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    IN RE: ARKANSAS RULES FOR MINIMUM CONTINUING LEGAL EDUCATION AND REGULATIONS OF THE ARKANSAS CONTINUING LEGAL EDUCATION BOARD
    85-302
    Supreme Court of Arkansas
    Delivered June 27, 1994
   Per Curiam.

On March 14 we issued a per curiam order announcing proposed changes in the Arkansas Rules and Regulations for Minimum Continuing Legal Education. In that order, we requested comment from interested parties no later than May 14, 1994.

After considering the comments received, we conclude that the proposed amendments to the Arkansas Rules and Regulations for Minimum Continuing Legal Education should be adopted effective with the reporting period beginning July 1, 1994. Further, the initial one (1) hour of ethics required by Rule 3.(A) shall not be due until June 30, 1996.

We hereby adopt and republish the entirety of the Arkansas Rules and Regulations for Minimum Continuing Legal Education as they appear on the attachment to this order.

ARKANSAS RULES FOR MINIMUM CONTINUING LEGAL EDUCATION

RULE 1.

CONTINUING LEGAL EDUCATION BOARD

1. (A) There is hereby established the Arkansas Continuing Legal Education Board (hereinafter referred to as the Board). The Board shall be composed of nine voting members, appointed by the Arkansas Supreme Court, all of whom are resident members of-the Bar of Arkansas. In addition, the Dean of each Arkansas law school accredited by the American Bar Association shall be an ex-officio member, without vote.

1. (B) There shall be at least one Board member from each of the six Arkansas Court of Appeals districts. The initial Board shall draw terms so that three members will serve a one year term, three will servé a two year term, and three will serve a three year term.

1. (C) All subsequent appointments shall be made by the Arkansas Supreme Court for terms of three years. Board members may be reappointed, but may serve no more than two terms of three years. The Arkansas Supreme Court shall fill all vacancies, with the appointee to serve the remaining term, for such position, subject to reappointment in accord with this paragraph. Any Board member whose term expires shall continue in office until his successor is appointed and qualified.

1. (D) The Board shall, annually, by majority vote, elect a Chairman from among its voting members. The Director of the Office of Professional Programs for the Arkansas Supreme Court shall serve as Secretary, without a vote. Board members shall be entitled to reasonable reimbursement for expenses and such per diem compensation as the Court may from time to time direct.

1. (E) The Board shall have the following duties and responsibilities:

(1) Exercise general supervisory, authority over these rules, to include the imposition of sanctions for noncompliance with these rules, as well as the implementation and administration of these rules;
(2) Adopt regulations consistent with these rules, to be submitted to the Arkansas Supreme Court for approval prior to their implementation;
(3) The Board may appoint committees as may be necessary to efficiently administer these rules; however, all matters concerning sanctions for noncompliance with these rules shall be the duty and responsibility of the Board.
(4) In cases of extreme hardship due to mental or physical disability, the Board may approve a substitute plan by which individuals may meet the requirements of these rules; and
(5) Such other specific grants of authority as may be set out in these rules.

1. (F) A majority of all voting Board members shall constitute a quorum.

RULE 2.

SCOPE

2. (A) Except as noted elsewhere in Rule 2, these rules shall apply to every member of the Bar of Arkansas, including all levels of the State and Federal Judiciary, and all attorneys who may be suspended during any reporting period due to nonpayment of license fee or action by the Supreme Court Committee on Professional Conduct. When used in the course of these rules, the word attorney shall include judges.

2. (B) Exemptions: Any attorney or Judge who attains age 70 or completes 40 years of licensure as an Arkansas lawyer, during any giverf reporting period, is exempt from all requirements of the Arkansas Rules for Minimum Continuing Legal Education (hereinafter referred to as CLE) for that reporting period as well as all subsequent reporting periods.

2. (C) Non Resident Attorneys:

(1) Attorneys who are members of the Bar of Arkansas, but reside outside this State, are required to meet the minimum continuing legal education requirements of their resident state. Such attorneys shall complete annual certification forms to that effect. These forms will be filed with the Arkansas Continuing Legal Education Board on or before the October 31 which succeeds the reporting period in question. Such certifications shall be subject to verification through the agency which administers the continuing legal education program for such resident state. In the event an attorney is a member of the Bar of Arkansas, yet resides in a state or foreign jurisdiction where there is no continuing legal education requirement, such attorneys shall be annually required to file with the Arkansas Continuing Legal Education Board a certification form confirming that fact. This form shall be filed on or before the October 31 which succeeds the reporting period in question. Further, in the event an attorney returns to the practice of law in the State of Arkansas from a state where there has been no continuing legal education requirement that attorney shall be required, by the end of the first reporting period after the attorney’s return, to acquire thirty-six (36) hours of accredited continuing legal education. Twelve (12) of those hours shall be a basic skills course or bar examination review course as approved by the Board.
(2) Nonetheless, an Arkansas licensed attorney or judge who resides: in a state which does not require continuing legal education; in a foreign jurisdiction; or, in a state which requires continuing legal education but is not licensed in that state and is therefore prohibited from participating in the continuing legal education program of that state, may remain current as regards Arkansas CLE requirements. Such attorneys may do so by meeting the twelve (12) hour requirement as set out in Rule 3.(A). The Secretary shall obtain from such attorneys appropriate documentation to confirm compliance with the Arkansas CLE program. In the event attorneys are in compliance with Rule 3(A) during the reporting period preceding their return to the practice of law in Arkansas, they shall not be subject to the thirty-six (36) hour requirement mentioned in paragraph 2.(C)(1) above. In the event an attorney has elected to remain current, yet fails to acquire 12 hours of approved CLE during any reporting period, that attorney shall be subject to the sanctions of Rule 6.

2. (D) Inactive Status:

(1) At anytime during a reporting period, an attorney on active status, with the exception of sitting judges, may take inactive status pursuant to these rules. Inactive status, for the purpose of these rules only, means that an attorney, subsequent to declaration of inactive status, will not engage in the practice of law during the remainder of that reporting period. Election of inactive status must be in writing. By taking inactive status, the attorney shall be exempt from the minimum educational requirements of Rule 3 for that reporting period, and subsequent reporting periods if the attorney chooses to annually recertify inactive status. The Board shall provide a form for renewal of inactive status. Attorneys claiming inactive status shall file with the Board an inactive status renewal form on or before October 31 of each succeeding reporting period.
(2) If, during any reporting period, an attorney who has previously declared inactive returns to the practice of law, the attorney must immediately so advise the Board. Such attorney, who is returning to active status, shall be subject to a reinstatement fee, to be set by the Board, in an amount not to exceed $250.00. The attorney will receive no educational credits for courses taken before the reinstatement fee has been paid. Provided that the attorney returning to active practice notifies the Board and pays the reinstatement fee, then qualified continuing legal education credits may be applied pursuant to paragraph 2.(D)(3) below.
(3) Such attorneys shall be required to obtain thirty-six (36) hours of qualified continuing legal education between the date of return to active status (which is the date the reinstatement fee is received by the Board) and the end of the next succeeding reporting period. Twelve (12) of those hours will be a basic skills course, or bar examination review course, either of which must be approved by the Board.

RULE 3.

MINIMUM EDUCATIONAL REQUIREMENTS

3.(A) Every member of the Bar of Arkansas, except as may be otherwise provided by these rules and, excepting those attorneys granted voluntary inactive status by the Arkansas Supreme Court Committee on Professional Conduct, shall complete 12 hours of approved continuing legal education during each reporting period as defined by Rule 5.(A) below. Of those 12 hours, at least one hour shall be ethics as defined by Regulation 3.02. In addition, an attorney or judge may carry over accredited hours in accord with the provisions of Rule 5.(A), including one hour of ethics which may be carried forward to the succeeding reporting period.

3.(B) This minimum requirement must be met through courses conducted by sponsors approved by the Board, or individual courses that have been approved by the Board, or such other programs, courses, or other educational materials that the Board may approve pursuant to Rule 4.

3.(C) An hour of continuing legal education shall include at least sixty minutes of instruction, exclusive of meals, introductions, or other non-educational activities.

3.(D) The Board is authorized and encouraged to consider the requirement of particular course content, such as professional or judicial ethics, as part of the minimum educational requirement.

RULE 4.

ACCREDITATION

4.(A) The Board shall be the exclusive authority for accreditation of continuing legal education sponsors or programs. However, the Board may delegate to a subcommittee, in accord with Rule 1.(E)(3), the authority to review submissions by new sponsors. Further, the Board may delegate to its Secretary the authority to approve or deny programs submitted by previously accredited sponsors, or by sponsors who have previously had individual program(s) approved by the Board. The Board, through its Secretary, shall provide an annual report to the Arkansas Supreme Court which shall reflect summary information with regard to program approvals or denials, attorney suspension information, and such other matters as the Board may direct.

4.(B) Approval of Accredited Sponsors:

(1) An organization, or individual, may seek Board designation as an accredited sponsor;
(2) Such a request must be accompanied by evidence the sponsor has conducted, during the three years preceding application, at least three courses that substantially comply with the individual course requirements of Rule 4.(C);
(3) Subsequent to approval as an accredited sponsor, courses offered by that sponsor may be automatically approved, provided that the Secretary is satisfied such courses meet the requirements of Rule 4.(C);
(4) Likewise, sponsors accredited by another state or a national continuing legal education accred-. iting body may be automatically approved, provided the Secretary is satisfied that the sponsor meets the requirements of Rule 4.(B); and,
(5) Accredited sponsors must abide by all reasonable requests for information or course materiais from the Board, or its Secretary, and the Board reserves the right to withdraw sponsor accreditation for failure to meet the requirements of these rules.

