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07/19/2024

IN THE SUPREME COURT OF TENNESSEE
AT NASHVILLE
Assigned on Briefs October 4, 2023

COLLEEN ANN HYDER v. BOARD OF PROFESSIONAL
RESPONSIBILITY OF THE SUPREME COURT OF TENNESSEE

Direct Appeal from the Chancery Court for Montgomery County
No. AA-22-1 Thomas J. Wright, Senior Judge
___________________________________

No. M2022-01703-SC-R3-BP
___________________________________

In this case, we review a trial court’s determination that a Montgomery County attorney
violated Rule 5.5(a) of the Rules of Professional Conduct by practicing law while her
license was suspended for failure to pay the professional privilege tax and the
accompanying sanction of a public censure. Finding no abuse of discretion, we affirm.

Tenn. Sup. Ct. R. 9, § 33.1(d); Judgment of the Trial Court Affirmed; Judgment of
the Hearing Panel Affirmed in Part, Reversed in Part

DWIGHT E. TARWATER, J., delivered the opinion of the court, in which HOLLY KIRBY, C.J.,
and JEFFREY S. BIVINS, ROGER A. PAGE, AND SARAH K. CAMPBELL, JJ., joined.

Roger A. Maness, Clarksville, Tennessee, for the appellant, Colleen Ann Hyder.

James W. Milam, Brentwood, Tennessee, for the appellee, Board of Professional
Responsibility.

OPINION

This is a direct appeal of a trial court judgment affirming in part a decision of a
Board of Professional Responsibility Hearing Panel (“Hearing Panel”). The Hearing Panel
issued a “public admonition” to Colleen Hyder after finding she practiced law with a
suspended license. The trial court affirmed the Hearing Panel’s findings that Ms. Hyder
practiced law while suspended but modified the Hearing Panel’s sanction and issued her a
public censure. On appeal, Ms. Hyder raises three issues: (1) whether the Hearing Panel
and trial court applied the correct legal standard relating to summary suspensions under
Tennessee Supreme Court Rule 9, section 26; (2) whether public censure is the appropriate
sanction; and (3) whether certain deposition testimony was properly excluded. After a
review of the record and the briefs, we find that the trial court did not abuse its discretion.
Accordingly, we affirm the trial court’s judgment.

I. FACTUAL & PROCEDURAL BACKGROUND

Colleen Hyder was licensed to practice law in 2010. On June 1, 2019, her
professional privilege tax came due, and she failed to pay by the statutory deadline. Six
months later, her tax was still delinquent. On December 5, 2019, the Tennessee Board of
Professional Responsibility (“the Board”) sent Ms. Hyder a notice of delinquency by email.
The body of the email provided instructions on how to cure the delinquency without
consequence.

On December 10, 2019, the Board sent Ms. Hyder a certified letter containing the
same notice of delinquency and instructions to cure. Two weeks passed, and she still had
not paid the tax. On December 27, 2019, the Board sent Ms. Hyder another email attaching
the notice of delinquency with instructions to cure. On January 16, 2020, the Board sent
Ms. Hyder yet another email notifying her that a proposed order of summary suspension
had been sent to the Tennessee Supreme Court for review, pursuant to Tennessee Supreme
Court Rule 9, section 26.4(b)–(c).

There is no dispute about the facts in this case. Ms. Hyder did not pay her 2019
professional privilege tax on time, and she received all of the correspondence from the
Board, including the proposed order of suspension. She was not only fully advised of her
failure to pay the tax, but was also provided the opportunity to cure. This Court filed the
order summarily suspending Ms. Hyder’s license to practice law on January 21, 2020. The
order stated: “[T]he license to practice law in this State of each of the following listed
attorneys is summarily suspended . . . . Colleen Ann Hyder . . . . [E]ach suspension shall
be effective immediately upon entry of this [o]rder . . . .” Ms. Hyder received a copy of
the filed order via email on the day of filing. The body of the email stated, “The suspension
[o]rder was entered on January 21, 2020, and is effective immediately.” This text was
underlined and in bold.

