The Arkansas Supreme Court Committee on Professional Conduct and the U.S. District Court for the Eastern 1

District of Arkansas.

CERTIFIED MAIL - RETURN RECEIPT REQUESTED

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

NO. 07-8003 AND NO. 07-8007

IN RE JAMES W. STANLEY, MEMBER OF THE BAR

Before KASOLD, HAGEL, and MOORMAN, Judges.

O R D E R

PER CURIAM: Before the Court is the question of whether the conduct of James W.

Stanley, an attorney and member of the Court's bar, violated the Court's Rules of Admission and

Practice (Rules) and, if so, what, if any, discipline should be imposed. Mr. Stanley has been

provided notice of the disciplinary action recommended by this Court's Committee on Admissions

and Practice and has responded thereto. Although he denies any wrongdoing, Mr. Stanley requests

that the Court extend its May 11, 2007, nondisciplinary suspension of his privilege to practice until

pending administrative actions regarding discipline imposed by the Department of Veterans Affairs

(VA) and his application for reinstatement to practice before the Social Security Administration are

resolved. The Court will terminate the May 11, 2007, nondisciplinary suspension and will impose

reciprocal discipline for professional misconduct for Mr. Stanley's suspension from practice before

the Social SecurityAdministration and forthe revocation of his accreditation byVA. The Court will

also impose public reprimands for Mr. Stanley's failure to notify the Court of his suspension from

practice before the Social Security Administration and for the unauthorized practice of law before

this Court during the period when he was suspended from practice before this Court.

I. FACTS

A. Background

Mr. Stanley has been subject to reciprocal discipline by at least two jurisdictions, as well as 1

a temporary nondisciplinary suspension by this Court. These actions were the result of the
With respect to the Social Security Administration action, Mr. Stanley was suspended after one level of 2

administrative review. See 20 C.F.R. § 404.1765(a) (2006) ("If the Deputy Commissioner for Disability and Income

Security Programs . . . does not take action to withdraw the charges within 15 days after the date on which the

representative filed an answer, [the Social Security Administration] will hold a hearing and make a decision on the

charges."); 20 C.F.R. § 404.1775(a) (2006) ("After the hearing officer issues a decision, either the representative or the

other party to the hearing may ask the Appeals Council to review the decision."). 

VA cancelled Mr. Stanley's accreditation in accordance with the VA regulations in effect at the time of the

cancellation. Those regulations provided, in relevant part:

(e) As to cancellation of accreditation [for demanding or accepting unlawful compensation for

preparing, presenting, prosecuting, or advising or consulting, concerning a claim], upon receipt of

information from any source indicating failure to meet the requirements of [38 C.F.R.] § 14.629

[governing accreditation of attorneys], improper conduct, or incompetence, the Regional Counsel of

jurisdiction shall initiate an inquiry into the matter.

. . . .

(2) If the result of the inquiry justifies further action, the Regional Counsel shall take the

following action:

. . . .

(ii) As to agents or attorneys, inform the General Counsel of the result of the inquiry

and notify the agent or attorney of an intent to cancel accreditation. The notice will

also state the reason(s) for the impending cancellation and inform the party of a

right to request a hearing on the matter or to submit additional evidence within 10

working days of receipt of such notice. Such time may be extended for a reasonable

period upon a showing of sufficient cause.

. . . .

(f) If a hearing is requested, a hearing officer will be appointed by the Director of the regional office

involved. . . . The hearing officer shall submit the entire hearing transcript, any pertinent records or

information, and a recommended finding to the Regional Counsel within 10 working days after the

close of the hearing. The Regional Counsel will immediately forward the entire record to the General

Counsel for decision.

38 C.F.R. § 14.633 (2001).

2

suspension from or the revocation of his right to practice before two administrative agencies: An

October 10, 2001, action by VA canceling Mr. Stanley's accreditation to provide legal representation

in VA proceedings, and a May 22, 2006, suspension of Mr. Stanley's privilege to provide legal

representation before the Social Security Administration. Both the revocation and the suspension

were imposed after hearings in which Mr. Stanley participated. Mr. Stanley did not report either 2

of these actions to the Court. 

VA determined that Mr. Stanley had charged and received illegal fees from four veterans in

that he charged them fees for representation before VA prior to the first final decisions on their
At all times relevant to VA's disciplinary action, 38 U.S.C.§ 5904 provided in pertinent part that 3

in connection with a proceeding before the Department with respect to benefits under laws

administered by the Secretary, a fee may not be charged, allowed, or paid for services of agents and

attorneys with respect to services provided before the date on which the Board of Veterans' Appeals

first makes a final decision in the case. 

38 U.S.C. § 5904(c)(1) (2000). In 2006, the law was changed to permit a representative to charge a fee for representation

after the filing of a Notice of Disagreement and prior to the first final Board decision. See Pub. L. No. 109-461, § 101,

120 Stat. 3405-08 (2006); 38 U.S.C. § 5904(c)(1).

 The correspondence that VA sent to the Arkansas Supreme Court Committee on Professional Conduct reflects 4

that VA had reason to believe that, notwithstanding the cancellation of his accreditation, Mr. Stanley was "attempting

to continue to represent VA claimants." Letter from Assistant Gen. Counsel, Dep't of Veterans Affairs, to Executive Dir.,

Arkansas Supreme Court Comm. on Prof'l Conduct (June 13, 2005) [hereinafter VA Letter]. VA advised that it was

providing the information "for any action [the Committee on Professional Conduct] deem[ed] appropriate." Id.

3

claims from the Board of Veterans' Appeals (Board). In addition to being the basis for revocation 3

of accreditation under 38 U.S.C.§ 5904, charging an illegal fee is punishable as a misdemeanor. See

38 U.S.C. § 5905. Mr. Stanley appealed that decision to the Board, and Mr. Stanley has not

informed the Court whether the matter has been resolved. 

The Social Security Administration found that Mr. Stanley had collected and retained fees

in violation of the Administration's rules, had deceived or knowingly misled his client about her

benefits or other rights under the Social Security Act, and had knowingly made false or misleading

statements of material fact concerning fee matters within the Administration's jurisdiction. Mr.

Stanley was suspended from representing claimants before the Social Security Administration for

five years. The Appeals Council for the Social Security Administration affirmed the suspension.

Mr. Stanley has exhausted his right to appeal the Social Security Administration action, culminating

in a decision by the U.S. Court of Appeals for the Eighth Circuit affirming a district court's dismissal

of his action challenging the Social Security Administration's decision. See Stanley v. Astrue,

298 Fed. Appx. 537, 2008 WL 4394251 (8th Cir. [Sept. 30,] 2008) (per curiam).

B. Disciplinary Actions Based on Revocation of VA Accreditation and 

Suspension of Privilege To Practice Before the Social Security Administration

1. The Arkansas Supreme Court Committee on Professional Conduct

On June 13, 2005, the Arkansas Supreme Court Committee on Professional Conduct was

advised of the action taken by VA. The same office was advised of the action taken by the Social 4

Security Administration on June 2, 2006. Based on these notifications, a panel of the Arkansas
4

Supreme Court's Committee on Professional Conduct ordered, pursuant to Arkansas rules governing

professional conduct providing for reciprocal discipline, that Mr. Stanley be suspended from the

practice of law in Arkansas for a period of five years, commencing April 24, 2007. Mr. Stanley did

not inform the Court of this suspension, nor did he advise the Court of the underlying VA and Social

Security Administration actions. As described later in this opinion, this Arkansas suspension was

ultimately rescinded.