4.(C) Individual course or activity approval:

The Board may, upon application, approve continuing legal education courses or activities provided such courses meet the following standards:
(1) The course must contribute directly to professional competence of attorneys and judges, or to their education with respect to professional or ethical obligations;
(2) Course presenters must have the necessary experience or academic skills to conduct the course effectively;
(3) Prior to, during, or after the course, each attendee must be provided with written course materials of a quality and quantity which indicate that adequate time has been devoted to the speaker’s preparation and that the written materials will be of value to the attendees in the . course of their practice. In the event written materials are not provided before, or during the program, the program will not be subject to preapproval by the Board. In the event materials are submitted after the program, the Board will make a determination as to what, if any, credit shall be given for the course;
(4) The course must be presented in a suitable setting, which provides attendees with adequate writing surfaces, provided that the Secretary is satisfied that the course substantially complies with the requirements of Rule 4.(C);
(5) During activities presented by means of videotape, audiotape, or other such systems, there must be an opportunity to ask questions of course faculty or a qualified commentator;
(6) The sponsor must encourage participation by attorneys as planners, authors, panelists, or lecturers;
(7) The sponsor must make available to the Board, or its Secretary, upon request, information concerning the course, which might include a list of attendees or individual affidavits signed by attendees, the course brochure, a description of the method or manner of presentation, and a set of all written materials pertinent to the course; and
(8) The course must be subject to evaluation before, during, and after presentation.

4.(D) The Board is authorized and encouraged to grant approval to all sources of continuing legal education which meet the relevant standards of Rule 4.(C), including: publication of law related articles in legal journals; preparation of bar examination materials; preparation for, and conduct of, approved continuing legal education courses; participation in regularly scheduled courses conducted by American Bar Association accredited law schools; and “In House” educational programs conducted by law firms or other law related entities. The Board shall also be authorized to determine the amount of approved hours such activities are worth and may limit the number of such hours that may be applied to the minimum requirement.

4.(E) It is presumed that sponsor accreditation, or individual program accreditation, will be sought well in advance of the event. However, the Board may accredit a sponsor or individual program after the event.

4.(F) In the event the Secretary denies approval of an individual course or sponsor, the aggrieved sponsor may, in writing, request that the Board review such denial.

RULE 5.

REPORTING

5.(A) Credit for approved continuing legal education hours will be given for courses or activities conducted from July 1 through June 30 of each year, and for the purposes of these rules, this period of time shall be known as the “reporting period.” If an attorney or a judge acquires, during such reporting period, approved continuing legal education in excess of twelve (12) hours, the excess credit may be carried forward and applied to the education requirement for the succeeding reporting period only. The maximum number of CLE hours one may carry forward is twelve (12), which may include one hour of ethics.

5.(B) Sponsors may be required to report attendance to the Board or its Secretary. Such reports may be required promptly after completion of each program or activity. Attorneys may also report approved activities using a certificate approved by the Board.

5.(C) The Board, through its Secretary, shall maintain current records of CLE attendance for each attorney to whom these rules apply. Pursuant to Board regulation, they shall be made available to such attorneys.

5.(D) During the course of the reporting period, the Board, through its Secretary, may provide interim reports by first class mail to those attorneys subject to the 12 hour requirement of Rule 3.(A). Such reports will state the number of approved CLE hours each attorney has of record with the Board. On or before July 31 after the conclusion of the immediately preceding reporting period, the Board, through its Secretary, shall provide a final report by first class mail to those attorneys. The number of approved CLE hours stated in the interim and final reports shall be presumed correct unless the attorney notifies the Board otherwise. If the final report shows acquisition of 12 or more approved CLE hours during the reporting period, the attorney shall be deemed to be in compliance with these rules and need not take any further action for the immediately preceding reporting period.

In the event the final report reflects that an attorney has failed to meet the 12 hour requirement of Rule 3.(A), the final report will be accompanied by an acknowledgment of deficiency form. Such attorneys shall sign the acknowledgment of deficiency form and file it with the Board on or before the following August 31. Subsequently, such attorneys shall cure any deficiency by December 1 and provide appropriate documentation to the Board no later than the following December 15. CLE hours reported to the Board pursuant to the acknowledgment of deficiency shall first be applied to the deficiency and any remaining hours will be applied to the current reporting period.

5.(E) The Board is authorized to assess costs against delinquent attorneys in the form of a reasonable fee for filing late and filing a deficiency plan.

5.(F) Newly admitted attorneys shall be subject to the twelve hour minimum requirement during the reporting period that follows the reporting period in which they are admitted.

5.(G)' All filings pursuant to Rule 5 will be made with the Secretary to the Arkansas Continuing Legal Education Board, unless the Board directs otherwise. In addition, all such filings that require the signature of an attorney shall be subject to the requirements of Rule 8.4 of the Model Rules of Professional Conduct for Lawyers or its successor rule.

RULE 6.

NONCOMPLIANCE AND SANCTIONS

6.(A) If an attorney to whom these rules apply either fails: to file timely the acknowledgment of deficiency or cure the deficiency as required by Rule 5.(D); to file timely an inactive renewal form pursuant to Rule 2.(D); or, to file timely an out of state certification form in accord with Rule 2.(C), the attorney shall not be in compliance with these rules.

6.(B) Within 30 days after an attorney fails to comply with any provision of the preceding paragraph, the Board, through its Secretary, shall serve a notice of noncompliance on the affected attorney. Such notice shall be sent by first class mail to the address the attorney maintains with the office of the Arkansas Supreme Court Clerk.

6.(C) The notice shall contain a statement of the nature of the noncompliance. The attorney must, within 30 days of the date of the notice of noncompliance, provide the Board written evidence that the attorney is either in compliance or has corrected the noncompliance.

6.(D) If within the allotted time as set out in paragraph 6.(C) above, the attorney fails either to provide written evidence of compliance or that the noncompliance has been corrected, the Board, through its Secretary, shall serve a notice of intent to suspend upon the affected attorney. Such notice shall be mailed to the address the attorney maintains with the Clerk of the Arkansas Supreme Court. The notice shall be sent by certified mail, restricted delivery, return receipt requested. Such notice shall apprise the attorney that his or her Arkansas law license shall be considered for suspension at the next regularly scheduled meeting of the Board. Such notice shall be sent at least 20 days prior to that meeting. Upon written request of the attorney, a hearing shall be conducted at that meeting.

6.(E) Hearing procedure:

(1) The Board, in the performance of its responsibilities under these rules, shall have the authority to request issuance of summons or subpoena from the Office of the Supreme Court Clerk, and the Clerk shall issue same. Such requests shall be signed by the Chairman of the Board, or its Secretary.
(2) Witnesses may be sworn by the Board Chair or any member acting in his or her stead, or by any individual authorized to administer oaths, and upon request, a record shall be made at the expense of the attorney. Such hearings are civil in nature and the standard for decision is preponderance of the evidence.
(3) The hearing shall be open to the public.
(4) After the hearing, the Board may retire to executive session to deliberate. Thereafter, its decision shall be publicly announced and, if not unanimous, there shall be a statement of votes by individual members.
(5) The Board shall take action by a majority vote of the voting members present.

6.(F) Authorized dispositions at Board meeting subsequent to service of notice of intent to suspend.

(1) The Board may dismiss the matter if records in possession of the Board show that the attorney has achieved compliance. However, such dismissal may be made contingent upon payment of a delinquency assessment as authorized by Rule 5.(E) and the regulations adopted pursuant to that rule; or,
(2) The Board may enter an order deferring further action for no more than 90 days to allow the attorney to achieve compliance. Subsequent to the period of deferment, the Board may suspend the attorney in accordance with Rule 6.(F)(3), or, dismiss the action in accord with the preceding paragraph, or, take such other permissible actions it may deem appropriate; or,
(3) The Board may suspend the license of the attorney subject to reinstatement pursuant to paragraph 6.(H) below. Such suspension shall become effective on the date of filing of the notice and order of suspension with the Arkansas Supreme Court Clerk. (Hereinafter referred to as “The Order of Suspension.”)

6.(G) Promptly after a Board vote of suspension, the Secretary shall notify the affected attorney by way of certified mail, restricted delivery, return receipt requested. In addition, the Secretary shall promptly file the order of suspension with the Clerk of the Arkansas Supreme Court and notify Arkansas state judges of general jurisdiction and the United States District Court Clerk.

Attorneys who are suspended may request a stay of such suspension pending a hearing by the Board. Such a request shall be made in conjunction with a petition for reinstatement. The request shall be presented to the Board, through its Secretary, in the form required by Rule 6.(H). Such submissions shall be' ruled upon by the Board Chairperson, or a member designated by the Chairperson. To be considered for review, the petition for reinstatement and request for stay must either: (a) establish that the attorney had obtained the requisite number, of CLE hours, or filed the appropriate documents, to be in compliance on or before the vote of suspension on that attorney; or, (b) confirm that subsequent to the vote of suspension, but prior to filing the petition for reinstatement and request for stay, the attorney had obtained the requisite number of CLE hours to be in compliance or had filed appropriate documents to achieve compliance. Any request for stay of suspension must contain an affirmation by the attorney that he or she has not engaged in the practice of law subsequent to receipt of notification of suspension or actual knowledge of suspension, whichever is earlier.

6.(H) An attorney who has been suspended pursuant to these rules who desires reinstatement shall file a petition for reinstatement (which in appropriate cases may incorporate a request for stay of suspension) with the Secretary of the Board. The petition shall be sworn and properly acknowledged by a notary public or any official authorized to take oaths. The petition may include the applicant’s reason(s) for noncompliance, state that the applicant is presently in compliance, or provide any other material information pertinent to the applicant’s petition. The petition must contain an affirmation that the petitioner has not engaged in the practice of law subsequent to receipt of notification of suspension or actual knowledge of suspension, whichever is earlier. The petitioner may request a hearing before the Board. In such case, a hearing will be conducted in accordance with the provisions set out in Rules 6.(E) and 6.(F), and Section 6 of the regulations. In the event the attorney is reinstated, the Board may set additional educational requirements as a condition of reinstatement and may assess reinstatement fees and late filing fees consistent with its regulations.

RULE 7.

APPEALS

7.(A) Final determinations as to accreditation of a sponsor by the Secretary or a committee of the Board shall, upon request of the aggrieved sponsor, be reviewed by the Board. There shall be no further review of such determinations.

7.(B) Final determinations by the Board, which result in suspension of an attorney, may be appealed to the Arkansas Supreme Court. Such appeal shall be heard de novo on the record from the Board proceedings.

