text:
    IN RE: AMENDMENT TO THE MODEL RULES OF PROFESSIONAL CONDUCT
    788 S.W.2d 462
    Supreme Court of Arkansas
    Delivered April 16, 1990
   Per Curiam.

By a previous per curiam order we published proposed changes in the Model Rules of Professional Conduct as recommended by the Special Committee of the Arkansas Bar Association. The proposals had the approval of the Arkansas Bar Association and the House of Delegates of the American Bar Association. As is customary, we invited the bench and bar of Arkansas, as well as other interested parties, to offer comments. Having received no objections to the proposed changes, and finding them to have merit, they are hereby approved and adopted effective June 1, 1990. The changes are appended to this order.

It is so ordered.

PROPOSED AMENDMENTS TO MODEL RULES

1. The first paragraph of the Comment to Rule 1.7, the same being the first paragraph under the heading entitled “Loyalty to a Client,” is amended by adding language and dividing the paragraph into two paragraphs, to read as follows:

Loyalty is an essential element in the lawyer’s relationship to a client. An impermissible conflict of interest may exist before representation is undertaken, in which event the representation should be declined. The lawyer should adopt reasonable procedures, appropriate for the size and type of firm and practice, to determine in both litigation and nonlitigation matters the parties and issues involved and to determine whether there are actual or potential conflicts of interest.
If such a conflict arises after representation has been undertaken, the lawyer should withdraw from the representation. See Rule 1.16. Where more than one client is involved and the lawyer withdraws because a conflict arises after representation, whether the lawyer may continue to represent any of the clients is determined by Rule 1.9. See also Rule 2.2(c). As to whether a client-lawyer relationship exists or, having once been established, is continuing, see Comment to Rule 1.3 and Scope.

2. Paragraph (b) of Rule 1.8 is amended by adding language, to read as follows:

(b) A lawyer shall not use information relating to representation of a client to the disadvantage of the client unless the client consents after consultation, except as permitted or required by Rule 1.6 or Rule 3.3.

3. Rule 1.9 is amended by adding a new paragraph (b) and other language, renumbering paragraphs and making corresponding changes to the Comment and Code Comparison, to read as follows:

Rule 1.9 Conflict of Interest: Former Client
(a) A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client consents after consultation.
(b) A lawyer shall not knowingly represent a person in the same or a substantially related matter in which a firm with which the lawyer formerly was associated had previously represented a client.
(1) whose interests are materially adverse to that person; and
(2) about whom the lawyer had acquired information protected by Rules 1.6 and 1.9(c) that is material to the matter;
unless the former client consents after consultation.
(c) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter:
(1) use information relating to the representation to the disadvantage of the former client except as Rule 1.6 or Rule 3.3 would permit or require with respect to a client, or when the information has become generally known; or
(2) reveal information relating to the representation except as Rule 1.6 or Rule 3.3 would permit or require with respect to a client.
COMMENT:
After termination of a client-lawyer relationship, a lawyer may not represent another client except in conformity with this Rule. The principles in Rule 1.7 determine whether the interests of the present and former client are adverse. Thus, a lawyer could not properly seek to rescind on behalf of a new client a contract drafted on behalf of the former client. So also a lawyer who has prosecuted an accused person could not properly represent the accused in a subsequent civil action against the government concerning the same transaction.
The scope of a “matter” for purposes of this Rule may depend on the facts of a particular situation or transaction. The lawyer’s involvement in a matter can also be a question of degree. When a lawyer has been directly involved in a specific transaction, subsequent representation of other clients with materially adverse interest clearly is prohibited. On the other hand, a lawyer who recurrently handled a type of problem for a former client is not precluded from later representing another client in a wholly distinct problem of that type even though the subsequent representation involves a position adverse to the prior client. Similar considerations can apply to the reassignment of military lawyers between defense and prosecution functions within the same military jurisdiction. The underlying question is whether the lawyer was so involved in the matter that the subsequent representation can be justly regarded as a changing of sides in the matter in question.
Lawyers Moving Between Firms
When lawyers have been associated within a firm but then end their association, the question of whether a lawyer should undertake representation is more complicated. There are several competing considerations. First, the client previously represented by the former firm must be reasonably assured that the principle of loyalty to the client is not compromised. Second, the rule should not be so broadly cast as to preclude other persons from having reasonable choice of legal counsel. Third, the rule should not unreasonably hamper lawyers from forming new associations and taking on new clients after having left a previous association. In this connection, it should be recognized that today many lawyers practice in firms, that many lawyers to some degree limit their practice to one field or another, and that many move from one association to another several times in their careers. If the concept of imputation were applied with unqualified rigor, the result would be radical curtailment of the opportunity of lawyers to move from one practice setting to another and of the opportunity of clients to change counsel.
Reconciliation of these competing principles in the past has been attempted under two rubrics. One approach has been to seek per se rules of disqualification. For example, it has been held that a partner in a law firm is conclusively presumed to have access to all confidences concerning all clients of the firm. Under this analysis, if a lawyer has been a partner in one law firm and then becomes a partner in another law firm, there may be a presumption that all confidences known by the partner in the first firm are known to all partners in the second firm. This presumption might properly be applied in some circumstances, especially where the client has been extensively represented, but may be unrealistic where the client was represented only for limited purposes. Furthermore, such a rigid rule exaggerates the difference between a partner and an associate in modern law firms.
The other rubric formerly used for dealing with disqualification is the appearance of impropriety proscribed in Canon 9 of the ABA Model Code of Professional Responsibility. This rubric has a two fold problem. First, the appearance of impropriety can be taken to include any new client-lawyer relationship that might make a former client feel anxious. If that meaning were adopted, disqualification would become little more than a question of subjective judgment by the former client. Second, since “impropriety” is undefined, the term “appearance of impropriety” is question-begging. It therefore has to be recognized that the problem of disqualification cannot be properly resolved either by simple analogy to a lawyer practicing alone or by the very general concept of appearance of impropriety.
Confidentiality
Preserving confidentiality is a question of access to information. Access to information, in turn, is essentially a question of fact in particular circumstances, aided by inferences, deductions or working presumptions that reasonably may be made about the way in which lawyers work together. A lawyer may have general access to files of all clients of a law firm and may regularly participate in discussions of their affairs; it should be inferred that such a lawyer in fact is privy to all information about all the firm’s clients. In contrast, another lawyer may have access to the files of only a limited number of clients and participate in discussions of the affairs of no other clients; in the absence of information to the contrary, it should be inferred that such a lawyer in fact is privy to information about the clients actually served but not those of other clients.
Application of paragraph (b) depends on a situation’s particular facts. In such an inquiry, the burden of proof should rest upon the firm whose disqualification is sought.
Paragraph (b) operates to disqualify the lawyer only when the lawyer involved has actual knowledge of information protected by Rules 1.6 and 1.9(b). Thus, if a lawyer while with one firm acquired no knowledge or information relating to a particular client of the firm, and that lawyer later joined another firm, neither the lawyer individually nor the second firm is disqualified from representing another client in the same or a related matter even though the interests of the two clients conflict. See Rule 1.10(b) for the restrictions on a firm once a lawyer has terminated association with the firm.
Independent of the question of disqualification of a firm, a lawyer changing professional association has a continuing duty to preserve confidentiality of information about a client formerly represented. See Rules 1.6 and 1.9.
Adverse Positions
The second aspect of loyalty to a client is the lawyer’s obligation to decline subsequent representations involving positions adverse to a former client arising in substantially related matters. This obligation requires abstention from adverse representation by the individual lawyer involved, but does not properly entail abstention of other lawyers through imputed disqualification. Hence, this aspect of the problem is governed by Rule 1.9(a). Thus, if a lawyer left one firm for another, the new affiliation would not preclude the firms involved from continuing to represent clients with adverse interests in the same or related matters, so long as the conditions of paragraphs (b) and (c) concerning confidentiality have been met.
Information acquired by the lawyer in the course of representing a client may not subsequently be used or revealed by the lawyer to the disadvantage of the client. However, the fact that a lawyer has once served a client does not preclude the lawyer from using generally known information about that client when later representing another client.
Disqualification from subsequent representation is for the protection of former clients and can be waived by them. A waiver is effective only if there is disclosure of the circumstances, including the lawyer’s intended role in behalf of the new client.
With regard to an opposing party’s raising a question of conflict of interest, see Comment to Rule 1.7. With regard to disqualification of a firm with which a lawyer is or was formerly associated, see Rule 1.10.
CODE COMPARISON:
There was no counterpart to this Rule in the Disciplinary Rules of the Model Code. Representation adverse to a former client was sometimes dealt with under the rubric of Canon 9 of the Model Code, which provided: “A lawyer should avoid even the appearance of impropriety.” Also applicable were EC 4-6 which stated that the “obligation of a lawyer to preserve the confidences and secrets of his client continues after the termination of his employment” and Canon 5 which stated that “[a] lawyer should exercise independent professional judgment on behalf of a client.”
The provision for waiver by the former client in paragraphs (a) and (b) is similar to DR 5-105(C).
The exception in the last clause of paragraph (c)(1) permits a lawyer to use information relating to a former client that is in the “public domain,” a use that was also not prohibited by the Model Code, which protected only “confidence and secrets.” Since the scope of paragraphs (a) and (b) is much broader than “confidences and secrets,” it is necessary to define when a lawyer may make use of information about a client after the client-lawyer relationship has terminated.

