e60b7298-9fde-4a6e-a6ed-40fa9ac65c64.pdf (2022)

Original PDF Document

---

Download Official Record (in-re-hickman-sc-opinion.pdf)

Go to Top

Alternative Accessible HTML

06/30/2023
IN THE SUPREME COURT OF TENNESSEE
AT NASHVILLE
Assigned on Briefs September 30, 2022

IN RE: JAMES RALPH HICKMAN, JR., BPR #020125
___________________________________

No. M2022-00755-SC-BAR-BP
___________________________________

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.

Tenn. Sup. Ct. R. 9, § 15.4; Judgment of the Hearing Panel Modified in Part;
Affirmed in Part

SARAH K. CAMPBELL, J., delivered the opinion of the court, in which ROGER A. PAGE, C.J.,
and SHARON G. LEE, JEFFREY S. BIVINS, and HOLLY KIRBY, JJ., joined.

James W. Milam, Brentwood, Tennessee, for the Petitioner, Board of Professional
Responsibility.
Gregory Brown, Colleen T.G. Conboy, and G. Alan Rawls, Knoxville, Tennessee, for the
Respondent, James Ralph Hickman, Jr.

OPINION

I. Factual and Procedural Background

James Ralph Hickman, Jr., has been licensed to practice law in Tennessee since
1999. He works as a solo practitioner in Sevier County handling primarily family law and
appointed criminal matters. On January 29, 2020, the Board filed a petition for discipline
against Hickman alleging that he violated the Rules of Professional Conduct (“RPC”) while
representing the estate of Betty Marshall Lawrence in probate proceedings. In October
2021, a disciplinary hearing was held in Sevierville, Tennessee. We begin by providing a
summary of the facts underlying the Board’s petition and of the hearing panel’s judgment.1

Betty Marshall Lawrence’s Estate

Hickman’s father, James Ralph Hickman, Sr., had a bookkeeping and tax-
preparation business in Sevier County. For many years, he prepared taxes for Betty
Marshall Lawrence and became well acquainted with her. Lawrence’s health began to
decline in 2016. Around that time, she executed a power of attorney appointing Hickman’s
father as her attorney-in-fact.

Lawrence’s sister, Peggy Marshall, was her sole heir. The two were estranged and
had not spoken in about a year. Marshall eventually became aware that Hickman’s father
had been appointed as Lawrence’s attorney-in-fact, and she began communicating with
him about Lawrence’s health and other matters.

On October 15, 2016, Lawrence passed away. Marshall emailed Hickman’s father
to notify him of Lawrence’s death. She also emailed Hickman.

In the email to Hickman, Marshall noted that Hickman had “provided legal services”
to Lawrence in the “recent past” and expressed interest in “acquir[ing] his services to
handle probate” if probate was “part of [his] practice.” She requested that Hickman contact
her to schedule an appointment with her and her son. The email also mentioned Marshall’s
“reasonable expectation” that Hickman’s father, “as [Lawrence’s] POA [and] Accountant,
should be involved in providing professional services relating to estate issues to a final
settlement.” At that time, Marshall believed that she was going to serve as personal
representative of her sister’s estate. Marshall was no stranger to probate proceedings. She
had served as a Clerk and Master for Sevier County for nearly twenty years and as personal
representative for the estates of four family members.

1
The factual summary is based on the hearing panel’s findings of fact and the administrative record.

-2-
The meeting Marshall requested was held on October 17, 2016. Hickman, Marshall,
and Marshall’s son were in attendance. They discussed the probate process generally but
did not discuss legal fees or reach any agreement about fees. At some point after the initial
meeting with Hickman, Marshall became aware that her sister had executed a holographic
will and two codicils, one of which named Hickman’s father—not her—as the personal
representative of the estate.2

Hickman ultimately was retained by his father to represent Lawrence’s estate in the
probate proceedings. There was no written agreement between Hickman and his father
regarding fees, but Hickman claimed that his father suggested a flat percentage of the value
of the gross estate, with the percentage amount based on “a sliding scale which accounted
for ‘how big a pain [Marshall] was.’” Hickman agreed to this arrangement because he
expected “the time and labor involved in probating [Marshall’s] estate” to be “significantly
more than . . . for another similarly-sized estate” due to “Marshall’s reputation,
communication style, and role in the administration of the estate.”

Two days after her meeting with Hickman, Marshall sent Hickman’s father an email
stating that she “wish[ed] to wash [her] hands of further involvement” with administration
of the estate and requesting that he and Hickman proceed according to Lawrence’s wishes.

Marshall apparently had second thoughts, however, and remained involved as
administration of the estate moved forward. The next day, she inquired whether it was
“reasonable to expect at some point an inventory” of Lawrence’s estate. Hickman
responded that “the court will require an inventory . . . of real property and financial
holdings.” Although Marshall was willing to waive bond, she never waived inventory or
accounting.

On December 16, 2016, Hickman’s father requested a meeting to discuss the estate
and invited Hickman, Marshall, her son, and her son’s wife to attend. Legal fees were not
discussed at that meeting either. Rather than provide Marshall with an inventory,
Hickman’s father gave her a handwritten document valuing the estate at $103,421.00 and
listing assets that included cash, real property, and foreign currency. That document did
not identify expenses for legal fees or any other administrative costs.

