FROM THE CARROLL COUNTY CIRCUIT COURT [CR2015-136] HONORABLE
C. SCOTT JACKSON, JUDGE
K. Crow, for appellant.
Rutledge, Att'y Gen., by: Kristen C. Green, Ass't
Att'y Gen., for appellee.
COURTNEY HUDSON GOODSON, Associate Justice
Phillip Floyd appeals from the Carroll County Circuit
Court's order disqualifying his lawyer, Gerald K. Crow,
because Crow had previously served in a judicial capacity in
the criminal proceedings. Because we agree that Crow's
participation in the case was personal and substantial, we
affirm the circuit court's order removing him as
appeal in this case stems from the underlying criminal
charges against Floyd for one count of rape. On August 5,
2014, when Crow was a circuit judge, he authorized the
issuance of an arrest warrant for Floyd. On October 6, 2014,
the State filed charges against Floyd, and on October 15,
2014, Crow presided over Floyd's plea-and-arraignment
hearing. At that hearing, Floyd was represented by Brian
Rabal. Floyd entered a plea of not guilty, and Crow set the
trial for July 15, 2015. Crow left his position as circuit
judge on December 31, 2014.
21, 2015, Crow entered an appearance as an attorney for
Floyd, and on July 22, 2015, he filed a waiver of conflict
signed by Floyd. On July 27, 2015, Rabal filed a motion to
withdraw as counsel, noting that Floyd had "terminated
his relationship with counsel and ha[d] retained the services
of Gerald K. Crow to represent him in this matter."
28, 2015, the circuit court held a hearing, and the State
made a motion to disqualify Crow based on his former
participation in the case as a judge. The State argued that
Crow's acts of signing the affidavit of probable cause
for the arrest warrant and presiding over Floyd's
plea-and-arraignment hearing constituted substantial
participation in the case, and consequently Rule 1.12 of the
Arkansas Rules of Professional Conduct disqualified Crow from
the representation unless both parties gave written, informed
consent. The State refused to give its consent. Floyd argued
that the rule did not apply because the acts were not
substantial in that they were administrative or ministerial
and did not affect the merits of the case. The circuit court
ruled that Crow was prohibited from representing Floyd, and
Floyd has appealed from that order. This appeal is proper as
an interlocutory appeal from an order disqualifying counsel.
Samontry v. State, 2012 Ark. 105, 387 S.W.3d 178. We
review a circuit court's decision to disqualify an
attorney under an abuse-of-discretion standard. Id.
circuit court found that Crow was disqualified pursuant to
Rule 1.12 of the Arkansas Rules of Professional Conduct,
which states, "[A] lawyer shall not represent anyone in
connection with a matter in which the lawyer participated
personally and substantially as a judge or other adjudicative
officer or law clerk to such a person or as an arbitrator,
mediator or other third-party neutral, unless all parties to
the proceeding give informed consent, confirmed in
writing." The circuit court found that Crow had
participated substantially in the case by signing the
affidavit for arrest and presiding over the plea and
arraignment hearing, and that although Floyd had given
written consent, the State refused to do so. Floyd argues
that the circuit court abused its discretion in disqualifying
his lawyer because Crow's participation was not
substantial as it did not affect the merits of his case, and
accordingly, the State's consent was not required.
caselaw is clear that the bar for disqualifying a lawyer is
high because "[a] litigant, of course, is entitled to
counsel of its own choosing." Saline Memorial Hosp.
v. Berry, 321 Ark. 588, 906 S.W.2d 297 (1995). We have
stated that disqualification is a drastic measure to be
imposed only where clearly required by the circumstances.
Burnette v. Morgan, 303 Ark. 150, 794 S.W.2d 145
(1990). As we stated in Burnette, "We must
never forget that a disqualification, though aimed at
protecting the soundness of the attorney-client relationship,
also interferes with, or perhaps destroys, a voluntary
relationship by depriving a litigant of counsel of his own
choosing-oftentimes affecting associations of long
standing." Id. at 155, 794 S.W.2d at 148.
However, we have also recognized that "the presumption
in favor of a party's choice of counsel may be overcome
by the demonstration of an actual conflict of interest or by
a showing of a serious potential for conflict."
held that the Arkansas Rules of Professional Conduct apply to
disqualification proceedings. Norman v. Norman, 333
Ark. 644, 970 S.W.2d 270 (1998). Rule 1.12 states that a
lawyer is precluded from representing anyone in a matter in
which the lawyer participated "personally and
substantially" as a judge. Rule 1.0 states,
"'Substantial' when used in reference to degree
or extent denotes a material matter of clear and weighty
importance." The comments to Rule 1.12 provide
additional guidance, indicating that a judge is not precluded
from representation if the judge's previous participation
was a "remote or incidental administrative
responsibility that did not affect the merits." Ark. R.
