Arkansas Specific Section

Arkansas Specific Section

Billing Issues

• Johnson v. Guardianship of Ratcliff, 34 S.W.3d 749 (Ark. Ct. App. 2000, no pet.) (listing factors to consider in determining the reasonableness of a fee).

• Hotel Associates, Inc. v. Rieves, Rubens & Mayton, 435 S.W.3d 488 (Ark. 2014) (holding that an oral contingency-fee agreement between an attorney and his client was enforceable, where, although the rules of professional conduct required contingency-fee agreements to be in writing, there was no dispute over the existence and the terms of the agreement, there was no contention that the agreed-upon fee was unreasonable, and the client and the attorney had a long-term professional, as well as personal relationship).

• Ligon v. Rees, 364 S.W.3d 1 (Ark. 2010) (A “caution,” and a $1,000 fine, rather than a reprimand, constituted the appropriate sanction for an attorney's violations of the rule of professional conduct prohibiting lawyers from providing financial assistance to a client in connection with pending or contemplated litigation).

• Johnson v. Walker, No. 4:14-CV-04078, 2015 WL 2078444 (W.D. Ark. May 4, 2015, no pet.) (holding that the enforceability of an oral contingency-fee agreement was dependent on a disputed issue of fact regarding fraudulent and material misrepresentations by the attorney to the client).

• Cortinez v. Arkansas Supreme Court Comm. on Prof'l Conduct, 111 S.W.3d 369 (Ark. 2003) (holding that the attorney’s fee was unreasonable in light of the amount of work performed).

• Neal v. Hollingsworth, 992 S.W.2d 771 (Ark. 1999) (holding that the misappropriation of more than $100,000 of estate's funds to attorney’s own use over a period of five years and attempting to postpone discovery by failing to account to the probate court or executrix warranted disbarment).

·  Ligon v. Price, 200 S.W.3d 417 (Ark. 2004) (holding that disbarment was warranted where the attorney failed to maintain an attorney trust account and failed to refund money owed to clients).

Client Relations

·  Baptists Health v. Smith, 393 F. Supp. 2d 719 (E.D. Ark. 2005) (holding that defendant’s counsel’s failure to promptly respond to plaintiff’s counsel’s request for deposition entitled the plaintiff to its attorney’s fees in defending the defendant’s motion to quash deposition).

·  Coakes v. State, 429 S.W.3d 209 (Ark. 2013) (holding that if there is an attorney error in failure to timely perfect an appeal, a copy of the opinion granting a motion for rule on clerk will be forwarded to the Committee on Professional Conduct).

·  Moss v. State, 308 S.W.3d 611 (Ark. 2009) (holding that defendant's attorney was at fault for the failure to timely perfect appeal, and thus defendant was entitled to file a belated appeal and a copy of the opinion granting a motion for rule on clerk was forwarded to the Committee on Professional Conduct).

·  Ligon v. McCullough, 303 S.W.3d 78 (Ark. 2009) (holding that seventy-five violations of the Arkansas Rules of Professional Conduct, which included a long history of failing to refund unearned fees, failing to keep clients advised of the status of their matters, failing to respond to client inquiries and correspondence, and failing to appear at hearings or file timely motions, warranted disbarment).

·  Ligon v. Newman, 231 S.W.3d 662 (Ark. 2006) (holding that multiple violations of the Arkansas Rules of Professional Conduct, including the failure to deposit client funds into a trust account and the failure to keep clients informed, warranted disbarment).

·  Neal v. Hollingsworth, 992 S.W.2d 771 (Ark. 1999) (holding that multiple violations of the Arkansas Rules of Professional Conduct, including the failure to account for trust funds and the failure to keep clients informed, warranted disbarment).

·  Young v. Ligon, 283 S.W.3d 587 (Ark. 2008) (holding that the attorney engaged in serious misconduct involving dishonesty or deceit by taking a fee from a new client while withholding the fact that his license was soon to be suspended).

·  Walker v. Supreme Court Comm. on Prof'l Conduct, 246 S.W.3d 418 (Ark. 2007) (holding that the attorney's failure to return a client's calls until after the statute of limitations on her claim had expired violated the Arkansas Rules of Professional Conduct and warranted a three year license suspension).