Marshall emailed Hickman again in January 2017 to request an inventory and
accounting. Another email that Marshall sent that month to Hickman and his father

2
Hickman testified that his father also attended the meeting, that Marshall was aware at the time
of the meeting that his father was the personal representative, and that the parties decided at the meeting
that legal fees would be four to five percent of the gross estate. The hearing panel did not find this testimony
credible, in large part because it conflicted with documentary evidence. Hickman’s father likewise testified
that he and Hickman discussed the fee with Marshall. But “[c]ounsel for the parties acknowledged at trial
that the memory of [Hickman’s father] appeared to be impacted” by health issues he had been experiencing.
The hearing panel “acknowledge[d] that fact as it relate[d] to the weight to be given to his testimony.”

-3-
referenced her request for an inventory and her “continued inquiries” regarding assets. Yet
another email to Hickman’s assistant, which was forwarded to Hickman, again referenced
Marshall’s requests for an inventory. Marshall also emailed Hickman in early June 2017
to request a “status report” and referred to her “legal entitlement as to inventory [and]
expense of administration to this point.” Despite these and other repeated requests, neither
Hickman nor his father provided Marshall with an inventory or accounting.

Marshall also was in communication with Hickman and his father about Lawrence’s
car. At the time of her death, Lawrence owned a 2000 Ford Taurus. Hickman’s father took
possession of the car on October 21, 2016, and offered to purchase it from the estate for
$800. After receiving that offer, Marshall received an offer from a third party offering her
$3,000 for the car. Hickman’s father eventually transferred title to himself without paying
the estate.

Marshall wanted the probate proceeding completed as soon as possible. To that end,
a final meeting was held on June 26, 2017. Hickman, his father, Marshall, and Marshall’s
son attended the meeting. Neither Hickman nor his father provided Marshall with an
inventory at that meeting. Marshall’s son testified that he specifically raised the issue of
fees at the meeting because the fee arrangement had not been disclosed, and he knew it was
a question on his mother’s mind. But the fee arrangement was not disclosed at this meeting
either.

Hickman presented Marshall with a $77,000 check for her portion of the estate and
asked her to sign a receipt and release, which indicated the estate could be closed because
the personal representative had properly distributed and administered the estate. Marshall’s
son testified that, when Marshall was presented with the document, she became upset and
said the administration of the estate had not been handled properly. Frustrated, but knowing
that her son wanted her to wrap things up, Marshall eventually said, “Just hand me the
damn thing,” and signed the release, but only after Hickman assured her that his father
would file and provide her with an inventory and final accounting. She believed that
signing the release was the only way to bring the probate matter to a close and receive her
share of the estate. Marshall emailed Hickman the day after the meeting to confirm that he
had agreed to provide an inventory and accounting, and Hickman responded that he would
be “glad to honor these requests.” But neither Hickman nor his father did so.

On June 30, 2017, based on the release that Marshall had signed, Hickman filed a
motion to close the estate. The motion stated that certain disbursements from the estate
were made “as directed by Peggy Marshall,” but no inventory or accounting was filed with
the court. Nor did Hickman’s filings otherwise disclose how much the estate had paid
Hickman in legal fees or Hickman’s father for administering the estate. The probate court
granted the motion to close the estate on June 30, 2017, in reliance on “the affirmations
contained” in Hickman’s motion.

-4-
Despite never having entered a verbal or written agreement with Marshall regarding
the amount of fees to be paid from the estate, Hickman and his father each collected a fee
equal to six percent of the gross estate, or $12,000. They calculated the “gross estate” by
including real property that did not pass through probate and therefore was not under
administration. Excluding this real property, the combined fees received by Hickman and
his father amounted to twenty-two percent of the total value of the assets actually under
administration. Had Hickman charged his usual hourly rate of $225 for the 14.4 hours he
spent representing the estate, he would have earned only $3,240.

Hickman did not notify Marshall that he had filed the motion for closure. She
discovered that the estate had been closed when she inquired with the court clerk a few
weeks later. On July 20, 2017, Marshall emailed Hickman and his father to inform them
that she had learned the estate was closed. She noted that the “costs of administration” still
had not been disclosed and indicated that she was considering reopening the estate.

Marshall soon filed a petition to reopen the estate. The probate court granted her
petition, and she obtained new counsel to litigate the matter. The probate court ordered
Hickman and his father to file fee applications for any fees they had received from the
estate. Hickman filed a fee application which stated:

At the initial meeting between [Hickman, his father, and Marshall], a flat,
percentage fee was discussed and was agreed to by [Marshall]. Her only
concern was that she would not be in any way liable for the fee. That meeting
occurred October 17, 2016. The agreed percentage was 6 (6%) percent each
for the Personal Representative [Hickman’s father] and counsel [Hickman].
At each time this was discussed there was a conversation about how the
percentage would be calculated as well as the specific percentage. This
agreement was discussed again at the June 26, 2017, meeting before
[Marshall] signed the Receipt and Release.

The probate court also ordered Hickman’s father to file an inventory and accounting.
Although Hickman repeatedly urged his father to comply with the order, his father failed
to timely submit the documents and filed them only after the court threatened to hold him
in contempt.

Marshall objected to the inventory and accounting. The probate court ultimately
disallowed the $24,000 in fees paid out of the estate to Hickman and his father because
they “were unreasonable and without a basis in law or contract.” The court also required
Hickman’s father to pay the estate for Lawrence’s car and to pay the attorney’s fees
Marshall incurred in bringing the petition to reopen. In all, the probate court charged
Hickman’s father with the $32,217.14 that was owed to the estate after ruling on Marshall’s
objections to his accounting and inventory, as well as attorney’s fees. Hickman and his

-5-
father initially appealed the probate court’s ruling, but the appeal was dismissed after
Hickman paid $32,600.30 in settlement of the judgment against his father.

