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BOARD OF PROFESSIONAL RESPONSIBILITY -
OF THE
SUPREME COURT OF TENNESSEE
10 CADILLAC DRIVE, SUITE 220
BRENTWOOD, TENNESSEE 37027
TELEPHONE: (615) 361-7500
(BOD) 486-5714
FAX: (515) 367-2480
E-MAIL: ethics@tbpr.org
Webslte: www.tbpr,org

RELEASE OF INFORMATION
RE: WILLIAM CALDWELL HANCOCK. BPR #5312
CONTACT: KRISANN HODGES
BOARD OF PROFESSIONAL RESPONSIBILITY
W
September 4, 2014
NASHVILLE LAWYER SUSPENDED

On September 3, 2014, William Caldwell Hancock, of Nashville, Tennessee, was suspended from the
practice of law for thirty (30) days by the Tennessee Supreme Court.
The Board of Professional Responsibility filed a Petition for Discipline against Mr. Hancock alleging, in
part, that he committed ethical misconduct by engaging in an ex parte communication with a bankruptcy judge.
Mr. Hancock represented a commercial client in a bankruptcy action. After spending several months in
litigation, Mr. Hancock withdrew from the case and sought over $300,000 in attorneys’ fees. The bankruptcy
court refused to award the fees finding, among other things, that Mr. Hancock’s behavior during the case had
been unprofessional, abusive, and disruptive. Mr. Hancock appealed the decision denying his fees. The federal
court affirmed the bankruptcy court’s determination that Mr. Hancock was not entitled to fees. Several days
later, Mr. Hancock sent an email to the bankruptcy judge that said, in part, “. .. if you have a decent bone in
your body you will get down off your high horse and act like a man instead of a bully and clown .”
A Hearing Panel found that Mr. Hancock had violated several Rules of Professional Conduct. The Panel
concluded that Mr. Hancock should be suspended from the practice of law for 30 days. Both the Board and Mr.
Hancock appealed the decision to the Chancery Court for Davidson County, which found three additional rule
violations and upheld the 30-day suspension.
Mr. Hancock filed an appeal to the Tennessee Supreme Court. The Court determined that Mr. Hancock
was in Violation of Rule of Professional Conduct (“RPC”) 3 .5(b), which prohibits ex parte communications with
a judge and RPC 3.5(e), which prohibits conduct intended to disrupt a tribunal. The Court concluded that these
Violations, in conjunction with aggravating and mitigating circumstances, justified a thirty (30) day suspension
from the practice of law. The Court reversed the finding that Mr. Hancock violated RPC 8.2(a)(1), which
prohibits a lawyer from making a statement he knows to be false or that is made with reckless disregard as to its
truth or falsity. The Court also reversed the lower court’s determination that three additional RPCs had been
violated.
Justice Cornelia A. Clark concurred with the Court’s decision, but wrote a separate opinion concluding
that the record contained substantial and material evidence that Mr. Hancock’s e—mail had been sent to third
parties, which justified the sanction. Chief Justice Gary R. Wade dissented in part, concluding in a separate
opinion that Mr. Hancock’s misbehavior, although offensive, did not disrupt a tribunal. Chief Justice Wade
opined that a public censule would be appropriate, rathe1 than a suspension.
Mr. Hancock must comply with Tenn. Supreme Court Rule 9, Sections 18 (2006)and 30.4 (2014),
regarding the obligations and responsibilities of suspended attorneys and the procedure for reinstatement.

Hancock 1959-5 rel.doc
IN THE SUPREME COURT OF TENNESSEE
AT NASHVILLE
February 5, 2014 Session ,

WILLIAM CALDWELL HANCOCK v.
BOARD OF PROFESSIONAL RESPONSIBILITY
OF THE SUPREME COURT OF TENNESSEE

Chancery Court for Davidson County FlLED
Nos. 11-1816-IV & 11-1797-IV
SEP‘ I-- 3 2014
Clerk.
No. M2012-02596-SC-R3-BP "3011 By 01 the OQurts

This case was heard upon the record on appeal from the Chancery Court for Davidson
County, briefs and argument of counsel; and upon consideration thereof, this Court is of the
opinion that the Chancery Court properly affirmed the hearing panel’s finding that William
Caldwell Hancock violated Tennessee Rules of Professional Conduct 3.5(b), 3,5(e), 8.4(a),
and 8.4(d). The Chancery Court erred, however, by modifying the hearing panel’s judgment
to in elude additional rule violations based on Tennessee Rules of Professional Conduct 3 .2,
3.4(c), 8.4(a), and 8.40:1). The thirty-day suspension imposed by the hearing panel is also
affirmed.

It is further ordered that the Board of Professional Responsibility shall cause notice
of this discipline to be published as required by Tennessee Supreme Court Rule 9, section
18.10 (2006).

It is further ordered that Mr. Hancock shall comply in all respects with Tennessee
Supreme Court Rule 9, section 18, including the obligation that he file an affidavit with the
Board of Professional Responsibility within ten (10) days from the date of the entry of this
order showing that he has complied with all the requirements of Tennessee Supreme Court
Rule 9, section 18.

It is further ordered that pursuant to Tennessee Supreme Court Rule 9, section 24.3,
Mr. Hancock shall pay to the Board of Professional Responsibility the expenses and costs of
this matter. Costs of this appeal are taxed one-half to William Caldwell Hancock and his
surety, and one—half to the Board of Professional Responsibility of the Supreme Court of
Tennessee, for all of which execution may issue if necessary.