4. Rule 1.10 is amended by deleting former paragraph (b), adding language, renumbering paragraphs and making corresponding changes to the Comment and Code Comparison, to read as follows:

Rule 1.10 Imputed Disqualification: General Rule
(a) While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rules 1.7, 1.8(c), 1.9, 2.2 or 3.7
(b) When a lawyer has terminated an association with a firm, the firm is not prohibited from thereafter representing a person with interests materially adverse to those of a client represented by the formerly associated lawyer and not currently represented by the firm, unless:
(1) the matter is the same or substantially related to that in which the formerly associated lawyer represented the client; and
(2) any lawyer remaining in the firm has information protected by Rules 1.6 and 1.9(c) that is material to the matter.
(c) A disqualification prescribed by this rule may be waived by the affected client under the conditions stated in Rule 1.7.
COMMENT:
Definition of “Firm”
For purposes of the Rules of Professional Conduct, the term “firm” includes lawyers in a private firm, and lawyers in the legal department of a corporation or other organization, or in a legal services organization. Whether two or more lawyers constitute a firm within this definition can depend on the specific facts. For example, two practitioners who share office space and occasionally consult or assist each other ordinarily would not be regarded as constituting a firm. However, if they present themselves to the public in a way suggesting that they are a firm or conduct themselves as a firm, they should be regarded as a firm for the purposes of the Rules. The terms of any formal agreement between associated lawyers are relevant in determining whether they are a firm, as is the fact that they have mutual access to information concerning the clients they serve. Furthermore, it is relevant in doubtful cases to consider the underlying purpose of the Rule that is involved. A group of lawyers could be regarded as a firm for purposes of the rule that the same lawyer should not represent opposing parties in litigation, while it might not be so regarded for purposes of the rule that information acquired by one lawyer is attributed to the other.
With respect to the law department of an organization, there is ordinarily no question that the members of the department constitute a firm within the meaning of the Rules of Professional Conduct. However, there can be uncertainty as to the identity of the client. For example, it may not be clear whether the law department of a corporation represents a subsidiary or an affiliated corporation, as well as the corporation by which the members of the department are directly employed. A similar question can arise concerning an unincorporated association and its local affiliates.
Similar questions can also arise with respect to lawyers in legal aid. Lawyers employed in the same unit of a legal service organization constitute a firm, but not necessarily those employed in separate units. As in the case of independent practitioners, whether the lawyers should be treated as associated with each other can depend on the particular rule that is involved, and on the specific facts of the situation.
Where a lawyer has joined a private firm after having represented the government, the situation is governed by Rule 1.11 (a) and (b); where a lawyer represents the government after having served private clients, the situation is governed by Rule 1.11 (c) (1). The individual lawyer involved is bound by the Rules generally, including Rules 1.6, 1.7 and 1.9.
Different provisions are thus made for movement of a lawyer between a private firm and the government. The government is entitled to protection of its client confidences and, therefore, to the protections provided in Rules 1.6,1.9 and 1.11. However, if the more extensive disqualification in Rule 1.10 were applied to former government lawyers, the potential effect on the government would be unduly burdensome. The government deals with all private citizens and organizations and, thus, has a much wider circle of adverse legal interests than does any private law firm. In these circumstances, the government’s recruitment of lawyers would be seriously impaired if Rule 1.10 were applied to the government. On balance, therefore, the government is better served in the long run by the protections stated in Rule 1.11.
Principles of Imputed Disqualification
The rule of imputed disqualification stated in paragraph (a) gives effect to the principle of loyalty to the client as it applies to lawyers who practice in a law firm. Such situations can be considered from the premise that a firm of lawyers is essentially one lawyer for purposes of the rules governing loyalty to the client, or from the premise that each lawyer is vicariously bound by the obligation of loyalty owed by each lawyer with whom the lawyer is associated. Paragraph (a) operates only among the lawyers currently associated in a firm. When a lawyer moves from one firm to another, the situation is governed by Rules 1.9(b) and 1.10(b).
Rule 1.10(b) operates to permit a law firm, under certain circumstances, to represent a person with interests directly adverse to those of a client represented by a lawyer who formerly was associated with the firm. The Rule applies regardless of when the formerly associated lawyer represented the client. However, the law firm may not represent a person with interests adverse to those of a present client of the firm, which would violate Rule 1.7. Moreover, the firm may not represent the person where the matter is the same or substantially related to that in which the formerly associated lawyer represented the client and any other lawyer currently in the firm has material information protected by Rules 1.6 and 1.9(c).
CODE COMPARISON:
DR 5-105(D) provided that “[i]f a lawyer is required to decline or to withdraw from employment under a Disciplinary Rule, no partner, or associate, or any other lawyer affiliated with him or his firm, may accept or continue such employment.”

5. Paragraph (c)(2) of Rule 1.11 is amended by adding language, to read as follows:

(c) Except as law may otherwise expressly permit, a lawyer serving as a public officer or employee shall not:
(2) negotiate for private employment with any person who is involved as a party or as attorney for a party in a matter in which the lawyer is participating personally and substantially, except that a lawyer serving as a law clerk to a judge, other adjudicative officer or arbitrator may negotiate for private employment as permitted by Rule 1.12(b) and subject to the conditions ■ stated in Rule 1.12(b).

6. Paragraph (a) of Rule 1.12 is amended by changing one word, to read as follows:

(a) Except as stated in paragraph (d), a lawyer shall not represent anyone in connection with a matter in which the lawyer participated personally and substantially as a judge or other adjudicative officer, arbitrator or law clerk to such a person, unless all parties to the proceeding consent after consultation.

7. The fourth paragraph of the Comment to Rule 3.7, the same being the last paragraph of the Comment, is amended by deleting language and adding a new fifth and last paragraph, to read as follows:

Apart from these two exceptions, paragraph (3) recognizes that a balancing is required between the interests of the client and those of the opposing party. Whether the opposing party is likely to suffer prejudice depends on the nature of the case, the importance and probable tenor of the lawyer’s testimony, and the probability that the lawyer’s testimony will conflict with that of other witnesses. Even if there is risk of such prejudice, in determining whether the lawyer should be disqualified due regard must be given to the effect of disqualification on the lawyer’s client. It is relevant that one or both parties could reasonably foresee that the lawyer would probably be a witness.
This Rule is not intended to ordinarily prohibit a lawyer from being a witness when the lawyer is also the party of record. A lawyer may represent himself pro se, or be represented by other lawyers in his firm, and in either event he should be permitted in that instance to appear as a witness.

8. Paragraphs (a) and (b) of Rule 6.3 are amended by adding language, to read as follows:

Rule 6.3 Membership in Legal Services Organization
A lawyer may serve as a director, officer or member of a legal services organization, apart from the law firm in which the lawyer practices, notwithstanding that the organization serves persons having interest adverse to a client of the lawyer. The lawyer shall not knowingly participate in a decision or action of the organization:
(a) if participating in the decision or action would be incompatible with the lawyer’s obligations to a client under Rule 1.7; or
(b) where the decision or action could have a material adverse effect on the representation of a client of the organization whose interests are adverse to a client of the lawyer.

9. Paragraphs (a), (b) and (c) of Rule 7.2 and the Code Comparison to Rule 7.2 are amended by adding and deleting language, to read as follows:

Rule 7.2 Advertising
(a) Subj ect to the requirements of Rules 7.1 and 7.3, a lawyer may advertise services through public media, such as a telephone directory, legal directory, newspaper or other periodical, outdoor advertising, radio or television, or through written or recorded communication.
(b) A copy or recording of an advertisement or communication shall be kept for five years after its last dissemination along with a record of when and where it was used.
(c) A lawyer shall not give anything of value to a person for recommending the lawyer’s services, except that a lawyer may pay the reasonable cost of advertisements or communications permitted by this rule and may pay the usual charges of a not-for-profit lawyer referral service or other legal service organization.
CODE COMPARISON:
With regard to paragraph (a), DR 2-101 (B) provided that a lawyer “may publish or broadcast, subject to DR 2-103,. . . in print media . . . or television or radio. . . .”
With regard to paragraph (b), DR 2-101 (D) provided that if the advertisement is “communicated to the public over television or radio, ... a recording of the actual transmission shall be retained by the lawyer.”
With regard to paragraph (c), DR 2-103(B) provided that a lawyer “shall not compensate or give anything of value to a person or organization to recommend or secure his employment. . . except that he may pay the usual and reasonable fees or dues charged by any of the organizations listed in DR 2-103(D).” (DR 2-103(D) referred to legal aid and other legal services organizations.) DR 2-101(1) provided that a lawyer “shall not compensate or give anything of value to representatives of the press, radio, television, or other communication medium in anticipation of or in return for professional publicity in a news item.”
There was no counterpart to paragraph (d) in the Model Code.

