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DISABILITY COMMISSION v. Morris W. THOMPSON 
99-1443 ___ S.W.3d ___ Supreme Court of Arkansas

Opinion delivered May 10, 2000

1. Appeal & error -- findings of Arkansas Judicial Discipline & Disability
Commission -- standard of review. -- Upon review of the entire record, the
supreme court may accept, reject, or modify, in whole or in part, the
Arkansas Judicial Discipline and Disability Commission's findings and
recommendations; the standard of review is de novo, and the Commission's
findings will not be reversed unless they are clearly erroneous.

2. Judges -- practice of law -- defined. -- The "practice of law" is not
confined to services by an attorney in a court of justice; it also includes
any service of a legal nature rendered outside of courts and unrelated to
matters pending in the courts; it is uniformly held that writing and
interpreting wills, contracts, trust agreements, and the giving of legal
advice in general constitute practicing law.

3. Judges -- practice of law prohibited after judge assumes bench. -- Under
Arkansas law, specifically Canon 4G of the Arkansas Code of Judicial
Conduct, a judge cannot practice law after he is elected to and assumes the
bench. 

4. Judges -- respondent's activities involved practice of law --Commission
correct. -- Where, after being elected judge, respondent served as
co-counsel with an out-of-state attorney, opposing defense counsel sent
respondent a receipt and release for his clients to sign and for respondent
to approve as their attorney, a motion and order of dismissal with prejudice
that respondent was requested to approve as one of the attorney's of record,
and a check dated after respondent took office; some twelve days after he
took office he met with his clients in his judge's chambers where they
discussed, signed, and approved the above documents, and afterwards,
respondent accompanied his client to negotiate the check, he later confirmed
the fee arrangement with his co-counsel, and sent her a cashier's check
along with a letter, written on his judicial stationery, wherein he directed
her to approve the order of dismissal and gave her directions on closing the
case, it was unquestionable that these activities, which took place in
Arkansas, involved legal advice, and that the documents identified
respondent as one of attorneys of record; respondent's actions in bringing
the case to a resolution easily fell within the definition of practicing
law, and the Commission's decision so finding was correct.

5. Judges -- position of "senior judge" nonexistent --Commission's
conclusion reasonable. -- Where respondent told opposing counsel that he had received "special dispensation" from a "senior judge" that would allow him to finish a wrongful-death case that had been filed out-of-state after he
took judicial office, even though Arkansas's judicial branch has no trial
judge denominated as "senior judge" who could have given such dispensation,
the Commission could have reasonably concluded that respondent offered a
false cover to give a reason why, as a newly elected judge, he intended to
represent the clients until the conclusion of their case.

6. Judges -- respondent continued to practice law after ascending to bench
-- Commission's finding amply supported. -- Where respondent represented
family members concerning a wrongful-death case filed out-of-state as their
co-counsel as late as one year and eleven months after being sworn in as a
judge, he participated in depositions, discussed settlement, exchanged legal
correspondence and documents, told opposing counsel that he had received
"special dispensation" from a "senior judge" that would allow him to finish
the case, wrote checks on his "law firm" operating account and disbursed
them to his clients, deposited the settlement check to this account andthen
paid the court reporter and his co-counsel from it, and there was no
evidence to support respondent's assertion that he advised opposing counsel
that he could no longer be involved in the case, the Commission's finding
that respondent practiced law when he continued to represent clients after
he ascended to the bench was supported by clear and convincing evidence.

7. Judges -- respondent performing more than ministerial or clerical acts --
violation of Arkansas law clear. -- The supreme court's review of the work
respondent performed after he took office revealed that he was performing
more than ministerial or clerical acts; instead, his actions constituted the
active practice of law, which was clearly prohibited under Ark. Const. art.
7, 25, and Canon 4G. 

8. Judges -- respondent failed to honor subrogation agreement --Commission's
finding not clearly erroneous. -- Where respondent and his client executed a
subrogation agreement with a health fund for the payment of the client's
medical treatment over a year before respondent was elected to the bench,
these monies were paid by the fund, and respondent settled his client's
claim over a year later, but neitherrespondent nor his client reimbursed the
fund, causing the fund to file suit in federal court against respondent and
his client, and the federal court ruled that respondent had intentionally
exercised control over monies inconsistent with the fund's rights and held
that respondent had converted the money, the Commission was not clearly
erroneous in finding that respondent violated Canons 1 and 2A of the Code of Judicial Conduct.

9. Judges -- Canon 4 of Code of Judicial Conduct -- requirements clear. --
The reporting requirements of Canon 4H of the Code of Judicial Conduct are
clear: a judge shall, at least annually, report the date, place and nature
of any activity for which he or she received compensation and report the
amount and the person who paid the compensation; the preamble of the
Judicial Code instructs that when the Code uses "shall" or "shall not," it
is intended to impose binding obligations, the violation of which can result
in disciplinary action; filing such information allows interested persons
and the public to have knowledge concerning whether a judge has any
conflicts of interest when the judge conducts judicial business. 

10. Judges -- respondent failed to report outside income & financial
interests -- violation of Canon 4 & Ark. Code Ann. 21-8-203 & 204(b)(1)
clear. -- The Commission found, and respondent did not dispute, that
respondent did not report or list the attorney's fees he received in 1993,
nor did he report other outside income he received between January and
December of 1994; the Commission concluded that respondent failed to file
any outside-income report with the supreme court's clerk in 1996, nor did he
file a statement of financial interest with the Secretary of State in 1996
as is required by Ark. Code Ann. 21-8-203 and -204 (Repl. 1996);
respondent willfully violated Canon 4 of the Code of Judicial Conduct and
Ark. Code Ann. 21-8-203 and -204(b)(1) (Repl. 1996), by failing to
properly report his outside income and financial interests to the clerk of
the Arkansas Supreme Court and the Secretary of State.

11. Judges -- must comply with law -- violation of law does injury to system
of government by law. -- Although judges should be independent, they must
comply with the law, including the provisions of Arkansas's Judicial Code;
public confidence in the impartiality of the judiciary is maintained by the
adherence of each judge to this responsibility, andconversely, violation of
the law and the Code diminishes public confidence in the judiciary and
thereby does injury to the system of government by law. 

12. Judges -- respondent repeatedly issued insufficient checks
--Commission's findings affirmed. -- Where respondent admitted that
fifty-nine checks had been returned to him as insufficient between 1993 and
1997; where he also agreed that his ability to sit on cases involving "hot
checks" had been compromised; where fifty-nine checks were returned
insufficient over a five-year period; where no overdraft protection was
extended to make those checks good; and where other evidence presented to the Commission showed what could be labeled a willfulness on respondent's part in failing to satisfy those businesses that received his insufficient checks in that he repeatedly failed to respond to requests to make the checks good until notified by the prosecutor's office that an affidavit for
an arrest warrant had been filed, the record supported the Commission's
findings that respondent violated Canons 1 and 2A of the Code of Judicial
Conduct by issuing insufficient checks on his operating account for the
purchase of goods, services, and the payment of debts. 

