Recent Supreme Court Opinions

Loring E. Justice v. Board of Professional Responsibility (Majority Opinion)

This is a direct appeal of a disciplinary proceeding involving a Knoxville attorney who filed four motions containing pejorative statements about the trial judge in a child custody case involving the attorney’s minor child. A hearing panel of the Board of Professional Responsibility determined that the attorney violated multiple Rules of Professional Conduct and imposed a three-year suspension as punishment. The attorney appealed to the trial court. The trial court affirmed the hearing panel’s judgment in all respects with the exception of the attorney’s punishment. The trial court held that the hearing panel erred in imposing a suspension, and it increased the punishment to disbarment. The attorney appealed to this Court. We affirm the judgment of the trial court on all issues with the exception of the issue regarding the attorney’s punishment. We hold that the trial court erred in increasing the punishment to disbarment, and we reinstate the three-year suspension imposed by the hearing panel but modify it to take effect upon the filing of this Opinion.

Loring E. Justice v. Board of Professional Responsibility (Separate Opinion)

HOLLY KIRBY, C.J., concurring.
I agree with virtually all of the majority’s thorough and well-reasoned opinion, with one exception: its determination that ABA Standards 6.21 and 7.1, which identify disbarment as the presumptive sanction, do not apply to this case. As explained below, I would hold that ABA Standards 6.21 and 7.1 apply, and consequently disbarment is the presumptive sanction, because Mr. Justice engaged in the misconduct with intent to obtain personal benefit. I nonetheless concur in the majority’s decision to impose a three-year suspension, based on the comparative cases cited in the majority opinion.

Brian Philip Manookian v. Board of Professional Responsibility (Majority Opinion)

In this lawyer disciplinary case, the lawyer’s conduct compels disbarment. The lawyer sent a series of intimidating, demeaning, embarrassing, and harassing communications to opposing counsel and others. Some targeted family members of opposing counsel, including one family member who was also a former client, and caused well-founded concern for their well-being and safety. In the ensuing disciplinary proceedings, a Board of Professional Responsibility hearing panel found that the purpose of the communications was to intimidate opposing counsel in order to gain unfair advantage in pending litigation. It concluded inter alia that the lawyer’s conduct was prejudicial to the administration of justice, that he failed to respect the rights of third persons, and that he violated his duty to a former client, in violation of Tennessee’s Rules of Professional Conduct. The hearing panel said the presumptive sanction was disbarment, found four aggravating factors, and found no mitigating circumstances. Without explanation, the hearing panel recommended a two-year suspension instead of disbarment. The attorney appealed to the trial court. The trial court indicated that, had the Board of Professional Responsibility filed a separate petition for review, the trial court would have recommended disbarment, but because the Board did not, the trial court affirmed the sanction of suspension. Both parties appeal. Here, the lawyer’s conduct was egregious. Victimizing the families of opposing counsel and causing concern for their well-being and safety is an especially grave offense and a profound dishonor as a lawyer. The hearing panel’s decision to deviate downward from the presumptive sanction of disbarment was arbitrary and capricious, and the lawyer must be disbarred. Accordingly, we modify the judgment of the hearing panel and impose the sanction of disbarment.

Brian Philip Manookian v. Board of Professional Responsibility (Dissenting Opinion)

SHARON G. LEE, J., dissenting.
While this Court has inherent jurisdiction over attorney disciplinary matters, attorneys must be afforded fair notice and an opportunity to be heard. For the first time, this Court has increased an attorney’s discipline through the exercise of the Court’s inherent jurisdiction outside of the process outlined in Rule 9 by disbarring Brian Philip Manookian without giving fair notice of its intent. I dissent from the Court’s decision to disbar Mr. Manookian and would affirm the hearing panel’s finding of a twenty-four-month suspension. Neither the hearing panel nor the trial court erred.