Nonetheless, she continued to represent existing clients in court proceedings. The
day after her suspension, she appeared in Montgomery County Circuit Court for a trial.
She did not disclose her suspension to the trial judge. Later that day, she paid $457.06 in
delinquent taxes but did not pay the $100.00 late fee or $200.00 reinstatement fee. On
January 23, 2020, Ms. Hyder participated in a mediation and did not disclose her
suspension to the other participants in mediation. That day, she again appeared in
Montgomery County Circuit Court. She does not dispute that she appeared in court on
several occasions between January 23 and 27, 2020.
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Ms. Hyder engaged private counsel on Saturday, January 25, 2020. The following
Monday, January 27, 2020, she paid the delinquent tax fee and reinstatement fee and filed
her petition for reinstatement in accordance with Rule 9, section 26.4(d). On February 3,
2020, Ms. Hyder contacted the Board to inquire about her ability to practice law. The
Board advised Ms. Hyder that she was not permitted to represent clients or engage in the
practice of law until reinstated by an order of this Court.

On February 4, 2020, this Court filed an order reinstating Ms. Hyder’s license
retroactive to January 28, 2020, the date the Board received Ms. Hyder’s payment in full
of all requisite fees.

Hearing Panel

The Board received several complaints from attorneys, clients, and a judge
concerning Ms. Hyder’s practice of law with a suspended license. The Board filed its
petition for discipline on September 11, 2020, and requested a Hearing Panel. The Hearing
Panel unanimously determined that Ms. Hyder had engaged in the unauthorized practice
of law while her license was suspended in violation of Rule 5.5(a) of the Rules of
Professional Conduct. As directed in Tennessee Supreme Court Rule 9, section 15.4, the
Hearing Panel consulted the ABA Standards for Imposing Lawyer Sanctions (“ABA
Standards”) and identified ABA Standard 6.24 as applicable and setting the presumptive
sanction. ABA Standard 6.24 states: “Admonition is generally appropriate when a lawyer
engages in an isolated instance of negligence in complying with a court order or rule, and
causes little or no actual or potential injury to a party, or causes little or no actual or
potential interference with a legal proceeding.” ABA Standard 6.24. The Board did not
allege or prove any aggravating or mitigating factors. Relying on ABA Standard 6.24, the
Hearing Panel ordered that Ms. Hyder should receive a public admonition for practicing
while suspended.

Trial Court

Ms. Hyder timely filed a petition for review of the Hearing Panel’s decision in
Montgomery County Chancery Court. Tenn. Sup. Ct. R. 9, § 33.1(d). She did not dispute
the Panel’s findings of fact as to her appearances in court and in mediation while her license
was suspended. Rather, Ms. Hyder argued that Tennessee Supreme Court Rule 9, section
26 allowed her to continue representing existing clients for thirty days after her suspension.
She argued that section 26 is ambiguous because it does not set forth practice limitations
for attorneys facing suspension under this section and asserted that this section should be
read in pari materia with other sections of Rule 9. Ms. Hyder relies on section 12.3
(Temporary Suspension), section 22 (Attorneys Convicted Or Acknowledging Guilt of

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Crimes), and section 28 (Notice to Clients, Adverse Parties, and Other Counsel).1 She
argued that because an attorney temporarily suspended for misappropriating client funds
receives thirty days to wind up his or her practice, she should be allowed to continue to
represent existing clients while suspended for failing to pay her professional privilege
tax—a violation admittedly less severe.

