Recent Supreme Court Opinions
Sean K. Hornbeck v. Board of Professional Responsibility of the Supreme Court of Tennessee
In this attorney disciplinary appeal, upon petition by the Tennessee Board of Professional Responsibility, this Court ordered the temporary suspension of the attorney from the practice of law based on the threat of substantial harm he posed to the public. For a time, the attorney was placed on disability status; later he was reinstated to suspended status. Subsequently, after an evidentiary hearing, a hearing panel found multiple acts of professional misconduct, including knowing conversion of client funds with substantial injury to clients, submitting false testimony and falsified documents in court proceedings, engaging in the unauthorized practice of law, violating Supreme Court orders, and defrauding clients. The hearing panel determined that the attorney should be disbarred. On appeal to the chancery court, the attorney argued inter alia that the disbarment should be made retroactive to the date of his temporary suspension. The chancery court affirmed the decision of the hearing panel. On appeal to this Court, the attorney does not question the disbarment but argues that it would be arbitrary and capricious not to make his disbarment retroactive to the date of his temporary suspension, in order to advance the date on which he may apply for reinstatement of his law license. We disagree. In contrast to suspension, which contemplates that the lawyer will return to law practice, disbarment is not a temporary status. Disbarment is a termination of the individual’s license to practice law in Tennessee. Therefore, we decline to make the effective date of the attorney’s disbarment retroactive to the date of his temporary suspension. Accordingly, we affirm.
Click here to read Sean K. Hornbeck v. Board of Professional Responsibility of the Supreme Court of Tennesse authored by Justice Holly J. Kirby.
Board of Professional Responsibility of the Supreme Court of Tennessee v. Robin K. Barry
This is an appeal from attorney disciplinary proceedings based on the attorney’s knowing conversion of client funds. In this case, disputed insurance funds were placed in the attorney’s trust account pending resolution of the dispute. Shortly after the disputed insurance funds were deposited, the attorney began to comingle funds in her trust account and use the insurance proceeds for her own purposes. At about the time the dispute over the insurance funds was resolved, the attorney moved out of state. In response to her client’s repeated inquiries about disbursement of the client’s share of the funds, the attorney stalled, made misrepresentations, and finally stopped communicating with the client altogether. After the client filed a complaint with the Tennessee Board of Professional Responsibility against the attorney, the hearing panel found violations of RPC 1.4, RPC 1.15(a) and (d) and RPC 8.4, which included the knowing conversion of client funds and the failure to communicate. The hearing panel found five aggravating circumstances and no mitigating circumstances. It suspended the attorney’s Tennessee law license for eighteen months, two months of which were to be served on active suspension. After the Board appealed, the chancery court held that the hearing panel’s decision was arbitrary and capricious and that disbarment was the only appropriate sanction. The attorney now appeals to this Court, arguing that disbarment is not warranted. In the alternative, the attorney argues that the disbarment should be made retroactive to the date of her original temporary suspension. Under the circumstances of this case, we affirm the chancery court and disbar the attorney from the practice of law in Tennessee, and we decline to make the disbarment retroactive.
Click here to read the opinion in Board of Professional Responsibility of the Supreme Court of Tennessee v. Robin K. Barry authored by Justice Holly J. Kirby.
Danny C. Garland, II v. Board of Professional Responsibility of the Supreme Court of Tennessee
This cause came on to be heard upon the record on appeal from the Chancery Court, the briefs of the parties, and the arguments of counsel. Upon consideration thereof, this Court finds and concludes that the judgment of the trial court is affirmed.
We hold that the hearing panel's decision that Danny C. Garland, II, violated the Rules of Professional Conduct by failing to reasonably communicate with his client and act with reasonable diligence in his representation was not arbitrary, capricious, or characterized by an abuse of discretion. We also hold that Mr. Garland's public censure was supported by substantial and material evidence. Therefore, the trial court properly upheld the hearing panel's determination of professional misconduct and imposition of discipline.
Click here to read the opinion in Danny C. Garland, II v. Board of Professional Responsibility of the Supreme Court of Tennessee authored by Justice Sharon G. Lee.
In Re: Paul Julius Walwyn, BPR #018263
The Tennessee Supreme Court has increased a hearing panel’s recommended punishment of a public censure and suspended Paul Julius Walwyn from the practice of law for one year. He will serve six months of the suspension on active suspension and six months will be served on probation with a practice monitor. The Court also required that Mr. Walwyn complete six additional hours of CLE on subjects related to the management of a law practice and/or client communication.