Thomas Fleming Mabry v. Board of Professional Responsibility

This is an appeal in a lawyer-disciplinary proceeding involving Tennessee attorney Thomas Fleming Mabry. In March 2019, the Board of Professional Responsibility filed a petition for discipline against Mr. Mabry charging him with numerous infractions based on complaints from several different parties. After the onset of the COVID-19 pandemic, Mr. Mabry refused to participate in depositions, either in-person, telephonically, or over videoconference. At his final disciplinary hearing conducted via Zoom, Mr. Mabry briefly connected, by audio only, and objected to holding the hearing virtually and to the Board introducing depositions of unavailable witnesses. He requested an indefinite continuance. He ended the connection. The hearing continued without Mr. Mabry’s participation, and the Hearing Panel found him in violation of multiple Tennessee Rules of Professional Conduct. The panel permanently disbarred Mr. Mabry and ordered him to make restitution. Mr. Mabry appealed to the chancery court claiming several procedural violations, but the chancery court found no merit in his arguments. Mr. Mabry has now filed a direct appeal to this Court, raising the same procedural challenges. Upon review, we agree with the judgments of the Hearing Panel and chancery court—disbarment is the appropriate sanction for Mr. Mabry’s actions.

Gerald D. Waggoner, Jr. v. Board of Professional Responsibility

A Board of Professional Responsibility hearing panel found that a Shelby County attorney’s law license should be suspended for four years based on multiple violations of the Rules of Professional Conduct (RPCs), including RPC 5.5(a). The attorney appealed part of the hearing panel’s decision, and the trial court affirmed in part, reversed in part, and modified the sanction to one year. The Board appeals the trial court’s decision that the attorney did not violate RPC 5.5(a) by practicing law while his license was suspended. We find that the attorney violated RPC 5.5(a) by continuing to manage and market his law practice; by directly or indirectly communicating with office staff, attorneys, and former clients; and by recruiting and hiring attorneys while his law license was suspended. The hearing panel’s decision that the attorney violated RPC 5.5(a) is supported by substantial and material evidence. We hold that the attorney’s law license shall be suspended for two years, with eighteen months served on active suspension. This sanction is based on the RPC 5.5(a) violation, as well as the hearing panel’s findings that he violated additional RPCs, which he did not appeal, the American Bar Association’s Standards for Imposing Lawyer Sanctions (ABA Standards), five aggravating factors, and no mitigating factors. The attorney shall also make appropriate restitution, obtain additional continuing education as ordered by the trial court, and engage a practice monitor during his probated suspension.

In re: James Ralph Hickman

In this case, we consider the appropriate discipline for Tennessee attorney James Ralph Hickman, Jr. The Board of Professional Responsibility filed a petition for discipline against Hickman alleging that he violated the Rules of Professional Conduct while representing an estate in probate proceedings. A hearing panel of the Board adjudicated the petition and recommended a one-year suspension, with “at least” ninety days served as an active suspension and the rest on probation. Any violation of the conditions of probation would result in “reversion to active suspension.” The hearing panel also directed Hickman to obtain a practice monitor during the probationary period, complete fifteen additional hours of estate-management continuing legal education (“CLE”) and three additional hours of ethics CLE, and pay the costs of the matter. Neither Hickman nor the Board appealed. The Board petitioned this Court for an order enforcing the hearing panel’s judgment. Exercising our authority under Tennessee Supreme Court Rule 9, section 15.4, we determined that the punishment imposed by the hearing panel appeared too lenient and proposed to increase it. After carefully considering the entire record, “with a view to attaining uniformity of punishment throughout the State and appropriateness of punishment under the circumstances of each particular case,” Tenn. Sup. Ct. R. 9, § 15.4(b), we affirm the hearing panel’s one-year suspension but modify the judgment to impose six months of active suspension followed by six months on probation. We also clarify that the period of probation imposed should be fixed rather than indefinite and that violation of a condition of probation does not automatically result in reversion of the probationary period to active suspension. We affirm the decision of the hearing panel in all other respects.

Board of Professional Responsibilty v. Candes Vonniest Prewitt

This is an appeal of a trial court's judgement affirming a decision of a hearing panel of the Board of Professional Responsibility. The hearing panel found that an attoreny had violated multiple Rules of Professional Conduct and imposed a thirty-day suspension from the pracitce of law with conditions on reinstatement. After careful review, we affirm the decision of the hearing panel and the judgement of the trial court. 