Before resuming the practice of law, Mr. Hancock must seek reinstatement pursuant
to Tennessee Supreme Court Rule 9, section 30.4 (2014).
' IN THE SUPREME COURT OF TENNESSEE
AT NASHVILLE FI LED
February 5, 2014 Session SEP # 3 2,014
Clerk of the-Courts
WILLIAM CALDWELL HANCOCK v. Rec'd By
BOARD OF PROFESSIONAL RESPONSIBILITY
OF THE SUPREME COURT OF TENNESSEE

Direct Appeal from the Chancery Court for Davidson County
Nos. 11-1816—IV 8; 11-1797-IV Donald P. Harris, Special Judge

No. M2012-02596-SC—R3—BP

A federal bankruptcy court enteredjudgment denying a Nashville attorney’s application for
approximately $372,000 in attorney’s fees and expenses. Nine months later, the attorney
emailed the bankruptcy judge who denied his fee application, calling the judge a “bully and
clown” and demanding that he provide a written apology for denying the fee application.
The Board ofProfessional Responsibility instituted a disciplinary action against the attorney,
and a hearing panel of the Board found that the attorney violated several Rules of
Professional Conduct by sending the email and recommended that the attorney be suspended
from the practice of law for thirty days. The Chancery court modified the hearing panel’s
judgment to include additional violations for misconduct associated with the attorney’ 3 briefs
filed in the district court but affirmed the remainder of the hearing panel’s judgment. The
attorney timely appealed to this Court. We affirm the hearing panel’s conclusion that the
attorney’s email violated the rule against ex parte communications and was also sanctionable
as “conduct intended to disrupt a tribunal.” We conclude, however, that the hearing panel
erred by finding the attorney in violation of the ethical rule that prohibits attorneys from
making false statements about the qualifications or integrity of a judge. We also reverse the
chancery court’s modification of the hearing panel’s judgment. We affirm the attorney’s
thirty—day suspension from the practice of law.

Tenn. Sup. Ct. R. 9, § 1.3 Direct Appeal;
Judgment of the Chancery Court Affirmed in Part; Reversed in Part

JANICE M. HOLDER, J ., delivered the opinion of the Court, in which SHARON G. LEE, J .,
joined. GARY R. WADE, C.J., and CORNELIA A. CLARK, J., each filed a concurring opinion.
WILLIAM C. KOCH, JR., J ,, not participating.

William Caldwell Hancock, Nashville, Tennessee, Pro Se.
Krisann Hodges, Brentwood, Tennessee, for the appellee, Board of Professional
Responsibility of the Supreme Court of Tennessee.

OPINION

1. Facts and Procedural History

On August 20, 2010, the Board of Professional Responsibility of the Supreme Court
ofTennessee (“the Board”) filed a petition for discipline against William Caldwell Hancock,
an attorney licensed in Tennessee since 1977. In its petition, the Board alleged that Mr.
Hancock violated a number of the Rules of Professional Conduct while acting as debtor’s
counsel for Barnhill’s Buffet, Inc. (“Barnhill’s”) in a bankruptcy action filed in the United
States Bankruptcy Court for the Middle District ofTennessee.12 On February 1, 2011, the
Board amended its petition for discipline, but the facts alleged in the Board’s initial and
amended petitions are identical. A hearing panel heard the case on October 1 1 and 12, 201 1,
during which the following facts were revealed.

On December 3, 2007, Mr. Hancock filed a voluntary bankruptcy petition on behalf
of Barnhill’s in the United States Bankruptcy Court for the Middle District of Tennessee.
After several months ofcontentious litigation, Mr. Hancock moved to withdraw as B arnhill’s
counsel on April 18, 2008, stating:

[I have] been subjected to what are considered to be criminal threats of adverse
action to be taken unless [Bamhill’s] or other parties could not or would not
affirmatively meet the demand of other counsel for a set aside of estate or
creditor assets to secure said counsel’s legal fees, which threats turned into
reality when those demands were not met. The United States Trustee seems
unwilling to remedy that misconduct. That same counsel has knowingly made
(and refused to withdraw) wholly false allegations regarding [me] and
[Barnhill’s] management in order to leverage a fees carve out of $45,000 from
a creditor who opposed conversion.

Mr. Hancock subsequently filed a notice to withdraw his motion, but his employment was
eventually terminated when Barnhill’s bankruptcy was converted to a Chapter 7 proceeding

‘2 The Board’s petition also alleged that Mr. Hancock violated several rules of professional conduct
while acting as debtor’s counsel for Innovative Entertainment Concepts, Inc. (“IEC”) in another voluntary
bankruptcy action that was filed in the United States Bankruptcy Court for the Middle District ofTennessee.
The hearing panel determined, however, that Mr. Hancock had not committed professional misconduct in
the IEC case, and the hearing panel’s findin gs in that regard are not challenged by either party in this appeal.
We have therefore limited our discussion of the issues in this opinion to Mr. Hancock’s relevant conduct in
the Barnhill’s case.