10. Rule 7.3 is amended by adding and deleting language and making corresponding changes to the Comment and Code Comparison, to read as follows:

Rule 7.3 Direct Contact with Prospective Clients
(a) A lawyer shall not by in-person or live telephone contact solicit professional employment from a prospective client with whom the lawyer has no family or prior professional relationship when a significant motive for the lawyer’s doing so is the lawyer’s pecuniary gain.
(b) A lawyer shall not solicit professional employment from a prospective client by written or recorded communication or by in-person or telephone contact even when not otherwise prohibited by paragraph (a), if:
(1) the prospective client has made known to the lawyer a desire not to be solicited by the lawyer; or
(2) the solicitation involves coercion, duress or harassment.
(c) Every written or recorded communication from a lawyer soliciting professional employment from a prospective client known to be in need of legal services in a particular matter, and with whom the lawyer has no family or prior professional relationship, shall include the words “Advertising Material” on the outside envelope and at the beginning and ending of any recorded communication.
(d) Notwithstanding the prohibitions in paragraph (a), a lawyer may participate with a prepaid or group legal service plan operated by an organization not owned or directed by the lawyer which uses in-person or telephone contact to solicit memberships or subscriptions for the plan from persons who are not known to need legal services in a particular matter covered by the plan.
COMMENT:
There is a potential for abuse inherent in direct in-person or live telephone contact by a lawyer with a prospective client known to need legal services. These forms of contact between a lawyer and a prospective client subject the layperson to the private importuning of the trained advocate in a direct interpersonal encounter. The prospective client, who may already feel overwhelmed by the circumstances giving rise to the need for legal services, may find it difficult fully to evaluate all available alternatives with reasoned judgment and appropriate self-interest in the face of the lawyer’s presence and insistence upon being retained immediately. The situation is fraught with the possibility of undue influence, intimidation, and overreaching.
This potential for abuse inherent in direct in-person or live telephone solicitation of prospective clients justifies its prohibition, particularly since lawyer advertising and written and recorded communication permitted under Rule 7.2 offer alternative means of conveying necessary information to those who may be in need of legal services. Advertising and written and recorded communications which may be mailed or autodialed make it possible for a prospective client to be informed about the need for legal services, and about the qualifications of available lawyers and law firms, without subjecting the prospective client to direct in-person or telephone persuasion that may overwhelm the client’s judgment.
The use of general advertising and written and recorded communications to transmit information from lawyer to prospective client, rather than direct in-person or live telephone contact, will help to assure that the information flows cleanly as well as freely. The contents of advertisements and communications permitted under Rule 7.2 are permanently recorded so that they cannot be disputed and may be shared with others who know the lawyer. This potential for informal review is itself likely to help guard against statements and claims that might constitute false and misleading communications, in violation of Rule 7.1. The contents of direct in-person or live telephone conversations between a lawyer to a prospective client can be disputed and are not subject to third-party scrutiny. Consequently, they are much more likely to approach (and occasionally cross) the dividing line between accurate representations and those that are false and misleading.
There is far less likelihood that a lawyer would engage in abusive practices against an individual with whom the lawyer has a prior personal or professional relationship or where the lawyer is motivated by considerations other than the lawyer’s pecuniary gain. Consequently, the general prohibition in Rule 7.3(a) and the requirements of Rule 7.3(c) are not applicable in those situations.
But even permitted forms of solicitation can be abused. Thus, any solicitation which contains information which is false or misleading within the meaning of Rule 7.1, which involves coercion, duress or harassment within the meaning of Rule 7.3(b)(2), or which involves contact with a prospective client who has made known to the lawyer a desire not to be solicited by the lawyer within the meaning of Rule 7.3(b)(1) is prohibited. Moreover, if after sending a letter or other communication to a client as permitted by Rule 7.2 the lawyer receives no response, any further effort to communicate with the prospective client may violate the provisions of Rule 7.3(b).
This Rule is not intended to prohibit a lawyer from contacting representatives of organizations or groups that may be interested in establishing a group or prepaid legal plan for their members, insureds, beneficiaries or other third parties for the purpose of informing such entities of the availability of and details concerning the plan or arrangement which the lawyer or lawyer’s firm is willing to offer. This form of communication is not directed to a prospective client. Rather, it is usually addressed to an individual acting in a fiduciary capacity seeking a supplier of legal services for others who may, if they choose, become prospective clients of the lawyer. Under these circumstances, the activity which the lawyer undertakes in communicating with such representatives and the type of information transmitted to the individual are functionally similar to and serve the same purpose as advertising permitted under Rule 7.2.
The requirement in Rule 7.3(c) that certain communications be marked “Advertising Material” does not apply to communications sent in response to requests of potential clients or their spokespersons or sponsors. General announcements by lawyers, including changes in personnel or office location, do not constitute communications soliciting professional employment from a client known to be in need of legal services within the meaning of this Rule.
Paragraph (d) of this Rule would permit an attorney to participate with an organization which uses personal contact to solicit members for its group or prepaid legal service plan, provided that the personal contact is not undertaken by any lawyer who would be a provider of legal services through the plan. The organization referred to in paragraph (d) must not be owned by or directed (whether as manager or otherwise) by any lawyer or law firm that participates in the plan. For example, paragraph (d) would not permit a lawyer to create an organization controlled directly or indirectly by the lawyer and use the organization for the in-person or telephone solicitation of legal employment of the lawyer through memberships in the plan or otherwise. The communication permitted by these organizations also must not be directed to a person known to need legal services in a particular matter, but is to be designed to inform potential plan members generally of another means of affordable legal services. Lawyers who participate in a legal service plan must reasonably assure thattheplan sponsors are in compliance with Rules and 7.3(b). See 8.4(a).
CODE COMPARISON:
DR 2-104(A) provided with certain exceptions that “ [a] lawyer who has given in-person unsolicited advice to a layperson that he should obtain counsel or take legal action shall not accept employment resulting from that advice. . . .” The exceptions include DR 2-104(A)(l), which provided that a lawyer “may accept employment by a close friend, relative, former client (if the advice is germane to the former employment), or one whom the lawyer reasonably believes to be a client.” DR 2-104(A)(2) through DR 2-104(A)(5) provided other exceptions relating, respectively, to employment resulting from public educational programs, recommendation by a legal assistance organization, public speaking or writing and representing members of a class in class action litigation.

11. The first paragraph of the Comment to Rule 7.4 is amended by adding and deleting language, to read as follows:

COMMENT:
This Rule permits a lawyer to indicate areas of" practice in communications about the lawyer’s services, for example, in a telephone directory or other advertising. If a lawyer practices only in certain fields, or will not accept matters except in such fields, the lawyer is permitted so to indicate. However, a lawyer is not permitted to state that the lawyer is a “specialist,” practices a “specialty,” or “specializes in” particular fields, except as permitted by paragraph (c) of this Rule. These terms have acquired a secondary meaning implying formal recognition as a specialist and therefore, use of these terms is misleading.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    IN RE: ARKANSAS SUPREME COURT BOARD OF CERTIFIED COURT REPORTERS AND CERTIFIED COURT REPORTERS’ EXAMINING BOARD
    Supreme Court of Arkansas
    Delivered April 23, 1990
   Per Curiam.

On January 22,1990, this Court issued a per curiam inviting comments, criticisms, and recommendations regarding the status of certified court reporters in Arkansas, their services, and the functions of the Certified Court Reporters’ Examining Board.

The Certified Court Reporters’ Examining Board, in conjunction with the Arkansas Court Reporter Association, will conduct an open hearing on these issues, inasmuch as the Court has requested a report on the court reporter program by September 1, 1990.

The two hour hearing will be held at the Park Hilton Hotel in Hot Springs, Arkansas on Saturday, June 16,1990, beginning at 10:00 a.m. All interested persons are encouraged to attend.


text:
    IN RE: APPOINTMENT OF COUNSEL IN CRIMINAL CASES
    787 S.W.2d XCVII
    Supreme Court of Arkansas
    Delivered May 14, 1990
   Per Curiam.

Because appellants in criminal cases are entitled to counsel on direct appeal from a judgment of conviction and on the appeal of certain orders denying post-conviction relief, this Court on occasion must appoint attorneys to represent indigent appellants. Attorneys who are desirous of such appointments should register with Sue Newbery, Criminal Justice Coordinator, Arkansas Supreme Court, Justice Building, 625 Marshall St., Little Rock, AR 72201. Counsel will be paid a fee after determination of the case, upon a proper motion.


text:
    IN THE MATTER OF RULES 7 AND 9 OF THE RULES OF PROCEDURE OF THE ARKANSAS JUDICIAL DISCIPLINE AND DISABILITY COMMISSION
    790 S.W.2d 143
    Supreme Court of Arkansas
    Delivered May 14, 1990
   Per Curiam.

Our per curiam order of May 8,1989, “In the Matter of Rules of Procedure of the Arkansas Judicial Discipline and Disability Commission,” promulgated rules of procedure for the Commission. Rule 7. provided that the Commission would make no disclosure of information under the provisions of Act 637 of 1989 “except in accordance with procedures approved by the Supreme Court and upon reasonable notice to any judge concerned.”

Section 2.(g) of Act 637 provided some basic rules with respect to disclosure. Those rules were apparently taken from the “Model Rules for Judicial Discipline and Disability Retirement” published in 1979 by the American Bar Association. Before quoting those rules as the ones to be “approved by” this court, we wanted a thorough study of the rules of other states so that we might reach an independent determination of the conditions under which disclosure of the Commission’s business should and should not be made. The Administrative Office of the Courts undertook such a study. The report we received was compiled after looking at the laws in all other states. That exhaustive study and report plus our own study of relevant case law and authoritative articles on this subject were used to reach the results set out in this per curiam order.