Tyree B. Harris, IV v. Board of Professional Responsibility 

In this appeal from attorney disciplinary proceedings, the hearing panel found that the attorney's testimony about his income in a juvenile court proceeding to reduce his child support obligation violated Tennessee Supreme Court Rule 8, RPC 8.4(c). The hearing panel said that the attorney's answers were carefully crafted to give the appearance of literal truth but were in fact dishonest in that they intentionally omitted relevant information fairly called for in the questions. The hearing panel found that the presumptive sanction was disbarment, but it reduced the sanction to a one-year suspension in light of the attorney's prior unblemished forty-year legal career. The attorney appealed the hearing panel's decision to the circuit court, which affirmed. The attorney now appeals to this Court. He maintains that, in context, his answers were truthful and responsive to the specific questions asked, and that there was no violation of the Rules of Professional Conduct. He also contends that the sanction imposed by the hearing panel is overly harsh and an abuse of discretion. We affirm the trial court's judgment upholding the hearing panel's decision.

Board of Professional Responsibility v. Charles Edward Walker 

A Board of Professional Responsibility hearing panel found that an attorney should be suspended from the practice of law for three years for violating multiple provisions of the Tennessee Rules of Professional Conduct. The trial court affirmed, finding that the hearing panel’s decision was supported by substantial and material evidence and was neither arbitrary nor an abuse of discretion. Finding no error, we affirm.

In re: Loring Edwin Justice

An attorney who had been disbarred was assessed costs associated with his disbarment proceedings pursuant to pre-2014 Tennessee Supreme Court Rule 9, section 24.3. The attorney timely filed a petition seeking relief from costs, and a panel of the Board of Professional Responsibility conducted a hearing on the petition. The panel reduced the costs for 11.2 hours of disciplinary counsel time and otherwise denied the petition. The attorney has appealed to this Court, as permitted by pre-2014 Rule 9, section 24.3. Having carefully and thoroughly considered the record and each of the issues raised, we affirm the panel’s decision.

In re: Larry E. Parrish

The Tennessee Supreme Court has affirmed the Tennessee Board of Professional Responsibility’s assessment of costs from a disciplinary proceeding to Memphis attorney Larry E. Parrish and ordered him to pay the costs within 45 days.

Effective January 1, 2014, Tennessee Supreme Court Rule 9, which governs attorney discipline, was amended. The revised Rule 9 changed the process for assessing costs against attorneys in disciplinary cases filed or initiated on or after January 1, 2014. This case arose in 2013 when the Board received complaints of misconduct about Mr. Parrish. The Board filed a disciplinary proceeding against Mr. Parrish that resulted in findings of misconduct and sanctions against him. The Tennessee Supreme Court reviewed Mr. Parrish’s case, affirmed the findings of misconduct, and suspended him from practicing law for six months, with 30 days to be served on active suspension and the remainder on probation. After Mr. Parrish served his 30-day suspension, he agreed to a payment plan for the Board’s costs and made one payment. The Supreme Court reinstated Mr. Parrish to the practice of law. Soon after he was reinstated, Mr. Parrish petitioned the Board to revoke the costs assessed against him. Mr. Parrish claimed that the Board should have assessed costs based on the revised version of Rule 9 in effect when he was reinstated rather than Rule 9 in effect in 2013 when his disciplinary proceeding was initiated.

A hearing panel of the Board heard Mr. Parrish’s claims and denied him relief, finding that the Board had properly assessed costs against Mr. Parrish under the version of Rule 9 in effect when his disciplinary proceeding began in 2013. Mr. Parrish appealed to the Tennessee Supreme Court.

The Supreme Court affirmed the hearing panel’s decision, holding that the version of Rule 9 that applies in the assessment of costs depends on when the disciplinary case was filed or initiated, not when the attorney was reinstated. Therefore, the Board properly assessed costs against Mr. Parrish under the version of Rule 9 in effect when his misconduct was reported to the Board in 2013. The Supreme Court ordered Mr. Parrish to pay the costs he owes to the Board within 45 days of the filing of the Court’s opinion. Mr. Parrish’s failure to timely pay the costs may serve as a ground for revocation of his reinstatement to practice law.