This disciplinary matter arose out of Mr. Walwyn’s representation of his client in a first degree murder trial. Following the client’s conviction, Mr. Walwyn filed a motion for new trial, which was denied. Mr. Walwyn failed to file a notice of appeal for three and a half years and failed to adequately communicate with his client in the interim. The client filed this complaint during the delay in his proceedings, after which a late-filed notice of appeal was filed and was later accepted by the Court of Criminal Appeals.
The hearing panel determined that Mr. Walwyn had violated the Rules of Professional Conduct by not exhibiting the skill, thoroughness, or preparation necessary when representing his client; by failing to file a timely notice of appeal; by waiting three and a half years to file a motion to accept a delayed appeal; by failing to keep his client informed about the status of his case; by violating the Rules of Professional Misconduct; and by engaging in conduct that was prejudicial to the administration of justice with the above stated conduct. Accordingly, the hearing panel imposed a public censure with the conditions that he be supervised by a practice monitor for one year and that he complete six additional hours of CLE on subjects related to the management of a law practice and/or client communication.
Neither the Board of Professional Responsibility nor Mr. Walwyn appealed the hearing panel’s decision. The Tennessee Supreme Court then reviewed the discipline pursuant to Rule 9 of the Tennessee Supreme Court Rules and entered an order proposing to increase the punishment because it seemed inadequate. After review, the Court, in a unanimous opinion authored by Justice Roger A. Page, concluded that a public censure was inadequate, particularly in light of Mr. Walwyn’s prior disciplinary record. As a result, the Court increased the attorney’s discipline to one year on suspension with six months of the suspension on active suspension and six months to be served on probation with a practice monitor. The Court also required that the attorney complete six additional hours of CLE on subjects related to the management of a law practice and/or client communication.
Peter M. Napolitano v. Board of Professional Responsibility
This matter initially originated from a fee dispute between attorney Peter M. Napolitano (“Attorney”) and his client Gayle Connelly (“Client”). Client filed a complaint with the Tennessee Board of Professional Responsibility (“the Board”) regarding the fee dispute in 2008. The Board dismissed this complaint in 2010 without imposing any sanctions. Client sued Attorney over the fee dispute and, after Attorney was deposed in conjunction with the lawsuit, Client filed a second complaint with the Board in 2012. This second complaint alleged that Attorney had mishandled funds in his trust account and lied under oath. The Board prosecuted this second complaint, resulting in a hearing before a hearing panel (“the Panel”). The Panel determined that Attorney had committed ethical violations related to his trust account and by lying under oath. Accordingly, the Panel imposed sanctions against Attorney, including a five-year suspension of Attorney’s law license, with one year of active suspension. Attorney and the Board both sought review in circuit court. The circuit court modified the Panel’s sanctions in part but affirmed the five-year suspension. Both Attorney and the Board sought review by the Supreme Court, with Attorney seeking a lesser punishment and the Board seeking disbarment. Additionally, both parties disagree with the Panel’s order of $7,500 in restitution to Client. The Court holds that the five-year suspension is appropriate and that the Panel did not err in ordering $7,500 in restitution. Accordingly, the Court affirmed the circuit court’s judgment but modified it by adding the requirement of a practice monitor during Attorney’s probationary period.
Click here to read the opinion in Peter M. Napolitano v. Board of Professional Responsibility authored by Chief Justice Jeffrey S. Bivins.
In re: Robert Vogel
The Supreme Court has decided to increase the punishment recommended by a hearing panel to discipline an attorney for sexual misconduct involving a client that he was appointed to represent in a criminal matter and for revealing confidential information of another client to a judge in a different matter.
Robert Vogel, a Knoxville attorney, received a one-year suspension of his law license from a hearing panel of the Board of Professional Responsibility, which oversees attorney discipline. Although the panel imposed the punishment along with several conditions, it agreed that only 30 days was to be served on active suspension, with the remainder to be served on probation. In reaching its decision only to impose 30 days of active suspension, the hearing panel relied upon a number of remedial actions Mr. Vogel undertook in response to his misconduct.
The Supreme Court found the proposed punishment inadequate and instead proposed the punishment be increased. The Court reviewed the case to determine whether the punishment imposed was uniform with prior disciplinary decisions and appropriate under the circumstances of this case. As part of its duty to regulate the practice of law in Tennessee, the Supreme Court bears “the ultimate responsibility for enforcing the rules governing the legal profession.”
While recognizing the same remedial actions noted by the hearing panel, the Court placed less emphasis on those mitigating factors. Instead, the Court focused more heavily on the fact that Mr. Vogel “failed to safeguard the trust of a vulnerable client and exploited his … role” as her attorney, particularly in light of the fact that the client faced serious federal criminal charges. The client was a young woman who continued to use drugs during Mr. Vogel’s representation of her, including during the time period of the multiple sexual encounters. The Court specifically noted that Mr. Vogel pressured the young woman to continue the sexual relationship even after she requested that it stop, and she reluctantly complied. The Court concluded that Mr. Vogel’s conduct represents “a serious violation of the Rules of Professional Conduct and warrants a one-year active suspension.”
