttal shall be provided to the respondent attorney for informational
purposes only, with no response required. If a response or rebuttal to be submitted to the
Committee contains allegations or proof of violation of the Rules not previously alleged, it may
be placed in the form of a supplemental complaint, and the respondent attorney shall be
provided a copy and permitted to respond in the manner prescribed in subsection B(1) of this
Section.
(4) The calculation of the time limitations specified in Section 9(B) shall
commence on the day following service upon the respondent. If the due date of a response falls
on a Saturday, Sunday, or legal holiday, the due date will be extended to the next regular
business day.
C. Failure to Respond/ Reconsideration.
(1) An attorney's failure to provide, in the prescribed time and manner, a written
response to a formal complaint served in compliance with Section 9(A)(2) shall constitute
separate and distinct grounds for the imposition of sanctions less than a suspension of license,
without regard for the merits of the underlying, substantive allegations of the complaint; or
(2) May be considered for enhancement of sanctions imposed upon a finding of
violation of the Rules.
(3) The separate imposition or the enhancement of sanctions for failure to
respond may be accomplished by the panel's notation of such failure in the appropriate sanction
order and shall not require any separate or additional notice to the respondent attorney.
(4) Failure to respond to a formal complaint shall constitute an admission of the
factual allegations of the complaint and shall extinguish a respondent's right to a public hearing.
(a) Provided, however, that a respondent attorney, within the time
specified in Section 10(E)(3), may file with the Executive Director an original and eight (8)
copies of a petition for reconsideration, stating, on oath, compelling and cogent evidence of
unavoidable circumstances sufficient to excuse or justify the failure to respond. Otherwise, the
panel's decision shall be final and will be filed of record with the Clerk. The Office of
Professional Conduct may respond to any petition for reconsideration within fifteen (15) days
after it is filed.
(b) Upon the filing of a petition for reconsideration and any response, the
Executive Director shall provide each member of the panel a copy of the petition and any
response for vote by written ballot consistent with provisions of Section 10.
(c) If a majority of the panel, upon a finding of clear and convincing
evidence, votes to grant the petition for reconsideration, the panel may:
(i) Permit the attorney to submit a belated affidavit of response to the
substantive allegations of the formal complaint and the matter shall proceed as though the
response had been made timely; and/or
(ii) Set aside any sanction imposed solely on the basis of the attorney's
failure to respond.
(d) If the petition for reconsideration is denied, the panel's original
decision and imposition of sanctions become final and will be filed of record with the Clerk.
Appeal from the Committee's denial of reconsideration and the imposition of sanctions may be
taken in the time and manner prescribed by the applicable provisions of Section 12. Provided,
however, that such appeal cannot attack the substantive allegations of the complaint and shall be
limited to the panel's denial of reconsideration.

(A) A judge shall accord to every person who has a legal interest in a proceeding, or that person’s lawyer, the right to be heard according to law.

(B) A judge may encourage parties to a proceeding and their lawyers to settle matters in dispute but shall not act in a manner that coerces any party into settlement.

COMMENT

[1] The right to be heard is an essential component of a fair and impartial system of justice. Substantive rights of litigants can be protected only if procedures protecting the right to be heard are observed.

[2] The judge plays an important role in overseeing the settlement of disputes, but should be careful that efforts to further settlement do not undermine any party’s right to be heard according to law. The judge should keep in mind the effect that the judge’s participation in settlement discussions may have, not only on the judge’s own views of the case, but also on the perceptions of the lawyers and the parties if the case remains with the judge after settlement efforts are unsuccessful. Among the factors that a judge should consider when deciding upon an appropriate settlement practice for a case are (1) whether the parties have requested or voluntarily consented to a certain level of participation by the judge in settlement discussions, (2) whether the parties and their counsel are relatively sophisticated in legal matters, (3) whether the case will be tried by the judge or a jury, (4) whether the parties participate with their counsel in settlement discussions, (5) whether any parties are unrepresented by counsel, and (6) whether the matter is civil or criminal.

[3] Judges must be mindful of the effect settlement discussions can have, not only on their objectivity and impartiality, but also on the appearance of their objectivity and impartiality. Despite a judge’s best efforts, there may be instances when information obtained during settlement discussions could influence a judge’s decision making during trial, and, in such instances, the judge should consider whether disqualification may be appropriate. See Rule 2.11(A)(1).

 

A. The Board of Certified Court Reporters Examiners hereafter referred to as the "Board," shall be composed of seven members who shall be appointed by this Court. Four of the members shall be judges of the Circuit or Appellate Courts and shall be appointed for terms of three years. Initially, one of the four shall be appointed for a term of one year, one for a term of two years, and two for a term of three years. Three of the Board members shall have been court reporters in and citizens of Arkansas for at least five years prior to their appointment. Of the court reporters appointed to the board, at least one shall be a machine shorthand writer, at least one shall be a mask dictation/voice writer, at least one shall be an official court reporter, and at least one shall be a freelance court reporter. Initially, one of the three shall be appointed for a term of one year, one for a term of two years, and one for a term of three years. Members of the Board shall serve without compensation but shall be reimbursed for their travel and other expenses in the performance of their duties.

B. Members shall be appointed to serve a three year term and may be reappointed to two additional three-year terms. A member whose term has expired shall continue to serve until a successor is appointed and qualified. The Court shall fill any vacancy by appointing a member for the duration of an unexpired term and may remove any member for cause. A member who has been appointed to complete an unexpired term shall be eligible for reappointment to serve two terms of three years each.

C. Each member shall take an oath that he or she will fairly and impartially and to the best of his ability administer this Rule.

Amended and effective September 21, 2017.

(a)  Docket. The clerk shall keep a book known as a "civil docket," designated by the prefix "CV"; a book known as a "probate docket," designated by the prefix "PR"; a book known as a "domestic relations docket," designated by the prefix "DR"; a book known as a "criminal docket," designated by the prefix "CR"; a book known as a "juvenile docket," designated by the prefix "JV"; and a book known as a "warrant docket." The warrant docket shall be divided into a "search warrant docket," designated by the prefix "SW" and an "arrest warrant docket," designated by the prefix "AW." Each action shall be entered in the appropriate docket book. Cases shall be assigned the letter prefix corresponding to that docket and a number in the order of filing. Beginning with the first case filed each year, cases shall be numbered consecutively in each docket category with the four digits of the current year, followed by a hyphen and the number assigned to the case, beginning with the number "1". For example: 

   criminal                              CR2002-1

   civil                                     CV2002-1

   probate                               PR2002-1

   domestic relations              DR2002-1

   juvenile                               JV2002-1

   warrant                               SW2002-1

                                              AW2002-1      

      All papers filed with the clerk, all process issued and returns thereon, all appearances, orders, verdicts and judgments shall be noted chronologically in the dockets and filed in the folio assigned to the action and shall be marked with its file number. These entries shall be brief, but shall show the nature of each paper filed or writ issued and the substance of each order or judgment of the court and of the returns showing execution of process. The entry of an order or judgment shall show the date the entry is made. Where there has been a demand for trial by jury it shall be shown on the docket along with the date upon which demand was made. In counties where the county clerk serves as the ex officio clerk of any division of the circuit court, the filing requirement for any pleading, paper, order, judgment, decree, or notice of appeal shall be satisfied when the document is filed with either the circuit clerk or the county clerk.  

     The warrant docket is used for warrants that have been returned either executed or unexecuted when a case file has not yet been opened. If a criminal case is subsequently opened, the information in the warrant docket related to the criminal case is transferred to it. Access to the contents of the warrant docket shall be governed by the applicable rule of criminal procedure and Administrative Order Number 19.

    (b)  Judgments and Orders.   
    (1)  The clerk shall keep a judgment record book in which shall be kept a correct copy of every final judgment or appealable order, or order affecting title to or lien upon real or personal property, and any other order which the court may direct to be kept.  
    (2)  The clerk shall denote the date and time that a judgment, decree or order is filed by stamping or otherwise marking it with the date and time and the word "filed." A judgment, decree or order is entered when so stamped or marked by the clerk, irrespective of when it is recorded in the judgment record book.  
    (3)  If the clerk's office has a facsimile machine, the clerk shall accept facsimile transmission of a judgment, decree or order filed in such manner at the direction of the court. The clerk shall stamp or otherwise mark a facsimile copy as filed on the date and time that it is received on the clerk's facsimile machine during the regular hours of the clerk's office or, if received outside those hours, at the time the office opens on the next business day. The date stamped on the facsimile copy shall control all appeal-related deadlines pursuant to Rule 4 of the Arkansas Rules of Appellate Procedure - Civil. The original judgment, decree or order shall be substituted for the facsimile copy within fourteen days of transmission.  
    (4)  A judge may make any order effective immediately by signing it, noting the time and date thereon, and marking or stamping it "filed in open court" or "filed by Judge." Any such order shall be filed-marked with the clerk no later than the next day on which the clerk's office is open, and this filing date shall control all appeal-related deadlines pursuant to Rule 4 of the Arkansas Rules of Appellate Procedure - Civil.  
    (c)  Indices. Suitable indices of the civil, probate, domestic relations, criminal, juvenile, and warrant dockets and of every judgment or order referred to in Section (b) of this rule shall be kept by the clerk under the direction of the court.  
    (d)  Other Books and Records. The clerk shall also keep such other books and records as may be required by law and as directed by the Supreme Court.  
    (e)  Uniform Paper Size. All records prepared by the clerk shall be on 81/2" x 11" paper.  
    (f)  Clerk Defined. When used herein, the term clerk refers to the clerks of the various circuit courts of the state; provided, that in the event probate matters are required by law to be filed in the office of county clerk, then the term clerk shall also include the county clerk for this limited purpose. 

(g) File Mark. (1) There shall be a two inch (2") top margin on the first page of each document submitted for filing to accommodate the court's file mark. If the pleading or document must be filed in multi-parts because of size or for other reasons, the first page of each part must include the file name and file mark and shall clearly indicate the part number and number of parts (example, part 1 of 2).

(2) If a document is such that the first page cannot be drafted to provide sufficient space to satisfy the file-mark requirement, the document must include the uniform cover page developed by the Administrative Office of the Courts and found under Forms and Publications at  https://www.arcourts.gov/forms-and-publications/court-forms/uniform-cover-page .

UNIFORM COVER PAGE

[To be used when required by Administrative Order No. 2 (g)*]

COURT: ______________ COURT OF ______________________ COUNTY

Docket/Case Number: ______________________________

CASE NAME:

PLAINTIFF/

PETITIONER: _________________________________________

 

DEFENDANT/

RESPONDENT: _________________________________________

TITLE OF PLEADING OR DOCUMENT BEING FILED

(If a multi-part file,

the designation "part _ of _"

(example, part 1 of 2)): _________________________________________

*Administrative Order No 2. (g) File Mark. (1) There shall be a two inch (2") top margin on the first page of each document submitted for filing to accommodate the court's file mark. If the pleading or document must be filed in multi-parts because of size or for other reasons, the first page of each part must include the file name and file mark and shall clearly indicate the part number and number of parts (example, part 1 of 2).

 

Reporter's Notes (1999)

Subdivision (c)(2) of this rule does not authorize the filing of judgments, decrees or orders by facsimile transmission. However, Administrative Order No. 2(b), as amended in 1999, requires any clerk's office with a facsimile machine to "accept facsimile transmission of a judgment, decree or order filed in such manner at the direction of the court." The faxed judgment, decree or order is effective when entered by the clerk. To ensure the permanency of official court records, the original judgment, decree or order must be substituted for the facsimile copy within 14 days of transmission, but this step does not have any bearing on the effectiveness of the faxed document or the time for taking an appeal.

Addition to Reporter's Notes (2000): - The second paragraph of this rule provides that a judgment or decree "is effective only when ... set forth [on a separate document] and entered as provided in Administrative Order No. 2." As amended in 1999 [effective 1/1/00], Administrative Order No. 2(b) provides that a judgment, decree or order is "entered" when stamped or otherwise marked by the clerk with the time and date and the word "filed," irrespective of when it is recorded in the judgment book. When the clerk's office is not open for business, and upon an express finding of extraordinary circumstances, an order is effective immediately when signed by the judge. Such order must be filed with the clerk on the next day on which the clerk's office is open, and this filing date controls all appeal-related deadlines. 

The amendment to Administrative Order No. 2(b) also requires any clerk's office with a facsimile machine to "accept facsimile transmission of a judgment, decree or order filed in such manner at the direction of the court." The faxed judgment, decree or order is effective when entered by the clerk. To ensure the permanency of official court records, the original judgment, decree or order must be substituted for the facsimile copy within 14 days of transmission, but this step does not have any bearing on the effectiveness of the faxed document or the time for taking an appeal. 

Addition to Reporter's Notes (2015)

This order was amended to create a warrant docket for the filing of arrest warrants (see Ark. R. Crim. P. 13.4) upon their return, whether executed or unexecuted.

Reporter's Notes (2018 Amendments)

Subdivision (g) was added to ensure that file marks are legible and is especially needed at this time to accommodate electronic-filing software.

 

History. Adopted December 21, 1987, effective March 14, 1988; amended May 15, 1989; amended July 17, 1989; amended October 12, 1989; amended January 22, 1998; amended June 24, 1999; amended December 9, 1999, effective January 1, 2000; amended May 24, 2001, subsections (a)-(e) effective January 1, 2002, subsection  (f) effective July 1, 2001; amended March 13, 2003; amended February 10, 2005; amended July 2, 2015, effective September 1, 2015; amended December 7, 2017, effective December 7, 2017; amended June 21, 2018, effective September 1, 2018.

The Board shall set the following fees for the administration of these regulations:

(a) $75.00 application fee for in-state applicants; $150.00 application fee for out-of- state applicants;

(b) $50.00 certificate renewal fee.

(c) $100.00 penalty fee for failure to timely remit certificate renewal fee as set forth in Section 9 of these regulations

A. At such time as the Executive Director has received from the attorney a written
response or the attorney has failed to respond within the period provided in Section (9)(B), the
Executive Director shall send a copy of the complaint, the response, any rebuttal, all exhibits,
and a separate sealed envelope containing information concerning any prior discipline of the
respondent attorney to each member of the seven-member panel to which the matter has been
assigned. Each member of the panel shall vote by written ballot.
B. Each ballot shall contain appropriate spaces for:
(1) The name and signature of the panel member;
(2) The date;
(3) The member's vote on the action to be taken on the formal complaint; and,
(4) A place for the members to state which Section(s) of the Rules, if any, are
found to be violated.
C. Panels shall meet on a regular basis to consider and take final action as a panel in
closed session on all cases requiring a ballot vote. The Executive Director, Staff Attorneys,
personnel of the Office of Professional Conduct, and any recusing panel members shall not take
part in the deliberations of a panel and shall not attend or participate in panel meetings while the
merits of a case are being discussed.
D. If a majority of the panel votes to cause a respondent attorney, complainant, or other
person to appear for the purposes of eliciting testimony, production of records and documents,
provision of additional information or evidence, or for any other relevant purposes involved with
a matter pending before the panel, a hearing will be scheduled, and summonses or subpoenas
may issue, as required. Such evidentiary hearing shall not be public, and no adjudicative
decision will be pronounced or rendered at that time. The panel, upon written ballot or voice
vote, shall proceed under Section 10(E). Any recorded testimony, records, documents, exhibits,
or other evidence adduced at an evidentiary hearing may be received and made part of the record
at a subsequent public hearing.
E. Results of Ballot Vote.
(1) If a majority of the panel votes to take no disciplinary action against a
respondent attorney, the panel shall so advise the Office of Professional Conduct, which shall
notify the complainant and the respondent attorney by letter stating the result. The Office of
Professional Conduct shall file a monthly report of such cases, by number only, as a public
record in the office of the Clerk.
(2) If a majority of the panel votes to warn, the Executive Director shall send an
appropriate letter to the respondent attorney and the complainant after the letter has been
approved by the panel chair. The letter shall inform the respondent attorney which rule(s) the
panel found the respondent attorney violated and which allegation(s) of the complaint the panel
found to be true. The letter shall also inform the respondent attorney that he or she has the right,
upon written request filed with the Office of Professional Conduct within twenty (20) days of
service of the letter, as defined by Section 9(A)(2), to a public hearing before another sevenmember panel of the Committee, no member of which was a member of the original panel, as
provided in Section 11. The letter shall also inform the respondent attorney that a warning is not
a sanction available at a public hearing. The letter shall also inform the respondent attorney that,
if he or she does not file such a written request for a public hearing by the deadline, the warning
shall become final. If a warning is issued, the result shall be non-public. No fine, restitution, or
costs shall be assessed against the respondent, unless the warning is the result of a discipline by
consent. The Office of Professional Conduct shall file a monthly report of such cases, by
number only, as a public record in the office of the Clerk.
(3) If a majority of the panel votes to caution, reprimand, or suspend the attorney,
the attorney shall be notified of the findings and decision of the panel by a written order setting
out the factual findings of the panel and the rules found to have been violated. The order will be
approved and signed by the panel chair, and it may be drafted by the Office of Professional
Conduct. The attorney shall be advised in writing that he or she has the right, upon written
request filed with the Office of Professional Conduct within twenty (20) days of service of the
order, as defined by Section 9(A)(2), to a public hearing before another seven-member panel of
the Committee, no member of which was a member of the original panel, as provided in Section
11. The attorney shall also be advised that, if he or she does not file such a written request by the
deadline, such findings and order of the Committee shall become final, will be entered in the
files of the Committee and will be filed as a public record in the office of the Clerk.
(4) If a majority of the panel votes at the ballot vote stage to initiate disbarment
proceedings, the Committee shall proceed as set out in Section 13, and there shall be no public
hearing before the Committee pursuant to Section 11. If the panel finds that a lawyer has
committed acts against a client which constitute theft of property under Ark. Code Ann. ? 5-36-
103 (or its replacement), regardless of whether the attorney has been convicted, disbarment
proceedings must be instituted.
(5) If any findings of fact, conclusions of law, or other recommendations are
necessary at the conclusion of the ballot process, they shall be approved and signed by the panel
chair, and they may be prepared by the Office of Professional Conduct, with the advice and
consent of the panel.
(6) The panel may refer matters involving lesser misconduct to alternatives-todiscipline programs as explained in Section 5(C)(2) and may hold action in abeyance until
advised of the outcome of the referral.

A judge shall hear and decide matters assigned to the judge, except when disqualification is required by Rule 2.11 or other law.

COMMENT

[1] Judges must be available to decide the matters that come before the court. Although there are times when disqualification is necessary to protect the rights of litigants and preserve public confidence in the independence, integrity, and impartiality of the judiciary, judges must be available to decide matters that come before the courts. Unwarranted disqualification may bring public disfavor to the court and to the judge personally. The dignity of the court, the judge’s respect for fulfillment of judicial duties, and a proper concern for the burdens that may be imposed upon the judge’s colleagues require that a judge not use disqualification to avoid cases that present difficult, controversial, or unpopular issues.

A. If a public hearing is properly requested under Section 10, a seven-member panel of
the Committee, no member of which was a member of the original ballot-vote panel, will hear
the complaint de novo under the rules for public hearings. The ballots and the action of the
original panel shall be kept confidential and shall not be made known to the panel which
conducts the de novo public hearing.
B. The Executive Director shall set a date for the hearing and shall notify the respondent
attorney and the complainant of the hearing date. Once a hearing is set, the granting of any
request for a continuance shall be at the discretion of the chair of the panel. The chair of the
panel may require a prehearing conference. If a respondent attorney who has requested a hearing
and who has been notified properly of the hearing date does not appear at the time and place set
for the hearing, the action of the original panel by ballot vote shall become final, and the
respondent attorney shall not be entitled to any further review of that action.
C. At the end of the hearing, the panel shall hold an executive session to deliberate upon
any disciplinary action to be taken. The findings and decision of the panel shall be announced
immediately. The votes of the individual members shall be announced if the decision is not
unanimous.
D. If a majority of the panel votes to caution, reprimand, or suspend an attorney, the
Office of Professional Conduct shall prepare a proposed order, including findings, which shall be
provided to the respondent attorney, who shall have fifteen (15) calendar days after service of the
proposed order by first class mail within which to file with the Office of Professional Conduct
any objections and alternatives to the proposed language. The Office of Professional Conduct
shall provide the proposed order and any objections and alternatives to the panel chair, who will
determine and sign the final order. The order shall be filed as a public record in the office of the
Clerk.
E. If a majority of the panel votes to initiate disbarment proceedings, the Executive
Director shall file an action for disbarment as provided in Section 13. Alternatively, if
circumstances require, and with the Supreme Court's approval, the panel may retain independent
counsel to prosecute the disbarment proceedings. If the panel finds that a lawyer has committed
acts against a client which constitute theft of property under Ark. Code Ann. ? 5-36-103 (or its
replacement), regardless of whether the attorney has been criminally charged or convicted,
disbarment proceedings must be initiated.
F. The Committee may refer matters involving lesser misconduct to alternatives-todiscipline programs as provided in Section 5(C)(2).
G. Doctor-Patient Privilege Waived. Raising the defense of mental or physical disability
or incapacity by one who is the subject of a disciplinary proceeding shall constitute a waiver of
the doctor-patient privilege, except as otherwise provided in the rules pertaining to the Arkansas
Judges and Lawyers Assistance Program.
H. A respondent in a disciplinary proceeding who raises the defense or issue of mental or
physical disability or incapacity shall be deemed to have consented to undergoing an
independent medical examination by a physician or physicians selected by the Committee or the
Executive Director, at the expense of the Committee or the Office of Professional Conduct, and
the results of any such examination shall be admissible in any disciplinary proceeding under such
conditions as the panel chair may establish.
I. Immunity for Disciplinary Proceedings. Except for perjury and false swearing,
complainants, respondents, and witnesses are absolutely immune from suit or action for all
communications with the Office of Professional Conduct and the Committee and for all
statements made within the disciplinary proceeding.

(A) A judge shall require order and decorum in proceedings before the court.

(B) A judge shall be patient, dignified, and courteous to litigants, jurors, witnesses, lawyers, court staff, court officials, and others with whom the judge deals in an official capacity, and shall require similar conduct of lawyers, court staff, court officials, and others subject to the judge’s direction and control.

(C) A judge shall not commend or criticize jurors for their verdict other than in a court order or opinion in a proceeding.

COMMENT

[1] The duty to hear all proceedings with patience and courtesy is not inconsistent with the duty imposed in Rule 2.5 to dispose promptly of the business of the court. Judges can be efficient and businesslike while being patient and deliberate.

[2] Commending or criticizing jurors for their verdict may imply a judicial expectation in future cases and may impair a juror’s ability to be fair and impartial in a subsequent case.

[3] A judge who is not otherwise prohibited by law from doing so may meet with jurors who choose to remain after trial but should be careful not to discuss the merits of the case.

A. A respondent attorney or the Executive Director aggrieved by an action of a panel
taken at a public hearing may appeal to the Arkansas Supreme Court by filing a Notice of Appeal
with the Office of Professional Conduct within thirty (30) calendar days after the filing of the
panel's final written order with the Clerk or by filing a Notice of Cross-Appeal with the Office of
Professional Conduct within ten (10) calendar days after receiving a properly-filed notice of
appeal. The appeal shall proceed as an action between the Executive Director and the
respondent. The panel may stay the effective date of any order or action, pending appeal to the
Arkansas Supreme Court. There shall be no appeal by the respondent attorney of a panel's
decision to file an action for disbarment pursuant to Section 13.
B. Appeals from any action by a panel after hearing shall be heard de novo on the record
made before the Committee panel, and the Arkansas Supreme Court shall pronounce such
judgment as, in its opinion, should have been pronounced below.
C. Notice of appeal and lodging of the record on appeal shall be in accordance with the
Rules of Appellate Procedure -- Civil and the Rules of the Arkansas Supreme Court governing
appeals in civil matters. If no appeal is perfected within the time allowed and in the manner
provided, the action of the panel shall be final and binding on all parties.

(A) A judge shall not initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties or their lawyers, concerning a pending or impending matter, except as follows:

(1) When circumstances require it, ex parte communication for scheduling, administrative, or emergency purposes, which does not address substantive matters, is permitted, provided:

(a) the judge reasonably believes that no party will gain a procedural, substantive, or tactical advantage as a result of the ex parte communication; and

(b) the judge makes provision promptly to notify all other parties of the substance of the ex parte communication, and gives the parties an opportunity to respond.

(2) A judge may obtain the written advice of a disinterested expert on the law applicable to a proceeding before the judge, if the judge gives advance notice to the parties of the person to be consulted and the subject matter of the advice to be solicited, and affords the parties a reasonable opportunity to object and respond to the notice and to the advice received.

(3) A judge may consult with court staff and court officials whose functions are to aid the judge in carrying out the judge’s adjudicative responsibilities, or with other judges, provided the judge makes reasonable efforts to avoid receiving factual information that is not part of the record, and does not abrogate the responsibility personally to decide the matter.

(4) [Reserved]

(5) A judge may initiate, permit, or consider any ex parte communication when expressly authorized by law to do so.

(B) If a judge inadvertently receives an unauthorized ex parte communication bearing upon the substance of a matter, the judge shall make provision promptly to notify the parties of the substance of the communication and provide the parties with an opportunity to respond.
(C) A judge shall not investigate facts in a matter independently, and shall consider only the evidence presented and any facts that may properly be judicially noticed.

(D) A judge shall make reasonable efforts, including providing appropriate supervision, to ensure that this Rule is not violated by court staff, court officials, and others subject to the judge’s direction and control.

COMMENT

[1] To the extent reasonably possible, all parties or their lawyers shall be included in communications with a judge.

[2] Whenever the presence of a party or notice to a party is required by this Rule, it is the party’s lawyer, or if the party is unrepresented, the party, who is to be present or to whom notice is to be given.

[3] The proscription against communications concerning a proceeding includes communications with lawyers, law teachers, and other persons who are not participants in the proceeding, except to the limited extent permitted by this Rule.

[4] A judge may initiate, permit, or consider ex parte communications expressly authorized by law, such as when serving on therapeutic or problem-solving courts, mental health courts, or drug courts. In this capacity, judges may assume a more interactive role with parties, treatment providers, probation officers, social workers, and others.

[5] A judge may consult with other judges on pending matters, but must avoid ex parte discussions of a case with judges who have previously been disqualified from hearing the matter, and with judges who have appellate jurisdiction over the matter.

[6] The prohibition against a judge investigating the facts in a matter extends to information available in all mediums, including electronic.

[7] A judge may consult ethics advisory committees, outside counsel, or legal experts concerning the judge’s compliance with this Code. Such consultations are not subject to the restrictions of paragraph (A)(2).

A. An action for disbarment shall be filed as an original action with the Clerk of the Supreme Court. Upon such filing, the Arkansas Supreme Court, pursuant to Amendment 28 of the Arkansas Constitution, shall assign a special judge to preside over the disbarment proceedings. The special judge shall determine the proper location or locations in the State of Arkansas for the proceedings and shall arrange for a courtroom or other suitable facility in which all or part of the proceedings shall be heard. The special judge shall have discretion to determine the manner and location of all such proceedings and may designate one or more locations for all or part of the proceedings. All allegations of violation(s) of the Rules by the attorney, notwithstanding the situs of the alleged conduct, shall be heard in this proceeding. In disbarment suits, the action shall proceed as an action between the Executive Director and the respondent. Proceedings shall be held in compliance with the Arkansas Rules of Civil Procedure and the Arkansas Rules of Evidence, and trial shall be had without a jury. A disbarment proceeding may be tried on the original petition for disbarment, any amended petitions for disbarment, and such other allegations and charges as to which the respondent has been given adequate notice and opportunity to defend. After a Committee panel votes to initiate disbarment, it shall not be required that any additional charges or allegations in the disbarment proceeding be considered and voted on by a Committee panel. At any time during the pendency of a disbarment proceeding, the Respondent Attorney and the Executive Director may submit to the special judge a joint petition for the approval of an agreed disposition of the disbarment action in whole or in part. Any such proposed agreed disposition entered into by the Executive Director shall also be approved by the Executive Committee of the Committee on Professional Conduct prior to submission to the special judge. If the joint petition is approved by the special judge, it shall then be promptly submitted to the Supreme Court for approval. If the joint petition is approved by the Supreme Court, such approval shall be a final judgment in the action. If the joint petition is not approved by the Supreme Court, the disbarment action shall continue before the special judge.

B. The judge shall first hear all evidence relevant to the alleged misconduct and shall then make and file with the Clerk a written determination as to whether the allegations have been proven. Upon a finding of misconduct, the judge shall then hear all evidence relevant to an appropriate sanction to be imposed, including evidence related to the factors listed in Section 19 and the aggravating and mitigating factors set out in the American Bar Association's Model Standards for Imposing Lawyer Sanctions, sections  9.22 and 9.32 (1992). See Wilson v. Neal, 332 Ark. 148, 964 S.W.2d 199 (1998).

C. The judge shall make findings of fact and conclusions of law with respect to the alleged misconduct of the respondent attorney and the imposition of sanctions, including the factors discussed in Section 13(B). Before filing the findings and conclusions, the judge may solicit proposed findings of fact and conclusions of law from the parties and may submit a draft thereof to the parties or counsel for all parties for the purpose of receiving their objections and suggestions. The judge shall make a recommendation as to the appropriate sanction from those set out in Section 17(D).

D. The findings of fact, conclusions of law, and recommendation of an appropriate sanction shall be filed with the Clerk of the Supreme Court along with a transcript and the record of the proceedings, which shall include all pleadings, orders, and other appropriate materials filed with the Clerk of the Supreme Court. Upon the filing, the parties shall file briefs as in other cases. If any sanction is recommended by the special judge, the respondent attorney shall brief first, as the appellant. The findings of fact filed by the special judge shall be accepted by the Supreme Court unless clearly erroneous. The Supreme Court shall impose the appropriate sanction, if any, as the evidence may warrant. In imposing the sanction of suspension of law license, the attorney may be suspended for a period not exceeding five (5) years. There is no appeal from the decision of the Supreme Court, except as may be available under federal law.

Amended and effective March 29, 2018.

(A) A judge shall not make any public statement that might reasonably be expected to affect the outcome or impair the fairness of a matter pending or impending in any court, or make any nonpublic statement that might substantially interfere with a fair trial or hearing.

(B) A judge shall not, in connection with cases, controversies, or issues that are likely to come before the court, make pledges, promises, or commitments that are inconsistent with the impartial performance of the adjudicative duties of judicial office.

(C) A judge shall require court staff, court officials, and others subject to the judge’s direction and control to refrain from making statements that the judge would be prohibited from making by paragraphs (A) and (B).

(D) Notwithstanding the restrictions in paragraph (A), a judge may make public statements in the course of official duties, may explain court procedures, and may comment on any proceeding in which the judge is a litigant in a personal capacity.

(E) Subject to the requirements of paragraph (A), a judge may respond directly or through a third party to allegations in the media or elsewhere concerning the judge’s conduct in a matter.

COMMENT

[1] This Rule’s restrictions on judicial speech are essential to the maintenance of the independence, integrity, and impartiality of the judiciary.

[2] This Rule does not prohibit a judge from commenting on proceedings in which the judge is a litigant in a personal capacity, or represents a client as permitted by these Rules. In cases in which the judge is a litigant in an official capacity, such as a writ of mandamus, the judge must not comment publicly.

[3] Depending upon the circumstances, the judge should consider whether it may be preferable for a third party, rather than the judge, to respond or issue statements in connection with allegations concerning the judge’s conduct in a matter.

Comment [2] amended and effective December 15, 2016.

INACTIVE STATUS.
A. Executive Director?s Duty to Obtain Order of Disbarment, Suspension, or Transfer to
Disability Inactive Status. Within fifteen (15) days after any person admitted to practice in
Arkansas is disbarred, suspended, or transferred to disability inactive status by a state or federal
court or a corresponding disciplinary authority of another jurisdiction, the attorney shall inform
the Executive Director of the disbarment, suspension, or transfer. Upon notification from any
source that an attorney licensed to practice in Arkansas has been disbarred, suspended, or
transferred to disability inactive status by another state or federal court or a corresponding
disciplinary authority of another jurisdiction, the Executive Director shall obtain a certified copy
of the order imposing such discipline and file it with the Committee on Professional Conduct.
B. Notice Served upon Respondent. Upon receipt of a certified copy of an order
imposing a disbarment, suspension, or transfer, the Executive Director shall serve on the
attorney, as provided in Section 9, a copy of the order and notice that the attorney has twenty
(20) days from the day of service to file with the Executive Director any claim by the attorney
predicated upon the grounds set forth in Paragraph F, that the imposition of the identical sanction
would be unwarranted and the reasons for that claim.
C. Effect of Stay in Other Jurisdiction. In the event the disbarment, suspension, or
transfer to disability inactive status imposed in the other jurisdiction has been stayed there, any
reciprocal sanction imposed in this jurisdiction shall be deferred until the stay expires.
D. No Claim Filed. If no claim is filed within twenty (20) days, the Executive Director
shall so inform the Committee, which shall proceed to determine the matter by ballot vote
consistent with the requirements of Section 10 of these Procedures, to the extent applicable.
E. Claim Filed. If a claim is filed within twenty (20) days, the Executive Director may
file and serve a response to the claim within fifteen (15) days after the claim is filed. Within
fifteen (15) days after service of any such response, the attorney who filed the claim may file a
reply. The claim shall be determined by ballot vote consistent with the requirements of Section
10 of these Procedures, to the extent applicable.
F. Discipline to Be Imposed. Upon a ballot vote, a Panel of the Committee shall impose
the identical disbarment, suspension, or transfer to disability inactive status, unless the panel
finds that:
(1) The procedure before the other state or federal court or corresponding
disciplinary authority was so lacking in notice or opportunity to be heard as to constitute a
deprivation of due process; or
(2) There was such infirmity of proof establishing the misconduct as to give rise
to the clear conviction that the Committee could not, consistent with its duty, accept as final the
conclusion on that subject; or
(3) The disbarment, suspension, or transfer imposed would result in grave
injustice or be offensive to the public policy of Arkansas; or
(4) The reason for the original transfer to disability inactive status no longer
exists.
If the Committee determines that any of those elements exists, the Committee shall enter such
other order as it deems appropriate. The burden is on the party seeking different discipline in
this jurisdiction to demonstrate that the imposition of the same discipline is not appropriate.
G. Conclusiveness of Adjudication Before Another State or Federal Court or
Corresponding Disciplinary Authority. In all other respects, a final adjudication before another
state or federal court or corresponding disciplinary authority determining that a lawyer is guilty
of misconduct or should be transferred to disability inactive status shall establish conclusively
the misconduct or the disability for purposes of a disciplinary or disability proceeding in this
jurisdiction.
H. Appeal. A respondent attorney or the Executive Director aggrieved by the action of a
Committee Panel on a reciprocal discipline or disability matter may appeal to the Arkansas
Supreme Court under the provisions of Section 12 (Appeal) of these Procedures. Neither the
attorney nor the Executive Director may request or obtain a public hearing before another
Committee Panel on a reciprocal disbarment, suspension, or transfer to disability inactive status.

(A) A judge shall disqualify himself or herself in any proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to the following circumstances:

(1) The judge has a personal bias or prejudice concerning a party or a party’s lawyer, or personal knowledge of facts that are in dispute in the proceeding.

(2) The judge knows that the judge, the judge’s spouse or domestic partner, or a person within the third degree of relationship to either of them, or the spouse or domestic partner of such a person is:

(a) a party to the proceeding, or an officer, director, general partner, managing member, or trustee of a party; (

b) acting as a lawyer in the proceeding;

(c) a person who has more than a de minimis interest that could be substantially affected by the proceeding; or

(d) likely to be a material witness in the proceeding.

(3) The judge knows that he or she, individually or as a fiduciary, or the judge’s spouse, domestic partner, parent, or child, or any other member of the judge’s family residing in the judge’s household, has an economic interest in the subject matter in controversy or in a party to the proceeding.

(4) [Reserved]

(5) The judge, while a judge or a judicial candidate, has made a public statement, other than in a court proceeding, judicial decision, or opinion, that commits or appears to commit the judge to reach a particular result or rule in a particular way in the proceeding or controversy.

(6) The judge:

(a) served as a lawyer in the matter in controversy, or was associated with a lawyer who participated substantially as a lawyer in the matter during such association;

(b) served in governmental employment, and in such capacity participated personally and substantially as a lawyer or public official concerning the proceeding, or has publicly expressed in such capacity an opinion concerning the merits of the particular matter in controversy;

(c) was a material witness concerning the matter; or

(d) previously presided as a judge over the matter in another court.

(B) A judge shall keep informed about the judge’s personal and fiduciary economic interests, and make a reasonable effort to keep informed about the personal economic interests of the judge’s spouse or domestic partner and minor children residing in the judge’s household.

(C) A judge subject to disqualification under this Rule, other than for bias or prejudice under paragraph (A)(1), may disclose on the record the basis of the judge’s disqualification and may ask the parties and their lawyers to consider, outside the presence of the judge and court personnel, whether to waive disqualification. If, following the disclosure, the parties and lawyers agree, without participation by the judge or court personnel, that the judge should not be disqualified, the judge may participate in the proceeding. The agreement shall be incorporated into the record of the proceeding.

COMMENT

[1] Under this Rule, a judge is disqualified whenever the judge’s impartiality might reasonably be questioned, regardless of whether any of the specific provisions of paragraphs (A)(1) through (6) apply. In many jurisdictions, the term “recusal” is used interchangeably with the term “disqualification.”

[2] A judge’s obligation not to hear or decide matters in which disqualification is required applies regardless of whether a motion to disqualify is filed.

[3] The rule of necessity may override the rule of disqualification. For example, a judge might be required to participate in judicial review of a judicial salary statute, or might be the only judge available in a matter requiring immediate judicial action, such as a hearing on probable cause or a temporary restraining order. In matters that require immediate action, the judge must disclose on the record the basis for possible disqualification and make reasonable efforts to transfer the matter to another judge as soon as practicable.

[4] The fact that a lawyer, or a lawyer who practices with that lawyer, in a proceeding is affiliated with a law firm with which a relative of the judge is affiliated does not itself disqualify the judge. If, however, the judge’s impartiality might reasonably be questioned under paragraph (A), or the relative is known by the judge to have an interest in the law firm that could be substantially affected by the proceeding under paragraph (A)(2)(c), the judge’s disqualification is required.

[4A] The fact that a lawyer in a proceeding, or a litigant, contributed to the judge’s campaign, or publicly supported the judge in his or her election does not of itself disqualify the judge. However, the size of contributions , the degree of involvement in the campaign, the timing of the campaign and the proceeding, the issues involved in the proceeding, and other factors known to the judge may raise questions as to the judge’s impartiality under paragraph (A).

[5] A judge should disclose on the record information that the judge believes the parties or their lawyers might reasonably consider relevant to a possible motion for disqualification, even if the judge believes there is no basis for disqualification.

[6] “Economic interest,” as set forth in the Terminology section, means ownership of more than a de minimis legal or equitable interest. Except for situations in which a judge participates in the management of such a legal or equitable interest, or the interest could be substantially affected by the outcome of a proceeding before a judge, it does not include:

(1) an interest in the individual holdings within a mutual or common investment fund;

(2) an interest in securities held by an educational, religious, charitable, fraternal, or civic organization in which the judge or the judge’s spouse, domestic partner, parent, or child serves as a director, officer, advisor, or other participant;

(3) a deposit in a financial institution or deposits or proprietary interests the judge may maintain as a member of a mutual savings association or credit union, or similar proprietary interests; or

(4) an interest in the issuer of government securities held by the judge.

Comment [4] amended and effective December 15, 2016.

A. Reporting Determinations of Guilt. All prosecuting attorneys and judges participating
in or presiding over a proceeding in which an attorney pleaded guilty to, entered a nolo
contendere plea to, or has been found guilty of a Serious Crime in any jurisdiction shall have the
duty to report such conviction or plea to the Executive Director.
B. Notification of Possible Criminal Activity. When, in connection with an investigation
or a hearing, either the Office of Professional Conduct or the Committee is presented with any
substantial evidence of criminal conduct by any party which would constitute a Serious Crime in
any jurisdiction, the Office of Professional Conduct, on its own initiative or at the direction of
the Committee, shall notify the appropriate state or federal prosecutorial authority.
C. Procedures for Disbarment.
(1) When a complaint against an attorney is based on a conviction in any
jurisdiction of, or a plea of guilty or nolo contendere in any jurisdiction to, a Serious Crime, or a
crime which also violates Rule 8.4 (b) of the Rules, the Committee shall institute disbarment
proceedings.
(2) Actions for disbarment based on the conviction of a crime or on a plea of
guilty or nolo contendere shall proceed in accordance with the procedures in Section 13 of these
Procedures.
(3) A certified copy of the judgment of conviction or of evidence of a plea of
guilty or nolo contendere shall be conclusive evidence of the attorney's guilt.
(4) The attorney may not offer evidence inconsistent with the essential elements
of the crime for which he or she was convicted.

Applicants, other than those certified without examination pursuant to Section 6 of the Rule Providing for Certification of Court Reporters or those certified pursuant to Section 26 of these Regulations, shall file not later than 30 days prior to the next examination date, a written application in the form prescribed by the Court, together with an application fee as set forth in Section 3 of these Regulations, with the Clerk of the Supreme Court. Said application fee shall not be refunded in the event the applicant decides not to take the examination or fails the examination. Said application shall state by which method the applicant will test, and certification will be issued solely in that method if the applicant successfully passes the examination.

 

(A) A judge shall require court staff, court officials, and others subject to the judge’s direction and control to act in a manner consistent with the judge’s obligations under this Code.

(B) A judge with supervisory authority for the performance of other judges shall take reasonable measures to ensure that those judges properly discharge their judicial responsibilities, including the prompt disposition of matters before them.

COMMENT

[1] A judge is responsible for his or her own conduct and for the conduct of others, such as staff, when those persons are acting at the judge’s direction or control. A judge may not direct court personnel to engage in conduct on the judge’s behalf or as the judge’s representative when such conduct would violate the Code if undertaken by the judge.
[2] Public confidence in the judicial system depends upon timely justice. To promote the efficient administration of justice, a judge with supervisory authority must take the steps needed to ensure that judges under his or her supervision administer their workloads promptly.

A. An action for the interim suspension of a lawyer is initiated, adjudicated, and imposed
in the following manner:
(1) Pursuant to Section 17(E)(3)(a), an interim suspension may be imposed
immediately upon a panel's decision to institute disbarment action on any formal complaint
pending before it;
(2) Pursuant to Section 17(E)(3)(b), an interim suspension may be imposed upon
presentation to a panel of the Committee of satisfactory proof that the attorney has pleaded guilty
to, entered a nolo contendere plea to, or been found guilty of a Serious Crime in any jurisdiction;
(3) Pursuant to Section 17(E)(3)(c), a panel of the Committee may impose an
interim suspension upon presentation of a verified petition by the Executive Director containing
sufficient evidence to demonstrate that the attorney poses a substantial threat of serious harm to
the public or to the lawyer's clients.
B. The attorney shall be given immediate notice of interim suspension, consistent with
the provisions of Section 9(A). Within fifteen (15) calendar days of notice of the imposition of
interim suspension, the attorney may submit to the Executive Director an original and eight (8)
copies of an affidavit in rebuttal of the evidence before the panel of the Committee and a request
for the dissolution or modification of the interim suspension. Within ten (10) calendar days after
the submission of any such affidavit and request, the Office of Professional Conduct may file a
response. The affidavit, the request, and any response shall be disseminated by mail, e-mail, or
facsimile transmission to the panel of the Committee forthwith for its reconsideration and
expeditious action. Upon receipt of the panel's decision and order, the Executive Director shall
promptly notify the attorney pursuant to Section 9(A)(2).
C. An attorney suspended pursuant to Section 17(E)(3) shall comply with the
requirements of Section 21. The imposition of an interim suspension does not abate any pending
disciplinary actions against the attorney.
D. An interim suspension imposed pursuant to Section 17(E)(3)(c) shall be dissolved
upon the following conditions:
(1) The alleged misconduct did not result in a decision to initiate disbarment or in
action by a panel of the Committee pursuant to Sections 9(A)(1), 9(B), and 10(E)(3); and
(2) Ninety (90) days have elapsed from the denial of a request to dissolve or
modify the suspension, unless a disbarment proceeding is being pursued; and,
(3) The attorney complied with the requirements of Section 21.
E. Upon the filing of a petition for a writ of certiorari with the Clerk after final action by
the Committee or its panel imposing an interim suspension on an attorney, the Arkansas
Supreme Court, in its discretion, may decide whether to review the imposition of the interim
suspension and may take any action regarding the interim suspension which it determines is
appropriate.