In re: Winston Bradshaw Sitton

This case is a cautionary tale on the ethical problems that can befall lawyers on social media. The attorney had a Facebook page that described him as a lawyer. A Facebook “friend” involved in a tumultuous relationship posted a public inquiry about carrying a gun in her car. In response to her post, the attorney posted comments on the escalating use of force. He then posted that, if the Facebook friend wanted “to kill” her ex-boyfriend, she should “lure” him into her home, “claim” he broke in with intent to do her harm, and “claim” she feared for her life. The attorney emphasized in his post that his advice was given “as a lawyer,” and if she was “remotely serious,” she should “keep mum” and delete the entire comment thread because premeditation could be used against her “at trial.” In the ensuing disciplinary proceedings, a Board of Professional Responsibility hearing panel found that the attorney’s conduct was prejudicial to the administration of justice in violation of Rules of Professional Conduct 8.4(a) and (d). It recommended suspension of his law license for sixty days. Under Tennessee Supreme Court Rule 9, § 15.4, this Court determined that the punishment imposed by the hearing panel appeared inadequate and, after briefing, took the matter under advisement. We now hold that the sanction must be increased. The attorney’s advice, in and of itself, was clearly prejudicial to the administration of justice and violated the Rules of Professional Conduct. In addition, his choice to post the remarks on a public platform amplified their deleterious effect. The social media posts fostered a public perception that a lawyer’s role is to manufacture false defenses. They projected a public image of corruption of the judicial process. Under these circumstances, the act of posting the comments on social media should be deemed an aggravating factor that justifies an increase in discipline. Accordingly, we modify the hearing panel’s judgment to impose a four-year suspension from the practice of law, with one year to be served on active suspension and the remainder on probation.

Douglas Ralph Beier v. Board of Professional Responsibility

In this appeal from attorney disciplinary proceedings, the hearing panel of the Tennessee Board of Professional Responsibility determined that the attorney’s conduct in two cases violated the Rules of Professional Conduct. In one case, the hearing panel found that the attorney signed the name of a witness on an affidavit, falsely notarized the signature, and did not disclose to the trial court or opposing counsel that he had signed the witness’s affidavit. In another case, the hearing panel found, the attorney persuaded a client in a probate matter to agree to an unreasonable contingency fee arrangement, took advantage of the client’s disability, misrepresented to the probate court that the client was the decedent’s sole heir, failed to disclose the existence of other heirs, and got the probate court to agree to close the estate without a detailed accounting in order to avoid judicial scrutiny of the unreasonable fee. The hearing panel suspended the law license of the appellant attorney for two years, with three months served as active suspension and the remainder on probation. The attorney and the Board both appealed the hearing panel’s decision to the chancery court. The chancery court affirmed the hearing panel’s findings as to rule violations and aggravating and mitigating factors, but it modified the sanction to two years active suspension. The attorney now appeals to this Court, arguing that his conduct was not dishonest, he did not take advantage of a vulnerable client, and his probate fee arrangement was not unreasonable. We affirm the hearing panel’s factual findings and its findings as to rule violations. In view of the seriousness of the violations, we affirm the chancery court’s modification of the sanction to two years active suspension.

George H. Thompson, III v. Board of Professional Responsibility

This is an attorney discipline proceeding concerning attorney George H. Thompson, III, and his representation of a client in her personal injury action. After filing a nonsuit on his client’s behalf, the attorney failed to refile the case in a timely manner, which resulted in the client’s claim being barred by the applicable statute of limitations. The attorney later admitted his error and paid the client a sum of money to settle her potential claim against him; however, the attorney failed to advise the client in writing that she should seek independent legal counsel in reaching a settlement. The Board of Professional Responsibility (“Board”) filed a petition for discipline against the attorney, and a hearing panel (“Panel”) imposed a sanction of a one-year suspension with thirty days to be served as an active suspension and the remainder to be served on probation with conditions. The attorney sought review of the Panel’s decision in chancery court, and upon its review, the chancery court affirmed the Panel’s decision. The attorney has now filed a direct appeal to this Court. Following a thorough review of the record and applicable legal authorities, we affirm the judgment of the chancery court.