Prof'l Cond. 1.12 cmt 1.
case, Crow's participation in issuing the arrest warrant
and presiding over the plea and arraignment hearing was
substantial because both qualify as matters of clear and
weighty importance. To issue the arrest warrant, Crow was
required to determine that the affidavit in support
demonstrated reasonable grounds that Floyd had committed the
offense in question. Ark. Code Ann. § 16-81-104 (Repl.
2005). When a judge wholly fails to undertake an analysis of
whether the affidavit establishes reasonable cause for the
arrest, the arrest warrant is invalid. See,
e.g., Stewart v. State, 289 Ark. 272, 711
S.W.2d 787 (1986). Thus, contrary to Floyd's assertion,
the issuance of the arrest warrant was not a mere remote or
incidental administrative responsibility; rather, Crow was
required to weigh the merits in his consideration of the
Crow's participation as the judge in the
plea-and-arraignment hearing is a matter of clear and weighty
importance and cannot be considered merely an administrative
responsibility. We have held that a criminal defendant has a
right to an arraignment hearing. Hamm v. State, 365
Ark. 647, 232 S.W.3d 463 (2006). Additionally, Crow was
required to act in his official judicial capacity in
presiding over the plea-and-arraignment hearing - not in an
administrative capacity. See Mississippi Comm'n on
Judicial Performance v. Atkinson, 645 So.2d 1331 (Miss.
1994) (lawyer's participation as a judge was substantial
where the judge's action in his judicial capacity was
required to perform the action); see also Boldridge v.
State, 289 Kan. 618, 215 P.3d 585 (Kan. 2009) (holding
that a lawyer was disqualified from representation in a
criminal case when he had previously authorized the issuance
of subpoenas for evidence used in the case).
final point, Floyd also argues that the State failed to
establish any prejudice from Crow's representation; but
as we have previously noted, the Rules of Professional
Conduct do not require a finding of prejudice, and we have
declined to adopt such a requirement. Burnette, 303
Ark. at 156, 794 S.W.2d at 148. Accordingly, the State was
not required to establish any prejudice from Crow's
representation of Floyd. Because Crow previously participated
in the case personally and substantially as a judge, Rule
1.12 applies, and the State's consent was required before
he could participate as a lawyer. Thus, the circuit court did
not abuse its discretion in disqualifying him from
and Hart, JJ., dissent.
W. Brill, Chief Justice, concurring.
concur with the majority, but write to express an additional
reason for the result.
first generally recognized ethical standards for lawyers were
the Canons of Professional Ethics. Adopted by the American
Bar Association in 1908 and later approved by the Arkansas
Supreme Court, the forty-seven Canons governed Arkansas
lawyers until 1970. After the American Bar Association
approved the Model Code of Professional Responsibility, this
court adopted that Code as the new governing standard for
Arkansas attorneys. See In re Standards of Prof'l
Conduct of Atty's at Law, No. 69-5161 (Ark. Feb. 23,
1970) (per curiam); see also Edward L. Wright,
The Code of Professional Responsibility: Its History and
Objectives, 24 Ark. L. Rev. 1 (1970). Expressing in
general terms the standards of professional conduct expected
of lawyers in their relationships with the public and with
the legal system, Canon 9 of the Code stated, "A lawyer
should avoid even the appearance of impropriety."
1983, as criticism of the Code increased, the American Bar
Association approved a significantly different approach in
the Model Rules of Professional Conduct. The Model Rules, as
amended, were adopted by this court, to be effective January
1, 1986. See In re Ark. Bar Ass'n: Petition for the
Adoption of Model Rules of Prof'l Conduct, 287 Ark.
495, 702 S.W.2d 326 (1985) (per curiam). Significantly, the
rules excluded any reference to the appearance-of-impropriety
concept. See id. The concern of the drafters was
that this concept was too imprecise to give guidance to
attorneys and too vague to be a basis for professional
the appearance-of-impropriety standard was resurrected in
First American Carriers, Inc. v. Kroger Co., 302
Ark. 86, 787 S.W.2d 69 (1990). The principle of avoiding the
appearance of impropriety was forcefully reasserted in
Burnette v. Morgan, 303 Ark. 150, 156, 794 S.W.2d
145, 148 (1990): "[The principle] is a rock in the
foundation upon which[are]built the rules guiding lawyers in
their moral and ethical conduct. This is a factor that should
be considered in any instance where a violation of a
rule of professional conduct is at issue." Subsequent
decisions affirmed that the principle is applicable in
disqualification matters. See Norman v. Norman, 333
Ark. 644, 970 S.W.2d 270 (1998); McAdams v.
