{ "id": 1897033, "name": "Richard ATKINSON v. Floyd J. LOFTON, Circuit Judge", "name_abbreviation": "Atkinson v. Lofton", "decision_date": "1992-11-09", "docket_number": "91-191", "first_page": "56", "last_page": "61", "citations": [ { "type": "official", "cite": "311 Ark. 56" }, { "type": "parallel", "cite": "842 S.W.2d 425" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "387 A.2d 1101", "category": "reporters:state_regional", "reporter": "A.2d", "case_ids": [ 8076812 ], "weight": 2, "year": 1978, "pin_cites": [ { "page": "1105" } ], "opinion_index": 0, "case_paths": [ "/a2d/387/1101-01" ] }, { "cite": "306 Ark. 596", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1900988 ], "weight": 10, "year": 1991, "pin_cites": [ { "page": "607" }, { "page": "199" }, { "page": "608" }, { "page": "200" }, { "page": "606-07" }, { "page": "199" } ], "opinion_index": 0, "case_paths": [ "/ark/306/0596-01" ] }, { "cite": "299 Ark. 103", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1888426 ], "weight": 2, "year": 1989, "opinion_index": 0, "case_paths": [ "/ark/299/0103-01" ] }, { "cite": "300 Ark. 426", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1886832 ], "weight": 2, "year": 1989, "opinion_index": 0, "case_paths": [ "/ark/300/0426-01" ] } ], "analysis": { "cardinality": 547, "char_count": 10884, "ocr_confidence": 0.913, "pagerank": { "raw": 6.150903500765714e-08, "percentile": 0.3823439127146023 }, "sha256": "6abb7daf5461be0d70d6999cdcf6581befa8e3b4af265915c57e157af15caac0", "simhash": "1:87f3d5775febd98d", "word_count": 1856 }, "last_updated": "2023-07-14T21:22:33.473421+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Richard ATKINSON v. Floyd J. LOFTON, Circuit Judge" ], "opinions": [ { "text": "Donald L. Corbin, Justice.\nAppellant, Richard Atkinson, appealed his citation and conviction of contempt by Judge Floyd Lofton. We remanded for an evidentiary hearing. The evidentiary hearing was stayed until after the trial of Kenneth Ray Clements, the defendant in the case leading to Mr. Atkinson\u2019s contempt citation and conviction, to avoid any possible prejudice to Mr. Clements. On May 29, 1992, an evidentiary hearing was held before the Honorable Fred D. Davis, III, Circuit-Chancery Judge. The case is now ready for our consideration. Our jurisdiction is proper pursuant to Ark. Sup. Ct. R. 29(l)(h).\nOn April 23, 1991, appellant, Richard Atkinson, was appointed by the Honorable Floyd Lofton, Circuit Judge, to assist Kenneth Suggs in the representation of Kenneth Clements in his retrial for capital murder in the shooting death of police officer Ray Noblett. Judge Lofton was assigned to the case following the recusal of the Faulkner County judges. The trial was scheduled for June 24, 1991, only sixty days away. At a pretrial hearing on June 17,1991, Atkinson moved for a continuance of the June 24 trial date. Atkinson cited the voluminous nature of the discovery materials and his inability to sufficiently review this material in order to ready and properly present a defense for Mr. Clements by June 24. Judge Lofton held Mr. Atkinson and Mr. Suggs in contempt, removed them both from the case, and fined them each $1,000.00 holding they were negligent in failing to prepare the case and get ready for trial.\nOn appeal, appellant cites two points for reversal. They are: (1) the contempt conviction should be reversed because Atkinson never received proper notice, opportunity to defend or fair hearing as required under federal and state due process and fair trial guarantees; and (2) the evidence cannot sustain a finding of contempt of court under any formulation. We find the evidence cannot sustain a finding of contempt of court and reverse on this ground, therefore we need not address appellant\u2019s first argument.\nSUFFICIENCY OF THE EVIDENCE\nIn a review of a case of criminal contempt, we view the record in the light most favorable to the trial judge\u2019s decision and sustain that decision if supported by substantial evidence. McCullough v. Lessenberry, 300 Ark. 426, 780 S.W.2d 9 (1989); Lilly v. Earl, 299 Ark. 103, 771 S.W.2d 277 (1989). In a related case, the defendant, Kenneth Ray Clements, appealed the removal of Richard Atkinson as his attorney. Clements v. State, 306 Ark. 596, 817 S.W.2d 194 (1991). In Clements, we found the removal of Mr. Atkinson as Mr. Clements\u2019 attorney improper and said: \u201cwe find no support in the record for the trial court\u2019s discharge of Mr. Atkinson.