(A) In making administrative appointments, a judge:

(1) shall exercise the power of appointment impartially and on the basis of merit; and

(2) shall avoid nepotism, favoritism, and unnecessary appointments.

(B) [Reserved]

(C) A judge shall not approve compensation of appointees beyond the fair value of services rendered.

(D) No judge shall employ a spouse or other relative unless it has been affirmatively demonstrated to the Arkansas Judicial Discipline and Disability Commission that it is impossible for the judge to hire any other qualified person to fill the position.

COMMENT

[1] Appointees of a judge include assigned counsel, officials such as referees, commissioners, special masters, receivers, and guardians, and personnel such as clerks, secretaries, and bailiffs. Consent by the parties to an appointment or an award of compensation does not relieve the judge of the obligation prescribed by paragraph (A).

[2] Unless otherwise defined by law, nepotism is the appointment or hiring of any relative within the third degree of relationship of either the judge or the judge’s spouse or domestic partner, or the spouse or domestic partner of such relative.

[3][Reserved]

A. Grounds for Discipline. It shall be grounds for discipline for a lawyer to:
(1) Violate or attempt to violate the Rules or any other rules of Arkansas
regarding professional conduct of lawyers; or
(2) Engage in conduct violating applicable rules of professional conduct of
another jurisdiction in which the attorney is licensed or practices.
B. Serious Misconduct. Serious misconduct is conduct in violation of the Rules that
would warrant a sanction terminating or restricting the lawyer's license to practice law. Conduct
will be considered serious misconduct if any of the following considerations apply:
(1) The misconduct involves the misappropriation of funds;
(2) The misconduct results in, or is likely to result in, substantial prejudice to a
client or other person;
(3) The misconduct involves dishonesty, deceit, fraud, or misrepresentation by
the attorney;
(4) The misconduct is part of a pattern of similar misconduct;
(5) The attorney's prior record of public sanctions demonstrates a substantial
disregard of the attorney's professional duties and responsibilities; or
(6) The misconduct constitutes a "Serious Crime," as defined in these Procedures.
C. Lesser Misconduct. Lesser misconduct is conduct in violation of the Rules that would
not warrant a sanction terminating or restricting the lawyer's license to practice law.
D. Types of Sanctions. Misconduct shall be grounds for one or more of the following
sanctions:
(1) DISBARMENT: The termination of the attorney's privilege to practice law
and removal of the attorney's name from the list of licensed attorneys.
(2) SUSPENSION: A limitation for a fixed period of time on the attorney's
privilege to engage in the practice of law.
(3) INTERIM SUSPENSION: A temporary suspension for an indeterminate
period of time of the attorney's privilege to engage in the practice of law pending the final
adjudication of a disciplinary matter.
(4) REPRIMAND: A severe public censure issued against the attorney.
(5) CAUTION: A public warning issued against the attorney.
(6) WARNING: A non-public caution issued against the attorney.
(7) PROBATION: Written conditions imposed for a fixed period of time, and
with the attorney's consent, permitting the attorney to engage in the practice of law under the
supervision of another attorney.
E. Imposition of Sanctions. When a panel of the Committee finds that an attorney has
violated any provision of the Rules, the panel is authorized:
(1) To cause a complaint for disbarment to be prepared and filed against the
lawyer in accordance with Section 13. Disbarment proceedings are appropriate when mandated
by Section 15(C) of the Procedures or upon a finding of "serious misconduct" for which a lesser
sanction would be inappropriate. A finding that a lawyer has committed acts against a client
which constitute theft of property under Ark. Code Ann. ? 5-36-103 (or its replacement),
regardless of whether the attorney has been criminally charged or convicted, shall result in the
automatic filing of disbarment proceedings. Actions for disbarment address the overall fitness of
a lawyer to hold a license to practice law. The Committee's written notice to institute a
disbarment proceeding need not state specific findings as to the misconduct or Rule violations.
(2) To suspend the lawyer's privilege to practice law for a fixed period of time
not less than thirty (30) days and not in excess of five (5) years. Suspension is appropriate when
a panel of the Committee finds that the lawyer has engaged in "serious misconduct," and,
consonant with the pertinent factors listed in Section 19, the nature and degree of such
misconduct do not warrant disbarment.
(3) To temporarily suspend the lawyer's privilege to practice law pending final
adjudication and disposition of a disciplinary matter. Interim suspension shall be appropriate in
the following situations:
(a) Immediately on decision to initiate disbarment;
(b) Immediately upon proof that the attorney has been found guilty of a
Serious Crime in any jurisdiction, notwithstanding pending post-conviction actions; and,
(c) When a panel of the Committee is in receipt of sufficient evidence
demonstrating that the lawyer has engaged or is engaging in misconduct involving:
(i) Misappropriation of funds or property;
(ii) Abandonment of the practice of law; or,
(iii) Substantial threat of serious harm to the public or to
the lawyer's clients.
(4) To issue the lawyer a letter of reprimand. A reprimand is appropriate when a
panel of the Committee finds that a lawyer has engaged in "lesser misconduct" that, by
application of the factors listed in Section 19, warrants a sanction more severe than a caution.
Additionally, in certain very limited circumstances, a panel of the Committee may find that a
reprimand is appropriate for conduct otherwise falling within the definition of "serious
misconduct" when application of the aforementioned factors substantially demonstrates clear and
compelling grounds for sanctions less severe than restriction of the privilege to practice law.
(5) To issue the lawyer a letter of caution. A caution is appropriate when a panel
of the Committee finds that a lawyer has engaged in "lesser misconduct" and application of the
aforementioned factors does not warrant a reprimand.
(6) To issue a letter of warning. Prior to the preparation of an affidavit of
complaint, or subsequent to a lawyer's affidavit of response but before a panel of the Committee
has issued a formal letter of disposition in a pending matter, the Executive Director, with the
written consent of the attorney and with the approval of the chair of a panel, is authorized to
issue a non-public letter of warning to the lawyer. Only in cases of "lesser misconduct" of a
minor nature, when there is little or no injury to a client, the public, the legal system, or the
profession, and when there is little likelihood of repetition by the lawyer, should a warning be
imposed. A warning is not a sanction available to a panel of the Committee when issuing a
formal order of disposition following public adjudication of the disciplinary matter.
(7) To impose probationary conditions. Before or after the filing of a formal
complaint, a panel of the Committee may, with the written consent of the lawyer, place the
lawyer on probation for a period not exceeding two (2) years. Probation shall be used only in
cases where there is little likelihood that the lawyer will harm the public during the period of
rehabilitation and the conditions of probation can be adequately supervised. Probation may be
utilized concurrently with imposition of other sanctions not restricting the privilege to practice
law or may follow a period of suspension. The probationary conditions shall be in writing and
acknowledged, in writing, by the lawyer. A lawyer amenable to probation shall be responsible
for obtaining the agreement of another lawyer, acceptable to a panel of the Committee, to
supervise, monitor, and assist the lawyer as required to fulfill the conditions of probation, or for
obtaining a Monitoring Contract with the Arkansas Judges and Lawyers Assistance Program,
acceptable to a panel of the Committee, to accomplish the same things. Assent to undertake
supervision shall be acknowledged in writing to a panel of the Committee. Probation shall be
terminated upon the filing of an affidavit by the lawyer showing compliance with the conditions
and an affidavit by the supervising lawyer or an authorized representative of the Arkansas Judges
and Lawyers Assistance Program stating probation is no longer necessary and summarizing the
basis for that statement. Willful or unjustified non-compliance with the conditions of probation
will terminate the probation and subject the lawyer to further disciplinary action, to include
imposition of a more severe sanction which could have been imposed originally but for the
agreement to probation. An attorney subjected to such further disciplinary action may only offer
evidence or argument relating to the willful or unjustified nature of the non-compliance.
Unsuccessful rehabilitation or non-completion of the probation conditions will subject the lawyer
to further disciplinary proceedings consistent with these Procedures. Except as necessary to the
Committee's discharge of its responsibilities, terms and conditions of probation and reports
related thereto which involve the lawyer's mental, physical, or psychological condition shall be
confidential.

A judge having a reasonable belief that the performance of a lawyer or another judge is impaired by drugs or alcohol, or by a mental, emotional, or physical condition, shall take appropriate action, which may include a confidential referral to a lawyer or judicial assistance program.

COMMENT

[1] “Appropriate action” means action intended and reasonably likely to help the judge or lawyer in question address the problem and prevent harm to the justice system. Depending upon the circumstances, appropriate action may include but is not limited to speaking directly to the impaired person, notifying an individual with supervisory responsibility over the impaired person, or making a referral to an assistance program.

[2] Taking or initiating corrective action by way of referral to an assistance program may satisfy a judge’s responsibility under this Rule. Assistance programs have many approaches for offering help to impaired judges and lawyers, such as intervention, counseling, or referral to appropriate health care professionals. Depending upon the gravity of the conduct that has come to the judge’s attention, however, the judge may be required to take other action, such as reporting the impaired judge or lawyer to the appropriate authority, agency, or body. See Rule 2.15.
[3A] Judges may exercise discretion in referring a lawyer or another judge to the Arkansas Judges and Lawyers Assistance Program. See Rule 2.15.

In addition to the Committee's authority set forth in Section 17 of these Procedures, a
panel of the Committee, in any case where a disciplinary sanction, including a consent warning,
is imposed, may:
A. Assess the respondent attorney the costs of the proceedings, including the costs of
investigations, witness fees, service of process, depositions, independent medical examinations,
and a court reporter's services;
B. Impose a fine of not more than $25,000.00; and
C. Order restitution to persons financially injured by the conduct.

(A) A judge having knowledge that another judge has committed a violation of this Code that raises a substantial question regarding the judge’s honesty, trustworthiness, or fitness as a judge in other respects shall inform the appropriate authority.

(B) A judge having knowledge that a lawyer has committed a violation of the Arkansas Rules of Professional Conduct that raises a substantial question regarding the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects shall inform the appropriate authority.

(C) A judge who receives information indicating a substantial likelihood that another judge has committed a violation of this Code shall take appropriate action.

(D) A judge who receives information indicating a substantial likelihood that a lawyer has committed a violation of the Arkansas Rules of Professional Conduct shall take appropriate action.

COMMENT

[1] Taking action to address known misconduct is a judge’s obligation. Paragraphs (A) and (B) impose an obligation on the judge to report to the appropriate disciplinary authority the known misconduct of another judge or a lawyer that raises a substantial question regarding the honesty, trustworthiness, or fitness of that judge or lawyer. Ignoring or denying known misconduct among one’s judicial colleagues or members of the legal profession undermines a judge’s responsibility to participate in efforts to ensure public respect for the justice system. This Rule limits the reporting obligation to those offenses that an independent judiciary must vigorously endeavor to prevent.
[2] A judge who does not have actual knowledge that another judge or a lawyer may have committed misconduct, but receives information indicating a substantial likelihood of such misconduct, is required to take appropriate action under paragraphs (C) and (D). Appropriate action may include, but is not limited to, communicating directly with the judge who may have violated this Code, communicating with a supervising judge, or reporting the suspected violation to the appropriate authority or other agency or body. Similarly, actions to be taken in response to information indicating that a lawyer has committed a violation of the Arkansas Rules of Professional Conduct may include but are not limited to communicating directly with the lawyer who may have committed the violation, or reporting the suspected violation to the appropriate authority or other agency or body.
[3A] This rule shall not apply to a Judge who is a member of the Judges and Lawyers Assistance Committee (the "Committee") of the Arkansas Judges and Lawyers Assistance Program (JLAP) or a volunteer serving pursuant to Rule 4 of the Rules of JLAP regarding information received in his or her capacity as a Committee member or volunteer. However, the "duty to report" outlined in Rule 2.15 above is reinstated if, in good faith, the JLAP committee member or volunteer has: reason to believe that an attorney or judge participating in the JLAP program is failing to cooperate with said program; is engaged in criminal behavior or the threat thereof; or, is otherwise in violation of Rule 2.15 which is beyond or succeeds the behavior upon which the judge's participation in JLAP was initially based.

A. General Factors. In addition to any other considerations permitted by these
Procedures, a panel of the Committee and any judge, in imposing or recommending any
sanctions, may consider:
(1) The nature and degree of the misconduct for which the lawyer is being
sanctioned.
(2) The seriousness and circumstances surrounding the misconduct.
(3) The loss or damage to clients.
(4) The damage to the profession.
(5) The assurance that those who seek legal services in the future will be
protected from the type of misconduct found.
(6) The profit to the lawyer.
(7) The avoidance of repetition.
(8) Whether the misconduct was deliberate, intentional, or negligent.
(9) The deterrent effect on others.
(10) The maintenance of respect for the legal profession.
(11) The conduct of the lawyer during the course of the Committee action.
(12) The lawyer's prior disciplinary record, to include warnings.
(13) Matters offered by the lawyer in mitigation or extenuation, except that a
claim of disability or impairment resulting from the use of alcohol or drugs may not be
considered unless the lawyer demonstrates that he or she is successfully pursuing in good faith a
program of recovery.
B. Aggravating Factors. Any panel or judge may also consider the following
aggravating factors identified by the American Bar Association Joint Committee on Professional
Standards and recognized by the Arkansas Supreme Court in Wilson v. Neal, 332 Ark. 148, 964
S.W.2d 199 (1998):
(1) prior disciplinary offenses;
(2) dishonest or selfish motive;
(3) a pattern of misconduct;
(4) multiple offenses;
(5) bad faith obstruction of the disciplinary proceedings by intentionally failing to
comply with these Procedures or orders of the Committee;
(6) submission of false evidence, false statements, or other deceptive practices
during the disciplinary process;
(7) refusal to acknowledge the wrongful nature of the conduct;
(8) vulnerability of the victim;
(9) substantial experience in the practice of law;
(10) indifference to making restitution; and
(11) illegal conduct, including that involving the use of controlled substances.
C. Mitigating Factors. Any panel or judge may also consider the following mitigating
factors identified by the American Bar Association Joint Committee on Professional Standards
and recognized by the Arkansas Supreme Court in Wilson v. Neal, 332 Ark. 148, 964 S.W.2d
199 (1998):
(1) absence of a prior disciplinary record;
(2) absence of a dishonest or selfish motive;
(3) personal or emotional problems;
(4) timely good faith effort to make restitution or to rectify the consequences of
the misconduct;
(5) full and free disclosure to the disciplinary board or cooperative attitude
towards the proceedings;
(6) inexperience in the practice of law;
(7) character or reputation;
(8) physical disability;
(9) mental disability or chemical dependency including alcoholism or drug abuse
when:
(a) there is medical evidence that the respondent is affected by a chemical
dependency or mental disability;
(b) the chemical dependency or mental disability caused the misconduct;
(c) the respondent's recovery from the chemical dependency or mental
disability is demonstrated by a meaningful and sustained period of successful rehabilitation; and
(d) the recovery arrested the misconduct and recurrence of that
misconduct is unlikely.
(10) delay in [the] disciplinary proceedings;
(11) impositions of other penalties or sanctions;
(12) remorse;
(13) remoteness of prior offenses.

(A) A judge shall cooperate and be candid and honest with judicial and lawyer disciplinary agencies.

(B) A judge shall not retaliate, directly or indirectly, against a person known or suspected to have assisted or cooperated with an investigation of a judge or a lawyer.

COMMENT

[1] Cooperation with investigations and proceedings of judicial and lawyer discipline agencies, as required in paragraph (A), instills confidence in judges’ commitment to the integrity of the judicial system and the protection of the public and may be considered by the judicial and lawyer discipline agencies as a mitigating factor.

 

Comment [1] modified and effective December 15, 2016.

A. At the first meeting of the Board, the Board will organize by electing one of its members as chairman and one as secretary, each of whom shall serve for one year and until his successor is elected. The Clerk of this Court shall serve as treasurer.

B. The Board shall meet at least twice a year at such time and places as the Board shall designate.

Amended and effective January 15, 2009.

1.  Trial briefs. All matters which are under submission to a trial judge should be promptly, efficiently, and fairly determined. The total time for all parties to file briefs in any case in the circuit courts is limited to a period not to exceed thirty (30) days after the trial is completed and the case is ready for decision. Upon a showing or written statement of special circumstances in a particular case, the time for filing briefs may be extended, reduced, or eliminated at the discretion of the trial judge.  

2. Trial court decisions.

A. Judges of circuit courts are directed to submit to the Administrative Office of the Courts at the end of each calendar quarter, reports of cases which have been under advisement for more than ninety (90) days after final submission. These reports are to be submitted on forms supplied by the Administrative Office of the Courts. In cases which have been pending for more than ninety (90) days after final submission, the quarterly report shall include the date when the case was submitted and a statement of the reasons necessitating the delay in rendering a decision. If there are no cases which are pending for that length of time, the report shall simply state "none."

B. For purposes of subdivision 2(A) of this order, civil cases under final submission include those with motions submitted for decision that could result in the resolution or dismissal of the case, as well as those cases that have been fully tried and submitted on their merits. If a civil case has been fully tried, or a potentially dispositive motion argued at a hearing, then the case shall be under final submission at the conclusion of the trial or hearing, or on the date any post-trial or post-hearing briefing is filed, whichever last occurs. If no hearing is held on a potentially dispositive motion, then the case shall be under final submission on the date a party files with the circuit clerk a copy of a letter notifying the circuit judge that the motion is ready for decision. The letter shall enclose copies of all the filed papers relating to the motion and reflect service on all other counsel of record.

C. For purposes of subdivision 2(A) of this order, a motion, application, or petition requesting post-conviction relief in a criminal case, including a petition under Arkansas Rule of Criminal Procedure 37, shall be considered under final submission on the date that the petitioner files with the circuit clerk a copy of a letter notifying the circuit judge that the motion, application, or petition has been filed. The letter to the judge shall enclose all copies of pleadings and documents relating to the motion, application, or petition and shall reflect service on the prosecuting attorney. If, within ninety (90) days of the date on which the letter is filed with the circuit clerk, the judge sets a hearing on the motion, application, or petition, then the date on which the petition is considered under final submission shall be extended until the date on which the hearing concludes or the date on which the last post-hearing briefing is filed, whichever last occurs.

D. The Administrative Office of the Courts shall promptly review all reports filed by the trial courts, and if it determines that the delay in any case was not caused by the parties or their counsel, it shall recommend to the Supreme Court a judge to be assigned or appointed to dispose of the delayed case.

E. Willful noncompliance with the provisions of the order shall constitute grounds for discipline under the provisions of Canon 3 B (8) of the Arkansas Code of Judicial Conduct. Any judge whose quarterly report is not received by the 15th of the month following the end of the previous quarter (i.e., January 15, April 15, July 15, October 15) will be automatically referred to the Judicial Discipline and Disability Commission for possible discipline.

    3.  Appellate court decisions.   
    A.  Justices and Judges of the Arkansas Supreme Court and Court of Appeals are directed to submit to the Chief Justice of the Supreme Court at the end of each quarter a report of any case in which an opinion has not been issued within sixty (60) days from the case's submission. The report shall include a statement of the reason necessitating the delay in issuing an opinion.  
    B.  The Supreme Court will review the reasons given for delay in any reported case and make any reassignment or take any appropriate action necessary to dispose of the case. 
    C.  Willful noncompliance with the provisions of this order shall constitute grounds for discipline under the provisions of Canon 3B(8) of the Arkansas Code of Judicial Conduct.  
    4.  Effective date. This order shall become effective commencing January 1, 1991, and the initial quarterly reports shall be filed on or before March 31, 1991, and the last day of each quarterly month thereafter. 

COURT'S NOTES, 2007:

New subdivision (2)(B) has been added to clarify when, for purposes of this order, the circuit court takes civil cases under final submission. For dispositive motions where no hearing is held, the order now obligates counsel (or a pro se party) to write the court and provide copies of all the motions, thus fixing a clear submission date. This letter must also be served on all parties and filed with the circuit clerk. Former subdivisions (2)(B) and (2)(C)) have been renumbered.

New subdivision 2(C) addresses Rule 37 petitions and similar post-conviction motions in criminal cases. Rule 37.3(a) permits the circuit court to dispose of a Rule 37 petition without a hearing based on the files and records of the case. Subdivision 2(C) requires the circuit judge to report Rule 37 petitions that have not been so disposed within ninety (90) days after the petitioner files the notification letter described in the subdivision. If within that 90-day period, the judge schedules a hearing on the petition, as provided in Rule 37.3(c), then the petition is not considered under final submission until ninety (90) days after the later of the conclusion of the hearing or the filing of any post-hearing briefs.

Subdivision 2(C) does not apply to post-trial motions filed under Arkansas Rule of Criminal Procedure 33.3. Pursuant to Rule of Appellate Procedure - Criminal 2(b)(1), such motions are deemed denied on the 30th day after the entry of judgment, unless the court denies the motion before that date. Consequently, a circuit court should never have a Rule 33.3 post-trial motion under advisement for more than ninety (90) days.

Publisher's Notes. The Dec. 23, 1996, Per Curiam provided, in part: "The addition of the second sentence in subsection (2)(C) with respect to the late filing of quarterly reports shall become effective with the reports due March 31, 1997, which must be filed no later than April 15, 1997." 

History. Adopted November 19, 1990, effective January 1, 1991; amended December 23, 1996; amended May 24, 2001, effective July 1, 2001; amended September 27, 2001; amended October 18, 2001

Applicants and/or applications shall be screened by the Board and those deemed eligible for certification will be advised and provided all necessary information. Any applicant whose application is denied shall be promptly notified of the action of the Board and the application fee shall be refunded.

Amended and effective by per curiam order September 15, 2016.

A. Surrender of License. An attorney may surrender his or her license upon the
conditions agreed to by the attorney, the Executive Director, and a panel of the Committee. An
attorney may offer or consent to the voluntary surrender of his or her license at any stage of the
proceedings. No petition to the Supreme Court for voluntary surrender of license by an attorney
shall be granted until it is referred to a panel of the Committee and the recommendations of the
panel are received by the Supreme Court. (See Section 20(E)(2), for the procedure where there
is a disciplinary proceeding pending, if Supreme Court does not accept the voluntary offer of
surrender.)
B. Discipline by Consent.
(1) An attorney against whom a formal complaint has been served may, (a) not
less than twenty (20) calendar days before the panel meeting at which the complaint will be on
the panel agenda for ballot vote action or (b) not less than twenty (20) calendar days before the
commencement of a public hearing before a panel of the Committee, tender a conditional
acknowledgment and admission of violation of any of the Rules alleged in the formal complaint,
or to particular provisions of Rules so alleged, in exchange for a stated disciplinary sanction in
accordance with the following:
(2) With service of a formal complaint, the respondent attorney will be advised
that, if a negotiated disposition by consent is contemplated, the respondent attorney should
contact the Executive Director to undertake good faith discussion of a proposed disposition. All
discipline by consent proposals must be approved in writing by the Executive Director, before
they can be submitted to a panel.
(3) Upon a proposed disposition acceptable to the respondent attorney and the
Executive Director, the respondent shall execute and submit a discipline by consent on a
document prepared by the Executive Director setting out the necessary factual circumstances,
admission of violation of the Rules, and the proposed sanction.
(4) The consent proposal, along with copies of the formal complaint, and the
recommendations of the Executive Director, shall be presented to a panel of the Committee for
their votes by written ballot to accept or reject the proposed disposition. The respondent will be
notified immediately in writing of the panel decision. Rejection will result in the continuation of
the formal complaint process, using a different panel, by a ballot vote pursuant to Section 10 or a
public hearing pursuant to Section 11, as the case may be.
C. No appeal may be taken from a disciplinary sanction entered by consent.
D. The panel shall file written evidence of the terms of the discipline by consent with the
Clerk, unless the discipline by consent is a non-public warning.
E. Serious Misconduct. If the discipline by consent involves allegations of Serious
Misconduct and a suspension of the respondent attorney's license, it shall be presented to the
Supreme Court for approval or disapproval.
(1) The Executive Director shall present to the Supreme Court, under such
procedures as the Supreme Court may direct, any discipline by consent proposal which the
Executive Director has reached with a respondent attorney and which involves allegations of
Serious Misconduct and a suspension of license.
(2) If the Supreme Court does not approve of the proposed discipline by consent
or the voluntary surrender of license, the matter shall be referred to a panel that has not rendered
a decision in the case by ballot vote. The new panel shall resume, as practical, the proceedings at
the stage at which they were suspended when the proposal was made and submitted to the
Supreme Court. If both regular panels have been used in prior proceedings involving a case, the
case shall go to Panel C and then, if necessary, to Panel D for consideration.
(3) The fact that an offer and proposed sanction was agreed to by the Executive
Director, the terms of the proposed discipline by consent, and the fact that the Supreme Court
rejected the proposal shall not be disclosed to the new panel, except in those instances where
disclosure of compromises is permitted under Rule 408 of the Arkansas Rules of Evidence.

A judge may engage in extrajudicial activities, except as prohibited by law or this Code. However, when engaging in extrajudicial activities, a judge shall not:

(A) participate in activities that will interfere with the proper performance of the judge’s judicial duties;
(B) participate in activities that will lead to frequent disqualification of the judge;
(C) participate in activities that would appear to a reasonable person to undermine the judge’s independence, integrity, or impartiality;
(D) engage in conduct that would appear to a reasonable person to be coercive; or
(E) make use of court premises, staff, stationery, equipment, or other resources, except for incidental use for activities that concern the law, the legal system, or the administration of justice, or unless such additional use is permitted by law.

COMMENT

[1] To the extent that time permits, and judicial independence and impartiality are not compromised, judges are encouraged to engage in appropriate extrajudicial activities. Judges are uniquely qualified to engage in extrajudicial activities that concern the law, the legal system, and the administration of justice, such as by speaking, writing, teaching, or participating in scholarly research projects. In addition, judges are permitted and encouraged to engage in educational, religious, charitable, fraternal or civic extrajudicial activities not conducted for profit, even when the activities do not involve the law. See Rule 3.7.
[2] Participation in both law-related and other extrajudicial activities helps integrate judges into their communities, and furthers public understanding of and respect for courts and the judicial system.

[3] Discriminatory actions and expressions of bias or prejudice by a judge, even outside the judge’s official or judicial actions, are likely to appear to a reasonable person to call into question the judge’s integrity and impartiality. Examples include jokes or other remarks that demean individuals based upon their personal characteristics. For the same reason, a judge’s extrajudicial activities must not be conducted in connection or affiliation with an organization that practices invidious discrimination. See Rule 3.6.

[4] While engaged in permitted extrajudicial activities, judges must not coerce others or take action that would reasonably be perceived as coercive. For example, depending upon the circumstances, a judge’s solicitation of contributions or memberships for an organization, even as permitted by Rule 3.7(A), might create the risk that the person solicited would feel obligated to respond favorably, or would do so to curry favor with the judge.

[5A] Before speaking or writing about social or political issues, judges should consider the impact of their statements. Comments may suggest that the judge lacks impartiality. See Rule 1.2. They may create the impression that a judge has or manifests bias or prejudice toward individuals with contrary social or political views. See Rule 2.3. Public comments may require the judge to disqualify himself or herself when litigation involving those issues comes before the judge. See Rule 2.11. When making such statements, a judge should acknowledge the overarching judicial obligation to apply and uphold the law, without regard to his or her personal views.

In every case in which an attorney is disbarred, suspended, or surrenders the attorney's
law license, the attorney shall, within twenty (20) days of the filing of the final order of
disbarment, suspension, or surrender:
A. Notify all of the attorney's clients and any counsel of record in pending matters in
writing that the attorney has been disbarred or suspended or has surrendered his or her Arkansas
law license;
B. In the absence of co-counsel, notify all clients in writing to make arrangements for
other representation, calling attention to any urgency in seeking the substitution of another
attorney;
C. Deliver to all clients being represented in pending matters any papers or property to
which they are entitled, or notify them or co-counsel of a suitable time and place where the
papers and other property may be obtained, calling attention to any urgency for obtaining the
papers and other property;
D. Refund any part of the fees or costs paid in advance that have not been earned or
expended;
E. File with the Court, agency, or tribunal before which any litigation is pending a copy
of the notice to the opposing counsel, or adverse parties if no opposing counsel;
F. Keep and maintain a record for each client of the steps taken to accomplish the
foregoing;
G. File with the Clerk and the Office of Professional Conduct a list of all other state,
federal, and administrative jurisdictions to which the attorney is licensed or admitted to practice.
Upon such filing, the Clerk shall notify those jurisdictions entitled to notice of the disbarment,
suspension, or surrender.
H. The attorney shall, within thirty (30) days of disbarment, suspension, or surrender of
license, file an affidavit with the Committee that the attorney has fully complied with the
provisions of the order and completely performed the foregoing or provide a full explanation of
the reasons for the attorney's noncompliance. Such affidavit shall also set forth the address
where communications may thereafter be directed to the respondent. The affidavit shall also
include an exemplar copy of each type of notice letter sent to clients, courts, co-counsel, or other
or opposing counsel of record. The affidavit shall also include a list of the attorney's clients,
with a current mailing address and telephone number(s) for each, for use by the Committee to
verify that each client has received actual notice of the attorney's change of status and that the
attorney has timely complied with all other obligations imposed by these Procedures.
I. Failure to comply with these Procedures shall subject the attorney to punishment for
contempt of the Arkansas Supreme Court.

A judge shall not appear voluntarily at a public hearing before, or otherwise consult with, an executive or a legislative body or official, except:

(A) in connection with matters concerning the law, the legal system, the administration of justice, or matters or proposals affecting the judiciary;

(B) in connection with matters about which the judge acquired knowledge or expertise in the course of the judge’s judicial duties; or

(C) when the judge is acting pro se in a matter involving the judge’s legal or economic interests, or when the judge is acting in a fiduciary capacity.

COMMENT

[1] Judges possess special expertise in matters of law, the legal system, and the administration of justice, and may properly share that expertise with governmental bodies and executive or legislative branch officials.

[2] In appearing before governmental bodies or consulting with government officials, judges must be mindful that they remain subject to other provisions of this Code, such as Rule 1.3, prohibiting judges from using the prestige of office to advance their own or others’ interests, Rule 2.10, governing public comment on pending and impending matters, and Rule 3.1(C), prohibiting judges from engaging in extrajudicial activities that would appear to a reasonable person to undermine the judge’s independence, integrity, or impartiality.

[3] In general, it would be an unnecessary and unfair burden to prohibit judges from appearing before governmental bodies or consulting with government officials on matters that are likely to affect them as private citizens, such as zoning proposals affecting their real property. In engaging in such activities, however, judges must not refer to their judicial positions, and must otherwise exercise caution to avoid using the prestige of judicial office.

Section (A) amended and effective December 15, 2016.

A. For the purposes of this Section, a "former attorney" is any attorney who is disbarred,
has surrendered a law license, is on suspension pursuant to these Procedures, or is on inactive
status.
B. A former attorney shall not occupy, share, or use office space in any office where the
practice of law is conducted.
C. A former attorney shall not engage in the practice of law, nor may a former attorney
engage in any employment in, or related to, the practice of law, except as specifically permitted
in this Section
D. For legal service provided to a client that was not completed prior to becoming a
former attorney, a former attorney may receive compensation only on a quantum meruit basis.
E. A former attorney shall promptly take such action as is necessary to cause the removal
of any indicia of lawyer, counselor at law, attorney, legal assistant, law clerk, or similar title
from any association with the name of the former attorney.
F. Consistent with the restrictions in this Section 22, a former attorney may provide to
attorneys and law firms, whether for or without compensation, services involving legal research
and drafting of briefs and research memoranda.
G. A former attorney shall have no contact with clients or prospective clients of any
attorney or law firm in person, by telephone, in writing, by e-mail, or by any other form of
communication, written, electronic, or in person.
H. A former attorney shall have no contact with client funds or property.
I. Any former attorney providing permitted services may be compensated only for the
reasonable value of the services provided and shall not be compensated on a contingency basis or
share in any way in any fees for legal services provided by an attorney.
J. A former attorney shall not provide services permitted by this Section to any attorney
or law firm with whom the former attorney had any employment, partnership, equity, officesharing, expense-sharing, or "of counsel" affiliation as an attorney at the time of the activities
which resulted in the attorney's becoming a former attorney or at the time of the final action
which resulted in the attorney's becoming a former attorney.
K. Any attorney or law firm utilizing the services of a former attorney as permitted in
this Section 22 shall be responsible for the actions and work product of the former attorney in the
rendering of such services and to ensure that the restrictions on a former attorney set out in this
Section 22 are observed.
L. An attorney shall not aid a former attorney in the unauthorized practice of law or in a
violation of the restrictions set out in this Section 22 on former attorneys. An attorney shall have
an obligation, as under Rule 8.3, to report any violation of this Section 22 by a former attorney.
M. No attorney, firm, professional corporation, or other business entity shall practice law
or provide legal services under any name that includes the name of any former attorney, while
that attorney is a former attorney, except to the extent that it is entitled to do so independently of
any prior or present relationship with the former attorney. This prohibition applies, without
limitation, to any name used on any letterhead, written communication, signage, advertising, email, website, or similar means of placing a firm's name before the public, the courts, or other
attorneys.
N. The maximum punishment for violation of this Section 22 by an attorney, or any
former attorney on suspension or on inactive status, may be disbarment. A former attorney
previously disbarred or who has surrendered a law license and who violates this Section 22 may
be deemed to be in contempt of the Supreme Court and may be punished accordingly.

A judge shall not testify as a character witness in a judicial, administrative, or other adjudicatory proceeding or otherwise vouch for the character of a person in a legal proceeding, except when duly summoned.

COMMENT

[1] A judge who, without being subpoenaed, testifies as a character witness abuses the prestige of judicial office to advance the interests of another. See Rule 1.3. Except in unusual circumstances where the demands of justice require, a judge should discourage a party from requiring the judge to testify as a character witness.

A. Following any period of suspension from the practice of law, an attorney desiring
reinstatement shall file with the Executive Director a verified petition requesting reinstatement.
B. The petition for reinstatement shall be accompanied by proof of payment of an
application fee of $100.00 to the Clerk.
C. The petition for reinstatement shall state that:
(1) The attorney has fully and promptly complied with the requirements of
Section 21;
(2) The attorney has refrained from practicing law during the period of
suspension;
(3) The attorney's license fee is current or has been tendered to the Clerk; and
(4) The attorney has fully complied with any requirements imposed by the
Committee as conditions for reinstatement.
D. Any knowing misstatement of fact may constitute contempt of the Supreme Court and
grounds for denial or revocation of reinstatement.
E. Failure to comply with the provisions of Section 21(G) and (H) shall preclude
consideration for reinstatement.
F. Within ten (10) calendar days after the filing of the petition for reinstatement, the
Office of Professional Conduct may file a response.
G. Within ten (10) calendar days after service of the response, the petitioning attorney
may file a reply.
H. The Office of Professional Conduct shall promptly submit the petition, any response,
and any reply to a panel of the Committee for ballot vote.
I. No attorney shall be reinstated to the practice of law in this State until the Arkansas
Supreme Court has received an affirmative vote by a majority of a panel of the Committee.

A judge shall not accept appointment to a governmental committee, board, commission, or other governmental position, unless it is one that concerns the law, the legal system, or the administration of justice.

COMMENT

[1] Rule 3.4 implicitly acknowledges the value of judges accepting appointments to entities that concern the law, the legal system, or the administration of justice. Even in such instances, however, a judge should assess the appropriateness of accepting an appointment, paying particular attention to the subject matter of the appointment and the availability and allocation of judicial resources, including the judge's time commitments, and giving due regard to the requirements of the independence and impartiality of the judiciary.

[2] A judge may represent his or her country, state, or locality on ceremonial occasions or in connection with historical, educational, or cultural activities. Such representation does not constitute acceptance of a government position.

A. No attorney who has been disbarred or who has surrendered his or her law license in
this State shall thereafter be readmitted to the Bar of Arkansas except upon application made to
the State Board of Law Examiners in accordance with the Rules Governing Admission To The
Bar, or any successor rules, and the approval of the Arkansas Supreme Court.
B. Provided, however, that application for readmission to the Bar of Arkansas shall not
be allowed in any of the following circumstances:
(1) A period of less than five (5) years has elapsed since the effective date of the
order of disbarment or surrender;
(2) The disbarment or surrender resulted from conviction of a Serious Crime in
any jurisdiction, unless the Serious Crime was an offense for which the culpable mental state was
that of negligence or recklessness; or
(3) Any of the grounds found to be the basis of a disbarment or any grounds
presented in a voluntary surrender of law license are of the character and nature of conduct that
reflects adversely on the individual's honesty or trustworthiness, whether or not the conviction of
any criminal offense occurred.

A judge shall not intentionally disclose or use nonpublic information acquired in a judicial capacity for any purpose unrelated to the judge’s judicial duties.

COMMENT

[1] In the course of performing judicial duties, a judge may acquire information of commercial or other value that is unavailable to the public. The judge must not reveal or use such information for personal gain or for any purpose unrelated to his or her judicial duties.

[2] This rule is not intended, however, to affect a judge’s ability to act on information as necessary to protect the health or safety of the judge or a member of a judge’s family, court personnel, or other judicial officers if consistent with other provisions of this Code.

A. Temporary Transfer to Inactive Status. The Committee is authorized to temporarily
transfer an attorney to inactive status in the event that:
(1) The attorney has been judicially declared incompetent; or
(2) The attorney has been involuntarily committed due to incapacity or disability;
or
(3) The attorney has alleged incapacity during the course of a disciplinary
proceeding against him or her; or
(4) The attorney is found by the Committee to be culpable of habitual
drunkenness or drug use substantially affecting the attorney's fitness to practice law; or
(5) The attorney is found by the Committee to have appeared in Court while
under the influence of alcohol or drugs; or
(6) The attorney is found by the Committee to be unfit to practice law due to
mental infirmity whether or not he or she has been judicially declared incompetent; or
(7) Without cause, the attorney requests to be transferred to a voluntary inactive
status.
B. All judges have the duty to, and shall report to the Committee any attorney appearing
before them who, in the judge's opinion, is under the influence of alcohol or drugs.
C. The Committee may vote by ballot as provided in Section 10 of these Procedures, on
the issue of temporary transfer to inactive status or reinstatement due to an event described in
subsections A (1), (2), (3) or (7) of this Section.
D. All other temporary transfers of an attorney to inactive status shall be made only after
hearings initiated by the Executive Director or others and conducted in the same manner, where
applicable, as provided in Section 11 of these Procedures. Provided further, however, the
Committee may in its sound discretion hold a closed hearing and seal the record thereof.
E. For good cause shown, the Committee may order the attorney to submit to a medical,
psychiatric, or psychological examination by a Committee-appointed expert.
F. No attorney shall be entitled to practice in Arkansas while on inactive status in this
State. Upon a transfer to inactive status the attorney, or his or her counsel as may be appropriate,
shall comply with Section 21 of these Procedures.
G. The Committee may reinstate an attorney to active status upon a showing that any
disability has been removed and the attorney is fit to resume the practice of law.
H. Reinstatement shall be accomplished in accordance with the provisions of Section 23.
I. The filing of a petition for reinstatement shall be deemed a waiver of the doctor-patient
privilege regarding the disability.

Applicants for certification, deemed eligible by the Board, shall receive certification upon submitting the application, paying the application fee, and either successfully passing the certification examination or utilizing the provisions of Section 26. Certification shall be issued solely in the method by which the applicant successfully tested.

Amended and effective by per curiam order September 15, 2016.

(A) A judge shall not hold membership in any organization that practices invidious discrimination.

(B) A judge shall not use the benefits or facilities of an organization if the judge knows or should know that the organization practices invidious discrimination. A judge’s attendance at an event in a facility of an organization that the judge is not permitted to join is not a violation of this Rule when the judge’s attendance is an isolated event that could not reasonably be perceived as an endorsement of the organization’s practices.

COMMENT

[1] A judge’s public manifestation of approval of invidious discrimination gives rise to the appearance of impropriety and diminishes public confidence in the integrity and impartiality of the judiciary. A judge’s membership in an organization that practices invidious discrimination creates the perception that the judge’s impartiality is impaired.

[2] Invidious discrimination will generally be demonstrated if an organizations’s exclusionary membership practices are arbitrary, irrational, or the result of hostility or animus toward an identifiable group. Whether an organization practices invidious discrimination is a complex question to which judges should be attentive. The answer cannot be determined from a mere examination of an organization’s current membership rolls, but rather, depends upon how the organization selects members, as well as other relevant factors, such as whether the organization is dedicated to the preservation of religious, ethnic, or cultural values of legitimate common interest to its members, or whether it is an intimate, purely private organization whose membership limitations could not constitutionally be prohibited.

[2A] A judge may ordinarily be a member of an organization which is in fact and effect an intimate, purely private organization whose membership limitations could not be constitutionally prohibited, even though that organization is a single sex or single race organization. Likewise, a judge may ordinarily be a member of an organization which is dedicated to the preservation of religious, ethnic or cultural values of legitimate common interest to its members, even though in fact its membership is limited. Similarly, a judge may have or retain membership with a university related or other living group, even though its membership is single sex. However, public approval of, or participation in, any discrimination that gives the appearance of impropriety and diminishes public confidence in the integrity and impartiality of the judiciary violates this Code. For example, an organization that conducts lobbying or advocacy on behalf of its members may raise such concerns. Ultimately, each judge must determine in the judge's own conscience whether participation in such an organization violates Rule 3.6.

[3] When a judge learns that an organization to which the judge belongs engages in invidious discrimination, the judge must resign immediately from the organization.

[4] A judge’s membership in a religious organization as a lawful exercise of the freedom of religion is not a violation of this Rule.

[5] This Rule does not apply to national or state military service.

After three years, the Committee shall expunge all records or other evidence of the existence of
complaints terminated by dismissals or referrals to alternative programs pursuant to Section
5(C)(2), except that, upon the Executive Director's application, notice to respondent, and a
showing of good cause, the Committee may permit the Executive Director to retain such records
for one additional period of time not to exceed three years.
A. Notice to Respondent. If the respondent was contacted by the Executive Director or
Committee concerning the complaint, or the Executive Director or Committee otherwise knows
that the respondent is aware of the existence of the complaint, the respondent shall be given
prompt written notice of the expungement.
B. Effect of Expungement. After a file has been expunged, any response by the
Executive Director or Committee to an inquiry requiring a reference to the matter shall state that
there is no record of such matter. The respondent may answer any inquiry requiring a reference
to an expunged matter by stating that no complaint was made.

(A) Subject to the requirements of Rule 3.1, a judge may participate in activities sponsored by organizations or governmental entities concerned with the law, the legal system, or the administration of justice, and those sponsored by or on behalf of educational, religious, charitable, fraternal, or civic organizations not conducted for profit, including but not limited to the following activities:

(1) assisting such an organization or entity in planning related to fund-raising, and participating in the management and investment of the organization’s or entity’s funds;

(2) soliciting contributions for such an organization or entity, but only from members of the judge’s family, or from judges over whom the judge does not exercise supervisory or appellate authority;

(3) soliciting membership for such an organization or entity, even though the membership dues or fees generated may be used to support the objectives of the organization or entity, as long as the solicitation cannot reasonably be perceived as coercive;

(4) appearing or speaking at, receiving an award or other recognition at, being featured on the program of, and permitting his or her title to be used in connection with an event of such an organization or entity, but if the event serves a fund-raising purpose, the judge may participate only if the event concerns the law, the legal system, or the administration of justice;

(5) making recommendations to such a public or private fund-granting organization or entity in connection with its programs and activities, but only if the organization or entity is concerned with the law, the legal system, or the administration of justice; and

(6) serving as an officer, director, trustee, or nonlegal advisor of such an organization or entity, unless it is likely that the organization or entity:

(a) will be engaged in proceedings that would ordinarily come before the judge; or

(b) will frequently be engaged in adversary proceedings in the court of which the judge is a member, or in any court subject to the appellate jurisdiction of the court of which the judge is a member.

(B) A judge may encourage lawyers to provide pro bono publico legal services.

(C) A judge may, as a parent or guardian, assist minor children in their fund-raising activities if the procedures employed are not coercive and the sums solicited are minor.