Both Marshall and the probate judge filed complaints against Hickman with the
Board of Professional Responsibility. On January 29, 2020, the Board filed a formal
petition for discipline against Hickman based on those two complaints. On October 19–20,
2021, a final hearing on the Board’s petition was held in Sevierville.

Hearing Panel’s Judgment

The hearing panel issued its written judgment on January 19, 2022. The panel
concluded that Hickman had violated three Rules of Professional Conduct: 1.5(a) (Fees),
3.3(a)(1) (Candor Toward the Tribunal), and 8.4(c) (Misconduct). See Tenn. Sup. Ct. R. 8.

Rule 1.5(a) provides that “[a] lawyer shall not make an agreement for, charge, or
collect an unreasonable fee or an unreasonable amount for expenses.” Id., RPC 1.5(a). The
hearing panel concluded that Hickman violated this rule by failing to make an appropriate
fee arrangement and by collecting an unreasonably excessive fee.

Rule 3.3(a)(1) provides that “[a] lawyer shall not knowingly make a false statement
of fact or law to a tribunal.” Id., RPC 3.3(a)(1). The hearing panel concluded that Hickman
violated this rule by making two false statements of fact to the probate court in documents
that he alone signed. First, he filed a motion for closure falsely stating that Marshall had
approved the disbursement of funds. Second, he filed a fee application falsely stating that
Marshall had agreed to the fee arrangement. The hearing panel noted that Comment 3 to
Rule 3.3(a)(1) provides that “an assertion purporting to be on the lawyer’s own
knowledge . . . may properly be made only when the lawyer knows the assertion is true or
believes it to be true on the basis of a reasonably diligent inquiry.” Id., RPC 3.3(a)(1) cmt.
3.

Rule 8.4(c) provides that “[i]t is professional misconduct for a lawyer to . . . engage
in conduct involving dishonesty, fraud, deceit, or misrepresentation.” Id., RPC 8.4(c). The
hearing panel concluded that Hickman violated this rule “by knowingly filing documents
with the Court which contained false statements of material fact and not disclosing the fee
arrangement for legal services provided to the estate before pressing Ms. Marshall to sign
the Receipt and Release,” by “failing to fulfill his duties to an heir of the estate as counsel
for the estate in apprising her of her rights,” and “by failing to ensure that Ms. Marshall
receive an inventory or accounting in a timely and meaningful manner.”

-6-
Turning to discipline, the hearing panel determined that American Bar Association
(“ABA”) Standards 4.62,3 6.12,4 and 7.25 applied and established suspension as the
baseline sanction. See Standards for Imposing Lawyer Sanctions 4.62, 6.12, 7.2 (Am. Bar
Ass’n, amended 1992) (hereinafter ABA Standards). The panel also noted that ABA
Standard 2.3 provides that the period of suspension should be at least six months. Under
ABA Standard 9.1, the hearing panel considered aggravating and mitigating factors to
determine the appropriate discipline for Hickman. The panel considered as aggravating
factors Hickman’s (1) dishonest or selfish motive; (2) refusal to acknowledge the wrongful
nature of his conduct; and (3) substantial experience in the practice of law. The only
mitigating factor the panel considered was Hickman’s lack of a prior disciplinary record.

The hearing panel ultimately recommended a one-year suspension and directed that
“no less than [ninety] days of this suspension should be an active suspension.” The
remainder of the suspension would be served on probation. During that probationary
period, Hickman was required to obtain a practice monitor who would report monthly to
disciplinary counsel. The hearing panel instructed that the active suspension should remain
in place until a practice monitor had been selected and retained. The panel also required
Hickman to complete fifteen additional hours of estate-management CLE and three
additional hours of ethics CLE and to pay the costs of the matter. Should Hickman fail to
comply with any conditions of probation, the judgment provided that the period of
probation would “rever[t] to active suspension for the remainder of the suspension period.”
Neither party appealed from the hearing panel’s decision. On June 6, 2022, the Board filed
with this Court a notice of submission with a proposed order of enforcement incorporating
the hearing panel’s decision.

On July 7, 2022, exercising its authority under Tennessee Supreme Court Rule 9,
section 15.4, this Court issued an order expressing concern that the sanction was too lenient
and not comparable to punishment imposed in similar cases. We also expressed concern
that the language the hearing panel used to identify the period of active suspension was too
indefinite. We proposed to increase Hickman’s punishment pursuant to Tennessee

3
ABA Standard 4.62 provides that “[s]uspension is generally appropriate when a lawyer knowingly
deceives a client, and causes injury or potential injury to the client.”
4
ABA Standard 6.12 provides that

[s]uspension is generally appropriate when a lawyer knows that false statements or
documents are being submitted to the court or that material information is improperly being
withheld, and takes no remedial action, and causes injury or potential injury to a party to
the legal proceeding, or causes an adverse or potentially adverse effect on the legal
proceeding.
5
ABA Standard 7.2 provides that “[s]uspension is generally appropriate when a lawyer knowingly
engages in conduct that is a violation of a duty as a professional and causes injury or potential injury to a
client, the public, or the legal system.”