·  Mays v. Neal, 938 S.W.2d 830 (Ark. 1997) (holding that the attorney failed to communicate with his client to the extent necessary to permit her to make informed decisions regarding personal injury representation, which warranted a reprimand).

·  Ligon v. Rees, 364 S.W.3d 28 (Ark. 2010) (holding that the attorney failed to explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation).

·  Ligon v. Price, 200 S.W.3d 417 (Ark. 2004) (holding that the attorney failed to keep his client reasonably informed: he visited his client in a state hospital merely one time in the course of his approximately year-long representation and made no other attempts to contact his client).

·  Clark v. Supreme Court Comm. on Prof'l Conduct, 898 S.W.2d 446 (Ark. 1995) (holding that the attorney violated the Arkansas Rules of Professional Conduct by ignoring his client’s case for two years, causing the statute of limitations to run without filing a petition in the correct county).

Conflicts of Interest

• Samontry v. State, 387 S.W.3d 178 (Ark. 2012) (holding that the circuit court abused its discretion in disqualifying counsel from representation of a criminal defendant based on counsel's previous representation of a codefendant in district court, in a case in which the defendant was convicted at district court level but appealed to the circuit court, where there was no proof that the interests of defendant and codefendant were adverse for purposes of attorney's representation, and the attorney represented that the defendant had made a knowing and intelligent waiver of any conflict).

• Tapp v. Ligon, 441 S.W.3d 4 (Ark. 2014) (holding that the attorney’s representation of a client, knowing that he had briefly represented and been paid a fee by an opposing party, violated the Arkansas Rules of Professional Conduct, constituted serious misconduct that involved deceit or misrepresentation, and warranted a suspension from the practice of law for ninety days with a $10,000 fine).

• Craig v. Carrigo, 12 S.W.3d 229 (Ark. 2000) (holding that disqualification based on conflict of interest was not warranted where the attorney for the estate’s arguments on behalf of a personal representative charged with probating a will were consistent with the interests of the sole devisee under the will and prejudicial to the remaining potential heirs).

• Wilburn v. State, 56 S.W.3d 365 (Ark. 2001) (stating, for disqualification purposes, “[t]he cornerstone principle in all conflict cases is whether prejudice will result to the client as a result of the conflict of interest. That prejudice must be real and have some demonstrable detrimental effect on the client and not merely be abstract or theoretical.”).

• Rackley v. State, No. CR-12-157, 2014 WL 346713 (Ark. Jan. 30, 2014) (holding that the attorney, who represented both a defendant in a prosecution for multiple counts of various sex offenses arising from alleged sexual molestation of the defendant's step-daughter, and his wife, who also was faced with charges stemming from the defendant's sexual abuse of her daughter, had an actual conflict of interest such that the attorney provided ineffective assistance of counsel, where the attorney did not produce any written documentation that the defendant consented to the conflict of interest, as required by the Arkansas Rules of Professional Conduct).

• First Am. Carriers, Inc. v. Kroger Co., 787 S.W.2d 669 (Ark. 1990) (holding that disqualification was proper where two attorneys from the same firm unknowingly represented opposing parties).

• Etoch v. Simes, 10 S.W.3d 866 (Ark. 2000) (holding that a contempt and sanctions order against attorneys was warranted where the attorneys moved to withdraw from representation of the defendant on the day of the trial for capital murder based on a conflict of interest due to representation of a codefendant. The attorneys were aware months before trial that the defenses were likely to be antagonistic. The conflict arose when one attorney entered an appearance in the codefendant's case weeks before trial, and the motion to withdraw was made shortly after the trial court denied motions for continuance).

• Whitmer v. Sullivent, 284 S.W.3d 6 (Ark. 2008) (holding that no direct or concurrent conflict of interest existed for a father's attorney in a child custody dispute based on the fact that the attorney was also a prosecutor and criminal charges had been brought by the prosecuting attorney's office against the mother's husband. Thus, the attorney was not disqualified from representing the father; the attorney, in his duties as prosecutor, represented the people, not the mother, who was the complaining witness in the criminal proceeding).

