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Late-fee rule for lawyers is shot down

by John Lynch | April 10, 2014 at 5:19 a.m.

A court rule that suspends Arkansas lawyers who don’t pay their bar dues on time is unconstitutional, Pulaski County Circuit Judge Wendell Griffen ruled on Wednesday as he rejected a challenge to the credentials of a Conway attorney running for judge.

Griffen had to decide three issues in a hurry:

Did lawyer Angela Byrd lose her eligibility to seek a circuit judgeship because she paid her $200 licensing fee 36 hours late this year?

Can a lawyer be suspended for not paying dues on time without having a chance to contest the sanction?

Is the suspension of a law license the same thing as suspending an attorney’s authority to practice law?

The answer to all those questions is no, Griffen concluded after a day-long hearing.

He ruled that Byrd, licensed since 1992, is a qualified candidate for the post she is seeking and a lawyer’s license cannot be suspended without a hearing.

To suspend a lawyer’s license without the due process of a hearing is a constitutional violation, Griffen said.

The judge also ruled there is a difference in suspensions - a pronouncement that he acknowledged appears to be contradictory.

He said a written ruling, required for an appeal, will be issued by Friday.

The decision was a double-win for Byrd and her attorney Bob Newcomb. Byrd was the target of a lawsuit filed last week by a Conway man, Lonnie Williams, who claimed the late payment amounted to a license suspension under court rules.

Williams, represented by attorneys John Tull and Allen Dobson, argued that suspension created a licensing lapse that should disqualify her under a law that mandates circuit judges be licensed for at least six years before taking office.

Byrd, in turn, used the proceedings to sue Arkansas Supreme Court Clerk Les Steenin his role as the courts licensing administrator, arguing that Steen could not take her law license under the late-pay rule without giving her a hearing to oppose the sanction.

The seven-hour hearing was necessarily rushed, with the parties using the lunch hour to gather witnesses and evidence, because the election is May 20 and state and county election officials need time to prepare for the races.

Griffen also needed to make his decision quickly so it could be appealed to the Arkansas Supreme Court, which will also try to rule on an expedited schedule.

The qualifications of two other judicial candidates, H.G. Foster of Conway and Tim Fox, an incumbent Pulaski County circuit judge, are being challenged in lawsuits that make the same late-payment argument.

Fox’s dues were paid 45 days late last year, while Foster has paid late four out of the past six years, taking as long as 77 days to pay the fee that is generally due every March 1.

Foster is attempting to get the high court to intervene directly, while Fox awaits a hearing like Byrd’s. The state Supreme Court is going to appoint a special judge to decide Fox’s case.

Both Foster and Byrd are seeking separate judgeships in the 20th Judicial Circuit, which is Faulkner, Searcy and Van Buren counties.

The issue of whether the courts’ late-pay rule, which bars lawyers from practicing until their dues are paid, was first raised in a lawsuit challenging the candidacy of Little Rock lawyer Valerie Thompson Bailey, who wanted to challenge Fox. She was licensed in 1999 but accepted a nine-year administrative suspension for late-payment and educational requirements.

She was reinstated in 2011, and argued that the courts should consider administrative suspensions differently from punitive sanctions. But a judge, John Cole, disqualified her as a judicial candidate under the six-year rule last month, saying all suspensions are the same.

But Wednesday, Griffen received evidence that Cole had not - testimony from Steen that he makes a distinction between suspensions, although he could not say why he did, beyond the fact that the clerk’s office has always considered late-pay breaches differently from other suspensions. About 700 to 900 lawyers are late-payers every year, he told the judge.

The practice dates back 33 years and was in place when he joined the clerk’s office in 1980, Steen testified.

Steen testified that lawyers are considered suspended from practicing once they miss the payment deadline but the penalty is deleted from their records once they pay the fee, plus a penalty, typically an additional $100. It’s the only administrative suspension that is erased and is considered retroactive, Steen said.

His attorney, Bill Bristow, compared the practice to the expungment of a criminal conviction available to defendants who meet certain criteria. It leaves attorneys with a “clear record,” Bristow said.

Steen’s practice for late-payers has even affected Attorney General Dustin McDaniel.

According to a letter to Steen and his boss, Supreme Court Chief Justice Jim Hannah, McDaniel notified them on Tuesday that the attorney general’s office, required by statute to represent state agencies, could not defend Steen in the lawsuit because his office had inadvertently run afoul of the late-pay rule.

According to the letter, testimony by McDaniel chief deputy Brad Phelps at Wednesday’s hearing and a records review by the Arkansas Democrat-Gazette, a clerical error delayed by 12 days the dues payments that McDaniel makes on behalf of himself and his 74-lawyer staff of deputies.

Steen promised Phelps that the attorney general had “nothing to worry about. [The late payment] would have no adverse effect on our lawyers,” but the office would have to pay the $100 per attorney late fee, Phelps told the judge.

Seven weeks later, after learning a staff attorney was listed in court records as being under suspension, Phelps said he contacted Steen again who promised to “take care of it,” and the entries were removed.

Front Section, Pages 1 on 04/10/2014

Print Headline: Late-fee rule for lawyers is shot down

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