7.(C) To effect an appeal, the suspended attorney shall file the record with the Supreme Court Clerk within, thirty days from the entry of order of suspension. The appellant shall bear the cost of record preparation.

REGULATIONS OF THE ARKANSAS CONTINUING LEGAL EDUCATION BOARD

SECTION 1 - THE BOARD

1.01 PREFACE

These regulations are cumulative to and explanatory of the Arkansas Rules for Minimum Continuing Legal Education (hereinafter the Rules) which were adopted by Per Curiam Order of the Arkansas Supreme Court on March 6, 1989, 298 Ark. 638 (1989). In the event of a conflict between these regulations and the Rules, the provisions of the Rules shall prevail. Rule 6 of the Arkansas Rules of Civil Procedure shall govern calculation of time whenever an action is required to be taken under the Rules or these Regulations unless otherwise provided. Members of the Arkansas Continuing Legal Education Board (hereinafter Board) and the Secretary to the Board (hereinafter Secretary) shall be absolutely immune from suit for all conduct in the course of their official duties in connection with the administration of the Arkansas Minimum Continuing Legal Education Program (hereinafter CLE).

1.02 RULES OF PROCEDURE

All proceedings by the Board will be conducted pursuant to Roberts Rules of Order.

1.03 MEETINGS

Meetings will be called as to date, time and place by the Chairman or by five Members of the Board.

1.04 OFFICIAL FORMS

The Secretary is authorized to develop appropriate forms, verification procedures, and other administrative procedures as necessary to efficiently administer the CLE program.

1.05 PRIOR BOARD RULINGS

The Secretary shall maintain an index of rulings of the Board, which are not implemented as regulations, and shall make such rulings available to potential sponsors or attorneys upon request.

1.06 REMOVAL OF MEMBERS

Upon good cause shown, which may include failure to attend meetings on a regular basis, the Board may recommend to the Arkansas Supreme Court that a Board member be removed from office. Upon such recommendation, the Court may declare the position vacant and appoint a replacement pursuant to Rule l.(C).

1.07 RECORDS RETENTION

The Board shall maintain all records in connection with the CLE Program for a period of three (3) years after each approved CLE course or activity is concluded. Further, where Accredited Sponsors have submitted documentation pursuant to Rule 4.(B)(2), the Board may discard such documentation after three (3) years, after acquiring satisfactory evidence that the accredited sponsor continues to conduct programs which meet the requirements of Rule 4.(C). Fiscal records pertaining to the CLE Program shall be maintained by the Board for a period of five (5) years.

1.08 SPONSOR RECORDS

Accredited or individual course sponsors shall maintain course records in connection with programs which have been approved by the Board. These records shall be maintained in the possession of the sponsor for a period of one (1) year after the program or activity. Such records shall include: the course outline or brochures; all written materials; the faculty information; the evaluations; and, the attendance records.

1.09 AMENDMENT

These regulations may be amended by a majority vote of the Board; subject to subsequent approval by the Arkansas Supreme Court.

SECTION 2 - SCOPE

2.01 NON-RESIDENT ATTORNEYS

An attorney’s residence is presumed to be the address the attorney maintains with the Office of the Arkansas Supreme Court Clerk. Attorneys who maintain Arkansas licenses, but reside outside this state and are licensed in the state of their residence, are required to meet the minimum continuing legal education requirements of their resident state. Arkansas licensed attorneys residing in a state which requires continuing legal education but who are not licensed in that state, are inactive in that state, or for any other reason are denied the opportunity to participate in the continuing legal education programs of that state, are considered in compliance with the requirements of their resident CLE state. However, such attorneys who return to the practice of law in Arkansas shall be required to acquire thirty six (36) hours of approved CLE courses by the end of the first reporting period that succeeds the reporting period in which they return. Twelve (12) of those hours shall be a basic skills course or bar examination review course as determined by the Board. Notwithstanding this provision, the attorney may choose to remain current in Arkansas pursuant to Rule 2(C). Attorneys who move from a state which does not require minimum continuing legal education to a state other than Arkansas which does require minimum continuing legal education are required to meet the requirements of that state.

2.02 INACTIVE STATUS

(1) REINSTATEMENT FEE
The reinstatement fee, pursuant to Rule 2.(D)(2), shall be FIFTY DOLLARS ($50.00). The Board, in its discretion, may waive this fee under extraordinary circumstances.
(2) DEFINITION: PRACTICE OF LAW
The practice of law shall be defined as any service rendered, regardless of whether compensation is received therefor, involving legal knowledge or legal advice. It shall include representation, provision of counsel, advocacy, whether in or out of court, rendered with respect to the rights, duties, regulations, liabilities, or business relations of one requiring the legal services. It shall encompass all public and private positions in which the attorney may be called upon to examine the law or pass upon the legal effect of any act, document, or law. Inactive attorneys may not, at any time, or in any manner, hold themselves out as lawyers to the general public. Nonetheless, it shall not be considered the practice of law for attorneys to represent themselves or family members to the third degree of consanguinity.

SECTION 3 - MINIMUM REQUIREMENTS

3.01 ENHANCED CREDIT

(1) SOLO SPEAKERS
An attorney who presents a speech or program at an approved CLE course shall be allowed four (4) hours credit for each hour of the initial presentation and two
(2) hours credit for each hour of each subsequent presentation of the same material.
(2) PANEL DISCUSSIONS
A participant in a panel presentation shall receive two
(2) hours for each one (1) hour of the entire panel presentation in which he or she participates directly, unless the participant shall have prepared for distribution to the audience written materials supporting his or her portion of the panel presentation, in which event three (3) hours credit shall be given for every one (1) hour of the entire panel presentation in which he or she participates directly.
(3) QUESTION AND ANSWER SESSIONS
Question and answer sessions following individual or panel presentations shall be counted as part of the presentation time for which credit is to be given.
(4) WRITTEN MATERIALS To serve as a basis upon which credit for an individual or panel presentation is given, accompanying written materials must comply with Rule 4(C)(3).

3.02 ETHICS

Ethics presentations shall be distinct segments no less than one hour in length, shall be specifically designated separately on the program application and shall be accompanied by appropriate documentation. Likewise, claims for ethics credit shall be designated separately on certificates of attendance submitted to the Secretary.
Ethics shall be defined as follows: “Legal ethics includes, but is not necessarily limited to, instruction on the Model Rules of Professional Responsibility for Lawyers and the Code of Judicial Conduct. It does not include such topics as attorney fees, client development, law office economics, and practice systems except to the extent that professional responsibility is directly discussed in connection with these topics.”
In accord with Rule 2.(C) “out of state” attorneys shall not be subject to the one hour ethics requirement set forth in Rule 3.(A) except insofar as their resident states require ethics credits.

3.03 HARDSHIPS

In cases of extreme hardship due to mental or physical disability which substantially inhibits the ability of an attorney or Judge to participate in extended seminar presentations, the Secretary shall, in cooperation with the affected party, develop an appropriate program of substituted compliance. Such programs shall, to the extent possible, comply with relevant sections of Rule 4.(C) and must be approved by the Board.

SECTION 4 - ACCREDITATION

4.01 ACCREDITED SPONSORS

The Secretary of the Board shall keep a current list of accredited sponsors and include thereon the date of
accreditation by the Board, current address, and phone number of each sponsor.

4.02 PROGRAM ADJUSTMENTS

(1) The Secretary is authorized to make adjustments in the number of approved CLE credit hours or approved substitute program content where, during the presentation of a program previously approved by the Board, there is a deviation from the program content or length. If a program segment is abbreviated due to illness or other emergency and is 90% or more completed, it shall be given full credit. Otherwise, the credit time allowed for that particular program segment shall be adjusted to the nearest one-quarter (1/4) hour. In such event it is the obligation of the sponsor to notify attendees immediately and amend the certificates of attendance, if possible, and when submitting the certificates of attendance, advise the Secretary of the diminished hours available for the particular program segment in question.
(2) The Secretary is authorized to adjust hours when determining the number of hours for which programs are to be submitted for credit. In such cases courses are to be adjusted to the nearest one-quarter (1/4) hour.
(3) In addition, it is the obligation of the Sponsor to notify attendees immediately when any previously approved program segment fails to meet the minimum course standards set out in Rule 4.(C) and advise the attendees that credit may not be available for that particular program segment due to the deficiency. The Sponsor shall also notify the Secretary of such deficiencies.

4.03 RECIPROCAL ACCREDITATION - INDIVIDUAL ATTENDANCE

Upon receipt of a completed certificate of attendance form or other documentation by the Secretary from an Arkansas attorney confirming attendance at an out-of-state continuing legal education program approved by the situs state, the attorney shall be entitled to CLE credits in Arkansas. The Secretary shall verify the program’s approval by the situs state’s continuing legal education agency.

