This appeal is brought by stice. order of suspension from the practice of law by the Supreme Court Committee on Professional Conduct Panel B (Committee) and a second order denying his motion for reconsideration. We modify the order of suspension, as set forth in this opinion.
On January 24, 2003, Mr. Gillaspie filed a motion for belated appeal in a criminal case in this court on behalf of his client, Jason J. Gulley, in which he said: “Counsel for appellant admits that the untimely filing of the Notice of Appeal was his fault.” We granted the motion for belated appeal in this criminal matter by per curiam opinion based on the admission of fault by Mr. Gillaspie and sent the opinion to the Supreme Court Committee on Professional Conduct for any action deemed appropriate.
On March 14, 2003, the Office of Professional Conduct (Office) sent a certified letter to Mr. Gillaspie which enclosed a formal complaint against him for violation of Model Rule 1.3 of the Arkansas Model Rules of Professional Conduct concerning reasonable diligence and promptness in representing a client and Model Rule 8.4(d) of the same rules regarding conduct prejudicial to the administration of justice. The complaint stemmed from Mr. Gillaspie’s failure to file a notice of appeal on behalf of his client, Jason J. Gulley. Attached to the complaint as exhibits were Mr. Gillaspie’s motion for belated appeal admitting fault for the late appeal and this court’s per curiam opinion.
The cover letter with the complaint advised Mr. Gillaspie that failure to respond to the complaint could “carry substantial adverse consequences and penalties.” The letter further stated that in deciding the appropriate disciplinary sanction, the Committee may consider prior sanctions. A list of seven prior sanctions was attached, which included four reprimands, two warnings, and one referral to the Arkansas Lawyers Assistance Program (ARLAP). Mr. Gillaspie did not respond to the complaint.
On May 2, 2003, the Office wrote Mr. Gillaspie, again by certified mail, and enclosed a copy of the Committee’s Findings and Order, dated that same day. The letter and order both stated that Mr. Gillaspie was suspended from the practice of law for three months and fined $50 for failing to file a timely notice of appeal in the criminal matter involving Jason J. Gulley. However, because of his failure to respond to the Office’s formal complaint, Mr. Gillaspie’s sanction was enhanced by the Committee, and he was suspended from the practice of law for an additional six months and fined $2,500. Mr. Gillaspie was advised of his right to a de novo public hearing on the matter before a different panel of the Arkansas Committee on Professional Conduct. On May 26, 2003, Mr. Gillaspie requested a public hearing and said:
The proposed action, despite my admitted violations, is so drastic as to amount to an end of my professional career. I fail to understand the basis for the enhanced sanction for simply failing to respond to the allegation which I admitted to the Court in my application for the delayed appeal.
The Office responded to Mr. Gillaspie and stated that Mr. Gillaspie’s failure to respond to the complaint actually was a violation of Section 9(C) of the Arkansas Supreme Court Procedures Regulating Professional Conduct of Attorneys at Law (Procedures) and constituted an admission of the factual allegations in the complaint and extinguished his right to a de novo hearing. The Office advised that Mr. Gillaspie could petition for rehearing.
On June 30, 2003, Mr. Gillaspie wrote the Office and said “to add a 6 month suspension and a $2,500 fine over and above for simply not contesting an already admitted violation is, in truth, a disbarment!” He stated, in addition, that his violations were for filing late appeals and records which required “routine consideration by the Supreme Court.” He agreed that he was late in the criminal appeal but, again, contested the failure-to-respond charge on a matter he had already admitted. He requested modification of the sanction to a thirty-day suspension, a $2,500 fine, a twenty-four month probation, and cooperation with ARLAP.
In his formal Petition for Reconsideration, Mr. Gillaspie again stated that he was at fault in not filing a timely appeal and that he considered the enhancement for failure to respond to the Office’s complaint to be “drastic.” He wrote:
Respondent’s only son and his oldest granddaughter were killed when their car was struck by a train and respondent subsequently was impaired by clinical depression for a number of years, for which he was diagnosed and received treatment. Those problems resulted in some prior disciplinary proceedings and respondent limiting his practice to criminal defense, to eliminate the paperwork involved in civil litigation. In the recent past respondent has suffered the effects of type II diabetes and high blood pressure, with a number of small strokes, and advancing effects of age affecting primarily his memory. Respondent remains competent and capable of handling pre-trial matters in criminal cases. Respondent tries about 1 or 2 major felony cases each month, typically representing about 40 felony defendants at a time.
On July 3, 2003, the Office replied to Mr. Gillaspie’s petition. It said that Mr. Gillaspie’s assertions did not rise to “compelling and cogent evidence of unavoidable circumstances sufficient to excuse or justify the failure to respond,” as required by Section 9(C)(4)(a) of the Procedures for a petition for reconsideration when there has been a failure to respond. The Office added that Mr. Gillaspie’s failure to respond to its complaint had been negligent or careless. .