COMMENT [1] The activities permitted by paragraph (A) generally include those sponsored by or undertaken on behalf of public or private not-for-profit educational institutions, and other not-for-profit organizations, including law-related, charitable, and other organizations.

[2] Even for law-related organizations, a judge should consider whether the membership and purposes of the organization, or the nature of the judge’s participation in or association with the organization, would conflict with the judge’s obligation to refrain from activities that reflect adversely upon a judge’s independence, integrity, and impartiality.

[3] Mere attendance at an event, whether or not the event serves a fund-raising purpose, does not constitute a violation of paragraph (A)(4). It is also generally permissible for a judge to serve as an usher or a food server or preparer, or to perform similar functions, at fund-raising events sponsored by educational, religious, charitable, fraternal, or civic organizations. Such activities are not solicitation and do not present an element of coercion or abuse the prestige of judicial office.

[4] Identification of a judge’s position in educational, religious, charitable, fraternal, or civic organizations on letterhead used for fund-raising or membership solicitation does not violate this Rule. The letterhead may list the judge’s title or judicial office if comparable designations are used for other persons.

[5] In addition to appointing lawyers to serve as counsel for indigent parties in individual cases, a judge may promote broader access to justice by encouraging lawyers to participate in pro bono publico legal services, if in doing so the judge does not employ coercion, or abuse the prestige of judicial office. Such encouragement may take many forms, including providing lists of available programs, training lawyers to do pro bono publico legal work, and participating in events recognizing lawyers who have done pro bono publico work.

Section (C) added and effective December 15, 2016.

The following shall be regarded as contempt of the Arkansas Supreme Court:
A. Willful disobedience of any Committee or panel order, summons, or subpoena;
B. The refusal to testify on matters not privileged by law;
C. Knowingly testifying falsely before a panel of the Committee;
D. Engaging in the practice of law during a period of suspension;
E. Engaging in the practice of law after a disbarment or surrender of license; or,
F. Violation of these Procedures by any person.

(A) A judge shall not accept appointment to serve in a fiduciary position, such as executor, administrator, trustee, guardian, attorney in fact, or other personal representative, except for the estate, trust, or person of a member of the judge’s family, and then only if such service will not interfere with the proper performance of judicial duties.

(B) A judge shall not serve in a fiduciary position if the judge as fiduciary will likely be engaged in proceedings that would ordinarily come before the judge, or if the estate, trust, or ward becomes involved in adversary proceedings in the court on which the judge serves, or one under its appellate jurisdiction.

(C) A judge acting in a fiduciary capacity shall be subject to the same restrictions on engaging in financial activities that apply to a judge personally.

(D) If a person who is serving in a fiduciary position becomes a judge, he or she must comply with this Rule as soon as reasonably practicable, but in no event later than one year after becoming a judge.

COMMENT

[1] A judge should recognize that other restrictions imposed by this Code may conflict with a judge’s obligations as a fiduciary; in such circumstances, a judge should resign as fiduciary. For example, serving as a fiduciary might require frequent disqualification of a judge under Rule 2.11 because a judge is deemed to have an economic interest in shares of stock held by a trust if the amount of stock held is more than de minimis.

NOTIFICATION PROCEDURE.

A. Consent By Lawyers. Every lawyer practicing or admitted to practice in Arkansas shall, as a condition thereof, be conclusively deemed to have consented to the trust account overdraft reporting and production requirements mandated by this Section.

B. Overdraft Notification Agreement Required. A financial institution shall be approved as a depository for lawyer trust accounts only if it files with the Arkansas Supreme Court Office of Professional Conduct (the "Office") an agreement, in a form provided by the Office, to report to that Office whenever any properly payable instrument is presented against any lawyer trust account containing insufficient funds, irrespective of whether or not the instrument is honored. The Office may establish additional procedures, to be approved by the Supreme Court, governing approval and revocation of approved status for financial institutions. The Office shall annually file with the Supreme Court Clerk and the Arkansas Access to Justice Foundation, and post on the Court's website, not later than January 1, a current list of approved financial institutions. No attorney or law firm trust account shall be maintained in any financial institution that does not agree to so report and is not approved by the Office. Any such agreement shall apply to all branches of the financial institution and shall not be canceled except upon thirty (30) days written notice to the Office.

C. Overdraft Reports. The overdraft notification agreement shall provide that all reports made by the financial institution to the Office shall be in the following format: (1) In the case of a dishonored instrument, the report shall be identical to the overdraft notice customarily forwarded to the depositor, and should include a copy of the dishonored instrument, if such a copy is normally provided to depositors; (2) In the case of instruments that are presented against insufficient funds but which instruments are honored, the report shall identify the financial institution, the lawyer or law firm, the account number, the date of presentation for payment, and the date paid, as well as the amount of overdraft created thereby.

D. Timing of Reports. Reports under subsection 28(C) shall be made simultaneously with, and within the time provided by law for, notice of dishonor, if any. If an instrument presented against insufficient funds is honored, then the report shall be made within five (5) banking days of the date of presentation for payment against insufficient funds.

E. Costs. Nothing herein shall preclude a financial institution from charging a particular lawyer or law firm for the reasonable cost of producing the reports and records required by this Section.

F. Trust Accounts. Lawyers who practice law in Arkansas shall deposit all funds held in trust in Arkansas in accordance with Rule 1.15(a) of the Arkansas Rules of Professional Conduct in accounts clearly identified as "trust" or "escrow" accounts, referred to herein as "trust accounts," and shall take all steps necessary to inform the depository institution of the purpose and identity of the accounts. Funds held in trust include funds held in any fiduciary capacity in connection with a representation, whether as trustee, agent, guardian, executor, or otherwise. Lawyer trust accounts shall be maintained only in financial institutions approved by the Office.

G. Account Records. Every lawyer engaged in the practice of law in Arkansas shall maintain and preserve for a period of at least five years, after final disposition of the underlying matter, the records of the accounts, including checkbooks, canceled checks, check stubs, vouchers, ledgers, journals, closing statements, accountings, or other statements of disbursements rendered to clients or other parties with regard to trust funds or similar equivalent records clearly and expressly reflecting the date, amount, source, and explanation for all receipts, withdrawals, deliveries, and disbursements of the funds or other property of a client.

H. Definitions. For purposes of this Section: (1) "Financial institution" includes a bank, savings and loan association, credit union, savings bank, and any other business or person that accepts for deposit funds held in trust by lawyers. (2) "Properly payable" refers to an instrument which, if presented in the normal course of business, is in a form requiring payment under the laws of Arkansas. (3) "Notice of dishonor" refers to the notice that a financial institution is required to give, under Arkansas law, upon presentation of an instrument, that the institution dishonors. (4) "Office" means the Office of Professional Conduct of the Arkansas Supreme Court.

I. Form of Overdraft Reporting Agreement. The form of the "Attorney Trust Account Overdraft Reporting Agreement" attached hereto, and as may be subsequently revised, is approved for use.

J. Disapproval or Revocation of Approval of Financial Institutions. (1) Refusal of the Office to approve a financial institution due to failure of the financial institution to timely submit an initial properly executed written agreement on the form approved by the Court or the Office is not appealable or otherwise subject to challenge, including by civil action in any court. (2) Approval of a financial institution shall be revoked and the financial institution removed from the list of approved financial institutions if it is found by the Executive Director to have engaged in a pattern of neglect or to have acted in bad faith in not complying with its obligations under the written agreement. (3) The Executive Director shall communicate any decision to revoke approval to the financial institution in writing by certified mail at the address given on the agreement. The revocation notice shall state the specific reasons for the revocation decision and advise of any right to reconsideration or review. The financial institution shall have thirty (30) days from the date of receipt of the written notice to file a written request with the Executive Director seeking reconsideration of the Executive Director's decision or a review of that decision by a panel of the Committee on Professional Conduct. The financial institution may request a review by either ballot vote of a panel or a public hearing before a panel, following the Procedures. The decision of the panel shall be final and not subject to any review. The approved status of the financial institution shall continue until such time as this review process is final. (4) Once the approval of the financial institution has been finally revoked, the institution shall not thereafter be approved as a depository for attorney trust accounts until such time as the financial institution petitions the Office for new approval, including in the petition a plan for curing any deficiencies that caused its earlier revocation and for periodically reporting compliance with the plan in the future, and approval is granted. (5) Within fifteen (15) days of receipt of the notice of revocation, or final order of revocation if reviewed by a panel, of its approved status, a financial institution shall give written notification of the revocation action to all holders of attorney trust accounts on deposit with the financial institution, and file a report with the Office of all such attorney notification contacts within thirty (30) days of the date of receipt by the financial institution of the notice or final order of revocation. (6) Any attorney or law firm receiving notification from a financial institution that the institution's approval as a trust account depository has been revoked shall remove all trust accounts from the financial institution within thirty (30) days of receipt of such notice or by such later date as is required for the payment of all outstanding items payable from the trust account, and shall send written notice of compliance to the Office, including the name and address of the new trust account depository institution. (7) Failure of any financial institution, attorney, or law firm to comply with the provisions of Section 28 may be treated as contempt of the Arkansas Supreme Court upon petition by the Office, and punished as such upon a finding of contempt.

ATTORNEY TRUST ACCOUNT OVERDRAFT REPORTING AGREEMENT

To: Arkansas Supreme Court Office of Professional Conduct (the "Office") Justice Building, Room 110 625 Marshall Street Little Rock, AR 72201-1054

The undersigned, being a duly authorized officer of (name of institution) _____________________________________________________________________________, a financial institution doing business in the State of Arkansas, and the agent of the named financial institution specifically authorized to enter into this agreement, hereby applies to receive attorney trust accounts in the State of Arkansas. In consideration of approval by the Office of this financial institution, the financial institution agrees to comply with the overdraft reporting requirements for such financial institutions as set forth in Section 28 of the Supreme Court Procedures Regulating Professional Conduct of Attorneys at Law (Rev. 2011) (the "Procedures"), which is incorporated herein by reference, and any other rules or procedures for overdraft reporting promulgated by the Arkansas Supreme Court or the Office, and any later amendments to such rules or procedures.

Specifically, the named financial institution agrees to report to the Office all events involving trust account instruments, and to report in the following format:

(1) In the case of a dishonored instrument, the report shall be identical to the overdraft notice customarily forwarded to the depositor, and should include a copy of the dishonored instrument, if such a copy is normally provided to depositors;

(2) In the case of instruments that are presented against insufficient funds but which instruments are honored, the report shall identify the financial institution, the lawyer or law firm, the account number, the date of presentation for payment, and the date paid, as well as the amount of overdraft created thereby.

All reports shall be made within the following time periods:

(1) In the case of a dishonored instrument, simultaneously with, and within the time provided by law for, notice of dishonor;

(2) In the case of an instrument that is presented against insufficient funds but which instrument is honored, within five (5) banking days of the date of presentation for payment against insufficient funds. This agreement shall apply to all branches of the named financial institution and shall not be cancelled except upon thirty (30) days written notice to the Executive Director of the Office at the address listed above. Name and address of financial institution: ______________________________________________________________________________ ______________________________________________________________________________

Date: ____________________                                                                                                                                                             __________________________________

Signature of Authorized Official

(Corporate Seal)

Printed or Typed Name of Authorized Official __________________________________

Title or Position of Authorized Official ________________________________________

ACKNOWLEDGMENT

On this ____ day of ____________, 2____, before me, a Notary Public for the State of Arkansas, appeared the above-named individual, known to me to the person executing this instrument, and acknowledged and executed this instrument as his/her free and voluntary act.

____________________________________________

Notary Public (signature)

My Commission Expires: ______________

ACCEPTANCE

The above-named financial institution is hereby approved by the Arkansas Supreme Court Office of Professional Conduct as a depository for attorney trust accounts in the State of Arkansas until such time as this agreement is cancelled by the financial institution upon thirty (30) days written notice to the Office, or is revoked by action of the Executive Director of the Office.

Date  _______________                                                                                                                                                              _______________________________________

Executive Director, Office of Professional Conduct

A judge shall not act as an arbitrator or a mediator or perform other judicial functions apart from the judge’s official duties unless expressly authorized by law.

COMMENT

[1] This Rule does not prohibit a judge from participating in arbitration, mediation, or settlement conferences performed as part of assigned judicial duties. Rendering dispute resolution services apart from those duties, whether or not for economic gain, is prohibited unless it is expressly authorized by law.

A judge shall not practice law. A judge may act pro se and may, without compensation, give legal advice to and draft or review documents for a member of the judge’s family, but is prohibited from serving as the family member’s lawyer in any forum.

COMMENT

[1] A judge may act pro se in all legal matters, including matters involving litigation and matters involving appearances before or other dealings with governmental bodies. A judge must not use the prestige of office to advance the judge’s personal or family interests. See Rule 1.3.

 

The Board is charged with the duty and invested with the power and authority:

A. To determine the eligibility of applicants for certification.

B. To determine the content of examinations to be given to applicants for certification as certified court reporters.

C. To determine the applicant's ability to make a verbatim record of court proceedings by any recognized system designated by the Board.

D. To issue certificates to those found qualified as certified court reporters.

E. To set a fee to be paid by each applicant at the time the application is filed and an annual license fee.

F. To develop a records retention schedule for court reporters for cases pending in state trial courts.

G. To develop, implement, and enforce a continuing education requirement for court reporters certified pursuant to this Rule.

H. To promulgate, amend and revise regulations relevant to the above duties and to implement this Rule. Such regulations are to be consistent with the provisions of this Rule and shall not be effective until approved by this Court.

I. To provide a system and procedure for receiving complaints against court reporters, investigating such complaints, filing formal disciplinary Complaints against reporters, and for hearing, consideration, and determination of validity of charges and appropriate sanctions to be imposed upon any reporter.

J. To hire an executive secretary to assist the Board with its duties.

Amended and effective January 15, 2009; amended and effective September 21, 2017.

(A) A judge may hold and manage investments of the judge and members of the judge’s family.

(B) A judge shall not serve as an officer, director, manager, general partner, advisor, or employee of any business entity except that a judge may manage or participate in:
(1) a business closely held by the judge or members of the judge’s family; or
(2) a business entity primarily engaged in investment of the financial resources of the judge or members of the judge’s family.

(C) A judge shall not engage in financial activities permitted under paragraphs (A) and (B) if they will:
(1) interfere with the proper performance of judicial duties;
(2) lead to frequent disqualification of the judge;
(3) involve the judge in frequent transactions or continuing business relationships with lawyers or other persons likely to come before the court on which the judge serves; or
(4) result in violation of other provisions of this Code.

COMMENT

[1] Judges are generally permitted to engage in financial activities, including managing real estate and other investments for themselves or for members of their families. Participation in these activities, like participation in other extrajudicial activities, is subject to the requirements of this Code. For example, it would be improper for a judge to spend so much time on business activities that it interferes with the performance of judicial duties. See Rule 2.1. Similarly, it would be improper for a judge to use his or her official title or appear in judicial robes in business advertising, or to conduct his or her business or financial affairs in such a way that disqualification is frequently required. See Rules 1.3 and 2.11.
[2] As soon as practicable without serious financial detriment, the judge must divest himself or herself of investments and other financial interests that might require frequent disqualification or otherwise violate this Rule.

A judge may accept reasonable compensation for extrajudicial activities permitted by this Code or other law unless such acceptance would appear to a reasonable person to undermine the judge’s independence, integrity, or impartiality.

COMMENT

[1] A judge is permitted to accept honoraria, stipends, fees, wages, salaries, royalties, or other compensation for speaking, teaching, writing, and other extrajudicial activities, provided the compensation is reasonable and commensurate with the task performed. The judge should be mindful, however, that judicial duties must take precedence over other activities. See Rule 2.1.

[2] Compensation derived from extrajudicial activities may be subject to public reporting. See Rule 3.15.

(A) A judge shall not accept any gifts, loans, bequests, benefits, or other things of value, if acceptance is prohibited by law or would appear to a reasonable person to undermine the judge’s independence, integrity, or impartiality.

(B) Unless otherwise prohibited by law, or by paragraph (A), a judge may accept the following:

(1) items with little intrinsic value, such as plaques, certificates, trophies, and greeting cards;

(2) gifts, loans, bequests, benefits, or other things of value from close friends or relatives whose appearance or interest in a proceeding pending or impending before the judge would in any event require disqualification of the judge under Rule 2.11;

(3) ordinary social hospitality;

(4) commercial or financial opportunities and benefits, including special pricing and discounts, and loans from lending institutions in their regular course of business, if the same opportunities and benefits or loans are made available on the same terms to similarly situated persons who are not judges;

(5) rewards and prizes given to competitors or participants in random drawings, contests, or other events that are open to persons who are not judges;

(6) scholarships, fellowships, and similar benefits or awards, if they are available to similarly situated persons who are not judges, based upon the same terms and criteria;

(7) books, magazines, journals, audiovisual materials, and other resource materials supplied by publishers on a complimentary basis for official use; or

(8) gifts, awards, or benefits associated with the business, profession, or other separate activity of a spouse, a domestic partner, or other family member of a judge residing in the judge’s household, but that incidentally benefit the judge;

 (9) gifts incident to a public testimonial;

(10) a gift made in connection with a special occasion for the judge, such as a wedding, anniversary, birthday, or other holiday and the gift is fairly commensurate with the occasion and the relationship of the donor;

(11) invitations to the judge and the judge's spouse, domestic partner, or guest to attend without charge:

 (a) an event associated with a bar-related function or other activity relating to the law, the legal system, or the administration of justice; or

(b) an event associated with any of the judge’s educational, religious, charitable, fraternal or civic activities permitted by this Code, if the same invitation is offered to nonjudges who are engaged in similar ways in the activity as is the judge.

(C) A judge shall report gifts as required by law.

(D) If a judge receives a gift or thing of value in violation of this Rule and the judge cannot determine the source of the gift or the judge has difficulty returning the gift, the judge may donate the gift to a non-profit organization.

(E) For purposes of this Rule, the term "relatives" is broader than Rule 2.11 and shall include a spouse, child, parent, grandparent, grandchild, brother, sister, parent-in-law, brother-in-law, sister-in-law, nephew, niece, aunt, uncle, or first cousins, and the spouse or in-laws of any of these persons.

COMMENT

[1] Whenever a judge accepts a gift or other thing of value without paying fair market value, there is a risk that the benefit might be viewed as intended to influence the judge’s decision in a case. Rule 3.13 imposes restrictions upon the acceptance of such benefits, according to the magnitude of the risk. Paragraph (B) identifies circumstances in which the risk that the acceptance would appear to undermine the judge’s independence, integrity, or impartiality is low.

[2] Gift-giving between close friends and relatives is a common occurrence, and ordinarily does not create an appearance of impropriety or cause reasonable persons to believe that the judge’s independence, integrity, or impartiality has been compromised. In addition, when the appearance of friends or relatives in a case would require the judge’s disqualification under Rule 2.11, there would be no opportunity for a gift to influence the judge’s decision making. Paragraph (B)(2) places no restrictions upon the ability of a judge to accept gifts or other things of value from friends or relatives under these circumstances.

[3] Businesses and financial institutions frequently make available special pricing, discounts, and other benefits, either in connection with a temporary promotion or for preferred customers, based upon longevity of the relationship, volume of business transacted, and other factors. A judge may freely accept such benefits if they are available to the general public, or if the judge qualifies for the special price or discount according to the same criteria as are applied to persons who are not judges. As an example, loans provided at generally prevailing interest rates are not gifts, but a judge could not accept a loan from a financial institution at below-market interest rates unless the same rate was being made available to the general public for a certain period of time or only to borrowers with specified qualifications that the judge also possesses.

[4] Rule 3.13 applies only to acceptance of gifts or other things of value by a judge. Nonetheless, if a gift or other benefit is given to the judge’s spouse, domestic partner, or member of the judge’s family residing in the judge’s household, it may be viewed as an attempt to evade Rule 3.13 and influence the judge indirectly. Where the gift or benefit is being made primarily to such other persons, and the judge is merely an incidental beneficiary, this concern is reduced. A judge should, however, remind family and household members of the restrictions imposed upon judges, and urge them to take these restrictions into account when making decisions about accepting such gifts or benefits.

[5] Rule 3.13 does not apply to contributions to a judge’s campaign for judicial office. Such contributions are governed by other Rules of this Code, including Rules 4.3 and 4.4.

Amended and effective December 15, 2016.

(A) Unless otherwise prohibited by Rules 3.1 and 3.13(A) or other law, a judge may accept reimbursement of necessary and reasonable expenses for travel, food, lodging, or other incidental expenses, or a waiver or partial waiver of fees or charges for registration, tuition, and similar items, from sources other than the judge’s employing entity, except from a political organization, if the expenses or charges are associated with the judge’s participation in extrajudicial activities permitted by this Code.

(B) Reimbursement of expenses for necessary travel, food, lodging, or other incidental expenses shall be limited to the actual costs reasonably incurred by the judge and, when appropriate to the occasion, by the judge’s spouse, domestic partner, or guest.

(C) A judge who accepts reimbursement of expenses or waivers or partial waivers of fees or charges on behalf of the judge or the judge’s spouse, domestic partner, or guest shall publicly report such acceptance as required by Rule 3.15.

COMMENT [1] Educational, civic, religious, fraternal, and charitable organizations often sponsor meetings, seminars, symposia, dinners, awards ceremonies, and similar events. Judges are encouraged to attend educational programs, as both teachers and participants, in law-related and academic disciplines, in furtherance of their duty to remain competent in the law. Participation in a variety of other extrajudicial activity is also permitted and encouraged by this Code.

[2] Not infrequently, sponsoring organizations invite certain judges to attend seminars or other events on a fee-waived or partial-fee-waived basis, and sometimes include reimbursement for necessary travel, food, lodging, or other incidental expenses. A judge’s decision whether to accept reimbursement of expenses or a waiver or partial waiver of fees or charges in connection with these or other extrajudicial activities must be based upon an assessment of all the circumstances. The judge must undertake a reasonable inquiry to obtain the information necessary to make an informed judgment about whether acceptance would be consistent with the requirements of this Code.

[3] A judge must assure himself or herself that acceptance of reimbursement or fee waivers would not appear to a reasonable person to undermine the judge’s independence, integrity, or impartiality. The factors that a judge should consider when deciding whether to accept reimbursement or a fee waiver for attendance at a particular activity include:

(a) whether the sponsor is an accredited educational institution or bar association rather than a trade association or a for-profit entity;

(b) whether the funding comes largely from numerous contributors rather than from a single entity and is earmarked for programs with specific content;

(c) whether the content is related or unrelated to the subject matter of litigation pending or impending before the judge, or to matters that are likely to come before the judge;

(d) whether the activity is primarily educational rather than recreational, and whether the costs of the event are reasonable and comparable to those associated with similar events sponsored by the judiciary, bar associations, or similar groups;

(e) whether information concerning the activity and its funding sources is available upon inquiry;

(f) whether the sponsor or source of funding is generally associated with particular parties or interests currently appearing or likely to appear in the judge’s court, thus possibly requiring disqualification of the judge under Rule 2.11;

(g) whether differing viewpoints are presented; and

(h) whether a broad range of judicial and nonjudicial participants are invited, whether a large number of participants are invited, and whether the program is designed specifically for judges.

[4A] Reimbursement of expenses from governmental entities need not be reported under Rule 3.14 [C] or Rule 3.15.

Amended and effective December 15, 2016.

(A) A judge shall publicly report the amount or value of the following as required by state law:

(1) compensation received for extrajudicial activities as permitted by Rule 3.12;

(2) gifts and other things of value as permitted by Rule 3.13, and

(3) reimbursement of expenses and waiver of fees or charges as permitted by Rule 3.14. (B) The scope of reporting, the time for reporting, the manner of reporting, and other issues shall be as determined by state law.

 

Amended and effective December 15, 2016.

Examinations for certification shall be held at least semi-annually at times and places set by the Board.

Certification granted by the Board shall remain in effect upon payment of the annual certificate renewal fees to the Clerk of the Supreme Court on or before January 1 of each year, unless suspended or revoked pursuant to Section 7 of the Rules of the Board of Certified Court Reporter Examiners.

(A) Except as permitted by law, or by Rules 4.2, 4.3, and 4.4, a judge, a judicial candidate, and a  judge-elect shall not:

(1) act as a leader in, or hold an office in, a political organization;

(2) make speeches on behalf of a political organization;

(3) publicly endorse or oppose a candidate for any public office;

(4) solicit funds for, pay an assessment to, or make a contribution to a political organization or a candidate for public office;

(5) solicit the efforts of any individual, committee, or organization to expend money outside of the judge's campaign when such expenses will not be reported by the campaign if the purpose of the expenditure is to influence the outcome of the judge's election.

(6) publicly identify himself or herself as a candidate of a political organization;

(7) seek, accept, or use endorsements from a political organization or an elected official who was elected in a partisan election; however, nothing prevents a judicial candidate from speaking to a political organization or elected official concerning the judicial candidate's election;

(8) personally solicit or accept campaign contributions other than through a campaign committee authorized by Rule 4.4;

(9) use or permit the use of campaign contributions for the private benefit of the judge, the candidate, or others;

(10) use court staff, facilities, or other court resources in a campaign for judicial office;

(11) knowingly, or with reckless disregard for the truth, make any false or misleading statement;

(12) make any statement that would reasonably be expected to affect the outcome or impair the fairness of a matter pending or impending in any court; or

(13) in connection with cases, controversies, or issues that are likely to come before the court, make pledges, promises, or commitments that are inconsistent with the impartial performance of the adjudicative duties of judicial office;

(14) use the term "re-elect" unless the judge was previously elected to that same position.

 

(B) A judge or judicial candidate shall take reasonable measures to ensure that other persons do not undertake, on behalf of the judge or judicial candidate, any activities prohibited under paragraph (A).

(C) For purposes of this Rule, a judge may use the title "Judge" if the judge is currently serving as a judge on the district court, circuit court, or court of appeals. A judge may use the title "Justice" if currently serving on the Arkansas Supreme Court. A judge who previously has held one of these positions, may use the appropriate title as long as it is preceded by the term "former."

COMMENT

GENERAL CONSIDERATIONS

[1] Even when subject to public election, a judge plays a role different from that of a legislator or executive branch official. Rather than making decisions based upon the expressed views or preferences of the electorate, a judge makes decisions based upon the law and the facts of every case. Therefore, in furtherance of this interest, judges, judicial candidates, and a judge-elect must, to the greatest extent possible, be free and appear to be free from political influence and political pressure. This Canon imposes narrowly tailored restrictions upon the political and campaign activities of all judges, judicial candidates, and a judge-elect taking into account the various methods of selecting judges.

[2] When a person becomes a judge, judicial candidate, or judge-elect, this Canon becomes applicable to his or her conduct. In addition, Arkansas Rule of Professional Conduct 8.2(b) provides that a "lawyer who is candidate for judicial office shall comply with the applicable provisions of the Code of Judicial Conduct."

PARTICIPATION IN POLITICAL ACTIVITIES

[3] Public confidence in the independence and impartiality of the judiciary is eroded if judges, judicial candidates, and a judge-elect are perceived to be subject to political influence. Although judges,  judicial candidates, and a judge-elect may register to vote as members of a political party, they are prohibited by paragraph (A)(1) from assuming leadership roles in political organizations.

[4] Paragraphs (A)(2) and (A)(3) prohibit judges, judicial candidates, and a judge-elect from making speeches on behalf of political organizations or publicly endorsing or opposing candidates for public office, respectively, to prevent them from abusing the prestige of judicial office to advance the interests of others. See Rule 1.3. These Rules do not prohibit candidates from campaigning on their own behalf, or from endorsing or opposing candidates for the same judicial office for which they are running.

[5] Although members of the families of judges, judicial candidates, and a judge-elect are free to engage in their own political activity, including running for public office, there is no “family exception” to the prohibition in paragraph (A)(3) against a judge, candidate, and a judge-elect publicly endorsing candidates for public office. A judge, judicial candidate, and a judge-elect must not become involved in, or publicly associated with, a family member’s political activity or campaign for public office.

[6] Judges, judicial candidates, and a judge-elect retain the right to participate in the political process as voters in both primary and general elections. Judges are permitted to request a ballot in a party’s primary without violating this Code.

[6A] Judges, judicial candidates, and a judge-elect are permitted to attend or purchase tickets for dinners or other events sponsored by a political organization.

STATEMENTS AND COMMENTS MADE BY JUDGES, JUDICIAL CANDIDATES, AND A JUDGE-ELECT

[7] Judicial candidates must be scrupulously fair and accurate in all statements made by them and by their campaign committees. Paragraph (A)(11) obligates candidates and their committees to refrain from making statements that are false or misleading, or that omit facts necessary to make the communication considered as a whole not materially misleading. As an example, "judicial experience" is misleading unless referring to the person's service on a district court, circuit court, court of appeals, or supreme court.

[8] Judges, judicial candidates, and a judge-elect are sometimes the subject of false, misleading, or unfair allegations made by opposing candidates, third parties, or the media. For example, false or misleading statements might be made regarding the identity, present position, experience, qualifications, or judicial rulings of a candidate. In other situations, false or misleading allegations may be made that bear upon a judge, judicial candidate, or judge-elect's integrity or fitness for judicial office. As long as the judge, judicial candidate, or judge-elect does not violate these Rules, the candidate may make a factually accurate public response. In addition, when an independent third party has made unwarranted attacks on a candidate’s opponent, the candidate may disavow the attacks, and request the third party to cease and desist.

[9] Subject to paragraph (A)(12), a judge, judicial candidate, and judge-elect is permitted to respond directly to false, misleading, or unfair allegations made against him or her during a campaign, although it is preferable for someone else to respond if the allegations relate to a pending case.

[10] Paragraph (A)(12) prohibits judges, judicial candidates, and judge-elect from making comments that might impair the fairness of pending or impending judicial proceedings. This provision does not restrict arguments or statements to the court or jury by a lawyer who is a judicial candidate or judge-elect, or rulings, statements, or instructions by a judge that may appropriately affect the outcome of a matter.

PLEDGES, PROMISES, OR COMMITMENTS INCONSISTENT WITH IMPARTIAL PERFORMANCE OF THE ADJUDICATIVE DUTIES OF JUDICIAL OFFICE

[11] The role of a judge is different from that of a legislator or executive branch official, even when the judge is subject to public election. Campaigns for judicial office must be conducted differently from campaigns for other offices. The narrowly drafted restrictions upon political and campaign activities of judicial candidates provided in Canon 4 allow candidates to conduct campaigns that provide voters with sufficient information to permit them to distinguish between candidates and make informed electoral choices.

[12] Paragraph (A)(13) makes applicable to judges, judicial candidates, and a judge-elect the prohibition that applies to judges in Rule 2.10(B), relating to pledges, promises, or commitments that are inconsistent with the impartial performance of the adjudicative duties of judicial office.

[13] The making of a pledge, promise, or commitment is not dependent upon, or limited to, the use of any specific words or phrases; instead, the totality of the statement must be examined to determine if a reasonable person would believe that the candidate for judicial office has specifically undertaken to reach a particular result.

[13A] Before speaking or announcing personal views on social or political topics in a judicial campaign, candidates should consider the impact of their statements. Such statements may suggest that the judge lacks impartiality. See Rule 1.2. They may create the impression that a judge has or manifests bias or prejudice toward individuals with contrary social or political views. See Rule 2.3. Public comments may require the judge to disqualify himself or herself when litigation involving those issues come before the judge. See Rule 2.11. When making such statements, a judge should acknowledge the overarching judicial obligation to apply and uphold the law, without regard to his or her personal views.

[14] A judicial candidate may make campaign promises related to judicial organization, administration, and court management, such as a promise to dispose of a backlog of cases, start court sessions on time, or avoid favoritism in appointments and hiring. A candidate may also pledge to take action outside the courtroom, such as working toward an improved jury selection system, or advocating for more funds to improve the physical plant and amenities of the courthouse.

[15] Judicial candidates may receive questionnaires or requests for interviews from the media and from issue advocacy or other community organizations that seek to learn their views on disputed or controversial legal or political issues. Paragraph (A)(13) does not specifically address judicial responses to such inquiries. Depending upon the wording and format of such questionnaires, candidates’ responses might be viewed as pledges, promises, or commitments to perform the adjudicative duties of office other than in an impartial way. To avoid violating paragraph (A)(13), therefore, candidates who respond to media and other inquiries should also give assurances that they will keep an open mind and will carry out their adjudicative duties faithfully and impartially if elected. Candidates who do not respond may state their reasons for not responding, such as the danger that answering might be perceived by a reasonable person as undermining a successful candidate’s independence or impartiality, or that it might lead to frequent disqualification. See Rule 2.11.

Amended and effective December 15, 2016.

(A) A judicial candidate in a public election shall: (1) act at all times in a manner consistent with the independence, integrity, and impartiality of the judiciary;

(2) comply with all applicable election, election campaign, and election campaign fund-raising laws and regulations of this jurisdiction;

(3) review and approve the content of all campaign statements and materials produced by the candidate or his or her campaign committee, as authorized by Rule 4.4, before their dissemination; and

(4) take reasonable measures to ensure that other persons do not undertake on behalf of the candidate activities, other than those described in Rule 4.4, that the candidate is prohibited from doing by Rule 4.1. (B) A judicial candidate in a public election may, unless prohibited by law, and not earlier than 365 days before the first applicable election: (1) establish a campaign committee pursuant to the provisions of Rule 4.4; (2) speak on behalf of his or her candidacy through any medium, including but not limited to advertisements, websites, or other campaign literature; (3)[Reserved] (4) attend or purchase tickets for dinners or other events sponsored by a political organization;

(5) seek, accept, or use endorsements from any person or organization other than a partisan political organization or partisan elected official; and

(6) [Reserved].

(C) [Reserved].

COMMENT

[1] Paragraph (B) permits judicial candidates in public elections to engage in some political and campaign activities otherwise prohibited by Rule 4.1. Candidates may not engage in these activities earlier than 365 days before the first applicable election. See definition of “judicial candidate,” which provides that a person becomes a candidate for judicial office as soon as he or she makes a public announcement of candidacy, declares or files as a candidate with the election authority, or authorizes or engages in solicitation or acceptance of contributions or support. This rule does not prohibit private conversations with potential supporters by a potential candidate as part of an effort to “test the waters” for a future candidacy. It does prohibit establishing a campaign committee earlier than 365 days before the election date.

[2] Despite paragraph (B), judicial candidates for public election remain subject to many of the provisions of Rule 4.1. For example, a candidate continues to be prohibited from soliciting funds for a political organization, knowingly making false or misleading statements during a campaign, or making certain promises, pledges, or commitments related to future adjudicative duties. See Rule 4.1(A), paragraphs (4), (11), and (13).

[3] [Reserved]

[4] In nonpartisan elections, paragraph (B)(5) prohibits a candidate from seeking, accepting, or using nominations or endorsements from a partisan political organization or partisan elected official.

[5] Subject to the 365 day limitation, judicial candidates are permitted to attend or purchase tickets for dinners and other events sponsored by political organizations. (Cf. Rule 4.1, Comment 6A, Judges are permitted to attend or purchase tickets for dinners or other events sponsored by a political organization.)

[6] [Reserved]

[7] [Reserved]

Amended and effective December 15, 2016.

A candidate for appointment to judicial office may:
(A) communicate with the appointing or confirming authority, including any selection, screening, or nominating commission or similar agency; and
(B) seek endorsements for the appointment from any person or organization other than a partisan political organization.

COMMENT
[1] When seeking support or endorsement, or when communicating directly with an appointing or confirming authority, a candidate for appointive judicial office must not make any pledges, promises, or commitments that are inconsistent with the impartial performance of the adjudicative duties of the office. See Rule 4.1(A)(13).

(A) A judicial candidate subject to public election may establish a campaign committee to manage and conduct a campaign for the candidate, subject to the provisions of this Code. The candidate is responsible for ensuring that his or her campaign committee complies with applicable provisions of this Code and other applicable law.

(B) A judicial candidate subject to public election shall direct his or her campaign committee:

(1) to solicit and accept only such campaign contributions as are permitted by state law.

(2) not to solicit or accept contributions for a candidate’s current campaign more than 180 days before the applicable election, nor more than 45 days after the last election in which the candidate participated; and

(3) to comply with all applicable statutory requirements for disclosure and divestiture of campaign contributions.

(C) Any campaign fund surplus shall be returned to the contributors, contributed to a non-profit organization which is exempt from taxation under Section 501(c)(3), or turned over to the State Treasurer as provided by law.

COMMENT

[1] Judicial candidates are prohibited from personally soliciting campaign contributions or personally accepting campaign contributions. See Rule 4.1(A)(8). This Rule recognizes that in many jurisdictions, judicial candidates must raise campaign funds to support their candidacies, and permits candidates, other than candidates for appointive judicial office, to establish campaign committees to solicit and accept reasonable financial contributions or in-kind contributions.

[2] Campaign committees may solicit and accept campaign contributions, manage the expenditure of campaign funds, and generally conduct campaigns. Candidates are responsible for compliance with the requirements of election law and other applicable law, and for the activities of their campaign committees.

[2A] The forty-five day post-election restriction applies both to contested and non-contested elections. Once a candidate’s campaign has ended, the candidate should only raise funds for 45 more days. For example, if three candidates participate in a judicial election, the candidate who is eliminated may raise funds for only an additional 45 days. However, the two remaining candidates may continue to raise funds through the runoff election and 45 days thereafter.

[3] At the start of a campaign, the candidate must instruct the campaign committee to solicit or accept only such contributions as are reasonable in amount, appropriate under the circumstances, and in conformity with applicable law.

 

Amended and effective December 15, 2016.

(A) Upon becoming a candidate for a nonjudicial elective office, a judge shall resign from judicial office, unless permitted by law to continue to hold judicial office.
(B) Upon becoming a candidate for a nonjudicial appointive office, a judge is not required to resign from judicial office, provided that the judge complies with the other provisions of this Code.

COMMENT
[1] In campaigns for nonjudicial elective public office, candidates may make pledges, promises, or commitments related to positions they would take and ways they would act if elected to office. Although appropriate in nonjudicial campaigns, this manner of campaigning is inconsistent with the role of a judge, who must remain fair and impartial to all who come before him or her. The potential for misuse of the judicial office, and the political promises that the judge would be compelled to make in the course of campaigning for nonjudicial elective office, together dictate that a judge who wishes to run for such an office must resign upon becoming a candidate.
[2] The “resign to run” rule set forth in paragraph (A) ensures that a judge cannot use the judicial office to promote his or her candidacy, and prevents post-campaign retaliation from the judge in the event the judge is defeated in the election. When a judge is seeking appointive nonjudicial office, however, the dangers are not sufficient to warrant imposing the “resign to run” rule.

(a) Verbatim Record. Unless waived on the record by the parties, it shall be the duty of any circuit court to require that a verbatim record be made of all proceedings, including any communications between the court and one or more members of the jury, pertaining to any contested matter before the court or the jury.

(b) Back-up System. When making a verbatim record, an official court reporter or substitute court reporter shall always utilize a back-up system in addition to his or her primary reporting system in order to insure preservation of the record.

(c) Exhibits. Physical exhibits received or proffered in evidence shall be stored pursuant to the requirements of Section 21 of the Regulations of the Board of Certified Court Reporter Examiners, Official Court Reporter Retention Schedule.

(d) Sanctions. Any person who fails to comply with these requirements shall be subject to the discipline provisions of the Rules and Regulations of the Board of Certified Court Reporter Examiners in addition to the enforcement powers of the court, including contempt.

(e) Electronic Recording.

1. Applicability. This subsection (e) shall apply to state district court judges presiding over matters pending in circuit courts pursuant to Administrative Order Number 18 and to circuit court judges upon request to and approval by the Supreme Court.

2. Electronic recording. An audio recording system may make the verbatim record of court proceedings. A recording system used for the purpose of creating the official record of a court proceeding shall meet the standards adopted and published by the Administrative Office of the Courts (“AOC”). The system shall be approved by the AOC, and it shall be tested and court personnel shall be trained before the system is implemented. The system shall include a back-up capability to satisfy the requirement of subsection (b) of this Administrative Order.

3. Record security. (A) The trial court shall maintain the electronic recordings of court proceedings and all digital files, backup files, and archive files consistent with standards adopted and published by the AOC. (B) Subsection (c) of this Administrative Order regarding the storage of trial exhibits when using an electronic recording system is supplemented by the following: During the period in which the records are required to be retained, the trial court may order items of physical evidence held for storage and safekeeping by the attorneys of record, and such arrangements shall be appropriately documented. Forms of orders and receipts are appended to the Regulations of the Board of Certified Court Reporter Examiners. When physical exhibits include firearms, contraband, or other similar items, the trial court may order such items transferred to the sheriff or other appropriate governmental agency for storage and safekeeping. The sheriff or governmental agency shall sign a receipt for such items and shall acknowledge that the items shall not be disposed of until authorized by subsequent court order. See Regulation 21 of the Regulations of the Board of Certified Court Reporter Examiners for the record retention schedule and other requirements for maintaining records and exhibits.

4. Official transcripts. When a transcript is required and is to be prepared from an audio recording, the official court reporter of the circuit judge to which the case is assigned shall be responsible for preparing the transcript, and the statutory rate and payment provisions shall apply. A transcript prepared from an audio recording of a court proceeding prepared and certified by an official court reporter is an official transcript for purpose of appeal or other use.

History

History. Adopted May 6, 1991, effective July 1, 1991; amended May 24, 2001, effective July 1, 2001; amended February 21, 2008; amended February 9, 2011, effective July 1, 2011.

All certificate renewal fee payments must be postmarked on or before January 1. The Clerk of the Supreme Court shall provide a list of those reporters in violation of the January 1 deadline not later than January 15 to the Executive Secretary of the Board. The Executive Secretary shall thereafter cause a certified letter to be sent to each reporter in violation of the January 1 deadline. The letter shall inform the reporters in violation that their certificate shall be suspended on a date not to exceed 21 calendar days from the certified delivery date of the letter unless all delinquent renewal fees and a $100.00 penalty fee are received by the Clerk of the Supreme Court within the 21 calendar days. If all delinquent renewal and penalty fees are not received within the 21 calendar days, the certificate shall be suspended but may be reinstated during the remainder of the calendar year in which the certificate expired for failure to timely renew, if the Board finds, based on a sworn affidavit(s) or other credible evidence, that the applicant has retained the professional skills required for original certification and has paid all delinquent renewal and penalty fees. After December 31 of the calendar year in which the certificate expired, an expired certificate shall not be subject to renewal without examination.

Every applicant for certification as a certified court reporter shall file with the clerk of this court a written application in the form prescribed by the Board. The application form along with the rules and regulations governing this Board and court reporters shall be available on the Board's website.

Amended and effective January 15, 2009; amended and effective by per curiam order June 26, 2014; amended and effective by per curiam order September 15, 2016; amended and effective by per curiam order September 21, 2017.

Rules text
These rules govern proceedings in the courts of this State to the extent and with the exceptions stated in Rule 1101.

Rules text
These rules shall be construed to secure fairness in administration, elimination of unjustifiable expense and delay, and promotion of growth and development of the law of evidence, to the end that the truth may be ascertained and proceedings justly determined.

Rules text
(a) Effect of Erroneous Ruling. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and
(1) Objection. In case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context; or
(2) Offer of proof. In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked.
(b) Record of Offer and Ruling. The court may add any other or further statement which shows the character of the evidence, the form in which it was offered, the objection made, and the ruling thereon. It may direct the making of an offer in question and answer form.
(c) Hearing of Jury. In jury cases, proceedings shall be conducted, to the extent practicable, so as to prevent inadmissible evidence from being suggested to the jury by any means, such as making statements or offers of proof or asking questions in the hearing of the jury.
(d) Errors Affecting Substantial Rights. Nothing in this rule precludes taking notice of errors affecting substantial rights although they were not brought to the attention of the court.

Rules text
(a) Questions of Admissibility Generally. Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court, subject to the provisions of subdivision (b). In making its determination it is not bound by the rules of evidence except those with respect to privileges.
(b) Relevancy Conditioned on Fact. Whenever the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or in the court's discretion subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition.
(c) Hearing of Jury. Hearings on the admissibility of confessions in criminal cases shall be conducted out of the hearing of the jury. Hearings on other preliminary matters in all cases, shall be so conducted whenever the interests of justice require or, in criminal cases, whenever an accused is a witness, if he so requests.
(d) Testimony by Accused. The accused does not, by testifying upon a preliminary matter, subject himself to cross-examination as to other issues in the case.
(e) Weight and Credibility. This rule does not limit the right of a party to introduce before the jury evidence relevant to weight or credibility.