4.04 APPROVED CLE ACTIVITIES

(1) BAR EXAMINERS
Credit may be earned through service as a bar examiner in Arkansas. Six (6) hours of CLE credit will be awarded for the preparation and grading of each bar examination. No more than twelve (12) hours of CLE credit can be awarded in any year for bar examination preparation and grading.
(2) AUTHORSHIP OF LAW ARTICLES
In accordance with objective standards to be developed and applied by the Board, up to twelve (12) hours of credit may be earned through the authorship of a law related article published by an American Bar Association accredited law school, a state bar journal, an official publication of the American Bar Association, or through authorship of a published book on legal matters. Any attorney may petition the Board for credit for the authorship of an article or book. Entitlement to credit will accrue as of the date of publication of the article or documented date of acceptance for publication.
(3) LAW SCHOOL COURSES
Credit may be earned through part-time teaching, formal enrollment for credit, or official audit and attendance at a course offered by a law school accredited by the American Bar Association. Twelve (12) credit hours will be awarded for each academic credit hour taught, officially audited, or successfully completed, provided the applicant certifies attendance of at least seventy-five percent (75%) of the class sessions. For the purpose of this regulation, “part-time teaching” is defined as teaching one course which awards four or fewer hours of academic credit.
(4) IN-HOUSE PROGRAMS
In-house programs are available as a means of acquiring CLE credits provided:
(a) The program complies with Rule 4.(C) of the Arkansas Rules for Minimum Continuing Legal Education; and,
(b) The application and documentation for in-house programs conducted in Arkansas must be submitted to the Secretary in advance of the scheduled event and be approved before the scheduled event.
In addition, private law firms which conduct in-house programs shall be subject to the following requirements:
(c) A minimum of three (3) “out-of-firm” attorneys must be allowed to attend such programs. Each firm may set reasonable limits on the total number of such “out-of-firm” attendees and the firm must provide appropriate notification of the program to local attorneys who may wish to attend;
(d) Any “out-of-firm” attorney who desires to attend an in-house CLE program may be responsible for a proportionate share of the costs of the program; and,
(e) Attorneys may receive a maximum of six (6) hours CLE credit for in-house programs conducted during any reporting period.
(5) SATELLITE PROGRAMS
All satellite television programs which otherwise comply with the Rules may be approved.
(6) VIDEO PROGRAMS
Video CLE programs are an acceptable means of obtaining CLE credits, provided:
(a) The original program upon which the video replay is based has been approved by the Board;
(b) The program must have the original faculty members present or the original faculty members must make known their addresses or phone numbers in order that they can respond to written or phoned inquiries subsequent to the program; and,
(c) There must be a moderator present.
(7) LIVE TELEPHONE CONFERENCES
CLE programs presented via live telephone conferences are acceptable provided such programs comply with relevant portions of Rule 4.(C).
(8) SHORT COURSES
No course shall be approved unless it contains at least one continuous hour of instruction accompanied by written materials consistent with Rule 4.(C)(3), and is conducted in a suitable educational environment.
(9) ADVANCE SHEET REVIEW GROUPS
Programs consisting of review of advance sheet court opinions shall be approved, provided written materials consisting of analysis in addition to the advance opinions themselves, are provided by the persons responsible for the discussion of a case or cases, and regular and special group meeting times and places are published to the Board at least two weeks in advance to assure compliance with the evaluation requirement of Rule 4.(C)(8).

4.05 UNAPPROVED CLE ACTIVITIES:

(1) PUBLIC PRESENTATIONS
No CLE credits are available for attorneys speaking or presenting any program to the lay public without prior approval of the Board.
(2) SELF-STUDY
Self-study courses are not approved as a means of acquiring CLE credits.
(3) AUDIOTAPES
Audio tape programs are not approved as a means of acquiring CLE credit.
(4) LAW PROFESSORS
No full-time or adjunct law school professors may obtain CLE credits for teaching regularly scheduled courses, subject to the exception of Regulation. 4.04 (3).
(5) LAW FIRM OPERATIONS
Individual programs which deal solely with the internal financial operations of a law firm will not be considered acceptable as a means of acquiring CLE credits in Arkansas.

SECTION 5 - REPORTING-FEES

LATE FILINGS/DEFICIENCY PLANS

5.01 After a reporting period has ended, and at any time prior to a vote of suspension by the Board, an attorney may file:

(1) Documentation to establish compliance with the provisions of Rule 3.(A). If filed between July 1 and August 31, such documentation shall be accompanied by a deficiency fee of $75.00 if the documents submitted are for CLE credits acquired after July 1;
(2) An acknowledgment of deficiency form. If filed between July 1 and August 31, such a filing shall be accompanied by a deficiency fee of $75.00;
(3) An acknowledgment of deficiency, if filed after August 31, shall be subject to the $75.00 deficiency fee set out in paragraph (2) above, and a late filing fee of $25.00. After timely filing of an acknowledgment of deficiency and payment of the required fee, no late filing fee will be assessed for hours submitted to cure timely the deficiency. However, documentation of hours obtained after December 1 to cure a deficiency shall be accompanied by a late filing fee of $100.00. Documentation to establish compliance with Rule 3.(A) for CLE credits acquired before July 1, but filed after August 31, shall be subject to a $25.00 late filing fee;
(4) An out of state certification pursuant to Rule 2.(C); or, an inactive renewal pursuant to Rule 2.(D). Such filings shall be accompanied by a late filing fee of $25.00 if filed after October 31; and,
(5) Documentation tendered in accord with the preceding paragraphs will not be accepted unless accompanied by the appropriate filing fee and unless all other applicable requirements have been met.

5.02 All fees shall be made payable to the Bar of Arkansas.

SECTION 6 - HEARING PROCEDURES/SANCTIONS

6.01 (1) In the absence of the Chairman of the Board, the remaining voting members of the Board shall elect from among its number, by a majority vote, a presiding officer for the hearing in question.

(2) The expense of a court reporter’s attendance, if a record is requested, shall be paid by the affected attorney.

(3) The burden of proof as to compliance with the Rules shall remain with the attorney.

(4) Not less than ten days before a hearing, at the request of either the Board or the attorney, each shall apprise the other of the names, addresses, and phone numbers of witnesses and provide copies of all exhibits each intends to present at the hearing.

(5) The Rules of Evidence shall apply subject to the exercise of reasonable discretion by the majority of the Board.

(6) In addition, pursuant to Rule 6, the Board may assess a reinstatement fee not to exceed TWO HUNDRED FIFTY DOLLARS ($250.00). Such fees shall be payable to the Bar of Arkansas.

SECTION 7 - APPEALS

7.01 RIGHT TO REVIEW

An attorney who is suspended by the Board shall have the right to review of the ruling by the Arkansas Supreme Court.

7.02 OBTAINING THE RECORD

To effect such a review, the suspended attorney, within ten (10) days of receipt of notice of suspension shall, in writing, request a copy of the record of the proceedings from the Secretary.. Such record shall include all pertinent documents on file with the Board and the transcript of any pertinent hearings conducted by the Board. The Secretary shall promptly respond to such requests. The Secretary shall deliver, by registered mail, a single copy of such record to the suspended attorney.

7.03 COSTS

The suspended attorney shall be responsible for the costs attendant to record preparation and filing, including the expense of preparing the transcript of any hearings.

7.04 FILING

Thereafter, the suspended attorney shall have ten (10) days from receipt of the record to file same with the Clerk of the Arkansas Supreme Court. A single copy of the record shall be filed, accompanied by eight (8) copies of the attorney’s motion for further review by the Arkansas Supreme Court. The motion and record shall be filed pursuant to Arkansas Supreme Court Rule 2-1, and the Clerk’s Office will process such motions for review pursuant to procedures established under said Rule 2-1, or its successor rule.

7.05 MEMORANDUM

The suspended attorney may accompany the motion with a brief memorandum setting out grounds for reversal of the decision of the Continuing Legal Education Board. The Board may file a response as authorized by Rule 2-1.

7.06 DECISION BY THE ARKANSAS SUPREME COURT

The findings of the Board shall not be reversed unless the Arkansas Supreme Court finds them to be clearly erroneous. The Arkansas Supreme Court shall review the case de novo upon the record presented.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    IN RE: BAR OF ARKANSAS LICENSE FEES
    878 S.W.2d 409
    Supreme Court of Arkansas
    Delivered July 11, 1994
   Per Curiam.

Five-year projections of the operational requirements of the Bar of Arkansas indicate the need for an increase in license fees. Therefore, beginning January 1, 1995, the annual license fee for the Bar of Arkansas shall be $100.00 for lawyers who have been licensed for three or more years. The annual fee for new enrollees who have been licensed for less than three years shall be $75.00.

Lawyers who are sixty-five years of age or older on or before January 1 of the year for which license fees are payable may pay at the reduced annual rate of $10.00 by certifying that their earnings do not exceed the amount that would prevent a person of their age from drawing the maximum Social Security benefits.

The Arkansas Bar Association, through its house of delegates, and individual members of the Bar of Arkansas, have recommended that this Court consider increasing its annual fees sufficiently to provide adequate funding for staff and the operations of our various committees. Further, it has been recommended that such funds be increased to the extent that they provide necessary services.

Our boards and committees have asked this Court to take steps to improve their ability to carry out what they perceive to be their responsibilities. In order to do so, it is necessary that we acquire sufficient administrative fundings to provide appropriate staff and funds for general administrative expenses to accomplish these entities’ assigned tasks.

An increase in fees has been under consideration for some time because of a need for additional funding of our Committee on Professional Conduct, the Unauthorized Practice of Law Committee, and the Office of Court Programs. In addition, it is necessary to expand the availability of the Supreme Court Client Security Fund’s monies.

More particularly, because of the increase in applications filed with the State Board of Law Examiners and complaints filed with the Supreme Court Committee on Professional Conduct and the Supreme Court Committee on the Unauthorized Practice of Law, all three committees are. unable to investigate adequately the submitted petitions or complaints. It is, therefore, imperative for these bodies to hire more investigative assistants.

The increase in the work required of these committees has led to a greater burden on the appointed lawyers who are being asked to provide large amounts of uncompensated time to maintain the work of the Court. While we support and encourage pro bono service by the profession, we recognize the need at least to provide reasonable defrayment of the expenses of attorneys who accept appointment to Supreme Court boards and committees.

We also note that the special increase in payments by the Client Security Fund Committee has led to payments exceeding income this year, even though this Court recently increased the amount of license fees dedicated to the fund.

For these reasons, this new schedule of annual fees shall become effective on January 1, 1995. Lawyers are responsible for notifying the Clerk of the Supreme Court of changes of address on or before November 1, 1994, to ensure the correct mailing of notices for the 1995 annual license fees.

Brown, J., dissents.

Robert L. Brown, Justice, dissenting. I agree that license fees should be increased to $75 but I disagree that they should be doubled to $100 without more justification. Our history of increases in license fees is as follows:

From 1955-1971, fees were $2.00.
From 1972-1973, fees were $17.00. See Per Curiam, 251 Ark. 800 (1972).
From 1974-1980, fees were $17.00. Effective in 1974, $2.00 of the $17.00 was credited to the Client Security Fund. See Per Curiam, 254 Ark. 1075 (1973).
From 1981-1984, fees were $20.00. See Per Curiam, 270 Ark. 1020 (1980).
From 1985-1987, fees were $25.00. See Per Curiam, 284 Ark. 580 (1984).
From 1988 to the present, fees have been $50.00. See Per Curiam, 294 Ark. 663 (1987).

