dissenting. By its decision today, this court continues its callous disregard of a practicing attorney’s due process rights when imposing serious sanctions against him or her. While Mr. Clark failed to act with due diligence and competence in allowing a statute of limitations to run on the Paradisos’ tort claims, the Professional Conduct Committee and this court is clearly wrong in suspending Clark’s license for the ethical violation. At most, Clark’s action amounts to malpractice which has caused serious harm to the Paradisos, and Clark should be determined liable for his negligent action. Instead, the Committee and this court prevents Clark from practicing law, thereby making it ‘even more difficult for the Paradisos to obtain recompense.
Clark, too, has also been made subject to disparate treatment compared to that imposed previously for similar misconduct. For example, in Walker v. Supreme Court of Arkansas Committee on Professional Conduct, 275 Ark. 158, 628 S.W.2d 552 (1982), the attorney had failed to file a personal injury suit arising from an automobile accident within the statute of limitations period. This court upheld the Committee’s imposition of a “caution” sanction. The court stated the following:
It is also to be noted that the citation levied by the Committee was a “caution” rather than a “reprimand.” We believe such action is not incommensurate with the neglect of appellant Walker as reflected by the evidence in his proceeding.
In a concurring opinion in Colvin v. Committee on Professional Conduct, 309 Ark. 592, 832 S.W.2d 246 (1992), I pointed out that, without clear guidelines for imposing sanctions, the Committee, considering the large number of cases it hears and decides, innocently runs the risk of imposing different sanctions to situations where the same or similar misconduct may be involved.* 1 Again, when comparing the facts and decision in Walker, the Committee’s suspension of Clark’s license is much too severe.
In my mind, the most serious question raised by this court’s decision is why is this court so reluctant to define the court’s permissible sanctions? Shouldn’t attorneys, who have violated the canons, know what punishment can be imposed? Shouldn’t the more serious sanctions of suspension and disbarment be reserved for those attorneys committing intentional and wilful acts such as defalcation or felonies as opposed to acts of negligence? Should an attorney who has committed repeated canon violations, regardless of intent or wilfulness, be subject to the more serious sanctions? If so, shouldn’t this court set forth the standards which would trigger when those serious sanctions apply?
This court’s failure to define its sanctions gives the court and its Committee unbridled discretion when imposing sanctions in any given case regardless of the misconduct involved. This is wrong.
In conclusion, I mention that the issue concerning sanctions and this court’s woeful refusal to define them was raised over two years ago in the Colvin case, but nothing has been forthcoming to address this matter. In fact, there are some court members and attorneys who, for whatever reason, do not think it wise to define sanctions. Frankly, I can think of no valid reason why they should not be defined. Nonetheless, until or unless the Arkansas Bar Association, itself, decides the issue defined hereinabove is worthy of discussion, this court, no doubt, will continue its custom to do nothing on the matter. I will, however, continue to write, hoping sanctions for legal misconduct will eventually be defined. Fairness and due process require it.
Although not suggested as a complete or final answer, I listed in my concurring opinion certain guidelines that might be considered. Those are as follows:
(1) WARNING - to be given when there is some reasonable question as to whether there was in fact a violation.
(2) CAUTION - to be given when there has been a violation but no irreparable harm.
(3) REPRIMAND - to be given when there has been a violation with irreparable harm.
(4) SUSPENSION - to be imposed when the violation is intentional or includes moral turpitude.