13. Judges -- respondent failed to pay federal personal income tax -- Canons
1 & 2A violated. -- Where respondent was assessed $86,936.91 as delinquent federal income tax for the year ending 1994, and the Internal Revenue Service filed a notice of Federal Tax Lien on respondent and his wife, the Commission found respondent's failure to pay his income taxes violated the Code because he had the money in 1994 to pay the taxes, but chose not to do so; respondent had received a referral fee in 1994 in the amount of $160,000.00 but placed $100,000.00 in an investment account and used the balance to pay other debts rather than his taxes; the Commission's determination that respondent violated Canons 1 and 2A of the Code of Judicial Conduct, by failing to pay his 1994 federal personal income tax was not clearly erroneous. 

14. Judges -- respondent operated motor vehicle with fictitious
license-plate tag -- Cannons 1 & 2A violated. -- Where respondent admitted
that he had placed a license-plate tag from a 1981 car on his 1982 pickup
truck, and the purpose for attaching the fictitious license tag was to
mislead law enforcement officers to believe the truck was properly
registered, such misconduct on respondent's part clearly violated Canons 1
and 2A. 

15. Judges -- client funds deposited in personal account -- Rule 1.15 of the
Model Rules of Professional Conduct violated. -- Where it was undisputed
that, sometime after January 1993, respondent allowed his attorney's trust
account to elapse, but he maintained a personal or what he specifically
referred to as an "operating account" in order to "clean up" his debts,
after he took office he deposited settlement checks or drafts from at least
two lawsuits in his operating account, and disbursed checks to his clients,
and he admitted that prior to his becoming a judge he had deposited into
this account a number of checks made out to him and other clients, and that
he had "technically" commingled his clients' monies with his, respondent
violated Rule 1.15 of the Model Rules of Professional Conduct, and such
violation was considered by the court in the Commission's recommendation to remove respondent from office.

16. Appeal & error -- argument made without sufficient citation of legal
authority -- issue not decided. -- Where neither respondent nor the
Commission offered sufficient citation of legal authority or convincing
argument for the supreme court to decide the question of whether the
Commission's three-member panel in any way violated procedural due process, the issue was not reached.

17. Judges -- Discipline & Disability Rules -- provisions for disciplinary
proceedings. -- Rule 11C of the Arkansas Judicial Discipline & Disability
Commission Rules provides for a formal disciplinary hearing before the full
Discipline & Disability Commission, or a three-member panel as a factfinder,
and Rule 11D states that the proceeding shall be recorded verbatim; if a
panel conducts the hearing, it must submit its findings and recommendations,
together with the record and transcript to the full Commission, and when the
panel is the factfinder, the full Commission may make findings of fact
independent from those offered by the panel; such procedure ensures that the
full Commission has before it all of the record of the formal proceedings,
and each member is reserved the power to review the disciplinary proceeding
and reach findings separate from those made by the panel.

18. Appeal & error -- argument not preserved for review. -- Where respondent
argued that, after his probable cause hearing, the Discipline & Disability
Commission dismissed several evidentiary issues later utilized to support
some of theCommission's findings and recommendations; however, he failed to show when or where in the record these dismissals appeared, and the supreme court was unable to find them through its independent search, respondent failed to preserve the argument for review. 

19. Judges -- disqualification of -- burden of proof. -- In cases where
judges have been asked to disqualify, judges are presumed to be impartial,
and the person seeking disqualification bears a substantial burden in
proving otherwise; the decision to recuse is within the trial judge's
discretion, and it will not be reversed absent abuse.

20. Judges -- judge appointed to Commission -- refusal to recuse upheld. --
Where a judge who had been appointed to the Discipline & Disability
Commission took the time to explain why he had previously recused from
sitting on prior matters involving respondent, those reasons did not include
any bias or impartiality he had towards respondent, he stated that he had a
fair and open mind and heart that would permit him to participate as a panel
member in the case, and following these declarations, respondent presented
no evidence to show or prove bias on the judge's part or that he had in any
wayabused his discretion in deciding not to recuse, the judge's ruling on
this issue was upheld. 

21. Evidence -- testimony offered for correct reason -- evidence properly
admitted. -- Where a three-member panel of Commission members allowed the Commission's investigator's testimony to show only that it was a letter of
complaint from an attorney representing a previous client of respondents
that caused the Commission to initiate an investigation into whether
respondent represented that client before and after he assumed the bench,
the panel correctly overruled respondent's hearsay objection to the
testimony, since the Commission did not offer the letter or statements to
prove respondent was practicing law improperly, but instead to show why it
initiated an investigation into whether respondent was improperly practicing
law. 

22. Judges -- sanctions for judicial misconduct -- factors considered. -- In
determining the appropriate sanction for judicial misconduct courts have
considered: (a) whether the misconduct is an isolated instance or evidenced
a pattern of conduct;(b) the nature, extent and frequency of occurrence of
the acts of misconduct;(c) whether the misconduct occurred inor out of the
courtroom;(d) whether the misconduct occurred in the judge's official
capacity or in his private life;(e) whether the judge has acknowledged or
recognized that the acts occurred; (f) whether the judge has evidenced an
effort to change or modify his conduct;(g) the length of time of service on
the bench;(h) whether there have been prior complaints about this judge;(i)
the effect the misconduct has upon the integrity of and respect for the
judiciary; and (j) the extent to which the judge exploited his position to
satisfy his personal desires.

23. Judges -- respondent violated Judicial Code, Arkansas Constitution, &
Arkansas statutes -- respondent ordered removed from office. -- The evidence
convincingly proved that respondent violated the Judicial Code, the Arkansas
Constitution, and Arkansas statutory laws where the record clearly showed
that respondent knowingly violated misdemeanor laws when he utilized
fictitious license tags to his personal advantage, he caused the prosecuting
attorney's office to persuade him to pay insufficient checks, he continued
to represent clients after ascending to the bench, he conveyed an erroneous
explanation to an opposing counsel that he had received special dispensation
from a senior judge to finalizehis law practice, when respondent was
confronted with Canon 4's mandate that he file a public report listing
compensation from extra-judicial activities, he rejected its application to
his special circumstance, and he offered a self-serving interpretation of
why he refused to honor his and his client's subrogation agreement, which
interpretation totally ignored the federal judge's decision that respondent
knowingly converted the funds and the fact that no appeal was taken from
that decision; respondent, in each circumstance involved, relied on his own
legal interpretation of the canon and law involved, and without exception,
chose the option that benefited or was most favorable to him; even before
the supreme court, respondent failed to accept responsibility for those acts
that conflicted with any of the canons or laws in issue; because the
preamble of the Judicial Code undergirds and compels the supreme court to
establish a high standard when reviewing a judge's misconduct and to ensure
its fair and uniform compliance, respondent was ordered removed from office.

[wbj] 
An Original Action; Order Removing Judge Morris W. Thompson From Office. Gill, Elrod, Ragon, Owen, Skinner, & Sherman, P.A., by: Marie-B. Miller, Judy P. McNeil and Chris L. Travis, for petitioner Judicial Discipline & Disability Commission.
Darrell Brown, for respondent.