When adopting and implementing laws and rules that provide for a judicial discipline system, we are confronted with the issue as to when in the process or proceedings does the right to constitutional access attach. Every state in the Union recognizes that some confidentiality is necessary, and from our research, we have found that all states, except the State of Washington, provide for disclosure in all judicial discipline cases only after probable cause has been determined and some type of formal hearing or charge has been completed or filed. See J. Shaman and Y. Beque, Silence Isn't Always Golden, 58 Temp. L.Q. 755, 756 (1985). The Supreme Court in Landmark Communities, Inc. v. Virginia, 435 U.S. 829 (1978), set out the three reasons or functions for confidentiality in these matters. They are listed as follows:

1. To protect complainants and witnesses from possible recrimination until the validity of the complaint has been ascertained;
2. To protect a judge’s reputation from the adverse publicity which might flow from frivolous complaints;
3. To maintain confidence in the judicial system by preventing the premature disclosure of a complaint before the commission has determined that the charge is well-founded. See also First Amendment Coalition v. Judicial Inquiry & Review, 784 F.2d 467 (3rd Cir. 1986); W. Braithwaite, Who Judges the Judges?, 161-162 (1971); Buckley, The Commission on Judicial Qualification: An Attempt to Deal with Judicial Misconduct, 3 U. San Fran. L. Rev. 244 (1969).

When considering the conduct and treatment of governmental officers, the reality is that only judges are subjected to such disciplinary procedures, see First Amendment Coalition, 784 F.2d at 447, and the most worrisome concern evidenced in recent years has been how to balance the state’s concerns (as listed above in the Landmark decision) against those of public disclosure. We have considered these concerns, and have concluded that the disclosure provisions recently adopted by the State of Washington maintain a more open system of judicial discipline. At the same time, we believe Washington’s rules acknowledge the vital and substantial interests of the state. See W.A.C. 292-08-050 (1990).

We first considered the ABA Model Rules for Judicial Discipline and Disability Retirement, since they have been adopted in a number of states. However, under those Model Rules, a commission has the wide discretion to reprimand a judge in private even though it determines probable cause exists that a judge has violated the Code of Judicial Conduct or has been guilty of some other form of judicial misconduct. While such misconduct, under the Model Rules, is not disclosed to the general public, a commission may disclose information concerning a judge to a state or federal agency connected with the selection or appointment of judges. Of course, in Arkansas, judges are elected by the people. Thus, the question arises as to whether a commission’s probable cause determination of a judge’s misconduct should be disclosed to the people, since they, in a sense, are the “appointing authority” in this state. Common sense and logic suggest such information should be made public when probable cause is determined.

Although we adopt a procedure that omits private reprimands, we still are left with a judicial discipline system that maintains confidentiality during the investigative period, which is when the judge, witnesses and complaining parties require confidentiality the most. In reaching this result, we must vary somewhat the Commission’s existing confidentiality provisions which are essentially those set out in the ABA Model Rules and adopted by our General Assembly. Section 2.(g) of Act 637.

First, we have decided to alter our May 8,1989, order to do away with the “private reprimand.” Second, we have decided that anytime the Commission takes official action with respect to a complaint about a judge the matter should be open to public knowledge. If the Commission decides on action short of the filing of formal charges against a judge its letter to the judge containing an admonition or suggested adjustment shall be open to public inquiry. The letter shall contain all material facts relating to the proceeding and the conduct of the judge as well as any admonition or adjustment, including any terms and conditions, imposed by the Commission. We have thus removed the confidentiality provisions with respect to actions taken which fall short of the filing of formal charges. Records of the Commission’s investigations leading to an admonition or adjustment will remain confidential, absent waiver by the judge or one of the other exceptions stated in Rule 7., but the action taken by the Commission will not.

Rules 7. and 9.C. and E. of the Rules of Procedure of the Arkansas Judicial Discipline and Disability Commission, published by per curiam order of May 8,1989, are hereby revised to read as follows:

RULE 7. DISCLOSURE

A. Any action taken by the Commission after investigation of a judge shall be communicated to the judge by letter which shall become public information. If the allegations leading to the investigation have proven to be groundless, the letter to the judge shall so state. [See Rule 8.B. and Rule 9.E.(1)] If the Commission decides not to proceed to formal charges but to admonish the judge, to recommend a change in conduct, or to impose conditions upon future conduct, such as obtaining treatment or counseling, the letter shall set forth the facts leading to the admonition or required adjustment.

B. If the Commission finds it necessary to file formal charges against a judge and to proceed to a hearing, the charges and the hearing shall be open to the public as shall the records of formal proceedings. The Commission may, however, conduct its deliberations in executive session which shall not be open to the public. Any decision reached by the Commission in such an executive session shall be announced in a session open to the public.

C. Investigatory records, files, and reports of the Commission shall be confidential, and no disclosure of information, written, recorded, or oral, received or developed by the Commission in the course of an investigation relating to alleged misconduct or disability of a judge, shall be made except as stated in A. and B. above or as follows:

(1) Upon waiver in writing by the judge under consideration at any stage of the proceedings;
(2) Upon inquiry by an appointing authority or by a state or federal agency conducting investigations on behalf of such authority in connection with the selection or appointment of judges;
(3) In cases in which the subject matter or the fact of the filing of charges has become public, if deemed appropriate by the Commission, it may issue a statement in order to confirm the pendency of the investigation, to clarify the procedural aspects of the proceedings, to explain the right of the judge to a fair hearing, and to state that the judge denies the allegations;
(4) Upon inquiry in connection with the assignment or recall of a retired judge to judicial duties, by or on behalf of the assigning authority; or
(5) Where the circumstances necessitating the initiation of an inquiry include notoriety, or where the conduct in question is a matter of public record, information concerning the lack of cause to proceed shall be released by the Commission.

D. It shall be the duty of the Commission and its staff to inform every person who appears before the Commission or who obtains information about the Commission’s work of the confidentiality requirements of this rule.

E. Any person who violates the confidentiality requirements of this rule shall be subject to punishment for contempt of the Arkansas Supreme Court.

Rule 9.C. is revised to read as follows:

C. Probable Cause Determination. The Commission shall promptly schedule and hold a formal meeting at which the strict rules of evidence need not be observed. A complete verbatim record shall be made. All witnesses shall be duly sworn. A complainant and the judge against whom he has complained shall have the right to be present, with their attorneys, if any, except during Commission deliberations.

Rule 9.E. is revised to read as follows:

E. Disposition. In its report the Commission shall dispose of the case in one of the following ways:
(1) If it finds that there has been no misconduct, the director shall be instructed to send the judge and each complainant notice of dismissal.
(2) If it finds, by concurrence of a majority of members present, that there has been conduct that is or might be or might become cause for discipline but for which an admonition or informal adjustment is appropriate, it may so inform or admonish the judge, direct professional treatment, counseling, or assistance for the judge, or impose conditions on the judge’s future conduct.
(3) If it finds, by concurrence of a majority of members present, that there is probable cause to believe that there has been misconduct of a nature requiring a formal disciplinary proceeding, the director shall cause the judge to be served with the report, the formal statement of the charges, the record of the probable cause determination, and all documents upon which the determination was based. The service upon the judge constitutes notice that he must respond within (20) days.

       This article includes a list of states and notes when their respective law provides for confidentiality to cease. We should mention that these points of access have changed in some of the listed states since the article was written, and we particularly note Washington State is one of the changes.


text:
    IN RE: AMENDMENT OF RULES OF THE ARKANSAS SUPREME COURT AND COURT OF APPEALS 20(e)
    789 S.W.2d 453
    Supreme Court of Arkansas
    Delivered May 21, 1990
   Per Curiam.

Rules of the Arkansas Supreme Court and Court of Appeals 20(e) as written in our per curiam order, In re: Amendments to the Arkansas Rules of Civil Procedure, the Arkansas Rules of Appellate Procedure, the Arkansas Supreme Court Administrative Orders, the Rules of the Arkansas Supreme Court and Court of Appeals, and the Inferior Court Rules, of May 15, 1989, omitted inadvertently the requirement that petitions for rehearing be limited to ten pages. The order is amended so that Rule 20(e) reads as follows:

Petition — Length—Form. The petition and supporting brief, if any, shall be limited to ten pages in length and shall conform to the formal requirements for briefs found in Rule 8(a).


text:
    IN RE: PROPOSED ADDITION OF A NEW RULE 83 TO THE ARKANSAS RULES OF CIVIL PROCEDURE
    790 S.W.2d 437
    Supreme Court of Arkansas
    Delivered June 11, 1990
   Per Curiam.

The Chancery Judges of the Eleventh Judicial District-West have proposed to the Supreme Court Committee on Civil Procedure a new Rule 83 to the Arkansas Rules of Civil Procedure. The proposed new rule would give chancery courts the authority to adopt certain local rules. The Committee has determined that the reimposition of the authority of trial courts to adopt local rules is not advisable, even on a limited basis, since the result would be a lack of uniformity among the trial courts. We accept the recommendation of the Committee and deny the request to adopt the proposed rule. As we have pointed out in the past, the preferable course is to amend the Rules of Civil Procedure where necessary, and not to permit non-uniform local rules. Accordingly, we deny the petition to adopt the proposed new Rule 83.

Newbern, J., not participating.


text:
    IN RE: AMENDMENTS TO THE RULES OF THE ARKANSAS SUPREME COURT AND COURT OF APPEALS
    791 S.W.2d 696
    Supreme Court of Arkansas
    Delivered June 25, 1990
   Per Curiam.