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and a trustee was appointed. On June 3, 2008, Mr. Hancock filed an initial fee application
with the bankruptcy court seeking $355,975 for attorney’s fees and expenses. The United
States Trustee objected to Mr. Hancock’s fee application, arguing, among other things, that
Mr. Hancock’s fees were unnecessarily and unreasonably inflated by his “abusive . . .
litigation tactics” during the case and by his failure to make adequate disclosures concerning
his alleged prior representation of an interested party in the Barnhill’s case. On July 7,2008,
Mr. Hancock filed a First and Final Application for Allowance of Compensation, seeking
$356,554.50 in fees and $1071.55 in expenses. Mr. Hancock amended his final fee
application on July 17, 2008, requesting total compensation in the amount of $372,967.55
for attorney’s fees and expenses.

Following a five-day hearing, the bankruptcy court entered a twenty—six-page
memorandum opinion on December 9, 2008, denying Mr. Hancock’s request for fees but
awarding him $1071.55 for expenses. In support of its denial of Mr. Hancock’s fee, the
bankruptcy court described Mr. Hancock’s behavior throughout the Barnhill’s case as
“unprofessional,” “dilatory,” “disruptive,” “troubling,” “unacceptable,” “abusive,”
“intractable,” and “unfortunate.” The bankruptcy court acknowledged that Mr. Hancock
possessed a “keen intellect and understanding of bankruptcy law,” but it was “troubled
deeply” by his conduct and was “saddened by [his] apparent inability to either realize or
control his inappropriate actions and his propensity for conservative disclosures rather than
overt transparency.”

Mr. Hancock appealed the bankruptcy court’s denial of his fee to the United States
District Court for the Middle District ofTennessee. Mr. Hancock’s brief was due to be filed
in the district court on March 27, 2009, but on March 25, 2009, he moved to extend the time
for filing a brief, which the district court granted, extending Mr. Hancock’s filing deadline
to April 27, 2009. On May 1, 2009, Mr. Hancock filed a second motion to extend his time
for- filing a brief and additionally sought “permission to file a brief in excess of [twenty-five]
but not more than [fifty] pages in length.” The district court granted Mr. Hancock’ 3 requests
on May 1 1, 2009. As of August 5,2009, however, Mr. Hancock had not yet filed a brief, and
the district court therefore entered an order to show cause why his appeal should not be
dismissed. Rather than respond to the district court’s show cause order, Mr. Hancock filed
a 128—page brief on August 14, 2009.

The Trustee moved to dismiss Mr. Hancock’s appeal or, in the alternative, to compel
his compliance with the district court’s prior order limiting his brief to fifty pages. On
August 31, 2009, the district court entered an order requiring Mr. Hancock to file a revised
brief not to exceed fifty pages. In response, Mr. Hancock filed a “revised brief” on
September 21, 2009. Although the two briefs were substantively identical, the font size and
spacing used in the revised brief reduced its size from 128 pages to fifty~one pages. Rather
than dismiss Mr. Hancock’s appeal for his failure to file a compliant brief, the district court
entered an order on September 23, 2009, summarily affirming the bankruptcy court’s ruling.

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In its order, the district court explained that it chose a summary affirmance because it “fully
expect[ed Mr. Hancock] to appeal further to the Sixth Circuit Court of Appeals, where he
might receive a decision on the merits.”

On September 28, 2009, Mr. Hancock sent the following email to Judge George Paine,
the bankruptcy court judge who denied his fee application in the Barnhill’s case:

. '8an Hancock" To < m Jaime inmbuitmiits. 'wp
Q :hnnmfllnwfllcmsmfib m ll one Q 9‘

tomato 03:21 PM 566
Sabina PW: Pee: Dee minimum 243 and 245
amour: 5:. This muscle-g9 has both forwarded.

l have been thinking about what you did to me and my family every hour of every day
since last Elemmbnr. l get little reminders every day. Here's one from a few days ago
demonstrating the product of your handiwork.
My family and l are still waiting to: yous written apology.
l also invite you to most wlth me fees to face - if you have the courage ~ and explain
to me man to man and eye to eye WHY you denied my foes - lsay "why" because
you should know and I do know that the garbage you published is no: law and not
feel and is just cover .
them 18 an unspoken 'why“ and l have a pretty good idea what it is out realty would
like to hear it from your llps ifyou have the courage to be truthful .

and I want you to tell me why you chose to trash me and my work and skills in words
that no decent human being would dare manufacture. and publish stunt: another
unless his intention was to destroy smothers livelihood.

I am available lost about every day at lunchtime at any place suitable to you.
You have slnglehehdadly destroyed my ability to make a living ~ It you have a decent
hone in your how you will get down ell your high horse and act like a man mete-ad of
a bully and claw. anew some honesty and integrity new that you have proved your
point. and repair the damage you have: clone. The wrltten apology would be a good
atartlng place. and the eonfesslon would be good for your immortal soul. Then maybe
you and i can find a way to make peace with each other. Don‘t you think that would
be a really good idea?
i loot: forward to hearing from you.
Colman Hancock
The Hattie-och Law Firm

102 Woodment Boumm. Suite 20!)

Nashville. TN 372735

[151 5'; 34543202

{815) 293—694? fax
Two days after sending the email, Mr. Hancock appealed to the Sixth Circuit, which
affirmed the district court’s decision. See Hancock v. McDermott, 646 F.3d 356, 360 (6th
Cir. 201 1).

