JOHN SKYLAR (SKY) TAPP, ARKANSAS BAR NO. 76123, APPELLANT
STARK LIGON, EXECUTIVE DIRECTOR OF THE ARKANSAS SUPREME COURT COMMITTEE ON PROFESSIONAL CONDUCT, APPELLEE
APPEAL FROM THE ARKANSAS SUPREME COURT COMMITTEE ON PROFESSIONAL CONDUCT, PANEL A. NO. CPC-12-45.
Jeff Rosenzweig, for appellant.
Stark Ligon, Committee on Professional Conduct, for appellee.
JIM HANNAH, Chief Justice.
Appellant, John Skylar Tapp, appeals from the order of Panel A of the Arkansas Supreme Court Committee on Professional Conduct (the " Committee" ) finding him in violation of Rules 1.7(a), 1.9(a), and 8.4(a), (c), and (d) of the Arkansas Rules of Professional Conduct (2011), suspending his license to practice law for ninety days, and ordering him to pay a fine of $10,000. On appeal, Tapp contends that a suspension under the facts of this case is excessive and, therefore, this court should reduce the suspension to a lesser penalty.
The underlying facts and procedural history are set forth by the Committee in its Hearing Findings and Order:
The formal charges of misconduct upon which this Findings and Order is based were developed from information provided to the Committee by Nita Bargen of Hot Springs on April 3, 2012. The information related to the representation of Ms. Bargen in 2006 by [Tapp], an attorney practicing primarily in Hot Springs, Garland County, Arkansas. On August 9, 2012, [Tapp] was served with a formal complaint, supported by an affidavit from Bargen, to which [Tapp] filed an answer. Rebuttal was filed. The case proceeded to ballot vote. The Panel B decision was communicated to Tapp, who requested a public hearing.
The hearing was conducted before Panel A on July 19, 2013, in Little Rock. The hearing panel consisted of Panel A members Danyelle Walker (Chair), Jerry Pinson, Steven Shults, Michael Boyd, Helen Herr, Panel B member Mark Limbird, and Panel D member Laura Partlow. Limbird and Partlow served in place of Panel A members Benton Smith and Elaine Dumas who were unavailable for the hearing. Stark Ligon represented the Office of Professional Conduct. Jeff Rosenzweig represented Sky Tapp.
The facts, as pled, in summary are that in 2002, K.S. was born to Nita Bargen in Kansas. Jason Schmidt is the father. Bargen and Schmidt later lived together in Garland County until they separated in January 2006. Later that month, represented by attorney Tracy Turner, Bargen filed suit as Garland Circuit 26DR-2006-101, seeking a determination of paternity declaring
Schmidt, to whom she had never been married, to be the father of K.S., and seeking support and other relief. Schmidt answered, by attorney Lance Garner, admitting paternity and seeking custody of K.S.
On April 6, 2006, Bargen, stating she was seeking more aggressive representation, consulted with Hot Springs attorney Sky Tapp, and revealed much of her confidential information related to Jason Schmidt to him, especially personal financial matters. Bargen retained Tapp in the Schmidt case with an $1,800 retainer fee payment. Shortly thereafter, Bargen changed her mind, notified Tapp she would not be using him as her lawyer in the Schmidt case, asked for and on May 26, 2006, received a statement, a check from Tapp for a $1,432.25 fee refund, and obtained her file.
Continuing with Turner as her lawyer, on March 13, 2007, an Agreed Order was entered establishing Schmidt's paternity of K.S. and setting a hearing for August 30, 2007, on all other issues. A hearing on October 29, 2007, resulted in the court requesting additional financial information from Schmidt and his businesses, to be filed by May 15, 2008. On June 17, 2008, an Agreed Order was entered fixing child support and finding there was no current arrearage.
On April 27, 2009, Schmidt substituted John Howard as his counsel, replacing Lance Garner. Bargen then filed for contempt against Schmidt, alleging unpaid child support. That issue was dealt with in an Agreed Order filed September 10, 2010, finding Schmidt owed Bargen $2,476. In December 2010, through Howard, Schmidt filed an ex parte emergency petition seeking custody of K.S. An Agreed Order was entered December 30, 2010, with Joe Churchwell now representing Bargen, continuing the hearing set for that date, and asking for appointment of an attorney ad litem. Schmidt was again ordered to provide his financial information by January 30, 2011.
On August 9, 2011, Churchwell filed a Motion for Body Attachment, alleging Schmidt had failed to deliver his 2010 tax returns and financial information, pursuant to an Order filed July 11, 2011. Howard was permitted to withdraw as Schmidt's counsel on March 9, 2012, and was replaced by Sky Tapp as Schmidt's new lawyer.
On March 20, 2012, Tapp filed a Motion for New Hearing and for other relief for Schmidt. On March 30, 2012, Churchwell filed a Motion to Disqualify Tapp as Schmidt's attorney in the Bargen case, claiming Tapp had a conflict under Arkansas Rules of Professional Conduct 1.7 and 1.9, based [on] his representation of Bargen in 2006 in the same matter. Tapp disputed the motion to disqualify. Churchwell then obtained from Bargen her copy of Tapp's office file on his contact with and employment by Bargen in April--May 2006.
After a hearing on April 30, 2012, the trial court, Judge Marcia Hearnsberger, granted the motion, stating there was a clear conflict as to Tapp, and entered its Order on May 17, 2012, disqualifying Tapp and any of his practice partners or associates from representing Schmidt in the Bargen case.
In his Answer to the Committee Complaint, Tapp stated (1) he never signed or authorized the May 26, 2006 billing given to Bargen; (2) the handwritten notes in the " Bargen" file were not his handwriting; (3) he did not have any discussions in April--May 2006 with Bargen about Jason Schmidt, paternity, or child ...