Rules text
Whenever evidence which is admissible as to one [1] party or for one [1] purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly.

Each certified reporter shall procure a seal upon which shall be engraved the name, certificate number of the reporter, and the words "Arkansas Supreme Court-Certified Court Reporter", said seal to be included with signature, on all transcript certificates, to ensure compliance with Section 11 of the Rule Providing for Certification of Court Reporters.

Amended and effective by per curiam order June 26, 2014.

Rules text
Whenever a writing or recorded statement or part thereof is introduced by a party, an adverse party may require him at that time to introduce any other part or any other writing or recorded statement which in fairness ought to be considered contemporaneously with it.

Trial court did not abuse its discretion by allowing the state to introduce the transcript of police interviews with the victim, which included parts of the statement that were not introduced by the state, because the defense expressly referred to selective portions of the interviews while attempting to show that the investigator coaxed or cajoled the victim into giving incriminating testimony; thus, the entire transcript of the two interviews were properly admitted to refute a charge of improper influence and to provide context.

Rules text (a) Scope of Rule. This rule governs only judicial notice of adjudicative facts.

(b) Kinds of Facts. A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.

(c) When Discretionary. A court may take judicial notice, whether requested or not.

(d) When Mandatory. A court shall take judicial notice if requested by a party and supplied with the necessary information.

(e) Opportunity to be Heard. A party is entitled upon timely request to an opportunity to be heard as to the propriety of taking judicial notice and the tenor of the matter noticed. In the absence of prior notification, the request may be made after judicial notice has been taken.

(f) Time of Taking Notice. Judicial notice may be taken at any stage of the proceeding.

(g) Instructing Jury. The court shall instruct the jury to accept as conclusive any fact judicially noticed.

Rules text
(a) Effect. In all actions and proceedings not otherwise provided for by statute or by these rules, a presumption imposes on the party against whom it is directed the burden of proving that the nonexistence of the presumed fact is more probable than its existence.
(b) Inconsistent Presumptions. If presumptions are inconsistent, the presumption applies that is founded upon weightier considerations of policy. If considerations of policy are of equal weight neither presumption applies.

Rules text
In civil actions and proceedings, the effect of a presumption respecting a fact which is an element of a claim or defense as to which federal law supplies the rule of decision is determined in accordance with federal law.

Rules text
(a) Scope. Except as otherwise provided by statute, in criminal cases, presumptions against an accused, recognized at common law or created by statute, including statutory provisions that certain facts are prima facie evidence of other facts or of guilt, are governed by this rule.
(b) Submission to Jury. The court is not authorized to direct the jury to find a presumed fact against the accused. If a presumed fact establishes guilt or is an element of the offense or negatives a defense, the court may submit the question of guilt or of the existence of the presumed fact to the jury, but only if a reasonable juror on the evidence as a whole, including the evidence of the basic facts, could find guilt or the presumed fact beyond a reasonable doubt. If the presumed fact has a lesser effect, the question of its existence may be submitted to the jury provided the basic facts are supported by substantial evidence or are otherwise established, unless the court determines that a reasonable juror on the evidence as a whole could not find the existence of the presumed fact.

Ark. Code Ann. § 16-10-130 (1987) provides that all courts of this state shall, in the absence of extraordinary circumstances, give precedence to the trial of criminal cases over other matters, civil or criminal, when the alleged victim is under age fourteen. Effective immediately, when a case affected by § 16-10-130 is not tried or otherwise disposed of within nine months following the filing of a criminal information in the circuit court, the circuit judge before whom the case is pending will inform the Administrative Office of the Courts in writing the reason or reasons the case therefor. Thereafter, at intervals of ninety (90) days the circuit court will inform the Administrative Office of the Courts of the status of the case. During the pendency of the case, no continuance shall be granted on motion of either the State or the defendant except upon written order detailing the reasons for, and the duration of, the delay. 

History. Adopted October 5, 1992; amended and effective by per curiam order March 13, 2014.

[Repealed]

Repealed by per curiam order June 26, 2014.

Applicants shall:


a. be at least 18 years of age,


b. be of good moral character,


c. not be a convicted felon


d. submit an official background check from the designated state authority or from the National Crime Information Center, and

e. not have been adjudicated or found guilty, or entered a plea of guilty or nolo contendere to, any felony, or to any misdemeanor that reflects adversely on the applicant’s honesty, trustworthiness, or fitness as a reporter in other respects, or to any crime a necessary element of which, as determined by the statutory or common law definition of the crime, involves interference with the administration of justice, false swearing, misrepresentation, fraud, deceit, bribery, extortion, misappropriation, theft, or an attempt, conspiracy or solicitation of another to commit a felony.

Amended and effective February 22, 2009; amended and effective September 21, 2017.

Rules text
"Relevant evidence" means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.

Rules text
All relevant evidence is admissible, except as otherwise provided by statute or by these rules or by other rules applicable in the courts of this State. Evidence which is not relevant is not admissible.

Rules text
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

Rules text
(a) Character Evidence Generally. Evidence of a person's character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion, except:
(1) Character of accused. Evidence of a pertinent trait of his character offered by an accused, or by the prosecution to rebut the same;
(2) Character of victim. Evidence of a pertinent trait of character of the victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the victim offered by the prosecution in a homicide case to rebut evidence that the victim was the first aggressor;
(3) Character of witness. Evidence of the character of a witness, as provided in Rules 607, 608, and 609.
(b) Other Crimes, Wrongs, or Acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

Rules text
(a) Reputation or Opinion. In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct.
(b) Specific Instances of Conduct. In cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may also be made of specific instances of his conduct.

Rules text
(a) Admissibility. Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice.
(b) Method of Proof. Habit or routine practice may be proved by testimony in the form of an opinion or by specific instances of conduct sufficient in number to warrant a finding that the habit existed or that the practice was routine.

Rules text
Whenever, after an event, measures are taken which, if taken previously, would have made the event less likely to occur, evidence of the subsequent measures is not admissible to prove negligence or culpable conduct in connection with the event. This rule does not require the exclusion of evidence of subsequent measures if offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.

Rules text
Evidence of (1) furnishing, offering, or promising to furnish, or (2) accepting, offering, or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for, invalidity of, or amount of the claim or any other claim. Evidence of conduct or statements made in compromise negotiations is likewise not admissible. This rule does not require exclusion if the evidence is offered for another purpose, such as proving bias or prejudice of a witness, negativing a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.

Rules text
Evidence of furnishing, offering or promising to pay medical, hospital, or similar expenses occasioned by an injury is not admissible to prove liability for the injury.

Rules text
Evidence of a plea of nolo contendere, whether or not later withdrawn, and of a plea, later withdrawn, of guilty or admission to the charge, or of an offer to plead to the crime charged or any other crime, or of statements made in connection with any of the foregoing pleas or offers, is not admissible in any civil or criminal action, case, or proceeding against the person who made the plea or offer.

History

History. Amended November 18, 1996, effective March 1, 1997

(a) As used in this rule, unless the context otherwise requires, "sexual conduct" means deviate sexual activity, sexual contact, or sexual intercourse, as those terms are defined by Ark. Code Ann. § 5-14-101.

(b) In any criminal prosecution under Ark. Code Ann. § 5-14-101 et seq. or § 5-26-202, or for criminal attempt to commit, criminal solicitation to commit, or criminal conspiracy to commit an offense defined in any of those sections, opinion evidence, reputation evidence, or evidence of specific instances of the victim’s prior sexual conduct with the defendant or any other person, evidence of a victim's prior allegations of sexual conduct with the defendant or any other person, which allegations the victim asserts to be true, or evidence offered by the defendant concerning prior allegations of sexual conduct by the victim with the defendant or any other person if the victim denies making the allegations is not admissible by the defendant, either through direct examination of any defense witness or through cross-examination of the victim or other prosecution witness, to attack the credibility of the victim, to prove consent or any other defense, or for any other purpose.

(c) Notwithstanding the prohibition contained in subsection (b) of this rule, evidence directly pertaining to the act upon which the prosecution is based or evidence of the victim's prior sexual conduct with the defendant or any other person may be admitted at the trial if the relevancy of the evidence is determined in the following manner:

(1) A written motion shall be filed by the defendant with the court at any time prior to the time the defense rests stating that the defendant has an offer of relevant evidence prohibited by subsection (b) of this rule and the purpose for which the evidence is believed relevant.

(2) (A) A hearing on the motion shall be held in camera no later than three (3) days before the trial is scheduled to begin, or at such later time as the court may for good cause permit.

(B) A written record shall be made of the in camera hearing and shall be furnished to the appellate court on appeal.

(C) If, following the in camera hearing, the court determines that the offered proof is relevant to a fact in issue, and that its probative value outweighs its inflammatory or prejudicial nature, the court shall make a written order stating what evidence, if any, may be introduced by the defendant and the nature of the questions to be permitted in accordance with the applicable rules of evidence.

(3) (A) If the court determines that some or all of the offered proof is relevant to a fact in issue, the victim shall be told of the court's order and given the opportunity to consult in private with the prosecuting attorney.

(B) If the prosecuting attorney is satisfied that the order substantially prejudices the prosecution of the case, an interlocutory appeal on behalf of the state may be taken in accordance with Arkansas Rule of Appellate Procedure –Criminal 3.

(d) In the event the defendant has not filed a written motion or a written motion has been filed and the court has determined that the offered proof is not relevant to a fact in issue, any willful attempt by counsel or a defendant to make any reference to the evidence prohibited by subsection (b) of this rule in the presence of the jury may subject counsel or a defendant to appropriate sanctions by the court.

Amended by per curiam order November 15, 2012, effective January 1, 2013.

A.  In the event of an emergency where no certified court reporter is immediately available, a judge of a circuit court may, in his or her discretion, grant:

i.  a one hundred eighty calendar day emergency certificate to an individual who currently holds a valid court reporting license or certification from another state or a national court reporting association.  The emergency certificate may be renewed once; or

ii.  a seven calendar day non-renewable emergency certificate to any other individual. A copy of the emergency certificate shall be filed with the Clerk of the Arkansas Supreme Court and the Secretary of this Board.

B.  A circuit judge shall not grant an emergency certificate to a court reporter whose license or certification is at the time of the issuance of the emergency certificate revoked or suspended.

Upon application and payment of the fee within four months of the effective date of the rule, any court reporter serving in that capacity on or before July 5, 1983, shall be issued a certificate without examination, provided the application and fee are accompanied by letters of recommendation from either a Circuit, Chancery, or Court of Appeals Judge and two attorneys who are licensed to practice law in the State of Arkansas, who certify that the applicant was a practicing court reporter on or before July 5, 1983.

(a)  Application - Exception. This Order shall apply to all courts, circuit, district, and appellate, except as set out below. 

(b)  Authorization. A judge may authorize broadcasting, recording, or photographing in the courtroom and areas immediately adjacent thereto during sessions of court, recesses between sessions, and on other occasions, provided that the participants will not be distracted, nor will the dignity of the proceedings be impaired.  

(c)  Exceptions. The following exceptions shall apply:  

    (1)  An objection timely made by a party or an attorney shall preclude broadcasting, recording, or photographing of the proceedings;  
    (2)  The court shall inform witnesses of their right to refuse to be broadcast, recorded, or photographed, and an objection timely made by a witness shall preclude broadcasting, recording or photographing of that witness;  
    (3)  The following shall not be subject to broadcasting, recording, or photographing: 

        all juvenile matters in circuit court,

       all probate and domestic relations matters in circuit court (e.g., adoptions, guardianships, divorce, custody, support, and paternity), and

       all drug court proceedings. 

    (4)  In camera proceedings shall not be broadcast, recorded, or photographed except with consent of the court;  
    (5)  Jurors, minors without parental or guardian consent, victims in cases involving sexual offenses, and undercover police agents or informants shall not be broadcast, recorded, or photographed. 

(d)  Procedure. The broadcasting, recording, or photographing of any court proceeding shall comply with the following rules:  

    (1)  The court shall direct that the news media representatives enter into a pooling arrangement for the broadcasting, recording, or photographing of a trial. Any representative of a news medium wanting to broadcast, record, or photograph court proceedings shall present to the court a written statement agreeing to share with other media representatives. The media pool shall select one of its members to serve as pool coordinator. The media pool shall establish its own procedures, not inconsistent with these rules or with the wishes of the court, and the pool coordinator shall arbitrate any problems that arise. If a problem arises that requires the assistance of the court, the pool coordinator alone shall be responsible for coordinating with the court. A plan for the placement of the broadcast equipment shall be prepared and filed by the pool coordinator, subject to the final approval of the court.  

    (2)  The court shall retain ultimate control of the application of these rules over the broadcasting, recording, or photographing of a trial. Decisions made as to the details are final and are not subject to appeal. The court may in its discretion terminate the broadcasting, recording, or photographing at any time. Such a decision should not be made in an effort to edit the proceedings but only as one necessary in the interest of justice. 

    (3)  The media pool may have two cameras in the courtroom during the course of a trial. One camera shall be used for still photography, and one camera shall be used for television photography. Both cameras shall remain in stationary positions outside the bar of the courtroom. Videotape recording and other electronic equipment not a component part of the cameras shall be located in an area remote from the courtroom to be designated by the court.  

    (4)  One additional audio system for radio broadcasting shall be permitted provided that all microphones and related essential wiring will be unobtrusive and located in places designated in advance by the basic courtroom plan. The pool coordinator shall permit the installation of a pickup distribution box to be located outside the courtroom area to allow additional agencies access to the audio feed.  

    (5)  Only television or photographic equipment that does not require distracting sound or light shall be employed to cover court proceedings. No artificial lighting device shall be employed in connection with television cameras. Any court approved alterations in existing lighting or wiring shall be accomplished by and at the expense of the media pool. 

    (6)  Camera and audio equipment shall be installed or removed only when the court is not in session. Film changes shall not be made while court is in session. No audio equipment shall be used to record conversations between attorneys and clients or conversations between attorneys and the court held outside the hearing of the jury. 

    (7)  Electronic devices shall not be used in the courtroom to broadcast, record, photograph, e-mail, blog, tweet, text, post, or transmit by any other means except as may be allowed by the court.

    (8)  If a court has its own broadcasting, recording, or photography system, the court’s system shall be used, subject to the provisions of this Order, unless different or additional arrangements are necessary in the court’s discretion.

    (9)  The Supreme Court and Court of Appeals may make audio and video recordings of oral arguments and other proceedings.

  • A. Oral arguments and other appellate proceedings may be recorded, broadcasted or webcasted through a live or tape-delayed format as the Supreme Court shall direct. Commercial and educational broadcasters may be allowed to connect to the court’s systems for recording or broadcasting proceedings subject to the court’s requirements.
  • B. Recordings will be maintained by the Clerk of the Supreme Court and the Court of Appeals and shall be retained until such time as the Supreme Court shall order their destruction. Copies of audio and video recordings may be made available to the public at a price representing the cost of copying as shall from time to time be established by the Supreme Court.
  • C. An objection under subsection (c)(1) of this Order to the broadcasting, recording, or photographing of an oral argument or other appellate proceeding shall be made to the court, and the court in its discretion shall decide whether broadcasting, recording, or photographing will be permitted.

    (e)  Contempt. Failure to abide by any provision of this Order can result in a citation for contempt against the news representative and his or her agency. 

History. Adopted July 5, 1993; amended May 24, 2001, effective July 1, 2001; amended and effective May 27, 2010, subsections (d)(7)-(9) added; amended July 27, 2011, effective August 1, 2011, subsection (c)(3).

Except as otherwise provided by constitution or statute or by these or other rules promulgated by the Supreme Court of this State, no person has a privilege to:
(1) refuse to be a witness;
(2) refuse to disclose any matter;
(3) refuse to produce any object or writing; or
(4) prevent another from being a witness or disclosing any matter or producing any object or writing.

(a) Definitions. As used in this rule:

(1) A "client" is a person, public officer, or corporation, association, or other organization or entity, either public or private, who is rendered professional legal services by a lawyer, or who consults a lawyer with a view to obtaining professional legal services from him.

(2) A " representative of the client " is one having authority to obtain professional legal services, or to act on advice rendered pursuant thereto, on behalf of the client.

(3) A "lawyer" is a person authorized, or reasonably believed by the client to be authorized, to engage in the practice of law in any state or nation.

(4) A "representative of the lawyer" is one employed by the lawyer to assist the lawyer in the rendition of professional legal services.

(5) A communication is "confidential" if not intended to be disclosed to third persons other than those to whom disclosure is made in furtherance of the rendition of professional legal services to the client or those reasonably necessary for the transmission of the communication.

(b) General Rule of Privilege. A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client (1) between himself or his representative and his lawyer or his lawyer's representative, (2) between his lawyer and the lawyer's representative, (3) by him or his representative or his lawyer or a representative of the lawyer to a lawyer or a representative of a lawyer representing another party in a pending action and concerning a matter of common interest therein, (4) between representatives of the client or between the client and a representative of the client, or (5) among lawyers and their representatives representing the same client.

(c) Who May Claim the Privilege. The privilege may be claimed by the client, his guardian or conservator, the personal representative of a deceased client, or the successor, trustee, or similar representative of a corporation, association, or other organization, whether or not in existence. The person who was the lawyer or the lawyer's representative at the time of the communication is presumed to have authority to claim the privilege but only on behalf of the client.

(d) Exceptions. There is no privilege under this rule: (1) Furtherance of crime of fraud. If the services of the lawyer were sought or obtained to enable or aid anyone to commit or plan to commit what the client knew or reasonably should have known to be a crime or fraud; (2) Claimants through same deceased client. As to a communication relevant to an issue between parties who claim through the same deceased client, regardless of whether the claims are by testate or intestate succession or by inter vivos transaction; (3) Breach of duty by a lawyer or client. As to a communication relevant to an issue of breach of duty by the lawyer to his client or by the client to his lawyer; (4) Document attested by a lawyer. As to a communication relevant to an issue concerning an attested document to which the lawyer is an attesting witness; (5) Joint clients. As to a communication relevant to a matter of common interest between or among two [2] or more clients if the communication was made by any of them to a lawyer retained or consulted in common, when offered in an action between or among any of the clients; or (6) Public officer or agency. As to a communication between a public officer or agency and its lawyers unless the communication concerns a pending investigation, claim, or action and the court determines that disclosure will seriously impair the ability of the public officer or agency to process the claim or conduct a pending investigation, litigation, or proceeding in the public interest.

(e) Inadvertent disclosure. A disclosure of a communication or information covered by the attorney-client privilege or the work-product doctrine does not operate as a waiver if the disclosing party follows the procedure specified in Rule 26(b)(5) of the Arkansas Rules of Civil Procedure and, in the event of a challenge by a receiving party, the circuit court finds in accordance with Rule 26(b)(5)(D) that there was no waiver.

(f) Selective waiver. Disclosure of a communication or information covered by the attorney-client privilege or the work-product doctrine to a governmental office or agency in the exercise of its regulatory, investigative, or enforcement authority does not operate as a waiver of the privilege or protection in favor of non-governmental persons or entities.

Explanatory Note: New subdivision (e) cross-references the 2007 amendment to Rule of Civil Procedure 26(b), which governs inadvertent disclosures of privileged or otherwise protected material during discovery. Under new subdivision (f), disclosure of information covered by the attorney-client privilege or the work-product doctrine to a government agency conducting an investigation of the client does not constitute a general waiver of the information disclosed. In short, this provision adopts a rule of モselective waiverヤ consistent with the Eighth Circuitメs view that disclosure of protected information to the government does not constitute a general waiver, so that the information remains shielded from use by other parties. E.g., Diversified Industries, Inc. v. Meredith, 572 F. 2d 596 (8 th Cir. 1977). This is the minority view among the federal circuits. Most have held that waiver of privileged or protected information to a government agency constitutes a waiver for all purposes. E.g., In re Quest Communications Intern, Inc., 450 F. 3d 1179 (10 th Cir. 2006). Others have recognized selective waiver only if the disclosure was made subject to a confidentiality agreement with the government agency. E.g., Teachers Insurance & Annuity Assメn v. Shamrock Broadcasting Co., 521 F. Supp 638 (S.D.N.Y. 1981). Subdivision (f) adopts the Eighth Circuitメs position, which is also reflected in a draft that the Federal Advisory Committee on Evidence has published for public comment. See http://www.uscourts.gov/rules/Excerpt_EV_Report_Pub.pdf#page=4.

(a) Definitions. As used in this rule:
(1) A "patient" is a person who consults or is examined or interviewed by a physician or psychotherapist.
(2) A "physician" is a person authorized to practice medicine in any state or nation, or reasonably believed by the patient so to be.
(3) A "psychotherapist" is (i) a person authorized to practice medicine in any state or nation, or reasonably believed by the patient so to be, while engaged in the diagnosis or treatment of a mental or emotional condition, including alcohol or drug addiction, or, (ii) a person licensed or certified as a psychologist under the laws of any state or nation, while similarly engaged.
(4) A communication is "confidential" if not intended to be disclosed to third persons, except persons present to further the interest of the patient in the consultation, examination, or interview, persons reasonably necessary for the transmission of the communication, or persons who are participating in the diagnosis and treatment under the direction of the physician or psychotherapist, including members of the patient's family.
(5) A "medical record" is any writing, document or electronically stored information pertaining to or created as a result of treatment, diagnosis or examination of a patient.
(b) General Rule of Privilege. A patient has a privilege to refuse to disclose and to prevent any other person from disclosing his medical records or confidential communications made for the purpose of diagnosis or treatment of his physical, mental or emotional condition, including alcohol or drug addiction, among himself, physician or psychotherapist, and persons who are participating in the diagnosis or treatment under the direction of the physician or psychotherapist, including members of the patient's family.
(c) Who May Claim the Privilege. The privilege may be claimed by the patient, his guardian or conservator, or the personal representative of a deceased patient. The person who was the physician or psychotherapist at the time of the communication is presumed to have authority to claim the privilege but only on behalf of the patient.
(d) Exceptions:
(1) Proceedings for hospitalization. There is no privilege under this rule for communications relevant to an issue in proceedings to hospitalize the patient for mental illness, if the psychotherapist in the course of diagnosis or treatment has determined that the patient is in need of hospitalization.
(2) Examination by order of court. If the court orders an examination of the physical, mental, or emotional condition of a patient, whether a party or a witness, communications made in the course thereof are not privileged under this rule with respect to the particular purpose for which the examination is ordered unless the court orders otherwise.
(3) Condition and element of claim or defense.
A. There is no privilege under this rule as to medical records or communications relevant to an issue of the physical, mental, or emotional condition of the patient in any proceeding in which he or she relies upon the condition as an element of his or her claim or defense, or, after the patients death, in any proceeding in which any party relies upon the condition as an element of his or her claim or defense.
B. Any informal, ex parte contact or communication with the patient's physician or psychotherapist is prohibited, unless the patient expressly consents. The patient shall not be required, by order of court or otherwise, to authorize any communication with the physician or psychotherapist other than (i) the furnishing of medical records, and (ii) communications in the context of formal discovery procedures.

History

History. Amended May 13, 1991, effective July 1, 1991; amended January 22, 1998

(a) Definition. A communication is confidential if it is made privately by any person to his or her spouse and is not intended for disclosure to any other person.
(b) General Rule of Privilege. An accused in a criminal proceeding has a privilege to prevent his spouse from testifying as to any confidential communication between the accused and the spouse.
(c) Who May Claim the Privilege. The privilege may be claimed by the accused or by the spouse on behalf of the accused. The authority of the spouse to do so is presumed.
(d) Exceptions. There is no privilege under this rule in a proceeding in which one [1] spouse is charged with a crime against the person or property of (1) the other, (2) a child of either, (3) a person residing in the household of either, or (4) a third person committed in the course of committing a crime against any of them.

(a) Definitions. As used in this rule:
(1) A "clergyman" is a minister, priest, rabbi, accredited Christian Science Practitioner, or other similar functionary of a religious organization, or an individual reasonably believed so to be by the person consulting him.
(2) A communication is "confidential" if made privately and not intended for further disclosure except to other persons present in furtherance of the purpose of the communication.
(b) General Rule of Privilege. A person has a privilege to refuse to disclose and to prevent another from disclosing a confidential communication by the person to a clergyman in his professional character as spiritual adviser.
(c) Who May Claim the Privilege. The privilege may be claimed by the person, by his guardian or conservator, or by his personal representative if he is deceased. The person who was the clergyman at the time of the communication is presumed to have authority to claim the privilege but only on behalf of the communicant.

The tests shall be as follows:

(a) A written knowledge test consisting of spelling, vocabulary, punctuation, general knowledge, rules governing preparation of transcripts (Rules of the Supreme Court and Court of Appeals 3-1, 3-2, 3-3 and 3-4), and rules governing the regulation of the court reporting profession (Sections 19 and 22 of the Regulations of the Board of Certified Court Reporter Examiners) with a minimum of 70% accuracy.

(b) (1) Five minutes of one-voice dictation of literary at 180 words per minute. (2) Five minutes of one-voice dictation of jury charge at 200 words per minute. (3) Five minutes of two-voice dictation of Q and A at 225 words per minute.

(c) Applicants shall be required to transcribe each dictation test with 95% accuracy.

(d) If an applicant passes one or more parts of the test but fails one or more parts, the applicant will not be required to retake the part or parts passed. 

(e) For in-state applicants, a new application and application fee of $75.00 will be required for all subsequent testing. For out-of-state applicants, a new application and application fee of $150.00 will be required for all subsequent testing.

(f) Certification will be restricted to the method of reporting used by the applicant at the time of testing, and said method will be reflected on the certificate issued to the applicant upon successfully passing the certification examination.

(g) Each individual successfully passing the certification examination shall, prior to receiving certification from the Board, participate in an orientation session at a time and place set by the Board.

Section (a) amended and effective by per curiam order June 26, 2014; amended and effective  September 21, 2017; amended and effective April 5, 2018.

(a) General Rule of Privilege. Every person has a privilege to refuse to disclose the tenor of his vote at a political election conducted by secret ballot.
(b) Exceptions. This privilege does not apply if the court finds that the vote was cast illegally or determines that the disclosure should be compelled pursuant to the election laws of the State.

A person has a privilege, which may be claimed by him or his agent or employee, to refuse to disclose and to prevent other persons from disclosing a trade secret owned by him, if the allowance of the privilege will not tend to conceal fraud or otherwise work injustice. If disclosure is directed, the court shall take such protective measures as the interest of the holder of the privilege and of the parties and the interests of justice require.

(a) If the law of the United States creates a governmental privilege that the courts of this State must recognize under the Constitution of the United States, the privilege may be claimed as provided by the law of the United States.
(b) No other governmental privilege is recognized except as created by the Constitution or statutes of this State.
(c) Effect of sustaining claim. If a claim of governmental privilege is sustained and it appears that a party is thereby deprived of material evidence, the court shall make any further orders the interests of justice require, including striking the testimony of a witness, declaring a mistrial, finding upon an issue as to which the evidence is relevant, or dismissing the action.

(a) Rule of Privilege. The United States or a state or subdivision thereof has a privilege to refuse to disclose the identity of a person who has furnished information relating to or assisting in an investigation of a possible violation of a law to a law enforcement officer or member of a legislative committee or its staff conducting an investigation.
(b) Who May Claim. The privilege may be claimed by an appropriate representative of the public entity to which the information was furnished.
(c) Exceptions.
(1) Voluntary disclosure; informer a witness. No privilege exists under this rule if the identity of the informer or his interest in the subject matter of his communication has been disclosed to those who would have cause to resent the communication by a holder of the privilege or by the informer's own action, or if the informer appears as a witness for the government.
(2) Testimony on relevant issue. If it appears in the case that an informer may be able to give testimony relevant to any issue in a criminal case or to a fair determination of a material issue on the merits in a civil case to which a public entity is a party, and the informed public entity invokes the privilege, the court shall give the public entity an opportunity to show in camera facts relevant to determining whether the informer can, in fact, supply that testimony. The showing will ordinarily be in the form of affidavits, but the court may direct that testimony be taken if it finds that the matter cannot be resolved satisfactorily upon affidavit. If the court finds there is a reasonable probability that the informer can give the testimony, and the public entity elects not to disclose his identity, in criminal cases the court on motion of the defendant or on its own motion shall grant appropriate relief, which may include one or more of the following: requiring the prosecuting attorney to comply, granting the defendant additional time or a continuance, relieving the defendant from making disclosures otherwise required of him, prohibiting the prosecuting attorney from introducing specified evidence, and dismissing charges. In civil cases, the court may make any order the interests of justice require. Evidence submitted to the court shall be sealed and preserved to be made available to the appellate court in the event of an appeal, and the contents shall not otherwise be revealed without consent of the informed public entity. All counsel and parties are permitted to be present at every stage of proceedings under this subdivision except a showing in camera at which no counsel or party shall be permitted to be present.

A person upon whom these rules confer a privilege against disclosure waives the privilege if he or his predecessor while holder of the privilege voluntarily discloses or consents to disclosure of any significant part of the privileged matter. This rule does not apply if the disclosure itself is privileged.

Applicants for testing must furnish their own equipment and supplies for reporting and transcribing dictation test. No applicant is permitted to use an open microphone or other backup recording device during testing.

 

(a) Sanctions. For violations of this Rule or “Regulations of the Board of Certified Court Reporter Examiners,”  other than those related to the nonpayment of fees outlined in Section 9 of the Rule, the Board for good cause shown, and by a majority of four (4) votes from the Board concurring, after a public hearing by the Board, may sanction a reporter by ordering a public admonition, or by suspending or revoking any certificate issued by the Board.  Discipline by consent, as set out in Section 8 of this Rule, may also be utilized by the Board for any violations of the aforementioned Rule or Regulations.

(b) Definitions.
1. "Revoke a certificate" means to unconditionally prohibit the conduct authorized by the certificate. If a reporter’s certificate is revoked, the reporter is not eligible to apply for a new reporter’s certificate for a period of five (5) years after the date the revocation order becomes effective after final Board action or after final action by the Supreme Court of Arkansas, if there is an appeal.
2. "Suspend a certificate" means to prohibit, whether absolutely or subject to conditions which are reasonably related to the grounds for suspension, for a defined period of time, the conduct authorized by the certificate. No suspension shall be for less than one (1) month nor for more than sixty (60) months.

3. “Admonition” means a written order or opinion of the Board stating the specific misconduct or failure to perform duties by the reporter. 

4. “Special Prosecutor” refers to an individual, who is charged with the duties of investigating complaints presented to the Board, which pertain to alleged violations of the Rules and Regulations; drafting proposed Complaints for the Board’s review, which outline the alleged violations of the Rules and Regulations; serving as a prosecutorial officer before and during any hearing or proceeding, which result from the investigation and/or filing of the Complaint; and performing additional tasks as assigned by the Board.

(c) Subpoenas. The Board has the authority to issue subpoenas for any witness(es), and for the production of papers, books, accounts, documents, records, or other evidence and testimony relevant to a hearing held pursuant to Section 7 upon the request of any party. Such process shall be issued by and under the seal of the Board and be signed by the Chair or the Executive Secretary. The subpoenas shall be served in any manner provided by the Arkansas Rules of Civil Procedure for service of process. The Board shall provide for its use a seal of such design as it may deem appropriate. The Circuit Court of Pulaski County shall have the power to enforce process.

(d) Special Prosecutor. 
(1) When requested in writing by the Board to so serve, the Executive Director of the Arkansas Supreme Court Office of Professional Conduct (“Office”) may, if time, work demands, and resources of that Office permit, act as the investigating, charging, and prosecutorial officer for Complaints of this Board. Any expenses of that Office attributed to handling a Complaint from this Board shall be paid to the Bar of Arkansas account from funds available to this Board after review and approval by the Chairperson of this Board of any such expense claims. By agreement between this Board and the Office, reasonable reimbursement for attorney time may be made by the Board to the Office.

(2) The Board may employ on contract, from funds within its budget, such attorneys as it deems necessary for the investigation, charging , and prosecution of Complaints before the Board.

(e) Immunity. The Board, its individual members, and any employees and agents of the Board, including the Executive Director and staff of the Office of Professional Conduct when acting for the Board, are absolutely immune from suit or action for their activities in discharge of their duties hereunder to the full extent of judicial immunity in Arkansas. 

(f) Confidentiality. Subject to the exceptions listed in (4) below in this subsection: 

(1) All communications, Complaints, formal Complaints, testimony, and evidence filed with, given to or given before the Board, or filed with or given to any of its employees and agents during the performance of their duties, that are based upon a Complaint charging a reporter with violation of the Board Rules, shall be absolutely privileged and confidential; and 

(2) All actions and activities arising from or in connection with an alleged violation of the Board Rules by a reporter certified by the Board are absolutely privileged and confidential. 

(3) These provisions of privilege and confidentiality shall apply to complainants. 

(4) Exceptions. 

(i.) Except as expressly provided in these Rules, disciplinary proceedings under these Rules are not subject to the Arkansas Rules of Civil Procedure regarding discovery. 
(ii.) The records of public hearings conducted by the Board are public information. 
(iii.) In the case of revocation, the Board is authorized to release any information that it deems necessary for that purpose. 
(iv.) The Board is authorized to release information: 

(a) For statistical data purposes; 

(b) To a corresponding reporter disciplinary authority or an authorized agency or body of a foreign jurisdiction engaged in the regulation of reporters; 

(c) To the Commission on Judicial Discipline and Disability; 

(d) To any other committee, commission, agency or body within the State empowered to investigate, regulate, or adjudicate matters incident to the legal profession when such information will assist in the performance of those duties; and 

(e) To any agency, body, or office of the federal government or this State charged with responsibility for investigation and evaluation of a reporter’s qualifications for appointment to a governmental position of trust and responsibility.

(5) Any reporter against whom a formal Complaint is pending shall have disclosure of all information in the possession of the Board and its agents concerning that Complaint, including any record of prior Complaints about that reporter, but excepting “attorney work product” materials. 

(6) The reporter about whom a Complaint is made may waive, in writing, the confidentiality of the information. 

(g) Procedure.
1. Standard of Proof. Formal charges of misconduct, petitions for reinstatement, and petitions for transfer to or from inactive status shall be established by a preponderance of the evidence.
2. Burden of Proof. The burden of proof in proceedings seeking discipline is on the Board or its special prosecutor. The burden of proof in proceedings seeking reinstatement is on the reporter seeking such action. 

3. Limitations on Actions. The institution of disciplinary actions pursuant to these Procedures shall be exempt from all statutes of limitation. 

4. Evidence and Procedures. Except as noted in these Rules, the Arkansas Rules of Evidence and the Arkansas Rules of Civil Procedure shall not generally apply to discipline proceedings before the Board. 

5. Pleadings. All pleadings filed before the Board shall be captioned "Before the Supreme Court Board of Certified Court Reporter Examiners" and be styled "In re ______________" to reflect the name of the respondent reporter.

(h) Ex Parte Communication. 

(1) Members of the Board shall not communicate “ex parte” with any complainant, attorney acting as Board prosecutor, the Executive Director, or the staff of the Office of Professional Conduct, or the respondent reporter or his or her counsel regarding a pending or impending investigation or disciplinary matter except as explicitly provided for by law or these Rules, or for scheduling, administrative purposes, or emergencies that do not deal with substantive matters or issues on the merits of the case or Complaint. 

(2) A violation of this rule may be cause for removal of any member from the Board before which a matter is pending. 

(i) Probable cause determination. Before a formal Complaint may be prepared on any reporter, the written approval of four (4) members of the Board shall be given to the draft complaint as prepared. Before any formal Complaint may be served on a reporter, it shall be approved by the signature of the Board Chair. 

(j) Complaint. The Complaint to be served upon a reporter shall state with reasonable specificity each Board Rule alleged to have been violated by the reporter and summarize the conduct or omission by the reporter that supports the Rule violation. Affidavits of those persons having knowledge of the facts and court records and documents may be attached as exhibits to the Complaint.

(k) Service of Complaint. The Complaint shall be served by one of the following methods:

1. By certified, restricted delivery, return receipt mail to the reporter at the address of record for the reporter currently on file with the Board,

2. By personal service as provided by the Arkansas Rules of Civil Procedure or an Investigator with the Office of Professional Conduct; or,

3. When reasonable attempts to accomplish service by (k)(1) and (k)(2) have been unsuccessful, then a  warning  order, in such form as prescribed by the Board, shall be published weekly for two consecutive weeks in a newspaper of general circulation within this State or within the locale of the respondent reporter's address of record. In addition, a copy of the formal Complaint and warning order shall be sent to the respondent reporter's address of record by regular mail.

4. A reporter’s failure to provide an accurate, current mailing address to the Board or the failure or refusal to receipt certified mailing of a formal Complaint, shall be deemed a waiver of confidentiality for the purposes of the issuance of a warning order.

5. Unless good cause is shown for a reporter’s non-receipt of a certified mailing of a formal Complaint, the reporter shall be liable for the actual costs and expenses for service or the attempted service of a formal Complaint, to include all expenses associated with the effectuation of service. Such sums will be due and payable to the Board before any response to a formal Complaint will be accepted or considered by the Board.

6. After service has been effected by any of the aforementioned means, subsequent mailings by the Board to the respondent reporter may be by regular mail to the reporter’s address of record, to the address at which service was accomplished, to any counsel for the reporter, or to such address as may have been furnished by the reporter, as the appropriate circumstance may dictate, except that notices of hearings and letters or orders of admonition, suspension, or revocation shall also be sent by certified, return receipt mail or be served upon the reporter in a manner authorized in Section 7(k)(2).

7. Service on a non-resident reporter may be accomplished pursuant to any option available herein, or in any manner prescribed by the law of the jurisdiction to which the service is directed. 
 

(l) Time and Manner of Response; Rebuttal.

(1) Upon service of a formal Complaint, pursuant to Section 7(k) or after the date of the first publication, pursuant to Section 7(k)(3), the respondent reporter shall have twenty (20) days in which to file a written response in affidavit form with the Board of Certified Court Reporters Examiners by filing the response at the Office of the Clerk of the Arkansas Supreme Court, 625 Marshall Street, Little Rock, AR 72201, except when service is upon a non-resident of this State, in which event the respondent reporter shall have thirty (30) days within which to file a response. In the event that a response has not been filed with the Board of Certified Court Reporters Examiners within twenty (20) days or within thirty (30) days, as the appropriate case may be, following the date of service, and an extension of time has not been granted, the Executive Secretary shall proceed to issue the Complaint to the Board by mail as a “failed to respond” case. 

(2) At the written request of a reporter, the Board Chair is authorized to grant an extension of reasonable length for the filing of a response.

(3) The Executive Secretary shall provide a copy of the reporter’s response to the complainant within seven (7) calendar days of receiving it and advise that the complainant has ten (10) calendar days in which to rebut or refute any allegations or information contained in the reporter’s response. The Executive Secretary shall include any rebuttal made by the complainant as a part of the material submitted to the Board for decision and any such rebuttal shall be provided to the respondent reporter for informational purposes only, with no response required. If any rebuttal submitted contains allegations of violations of Board Rules not previously alleged, a supplemental or amended Complaint may be prepared and served on the respondent reporter, who shall be permitted surrebuttal in the manner prescribed herein for filing a response to a Complaint.

(4) The calculation of the time limitations specified herein shall commence on the day following service upon the respondent reporter. If the due date of a response, rebuttal, or surrebuttal falls on a Saturday, Sunday, or legal holiday, the due date will be extended to the next regular business day. 

(m) Failure to Respond; Reconsideration.

(1) A reporter’s failure to provide, in the prescribed time and manner, a written response to a formal Complaint served in compliance with Section 7(k) shall constitute separate and distinct grounds for the imposition of sanctions notwithstanding the merits of the underlying, substantive allegations of the Complaint; or,

(2) May be considered for enhancement of sanctions imposed upon a finding of violation of the Rules.

(3) The separate imposition or the enhancement of sanctions for failure to respond may be accomplished by the Board's notation of such failure in the appropriate sanction order and shall not require any separate or additional notice to the respondent reporter.

(4) Failure to timely respond to a formal Complaint shall constitute an admission of all factual allegations of the Complaint and an admission of all alleged violations of Rules and Regulations violations in the Complaint.

(5) Failure to timely respond to a formal Complaint shall extinguish a respondent reporter's right to a public hearing on the formal Complaint.

(6) Reconsideration:

(a) Provided, however, that in a case where a timely response was not filed by a respondent reporter, within ten (10) calendar days after receiving a written notice from the Board setting the case for hearing, the respondent reporter may file with the Board, through the Office of the Clerk of the Arkansas Supreme Court, a petition for reconsideration in affidavit form, stating under oath clear, compelling, and cogent evidence of unavoidable circumstances sufficient to excuse or justify the failure to file a timely response to the Complaint.

(b) Upon the filing of a petition for reconsideration for failure to timely file a response to a Complaint, the Executive Secretary of the Board shall provide each member of the Board a copy of the petition for reconsideration for a vote by written ballot on granting or denying the petition, the ballot to be marked and returned to the Executive Secretary within a reasonable time.

(c) If four (4) members of the Board, upon a finding of clear and convincing evidence, vote to grant the petition for reconsideration, the Board shall permit the reporter to submit a belated affidavit of response to the substantive allegations of the formal Complaint and the matter shall proceed as though the response had been made timely.

(d) If four (4) Board members vote to deny the petition for reconsideration, the case shall be placed on the agenda at the next meeting of the Board, and the Board shall determine the appropriate sanction from a review of the file, without giving consideration or weight to any response that may have been untimely filed.

(n) Pre-trial procedure.
(1) The Board Chair may set and conduct such pretrial conferences as the Chair deems needed for the case. The Board Chair shall also issue an order setting any Complaint for hearing before the Board.
(2) The Board Chair shall hear and decide all pretrial matters and all motions, including any motion to dismiss the Complaint or any part thereof.

(o) Hearings.
(1) Hearings shall be conducted at such times and places as the Board may designate. 
(2) A hearing shall not be conducted unless at least five (5) Board members are present.
(3) After hearing all the testimony and receiving all the evidence in a case, the Board shall deliberate in private and reach a decision on the Complaint. At least four (4) votes are required to find a Rule or Regulation violation and to order a sanction. The same four (4) Board members are not required to vote for both the rule violation(s) and the sanction.
(4) If at least four (4) Board members agree on the Rule or Regulation violated by the reporter, and on a sanction, an Order consistent with such vote shall be prepared and provided to the Board Chair for review and approval. Upon approval, such Order shall be filed with the Clerk of the Arkansas Supreme Court and a filed copy shall be promptly provided to the respondent reporter and any counsel for the reporter.
(5) In addition to any available disciplinary sanction, the Board may also order a reporter to pay:
(a) The costs of the investigation and hearing, excluding any attorney’s fees,
(b) A fine not to exceed $1,000.00 and 
(c) Full restitution to any person or entity which has suffered a financial loss due to the reporter’s violation of any Board Rule or Regulation, but only to the extent of the costs of any reporter’s transcript and fees and expenses associated with a transcript of any court proceeding or deposition.
 

Amended and effective January 15, 2009; amended and effective April 14, 2011; amended and effective September 21, 2017.

Section 1. Statement of policy.

Rules text
Unless otherwise provided by law or as set forth herein, all records of the Arkansas Supreme Court and Court of Appeals shall be permanently maintained. 

Section 2. Transfer of permanent records.

Rules text
a.  Physical custody of any record to be maintained permanently, may be transferred to any institution which maintains a special collections department by letter agreement upon approval by the Arkansas Supreme Court. Title to records which must be permanently maintained shall remain with the Arkansas Supreme Court.  
    b.  The Clerk shall permanently maintain a log of transferred records. The log shall list record series, description of records transferred, to whom transferred, and the date of transfer. 

Section 3. Alternatives to permanent retention.

Rules text
a.  Once microfilmed in a manner approved by the Administrative Office of the Courts, any paper record may be destroyed or donated by the Clerk, regardless of the number of years stated for retention in the Retention Schedule found in Section 6 below.  
    b.  Once the period of retention has expired, or the record has been microfilmed, whichever occurs first, the paper record may be donated, transferring full title possession to any institution which maintains a special collections department.  
    c.  Any interested institution shall advise the Clerk of the institution's desire to receive notification when records become available for donation or transfer. The Clerk shall determine the recipient of the record(s) where more than one institution requests custody or custody and title. Records which are available for donation or transfer and which have not been requested within ninety (90) days of the notification shall be subject to disposal as set forth in Section 4 below.  
    d.  The Clerk shall permanently maintain a log of donated records. The log shall list record series, descriptions of records donated, to whom donated, and date of donation. 