2. The U.S. District Court for the Eastern District of Arkansas

On June 22, 2007, the U.S. District Court for the Eastern District of Arkansas issued an en

banc decision suspending Mr. Stanley from practice before that Court. In doing so the district court

imposed reciprocal discipline, suspending Mr. Stanley from practice before it for five years

beginning April 24, 2007, based solely on the action of the Arkansas Supreme Court Committee on

Professional Conduct. Mr. Stanley did not inform the Court of this suspension. As described later,

this suspension was also ultimately rescinded. 

3. The U.S. Court of Appeals for Veterans Claims

On May 11, 2007, based on its own reciprocal discipline rules and Mr. Stanley's suspension

from practice by the Arkansas Supreme Court Committee on Professional Conduct, the Social

Security Administration, and VA, the Court issued an order under docket number 07-8003 referring

the matter to a panel of the Court and imposing on Mr. Stanley a temporary nondisciplinary

suspension from practice before the Court until those panel proceedings concluded. U.S. VET. APP.

R. ADM. & PRAC. R. 4(c), (7)(d)(1). That order also noted that Mr. Stanley had failed to inform the

Court of the Federal administrative and Arkansas State actions asrequired byRule 4(c) of the Court's

Rules. On August 17, 2007, this Court issued a clarifying order proposing reciprocal discipline and

also including the discipline imposed by the U.S. District Court for the Eastern District of Arkansas.

The matter was referred to the U.S. Court of Appeals for Veterans Claims Committee on Admission

and Practice on January 11, 2008. See U.S. VET. APP. R. ADM. & PRAC. R. 2(b). 

While this matter was pending before the Court, the Clerk of the Court (Clerk) became aware

that, after the May 11, 2007, order of temporary suspension, Mr. Stanley filed documents with the

Court, and that Mr. Stanley's former clients–ostensibly acting pro se– also filed documents with the

Court that appeared to have been prepared by Mr. Stanley. For administrative purposes, that matter

was assigned docket number 07-8007. On February 12, 2008, that matter was referred to the same
5

panel for consideration, which, in turn, on April 1, 2008, referred both matters to the Committee on

Admission and Practice for investigation, hearing, and recommendation.

4. Reinstatement of Mr. Stanley by the Arkansas Supreme Court and by the

U.S. District Court for the Eastern District of Arkansas

On June 19, 2008, the Arkansas Supreme Court, based on the specific language in the

Arkansas rules regulating attorney conduct, found that that court's Committee on Professional

Conduct had exceeded its authority by ordering reciprocal discipline on the basis of Mr. Stanley's

suspension from practice by the Social Security Administration and of the cancellation of his

accreditation by VA. That court held the April 24, 2007, order of suspension null and void and

reinstated Mr. Stanley's privilege to practice before Arkansas courts. The U.S. District Court for the

Eastern District of Arkansas likewise reinstated Mr. Stanley as a member of its bar.

C. Action by this Court's Committee on Admissions and Practice

Mr. Stanley did not request a hearing before the Court's Committee on Admission and

Practice (Committee). See VET. APP. R. ADM. & PRAC. R. 2(d)(3). In order to gather the necessary

additional facts, the Committee submitted extensive interrogatories and requests for production of

documents to Mr. Stanley. The Committee found that Mr. Stanley responded fully to these requests.

U.S. Court of Appeals for Veterans Claims Comm. on Admission and Practice, Report, Findings &

Recommendations (Nov. 18, 2008) at 2 (regarding proposed discipline of James W. Stanley, member

of the bar, Nos. 07-8003 & 07-8007) (Committee Report). 

Based on Mr. Stanley's response to the interrogatories and on information provided by the

Court, the Committee found that the facts presented three issues: (1) Whether Mr. Stanley should

be disciplined reciprocally pursuant to Rule 7(a)(2) of the Court's Rules on the basis of the asserted

professional misconduct giving rise to either the suspension imposed by the Social Security

Administration or the cancellation of his accreditation to practice before VA, or both; (2) whether

Mr. Stanley should be disciplined for his apparent violations of Rule 4(c)(1)(A), in particular, the

requirement that a practitioner who has been subject to public discipline for professional misconduct

notify the Court of such discipline; and (3) whether Mr. Stanley should be disciplined for engaging

in the unauthorized practice of law in violation of Rule 5.5 of the American Bar Association's

(ABA's) Model Rules of Professional Conduct (Model Rules) while suspended from practice before
 The Model Rules have been adopted by the Court as "the disciplinary standard for practice" before the Court. 5

U.S. VET. APP. R. ADM. & PRAC. R. 4(a). 

See U.S. VET. APP. R. ADM. & PRAC. R. 4(b) (defining "professional misconduct"). 6

See U.S. VET. APP. R. ADM. & PRAC. R. 7(a)(2)(A), (B), (C). 7

6

this Court. Committee Report at 1-2. The Court concludes that the Committee has accurately stated 5

the three issues before the Court.

The Committee made the following findings and recommendations:

1. On the question of whether the Court should administer reciprocal discipline based on Mr.

Stanley's five-year suspension from practice before the Social Security Administration and the

revocation of his accreditation to practice before VA, the Committee found that

(a) both VA and the Social Security Administration had reached final decisions that

Mr. Stanley had committed professional misconduct; 

(b) the actions for which Mr. Stanley was disciplined by VA and the Social Security

Administration–improperly collecting clients' fees and misleading them as to their

rights and benefits, and making false and misleading statements to them–was

professional misconduct under the Court's Rules of Admission and Practice; and, 6

(c) there is no evidence in the record demonstrating the existence of any of the three

exceptions to the administration of reciprocal discipline contained in Rule 7(a)(2).7

Committee Report at 6-7. As a result of these findings, the Committee recommended that Mr.

Stanley be suspended from the practice of law before this Court for a period of five years nunc pro

tunc beginning on May 22, 2006, the date of his suspension by the Social Security Administration.

Committee Report at 7.

2. On the question of whether Mr. Stanley should be disciplined for failure to notify the Clerk

of either his five-year suspension by the Social Security Administration or the revocation of his

privilege to practice before VA, or both, the Committee found that

(a) the discipline imposed by both the Social Security Administration and VA was

public discipline; 

(b) the discipline imposed by both entities was for professional misconduct; and
7

(c) Mr. Stanley did not comply with Rule 4(c)(1)(A), which requires him to report

such action. 

Committee Report at 9. Based on these findings, the Committee recommended that the Court

impose a public reprimand for Mr. Stanley's failure to comply with Rule 4(c)(1)(A), but that the

Court not impose any additional suspension beyond that recommended under issue one. The

Committee based this recommendation in large part on a finding that Mr. Stanley "appears genuinely

to have believed, albeit mistakenly, that Rule 4(c)(1)(A) was inapplicable" to these disciplinary

actions. Id.

3. On the question of whether Mr. Stanley engaged in the practice of law before this Court

while under an order of suspension, the Committee found that

(a) during the period he was suspended from practice before this Court, Mr. Stanley

engaged in the practice of law before this Court by preparing a response to the

designation of record in one case; and

(b) Mr. Stanley's acts of preparing other documents, filing them with the Court, and

advising clients either occurred prior to his suspension or were de minimis in nature.