Ms. Hyder also argued that the Hearing Panel improperly excluded the deposition
testimony of James Potter, an attorney who filed a complaint against Ms. Hyder on January
30, 2020. Mr. Potter had become aware that Ms. Hyder was practicing with a suspended
license. He contacted the ethics disciplinary counsel, who advised that he had an obligation
to report Ms. Hyder, pursuant to Rule 8.3(a) of the Rules of Professional Conduct, which
provides: “A lawyer who knows that another lawyer has committed a violation of the Rules
of Professional Conduct . . . shall inform the Disciplinary Counsel of the Board of
Professional Responsibility.”2 Tenn. Sup. Ct. R. 8, RPC 8.3(a). Ms. Hyder offered Mr.
Potter’s testimony on the alleged ambiguity of Rule 9, section 26.4. Given that Mr. Potter’s
complaint only included allegations of Ms. Hyder’s conduct after January 28, 2020, and
because Ms. Hyder’s license was reinstated retroactively to January 28, 2020, Mr. Potter’s
complaint was dismissed, and the Hearing Panel excluded the testimony as irrelevant. The
trial court determined that even if the transcript had been admitted, it would have had no
impact on the Hearing Panel’s decision.

The trial court affirmed the judgment of the Hearing Panel in all respects, except for
the sanction. The trial court concluded the Hearing Panel applied an incorrect legal
standard when it relied on ABA Standard 6.24, calling for a public admonition, because it
did not contemplate the potential injury to Ms. Hyder’s clients or potential interference
with legal proceedings stemming from her unauthorized practice of law while suspended.
The trial court found ABA Standard 6.23 more appropriate in the circumstances of this
case because Ms. Hyder’s participation in court proceedings while suspended undermined
the validity of those proceedings, which could negatively affect her clients and the
administration of justice. The trial court found that public reprimand is the presumptive
sanction under ABA Standard 6.23. Public reprimand is the equivalent of a public censure
under Tennessee Supreme Court Rule 9. The trial court therefore modified Ms. Hyder’s
sanction to public censure.

1
Ms. Hyder added Rule 9, section 37, which governs the suspension of an attorney’s law license
for default on a student loan or service conditional scholarship program, to her in pari materia argument in
this Court.
2
Mr. Potter’s letter to the Board states: “I have been advised by your ethics counsel, Ms. Laura
Chastain of my duty to report [Ms. Hyder] to your attention . . . . I spoke with Ms. Chastain and enquired
if I had an ethical obligation to report this. She said to write you this letter.”
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Ms. Hyder appeals to this Court, challenging the trial court’s interpretation of Rule
9, section 26 and modification of her sanction to public censure.

II. STANDARD OF REVIEW

The Supreme Court is vested with the “inherent supervisory power to regulate the
practice of law.” Brown v. Bd. of Pro. Resp. of Sup. Ct. of Tenn., 29 S.W.3d 445, 449
(Tenn. 2000) (quoting In re Burson, 909 S.W.2d 768, 773 (Tenn. 1995)). “[W]e are tasked
with the ultimate disciplinary responsibility for violations of the ethical rules that govern
the legal profession.” Waggoner v. Bd. of Pro. Resp. of Sup. Ct. of Tenn., 673 S.W.3d 227,
235–36 (Tenn. 2023) (quoting Sneed v. Bd. of Pro. Resp. of Sup. Ct. of Tenn., 301 S.W.3d
603, 612 (Tenn. 2010)) (internal quotations omitted).

The Court does not “substitute its judgment for that of the [H]earing [P]anel on
questions of fact.” Bd. of Pro. Resp. of Sup. Ct. of Tenn. v. Prewitt, 647 S.W.3d 357, 366
(Tenn. 2022) (citing Napolitano v. Bd. of Pro. Resp., 535 S.W.3d 481, 496 (Tenn. 2017)).
The Court may only reverse or modify any findings of the Hearing Panel and trial court if
such findings were:

(1) in violation of constitutional or statutory provisions; (2) in excess of the
hearing panel’s jurisdiction; (3) made upon unlawful procedure; (4) arbitrary
or capricious or characterized by abuse of discretion or clearly unwarranted
exercise of discretion; or (5) unsupported by evidence which is both
substantial and material in the light of the entire record.