Findings of the Hearing Panel

On November 2, 2011, the hearing panel filed its written findings with the Board in
compliance with Tennessee Supreme Court Rule 9. Se; Tenn. Sup. Ct. R. 9, § 8.3 (requiring
the hearing panel to submit its written findings within fifteen days of the conclusion of the
hearing).‘3 The hearing panel concluded that by sending the email to Judge Paine, Mr.
Hancock violated Rules 3.5(b)l4 and (e),‘5 8.2(a)(1),'6 and 8.4(a) and (d).17 The hearing
panel, however, did not find that Mr. Hancock violated any other Rules of Professional
Conduct as alleged by the Board in its petitions.‘8 The hearing panel considered the
American Bar Association’s Standards for Imposing Lawyer Sanctions (“ABA Standards”)
and determined that a suspension was appropriate. The hearing panel next determined that
the Board had proven the following aggravating factors: (1) Mr. Hancock’s multiple

'3 Effective January 1, 2014, this Court made comprehensive changes to Rule 9. The events
described in this opinion, however, occurred prior to the effective date of our rule change. Any references
in this opinion to Rule 9 are therefore to the‘version in effect at the time of Mr. Hancock’s disciplinary
hearing.

‘4 Tennessee Supreme Court Rule 8, RFC 3 .5(b) provides that “[a] lawyer shall not . . . communicate
ex parte with [ajudge] during the proceeding unless authorized to do so by law or court order.”

"5 Tennessee Supreme Court Rule 8, RFC 3.5(e) prohibits lawyers from “engag[ing] in conduct
intended to disrupt a tribunal,” and this prohibition extends “to any proceeding of a tribunal, including a
deposition.” Tenn. Sup. Ct. R. 8, RFC 3.5, cmt. 6.

“5 Tennessee Supreme Court Rule 8, RFC 8.2(a)( l ) states that “[a] lawyer shall not make a statement
that the lawyer knows to be false or that is made with reckless disregard as to its truth or falsity concerning
the qualifications or integrity of [a judge].”

‘7 Tennessee Supreme Court Rule 8, RFC 8.4(a) states, “It is professional misconduct for a lawyer
to violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do
so, or do so through the acts of another.” Similarly, Tennessee Supreme Court Rule 8, RFC 8.4(d) provides
that “[i]t is professional misconduct for a lawyer to . . . engage in conduct that is prejudicial to the
administration ofjustice.”

'8 The hearing panel rejected the Board’s contention that Mr. Hancock violated the following Rules
ofProfessional Conduct durin g the Bamhill’ s case: 1 .5(a) (fees), I .7(a) (conflicts), 3 .2 (expediting litigation),
3 .3(a)(l ) (candor toward the tribunal), 3 .4(c) (fairness to opposing counsel), 3 .5(e) (impartiality and decorum
of the tribunal), 4.4(a) (reSpect for the rights of third persons), and 8.4(0) (conduct involving dishonesty,
fraud, deceit, or misrepresentation). The hearing panel also found that Mr. Hancock’s email to Judge Paine
did not violate Rule 4.1(a), which states that -“[i]n the course of representing a client, a lawyer shall not
knowingly make a false statement of material fact or law to a third person.” Tenn. Sup. Ct. R. 8, RFC 4.1.

-5-
offenses; (2) his refusal to acknowledge the wrongful nature of his conduct; and (3) his
substantial experience in the practice of law. In mitigation, the hearing panel considered Mr.
Hancock’s personal and emotional problems during and after the Barnhill’s case. Based on
its assessment ofthe evidence and the relevant aggravating and mitigating circumstances, the
hearing panel concluded that Mr. Hancock should be suspended from the practice of law for
thirty days.

Both parties appealed the hearing panel’s judgment by filing separate petitions for
certiorari in the Chancery Court for Davidson County. & Tenn. Sup. Ct. R. 9, § 1.4 (“An
appeal from the recommendation orjudgment of a hearing panel must be filed in the circuit
or Chancery court of the county wherein the office of the respondent[-attorney] was located
at the time the charges were filed with the Board”). The chancery court heard arguments
from counsel and entered judgment on October 2 S, 2012, affirming Mr. Hancock’s thirty-day
suspension but modifying the hearing panel’s judgment to include violations of Rules 3 .2,‘ 9
3 .4(c),20 8.4(a), and 8.4(d) for failing to file abrief in the district court that complied with the
district court’s prior orders and with its~ local rules.”

In its memorandum opinion, the Chancery court explained that although the hearing
panel found that Mr. Hancock’s revised brief failed to comply with the district court’s orders
and with the local rules, the hearing panel nevertheless failed to find Mr. Hancock in
violation of the Rules of Professional Conduct for his actions concerning the district court
brief. The Chancery court concluded that the hearing panel’s failure to make these findings
“appears to have been an oversight and .,. . renders the decision of the hearing panel arbitrary
with regard to these alleged violations. . . .” The chancery court further explained that it
modified the judgment rather than remand the case to the hearing panel because “the
violations alleged would not justify the imposition of additional sanctions and this matter
needs to be concluded.” Accordingly, the chancery court affirmed Mr. Hancock’s thirty-day
suspension from the practice of law, and Mr. Hancock timely appealed to this Court.

‘9 Tennessee Supreme Court Rule 8, RPC 3.2 states, “A lawyer shall make reasonable efforts to
expedite litigation.”

2" Tennessee Supreme Court Rule 8, RFC 3.4(c) prohibits lawyers from “knowingly disobeyfing] an
obligation under the rules of a tribunal, except for an open refusal based on an assertion that no valid
obligation exists.” ,

2‘ On February 12, 2014, Mr. Hancock filed a “Motion to Annul the Judgment on Appeal for Fraud
Perpetrated Upon Disciplinary Tribunals and the Court by Disciplinary Counsel” in this Court. In his
motion, Mr. Hancock argues that the district court’s order did not impose a fifty-page limit for his brief.
After considering Mr. Hancock’s motion, the Board’s response, and the entire record, we conclude that Mr.
Hancock’s motion is without merit, and it is therefore denied.