-7-
Supreme Court Rule 9, section 15.4,6 directed the Board to file the record of the disciplinary
hearing, and set a briefing schedule. The matter was submitted to the Court for decision on
the record and the briefs, without oral argument.

II. Standard of Review

“This Court is the final and ultimate arbiter of the propriety of the professional
conduct of all lawyers practicing in Tennessee.” Flowers v. Bd. of Pro. Resp., 314 S.W.3d
882, 891 (Tenn. 2010). In that role, we promulgate and enforce the rules that govern the
legal profession in this State. Bd. of Pro. Resp. v. MacDonald, 595 S.W.3d 170, 181 (Tenn.
2020).

When a complaint is filed against an attorney alleging professional misconduct,
disciplinary counsel for the Board of Professional Responsibility investigates the
allegations. Tenn. Sup. Ct. R. 9, § 15.1(b). At the conclusion of the investigation,
disciplinary counsel may recommend dismissal, private informal admonition, private
reprimand, public censure, or prosecution of formal charges. Id. When a complaint is
prosecuted, the matter typically is decided by a hearing panel of the Board. See id.
§ 15.2(a), (d). Disciplinary counsel has the burden to prove allegations against an attorney
“by a preponderance of the evidence.” Id. § 15.2(h).

The hearing panel must submit “its findings and judgment, in the form of a final
decree of a trial court, to the Board within thirty days after the conclusion of the hearing.”
Id. § 15.3(a). If a hearing panel recommends discipline, the attorney can appeal the decision
or accept the judgment. See id. § 33. If the punishment is disbarment, suspension, or public
censure and no appeal is perfected from the hearing panel’s decision, the Board files with
this Court a notice of submission, the judgment, a proposed order of enforcement, and a
protocol memorandum. Id. § 15.4(b).

Even if neither party appeals the judgment of a hearing panel, we review the
judgment under our inherent authority to supervise and regulate the practice of law in
Tennessee. In re Sitton, 618 S.W.3d 288, 294 (Tenn. 2021); see also In re Cope, 549
S.W.3d 71, 73 (Tenn. 2018); In re Vogel, 482 S.W.3d 520, 530 (Tenn. 2016). To facilitate
that review, we may direct the Board to file the record of the disciplinary proceeding. See
Tenn. Sup. Ct. R. 9, § 15.4(b). Our review is aimed at “attaining uniformity of punishment
throughout the State and appropriateness of punishment under the circumstances of each
particular case.” Id.; see also id. § 15.4(d).

6
The Court’s order cited section 15.4(d) and (e). The Board correctly notes in a footnote in its brief
that the order should have cited section 15.4(b) and (c) instead because neither party appealed. This error
is harmless, because the operative language is identical.

-8-
If the punishment appears “inadequate or excessive,” this Court “issue[s] an order
advising the Board and the respondent attorney that it proposes to increase or to decrease
the punishment.” Id. § 15.4(c). When, as here, this Court proposes to increase the
punishment, the Court allows the attorney and the Board to file briefs. Id.

We review the hearing panel’s recommended punishment de novo. In re Walwyn,
531 S.W.3d 131, 137 (Tenn. 2017). We consider “all of the circumstances of the particular
case and also, for the sake of uniformity, sanctions imposed in other cases presenting
similar circumstances.” In re Cope, 549 S.W.3d at 74 (quoting Bd. of Pro. Resp. v. Allison,
284 S.W.3d 316, 327 (Tenn. 2009)). After considering the record and the briefs, we “may
modify the judgment of the hearing panel . . . in such manner as [we] deem[] appropriate.”
Tenn. Sup. Ct. R. 9, § 15.4(c).

III. Analysis

The main issue presented for our review is whether Hickman’s punishment is too
lenient. Hickman says it is not and asks us to affirm the hearing panel’s judgment. He
argues that the circumstances of this case are distinguishable from Beier v. Board of
Professional Responsibility, 610 S.W.3d 425 (Tenn. 2020), Board of Professional
Responsibility v. Walker, 638 S.W.3d 127 (Tenn. 2021), and Board of Professional
Responsibility v. Justice, 577 S.W.3d 908 (Tenn. 2019). According to Hickman, the
proposed punishment is consistent with sanctions this Court has approved in other cases
involving similar conduct, such as Nevin v. Board of Professional Responsibility, 271
S.W.3d 648 (Tenn. 2008). Hickman also contends that the hearing panel should have
applied four additional mitigating factors in determining his punishment.

The Board disagrees. It argues that Hickman’s punishment is too lenient considering
the sanctions imposed in similar cases, and should, at a minimum, be increased to a
three-year suspension. The Board posits that the Walker and Justice cases are the most
appropriate comparators. Relying on Beier, the Board further argues that the ninety-day
period of active suspension is inadequate and should be increased to two years of active
suspension.

After reviewing the record and the parties’ briefs, our only disagreement with the
hearing panel’s judgment is the length of the active suspension. As explained below, we
conclude that the circumstances of this case and the goal of attaining uniformity of
punishment warrant a longer and more clearly defined period of active suspension than the
period of “at least” ninety days imposed by the hearing panel.

