dissenting. This case is identical to the case of Walker v. Supreme Court Committee on Professional Conduct, 275 Ark. 158, 628 S.W.2d 552 (1982). Even so, the majority opinion does not follow the precedent set in Walker. Therefore, I dissent.
In Walker, supra, the Committee on Professional Conduct gave the attorney involved notice that he was charged with violating Disciplinary Rule 6-101 (a)(3). After a hearing, the committee found that the attorney’s action had violated DR-6-101(a)(3), as well as DR-6-102(a), and imposed a sanction. On appeal, this court held that the attorney could not be found guilty of violating DR-6-102(a) since he had not been charged with violating that rule. However, we held there was substantial evidence to support the finding of a violation of DR-6-101 (a) (3), and affirmed the sanction because it was within the range of authorized sanctions for violation of DR-6-101 (a)(3).
In this case the attorney was charged with violating Rule 1.3 of the Model Rules of Professional Conduct. After a hearing the committee found that his action violated not only Rule 1.3, but Rule 1.4 as well, and imposed a sanction. On appeal, the majority holds that the attorney could not be found guilty of violating Rule 1.4 since he had not been charged with violating that rule. However, for some unexplained reason, the majority opinion does not then go ahead and decide whether there was substantial evidence to support the finding of a violation of Rule 1.3, and the concurrent imposition of a sanction. Instead, in a proceeding which appears to be wholly without precedent, the majority neither affirms nor reverses the finding of a violation of Rule 1.3, but, instead remands “the cause to the committee to reconsider the facts and determine the appropriate sanction. . . .” The majority opinion simply does not decide the case.
Some of the many questions raised by such a holding are: Since the previous finding has not been reversed, is it now the law of the case? What about judicial economy, and our oft-expressed desire to end litigation? Do we want piecemeal litigation? Why not follow the standard appellate procedure and either affirm or reverse the finding? Why not follow the precedent of the Walker case?
Any reader of the majority opinion can read between the lines and see that the unprecedented procedure has been created because the members of the majority think the sanction imposed was too severe. In fact, at the oral argument of this case counsel for the attorney involved asked us to reduce the sanction to a reprimand. (A request which constitutes a tacit admission that there is substantial evidence of a violation.) In his brief, appellant goes so far as to ask that any suspension be only from the civil practice of law; not the criminal practice. Obviously, a majority of the members of this court were impressed with the arguments and think that the sanction was too severe. Yet, the level, or degree, of the sanction is not valid reason for the remand since the sanction was within the range provided for violation of Rule 1.3. See Rules of Professional Conduct 7. This is not a trial court. It is an appellate court. We are not supposed to set penalties. We are not supposed to remand without decision. We are supposed to affirm or reverse. I would follow our established procedure as set out in Walker, supra, and affirm the finding and sanction. Accordingly, I dissent.
Newbern, J., joins in this dissent.