Section 4. Disposal of records.

Rules text
a.  When records have been damaged or destroyed by decay, vermin, fire, water, or by other means which renders them illegible, the Clerk may dispose of the remains as provided in subsection b.  
    b.  Records shall be disposed of by burning, shredding, recycling, or by depositing them in a public landfill.  
    c.  Exhibits shall be disposed of as provided in Rule 3-6 of the Rules of the Arkansas Supreme Court and Court of Appeals.  
    d.  The Clerk shall permanently maintain a log of disposed of records. The log shall list record series, descriptions of records disposed of, and method and date of disposal. 

Section 5. Records omitted.

Rules text
a.  Any record not listed in the Records Retention Schedule shall be maintained permanently or until provided for otherwise in the retention schedule.  
    b.  Omitted records should be brought to the attention of the Administrative Office of the Courts by letter which includes a description of the record, age of the record, and such photocopies as will assist in understanding the content and purpose.  
    c.  Any recommendations for changes in the Retention Schedule should be brought to the attention of the Administrative Office of the Courts. 

Section 6. Retention schedule.

Rules text
Record Type Retention Instructions 

Supreme Court and Court of Appeals Docket Books: 
Retain Permanently. 

Supreme Court and Court of Appeals Case Indices: 
Retain Permanently. 

Supreme Court and Court of Appeals Record of Proceedings: 
Retain Permanently. 

Civil Case Records and Case Files After 1940:
Retain seven (7) years after case is closed, then offer for donation. 

Criminal Case Records and Case Files After 1940:
Retain Permanently. 

Death Penalty:
Retain Permanently. 

Life without Parole:
Retain Permanently. 

Life:
Retain Permanently. 

Felony with greater than 10 year sentence:
Retain ten (10) years after case is closed, then offer for donation. 

Other criminal cases with 10 year sentence or less:
Retain five (5) years after case is closed, then offer for donation.  

Civil and Criminal Records: 

Prior to and including 1940:
Retain Permanently. 

Rule on Clerk Denied Records: 
Supreme Court and Court of Appeals Case Record and Case File. 
Retain five (5) years. 

Employment Security Division: 

Case Record and Case File:
Retain three (3) years. 

Supreme Court and Court of 
Appeals Opinions:

Original copy of Opinions and  Per Curiam Opinions: 
Retain Permanently. 

Financial Records including: 

Supreme Court & Court of Appeals, Clerk's Office, Court Library, Appellate Committees, Personnel, Arkansas Attorneys,Arkansas Bar Account,Court Reporters, Client 
Security Fund:  Vouchers, Ledgers, Receipts, Contracts, Cancelled Checks,Bank Statements, Fees, Audit Reports, Tax Reports, Social Security Reports, RetirementReports, Purchase Orders, Insurance Reports, and Requisition Reports
following legislative:
Retain three (3) years 

Other Supreme Court and Court 
of Appeals Documents including: 

All case related motions, petitions, summons, mandates,and bonds, which have been filed separately from the case file.
Retain as long as Case  file is maintained. 

Original actions, motions, and petitions. 
Retain seven (7) years. 

Per Curiam Orders. 
Retain as long as Case file is maintained. 

Arkansas Attorney Records: 

Petitions for Licenses. 
Retain Permanently. 

Student Practice, Rule 15 Petitions. 
Retain five (5) years. 

Professional Association Members List. 
Retain Permanently. 

Professional Association Members Receipts. 
Retain three (3) years  following Legislative audit. 

Committee on Professional Conduct Files. 
Retain Permanently. 

Correspondence and Misc. Letters. 
Retain three (3) years. 

Certification of Registration. 
Retain three (3) years. 

United States Supreme Court Records: 

US Supreme Court Mandates. 
Retain as long as Case File is maintained. 

US Supreme Court Writs of Certiorari. 
Retain as long as Case File is maintained. 

Other Records maintained by 
Clerk's Office including: 

 Court of Appeals Motion Assignment Sheet, Court of Appeals Motion Pending file Supreme Court and Court of Appeals Syllabus, Court of Appeals Oral Argument file, Court of Appeals Submissions file, Condition of Supreme Court Docket Summary file. Immediate Disposal. 

Court Clerk Correspondence including: 

Correspondence to Civil Procedure Committee, Letters to Clerk Certifying Briefs, Employment Security Division Late Filing Correspondence, Oral Arguments Confirmation Letters, Library Delinquent Accounts Correspondence. 
Immediate Disposal. 

Miscellaneous or General Correspondence: 
Retain one (1) year. 

Section 7. Definitions.

Rules text
a.  Clerk. The Clerk of the Supreme Court and Court of Appeals.  
    b.  Immediate disposal. The record(s) may be disposed of at the discretion of the Clerk.  
    c.  Retain as long as case file is maintained. The record(s) should be returned to the case file if possible, but if this is not possible, the record shall be retained in accordance with the instructions for retention of the case file to which it would belong.  
    d.  Retain permanently. The record(s) must forever be retained by the Clerk, transferred pursuant to Section 2(a), or microfilmed pursuant to Section 3(a).  
    e.  Retain (#) years, then offer for donation. The record(s) shall be retained the specified period and then offered for donation, pursuant to Section 3.  
    f.  Retain (#) years following legislative audit. The record(s) shall be retained the specified number of years from the date of publication of the legislative audit report.  
    g.  Retain (#) years. The record(s) shall be retained for the specified period.  
    h.  Case closed. Supreme Court and Court of Appeals cases shall be considered closed once a mandate is issued or another written order of final disposition is entered.  
    i.  Case record. The trial court or administrative tribunal case record, and the court reporter's certified transcript, lodged with the appellate court as provided by Rules 3-1, 3-2, 3-3, and 3-4 of the Rules of the Arkansas Supreme Court and Court of Appeals, as well as the attorneys' briefs.  
    j.  Case file. All correspondence, motions, petitions, orders, dispositions, and mandates issued and filed during the appellate process. 

History. Adopted June 20, 1994

A claim of privilege is not defeated by a disclosure which was (1) compelled erroneously or (2) made without opportunity to claim the privilege.

(a) Comment or Inference Not Permitted. The claim of a privilege, whether in the present proceeding or upon a prior occasion, is not a proper subject of comment by judge or counsel. No inference may be drawn therefrom.
(b) Claiming Privilege Without Knowledge of Jury. In jury cases, proceedings shall be conducted, to the extent practicable, so as to facilitate the making of claims of privilege without the knowledge of the jury.
(c) Jury Instruction. Upon request, any party against whom the jury might draw an adverse inference from a claim or privilege is entitled to an instruction that no inference may be drawn therefrom.

Every person is competent to be a witness except as otherwise provided in these rules.

A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that he has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the testimony of the witness himself. This rule is subject to the provisions of Rule 703, relating to opinion testimony by expert witnesses.

Before testifying, every witness shall be required to declare that he will testify truthfully, by oath or affirmation administered in a form calculated to awaken his conscience and impress his mind with his duty to do so.

The content and depth of this examination shall be a continuing subject of review by the Board, and may be altered by amendments to these regulations.

An interpreter is subject to the provisions of these rules relating to qualification as an expert and the administration of an oath or affirmation that he will make a true translation.

The judge presiding at the trial may not testify in that trial as a witness. No objection need be made in order to preserve the point.

(a) At the Trial. A member of the jury may not testify as a witness before that jury in the trial of the case in which he is sitting as a juror. If he is called so to testify, the opposing party shall be afforded an opportunity to object out of the presence of the jury.

(b) Inquiry into Validity of Verdict or Indictment. Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon his or any other juror's mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes in connection therewith, nor may his affidavit or evidence of any statement by him concerning a matter about which he would be precluded from testifying be received, but a juror may testify on the questions whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror.

The credibility of a witness may be attacked by any party, including the party calling him.

(a) Opinion and Reputation Evidence of Character. The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness, and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.
(b) Specific Instances of Conduct. Specific instances of the conduct of a witness, for the purpose of attacking or supporting his credibility, other than conviction of crime as provided in Rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning his character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.

The giving of testimony, whether by an accused or by any other witness, does not operate as a waiver of his privilege against self-incrimination when examined with respect to matters which relate only to credibility.

The Executive Secretary of the Board will forward the files containing the names and pertinent information including address, phone number, and email address for all individuals who have passed the certification test or were granted certification pursuant to Section 26 to the Supreme Court Clerk's office where said files will be maintained and stored.

The Executive Secretary will maintain and store all other files pertaining to test results, including all verbatim notes or records, transcripts, and other papers used in connection with testing for a period of two years following the date of testing, at which time the Executive Secretary may dispose of said files.

It shall be the responsibility of the certified court reporter to provide the Office of the Supreme Court Clerk with written notification of any change of address within fourteen (14) working days. For the purposes of these regulations, written notification by certified or first class mail to the most recent address provided to the Office of the Clerk shall be deemed sufficient.

Amended and effective by per curiam order June 26, 2014; amended and effective by per curiam order September 15, 2016

 

(a). Surrender of Certificate. A reporter may surrender his or her certificate upon the conditions agreed to by the reporter and the Board:
(1) In lieu of disciplinary proceedings where serious misconduct by the reporter is admitted by the reporter to exist, or

(2) On a voluntary surrender basis of his or her certificate at any time where there is no pending Complaint against the reporter.

(3) No petition to the Supreme Court for voluntary surrender of a certificate by a reporter shall be granted until referred to and approved by the Board and the recommendations of the Board are received by the Supreme Court.

(b). Discipline by Consent. 

(1) A reporter against whom a formal Complaint has been served may, at any stage of the proceedings not less than ten (10) business days prior to the commencement of a public hearing tender a written conditional acknowledgment and admission of violation of some or all of the Rules and Regulations alleged, in exchange for a stated disciplinary sanction in accordance with the following: 
(2) With service of a Complaint, the respondent reporter shall be advised in writing that if a negotiated disposition by consent is contemplated that the respondent reporter should contact the Board Chair or the Board’s special prosecutor to undertake good faith discussion of a proposed disposition. All discipline by consent proposals must be approved in writing by the Board Chair, or by the Board’s special prosecutor before the consent proposal can be submitted to the Board.

(3) Upon a proposed disposition acceptable to the respondent reporter and the Board Chair or representative, the respondent reporter shall execute and submit a consent proposal on a document prepared by the Board setting out the necessary factual circumstances, admissions of violation of the Board Rules and Regulations, and the terms of the proposed sanction.

(4) The consent proposal, along with copies of the formal Complaint, and the recommendations of the Board Chair or representative, shall be presented to the Board by written ballot to either accept or reject the proposed disposition. The decision shall be determined by four (4) concurring votes of the Board. The respondent reporter will be notified immediately in writing of the Board’s decision. Rejection will result in the continuation of the formal Complaint process.

(5). No appeal is available from a disciplinary sanction entered by the consent process.

(6). The Board shall file written evidence of the terms of any public sanction discipline by consent, in the form of an order, with the Clerk of the Supreme Court. 

(c) Serious Misconduct. If the discipline by consent involves allegations of serious misconduct, for which a suspension or revocation of the certificate is to be imposed, the Supreme Court shall also approve any agreed consent proposal and any sanction. 

(1) The Board shall present to the Supreme Court, under such procedures as the Supreme Court may direct, any discipline by consent proposal involving serious misconduct, which the Board has reached with a respondent reporter.

(2) If the Supreme Court does not approve the proposed discipline by consent or the voluntary surrender of the certificate, the matter shall be referred back to the Board which shall resume the proceedings at the stage at which they were suspended when the consent proposal was made and submitted to the Supreme Court.

Amended and effective January 15, 2009; amended and effective April 14, 2011.

Section I. Scope.

a. In every action filed in the circuit courts, a form designed for the uniform collection of case data shall be submitted with the initial pleading and again at final disposition. The forms shall be used in assigning and allocating cases and to collect statistical case data. The forms shall not be admissible as evidence in any court proceeding or replace or supplement the filing and service of pleadings, orders, or other papers as required by law or the rules of this Court.  

b. In the event that a jurisdiction has implemented electronic filing pursuant to Administrative Order Number 21, the Administrative Office of the Courts shall have the authority to waive the utilization of the forms required by this order to the extent that the information can be submitted through the electronic-filing system.

Section IIResponsibility for forms.

a.  Administrative Office of the Courts. The Administrative Office of the Courts (AOC) shall be responsible for the content and format of the forms after consultation with other appropriate agencies or as may be required by law. The AOC shall be responsible for training in the use of these forms and for initial dissemination of the forms.

  
b.  Court clerk. For the purposes of this administrative order, court clerk means an elected circuit clerk in whose office a pleading, order, judgment, or decree is filed, as well as any deputy clerks in those offices. Court clerk also means any county clerk who serves as ex officio clerk of the probate division of the circuit court pursuant to Arkansas Code Annotated section 14-14-502(b)(2)(B) for this limited purpose.

The court clerk shall not accept an initial pleading or final order that is not accompanied by the appropriate form, except as provided elsewhere in this order. The court clerk shall maintain a supply of forms to ensure their availability to attorneys or self-represented litigants. The court clerk shall report the data electronically to the AOC. 

 c.  Attorney or self-represented litigant. The attorney or self-represented litigant filing the initial pleading is responsible for completing the appropriate form and submitting it with the pleading. The attorney or self-represented litigant submitting the final order, or trial court staff as designated by the court, shall complete the disposition information on the appropriate reporting form, and that form shall be submitted to the court clerk.

Section III. Procedure.

a. Completeness.  Forms accompanying the initial pleading shall be sufficiently complete to enable identification of the parties and to provide essential case information. Forms accompanying final orders shall be sufficiently complete to allow the clerk to enter accurate information to close the case. 

b. Retention.Except as provided elsewhere in this order, once data have been entered and transmitted electronically to the AOC, forms may be discarded and shall be excluded from public access as permitted by Administrative Order No. 19  

c.  Civil, Probate, Juvenile, and Domestic Relations cases.  If a complaint asserts multiple claims involving different subject matter divisions, the cover sheet for the type of case most definitive of the nature of the case should be submitted. Attorneys or self-represented litigants should be cognizant that claims that are wholly unrelated may be severed and proceeded with separately under Rule 18(b) of the Rules of Civil Procedure. .

 d. Criminal cases. A separate cover sheet shall be provided for each defendant. The office of the prosecuting attorney shall be responsible for completing either the Sentencing Order or the Reporting Form for Defense-Related Dispositions for each case, accounting for every charge in the initial or any amended pleading. The appropriate form shall be submitted to the circuit judge for signature and filed with the court clerk. The clerk shall report the data electronically to the AOC pursuant to section (II)(b) and forward a copy of the form to counsel of record for the defendant.

When any charge results in a commitment to the Arkansas Department of Correction or any of the following––probation, suspended imposition of sentence, commitment to Arkansas Community Correction or to the county jail, a fine, restitution, and/or court costs––the Sentencing Order shall be submitted.

When every charge is dismissed or nolle prossed, the case is transferred, or the defendant is acquitted, including an acquittal resulting from the defendant’s mental disease or defect, the Reporting Form for Defense-Related Dispositions shall be submitted.

The Sentencing Order and Reporting Form for Defense-Related Dispositions should not be discarded, and they are publicly accessible under the terms of Administrative Order No. 19.  

  

Notes to Amendments (2019).

The amendments involve simplification, clean-up, clarification of old language, and changes resulting from the adoption of the new cover sheets and disposition sheets in 2017.

Section (I) eliminates some obsolete language and adds a paragraph contemplating the ability to submit coversheet information through the electronic-filing system. When all data is received through eFlex, a cover sheet will not be required.

Section (II) adds clarifying language to the meaning of “court clerk” consistent with Amendment 80. Most significantly, the change requires clerks to report electronically to the AOC so that the AOC can end the receipt and data entry of paper from courts. This section also clarifies who is responsible for completing the cover and disposition sheets.

Section (III)(a) clarifies completeness required in order to decrease the number of improperly rejected filings by clerks. Section (III)(d) requires a separate criminal coversheet for each defendant and clarifies the requirement for Sentencing Orders and the Reporting Form for Defense-Related Dispositions. Cover sheets and disposition forms are not required to be file marked or retained. Sentencing Orders and Reporting Forms for Defense-Related Dispositions must be file marked and retained. The form for Defense-Related Dispositions is no longer appended to this order and, as with other forms, is available on the court’s website.

History. Adopted February 26, 1996; amended April 14, 1997; amended December 4, 1997; amended effective July 1, 2000; amended May 24, 2001, effective July 1, 2001, except section II.(c) [Multiple claims] effective January 1, 2002; amended November 1, 2001, effective January 1, 2002; amended December 15, 2011, effective January 1, 2012; amended October 11, 2018, effective January 1, 2019.

(a) General Rule. For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted but only if the crime (1) was punishable by death or imprisonment in excess of one [1] year under the law under which he was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to a party or a witness, or (2) involved dishonesty or false statement, regardless of the punishment.
(b) Time Limit. Evidence of a conviction under this rule is not admissible if a period of more than ten [10] years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date.
(c) Effect of Pardon, Annulment, or Certificate of Rehabilitation. Evidence of a conviction is not admissible under this rule if (1) the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding of the rehabilitation of the person convicted, and that person has not been convicted of a subsequent crime which was punishable by death or imprisonment in excess of one [1] year, or (2) the conviction has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of innocence.
(d) Juvenile Adjudications. Evidence of juvenile adjudications is generally not admissible under this rule. Except as otherwise provided by statute, however, the court may in a criminal case allow evidence of a juvenile adjudication of a witness other than the accused if conviction of the offense would be admissible to attack the credibility of an adult and the court is satisfied that admission in evidence is necessary for a fair determination of the issue of guilt or innocence.
(e) Pendency of Appeal. The pendency of an appeal therefrom does not render evidence of a conviction inadmissible. Evidence of the pendency of an appeal is admissible.

Evidence of the beliefs or opinions of a witness on matters of religion is not admissible for the purpose of showing that by reason of their nature his credibility is impaired or enhanced.

(a) Control by Court. The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment.
(b) Scope of Cross-Examination. Cross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness. The court may, in the exercise of discretion, permit inquiry into additional matters as if on direct examination.
(c) Leading Questions. Leading questions should not be used on the direct examination of a witness except as may be necessary to develop his testimony. Ordinarily leading questions should be permitted on cross-examination. Whenever a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions.

(a) While Testifying. If, while testifying, a witness uses a writing or object to refresh his memory, an adverse party is entitled to have the writing or object produced at the trial, hearing, or deposition in which the witness is testifying.
(b) Before Testifying. If, before testifying, a witness uses a writing or object to refresh his memory for the purpose of testifying and the court in its discretion determines that the interests of justice so require, an adverse party is entitled to have the writing or object produced, if practicable, at the trial, hearing, or deposition in which the witness is testifying.
(c) Terms and Conditions of Production and Use. A party entitled to have a writing or object produced under this rule is entitled to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness. If production of the writing or object at the trial, hearing, or deposition is impracticable, the court may order it made available for inspection. If it is claimed that the writing or object contains matters not related to the subject matter of the testimony, the court shall examine the writing or object in camera, excise any portions not so related, and order delivery of the remainder to the party entitled thereto. Any portion withheld over objections shall be preserved and made available to the appellate court in the event of an appeal. If a writing or object is not produced, made available for inspection, or delivered pursuant to order under this rule, the court shall make any order justice requires, but in criminal cases if the prosecution elects not to comply, the order shall be one striking the testimony or, if the court in its discretion determines that the interests of justice so require, declaring a mistrial.

(a) Examining Witness Concerning Prior Statement. In examining a witness concerning a prior statement made by him, whether written or not, the statement need not be shown nor its contents disclosed to him at that time, but on request the same shall be shown or disclosed to opposing counsel.
(b) Extrinsic Evidence of Prior Inconsistent Statement of Witness. Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate him thereon, or the interests of justice otherwise require. This provision does not apply to admissions of a party-opponent as defined in Rule 801(d)(2).

Any person desiring to file a grievance against a Certified Court Reporter may file a written statement on a form provided by the Board, attaching any pertinent documentary evidence thereto, with the Board of Certified Court Reporters Examiners through the Office of the Clerk of the Arkansas Supreme Court, for delivery to the Executive Secretary of the Board for investigation and determination of probable cause for a formal Complaint.

(a) Calling by Court. The court, at the suggestion of a party or on its own motion, may call witnesses, and all parties are entitled to cross-examine witnesses thus called.
(b) Interrogation by Court. The court may interrogate witnesses, whether called by itself or by a party.
(c) Objections. Objections to the calling of witnesses by court or to interrogation by it may be made at the time or at the next available opportunity when the jury is not present.

At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order of its own motion. This rule does not authorize exclusion of (1) a party who is a natural person, or (2) an officer or employee of a party that is not a natural person designated as its representative by its attorney, or (3) a person whose presence is shown by a party to be essential to the presentation of his cause.

Rules text
Notwithstanding any provision to the contrary, in any criminal prosecution, the victim of a crime, and in the event that the victim of a crime is a minor child under eighteen (18) years of age, that minor victim's parents, guardian, custodian or other person with custody of the alleged minor victim shall have the right to be present during any hearing, deposition, or trial of the offense.

If the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are
(1) Rationally based on the perception of the witness; and
(2) Helpful to a clear understanding of his testimony or the determination of a fact in issue.

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

Pursuant to Section 7 of the Rule Providing for Certification of Court Reporters, the Board may issue an admonition or revoke or suspend any certificate issued after proper notice and hearing, on the following grounds:

(a) Conviction of any felony, or having been adjudicated or found guilty, or entered a plea of guilty or nolo contendere to, any felony, or to any misdemeanor that reflects adversely on the reporter’s honesty, trustworthiness, or fitness as a reporter in other respects, or to any crime a necessary element of which, as determined by the statutory or common law definition of the crime, involves interference with the administration of justice, false swearing, misrepresentation, fraud, deceit, bribery, extortion, misappropriation, theft, or an attempt, conspiracy or solicitation of another to commit a felony. A court reporter who falls within this provision, shall notify the Board upon entry of the judgment or sentencing order in the criminal case.

(b) misrepresentation or omission of material facts in obtaining certification.

(c) any intentional violation of, noncompliance with or gross negligence in complying with any rule or directive of the Supreme Court of Arkansas, any other court of record within this State, or this Board.

(d) fraud, dishonesty, gross incompetence or habitual neglect of duty.

(e) unprofessional conduct, which shall include, but not be limited to:

(1) failing to deliver a transcript to a client or court in a timely manner as determined by statute, court order, or agreement;

(2) intentionally producing an inaccurate transcript;

(3) producing an incomplete transcript except upon order of a court, agreement of the parties, or request of a party;

(4) failing to disclose as soon as practical to the parties or their attorneys existing or past financial, business, professional or family relationships, including contracts for court reporting services, which might reasonably create an appearance of partiality;

(5) advertising or representing falsely the qualifications of a certified court reporter or that an unlicensed individual is a certified court reporter;

(6) failing to charge all parties or their attorneys to an action the same price for an original transcript and failing to charge all parties or their attorneys the same price for a copy of a transcript or for like services performed in an action;

(7) failing to disclose upon request an itemization in writing of all rates and charges to all parties in an action or their attorneys;

(8) reporting of any proceeding by any person, who is a relative of a party or their attorney, unless the relationship is disclosed and any objection thereto is waived on the record by all parties;

(9) reporting of any proceeding by any person, who is financially interested in the action, or who is associated with a firm, which is financially interested in the action;

(10) failing to notify all parties, or their attorneys, of a request for a deposition transcript, or any part thereof, in sufficient time for copies to be prepared and delivered simultaneously with the original;

(11) going “off the record” during a deposition when not agreed to by all parties or their attorneys unless otherwise ordered by the court;

(12) giving, directly or indirectly, benefiting from or being employed as a result of any gift, incentive, reward or anything of value to attorneys, clients, or their representatives or agents, except for nominal items that do not exceed $100 in the aggregate for each recipient each year; and

(13) charging an unreasonable rate for a copy of an original deposition transcript, or an official reporter charging fees in violation of Ark. Code Ann. Section 16-13-506.

 

 

Amended and effective September 21, 2017.

(a) Within thirty (30) days of receipt of written findings of the Board issuing an admonition, or suspending or revoking a certificate, the aggrieved court reporter may appeal said findings to the Supreme Court of Arkansas for review de novo upon the record. Such appeal shall be prosecuted by filing a written notice of appeal with the Clerk of the Supreme Court of Arkansas with a copy thereof to the Chair of the Board. The notice of appeal shall specify the party taking the appeal; shall designate the order of the Board from which appeal is sought; and, shall designate the contents of the record on appeal. The notice shall also contain a statement that the transcript, or specific portions thereof, have been requested.

(b) The Executive Secretary of the Board shall prepare the record for appeal consisting of the pleadings, orders, and other documents of the case, and include therein the transcript of proceedings that is provided by the respondent reporter. The Chair of the Board shall certify the record prepared by the Executive Secretary.

(c) The respondent reporter shall be responsible for obtaining the transcript of any case proceedings and hearings and for timely providing same to the Executive Secretary of the Board. It shall be the responsibility of the appellant to transmit such record to the Supreme Court Clerk. The record on appeal shall be filed with the Supreme Court Clerk within ninety (90) days from filing of the first notice of appeal, unless the time is extended by timely filed order of the Board. In no event shall the time be extended more than seven (7) months from the date of entry of the initial order of the Board. Such appeals shall be processed in accord with pertinent portions of the Rules of the Supreme Court and Court of Appeals of the State of Arkansas.

Amended and effective January 15, 2009.

A.  Procedures. To ensure statewide compliance with the Fair Labor Standards Act of 1938 (29 U.S.C. § 207(o)(6)), each official court reporter shall complete the time records required by the Administrative Office of the Courts ("AOC"), sign the time records to certify that they correctly report all hours worked in excess of the 40 hour work week that are not excluded by 29 U.S.C. § 207(o), and monthly submit the records to his/her appointing judge for approval. The time record forms shall be approved by the Arkansas Supreme Court, which is authorized to amend them from time to time as may be necessary.

   The appointing judge shall approve and sign each monthly record certifying that, to the best of his/her knowledge, the time record reflects a true and accurate record of compensatory time earned for all hours worked in excess of the 40 hour work week, as defined by the Fair Labor Standards Act ("FLSA"). The appointing judge shall grant the court reporter compensatory time at the rate of one and one-half times the number of hours worked in excess of the 40 hour work week pursuant to this policy. 

   For the purpose of determining the 40 hour FLSA work week, the established work week shall begin on Saturday at 12:01 a.m. and continue through Friday at 12:00 midnight. Any time excluded by 29 U.S.C. § 207(o) and any time taken off for holidays, compensatory time leave, sick leave, annual leave or any other purpose during the week shall not be counted in determining whether the employee has worked 40 hours. 

   The appointing judge shall be responsible for maintaining the approved time record and shall forward copies to the AOC at the time and in the manner directed by the AOC. The time records shall be retained by the AOC for the period required by law.

   Court reporters shall be permitted to use accrued compensatory time as soon as possible when the court is not in session and without unduly disrupting the operations of the court.  The appointing judge shall approve use of compensatory time. Compensatory time may be used in lieu of sick leave or annual leave. 

   Under no circumstances shall the outstanding balance of compensatory time exceed 90 hours.  The appointing judges are responsible for ensuring that court reporters do not exceed this maximum balance of compensatory time. 

   Accrued compensatory time should be used prior to the employee's termination of employment. If accrued compensatory time is not used prior to the employee's termination of employment, the appointing judge shall hold the official court reporter position vacant for a period equivalent to the period for which accrued compensatory time is paid. The payment for compensatory time shall be at the ending rate of pay for the employee. 

   The compensatory time records for official reporters is not intended for use by substitute court reporters. Substitute court reporters shall be governed by the provisions of Ark. Code Ann. § 16-13-509 as described in the AOC publication, Arkansas State Trial Court Employment Guide.

    B.  Enforcement.   
    (i)  The failure of court reporters to comply with the requirements of this Order shall constitute grounds for discipline under the provisions of Section 19(c) of the Regulations of the Board of Certified Court Reporter Examiners and Section 7 of the Rule Providing for Certification of Court Reporters. (ii) The failure of appointing judges to comply with the requirements of this Order shall constitute grounds for discipline under the provisions of Canon 3 (C) of the Arkansas Code of Judicial Conduct.

History. Adopted December 23, 1996, effective January 1, 1997; amended and effective October 22, 2015.

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.

Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.

The expert may testify in terms of opinion or inference and give his reasons therefor without prior disclosure of the underlying facts or data, unless the court requires otherwise. The expert may in any event be required to disclose the underlying facts or data on cross-examination.

(a) Appointment. The court, on motion of any party or its own motion, may enter an order to show cause why expert witnesses should not be appointed, and may request the parties to submit nominations. The court may appoint any expert witnesses of its own selection. An expert witness shall not be appointed by the court unless he consents to act. A witness so appointed shall be informed of his duties by the court in writing, a copy of which shall be filed with the clerk, or at a conference in which the parties shall have opportunity to participate. A witness so appointed shall advise the parties of his findings, if any; his deposition may be taken by any party; and he may be called to testify by the court or any party. He shall be subject to cross-examination by each party, including a party calling him as a witness.
(b) Compensation. Expert witnesses so appointed are entitled to reasonable compensation in whatever sum the court may allow. The compensation thus fixed is payable from funds which may be provided by law in criminal cases and civil actions and proceedings involving just compensation for the taking of property. In other civil actions and proceedings the compensation shall be paid by the parties in such proportion and at such time as the court directs, and thereafter charged in like manner as other costs.
(c) Disclosure of Appointment. In the exercise of its discretion, the court may authorize disclosure to the jury of the fact that the court appointed the expert witness.
(d) Parties' Experts of Own Selection. Nothing in this rule limits the parties in calling expert witnesses of their own selection.

The following definitions apply under this Article:

(a) Statement. A "statement" is (1) An oral or written assertion; or (2) Nonverbal conduct of a person, if it is intended by him as an assertion.

(b) Declarant. A "declarant" is a person who makes a statement.

(c) Hearsay. "Hearsay" is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.

(d) Statements Which Are Not Hearsay. A statement is not hearsay if:

(1) Prior Statement By Witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is (i) inconsistent with his testimony and, if offered in a criminal proceeding, was given under oath and subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition, or (ii) consistent with his testimony and is offered to rebut an express or implied charge against him of recent fabrication or improper influence or motive, or (iii) one of identification of a person made after perceiving him; or

(2) Admission By Party-opponent. The statement is offered against a party and is (i) his own statement, in either his individual or a representative capacity, (ii) a statement of which he has manifested his adoption or belief in its truth, (iii) a statement by a person authorized by him to make a statement concerning the subject, (iv) a statement by his agent or servant concerning a matter within the scope of his agency or employment, made during the existence of the relationship, or (v) a statement by a co-conspirator of a party during the course and in furtherance of the conspiracy.

No persons shall use the title "Certified Court Reporter," or its abbreviation "CCR," in conjunction with their names to indicate they are qualified verbatim reporters in this state, without having a valid certificate issued by the Board or an emergency certificate issued by a circuit judge pursuant to Section 13 of these Regulations.

Amended by per curiam order June 26, 2014.

Hearsay is not admissible except as provided by law or by these rules.

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
(1) Present Sense Impression. A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.
(2) Excited Utterance. A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.
(3) Then Existing Mental, Emotional, or Physical Condition. A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition, such as intent, plan, motive, design, mental feeling, pain, and bodily health, but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will.
(4) Statements for Purposes of Medical Diagnosis or Treatment. Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensation, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.
(5) Recorded Recollection. A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable him to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in his memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party.
(6) Records of Regularly Conducted Business Activity. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or disagnoses [sic], made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term "business" as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.
(7) Absence of Entry in Records Kept in Accordance With the Provisions of Paragraph (6). Evidence that a matter is not included in the memoranda, reports, records, or data compilations, in any form, kept in accordance with the provisions of paragraph (6), to prove the nonoccurrence or nonexistence of the matter, if the matter was of a kind of which a memorandum, report, record, or data compilation was regularly made and preserved, unless the sources of information or other circumstances indicate lack of trustworthiness.
(8) Public Records and Reports. To the extent not otherwise provided in this paragraph, records, reports, statements, or data compilations in any form of a public office or agency setting forth its regularly conducted and regularly recorded activities, or matters observed pursuant to duty imposed by law and as to which there was a duty to report, or factual findings resulting from an investigation made pursuant to authority granted by law. The following are not within this exception to the hearsay rule: (i) investigative reports by police and other law enforcement personnel; (ii) investigative reports prepared by or for a government, a public office, or an agency when offered by it in a case in which it is a party; (iii) factual findings offered by the government in criminal cases; (iv) factual findings resulting from special investigation of a particular complaint, case, or incident; and (v) any matter as to which the sources of information or other circumstances indicate lack of trustworthiness.
(9) Records of Vital Statistics. Records or data compilations, in any form, of birth, fetal deaths, deaths, or marriages, if the report thereof was made to a public office pursuant to requirements of law.
(10) Absence of Public Record or Entry. To prove the absence of a record, report, statement, or data compilation, in any form, or the nonoccurrence or nonexistence of a matter of which a record, report, statement, or data compilation, in any form, was regularly made and preserved by a public office or agency, evidence in the form of a certification in accordance with Rule 902, or testimony, that diligent search failed to disclose the record, report, statement, or data compilation, or entry.
(11) Records of Religious Organizations. Statements of births, marriages, divorces, death, legitimacy, ancestry, relationship by blood or marriage, or other similar facts of personal or family history, contained in a regularly kept record of a religious organization.
(12) Marriage, Baptismal, and Similar Certificates. Statements of fact contained in a certificate that the maker performed a marriage or other ceremony or administered a sacrament, made by a clergyman, public official, or other person authorized by the rules or practices of a religious organization or by law to perform the act certified, and purporting to have been issued at the time of the act or within a reasonable time thereafter.
(13) Family Records. Statements of fact concerning personal or family history contained in family Bibles, genealogies, charts, engravings on rings, inscriptions on family portraits, engravings on urns, crypts, or tombstones, or the like.
(14) Records of Documents Affecting an Interest in Property. The record of a document purporting to establish or affect an interest in property, as proof of the content of the original recorded document and its execution and delivery by each person by whom it purports to have been executed, if the record is a record of a public office and applicable statute authorizes the recording of documents of that kind in that office.
(15) Statements in Documents Affecting an Interest in Property. A statement contained in a document purporting to establish or affect an interest in property if the matter stated was relevant to the purpose of the document, unless dealings with the property since the document was made have been inconsistent with the truth of the statement or the purport of the document.
(16) Statements in Ancient Documents. Statements in a document in existence twenty (20) years or more the authenticity of which is established.
(17) Market Reports, Commercial Publications. Market quotations, tabulations, lists, directories, or other published compilations, generally used and relied upon by the public or by persons in particular occupations.
(18) Learned Treatises. To the extent called to the attention of an expert witness upon cross-examination or relied upon by him in direct examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by testimony or admission of the witness or by other expert testimony or by judicial notice. If admitted, the statements may be read into evidence but may not be received as exhibits.
(19) Reputation Concerning Personal or Family History. Reputation among members of his family by blood, adoption, or marriage, or among his associates, or in the community, concerning a person's birth, adoption, marriage, divorce, death, legitimacy, relationship by blood, adoption, or marriage, ancestry, or other similar fact of his personal or family history.
(20) Reputation Concerning Boundaries or General History. Reputation in a community, arising before the controversy, as to boundaries of or customs affecting lands in the community, and reputation as to events of general history important to the community or state or nation in which located.
(21) Reputation as to Character. Reputation of a person's character among his associates or in the community.
(22) Judgment of Previous Conviction. Evidence of a final judgment, (entered after a trial or upon a plea of guilty,) adjudging a person guilty of a crime punishable by death or imprisonment in excess of one (1) year, to prove any fact essential to sustain the judgment, but not including, when offered by the state in a criminal prosecution for purposes other than impeachment, judgments against persons other than the accused. The pendency of an appeal may be shown but does not affect admissibility.
(23) Judgment as to Personal, Family or General History, or Boundaries. Judgments as proof of matters of personal, family or general history, or boundaries, essential to the judgment, if the same would be provable by evidence of reputation.
(24) Other Exceptions. A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines that (i) the statement is offered as evidence of a material fact; (ii) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (iii) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. However, a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance to provide the adverse party with a fair opportunity to prepare to meet it, his intention to offer the statement and the particulars of it, including the name and address of the declarant.
(25) Child Hearsay When Declarant is Available at Trial and Subject to Cross-examination. A statement made by a child under the age of ten (10) years concerning any type of sexual offense, or attempted sexual offense, with, on, or against that child, which is inconsistent with the child's testimony and offered in a criminal proceeding, provided:
(A) The trial court conducts a hearing outside the presence of the jury and finds that the statement offered possesses a reasonable guarantee of trustworthiness considering the competency of the child both at the time of the out of court statement and at the time of the testimony.
(B) The proponent of the statement gives the adverse party reasonable notice of his intention to offer the statement and the particulars of the statement.
(C) This section shall not be construed to limit the admission of an offered statement under any other hearsay exception or applicable rule of evidence.

History

History. Amended May 11, 1992

(a) Definition of Unavailability. "Unavailability as a witness" includes situations in which the declarant:
(1) Is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of his statement;
(2) Persists in refusing to testify concerning the subject matter of his statement despite an order of the court to do so;
(3) Testifies to a lack of memory of the subject matter of his statement;
(4) Is unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity; or
(5) Is absent from the hearing and the proponent of his statement has been unable to procure his attendance (or in the case of a hearsay exception under subdivision (b) (2), (3), or (4), his attendance or testimony) by process or other reasonable means.

A declarant is not unavailable as a witness if his exemption, refusal, claim of lack of memory, inability, or absence is due to the procurement or wrongdoing of the proponent of his statement for the purpose of preventing the witness from attending or testifying.
(b) Hearsay Exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:
(1) Former testimony. Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.
(2) Statement under belief of impending death. A statement made by a declarant while believing that his death was imminent, concerning the cause or circumstances of what he believed to be his impending death.
(3) Statement against interest. A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject him to civil or criminal liability or to render invalid a claim by him against another or to make him an object of hatred, ridicule, or disgrace, that a reasonable man in his position would not have made the statement unless he believed it to be true. A statement tending to expose the declarant to criminal liability and offering to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement. A statement or confession offered against the accused in a criminal case, made by a codefendant or other person implicating both himself and the accused, is not within this exception.
(4) Statement of personal or family history.
(i) A statement concerning the declarant's own birth, adoption, marriage, divorce, legitimacy, relationship by blood, adoption, marriage, anecestry [ancestry], or other similar fact of personal or family history, even though declarant had no means of acquiring personal knowledge of the matter stated; or (ii) a statement concerning the foregoing matters and death also, of another person, if the declarant was related to the other by blood, adoption, or marriage or was so intimately associated with the other's family as to be likely to have accurate information concerning the matter declared.
(5) Other exceptions. A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines that (i) the statement is offered as evidence of a material fact; (ii) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (iii) the general purposes of these rules and the interests of justice will best be served by admission of the statements into evidence. However, a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance to provide the adverse party with a fair opportunity to prepare to meet it, his intention to offer the statement and the particulars of it, including the name and address of the declarant.
(6) Child hearsay in civil cases in which the Confrontation Clause of the Sixth Amendment of the Constitution of the United States is not applicable. A statement made by a child under the age of ten (10) years concerning any type of sexual offense, or attempted sexual offense, with, on, or against the child, provided:
(A) The trial court conducts a hearing outside the presence of the jury and finds that the statement offered possesses a reasonable guarantee of trustworthiness. The trial court may employ any factor it deems appropriate including, but not limited to those listed below, in deciding whether the statement is sufficiently trustworthy.
1. The spontaneity of the statement.
2. The lack of time to fabricate.
3. The consistency and repetition of the statement and whether the child has recanted the statement.
4. The mental state of the child.
5. The competency of the child to testify.
6. The child's use of terminology unexpected of a child of similar age.
7. The lack of a motive by the child to fabricate the statement.
8. The lack of bias by the child.
9. Whether it is an embarrassing event the child would not normally relate.
10. The credibility of the person testifying to the statement.
11. Suggestiveness created by leading questions.
12. Whether an adult with custody or control of the child may bear a grudge against the accused offender, and may attempt to coach the child into making false charges.
13. Corroboration of the statement by other evidence.
14. Corroboration of the alleged offense by other evidence.
(B) The proponent of the statement gives the adverse party reasonable notice of his intention to offer the statement and the particulars of the statement.
(C) This section shall not be construed to limit the admission of an offered statement under any other hearsay exception or applicable rule of evidence.
(7) Child hearsay in criminal cases. A statement made by a child under the age of ten (10) years concerning any type of sexual offense against that child, where the Confrontation Clause of the Sixth Amendment of the United States is applicable, provided:
(A) The trial court conducts a hearing outside the presence of the jury, and, with the evidentiary presumption that the statement is unreliable and inadmissible, finds that the statement offered possesses sufficient guarantees of trustworthiness that the truthfulness of the child's statement is so clear from the surrounding circumstances that the test of cross-examination would be of marginal utility. The trial court may employ any factor it deems appropriate including, but not limited to those listed below, in deciding whether the statement is sufficiently trustworthy.
1. The spontaneity of the statement.
2. The lack of time to fabricate.
3. The consistency and repetition of the statement and whether the child has recanted the statement.
4. The mental state of the child.
5. The competency of the child to testify.
6. The child's use of terminology unexpected of a child of similar age.
7. The lack of a motive by the child to fabricate the statement.
8. The lack of bias by the child.
9. Whether it is an embarrassing event the child would not normally relate.
10. The credibility of the person testifying to the statement.
11. Suggestiveness created by leading questions.
12. Whether an adult with custody or control of the child may bear a grudge against the accused offender, and may attempt to coach the child into making false charges.
(B) The proponent of the statement gives the adverse party reasonable notice of his intention to offer the statement and the particulars of the statement.
(C) This section shall not be construed to limit the admission of an offered statement under any other hearsay exception or applicable rule of evidence.

History

History. Amended by Per Curiam dated May 11, 1992

Hearsay included within hearsay is not excluded under the hearsay rule if each part of the combined statements conforms with an exception to the hearsay rule provided in these rules.

If a hearsay statement, or a statement defined in Rule 801 [d] (2) (iii), (iv), or (v), has been admitted in evidence, the credibility of the declarant may be attacked, and if attacked may be supported, by any evidence which would be admissible for those purposes if declarant had testified as a witness. Evidence of a statement or conduct by the declarant at any time, inconsistent with his hearsay statement, is not subject to any requirement that he may have been afforded an opportunity to deny or explain. If the party against whom a hearsay statement has been admitted calls the declarant as a witness, the party is entitled to examine him on the statement as if under cross-examination.

All fees and other monies accruing under the Rule shall be deposited by the Clerk of this Court in an account called, "Certified Court Reporters Fund." All expenses incurred by the Board shall be paid out of this fund as authorized and directed by the Board. Travel and other necessary expenses of the members of the Board shall be paid from said fund.

Amended and effective January 15, 2009.

Part  1. Scope.

A.  This records retention schedule applies to all official court reporters in the State of Arkansas. "Official court reporter" as used in this retention schedule means a court reporter, certified by the Arkansas Board of Certified Court Reporter Examiners, who is regularly employed by a circuit judge, or a "substitute court reporter," who serves in the absence of the regularly employed court reporter.

B.  The term "records" as used in this retention schedule refers to any and all verbatim records produced by an official court reporter and all physical exhibits received or proffered in evidence in any court hearing, trial, or proceeding.

Part  2. Court  Ordered Retention  of Specific Records.

Upon the motion of any party demonstrating good cause or upon the court's own motion, the trial judge may enter an order directing that the records be retained for an additional period beyond the time established in PART 6. At the end of each additional court-ordered retention period, the judge may enter a new order extending the retention period.

Part  3. Responsibility  for Storage;  Sanctions.

A.  During the period which the records are required to be retained, it shall be the responsibility of the official court reporter to maintain his or her records in an orderly, secure, and identifiable manner. It is highly recommended that space be provided in the county courthouse in the county where the official court reporter maintains an office or resides. If that is not feasible, it shall be the responsibility of the official court reporter to provide adequate space for the records.

