In re Shepard

Cite as 2015 Ark. 93
SUPREME COURT OF ARKANSAS
No. CV-14-0366
IN RE Jerry Hudson SHEPARD, Jr., Opinion Delivered March 5, 2015
Application for Readmission to the
Arkansas Bar APPEAL FROM THE ARKANSAS
BOARD OF LAW EXAMINERS
PETITION DENIED.
KAREN R. BAKER, Associate Justice
Jerry Hudson Shepard, Jr., petitions this court for readmission to the Bar of Arkansas
following his voluntary surrender of his Arkansas law license in 2006. Because this case arises
under this court’s power to regulate the practice of law, our jurisdiction is proper pursuant
to Arkansas Supreme Court Rule 1-2(a)(5).
Shepard began practicing law in Arkansas in 1997. From 1997 until 2006, Shepard had
no disciplinary actions against him. On September 21, 2006, Shepard voluntarily surrendered
his license to practice law in Arkansas and this court accepted his voluntary surrender of
license on September 28, 2006.1 In re Jerry Hudson Shepard, No. 06-1084. Attached to
Shepard’s petition to surrender his license was a list of documents placed under seal.2
1
At the time of his surrender, Shepard was also licensed to practice law in Missouri.
He surrendered his Missouri license in 2006 and was formally disbarred by that jurisdiction
in 2007.
2
Those documents were: (1) Letter from Circuit Court Judge Alan Epley to the
Committee on Professional Conduct, dated August 23, 2006; (2) Petition for Immunity filed
on August 18, 2006, in State v. Allred; (3) Grant of Immunity and Order to Testify filed
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Shepard’s petition to surrender arose as a result of events that occurred during his
representation of a client, Richelle Allred. On or about July 13, 2005, Allred was charged
with first-degree murder, tampering with physical evidence, and obstruction of governmental
operations in connection with the death of David Harkrider.
On August 18, 2006, the Circuit Court of Carroll County granted Shepard immunity
from prosecution concerning the death of David Harkrider. The court also granted Shepard
immunity from “prosecution concerning the bribery of witnesses in this matter; the tampering
with witnesses in this matter; the intimidation of a witness in this matter; and the introduction
of unauthorized articles into the Carroll County Jail.” The grant of immunity arose after
Shepard refused to provide testimony to the prosecuting attorney regarding efforts to
intimidate George Felice, a potential witness in Allred’s murder trial, and efforts to bribe Billy
Garland to provide false exculpatory testimony on Allred’s behalf. According to a statement
Garland gave police, Allred offered him $10,000 “to lie for her” and “her lawyer called
[Garland],” because the lawyer “didn’t want [Allred] handing [Garland] the money and
advised that someone else would call [Garland].” In addition to Garland’s statement, Doug
Ray Smith told investigators that he went with Garland to meet someone in a WalMart
parking lot and that person gave Garland cash. According to the investigator’s report, Smith
advised that Garland “was in jail with a guy and he knew this girl who was the one who did
August 18, 2006, in State v. Allred; (4) Order to Seal filed August 18, 2006, in State v. Allred;
(5) Affidavit for Warrant of Arrest of Richelle Dawn Allred; (6) Affidavit of Warrant for
Arrest of Bruce E. Hale; (7) Letter from Charles M. Kester dated September 1, 2006. All of
these documents appear in the record for this case.
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it and [Garland] went down and spoke to her lawyer and made some statements and they paid
him $10,000.” The grant of immunity required Shepard to “take the necessary action to
voluntarily surrender his law license in both the State of Arkansas and the State of Missouri
within thirty (30) days of the entry of this order.”
Thereafter, on September 21, 2006, Shepard petitioned this court to surrender his
license. In his petition, Shepard admitted that he had “engaged in conduct that is a direct and
serious violation of Arkansas Rule 8.4(b) (criminal act), 8.4(c) (conduct involving dishonesty),
and 8.4(d) (conduct prejudicial to the administration of justice).” In addition, Shepard
admitted that his conduct was “of a felony nature” and was “clearly ‘serious misconduct’ as
defined in Section 17(B) of the Court’s Procedures Regulating Conduct of Attorneys at
Law.” Finally, he admitted that his conduct “clearly constitutes a ‘serious crime’ as defined
in Section 2(J) of the Procedures.” As previously stated, this court accepted his petition to
voluntarily surrender his license.