Tenn. Sup. Ct. R. 9, § 33.1(b); see also Bd. of Pro. Resp. v. Love, 256 S.W.3d 644, 653
(Tenn. 2008); Hoover v. Bd. of Pro. Resp. of Sup. Ct. of Tenn., 395 S.W.3d 95, 103 (Tenn.
2012). An abuse of discretion occurs when a tribunal applies an incorrect legal standard
or reaches a decision that is against logic or reasoning that causes an injustice. Bd. of Pro.
Resp. v. Parrish, 556 S.W.3d 153, 163 (Tenn. 2018).

The determination of the correct legal standard is a question of law. See id. at 163–
67 (conducting de novo review of whether the lower court used the correct legal standard).
We review questions of law de novo with no presumption of correctness. Harris v. Bd. of
Pro. Resp. of Sup. Ct. of Tenn., 645 S.W.3d 125, 136 (Tenn. 2022).

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III. ANALYSIS

The Professional Privilege Tax
and the Unauthorized Practice of Law

First, we must determine whether the trial court abused its discretion in affirming
the Hearing Panel’s interpretation of Rule 9, section 26 to find Ms. Hyder engaged in the
unauthorized practice of law.

Tennessee is one of five states that currently impose a professional privilege tax.3
Attorneys across the State of Tennessee are subject to this tax simply for having a license
to practice law, regardless of income. See Tenn. Code Ann. § 67-4-1703 (West 2023).
Originally imposed on twenty-one professions in 1992, the purpose of the tax was to fill a
revenue budget gap and was driven by the State’s need to fund the Basic Education
Program, which is the funding formula for the State’s K-12 system. Tenn. Advisory
Comm’n on Intergovernmental Rels., The Professional Privilege Tax in Tennessee: Taxing
Professionals Fairly 1, (Dec. 2016), https://www.tn.gov/content/dam/tn/tacir/document
s/2016_ProPrivilegeTax.pdf. In 2002, the tax was increased from $200.00 to $400.00. Id.;
Tax Reform Act of 2002, ch. 856, § 7, 2002 Tenn. Pub. Acts 2312, 2322–23 (codified at
Tenn. Code Ann. § 67-4-1703). The legislature eliminated this tax on fifteen professions
in 2020.4 Act of May 1, 2019, ch. 478, 2019 Tenn. Pub. Acts, https://publi
cations.tnsosfiles.com/acts/111/pub/pc0478.pdf (codified at Tenn. Code Ann. § 67-4-
1702). As of June 1, 2023, only attorneys, lobbyists, and persons licensed or registered
under Title 48 of the Tennessee Code as agents, broker-dealers, and investment advisers
are subject to Tennessee’s professional privilege tax.5 Tenn. Code Ann. § 67-4-1702; Act

3
Other states include Alabama, Connecticut, Delaware, and Montana. See Ala. Code § 40-12-49
(West 2023); Conn. Gen. Stat. Ann. § 51-81b (West 2023); Del. Code Ann. tit. 30, § 2301(a)–(b) (West
2023); Mont. Code Ann. § 37-61-211 (West 2023).
4
The following professions are no longer subject to the tax effective June 1, 2020: accountant,
architect, audiologist, chiropractor, dentist, engineer, landscape architect, optometrist, pharmacist,
podiatrist, psychologist, real estate principal broker, speech pathologist, sports agent, and veterinarian.
Compare Act of March 2, 1992, ch. 529, § 8, 1992 Tenn. Pub. Acts 7, 9–10 (codified as amended at Tenn.
Code Ann. § 67-4-1702) with Act of May 1, 2019, ch. 478, 2019 Tenn. Pub. Acts, https://pub
lications.tnsosfiles.com/acts/111/pub/pc0478.pdf (codified at Tenn. Code Ann. § 67-4-1702) with Act of
Apr. 27, 2022, ch. 1083, 2022 Tenn. Pub. Acts, https://publications.tnsosfiles.com/acts/112/pub/pc1083.pdf
(codified at Tenn. Code Ann. § 67-4-1702) and Tenn. Code Ann. § 67-4-1702 (West 2023).
5
As of June 1, 2023, physicians and osteopathic physicians are no longer subject to the professional
privilege tax. Tenn. Code Ann. § 67-4-1702; Act of Apr. 27, 2022, ch. 1083, § 1, 2022 Tenn. Pub. Acts,
https://publications.tnsosfiles.com/acts/112/pub/pc1083.pdf (codified at Tenn. Code Ann. § 67-4-1702).
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of Apr. 27, 2022, ch. 1083, 2022 Tenn. Pub. Acts, https://publications.tn
sosfiles.com/acts/112/pub/pc1083.pdf (codified at Tenn. Code Ann. § 67-4-1702).