On September 2, 2003, the Committee entered an order denying Mr. Gillaspie’s petition for reconsideration on the basis that he had not shown unavoidable circumstances sufficient to excuse his failure to respond. A notice of suspension by the Committee was filed that same date showing Mr. Gillaspie had been suspended for three months on the underlying charge of failure to file a criminal appeal in timely fashion and an additional six months for failure to respond to the Office’s complaint.
Mr. Gillaspie appealed the orders of the Committee to this court, and we stayed the suspensions pending resolution of this appeal.
Mr. Gillaspie’s issue on appeal essentially deals with the harshness of the Committee’s sanction against him. He first contends with regard to missing the deadline for filing the criminal appeal and the three-month suspension that that offense coupled with his prior sanctions did not amount to “a pattern of similar misconduct” so as to constitute “serious misconduct” under Section 17B of the Procedures. He then urges that with regard to the additional six-month suspension, he had already admitted his fault in his motion before this court which this court referred to the Committee. To sanction him for failure to respond when he had formally admitted fault is “draconian,” according to Mr. Gillaspie. This is certainly not “serious misconduct” to justify an additional suspension, he adds.
The Committee’s position on appeal is that it found that Mr. Gillaspie had not demonstrated compelling and cogent evidence of unavoidable circumstances in failing to respond to the Office’s complaint and that this decision was not clearly erroneous. Moreover, the Committee emphasizes that Mr. Gillaspie had been previously advised that his failure to respond would have adverse consequences.
Our standard of review when receiving decisions of the Arkansas Committee on Professional Conduct is de novo review on the record, and we affirm the Committee’s action and findings unless they are clearly erroneous. Fink v. Neal, 328 Ark. 646, 945 S.W.2d 916 (1997). We disagree with Mr. Gillaspie that a three-month suspension from the practice of law based on his untimely notice of appeal in the criminal matter, when viewed in connection with his prior disciplinary matters, did not exhibit a pattern of misconduct, and, therefore, serious misconduct under Section 17B of the Procedures. We, accordingly, affirm the three-month suspension and the award of $50 in costs.
We disagree with the Committee, however, on the sanction for failure to respond to the Committee’s complaint. We see no reason for Mr. Gillaspie to file a second document stating: “I admit that the untimely filing of the Notice of Appeal is my fault,” when the Committee had already attached to the Office’s complaint Mr. Gillaspie’s motion for belated appeal stating: “Counsel for appellant admits that the untimely filing of the Notice of Appeal was his fault.” In short, the Office already had Mr. Gillaspie’s response and admission of fault on file. In fact, it was the basis for the Office’s complaint.
Because of these facts, we deem it unnecessary for Mr. Gillaspie to assert “unavoidable circumstances” for failure to respond pursuant to Section 9(C)(4)(a) of the Procedures, since his formal admission of fault was already on file. All that was at issue in this case was the penalty to be assessed against him. Accordingly, we address the merits of the additional sanction of the six-month suspension and the $2,500 fine.
As an initial point, we conclude that an additional six-month suspension as an enhancement for failure to respond is not “serious misconduct” under Section 17B. Only serious misconduct can be the basis for restricting the practice of law. Mr. Gillaspie admits, however, in his petition for reconsideration that he suffered from clinical depression following the deaths of his son and granddaughter in a train accident. That, no doubt, was the reason the Arkansas Committee on Professional Conduct referred him to the ARLAP, which he did not attend. His disciplinaries for the most part, it appears, have been due to late appeals and briefs in criminal matters.
Rather than adding six months to his suspension time for failing to respond to the complaint, we direct the Committee to mandate Mr. Gillaspie’s entry into the Arkansas Lawyers Assistance Program for a period of at least nine months as part of the sanction for failing to file the criminal appeal in timely fashion and his prior disciplinary record. This means that Mr. Gillaspie will be suspended from the practice of law for three months, beginning at the time the mandate in this case is issued. There will also be the simultaneously referral to ARLAP for a period of nine months or more. Based on the progress reports from ARLAP, the Committee can determine what additional action needs to be taken. Clearly, if Mr. Gillaspie refuses to participate in ARLAP or is deemed unfit to practice law, the Committee can take additional action. That decision will rest with the Committee.
In sum, we affirm the Committee and suspend Mr. Gillaspie from the practice of law for three months because of his missed criminal appeal and because of his prior disciplinary record. We reverse the additional sanction of a six-month suspension from the law practice and the fine of $2,500 for failure to respond to the Office’s complaint. We direct that Mr. Gillaspie commence participation in ARLAP, beginning on the date the mandate is issued. His participation shall extend for a period of at least nine months.
Affirmed as modified.
Glaze and Imber, JJ., dissent.