A Guide to the Arkansas Rules of Professional Conduct

An Overview of the Arkansas Rules of Professional Conduct

Widely recognized as the cornerstone of ethical legal practice in the state, the Arkansas Rules of Professional Conduct are the exclusive set of rules enacted by the Supreme Court of Arkansas. In practical terms, the Rules exist to provide a clear standard for all attorneys to follow and are applicable in the many facets of the profession – including conduct between attorneys, attorneys and clients, attorneys and the courts, and more. As a legislative mandate, the Rules apply to all attorneys in Arkansas, including those with reciprocity to practice law in the state.
The importance of the this governing document therefore cannot be overstated, as they work to prevent unethical behavior, protect the interests of the courts, and safeguard the clients whose cases the court evaluates and decides . And while the Supreme Court of Arkansas may clarify the Rules any time in response to legal trends, changes in the legal system, or other factors, the Rules are relatively unchanged compared with similar rules in other states – including neighboring states.
Section 1 of the Arkansas Rules of Professional Conduct is applicable to all the following categories: Because these categories all have a stake in both the administration and application of the law, the Rules exist to standardize expectations across disciplines. That leads to better practices at the level of legal professionals, and ultimately presents a law system to the public that is more ethical and fair.
Unfortunately, failure to abide by the Rules may open the door for disciplinary action against those responsible, whether that may be an attorney or a firm. Again, because of the importance of the Rules, individual states take serious the health of the bar, itself, and therefore will not hesitate to act against an attorney who has violated the instructions laid out within the rules.

Fundamental Principles and Duties

At the core of the Arkansas Rules of Professional Conduct are principles that embody integrity, honesty, and civility. From the very first rule of the Arkansas Rules of Professional Conduct (hereinafter "ARPC"), lawyers are held to a stringent standard of honesty and integrity in dealing with clients, the public, and the profession as a whole. At the same time, ARPC requires lawyers to maintain the highest ethical standards in confidentiality and avoid conflicts of interest.
Honesty and Integrity
The duty to be honest and to act with integrity permeates the ARPC. Rule 3.3(a)(1) requires a lawyer to "not knowingly make a false statement of fact or law to a tribunal" and Rule 4.1(a) requires a "lawyer to be truthful when dealing with others." ARPC Rule 8.4(c) states: "It is professional misconduct for a lawyer to: . . . engage in conduct involving dishonesty, fraud, deceit or misrepresentation." While it is certainly no surprise that the ARPC incorporates a duty to deal openly and honestly with clients, opposing counsel, and the court, it is important for lawyers to understand that such duties should not just notes to be followed in "big-ticket" litigation matters, but practiced daily in the course of doing business. For example, a lawyer who has a case in which there is no basis for standing to sue should not nonetheless file a "shotgun" complaint in hopes of drawing a response that provides a basis for standing. Likewise, responding to interrogatories by providing the opposing party with information that the lawyer is aware is not true and instead providing information it expects will lead to settlement can be a violation of the duty to be honest. While most of us know such conduct does not pass the "straight-face test," the truth is some lawyers do not follow the rules.
Confidentiality
Arkansas Rule of Professional Conduct 1.6 governs confidentiality and states: "A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent." The version of Rule 1.6 adopted in Arkansas in 2003 included a change from the ABA Model Rules. Formerly, a lawyer’s duty of confidentiality was broader than a duty of privilege. The change adopted by the Arkansas Supreme Court made these two concepts co-existent. In other words, if a lawyer is prohibited from revealing information related to the representation of the client, and then attempts to disclose such information under the guise of "privilege," the lawyer finds himself with a conflict as to his ethical responsibilities. What this means is a lawyer must be certain that a communication qualifies for a privilege before disclosing it to someone other than the client.
Conflicts of Interest
Rule 1.7 of the ARPC provides that attorneys cannot represent two clients that have an interest directly adverse unless: (1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client; (2) the representation is not prohibited by law; (3) the representation does not involve the assertion of a claim by one client against the other client represented by the lawyer in the same litigation, and (4) each affected client gives informed consent, confirmed in writing. Rule 1.9(a) provides that a lawyer shall not represent a client in the same or a substantially related matter in which the new client’s interest are materially adverse to the former client unless the former client gives informed consent, confirmed in writing.