All attorneys licensed in the State of Tennessee, regardless of salary, are still
required to pay this annual professional privilege tax in the amount of $400.00. See Tenn.
Code Ann. §§ 67-4-1702–1703 (West 2023). This tax is due every year on the first of June.
Id. § 67-4-1703(a). The Commissioner of Revenue compiles a list of delinquent taxpayers
and notifies the appropriate licensing board or agency of the taxpayers “who are delinquent
ninety (90) days or more from the due date of the tax.” Id. § 67-4-1704(d). The statute
specifically states that “[t]he Supreme Court has established rules to suspend the license of
an attorney who fails to pay the privilege tax.” Id. § 67-4-1704(f).

Tennessee Supreme Court Rule 9, section 26 governs delinquent professional
privilege taxes and states in part:

Upon the Court’s review and approval of the proposed Suspension Order, the
Court will file the Order summarily suspending the license to practice law of
each attorney listed in the Order. The suspension shall remain in effect until
the attorney pays the delinquent privilege taxes and any interest and
penalties, and pays to the Board the One Hundred Dollar ($100.00)
delinquent compliance fee and the Two Hundred Dollar ($200.00)
reinstatement fee, and until the attorney is reinstated pursuant to Subsection
(d). An attorney who fails to resolve the suspension within thirty days of the
Court’s filing of the Suspension Order shall comply with the requirements of
Section 28.

Tenn. Sup. Ct. R. 9, § 26.4(c).

In this case, there is no dispute that Ms. Hyder failed to pay her 2019 professional
privilege tax by the June 1 deadline, did not cure her non-payment when given multiple
opportunities, and was subsequently summarily suspended. She also does not dispute that
she continued to appear in court and in mediation on behalf of clients after her suspension.
Rather, she argues that her continued representation of existing clients is allowed because
Rule 9, section 26 is ambiguous and does not specify practice limitations applicable to an
attorney who has been summarily suspended for failing to pay his or her professional
privilege tax. Looking to section 26 and other sections of Rule 9, Ms. Hyder gleaned that
she was allowed to continue her representation of existing clients for thirty days after her
suspension.

We begin and end our analysis with section 26, which is directly applicable to this
case. Section 26 is a specific provision that applies only to attorneys suspended for failure
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to pay their professional privilege tax. “Specific provisions relating to a particular subject
must govern in respect to that subject . . . .” Wade v. Madding, 28 S.W.2d 642, 649 (Tenn.
1930); see also Woodroof v. City of Nashville, 192 S.W.2d 1013, 1015 (Tenn. 1946);
Arnwine v. Union Cnty. Bd. of Educ., 120 S.W.3d 804, 809 (Tenn. 2003).