In September 2012, Shepard filed his application for readmission to the Bar of Arkansas
with the Executive Secretary for the Arkansas State Board of Law Examiners. In his
application, Shepard stated that he
surrendered [his] license as a result of having an inappropriate relationship with a client
who then attempted to bribe an individual she believed to be a witness. In addition,
[his] wife was hospitalized and diagnosed with multiple sclerosis, which confined her
to bed for the next six (6) months to a year. [He] was also caring for [their] four young
children, which created an environment in which the surrender of [his] law license
seemed like the best option for [his] family.
On August 19, 2013, the Executive Secretary forwarded Shepard’s application to the
Board’s then acting chairman for additional evaluation. In the letter, the Executive Secretary
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opined that “questions exist concerning Mr. Shepard’s eligibility for readmission to the Bar
of Arkansas,” and therefore, she referred his file to the chairman for “further action” in
accordance with Rule XIII of the Rules Governing Admission to the Bar of Arkansas. The
letter from the executive secretary stated that if the chairman determined that Shepard was
eligible for readmission then he would be “required to file a petition with the Supreme Court
seeking the Court’s approval as well, so any such determination by [the chairman] would not
be a final disposition.”
The following materials were provided to the chairman in addition to the executive
secretary’s letter: Shepard’s application and supporting documents; documents from Arkansas
and Missouri relating to Shepard’s surrender and disbarment; letters of reference supporting
Shepard’s readmission; letters opposing Shepard’s readmission; and a video-taped proffer of
Shepard’s testimony at the time he was granted immunity.
By letter dated September 5, 2013, the chairman informed the executive secretary that
he had reviewed Shepard’s application and determined that Shepard was “eligible for
readmission upon receiving a passing score on the Arkansas Bar Examination.” On
September 9, 2013, the executive secretary notified Shepard of the chairman’s decision. In
her letter to Shepard, the executive secretary stated that even if Shepard received a “passing
score on the February 2014 Bar Examination, he will still be required to file a motion with
the Supreme Court as set forth in paragraph 2 of Section G of Rule XIII.” Shepard
subsequently received a passing score on the February 2014 Arkansas Bar Examination.
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Shepard filed his petition for readmission with this court on April 25, 2014.
The standards governing readmission to the Bar are settled and include the principle
that the practice of law is a privilege and not a right. In re Petition for Reinstatement of Lee, 305
Ark. 196, 202, 806 S.W.2d 382, 385 (1991). A lawyer who has lost his or her license has the
burden of proof at the readmission hearing. Ark. Bar Adm. R. XIII; see also In re Madden,
2012 Ark. 279, at 8, 423 S.W.3d 39, 43. Once a lawyer has lost his or her license to practice
law, either through surrender or disbarment, there is a presumption against readmission. In
re Petition of Butcher, 322 Ark. 24, 28, 907 S.W.2d 715, 717 (1995). The overriding
considerations on the question of readmission are the public interest, the integrity of the bar
and the courts with due consideration to the rehabilitation of the petitioner with respect to
good moral character and mental and emotional stability. Madden, 2012 Ark. 279, at 8, 423
S.W.3d at 43 (citing In re Petition of Anderson, 312 Ark. 447, 452, 851 S.W.2d 408, 410
(1993)). A position of trust, and sometimes an actual fiduciary relationship, exists in an
attorney-client relationship. Butcher, 322 Ark. at 28, 907 S.W.2d at 718. For our legal system
to function properly, a client must be able to have trust in his or her counsel, and it is the
responsibility of this court to assure that the public can maintain that trust in the Bar. Id.
Amendment 28 to the Arkansas Constitution expressly gives this court the authority
to regulate the practice of law. See Ark. Const. amend. 28 (“The Supreme Court shall make
rules regulating the practice of law and the professional conduct of attorneys at law.”). The
purpose of the amendment is to protect the public and to maintain the integrity of the courts
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and the honor of the profession. Anderson, 312 Ark. at 452, 851 S.W.2d at 410. This court
has the inherent power to discipline an attorney. Id. The protection of the public and the
honor and integrity of the profession have long been the principal criteria in determining
whether a person should be admitted or readmitted to the bar. Redden v. Ark. State Bd. of Law
Exam’rs, 371 Ark. 584, 269 S.W.3d 359 (2007). This court gives due consideration to an
applicant’s rehabilitation. Anderson, 312 Ark. 447, 851 S.W.2d 408.