Tom Glaze, Justice. This case involves an original action brought by the
Arkansas Judicial Discipline and Disability Commission (Commission) against
Judge Morris Thompson, recommending that Thompson be removed from office forhaving willfully violated the Canons of the Code of Judicial Conduct. When Thompson was elected in November 1992 as Sixth Judicial Circuit Judge, Fifth Division, and took office on January 1, 1993, he was co-counsel representing Jacqueline Ford in a personal injury claim and Ada Gant (and other family members) in a wrongful-death suit. These claims were pending in Louisiana, and Judge Thompson remained involved in these two matters after he was judge. His involvement later led to a complaint being filed against him with the Commission.

During the Commission's investigation of the Ford and Gant complaint, other
possible Code violations unfolded. After considerable discovery and
responses were exchanged between the Commission and Judge Thompson, the
nine-member Commission directed that three of its members conduct a hearing
regarding the formalallegations filed against Judge Thompson, and it
instructed the three-member panel to make its findings and recommendations
to the full Commission. The hearing commenced on October 20 and ended on October 22, and following the hearing, on November 15, 1999, the panel made its findings and recommendations to the full Commission. The panel
determined that convincing evidence showed that Judge Thompson had willfully violated the Canons of the Judicial Code, and had also violated Arkansas statutory law. The panel listed the following violations:
(1) When representing Ford in her personal injury case after January 1,
1993, Judge Thompson willfully violated Canon 4G of the Code by practicing law after he became a full-time judge. The same canon was violated by Judge Thompson when representing Ada Gant and others after January 1, 1993, in their wrongful death litigation. 

(2) In connection with Ford's claim, Ford and Judge Thompson had executed a subrogation agreement with the Southern Council of Industrial Workers
(Southern Council) for medical expenses paid on Ford's behalf, and, contrary
to Canons 1 and 2A of the Code, Judge Thompson willfully failed to honor the agreement.

(3) Judge Thompson willfully violated Canons 4A, D,H, and I and Ark. Code
Ann. 21-8-203 and -204(b)(1) (Repl. 1996), by failing to properly file
reports of outside income on the financial interest statement required to be
filed with the Secretary of State. 

(4) Judge Thompson willfully violated Canons 1 and 2A of the Code by writing
fifty-nine insufficient checks between 1993 and 1997.

(5) Judge Thompson further violated Canons 1 and 2A by failing to pay his
federal income taxes, even though he had received sufficient income to pay
them.

(6) Judge Thompson violated Canons 1 and 2A and Ark. Code Ann.
16-10-410(b)(3) (Repl. 1999), when he violated Ark. Code Ann. 27-14-306 (Repl. 1994), by placing the license tag belonging to his 1981 Toyota on his Ford pickup truck.

The Commission additionally requests that we consider a seventh point:
Whether Judge Thompson violated Rule 1.15 of the Model Rules of Professional Conduct because he deposited client funds in his "operating account," rather than a "trust account." Considerable testimony was taken on this point, but no specific mention of it is made in the Commission's findings. Judge Thompson concedes that we have the authority under Rule 12D of the Rules of Procedure of the Arkansas Judicial Discipline & DisabilityCommission (1999), to consider whether he violated Rule 1.15, since we are considering his removal. Thus, we will address the Rule 1.15 argument, as well.

On December 9, 1999, the full Commission reviewed the panel's six findings
of fact and its recommendations, and unanimously concluded that the facts
were proven by clear and convincing evidence, that Judge Thompson willfully
violated Canons 1, 2A, 4A, 4D(2), 4G, 4H, and 4I of the Code, and that such violations were prejudicial to the administration of justice. The Commission further stated that, while some of the offenses and findings, standing alone, may have warranted a lesser sanction, the seriousness of the others, along with the sheer number of violations committed over such a lengthy period of time, left no other alternative than to recommend Judge Thompson's removal from office.1 

After the Commission entered its findings and recommendations, it filed them
and its record with this court, and the matter was docketed for expedited
consideration. See Rule 12 of the Discipline and Disability Rules (1999).
The Commission and JudgeThompson have now filed their briefs,2 participated in oral argument, and the case is submitted to us for decision. Upon review of the entire record, we may accept, reject, or modify, in whole or in part, the Commission's findings and recommendations. Rule 12E. In short, our standard of review in this matter is one of de novo review, and we will not reverse the Commission's findings unless they are clearly erroneous. 

See Ark. R. Civ. P. 52(a); cf. Mays v. Neal, 327 Ark. 302, 938 S.W.2d 830 (1997), and Finch v. Neal, 316 Ark. 530, 873 S.W.2d 519 (1994). In
considering the Commission's findings and recommendations and Judge
Thompson's responses to them, we will review each of the seven violations
argued and set out above. Judge Thompson also raises several due process
issues regarding the three-member panel, including an evidentiary ruling it
made. We will discuss those matters after discussing and deciding the
substantive findings.

