Ligon v. Tapp

2017 Ark. 185, 519 S.W.3d 315, 2017 Ark. LEXIS 152
CourtSupreme Court of Arkansas
DecidedMay 18, 2017
DocketD-13-150
StatusPublished
Cited by4 cases

This text of 2017 Ark. 185 (Ligon v. Tapp) 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. Tapp, 2017 Ark. 185, 519 S.W.3d 315, 2017 Ark. LEXIS 152 (Ark. 2017).

Opinion

SHAWN A. WOMACK, Associate Justice

| t This is an original action under the Arkansas Supreme Court Procedures Regulating Professional Conduct. Stark Ligón, as Executive Director of the Arkansas Supreme Court Committee on Professional Conduct (“Committee”), seeks the disbarment of John Skylar Tapp (“Tapp”), an attorney licensed to practice law in the State of Arkansas. Our jurisdiction is pursuant to Arkansas Supreme Court Procedures Regulating Professional Conduct section 13(A).

On March 12, 2013, Director Ligón filed a petition for disbarment, which was amended three times to include additional complaints. On March 15, 2013, we appointed special judge John Lineberger to preside over this matter. Ligon v. Tapp, 2013 Ark. 123, 2013 WL 1137021 (per curium). While the disciplinary proceedings were ongoing, Panel B of the Committee entered an interim suspension of Tapp’s license to practice law. Tapp v. Ligon, 2013 Ark. 259, 428 S.W.3d 492. The case was tried over a seventeen-day period from February 24 to |2October 10, 2014. The record generated is over 7,200 pages and encompasses twenty-seven volumes. The Committee alleged over forty violations of the rules governing the conduct of attorneys throughout six separate cases. Each case was individually ruled on during the proceedings. The special judge entered findings of facts and conclusions of law on May 16, 2016, wherein he detailed his findings over 112 pages and concluded that disbarment was the appropriate sanction in this case. We accept his findings and recommendation.

I. Standard of Review

Disciplinary proceedings are neither civil nor criminal in nature but are sui generis, meaning of their own kind. Ligon v. Dunklin, 368 Ark. 443, 447, 247 S.W.3d 498, 503 (2007). We will accept the special judge’s findings of fact unless they are clearly erroneous. Id., 247 S.W.3d at 498. We provide the appropriate sanctions based on the evidence. Id. There is no appeal from this court except as may be provided by federal law. Id.

A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed. Id. at 447-48, 247 S.W.3d at 503; Ligon v. McCullough, 2009 Ark. 165A, at 4, 303 S.W.3d 78, 80; Ligon v. Stewart, 369 Ark. 380, 384, 255 S.W.3d 435, 438 (2007). We must view the evidence in a light most favorable to the decision of the special judge, resolving all inferences in favor of his or her findings of fact. Stewart, 369 Ark. at 384, 255 S.W.3d at 439; Ligon v. Newman, 365 Ark. 510, 516, 231 S.W.3d 662, 667 (2006). Disputed facts and determinations of the credibility of witnesses are within the province of the fact-finder. Stewart, supra; Newman, supra.

II. Conduct

IsThe special judge made the following findings of fact and conclusions of law. We will briefly address the allegations below.

A. Fenimore Matter

Tapp formed an Arkansas Company, GFST, LLC (“GFST”), with his former client, Marilyn Garrett-Fenimore, and her husband to develop coastal property in Florida. Tapp owned one-half of the company and the other half was owned by Garret-Fenimore, LLC, which was managed by the Fenimores. GFST was unable to meet its financial obligations after a downturn in the market, and the bank foreclosed on the GFST properties. Tapp then filed two pro se Chapter 13 bankruptcy petitions, one was for himself and the other was on behalf of GFST and listed the Fenimores as joint debtors and co-owners. Neither of the Fenimores gave him permission to file for bankruptcy on their behalf. Judge Taylor ultimately dismissed both petitions. Tapp admitted he had little experience in bankruptcy court, but could not afford to hire an attorney to represent him in the matter.

Special Judge Lineberger found that Tapp’s actions violated the following rules of the Arkansas Rules of Professional Conduct: 1.1; 1.4(a)(1); 3.1; 3.3(a)(1); 3.4(b); 4.4(a); and 8.4(c), (d). Tapp filed two complex bankruptcy petitions with limited knowledge and experience in bankruptcy court, he represented the Fenimores in the proceeding without them consent, he did not have the authority to unilaterally file for bankruptcy on behalf of GFST, and he improperly filled out the petitions. He failed to correct his mistake when it became clear that GFST was not eligible for Chapter 13 relief. His ignorance consumed valuable judicial resources that could have been used elsewhere. He filed for bankruptcy with the purpose to delay foreclosure proceedings and caused embarrassment to the j 4Fenimores by involving them in a bankruptcy proceeding. The special judge’s findings are not clearly erroneous.

B. Hurst Matter

Tapp represented his cousin, Katharine Hurst, during a divorce proceeding and obtained a divorce decree awarding each spouse half of the proceeds from the sale of their marital home. Tapp held Hurst’s half of the funds in his client’s trust account. The court of appeals affirmed the circuit court’s decision in 2009, but Tapp refused to distribute the funds. After a filing with the Office of Professional Conduct (“OPC”) in 2012, the OPC requested to review his financial statements regarding his trust account from 2006 to 2012. The statements revealed that despite his duty to hold the funds in his account, the funds available dipped well below the minimum $6,611.82 that he was obligated to hold in trust for Hurst several times during the period, and reached a balance as low as $6 at one point. He attempted to make up the difference by infusing fees earned in a separate case.

Special Judge Lineberger found that Tapp’s actions violated the following rules of professional conduct: 1.15(a)(1), (4); 1.15(b)(1), (3); 1.16(d); and 8.4(c). Tapp argues that he did not distribute the funds because they belonged to the bankruptcy trustee and not his client. However, the judge rejected his argument and noted that he did not distribute the funds until after receiving an inquiry notice from the OPC. He failed to safeguard his client’s funds, did not keep accurate records on a current basis, and commingled his funds with those of his clients. He declined to turn over his client’s funds upon request despite his representation in the matter being terminated. Lastly, he made false statements to the OPC | Band to Mr. Wert-zel, the bankruptcy trustee, by stating that he had safeguarded the $6,611.82 in his client’s trust account. The judge’s findings are not clearly erroneous.

C. . Schlenker Condo Matter

Tapp was hired by Mandi and Garland Schlenker and Kathryn DeJar-nette to represent them against another property owner in their condo unit who had negligently repaired her unit and caused damage to their surrounding units. Through the course of his representation he learned that the unit in question was currently in a foreclosure proceeding and was being sold at a public sale. He offered to attend the sale and asked his clients if they wanted to purchase the property, which they declined.

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2017 Ark. 185, 519 S.W.3d 315, 2017 Ark. LEXIS 152, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ligon-v-tapp-ark-2017.