The language in Rule 9, section 26 does not contain, and makes no reference to, a
thirty-day period during which a suspended attorney may continue practicing law. Rather,
section 26.4(c) contains a provision that provides an attorney an additional thirty days to
resolve the suspension before he or she is required to notify clients, adverse parties, and
other counsel of his or her suspension under section 28. Tenn. Sup. Ct. R. 9, §§ 26.4(c),
28.2. We note that Ms. Hyder is not being disciplined for failing to notify clients, adverse
parties, and other counsel of her suspension, but is being disciplined for practicing law with
a suspended license. The language “the [o]rder summarily suspending the license to
practice law,” is clear and unambiguous. Tenn. Sup. Ct. R. 9, § 26.4(c). This section goes
on to provide that “[t]he suspension shall remain in effect until the attorney pays the
delinquent privilege taxes and any interest and penalties, and pays to the Board the One
Hundred Dollar ($100.00) delinquent compliance fee and the Two Hundred Dollar
($200.00) reinstatement fee, and until the attorney is reinstated pursuant to Subsection (d).”
Tenn. Sup. Ct. R. 9, § 26.4(c) (emphasis added). This section obviously means that the
suspension is effective upon entry of the order and remains in effect until the attorney is
reinstated.

The order is also clear and unambiguous: “[E]ach suspension shall be effective
immediately upon entry of this [o]rder.” These words leave no doubt that an attorney
whose name is listed on the suspension order is no longer licensed to practice law.
“[E]ffective immediately upon entry” means effective immediately upon entry, not thirty
days hence.

When a rule or statute is unambiguous, we apply the plain and ordinary meaning of
the words. Eastman Chem. Co. v. Johnson, 151 S.W.3d 503, 507 (Tenn. 2004); Lind v.
Beaman Dodge, Inc., 356 S.W.3d 889, 895 (Tenn. 2011); Stevens v. Linton, 229 S.W.2d
510, 512 (Tenn. 1950). A rule or statute does not become ambiguous simply because a
party alleges so. State v. Welch, 595 S.W.3d 615, 622 (Tenn. 2020) (“A party cannot create
an ambiguity by presenting a nonsensical or clearly erroneous interpretation of the statute.
In other words, both interpretations must be reasonable in order for an ambiguity to exist.”
(quoting State v. Frazier, 558 S.W.3d 145, 152 (Tenn. 2018))). Utilizing certain canons of
statutory construction, including in pari materia, is unnecessary when a rule or statute is
unambiguous. Lind, 356 S.W.3d at 895 (“When a statute is clear, we apply the plain
meaning without complicating the task.”).

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It must be remembered though that this rule “in pari materia” is applicable
only when the terms of a statute to be construed are ambiguous or its
significance is doubtful, and the rule is not to be applied to effect a
construction contrary to the clearly manifest intent of the legislature.

Linton, 229 S.W.2d at 512.

We agree with the trial court that “[t]here is nothing ambiguous about [section
26.4(c)] that would require the court to resort to maxims of statutory construction to discern
the intent of this Rule.” Ms. Hyder was suspended effective immediately. She continued
to practice in spite of her suspension. This is the unauthorized practice of law.

Having found that section 26.4(c) is unambiguous, we need not extend our journey
through the other sections of Rule 9 to construct an in pari materia thirty-day grace period.
We do note, however, that Ms. Hyder is correct that section 26.4(c) references section 28,
which references section 12.3(c). Tenn. Sup. Ct. R. 9, §§ 26.4(c), 28, 12.3(c). Section 28
is the ten-day notice provision for a suspended attorney to notify clients, adverse parties,
and other counsel of her suspension. Tenn. Sup. Ct. R. 9, § 28. Section 28.1 in the clearest
of terms states that “[o]rders imposing . . . suspension[s] . . . are effective upon entry.”
Tenn. Sup. Ct. R. 9, § 28.1. Section 12.3 provides four specific instances when a
temporarily suspended attorney has thirty days to continue representing his or her existing
clients: (1) an attorney’s misappropriation of client funds for his or her own use; (2) an
attorney’s failure to respond to the Board concerning a complaint of misconduct; (3) an
attorney’s failure “to substantially comply with a Tennessee Lawyer Assistance Program
monitoring agreement;” or (4) an attorney otherwise poses a threat of substantial harm to
the public. Tenn. Sup. Ct. R. 9, § 12.3(a). Notably, a suspension for failure to pay the
professional privilege tax is not one of these four circumstances. Ms. Hyder’s reliance on
sections 22 and 37 is similarly unavailing.

