Ligon v. Clouette

2011 Ark. 68, 378 S.W.3d 708, 2011 Ark. LEXIS 66
CourtSupreme Court of Arkansas
DecidedFebruary 17, 2011
DocketNo. 10-844
StatusPublished
Cited by2 cases

This text of 2011 Ark. 68 (Ligon v. Clouette) 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
Ligon v. Clouette, 2011 Ark. 68, 378 S.W.3d 708, 2011 Ark. LEXIS 66 (Ark. 2011).

Opinion

DONALD L. CORBIN, Justice.

|i This is an appeal from a disciplinary action by the Supreme Court Committee on Professional Conduct (Committee) against attorney James P. Clouette. The Committee’s Executive Director, Stark Li-gón, brings the appeal from a June 24, 2010 order filed by Panel B of the Committee cautioning Mr. Clouette upon a finding that he violated Rule 8.4(b) of the Arkansas Rules of Professional Conduct (Rules). Director Ligón (the Director) raises two points on appeal: (1) that Panel B erred in cautioning Mr. Clouette for the violation of Rule 8.4(b) because Clouette’s misconduct constituted “serious misconduct” as defined in section 17(B) of the Arkansas Supreme Court Procedures Regulating Professional Conduct (Procedures) and, thus, warranted the more severe sanction of disbarment or suspension; and (2) that Panel B erred in finding that Clouette did not violate Arkansas Rule of Professional Conduct 8.4(d). As this court has jurisdiction of appeals involving attorney discipline, our | ¡jurisdiction is pursuant to Arkansas Supreme Court Rule 1 — 2(a)(5) (2010). We affirm the Committee’s findings but remand for modification of the sanction imposed.

The record reveals that on March 27, 2009, Clouette was charged by felony information with one count of possession of a controlled substance, methamphetamine. This Class C felony charge arose after bank personnel reported finding a small plastic bag, with what was later determined to be methamphetamine, in the bank lobby. Video surveillance from the bank showed Clouette walking across the lobby when a white spot materialized on the floor behind him. This video footage led to Clouette’s arrest and the felony charge.

Clouette was tried before the bench and found guilty on November 23, 2009. Pursuant to Arkansas Code Annotated section 5-64-413 (Repl.2005), the circuit court deferred judgment and placed Clouette on probation for a period of two years. In an order of probation filed on January 5, 2010, the circuit court imposed several conditions of probation, including completion of a drug rehabilitation program, submission to weekly drug screens, participation in this court’s Judges and Lawyers Assistance Program (JLAP), and payment of certain fees and costs.

Clouette was served with a formal complaint filed by the Director on January 11, 2010. Therein, the Director alleged that the finding of guilt of the felony charge of possession of methamphetamine entered against Clouette was a serious crime and resulted in violations of Rule 8.4(b) and (d). Clouette filed a response, asserting that although the circuit court entered a finding of guilt, no judgment of conviction had been entered and that once he | ^successfully completes probation, there will never have been any charges pending against him. Further, he responded that he did not believe there had been a violation of Rule 8.4(b) because his conduct was not an offense involving violence, dishonesty, breach of trust, or serious interference with the administration of justice. Clouette asserted that any substance-abuse problem that he might have should be handled by the Arkansas Lawyer Assistance Program, now known as JLAP, and not by the Committee. Finally, Clouette asserted that he did not violate Rule 8.4(d) because his conduct alone, the possession of drugs, was not prejudicial to the administration of justice.

The case proceeded to a ballot vote before Panel A on March 19, 2010. Clouette then requested a public hearing, which was held before Panel B of the Committee on June 18, 2010. At the hearing, Clouette testified that he has been practicing law for the last thirty years, with his practice made up of predominantly criminal-defense cases. Clouette admitted that he was charged with and found guilty of felony possession of methamphetamine. Clouette stated that he could not specifically state that the drugs found in the bank lobby belonged to him but that it was possible because he was using drugs at that time. Clouette went on to state that he did not dispute the circuit court’s finding of guilt. Clouette admitted that he had a drinking problem and formed a drug habit later in life, stating that his usage was small and primarily occurred on weekends. Clouette stated that he realized using drugs was a bad mistake and he had no one to blame but himself. Clouette stated that he was participating in the JLAP program as part of the circuit court’s order of probation, as well as attending |4Alcoholics Anonymous meetings. He also explained that he is drug tested every week, at his own expense, and that the test is administered by the bailiff in the Fourth Division Circuit Court. Clouette admitted that the publicity related to his case did impair the amount of business in his practice, but later stated that he had only two clients ask for their money back. Clouette admitted that his conduct was disrespectful to the justice system and that he felt “terrible for the bar as a whole” because of his conduct. As for prior disciplinary proceedings, Clouette stated that he had two rules on clerk over twenty years ago, and was also referred to the Committee in 2009 because of an invalid order of extension.

Bailiff Clyde Steelman of the Fourth Division Circuit Court also testified and stated that he had been involved in drug testing Clouette since May 2009. He stated that either he or one of his employees tests Clouette on a weekly basis and that Clouette has tested negative for controlled substances on each of those occasions.

Bill Luppen, also a criminal-defense attorney, testified that he deals regularly with Clouette and has never seen him impaired or what appeared to be impaired in terms of his representation. Luppen also stated that if the Committee chose to place Clouette on probation or require that he be supervised by another attorney, Lup-pen would be willing to serve in that capacity.

The Committee entered its Findings and Order on June 24, 2010, unanimously finding that Clouette violated Rule 8.4(b) by illegally possessing a controlled substance, methamphetamine, a Class C felony and “serious crime” as defined by the Procedures. The 1 r,Panel reasoned that the circuit court’s finding that Clouette was guilty of the charge and his subsequent probation constituted “a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects” and was, thus, a violation of Rule 8.4(b).

The Panel also found, by a vote of four to three, that Clouette’s conduct did not violate Rule 8.4(d), which prohibits an attorney from engaging in conduct prejudicial to the administration of justice. The Panel then, by a vote of four to three, voted for the sanction of a caution, with the three dissenting members voting for a reprimand. In addition, the Panel voted to place Clouette on probation for the same time period ordered by the Pulaski County Circuit Court and subject to the same conditions, including drug testing. The Panel stated that Bill Luppen, or another attorney mutually agreed upon by Clouette and the Director, would serve as Clouette’s probation monitor for the Committee and was to report any violations of the terms of probation to the Committee. From that order comes the instant appeal.

The standard of review for an appeal from the Committee is as follows:

Pursuant to section 12(B) of the Procedures, our standard of review when reviewing a decision of the Committee is de novo on the record.

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Bluebook (online)
2011 Ark. 68, 378 S.W.3d 708, 2011 Ark. LEXIS 66, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ligon-v-clouette-ark-2011.