Committee Report at 11. Based on these findings, the Committee recommended that Mr. Stanley

receive a public reprimand for engaging in the unauthorized practice of law, but that the Court not

impose any additional suspension beyond that recommended under issue one. Committee Report

at 12. The Committee submitted its report to the panel of the Court on November 18, 2008, and the

report was provided to Mr. Stanley for comment. 

D. Mr. Stanley's Rebuttal to the Committee Report

Mr. Stanley submitted a rebuttal to the Court on December 24, 2008. With regard to issue

one above, Mr. Stanley argues that because the mattersfor which he was disciplined amount to a fair

dispute over fees owed under a fee agreement, the alleged wrongdoing does not constitute

professional misconduct; the disciplinary actions taken by the Social Security Administration and

VA were excessive; and the five-year suspension recommended by the Committee is too severe.

Rebuttal of James W. Stanley to Committee Report (Dec. 24, 2008) at 3-4 (Rebuttal). He also notes

that he has an active appeal before the Board of the revocation of his VA practice privileges and has
8

applied to the Social Security Administration for reinstatement of his privilege to practice before that

Agency. Rebuttal at 4. 

With regard to issue two, Mr. Stanley argues that the disciplinary actions of the Social

Security Administration and VA are not reportable, nor is there a requirement that they be published.

He reasons that Rule 4(c)(1)(A) and Rule 12(b) read together define public discipline as only that

discipline that appears in a public order. He argues that because neither of the disciplinary actions

imposed by the Social Security Administration and VA were published, they were private actions

that he was not required to report to this Court. Rebuttal at 2-3. 

With regard to issue three, Mr. Stanley admits that preparing a response to a designation of

the record does qualify as providing legal advice, but argues that he did not violate the Court-ordered

suspension because he did not appear before the Court or file any pleadings with the Court in the

matter after his suspension. Rebuttal at 6-7. Mr. Stanley would have the Court define the "practice

of law" as "filing an appearance of record before a court in order to participate in court proceedings."

Rebuttal at 7.

Finally, Mr. Stanley asks the Committee to "take no action other than to continue the

Temporary Order of Suspension pending further documentation being submitted" regarding the

appeal of his VA revocation and the outcome of his application for reinstatement before the Social

Security Administration. Rebuttal at 9.

E. Mr. Stanley's Motion for Reconsideration

On June 15, 2009, in accordance with Rule 5(d), the Court issued a proposed opinion in this

matter and advised Mr. Stanley that he could file a motion for reconsideration within 21 days. On

July 2, 2009, Mr. Stanley submitted his motion for reconsideration, largely reiterating his previous

arguments. After careful consideration of his motion, the Court's final opinion remains largely

unchanged from its proposed opinion, save some clarifying statements.

II. ANALYSIS

To reach a conclusion on the matters before us, the Court must answer the following

questions: First, were the disciplinary actions imposed on Mr. Stanley "final" for purposes of Rule

7(a)(2)? Second, was Mr. Stanley the subject of "public discipline" under Rule 4(c)(1)(A)? Finally,
 In this case, these procedures included providing notice to Mr. Stanley of the evidence received; issuing a 8

temporary, nondisciplinary suspension from practice before the Court; issuing an order directing Mr. Stanley to show

cause why reciprocal discipline should not be imposed; referring the matter to the Committee; and permitting Mr. Stanley

to submit a rebuttal to the Committee Report. See generally U.S. VET. APP. R. ADM. & PRAC. R. 7; see also U.S. VET.

APP. R. ADM. & PRAC. R. 2(d) (General Rights of the Practitioner Concerned).

9

was Mr. Stanley engaged in the "practice of law" before this Court within the meaning of the Model

Rules of Professional Conduct? 

A. No. 07-8003: Reciprocal Discipline and Failure To Notify

1. Reciprocal Discipline

Rule 7(a) provides, in pertinent part: 

(2) Credible evidence of a final determination in another court or government entity

that a practitioner has committed and been disciplined for professional misconduct

is conclusive proof of that fact for purposes of a disciplinary proceeding in the Court

unless the Court determines, by clear and convincing evidence, that:

(A) The prior procedure was so lacking in notice or opportunity to be heard

that it constituted a deprivation of due process; or

(B) there was such an infirmity of proof as to the misconduct that the Court

could not, consistent with its duty, accept as final the conclusion on that

subject; or

(C) the imposition of discipline by the Court would result in a grave injustice.

U.S. VET. APP. R. ADM. & PRAC. R. 7(a)(2) (emphasis added). After the Court receives such

evidence, and after certain procedural actions take place, the Court may impose any reciprocal

8

discipline that it "determines is appropriate." Id. at R. 7(d)(3)(C). 

On the issue of reciprocal discipline, Mr. Stanley makes three arguments: First, he appears

to assert that the conduct that led to the cancellation of his accreditation by VA and his suspension

from practice before the Social Security Administration does not rise to the level of professional

misconduct; he characterizes the issues as mere "fee disputes." See Rebuttal at 3-5. Second, Mr.

Stanley contends that neither disciplinary action is "final" within the meaning of Rule 7(a). He states

that he has appealed the VA action to the Board, and that the matter remains pending. Rebuttal at

4. Similarly, he states that he has sought reinstatement before the Social Security Administration

and that no decision has been reached on his application for reinstatement. Id. Third, he contends
Mr. Stanley also appears to assert that, because neither the Social Security Administration nor VA can license 9

attorneys to practice law, neither Agency's disciplinary action is entitled to reciprocity in this Court. See Rebuttal at 1-2.

However, because the Court's Rules specifically include disciplinary action taken by "another court or government

entity," his argument is without merit. U.S. VET. APP. R. ADM. & PRAC. R. 7(a)(2) (emphasis added). 

 Under our Rules, the term "jurisdiction" includes government entities. See U.S. VET. APP. R. ADM. & PRAC.

10

R. 13(b) ("Notification to Other Jurisdictions. Following the issuance of an order imposing discipline, as prescribed in

Rule 5(e), and subject to subsection (d) below, the Clerk will promptly mail a certified copy of the order imposing public

discipline to another court or other governmental entity if there is reason to believe that the practitioner is admitted to

practice before that court or entity." (emphasis added)).

10

that the sanctions imposed by VA and the Social Security Administration were excessive in relation

to the nature of the violations. Rebuttal at 3-4. He argues that the Committee's recommended

sanction–a concurrent five-year suspension from the practice of law before the Court–is therefore

inappropriate and urges the Court to simply continue his temporary, nondisciplinary suspension and

not impose formal disciplinary action until each of the matters is final before the respective

agencies. Rebuttal at 6. 9

a. Professional Misconduct

Pertinent to the matters now before the Court, "professional misconduct" is defined as "an

act or omission that resulted in discipline by another jurisdiction at any time after the practitioner's

admission to practice before the Court." U.S. VET. APP. R. ADM. & PRAC. R. 4(b)(1)(B). VA

determined that Mr. Stanley had received illegal fees from veterans as payment for representation

before VA prior to the veterans' receiving final decisions on their respective claims from the Board.