For the last two years we have experienced deficits in our budget and have used our reserves to make up the difference. By the end of the 1993-94 fiscal year, we will still have reserves exceeding $130,000.

The justification for an increase in license fees is an arbitrary, across-the-board 5% annual increase in the cost of programs, compounded over the next 5 years. The increase is not tied to specific staff positions or new or expanded programs. Rather, the per curiam talks of a general need for additional funding for our various committees. At this point we have not quantified what that “need” is. We certainly do not have a pending proposal before us for additional “investigative assistants” or any other staff positions. Because this information is not available, the per curiam justifies the increase based on a percentage increase in total costs. Using the 5% compounded increase, the projection is that our expenses will soar from $510,446 in 1993-94 to $660,007 in 1998-99, for almost a 30% increase.

Raising license fees to $75 would meet even the 5% projection in costs until 1996-97 when a deficit of $2,266 will first be realized. But doubling the amount of the license fees seems imprudent at this juncture. My preference is to increase the fees to $75 and then assess where we are in three years. Certainly our reserves of $130,000 are sufficient to handle any contingencies. Otherwise, we run the risk of putting the cart before the horse, that is, doubling the fees and then finding staff positions to fill and programs to fund or expand. I prefer having identified staff positions and programs before us with estimated dollar amounts before committing to such a significant increase.

For these reasons I would assess $75 as license fees for all lawyers, commencing January 1, 1995.


text:
    IN RE: COMMITTEE ON THE UNAUTHORIZED PRACTICE OF LAW
    Supreme Court of Arkansas
    Delivered July 11, 1994
   Per Curiam.

On December 18, 1978, the Court by Per Curiam Order established the Committee on the Unauthorized Practice of Law to receive inquiries and complaints regarding the unauthorized practice of law; to investigate those inquiries and complaints; to conduct hearings, if necessary; to issue advisory opinions; and, if necessary, to bring legal action in the appropriate court.

Once the Committee was appointed, it adopted Rules of Procedure which have been amended twice since their original adoption. The Rules Creating the Committee have been amended once.

The Committee now requests certain amendments to the Rules of Procedure and Rules Creating the Committee. The Committee submits that these changes will enable the Committee to consider inquiries and complaints in a fair and expeditious manner and avoid unnecessary expense.

Having considered the Committee’s request in light of its function and purpose, the Court adopts and republishes the Rules of Court Creating a Committee on the Unauthorized Practice of Law and Rules of Procedure in their entirety as amended.

RULES OF COURT CREATING A COMMITTEE ON THE UNAUTHORIZED PRACTICE OF LAW

Rule I.

COMPOSITION OF COMMITTEE ON UNAUTHORIZED PRACTICE OF LAW

The Court shall appoint a committee composed of four lawyers and three persons who are not lawyers. One lawyer member of the committee shall be from each Congressional district and the balance of the members shall be from the state-at-large. Members shall be appointed to serve a three year term and may be reappointed to a second three year term. A member whose term has expired, shall continue to serve until a replacement is appointed. The committee shall select one of its members as Chair, one as Vice-Chair, and another as secretary.

A majority of the committee shall constitute a quorum.

Rule II.

NAME - SEAL - POWERS

The name of the Committee shall be “The Supreme Court Committee on the Unauthorized Practice of Law.” The Committee shall provide for its use a seal of such design as it may deem appropriate, and in the performance of its duties imposed by Rule of Court and by its own rules promulgated pursuant to Rule of Court, shall have authority to issue subpoena for any witness, including the production of documents, books, records, or other evidence, directed to any Sheriff or State Police officer within the state, requiring the presence of any person before it. Such process shall be issued under the seal of the committee and be signed by the Chair or Secretary. Disobedience of any subpoena or a refusal to testify may be regarded as constructive contempt of the Arkansas Supreme Court, and punishable by proceedings in that court.

Rule III.

INQUIRIES AND COMPLAINTS

All inquiries and Complaints relating to the unauthorized practice of law shall be directed to the Committee, in writing, through the Administrative Office of the Courts. Upon receipt of such inquiry or Complaint the Committee may:

a. Without formal investigation make a determination that the action or course of conduct does not constitute unauthorized practice of law, or

b. Determine that probable cause exists for the conduct of a formal investigation and to conduct such investigation as is indicated, including the calling of witnesses for testimony under oath. Thereafter, the Committee shall:

1. Make a determination of whether in the opinion of the Committee, the action or course of conduct under investigation constitutes unauthorized practice of law.

2. Publish an advisory opinion directed to the interested parties and reflecting the decision of the Committee.

c. In the event of a finding of unauthorized practice of law and a continuation of the action or course of conduct after receipt of the Committee’s advisory opinion, the Committee may bring an action or actions in the proper Court(s) seeking to enjoin that conduct deemed to constitute unauthorized practice of law, and to pursue such action(s) in the name of the committee to a final conclusion.

Rule IV.

ADOPTION OF RULES

The Committee shall adopt rules of procedure for the handling of inquiries and complaints, and a copy of said rules of procedure'shall be filed with the Clerk of the Arkansas Supreme Court, upon approval by the Court, and shall be subject to inspection and made available upon request of any interested person.

Rule V.

EXPENSES

The members of the Committee may be entitled to receive per diem and reasonable reimbursement for the expenses of participating in the work of the Committee, including the cost of meals, lodging and transportation. The rate of reimbursement and per diem and all such expenditures shall be set and approved by the Director of the Administrative Office of the Courts.

Rule VI.

MEETINGS OPEN TO PUBLIC - LEGAL ACTION

All inquiries and Complaints which proceed to hearing(s) before this Committee shall be open to the public and the news media. No advisory opinion issued by this Committee shall be construed as an Order of the Court. However, nothing in this section shall be deemed to restrict or in any manner inhibit the Committee from commencing such legal action as an arm of state government as it deems proper, to enjoin or restrain an activity or course of conduct deemed by a majority of a quorum of the Committee to be unauthorized practice of law within the statutes and laws of this state.

THE SUPREME COURT COMMITTEE ON THE UNAUTHORIZED PRACTICE OF LAW RULES OF PROCEDURE

Pursuant to Section IV of the Per Curiam Rule of the Arkansas Supreme Court dated December 18, 1978, numbered 78-11, the following rules of Procedure for the handling of inquiries and complaints are adopted by the Committee:

1. All matters directed to the attention of the Committee shall be in writing and signed.

2. All matters directed to the attention of the Committee shall be submitted to the Administrative Office of the Courts. The Administrative Office of the Courts will retain the original and promptly mail a copy to each member of the Committee.

3. Each inquiry and/or complaint shall be considered at a meeting attended by a quorum of the members. No decision can be reached on an inquiry or complaint by less than a majority of the quorum.

4. (a). The Committee shall meet as needed and shall be subject to the call of the Chair upon seven (7) days notice. The Chair shall issue a call upon receipt of six (6) inquiries or complaints subsequent to the last meeting of the Committee.

(b). At the Chair’s discretion, a meeting may be scheduled by telephone conference call.

5. Pursuant to Rule III a. of the Rules Creating a Committee on the Unauthorized Practice of Law, if, after discussion and consideration of an inquiry or complaint, the Committee determines that there is insufficient evidence on which to proceed with a formal investigation, the Committee shall issue a response to the complaining party to that effect.

6. Pursuant to Rule III b. of the Rules Creating a Committee on the Unauthorized Practice of Law, if the Committee determines that a formal investigation is warranted, the Committee may use its discretion to proceed with the investigation as it deems appropriate, which may include the calling of witnesses before one or more members of the Committee to give sworn testimony at an investigative hearing(s).

a. Investigative hearings should be conducted as soon as practical after the Committee receives the inquiry or complaint.

b. The investigative hearing shall be conducted in a manner prescribed by the Chair, who shall preside, or who shall designate a Committee member to preside.

c. If, as a result of its formal investigation, the Committee determines that an act or acts of the unauthorized practice of law has occurred, the Committee shall issue an advisory opinion to that effect, directing that the party cease and desist said act or acts. Copies shall be mailed to the interested parties by certified mail.

7. Pursuant to Rule III c. of the Rules Creating a Committee on the Unauthorized Practice of Law, the Committee, in its own name, may seek injunctive relief in the appropriate Court(s) if issuance of the advisory opinion does not result in cessation of those acts or course of conduct the Committee has pronounced to be the unauthorized practice of law.

8. The Administrative Office of the Courts shall prepare and shall send by certified mail return receipt requested, all necessary correspondence at the direction of the Chair and shall send copies of said correspondence to each member of the Committee. The Administrative Office of the Courts shall maintain a file of all documents submitted or prepared in each case.


text:
    IN RE: PETITION TO INCLUDE WARRANTLESS ARREST PROCEDURES IN DOMESTIC VIOLENCE CASES
    Supreme Court of Arkansas
    Delivered July 18, 1994
   Per Curiam.

We hereby publish the following proposed amended Rule 4.1 of the Arkansas Rules of Criminal Procedure for review and comment by the bench and bar. Comments shall be filed with Les Steen, Supreme Court Clerk, within sixty (60) days of the date of this per curiam order..

RULE 4.1 Authority to Arrest Without Warrant.
(a) A law enforcement officer may arrest a person without a warrant if the officer has reasonable cause to believe that such person has committed
(i) a felony;
(ii) a traffic offense involving:
(A) death or physical injury to a person; or
(B) damage to property; or
(C) driving a vehicle while under the influence of any intoxicating liquor or drug;
(iii) any violation of law in the officer’s presence;
(iv) acts which constitute a crime under the laws of this state and which constitute domestic abuse as defined by law against a family or household member and which occurred within four (4) hours preceding the arrest.
(b) A private person may make an arrest where he has reasonable grounds for believing that the person arrested has committed a felony.
(c) An arrest shall not be deemed to have been made on insufficient cause hereunder solely on the ground that the officer or private citizen is unable to determine the particular offense which may have been committed.
(d) A warrantless arrest by an officer not personally possessed of information sufficient to constitute reasonable cause is valid where the arresting officer is instructed to make the arrest by a police agency which collectively possesses knowledge sufficient to constitute reasonable cause.


text:
    IN RE: David Loy HALE
    Arkansas Bar No. 66024
    Supreme Court of Arkansas
    Delivered July 25, 1994
   Per Curiam.