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II. Analysis

Our review of the hearing panel ’3 judgment is governed by Tennessee Supreme Court
Rule 9, section 1.3, which provides as follows:

The court may reverse or modify the [hearing panel’s] decision if the rights of
the petitioner have been prejudiced because the panel’s findings, inferences,
conclusions or decisions are: (1) in violation of constitutional or statutory
provisions; (2) in excess of the panel’s jurisdiction; (3) made upon unlawful
procedure; (4) arbitrary or capricious or characterized by abuse of discretion
or clearly unwan‘anted exercise of discretion; or (5) unsupported by evidence
which is both substantial and material in light of the entire record.

Absent these limited circumstances, the hearing panel’s decision should not be disturbed on
appeal. Maddux v. Bd. of Prof’l Resoonsibilitv, 409 S.W.3d 613, 621-22 (Tenn. 2013).
Tennessee Supreme Court Rule 9, section 1.3 further prohibits us from substituting our
judgment for that of the hearing panel on questions of fact and the weight of the evidence.

A. Ex Parte Communication

We first address Mr. Hancock’s contention that the hearing panel erred by finding him
in violation of Tennessee Supreme Court Rule 8, RFC 3.5(b), which states that “[a] lawyer
shall not communicate ex parte with [a judge] during the proceeding unless authorized to do
so by law or court order.” Mr. Hancock maintains that because he had appealed Judge
Paine’s ruling before he sent the email, it was not sent “during the proceeding” and is
therefore not an ex parte communication. See generally Malmouist v. Malmquist, 415
S.W.3d 826 (Tenn. Ct. App. 201 1), perm. app. denied (Tenn. Feb. 21 , 2012) (concludingthat
a trial judge was not required to recuse himself from a case when a threat allegedly made by
one of the litigants was communicated to the trial judge through a third party while the case
was on appeal). in contrast, the Board argues that although Mr. Hancock had appealed, his
email was sent while the Barnhill’s bankruptcy was ongoing in Judge Paine’s court. The
Board therefore contends that Mr. Hancock’s email was sent “during the proceeding.”

The phrase “during the proceeding” is not defined in Rule 3 .5 or in its accompanying
comments. Comment 1 to Rule 3.5 states, however, that “[m]any forms of improper
influence upon a tribunal . . . are specified in the Tennessee Code of Judicial Conduct, with
which an advocate should be familiar.” The Code of Judicial Conduct’s analog to Rule 3.5
prohibits judges from “initiat[ing], permit[ting], or consider[ing] ex parte communications
. . . concerning a pending or impending matter.” Tenn. Sup. Ct. R. 10, RJC 2.9. The Code
of Judicial Conduct defines a “pending matter” as “a matter that has commenced” and
explains that “a matter continues to be pending through any appellate process until final
disposition.” Tenn. Sup. Ct. R. 10, Terminology. Because thejudicial prohibition against

-7-
ex parte communications extends to cases that have not yet completed the appellate process,
we can determine no reason why attorneys should not be similarly constrained. & Leslie
W. Abramson, The Judicial Ethics ofEx Parte and Other Communications, 37 Hous. L. Rev.
1343, 1391 (2001) (noting that “a proceeding is ‘pending’ from the filing ofthe claim until
the rendition of a final judgment” and that a lawyer may only communicate with a judge
about the merits of the case “[o]nce the time for appeal has run”); Alex Rothrock, Ex Parte
Communications with a Tribunal: From Both Sides, 29 Colo. Law. 55, 5 8 (2000) (noting that
“[t]he ‘pending or impending proceeding’ limitation on prohibited ex parte communications
has been extended to Rule 3.5(b)”); see also Restatement (Third) of The Law Governing
Lawyers § 113(1) (2000) (prohibiting attorneys from “knowingly communicat[ing] ex parte
with a judicial officer before whom a proceeding is pending concerning the matter, except
as authorized by law”) (emphasis added). Accordingly, Rule 3 .5(b)’s proscription ofex parte
communications extends “through any appellate process until final disposition.” Tenn. Sup.
Ct. R. 10, Terminology.

Here, Mr. Hancock emailed Judge Paine on September 28, 2009, and specifically
referenced Judge Paine’s denial of his fee application. Two days later, Mr. Hancock
appealed the district court’s summary affirmance to the United States Court of Appeals for
the Sixth Circuit. Because the time in which Mr. Hancock could appeal the district court’s
ruling had not yet expired, the email was sent “during the proceeding” and constitutes an ex
parte communication in violation of Rule 3 .5(b). We therefore affirm the hearing panel’s
finding that Mr. Hancock violated Rule 3 .5(b).

Although we have concluded that Mr. Hancock’s email to Judge Paine constituted an
ex parte communication, we must nevertheless address Mr. Hancock’s alternative argument
that he may not be disciplined for his email because the email was permitted by Rule 9003(a)
of the Federal Rules of Bankruptcy Procedure. Rule 9003(a) states that “[e]xcept as
otherwise permitted by applicable law, any examiner, any party in interest, and any attorney,
accountant, or employee of a party in interest shall refrain from ex parte meetings and
communications with the court concerning matters affecting a particular case or proceeding.”