B. When physical exhibits include firearms, contraband, or other similar items, such items may be transferred to the sheriff or other appropriate governmental agency for storage and safekeeping. The sheriff or governmental agency shall sign a receipt for such items and shall acknowledge that the items shall not be disposed of until authorized by subsequent court order. Other items of physical evidence which present storage problems may be transferred to the attorney of record for storage and safekeeping subject to approval of the trial court and upon appropriate documentation. Forms of orders and receipts for the transfer and disposal of exhibits are appended to Regulation 21.

C. If an official court reporter leaves his or her position for any reason other than his or her death, the reporter shall, within thirty (30) days, deliver or cause to be delivered, those records as defined in PART 1, to the trial court and retained by the court until a subsequent official court reporter is employed or retained, at which time the records shall be transferred to that reporter. A former official court reporter who maintains Arkansas certification may, with the court's permission, temporarily retrieve his or her former records necessary to prepare an appeal transcript or other documents which a party may request.

D.  If an official court reporter dies while still in possession of those records subject to retention as defined in PART 1, the trial court shall take possession of those records within thirty (30) days of the official court reporter's death. The trial court shall retain possession of the records until a subsequent official court reporter is employed or retained. At that time the records shall be transferred to the possession of the subsequent official court reporter who shall safely maintain the records subject to the direction of the trial court.

E.  If an official court reporter is unavailable and the trial court employs a substitute official court reporter, the trial court shall take possession of all records obtained by the substitute official court reporter during his or her service upon the conclusion of his or her employment. 

F.  Any person who fails to comply with or who interferes with these transfer provisions may be ordered to appear and show cause why he or she should not be held in contempt of court.

Part  4. Methods of Disposal of Records.

A.  Paper records may be disposed of by burning or shredding.

B.  Audio recordings/files or digital media may be erased.

C. Upon their written request, physical exhibits, other than weapons or contraband shall be returned to the party or attorney who proffered same. If no request is made within the time period for retention, the court reporter may dispose of the exhibit.

D.  Exhibits such as weapons or contraband shall be disposed of in the following manner: (1) weapons, in whatever form, unless otherwise ordered by the trial court, shall be transferred to the sheriff, or his or her designee, in the county where the case was tried, for disposal pursuant to law; (2) contraband, in whatever form, shall be transferred to the sheriff, or his or her designee, in the county where the case was tried, for disposal pursuant to law.

Part  5. Log of Records, Sanctions.

A. Each official court reporter shall maintain an accurate, orderly log of his or her records which also notes the date and method of destruction of each record listed. Any work papers maintained by the reporter for the purpose of identifying the record of court proceedings shall suffice, as long as they are legible. When an official court reporter leaves his or her position for whatever reason, the trial court shall take possession of the log no later than the date he or she takes possession of the records as set out in PART 3. When a subsequent official court reporter is employed or retained, the log shall be transferred to the possession of the subsequent official court reporter who shall safely maintain the log subject to the direction of the trial court.

B.  Any person who fails to comply with or who interferes with this Section may be ordered to appear and show cause why he or she should not be held in contempt of court.

Part  6. Official Court  Reporter Retention Schedule.

TYPE OF CASE                             PERIOD OF RETENTION

 

Criminal Cases

 

Death Penalty                                     Permanently

Life in Prison w/o Parole                   Permanently

Other Felonies
(transcript lodged
with appellate court)                         90 days after Mandate issues

Other Felonies
(no transcript prepared)                     5 years from date of verdict or sentencing

Misdemeanors                                     2 years from date of sentencing

Grand Jury Proceedings                      1 year subsequent to adjournment

Civil Circuit

All Cases
(transcript lodged
with appellate court)                          90 days after Mandate issues

All Cases
(no transcript prepared)                     2 years from date of final order of trial court

Juvenile Division of Circuit Court

All Cases
(transcript lodged with                        90 days after Mandate issues
appellate court)

(cases where no transcript
is prepared);

Delinquency                                        3 years from date of final order of trial court or on date
                                                               of expungement order, whichever occurs first

Families in Need of Services (FINS)   3 years from date of final order of trial court

Dependent/Neglect                                7 years from date of final order of trial court

Part  7. Effective Date. This Official Court Reporter Records Retention Schedule is effective immediately upon publication. It applies to records of cases already tried and those to be tried.

Amended and effective by per curiam order September 21, 2017.

Visit the Child Support Web Page for more information

Section I. Authority and scope.

  Pursuant to Act 948 of 1989, as amended, codified at Ark. Code Ann. § 9-12-312(a) and the Family Support Act of 1988, Pub. L. No. 100-485 (1988), the Court adopts and publishes Administrative Order Number 10 — Child Support Guidelines. This Administrative Order includes and incorporates by reference the attached weekly, biweekly, semimonthly, and monthly family support charts and the attached Affidavit of Financial Means (see below for charts and affidavit).

   It is a rebuttable presumption that the amount of child support calculated pursuant to the most recent revision of the Family Support Chart is the amount of child support to be awarded in any judicial proceeding for divorce, separation, paternity, or child support. The court may grant less or more support if the evidence shows that the needs of the dependents require a different level of support.

  All orders granting or modifying child support (including agreed orders) shall contain the court's determination of the payor's income, recite the amount of support required under the guidelines, and recite whether the court deviated from the Family Support Chart. If the order varies from the guidelines, it shall include a justification of why the order varies as may be permitted under Section V hereinafter. It shall be sufficient in a particular case to rebut the presumption that the amount of child support calculated pursuant to the Family Support Chart is correct, if the court enters in the case a specific written finding within the Order that the amount so calculated, after consideration of all relevant factors, including the best interests of the child, is unjust or inappropriate.

Section II. Definition of income.

(a)  Income means any form of payment, periodic or otherwise, due to an individual, regardless of source, including wages, salaries, commissions, bonuses, workers' compensation, disability, payments pursuant to a pension or retirement program, and interest less proper deductions for:

1. Federal and state income tax;
2. Withholding for Social Security (FICA), Medicare, and railroad retirement;
3. Medical insurance paid for dependent children; and
4. Presently paid support for other dependents by court order, regardless of the date of entry of the order or orders.

 

  Cases reflect that the definition of “income” is “intentionally broad and designed to encompass the widest range of sources consistent with this State’s policy to interpret ‘income’ broadly for the benefit of the child.” Evans v. Tillery, 361 Ark. 63, 204 S.W.3d 547(2005); Ford v. Ford, 347 Ark. 485, 65 S.W.3d 432 (2002); McWhorter v. McWhorter, 346 Ark. 475, 58 S.W.3d 840 (2001); and Davis v. Office of Child Support Enforcement, 341 Ark. 349, 20 S.W.3d 273 (2000).

(b) In order to further this State's policy to interpret "income" broadly for the benefit of the child, a support order may include as its basis a percentage of a bonus to be received in the future. This child-support obligation shall terminate when the underlying child-support obligation terminates. When a payor's income includes a bonus amount, use the following percentages of the payor's net bonus to set and establish the amount of support:

One dependent: 15%
Two dependents: 21%
Three dependents: 25%
Four dependents: 28% 
Five dependents: 30% 
Six dependents: 32%

The child-support attributable to a bonus amount shall be in addition to the periodic child-support obligation. Defining income to include a percentage of a bonus changes Arkansas case law. The effect is specifically to overrule the result reached in Kelly v. Kelly, 341 Ark. 596, 19 S.W.3d 1 (2000).

 

Section III. Calculation of support.

   a. Basic Considerations. The most recent revision of the family support charts is based on the weekly, biweekly, semimonthly and monthly income of the payor parent as defined in Section II.

   For purposes of computing child support payments, a month consists of 4.334 weeks. Biweekly means a payor is paid once every two weeks or 26 times during a calendar year. Semimonthly means a payor is paid twice a month or 24 times during a calendar year.

   Use the lower figure on the chart for income to determine support. Do not interpolate (i.e., use the $200.00 amount for all income pay between $200.00 and $210.00 per week.)

   The amount paid to the Clerk of the Court or to the Arkansas Clearinghouse for administrative costs pursuant to Ark. Code Ann. § 9-12-312(e)(1)(A), § 9-10-109(b)(1)(A), and § 9-14-804(b) is not to be included as support.

   b. Income Which Exceeds Chart. When the payor's income exceeds that shown on the chart, use the following percentages of the payor's weekly, biweekly, semimonthly or monthly income as defined in SECTION II to set and establish a sum certain dollar amount of support:

One dependent: 15%
Two dependents: 21%
Three dependents: 25%
Four dependents: 28%
Five dependents: 30%
Six dependents: 32%

 

  To compute child support when income exceeds the chart, add together the maximum weekly, biweekly, semimonthly, or monthly chart amount, and the percentage of the dollar amount that exceeds that figure, using the percentage above based upon the number of dependents. Example: The maximum on the weekly chart is $1,000 a week. If a payor’s net weekly income is $1,200 and support will be computed for one child–add $149 (the chart amount of support for one child when payor’s net weekly income is $1,000) and $30 (15% of $200, the amount exceeding the maximum chart amount), for total child support of $179. Hill v. Kelly, 368 Ark.200, 243 S.W.3d 886 (2006) (case decided before the Administrative Order was amended to include this computation and example).

   c. Nonsalaried Payors. For Social Security Disability recipients, the court should consider the amount of any separate awards made to the disability recipient's spouse and children on account of the payor's disability. SSI benefits shall not be considered as income.

   For Veteran's Administration disability recipients, Workers' Compensation disability recipients, and Unemployment Compensation recipients, the court shall consider those benefits as income.

   For military personnel, see the latest military pay allocation chart and benefits. Basic Allowance for Housing (BAH) and Basic Allowance for Subsistence (BAS) should be added to other income to reach total income. Military personnel are entitled to draw BAH at a "with dependents" rate if they are providing support pursuant to a court order. However, there may be circumstances in which the payor is unable to draw BAH or may draw BAH only at the "without dependents" rate. Use the BAH for which the payor is actually eligible. In some areas, military personnel receive a variable allowance. It may not be appropriate to include this allowance in calculation of income since it is awarded to offset living expenses which exceed those normally incurred.

   For commission workers, support shall be calculated based on minimum draw plus additional commissions.

   For self-employed payors, support shall be calculated based on the last two years' federal and state income tax returns and the quarterly estimates for the current year. A self-employed payor's income should include contributions made to retirement plans, alimony paid, and self-employed health insurance paid; this figure appears on line 22 of the current federal income tax form. Depreciation should be allowed as a deduction only to the extent that it reflects actual decrease in value of an asset. Also, the court shall consider the amount the payor is capable of earning or a net worth approach based on property, life-style, etc. For “clarification of the procedure for determining child support by using the net-worth method,” see Tucker v. Office of Child Support Enforcement, 368 Ark.481, 247 S.W.3d 485 (2007).

   d. Imputed Income. If a payor is unemployed or working below full earning capacity, the court may consider the reasons therefor. If earnings are reduced as a matter of choice and not for reasonable cause, the court may attribute income to a payor up to his or her earning capacity, including consideration of the payor's life-style. Income of at least minimum wage shall be attributed to a payor ordered to pay child support.

   e. Spousal Support. The chart assumes that the custodian of dependent children is employed and is not a dependent. For the purposes of calculating temporary support only, a dependent custodian may be awarded 20% of the net take-home pay for his or her support in addition to any child support awarded. For final hearings, the court should consider all relevant factors, including the chart, in determining the amount of any spousal support to be paid.

   f. Allocation of Dependents for Tax Purposes. Allocation of dependents for tax purposes belongs to the custodial parent pursuant to the Internal Revenue Code. However, the Court shall have the discretion to grant dependency allocation, or any part of it, to the noncustodial parent if the benefit of the allocation to the noncustodial parent substantially outweighs the benefit to the custodial parent.

   g. Health Insurance. In addition to the award of child support, the court order shall provide for the child's health care needs, which normally would include health insurance if available to either parent at a reasonable cost. Health insurance coverage shall be considered reasonable if the cost of dependent coverage does not exceed 5% of the net income of the parent who is to provide such coverage. In applying the 5% standard for the cost of health insurance, the cost of dependent coverage is the difference between self-only and self with dependents or family coverage or the cost of adding the child(ren) to existing coverage.

Section IV. Affidavit of financial means.

  The Affidavit of Financial Means shall be used in all family support matters. The trial court shall require each party to complete and exchange the Affidavit of Financial Means prior to a hearing to establish or modify a support order.

Section V. Deviation considerations.

   a. Relevant Factors. Relevant factors to be considered by the court in determining appropriate amounts of child support shall include:

1. Food;
2. Shelter and utilities;
3. Clothing;
4. Medical expenses;
5. Educational expenses;
6. Dental expenses;
7. Child care (includes nursery, baby sitting, daycare or other expenses for supervision of children necessary for the custodial parent to work);
8. Accustomed standard of living;
9. Recreation;
10. Insurance; 
11. Transportation expenses; and
12. Other income or assets available to support the child from whatever source, including the income of the custodial parent.

 

  b. Additional Factors. Additional factors may warrant adjustments to the child support obligations and shall include:

1. The procurement and maintenance of life insurance, health insurance, dental insurance for the children's benefit;
2. The provision or payment of necessary medical, dental, optical, psychological or counseling expenses of the children (e.g., orthopedic shoes, glasses, braces, etc.);
3. The creation or maintenance of a trust fund for the children;
4. The provision or payment of special education needs or expenses of the child;
5. The provision or payment of day care for a child;
6. The extraordinary time spent with the noncustodial parent, or shared or joint custody arrangements;
7. The support required and given by a payor for dependent children, even in the absence of a court order; and
8. Where the amount of child support indicated by the chart is less than the normal costs of child care, the court shall consider whether a deviation is appropriate.
c. Application of deviation factors. These deviation factors may be considered for both the custodial and the noncustodial parents.

 

Section VI. Abatement of support during extended visitation.

   The guidelines assume that the noncustodial parent will have visitation every other weekend and for several weeks during the summer. Excluding weekend visitation with the custodial parent, in those situations in which a child spends in excess of 14 consecutive days with the noncustodial parent, the court should consider whether an adjustment in child support is appropriate, giving consideration to the fixed obligations of the custodial parent which are attributable to the child, to the increased costs of the noncustodial parent associated with the child's visit, and to the relative incomes of both parents. Any partial abatement or reduction of child support should not exceed 50% of the child support obligation during the extended visitation period of more than 14 consecutive days.

   In situations in which the noncustodial parent has been granted annual visitation in excess of 14 consecutive days, the court may prorate annually the reduction in order to maintain the same amount of monthly child support payments. However, if the noncustodial parent does not exercise said extended visitations during a particular year, the noncustodial parent shall be required to pay the abated amount of child support to the custodial parent.

Section VII. Provisions for payment.

   All orders of child support shall fix the dates on which payments shall be made. All support orders issued shall include a provision for immediate implementation of income withholding, absent a finding of good cause not to require immediate income withholding or a written agreement of the parties incorporated in the order setting forth an alternative agreement as required by Ark. Code Ann. § 9-14-218(a). All income withholding forms shall be made a part of the court file by the payee or his or her attorney. Payment shall be made through the Arkansas Clearinghouse pursuant to Ark. Code Ann. § 9-14-805. Times for payment should ordinarily coincide with the payor's receipt of salary, wages, or other income.

History: Amendment to section (II) by per curiam order February 3, 2011 adding subsection (b); amendment to section (III) by per curiam order October 22, 2015.

(a) General Provision. The requirement of authentication or identification as a condition precedent to admissiblity [admissibility] is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.

(b) Illustrations. By way of illustration only, and not by way of limitation, the following are examples of authentication or identification conforming with the requirements of this rule:

(1) Testimony of witness with knowledge. Testimony of a witness with knowledge that a matter is what it is claimed to be.

(2) Nonexpert opinion on handwriting. Nonexpert opinion as to the genuineness of handwriting, based upon familiarity not acquired for purposes of the litigation.

(3) Comparison by trier or expert witness. Comparison by the trier of fact or by expert witnesses with specimens which have been authenticated.

(4) Distinctive characteristics and the like. Appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances.

(5) Voice identification. Identification of a voice, whether heard firsthand or through mechanical or electronic transmission or recording, by opinion based upon hearing the voice at any time under circumstances connecting it with the alleged speaker.

(6) Telephone conversations. Telephone conversations, by evidence that a call was made to the number assigned at the time by the telephone company to a particular person or business, if (i) in the case of a person, circumstances, including self-identification, show the person answering to be the one called, or (ii) in the case of a business, the call was made to a place of business and the conversation related to business reasonably transacted over the telephone.

(7) Public records or reports. Evidence that a writing authorized by law to be recorded or filed and in fact recorded or filed in a public office, or a purported public record, report, statement, or data compilation, in any form, is from the public office where items of this nature are kept.

(8) Ancient documents or data compilation. Evidence that a document or data compilation, in any form, (i) is in such condition as to create no suspicion concerning its authenticity, (ii) was in a place where it, if authentic, would likely be, and (iii) has been in existence 20 years or more at the time it is offered.

(9) Process or system. Evidence describing a process or system used to produce a result and showing that the process or system produces an accurate result.

(10) Methods provided by statute or rule. Any method or [of] authentication or identification provided by [the Supreme Court of this State or by] a statute or as provided in the Constitution of this State.

Extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to the following:
(1) Domestic Public Documents Under Seal. A document bearing a seal purporting to be that of the United States, or of any state, district, commonwealth, territory, or insular possession thereof, or the Paname [Panama] Canal Zone, or the Trust Territory of the Pacific Islands, or of a political subdivision, department, officer, or agency thereof, and a signature purporting to be an attestation or execution.
(2) Domestic Public Documents Not Under Seal. A document purporting to bear the signature in his official capacity of an officer or employee of any entity included in paragraph (1), having no seal, if a public officer having a seal and having official duties in the district or political subdivision of the officer or employee certifies under seal or that the signer has the official capacity and that the signature is genuine.
(3) Foreign Public Documents. A document purporting to be executed or attested in his official capacity by a person authorized by the laws of a foreign country to make the execution or attestation, and accompanied by a final certification as to the genuineness of the signature and official position (i) of the executing or attesting person, or (ii) of any foreign official whose certificate of genuineness of signature and official position relates to the execution or attestation or is in a chain of certificate of genuineness of signature and official position relating to the execution or attestation. A final certification may be made by a secretary of embassy or legation, consul general, consul, vice consul, or consular agent of the United States or a diplomatic or consular official of the foreign country assigned or accredited to the United States. If reasonable opportunity has been given to all parties to investigate the authenticity and accuracy of official documents, the court may for good cause shown order that they be treated as presumptively authentic without final certification or permit them to be evidenced by an attested summary with or without final certification.
(4) Certified Copies of Public Records. A copy of an official record or report or entry therein, or of a document authorized by law to be recorded or filed and actually recorded or filed in a public office, including data compilations in any form, certified as correct by the custodian or other person authorized to make the certification, by certificate complying with paragraph (1), (2), or (3), or complying with any law of the United States or of this State.
(5) Official Publications. Books, pamphlets, or other publications issued by public authority.
(6) Newspapers and Periodicals. Printed material purporting to be newspapers or periodicals.
(7) Trade Inscriptions and the Like. Inscriptions, signs, tags, or labels purporting to have been affixed in the course of business and indicating ownership, control, or origin.
(8) Acknowledged Documents. Documents accompanied by a certificate of acknowledgement executed in the manner provided by law by a notary public or other officer authorized by law to take acknowledgements.
(9) Commercial Paper and Related Documents. Commercial paper, signatures thereon, and documents relating thereto to the extent provided by general commercial law.
(10) Presumptions Created by Law. Any signature, document, or other matter declared by any law of the United States or of this State, to be presumptively or prima facie genuine or authentic.

The testimony of a subscribing witness is not necessary to authenticate a writing unless required by the laws of the jurisdiction whose laws govern the validity of the writing.

For purposes of this Article the following definitions are applicable:
(1) Writings and Recordings. "Writings" and "recordings" consist of letters, words, sounds, or numbers, or their equivalent, set down by handwriting, typewriting, printing, photostating, photographing, magnetic impulse, mechanical or electronic recording, or other form of data compilation.
(2) Photographs. "Photographs" include still photographs, x-ray films, video tapes, and motion pictures.
(3) Original. An "original" of a writing or recording is the writing or recording itself or any counterpart intended to have the same effect by a person executing or issuing it. An "original" of a photograph includes the negative or any print therefrom. If data are stored in a computer or similar device, any printout or other output readable by sight, shown to reflect the data accurately, is an "original."
(4) Duplicate. A "duplicate" is a counterpart produced by the same impression as the original, or from the same matrix, or by means of photography, including enlargements and miniatures, or by mechanical or electronic re-recording, or by chemical reproduction, or by other equivalent techniques which accurately reproduce the original.

To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules or by [rules adopted by the Supreme Court of this state or by] statute.

A.  The purpose of this rule is to ensure the integrity of the record and to avoid the appearance or potential for deferential treatment of parties to an action. Court reporters serve as officers of the court and both the appearance and existence of impartiality are no less important for officers who take depositions than for judicial officers and other persons whose responsibilities are integral to the administration of justice.

B.  The court reporter taking the deposition, or the firm or any other person or entity with whom such court reporter has a principal and agency relationship or is otherwise associated, shall not enter into a contractual or financial agreement, arrangement or relationship for court reporting services, whether written or oral, with any attorney, party to an action, insurance company, third- party administrator, or any other person or entity that has a financial interest in an action, which gives the appearance that the impartiality and independence of the court reporter has been compromised. Specific examples of arrangements that are prohibited include ones that:

(1) establish rates and terms for court reporting services that extend beyond a single case, action, or proceeding;

(2)  include a court reporter on any list of preferred providers of court reporting services after exchanging information and reaching an agreement specifying the prices or other terms upon which future court reporting services will be provided, whether or not the services actually are ever ordered;

(3) allow the format of the transcript to be manipulated to affect pricing;

(4) require the court reporter taking the deposition to relinquish control of an original deposition transcript and copies of the transcript before it is certified;

(5)  fail to offer comparable services, in both quality and price, to all parties or otherwise require the court reporter to provide special financial terms or other services that are not offered at the same time and on the same terms to all other parties in the litigation;

(6)  allow the court reporter to communicate directly with a party of interest, other than a pro se party, except to provide invoices; and

(7) base the compensation of the court reporter on the outcome or otherwise give the court reporter a financial interest in the action.

C.   These prohibitions do not apply to situations where fees or special services may be negotiated, provided that they are the same for all parties and are negotiated on a case-by-case basis. Also, these prohibitions do not extend to governmental entities, if they are required by law to obtain court reporting services on a long-term basis through competitive bidding.

D.   Any violation of these prohibitions shall be enforceable by the court in which the underlying action is pending. Without otherwise limiting the inherent powers and discretion of the court, a deposition taken in violation of these prohibitions shall constitute a violation of Rule 28(d) of the Arkansas Rules of Civil Procedure (disqualification for interest), and be subject to all sanctions for such a violation under the Rules of Civil Procedure. In addition, any court reporter, firm, attorney, or party that willfully violates these prohibitions may be subject to fine or sanction by the court, and a court reporter may be subject to disciplinary proceedings before the Board of Certified Court Reporter Examiners.

E.      These rules shall be applicable to all court reporting services provided on or after February 21, 2008.

A duplicate is admissible to the same extent as an original unless (1) a genuine question is raised as to the authenticity or continuing effectiveness of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original.

The original is not required, and other evidence of the contents of a writing, recording, or photograph is admissible if:
(1) Originals Lost or Destroyed. All originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith;
(2) Original Not Obtainable. No original can be obtained by any available judicial process or procedure;
(3) Original in Possession of Opponent. At a time when an original was under the control of the party against whom offered, he was put on notice, by the pleadings or otherwise, that the contents would be a subject of proof at the hearing; and he does not produce the original at the hearing; or
(4) Collateral Matters. The writing, recording or photograph is not closely related to a controlling issue.

The contents of an official record, or of a document authorized to be recorded or filed and actually recorded or filed, including data compilations in any form, if otherwise admissible, may be proved by copy, certified as correct in accordance with Rule 902 or testified to be correct by a witness who has compared it with the original. If a copy complying with the foregoing cannot be obtained by the exercise of reasonable diligence, other evidence of the contents may be admitted.

The contents of voluminous writings, recordings, or photographs which cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation. The originals, or duplicates, shall be made available for examination or copying, or both, by other parties at a reasonable time and place. The court may order that they be produced in court.

Contents of writings, recordings, or photographs may be proved by the testimony or deposition of the party against whom offered or by his written admission, without accounting for the nonproduction of the original.

 

Preamble 

   Many persons who come before the courts are partially or completely excluded from full participation in the proceedings due to limited English proficiency or a speech or hearing impairment. It is essential that the resulting communication barrier be removed, as far as possible, so that these persons are placed in the same position as similarly situated persons for whom there is no such barrier.1 As officers of the court, interpreters help assure that such persons may enjoy equal access to justice and that court proceedings and court support services function efficiently and effectively. Interpreters are highly skilled professionals who fulfill an essential role in the administration of justice. 

1. Non-English speaker should be able to understand just as much as an English speaker with the same level of education and intelligence. 

Applicability 

   This code shall guide and be binding upon all persons, agencies and organizations who administer, supervise use, or deliver interpreting services to the judiciary. 

 

Canon 1: Accuracy and Completeness.

Rules text

Interpreters shall render a complete and accurate interpretation or sight translation, without altering, omitting, or adding anything to what is stated or written, and without explanation. 

 

Canon 2: Representation of Qualifications.

Rules text
Interpreters shall accurately and completely represent their certifications, training, and pertinent experience. 

 

Canon 3: Impartiality and Avoidance of Conflict of Interest.

Rules text
Interpreters shall be impartial and unbiased and shall refrain from conduct that may give an appearance of bias. Interpreters shall disclose any real or perceived conflict of interest. 

 

Canon 4. Professional Demeanor.

Rules text
Interpreters shall conduct themselves in a matter consistent with the dignity of the court and shall be as unobtrusive as possible. 

 

Canon 5: Confidentiality.

Rules text
Interpreters shall protect the confidentiality of all privileged and other confidential information. 

 

Canon 6: Restriction of Public Comment.

Rules text
Interpreters shall not publicly discuss, report, or offer an opinion concerning a matter in which they are or have been engaged, even when that information is not privileged or required by law to be confidential. 

 

Canon 7: Scope of Practice.

Rules text
Interpreters shall limit themselves to interpreting or translating, and shall not give legal advice, express personal opinions to individuals for whom they are interpreting, or engage in any other activities which may be construed to constitute a service other than interpreting or translating while serving as an interpreter. 

 

Canon 8: Assessing and Reporting Impediments to Performance.

Rules text
Interpreters shall assess at all times their ability to deliver their services. When interpreters have any reservation about their ability to satisfy an assignment competently, they shall immediately convey that reservation to the appropriate judicial authority. 

Canon 9: Duty to Report Ethical Violations.

Rules text
Interpreters shall report to the proper judicial authority any effort to impede their compliance with any law, any provision of this code, or any other official policy governing court interpreting and legal translating. 

Canon 10: Professional Development.

Rules text
Interpreters shall continually improve their skills and knowledge and advance the profession through activities such as professional training and education, and interaction with colleagues and specialists in related fields.

History. Adopted December 3, 1998

 

a. After the effective date of this Rule, all transcripts taken in court proceedings, depositions, or before any grand jury will be accepted only if they are certified by a court reporter who holds a valid certificate under this Rule. Provided, however, that depositions taken outside this state for use in this state are acceptable if they comply with the Arkansas Rules of Civil Procedure.

b. Disciplinary Authority. An Arkansas certified court reporter is subject to the disciplinary authority of this jurisdiction, regardless of where the court reporter's conduct occurs. A court reporter not certified in this jurisdiction is also subject to the disciplinary authority of this jurisdiction if the court reporter provides or offers to provide any court reporter services in this jurisdiction. A court reporter may be subject to the disciplinary authority of both this jurisdiction and another jurisdiction for the same conduct.

Amended and effective January 15, 2009.

A Certified Court Reporter may administer oaths to witnesses in court proceedings, depositions, grand jury proceedings, or as otherwise authorized by a court of record.

 

Whenever the admissibility of other evidence of contents of writings, recordings, or photographs under these rules depends upon the fulfillment of a condition of fact, the question whether the condition has been fulfilled is ordinarily for the court to determine in accordance with the provisions of Rule 104. However, when an issue is raised whether (1) the asserted writing ever existed, or (2) another writing, recording, or photograph produced at the trial is the original, or (3) other evidence of contents correctly reflects the contents, the issue is for the trier of fact to determine as in the case of other issues of fact.

(a) Translations. A translation of foreign-language documents and recordings, including transcriptions, that is otherwise admissible under the Arkansas Rules of Evidence shall be admissible upon the affidavit of a モqualified translator,ヤ as defined in paragraph (h) of this rule, setting forth the qualifications of the translator, and certifying that the translation is fair, accurate, and complete. This affidavit, along with the translation and the underlying foreign language documents or recordings, shall be served upon all parties at least forty-five (45) days before the date of trial.
(b) Objections. Any party may object to the accuracy of another party's translation by pointing out the specific inaccuracies of the translation and by stating with specificity what the objecting party contends is a fair and accurate translation. This objection shall be served upon all parties at least fifteen (15) days before the date of trial.
(c) Effect of Failure to Object or Offer Conflicting Translation. If no conflicting translation or objection is timely served, the court shall admit a translation submitted under paragraph (a) without need of proof, provided however that the underlying foreign-language documents or recordings are otherwise admissible under the Arkansas Rules of Evidence. Failure to serve a conflicting translation under paragraph (a), or failure to timely and properly object to the accuracy of a translation under paragraph (b), shall preclude a party from attacking or offering evidence contradicting the accuracy of the translation at trial.
(d) Effect of Objections or Conflicting Translations. In the event of conflicting translations under paragraph (a), or if objections to another party's translation are served under paragraph (b), the court shall determine whether there is a genuine issue as to the accuracy of a material part of the translation to be resolved by the trier of fact.
(e) Expert Testimony of Translator. Except as provided in paragraph (c), this rule does not preclude the admission of a translation of foreign-language documents and recordings at trial either by live testimony or by deposition testimony of a qualified translator.
(f) Varying of Time Limits. The court, upon motion of any party and for good cause shown, may enlarge or shorten the time limits set forth in this rule.
(g) Court Appointment. The court, if necessary, may appoint a qualified translator, the reasonable value of whose services shall be taxed as court costs.
(h) Qualified Translator. A モqualified translatorヤ is an interpreter satisfying the requirements established by the Arkansas Supreme Court in In Re: Certification for Foreign Language Interpreters in Arkansas Courts, 338 Ark. Appメx. 827 (1999) and Administrative Order Number 11. A Registry of Interpreters is maintained by the Administrative Office of the Courts.

(a) Except as otherwise provided in subdivision (b), these rules apply to all actions and proceedings in the [courts of this State].
(b) Rules Inapplicable. The rules other than those with respect to privileges do not apply in the following situations:
(1) Preliminary questions of fact. The determination of questions of fact preliminary to admissibility of evidence when the issue is to be determined by the court under Rule 104 (a).
(2) Grand jury. Proceedings before grand juries.
(3) Miscellaneous proceedings. Proceedings for extradition or rendition; [preliminary examination] detention hearing in criminal cases; sentencing, or granting or revoking probation; issuance of warrants for arrest, criminal summonses, and search warrants; and proceedings with respect to release on bail or otherwise.
(4) Contempt proceedings in which the court may act summarily.

These rules shall be known as the Arkansas Rules of Evidence and may be cited as A.R.E. Rule - .

History

History. Acts 1975 (Extended Sess., 1976), No. 1143, ᄃ 1, p. 2799; adopted October 13, 1986

A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

COMMENT:

Legal Knowledge and Skill

[1] In determining whether a lawyer employs the requisite knowledge and skill in a particular matter, relevant factors include the relative complexity and specialized nature of the matter, the lawyer's general experience, the lawyer's training and experience in the field in question, the preparation and study the lawyer is able to give the matter and whether it is feasible to refer the matter to, or associate or consult with, a lawyer of established competence in the field in question. In many instances, the required proficiency is that of a general practitioner. Expertise in a particular field of law may be required in some circumstances.

[2] A lawyer need not necessarily have special training or prior experience to handle legal problems of a type with which the lawyer is unfamiliar. A newly admitted lawyer can be as competent as a practitioner with long experience. Some important legal skills, such as the analysis of precedent, the evaluation of evidence and legal drafting, are required in all legal problems. Perhaps the most fundamental legal skill consists of determining what kind of legal problems a situation may involve, a skill that necessarily transcends any particular specialized knowledge. A lawyer can provide adequate representation in a wholly novel field through necessary study. Competent representation can also be provided through the association of a lawyer of established competence in the field in question.

[3] In an emergency a lawyer may give advice or assistance in a matter in which the lawyer does not have the skill ordinarily required where referral to or consultation or association with another lawyer would be impractical. Even in an emergency, however, assistance should be limited to that reasonably necessary in the circumstances, for ill-considered action under emergency conditions can jeopardize the client's interest.

[4] A lawyer may accept representation where the requisite level of competence can be achieved by reasonable preparation. This applies as well to a lawyer who is appointed as counsel for an unrepresented person. See also Rule 6.2.

Thoroughness and Preparation

[5] Competent handling of a particular matter includes inquiry into and analysis of the factual and legal elements of the problem, and use of methods and procedures meeting the standards of competent practitioners. It also includes adequate preparation. The required attention and preparation are determined in part by what is at stake; major litigation and complex transactions ordinarily require more extensive treatment than matters of lesser complexity and consequence. An agreement between the lawyer and the client regarding the scope of the representation may limit the matters for which the lawyer is responsible. See Rule 1.2(c).

Retaining or Contracting With Other Lawyers

[6]  Before a lawyer retains or contracts with other lawyers outside the lawyer’s own firm to provide or assist in the provision of legal services to a client, the lawyer should ordinarily obtain informed consent from the client and must reasonably believe that the other lawyers’ services will contribute to the competent and ethical representation of the client. See also Rules 1.2 (allocation of authority), 1.4 (communication with client), 1.5(e) (fee sharing), 1.6 (confidentiality), and 5.5(a) (unauthorized practice of law).  The reasonableness of the decision to retain or contract with other lawyers outside the lawyer’s own firm will depend upon the circumstances, including the education, experience and reputation of the nonfirm lawyers; the nature of the services assigned to the nonfirm lawyers; and the legal protections, professional conduct rules, and ethical environments of the jurisdictions in which the services will be performed, particularly relating to confidential information.

[7]  When lawyers from more than one law firm are providing legal services to the client on a particular matter, the lawyers ordinarily should consult with each other and the client about the scope of their respective representations and the allocation of responsibility among them. See Rule 1.2. When making allocations of responsibility in a matter pending before a tribunal, lawyers and parties may have additional obligations that are a matter of law beyond the scope of these Rules.

Maintaining Competence

[8] To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education, and comply with all continuing legal education requirements to which the lawyer is subject.

Addition of two comments by per curiam order June 26, 2014.

(a) Subject to paragraphs (c) and (d), a lawyer shall abide by a client's decisions concerning the objectives of representation, and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued. A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation. A lawyer shall abide by a client's decision whether to settle a matter. In a criminal case, the lawyer shall abide by the client's decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify.

(b) A lawyer's representation of a client, including representation by appointment, does not constitute an endorsement of the client's political, economic, social or moral views or activities.

(c) A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.

     (1) The client's informed consent must be confirmed in writing unless:

            (A) the representation of the client consists solely of a telephone consultation;

(B) the representation is provided by a lawyer employed by a nonprofit legal services program or participating in a program authorized by Rule 6.5 and the lawyer's representation consists solely of providing information and advice or the preparation of legal documents;

            or

           (C) the court appoints the attorney for a limited purpose that is set forth in the appointment order.

     (2) If the client gives informed consent as required by this rule, there shall be a presumption that:

           (A) the representation is limited to the attorney and the services as agreed upon;

           and

           (B) the attorney does not represent the client generally or in matters other than those as agreed upon.

(d) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.

COMMENT:

Scope of Representation Allocation of Authority between Client and Lawyer

[1] Paragraph (a) confers upon the client the ultimate authority to determine the purposes to be served by legal representation, within the limits imposed by law and the lawyer's professional obligations. The decisions specified in paragraph (a), such as whether to settle a civil matter, must also be made by the client. See Rule 1.4(a)(1) for the lawyer's duty to communicate with the client about such decisions. With respect to the means by which the client's objectives are to be pursued, the lawyer shall consult with the client as required by Rule 1.4(a)(2) and may take such action as is impliedly authorized to carry out the representation.

[2] On occasion, however, a lawyer and a client may disagree about the means to be used to accomplish the client's objectives. Clients normally defer to the special knowledge and skill of their lawyer with respect to the means to be used to accomplish their objectives, particularly with respect to technical, legal and tactical matters. Conversely, lawyers usually defer to the client regarding such questions as the expense to be incurred and concern for third persons who might be adversely affected. Because of the varied nature of the matters about which a lawyer and client might disagree and because the actions in question may implicate the interests of a tribunal or other persons, this Rule does not prescribe how such disagreements are to be resolved. Other law, however, may be applicable and should be consulted by the lawyer. The lawyer should also consult with the client and seek a mutually acceptable resolution of the disagreement. If such efforts are unavailing and the lawyer has a fundamental disagreement with the client, the lawyer may withdraw from the representation. See Rule 1.16(b)(4). Conversely, the client may resolve the disagreement by discharging the lawyer. See Rule 1.16(a)(3).

[3] At the outset of a representation, the client may authorize the lawyer to take specific action on the client's behalf without further consultation. Absent a material change in circumstances and subject to Rule 1.4, a lawyer may rely on such an advance authorization. The client may, however, revoke such authority at any time.

[4] In a case in which the client appears to be suffering diminished capacity, the lawyer's duty to abide by the client's decisions is to be guided by reference to Rule 1.14.

Independence from Client's Views or Activities

[5] Legal representation should not be denied to people who are unable to afford legal services, or whose cause is controversial or the subject of popular disapproval. By the same token, representing a client does not constitute approval of the client's views or activities.

[6] The scope of services to be provided by a lawyer may be limited by agreement with the client or by the terms under which the lawyer's services are made available to the client. When a lawyer has been retained by an insurer to represent an insured, for example, the representation may be limited to matters related to the insurance coverage. A limited representation may be appropriate because the client has limited objectives for the representation. In addition, the terms upon which representation is undertaken may exclude specific means that might otherwise be used to accomplish the client's objectives. Such limitations may exclude actions that the client thinks are too costly or that the lawyer regards as repugnant or imprudent.

[7] Although this Rule affords the lawyer and client substantial latitude to limit the representation, the limitation must be reasonable under the circumstances. If, for example, a client's objective is limited to securing general information about the law the client needs in order to handle a common and typically uncomplicated legal problem, the lawyer and client may agree that the lawyer's services will be limited to a brief telephone consultation. Such a limitation, however, would not be reasonable if the time allotted was not sufficient to yield advice upon which the client could rely. Although an agreement for a limited representation does not exempt a lawyer from the duty to provide competent representation, the limitation is a factor to be considered when determining the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. See Rule 1.1.

[8] All agreements concerning a lawyer's representation of a client must accord with the Rules of Professional Conduct and other law. See, e.g., Rules 1.1, 1.8 and 5.6.

Criminal, Fraudulent and Prohibited Transactions

[9] Paragraph (d) prohibits a lawyer from knowingly counseling or assisting a client to commit a crime or fraud. This prohibition, however, does not preclude the lawyer from giving an honest opinion about the actual consequences that appear likely to result from a client's conduct. Nor does the fact that a client uses advice in a course of action that is criminal or fraudulent does not, of itself, make a lawyer a party to the course of action. There is a critical distinction between presenting an analysis of legal aspects of questionable conduct and recommending the means by which a crime or fraud might be committed with impunity.

[10] When the client's course of action has already begun and is continuing, the lawyer's responsibility is especially delicate. The lawyer is required to avoid assisting the client, for example, by drafting or delivering documents that the lawyer knows are fraudulent or by suggesting how the wrongdoing might be concealed. A lawyer may not continue assisting a client in conduct that the lawyer originally supposed was legally proper but then discovers is criminal or fraudulent. The lawyer must, therefore, withdraw from the representation of the client in the matter. See Rule 1.16(a). In some cases, withdrawal alone might be insufficient. It may be necessary for the lawyer to give notice of the fact of withdrawal and to disaffirm any opinion, document, affirmation or the like. See Rule 4.1.

[11] Where the client is a fiduciary, the lawyer may be charged with special obligations in dealings with a beneficiary.

[12] Paragraph (d) applies whether or not the defrauded party is a party to the transaction. Hence, a lawyer must not participate in a transaction to effectuate criminal or fraudulent avoidance of tax liability. Paragraph (d) does not preclude undertaking a criminal defense incident to a general retainer for legal services to a lawful enterprise. The last clause of paragraph (d) recognizes that determining the validity or interpretation of a statute or regulation may require a course of action involving disobedience of the statute or regulation or of the interpretation placed upon it by governmental authorities.

[13] If a lawyer comes to know or reasonably should know that a client expects assistance not permitted by the Rules of Professional Conduct or other law or if the lawyer intends to act contrary to the client's instructions, the lawyer must consult with the client regarding the limitations on the lawyer's conduct. See Rule 1.4(a)(5).

Amended and effective May 12, 2016.

A lawyer shall act with reasonable diligence and promptness in representing a client

COMMENT:

[1] A lawyer should pursue a matter on behalf of a client despite opposition, obstruction or personal inconvenience to the lawyer, and take whatever lawful and ethical measures are required to vindicate a client's cause or endeavor. A lawyer must also act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client's behalf. A lawyer is not bound, however, to press for every advantage that might be realized for a client. For example, a lawyer may have authority to exercise professional discretion in determining the means by which a matter should be pursued. See Rule 1.2. The lawyer's duty to act with reasonable diligence does not require the use of offensive tactics or preclude the treating of all persons involved in the legal process with courtesy and respect.

[2] A lawyer's work load must be controlled so that each matter can be handled competently.

[3] Perhaps no professional shortcoming is more widely resented than procrastination. A client's interests often can be adversely affected by the passage of time or the change of conditions; in extreme instances, as when a lawyer overlooks a statute of limitations, the client's legal position may be destroyed. Even when the client's interests are not affected in substance, however, unreasonable delay can cause a client needless anxiety and undermine confidence in the lawyer's trustworthiness. A lawyer's duty to act with reasonable promptness, however, does not preclude the lawyer from agreeing to a reasonable request for a postponement that will not prejudice the lawyer's client.

[4] Unless the relationship is terminated as provided in Rule 1.16, a lawyer should carry through to conclusion all matters undertaken for a client. If a lawyer's employment is limited to a specific matter, the relationship terminates when the matter has been resolved. If a lawyer has served a client over a substantial period in a variety of matters, the client sometimes may assume that the lawyer will continue to serve on a continuing basis unless the lawyer gives notice of withdrawal. Doubt about whether a client-lawyer relationship still exists should be clarified by the lawyer, preferably in writing, so that the client will not mistakenly suppose the lawyer is looking after the client's affairs when the lawyer has ceased to do so. For example, if a lawyer has handled a judicial or administrative proceeding that produced a result adverse to the client and the lawyer and the client have not agreed that the lawyer will handle the matter on appeal, the lawyer must consult with the client about the possibility of appeal before relinquishing responsibility for the matter. See Rule 1.4(a)(2). Whether the lawyer is obligated to prosecute the appeal for the client depends on the scope of the representation the lawyer has agreed to provide to the client. See Rule 1.2.

[5] To prevent neglect of client matters in the event of a sole practitioner's death or disability, the duty of diligence may require that each sole practitioner prepare a plan that designates another competent lawyer to review client files, notify each client of the lawyer's death or disability, and determine whether there is a need for immediate protective action.

(a) A lawyer shall:
(1) promptly inform the client of any decision or circumstance with respect to which the client's informed consent, as defined in Rule 1.0(e), is required by these Rules.
(2) reasonably consult with the client about the means by which the client's objectives are to be accomplished;
(3) keep the client reasonably informed about the status of the matter;
(4) promptly comply with reasonable requests for information; and
(5) consult when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law.