Circumstances of This Case

Before comparing this case to others, we first consider the “appropriateness of
punishment under the circumstances of [this] particular case.” Tenn. Sup. Ct. R. 9,

-9-
§ 15.4(b). The hearing panel correctly found that, given the nature of Hickman’s
misconduct, ABA Standards 4.62, 6.12, and 7.2 applied and established suspension as the
appropriate discipline for Hickman. Hickman agreed to represent Lawrence’s estate
knowing that his father would be serving as the estate’s personal representative, and he
never disclosed the fee agreement to Marshall, the sole heir to the estate. Moreover, the fee
Hickman received was unreasonable under the circumstances. See Wright ex rel. Wright v.
Wright, 337 S.W.3d 166, 177 (Tenn. 2011) (explaining that the reasonableness of an
attorney’s fee “must depend upon the particular circumstances of the individual case”
(quoting White v. McBride, 937 S.W.2d 796, 800 (Tenn. 1996))); Tenn. Sup. Ct. R. 8, RPC
1.5(a)(1)–(10) (listing factors to consider in determining whether a fee is reasonable).
Hickman calculated the fee by improperly inflating the gross value of the probate estate to
include real property that passed directly to devisees. He also failed to explain why the
circumstances of this case justified a fee that so far exceeded what he would have received
if billing his usual hourly rate. Finally, Hickman obtained the fee only by falsely
representing to the probate court that Marshall had approved the disbursement, and he
sought to keep the fee by falsely representing to the probate court that Marshall had agreed
to the arrangement.

The hearing panel also considered all of the correct aggravating and mitigating
factors. Three aggravating factors counsel in favor of a more severe punishment:
Hickman’s dishonest or selfish motive, his refusal to acknowledge the wrongful nature of
his conduct, and his substantial experience in the practice of law. The hearing panel
correctly considered as a mitigating factor that Hickman had no previous disciplinary
record.

Hickman contends that four other mitigating factors counsel leniency. We disagree.
Hickman claims that he exhibited remorse, ABA Standard 9.32(1), but the record
establishes at most that Hickman regretted agreeing to represent the estate in the first place,
not that he believed he had done something wrong by collecting the $12,000 fee. Hickman
claims that he has a “good reputation in the community.” ABA Standard 9.32(g). Other
than his own say-so, the only evidence Hickman offers to prove his good reputation is the
assertion in his brief that Retired Chief Justice Gary R. Wade has agreed to serve as his
practice monitor. But there is nothing in the record to support that assertion. Hickman
claims that he cooperated with the Board during the disciplinary process and engaged in
full and free disclosure, ABA Standard 9.32(e), but the record tells a different story. The
Board’s disciplinary counsel had great difficulty eliciting responsive answers from
Hickman during the hearing. Finally, Hickman claims that he made a “timely good faith
effort to make restitution.” ABA Standard 9.32(d). We cannot agree. To be sure, Hickman
eventually paid more than $32,000 to settle the judgment against his father. Yet he did so
only after the probate court ordered his father to pay that amount, and only after initially
appealing the probate court’s judgment. Given those circumstances, Hickman’s ultimate
payment of the judgment seems to have been a pragmatic decision that the amount at issue
was not worth the effort to appeal, not a timely good-faith effort to make restitution.

- 10 -
Under our Rules, the period of suspension for an attorney must be more than thirty
days but less than ten years. Tenn. Sup. Ct. R. 9, § 12.2(a)(2). ABA Standard 2.3 provides
that the period of suspension should fall somewhere between six months and three years.
As three aggravating factors cut against Hickman and only one mitigating factor counsels
leniency, a one-year period of suspension, which is near the middle of the baseline range,
appears to be an appropriate punishment for Hickman’s misconduct.

Comparison to Similar Cases

The Board urges us to increase Hickman’s suspension to three years. It contends
that this case presents facts similar to Walker and Justice. We do not find those cases
analogous.

In Walker, we affirmed a three-year suspension, with two years active and one year
on probation under the supervision of a practice monitor. 638 S.W.3d at 135–36. Walker
made false representations to the chancery court and opposing counsel during a tax-sale
redemption proceeding, violated an injunction issued in those proceedings resulting in a
judgment of criminal contempt, and made false representations in a pro hac vice application
filed in a different matter. Id. at 130–35. The hearing panel found that Walker had violated
seven different Rules of Professional Conduct: 3.1 (Meritorious Claims and Contentions),
3.3 (Candor Toward the Tribunal), 3.4 (Fairness to Opposing Party and Counsel), 4.1
(Truthfulness in Statements to Others), 8.4(a) (Violating or Attempting to Violate the
RPCs), 8.4(c) (Dishonesty, Fraud, Deceit, or Misrepresentation), and 8.4(d) (Conduct
Prejudicial to the Administration of Justice). Id. at 128–29.

Hickman’s misconduct does not rise to the same level as Walker’s. To be sure,
Hickman and Walker both made false representations to a judicial tribunal. Unlike Walker,
however, Hickman did not violate any court orders and instead repeatedly urged his father
to comply with the probate court’s order by filing an inventory and accounting. Nor does
Hickman have any record of disciplinary violations in other proceedings. Walker violated
seven Rules of Professional Conduct compared to Hickman’s three. Thus, while
undoubtedly deserving of punishment, Hickman’s conduct is not as egregious as Walker’s
and his punishment therefore should not be as severe.

