dissenting.
11RI agree that, given our consistency in imposing serious sanctions where an attorney purloins a client’s funds, an interim suspension is warranted in CPC Docket 2012-049, the Dr. Hurst case involving discrepancies in Attorney Tapp’s client trust account. I, however, do not believe that is appropriate for the companion case, CPC Docket 2012-047, the case involving Attorney Tapp’s mishandling of two Chapter 18 bankruptcy petitions. Furthermore, I think that the standard used to evaluate petitions to lift the interim suspension, which the majority has adopted, is problematic and contrary to our precedent.
In my view, the purpose of an interim suspension is not to punish but instead to protect the public from a serious risk of harm. Our decision to grant a writ of certiorari to lift an interim suspension should be guided by two core considerations: a suspended attorney’s right to due process and our constitutional duty, imposed by amendment 80, to regulate the practice of law in order to protect the public at large and the attorney’s clients. 114Regarding the former, we have long recognized an attorney’s right to a hearing before rescinding his right to practice law. Stanley v. Ligon, 374 Ark. 6, 285 S.W.3d 649 (2008); Ex parte Burton, 237 Ark. 441, 445, 373 S.W.2d 409, 411 (1963); Beene v. State, 22 Ark. 149 (1860). Accordingly, where the actions of the attorney or the significance of his conduct are subject to a legitimate dispute, due process requires a hearing where live testimony and other evidence may be received.
Imposition of an interim suspension at the ballot-vote stage is appropriate only when allegations of serious attorney misconduct are not legitimately disputed. See, e.g., Todd v. Ligon, 356 Ark. 187, 148 S.W.3d 229 (2004). In those instances, where there are no significant material facts in dispute, and where we have imposed disbarment or a lengthy suspension for similar conduct, an interim suspension may be appropriate to protect the liberty and pecuniary interests of the persons who have placed their trust in the attorney. Attorney Tapp’s conduct in CPC Docket 2012-049 meets this criteria. There is no dispute that the balance in Attorney Tapp’s client trust account fell well below the $6,611.82 of Dr. Hurst’s money that he was charged with safeguarding. Furthermore, we have consistently dealt with an attorney’s mishandling of client money with the most severe sanctions. See Ligon v. McCullough, 2009 Ark. 165A, 303 S.W.3d 78. In McCullough, we said, “In issues of misuse or misappropriation of a client’s money, the slightest divergence from rectitude breaches the oath, the trust between attorney and client, and the confidence that the public must be able to place in the profession.”
It was no accident that Attorney Tapp advocated “preliminary injunction” analysis |1fiin support of his petition to vacate the interim suspension. Preliminary injunctions are used primarily to maintain the status quo. Citizens’ Pipe Line Co. v. Twin City Pipe Line Co., 183 Ark. 1006, 39 S.W.2d 1017 (1931). In this case, the status quo means lifting the interim suspension and allowing Attorney Tapp to maintain his law practice. According to Attorney Tapp, the test should be 1) whether the plaintiff (in this case the Committee) will suffer irreparable harm if the conduct is not ceased and 2) whether the plaintiff will prevail on the merits. Inexplicably, the majority claims to “agree” with Attorney Tapp, but goes on to adopt an entirely different test, which it fails to apply.
In my view, the standard for evaluating interim suspensions that was promulgated by the supreme court of Utah in In re Discipline of Trujillo, 24 P.3d 972 (Utah 2001), does not comport with the 150 years of Arkansas precedent favoring the right of an attorney to a hearing, unless such a hearing would serve no meaningful purpose. It is troubling that the majority attaches so little value to an accused attorney’s right to due process.
Moreover, the four-part analysis in Trujillo is, at best, problematic. The promise of scientific-like precision of the TrujiUo test is mere illusion. The problem lies in how to assign weight to each factor. For example, in Arkansas, the solo practitioner is the backbone of the legal system. Suspension of a solo practitioner’s license would be devastating to his or her practice, so, from the accused attorney’s perspective, the harm is infinitely severe. Accordingly, the Trujillo factors have a disparate impact on solo practitioners — and their clients — who must now find new representation, as opposed to large firms that could conceivably shift the caseload in-house. Furthermore, the clients of a suspended attorney | ifiwho have not been directly affected by the accused attorney’s misconduct are denied the services of their attorney of choice even though they neither want nor need such “protection.” These innocent clients are now forced to find new representation, which will often mean that they must forfeit a substantial amount of the fees that they have paid to their now suspended attorney of choice — new representation will not have the knowledge that the suspended attorney acquired while working up the case.
Equally problematic is how to determine when the “public” is injured or faces injury. In almost every instance of attorney misconduct, save for those in which an entire client trust account is looted, only a single party is directly affected by an attorney’s misconduct. Accordingly, with the exception of financial malfeasance, it is blatant speculation to project an attorney’s unethical conduct beyond the harm actually caused to the affected party. Thus, three of the factors in the four-part analysis in Trujillo — (1) whether the “public” will suffer irreparable harm unless the order of interim suspension issues, (2) whether the threatened injury to the “public” outweighs whatever damage the proposed order may cause the attorney temporarily suspended from the practice of law, and (3) whether the proposed order, if issued, would be adverse to the “public” interest — purports to protect an entity that is not defined, and may not even exist in any practical, tangible sense.
The majority opinion proves that the Trujillo factors are unworkable. Even though the majority attempts to characterize the facts of the bankruptcy case to satisfy the first prong of the Trujillo test, it fails to do so. First, it cannot decide whether Attorney Tapp’s actions were by “intention or mistake.” In fact, bankruptcy judge Richard D. Taylor, the only |17person involved in this case to actually hear live testimony from Attorney Tapp, could not make that call himself Second, the majority has not explained why the alleged injury to the Fenimores, who were Attorney Tapp’s business partners, may be legitimately elevated to the level of “irreparable harm to the public.”
The majority’s analysis involving the second Trujillo factor, whether the threatened injury to the public outweighs whatever damage the proposed order may cause the attorney temporarily suspended from the practice of law, is likewise flawed. While the majority acknowledges that Attorney Tapp has a “busy law practice,” despite the clear wording of the test that it espouses, they afford it no weight in balancing his interest in a thriving practice against the threatened injury to the public.
Even less compelling is the majority’s analysis regarding the third Trujillo factor, whether the proposed order, if issued, would be adverse to the public interest. The eonelusory statement that it will not be “adverse” to the public interest because there are numerous “allegations” of serious misconduct is not analysis and does not even address whether the “order” it is speaking about is the interim suspension or the proposed writ of certiorari that would lift the interim suspension. It is troubling that the majority finds the “allegations” sufficient to justify suspending an attorney’s license to practice law.
Finally, in analyzing the fourth Trujillo factor, whether there is a substantial likelihood, based on all the evidence, that a significant sanction will be imposed, the majority does not focus on the conduct in the cases before it, but on the fact that in 37 years of law practice, Attorney Tapp had “accumulated” one warning, six cautions, and six reprimands 118as a result of attorney misconduct. The fact that Attorney Tapp has previously been sanctioned is not predictive of how the Committee will dispose of the current allegations.
Nonetheless, given our case law concerning the sanctions for financial impropriety, and the absence of disputed facts, I am mindful that there is a substantial likelihood that a significant sanction will be imposed — in the Dr. Hurst case. Therefore, I concur in the majority’s disposition.
BAKER, J., joins.