Ellington, 333 Ark. 362, 970 S.W.2d 203 (1998);
Berry v. Saline Mem'l Hosp., 322 Ark. 182, 907
S.W.2d 736 (1995).
when the next major revision of the ethical standards was
undertaken, the drafting committee of the Arkansas Bar
Association recommended that the principle be codified by
expressly placing it in the official comments. This court
approved that recommendation when it adopted the new Arkansas
Rules of Professional Conduct effective May 1, 2005. See
In re Ark. Bar Ass'n-Petition to Revise the Ark. Rules of
Prof'l Conduct, 361 Ark. App'x 451 (2005) (per
curiam); Ark. R. Prof'l Conduct 1.7, cmt. 37 ("As an
integral part of the lawyer's duty to prevent conflict of
interests, the lawyer must strive to avoid not only
professional impropriety, but also the appearance of
impropriety."). Perhaps more significantly, the Preamble
to the Arkansas Rules of Professional Conduct states that
"[t]his obligation should be considered in any instance
where a violation of the Rules of Professional Conduct [is]
at issue. The principle pervades these Rules and embodies
their spirit." Ark. R. Prof'l Conduct pmbl., cmt.
case, Judge Crow issued the arrest warrant, and he presided
over the arraignment. For him to now represent the defendant
would appear to a reasonable person to be improper. Our case
law and our rules of professional conduct remind lawyers to
be mindful of their duty to avoid even the appearance of
impropriety. For all these reasons, I concur in the
majority's decision to affirm the circuit court.
R. Baker, Justice, dissenting.
respectfully dissent from the majority's decision because
the circuit court clearly abused its discretion in
disqualifying Crow from the representation of Floyd.
Specifically, the circuit court abused its discretion in
finding that Crow substantially participated, as required for
disqualification pursuant to Rule 1.12(a) of the Arkansas
Rules of Professional Conduct, in the issuance of the arrest
warrant and the plea-and-arraignment hearing.
regard to the arrest warrant, the majority relies on Ark.
Code Ann. § 16-81-104 and correctly states that
"[t]o issue the arrest warrant, Crow was required to
determine that the affidavit in support demonstrated
reasonable grounds that Floyd had committed the offense in
question." However, despite the correctness of this
statement, I am mindful of United States Supreme Court
precedent regarding an issuing magistrate's involvement
in the issuance of the arrest warrants:
Pursuant to the United States Supreme Court's holding in
Shadwick v. City of Tampa, 407 U.S. 345, 92 S.Ct.
2119, 32 L.Ed.2d 783 (1972), for a warrant to be valid, the
issuing officer must meet two tests: "He must be neutral
and detached, and he must be capable of determining whether
probable cause exists for the requested arrest or
search." Id. at 350, 92 S.Ct. 2119. The Court
further explained that neutrality and detachment require
"severance and disengagement from activities of law
enforcement." Id. In addition, there must be a
lack of "direct, personal, substantial, pecuniary
interest" in the issuance of the warrant. Connally
v. Georgia, 429 U.S. 245, 250, 97 S.Ct. 546, 50 L.Ed.2d
444 (1977). If the issuing magistrate does not meet the
constitutional mandate of being neutral and detached, the
warrant is invalid. Coolidge v. New Hampshire, 403
U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971).
Davis v. State, 367 Ark. 341, 344–45, 240
S.W.3d 110, 112–13 (2006). Thus, despite the
requirements of Ark. Code Ann. § 16-81-104, Crow was
required to be "neutral and detached" and lack
"direct, personal, substantial, pecuniary interest"
in the issuance of the arrest warrant. Because Crow was
required to be neutral and detached, his participation in the
issuance of the arrest warrant was not substantial and the
circuit court clearly abused its discretion by disqualifying
Crow on this basis.
Further, I must also dissent from the majority's holding
that Crow's participation as the presiding judge in the
plea-and-arraignment hearing amounted to substantial
participation and thus disqualified Crow from the
representation of Floyd. The entirety of the
plea-and-arraignment transcript is as follows:
[Judge Crow]: All right. Phillip Floyd, CR2014-136. Mr. Floyd
is present before the Court ...