On recommendation of the Supreme Court Committee on Professional Conduct, we hereby accept the surrender of the license of David Loy Hale of Pulaski. County, Arkansas to practice law in the State of Arkansas.

Dudley and Hays, JJ., not participating.


text:
    IN RE: SUPREME COURT COMMITTEE ON MODEL JURY INSTRUCTION, CIVIL
    Supreme Court of Arkansas
    Delivered May 31, 1994
   Per Curiam.

The Court accepts the resignation of Winslow Drummond, Esq. from the Supreme Court Committee on Model Jury Instructions, Civil.

The Court expresses its gratitude to Mr. Drummond for his dedicated and faithful service as a member and former chair of this most important Committee.


text:
    IN RE: BOARD OF CERTIFIED COURT REPORTER EXAMINERS
    Supreme Court of Arkansas
    Delivered June 13, 1994
   Per Curiam.

Chancery Judge Jim Hannah, Searcy, Arkansas; Circuit Judge John Cole, Sheridan, Arkansas; and Ms. Maria Lafferty, CCR, Pine Bluff, Arkansas, are reappointed to our Board of Certified Court Reporter Examiners.

Each term of reappointment is for a three-year period expiring July 8, 1997.

The Court expresses its gratitude to Judge Hannah, Judge Cole and Ms. Lafferty for accepting reappointment to this most important Board.


text:
    IN RE: ARKANSAS JUDICIAL DISCIPLINE AND DISABILITY COMMISSION
    Supreme Court of Arkansas
    Delivered June 20, 1994
   Per Curiam.

In accordance with Ark. Const. Amend. 66 and Act 637 of 1989, the Court appoints the Honorable Rice Van Ausdall, Chancellor, Harrisburg, Arkansas, to the Arkansas Judicial Discipline and Disability Commission, effective July 1, 1994, to replace the Honorable Thomas Butt, Chancellor, Fayetteville, Arkansas, whose term will expire on June 30, 1994. This is a six (6) year term to expire on June 30, 2000.

Effective July 1, 1994, the Court appoints the Honorable John B. Plegge, Circuit Judge, Little Rock, Arkansas, to the alternate position to be vacated by Judge Van Ausdall on June 30, 1994. This is a six (6) year term to expire on June 30, 2000.

Effective July 1, 1994, the Court appoints the Honorable Oily Neal, Circuit Judge, Marianna, Arkansas, to an alternate position on the Commission for a six (6) year term to expire on June 30, 2000. Judge Neal replaces the Honorable John Robbins, Arkansas Court of Appeals, Hot Springs, Arkansas, whose term will expire on June 30, 1994. The Court expresses its appreciation to Judge Robbins for his service as an alternate member of the Commission.

The Court thanks Judge Van Ausdall for accepting appointment to this most important Commission and for his prior service as an alternate member. The Court also thanks Judge Plegge and Judge Neal for accepting appointments as alternate members of the Commission.

The Court expresses its gratitude to Judge Butt for his faithful and dedicated service as an original member and Chair of the Commission.


text:
    IN RE: CLIENT SECURITY FUND COMMITTEE
    Supreme Court of Arkansas
    Delivered June 20, 1994
   Per Curiam.

Richard A. Jarboe, Esq., Walnut Ridge, Arkansas, First Congressional District, is hereby reappointed to the Client Securiy Fund Committee for a five year term to expire June 30, 1999.

The Court thanks Mr. Jarboe for accepting reappointment to this most important Committee.


text:
    IN RE: SUPREME COURT COMMITTEE ON PROFESSIONAL CONDUCT
    Supreme Court of Arkansas
    Delivered June 20, 1994
   Per Curiam.

Dr. Patricia Youngdahl, Little Rock, Arkansas, is appointed, At Large, to the Supreme Court Committee on Professional Conduct for a seven year term to expire June 20, 2001. Dr. Youngdahl replaces Dr. Wilma Diner, Little Rock, Arkansas, whose term has expired.

The Court thanks Dr. Youngdahl for accepting appointment to this most important Committee.

The Court expresses its gratitude to Dr. Diner for her dedicated and faithful service to the Committee.


author: Jack Holt, Jr., Chief Justice.

text:
    Jessie James MANNING v. STATE of Arkansas
    CR 94-323
    883 S.W.2d 455
    Supreme Court of Arkansas
    Opinion delivered September 19, 1994

      Claudell Woods, for appellant.

      Winston Bryant, Att’y Gen., by: Brad Newman, Asst. Att’y Gen., for appellee.
   Jack Holt, Jr., Chief Justice.

Appellant Jessie James Manning was found guilty by a Columbia County jury of delivery of cocaine and was sentenced as a habitual offender to a forty-year term of imprisonment and a $1.00 fine. Manning argues two meritless points on appeal, stating that the trial court erred both in failing to grant his motion to dismiss for lack of a speedy trial, and in failing to give adequate consideration to his due process rights. We affirm.

Facts

On July 1, 1992, Officer Sylvester Smith, a Task Force Officer with the Thirteenth District, was contacted by a deputy prosecutor to purchase some cocaine in the Magnolia area. The deputy told Officer Smith that he would be working with a man by the name of Eddie Easter. On or about this same date, Easter’s cousin, Manning, the appellant, was at a friend’s residence in Magnolia when Easter and Officer Smith came by and asked about purchasing crack cocaine. Manning stated that he would take them where they could make a purchase. Manning then entered Officer Smith’s vehicle, and the three journeyed across town, during which time Officer Smith gave Manning $40.00 to purchase the cocaine. At destination, Manning entered a residence, stayed briefly, then returned to Officer Smith’s vehicle, and handed him a rock of cocaine.

Manning was arrested January 6, 1993, and an information was filed on April 20, 1993, charging him with delivery of cocaine under the Uniform Controlled Substances Act, Ark. Code Ann. § 5-64-401. He filed a motion to dismiss for lack of a speedy trial. Thereafter, an amended information was filed charging Manning as a habitual offender. Subsequent to the seating of the jury but prior to opening statements, the trial court allowed the State to verbally amend the information, changing the date on which the alleged incident occurred from July 2, 1992, to July 1, 1992. A jury trial was held on September 10, 1993, and Manning was found guilty as charged.

I. Speedy trial

Although Manning filed a motion to dismiss for lack of a speedy trial, his abstract does not reflect the trial court’s ruling on his motion. Pursuant to Supreme Court Rule 4-3(g), it is the duty of the appellant in a criminal case to abstract such parts of the record which are material to the points to be argued in the appellant’s brief. Jackson v. State, 316 Ark. 509, 872 S.W.2d 400 (1994). We have further held that the failure to abstract a critical document precludes this court from considering issues concerning it. Jackson, supra; Porchia v. State, 306 Ark. 443, 815 S.W.2d 926 (1991). For these reasons, we will not address this argument on appeal.

II. Due process rights

Although Manning alleges several sub-points of error on appeal in support of his argument that his due process rights were violated, it is noted that his abstract of the trial record fails to reveal that these issues were raised at trial. Even so, Manning presents the following eight sub-points of error in his brief:

(1) He was used as an unwitting informant while on parole;
(2) The prosecutor threatened to file charges against him and revoke his parole if he did not testify;
(3) The fourteen-month delay in prosecuting the case prejudiced him;
(4) The act of having agents of the State seek him out to ride across town with them to buy and deliver of one rock of cocaine was unfair;
(5) The law enforcement community had no reason to suspect him of selling drugs;
(6) The amendment of the information charging him as a habitual offender two days prior to trial was unfair;
(7) The amendment of the information changing the date of the criminal act on the date of the trial was unjust; and
(8) His forty-year sentence for delivery of cocaine was both unjust and disproportionate.

The State asserts, and we agree, that none of these numbered allegations was raised or objected to at trial, with the exception of the two amendments to the information noted in points (6) and (7). We have long held that we will not consider matters which are raised for the first time on appeal. Hayes v. State, 312 Ark. 349, 849 S.W.2d 501 (1993). This being the case, we limit our review to items numbered (6) and (7).

Regarding item number (6), Manning’s assignment of error pertaining to the amendment charging him as a habitual offender, we recently discussed the Habitual Offender Act, its purpose, and when an amendment to an information may be made alleging its violation in Baumgarner v. State, 316 Ark. 373, 872 S.W.2d 380 (1994). An information may be amended up to a point after a jury has been sworn provided that it does not change the nature of a crime or create unfair surprise. Kilgore v. State, 313 Ark. 198, 852 S.W.2d 810 (1993). Accordingly, an amendment adding a habitual offender allegation does not change the nature or degree of the crime or create an additional offense or an independent crime; rather, the amendment authorizes a more severe punishment in the event that the defendant is convicted. Baumgarner, supra; Finch v. State, 262 Ark. 313, 556 S.W.2d 434 (1977). For these reasons, permitting the first amendment to the complaint was not error.

The remaining issue, numbered (7), is whether it was unjust for the trial court to permit the prosecutor to amend the information on the day of the trial to correct the date of the offense. Simply put, we will not glean prejudice to the substantial rights of the accused from a discrepancy in dates. Lewis v. State, 309 Ark. 392, 831 S.W.2d 145 (1993); Tackett v. State, 298 Ark. 20, 766 S.W.2d 410 (1989). In Lewis, the State first charged the defendant for delivery of marijuana on March 29, 1990. Based on an error in the investigating officer’s notes, the State filed an amendment to the information showing an offense date of March 21, 1990. At trial, the State amended the information a second time following the officer’s testimony which clarified the correct date as March 29, 1990.