Section 24 of the Arkansas Supreme Court Procedures Regulating Professional
Conduct of Attorneys at Law provides as follows:
A. No attorney who has been disbarred or who has surrendered his or her law license
in this State shall thereafter be readmitted to the Bar of Arkansas except upon
application made to the State Board of Law Examiners in accordance with the Rules
Governing Admission To The Bar, or any successor rules, and the approval of the
Arkansas Supreme Court.
B. Provided, however, that application for readmission to the Bar of Arkansas shall not
be allowed in any of the following circumstances:
(1) A period of less than five (5) years has elapsed since the effective date of the
order of disbarment or surrender;
(2) The disbarment or surrender resulted from conviction of a Serious Crime
in any jurisdiction, unless the Serious Crime was an offense for which the
culpable mental state was that of negligence or recklessness; or
(3) Any of the grounds found to be the basis of a disbarment or any grounds
presented in a voluntary surrender of law license are of the character and nature
of conduct that reflects adversely on the individual’s honesty or trustworthiness,
whether or not the conviction of any criminal offense occurred.
Ark. Sup. Ct. P. Regulating Prof’l Conduct § 24 (2011).
There is no dispute that five years have elapsed since the effective date of this court’s
order granting Shepard’s petition to voluntarily surrender his license on September 28, 2006.
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In addition, there is no dispute that Shepard’s voluntary surrender of his license did not result
from conviction of a crime. However, Shepard admitted that his conduct constituted a
criminal act, in violation of Arkansas Rule of Professional Conduct 8.4(b), involved
dishonesty, in violation of Rule 8.4(c), and was prejudicial to the administration of justice, in
violation of Rule 8.4(d). Rule 8.4(b) provides that it is professional misconduct to “commit
a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a
lawyer in other respects.” Rule 8.4(c) provides that it is professional misconduct for a lawyer
to “engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.” Finally,
Rule 8.4(d) states that “[i]t is professional misconduct for a lawyer to . . . engage in conduct
that is prejudicial to the administration of justice.” We cannot overlook the fact that in his
petition to surrender his license, Shepard admitted that his conduct reflected adversely on his
honesty, trustworthiness, or fitness to practice law, that his conduct was dishonest and that his
conduct was prejudicial to the administration of justice.3 Section 24.B.3 prohibits readmission
of an attorney where the basis for the attorney’s voluntary surrender involves conduct that
reflects adversely on the individual’s honesty, regardless of whether a criminal conviction arose
from that conduct.
When this court construes a court rule, we use the same means and canons of
construction that we use to interpret statutes. In considering the meaning and effect of a
3
In addition to the conduct that precipitated the grant of immunity in exchange for his
testimony, Shepard admitted that he had engaged in an “inappropriate” sexual relationship
with Allred.
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statute or rule, we construe it just as it reads, giving the words their ordinary and usually
accepted meaning in common language. Jonesboro Healthcare Ctr., LLC v. Eaton-Moery Envtl.
Servs., Inc., 2011 Ark. 501, at 3, 385 S.W.3d 797, 799. The plain language of section 24.B.3
states that an attorney is not eligible for readmission where any of the grounds “presented in
a voluntary surrender of law license are of the character and nature of conduct that reflects
adversely on the individual’s honesty or trustworthiness, whether or not the conviction of any
criminal offense occurred.” Thus, the question before this court is whether the grounds
presented in Shepard’s voluntary surrender of his law license bar his readmission. We
conclude that they do. By his own admission, Shepard’s conduct involved dishonesty and was
prejudicial to the administration of justice. We do not need to examine Shepard’s
rehabilitation efforts because rehabilitation is pertinent only when an attorney is eligible for
readmission. See, e.g., In re Haynes, 2013 Ark. 102, at 7, 426 S.W.3d 411, 415 (finding that
the attorney had presented sufficient proof of rehabilitation after concluding that the attorney
was eligible for readmission).
Shepard admitted in his petition to surrender his license that his conduct reflected
adversely on his honesty, trustworthiness, or fitness to practice law, that his conduct was
dishonest and that his conduct was prejudicial to the administration of justice and, therefore,
he is ineligible for readmission based on the plain language of section 24.B.3. This is true
regardless of whether a conviction for any criminal offense occurred as a result of his conduct.
Ark. Sup. Ct. P. Regulating Prof’l Conduct § 24.B.3.
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Petition denied.
Special Justice TIMOTHY GAUGER joins in this opinion.
GOODSON, J., not participating.
Stuart Vess, for petitioner.
Nancie M. Givens, Executive Director, Office of Professional Programs, for respondent.
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