The Social Security Administration found that Mr. Stanley had charged, collected, and retained fees

in violation of Agency rules; had deceived or knowingly misled his client about her benefits or other

rights under the Social Security Act; and had knowingly made false or misleading statements of

material fact concerning fee matters within the Social Security Administration's jurisdiction. Even

were the Court to agree with Mr. Stanley's characterization of his actions and of the disputes before

the Agencies as simple "fee disputes," there can be no doubt that his actions were acts or omissions

that "resulted in discipline by another jurisdiction," and therefore rise to the level of professional 10

misconduct under the Court's Rules. Id. 

b. Finality of Disciplinary Action Taken by "Another Court or Government Entity" 
11

The only remaining question to be answered in determining whether reciprocal discipline is

appropriate is whether the disciplinary actions taken by the Social Security Administration and VA

were final in May 2007 when the Court received notice of them. Rule 7 provides that, after the

Court receives credible evidence of final disciplinary action taken by another court or government

entity, the Clerk will, if the disciplinary action imposed is suspension or disbarment, immediately

impose on the disciplined practitioner a temporary, nondisciplinary suspension from practice before

the Court. U.S. VET. APP.R. ADM. &PRAC.R. 7(d)(1)(B). The matter is then referred to a panel of

judges for consideration. Id. The purpose of this provision is to protect from potential harm

appellants or petitioners with matters before the Court who are already represented by the disciplined

practitioner, or those who might seek to retain the disciplined practitioner's services in matters before

the Court, while the Court investigates the evidence of disciplinary action. See ABA STANDARDS

FOR IMPOSING LAWYER SANCTIONS III.A.1.1 (2005) (The purpose of lawyer discipline "is to protect

the public and the administration of justice from lawyers who have not discharged, will not

discharge, or are unlikely to properly discharge their professional duties to clients, the public, the

legal system, and the legal profession"). 

Mr. Stanley argues that a disciplinary action is not final until all avenues of appeal have been

exhausted, both administratively and judicially. If Mr. Stanley's definition of "final" is correct, the

carefully crafted procedural safeguards of Rule 7 would be inapplicable and irrelevant for possibly

many years after the Court first receives notice of another court's or government entity's disciplinary

action, during often lengthy administrative and judicial appeals. In the meantime, the disciplined

practitioner would remain free to represent appellants or petitioners before the Court, despite having

been found not to possess the requisite character to do so. The Court simply does not agree that such

a definition–one that would require the Court to accept such an infringement on its ability to regulate

the conduct of attorneys admitted to practice before it–is what is intended by the term "final" in this

context. 

The finality referred to in Rule 7 is the finality of the underlying disciplinary action.

Undoubtedly, then, the entity imposing the disciplinary action is the only arbiter of the finality of a

given disciplinary action. Moreover, an agency or disciplinary authority's determination that a

decision regarding disciplinary action is final generally corresponds to the effective date of the
12

sanction imposed. The Court's reliance on this date to determine finality for the purposes of the

Court's Rules ensures that the Court can balance its need to appropriately regulate its practitioners

with its duty to ensure that appellants or petitioners are protected from practitioners whose fitness

to practice before the Court has been called into question by actions in other courts or government

entities. Because a disciplinary action is not considered final under the Court's Rules where the

disciplining authority has not yet enforced the sanction, it follows that the Court cannot impose a

temporary suspension and begin its investigation of the practitioner where there is still a reasonable

possibility that the disciplining authority may not impose the sanction. Once the disciplining

authority carries out the sanction, however, the action is considered final, and the balancing of harms

weighs in favor of protecting appellants or petitioners. We think it clear, then, considering the

purpose of our rule, that any question regarding the finality of an underlying disciplinary action is

resolved by examining the pertinent rules or regulations governing the disciplining authority to

determine when the disciplinary action became final in the view of the disciplining authority. 

The relevant Social Security Administration's regulation provides that "[t]he hearing officer's

decision is final and binding unless reversed or modified by the Appeals Council upon review."

20 C.F.R. § 404.1770 (2006). The Social Security Administration also provides for suspension of

the imposition of a sanction should the practitioner appeal the hearing officer's decision. See

20 C.F.R. § 404.1790(c) (2008) ("If the Appeals Council affirms or changes a hearing officer's

decision, the period of suspension or the disqualification is effective from the date of the Appeals

Council's decision."). In the case of the Social Security action, then, Mr. Stanley's suspension was

final for the purposes of our Rules as of May 22, 2006, when the Appeals Council affirmed the

hearing officer's decision. Mr. Stanley's argument that the Social Security action is not final because

his application for reinstatement remains pending is therefore without merit. Because the Court was

notified of the Social Security action after it became final, it is within the Court's power to impose

reciprocal discipline for that action if it determines that such discipline is appropriate.

At the time of the VA action, the pertinent VA regulation in effect stated: "The decision of

the General Counsel is final. The effective date for termination of accreditation shall be the date
 The current regulation provides: 11

The decision of the General Counsel is a final adjudicative determination of an agency of original

jurisdiction and may be appealed to the Board of Veterans' Appeals. The effective date for cancellation

of accreditation or authority to provide representation on a particular claim shall be the date upon

which the General Counsel's final decision is rendered.

38 C.F.R. § 14.633(h) (2008). The Court also notes that, although the regulation did not expressly allow for an appeal

of the General Counsel's decision to the Board until 2008, the U.S. Court of Appeals for the Federal Circuit (Federal

Circuit) held in February 2005 that a VA decision to suspend or cancel a practitioner's accreditation is subject to review

by the Board. See Bates v. Nicholson, 398 F.3d 1355, 1365-66 (Fed. Cir. 2005). The Court acknowledges that Mr.

Stanley has appealed his case to the Board, and notes that the matter remains pending. However, his appeal is an

administrative remedy, and the Court has already determined that exhaustion of administrative remedies is not required

to render a disciplinary action "final" under our Rules.

13

upon which a final decision is rendered." 38 C.F.R. § 14.633(g) (2001). This means that the 11

cancellation of Mr. Stanley's accreditation was final as of October 10, 2001, when the General

Counsel affirmed the hearing officer's decision. Because the Court was notified of the VA action

after the action became final, it is within the Court's power to impose reciprocal discipline for that

action if it determines that such discipline is appropriate.

c. Imposition of Reciprocal Discipline as "Grave Injustice"

Having determined that Mr. Stanley committed and was disciplined for professional

misconduct and that both the Social Security Administration and VA actions were final

determinations, in accordance with Rule 7, the Court must now consider whether to impose

reciprocal discipline and, if so, what level of discipline is appropriate.

As noted above, Rule 7 provides that "[c]redible evidence of a final determination in another

court or government entity that a practitioner has committed and been disciplined for professional

misconduct is conclusive proof of that fact for purposes of a disciplinary proceeding in the Court"

unless there is clear and convincing evidence that either the "prior procedure was so lacking in notice

or opportunity to be heard that it constituted a deprivation of due process," or "there was such an

infirmity of proof as to the misconduct that the Court could not, consistent with its duty, accept as

final the conclusion on that subject," or "the imposition of discipline by the Court would result in

a grave injustice." U.S. VET. APP. R. ADM. & PRAC. R. 7(a)(2). 