I. Whether Judge Thompson violated Canon 4G of the Judicial Code by engaging
in the practice of law after heassumed the bench on January 1, 1993.
Canon 4G provides that a judge shall not practice law or appear in any court
within this state, and the commentary to this Canon notes that the
prohibition "refers to the practice of law in a representative capacity
under Ark. Const. art. 7, 25."3 However, Judge Thompson relies on the
Canon's language, "shall not practice . . . in any court within this State,"
and argues this phrase is not defined by the Judicial Code, and he does not
fall within its prohibition. He claims that he never appeared as counsel in
any court, nor did he practice law within Arkansas. Thompson further cites
an Oregon case, In Re Piper, 534 P.2d 159 (Or. 1975), and advisory opinions from Florida, New York, and Kentucky for the proposition that an attorney elected to a judgeship may complete his or her legal work after assuming the
bench. While we harbor considerable doubt that the authority cited by Judge
Thompson is on all fours with the case here, we need not explore those
situations in other jurisdictions because not only does our law specifically
prohibit the practice of law by judges, but this court has also defined and
decided what is meant by, andis included within, the term "practice of law."
In Undem v. State Board of Law Examiners, 266 Ark. 683, 587 S.W.2d 563
(1979), this court stated the following:
It is quite true that the practice of law is not confined to services by an
attorney in a court of justice; it also includes any service of a legal
nature rendered outside of courts and unrelated to matters pending in the
courts. (Citations omitted.) It is uniformly held that writing and
interpreting wills, contracts, trust agreements, and the giving of legal
advice in general constitute practicing law. (Emphasis added.)
In concluding that, under Arkansas law, a judge cannot practice law after he
is elected to and assumes the bench, we now review the evidence bearing on
whether Judge Thompson's activities after he took office on January 1, 1993,
involved the practice of law.
Regarding the Ford case, Judge Thompson served as co-counsel with Brenda
Brown, a Louisiana attorney. Thompson submits that he advised Ford
concerning settlement, and she accepted a settlement offer in December 1992.
He argues that all the work performed after December 1992 was "clerical" and
did not fall within the proscription of "practicing law." The evidence
presented to the Commission failed to support Judge Thompson's claim. For
example,between January 4 and 13 of 1993, opposing defense counsel, Bruce M.
Mintz, sent Judge Thompson a receipt and release for Ms. Ford and her
husband to sign and for Thompson to approve as their attorney; included,
too, was a motion and order of dismissal with prejudice which Judge Thompson
was requested to approve as one of the Fords' attorneys. Mintz also enclosed
a check dated January 4, 1993, in the amount of $150,000.00. On January 13,
1993, Judge Thompson met with the Fords in his judge's chambers where they
discussed and signed and approved the above documents, and afterwards,
Thompson accompanied the Fords when they negotiated the check. On January
19, 1993, Judge Thompson faxed a letter to his Louisiana co-counsel Brenda
Brown, confirming their fee arrangement, and the next day he sent Brown a
cashier's check along with a letter, written on his judicial stationery,
wherein he directed Brown to approve the order of dismissal and gave her
directions on closing the case. Unquestionably, these activities that took
place in Arkansas involved legal advice, and the documents identified him as
the Fords' attorney. Judge Thompson's actions in bringing the Fords' case to
a resolution easily fall within the definition of practicing law, and the
Commission's decision so finding is correct.
When investigating the Ford matter, the Commission discovered Judge Thompson
had also continued to represent Ada Gant and otherfamily members concerning
their wrongful-death case filed in Louisiana. While Judge Thompson disputes
many of the Commission's allegations and findings that resulted in the
Commission's decision that he willfully violated Canon 4G by continuing to
practice law on the Gants' behalf after January 1, 1993, there is clear and
convincing evidence that he did, indeed, represent the Gants as their
co-counsel as late as November 1994 -- one year and eleven months after
being sworn in as a judge.
It is undisputed that, on December 30, 1992, Judge Thompson participated in
several depositions involving the Gant case. Thompson and his Louisiana
co-counsel Brenda Brown and Pamela Blankenship represented the Gants, and
Louisiana attorneys David Nelson and Haynes Harkey represented the
defendants. After the depositions ended, the attorneys discussed settlement.
After Harkey returned to his office, he claimed, and later testified, that
Judge Thompson informed Harkey that he had received "special dispensation"
from a "senior judge" that would allow him to finish the Gant case. Harkey
further averred that he memorialized that conversation by memorandum to
associate defense counsel, Bruce Mintz, in order to summarize what had
transpired on the day of the depositions. The Commission apparently believed
Harkey's version of what was said. That being true, since Arkansas's
judicial branch has no trial judge denominated as "senior judge" who
couldgive such dispensation, the Commission could have reasonably concluded
that Judge Thompson offered a false cover to give a reason why, as a newly
elected judge, he intended to represent the Gants until the conclusion of
their case.
Although Judge Thompson urges that he had advised opposing counsel that he
would no longer be involved in the case, the evidence undermines that
assertion. Judge Thompson testified that he closed his law office in
December 1992, and sent his motion to withdraw as an attorney in the Gant
case to his co-counsel. Nonetheless, that motion was never filed with the
Louisiana court, and the evidence shows that Judge Thompson continued to
participate until the Gant case's conclusion.4 In fact, the record reflects
that legal correspondence and documents concerning the Gant case continued
to be exchanged between Judge Thompson, opposing counsel, and the Louisiana
court's clerk between January 1993 through October 1994. Defense counsel
Mintz testified that she was sure she did not receive any written or verbal
communication that Thompson no longer represented the Gants or Fords after
he took the bench. Defense counsel David Nelson also could not recall Judge
Thompson saying he was no longer involved in the Gant case.
On March 17, 1993, Mark Ackley, an adjuster for defendant St. Paul Fire &
Marine Insurance Company, called Judge Thompson at his judicial office,
after Ackley was unable to contact Blankenship; during the call, Ackley and
Judge Thompson discussed proposed settlement of the Gant matter. Ackley sent
Judge Thompson a fax setting out the settlement terms, and the fax was
directed to "Judge Thompson." Ackley said that, in his conversation with
Thompson, Thompson never told him that he could not settle the case; nor did
he refer Ackley to another attorney. Ackley said the Gant case was settled
on March 24, 1993, and co-counsel Blankenship signed Thompson's name along
with her own on the release documents, which the evidence shows Judge
Thompson gave Blankenship authority to do. Thompson signed this signature
authorization as "Judge Morris Thompson" and had mailed it to defense
attorney Bruce Mintz. Prior to the signing and approval of the March 31
release, Judge Thompson had written and disbursed checks to his clients, but
he advised his clients not to negotiate the checks until he received the
settlement check and it had cleared his account. These checks were written
on Judge Thompson's "operating account" at Union National Bank. Although
Judge Thompson argues he did not deal with these clients and disputes these
findings made by the Commission, Thompson's own testimony concedes their
verity when he acknowledged the clients had negotiated checks written on his
account. Moreover, the operating account used by Judge Thompson contained
the legend, "Morris W. Thompson P.C. Law Firm."
In April 1993, Judge Thompson received a $150,000 settlement check. He,
Blankenship, and their clients endorsed the check, and Judge Thompson
deposited the check in his operating account. Judge Thompson paid the court
reporters and his co-counsel their expenses and fees, and he also sent a
check to the Louisiana court clerk to cover future costs in the Gant
lawsuit. The record further reflects that Judge Thompson still had contact
with co-counsel Blankenship and opposing counsel Nelson after the March and
April activities involving the Gant matter. In this respect, Judge Thompson
contacted Blankenship on about twenty occasions between August 14, 1993, and
November 4, 1994, and he spoke with defense attorney Nelson on November 29,
1993. As we similarly concluded above regarding the Ford case, we believe
the record also amply supports the Commission's finding that Judge Thompson
practiced law when he continued to represent the Gants after he ascended to
the bench on January 1, 1993.
Judge Thompson argues that, even if he violated Canon 4G, he did not do so
willfully. In short, Judge Thompson submits that he made a good-faith
interpretation of Canon 4G, and, in doing so, believed he could finish his
law practice after he took office. He urged before the Commission, and
argues here, that he reached theopinion that he could perform clerical
activities in order to complete his law practice. However, as we have
already concluded, our review of the work he performed revealed he was
performing more than ministerial or clerical acts, but instead, his actions
constituted the active practice of law, which is clearly prohibited under
Ark. Const. art. 7, 25, and Canon 4G. In addition, we cannot ignore the
testimony of opposing counsel Haynes Harkey, who said Judge Thompson had
received "special dispensation" from a "senior judge" who allowed him to
finish the Gant case. The Commission had the right to believe Harkey's
testimony as being true, and because no such dispensation procedure is
permitted in Arkansas, it could further reasonably infer that Judge
Thompson's false statement to Harkey was offered to explain or justify his
unlawful practice of law.
II. Whether Judge Thompson violated Canons 1 and 2A by failing to honor the
subrogation contract he and Ms. Ford executed with the Southern Council of
Industrial Workers.
Canon 1 and 2A of the Code of Judicial Conduct read as follows:
Canon 1. A judge shall uphold the integrity andindependence of the
judiciary.
An independent and honorable judiciary is indispensable to justice in our
society. A judge should participate in establishing, maintaining and
enforcing high standards of conduct, and shall personally observe those
standards so that the integrity and independence of the judiciary will be
preserved. The provisions of this Code are to be construed and applied to
further that objective.
Canon 2. A judge shall avoid impropriety and the appearance of impropriety
in all of the judge's activities.
A. A judge shall respect and comply with the law and shall act at all times
in a manner that promotes public confidence in the integrity and
impartiality of the judiciary.
During his representation of Ms. Ford, both Judge Thompson and Ford executed
a subrogation agreement with Southern Council on September 3, 1991, whereby
the Council paid for the medical treatment or services Ford incurred. These
monies were paid from the Council's Industrial Workers Health and Welfare
Fund, and Judge Thompson and Ford agreed to reimburse the fund for any
recovery. As already mentioned above, Judge Thompson settled Ford's claim
inDecember 1992 and January 1993 for $150,000.00, but neither Judge Thompson
nor Ford reimbursed Southern Council's fund. In fact, Judge Thompson kept
$50,000.00 of the recovery as attorney's fees. Southern Council filed suit
in federal court against Judge Thompson and Ford, and it obtained a judgment
in the amount of $29,971.00. The federal court ruled that Judge Thompson had
intentionally exercised control over funds inconsistent with Southern
Council's rights and held that he converted the Council's funds. Judge
Thompson did not appeal that determination, but instead argued that, in
defending against Southern Council's lawsuit, he had simply believed that
the obligation owed Southern Council belonged to Ford, not him. However,
such an explanation fails to explain how he could have avoided
responsibility for the debt when he joined in signing the agreement to
reimburse the Council. Nor does Judge Thompson satisfactorily address and
rebut the federal court's decision finding a knowing conversion on his part,
which was not appealed. Based on this evidence, we are unable to say the
Commission was clearly erroneous in finding Judge Thompson violated Canons 1
and 2A.
III. Whether Judge Thompson willfully violated Canon 4 of the Code of
Judicial Conduct and Ark. Code Ann. 21-8-203 and -204(b)(1) (Repl.
1996), by failingto properly report his outside income and financial
interests to the clerk of the Arkansas Supreme Court and the Secretary of
State.
Canon 4H(2) provides as follows:
(2) Public Reports. A judge shall report the date, place and nature of any
activity for which the judge received compensation, and the name of the
payor and the amount of compensation so received. The judge's report shall
be made at least annually and shall be filed as a public document in the
office of the Clerk of the Supreme Court.
The commentary to Canon 4I refers to the foregoing canon, stating in
pertinent part that Section H requires a judge to report all compensation
the judge receives for activities outside judicial office. The Commission
found, and Judge Thompson does not dispute, that Judge Thompson did not
report or list the attorney's fees he received in 1993 from the Ford and
Gant settlements, nor did he list the following attorney's fees or income he
received in 1993 from other attorneys or clients: Marvin L. Harris
(approximately $8,431.00), Woodson Walker referral fees ($4,956.96),
WillardProctor referral fees ($3,865.68), and income from Willard Proctor
from the Fred Douglas Trust ($4,596.56).
The Commission further found Judge Thompson failed to report other outside
income he received between January and December of 1994; that compensation
was the following:
(1) Attorney's fees received from James Rhodes in the amount of $4,586.00.
(2) Attorney's fees received from Willard Proctor in the amounts of
$2,016.00, $6,060.25, and $6,849.31.
(3) Attorney's fees from the Arkansas Municipal League in the sum of
$5,400.00.
(4) Attorney's fee from the Needham, Johnson, Lovelace, and Johnson Law Firm
in Texas in the amount of $160,000.00.
The Commission finally concluded on this point that Judge Thompson failed to
file any outside-income report with this court's clerk in 1996, nor did he
file a statement of financial interest with the Secretary of State in 1996
as required by Ark. Code Ann. 21-8-203 and -204 (Repl 1996). Section
21-8-203 emphasizes the purpose of disclosure-of-income requirements,
providing such reports are essential to the efficient operation of
government andto minimize the opportunities for conflicts of interest. Ark.