• Ligon v. Rees, 364 S.W.3d 28 (Ark. 2010) (holding that a one year license suspension was warranted where the attorney violated conflict of interest rules by representing a party against a former client that was a direct adversary to his current client without informing either party of the conflict or obtaining their consent).

• Avery v. State, 217 S.W.3d 162 (Ark. Ct. App. 2005, post-conviction relief denied) (holding that there was no conflict of interest where two of the attorneys prosecuting the defendant for various crimes had previously represented the defendant in criminal matters because the attorneys' involvement did not involve the use of information relating to their prior representation and did not involve the same or substantially related matter as the prior representation).

• Holmes v. McClendon, 76 S.W.3d 836 (Ark. 2002) (holding that the attorney did not have a conflict of interest when he represented both the husband individually and the husband's deceased wife and child estates in their tort and wrongful death actions).

• McAdams v. Ellington, 970 S.W.2d 203 (Ark. 1998) (holding that the attorney who represented a former husband and wife in a joint petition for annulment of divorce decree was disqualified from representing the wife in the husband's subsequent action regarding the parties' rights to personal property, which was a subject of the divorce decree).

• In re Marlar, 248 B.R. 577 (Bankr. W.D. Ark. 2000no pet.) (stating, “in order to obtain disqualification of [a trustee’s] attorney based upon the prior representation of a creditor, something more than the dual representation must be shown.”).

• Sturdivant v. Sturdivant, 241 S.W.3d 740 (Ark. 2006) (holding that the wife’s attorney was disqualified in a custody dispute, due to the fact that the wife’s attorney had met with the husband as a prospective client wherein they discussed the facts of the case and the husband disclosed confidential information, although the husband ultimately retained separate counsel).

• Smith v. Campbell, 26 S.W.3d 139 (Ark. Ct. App. 2000, no pet.) (holding that disqualification of the attorney was not warranted merely by the fact that the attorney was a former judge and served from time to time as a special judge).

Documentation

• Sturdivant v. Sturdivant, 241 S.W.3d 740 (Ark. 2006) (holding that the attorney was properly disqualified based on conflict of interest where no informed consent was provided by the prospective client).

Marketing

•  Ligon v. Price, 200 S.W.3d 417 (Ark. 2004) (holding that there was no evidence that the attorney violated the rule prohibiting in person solicitation of clients, where the client testified that he had heard of the attorney through another individual and that the attorney did not solicit him).

•  Allen v. Allison, 356 Ark. 403, 420, 155 S.W.3d 682, 694 (2004) (holding that there is no cause of action in Arkansas for breach of warranty to obtain a specific result when an attorney advises his or her client regarding the outcome of a case, e.g. “this case is worth big bucks”).

Missed Deadlines

• Ligon v. McCullough, 303 S.W.3d 78 (Ark. 2009) (holding that seventy-five violations of the Arkansas Rules of Professional Conduct, which included a long history of failing to refund unearned fees, failing to keep clients advised of the status of their matters, failing to respond to client inquiries and correspondence, and failing to appear at hearings or file timely motions, warranted disbarment).

• Ligon v. Price, 200 S.W.3d 417 (Ark. 2004) (holding that an attorney violated the Arkansas Rules of Professional Conduct by failing to respond to interrogatories and requests for production).

• Baptists Health v. Smith, 393 F. Supp. 2d 719 (E.D. Ark. 2005, no pet.) (holding that defendant’s counsel’s failure to promptly respond to plaintiff’s counsel’s request for deposition entitled the plaintiff to its attorney’s fees in defending the defendant’s motion to quash deposition).

• Coakes v. State, 429 S.W.3d 209 (Ark. 2013) (holding that an attorney's failure to file a trial record within seven months of the sentencing order warranted grant of motion for rule on clerk).

• Moss v. State, 308 S.W.3d 611 (Ark. 2009) (holding that the attorney was at fault for failure to timely perfect appeal, and thus defendant was entitled to file a belated appeal).

• Clark v. Supreme Court Comm. on Prof'l Conduct, 898 S.W.2d 446 (Ark. 1995) (holding that the attorney violated the Arkansas Rules of Professional Conduct by failing to timely file a petition in the correct county prior to the expiration of the statute of limitations period).