By per curiam order of May 15, 1989, we began our experiment with the system of presenting cases on appeal by briefs accompanied by appendices as opposed to abstracts. The temporary rules authorizing an appendix, rather than an abstract, to accompany an appellate brief appeared in that order, and they now appear in the publishers’ notes to the Court Rules volume accompanying the Arkansas Code Annotated of 1987. By per curiam order of October 2, 1989, we extended the trial period until July 15,1990. We are not entirely satisfied with the appendix system; however, in the hope that it may yet become satisfactory, we wish to give ourselves one more opportunity to evaluate it after explaining the problems we have encountered. We now extend the trial period until March 1,1991.

In our order of May 15, 1989, we declared two of the purposes of the change to be “to decrease the cost of appellate litigation, [and] increase the ease and accuracy of the evaluation of cases at the appellate level.” We suspect that the first of these may have been accomplished in the cases which have been submitted to us using an appendix; the second has not.

Due to its heavy case load, this court is struggling to maintain its practice of submitting and deciding all cases ready for submission each term and accumulating no backlog. The court of appeals is striving to reduce its backlog. We have found cases submitted with appendices generally more difficult and time consuming than those submitted with abstracts.

One problem is that in many instances we have not been provided with a table of contents of the appendix. As provided in our temporary Rule 9.(b)(1), the brief should contain a table of contents which lists the contents of the appendix unless the appendix is bound separately. In the latter case, a table of contents should be included with the appendix.

Another, and far more serious, problem is a misunderstanding of the importance of the statement of the case under the new system. Those preparing appendices often seem to be under the impression that it is solely the appendix which takes the place of the abstract. That is not so. The appendix is only a reference tool. The court should be able to learn everything it should know about the case from the statement of the case found in the brief. As provided in our temporary Rule 9.(b)(l), the statement of the case should contain references to the appendix and to the designated record, much as an abstract prepared in accordance with our regular Rule 9(d) does. For example, a statement of the case might include something like the following:

John Doe testified that he saw Mary Roe on 12th Street at 3:00 p.m. on Friday, May 22,1990, and heard her say she had just come to town. (A. 42, R. 315) Counsel for Mary Roe objected on the ground that Doe’s testimony was hearsay, and the objection was overruled. (A. 43, R. 322)

It is not necessary to include in an appendix all of the record. As temporary Rule 9.(d) states, the appendix is to consist “of those portions of the designated record . . . the appellant deems dispositive of or directly relevant to the issue or issues on appeal.” When the appendix system is used, the statement of the case, with respect to which there is no page limit, should be so complete as to answer any question a reviewing judge might have about what happened at the trial. As a member of the court reads the statement of the case, he or she should be able to refer to the appendix to ascertain the crucial facts in greater depth or to check the accuracy of the statement of the case. We have not included a requirement that there be a reference for every two pages of testimony as appears in our regular Rule 9(d) which governs preparation of abstracts. Some testimony or other descriptions of occurrences at trial discussed in the statement of the case may not require substantiation in the appendix. The lawyer or other person preparing an appendix and a statement of the case should exercise discretion in determining those portions of the statement of the case which should be supported in the appendix beyond the items absolutely required in temporary Rule 9.(d)(i) through (ix).

We recognize that some of the problems we have had with the new system are the sort that inevitably result from any change and the fact that it takes time to get used to it. We wish to give it every chance of success, and thus we are willing to extend the trial period during which an appellant may choose to submit the case with an appendix rather than an abstract. We continue to hope that the appendix method can make our task of review easier rather than more difficult. If that does not occur, we will end the experiment and return to requiring abstracts in all cases.


text:
    IN RE: GUIDELINES FOR CHILD SUPPORT ENFORCEMENT
    790 S.W.2d 442

    Supreme Court of Arkansas
    Delivered June 25, 1990
   Per Curiam.

By per curiam, dated February 5, 1990, this court issued its order concerning guidelines for child support enforcement.

In publishing our per curiam, we noted that this was a provisional order of the court, and doing so, directed the chief justice and the committee on child support to continue its charge to study, and revise when necessary, the guidelines for child support to insure the proper enforcement of child support awards in the state.

Inasmuch as this court, on May 15,1989, adopted Supreme Court Rule 30, which mandated a uniform paper size of 8'/2 x 11, the chief justice and the committee have caused the forms which are in present use, to be revised accordingly.

We now approve the revised forms entitled Income Withholding Hearing Notice, Claim Form, and Notice of Income Withholding for Support as reduced from legal size to our mandated size of 8‘/2 x 11.


text:
    IN THE MATTER OF THE CLIENT SECURITY FUND
    S.W.2d
    Supreme Court of Arkansas
    Delivered April 2, 1990
   Per Curiam.

Jill R. Jacoway of Fayetteville, Arkansas, is hereby appointed to the Client Security Fund Committee replacing Dewain Hodge of Waldron, Arkansas, third congressional district. Ms. Jacoway is appointed for a term expiring July 30, 1996.

The Court expresses its gratitude to Dewain Hodge for his faithful service to the Court.


text:
    IN THE MATTER OF THE SUPREME COURT COMMITTEE ON PROFESSIONAL CONDUCT
    S.W.2d
    Supreme Court of Arkansas
    Delivered April 30, 1990
   Per Curiam.

Dr. Wilma Diner of Little Rock, Arkansas, is appointed to the Supreme Court Committee on Professional Conduct for a term of four years, expiring May 1,1994. Dr. Diner is appointed as a member at-large replacing Ms. Nancy Wood of Little Rock, Arkansas, whose term has expired.

The Court expresses its gratitude to Ms. Wood for her dedicated and faithful service to the Committee.


text:
    IN RE: SUPREME COURT COMMITTEE ON MODEL JURY INSTRUCTIONS, CRIMINAL
    790 S.W.2d 180
    Supreme Court of Arkansas
    Delivered June 25, 1990
   Per Curiam.

The Honorable James W. Stallcup, Walnut Ridge, Arkansas, Ms. Jill “Didi” Sailings, Mr. Jackson Jones, and Mr. Jack Lassiter of Little Rock, Arkansas, are hereby appointed to the Supreme Court Committee on Model Jury Instructions, Criminal, to serve at the pleasure of the court.

The Court expresses its gratitude to the Honorable Gerald Brown, Paragould, Arkansas, and Professor Rafael Guzman, Fayetteville, Arkansas, for their faithful services on this committee.


author: Jack Holt, Jr., Chief Justice. Tom Glaze, Justice, Steele Hays, Justice,

text:
    Gary MOORE v. STATE of Arkansas
    CR 90-1
    791 S.W.2d 698
    Supreme Court of Arkansas
    Opinion delivered July 9, 1990

      Boyd A. Tackett, Jr., for appellant.

      Steve Clark, Att’y Gen., by: Joseph V. Svoboda, Asst. Att’y Gen., for appellee.
   Jack Holt, Jr., Chief Justice.

Appellant, Gary Moore, was initially convicted of possession of marijuana with intent to deliver and possession of drug paraphernalia. We reversed and remanded that conviction. Moore v. State, 297 Ark. 296, 761 S.W.2d 894 (1988).

On retrial, Moore was convicted of possession of marijuana and sentenced to imprisonment in the Arkansas Department of Correction for six years and three months and fined $5,000. He was also convicted of possession of drug paraphernalia and sentenced to six months imprisonment in the Arkansas Department of Correction and fined $500.

Moore appeals both of his convictions and asserts that 1) the trial court erred in overruling his motion to strike a statement that he made to police officers, and 2) the trial court erred in failing to hold a “Denno” hearing. We agree that the trial court erred in failing to hold a “Denno” hearing; therefore, we will initially discuss Moore’s second point of error.

Moore claims that his motion to strike his statement, based on his allegation that the Miranda rights form did not apprise him that he had a right to a lawyer free of charge or at no cost to him and the arresting officers did not inform him of those particular rights, was sufficient to raise the issue of the admissibility of his “confession” and that the trial court’s subsequent failure to hold a “Denno” hearing was a violation of Ark. Code Ann. § 16-89-107(b)(1) (1987).

In Jackson v. Denno, 378 U.S. 368 (1964), the principle was established that a criminal defendant is entitled to a hearing regarding the voluntariness of any confession before it can be admitted into evidence. The basis for this right is found in the due process concern involving self-incrimination, as expressed in the fifth and fourteenth amendments. See also Harris v. White, 745 F.2d 523 (Mo. 1984).

The court in Jackson v. Denno, supra, that:

It is now axiomatic that a defendant in a criminal case is deprived of due process of law if his conviction is founded, in whole or in part, upon an involuntary confession, without regard for the truth or falsity of the confession, and even though there is ample evidence aside from the confession to support the conviction. Equally clear is the defendant’s constitutional right at some stage in the proceedings to object to the use of the confession and to have a fair hearing and a reliable determination on the issue of voluntariness, a determination uninfluenced by the truth or falsity of the confession. [Citations omitted.]

Arkansas has incorporated the concerns and requirements elicited in Jackson v. Denno in section 16-89-107(b) (1), which addresses the trial of issues of fact and provides as follows:

Issues of fact shall be tried by a jury. However, the determination of fact concerning the admissibility of a confession shall be made by the court when the issue is raised by the defendant; the trial court shall hear the evidence concerning the admissibility and the voluntariness of the confession out of the presence of the jury, and it shall be the court’s duty before admitting the confession into evidence to determine by a preponderance of the evidence that the confession has been made voluntarily.

Although there appears to be some disagreement as to whether Moore’s statement is to be viewed as an exculpatory statement or a confession, the distinction in this case is of little consequence because we found in DuBois v. State, 258 Ark. 459, 527 S.W.2d 595 (1975), that when a defendant’s in-custody statements are not confessions but exculpatory statements, on appeal they are treated as confessions in accordance with Miranda requirements.