Code Ann. 21-8-202 (Repl. 1996) imposes a fine of up to $500.00 for the
failure to file an income report and designates the violation of
21-8-203 and -204 to be a misdemeanor.
While Judge Thompson seems to argue that Canon 4H's reporting requirements
are ambiguous, we believe they are quite clear - a judge shall, at least
annually, report the date, place and nature of any activity for which he or
she received compensation and report the amount and the person who paid the
compensation. The preamble of the Judicial Code instructs that when the Code
uses "shall" or "shall not," it is intended to impose binding obligations,
the violation of which can result in disciplinary action. Filing such
information allows interested persons and the public to have knowledge
concerning whether a judge has any conflicts of interest when the judge
conducts judicial business. Although Judge Thompson refers us to a Michigan
State Bar advisory opinion that suggests a new judge need not disclose
payments from his or her former law firm, so long as the payments are made
with respect to work done when the judge was still in practice, such is not
legal precedent, but more importantly, the opinion, as set out, is wholly
inconsistent with the language and purposes of Canon 4H adopted by our court
and the Arkansas law embodied in 21-8-203 and -204.
IV. Whether Judge Thompson violated Canons 1 and 2A of the Code of Judicial
Conduct, by issuing insufficient checks on his operating account for the
purchase of goods, services, and the payment of debts. 
Judge Thompson argues that, while he did not watch his account as closely as
would have been prudent, he only had twenty-one checks returned as
insufficient. He also asserts that, contrary to the Commission's finding, he
had overdraft protection.
First, in reviewing the record, we read Judge Thompson's own testimony where
he admitted on direct examination that fifty-nine checks had been returned
to him as insufficient between 1993 and 1997. He also agreed that his
ability to sit on cases involving "hot checks" had been compromised. Second,
although he claims to have had overdraft protection, bank officials
disagreed. Obviously, the best proof on this point is that fifty-nine checks
were returned insufficient over a five-year period, and no overdraft
protection was extended to make those checks good. Third, other evidence
presented to the Commission showed what could be labeled a willfulness on
Judge Thompson's part in failing to satisfy those businesses that received
his insufficient checks. For example, he gave a check to Pop-a-Top Liquor in
the amount of $15.16 which was returned for insufficient funds. The store
ownersaid that he tried to contact Judge Thompson by telephone and mail, but
received no response until the store contacted the prosecuting attorney,
seeking an arrest warrant. Judge Thompson paid the debt only after the
prosecuting attorney's office contacted him. In addition, Judge Thompson
wrote an insufficient check to Sam's Wholesale Club for the amount of
$317.29. A Sam's representative averred the store called Judge Thompson's
home number four times and got no answer. The last two calls revealed Judge
Thompson's phone had been disconnected, so Sam's sought an arrest warrant,
and like the case with Pop-a-Top, Judge Thompson paid only after the
prosecuting attorney's office notified him that an affidavit for an arrest
warrant had been filed.
Although judges should be independent, they must comply with the law,
including the provisions of Arkansas's Judicial Code. See commentary to
Canon 1. Public confidence in the impartiality of the judiciary is
maintained by the adherence of each judge to this responsibility, and
conversely, violation of the law and the Code diminishes public confidence
in the judiciary and thereby does injury to the system of government by law.
Again, we conclude the record before us supports the Commission's findings
showing Judge Thompson violated the Code by his issuing insufficient checks
as described above. Cf. Arkansas State Police Comm'n v. Smith, 338 Ark. 354,
994 S.W.2d 456 (1999) (where Officer Smith admitted hewrote checks to
merchants without knowing how much money was in his account at the time,
that he received notice of the returned checks, and that he failed to
rectify the wrongs suffered by the merchants without judicial intervention,
the Commission's termination of Smith was supported by substantial
evidence).
V. Whether Judge Thompson violated Canons 1 and 2A of the Code of Judicial
Conduct, by failing to pay his 1994 federal personal income tax.
The Commission found that, on October 28, 1996, Judge Thompson was assessed
$86,936.91 as delinquent federal income tax for the year ending 1994, and
the Internal Revenue Service filed a notice of Federal Tax Lien on Judge
Thompson and his wife. The Commission found Judge Thompson's failure to pay
his income taxes violated the Code because he had the money in 1994 to pay
the taxes, but chose not to do so. In support of its findings, the
Commission found Judge Thompson had received a referral fee in 1994 in the
amount of $160,000.00 but placed $100,000.00 in a Merrill Lynch account and
used the balance to pay other debts rather than his taxes.
Judge Thompson's sole response on appeal is that he made his decision to
utilize his resources to pay off "old pressingfinancial obligations" and to
pay his tax obligation by installment. On this point, Judge Thompson would
be correct, at least to the extent that, if he had insufficient funds to pay
all his debts, he should be able to schedule the best debt-payment plan he
could. However, Thompson does little in the way of argument to point to
evidence that rebuts the Commission's findings that he had sufficient funds
to pay his 1994 taxes. It is especially noteworthy that Judge Thompson had
$100,000.00 to put in a Merrill Lynch account. In reviewing his testimony
before the Commission, Judge Thompson merely said that, when he told the IRS
of his assets and liabilities, he "imagined" the IRS knew he had the
account. While this non-payment of federal income tax issue is a close one,
we are not inclined to set aside the Commission's findings that Thompson's
conduct violated Canons 1 and 2A. We do note at this stage that, if this
issue was the only violation before us, it would not be one that would
invoke a sanction for removal from office. 
VI. Whether Judge Thompson violated Canons 1 and 2A, by operating a motor
vehicle with a fictitious license plate tag.
On June 18, 1997, Judge Thompson was stopped by the police andgiven a
citation for exhibiting a fictitious license plate tag in violation of Ark.
Code Ann. 27-14-306 (Repl. 1994), a misdemeanor. Judge Thompson admitted
he placed a license plate tag from a 1981 Toyota on his 1982 Ford pickup
truck. However, he said that he was restoring the truck and only drove it to
the mechanic shops or garages for needed work. While Judge Thompson urges
that he made no attempt to deceive anyone concerning his judicial status,
the purpose for attaching the fictitious license tag was to mislead law
enforcement officers to believe the truck was properly registered. Such
misconduct on Judge Thompson's part clearly violated Canons 1 and 2A. 
VII. Whether Judge Thompson violated Rule 1.15 of the Model Rules of
Professional Conduct, by depositing client funds in a personal account
rather than an identifiable trust account.
While the Commission did not directly consider this issue, both Judge
Thompson and the Commission agree we can do so when considering the removal
of a judge.5 Rule 12D of the JudicialDiscipline and Disability Rules
provides as follows:
D. Scope of Discipline. The Supreme Court, when considering removal of a
judge, shall determine whether discipline as a lawyer also is warranted. If
removal is deemed appropriate, the court shall notify the judge, the
Commission and the Supreme Court Committee on Professional Conduct and give
each an opportunity to be heard on the issue of the imposition of lawyer
discipline.
Model Rule 1.15 is the rule we are asked to consider, and it reads in
pertinent part as follows:
(a) All lawyers shall hold property of clients or third persons that is in a
lawyer's possession in connection with a representation separate from the
lawyer's own property.
(1) Funds of a client shall be deposited and maintained in one or more
identifiable trust accounts in the state where the lawyer's office is
situated, orelsewhere with the consent of the client or third person. The
lawyer or law firm may not deposit funds belonging to the lawyer or law firm
in any account designated as the trust account, other than the amount
necessary to cover bank charges, or comply with the minimum balance required
for the waiver of bank charges. 
It is undisputed that, sometime after January 1993, Judge Thompson allowed
his attorney's trust account to elapse, but he maintained a personal or what
he specifically referred to as an "operating account" in order to "clean up"
his debts.
In handling the Ford and Gant settlements, Judge Thompson conceded that he
deposited the settlement checks or drafts in his operating account, and
disbursed checks to his clients. However, Judge Thompson suggested his
failure to use a trust account to deposit the Ford and Gant funds was not
his usual practice, and he only did so to complete his prior law business.
On cross examination, however, Judge Thompson was shown a number of checks
made out to him and other clients prior to when he took office. The checks
bore the names of Bertha Chambers, Vivian Lamini, Gertie Mason, Irma
Reshada, Diana Cross, and Diana Brickman, and he admitted those checks were
deposited in his operating account and he had "technically" commingled his
clients' monies with his. Based on this evidence and Judge Thompson's
admissions, we must conclude that he violated Model Rule 1.15, and such
violation will be considered by this court in the Commission's
recommendation to remove Judge Thompson from office.
We have thoroughly discussed and decided the seven findings and Code
violations the Commission has made, but before we address the Commission's
recommendation bearing on Judge Thompson's removal, we must consider
Thompson's due process arguments.
Thompson first contends that his due process rights were violated because
his discipline hearing was held before a three-person panel rather than the
full nine-member Commission. Citing Mathews v. Eldridge, 424 U.S. 319
(1976), he argues generally that procedural due process requires a hearing
before an impartial decision maker be provided at a meaningful time and in a
meaningful manner, prior to a governmental decision which deprives
individuals of a liberty or property interest. He suggests that he was not
offered a fair opportunity to be heard at a meaningful time or manner
because all nine members did not hear the evidence first hand. He also
claims he was somehow prejudiced because five of the nine Commission
members, due to their term expirations, had departed the Commission, so
their replacements on the Commission (when the Commission made its final
findings and recommendations) were not present earlier when the probable
cause and factfindinghearing rulings were made. In other words, Thompson
says he was denied a fair and meaningful hearing because the five new
commissioners were not privy to all of the proceedings that previously had
transpired in his case.
The Commission rejoins by stating Judge Thompson has no protected property
interest in the judicial office he holds, so due process is not an issue.
Although we do not totally agree with the Commission's response, we do agree
that neither Judge Thompson nor the Commission offers sufficient citation of
legal authority or convincing argument for us to decide this question. See
Womack v. Foster, 340 Ark. 124, 8 S.W.3d 854 (2000); Ellis v. Price, 337
Ark. 542, 990 SW.2d 543 (1999). In oral argument, Judge Thompson agreed that
he had no legal authority suggesting the three-member panel hearing utilized
by the Commission in any way violated procedural due process. We are not
inclined to delve into this legal issue without briefs and argument that
better develop this issue. 
Suffice it to say, Rule 11C provides for a formal disciplinary hearing
before the full Commission, or a three-member panel as a factfinder, and
Rule 11D states that the proceeding shall be recorded verbatim. If a panel
conducts the hearing, it must submit its findings and recommendations,
together with the record and transcript to the full Commission. See Rule 11D
and F of the Discipline and Disability Rules. And when the panel is
thefactfinder, the full Commission may make findings of fact independent
from those offered by the panel. Id. at F. Such procedure ensures that the
full Commission has before it all of the record of the formal proceedings,
and each member is reserved the power to review the disciplinary proceeding
and reach findings separate from those made by the panel.
Judge Thompson next asserts that his due process rights were violated when
the Commission considered allegations that were not part of the formal
statement of charges. He argues that, after his probable cause hearing, the
Commission dismissed several evidentiary issues later utilized to support
some of the Commission's findings and recommendations. However, he fails to
show when or where in the record these dismissals appear, and we are unable
to find them through our independent search. In short, Judge Thompson has
failed to preserve this argument. See Western Foods, Inc. v. Weiss, 338 Ark.
140, 992 S.W.2d 100 (1999); Brown v. Arkansas State (HVACR) Licensing Bd.,
336 Ark. 34, 984 S.W.2d 402 (1999). However, even if the record reflected
such dismissals, he has not shown how they would have prejudiced his case,
since other evidence presented to the Commission amply supports the
Commission's findings. 
Judge Thompson's final due process argument is that Circuit Court Judge
David Bogard and all other circuit court judges servingin the Sixth Judicial
Circuit had disqualified themselves when they were requested to preside on
earlier cases involving Judge Thompson. One case was about four years ago
and involved a wholly different matter than the case now before us. The
second case was filed by Judge Thompson to prevent the Commission's
discovery requests during its investigation of Thompson which led to the
filing of the disciplinary proceeding now before us. Judge Bogard was
appointed to the Commission after these earlier cases, but when Judge Bogard
and the two other Commission panel members commenced the formal discipline
hearing in this matter, Judge Thompson raised the possibility of Judge
Bogard's disqualification. He suggested to Judge Bogard that, since Bogard
had previously recused in other cases involving Judge Thompson, he might
wish to do so in this proceeding. Judge Bogard rejected Judge Thompson's
suggestion, stating that, in the earlier situations, he merely felt
uncomfortable in sitting as a presiding judge on a friend's and co-worker's
case, and Judge Bogard considered Judge Thompson both. In retrospect, Judge
Bogard said that he "might not have disqualified," because his earlier
recusals were not ones based on a feeling that he could not be impartial or
unbiased. Judge Bogard posited that, unless the Commission had some concern
over his prior favorable relationship with Judge Thompson, Bogard believed
that he could be fair to both parties. The Commission offered no objections.

