concurring in part; dissenting in part.
I concur in the decision of the majority to affirm the circuit court’s denial of the motion to set aside the judgment under Arkansas Rule of Civil Procedure 60(c)(4) (2012) and to affirm the circuit court’s finding that Kosin was the prevailing party and entitled to attorneys’ fees. However, I respectfully dissent from the holding that there were duplicative fees and from the decision to refer attorney Cornwell to the Committee on Professional Conduct.
114The majority holds that Cornwell’s fees, from the date attorney Clay became attorney of record through October 12, 2009, “represent duplicative billings.” This holding is based on speculation. The circuit court found that Cornwell’s billings “from August 14, 2008, through October 12, 2009, in the amount of $10,111.25 represented legal services recoverable under A.C.A. § 16-22-308 as being attorney fees incurred in the defense of this action.” The circuit court further “specifically” found “that such fees were reasonable and necessary providing the initial defense in this matter and in the transfer of the file ... to attorney Clay.” I find no abuse of discretion. It is error to assume, as the majority apparently has, that the transferring attorney may never bill after a new attorney has become the attorney of record on a case. It may well be in the client’s best interest, and at her request, that the transferring attorney continues to work until the client’s interests are adequately protected. We do not know the facts in this case. We do know that the new attorney of record, attorney Clay, testified that this case was complex, that it had gone on for years, and that there were complicated issues on which attorney Cornwell brought him up to speed. The circuit court heard this matter and was in the best position to determine whether fees were necessary or whether they were duplicative. The circuit court found that the fees were necessary and proper.
In the past, this court has referred attorneys to the Committee on Professional Conduct when the “matter implicates a breach of the Model Rules of Professional Conduct.” White v. Priest, 348 Ark. 135, 148, 73 S.W.3d 572, 581 (2002); Ligon v. McCullough, 368 Ark. 598, 599, 247 S.W.3d 868, 869 (2007) (per curiam). “Implicate” 11fimeans “[t]o show (a person) to be involved in (a crime, misfeasance, etc.).” Black’s Law Dictionary 622 (9th ed.2009). In this case, the court refers attorney Cornwell to the Committee because it is “concerned” by Harrill’s “allegation that Cornwell violated Model Rule 3.7 by serving as both an advocate and a witness at trial.” There is a great distinction between a referral based on a finding that a matter implicates the Rules of Professional Conduct and a referral based on a concern expressed by a party.
Further, the circuit court is in the best position to determine whether there has been a violation of Rule 3.7. A violation of Rule 3.7 is not apparent from the record on appeal. Rule 3.7 of the Arkansas Rules of Professional Conduct provides that “[a] lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness.” Cornwell did not appear as an advocate at the trial of this matter; rather she appeared as a witness. The activity at issue occurred before trial. Rule 3.7 does not support the majority’s decision to refer. If the majority believes that Rule 3.7 is too narrow, then it should submit the Rule to the Rules Committee rather than refer Cornwell to the Committee on Professional Conduct on a basis that does not appear in Rule 3.7. Therefore, I concur in part and dissent in part.
BAKER, J., joins this opinion.