We are not persuaded by Ms. Hyder’s argument that an immediate cessation in legal
representation for failure to pay the professional privilege tax somehow discourages
attorneys from consulting the Rules of Professional Conduct and other Tennessee Supreme
Court Rules to determine the correct course of action. All members of the Bar should know
and follow the Rules of Professional Conduct, the laws of this State, and orders from this
Court. Lawyers advise clients to that effect. No less should be expected of the profession.

The Board informed Ms. Hyder that her suspension was effective immediately in its
January 21, 2020 email. Neither the suspension order nor the email mentions a thirty-day
grace period or references another disciplinary rule. Each plainly states the suspension is
effective immediately. This language is direct and clear. “Effective immediately” means
effective immediately.
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Upon entry of the suspension order, Ms. Hyder was no longer authorized to
represent clients. She continued to do so, violating Rule 5.5(a) of the Rules of Professional
Conduct and an order from this Court. See Tenn. Sup. Ct. R. 8, RPC 5.5(a); cf. Tenn. Sup.
Ct. R. 9, § 11.3 (“Adjudication that a lawyer has willfully refused to comply with a court
order also shall be grounds for discipline.”)

Ms. Hyder’s tax was delinquent for over six months at the time of her suspension.
She received numerous notices of delinquency with instructions to cure. This is plenty of
grace. We decline to read in an additional thirty-day grace period that is not in the
unambiguous language of Rule 9, section 26.

The Appropriate Sanction

We next determine whether the trial court abused its discretion by imposing a public
censure. Rule 9 provides that when determining the appropriate sanction, the Hearing
Panel and reviewing courts shall consult the ABA Standards to identify the presumptive
sanction and then consider whether any aggravating or mitigating factors apply to justify
an upward or downward deviation from the presumptive sanction. Tenn. Sup. Ct. R. 9, §
15.4(a) (“In determining the appropriate type of discipline, the hearing panel shall consider
the applicable provisions of the ABA Standards for Imposing Lawyer Sanctions.”);
Meehan v. Bd. of Pro. Resp. of Sup. Ct. of Tenn., 584 S.W.3d 403, 413 (Tenn. 2019). “With
no aggravating or mitigating factors, the presumptive sanction applies.” Meehan, 584
S.W.3d at 413 (citing Bd. of Pro. Resp. of Sup. Ct. of Tenn. v. Sheppard, 556 S.W.3d 139,
147 (Tenn. 2018)).

The Hearing Panel identified public admonition under ABA Standard 6.24 as the
appropriate sanction with no aggravating or mitigating factors. The trial court determined
ABA Standard 6.23 was more appropriate in the circumstances of this case because Ms.
Hyder’s unauthorized practice of law posed potential injury to her clients and potential
interference with legal proceedings. The trial court therefore modified the sanction to a
public censure, which is the term Rule 9 uses to describe a public reprimand. See In Re
Walwyn, 531 S.W.3d 131, 141 (Tenn. 2017); Tenn. Sup. Ct. R. 9, § 12.4.

ABA Standard 6.23 reads in full: “Reprimand is generally appropriate when a
lawyer negligently fails to comply with a court order or rule, and causes injury or potential
injury to a client or other party, or causes interference or potential interference with a legal
proceeding.” ABA Standard 6.23. Ms. Hyder contends that because her ethical violations
arose out of negligence and her clients did not suffer actual harm, the trial court erred in
applying Standard 6.23.

