The state cannot suspend an attorney’s authority to practice law - in essence, the ability to earn a living - without giving the attorney an opportunity to challenge the sanction, Pulaski County Circuit Judge Wendell Griffen wrote in an 18-page ruling released Friday to codify his decision this week nullifying a court rule that automatically suspends lawyers who pay their annual dues late.
Griffen declared the rule, No. 7 of the bar admission rules, unconstitutional Wednesday in response to a challenge to its legality by Conway attorney Angela Byrd, a former prosecutor running for judgeship in the 20th Judicial Circuit, which comprises Faulkner, Searcy and Van Buren counties.
Byrd contended the automatic-suspension rule was illegal because she was denied her constitutional guarantees of due process, which give her the right to challenge the suspension.
In his decision, Griffen said he had to weigh the competing interests of Byrd, who needs her license to work, against the government, which uses the licensing fee to help fund the legal system. The government’s need to collect the fees is nota good enough reason to take Byrd’s livelihood away without giving her a chance to defend herself, Griffen stated.
“The [government] interest in providing adequate funding for administration and regulation of the practice of law is certainly legitimate,” the judge wrote. “But that legitimate interest does not justify denying a licensed lawyer reasonable notice and the opportunity to be heard before the privilege of engaging in the practice of law under the terms of the law license is suspended.”
Byrd’s challenge, a lawsuit against Arkansas Supreme Court Clerk Les Steen, who administers lawyer licenses, was in response to a lawsuit against her by a Conway man, Lonnie Williams, who disputed her eligibility to be a judge because her law license had been suspended for 36 hours this year for late payment.
The state constitution requires that a circuit-judge candidate be licensed for six years before taking office, but lawsuits against four judicial candidates have raised questions of whether an administrative suspension for late payment can be considered a lapse in licensing sufficient to disqualify a candidate.
Griffen ruled that not only can the administrative sanction not be used to bar a judicial candidate from election, but also that such a suspension cannot be imposed without giving the lawyer notice that a suspension is pending and allowing the lawyer to challenge it.
The ruling favoring Byrd helps another Conway judicial candidate, H.G. Foster, who is facing a lawsuit on the same late-payment grounds, because Griffen is the presiding judge in that case. Foster is scheduled for a hearing before Griffen at 9:30 a.m. Tuesday.
An interim judge in the 20th Judicial Circuit, Foster has also petitioned the Supreme Court to decide the licensing issue directly rather than wait to decide the question on appeal. No hearing has been scheduled.
Griffen’s ruling, affirming Byrd’s eligibility as a candidate, is the second such case to be decided.
The first to be sued, Valerie Thompson Bailey, was disqualified at a hearing last month. She wanted to challenge Pulaski County Circuit Judge Tim Fox’s re-election bid. After Bailey was disqualified and removed from the ballot, Fox was sued because he was 45 days late paying his licensing fee last year.
The question of Fox’s eligibility is the subject of a 1 p.m. hearing Monday before retired Court of Appeals Judge Sam Bird, who was appointed by the state Supreme Court to decide the case.
Fox is following Byrd’s lead by suing Steen in his role as the court’s licensing administer. Like Byrd, Fox asserts that his law license can’t be suspended without a hearing under the due-process guarantees in the state and federal constitutions - the argument that resonated with Griffen. However, Bird is not bound by Griffen’s ruling.
Fox also is arguing that the man disputing his credentials, John K. Kelly, should be prohibited from suing because he waited too long to file his lawsuit. Kelly should have filed his lawsuit with the judge who disqualified Bailey, Fox argues, noting that Kelly has displayed a longtime interest in the disqualification issue and has ties to Bailey. For example, Fox asserted, Kelly is being represented by Bailey’s attorneys, helped recruit her to run against him and discussed online the ruling that disqualified her.
But Kelly did not join Bailey in the suit and draw Fox in as a defendant into the litigation against her, Fox’s attorney, Mark Nichols, argues in court filings. Nichols also contends that Kelly shouldn’t have waited 12 days to bring the suit after absentee ballots were printed.
According to Fox’s pleadings, absentee ballots have already been mailed out with his name on them as an unopposed candidate, which means Kelly’s suit runs afoul of a 2006 Arkansas Supreme Court decision in a similar case in which the high court ruled that there are situations in which a “knowledgeable” plaintiff can wait too long to file suit to challenge a candidate.
Arkansas, Pages 9 on 04/12/2014