Mr. Stanley appears to argue that the third of these exceptions applies to him, that is, that it

would result in a "grave injustice" if the Court were to impose the Committee's recommended
14

sanction of a five-year suspension from practice before the Court, to run concurrently with his

suspension from practice before the Social Security Administration. Rebuttal at 4; see also

Committee Report at 7. Although the Court may impose the discipline it considers "appropriate,"

U.S. VET. APP. R. ADM. & PRAC. R. 5(a), 7(d)(3)(C), including a sanction lesser than that imposed

by the entity levying the underlying discipline or than that recommended by the Committee, Mr.

Stanley does not explain how the imposition of the recommended suspension would be a grave

injustice. Instead, he merely contends that the sanctions levied by the Social Security Administration

and VA were excessive in relation to his conduct, ignoring the fact that the question of whether his

actions merited such disciplinary action by those Agencies is not before the Court. In fact, that

question is a matter left wholly to the discretion of the Agencies and is one that has been, at least in

the case of the Social Security action, exhausted both administratively and judicially. In the case of

the VA action, the matter is under administrative review pursuant to Mr. Stanley's right to appeal the

General Counsel decision under Bates, 398 F.3d at 1365-66, but that fact alone–particularly given

that VA has not suspended the cancellation of Mr. Stanley's accreditation while his appeal is

pending–does not render it a grave injustice for the Court to impose the sanction recommended by

the Committee. In the absence of any other argument on the matter, the Court concludes that the

imposition of discipline by the Court would not result in a grave injustice. U.S. VET. APP. R. ADM.

& PRAC. R. 7(a)(2)(C). 

d. Imposition of Reciprocal Discipline

As a consequence of the disciplinary actions taken against Mr. Stanley by the Social Security

Administration and VA, the Committee recommended that the Court suspend Mr. Stanley from the

practice of law before the Court for a period of five years, effective nunc pro tunc to May 22, 2006,

the date of his suspension from practice before the Social Security Administration. Committee

Report at 7. The Committee further recommended that the Court allow for the possibility of Mr.

Stanley's reinstatement "upon expiration of the five-year period or before upon application and,

together with other such evidence as the Court may wish to require, proof that [Mr. Stanley] has been

reinstated by the [Social Security Administration] or VA prior to the expiration of the five-year

period." Id. The Court has carefully considered the Committee's recommendation and will adopt

it as modified below.
 The length of Mr. Stanley's suspension from practice before the Court, then, is four years and 11 days. The 12

Court declines to make the suspension effective nunc pro tunc to May 22, 2006, because doing so might call into question

any practice before the Court in which Mr. Stanley engaged between May 22, 2006, and May 11, 2007, when his

temporary suspension from practice before the Court went into effect.

 At the time of the cancellation of Mr. Stanley's accreditation by VA, this rule appeared at Rule 10(a) of the 13

Court's Rules. See U.S. VET. APP. R. ADM. & PRAC. R. 10(a) (effective Aug. 1, 1992). Although its language differed

from that of the current Rule, it was, in substance, the same.

15

First, the Court will terminate the nondisciplinary suspension imposed on May 11, 2007.

Next, the Court has determined that, in light of the seriousness of the conduct underlying both the

Social Security Administration and VA actions, it is appropriate to suspend Mr. Stanley from

practice before the Court until May 22, 2011, the date on which his suspension from practice before

the Social Security Administration expires. U.S. VET. APP. R. ADM. & PRAC. R. 7(d)(3)(C). Mr. 12

Stanley may resume practice before the Court upon the expiration of this suspension "only after

filing with the Clerk an affidavit that he . . . has been reinstated by" the Social Security

Administration and VA. U.S. VET. APP. R. ADM. & PRAC. R. 11(a)(2). Along with that affidavit,

the Court will require Mr. Stanley to produce evidence of his completion–within the one year prior

to his application for reinstatement–of at least six hours of ethics training regarding, in particular,

the Model Rules of Professional Conduct. See U.S. VET. APP. R. ADM. & PRAC. R. 5(a)(1). If Mr.

Stanley desires to apply for reinstatement prior to the expiration of this suspension, he must submit,

along with the documentation described above regarding ethics training, evidence that he has been

reinstated to practice before both the Social Security Administration and VA.

2. Failure To Notify

Rule 4(c) of the Court's Rules of Admission and Practice provides:

(1) A practitioner must, not later than ten days after the occurrence, provide written

notification to the Clerk, to all clients presently represented before the Court, and to

all adverse parties in those cases of any of the following actions regarding that

practitioner:

(A) Public discipline for professional misconduct.

U.S.VET.APP.R.ADM.&PRAC.R. 4(c)(1)(A). As discussed above, the Court has determined that 13

the conduct for which Mr. Stanley was disciplined by the Social Security Administration and VA

constitutes professional misconduct. It is also undisputed that Mr. Stanley did not advise the Court
 The Privacy Act, 5 U.S.C. § 552a, provides, in pertinent part, that "[n]o agency shall disclose any record 14

which is contained in a system of records by any means of communication to any person, or to another agency, except

pursuant to a written request by, or with the prior written consent of, the individual to whom the record pertains," except

in certain enumerated circumstances. 5 U.S.C. § 552a(b). 

16

of his suspension from practice before the Social Security Administration or of the cancellation of

his accreditation by VA. However, Mr. Stanley asserts that he was not required to report either

action because neither action constitutes "public" discipline within the meaning of Rule 4. Rebuttal

at 2-3. Specifically, he argues that"[b]oth cases involved records of particular individuals that were

covered by the Privacy Act," that "Social Security procedures are not subject to disclosure," and 14

that "VA matters are likewise not subject to disclosure." Rebuttal at 2. He further argues that

"public" means "published in a newspaper of general circulation, . . . compiled in a legal journal, . . .

press release or any type of documentation that would have been available to the media." Id.

Because Mr. Stanley contends that the meaning of the word "public" in Rule 4(c)(1)(A) is limited

to the actual publication of the disciplinary action, we now take this opportunity to explain that the

meaning of this common word is, in fact, not so limited. We will do so in some detail, and with

reference to both the rule's purpose and to its application to situations commonly encountered by

members of the Court's bar.

a. Definition of "Public Discipline"

The ABA recommends that lawyer discipline be public "in cases of disbarment, suspension,

and reprimand," and private "only in cases of minor misconduct, when there is little or no injury to

the client, the public, the legal system, or the profession, and when there is little likelihood of

repetition by the lawyer." ABA STANDARDS FOR IMPOSING LAWYER SANCTIONS III.A.1.2 (2005).

The purpose of public discipline, then, is to make the interested members of the populace aware that

an attorney has been found to have committed an act of professional misconduct and to advise the

public of the circumstances from which that discipline flows. This information may then be used

by the interested public in deciding whether to retain a particular attorney in a particular matter. 

Our rule requiring that only the imposition of public discipline be reported to this Court is

meant to ensure that private reprimands issued for professional misconduct, which are often

cautionary in nature, remain a matter between the disciplining authority and the disciplined attorney.