Significant Rule Changes and Revisions

The Arkansas Supreme Court amended several Rules of Professional Conduct in 2021. In March, we posted about the changes to Rules 1.05 and 1.09. Rule 1.04 also underwent revisions. That amendment places a duty on attorneys not to disclose the confidential information of former clients. However, per comment [2], an attorney representing an organization and its constituents under Rule 1.13(a) is still authorized to "inform a constituent who is an employee of the organization that the organization’s representation by the lawyer has ended."
Rule 4.5(b) was replaced with a new Rule 5.5. The new rule revises ABA Model Rule 5.5 to more closely track the model rule, including prohibiting attorneys from practicing law in Arkansas when the attorney is not eligible to practice in Arkansas. In paragraph (e) the rule allows attorneys not admitted to practice in Arkansas to provide "services in Rhode Island, Kansas, Ohio, Kentucky and Wyoming if they are authorized to do so in those states." According to the Court, the states have entered into a reciprocal agreement whereby attorneys licensed in those states are authorized to represent clients in Arkansas. It should be noted that this agreement will only apply until August 1, 2021. After that date, the rule institute will appear before the Court to revisit whether the rule should be made permanent. That means it is possible that the so-called "Reciprocal Rule" will be repealed or made less restrictive in August of this year.
Rule 8.3 was amended to permit attorney discretion when reporting the misconduct of other attorneys. The old rule allowed a non-reporting attorney to cite a local or national ethics hotline for guidance on whether or not to report another attorney, but that loophole was cut by the new rule which incorporates both ethical duty and professional judgment into the reporting decision. The Court explained that the old rule was so broadly worded and so absolute that it compelled attorneys to report all violations of the Rules of Professional Conduct without regard to the type of misconduct involved. That changed with the revision of Comment 2 which now states that Rule 8.3(a) "does not require reporting misconduct when information is protected by Rule 1.6 or Rule 1.9(c)." The Court also added new Comment 4 which provides a "safe harbor" for attorneys who are "unsure whether certain conduct constitutes ‘misconduct’ because the Rules of Professional Conduct do not clearly establish the standards of performance required of members of the bar." In these cases, "conduct inconsistent with the new rule is ‘misconduct’ only if the attorney, upon reasonable inquiry, is unable (or unwilling) to form a rational legal analysis of the issue." Therefore, under the new rules, if there is an "honest difference of opinion" about whether misconduct occurred, the attorney is not ethically required to report it.
Last, the Court adopted Subchapter J ("Pro Bono Responsibility") of the ABA Model Rules of Professional Conduct. This new section of the RPC requires attorneys to provide legal services without expectation of "substantial recompense" and without any expectation of payment for the lawyer’s services when certain conditions are met.

The Consequences of Rule Breaches

Violations of the ARPC can result in discipline by the Supreme Court. Only the Supreme Court has the authority to impose discipline for a violation of a rule. The rules may also provide for discipline by other agencies or associations.
The Arkansas Supreme Court Committee on Professional Conduct has the following objectives: The Committee accepts and investigates complaints against lawyers based on ethical complaints and allegations. Complaints are not confidential. Lawyers have the right to respond to the accusations.
The Committee conducts a preliminary investigation into the allegations. This investigation will include a response to the allegations by the accused lawyer. Following the investigation the Committee will issue a private reprimand or a recommendation for formal disciplinary proceedings.
If the Committee recommends formal proceedings C.P.C. Docket No. ____________ will be issued. Such a docket number is a public record, and the disciplinary charges are public information. If the Committee finds probable cause for a violation a full hearing will be conducted. The hearing will be conducted under the Arkansas Rules of Civil Procedure as well as the Arkansas Rules of Evidence.
The hearing officer will issue findings of fact, conclusions of law and recommendations for sanctions. The findings, conclusions and recommendations will be made on the basis of a preponderance of the evidence. The findings, conclusions and recommendations will be sent to the Commission, Supreme Court and the subject lawyer. The lawyer has an opportunity to respond. The sanction to be recommended depends on the gravity of the misconduct. Sanctions range from a written reprimand to disbarment.
A lawyer may appeal a final decision of the Committee to the Arkansas Supreme Court. In such an event the filing of a notice of appeal is necessary.

Attorney Resources

In addition to the Supreme Court Justices and their staff, many resources are available to Arkansas attorneys to help them navigate the complex landscape of the Rules of Professional Conduct. The Arkansas Supreme Court now has a website dedicated to the Arkansas Rules of Professional Conduct, which includes comparisons to the two earlier versions that were amended in 1994 and 2010 and to the American Bar Association Model Rules of Professional Conduct. The "Arkansas Advisory Committee Comment" to each ABA Model Rule is also available, as is an explanation of why the Arkansas Supreme Court enacted the 2013 Rules of Professional Conduct . The Arkansas Bar Association offers trainings on the Rules of Professional Conduct and Legal Ethics for Practice Groups and with area unemployed lawyers at various times of the year. The Arkansas Judiciary provides a handbook, "Principles of Professional Conduct – A Handbook for Attorneys Admitted in Arkansas." The Office of Professional Conduct of the Arkansas Supreme Court has a twenty-four hour ethics helpline attorneys can contact with questions about the Rules of Professional Conduct at 1-800-411-7073. Live and on-demand continuing legal education programs focusing on the Rules of Professional Conduct are also periodically offered.