While there were two amendments regarding the dates and an eight-day discrepancy in Lewis, there was only one amendment of the date and a one-day discrepancy in the case before us. In any event, Manning has not demonstrated how he was prejudiced by the amended information. Where time is not essential to the charged offense, the absence of any date in the information is not fatal to the charge. Lewis, supra; Bonds v. State, 296 Ark. 1, 751 S.W.2d 339 (1988). Here, time is not essential to Manning’s charge of delivery of cocaine, and thus his argument must fail.

The State in its brief notes that Manning’s due process argument is essentially an assertion that his conviction should be reversed because of cumulative error. We acknowledge that cumulative error can require reversal even in the absence of objections made at trial. See Dillon v. State, 311 Ark. 529, 844 S.W.2d 944 (1993). However, the record before us does not support such a claim.

We have faced similarly vague allegations in Franklin v. State, 314 Ark. 329, 863 S.W.2d 268 (1993), in which the defendant asserted cumulative error, stating that the circuit judge’s biased attitude and demeanor against him from the outset resulted in a “dark cloud” being placed on his trial. In rejecting the cumulative-error argument in Franklin, we noted the failure on the part of defense counsel to present specific examples of bias, to object to the court’s conduct, to make a record, or to ask the judge to recuse.

In sum, we see little difference, if any, between the vague allegations in Franklin and the allegations presently before us. Here, we cannot say that the cumulative conduct of the trial court denied Manning due process.

Affirmed.


author: Robert H. Dudley, Justice.

text:
    Charles DOUGAN; Stephen L. Sharp and Janet Sharp v. Alice S. GRAY
    94-865
    884 S.W.2d 239
    Supreme Court of Arkansas
    Opinion delivered September 19, 1994

      Kitterman Law firm, by: Gregory S. Kitterman, for petitioners Stephen L. and Janet Sharp.

      Jeff Ros enzweig; and McLeod Law Firm, by: Amy A. Black-wood and Kaye McLeod, for petitioner Charles Dougan.

      Winston Bryant, Att’y Gen., by: Melissa K. Rust, Asst. Att’y Gen., for respondent.

      Wright, Lindsey & Jennings, by: Wendell L. Griffen, Attorney Ad Litem for the minor child.
   Robert H. Dudley, Justice.

Attorney Charles Dougan and his clients, Stephen and Janet Sharp, filed various petitions in this court seeking writs of prohibition against the Probate Judge of the Sixth Judicial District, First Division, and a writ of certiorari against the Honorable Alice S. Gray, the Probate Judge. A writ of prohibition is issued to prohibit a court from acting, while a writ of certiorari is issued to direct a judge to perform a duty. In addition, Dougan and the Sharps attempt to appeal some of the orders of the First Division Probate Court. We consolidate all of the petitions, and issue this one opinion denying all of the petitions and dismissing the notices of appeal.

The facts giving rise to the petitions are these. An unmarried mother gave birth to a baby in February of 1994. On March 31, 1994, the mother of the baby signed an adoption document and gave custody of the baby to attorney Dougan. That document was never filed because, later that same day, the mother withdrew the consent. On May 18, 1994, the mother executed a consent to adoption and again placed the infant in the care of Dougan.

Dougan, who advertises under “Adoption Services” in the yellow pages of the Southwestern Bell telephone book and who testified that he had previously “placed” numerous babies, located a couple who wished to adopt a baby, petitioners Stephen and Janet Sharp. The Sharps reside in Tonka Bay, Minnesota. On June 28, 1994, Dougan filed a petition in the Third Division of the Pulaski County Probate Court in which he asked that he be appointed temporary guardian of the baby. That same day the Probate Judge of the Third Division appointed Dougan temporary guardian of the baby.

Later that same day Dougan filed a petition in the First Division of the Pulaski County Probate Court asking that the Sharps be allowed to adopt the baby. On July 1, only three days after the petition and consent were filed, the judge of the First Division, Judge Gray, heard testimony by the Sharps and granted an interlocutory decree of adoption. Judge Gray explained to both Dougan and the Sharps that the decree was an interlocutory one. Dougan responded that he understood it was an interlocutory order. Stephen Sharp also heard Judge Gray’s explanation and said that it would be “a nice belated Christmas present.” The decree provides that it is interlocutory and “shall become final six (6) months from the date hereof.”

On July 8, Judge Gray gave Dougan notice that the proceedings might be deficient and that the decree might be subject to attack. The judge asked Dougan to report to the court that same day. Dougan did not respond. The judge was out of state from July 9 until Thursday, July 14. On Monday, July 18, the judge directed Dougan to report to court the next day. Dougan reported to court on July 19, and the judge informed Dougan that the proceeding might be deficient. The core of that conference is reported as follows:

THE COURT: The first time we contacted you about coming over the child had just been in the home for a week. Now, it has been a little bit longer, about two and a half weeks, so I think — we really need to move fast on this and get it resolved.
MR. DOUGAN: All right. I will be glad to.
THE COURT: Okay. I am going to — the child is going to have to be brought back here, as well, and I am going to have to appoint an attorney ad litem for the child. I know that.
What I want to do is go through and write down the exact procedure.

The Probate Judge tried unsuccessfully to contact Dougan on July 20th and left a recorded message on his telephone answering machine telling him that the court file was being ordered sealed. The order was served on Dougan later that same day.

Later during the day of July 20th, the Probate Judges of the Third Division, where the guardianship proceeding was pending, and of the First Division, where the adoption proceeding was pending, jointly entered an order transferring the guardianship proceeding to the First Division, which is presided over by Judge Gray. Later that same day Judge Gray entered an order setting aside the interlocutory decree of adoption. Judge Gray also ordered Dougan, in his capacity as guardian, to return the baby to the court.

On July 25, a lengthy facsimile letter signed “Stephen Sharp” and “Janet J. Sharp” was received by the Probate Judge. The writer or writers of the letter stated, “We do not recognize the Court as having any jurisdiction over us or our [baby]. . . .” The baby has not been returned to this jurisdiction.

On August 8, the Probate Judge ordered Stephen and Janet Sharp to appear on August 17, 1994, to show cause why they should not be held in contempt for refusing to comply with the orders of the court. On August 12, Charles Dougan and Stephen and Janet Sharp filed petitions in this court asking a temporary stay of the contempt proceedings and for writs of prohibition and certiorari. Dougan alleged, among other things, that he should not be subject to a contempt hearing because, if he were forced to go to Minnesota and take the child from the Sharps, he would have to commit “burglary and kidnapping under the laws of the United States, the State of Arkansas, and the State of Minnesota.” The Sharps alleged that “the real reason the trial court vacated the interlocutory decree was because the adoptive parents are Caucasian and the adoptee is African-American.”

At the time the petitions were filed in this court the record in the lower court was sealed. This court directed that the record be lodged in this court forthwith and stayed further proceedings in the trial court until this court could determine whether petitioners were entitled to any of the extraordinary relief requested. We have examined the record, and decline to grant either a writ of prohibition or a writ of certiorari. In doing so, we express no opinion on the correctness of the rulings of the probate court. Those rulings can be challenged in an appeal.

The various petitions contain multiple counts, some made by Dougan and others by the Sharps. For clarity, we set out separately the reasons for each of our holdings.

I.

Dougan, in one of his counts, petitions us to issue a writ of prohibition to prevent the probate court from holding him in contempt. The record shows that the probate court has not cited Dougan for contempt, and we do not know whether the probate court will cite him for contempt. It is well established that this court does not give advisory opinions, see, e.g., Gladden v. Bucy, 299 Ark. 523, 772 S.W.2d 612 (1989), or answer academic questions, see, e.g., Neely v. Barber, 288 Ark. 384, 706 S.W.2d 358 (1986). Thus, we do not reach the merits of the count.

II.

Dougan asks that this court issue a writ of certiorari directing the trial judge to refrain from ordering him to commit a crime or else be held in contempt. Again, we do not address the issue. The trial court has not cited Dougan for contempt and has not ordered him to commit any crime.

III.

Dougan additionally asks this court to issue either a writ of prohibition or a writ of certiorari striking the order declaring the records sealed.

A.

A writ of prohibition is an extraordinary writ and is granted only when the lower court is wholly without jurisdiction, when there are no disputed facts, when there is no adequate remedy otherwise, and when the writ is clearly warranted. It is never issued to prevent a trial court from erroneously exercising jurisdiction. It is issued only where the trial court is wholly without jurisdiction. Monroe Auto Equip. Co. v. Partlow, 311 Ark. 633, 846 S.W.2d 637 (1993).

The probate court has jurisdiction over adoption matters. Ark. Code Ann. § 28-1-104 (1987). The probate court is vested with both inherent and statutory authority to close adoption records. Section 9-9-217(a)(2)(A) of the Arkansas Code Annotated provides that “adoption records shall be closed, confidential, and sealed unless authority to open them is provided by law or by order of the court for good cause shown.” Ark. Code Ann. § 9-9-217(a)(2)(A) (Repl. 1993); see also In re Adoption of K.F.H & K.F.H., 310 Ark. 53, 834 S.W.2d 647 (1992). Further, the Arkansas Freedom of Information Act provides: “It is the specific intent of this section that the following shall not be deemed to be made open to the public under the provisions of this chapter: . . . adoption records.” The probate court had jurisdiction over the matter, and a writ of prohibition will not lie to prevent a probate court from sealing adoption records.

Dougan also asks for a writ of prohibition because the closure order is too broad. This amounts to an argument that the trial court erred in the manner in which it exercised its subject matter jurisdiction, and it is well settled that a writ of prohibition will not lie to prevent a trial court from erroneously exercising its jurisdiction. See, e.g., Forrest City Machine Works v. Erwin, 304 Ark. 321, 802 S.W.2d 140 (1991).

B.

Dougan petitions for a writ of certiorari to direct Judge Gray to modify the order sealing the records. Certiorari lies where there is a lack of jurisdiction or there has been an act in excess of jurisdiction that is apparent on the face of the record. It is not to be used to look beyond the face of the record to ascertain the actual merits of a controversy, or to control discretion, or to review a finding of facts, or to reverse a trial court’s discretionary authority. Juvenile H. v. Crabtree, 310 Ark. 208, 833 S.W.2d 766 (1992). There is nothing on the face of this record to show that Judge Gray lacked jurisdiction to order the records closed.