By limiting the reporting requirement to public discipline, the Court respects the judgment of the
Public discipline also includes, but is not limited to, the actual publication of disciplinary proceedings or 15

disciplinary actions in a newspaper, legal journal, or other publication under the laws, regulations, or other rules

governing the disciplining authority's actions; disciplinary action that is affirmatively disclosed by the disciplinary

authority to other agencies, courts, or State bars in which the attorney being disciplined is admitted to practice; and

disciplinary action which is, as routine practice, disclosed by the disciplining authority to members of the public who

inquire about the disciplinary record of a particular attorney. Disciplinary action that is expressly deemed private by the

disciplining authority is not considered public discipline, notwithstanding any disclosure agreed to by the attorney and

the disciplining authority.

17

disciplining authority and promotes the improvement of the practice of law by permitting the

disciplining authority to call the practitioner's attention to his errors in judgment or action without

imposing unduly harsh punishment. 

Turning to the meaning of the word "public," we note that courts have traditionally derived

reasonable definitions of terms by considering the ordinary meaning of the words in question. Public

Citizen Inc. v. Mineta, 343 F.3d 1159, 1167 (9th Cir. 2003). In this regard, the word "public" is

variously defined as "open or available for all to use, share, or enjoy," BLACK'S LAW DICTIONARY

1242 (7th ed. 1999) [hereinafter BLACK'S]; "known by, or open to the knowledge of, all or most

people," WEBSTER'S NEW WORLD DICTIONARY 1087 (3d ed. 1988); or "accessible to or shared by

all members of the community," WEBSTER'S NINTH NEW COLLEGIATE DICTIONARY 952 (1990). The

word "publication" is defined as "the act of declaring or announcing to the public." BLACK'S at 1242.

Considering these general definitions and the purposes of our rule, we think that the common

understanding of the term "public" makes it clear that to be "public discipline" within the meaning

of Rule 4(c)(1)(A), the terms, conditions, and underlying facts supporting the discipline for

professional misconduct must be available in a form accessible by those members of the public who

might reasonably have an interest in such information. This includes those members of the public

who might seek to retain the services of the disciplined attorney; other attorneys practicing in the

jurisdiction where the attorney was disciplined; and the jurisdictions, courts, agencies, or other

entities before whom the disciplined attorney is admitted to practice. With this definition in mind, 15

we now analyze the disciplinary actions imposed by VA and the Social Security Administration and

determine whether those actions were, in fact, public, and if so, whether Mr. Stanley had reason to

know that the actions were public. We therefore begin with the Agencies' rules governing attorney

discipline. 
 The Court notes that VA also maintains a searchable database of accredited attorneys on its Web site. See 16

http://www.va.gov/ogc/apps/accreditation/index.html. A search of the database only results in the names of accredited

attorneys, however; it does not reveal that a particular attorney's accreditation has been cancelled.

 The Court need not address whether the discipline became public for the purposes of our Rules in June 2005 17

when VA informed the Arkansas Supreme Court Committee on Professional Responsibility of the October 2001 action:

§ 14.633 had not yet been amended to include a notification provision, so Mr. Stanley could still not have been aware

that his discipline might be made public. See Morris v. Derwinski, 1 Vet.App. 260, 265 (1991) ("The Supreme Court

has held that everyone dealing with the Government is charged with knowledge of federal statutes and lawfully

promulgated agency regulations." (citing Fed. Crop Ins. Corp. v. Merrill, 332 U.S. 380, 384-85 (1947))); 38 C.F.R.

§ 14.633 (2005).

18

b. Cancellation of Accreditation by VA

VA regulations currently provide that, when an attorney's accreditation is cancelled, the VA

Office of the General Counsel "may notify all agencies, courts, and bars to which the agent or

attorney is admitted to practice." 38 C.F.R. § 14.633(i) (2008) (emphasis added). In October 2001, 16

however, § 14.633 contained no notification provision whatsoever. 38 C.F.R. § 14.633 (2001); see

also Accreditation of Agents and Attorneys; Agent and Attorney Fees, Proposed Rule, 72 Fed. Reg.

25,930, 25,933 (May 7, 2007) ("[W]e propose in § 14.633(h) [now § 14.633(i)] to provide notice,

at the discretion of the General Counsel, of any suspension or cancellation of VA accreditation to

the courts, bars, agencies, or jurisdictions in which the agent or attorney is admitted to practice."

(emphasis added)). Accordingly, under the VA regulations then in effect, Mr. Stanley would have

had no reason to believe that the disciplinary action taken against him would be disclosed–that is,

made public. Therefore, that action would not be considered public for the purposes of the Court's

Rules. Consequently, the Court finds that Mr. Stanley was under no obligation to report the VA's

cancellation of his accreditation to the Court in October 2001. 

17

At this time, the Court need not address whether any cancellation or suspension of

accreditation by VA imposed since the discretionary notice provision was added to § 14.633

constitutes public discipline within the meaning of the Court's Rules because to do so in this matter

would be dicta. However, the Court, in light of the great overlap between VA-accredited attorneys

and members of the Court's bar, would suggest that VA change its procedures to make reporting the

revocation of accreditation mandatory when the action becomes final for VA purposes, at least with

respect to this Court. 
 The Social Security Administration also provides for notification to governmental entities, such as the 18

Department of Justice, congressional offices, the General Services Administration, and the Secretary of Health and

Human Services. Social Security Administration, Representative Disqualification/Suspension Information System,

System No. 60-0219, Routine Use No. 3, 71 Fed. Reg. 1838 (Jan. 11, 2006), available at http://www.ssa.gov/

foia/bluebook/60-0219.htm.

 Available online at 19 http://www.socialsecurity.gov/OP_Home/hallex/hallex.html. 

19

c. Suspension from Practice by the Social Security Administration 

The Social Security Administration permits disclosure for "routine use" to inform (1) "a

claimant/beneficiary that his/her representative has been disqualified/suspended from further

representation before the Social Security Administration," (2) "a claimant/beneficiary who may want

to hire a disqualified/suspended individual as his/her representative that the individual has been

disqualified/suspended from further representation before the Social Security Administration," and

(3) "a State bar disciplinary authority in the State(s) in which a disqualified/suspended attorney is

admitted to practice that the Social Security Administration (SSA) has disqualified/suspended the

attorney from further practice before SSA and, upon request, further information concerning the

disqualification/suspension." Representative Disqualification/Suspension Information System, 18

System No. 60-0219, Routine Use No. 3, 71 Fed. Reg. 1838 (Jan. 11, 2006). It was under this

authority that the Social Security Administration informed the Arkansas Supreme Court Committee

on Professional Conduct that it had suspended Mr. Stanley. See Letter from Office of the Gen.