\u201d Id. at 607, 817 S.W.2d at 199. Since we set out the entire record colloquy pertaining to Mr. Atkinson\u2019s motion for continuance in Clements, we do not find it necessary to repeat that information here, although it is necessary for purposes of our decision. As noted in Clements, the court did not actually grant or deny Mr. Atkinson\u2019s motion for continuance, instead, the court asked another attorney, Mr. Hartenstein, whom the court had just assigned to help Mr. Suggs and Mr. Atkinson prepare for trial if he could represent Mr. Clements. After a brief recess for Mr. Hartenstein to consult his calendar, Mr. Hartenstein stated he could accept the appointment, although there was no way he could be ready for trial on June 24 as originally scheduled. Whereupon the court relieved Mr. Atkinson and Mr. Suggs, held them both to be negligent in failing to prepare the case and get ready for trial, held them both in contempt and assessed a fine of a thousand dollars each. The judge also forced Mr. Clements into a catch-22 position where he was compelled to \u201caccept new, unrequested counsel in order to gain a continuance or proceed immediately to trial against the advice of his . . . attorney.\u201d Clements, 306 Ark. at 608, 817 S.W.2d at 200.\nThere is no doubt the discovery in the Clements case was voluminous and the record reflects that Mr. Atkinson made a good faith effort to digest the material before the June 24 trial date. As Mr. Hartenstein noted during the pre-trial hearing, the transcript from the previous trial alone was sixteen (16) volumes and there were several boxes full of discovery material. At the evidentiary hearing, Mr. Atkinson testified in detail about the extent of the discovery material and the time he spent working on Mr. Clements\u2019 case up to the pre-trial hearing. The discovery material consisted of about twenty (20) volumes of grand jury transcripts, approximately eight (8) hours of audiotape, and over one thousand (1000) pages of other material in addition to the transcript from the previous trial. Discovery material was being given to Mr. Atkinson by the prosecutor\u2019s office in stages as they were able to prepare it. Mr. Atkinson had received the last installment of discovery material only four (4) days prior to the pre-trial hearing. Mr. Atkinson, who is a sole practitioner, had been working on Mr. Clements\u2019 case almost exclusively for over forty (40) hours a week for approximately seven weeks reviewing the material he received through discovery and conducting his own investigation when the pre-trial hearing took place. Mr. Atkinson felt he was not able to spend the time reviewing the material and developing his case that was necessary for his client\u2019s best interest. Therefore, he appropriately asked the trial court for a continuance.\nJudge Lofton never asked Mr. Atkinson if he would go to trial on June 24th if his motion for a continuance were overruled, nor did Judge Lofton actually rule on the motion, although Judge Lofton did say at one point during the hearing \u201c [i] f I have to give you a continuance, I\u2019m going to find you ill prepared and relieve you from the case and you will not try it at all. I\u2019ll get somebody else to do it.\u201d We held Mr. Atkinson\u2019s removal from the case was improper in Clements, 306 Ark. 596, 817 S.W.2d 194. However this is not dispositive of the contempt conviction because as we noted in Clements, \u201c[g]ross incompetence or physical incapacity of counsel, or contumacious conduct that cannot be cured by a citation for contempt may justify the court\u2019s removal of an attorney.\u201d Clements, 306 Ark. at 606-07, 817 S.W.2d at 199 (quoting Harling v. United States, 387 A.2d 1101, 1105 (1978)). Therefore implying problems with counsel that can be cured by a citation for contempt do not justify the court\u2019s removal of an attorney. Thus, our decision in Clements that removal of Mr. Atkinson as counsel was improper is not dispositive of the propriety of the contempt citation and conviction.\nDuring the hearing on the motion for continuance, the following exchange occurred between Mr. Atkinson and Judge Lofton:\nMR. ATKINSON: [T]here is no way that defense can be readied and properly presented fairly for this man on the twenty-fourth.