Judge Thompson cites Canon 3E(1) of the Code of Judicial Conduct which in
relevant part provides that a judge shall disqualify himself or herself in a
proceeding in which the judge's impartiality might reasonably be questioned.
Judge Thompson argues simply that Judge Bogard's prior recusals called Judge
Bogard's impartiality into question; therefore, he should be disqualified.
This court has held that, in cases where judges have been asked to
disqualify, judges are presumed to be impartial, and the person seeking
disqualification bears a substantial burden in proving otherwise. See Ayers
v. State, 334 Ark. 258, 975 S.W.2d 88 (1998); Turner v. State, 325 Ark. 237,
926 S.W.2d 843 (1996). We have further held that the decision to recuse is
within the trial judge's discretion, and it will not be reversed absent
abuse. Here, Judge Bogard took the time to explain why he had previously
recused from sitting on prior matters involving Judge Thompson, that those
reasons did not include any bias or impartiality he had towards Judge
Thompson, and that he had a fair and open mind and heart that would permit
him to participate as a panel member in the case. After Judge Bogard's
declarations, Judge Thompson presented no evidence to show or prove bias on
Judge Bogard's part or that Judge Bogard in any way abused his discretion in
deciding not to recuse. Thus, we uphold Judge Bogard's ruling on this issue.

