IMO: Arkansas Supreme Court oversteps in attempt to squelch citizen concerns

An official letter warns me of punishment ‘by fine or jail’

[private]An office of the Arkansas Supreme Court has instructed me not to report what I reported here last week, in a piece titled “A matter of trust.” The court’s Office of Professional Conduct notified me by letter that a grievance I submitted concerning a former prosecuting attorney, the state attorney general and the senior assistant attorney general—and which I posted here—is by law to be kept “confidential.”

The Office acknowledged receiving my letter. Then, in a paragraph set in bold type and all in caps, it informed me that:


Well, too bad. I am part of the news media, not that that matters at all. I wrote my complaint as an Arkansas citizen. I made my letter public and public it will remain. I find it stunning to be in the position of explaining to an office of the Arkansas Supreme Court that the U.S. Constitution applies even to Arkansans expressing concern about the quality of justice in their state.

The court cannot squelch the First Amendment free-speech rights of a citizen, even if that citizen wants to lodge an official complaint about the actions of a lawyer, an attorney general or a judge. That an office of this state’s supreme court would attempt to do so raises profound questions about its perception of the rights of citizens, the limits on its powers,  and its interest in such secrecy.

As its authority for demanding silence, the office cited “SECTION 6.A OF THE ‘ARKANSAS SUPREME COURT PROCEDURES REGULATING PROFESSIONAL CONDUCT OF ATTORNEYS AT LAW.’” I find at least three points about this interesting.

  1. I am not an attorney, as the office knows—or would know if it took the time to check. Therefore, I am not subject to this big, bold threat. But there is no mention anywhere in the letter that this warning does not apply to non-lawyers who write to inform the court of suspected improprieties in the legal profession.
  2. Even knowing that the threat does not apply to me, I can assure you that receiving such a letter has “a chilling effect.” I know of another instance when an ordinary citizen like me wrote to complain about the illicit actions of a judge, and received in response the same form letter I just got. She was frightened. The letter so alarmed her husband that he instructed her to drop the issue and say nothing more about the judge. Threats of “fine or jail” tend to have that effect, especially when they come on stationery that says “Supreme Court of Arkansas” at the top. (Approximately two years later, the supreme court did order the judge in question removed.)
  3. And then there’s the matter of “Section 6.A” itself, the part that actually does stifle attorneys. Must Arkansas lawyers surrender their rights to free speech if they want to hang onto their licenses? Attorneys are often the very people who witness most of what transpires within their own profession. They are expected to report improprieties to the Office of Professional Conduct for investigation. But when complaints from within the profession are investigated secretly within the profession, and when lawyers are not allowed to voice their concerns in public, how are citizens to make informed choices in a state where judges are elected?

The allegations of prosecutorial misconduct were first raised in court in Howard’s case almost four years ago. Did anyone before me report them to the Office of Professional Conduct? If so, what happened? If not, why not? The prosecutor in question, Tom Cooper, is now a circuit judge.

The question of oversight—or lack thereof—also pertains to former Judge David Burnett, who officiated at the trials and subsequent circuit court hearings of the WM3. Serious questions have been raised about his conduct in office. But again, we don’t know if anyone ever complained to the office that regulates judges, the state’s Judicial Discipline and Disability Commission, or what came of it if someone did. Last November, Burnett was elected to the Arkansas Senate.

The supreme court wants nothing to erode citizens’ confidence in their courts and the legal profession, in general. Its Rules of Professional Conduct instruct Arkansas lawyers that they owe a “solemn duty” to “inspire the confidence, respect and trust of clients and the public.” They are to to “strive to avoid not only professional impropriety, but also the appearance of impropriety.” As recently noted in a brief filed on behalf of Jessie Misskelley, one state court has ruled that, “The appearance of impartiality is as important, if not more so, than actual impartiality.”

The court fears that if lawyers hurl charges of misconduct at each other in public, ordinary folks might get the impression that there’s a hurly-burliness to the business and that all is not quite as august as the benches and black robes suggest.  But if that is the rationale behind letters such as I just received, our intelligence is being insulted. Confidence is not won by secrecy and threats.

To the contrary, when serious issues go unaddressed, as many believe has happened in both the West Memphis and Howard cases, the resulting appearance can be one of self-protective chumminess, indifference or isolation. That sense of—dare we say?—“cultishness” is what erodes confidence in the courts, and that is exactly what the Rules were intended to prevent.

The final paragraph of the two-page letter I received advised that my complaint would be assigned to a staff attorney for a preliminary evaluation of its merits, a process that could take “weeks or even months.” I am to be notified of the result. I will keep you posted.

Office of Prof Conduct and JD&DC letters[/private]

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