IV.

Dougan also filed a notice of appeal. Wendell Griffen, who was appointed by the probate court as attorney ad litem for the baby, filed a motion asking that the appeal be dismissed. The motion to dismiss the appeal is well taken, as there has been no final order. See Ark. R. App. P. 2.

V.

The Sharps petition this court to issue a writ of prohibition to prohibit the trial court from rescinding the interlocutory order of adoption. The trial court has already rescinded the order. It is axiomatic that an appellate court cannot prohibit that which has already occurred. See City Nat’l Bank v. Johnson, 191 Ark. 29, 79 S.W.2d 987 (1935).

VI.

The Sharps petition this court to issue a writ of certiorari directing Judge Gray to reinstate the interlocutory decree of adoption for either of two reasons. Neither merits granting the writ.

A.

The first argument is that section 9-9-215 of the Arkansas Code Annotated, and the cases cited in the annotation, provide that an interlocutory decree cannot be set aside. The cited statute does not support the argument. In fact, the last sentence of the statute provides, “If an interlocutory decree of adoption is vacated, it shall be as though void from its issuance, and the rights, liabilities, and status of all affected persons which have not become vested shall be governed accordingly.” Ark. Code Ann. § 9-9-215(b) (Repl. 1993). In addition, the decree clearly provided that it was interlocutory and would become final in six months. Most important, a trial court can set aside an order within ninety days of its entry in order to correct any error or mistake or to prevent a miscarriage of justice. A.R.C.P. Rule 60 (b). At this stage of the adoption proceeding, the interlocutory decree awarded the Sharps is void.

B.

The Sharps’ second argument for the issuance of a writ of certiorari is that the probate court set aside the interlocutory decree “because the adoptive parents are Caucasian and the adoptee is African-American.” This allegation is not supported by the record, and certiorari is not available to look beyond the face of the record to determine the merits of a controversy. Juvenile H. v. Crabtree, 310 Ark. 208, 833 S.W.2d 766 (1992). Because of the sensitive nature of the Sharps’ allegation, we quote at length from part of the probate court’s supplemental opinion that shows the face of the record does not support the allegation.

This court [in determining to set aside the interlocutory order] considered several matters, including those listed below.
1. Charles Dougan represented the Petitioners, Stephen and Janet Sharp, in this adoption matter. Charles Dougan also was the guardian for the child, and was responsible for ensuring that the adoption by Petitioners was in the best interest of the minor child. As guardian, Charles Dougan consented to his own clients adopting the child. At the same time, Charles Dougan received a fee of $4,200.00 from those same clients in this adoption matter. {See Ark. Code Ann. § 9-9-206(c), which prohibits a guardian from receiving a fee for relinquishment of a child for adoption). This Court seriously questioned whether Charles Dougan’s loyalty to his clients, the Sharps, caused him to be reluctant to identify and correct deficiencies in the proceeding, and whether that loyalty conflicted with his duties as the child’s guardian. Further, the Court questioned whether the adoption was in the best interests of Dougan’s clients, as opposed to in the best interest of the child.
2. The Petition for Adoption may have been verified improperly. The Petition that Charles Dougan filed on June 28, 1994 included a facsimile of the signature page. Petitioners purportedly signed the Petition in the presence of Charles Dougan on June 27, 1994. At the hearing, Charles Dougan presented another signature page which purportedly was signed by the Petitioners in his presence on a different day, June 28, 1994. At the hearing, the Court was left with the impression that they did not even arrive in Arkansas until June 30, 1994.
3. Charles Dougan, as guardian, gave his consent to adoption on June 28, 1994, the same day he requested that the hearing be held three days later. The guardian had ten days to withdraw his consent to adoption. Ark. Code Ann. § 9-9-209. The time period for withdrawal of consent must expire before a hearing is held on an adoption petition, and before a Decree of Adoption is entered. Ark. Code Ann. § 9-9-212(a) (emphasis added). However, the ten-day period for withdrawal of consent had not expired when the expedited hearing was held and the Decree of Adoption was entered on July 1, 1994. Thus, since the guardian’s consent to adoption was executed on June 28, 1994, the hearing should not have been held and the Decree should not have been entered on July 1, 1994. This Court considered that Charles Dougan might not have had any intention of withdrawing his consent, which presented another problem — would Dougan have withdrawn his consent if the need had arisen, when his own clients had adopted the child and he had received a $4,200.00 fee?
4. Charles Dougan convinced the deputy chancery clerk to set the hearing very quickly although he knew certain documents needed by this Court had not been provided, namely a properly signed and verified Petition for Adoption, the Petitioner’s sworn Statement of Expenditures, and the complete home study.
5. The natural mother’s consent does not meet statutory requirements.
A consent which does not name or otherwise identify the adopting parent is valid if the consent contains a statement by the person whose consent it is that the person consenting voluntarily executed the consent irrespective of disclosure of the name or other identification of the adopting parent.
Ark. Code Ann. § 9-9-208(b). The natural mother should have named the adoptive parents in her consent document, or she should have stated she did not know who would adopt by voluntarily consenting without disclosure of the names. The natural mother’s consent merely states in pertinent part:
... I hereby consent to the adoption of my child by the Petitioners without the giving of any further notice to me. . .
The names of the adoptive parents do not appear on the natural mother’s Consent to Adoption. When her consent was signed on May 18, 1994, there were no “Petitioners.” The Petition for Adoption was not signed or filed until almost six weeks later.
6. The person who completed the home study never mentioned the child involved in this adoption. Nor did she ever recommend this adoption, or find the adoption to be in the best interest of this child. (The home study is discussed earlier in this opinion. That discussion will not be repeated here).
This Court did not take the decision to set aside the Decree of Adoption lightly. Pertinent caselaw was reviewed. The Supreme Court of Arkansas has consistently held that adoption statutes are strictly construed and applied. In re Adoption of K.F.H. and K.F.H., 311 Ark. 416, 844 S.W.2d 343 (Ark. 1993); In the Matter of the Adoption of Cotey Allen Parsons, a Minor, 302 Ark. 427, 791 S.W.2d 681 (Ark. 1990). This Court concluded that several statutory provisions had not been met, as discussed earlier, and that its July 1, 1994 Decree of Adoption was void. Even after the conference with Dougan, this Court considered the options and ramifications of its inevitable decision for an additional day. This Court made the decision that it was better to correct problems with the adoption now, rather than wait for someone to challenge the adoption when the child was older.
Steps were then taken to ensure that swift action was begun to correct the problems with the adoption. The Decree of Adoption was set aside. The child needed a legal guardian. The guardianship case was transferred from Third Division Chancery to First Division Chancery, to avoid judge-shopping and prevent duplicate proceedings as to the child’s welfare and guardian. The guardianship file was sealed to prevent anyone not associated with this adoption from learning the identities of the baby and natural mother. Wendell Griffen, a competent attorney, was appointed attorney ad litem for the child. The adoption file was not sealed. Statutes already prohibit release of certain adoption information without the need for a court order to prohibit release. The Court reinstated Dougan as guardian, since the Decree of Adoption had been set aside and he was the last guardian appointed by Third Division Chancery Court. Although the Court was aware there were problems with Dougan’s loyalties, again, this Court was hesitant to change the guardian without affording Dougan due process of law.
But for the Decree of Adoption, which had now been set aside, the child would still have been in Pulaski County. Considering issues such as the attomey/guardian’s conflict of interest, his questionable candor and credibility with this Court, and the failure to comply with mandatory provisions of the Adoption Code, this Court found it necessary to be assured of the safety and well-being of the child. Dougan, in his capacity as guardian only, was ordered to return the child to Pulaski County so that the Court could be assured of its welfare, action regarding the adoption could proceed in this Court, and the baby’s status could be resolved without prolonged litigation.

VII.

The Sharps petition this court to prohibit the probate court from holding them in contempt. The right to punish for contempt is inherent in all courts. Clark v. State, 287 Ark. 221, 697 S.W.2d 895 (1985). A writ of prohibition is never issued to prevent a lower court from erroneously exercising its jurisdiction. Statewide Health Coordinating Council v. Circuit Court of Pulaski County, 287 Ark. 84, 696 S.W.2d 729 (1985). Therefore, a writ of prohibition will not lie.

VIII.

The Sharps also ask this court to issue a writ of certiorari directing Judge Gray to refrain from holding a contempt proceeding. We decline to do so for there is nothing on the face of the record to show such a proceeding is erroneous. See Henderson v. Dudley, 264 Ark. 697, 574 S.W.2d 658 (1978).

IX.

The Sharps ask us to issue a writ of prohibition that would prohibit the probate court from enforcing the order of confidentiality. We decline to issue the writ because a probate court has jurisdiction to issue an order of confidentiality in an adoption proceeding.

Further, the last sentence of the order of confidentiality provides: “This order is subject to review at the request of a party, in accordance with the Arkansas Rules of Civil Procedure.” No one has asked the probate court to modify the order, and no one has suggested to the probate court that the order as written is beyond the jurisdiction of the court. In Monette Road Improvement Dist. v. Dudley, 144 Ark. 169, 177, 222 S.W. 59, 61 (1920) we wrote, “[A] writ of prohibition will not be issued, unless objection to the exercise of jurisdiction is made to the court in which the proceedings are pending.”

X.

The Sharps filed a notice of appeal from the order setting aside the interlocutory decree. Wendell Griffen, the attorney ad litem for the baby, moved to dismiss the appeal. Since there has been no final order in the probate court, we dismiss the appeal.

In summary, not one of the allegations contained in the various petitions provides a ground for either the extraordinary writ of prohibition or the extraordinary writ of certiorari, and the notices of appeal are premature. Accordingly, we dissolve the temporary stay of proceedings in the probate court and remand the record and the case to the probate court so that the case may proceed to trial. This case involves the adoption of a baby. It needs to be concluded. Consequently, the mandate from this court will be ordered issued seven days from this date.

Writs denied, appeals dismissed, and stay dissolved.