(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

(c) A lawyer shall promptly notify a client in writing of the actual or constructive receipt by the attorney of a check or other payment received from an insurance company, an opposing party, or from any other source which constitutes the payment of a settlement, judgment, or other monies to which the client is entitled.

COMMENT:

[1] Reasonable communication between the lawyer and the client is necessary for the client effectively to participate in the representation.

Communicating with Client

[2] If these Rules require that a particular decision about the representation be made by the client, paragraph (a)(1) requires that the lawyer promptly consult with and secure the client's consent prior to taking action unless prior discussions with the client have resolved what action the client wants the lawyer to take. For example, a lawyer who receives from opposing counsel an offer of settlement in a civil controversy or a proffered plea bargain in a criminal case must promptly inform the client of its substance unless the client has previously indicated that the proposal will be acceptable or unacceptable or has authorized the lawyer to accept or to reject the offer. See Rule 1.2(a).

[3] Paragraph (a)(2) requires the lawyer to reasonably consult with the client about the means to be used to accomplish the client's objectives. In some situations — depending on both the importance of the action under consideration and the feasibility of consulting with the client — this duty will require consultation prior to taking action. In other circumstances, such as during a trial when an immediate decision must be made, the exigency of the situation may require the lawyer to act without prior consultation. In such cases the lawyer must nonetheless act reasonably to inform the client of actions the lawyer has taken on the client's behalf. Additionally, paragraph (a)(3) requires that the lawyer keep the client reasonably informed about the status of the matter, such as significant developments affecting the timing or the substance of the representation.

[4] A lawyer's regular communication with clients will minimize the occasions on which a client will need to request information concerning the representation. When a client makes a reasonable request for information, however, paragraph (a)(4) requires prompt compliance with the request, or if a prompt response is not feasible, that the lawyer, or a member of the lawyer's staff, acknowledge receipt of the request and advise the client when a response may be expected. A lawyer should promptly respond to or acknowledge client communications.

Explaining Matters

[5] The client should have sufficient information to participate intelligently in decisions concerning the objectives of the representation and the means by which they are to be pursued, to the extent the client is willing and able to do so. Adequacy of communication depends in part on the kind of advice or assistance that is involved. For example, when there is time to explain a proposal made in a negotiation, the lawyer should review all important provisions with the client before proceeding to an agreement. In litigation a lawyer should explain the general strategy and prospects of success and ordinarily should consult the client on tactics that are likely to result in significant expense or to injure or coerce others. On the other hand, a lawyer ordinarily will not be expected to describe trial or negotiation strategy in detail. The guiding principle is that the lawyer should fulfill reasonable client expectations for information consistent with the duty to act in the client's best interests, and the client's overall requirements as to the character of representation. In certain circumstances, such as when a lawyer asks a client to consent to a representation affected by a conflict of interest, the client must give informed consent, as defined in Rule 1.0(e).

[6] Ordinarily, the information to be provided is that appropriate for a client who is a comprehending and responsible adult. However, fully informing the client according to this standard may be impracticable, for example, where the client is a child or suffers from diminished capacity. See Rule 1.14. When the client is an organization or group, it is often impossible or inappropriate to inform every one of its members about its legal affairs; ordinarily, the lawyer should address communications to the appropriate officials of the organization. See Rule 1.13. Where many routine matters are involved, a system of limited or occasional reporting may be arranged with the client. Practical exigency may also require a lawyer to act for a client without prior consultation.

Withholding Information

[7] In some circumstances, a lawyer may be justified in delaying transmission of information when the client would be likely to react imprudently to an immediate communication. Thus, a lawyer might withhold a psychiatric diagnosis of a client when the examining psychiatrist indicates that disclosure would harm the client. A lawyer may not withhold information to serve the lawyer's own interest or convenience or the interests or convenience of another person. Rules or court orders governing litigation may provide that information supplied to a lawyer may not be disclosed to the client. Rule 3.4(c) directs compliance with such rules or orders.

Comment [4] amended and effective by per curiam order June 26, 2014.

(a) A lawyer's fee shall be reasonable. A lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses. The factors to be considered in determining the reasonableness of a fee include the following:
(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
(2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
(3) the fee customarily charged in the locality for similar legal services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or by the circumstances;
(6) the nature and length of the professional relationship with the client;
(7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and
(8) whether the fee is fixed or contingent.
(b) The scope of the representation and the basis or rate of the fee and expenses for which the client will be responsible shall be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation, except when the lawyer will charge a regularly represented client on the same basis or rate. Any changes in the basis or rate of the fee or expenses shall also be communicated to the client.
(c) A fee may be contingent on the outcome of the matter for which the service is rendered, except in a matter in which a contingent fee is prohibited by paragraph (d) or other law. A contingent fee agreement shall be in writing and shall state the method by which the fee is to be determined, including the percentage or percentages that shall accrue to the lawyer in the event of settlement, trial or appeal, litigation and other expenses to be deducted from the recovery, and whether such expenses are to be deducted before or after the contingent fee is calculated. The agreement must clearly notify the client of any expenses for which the client will be liable whether or not the client is the prevailing party. Upon conclusion of a contingent fee matter, the lawyer shall provide the client with a written statement stating the outcome of the matter and, if there is a recovery, showing the remittance to the client and the method of its determination.
(d) A lawyer shall not enter into an arrangement for, charge, or collect:
(1) any fee in a domestic relations matter, the payment or amount of which is contingent upon the securing of a divorce or upon the amount of alimony or support, or property settlement in lieu thereof. Provided, however, after a final order or decree is entered a lawyer may enter into a contingent fee contract for collection of payments which are due pursuant to such decree or order; or
(2) a contingent fee for representing a defendant in a criminal case.
(e) A division of fee between lawyers who are not in the same firm may be made only if:
(1) the division is in proportion to the services performed by each lawyer or, by written agreement with the client, each lawyer assumes joint responsibility for the representation;
(2) the client is advised of and does not object to the participation of all the lawyers involved; and
(3) the total fee is reasonable.

COMMENT:

Reasonableness of Fee and Expenses

[1A] This rule is designed to prohibit only unreasonably high fees and is not to be construed as prohibiting free services, reduced fees or pro bono legal services.

[1] Paragraph (a) requires that lawyers charge fees that are reasonable under the circumstances. The factors specified in (1) through (8) are not exclusive. Nor will each factor be relevant in each instance. Paragraph (a) also requires that expenses for which the client will be charged must be reasonable. A lawyer may seek reimbursement for the cost of services performed in-house, such as copying, or for other expenses incurred in-house, such as telephone charges, either by charging a reasonable amount to which the client has agreed in advance or by charging an amount that reasonably reflects the cost incurred by the lawyer.

Basis or Rate of Fee

[2] When the lawyer has regularly represented a client, they ordinarily will have evolved an understanding concerning the basis or rate of the fee and the expenses for which the client will be responsible. In a new client-lawyer relationship, however, an understanding as to fees and expenses must be promptly established. Generally, it is desirable to furnish the client with at least a simple memorandum or copy of the lawyer's customary fee arrangements that states the general nature of the legal services to be provided, the basis, rate or total amount of the fee and whether and to what extent the client will be responsible for any costs, expenses or disbursements in the course of the representation. A written statement concerning the fee terms of the engagement reduces the possibility of misunderstanding.

[3] Contingent fees, like any other fees, are subject to the reasonableness standard of paragraph (a) of this Rule. In determining whether a particular contingent fee is reasonable, or whether it is reasonable to charge any form of contingent fee, a lawyer must consider the factors that are relevant under the circumstances. Applicable law may impose limitations on contingent fees, such as a ceiling on the percentage allowable, or may require a lawyer to offer clients an alternative basis for the fee. When there is doubt whether a contingent fee is consistent with the client's best interest, the lawyer should offer the client alternative bases for the fee and explain their implications, Applicable law also may apply to situations other than a contingent fee, for example, government regulations regarding fees in certain tax matters.

Terms of Payment

[4] A lawyer may require advance payment of a fee, but is obliged to return any unearned portion. See Rule 1.16(d). A lawyer may accept property in payment for services, such as an ownership interest in an enterprise, providing this does not involve acquisition of a proprietary interest in the cause of action or subject matter of the litigation contrary to Rule 1.8(i). However, a fee paid in property instead of money may be subject to the requirements of Rule 1.8(a) because such fees often have the essential qualities of a business transaction with the client.

[5] An agreement may not be made whose terms might induce the lawyer improperly to curtail services for the client or perform them in a way contrary to the client's interest. For example, a lawyer should not enter into an agreement whereby services are to be provided only up to a stated amount when it is foreseeable that more extensive services probably will be required, unless the situation is adequately explained to the client. Otherwise, the client might have to bargain for further assistance in the midst of a proceeding or transaction. However, it is proper to define the extent of services in light of the client's ability to pay. A lawyer should not exploit a fee arrangement based primarily on hourly charges by using wasteful procedures.

Prohibited Contingent Fees

[6] Paragraph (d) prohibits a lawyer from charging a contingent fee in a domestic relations matter when payment is contingent upon the securing of a divorce or upon the amount of alimony or support or property settlement to be obtained. This provision does not preclude a contract for a contingent fee for legal representation in connection with the recovery of post-judgment balances due under support, alimony or other financial orders because such contracts do not implicate the same policy concerns.

Division of Fee

[7] A division of fee is a single billing to a client covering the fee of two or more lawyers who are not in the same firm. A division of fee facilitates association of more than one lawyer in a matter in which neither alone could serve the client as well, and most often is used when the fee is contingent and the division is between a referring lawyer and a trial specialist. Paragraph (e) permits the lawyers to divide a fee either on the basis of the proportion of services they render or if each lawyer assumes responsibility for the representation as a whole. In addition, the client must agree to the association of other counsel, and the agreement must be confirmed in writing. Contingent fee agreements must be in a writing signed by the client and must otherwise comply with paragraph (c) of this Rule. Joint responsibility for the representation entails financial and ethical responsibility for the representation as if the lawyers were associated in a partnership. A lawyer should only refer a matter to a lawyer whom the referring lawyer reasonably believes is competent to handle the matter. See Rule 1.1.

[8] Paragraph (e) does not prohibit or regulate division of fees to be received in the future for work done when lawyers were previously associated in a law firm.

Disputes over Fees

[9] If a procedure has been established for resolution of fee disputes, such as an arbitration or mediation procedure established by the bar, the lawyer must comply with the procedure when it is mandatory, and, even when it is voluntary, the lawyer should conscientiously consider submitting to it. Law may prescribe a procedure for determining a lawyer's fee, for example, in representation of an executor or administrator, a class or a person entitled to a reasonable fee as part of the measure of damages. The lawyer entitled to such a fee and a lawyer representing another party concerned with the fee should comply with the prescribed procedure.

(a) A lawyer shall not reveal information relating to representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).

(b) A lawyer may reveal such information to the extent the lawyer reasonably believes necessary:

(1) to prevent the commission of a criminal act;

(2) to prevent the client from committing a fraud that is reasonably certain to result in injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer's services;

(3) to prevent, mitigate or rectify injury to the financial interest or property of another that is reasonably certain to result or has resulted from the client's commission of a crime or fraud in furtherance of which the client has used the lawyer's services;

(4) to secure legal advice about the lawyer's compliance with these Rules;

(5) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client or,

(6) to comply with other law or a court order; or

(7) to detect and resolve conflicts of interest between lawyers in different firms, but only if the revealed information would not compromise the attorney-client privilege or otherwise prejudice the client.

(c) A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.

(d) Neither this Rule nor Rule 1.8(b) nor Rule 1.16(d) prevents the lawyer from giving notice of the fact of withdrawal, and the lawyer may also withdraw or disaffirm any opinion, document, affirmation or the like.

COMMENT:

[1A] The lawyer is part of a judicial system charged with upholding the law. One of the lawyer's functions is to advise clients so that they avoid any violation of the law in the proper exercise of their rights. The observance of the ethical obligation of a lawyer to hold inviolate confidential information of the client not only facilitates the full development of facts essential to proper representation of the client but also encourages people to seek early legal assistance.

[1] This Rule governs the disclosure by a lawyer of information relating to the representation of a client during the lawyer's representation of the client. See Rule 1.18 for the lawyer's duties with respect to information provided to the lawyer by a prospective client, Rule 1.9(c)(2) for the lawyer's duty not to reveal information relating to the lawyer's prior representation of a former client and Rules 1.8(b) and 1.9(c)(1) for the lawyer's duties with respect to the use of such information to the disadvantage of clients and former clients.

[2] A fundamental principle in the client-lawyer relationship is that, in the absence of the client's informed consent, the lawyer must not reveal information relating to the representation. See Rule 1.0(e) for the definition of informed consent. This contributes to the trust that is the hallmark of the client-lawyer relationship. The client is thereby encouraged to seek legal assistance and to communicate fully and frankly with the lawyer even as to embarrassing or legally damaging subject matter. The lawyer needs this information to represent the client effectively and, if necessary, to advise the client to refrain from wrongful conduct. Almost without exception, clients come to lawyers in order to determine their rights and what is, in the complex of laws and regulations, deemed to be legal and correct. Based upon experience, lawyers know that almost all clients follow the advice given, and the law is upheld.

[3] The principle of client-lawyer confidentiality is given effect by related bodies of law: the attorney-client privilege, the work product doctrine and the rule of confidentiality established in professional ethics. The attorney-client privilege and work-product doctrine apply in judicial and other proceedings in which a lawyer may be called as a witness or otherwise required to produce evidence concerning a client. The rule of client-lawyer confidentiality applies in situations other than those where evidence is sought from the lawyer through compulsion of law. The confidentiality rule, for example, applies not only to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source. A lawyer may not disclose such information except as authorized or required by the Rules of Professional Conduct or other law. See also Scope.

[4] Paragraph (a) prohibits a lawyer from revealing information relating to the representation of a client. This prohibition also applies to disclosures by a lawyer that do not in themselves reveal protected information but could reasonably lead to the discovery of such information by a third person. A lawyer's use of a hypothetical to discuss issues relating to the representation is permissible so long as there is no reasonable likelihood that the listener will be able to ascertain the identity of the client or the situation involved.

Authorized Disclosure

[5] Except to the extent that the client's instructions or special circumstances limit that authority, a lawyer is impliedly authorized to make disclosures about a client when appropriate in carrying out the representation. In some situations, for example, a lawyer may be impliedly authorized to admit a fact that cannot properly be disputed or to make a disclosure that facilitates a satisfactory conclusion to a matter. Lawyers in a firm may, in the course of the firm's practice, disclose to each other information relating to a client of the firm, unless the client has instructed that particular information be confined to specified lawyers.

Disclosure Adverse to Client

[6] Although the public interest is usually best served by a strict rule requiring lawyers to preserve the confidentiality of information relating to the representation of their clients, the confidentiality rule is subject to limited exceptions. For instance, in becoming privy to information about a client, a lawyer may foresee that the client or a third person intends to commit a crime and may reveal that information to prevent the crime. The overriding value of life and physical integrity permits disclosure reasonably necessary to prevent death or bodily harm. Other future harms as a result of a criminal act, such as fraud, damage to economic interests, or loss of property which are reasonably certain to occur, also permit disclosure if necessary to eliminate the threat. Several situations must be distinguished. (a) First, the lawyer may not counsel or assist a client in conduct that is criminal or fraudulent. See Rule 1.2(d). Similarly, a lawyer has a duty under Rule 3.3(a)(3) not to use false evidence. This duty is essentially a special instance of the duty prescribed in Rule 1.2(d) to avoid assisting a client in criminal or fraudulent conduct. (b) Second, the lawyer may have been innocently involved in past conduct by the client that was criminal or fraudulent. In such a situation the lawyer has not violated Rule 1.2(d),because to "counsel or assist" criminal or fraudulent conduct requires knowing that the conduct is of that character. (c) Third, the lawyer may learn that a client, or a third person, intends prospective conduct that is criminal. As stated in paragraph (b)(1), the lawyer has professional discretion to reveal information in order to prevent the crime which the lawyer reasonably believes is intended by the client or a third person. It is, of course, sometimes difficult for a lawyer to "know" when such a purpose will actually be carried out, for the client or the third person may have a change of mind. (d) The lawyer's exercise of discretion requires consideration of such factors as the nature of the lawyer's relationship with the client and with those who might be injured by the client, the lawyer's own involvement in the transaction and factors that may extenuate the conduct in question. Where practical, the lawyer should seek to persuade the client to take suitable action. In any case, a disclosure adverse to the client's interest should be no greater than the lawyer reasonably believes necessary to the purpose. A lawyer's decision not to take preventive action permitted by paragraph (b)(1), (b)(2) or (b)(3) does not violate this Rule.

[7] Paragraph (b)(2) is a limited exception to the rule of confidentiality that permits the lawyer to reveal information to the extent necessary to enable affected persons or appropriate authorities to prevent the client from committing a fraud, as defined in Rule 1.0 (d), that is reasonably certain to result in injury to the financial or property interests of another and in furtherance of which the client has used or is using the lawyer's services. Such a serious abuse of the client-lawyer relationship by the client forfeits the protection of this Rule. The client can, of course, prevent such disclosure by refraining from the wrongful conduct. Although paragraph (b)(2) does not require the lawyer to reveal the client's misconduct the lawyer may not counsel or assist the client in conduct the lawyer know is fraudulent. See Rule 1.2 (d). See also Rule1.16 with respect to the lawyer's obligation or right to withdraw from the representation of the client in such circumstances, and Rule 1.13 ( c), which permits the lawyer, where the client is an organization, to reveal information relating to the representation in limited circumstances.

[8] Paragraph (b)(3) addresses the situation in which the lawyer does not learn of the client's crime or fraud until after it has been consummated. Although the client no longer has the option of preventing disclosure by refraining from the wrongful conduct, there will be situations in which the loss suffered by the affected person can be prevented, rectified or mitigated. In such situations, the lawyer may disclose information relating to the representation to the extent necessary to enable the affected person to prevent or mitigate reasonably certain losses or to attempt to recoup their losses. Paragraph (b)(3) does not apply when a person who has committed a crime or fraud thereafter employs a lawyer for representation concerning that offense.

[9] A lawyer's confidentiality obligations do not preclude a lawyer from securing confidential legal advice about the lawyer's personal responsibility to comply with these Rules. In most situations, disclosing information to secure such advice will be impliedly authorized for the lawyer to carry out the representation. Even when the disclosure is not impliedly authorized, paragraph (b)(4) permits such disclosure because of the importance of a lawyer's compliance with the Rules of Professional Conduct.

[10] Where a legal claim or disciplinary charge alleges complicity of the lawyer in a client's conduct or other misconduct of the lawyer involving representation of the client, the lawyer may respond to the extent the lawyer reasonably believes necessary to establish a defense. The same is true with respect to a claim involving the conduct or representation of a former client. Such a charge can arise in a civil, criminal, disciplinary or other proceeding and can be based on a wrong allegedly committed by the lawyer against the client or on a wrong alleged by a third person, for example, a person claiming to have been defrauded by the lawyer and client acting together. The lawyer's right to respond arises when an assertion of such complicity has been made. Paragraph (b)(5) does not require the lawyer to await the commencement of an action or proceeding that charges such complicity, so that the defense may be established by responding directly to a third party who has made such an assertion. The right to defend also applies, of course, where a proceeding has been commenced.

[11] A lawyer entitled to a fee is permitted by paragraph (b)(5) to prove the services rendered in an action to collect it. This aspect of the rule expresses the principle that the beneficiary of a fiduciary relationship may not exploit it to the detriment of the fiduciary.

[12] Other law may require that a lawyer disclose information about a client. Whether such a law supersedes Rule 1.6 is a question of law beyond the scope of these Rules. When disclosure of information relating to the representation appears to be required by other law, the lawyer must discuss the matter with the client to the extent required by Rule 1.4. If, however, the other law supersedes this Rule and requires disclosure, paragraph (b)(6) permits the lawyer to make such disclosures as are necessary to comply with the law.

[13] Paragraph (b)(7)  recognizes that lawyers in different firms may need to disclose limited information to each other to detect and resolve conflicts of interest, such as when a lawyer is considering an association with another firm, two or more firms are considering a merger, or a lawyer is considering the purchase of a law practice. See Rule 1.17, Comment [7]. Under these circumstances, lawyers and law firms are permitted to disclose limited information, but only once substantive discussions regarding the new relationship have occurred. Any such disclosure should ordinarily include no more than the identity of the persons and entities involved in a matter, a brief summary of the general issues involved, and information about whether the matter has terminated. Even this limited information, however, should be disclosed only to the extent reasonably necessary to detect and resolve conflicts of interest that might arise from the possible new relationship. Moreover, the disclosure of any information is prohibited if it would compromise the attorney-client privilege or otherwise prejudice the client (e.g., the fact that a corporate client is seeking advice on a corporate takeover that has not been publicly announced; that a person has consulted a lawyer about the possibility of divorce before the person’s intentions are known to the person’s spouse; or that a person has consulted a lawyer about a criminal investigation that has not led to a public charge). Under those circumstances, paragraph (a) prohibits disclosure unless the client or former client gives informed consent. A lawyer’s fiduciary duty to the lawyer’s firm may also govern a lawyer’s conduct when exploring an association with another firm and is beyond the scope of these Rules.

 

[14] Any information disclosed pursuant to paragraph (b)(7) may be used or further disclosed only to the extent necessary to detect and resolve conflicts of interest. Paragraph (b)(7) does not restrict the use of information acquired by means independent of any disclosure pursuant to paragraph (b)(7). Paragraph (b)(7) also does not affect the disclosure of information within a law firm when the disclosure is otherwise authorized, see Comment [5], such as when a lawyer in a firm discloses information to another lawyer in the same firm to detect and resolve conflicts of interest that could arise in connection with undertaking a new representation.

[15] A lawyer may be ordered to reveal information relating to the representation of a client by a court or by another tribunal or governmental entity claiming authority pursuant to other law to compel the disclosure. Absent informed consent of the client to do otherwise, the lawyer should assert on behalf of the client all nonfrivolous claims that the order is not authorized by other law or that the information sought is protected against disclosure by the attorney-client privilege or other applicable law. In the event of an adverse ruling, the lawyer must consult with the client about the possibility of appeal to the extent required by Rule 1.4. Unless review is sought, however, paragraph (b)(6) permits the lawyer to comply with the court's order.

[16] Paragraph (b) permits disclosure only to the extent the lawyer reasonably believes the disclosure is necessary to accomplish one of the purposes specified. Where practicable, the lawyer should first seek to persuade the client to take suitable action to obviate the need for disclosure. In any case, a disclosure adverse to the client's interest should be no greater than the lawyer reasonably believes necessary to accomplish the purpose. If the disclosure will be made in connection with a judicial proceeding, the disclosure should be made in a manner that limits access to the information to the tribunal or other persons having a need to know it and appropriate protective orders or other arrangements should be sought by the lawyer to the fullest extent practicable.

[17] Paragraph (b) permits but does not require the disclosure of information relating to a client's representation to accomplish the purposes specified in paragraphs (b)(1) through (b)(6). In exercising the discretion conferred by this Rule, the lawyer may consider such factors as the nature of the lawyer's relationship with the client and with those who might be injured by the client, the lawyer's own involvement in the transaction and factors that may extenuate the conduct in question. A lawyer's decision not to disclose as permitted by paragraph (b) does not violate this Rule. Disclosure may be required, however, by other Rules. Some Rules require disclosure only if such disclosure would be permitted by paragraph (b). See Rules 1.2(d), 4.1(b), 8.1 and 8.3. Rule 3.3, on the other hand, requires disclosure in some circumstances regardless of whether such disclosure is permitted by this Rule. See Rule 3.3(c).

Acting Competently to Preserve Confidentiality

[18] Paragraph (c) requires a lawyer to act competently to safeguard information relating to the representation of a client against unauthorized access by third parties and against inadvertent or unauthorized disclosure by the lawyer or other persons who are participating in the representation of the client or who are subject to the lawyer’s supervision. See Rules 1.1, 5.1 and 5.3. The unauthorized access to, or the inadvertent or unauthorized disclosure of, information relating to the representation of a client does not constitute a violation of paragraph (c) if the lawyer has made reasonable efforts to prevent the access or disclosure. Factors to be considered in determining the reasonableness of the lawyer’s efforts include, but are not limited to, the sensitivity of the information, the likelihood of disclosure if additional safeguards are not employed, the cost of employing additional safeguards, the difficulty of implementing the safeguards, and the extent to which the safeguards adversely affect the lawyer’s ability to represent clients (e.g., by making a device or important piece of software excessively difficult to use). A client may require the lawyer to implement special security measures not required by this Rule or may give informed consent to forgo security measures that would otherwise be required by this Rule. Whether a lawyer may be required to take additional steps to safeguard a client’s information in order to comply with other law, such as state and federal laws that govern data privacy or that impose notification requirements upon the loss of, or unauthorized access to, electronic information, is beyond the scope of these Rules. For a lawyer’s duties when sharing information with nonlawyers outside the lawyer’s own firm, see Rule 5.3, Comments [3]-[4].

[19] When transmitting a communication that includes information relating to the representation of a client, the lawyer must take reasonable precautions to prevent the information from coming into the hands of unintended recipients. This duty, however, does not require that the lawyer use special security measures if the method of communication affords a reasonable expectation of privacy. Special circumstances, however, may warrant special precautions. Factors to be considered in determining the reasonableness of the lawyer's expectation of confidentiality include the sensitivity of the information and the extent to which the privacy of the communication is protected by law or by a confidentiality agreement. A client may require the lawyer to implement special security measures not required by this Rule or may give informed consent to the use of a means of communication that would otherwise be prohibited by this Rule.Whether a lawyer may be required to take additional steps in order to comply with other law, such as state and federal that govern data privacy, is beyond the scope of these Rules.

Former Client

[20] The duty of confidentiality continues after the client-lawyer relationship has terminated. See Rule 1.9(c)(2). See Rule 1.9(c)(1) for the prohibition against using such information to the disadvantage of the former client.

 

Addition of provisions (b)(7) and (c); addition of comments [13], [14]& [18]--effective by per curiam order June 26, 2014.

 

The following official court forms adopted by the Arkansas Supreme Court are found in the publications noted below and may also be found at the Arkansas Judiciary website: (https://arcourts.gov).

1. Probate Forms: The Supreme Court, pursuant to Ark. Code Ann. section 28-1-114 and its constitutional and inherent powers to regulate procedure in the courts, has adopted thirty-three probate forms. These official forms supersede all earlier versions. The forms are published in 336 Ark. App'x [603] (1999).

2. Court Forms for Orders of Protection. The Supreme Court, pursuant to Amendment 80 of the Arkansas Constitution, has adopted the following forms to be used in order-of-protection cases: (a) Ex Parte Order of Protection, (b) Notice of Hearing on Petition for Order of Protection, and (c) Final Order of Protection. The Administrative Office of the Courts in collaboration with the Arkansas Judicial Council and others is authorized to prepare instructions to be used with these documents and to make technical corrections from time to time to the documents. These forms are published in 2010 Ark. 442.

[The forms are available at  https://www.arcourts.gov/forms-and-publications]

 

 

Reporter's Notes to Form 12: See Ark. Code Ann. § 28-40-111. This form shall be used if no will was admitted to probate.

Addition to Reporter's Notes, 2014 Amendment:  Official probate form 12 was revised to conform with substantive law changes.

Reporter's Notes to Form 13: See Ark. Code Ann. § 28-40-111. This form shall be used if a will was admitted to probate and a personal representative was appointed. The language in parentheses in the first paragraph should be substituted for the language immediately preceding it if the personal representative was not nominated in the decedent's will. The form to be used when a will is probated but no personal representative appointed may be found in Ark. Code Ann. § 25-40-111(c)(3). Because such proceedings are infrequent, no official form was adopted.

Addition to Reporter's Notes, 2014 Amendment: Official probate form 13 was revised to conform with substantive law changes.

 

Reporter's Notes to Form 16 as Amended in 2014 to Conform with Substantive Law Changes: See Ark. Code Ann. §§ 28-39-101 to -104. The total value under "Itemized Description of Property" is limited to $2,000 as against creditors and $4,000 as against distributees. If minor children are not the children of the surviving spouse, the petition should be revised to reflect that the allowance vests in the surviving spouse to the extent of one-half thereof, and the remainder vests in the decedent’s minor children in equal shares. Award for sustenance for a period of two months after death of decedent shall be a reasonable amount, not exceeding $1,000 in the aggregate. Ark. Code Ann. § 28-39-101(c). Beneath the signature line, the capacity of the petitioner should be identified (e.g., as the personal representative, the surviving spouse, or the guardian of minor children). If the petitioner is the guardian of minor children, the language in parentheses should be substituted for the language immediately preceding it.

History

Amended and republished by per curiam order November 11, 2010; amended March 20, 2014, effective July 1, 2014.

(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:

(1) the representation of one client will be directly adverse to another client; or

(2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer,

(b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if:

(1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;

(2) the representation is not prohibited by law;

(3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and

(4) each affected client gives informed consent, confirmed in writing.

COMMENT:

General Principles

[1] Loyalty and independent judgment are essential elements in the lawyer's relationship to a client. Concurrent conflicts of interest can arise from the lawyer's responsibilities to another client, a former client or a third person or from the lawyer's own interests. For specific Rules regarding certain concurrent conflicts of interest, see Rule 1.8. For former client conflicts of interest, see Rule 1.9. For conflicts of interest involving prospective clients, see Rule 1.18. For definitions of "informed consent" and "confirmed in writing," see Rule 1.0(e) and (b).

[2] Resolution of a conflict of interest problem under this Rule requires the lawyer to: 1) clearly identify the client or clients; 2) determine whether a conflict of interest exists; 3) decide whether the representation may be undertaken despite the existence of a conflict, i.e., whether the conflict is consentable; and 4) if so, consult with the clients affected under paragraph (a) and obtain their informed consent, confirmed in writing. The clients affected under paragraph (a) include both of the clients referred to in paragraph (a)(1) and the one or more clients whose representation might be materially limited under paragraph (a)(2).

[3] A conflict of interest may exist before representation is undertaken, in which event the representation must be declined, unless the lawyer obtains the informed consent of each client under the conditions of paragraph (b). To determine whether a conflict of interest exists, a lawyer should adopt reasonable procedures, appropriate for the size and type of firm and practice, to determine in both litigation and non-litigation matters the persons and issues involved. See also Comment to Rule 5.1. Ignorance caused by a failure to institute such procedures will not excuse a lawyer's violation of this Rule. As to whether a client-lawyer relationship exists or, having once been established, is continuing, see Comment to Rule 1.3 and Scope.

[4] If a conflict arises after representation has been undertaken, the lawyer must withdraw from the representation, unless the lawyer has obtained the informed consent of the client under the conditions of paragraph (b). See Rule 1.16. Where more than one client is involved, whether the lawyer may continue to represent any of the clients is determined both by the lawyer's ability to comply with duties owed to the former client and by the lawyer's ability to represent adequately the remaining client or clients, given the lawyer's duties to the former client. See Rule 1.9. Comments [5] and [29].

[5] Unforeseeable developments, such as changes in corporate and other organizational affiliations or the addition or realignment of parties in litigation, might create conflicts in the midst of a representation, as when a company sued by the lawyer on behalf of one client is bought by another client represented by the lawyer in an unrelated matter. Depending on the circumstances, the lawyer may have the option to withdraw from one of the representations in order to avoid the conflict. The lawyer must seek court approval where necessary and take steps to minimize harm to the clients. See Rule 1.16. The lawyer must continue to protect the confidences of the client from whose representation the lawyer has withdrawn. See Rule 1.9(c).

Identifying Conflicts of Interest: Directly Adverse

[6] Loyalty to a current client prohibits undertaking representation directly adverse to that client without that client's informed consent. Thus, absent consent, a lawyer may not act as an advocate in one matter against a person the lawyer represents in some other matter, even when the matters are wholly unrelated. The client as to whom the representation is directly adverse is likely to feel betrayed, and the resulting damage to the client-lawyer relationship is likely to impair the lawyer's ability to represent the client effectively. In addition, the client on whose behalf the adverse representation is undertaken reasonably may fear that the lawyer will pursue that client's case less effectively out of deference to the other client, i.e., that the representation may be materially limited by the lawyer's interest in retaining the current client. Similarly, a directly adverse conflict may arise when a lawyer is required to cross-examine a client who appears as a witness in a lawsuit involving another client, as when the testimony will be damaging to the client who is represented in the lawsuit. On the other hand, simultaneous representation in unrelated matters of clients whose interests are only economically adverse, such as representation of competing economic enterprises in unrelated litigation, does not ordinarily constitute a conflict of interest and thus may not require consent of the respective clients.

[7] Directly adverse conflicts can also arise in transactional matters. For example, if a lawyer is asked to represent the seller of a business in negotiations with a buyer represented by the lawyer, not in the same transaction but in another, unrelated matter, the lawyer could not undertake the representation without the informed consent of each client.

Identifying Conflicts of Interest: Material Limitation

[8] Even where there is no direct adverseness, a conflict of interest exists if there is a significant risk that a lawyer's ability to consider, recommend or carry out an appropriate course of action for the client will be materially limited as a result of the lawyer's other responsibilities or interests. For example, a lawyer asked to represent several individuals seeking to form a joint venture is likely to be materially limited in the lawyer's ability to recommend or advocate all possible positions that each might take because of the lawyer's duty of loyalty to the others. The conflict in effect forecloses alternatives that would otherwise be available to the client. The mere possibility of subsequent harm does not itself require disclosure and consent. The critical questions are the likelihood that a difference in interests will eventuate and, if it does, whether it will materially interfere with the lawyer's independent professional judgment in considering alternatives or foreclose courses of action that reasonably should be pursued on behalf of the client.

Lawyer's Responsibilities to Former Clients and Other Third Persons

[9] In addition to conflicts with other current clients, a lawyer's duties of loyalty and independence may be materially limited by responsibilities to former clients under Rule 1.9 or by the lawyer's responsibilities to other persons, such as fiduciary duties arising from a lawyer's service as a trustee, executor or corporate director.

Personal Interest Conflicts

[10] The lawyer's own interests should not be permitted to have an adverse effect on representation of a client. For example, if the probity of a lawyer's own conduct in a transaction is in serious question, it may be difficult or impossible for the lawyer to give a client detached advice. Similarly, when a lawyer has discussions concerning possible employment with an opponent of the lawyer's client, or with a law firm representing the opponent, such discussions could materially limit the lawyer's representation of the client. In addition, a lawyer may not allow related business interests to affect representation, for example, by referring clients to an enterprise in which the lawyer has an undisclosed financial interest. See Rule 1.8 for specific Rules pertaining to a number of personal interest conflicts, including business transactions with clients. See also Rule 1.10 (personal interest conflicts under Rule 1.7 ordinarily are not imputed to other lawyers in a law firm).

[11] When lawyers representing different clients in the same matter or in substantially related matters are closely related by blood or marriage, there may be a significant risk that client confidences will be revealed and that the lawyer's family relationship will interfere with both loyalty and independent professional judgment. As a result, each client is entitled to know of the existence and implications of the relationship between the lawyers before the lawyer agrees to undertake the representation. Thus, a lawyer related to another lawyer, e.g., as parent, child, sibling or spouse, ordinarily may not represent a client in a matter where that lawyer is representing another party, unless each client gives informed consent. The disqualification arising from a close family relationship is personal and ordinarily is not imputed to members of firms with whom the lawyers are associated. See Rule 1.10 and Rule 1.8 (l).

[12] A lawyer is prohibited from engaging in sexual relationships with a client unless the sexual relationship predates the formation of the client-lawyer relationship. See Rule 1.8(j).

Interest of Person Paying for a Lawyer's Service

[13] A lawyer may be paid from a source other than the client, including a co-client, if the client is informed of that fact and consents and the arrangement does not compromise the lawyer's duty of loyalty or independent judgment to the client. See Rule 1.8(f). For example, when an insurer and its insured have conflicting interests in a matter arising from a liability insurance agreement, and the insurer is required to provide special counsel for the insured, the arrangement should assure the special counsel's professional independence. So also, when a corporation and its directors or employees are involved in a controversy in which they have conflicting interests, the corporation may provide funds for separate legal representation of the directors or employees, if the clients consent after consultation and the arrangement ensures the lawyer's professional independence. If acceptance of the payment from any other source presents a significant risk that the lawyer's representation of the client will be materially limited by the lawyer's own interest in accommodating the person paying the lawyer's fee or by the lawyer's responsibilities to a payer who is also a co-client, then the lawyer must comply with the requirements of paragraph (b) before accepting the representation, including determining whether the conflict is consentable and, if so, that the client has adequate information about the material risks of the representation.

Prohibited Representations

[14] Ordinarily, clients may consent to representation notwithstanding a conflict. However, as indicated in paragraph (b), some conflicts are nonconsentable, meaning that the lawyer involved cannot properly ask for such agreement or provide representation on the basis of the client's consent. When the lawyer is representing more than one client, the question of consentability must be resolved as to each client.

[15] Consentability is typically determined by considering whether the interests of the clients will be adequately protected if the clients are permitted to give their informed consent to representation burdened by a conflict of interest. Thus, under paragraph (b)(1), representation is prohibited if in the circumstances the lawyer cannot reasonably conclude that the lawyer will be able to provide competent and diligent representation. See Rule 1.1 (competence) and Rule 1.3 (diligence).

[16] Paragraph (b)(2) describes conflicts that are nonconsentable because the representation is prohibited by applicable law. For example, in some states substantive law provides that the same lawyer may not represent more than one defendant in a capital case, even with the consent of the clients, and under federal criminal statutes certain representations by a former government lawyer are prohibited, despite the informed consent of the former client. In addition, decisional law in some states limits the ability of a governmental client, such as a municipality, to consent to a conflict of interest.

[17] Paragraph (b)(3) describes conflicts that are nonconsentable because of the institutional interest in vigorous development of each client's position when the clients are aligned directly against each other in the same litigation or other proceeding before a tribunal. Whether clients are aligned directly against each other within the meaning of this paragraph requires examination of the context of the proceeding. Although this paragraph does not preclude a lawyer's multiple representation of adverse parties to a mediation (because mediation is not a proceeding before a "tribunal" under Rule 1.0(m)), such representation may be precluded by paragraph (b)(1).

Informed Consent

[18] Informed consent requires that each affected client be aware of the relevant circumstances and of the material and reasonably foreseeable ways that the conflict could have adverse effects on the interests of that client. See Rule 1.0(e) (informed consent). The information required depends on the nature of the conflict and the nature of the risks involved. When representation of multiple clients in a single matter is undertaken, the information must include the implications of the common representation, including possible effects on loyalty, confidentiality and the attorney-client privilege and the advantages and risks involved. See Comments [30] and [31] (effect of common representation on confidentiality).

[19] Under some circumstances it may be impossible to make the disclosure necessary to obtain consent. For example, when the lawyer represents different clients in related matters and one of the clients refuses to consent to the disclosure necessary to permit the other client to make an informed decision, the lawyer cannot properly ask the latter to consent. In some cases the alternative to common representation can be that each party may have to obtain separate representation with the possibility of incurring additional costs. These costs, along with the benefits of securing separate representation, are factors that may be considered by the affected client in determining whether common representation is in the client's interests.

Consent Confirmed in Writing

[20] Paragraph (b) requires the lawyer to obtain the informed consent of the client, confirmed in writing. Such a writing may consist of a document executed by the client or one that the lawyer promptly records and transmits to the client following an oral consent. See Rule 1.0(b). See also Rule 1.0(n) (writing includes electronic transmission). If it is not feasible to obtain or transmit the writing at the time the client gives informed consent, then the lawyer must obtain or transmit it within a reasonable time thereafter. See Rule 1.0(b). The requirement of a writing does not supplant the need in most cases for the lawyer to talk with the client, to explain the risks and advantages, if any, of representation burdened with a conflict of interest, as well as reasonably available alternatives, and to afford the client a reasonable opportunity to consider the risks and alternatives and to raise questions and concerns. Rather, the writing is required in order to impress upon clients the seriousness of the decision the client is being asked to make and to avoid disputes or ambiguities that might later occur in the absence of a writing.

Revoking Consent

[21] A client who has given consent to a conflict may revoke the consent and, like any other client, may terminate the lawyer's representation at any time. Whether revoking consent to the client's own representation precludes the lawyer from continuing to represent other clients depends on the circumstances, including the nature of the conflict, whether the client revoked consent because of a material change in circumstances, the reasonable expectations of the other client and whether material detriment to the other clients or the lawyer would result.

Consent to Future Conflict

[22] Whether a lawyer may properly request a client to waive conflicts that might arise in the future is subject to the test of paragraph (b). The effectiveness of such waivers is generally determined by the extent to which the client reasonably understands the material risks that the waiver entails. The more comprehensive the explanation of the types of future representations that might arise and the actual and reasonably foreseeable adverse consequences of those representations, the greater the likelihood that the client will have the requisite understanding. Thus, if the client agrees to consent to a particular type of conflict with which the client is already familiar, then the consent ordinarily will be effective with regard to that type of conflict. If the consent is general and open-ended, then the consent ordinarily will be ineffective, because it is not reasonably likely that the client will have understood the material risks involved. On the other hand, if the client is an experienced user of the legal services involved and is reasonably informed regarding the risk that a conflict may arise, such consent is more likely to be effective, particularly if, e.g., the client is independently represented by other counsel in giving consent and the consent is limited to future conflicts unrelated to the subject of the representation. In any case, advance consent cannot be effective if the circumstances that materialize in the future are such as would make the conflict nonconsentable under paragraph (b).

Conflicts in Litigation

[23] Paragraph (b)(3) prohibits representation of opposing parties in the same litigation, regardless of the clients' consent. On the other hand, simultaneous representation of parties whose interests in litigation may conflict, such as coplaintiffs or codefendants, is governed by paragraph (a)(2). A conflict may exist by reason of substantial discrepancy in the parties' testimony, incompatibility in positions in relation to an opposing party or the fact that there are substantially different possibilities of settlement of the claims or liabilities in question. Such conflicts can arise in criminal cases as well as civil. The potential for conflict of interest in representing multiple defendants in a criminal case is so grave that ordinarily a lawyer should decline to represent more than one codefendant. On the other hand, common representation of persons having similar interests in civil litigation is proper if the requirements of paragraph (b) are met.

[24] Ordinarily a lawyer may take inconsistent legal positions in different tribunals at different times on behalf of different clients. The mere fact that advocating a legal position on behalf of one client might create precedent adverse to the interests of a client represented by the lawyer in an unrelated matter does not create a conflict of interest. A conflict of interest exists, however, if there is a significant risk that a lawyer's action on behalf of one client will materially limit the lawyer's effectiveness in representing another client in a different case; for example, when a decision favoring one client will create a precedent likely to seriously weaken the position taken on behalf of the other client. Factors relevant in determining whether the clients need to be advised of the risk include: where the cases are pending, whether the issue is substantive or procedural, the temporal relationship between the matters, the significance of the issue to the immediate and long-term interests of the clients involved and the clients' reasonable expectations in retaining the lawyer. If there is significant risk of material limitation, then absent informed consent of the affected clients, the lawyer must refuse one of the representations or withdraw from one or both matters.

[25] When a lawyer represents or seeks to represent a class of plaintiffs or defendants in a class-action lawsuit, unnamed members of the class are ordinarily not considered to be clients of the lawyer for purposes of applying paragraph (a)(1) of this Rule. Thus, the lawyer does not typically need to get the consent of such a person before representing a client suing the person in an unrelated matter. Similarly, a lawyer seeking to represent an opponent in a class action does not typically need the consent of an unnamed member of the class whom the lawyer represents in an unrelated matter.

Nonlitigation Conflicts

[26] Conflicts of interest under paragraphs (a)(1) and (a)(2) arise in contexts other than litigation. For a discussion of directly adverse conflicts in transactional matters, see Comment [7]. Relevant factors in determining whether there is significant potential for material limitation include the duration and intimacy of the lawyer's relationship with the client or clients involved, the functions being performed by the lawyer, the likelihood that disagreements will arise and the likely prejudice to the client from the conflict. The question is often one of proximity and degree. See Comment [8].

[27] For example, conflict questions may arise in estate planning and estate administration. A lawyer may be called upon to prepare wills for several family members, such as husband and wife, and, depending upon the circumstances, a conflict of interest may be present. In estate administration the identity of the client may be unclear under the law of a particular jurisdiction. Under one view, the client is the fiduciary; under another view the client is the estate or trust, including its beneficiaries. In order to comply with conflict of interest rules, the lawyer should make clear the lawyer's relationship to the parties involved.

