disciplinary actions legal matters involving her employer. In December, 1993, the EEOC sent Ms. Jarrell a Notice of Right to Sue. The otice indicated that a copy was also sent Simes. When Ms. Jarrett received the Olice she discussed with Simes the
[Q
grounds on which she wanted to sue her employer. Simes filed a lawsuit on March 14. 1994. however, this not within the
discuss other matters. Among them was
An Answer was
tha' she was told that Simes would "sell her and her case out," She believed that and advised him to drop her lawsuit. This fact. he stated, coupled with her other per-
filed which pointed out the late nalUre of
sonal matters and her state of mind made it
ninety-day time limit. the lawsuit.
Simes filed no responsive
impossible for him to "zealously represent
pleading. An Order was entered on July 13.. 1994 directing him to serve one of the defendant and tile proof of service. Simes did not and the case against that defendant was dismissed for failure to
her."
prosecute. Simes did not advise his client
ever lost if a federal lawsuit was not filed
of this dismi sal.
within ninety days from the day she received the Right to Sue Leller, however,
Five months later he
filed a Motion for COlllinuance wherein he admitted an inability to serve a defendant and requested a continuance to investigate
his whereabouts. A Pre-Trail Conference Sheet was tiled on January 23, 1995, wherein he mentioned having filed a Mo'ion 10 Compel and an Amended Complaint. Neither of these pleadings are on the District Court's docke' sheet. Ms. Jarrett stated that she tried, unsuccessfully,
He averred that these issues also
made it difficult for him to plan strategy and proceed with discovery. Further, he had advi cd M . Jarrell that her sexual harassment claim would be for-
he was of the impression she wished to
drop the case. Subsequently, in March 1994. she contacted Simes and advised tha' she was ready to proceed and advised that 'he Right 10 Sue leller was received on December 19, 1993. It was with that information he tiled the complaint on March 14, 1994. He stated with regard to service on one
to contact Simes on several occasions.
of the defendants 'ha' his specific where-
Then on May I, 1995, he explained to Ms. Jarrell that the lawsuit was not timely filed
abouts were unknown, but that he was in a
because of some erroneous information
was going to contact Simes regarding a private investigator. she never did.
regarding the receipt date of the Notice of Right to Sue. However, Ms. Jarrell averred that there was no misunderstanding and he was told the correct date. Also he received his own copy as attorney of record. Ms. Jarrett terminated his services
and requested her file. Simes would not release her file without her signing a note
which he prepared.
She then retained
counsel who did receive a portion of the
file. He filed a Motion to Withdraw, but never served Ms. Jarrett with a copy.
Upon learning of the Motion, Ms. Jarrett did file a Respon e. The Motion was granted and Ms. Jarrell has been unable to retain another attorney. For his response, Simes stated that Ms. Jarrett had everal claims against her
employer. A complaint was tiled in Federal District Court alleging sexual harassment: 'he assault. battery and false imprisonment allegations were pendant state claims. Since the ba is for the wrongful discharge was race, it was filed
mental institution. Although Ms. Jarrell
her desire not to pursue her claims of unlawful termination. false imprisonment
against her. Subsequently, Fink sent a letter to the Judgt: with a MOlion to Amend
and assault and battery, but in May 1995. she changed her mind. After May I. 1995. she refused to keep any appointments. Sime promptly complied with Ms. Jarrell'S request for her file and filed a
Default Judgment for Clerical Error. The MOlion omits to say that Mrs. James'
Motion to Withdraw. The Motion was granted and a new trial date seL In conclusion. he asserted that if any of Ms. Jarrett's claims were lost it was due to her own misrepresentation.
Answer was on file. Approximately Lhree weeks later, Fink agreed that a Order dismi sing the garnishment should be entered. Mrs. James alleged that Finks failure to thoroughly check the records and properly supervise this file set a chain of events in motion that prejudi cd her. She testified that, in addition to the expense of
John W. Fink
hiring an attorney. as a consequence of the aforementioned facts she lost her job, suf-
John W. Fink was issued a leller of caution for violation of Model Rule 8.4 (d) upon the complaint of Ruth L. James. This rule states, 'ha' a lawyer shall not
medical problems. From Fink's affidavi' of response and testimony it was learned that. although
engage in conduct that is prejudiciallO the administration of justice.
Mrs. James filed an Answer to the Complaint. she did not serve him with a
The allegations by Mrs. James involved a lawsui, Fink filed on behalf of
copy as required by 'he Arkansas Rules of Civil Procedure. It was his belief tha', had he received her Answer, none of the ensuing events would have occurred. He admitted that the Default Judgment was erroneous in that it referenced only ajudg-
his client, Independent Service Finance.
against Mrs. James and her brother, John
during which he explained her claims. He
Shelman. As a result of three hospitalizations. Mr. Shelman incurred a sizeable
Spring 1996
lhat without notice to her Fink contacted
the Judge abou, amending 'he Default Judgment to reflect a judgment 'aken
pursuant to 42 U.S.c. ยง198J. Simes stat-
The Arkansas Lawyer
debt. Mrs. James signed the hospital admission forms for the first hospitalization causing her to be liable for the amount of tha' bill. When Mr. Sherman ceased payment of the bills, Fink filed a lawsuit 10 collect the debt. Mr. James was served on November 18, 1992. and filed an Answer on ovember 19, 1992. On November 23, 1992, the Judge signed a Default Judgement which was not entered until January I I, 1993. The Default Judgement stated that the defendants had been served for more that twenry days and had failed to appear and defend. It omilled any reference to the amount of Mrs. James' liability. if any. On the date the Judgment was signed, Mrs. James had only been served for five days and her Answer had been on file for four days. Mrs. James was never served with the Default Judgment. Based on the Default Judgment Fink caused a Writ of Garnishment to i sue against Mrs. James on August 26, 1994. Mrs. James stated in her affidavit that she was never served with a copy of 'he Writ. Her employer informed her that they received the Writ and Mrs. James then obtained a copy form the Clerk's office. She then learned that she was being held responsible for the entire judgment amount. Mrs. James filed a Motion to Quash the Writ. She averred
In April 1995. Ms. Jarrett advised of
ed that he had several office conferences requested documentation showing when -44
she received her Right to Sue leller, but no response was received. In December 1993 and January 1994, Ms. Jarrell advised him of her desire to drop her case. Believing she was being stalked, she then wanted to
fered marital discord, and experienced