Ethical Dilemmas: Case Studies

To illustrate the Arkansas Rules of Professional Conduct in action, consider these examples:
A lawyer representing a domestic violence victim fails to appear at a protective order hearing. The protective order is denied due in part to the absence of the victim’s attorney. Concurrently, another attorney represents his political supporter in a criminal case. Due to the politics of the case, the political donor wants to testify against the defendant. The other lawyer, aware of the testimony that would be given, never tells his political supporter that his testimony would be harmful to his person and livelihood. The patron is eventually acquitted. The former patron brings suit against the politician’s former lawyer for the damages suffered. Can the attorney be held accountable?
From the example above, let’s consider the ethical issues potentially involved. In ABA Model Rule 1.3, entitled Exerting Diligence and Zeal on Behalf of the Client, it states a lawyer shall act with reasonable diligence and promptness in representing a client. Here, the lawyer did not show up to protect the interest of the client. The client was not even aware that they had a court hearing scheduled that could result in their abuser being able to have contact with them. Furthermore, the lawyer failed to inform the client of the situation and its potential consequence. In addition, this specific lawyer failed to abide by Arkansas Rule 1.4, which is further discussed below, by failing to communicate the status of the case with the client. Because of the lawyer’s neglect, they may not receive the statute of limitations benefit for the claim. Finally, because the lawyer failed to inform the client of the risk the patron’s testimony could be used to harm him, the lawyer has potential civil liability since this violates ABA Model Rule 1.4(c) which reads, "(a) a lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information; (b) a lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation."
Now, let’s turn to the second example.
An attorney is sued for malpractice. During the discovery process, the attorney is asked by the opposing attorney for his DISCUS information and whether or not he has a pet. The attorney refuses to answer the request for the DISCUS information as well as the question about the pet.
In this situation, the attorney is prohibited from disclosing any information in the DISCUS report. According to Arkansas Rule 1.6, the attorney is shielded by confidentiality rules. Furthermore, it is unethical for an attorney to refuse to answer a question. That attorney is then potentially violating Arkansas Rule 3.4(d).
In the first example, since the attorney willfully violated the Rules Of Professional Conduct the attorney should expect to be disciplined. In Example Two, since the attorney is not allowed to give out that information, the attorney is not liable for refusing to give it. Since neither attorney is providing good representation the client should seek a replacement attorney.

The Function of the Arkansas Bar Association

The Arkansas Bar Association plays an integral role in promoting adherence to the Arkansas Rules of Professional Conduct. As the primary professional organization for attorneys across the state, it offers numerous resources and support services that help ensure both individual responsibility and collective compliance with these ethical mandates.
Through its comprehensive website, the Bar Association provides a wealth of information about the Rules, along with access to invaluable educational opportunities. Regular programs and training sessions are held to ensure that attorneys are not only aware of the specific rules to which they are expected to adhere, but also have the tools to comply with those obligations. The association also works closely with the Arkansas Judiciary and the Arkansas Supreme Court Committee on Professional Conduct to provide updates about any changes or revisions to the Rules and address any issues that may arise pertaining to their interpretation or enforcement.
When ethical dilemmas do occur , the Bar Association is readily available to advise its members. Its ethics hotline provides immediate assistance to Arkansas attorneys who may have questions about where they stand in relation to the Rules, so as to enable them to better determine appropriate courses of action and avoid potential accusations of disciplinary procedures or other ethical violations. There is also a formal hotline for people who are in need of legal assistance, which operates Monday through Friday and is manned by trained lawyers.
In addition, the Arkansas Bar Association is involved in several committees that are dedicated to continuing legal education, ethics and professional responsibility. These committees study, review and recommend updates to the Rules based on the evolving nature of technology and business practice, so as to ensure that the ethical standards for attorneys are kept consistent with other areas of the legal field. The work of these committees, and the strong commitment to ethical practices conveyed by the Bar Association, serve as a strong reminder that attorneys across the state are part of a collective commitment to principled legal conduct.