\nTHE COURT: If that is so, Mr. Atkinson, then the Court will have no choice but to find you negligent and in contempt, and so with Mr. Suggs, because you represented to this Court that you could and would get ready. I sent notices out to you. You both concurred in this trial date. And all I hear you saying is that, \u201cWe\u2019ve sat on our fanny and not done anything about this and we want a continuance.\u201d But you can\u2019t tell me what it is you want to do. And you have no assurance \u2014 I have no assurance that if I give you another thirty days you\u2019ll do any more than you have in the last sixty.\nWhen Mr. Atkinson pursued his motion for continuance, continuing to cite the volume of material and his inability to adequately review it in the provided time, Judge Lofton said \u201c[i]f I have to give you a continuance, I\u2019m going to find you ill prepared and relieve you from the case and you will not try it at all. I\u2019ll get somebody else to do it.\u201d Shortly thereafter, Judge Lofton asked Mr. Hartenstein if he would be able to represent Mr. Clements. Mr. Hartenstein replied there was no way he could represent him by the 24th, Judge Lofton replied he wasn\u2019t asking about the 24th and Mr. Hartenstein replied he would accept appointment if the court wanted to appoint him. After a brief recess for Mr. Hartenstein to consult his calendar, the following occurred:\nTHE COURT: All right. Mr. Atkinson, the motion before the Court is for a continuance. I\u2019ve asked Mr. Hartenstein if he can accept an appointment.\nMr. Hartenstein, can you?\nMR. HARTENSTEIN: Yes, your Honor.\nTHE COURT: You\u2019re relieved Mr. Atkinson. Do you want to be relieved?\nMR. ATKINSON: No, your Honor.\nTHE COURT: Do you want to be relieved?\nMR. SUGGS: Yes, I do.\nTHE COURT: Ken Suggs and Richard Atkinson relieved, held to be negligent and failing to prepare case and get ready for trial, and held in contempt of Court and assessed a fine of a Thousand Dollars each to be paid within ten days unless a Notice of Intent to Appeal is filed. Ray Hartenstein and Blake Hendrix are appointed.\nBy implication, it could be said the court granted the continuance because Judge Lofton relieved Mr. Atkinson from the case after having said \u201c[i]f I have to give you a continuance, I\u2019m going to find you ill prepared and relieve you from the case.\u201d However, we found in Clements there was no ruling on the motion and we still find there was no clear ruling on the motion. Since there was no ruling, there was no opportunity for Mr. Atkinson to comply with the court\u2019s ruling before being found in contempt.\nWe do not find any indication in the record Mr. Atkinson had not been spending enough time working on the case as the trial judge apparently understood him to be saying. Every indication in the transcript of the hearing was that Mr. Atkinson had in fact been working on Mr. Clements\u2019 case and had been very busy doing so. An attorney has a duty to \u201cprovide competent representation to [his] client.\u201d Model Rules of Professional Conduct Rule 1.1 (1987). \u201cCompetent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.\u201d Id. In any event, it is improper for a judge to hold an attorney in contempt for simply asking for a continuance as appears to have occurred here. There is no evidence in the record Mr. Atkinson would have disobeyed the court\u2019s order and refused to try the case on the 24th if his continuance had been denied. The court\u2019s action in holding Mr. Atkinson in contempt for asking for a continuance was arbitrary and unacceptable.\nWe do not find any evidence supporting the judge\u2019s finding of contempt and, therefore, reverse and dismiss the case with prejudice.", "type": "majority", "author": "Donald L. Corbin, Justice." } ], "attorneys": [ "Jeff Rosenzweig, for appellant.", "Winston Bryant, Att\u2019y Gen., by: Brad Newman, Asst. Att\u2019y Gen., for appellee." ], "corrections": "", "head_matter": "Richard ATKINSON v. Floyd J. LOFTON, Circuit Judge\n91-191\n842 S.W.2d 425\nSupreme Court of Arkansas\nOpinion delivered November 9, 1992\nJeff Rosenzweig, for appellant.\nWinston Bryant, Att\u2019y Gen., by: Brad Newman, Asst. Att\u2019y Gen., for appellee." }, "file_name": "0056-01", "first_page_order": 80, "last_page_order": 85 }