Additionally, the presumption is that an in-custody statement is involuntary, and the burden is upon the State to show otherwise. Bucy v. State, 271 Ark. 768, 610 S.W.2d 576 (1981) (citing Hileman v. State, 259 Ark. 567, 535 S.W.2d 56 (1976)). A factor to be considered in determining the voluntariness of a waiver of the right to remain silent is the advice or lack of advice of constitutional rights. Hatley v. State, 289 Ark. 130, 709 S.W.2d 812 (1986); Harvey v. State, 272 Ark. 19, 611 S.W.2d 762 (1981).

As a result, Moore’s filing a motion to strike his statement, with a certificate of service to the prosecuting attorney, sufficiently raised the issue of the voluntariness of his in-custody statement to require the court to hear the evidence concerning the admissibility and voluntariness of the statement out of the presence of the jury. The language of our code is clear that when the issue of the admissibility of a confession is raised by the defendant, “it shall be the court’s duty before admitting the confession into evidence to determine. . . that the confession has been made voluntarily.”

In addition, A.R.Cr.P. Rule 20.3(a) provides “At the omnibus hearing, the trial court on its own initiative shall: . . . (iv) make rulings on any motions ... or other requests then pending . . . .” In this instance, the trial court conducted an omnibus hearing on March 17,1989, yet failed to rule on Moore’s motion to strike his confession which was pending at the time.

For these reasons, we must agree with Moore that the trial court’s failure to conduct an evidentiary hearing on his motion to strike was error. However, this failure does not in and of itself entitle Moore to a new trial. Instead, we remand to the trial court with instructions to hold a hearing and rule on the issue of the voluntariness of Moore’s statement. See Harris v. State, 271 Ark. 568, 609 S.W.2d 48 (1980); Jackson v. Denno, supra. A new trial should be ordered only if the trial court finds the statement to have been involuntary. Id.

Due to the fact that Moore will now receive the required “Denno” hearing, we need not discuss his first point of error.

No error being shown except with respect to the required finding of voluntariness, the case is remanded for further proceedings upon that issue.

Glaze, J., concurs.

Hays, J., dissents.

Tom Glaze, Justice,

concurring. I concur. I harbor serious doubts that the appellant is entitled to a “Denno” hearing at this stage of the proceeding, but the record is sufficiently confusing on this point that I believe caution dictates one.

Arkansas Criminal Procedure requires a defendant to file a motion to suppress if he objects to the use of any evidence he claims was illegally obtained. A.R.Cr.P. Rule 16.2(a). The Rule includes objections pertaining to a confession or admission of a defendant involuntarily made. A.R.Cr.P. Rule 16.2(a)(3). However, where an omnibus proceeding is utilized by the trial court, Rule 16.2 does not apply.

Here, the trial court utilized an omnibus hearing, which is authorized by A.R.Cr.P. Rules 20.1—20.4. Under Rule 20.3, the trial court, among other things, must make rulings on any motions or other requests then pending and determine whether there are any procedural or constitutional issues which should be considered. A.R.Cr.P. Rule 20.3(a)(iv) and (v). Unless the trial court directs otherwise, all motions and requests made prior to trial should be reserved and presented orally. A.R.Cr.P. Rule 20.3(b). Any pretrial motion, request or issue which is not raised at the omnibus hearing shall be deemed waived, unless the party concerned did not have the information necessary to make the motion or raise the issue. A.R.Cr.P. Rule 20.3(c).

In the present case, appellant never raised the motion and issue he now argues. On March 1,1989, he filed a motion to strike the statements he made to the police because the rights form utilized by the officers did not apprise him that he had a right to a lawyer free of charge. On March 13, 1989, he filed four other motions which he orally presented to the trial court at an omnibus hearing held on March 17, 1989. The trial court denied those other motions. However, the record , of the March 17 hearing reveals the appellant never mentioned the motion to strike that he had filed on March 1,1989, and as a consequence, the trial court never ruled on it. If the balance of the record did not otherwise confuse this issue, I would be of the strong opinion that, under Rule 20.3(c), the appellant simply waived his right to raise his motion to strike because he failed to present it. After all, defendants have a right to raise and later abandon any issue they choose.

My problem arises from what transpired at trial on May 30, 1989. When officer A. J. Gary testified to the statement he took from the appellant, appellant’s counsel objected and the prosecutor said, “I’d ask the court to hold with its previous ruling which is that it should not be suppressed.” And again later in the trial, appellant’s counsel stated that he wished to renew his motion to strike the statement he gave the police and the trial court denied that motion and the others appellant had previously made. From reading these exchanges between counsel and the trial court, it appears that at some time, the trial court actually ruled on appellant’s motion to strike his statement and the court refused to suppress the introduction of the appellant’s statement.

The Supreme Court has held that in making the primary determination of voluntariness of a confession, the judge need not make formal findings of fact or write an opinion, but his conclusion that the confession is voluntary must appear from the record with unmistakable clarity. Sims v. State of Georgia, 385 U.S. 538 (1967). Here, the record before us reveals that, at some time prior to trial, the trial court may have ruled on the appellant’s motion and denied his request to suppress his confession. Certainly, the record is not clear on what transpired, and if the court made such a ruling, the record fails to clearly reflect it. When confronted with such doubts that “Denno” standards may not have been satisfied, courts have opted to remand, as our court is doing, so a hearing can be conducted by the trial court to ensure the defendant’s constitutional rights will have been clearly protected. State of Minnesota v. Tahash, 364 F.2d 922 (8th Cir. 1966); Mitchell v. Stephens, 353 F.2d 129 (8th Cir. 1965).

For the reasons given above, I join in the majority court’s remand of this case for a “Denno” hearing.

Steele Hays, Justice,

dissenting. It is clear the appellant abandoned his motion to strike a “statement” given to the police after his arrest. At an omnibus hearing well in advance of trial he presented four motions: a motion to dismiss, a motion to produce witnesses, a motion to suppress chemical analysis reports and a motion on joinder. At the conclusion of the omnibus hearing counsel for appellant announced, “Thank you. That’s all the defendant has, Your Honor.” The trial judge then reminded the lawyers the case was set for trial on April 4 and the proceedings were adjourned.

Against the weight of well established rules of law and procedure the majority holds that the defendant did not waive his motion, that it was the state’s or even the trial judge’s burden to bring up the motion to strike. I respectfully disagree.

A.R.Cr.P. Rule 20.3(c) provides that “any pretrial motion, request or issue not raised at.the omnibus hearing shall be deemed waived . . . .” Nothing in Jackson v. Denno, 378 U.S. 368 (1964) or in Ark. Code Ann. § 16-89-107 (1987), which the majority cite, suggests that a motion challenging an in-custodial statement may not be waived or abandoned. To the contrary, in Hill v. State, 250 Ark. 812, 467 S.W.2d 179 (1971), we applied the waiver doctrine to voluntariness of confessions, holding that when a defendant permits a jury, rather than the court in camera, to pass on the voluntariness of his confession, a Denno hearing is waived, citing Pintow. Pierce, 389 U.S. 31 (1967). Moreover, the majority’s interpretation of our statute is a departure from an earlier position. In Smith v. State, 254 Ark. 538, 494 S.W.2d 489 (1973), we said:

We hold that whenever the accused offers testimony that his confession was induced by violence, threats, coercion or offers of reward then the burden is upon the state to produce all material witnesses who were connected with the controverted confession or give adequate explanation for their absence. [My emphasis.]

We have held that in-custodial statements that are not in the nature of a confession do not even require a Denno hearing. Workman v. State, 267 Ark. 103, 589 S.W.2d 21 (1979). Whether the “statement” in this case is confessional in nature so as to warrant a Denno heáring is a matter of conjecture, as the statement is not to be found in the appendix. This court has often said it will not go to the record to determine whether a point of error is meritorious. Kitchen v. State, 271 Ark. 1,607 S.W.2d 345 (1980).

Finally, I would point out that today’s holding undermines a body of sound law that matters left unresolved in trial proceedings are waived. Richardson v. State, 292 Ark. 140, 728 S.W.2d 189 (1987); Williams v. State, 289 Ark. 69, 709 S.W.2d 280 (1986).


author: Jack Holt, Jr., Chief Justice.

text:
    Michael G. NETTLES v. STATE of Arkansas
    CR 90-53
    791 S.W.2d 702
    Supreme Court of Arkansas
    Opinion delivered July 9, 1990

      Duncan M. Culpepper, for appellant.

      Steve Clark, Att’y Gen., by: C. Kent Jolliff, Asst. Att’y Gen., for appellee.
   Jack Holt, Jr., Chief Justice.

The appellant, Michael Nettles, has petitioned this court for a writ of prohibition to prevent the Circuit Court of Pike County from proceeding with a trial in regard to a theft of property charge against him. Nettles claims that he has not been afforded his right to a speedy trial. We disagree.

Arkansas R.Cr.P. Rule 28.1(c) addresses the time limitations, excluded periods, and consequences of violations in bringing a criminal defendant to trial and provides in pertinent part as follows:

Any defendant charged after October 1, 1987, in circuit court and held to bail, or otherwise lawfully set at liberty, . . . shall be entitled to have the charge dismissed with an absolute bar to prosecution if not brought to trial within twelve (12) months from the time provided in Rule 28.2, excluding only such periods of necessary delay as are authorized in Rule 28.3.