Mr. Hancock contends that federal precedents have interpreted Rule 9003(a) as only
prohibiting communications made prior to the trial court’s rendering a final decision. Mr.
Hancock cites, for example, the United States Court of Appeals for the Fifth Circuit’s
decision in In re Texas Extrusion Corp., 844 F.2d 1142 (5th Cir. 1988). In that case, the
bankruptcy judge verbally confirmed ajoint plan ofreorganization and asked counsel for one
of the creditors to prepare proposed findings of fact and conclusions of law. 1d. at 1 149-50.
The creditor’s counsel submitted proposed findings of fact and conclusions of law directly
to the bankruptcy judge and did not provide copies to the debtor’s counsel. 1; at 1150. On
appeal, the debtor argued that the creditor’s counsel engaged in ex parte communications in
violation of B ankruptcy Rule 9003(a). 1d,, at l 164. The Fifth Circuit reasoned, however, that
“[t]he matter was no longer pending for purposes of these provisions prohibiting ex parte

-3-
contacts between counsel for aparty and ajudge in whose court thatparty’s case is pending.”
I_(_;L.

Notwithstanding the factual differences between Mr. Hancock’s case and In re Texas
Extrusion Corp, we do not view the Fifth Circuit’s decision as controlling law in this
disciplinary proceeding. As the advisory committee’s notes to Rule 9003(a) make clear,
“[Rule 9003(a)] is not a substitute for or limitation of any applicable canon of professional
responsibility or judicial conduct.” Fed. R. Bankr. P. 9003(a) advisory committee’s note.

Pursuant to Tennessee Supreme Court Rule 8, RFC 8.5(a), Mr. Hancock is subject to
this Court’s disciplinary authority “regardless of where [his] conduct occur[red].” The
applicable standards of professional conduct in this case therefore derive from Tennessee
Supreme Court Rule 8, not Bankruptcy Rule 9003 (a). See Tenn. Sup. Ct. R. 8, RPC 8.5(b)( 1)
(stating that the applicable rules of professional conduct “for conduct in connection with a
matter pending before a tribunal[ are] the rules of the jurisdiction in which the tribunal sits,
unless the rules ofthe tribunal provide otherwise”); see also Bankr. MD. Tenn. R. 209 l -l(a)
(“The standards of professional conduct for an attorney who appears for any purpose [in the
United States Bankruptcy Court for the Middle District of Tennessee] shall include the
current rules of professional conduct adopted by the Supreme Court of the State of
Tennessee”).22 Accordingly, Mr. Hancock’s preemption argument is without merit. We
therefore affirm the hearing panel’s finding that Mr. Hancock violated Rule 3.5(b).

B. Conduct Intended to Disrupt a Tribunal

We must next determine whether the hearing panel erred by finding that Mr.
Hancock’s email constituted “conduct intended to disrupt a tribunal.” Tenn. Sup. Ct. R. 8,
RFC 3.5(e). Comment 5 to Rule 3.5(e) explains that an attorney’s “function is to present
evidence and argument so that the cause may be decided according to law.” To that end,
“[a]n advocate can present the cause, protect the record . . . , and preserve professional
integrity” without “belligerence or theatrics.” Tenn. Sup. Ct. R. 8, RPC 35 cmt. 5. An
attorney’s ethical obligation to avoid engaging in conduct intended to disrupt a tribunal
extends to “any proceeding of a tribunal, including a deposition,” Tenn. Sup. Ct. R. 8, RFC
3.5 cmt. 6, and the attorney’s conduct “need not occur inside the courtroom to be disruptive
to a tribunal.” Ann. Mod. Rules Prof. Cond., Rule 3.5 (7th ed. 2011). But see Geoffrey C.
Hazard, Jr. & W. William Hodes, The Law of Lawyering § 31.6, at 31-38 (3d ed. 2007)
(opining that “[i]f a lawyer takes action outside a courtroom setting, it is virtually impossible
that it could ‘disrupt’ a tribunal or be intended to do so”).

22 The Local Rules of Court for the United States Bankruptcy Court for the Middle District of
Tennessee underwent comprehensive amendments that went into effect on December 1, 2013. Because the
events described in this opinion preceded those amendments, all references to the Local Bankruptcy Rules
in this opinion are to the Rules in effect at the time of Mr. Hancock’s disciplinary hearing.

-9-
Based on the text of the rule and its comments, the scope of Rule 3.5(e) is clearly
limited to those situations in which an attorney’s actions interfere with atribunal’s ability to
conduct its affairs. Although we recognize that Mr. Hancock was not involved in the
ongoing litigation of Barnhill’s bankruptcy action when he emailed Judge Paine, a
“proceeding” was nevertheless pending because his time for appealing to the Sixth Circuit
had not yet expired. As the hearing panel acknowledged, Mr. Hancock’s email has a
“threatening tone” and represents the “abusive [and] obstreperous conduct” that Rule 3 .5(e)
prohibits. Tenn. Sup. Ct. R. 3.5(e) cmt. 5. We therefore conclude that Mr. Hancock’s
Violation of Rule 3 .5(e) is supported by substantial and material evidence.23

