Lewellen v. Supreme Court Committee on Professional Conduct

110 S.W.3d 263, 353 Ark. 641, 2003 Ark. LEXIS 343
CourtSupreme Court of Arkansas
DecidedJune 12, 2003
Docket02-1199
StatusPublished
Cited by22 cases

This text of 110 S.W.3d 263 (Lewellen v. Supreme Court Committee on Professional Conduct) is published on Counsel Stack Legal Research, covering Supreme Court of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lewellen v. Supreme Court Committee on Professional Conduct, 110 S.W.3d 263, 353 Ark. 641, 2003 Ark. LEXIS 343 (Ark. 2003).

Opinion

Jim Hannah, Justice.

Roy C. Lewellen appeals a decision of the Supreme Court ■ Committee on Professional Conduct (“Committee”) issuing Lewellen a Caution under the Arkansas Procedures Regulating Professional Conduct, Section 17(D)(5) (2002), due to Lewellen’s failure to timely file a notice of appeal. Lewellen argues that the notice of appeal was filed late only because he justifiably believed that the motions for new trial filed before the judgment and commitment order extended the time within which to file the notice of appeal. He asserts that the statutes and case law as interpreted by this court at the time laid a trap for an attorney in that they gave the impression that a motion for a new trial in a criminal case could be filed at any time before a judgment was entered. We hold that LeweEen violated the Model Rules of Professional Conduct when he faded to comply with the then-existing case law of this court holding that a motion for a new trial filed before a judgment was entered was void. Because the new trial motions were void, the notice of appeal filed on July 8, 1999, was filed more than thirty days from entry of judgment, making the notice untimely. We find no merit in LeweEen’s remaining arguments and affirm the findings and action of the Supreme Court Committee on Professional Conduct.

Facts

LeweEen was retained to appeal the convictions and sentences of Terrance and Tamagum Robinson. After the jury trial and verdict, defense counsel filed separate motions for new trial, one for Terrance and one for Tamagum. The motions were filed May 10, 1999. However, the judgment and commitment orders were not entered until May 24, 1999. Notice of appeal was filed on July 8, 1999.

Thus, the notice of appeal was not filed within thirty days of the judgment and commitment orders. However, LeweEen argued that the time to file the notice of appeal was extended by filing the motions for a new trial. In Robinson v. State, 342 Ark. 384, 39 S.W.3d 432 (2000), this court rejected that argument, citing prior case law which held that a notice of appeal filed before entry of judgment is void and of no effect.

On October 24, 2000, LeweEen filed a motion to reinstate the appeal and admitted to faEure to file a timely notice of appeal. On November 16, 2000, a per curiam opinion was issued accepting LeweEen’s admission of fault and granting the motion to file a belated appeal. See Robinson v. State, 342 Ark. 711, 30 S.W.3d 109 (2000). In that per curiam opinion, LeweEen was referred to the Committee. An action was undertaken by the Committee resulting in the issuance of a complaint on December 8, 2000. In that complaint, Lewellen was given twenty days to respond. Following receipt of Lewellen’s response, the matter was submitted to Panel A of the Committee. On March 29, 2001, Panel A issued a decision imposing a Caution. Lewellen filed a notice of appeal to avail himself of the option of a hearing de novo before Panel B. A hearing was then held on August 16, 2002, before Panel B. Panel B’s initial decision in the matter was to issue a Warning under Arkansas Procedures Regulating Professional Conduct, Section 17(D)(6) (2002). However, upon consideration of the procedures regulating a hearing, the Panel concluded it was without authority to issue a Warning after a public hearing and issued a Caution. Lewellen appeals Panel B’s decision to this court pursuant to Section 12 of the Procedures Regulating Professional Conduct. Procedures of the Arkansas Supreme Court Regulating Professional Conduct of Attorneys, Section 12 (2002).

Standard of Review

Lewellen asserts that this court’s standard of review on decisions from the Supreme Court Committee on Professional Conduct is confused in that the court declares that it reviews the decision de novo and yet will affirm the Committee’s action unless it is clearly against the preponderance of the evidence. Lewellen asserts that de novo means that the matter must be heard by this court anew as if it had never been heard before.

In the context of an appeal to circuit court from municipal court, this court stated, “When a case is appealed to the circuit court it is to be tried de novo, i.e., as though there had been no trial in the lower court.” Harrell v. Conway, 296 Ark. 247, 248, 753 S.W.2d 542 (1988). Such a de novo review is possible in circuit court because the circuit court is a finder of fact. With certain exceptions not relevant to this discussion, this court has appellate jurisdiction only, which means that it has jurisdiction to review an order or decree of an inferior court. Ward Sch. Bus Mfg. v. Fowler, 261 Ark. 100, 547 S.W.2d 394 (1977); see also Houston Contr. Co. v. Young, 271 Ark. 455, 609 S.W.2d 895 (1980). That is why the review provided in Section 12(B) of the Arkansas Procedures Regulating Professional Conduct is not simply a de novo review, but is a de novo review on the record. A de novo review on the record has been the standard of review in attorney discipline cases since at least July 1, 1976, when this court adopted the Rules of the Court Regulating Professional Conduct of Attorneys at Law. See In re Court Rules, 260 Ark. 910 (1976). A de novo review on the record determines whether the factual findings were clearly erroneous, or whether the result reached was arbitrary or groundless. Sturgis v. Skokos, 335 Ark. 41, 977 S.W.2d 217 (1998). Consistently, this court has stated that in attorney discipline matters, it reviews the findings of fact of the Committee to determine if they are clearly erroneous. Cortinez v. Ark. Sup. Ct. Com. on Prof. Cond., 353 Ark. 104, 111 S.W.3d 369; Muhammed v. Ark. Sup. Ct. Com. on Prof. Cond., 291 Ark. 29, 722 S.W.2d 280 (1992). Due deference is given to the Committee’s superior position to determine the credibility of the witnesses and the weight to be accorded to their testimony. Colvin v. Comm. on Prof. Cond., 309 Ark. 592, 832 S.W.2d 246 (1992); see also Neal v. Matthews, 342 Ark. 566, 30 S.W.3d 92 (2000). However, conclusions of law are given no deference on appeal. See Montgomery v. Bolton, 349 Ark. 460, 79 S.W.3d 354 (2002).

Therefore, as this court has stated previously, the Committee’s findings of fact will not be reversed unless they are clearly erroneous, and the action taken by the Committee will be affirmed unless it is clearly against the preponderance of the evidence. Cortinez, supra; Fink v. Neal, 328 Ark. 646, 945 S.W.2d 916 (1997); Muhammed, supra.

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Bluebook (online)
110 S.W.3d 263, 353 Ark. 641, 2003 Ark. LEXIS 343, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lewellen-v-supreme-court-committee-on-professional-conduct-ark-2003.