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We agree with the trial court that Standard 6.23 is the appropriate standard. Ms.
Hyder repeatedly appeared in court, conducted a trial, and participated in a mediation while
her license was suspended. Each appearance was a violation of Rule 5.5 of the Rules of
Professional Conduct and an order from this Court. See Tenn. Sup. Ct. R. 8, RPC 5.5.
Each violation had the potential to cause injury to clients and/or interfere with legal
proceedings. While there is nothing in the record to suggest Ms. Hyder’s clients suffered
actual harm from her unauthorized practice of law, Standard 6.23 contemplates both actual
and potential injury. ABA Standard 6.23. As the trial court stated, unlike drafting contracts
and other legal documents,

[t]he potential for injury existed because her representation of clients in court
[and in mediation] while her license was suspended calls into question the
validity of the actions taken on behalf of the client, against the opposing
parties, and undermines the validity of the proceedings she participated in
while suspended.

We also agree with the trial court that the Hearing Panel applied an incorrect legal
standard when it imposed a public admonition because Rule 9, section 15.4(a) only allows
three types of discipline when a matter has advanced to a disciplinary hearing—disbarment,
suspension, or public censure. Tenn. Sup. Ct. R. 9, § 15.4(a). This section does not allow
for a private reprimand after a petition for discipline is filed. Tenn. Sup. Ct. R. 9, § 15.4(a)
(“Temporary suspension [], private reprimand [], and private informal admonition [] are
not types of discipline available to the hearing panel following the filing of a Petition for
Discipline.”). Upon the Board’s filing of the petition for discipline, the minimum sanction
available for Ms. Hyder was public censure. We are not persuaded by her argument that,
because private reprimand is unavailable, the Board exceeded its grasp, and the Hearing
Panel should have dismissed the petition for discipline.

The trial court did not abuse its discretion by modifying Ms. Hyder’s sanction to a
public censure for practicing law with a suspended license. In our determination, we
considered Ms. Hyder’s repeated violations of Rule 5.5 of the Rules of Professional
Conduct, the ABA Standards, the potential harm to Ms. Hyder’s clients, the potential
interference with legal proceedings, and the types of sanctions available in this case under
Rule 9, section 15.4.

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The Exclusion of Deposition Testimony

Finally, we determine whether the trial court abused its discretion by excluding
James Potter’s deposition testimony. “Rulings on the introduction of evidence are usually
within the discretion of the trial judge and will not be reversed except for an abuse of that
discretion.” Dockery v. Bd. of Pro. Resp. of Sup. Ct. of Tenn., 937 S.W.2d 863, 866 (Tenn.
1996).

Because Mr. Potter’s complaint was ultimately dismissed, the Hearing Panel found
his testimony to be irrelevant. The trial court determined his testimony would have no
impact on the Hearing Panel’s finding that Ms. Hyder engaged in the unauthorized practice
of law between January 21 and January 27, 2020. Ms. Hyder attempted to introduce Mr.
Potter’s deposition testimony, arguing that it is somehow relevant to the claimed ambiguity
in Rule 9, section 26.

We find Mr. Potter’s deposition testimony to have been properly excluded. The
record indicates that Mr. Potter learned that Ms. Hyder had been suspended after checking
the Board website. He did not know the reason for the suspension. Nor did he know that
she was suspended pursuant to Tennessee Supreme Court Rule 9, section 26.

The record only shows that the ethics disciplinary counsel advised Mr. Potter he
was duty-bound to report an attorney he believed to be practicing law with a suspended
license. His testimony has no bearing on any claimed ambiguity of Rule 9, section 26 or
the Hearing Panel’s determination of whether Ms. Hyder engaged in the unauthorized
practice of law.

CONCLUSION

Under current law, Tennessee lawyers must pay their professional privilege tax or
face suspension effective immediately upon order of this Court. Engaging in the practice
of law while suspended for nonpayment of the privilege tax is the unauthorized practice of
law.

We affirm Ms. Hyder’s public censure. The costs of this appeal are taxed to Colleen
A. Hyder.

_________________________________
DWIGHT E. TARWATER, JUSTICE

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