C. Statement Concerning Judge Paine’s Integrity

We next address Mr. Hancock’s challenge to Tennessee Supreme Court Rule 8, RPC
8.2(a)(1), which provides that “[a] lawyer shall not make a statement that the lawyer knows
to be false or that is made with reckless disregard as to its truth or falsity concerning the
qualifications or integrity of . . . a judge . . . .” Mr. Hancock maintains that Rule 8.2(a)(l)
is a facially unconstitutional, content~based restrictiOn on his right to free speech under the
United States and Tennessee Constitutions. Sag US. Const. amend. I (“Congress shall make
no law . . . abridging the freedom of speech . . . 3’); Tenn. Const. art. 1, § 19 (stating in part
that “[t]he free communication of thoughts and opinions, is one of the invaluable rights of
man, and every citizen may freely speak, write, and print on any subject”); see also S. Living,
Inc. v. Celauro, 789 S.W.2d 251, 253 (Tenn. 1990) (recognizing that Article 1, Section 19 of
the Tennessee Constitution “should be construed to have a scope at least as broad” as that of
the First Amendment to the United States Constitution). Specifically, Mr. Hancock borrows
from the law of defamation and argues that Rule 8.2(a)(1) violates the First Amendment
because it does not require the Board to prove that the attorney “published” the false
statement about the judge’s integrity or qualifications. Mr. Hancock also contends that Rule
8.2(a)(1) is unconstitutional as applied to his case because the Board did not prove that his
statements in the email were “actually false.”

23 Mr. Hancock also asserts in his brief that Rule 3.5(e) is unconstitutional. Mr. Hancock cites no
authority for this proposition and provides no rationale for his conclusion. We therefore decline to address
this issue. But see Gentile v. State Bar ofNev.. 501 US. 1030, 1081-82 (1991) (O’Connor, J., concurring)
(stating that attorneys “may legitimately be subject to ethical precepts that keep them from engaging in what
otherwise might be constitutionally protected Speech”); Bd. of Prof’l Responsibility v. Slavin. 145 S.W.3d
538, 549 (Tenn. 2004) (recognizing that attorneys’ First Amendment rights “are often subordinated to other
interests inherent in thejudicial setting”); Ramsey v. Bd. of Prof’l Responsibility. 771 S.W.2d 116, 121
(Tenn. 1989) (“A lawyer has every right to criticize court proceedings and thejudges and courts of this State
after a case is concluded, so long as the criticisms are made in good faith with no intent or design to willfully
or maliciously misrepresent those persons and institutions or to bring them into disrepute.”) (emphasis
added).

-10-
It is well settled that this Court will decide constitutional issues only when doing so
is “absolutely necessary for [the] determination of the case and the rights of the parties.”
Owens v. State, 908 S.W.2d 923, 926 (Tenn. 1995). We therefore resolve appeals on non-
constitutional grounds whenever it is possible to do so. Keough v. State, 356 S.W.3d 366,
371 (Tenn. 2011). Because we conclude that Rule 8.2 implicitly requires proof of
publication, we decline to decide Mr. Hancock’s constitutional argument.

Rule of Professional Conduct 8.2 prohibits an attorney from making false statements
concerning the integrity or qualifications of a judge because these statements “unfairly
undermine public confidence in the administration ofjustice.” Tenn. Sup. Ct. R. 8, RFC 8.2
cmt. 1; Ramsey, 771 S.W.2d at 121 (describing the harm that results from a lawyer’s false
statements about a judge as being the “dimin[ution of] the confidence of the public in our
courts”). By the same token, Rule 8.2 is “not designed to shield judges from unpleasant or
offensive criticism.” Office of Disciplinary Counsel v. Gardner, 793 N.E.2d 425, 432 (Ohio
2003); see also In re Green, 11 P.3d 1078, 1087 (Colo. 2000) (recognizing a “reduced
governmental interest” when the attorney’s criticisms ofthejudge were communicated only
to the judge and opposing counsel); In re Wilkins, 777 N.E.2d 714, 718 (Ind. 2002)
(recognizing “the state’s interest in preserving the public’s confidence in the judicial
system”); In re Holtzman, 577 N.E.2d 30, 33 (NY. 1991) (stating that an attorney’s public
statements to media about a trial judge “undermine[d] public confidence in the judicial
system”); Tobin A. Sparling, AttorneysUn-Muzzled: Does Republican Pafly of Minnesota
v. White Invalidate the Use ofan Objective Standard in Cases Involving Extrajudicial Speech
Criticizing a Judge?, 30 Hamline L. Rev. 59, 70 (2007) (characterizing courts’ primary
justification for sanctioning attorneys for statements aboutjudges as being that “[t]hejudicial
system suffers when [an attorney’s] false criticism diminishes public confidence in its
effectiveness and impartiality”). But see in re Evans, 801 F.2d 703, 706 (4th Cir. 1986)
(disbarring an attorney from federal court for statements made in a letter to ajudge that were
“undignified, discourteous, and degrading” although the letter was sent to only the subject
judge).

This Court has long recognized that attorneys are in the best position to know the
“character and efficiency of our judges.” 11 re Hickey, 258 S.W. 417, 429 (Tenn. 1923).
Because attorneys are among the most credible of witnesses on the qualifications ofjudges,
the public routinely relies on attorneys’ assessments when deciding Whether to vote for a
particular candidate seekingjudicial office. Tenn. Sup. Ct. R. 8, RPC 82 cmt. 1; see also _I_n
re Green, 11 P.3d at 1085 (acknowledging that public criticism ofjudges by attorneys is an
important public interest because many judges in Colorado are subjectto retention elections).
Rule 8.2 therefore encourages attorneys to provide “honest and candid opinions” for the
public’s benefit. Tenn. Sup. Ct. R. 8, RFC 8.2 cmt 1.