Arkansas R.Cr.P. Rule 28.2 addresses when time commences to run in a criminal prosecution and provides in pertinent part as follows:

The time for trial shall commence running, without demand by the defendant, from the following dates:
(a) from the date the charge is filed, except that if prior to that time the defendant has been continuously held in custody or on bail or lawfully at liberty to answer for the same offense or an offense based on the same conduct or arising from the same criminal episode, then the time for trial shall commence running from the date of arrest.
* * * *

Nettles asserts that more than twelve months have passed from the date that the theft of property was filed, that there are no excusable periods, and that the charge should be dismissed against him due to the prosecutorial bar in Rule 28.1(c).

We have examined the record and note the following relevant dates from the trial court’s docket entries:

December 16, 1988 Theft of property charge filed.
March 18, 1989 Nettles arrested.
March 22, 1989 Nettles arraigned.
June 14, 1989 Trial court appoints attorney.
October 5, 1989 Nettles enters guilty plea to theft of property charge.
October 23, 1989 Trial court refused to accept sentence recommendation and allows Nettles to withdraw his guilty plea.
February 7, 1990 Nettles appears in trial court and files a motion to dismiss due to the lack of a speedy trial.
February 7, 1990 Hearing is conducted and the motion to dismiss is denied.

Although more than twelve months have passed since the theft of property charge against Nettles was filed, the key to this case is that Nettles entered a guilty plea to the charge against him, which plea was subsequently withdrawn. In Kennedy v. State, 297 Ark. 488, 763 S.W.2d 648 (1989) (citing Hall v. State, 281 Ark. 282, 663 S.W.2d 926 (1984)), we stated that “[a] defendant, by a plea of guilty, waives a number of significant rights, including the right to a speedy trial.” We also held in that case that an order allowing the withdrawal of a plea of guilty is analogous to an order granting a new trial, and the time for a trial begins to run anew after an order is entered allowing the withdrawal of a guilty plea.

As a result, only eight months have run since Nettles’s guilty plea was withdrawn, and Rule 28.1(c) has not been violated.

We note that the trial court denied Nettles’s motion to dismiss on the basis of its interpretation of Rules 28.1 and 28.2 to mean “that a defendant must be arrested before the twelve months time period for speedy trial begins to run.” This interpretation was incorrect, and Nettles’s time for trial began running on the date the charge was filed because he had not been “continuously held in custody or on bail or lawfully at liberty to answer for the same offense or on offense based on the same conduct or arising from the same criminal episode.”

To avoid this issue, Nettles argues in his reply brief that the State may not raise new matters of fact or law for the first time on appeal and, since it did not present any evidence at the hearing on the motion to dismiss, is precluded from relying on Kennedy v. State, supra, for affirmance.

Nettles’s claim that his right to a speedy trial was violated is not a new issue of fact or law. Consequently, the State is not raising a new matter by merely responding to Nettles’s argument on appeal. Indeed, under the circumstances, it was not necessary for the State to present any evidence at the hearing on Nettles’s motion to dismiss as he himself had placed into evidence the trial court’s docket sheet, which furnished sufficient facts to determine the issue now under consideration.

In Marchant v. State, 286 Ark. 24, 688 S.W.2d 744 (1985) (citing Curtis v. State, 279 Ark. 64, 648 S.W.2d 487 (1983) and Rice v. State, 216 Ark. 817, 228 S.W.2d 43 (1950)), we reiterated that where a trial judge erred in his reasoning, but reached the correct result and his error was harmless, the case will be affirmed on appeal.

The trial court’s error in basing its denial of Nettles’s motion to dismiss on an incorrect interpretation of Rules 28.1 and 28.2 was harmless, as, under these circumstances, the twelve month time limitation in which the State has to bring Nettles to trial dates from the order granting the withdrawal of his guilty plea.

Petition denied.

Hays, J., concurs.


author: Robert H. Dudley, Justice.

text:
    David JOHNSON v. STATE of Arkansas
    CR 90-69
    792 S.W.2d 863
    Supreme Court of Arkansas
    Opinion delivered July 9, 1990

      William C. McArthur, for appellant.

      Steve Clark, Att’y Gen., by: Kelly K. Hill, Asst. Att’y Gen., for appellee.
   Robert H. Dudley, Justice.

A jury found appellant guilty of possession of cocaine with intent to deliver. He appeals. We affirm. Because sufficiency of the evidence is one of the issues, we set the facts out in detail.

Officer Thomas Washington, operating under cover, was brought into the Magnolia area to make drug purchases. He went to the Flamingo Motel on March 11, 1989, and purchased two rocks of crack cocaine for $40. He made the purchase in Room No. 4 from Jerry Taylor. Washington informed Captain Robert Gorum that crack cocaine was being sold in the Flamingo Motel. Washington then prepared an affidavit for a search warrant, and while he was looking for a judge to get the warrant, Gorum began surveillance operations at the motel.

During the initial period of surveillance, Gorum observed a small blue car parked in front of Room No. 4. He also saw eight to ten people going in and out of the room. He left the area after 20 to 35 minutes, went back to his office, and returned approximately 40 minutes later. At that time, the small blue car was gone, and people were going from Room No. 4 into another room which Gorum believed to be number 10, but which subsequently turned out to be No. 7. He also saw several cars drive into the area, saw people getting out, saw them go into Room No. 4, and then saw them return to their cars and leave. The second period of surveillance lasted 10 to 20 minutes.

On Gorum’s third period of surveillance, he moved to an area where he could see the motel rooms while the other police officers were preparing to raid the rooms. He was there approximately ten minutes before the other officers’ approach to the motel. During that interval, he saw the blue car was again in front of the room. He identified appellant as the driver and John Young as the passenger. He saw them get out of the car and go into Room 4; they stayed a short period of time; came out; went to Room 7; returned to the entry of Room 4; then both men walked to the blue car; appellant placed something in the trunk; and they both got into the vehicle.

Having obtained the search warrant, the other officers surrounded and entered the designated motel rooms shortly thereafter. The search warrant specifically listed Rooms 4 and 10. Appellant and John Young were arrested in the blue car. In searching Room 4, the officers found a gun under the bed and twenty-two (22) rocks of cocaine on the person of Jerry Taylor. Also in Room 4 were Bobby Baker, Ms. Jackie McKinney, and Bonnie Biddle.

The search of Room 10 turned up nothing; however, in going back and forth between Rooms 4 and 10, one of the officers noticed two young girls peeking out of the window of Room No. 7. The officer became concerned that they might be in there alone because he never saw an adult come to the window, even with all of the commotion going on outside. The officer knocked on the door. One of the little girls answered. She and her sister were alone in the room. The officer asked them where their parents were. They responded that their mother was in Dallas and their father was outside in the police car, referring to Bonnie Biddle. Realizing then that a mistake had been made in room numbers, one of the officers searched Room 7. She found two “bricks” of cocaine under the mattress and a shotgun under the bed.

Taylor, Biddle, and Baker, who were undisputed accomplices, testified that they had come to Magnolia from Dallas. On the way they stopped at appellant’s house and picked up some crack cocaine. Biddle testified that appellant was his boss, and that their business was selling cocaine. When the supply of cocaine ran low in Magnolia, appellant was to bring more from Dallas and then pick up the money they had made.

Appellant raises six points of appeal, none of which have merit. We first discuss the challenge to the sufficiency of the evidence. Harris v. State, 284 Ark. 247, 681 S.W.2d 334 (1984). Appellant argues that the evidence was insufficient to corroborate the testimony of the accomplices and, therefore, the case must be reversed and dismissed. Ark. Code Ann. § 6-89-111(e)(1) (1987) provides: “A conviction cannot be had in any case of felony upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the commission of the offense. The corroboration is not sufficient if it merely shows that the offense was committed and the circumstances thereof.” The corroboration must be sufficient standing alone to establish the commission of the offense and to connect the defendant with it. David v. State, 295 Ark. 131, 748 S.W.2d 117 (1988). It may be circumstantial evidence as long as it is substantial. Id. Where circumstantial evidence is used to support accomplice testimony, all facts of evidence can be considered to constitute a chain sufficient to present a question for resolution by the jury as to the adequacy of the corroboration, and the court will not look to see whether every other reasonable hypothesis but that of guilt has been excluded. Rhodes v. State, 276 Ark. 203, 634 S.W.2d 107 (1982).

Officer Gorum testified that he observed a blué car parked in front of Room 4 during the first period of surveillance; it was not there on his second visit, but, on his third, it was back again. He observed appellant and John Young enter Room 4; stay a short time; go to Room 7; and return to the door of Room 4. Appellant then placed something in the trunk of the car, and they both got back in the vehicle. Additional evidence, also independent of that from the accomplices, came from John Young. Young testified that he rode with appellant from Dallas to Magnolia, and that appellant told him he was going to Magnolia to pick up some money from Biddle. Further, Young testified that after they were arrested, appellant suggested that they create a story that they had come to Magnolia to pick up some money for a guy named J.R. Young also heard appellant ask Jerry Taylor to “take the rap for all of us,” in exchange for a thousand dollars. This evidence was sufficient to connect appellant with the commission of the offense.

Appellant next contends that the trial court erred in denying his motion to suppress evidence seized in the search of Rooms 4 and 7 at the Flamingo Motel because the affidavit for the search warrant regarding Room 4 was not sufficient to establish probable cause, and because there was no search warrant at all for Room 7. We do not consider the issue with respect to Room 4 because neither the affidavit nor the search warrant were abstracted. Poyner v. State, 288 Ark. 402, 705 S.W.2d 882 (1986).