Counsel, Social Security Administration, to Executive Dir., Arkansas Supreme Court Committee on

Professional Conduct at 1 [hereinafter Social Security Letter] (June 5, 2006) ("We refer this matter

to you based on a routine use disclosure that [the Social Security Administration] has published.");

id. at n.1. Further, the Social Security Administration's Office of Disability Adjudication and

Review's Hearings, Appeals and Litigation Law Manual (HALLEX) provides that when an attorney 19

is disqualified or suspended from acting as a representative before the Agency, the Office of General

Law "will provide a copy of the final Agency action suspending or disqualifying the attorney to the

disciplinary section of the bar association in every State or Territory in which the attorney is admitted

to practice." HALLEX, Vol.1, Ch. I-1-1-50 B.9, available at http://www.socialsecurity.gov/

OP_Home/hallex/I-01/I-1-1-50.html (last visited Mar. 3, 2009) (emphasis added). 
 The Court acknowledges that the Social Security Administration's routine use disclosures are discretionary, 20

much like VA's. However, the Court notes that the Social Security Administration, unlike VA, affirmatively–and almost

immediately–informed the Arkansas Supreme Court of Mr. Stanley's suspension and did so expressly under its routine

use disclosure, while VA did not notify the Arkansas Supreme Court of its October 2001 action until June 2005. See

Social Security Letter at 1 (June 2, 2006, letter from the Social Security Administration advising the Arkansas Supreme

Court of the May 22, 2006, proceedings resulting in Mr. Stanley's suspension); VA Letter at 1. Moreover, the Court rests

its determination that the Social Security Administration action was public on the Social Security Administration's

procedural mandate that suspensions or disqualifications of attorneys "will" be provided to state bars. HALLEX, Vol.1,

Ch. I-1-1-50 B.9.

20

Given that the Social Security Administration's procedures provide for affirmative,

mandatory notification to the state bar disciplinary sections, it is clear that the suspension imposed

by the Agency in this case is public under any definition of the word, and certainly under the

definition the Court clearly articulates today. See HALLEX, Vol.1, Ch. I-1-1-50 B.9; New Eng. 20

Tank Indus. of N.H., Inc. v. United States, 861 F.2d 658, 694 (Fed. Cir. 1988) (holding that "will"

is a mandatory, as opposed to discretionary, term). Mr. Stanley, as a practitioner before the Social

Security Administration, is charged with knowledge of the rules and regulations affecting his ability

to represent claimants before the Agency, and therefore is presumed to have known that the Social

Security Administration would report his suspension to the Arkansas State Bar. See Morris,

1 Vet.App. at 265. Accordingly, as the Committee found, Mr. Stanley was under an obligation to

report his suspension from practice before the Social Security Administration to the Court, and his

failure to do so is a violation of this Court's Rules. As a consequence for failing to notify the Court

of his suspension before the Social Security Administration, the Committee recommended that the

Court impose a public reprimand of Mr. Stanley. The Court agrees that such a penalty is proper and

hereby adopts the Committee's recommendation.

B. No. 07-8007: Unauthorized Practice of Law

1. Definition of "Practice of Law"

Rule 4(a) provides that the Model Rules constitute the "disciplinary standard for practice"

before the Court. U.S. VET. APP. R. ADM. & PRAC. R. 4(a). Rule 4(b)(1)(A) further provides that

"professional misconduct" is "an act or omission that violates the Court's disciplinary standard."

Therefore, any act or omission on the part of a practitioner that violates the Model Rules also

constitutes professional misconduct in this Court. Model Rule 5.5(a) prohibits an attorney from

practicing law in a jurisdiction "in violation of the regulation of the legal profession in that
21

jurisdiction." MODEL RULES OF PROF'L CONDUCT R. 5.5(a) (2007). It is not disputed that if Mr.

Stanley engaged in the practice of law before the Court after the enactment of his temporary

suspension, he has committed professional misconduct within the meaning of the Court's Rules.

What is disputed is whether the actions in which Mr. Stanley engaged constitute "the practice of

law."

The actions potentially constituting engagement in the unauthorized practice of law for which

Mr. Stanley was investigated include preparing briefs for clients who filed those briefs while acting

pro se, counseling clients regarding their appearances before the Court, preparing an application for

attorney fees that was filed by the client while acting pro se, and preparing a reply to a designation

of the record for a client who filed that reply while acting pro se. Mr. Stanley contends that these

actions do not amount to the practice of law; indeed, he argues that the "practice of law" is properly

limited to appearing before the Court or filing pleadings on behalf of clients. Rebuttal at 6.

The Model Rules do not define the practice of law, but simply state that "the practice of law

is established by law and varies from one jurisdiction to another." MODEL RULES OF PROF'L

CONDUCT R. 5.5 cmt. (2007). The Federal caselaw on the matter generally holds that preparation

of legal documents is considered the practice of law and may only be performed by licensed

attorneys in good standing. In 1990, the U.S. Court of Appeals for the Third Circuit (Third Circuit)

found that a survey of state court decisions "indicate[d] that the practice of law is not limited to

appearances in court and the signing of pleadings." In re Mitchell, 901 F.2d 1179, 1183-84 (3d Cir.

1990). The Third Circuit concluded that

an attorney suspended from the bar of this court can have no contact with this court,

its staff, or a client in any proceeding before this court, except if the attorney is

representing only himself or herself as a party, but may act as a law clerk or legal

assistant under the close supervision of a member in good standing of the bar of this

court. 

Id. at 1181. 

Since then, several other circuit courts of appeal have addressed the issue. The U.S. Court

of Appeals for the Fifth Circuit has held that the "'practice of law embraces in general all advice to

clients and all actions taken for them in matters connected with the law.'" SMWNFP Holdings, Inc.

v. Devore,165 F.3d 360, 368 (5th Cir. 1999) (quoting Brown v. Unauthorized Practice of Law
22

Comm., 742 S.W.2d 34, 41 (Tex. Ct. App. 1987)). The U.S. Court of Appeals for the Seventh

Circuit (Seventh Circuit) has held that "the practice of law includes, at a minimum, representation

provided in court proceedings along with any services rendered incident thereto, even if rendered out

of court." United States v. Johnson, 327 F.3d 554, 561 (7th Cir. 2003). The U.S. Court of Appeals

for the Ninth Circuit (Ninth Circuit) concluded that, "at a minimum 'the "practice of law" means the

exercise of professional judgment in applying legal principles to address another person's

individualized needs through analysis, advice, or other assistance.'" Taub v. Weber, 366 F.3d 966,

970 (9th Cir. 2004) (quoting Or. State Bar v. Smith, 942 P.2d 793, 800 (Or. App. 1997)). It is clear

to the Court that the preparation of legal documents and pleadings, including those at issue in this

matter–briefs, an application for attorney fees, and a response to a designation of the record–is

widely considered to constitute the practice of law. 

It is also clear that the act of advising clients regarding their appearances before a court

constitutes the practice of law. The Seventh Circuit stated that "providing any advice or other

service 'requiring the use of any legal skill or knowledge, . . . the legal effect of which, under the

facts and conditions involved, must be carefully determined,' amounts to practicing law." Johnson,

327 F.3d at 561 (quoting People v. Peters, 141 N.E.2d 9, 11 (N.Y. 1957)). As noted above, the

Ninth Circuit found that "applying legal principles to address another person's individualized needs

through . . . advice" constitutes the practice of law. Taub, 366 F.3d at 800; see also SMWNFP,

165 F.3d at 368. Accordingly, when a practitioner is suspended from practice before this Court, he

violates this Court's Rules when he advises an appellant regarding any aspect of the appellant's

appearance before this Court. This includes advising appellants about the contents of their

submissions to this Court. 