Board of Professional Responsibility v. Connie Reguli
The Tennessee Supreme Court has unanimously affirmed a Board of Professional Responsibility hearing panel’s imposition of sanctions against Williamson County attorney Connie Reguli and the trial court’s requirement that Ms. Reguli pay restitution to a former client.
In 2011, the Board of Professional Responsibility filed a petition for discipline against Ms. Reguli based on three complaints of misconduct. The petition alleged, among other things, that Ms. Reguli failed to return client communications, refund unearned fees, provide an accounting of fees to a former client and the board, and that Ms. Reguli’s website contained false statements.
A hearing panel found that Ms. Reguli violated multiple Rules of Professional Conduct and imposed an 11-month, 29-day suspension, to be served on probation subject to certain conditions. Ms. Reguli and the board appealed the panel’s judgment to the Williamson County Circuit Court, which modified the panel’s sanction by reducing the length of suspension, altering and eliminating various conditions of probation, and ordering Ms. Reguli to pay restitution to a former client. Ms. Reguli and the board appealed to the Supreme Court. Ms. Reguli alleged a number of procedural, jurisdictional, and constitutional objections, while the board challenged the trial court’s modification of the panel’s probationary period and requirements.
The Supreme Court reinstated the hearing panel’s original sanction and imposed the trial court’s additional requirement of restitution. In an opinion authored by Chief Justice Sharon G. Lee, the Court addressed Ms. Reguli’s claims, finding each to be without merit. The Court held that the fee agreement between Ms. Reguli and a former client did not adequately explain the nature of the fee and that Ms. Reguli failed to provide an accounting to her client and the Board. The Court also held that attorneys are ethically accountable for prohibited representations on their websites, even if third-party website operators are primarily responsible for the representations.
Based on Ms. Reguli’s prior disciplinary record, her bad-faith failure to respond to requests for information from the board, her dishonest and selfish motives, her refusal to acknowledge her misconduct, and her substantial experience as a licensed attorney, the Court found that an 11-month, 29-day probated suspension from the practice of law was appropriate. As conditions of her probation, Ms. Reguli must pay restitution to her former client, submit to a probation monitor, and undergo an evaluation by the Tennessee Lawyer’s Assistance Program and submit to any monitoring requirement that TLAP deems necessary.
Click here to read the opinion in Board of Professional Responsibility v. Connie Reguli, authored by Chief Justice Lee.
Walwyn v. Board of Professional Responsibility
The Tennessee Supreme Court has unanimously affirmed a six-month suspension of Nashville attorney Paul J. Walwyn’s law license for failure to act diligently in his representation of clients.
In 2012, the Board of Professional Responsibility filed a petition for discipline against Mr. Walwyn based on three complaints of misconduct arising out of his appellate representation of three criminal defendants. A hearing panel found that Mr. Walwyn had violated certain Rules of Professional Conduct, including the rule requiring lawyers to act with reasonable diligence and promptness in representing a client, the rule requiring lawyers to make reasonable efforts to expedite litigation, and the rule requiring lawyers not to engage in conduct prejudicial to the administration of justice. The hearing panel concluded that Mr. Walwyn should be suspended from the practice of law for six months, with 30 days’ active suspension and five months’ probation.
Mr. Walwyn appealed to the Chancery Court for Davidson County, which affirmed the hearing panel’s findings and judgment. Mr. Walwyn then appealed to the Supreme Court, alleging a number of procedural, evidentiary, and constitutional errors and claiming that the hearing panel acted arbitrarily.
The Supreme Court upheld the decisions of the hearing panel and the Davidson County Chancery Court, finding each of Mr. Walwyn’s claims of error to be without merit. In particular, the Court rejected Mr. Walwyn’s claim that the procedure by which his suspension was imposed is unconstitutional because the standard of proof is preponderance of the evidence rather than clear-and-convincing evidence. The Court also held that the six-month suspension, with 30 days of active suspension and five months of probation, is an appropriate sanction.
Click here to read the unanimous opinion in Paul J. Walwyn v. Board of Professional Responsibility authored by Justice Cornelia A. Clark.
Sallee v. Tennessee Board of Professional Responsibility
The Tennessee Supreme Court has upheld the decision by a hearing panel of the Board of Professional Responsibility to suspend Anderson County lawyer Yarboro Sallee’s law license for one year. The Court held that the sanction was appropriate in light of the multiple ethical violations Ms. Sallee committed.