In Justice, this Court affirmed a disbarment. 577 S.W.3d at 933. Justice plagiarized
numerous billing entries from a paralegal who was working for him and presented them as
his own on the fee statement he filed with a federal district court. Id. at 911, 913–17. He
also gave false testimony about the fee statement in court. Id. at 911. The hearing panel
found that Justice violated Rules of Professional Conduct 1.5(a) (Fees), 3.4(b) (Fairness to
Opposing Party and Counsel), 8.4(a) (Violating or Attempting to Violate the RPCs), and
8.4(c) (Dishonesty, Fraud, Deceit, or Misrepresentation), and twice violated Rule 3.3(a)(1)
(Candor Toward the Tribunal). Id. at 921–22. This Court found that six aggravating factors

- 11 -
and only two mitigating factors applied. Id. at 932. Considering “the imbalance of
aggravating and mitigating factors, and the nature of Mr. Justice’s misconduct, which
evidenced his utter disregard for the fundamental obligation of lawyers to be truthful and
honest officers of the court,” the Court concluded that disbarment was the appropriate
sanction. Id.

Although the Board acknowledges that Hickman’s conduct does not “involve the
same level of planning as [Justice’s] deceitful scheme,” it contends that Hickman “clearly
deceived” the probate court when he filed the motion to close the estate. We think
Hickman’s misconduct is significantly less serious than Justice’s. Hickman’s filings in the
probate court contained false representations, but he did not commit forgery, give false
testimony, or engage in any other misconduct that, together with his false representations,
would have demonstrated the sort of “utter disregard” for the truth at issue in Justice. Id.
at 932. Moreover, Hickman has only three aggravating factors compared to Justice’s six.
Id.

Hickman, meanwhile, points to our decision in Nevin in urging us to reduce his
suspension to only six months. There, we upheld Nevin’s six-month suspension for
violating five rules in his representation of three separate clients. Nevin, 271 S.W.3d at
650–51, 655.7

In the first matter, Nevin served as a conservator for an elderly woman in a nursing
home. See id. at 651. He failed to comply with a court order requiring him to sell his client’s
house and land. Id. He also used his client’s funds to buy two six-month certificates of
deposit, even though the probate court’s property-management plan indicated that his client
would need the funds for living expenses before the certificates matured. Id. When his
client’s funds became insufficient to pay living expenses, Nevin transferred money from
his client trust account, which included funds belonging to other clients, to the
conservatorship account. Id. He testified that he believed he was acting in his client’s best
interest because liquidating the certificates too early would have resulted in a penalty, and
he did not believe any harm would come to his other clients because the client trust account
still had “a sufficient balance to meet any obligations.” Id. Additional infractions included
selling his client’s land, stocks, and bonds without court approval and comingling his
client’s funds with monies in his client trust account without recording the transactions. Id.
at 651–52. Nevin ultimately owed his client $25,000. Id. at 655.

In the second matter, Nevin served as personal representative for a woman’s estate.
Id. at 652. He significantly underrepresented estate assets in an inventory he filed with the
probate court and nearly doubled his hourly rate for the work he performed. Id. He

7
The Code of Professional Responsibility governed Nevin’s case because Nevin’s actions occurred
prior to March 1, 2003, when the Rules of Professional Conduct first took effect. Nevin, 271 S.W.3d at 653
n.4.

- 12 -
attempted to blame his secretary for the inventory error even though he reviewed it himself
before filing. Id. To his credit, he filed an amended inventory within two weeks of learning
of the error. Id.

In a third matter, Nevin mismanaged guardianship funds for a four-year-old child
who had received a medical malpractice settlement. Id. at 652–53. With court
authorization, Nevin purchased a home for the child and his mother, but improperly put the
title in the child’s name without indicating that Nevin had purchased the home as guardian
for the child. Id. at 653. The deed provided that tax bills should be sent to the child, and
with no procedure in place to ensure that Nevin would eventually receive the bills, the
property taxes went unpaid. Id. This failure to pay resulted in the tax sale of the property.
Id. Also, despite learning that the child’s mother was renting the house to a third party,
Nevin did nothing to ensure that the rental income went to the child. Id.

The hearing panel determined that Nevin had violated five distinct provisions of the
then-governing Code of Professional Responsibility and had violated two of those
provisions three times each. Id. at 653–54. It also found five aggravating circumstances
and two mitigating circumstances. Id. at 656–57. The hearing panel imposed a suspension
of six months, and this Court affirmed. Id. at 658–59.

The facts in Nevin’s case are not on all fours with those here, but there are strong
similarities. Hickman charged the estate an unreasonably excessive fee, far in excess of his
usual hourly fee, just as Nevin did in the second matter. Further, like Nevin in the first and
second matters, Hickman made false statements to the probate court. In some respects,
Hickman’s conduct was less serious than Nevin’s because he did not comingle funds,
mismanage client property, or engage in a pattern of misconduct. In others, however, it was
more serious. In Nevin, we determined that Nevin “knew or should have known that his
actions were improper and potentially harmful” and that it was fair to infer that his conduct
was “grossly negligent, if not reckless.” Id. at 658 (emphasis added). Here, by contrast, the
hearing panel found that Hickman was “knowingly deceptive in failing to disclose the fee
arrangement and the amount of fees he received for his legal services.”

Our order proposing to increase Hickman’s punishment cited our decision in Beier,
which involved a two-year suspension, as a potentially similar case. 610 S.W.3d at 430.
The Board contends that the facts in Beier are “closely analogous” to those presented here.
Hickman disagrees, noting several differences that make a lesser sanction appropriate in
this case.

