May judges give an interested party materials gathered while addressing a lawyer's possible misconduct?

Plain-English summary

Three judges asked whether they could give an Arkansas Bar member documents, correspondence, and exhibits assembled during an inquiry into possible lawyer misconduct. They had gathered the material while carrying out their obligations under then-current Canon 3(D).

The Committee said the Code did not permit disclosure to the interested requester in that format. It distinguished giving relevant information to the Arkansas Supreme Court Committee on Professional Conduct, which it said was permitted within the judges' judicial discretion. The Committee did not interpret the Arkansas Freedom of Information Act or other statutes.

Currency note

This opinion predates the Arkansas Code of Judicial Conduct that took effect July 1, 2009, as stated in JEAC Opinion 2009-04. Later rules and opinions may have changed the analysis. Treat this page as historical context and verify the current Code before relying on a specific rule.

Common questions

Q: Could the judges release the gathered material to the interested requester?

A: The Committee said Canon 3(D)(3) required them to refrain from the requested release of information obtained while discharging disciplinary duties.

Q: Could the judges provide the same information to the professional-conduct committee?

A: The opinion said they could provide relevant information to the Arkansas Supreme Court Committee on Professional Conduct in their judicial discretion.

Background and rules framework

The Committee interpreted then-current Canon 3(D), which addressed judges' responses to information indicating lawyer misconduct, and Canon 3(D)(3), concerning acts undertaken in discharging disciplinary responsibilities. It expressly left statutory disclosure questions unresolved.

Citations and references

• Arkansas Code of Judicial Conduct Canon 3(D) and Canon 3(D)(3).
• Arkansas Freedom of Information Act, mentioned but not interpreted.

See also

No sibling opinions yet indexed.

Source

• Landing page: https://jddc.arkansas.gov/opinions/opinion-no-00-09/

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

October 3, 2000

Advisory Opinion# 2000-09

Honorable Robert W. Garrett

Saline County Chancery Judge

P.O. Box 404

Benton, AR 72018

Honorable Gary M. Arnold

Saline County Courthouse

200 North Main Street

Benton, AR 72015

Honorable Grisham Phillips

Saline County Courthouse

200 North Main Street

Benton, AR 72015

Dear Judges:

Your letter of August 18, 2000 asked whether you may release certain information based on a written request from a member of the Arkansas Bar. The information sought includes documents, correspondence and exhibits of any kind involving an investigation into allegations of professional misconduct by attorney Doyle Webb.

Canon 3(D) of the Arkansas Code of Judicial Conduct requires that a judge who has received information indicating a substantial likelihood that a lawyer has violated the Rules of Professional Conduct take appropriate action. With knowledge that the violation raises a substantial question as to the lawyer's honesty, trustworthiness or fitness as an attorney, the judge shall communicate with the lawyer or report the information to the Arkansas Supreme Court Committee on Professional Conduct. Pursuant to your ethical obligation you may have assembled information relevant to professional misconduct.

Canon 3(D)(3) goes on to state: "Acts of a judge in the discharge of disciplinary responsibilities . . . are part of a judge's judicial duties and shall be absolutely privileged . . . . " In our opinion, this clear language requires you to refrain from releasing, upon request from an interested party, information that you may have obtained.

We note that the Commentary to Canon 3(D) states: AAppropriate action may include direct communication with the judge or lawyer who has committed the violation, other direct action if available, and reporting the violation to the appropriate authority or other agency or body.@ The clear intent of this language is that you are permitted, in your professional and judicial discretion, to provide all relevant information to the Supreme Court Committee on Professional Conduct.

We have no authority to interpret the Arkansas Freedom of Information Act or other statutes. But the Code of Judicial Conduct does not permit disclosure, in this format, of the materials gathered in the course of your disciplinary duties.

Sincerely,

Howard W. Brill

For the Committe