[28] Whether a conflict is consentable depends on the circumstances. For example, a lawyer may not represent multiple parties to a negotiation whose interests are fundamentally antagonistic to each other, but common representation is permissible where the clients are generally aligned in interest even though there is some difference in interest among them. Thus, a lawyer may seek to establish or adjust a relationship between clients on an amicable and mutually advantageous basis; for example, in helping to organize a business in which two or more clients are entrepreneurs, working out the financial reorganization of an enterprise in which two or more clients have an interest or arranging a property distribution in settlement of an estate. The lawyer seeks to resolve potentially adverse interests by developing the parties' mutual interests. Otherwise, each party might have to obtain separate representation, with the possibility of incurring additional cost, complication or even litigation. Given these and other relevant factors, the clients may prefer that the lawyer act for all of them.

Special Considerations in Common Representation

[29] In considering whether to represent multiple clients in the same matter, a lawyer should be mindful that if the common representation fails because the potentially adverse interests cannot be reconciled, the result can be additional cost, embarrassment and recrimination. Ordinarily, the lawyer will be forced to withdraw from representing all of the clients if the common representation fails. In some situations, the risk of failure is so great that multiple representation is plainly impossible. For example, a lawyer cannot undertake common representation of clients where contentious litigation or negotiations between them are imminent or contemplated. Moreover, because the lawyer is required to be impartial between commonly represented clients, representation of multiple clients is improper when it is unlikely that impartiality can be maintained. Generally, if the relationship between the parties has already assumed antagonism, the possibility that the clients' interests can be adequately served by common representation is not very good. Other relevant factors are whether the lawyer subsequently will represent both parties on a continuing basis and whether the situation involves creating or terminating a relationship between the parties.

[30] A particularly important factor in determining the appropriateness of common representation is the effect on client-lawyer confidentiality and the attorney-client privilege. With regard to the attorney-client privilege, the prevailing rule is that, as between commonly represented clients, the privilege does not attach. Hence, it must be assumed that if litigation eventuates between the clients, the privilege will not protect any such communications, and the clients should be so advised.

[31] As to the duty of confidentiality, continued common representation will almost certainly be inadequate if one client asks the lawyer not to disclose to the other client information relevant to the common representation. This is so because the lawyer has an equal duty of loyalty to each client, and each client has the right to be informed of anything bearing on the representation that might affect that client's interests and the right to expect that the lawyer will use that information to that client's benefit. See Rule 1.4. The lawyer should, at the outset of the common representation and as part of the process of obtaining each client's informed consent, advise each client that information will be shared and that the lawyer will have to withdraw if one client decides that some matter material to the representation should be kept from the other. In limited circumstances, it may be appropriate for the lawyer to proceed with the representation when the clients have agreed, after being properly informed, that the lawyer will keep certain information confidential. For example, the lawyer may reasonably conclude that failure to disclose one client's trade secrets to another client will not adversely affect representation involving a joint venture between the clients and agree to keep that information confidential with the informed consent of both clients.

[32] When seeking to establish or adjust a relationship between clients, the lawyer should make clear that the lawyer's role is not that of partisanship normally expected in other circumstances and, thus, that the clients may be required to assume greater responsibility for decisions than when each client is separately represented. Any limitations on the scope of the representation made necessary as a result of the common representation should be fully explained to the clients at the outset of the representation. See Rule 1.2(c).

[33] Subject to the above limitations, each client in the common representation has the right to loyal and diligent representation and the protection of Rule 1.9 concerning the obligations to a former client. The client also has the right to discharge the lawyer as stated in Rule 1.16.

 Organizational Clients

[34] A lawyer who represents a corporation or other organization does not, by virtue of that representation, necessarily represent any constituent or affiliated organization, such as a parent or subsidiary. See Rule 1.13(a). Thus, the lawyer for an organization is not barred from accepting representation adverse to an affiliate in an unrelated matter, unless the circumstances are such that the affiliate should also be considered a client of the lawyer, there is an understanding between the lawyer and the organizational client that the lawyer will avoid representation adverse to the client's affiliates, or the lawyer's obligations to either the organizational client or the new client are likely to limit materially the lawyer's representation of the other client.

[35] A lawyer for a corporation or other organization who is also a member of its board of directors should determine whether the responsibilities of the two roles may conflict. The lawyer may be called on to advise the corporation in matters involving actions of the directors. Consideration should be given to the frequency with which such situations may arise, the potential intensity of the conflict, the effect of the lawyer's resignation from the board and the possibility of the corporation's obtaining legal advice from another lawyer in such situations. If there is material risk that the dual role will compromise the lawyer's independence of professional judgment, the lawyer should not serve as a director or should cease to act as the corporation's lawyer when conflicts of interest arise. The lawyer should advise the other members of the board that in some circumstances matters discussed at board meetings while the lawyer is present in the capacity of director might not be protected by the attorney-client privilege and that conflict of interest considerations might require the lawyer's recusal as a director or might require the lawyer and the lawyer's firm to decline representation of the corporation in a matter.

Conflict Charged by an Opposing Party

[36] Resolving questions of conflict of interest is primarily the responsibility of the lawyer undertaking the representation. In litigation, a court may raise the question when there is reason to infer that the lawyer has neglected the responsibility. In a criminal case, inquiry by the court is generally required when a lawyer represents multiple defendants. Where the conflict is such as clearly to call in question the fair or efficient administration of justice, opposing counsel may properly raise the question. Such an objection should be viewed with caution, however, for it can be misused as a technique of harassment. See Scope.

[37] As an integral part of the lawyer's duty to prevent conflict of interests, the lawyer must strive to avoid not only professional impropriety, but also the appearance of impropriety. The duty to avoid the appearance of impropriety is not a mere phrase. It is part of the foundation upon which are built the rules that guide lawyers in their moral and ethical conduct. This obligation should be considered in any instance where a violation of the Rules of Professional Conduct are at issue. The principle pervades these Rules and embodies their spirit.

The effective date of this Rule is February 1, 1984.

Part 1. Scope.

a. This records retention schedule applies to all freelance court reporters in the State of Arkansas. “Freelance court reporter,” as used in this retention schedule, means a court reporter, certified by the Arkansas Board of Certified Court Reporter Examiners, who is not regularly employed by a circuit judge, and not acting in the capacity of a substitute official court reporter. b. The term “source material,” as used in this records retention schedule, refers to any notes, audio files, or exhibits that the freelance court reporter may use to prepare a transcript.

c. This records retention schedule applies to any type of deposition or proceeding in which a freelance court reporter is employed to take a record regardless of whether a transcript is prepared.

Part 2. Court Ordered Retention of Specific Records.

Upon the motion of any party demonstrating good cause or upon the court's own motion, the trial judge may enter an order directing that the records be retained for an additional period beyond the time established in Part 6 of this Rule. At the end of each additional court-ordered retention period, the judge may enter a new order extending the retention period.

Part 3. Responsibility for Storage.

During the period in which the records are required to be retained, it shall be the responsibility of the court reporter to maintain his or her records in an orderly, secure, and identifiable manner.

Part 4. Methods of Disposal of Records.

a. Paper records may be disposed of by burning or shredding.

b. Audio recordings/files or digital media may be erased.

Part 5. Log of Records.

Each court reporter shall maintain an accurate, orderly log of his or her records that notes the date and method of destruction of each record listed.

Part 6. Records Retention Schedule.

a. The court reporter shall maintain any notes and/or audio files that he or she used to prepare a transcript for a minimum of one year from the date upon which the proceedings occurred. b. If a transcript is not prepared from the proceedings at which the court reporter appeared, the court reporter shall maintain all source material that he or she would use to prepare a transcript for a minimum of five years from the date upon which the proceedings occurred. If the court reporter intends to destroy the material, he or she must give written notice to the parties at least forty-five days prior to the day upon which the destruction of the material will occur.

1. It shall be the responsibility of the parties to provide the court reporter with written notification of any change of address.

2. For the purposes of these Regulations, written notification by certified or first class mail to the most recent address provided to the court reporter shall be deemed sufficient.

c. All electronic copies of prepared transcripts shall be retained for a minimum of five years from the date upon which the proceedings occurred.

Addition of section 24 by per curiam order June 26, 2014; amended and effective September 21, 2017.

(a) A lawyer shall not enter into a business transaction with a client or knowingly acquire an ownership, possessory, security or other pecuniary interest adverse to a client unless: (1) the transaction and terms on which the lawyer acquires the interest are fair and reasonable to the client and are fully disclosed and transmitted in writing in a manner that can be reasonably understood by the client; (2) the client is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel in the transaction; and (3) the client gives informed consent, in a writing signed by the client, to the essential terms of the transaction and the lawyer's role in the transaction, including whether the lawyer is representing the client in the transaction.

(b) A lawyer shall not use information relating to representation of a client to the disadvantage of the client unless the client gives informed consent, in a writing signed by the client, except as permitted or required by these Rules.

(c) A lawyer shall not solicit any substantial gift from a client, including a testamentary gift, or prepare on behalf of a client an instrument giving the lawyer or a person related to the lawyer any substantial gift unless the lawyer or other recipient of the gift is related to the client. For purposes of this paragraph, related persons include the spouse or a person within the third degree of relationship to the lawyer or the client. The following persons are relatives with the third degree of relationship: great-grandparent, grandparent, parent, uncle, aunt, brother, sister, child, grand child, great-grand child, nephew or niece.

(d) Prior to the conclusion of representation of a client, a lawyer shall not make or negotiate an agreement giving the lawyer literary or media rights to a portrayal or account based in substantial part on information relating to the representation.

(e) A lawyer shall not provide financial assistance to a client in connection with pending or contemplated litigation, except that: (1) a lawyer may advance court costs and expenses of litigation, the repayment of which may be contingent on the outcome of the matter; and (2) a lawyer representing an indigent client may pay court costs and expenses of litigation on behalf of the client.

(f) A lawyer shall not accept compensation for representing a client from one other than the client unless: (1) the client gives informed consent; (2) there is no interference with the lawyer's independence of professional judgment or with the client-lawyer relationship; and (3) information relating to representation of a client is protected as required by Rule 1.6.

(g) A lawyer who represents two or more clients shall not participate in making an aggregate settlement of the claims of or against the clients, or in a criminal case an aggregated agreement as to guilty or nolo contendere pleas, unless each client gives informed consent, in a writing signed by the client. The lawyer's disclosure shall include the existence and nature of all the claims or pleas involved and of the participation of each person in the settlement.

(h) A lawyer shall not: (1) make an agreement prospectively limiting the lawyer's liability to a client for malpractice unless the client is represented by independent legal counsel , or (2) settle a claim or potential claim for such liability with an unrepresented client or former client unless that person is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel in connection therewith.

(i) A lawyer shall not acquire a proprietary interest in the cause of action or subject matter of litigation the lawyer is conducting for a client, except that the lawyer may: (1) acquire a lien granted by law to secure the lawyer's fee or expenses; and (2) contract with a client for a reasonable contingent fee in a civil case.

(j) A lawyer shall not have sexual relations with a client unless a consensual sexual relationship existed between them when the client-lawyer relationship commenced.

(k) While lawyers are associated in a firm, a prohibition in the foregoing paragraphs (a) through (i) that applies to any one of them shall apply to all of them,

(l) A lawyer related to another lawyer as parent, child, sibling or spouse shall not represent a client in a representation directly adverse to a person whom the lawyer knows is represented by the other lawyer except upon informed consent by the client, confirmed in writing.

COMMENT:

Business Transactions Between Client and Lawyer

[1] A lawyer's legal skill and training, together with the relationship of trust and confidence between lawyer and client, create the possibility of overreaching when the lawyer participates in a business, property or financial transaction with a client, for example, a loan or sales transaction or a lawyer investment on behalf of a client. The requirements of paragraph (a) must be met even when the transaction is not closely related to the subject matter of the representation, as when a lawyer drafting a will for a client learns that the client needs money for unrelated expenses and offers to make a loan to the client. The Rule applies to lawyers engaged in the sale of goods or services related to the practice of law, for example, the sale of title insurance or investment services to existing clients of the lawyer's legal practice. See Rule 5.7. It also applies to lawyers purchasing property from estates they represent. It does not apply to ordinary fee arrangements between client and lawyer, which are governed by Rule 1.5, although its requirements must be met when the lawyer accepts an interest in the client's business or other nonmonetary property as payment of all or part of a fee. In addition, the Rule does not apply to standard commercial transactions between the lawyer and the client for products or services that the client generally markets to others, for example, banking or brokerage services, medical services, products manufactured or distributed by the client, and utilities' services. In such transactions, the lawyer has no advantage in dealing with the client, and the restrictions in paragraph (a) are unnecessary and impracticable.

[2] Paragraph (a)(1) requires that the transaction itself be fair to the client and that its essential terms be communicated to the client, in writing, in a manner that can be reasonably understood. Paragraph (a)(2) requires that the client also be advised, in writing, of the desirability of seeking the advice of independent legal counsel. It also requires that the client be given a reasonable opportunity to obtain such advice. Paragraph (a)(3) requires that the lawyer obtain the client's informed consent, in a writing signed by the client, both to the essential terms of the transaction and to the lawyer's role. When necessary, the lawyer should discuss both the material risks of the proposed transaction, including any risk presented by the lawyer's involvement, and the existence of reasonably available alternatives and should explain why the advice of independent legal counsel is desirable. See Rule 1.0(e) (definition of informed consent).

[3] The risk to a client is greatest when the client expects the lawyer to represent the client in the transaction itself or when the lawyer's financial interest otherwise poses a significant risk that the lawyer's representation of the client will be materially limited by the lawyer's financial interest in the transaction. Here the lawyer's role requires that the lawyer must comply, not only with the requirements of paragraph (a), but also with the requirements of Rule 1.7. Under that Rule, the lawyer must disclose the risks associated with the lawyer's dual role as both legal adviser and participant in the transaction, such as the risk that the lawyer will structure the transaction or give legal advice in a way that favors the lawyer's interests at the expense of the client. Moreover, the lawyer must obtain the client's informed consent. In some cases, the lawyer's interest may be such that Rule 1.7 will preclude the lawyer from seeking the client's consent to the transaction.

[4] If the client is independently represented in the transaction, paragraph (a)(2) of this Rule is inapplicable, and the paragraph (a)(1) requirement for full disclosure is satisfied either by a written disclosure by the lawyer involved in the transaction or by the client's independent counsel. The fact that the client was independently represented in the transaction is relevant in determining whether the agreement was fair and reasonable to the client as paragraph (a)(1) further requires.

Use of Information Related to Representation

[5] Use of information relating to the representation to the disadvantage of the client violates the lawyer's duty of loyalty. Paragraph (b) applies when the information is used to benefit either the lawyer or a third person, such as another client or business associate of the lawyer. For example, if a lawyer learns that a client intends to purchase and develop several parcels of land, the lawyer may not use that information to purchase one of the parcels in competition with the client or to recommend that another client make such a purchase. The Rule does not prohibit uses that do not disadvantage the client. For example, a lawyer who learns a government agency's interpretation of trade legislation during the representation of one client may properly use that information to benefit other clients. Paragraph (b) prohibits disadvantageous use of client information unless the client gives informed consent, except as permitted or required by these Rules. See Rules 1.2(d), 1.6, 1.9(c), 3.3, 4.1(b), 8.1 and 8.3.

Gifts to Lawyers

[6] A lawyer may accept a gift from a client, if the transaction meets general standards of fairness. For example, a simple gift such as a present given at a holiday or as a token of appreciation is permitted. If a client offers the lawyer a more substantial gift, paragraph (c) does not prohibit the lawyer from accepting it, although such a gift may be voidable by the client under the doctrine of undue influence, which treats client gifts as presumptively fraudulent. In any event, due to concerns about overreaching and imposition on clients, a lawyer may not suggest that a substantial gift be made to the lawyer or for the lawyer's benefit, except where the lawyer is related to the client as set forth in paragraph (c).

[7] If effectuation of a substantial gift requires preparing a legal instrument such as a will or conveyance, the client should have the detached advice that another lawyer can provide. The sole exception to this Rule is where the client is a relative of the donee.

[8] This Rule does not prohibit a lawyer from seeking to have the lawyer or a partner or associate of the lawyer named as executor of the client's estate or to another potentially lucrative fiduciary position. Nevertheless, such appointments will be subject to the general conflict of interest provision in Rule 1.7 when there is a significant risk that the lawyer's interest in obtaining the appointment will materially limit the lawyer's independent professional judgment in advising the client concerning the choice of an executor or other fiduciary. In obtaining the client's informed consent to the conflict, the lawyer should advise the client concerning the nature and extent of the lawyer's financial interest in the appointment, as well as the availability of alternative candidates for the position.

Literary Rights

[9] An agreement by which a lawyer acquires literary or media rights concerning the conduct of the representation creates a conflict between the interests of the client and the personal interests of the lawyer. Measures suitable in the representation of the client may detract from the publication value of an account of the representation. Paragraph (d) does not prohibit a lawyer representing a client in a transaction concerning literary property from agreeing that the lawyer's fee shall consist of a share in ownership in the property, if the arrangement conforms to Rule 1.5 and paragraphs (a) and (i).

Financial Assistance

[10] Lawyers may not subsidize lawsuits or administrative proceedings brought on behalf of their clients, including making or guaranteeing loans to their clients for living expenses, because to do so would encourage clients to pursue lawsuits that might not otherwise be brought and because such assistance gives lawyers too great a financial stake in the litigation. These dangers do not warrant a prohibition on a lawyer lending a client court costs and litigation expenses, including the expenses of medical examination and the costs of obtaining and presenting evidence, because these advances are virtually indistinguishable from contingent fees and help ensure access to the courts. Similarly, an exception allowing lawyers representing indigent clients to pay court costs and litigation expenses regardless of whether these funds will be repaid is warranted.

Person Paying for a Lawyer's Services

[11] Lawyers are frequently asked to represent a client under circumstances in which a third person will compensate the lawyer, in whole or in part. The third person might be a relative or friend, an indemnitor (such as a liability insurance company) or a co-client (such as a corporation sued along with one or more of its employees). Because third-party payers frequently have interests that differ from those of the client, including interests in minimizing the amount spent on the representation and in learning how the representation is progressing, lawyers are prohibited from accepting or continuing such representations unless the lawyer determines that there will be no interference with the lawyer's independent professional judgment and there is informed consent from the client. See also Rule 5.4(c) (prohibiting interference with a lawyer's professional judgment by one who recommends, employs or pays the lawyer to render legal services for another).

[12] Sometimes, it will be sufficient for the lawyer to obtain the client's informed consent regarding the fact of the payment and the identity of the third-party payer. If, however, the fee arrangement creates a conflict of interest for the lawyer, then the lawyer must comply with Rule. 1.7. The lawyer must also conform to the requirements of Rule 1.6 concerning confidentiality. Under Rule 1.7(a), a conflict of interest exists if there is significant risk that the lawyer's representation of the client will be materially limited by the lawyer's own interest in the fee arrangement or by the lawyer's responsibilities to the third-party payer (for example, when the third-party payer is a co-client). Under Rule 1.7(b), the lawyer may accept or continue the representation with the informed consent of each affected client, unless the conflict is nonconsentable under that paragraph. Under Rule 1.7(b), the informed consent must be confirmed in writing.

Aggregate Settlements

[13] Differences in willingness to make or accept an offer of settlement are among the risks of common representation of multiple clients by a single lawyer. Under Rule 1.7, this is one of the risks that should be discussed before undertaking the representation, as part of the process of obtaining the clients' informed consent. In addition, Rule 1.2(a) protects each client's right to have the final say in deciding whether to accept or reject an offer of settlement and in deciding whether to enter a guilty or nolo contendere plea in a criminal case. The rule stated in this paragraph is a corollary of both these Rules and provides that, before any settlement offer or plea bargain is made or accepted on behalf of multiple clients, the lawyer must inform each of them about all the material terms of the settlement, including what the other clients will receive or pay if the settlement or plea offer is accepted. See also Rule 1.0(e) (definition of informed consent). Lawyers representing a class of plaintiffs or defendants, or those proceeding derivatively, may not have a full client-lawyer relationship with each member of the class; nevertheless, such lawyers must comply with applicable rules regulating notification of class members and other procedural requirements designed to ensure adequate protection of the entire class.

Limiting Liability and Settling Malpractice Claims

[14] Agreements prospectively limiting a lawyer's liability for malpractice are prohibited unless the client is independently represented in making the agreement because they are likely to undermine competent and diligent representation. Also, many clients are unable to evaluate the desirability of making such an agreement before a dispute has arisen, particularly if they are then represented by the lawyer seeking the agreement. This paragraph does not, however, prohibit a lawyer from entering into an agreement with the client to arbitrate legal malpractice claims, provided such agreements are enforceable and the client is fully informed of the scope and effect of the agreement. Nor does this paragraph limit the ability of lawyers to practice in the form of a limited-liability entity, where permitted by law, provided that each lawyer remains personally liable to the client for his or her own conduct and the firm complies with any conditions required by law, such as provisions requiring client notification or maintenance of adequate liability insurance. Nor does it prohibit an agreement in accordance with Rule 1.2 that defines the scope of the representation, although a definition of scope that makes the obligations of representation illusory will amount to an attempt to limit liability.

[15] Agreements settling a claim or a potential claim for malpractice are not prohibited by this Rule. Nevertheless, in view of the danger that a lawyer will take unfair advantage of an unrepresented client or former client, the lawyer must first advise such a person in writing of the appropriateness of independent representation in connection with such a settlement. In addition, the lawyer must give the client or former client a reasonable opportunity to find and consult independent counsel.

Acquiring Proprietary Interest in Litigation

[16] Paragraph (i) states the traditional general rule that lawyers are prohibited from acquiring a proprietary interest in litigation. Like paragraph (e), the general rule has its basis in common law champerty and maintenance and is designed to avoid giving the lawyer too great an interest in the representation. In addition, when the lawyer acquires an ownership interest in the subject of the representation, it will be more difficult for a client to discharge the lawyer if the client so desires. The Rule is subject to specific exceptions developed in decisional law and continued in these Rules. The exception for certain advances of the costs of litigation is set forth in paragraph (e). In addition, paragraph (i) sets forth exceptions for liens authorized by law to secure the lawyer's fees or expenses and contracts for reasonable contingent fees. The law of each jurisdiction determines which liens are authorized by law. These may include liens granted by statute, liens originating in common law and liens acquired by contract with the client. When a lawyer acquires by contract a security interest in property other than that recovered through the lawyer's efforts in the litigation, such an acquisition is a business or financial transaction with a client and is governed by the requirements of paragraph (a). Contracts for contingent fees in civil cases are governed by Rule 1.5.

Client-Lawyer Sexual Relationships

[17] The relationship between lawyer and client is a fiduciary one in which the lawyer occupies the highest position of trust and confidence. The relationship is almost always unequal; thus, a sexual relationship between lawyer and client can involve unfair exploitation of the lawyer's fiduciary role, in violation of the lawyer's basic ethical obligation not to use the trust of the client to the client's disadvantage. In addition, such a relationship presents a significant danger that, because of the lawyer's emotional involvement, the lawyer will be unable to represent the client without impairment of the exercise of independent professional judgment. Moreover, a blurred line between the professional and personal relationships may make it difficult to predict to what extent client confidences will be protected by the attorney-client evidentiary privilege, since client confidences are protected by privilege only when they are imparted in the context of the client-lawyer relationship. Because of the significant danger of harm to client interests and because the client's own emotional involvement renders it unlikely that the client could give adequate informed consent, this Rule prohibits the lawyer from having sexual relations with a client regardless of whether the relationship is consensual and regardless of the absence of prejudice to the client.

[18] Sexual relationships that predate the client-lawyer relationship are not prohibited. Issues relating to the exploitation of the fiduciary relationship and client dependency are diminished when the sexual relationship existed prior to the commencement of the client-lawyer relationship. However, before proceeding with the representation in these circumstances, the lawyer should consider whether the lawyer's ability to represent the client will be materially limited by the relationship. See Rule 1.7(a)(2).

[19] When the client is an organization, paragraph (j) of this Rule prohibits a lawyer for the organization (whether inside counsel or outside counsel) from having a sexual relationship with a constituent of the organization who supervises, directs or regularly consults with that lawyer concerning the organization's legal matters.

Imputation of Prohibitions

[20] Under paragraph (k), a prohibition on conduct by an individual lawyer in paragraphs (a) through (i) also applies to all lawyers associated in a firm with the personally prohibited lawyer. For example, one lawyer in a firm may not enter into a business transaction with a client of another member of the firm without complying with paragraph (a), even if the first lawyer is not personally involved in the representation of the client. The prohibition set forth in paragraph (j) is personal and is not applied to associated lawyers.

Section (c) amended and effective by per curiam order June 26, 2014.

(a) A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing.
(b) A lawyer shall not knowingly represent a person in the same or a substantially related matter in which a firm with which the lawyer formerly was associated had previously represented a client:
(1) whose interests are materially adverse to that person; and
(2) about whom the lawyer had acquired information protected by Rules 1.6 and 1.9(c) that is material to the matter; unless the former client gives informed consent confirmed in writing,
(c) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter:
(1) use information relating to the representation to the disadvantage of the former client except as these Rules would permit or require with respect to a client, or when the information has become generally known; or
(2) reveal information relating to the representation except as these Rules would permit or require with respect to a client.

COMMENT:

[1] After termination of a client-lawyer relationship, a lawyer has certain continuing duties with respect to confidentiality and conflicts of interest and thus may not represent another client except in conformity with this Rule. Under this Rule, for example, a lawyer could not properly seek to rescind on behalf of a new client a contract drafted on behalf of the former client. So also a lawyer who has prosecuted an accused person could not properly represent the accused in a subsequent civil action against the government concerning the same transaction. Nor could a lawyer who has represented multiple clients in a matter represent one of the clients against the others in the same or a substantially related matter after a dispute arose among the clients in that matter, unless all affected clients give informed consent. See Comment [9]. Current and former government lawyers must comply with this Rule to the extent required by Rule 1.11.

[2] The scope of a "matter" for purposes of this Rule depends on the facts of a particular situation or transaction. The lawyer's involvement in a matter can also be a question of degree. When a lawyer has been directly involved in a specific transaction, subsequent representation of other clients with materially adverse interests in that transaction clearly is prohibited. On the otherhand, a lawyer who recurrently handled a type of problem for a former client is not precluded from later representing another client in a factually distinct problem of that type even though the subsequent representation involves a position adverse to the prior client. Similar considerations can apply to the reassignment of military lawyers between defense and prosecution functions within the same military jurisdictions. The underlying question is whether the lawyer was so involved in the matter that the subsequent representation can be justly regarded as a changing of sides in the matter in question.

[3] Matters are "substantially related" for purposes of this Rule if they involve the same transaction or legal dispute or if there otherwise is a substantial risk that confidential factual information as would normally have been obtained in the prior representation would materially advance the client's position in the subsequent matter. For example, a lawyer who has represented a businessperson and learned extensive private financial information about that person may not then represent that person's spouse in seeking a divorce. Similarly, a lawyer who has previously represented a client in securing environmental permits to build a shopping center would be precluded from representing neighbors seeking to oppose rezoning of the property on the basis of environmental considerations; however, the lawyer would not be precluded, on the grounds of substantial relationship, from defending a tenant of the completed shopping center in resisting eviction for nonpayment of rent. Information that has been disclosed to the public or to other parties adverse to the former client ordinarily will not be disqualifying. Information acquired in a prior representation may have been rendered obsolete by the passage of time, a circumstance that may be relevant in determining whether two representations are substantially related. In the case of an organizational client, general knowledge of the client's policies and practices ordinarily will not preclude a subsequent representation; on the other hand, knowledge of specific facts gained in a prior representation that are relevant to the matter in question ordinarily will preclude such a representation. A former client is not required to reveal the confidential information learned by the lawyer in order to establish a substantial risk that the lawyer has confidential information to use in the subsequent matter. A conclusion about the possession of such information may be based on the nature of the services the lawyer provided the former client and information that would in ordinary practice be learned by a lawyer providing such services.

Lawyers Moving Between Firms

[4] When lawyers have been associated within a firm but then end their association, the question of whether a lawyer should undertake representation is more complicated. There are several competing considerations. First, the client previously represented by the former firm must be reasonably assured that the principle of loyalty to the client is not compromised. Second, the rule should not be so broadly cast as to preclude other persons from having reasonable choice of legal counsel. Third, the rule should not unreasonably hamper lawyers from forming new associations and taking on new clients after having left a previous association. In this connection, it should be recognized that today many lawyers practice in firms, that many lawyers to some degree limit their practice to one field or another, and that many move from one association to another several times in their careers. If the concept of imputation were applied with unqualified rigor, the result would be radical curtailment of the opportunity of lawyers to move from one practice setting to another and of the opportunity of clients to change counsel.

Confidentiality

[5] Paragraph (b) operates to disqualify the lawyer only when the lawyer involved has actual knowledge of information protected by Rules 1.6 and 1.9(c). Thus, if a lawyer while with one firm acquired no knowledge or information relating to a particular client of the firm, and that lawyer later joined another firm, neither the lawyer individually nor the second firm is disqualified from representing another client in the same or a related matter even though the interests of the two clients conflict. See Rule 1.10(b) for the restrictions on a firm once a lawyer has terminated association with the firm.

[6] Application of paragraph (b) depends on a situation's particular facts, aided by inferences, deductions or working presumptions that reasonably may be made about the way in which lawyers work together. A lawyer may have general access to files of all clients of a law firm and may regularly participate in discussions of their affairs; it should be inferred that such a lawyer in fact is privy to all information about all the firm's clients. In contrast, another lawyer may have access to the files of only a limited number of clients and participate in discussions of the affairs of no other clients; in the absence of information to the contrary, it should be inferred that such a lawyer in fact is privy to information about the clients actually served but not those of other clients. In such an inquiry, the burden of proof should rest upon the firm whose disqualification is sought.

[7] Independent of the question of disqualification of a firm, a lawyer changing professional association has a continuing duty to preserve confidentiality of information about a client formerly represented. See Rules 1.6 and 1.9(c).

[8] Paragraph (c) provides that information acquired by the lawyer in the course of representing a client may not subsequently be used or revealed by the lawyer to the disadvantage of the client. However, the fact that a lawyer has once served a client does not preclude the lawyer from using generally known information about that client when later representing another client.

[9] The provisions of this Rule are for the protection of former clients and can be waived if the client gives informed consent, which consent must be confirmed in writing under paragraphs (a) and (b). See Rule 1.0(e). With regard to the effectiveness of an advance waiver, see Comment [22] to Rule 1.7. With regard to disqualification of a firm with which a lawyer is or was formerly associated, see Rule 1.10.

[10] The duty to avoid the appearance of impropriety discussed in Comment [37] to Rule 1.7 is likewise applicable to Rule 1.9 and Rule 1.10.

(a) While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rules 1.7, 1.9 or 3.7, unless the prohibition is based on a personal interest of the prohibited lawyer and does not present a significant risk of materially limiting the representation of the client by the remaining lawyers in the firm,
(b) When a lawyer has terminated an association with a firm, the firm is not prohibited from thereafter representing a person with interests materially adverse to those of a client represented by the formerly associated lawyer and not currently represented by the firm, unless:
(1) the matter is the same or substantially related to that in which the formerly associated lawyer represented the client; and
(2) any lawyer remaining in the firm has information protected by Rules 1.6 and 1.9(c) that is material to the matter.
(c) A disqualification prescribed by this rule may be waived by the affected client under the conditions stated in Rule 1.7.
(d) The disqualification of lawyers associated in a firm with former or current government lawyers is governed by Rule 1.11.

COMMENT:

Definition of "Firm"

[1] For purposes of the Rules of Professional Conduct, the term "firm" denotes lawyers in a law partnership, professional corporation, sole proprietorship or other association authorized to practice law; or lawyers employed in a legal services organization or the legal department of a corporation or other organization. See Rule 1.0(c). Whether two or more lawyers constitute a firm within this definition can depend on the specific facts. See Rule 1.0, Comments [2] - [4].

Principles of Imputed Disqualification

[2] The rule of imputed disqualification stated in paragraph (a) gives effect to the principle of loyalty to the client as it applies to lawyers who practice in a law firm. Such situations can be considered from the premise that a firm of lawyers is essentially one lawyer for purposes of the rules governing loyalty to the client, or from the premise that each lawyer is vicariously bound by the obligation of loyalty owed by each lawyer with whom the lawyer is associated. Paragraph (a) operates only among the lawyers currently associated in a firm. When a lawyer moves from one firm to another, the situation is governed by Rules 1.9(b) and 1.10(b).

[3] The rule in paragraph (a) does not prohibit representation where neither questions of client loyalty nor protection of confidential information are presented. Where one lawyer in a firm could not effectively represent a given client because of strong political beliefs, for example, but that lawyer will do no work on the case and the personal beliefs of the lawyer will not materially limit the representation by others in the firm, the firm should not be disqualified. On the other hand, if an opposing party in a case were owned by a lawyer in the law firm, and others in the firm would be materially limited in pursuing the matter because of loyalty to that lawyer, the personal disqualification of the lawyer would be imputed to all others in the firm.

[4] The rule in paragraph (a) also does not prohibit representation by others in the law firm where the person prohibited from involvement in a matter is a nonlawyer, such as a paralegal or legal secretary. Nor does paragraph (a) prohibit representation if the lawyer is prohibited from acting because of events before the person became a lawyer, for example, work that the person did while a law student. Such persons, however, ordinarily must be screened from any personal participation in the matter to avoid communication to others in the firm of confidential information that both the nonlawyers and the firm have a legal duty to protect. See Rules 1.0(k) and 5.3.

[5] Rule 1.10(b) operates to permit a law firm, under certain circumstances, to represent a person with interests directly adverse to those of a client represented by a lawyer who formerly was associated with the firm. The Rule applies regardless of when the formerly associated lawyer represented the client. However, the law firm may not represent a person with interests adverse to those of a present client of the firm, which would violate Rule 1.7. Moreover, the firm may not represent the person where the matter is the same or substantially related to that in which the formerly associated lawyer represented the client and any other lawyer currently in the firm has material information protected by Rules 1.6 and 1.9(c).

[6] Rule 1.10(c) removes imputation with the informed consent of the affected client or former client under the conditions stated in Rule 1.7. The conditions stated in Rule 1.7 require the lawyer to determine that the representation is not prohibited by Rule 1.7(b) and that each affected client or former client has given informed consent to the representation, confirmed in writing. In some cases, the risk may be so severe that the conflict may not be cured by client consent. For a discussion of the effectiveness of client waivers of conflicts that might arise in the future, see Rule 1.7, Comment [22]. For a definition of informed consent, see Rule 1.0(e).

[7] Where a lawyer has joined a private firm after having represented the government, imputation is governed by Rule 1.11 (b) and (c), not this Rule. Under Rule 1.11(d), where a lawyer represents the government after having served clients, in private practice, nongovernmental employment or in another government agency, former-client conflicts are not imputed to government lawyers associated with the individually disqualified lawyer.

[8] Where a lawyer is prohibited from engaging in certain transactions under Rule 1.8, paragraph (k) of that Rule, and not this Rule, determines whether that prohibition also applies to other lawyers associated in a firm with the personally prohibited lawyer.

[9] The duty to avoid the appearance of impropriety discussed in Comment [37] to Rule 1.7 is likewise applicable to Rule 1.9 and Rule 1.10.

(a) Except as law may otherwise expressly permit, a lawyer who has formerly served as a public officer or employee of the government:
(1) is subject to Rule 1.9(c); and
(2) shall not otherwise represent a client in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee, unless the appropriate government agency gives its informed consent, confirmed in writing, to the representation.
(b) When a lawyer is disqualified from representation under paragraph (a), no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a matter unless:
(1) the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom; and
(2) written notice is promptly given to the appropriate government agency to enable it to ascertain compliance with the provisions of this rule.
(c) Except as law may otherwise expressly permit, a lawyer having information that the lawyer knows is confidential government information about a person acquired when the lawyer was a public officer or employee, may not represent a private client whose interests are adverse to that person in a matter in which the information could be used to the material disadvantage of that person. As used in this Rule, the term "confidential government information" means information which has been obtained under governmental authority and which, at the time this Rule is applied, the government is prohibited by law from disclosing to the public or has a legal privilege not to disclose, and which is not otherwise available to the public. A firm with which that lawyer is associated may undertake or continue representation in the matter only if the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom.
(d) Except as law may otherwise expressly permit, a lawyer currently serving as a public officer or employee:
(1) is subject to Rules 1.7 and 1.9; and
(2) shall not:
(i) participate in a matter in which the lawyer participated personally and substantially while in private practice or nongovernmental employment, unless; the appropriate government agency gives its informed consent, confirmed in writing; or
(ii) negotiate for private employment with any person who is involved as a party or as lawyer for a party in a matter in which the lawyer is participating personally and substantially, unless the lawyer has the consent, confirmed in writing, of the appropriate government supervisor or official. A lawyer serving as a law clerk to a judge or other adjudicative officer is subject to Rule 1.12(b).
(e) As used in this Rule, the term "matter" includes:
(1) any judicial or other proceeding, application, request for a ruling or other determination, contract, claim, controversy, investigation, charge, accusation, arrest or other particular matter involving a specific party or parties, and
(2) any other matter covered by the conflict of interest rules of the appropriate government agency.

COMMENT

[1] A lawyer who has served or is currently serving as a public officer or employee is personally subject to the Rules of Professional Conduct, including the prohibition against concurrent conflicts of interest stated in Rule 1.7. In addition, such a lawyer may be subject to statutes and government regulations regarding conflict of interest. Such statutes and regulations may circumscribe the extent to which the government agency may give consent under this Rule. See Rule 1.0(e) for the definition of informed consent.

[2] Paragraphs (a)(1), (a)(2) and (d)(1) restate the obligations of an individual lawyer who has served or is currently serving as an officer or employee of the government toward a former government or private client. Rule 1.10 is not applicable to the conflicts of interest addressed by this Rule. Rather, paragraph (b) sets forth a special imputation rule for former government lawyers that provides for screening and notice. Because of the special problems raised by imputation within a government agency, paragraph (d) does not impute the conflicts of a lawyer currently serving as an officer or employee of the government to other associated government officers or employees, although ordinarily it will be prudent to screen such lawyers.

[3] Paragraphs (a)(2) and (d)(2) apply regardless of whether a lawyer is adverse to a former client and are thus designed not only to protect the former client, but also to prevent a lawyer from exploiting public office for the advantage of another client. For example, a lawyer who has pursued a claim on behalf of the government may not pursue the same claim on behalf of a later private client after the lawyer has left government service, except when authorized to do so by the government agency under paragraph (a). Similarly, a lawyer who has pursued a claim on behalf of a private client may not pursue the claim on behalf of the government, except when authorized to do so by paragraph (d). As with paragraphs (a)(1) and (d)(1), Rule 1.10 is not applicable to the conflicts of interest addressed by these paragraphs.

[4] This Rule represents a balancing of interests. On the one hand, where the successive clients are a government agency and another client, public or private, the risk exists that power or discretion vested in that agency might be used for the special benefit of the other client. A lawyer should not be in a position where benefit to the other client might affect performance of the lawyer's professional functions on behalf of the government. Also, unfair advantage could accrue to the other client by reason of access to confidential government information about the client's adversary obtainable only through the lawyer's government service. On the other hand, the rules governing lawyers presently or formerly employed by a government agency should not be so restrictive as to inhibit transfer of employment to and from the government. The government has a legitimate need to attract qualified lawyers as well as to maintain high ethical standards. Thus a former government lawyer is disqualified only from particular matters in which the lawyer participated personally and substantially. The provisions for screening and waiver in paragraph (b) are necessary to prevent the disqualification rule from imposing too severe a deterrent against entering public service. The limitation of disqualification in paragraphs (a)(2) and (d)(2) to matters involving a specific party or parties, rather than extending disqualification to all substantive issues on which the lawyer worked, serves a similar function.

[5] When a lawyer has been employed by one government agency and then moves to a second government agency, it may be appropriate to treat that second agency as another client for purposes of this Rule, as when a lawyer is employed by a city and subsequently is employed by a federal agency. However, because the conflict of interest is governed by paragraph (d), the latter agency is not required to screen the lawyer as paragraph (b) requires a law firm to do. The question of whether two government agencies should be regarded as the same or different clients for conflict of interest purposes is beyond the scope of these Rules. See Rule 1.13 Comment [6].

[6] Paragraphs (b) and (c) contemplate a screening arrangement. See Rule1.0(k) (requirements for screening procedures). These paragraphs do not prohibit a lawyer from receiving a salary or partnership share established by prior independent agreement, but that lawyer may not receive compensation directly relating the lawyer's compensation to the fee in the matter in which the lawyer is disqualified.

[7] Notice, including a description of the screened lawyer's prior representation and of the screening procedures employed, generally should be given as soon as practicable after the need for screening becomes apparent.

[8] Paragraph (c) operates only when the lawyer in question has knowledge of the information, which means actual knowledge; it does not operate with respect to information that merely could be imputed to the lawyer.

[9] Paragraphs (a) and (d) do not prohibit a lawyer from jointly representing a private party and a government agency when doing so is permitted by Rule 1.7 and is not otherwise prohibited by law.

[10] For purposes of paragraph (e) of this Rule, a "matter" may continue in another form. In determining whether two particular matters are the same, the lawyer should consider the extent to which the matters involve the same basic facts, the same or related parties, and the time elapsed.

(a) Except as stated in paragraph (d), a lawyer shall not represent anyone in connection with a matter in which the lawyer participated personally and substantially as a judge or other adjudicative officer or law clerk to such a person or as an arbitrator, mediator or other third-party neutral, unless all parties to the proceeding give informed consent, confirmed in writing.
(b) A lawyer shall not negotiate for employment with any person who is involved as a party or as lawyer for a party in a matter in which the lawyer is participating personally and substantially as a judge or other adjudicative officer, or as an arbitrator, mediator or other third party neutral. A lawyer serving as a law clerk to a judge or other adjudicative officer may negotiate for employment with a party or lawyer involved in a matter in which the clerk is participating personally and substantially, but only after the lawyer has notified the judge, or other adjudicative officer
(c) If a lawyer is disqualified by paragraph (a), no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in the matter unless:
(1) the disqualified lawyer is screened from any participation in the matter and is apportioned no part of the fee therefrom; and
(2) written notice is promptly given to the appropriate tribunal to enable it to ascertain compliance with the provisions of this rule.
(d) An arbitrator selected as a partisan of a party in a multi-member arbitration panel is not prohibited from subsequently representing that party.

COMMENT:

[1] This Rule generally parallels Rule 1.11. The term "personally and substantially" signifies that a judge who was a member of a multimember court, and thereafter left judicial office to practice law, is not prohibited from representing a client in a matter pending in the court, but in which the former judge did not participate. So also the fact that a former judge exercised administrative responsibility in a court does not prevent the former judge from acting as a lawyer in a matter where the judge had previously exercised remote or incidental administrative responsibility that did not affect the merits. Compare the Comment to Rule 1.11. The term "adjudicative officer" includes such officials as judges pro tempore, referees, special masters, hearing officers and other parajudicial officers, and also lawyers who serve as part-time judges. Compliance Canons A(2), B(2) and C of the Model Code of Judicial Conduct provide that a part-time judge, judge protempore or retired judge recalled to active service, may not "act as a lawyer in any proceeding in which he served as a judge or in any other proceeding related thereto." Although phrased differently from this Rule, those Rules correspond in meaning.

[2] Like former judges, lawyers who have served as arbitrators, mediators or other third-party neutrals may be asked to represent a client in a matter in which the lawyer participated personally and substantially. This Rule forbids such representation unless all of the parties to the proceedings give their informed consent, confirmed in writing. See Rule 1.0(e) and (b). Other law or codes of ethics governing third-party neutrals may impose more stringent standards of personal or imputed disqualification. See Rule 2.4.

[3] Although lawyers who serve as third-party neutrals do not have information concerning the parties that is protected under Rule 1.6, they typically owe the parties an obligation of confidentiality under law or codes of ethics governing third-party neutrals. Thus, paragraph(c) provides that conflicts of the personally disqualified lawyer will be imputed to other lawyers in a law firm unless the conditions of this paragraph are met.

[4] Requirements for screening procedures are stated in Rule 1.0(k). Paragraph (c)(1) does not prohibit the screened lawyer from receiving a