In 2010, Ms. Sallee was hired to file a wrongful death action arising out of the death of the clients’ daughter. They agreed to pay her an hourly rate, and she estimated to them that the litigation would cost no more than $100,000. Less than three months later, Ms. Sallee claimed that she had incurred hourly fees totaling over $140,000. For this, she had accomplished little more than filing the wrongful death complaint, filing related pleadings in probate and juvenile court, and gathering obvious records. When Ms. Sallee insisted that the clients agree to pay her contingency fees as well as the hourly fees, they discharged her.
After the clients discharged Ms. Sallee, she refused to return to them items key to the wrongful death litigation, such as brain tissue slides from their daughter’s autopsy. When the former clients sued Ms. Sallee to force her to return the withheld items, Ms. Sallee threatened to file criminal charges against them. Finally, the former clients filed a complaint against Ms. Sallee with Tennessee’s Board of Professional Responsibility.
The Board investigated Ms. Sallee, who insisted that her conduct had been reasonable and ethical. She gave the Board documentation of her hourly charges, which claimed that Ms. Sallee had worked as many as 23 hours of billable time in a single day and included fees for things such as watching many hours of reality crime television shows.
A hearing panel found that Ms. Sallee had violated a number of the Rules of Professional Responsibility by, among other things, charging the clients excessive fees, insisting that they agree to pay contingency fees in addition to hourly fees, failing to communicate with the clients about her fees, withholding items from the clients after they discharged her, and threatening to file criminal charges against the clients. As the sanction, the hearing panel recommended suspension of Ms. Sallee’s law license for one year.
Ms. Sallee filed for judicial review of the hearing panel’s decision, and the trial judge upheld the sanction. Ms. Sallee then appealed to the Tennessee Supreme Court. She insisted that there was no basis for finding ethical violations and that the one-year suspension was too severe a sanction.
After reviewing the record, the Supreme Court found ample support for the hearing panel’s finding that Ms. Sallee had violated multiple ethical rules. As for the one-year suspension, the Court found that the most disturbing factor was Ms. Sallee’s continued insistence that she did nothing wrong.
“At every turn in these proceedings, faced with findings at every level that her conduct breached numerous ethical rules, Attorney Sallee has been doggedly unrepentant. Indeed, her consistent response has bordered on righteous indignation,” wrote Justice Holly Kirby in the unanimous opinion.
The Court held that the one-year suspension of Ms. Sallee’s law license was well-founded and sustained the sanction.
Click here to read the Sallee v. Tennessee Board of Professional Responsibility opinion, authored by Justice Kirby.
Homer L. Cody v. Board of Professional Responsibility
The Tennessee Supreme Court has unanimously affirmed a 180-day suspension of Memphis attorney Homer L. Cody’s law license.
In 2011, the Board of Professional Responsibility filed a petition for discipline against Mr. Cody based on a complaint of misconduct. The petition alleged, among other things, that Mr. Cody failed to cease representation of two parties with conflicting interests. A hearing panel found that Mr. Cody did, in fact, have a conflict of interest and that his continued representation of both parties was a violation of the Rules of Professional Conduct. Initially the panel recommended that Mr. Cody be publicly censured for his violation; however, even after the panel’s recommendation, Mr. Cody continued to represent both clients. As a result of his continued representation, in August 2012, the Board of Professional Responsibility filed a second petition against Mr. Cody, and a hearing panel recommended that he be suspended from the practice of law for a period of 180 days.
Mr. Cody appealed to the Shelby County Circuit Court, which affirmed the hearing panel’s findings and conclusions of law. Mr. Cody then appealed to the Supreme Court, alleging a number of procedural, jurisdictional, and constitutional errors and claiming that the hearing panel acted arbitrarily in finding that he violated the Rules of Professional Conduct and in imposing a 180-day suspension.
The Supreme Court upheld the decisions of the hearing panel and the Shelby County Circuit Court. In an opinion authored by Chief Justice Sharon G. Lee, the Court addressed Mr. Cody’s claims, finding each to be without merit. The Court further found that the hearing panel did not act arbitrarily in finding that Mr. Cody failed to adhere to the duty required of attorneys under the Rules of Professional Conduct. Based on Mr. Cody’s multiple rule violations, prior disciplinary record, repeated inability to follow court orders, refusal to acknowledge his misconduct, and more than 30 years of experience as a licensed attorney, the Court found that a 180-day suspension from the practice of law was appropriate.
Click here to read the Homer L. Cody v. Board of Professional Responsibility opinion, authored by Chief Justice Lee.