We agree with the Board that Beier presents similar circumstances, but we also
agree with Hickman that there are differences that call for a slightly more lenient
punishment here. The disciplinary proceedings in Beier arose from misconduct in two
separate matters. Id. The first matter was a child-custody dispute. Id. at 431. Beier’s client,
a divorced father, sought to modify the custody agreement for his daughter. Id. Beier

- 13 -
prepared affidavits for both his client and the client’s mother. Id. The client signed his, but
his mother did not sign hers. Id. Rather than obtain her signature, however, Beier forged
the signature and notarized the affidavit himself. Id. He then filed the document in court
without advising either the judge or opposing counsel that he had signed the document. Id.
His actions were discovered when opposing counsel deposed the client’s mother and asked
if the signature was hers. Id. When she failed to answer, Beier interjected, saying that he
had “subscribed her signature.” Id. The client’s mother agreed, and Beier later filed a
re-verified affidavit, which the client’s mother actually signed, making the same
statements. Id. After opposing counsel filed a motion with the court alleging misconduct
with respect to the affidavit and asking the court to impose sanctions, Beier self-reported
to the Board. Id.

In the second matter, Beier’s client asked Beier to represent his deceased aunt’s
estate. Id. Beier knew that the client was disabled because of a nervous condition and
required assistance in handling his affairs. Id. at 431–32, 444. Beier proposed to the client
that he pay 33.3% of the “gross estate” as a contingency fee, and the client agreed to this
arrangement. Id. at 432. Although the client advised Beier that he had some “half-cousins”
who were beneficiaries of the estate by operation of law, Beier failed to contact them when
he opened the estate and alleged in his petition that his client was the sole beneficiary. Id.
He also failed to include the beneficiaries even when their mother contacted him after
seeing the estate’s notice to creditors. Id. Instead, eleven months later, Beier filed a petition
to close the estate, in which he reiterated that his client was the sole beneficiary of the estate
and asserted that he wanted to close the estate without a detailed accounting. Id. The
chancery court relied on these representations and closed the estate. Id.

In calculating his final fee, Beier included in the value of the gross estate two parcels
of real property that were never part of the estate. Id. Beier’s fee of $78,614 was not subject
to judicial approval because the client had purportedly waived his right to a detailed
accounting. Id.

The client eventually learned that his half-cousins were entitled to a portion of his
aunt’s estate and hired new counsel, who petitioned to reopen the estate. Id. When the new
counsel contacted Beier about reopening the estate, Beier reimbursed the estate his entire
fee, plus interest. Id. Beier again self-reported his misconduct to the Board, and one of the
cousins also complained to the Board. Id. at 432–33.

The hearing panel found that Beier violated Rules of Professional Conduct 3.3(a)(1)
(Candor Toward the Tribunal) and 8.4(c) (Dishonesty, Fraud, Deceit, or Misrepresentation)
in the matter concerning the forged affidavit. Id. at 434. In the estate matter, the hearing
panel found that he violated Rule 1.5(a) (Fees) by charging an unreasonable fee and by
failing to communicate clearly with the client about the method for determining and
remitting the fee. Id. The hearing panel further found that Beier violated Rule 3.3(a)(1) by
stating that his client was the sole heir in his petition; Rule 3.3(a)(3) by failing to inform

- 14 -
the court of the other heirs; Rule 8.4(c) by taking advantage of his client’s disability to
charge and collect an unreasonable fee; Rule 8.4(c) by failing to include the cousins in the
administration of the estate so that he could charge his client an unreasonable fee; and Rule
8.4(a) by violating the other rules. Id. The hearing panel identified five aggravating factors:
Beier’s “dishonest or selfish motive” in both matters, the multiple offenses, his refusal to
acknowledge the wrongfulness of his conduct, his estate client’s “vulnerability as a
victim,” and his substantial experience in the practice of law, having practiced for “over
forty years, including time as a juvenile and municipal judge.” Id. at 435. The hearing panel
found no mitigating factors. Id. It imposed a two-year suspension with three months served
as an active suspension and the remainder on probation. Id. The Board appealed, and the
trial court ordered the entire two-year suspension served as an active suspension. Id. Beier
appealed to this Court. Id.

This Court concluded that substantial and material evidence supported the hearing
panel’s finding that Beier violated the Rules of Professional Conduct. Id. at 438–44. With
respect to punishment, we agreed with the hearing panel’s application of ABA Standards
5.13, 6.12, and 7.2, which identified reprimand and suspension as the presumptive
sanctions for Beier’s misconduct in the affidavit matter. Id. at 445. But we explained that
ABA Standard 7.1, which set the baseline sanction as disbarment, also had to be considered
for the more serious violations stemming from Beier’s misconduct in the estate matter. Id.

We found Beier’s misconduct distinguishable from that of the attorney in Justice
because Beier did not engage in “a pattern of misconduct.” See id. at 449. We explained
that disbarment, the sanction imposed in Justice, “is typically reserved for cases that
involve a pattern of misconduct or even more serious rule violations than those committed
by Mr. Beier.” Id. We instead found that Beier’s misconduct more closely resembled two
other cases that imposed two-year suspensions:

We agree with the chancery court’s observation that this case may fairly be
compared to Milligan v. Board of Professional Responsibility, 166 S.W.3d
665, 674 (Tenn. 2005), and Napolitano v. Board of Professional
Responsibility, 535 S.W.3d 481 (Tenn. 2017). In Milligan, the attorney
settled a case without the client’s authority; forged signatures on the
settlement check and the release document; got an employee to falsely
notarize, after the fact, the forged signatures; deposited all of the settlement
funds into his personal account; and procured false affidavits to conceal his
misconduct. Milligan, 166 S.W.3d at 669. The Court imposed a two-year
suspension from the practice of law. Id. at 674. In Napolitano, the Court
affirmed a five-year suspension for an attorney who had previously served a
five-year suspension, lied under oath, and committed misconduct involving
a client’s property. Napolitano, 535 S.W.3d at 484–87.