Further, appellant has no standing to challenge the searches. The doctrine of standing to invoke the protection of the exclusionary rule has evolved to focus on a defendant’s substantive fourth amendment rights. Rakas v. Illinois, 439 U.S. 128 (1978); State v. Hamzy, 288 Ark. 561, 709 S.W.2d 397 (1986). Accordingly, evidence should not be excluded unless the court finds that an unlawful search or seizure violated the defendant’s own constitutional rights; and his rights are violated only if the challenged conduct invaded his legitimate expectation of privacy rather than that of a third party. State v. Hamzy, 288 Ark. at 564. A “legitimate” expectation of privacy means more than a subjective expectation of not being discovered. State v. Hamzy, 288 Ark. at 564, quoting from Rakas v. Illinois, 439 U.S. at 143. Further, the proponent of a motion to suppress has the burden of establishing that his own fourth amendment rights were violated by the challenged search or seizure. State v. Hamzy, 288 Ark. at 565. Here, appellant argues that by virtue of the State’s theory that he was in charge of the entire operation, he had a “legitimate” expectation of privacy in the rooms because they would have been rented at his direction. The fourth amendment does not stretch that far. Neither room was registered in his name, and there was no evidence that he did anything other than go to the rooms for a short period of time, spending most of his time in his car on the parking lot. Appellant did not establish a legitimate expectation of privacy in either of the motel rooms.

Next, appellant argues that the trial court erred in denying his motion in limine which sought, among other things, to prevent the State from eliciting testimony concerning the Drug Task Force, and testimony connecting appellant with prior drug deals. First, we find no ruling on appellant’s motion in limine either in his abstract or in the record. The burden of obtaining a ruling is on the movant, and objections and questions left unresolved are waived and may not be relied upon on appeal. Richardson v. State, 292 Ark. 140, 728 S.W.2d 189 (1987). Appellant did, however, raise specific objections about the State’s references to the Drug Task Force during the trial. The first objection came during the prosecutor’s opening statement, and appellant gave no basis for it. The other objection came during the beginning of the testimony of Officer Gorum, and relevance was the stated basis. The fact that the officers were working together in a Drug Task Force was relevant. No objection based upon an A.R.E. Rule 403 weighing was made. Appellant also made three objections about testimony concerning his prior drug dealings. Those objections were either based on relevancy or no basis was given for the objection. Yet, on appeal appellant’s argument is based upon A.R.E. Rule 404(b) which forbids the introduction of evidence of other crimes, wrongs or acts except as proof of certain designated things. We have long held that a party cannot change the grounds for an objection on appeal. Harris v. State, 295 Ark. 456, 748 S.W.2d 666 (1988). Therefore, we do not consider the argument.

Appellant next contends that the trial court erred in allowing the State to present hearsay testimony. Although appellant complains that there were numerous instances of such error, he admits that in many cases there was no objection to preserve the argument for appeal. Further, he only sets forth two specific examples of hearsay, both of which involved testimony in which the witnesses stated that Bonnie Biddle had told them that he, Biddle, worked for appellant. Any error in allowing this hearsay testimony was remedied when Biddle himself testified that he worked for appellant. Bussard v. State, 295 Ark. 72, 747 S.W.2d 71 (1988).

Appellant next challenges that constitutionality of Ark. Code Ann. § 12-12-313 (Supp. 1989) which provides that records and reports of the State Crime Laboratory are to be received as competent evidence when duly attested to by the lab personnel who performed the analysis, or by certain designated officials of the laboratory. The statute provides that the defendant shall give at least ten (10) days notice prior to the proceedings if, he wants the person who performed the analysis to be present for cross-examination. If he does not give such notice the right of confrontation is waived. Appellant argues that the statute violated his right to confront the witnesses against him as guaranteed by both the United States Constitution and the Arkansas Constitution. Appellant’s argument on this point, however, is not fully developed. He stipulates that he knew the State intended to use the report without subpoenaing the expert witness from the crime lab, and, yet, he offers no reason for waiving the witness’s presence by not notifying the State to bring the witness to trial in accordance with the statutory provisions.

We note at the outset that even fundamental constitutional rights can be waived under certain circumstances. Johnson v. Zerbst, 304 U.S. 458 (1938). An accused may waive his right to cross-examination and confrontation, and the waiver of such right may be accomplished by the accused’s counsel, at least as a matter of trial tactics or strategy. See United States v. Goldstein, 532 F.2d 1305 (9th Cir. 1976), cert. denied, 429 U.S. 960. Appellant does not argue, and we do not consider, whether a defendant must personally, knowingly, and intelligently waive the fundamental right of confrontation.

Finally, appellant argues that the trial court erred in refusing to instruct the jury that John Young was an accomplice as a matter of law. The trial court did not err since the evidence presented an issue of fact as to Young’s status. Young testified that when he agreed to ride from Dallas to Magnolia with appellant, he assumed that appellant wanted him to help drive; that he did not know Bonnie Biddle was working with appellant; that appellant didn’t tell him anything about having people sell drugs for him in Magnolia; that he thought the reason appellant was going to Magnolia to get money from Biddle was because Biddle owed appellant money; and that his relationship with appellant consisted of him working on appellant’s car in Dallas. In sum, Young’s status presented an issue of fact for the jury. See notes to AMCI 402.

Affirmed.


author: Steele Hays, Justice.

text:
    DEPARTMENT OF HUMAN SERVICES, Child Support Enforcement Unit v. Katherine CRUNKLETON, Guardian of the Estate of Diane McGowen
    90-2
    791 S.W.2d 704
    Supreme Court of Arkansas
    Opinion delivered July 9, 1990

      Michael G. Boe, for appellant.

      Stripling & Morgan, by M. Edward Morgan, for appellee.
   Steele Hays, Justice.

This case involves a dispute over the proceeds of property originally held in tenancy by the entirety by Joe and Diane McGowen. Joe McGowen was previously married to Carolyn McGowen. They divorced in 1973. Joe was ordered to make monthly child support payments to Carolyn. Joe defaulted and Carolyn sought help from the Child Support Enforcement Agency, Department of Human Services. In November 1984 Carolyn was awarded a judgment for $ 14,000 for an arrearage in child support.

After Joe and Diane McGowen married they acquired a tract of real property which they held in tenancy by the entirety. In 1980, the McGowens sold the property to Rudolph and Laverne Hendrix under an agreement which involved monthly deposits of $200 by the Hendrixes to Citizens Bank of Marshall as escrow agent.

Carolyn was unsuccessful in collecting on her judgment from Joe McGowen. She sought the help of the CSE agency and writs of garnishment were served on Rudolph and Laverne Hendrix and on Citizens Bank. The garnishees admitted an escrow account balance of $24,203 and by an order of delivery dated March 1986 the garnishees were ordered to pay $14,000 “in whole or in accordance with the established escrow contract, to the circuit clerk in the form of a check payable to Child Support Enforcement . . . .” Thereafter the monthly installments of $200 were paid to the CSE and then disbursed to Carolyn McGowen. On January 1, 1988, Joe McGowen died and the Hendrixes continued to make payments to the CSE after Joe’s death.

At some point Diane McGowen had become incompetent and appellant Katherine Crunkleton was appointed guardian. In November 1988, Ms. Crunkleton filed a petition on behalf of Diane McGowen to intervene in the action between Carolyn and Joe. The petition alleged that half of the monthly payments the garnishees began to make to CSE in April 1986 rightfully belonged to Diane and should be restored. The petition also alleged that after Joe’s death all interest in the escrow passed to Diane, and that monies paid from the escrow after Joe’s death should be restored and the order of delivery cancelled.

The case was heard on a stipulation of the facts and the trial court ruled in favor of Diane McGowen, finding that half the money paid by the garnishees since April 1986 should be restored to Diane, that Diane was entitled to all the escrow payments made subsequent to Joe’s death and that the order of delivery should be cancelled. The order awarded judgment to Diane McGowen against CSE in the amount of $6,200. The state has appealed, arguing that the trial court’s order violates its sovereign immunity and we agree.

Article 5, section 20 of the Constitution of Arkansas provides: “The State of Arkansas shall never be made Defendant in any of her courts.” Sovereign immunity is jurisdictional immunity from suit. McCain v. Crossett Lumber Co., 206 Ark. 51, 174 S.W.2d 114 (1943). Jurisdiction must be determined entirely from the pleadings and if jurisdiction is not established by the pleadings the court is not to proceed further. Id. Here, all of the pleadings reflect a routine child support case resulting in a judgment for an arrearage followed by garnishments. But the garnishment statute, and the act of which it is a part (Act 722 of 1979, as amended), affords no basis for jurisdiction over the state. It merely provides a means by which the payment of child support can be more effectively enforced. It is not a waiver of sovereign immunity. Nor was the state ever named as a party in any of the pleadings. The state was never served with process and never entered an appearance by any type of pleading. In fact, the state has not filed a single pleading and its name was never shown in the style of the case until this appeal. Not having been sued and not having waived its immunity, the state was not subject to a judgment to be awarded against a department of the state. Even so, relief from the error must be held in the trial court, since one may not appeal from litigation to which it was not a party. Quattlebaum and CBM, Inc. v. Gray, 252 Ark. 610, 480 S.W.2d 339 (1972). Ark. Code Ann. § 16-67-310 (1987).

Appeal dismissed.