Board of Professional Responsibility v. James S. MacDonald

The Board of Professional Responsibility (“the Board”) filed a Petition for Discipline against James MacDonald (“Attorney”) based on a single complaint arising from his representation of Michael Huddleston.  A hearing panel (“the Panel”) was appointed and, after an evidentiary hearing, the Panel dismissed the Petition for Discipline and concluded that the Board “failed to sustain its burden of proving, by a preponderance of the evidence, that Attorney violated” any Rules of Professional Conduct (“RPC”).  Thereafter, the Board filed a petition for review of the Panel’s decision in the Knox County Chancery Court.  The chancery court reversed the Panel’s dismissal of all six rule violations and determined that the Panel’s conclusions were arbitrary and capricious and unsupported by the evidence.  In addition, the chancery court held that the Panel abused its discretion by applying an incorrect legal standard.  The chancery court found that Attorney violated all six rules alleged in the Board’s petition and imposed a public censure as punishment.  Attorney sought review in this Court, arguing that the chancery court incorrectly substituted its own judgment for that of the Panel’s and abused its discretion.  Upon review of the record and applicable law, we reverse the chancery court’s conclusion that Attorney violated RPC 3.3(b) and (c), 3.4(a) and (b), and 8.4(a), and we reinstate the Panel’s dismissal of those allegations.  Additionally, we hold that the chancery court was without authority to conclude that Attorney violated RPC 8.4(c), and this Court must treat the Panel’s failure to make a conclusion as a dismissal of the allegation.  Therefore, the Petition for Discipline against Attorney is dismissed in its entirety.

James A. Dunlap, Jr. v. Board of Professional Responsibility 

Tennessee Supreme Court has affirmed the one-year suspension of Georgia attorney James A. Dunlap, Jr., from the practice of law in Tennessee.

Mr. Dunlap had been admitted to practice in Tennessee for the limited purpose of representing a client in an administrative appeal before the Administrative Procedures Division of the Tennessee Secretary of State’s Office. The one-year suspension resulted from his misconduct while representing the client when he failed to disclose material information and made misrepresentations to the administrative law judge presiding over the appeal, threatened to sue the judge in an attempt to influence the judge’s decision, and mischaracterized the judge and the tribunal as not being fair and impartial.

A Board of Professional Responsibility hearing panel found that Mr. Dunlap’s conduct violated Tennessee Rules of Professional Conduct 3.3 (candor toward the tribunal), 3.5(a) (impartiality and decorum of the tribunal), 8.4(c) (conduct involving dishonesty, fraud, deceit, or misrepresentation), and 8.4(d) (conduct that is prejudicial to the administration of justice). The hearing panel recommended a one-year suspension for Mr. Dunlap’s misconduct. The Davidson County Chancery Court affirmed the hearing panel’s decision. Mr. Dunlap appealed to the Tennessee Supreme Court challenging the factual bases for the hearing panel’s findings, arguing that suspension was inconsistent with sanctions imposed in other cases, and asserting that his conduct did not cause any harm.

The Supreme Court examined the evidence, the presumptive sanction for Mr. Dunlap’s misconduct, and the applicable aggravating and mitigating factors under the American Bar Association’s Standards for Imposing Lawyer Sanctions. The Court concluded that the hearing panel’s decision was supported by substantial and material evidence and was neither arbitrary nor an abuse of discretion. The Supreme Court also determined that the delay in the administrative appeal resulting from Mr. Dunlap’s misconduct and his disparaging remarks toward the administrative law judge and the tribunal evidenced harm to the legal system. Thus, the Supreme Court affirmed the chancery court’s judgment and upheld Mr. Dunlap’s one-year suspension from the practice of law in Tennessee.

2024-02