- 15 -
Beier, 610 S.W.3d at 449. Although Beier’s conduct in the estate matter “did not include
actual misappropriation of client funds, as in Milligan,” we viewed “the circumstances
under which Beier obtained an unreasonable fee” from his client in the estate matter as
“equivalent.” Id. We emphasized that Beier “took advantage of [his client] as a vulnerable
victim, misrepresented to the probate court that [his client] was [his aunt’s] sole heir, failed
to disclose to the court the existence of the other heirs, and then persuaded the probate court
to close the estate without a detailed accounting in order to avoid judicial scrutiny of the
fee.” Id. We agreed with the hearing panel that there were five aggravating factors and no
mitigating factors and therefore affirmed the two-year suspension, all to be served as active
suspension. Id.

While Hickman’s conduct bears similarity to Beier’s conduct in the estate matter,
several differences between Hickman’s circumstances and those present in Beier persuade
us that a lesser sanction is appropriate here. First, Hickman’s misconduct was limited to a
single proceeding. Beier, by contrast, made false representations in two separate
proceedings. Second, even comparing Hickman’s conduct with that of Beier’s in the estate
matter, Hickman’s misconduct was less serious. While both Hickman and Beier exacted
an unreasonable fee from the estate and failed to provide an accounting to avoid judicial
scrutiny of the fee, Hickman did not take advantage of a vulnerable victim or engage in
additional deceitful conduct unrelated to the fee. Third, Hickman has two fewer
aggravating factors than Beier. And while Beier had no mitigating factors, Hickman has
one.

Yet Hickman’s misconduct is sufficiently similar to Beier’s to warrant an increase
in the length of Hickman’s period of active suspension. The hearing panel required only
ninety days of Hickman’s one-year suspension to be served on active suspension. The
differences between the circumstances of this case and Beier do not justify such a
significant disparity in the length of the active suspension. Accordingly, we increase
Hickman’s period of active suspension from ninety days to six months.

Indefinite Language in the Judgment

There is one final issue to consider. The hearing panel’s judgment required Hickman
to serve “no less than” ninety days active suspension. The judgment left open the possibility
that the active suspension could be longer—and the period of probation accordingly
shorter—if Hickman failed to engage a practice monitor within ninety days. The judgment
also provided that, if Hickman failed to comply with any condition of probation, the
suspension would automatically “rever[t] to active suspension for the remainder of the
suspension period.”

The judgment was flawed in these two respects. Tennessee Supreme Court Rule 9,
section 14.1, provides that the “imposition of a suspension for a fixed period . . . may be
deferred in conjunction with a fixed period of probation.” (emphasis added). The period of

- 16 -
probation the hearing panel imposed was not fixed. If Hickman failed to engage a practice
monitor within ninety days, his active suspension would continue, cutting into his
probationary period.8 Rather than leave Hickman’s period of probation open ended, the
hearing panel should have ordered a “fixed period of probation” as section 14.1 instructs.

The hearing panel was mistaken that a violation of the conditions of probation would
result in “reversion to active suspension.” Tennessee Supreme Court Rule 9, section 14.2
outlines the procedure to be followed when an attorney violates a condition of probation.
That procedure includes disciplinary counsel filing a petition to revoke probation, notice
to the attorney, and an opportunity for the attorney to appear before the hearing panel.
Tenn. Sup. Ct. R. 9, § 14.2. Contrary to the hearing panel’s view, the period of probation
does not automatically revert to active suspension.

IV. Conclusion

We have closely reviewed the record “with a view to attaining uniformity of
punishment throughout the State and appropriateness of punishment under the
circumstances.” Id. § 15.4(b). After considering the nature of Hickman’s conduct,
applicable ABA Standards, the balance of aggravating and mitigating factors, and cases
involving comparable circumstances, we conclude that the judgment of the hearing panel
should be modified to impose a one-year suspension, with six months to be served as active
suspension. We clarify that the probation period should be fixed rather than indefinite. We
affirm all other conditions of probation imposed by the hearing panel but further clarify
that violation of one of those conditions does not automatically result in reversion of the
period of probation to active suspension. Rather, a violation would trigger the procedure
outlined in Tennessee Supreme Court Rule 9, section 14.2. We also order Hickman to
comply in all respects with Tennessee Supreme Court Rule 9, especially the obligations
and responsibilities of suspended attorneys. Costs of this appeal are taxed to Hickman, for
which execution may issue if necessary.

_____________________________
SARAH K. CAMPBELL, JUSTICE

8
When the Board requires an attorney to engage a practice monitor, the attorney must provide the
Board with a list of three proposed monitors within fifteen days of entry of the judgment. See Tenn. Sup.
Ct. R. 9, § 12.9(c). Given this timeline, Hickman’s practice monitor almost certainly would have been in
place before the end of his period of active suspension.

- 17 -

Go to Top

Assistance Request

Request Accessibility Assistance

Name

Email

Phone

What do you need help with?

The HTML version is missing content

The HTML version contains errors

The reading order is incorrect or confusing

I need help understanding the content

I need a different alternative format

Other

Preferred format

Additional details

Urgency Urgent Soon Not urgent

Go to Top