IN RE: Tony Thurman, Respondent

Arkansas Bar ID#99037

CPC Docket No. 2001-134

The formal charges of misconduct upon which this Findings and Order is based arose from information provided to the Committee by Neil Deininger in an Affidavit dated December 3, 2001. The information related to the representation of Mr. and Mrs. Takumi Nishiuchi by Respondent.

On February 4, 2002, Respondent was served with a formal complaint, supported by the affidavit from Mr. Deininger. Respondent failed to file a response to the complaint, which failure to timely respond, pursuant to Section 9.C(4) of the Procedures, constitutes an admission of the factual allegations of the formal complaint and extinguishes Respondent's right to a public hearing.

The information before the Committee demonstrated that on April 20, 2001, Mr. Deininger was hired by Mr. and Mrs. Nishiuchi to assist them with matters related to their federal and state withholding tax liabilities and state sales tax liabilities incurred as a result of operating a restaurant. At that time, Tony Thurman, an attorney practicing in Mountain View, was representing the Nishiuchis in a Chapter 13 Bankruptcy. The Trustee in the bankruptcy proceeding had filed a Motion to Dismiss because of the failure to make the required plan payments. Mr. and Mrs. Nishiuchi explained to Mr. Deininger that the failure to make the required payments was due to Mr. Nishiuchi's inability to work following open heart surgery.

Mr. Deininger reviewed all of the available information and advised Mr. and Mrs. Nishiuchi that it would be appropriate for the bankruptcy to be dismissed and for an Offer in Compromise to be filed with the Federal and State Governments in an effort to deal with the tax liabilities. The Nishiuchis were going to be unable to avail themselves to an of the benefits of bankruptcy since the taxes were non-dischargeable and the Nishiuchis could not afford to pay them during the life of the Chapter 13 plan because of the reduced income. After discussing all of this with the Nishiuchis, Mr. Deininger wrote Mr. Thurman and advised him of his representation of the Nishiuchis in their tax matters. Mr. Deininger advised Mr. Thurman that he recommended the bankruptcy be dismissed and explained his basis for making that recommendation. There was a hearing scheduled on the Trustee's Motion to Dismiss. The hearing was scheduled for June 7, 2001, and Mr. Deininger asked that the bankruptcy be dismissed prior to that hearing. After writing Mr. Thurman, Mr. Deininger called him on May 29, 2001.

On August 14, 2001, Mr. Deininger was contacted by the Nishiuchis and advised that Mr. Thurman had filed a Motion to Convert the bankruptcy from a Chapter 13 to a Chapter 7. At the time that the action was taken by Mr. Thurman, he did not notify his clients nor did he send them copies of the pleadings. The copy received by the Nishiuchis came from a creditor. Mr. Deininger was also informed that the Nishiuchis had attempted on numerous occasions to contact Mr. Thurman with no success. The Motion to Convert was pursued with no authorization from the Nishiuchis. Based upon the information provided to Mr. Deininger, he contacted Mr. Thurman again and reminded him that the clients did not want a conversion and did not authorize one to be pursued. Mr. Thurman did not respond to Mr. Deininger's correspondence. As a result, Mr. Deininger wrote Mr. Thurman again. Following this subsequent correspondence, Mr. Thurman contacted his clients. After the contact, Mrs. Nishiuchi contacted Mr. Deininger's office and spoke with his paralegal. Mrs. Nishiuchi explained that Mr. Thurman indicated to her that he did not know anything about Mr. Deininger's correspondence. Mr. Thurman also assured Mrs. Nishiuchi that he would dismiss the bankruptcy immediately. When a member of Mr. Deininger's staff contacted the Bankruptcy Clerk on September 14, 2001, it was learned that Mr. Thurman had not filed to dismiss the bankruptcy but only documents withdrawing the Motion for Conversion. Mr. Deininger prepared a Motion to Dismiss for Mr. Thurman to sign and return to him. Mr. Thurman did not do so and when Mr. Deininger's secretary contacted Mr. Thurman to check on the status of the Motion, Mr. Thurman advised that he would not talk to Mr. Deininger or any of the office staff because it would be unethical to do so. After that conversation, the Nishiuchis contacted Mr. Thurman and authorized him to speak to Mr. Deininger and to follow his instructions. Mr. Thurman refused unless the authorization was made in writing. Written authorization was sent to Mr. Thurman that same day. Mr. Thurman still did not comply with the authorization.

An Order of Dismissal was entered in the bankruptcy matter for failure to convert not based on the desired Motion to Dismiss, which Mr. Thurman never filed. Because of his conduct, Mr. Thurman held up an Offer in Compromise with the Federal Government for approximately five (5) months. The Offer in Compromise could not be filed or processed while a bankruptcy was pending. Upon consideration of the formal complaint and attached exhibit materials, and other matters before it, and the Arkansas Model Rules of Professional Conduct, Panel B of the Arkansas Supreme Court Committee on Professional Conduct finds:

That Mr. Thurman's conduct violated Model Rule 1.2(a) since despite requests  by his clients, the Nishiuchis, for him to dismiss their bankruptcy, he did not do so and since he filed a Motion to Convert the Nishiuchis' bankruptcy from a Chapter 13 to a Chapter 7 without discussing the same with the Nishiuchis and without obtaining their consent. Model Rule 1.2(a) requires, in pertinent part, that a lawyer abide by a client's decision concerning the objectives of representation and consult with the client as to the means by which they are to be pursued.

That Mr. Thurman's conduct violated Model Rule 1.3 when he failed to file a Motion to Dismiss the Nishiuchis bankruptcy after being requested to do so. Model Rule 1.3 requires that a lawyer act with reasonable diligence and promptness in representing a client.

That Mr. Thurman's conduct violated Model Rule 1.4(a) when he failed to advise the Nishiuchis when he filed the Motion to Convert their bankruptcy; when he failed to notify the Nishiuchis that the Court entered an Order dismissing their bankruptcy; and, when despite numerous requests for information and attempts to contact him, Mr. Thurman failed to respond to the Nishiuchis. Model Rule 1.4(a) requires that a lawyer keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.

That Mr. Thurman's conduct violated Model Rule 3.2 because his failure to act as requested by the Nishiuchis created an unnecessary delay in their ability to pursue an Offer in Compromise with the federal government in connection with their tax liabilities. Model Rule 3.2 requires that a lawyer make reasonable efforts to expedite litigation consistent with the interest of the client.

WHEREFORE, it is the decision and order of the Arkansas Supreme Court Committee on Professional Conduct, acting through its authorized Panel B, that Tony Thurman, Arkansas Bar ID # 99037, be, and hereby is, REPRIMANDED for his conduct in this matter. In addition, for failing to respond to the formal complaint, the Committee, pursuant to Section 9C(3) and Section 18B of the Procedures, imposes a fine of $500. The fine assessed herein shall be payable by cashier's check or money order payable to the "Clerk, Arkansas Supreme Court" delivered to the Office of Professional Conduct with thirty (30) days of the date this Findings and Order is filed of record with the Clerk of the Arkansas Supreme Court.

ARKANSAS SUPREME COURT COMMITTEE ON PROFESSIONAL CONDUCT - PANEL B

By: _____________________________________

Richard Hatfield, Chair, Panel B

Date: ____________________________________