In disposing of Judge Thompson's due process arguments, we turnfinally to
Judge Thompson's last separate point where he asserts that the three-member
panel erred by allowing Denny Reynaud, the Commission's investigator, to
testify to what Judge Thompson argues was inadmissible hearsay evidence.
The Commission called Reynaud as a witness, and he began his testimony by
saying the Commission had received a letter from an attorney named Mary
Thomason, who alleged that Judge Thompson was practicing law without a
license. Thomason represented Mrs. Ford in the federal lawsuit in which
Southern Council sued Ford and Judge Thompson, as co-defendants, alleging
they failed to honor their subrogation agreement. Judge Thompson objected to
Reynaud's reference to Thomason's statements as being hearsay and that such
testimony prejudiced Judge Thompson by attempting to use Reynaud's testimony to prove the matters asserted by Thomason. We do not agree. The Commission offered Reynaud's testimony to show only that it was Thomason's letter that caused the Commission to initiate an investigation into whether Judge
Thompson represented Ford before and after he assumed the bench. The panel
correctly overruled Judge Thompson's objection, since, contrary to
Thompson's assertion, the Commission did not offer Thomason's letter or
statements to prove Judge Thompson was practicing law improperly, but
instead to show why it initiated an investigation into whether Judge
Thompson was improperly practicing law. Wal-Mart Stores, Inc. v. Dolph, 308
Ark.439, 825 S.W.2d 810 (1992); see also Ark. R. Evid. 801(c) (1999). As
fully discussed above, Judge Thompson did unlawfully practice law not only
by representing Ms. Ford, but also by representing Gant and others as well. 
In conclusion, we now consider the Commission's recommendation that Judge
Thompson's Code infractions compel his removal from office. The Commission
stated its recommendation as follows:

While some of the offenses set forth above may have warranted a lesser
sanction as an isolated event, the seriousness of some of the other offenses
as well as the sheer number of violations committed over such a lengthy
period of time, leave no other alternative than to recommend to the Supreme
Court of Arkansas that Respondent, Morris W. Thompson, be removed from
office as Circuit Judge of the Sixth Judicial Circuit, Fifth Division, of
the State of Arkansas.

In our de novo review as set out above, we have emphasized that evidence
which convincingly proved Judge Thompson had violated the Judicial Code, the
Arkansas Constitution, and Arkansas statutory laws. Judge Thompson, on the
other hand, has repeatedly taken the position that he made a good-faith and
reasonable interpretation ofthese controlling canons and laws, and his
interpretations negated any suggestions that he violated these provisions
"willfully." Consequently, Judge Thompson argues we should reject the
Commission's recommendation for his removal from office. Alternatively, he
urges the imposition of the lesser sanction of reprimand.
Much of Judge Thompson's argument is disturbing and somewhat difficult to
follow. While he denies any willful or intentional violation of the canons
or laws, the record clearly shows he knowingly violated misdemeanor laws
when he utilized fictitious license tags to his personal advantage and
caused the prosecuting attorney's office to persuade him to pay insufficient
checks. Also, while he claims his good faith attempt to comply with other
Code violations with which he was charged, the evidence clearly undermines
such argument. As previously stated, Arkansas constitutional law prohibits
judges from "practicing law," and Arkansas case law has clearly defined that
term to include the actions taken by Judge Thompson in this case.
Nonetheless, Judge Thompson never sought legal advice on this point, but
instead followed his own favorable view of the law. In doing so, he not only
continued to represent clients, he also conveyed an erroneous explanation to
an opposing counsel that he had received special dispensation from a senior
judge to finalize his law practice. Itis fair to say that each time Judge
Thompson had a question regarding the canons or law, he held his own counsel
and decided that his actions were lawful or permissible in the
circumstances.6 As pointed out earlier, when the text of the Judicial Code
uses "shall" or "shall not," it is intended to impose "binding obligations."
However, when Judge Thompson was confronted with Canon 4's mandate that he
file a public report listing compensation from extra-judicial activities, he
rejected its application to his special circumstance. Finally, we note Judge
Thompson offered a self-serving interpretation of why he refused to honor
his and his client's subrogation agreement with Southern Council, but that
interpretation totally ignores the federal judge's decision that Judge
Thompson knowingly converted the Council's funds and the fact that no appeal
was taken from that decision.

We believe the Commission's recommendation that Judge Thompson should be
removed is the right one. It is not unlike the decision handed down recently
in Disciplinary Proceedings Against Anderson, 981 P.2d 426 (Wash. 1999).
There, the Supreme Court of Washington, in determining the appropriate
sanction for judicial misconduct, considered the following:

(a) whether the misconduct is an isolated instance or evidenced a pattern of
conduct;

(b) the nature, extent and frequency of occurrence of the acts of
misconduct;

(c) whether the misconduct occurred in or out of the courtroom;

(d) whether the misconduct occurred in the judge's official capacity or in
his private life;

(e) whether the judge has acknowledged or recognized that the acts occurred;

(f) whether the judge has evidenced an effort to change or modify his
conduct;

(g) the length of time of service on the bench;

(h) whether there have been prior complaints about this judge;

(i) the effect the misconduct has upon the integrity of and respect for the
judiciary; and 

(j) the extent to which the judge exploited his position to satisfy his
personal desires.
In concluding its review of Judge Anderson's case, the Washington Supreme
Court ordered his removal for (1) continuing to serve as president of three
corporations for ten months after beingsworn in as judge, (2) continuing to
participate in the sale of a business belonging to the estate of a deceased
client, (3) and failing to report loan payments on his vehicle made by a
personal friend to whom the business had been sold.7
Once again, the record reflects that Judge Thompson, in each circumstance
involved, relied on his own legal interpretation of the canon and law
involved, and without exception, he chose the option which benefited or was
most favorable to him. Even at this stage, Judge Thompson fails to accept
responsibility for those acts that conflicted with any of the canons or laws
in issue. The preamble of the Judicial Code undergirds and compels this
court to establish a high standard when reviewing a judge's misconduct and
to ensure its fair and uniform compliance. The preamble in relevant part
provides the following:

Our legal system is based on the principle that an independent, fair and
competent judiciary will interpret and apply the laws that govern us. The
role of the judiciary is central to American concepts of justice and the
rule of law. Intrinsic to all sections of this Codeare the precepts that
judges, individually and collectively, must respect and honor the judicial
office as a public trust and strive to enhance and maintain confidence in
our legal system. The judge is an arbiter of facts and law for the
resolution of disputes and a highly visible symbol of government under the
rule of law.

* * *
The text of the Canons and Sections is intended to govern conduct of judges
and to be binding upon them. It is not intended, however, that every
transgression will result in disciplinary action. Whether disciplinary
action is appropriate, and the degree of discipline to be imposed, should be
determined through a reasonable and reasoned application of the text and
should depend on such factors as the seriousness of the transgression,
whether there is a pattern of improper activity and the effect of the
improper activity on others or on the judicial system.
The Code of Judicial Conduct is not intended as anexhaustive guide for the
conduct of judges. They should also be governed in their judicial and
personal conduct by general ethical standards. The Code is intended,
however, to state basic standards which should govern the conduct of all
judges and to provide guidance to assist judges in establishing and
maintaining high standards of judicial and personal conduct. 
For these reasons, we hereby order Judge Thompson's removal from office.
Pursuant to Rule 12D of the Rules of Procedure of the Arkansas Judicial
Discipline and Disability Commission, we also forward a copy of this opinion
to the Supreme Court Committee on Professional Conduct for a hearing on the
issue of imposition of lawyer discipline.
Imber, J., not participating. 

1 One Commission member joined in the Commission's recommendation that Judge Thompson should be removed, but stated that, while the Commission member agreed that all the violations had occurred, he did not believe Judge
Thompson's failure to honor Southern Council's subrogation agreement or his
failure to pay his federal income tax violated Canons 1 and 2A. 

2 An individual amicus, who is an elector residing in the sub-district from
which Judge Thompson was elected, filed a brief in this appeal. The amicus
brief does not address the findings or arguments raised, but appears largely
to caution or remind the court that any decision that displaces an elected
judge will impact innocent parties (voters). The amicus brief also alludes
to the consent decree entered in the federal district court case, Hunt v.
State, No. PB-C-89-406 (E.D. Ark. 1991). 

3 We note the commentary mistakenly refers to art. 7, 24. It is art. 7,
25 which provides that judges of the supreme, circuit, or chancery courts
shall not, during their continuance in office, practice law or appear as
counsel in any court, State or Federal, within this State.

4 Co-counsel Pamela Blankenship stated that she did not file Judge
Thompson's motion because she thought it would disrupt negotiations.
Blankenship did discharge her other co-counsel, Brenda Brown, in the Gant
case. 

5 Judge Thompson's failure to comply with Model Rule 1.15 comes within Canon
2A, especially since he violated the Arkansas Constitution and Canons when
he continued to practice law after he ascended to the bench. Accordingly,
Judge Thompson's and the Commission's agreement to consider this issue on
appeal isappropriate.

6 Besides his ability to seek legal advice from counsel, Judge Thompson also
could have requested advice from the Judicial Ethics Advisory Committee
under Section 5 of Act 791 of 1991.

7 In ordering Judge Anderson's removal, the Washington court actually
rejected the recommendation of the Washington Commission on Judicial Conduct that the judge be censured and suspended without pay for four months.

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