The Court notes that its determination that Mr. Stanley's acts constitute the practice of law

within the meaning of the Court's Rules is in no way intended to limit the meaning of the "practice

of law." Obviously, other acts not at issue in this matter also constitute the practice of law, such as

filing an appearance on behalf of an appellant, arguing before the Court, and submitting pleadings

and other documents on behalf of an appellant. There may also be other acts that constitute the

practice of law, and we do not intend this list to be exhaustive.
Although this instance is the first in which the Court has discussed the meaning of the term "practice of law" 21

for members of its bar, the Court does not believe that applying this definition in this matter is unfair in any way. As

noted above, the Federal law on the matter is generally universal in finding that the acts at issue here constitute the

practice of law. Moreover, Arkansas, where Mr. Stanley holds a license to practice law, has long held that these kinds

of actions constitute the practice of law:

We do hold however that when one appears before a court of record for the purpose of transacting

business with the court in connection with any pending litigation or when any person seeks to invoke

the processes of the court in any matter pending before it, that person is engaging in the practice of

law. . . . Courts are constituted for the purpose of interpreting and administrating the laws passed by

the law making body and the rules announced by the judiciary, and they must necessarily be governed

in their operation by rules of procedure. Attorneys are officers of the court and are able by special

training and practice to know the law and rules of procedure, and are thereby in position to render a

service to the court. Therefore any one who assumes the role of assisting the court in its process or

invokes the use of its mechanism is considered to be engaged in the practice of law.

Ark. Bar Ass'n v. Union Nat'l Bank of Little Rock, 273 S.W.2d 408, 411 (Ark. 1954). In Arkansas, "[i]t is uniformly held

that many activities, such as writing and interpreting wills, contracts, trust agreements and the giving of legal advice in

general, constitute practicing law." Clarendon Am. Ins. Co. v. Hickok, 257 S.W.3d 43, 45-46 (Ark. 2007) (citing Ark.

Bar Ass'n, 273 S.W.2d at 411-12). Moreover, Section 22( C)(1) of the Procedures of the Arkansas Supreme Court

Regulating Professional Conduct of Attorneys at Law provides that a suspended attorney "shall have no contact with

clients." Accordingly, Mr. Stanley ought to have known that he was engaging in "the practice of law."

23

2. Unauthorized Practice of Law

The remaining question is whether Mr. Stanley committed any of these acts after May 11,

2007, the date on which his temporary suspension from practice before the Court began. If so, 21

those acts constitute the unauthorized practice of law, and Mr. Stanley violated the Court's Rules.

In his answers to the Committee's interrogatories, Mr. Stanley asserted that the briefs he prepared

that are at issue here were completed in April 2007, prior to his suspension. Answers at 11-12, 14.

He further asserted that any advice he gave to his clients in those matters after the effective date of

his suspension was de minimis and that he did not receive any compensation for his work in those

cases. Id. He stated that he encouraged his clients to file the briefs he had prepared so as to not

delay their cases unnecessarily. Id. Regarding the application for attorney fees, Mr. Stanley stated

that he prepared the application for work he performed for the client prior to his suspension and that

he did not provide any advice to the client regarding that application. Answers at 16. With respect

to the response to the designation of the record, Mr. Stanley conceded that he prepared the document

after his suspension was enacted, but contended that this did not constitute the unauthorized practice

of law because he was admitted to practice before other courts, including the Federal Circuit.

Answers at 18. This appears to be a concession by Mr. Stanley that the preparation of this document
 ABA Standing Comm. on Ethics and Prof'l Responsibility, Formal Opinion 07-466, Undisclosed Legal 22

Assistance to Pro Se Litigants (May 5, 2007).

24

constituted the practice of law, as well as an argument that he did not engage in the unauthorized

practice of law in preparing this document because he was authorized to practice law in other

jurisdictions. Mr. Stanley also stated his belief, based on an opinion by the ABA Standing

Committee on Ethics and Professional Responsibility, that "ghost writing" legal documents for 22

clients was not improper and need not necessarily be disclosed to the tribunal. Id.

The Committee determined that the preparation of briefs, the preparation of an application

for attorney fees, and any advice given to those clients by Mr. Stanley were either completed prior

to May 11, 2007, or were de minimis in nature, such that no discipline should be imposed. The

Court accepts and adopts the Committee's recommendations in this regard.

Regarding the remaining allegation, the Committee determined that Mr. Stanley's preparation

of the response to the designation of the record after his suspension from practice before the Court

constituted the unauthorized practice of law. Committee Report at 11. The Court agrees. Whether

or not Mr. Stanley was authorized to practice before any other Court at the time he prepared the

document is irrelevant, given that the document was prepared with the intent that it would be filed

with this Court, where he was not authorized to practice. Further, Mr. Stanley's reliance on the ABA

opinion is misplaced, given that the opinion does not address the "ghost writing" of documents by

practitioners who have been suspended from practice before the tribunal with which the document

is to be filed. Moreover, because we have already determined that the preparation of documents

constitutes the practice of law, it makes no difference that it was the appellant, rather than Mr.

Stanley himself, who filed the document with the Court, as Mr. Stanley argues in his motion for

reconsideration. As a consequence for engaging in the unauthorized practice of law before the Court,

the Committee recommended that the Court impose a public reprimand of Mr. Stanley. The Court

agrees that such a penalty is proper and hereby adopts the Committee's recommendation.

III. CONCLUSION

Upon consideration of the foregoing, regarding docket number 07-8003, Mr. Stanley is

suspended from practice before this Court until May 22, 2011, based on his suspension from practice
 The Court notes with consternation Mr. Stanley's transparent attempt to circumvent this requirement by 23

contending in his motion for reconsideration that he "has addressed the [C]ourt's concerns over his need to take six hours

of courses on professional responsibility." Motion for Reconsideration at 8. In a separate filing, Mr. Stanley provided

a list of Continuing Legal Education courses he has completed since February 4, 2005. Although the italicized portion

of this statement was not included in the proposed opinion, the Court believes that it was nevertheless clear in its

directive that the required ethics courses be taken in the one year prior to Mr. Stanley's application for reinstatement to

practice before this Court. Given that Mr. Stanley has not yet applied for reinstatement (and may not, as he has not been

reinstated by either VA or the Social Security Administration)–a clear condition that determines the one-year look back

period–he simply cannot have completed the required courses. Moreover, the Court reminds Mr. Stanley that not just

any Continuing Legal Education courses will do; the requirement is that the courses focus on the Model Rules of

Professional Conduct or similar topics.

25

before the Social Security Administration and the revocation of his accreditation by VA. In

accordance with Rule 11(a)(2), Mr. Stanley may resume practice before the Court upon the expiration

of this suspension "only after filing with the Clerk an affidavit that he . . . has been reinstated by" the

Social Security Administration and VA. Along with that affidavit, he must submit documentation of

his completion, subsequent to the date of this opinion and within the one year prior to his application

for reinstatement, of at least six hours of ethics training regarding, in particular, the Model Rules of

Professional Conduct. If Mr. Stanley desires to apply for reinstatement prior to the expiration of this 23

suspension, he must submit evidence that he has been reinstated to practice before both the Social

Security Administration and VA, as well as the documentation described above regarding ethics

training. Further, Mr. Stanley is hereby reprimanded for failing to report his suspension from practice

before the Social Security Administration to the Court as required by Rule 4(c)(1)(A). 

Regarding docket number 07-8007, Mr. Stanley is reprimanded for engaging in the

unauthorized practice of law while under an order of suspension from practice before the Court, in

violation of Rule 5.5 of the Model Rules. 

DATED: July 28, 2009 PER CURIAM.

Copy to:

James W. Stanley