Given the purpose ofRule 8.2(a)(l) and the harm that it seeks to prevent, we conclude
that an attorney may be disciplined pursuant to Rule 8.2 only if the false statement is

.11-
communicated to a third party. §e_e Restatement (Third) of The Law Governing Lawyers
§ 114 (providing that “[a] iawyer may not knowingly or recklessly make publicly a false
statement of fact concerning the qualifications or integrity of an incumbent of a judicial
office”) (emphasis added); see also i_c_l_. at cmt. b (“Because the purpose of [Section 114] is
to protect the public reputation of thejudicial and public legal office, there is less reason for
concern with statements made by a lawyer in private conversation. Such conversation is not
included within the rule”). We are therefore unable to conclude that Mr. Hancock’s email
falls within the scope of Rule 8.2(a)(1) because the record lacks any indication that Mr.
Hancock sent the email to anyone other than Judge Paine.24 Although we agree with the
hearing panel’s conclusion that Mr. Hancock’s email was “extremely disrespectful,” we
cannot agree that it is sanctionable under Rule 8.2(a)(1). We therefore reverse the hearing
panel’s finding that Mr. Hancock violated Rule 8.2(a)(1).

D. Chancery Court’s Modification of the Judgment

We next address the Chancery court’s modification of the judgment to include
violations of Rules of Professional Conduct 3.2, 3.4(c), 8.4(a), and 8.4(d) arising out of Mr.
Hancock’s late-filed and noncompliant briefs in the district court. The Chancery court
concluded that because the hearing panel found as a factual matter that Mr. Hancock’s
revised brief failed to comply with the district court’s orders and with the local rules, the
hearing panel’s failure to find rule violations for these actions constituted “oversight and . . .
render[ed] the decision of the hearing panel arbitrary.” fig Tenn. Sup. Ct. R. 9, § 1.3
(permitting the court to reverse or modify the hearing panel’s decision if the decision is,
among other things, “arbitrary or capricious or characterized by an abuse of discretion or
clearly unwarranted discretion”). Although we agree that the hearing panel’s judgment does
not include any mention of the alleged violations arising from Mr. Hancock’s briefs in the
district court, we disagree with the chancery court’s conclusion that the absence of findings
renders the hearing panel’s decision arbitrary.

A decision is arbitrary if it “disregards the facts or circumstances of the case without
some basis that would lead a reasonable person to reach the same conclusion.” City of
Memphis v. Civil Serv. Comm’n. 216 S.W.3d 311, 316 (Tenn. 2007) (quoting Jackson

2" Contrary to Justice Clark’s assertions, the critical issue in this case is not whether Mr. Hancock
published an email to persons other than Judge Paine. instead, our analysis is limited to the email for which
he was found in violation of Rule 8.2(a)(1). In its Memorandum Opinion, the hearing panel quoted
extensively from the body of Mr. Hancock’s email to Judge Paine. It did not, however, reference Mr.
Hancock’s September 1 l , 2009 email to his landlords. Furthermore, aside from Mr. Hancock’s request that
the attachments be admitted simultaneously with his email to Judge Paine, none of the testimony presented
at the disciplinary hearing concerned the attachments. We therefore disagree with Justice Clark’s conclusion
that substantial and material evidence supports the hearing panel’s finding that Mr. Hancock violated Rule
8.2(a)(l).
-12-
Mobilnhone Co. v. Tenn. Pub. Serv. Comm’n, 876 S.W.2d 106, 110—11 (Tenn. Ct. App.
1993)). Based on our review of the hearing panel’s memorandum opinion and its written
judgment, we are unable to conclude that the hearing panel made any “findingfl, inferencefl,
conclusion [] or decision[]” with respect to Mr. Hancock’ 3 alleged violations ofRules 3 .2 and
34(0).” It is well settled that the reviewing court is without authority to amend, modify, or
reverse the judgment of the hearing panel unless the appealing party establishes one of the
enumerated circumstances in section 1.3. Hyman v. Board of Prof’ 1 Responsibility, No.
E2012-02091-SC-R3-BP, _ S.W.3d ;_, _, 2014 WL 1280265, at *7 (Tenn. Mar. 31,
2014). As its basis for modifying the hearing panel’s judgment, the Chancery court stated
that “the violations alleged would notjustify the imposition of additional sanctions and this
matter needs to be concluded.” Neither of these justifications expressed by the Chancery
court are among those enumerated in Tennessee Supreme Court Rule 9, section 1.3.

As Mr. Hancock notes in his briefs filed in this Court, the hearing panel’s silence
concerning his alleged violations of Rules 3.2, 3 .4(c), 8.4(a), and 8.4(d) may reflect its intent
to dismiss these allegations of misconduct. Perhaps the panel was persuaded by his
testimony that a resurgence of mental illness during the time of his appeal to the district court
precluded him from complying with the court’s orders. S496; Tenn. Sup. Ct. R. 8, RFC 3.2
cmt. 1 (recognizing that “there will be occasions when a lawyer may properly seek a
postponement for personal reasons, such as illness”); id., RPC 3.4(0) (restricting the reach
of the rule to situations in which the lawyer “knowingly disobey[s] an obligation under the
rules of a tribunal”) (emphasis added); 1d,, RPC 8.4 cmt. 9 (stating in part that “[flailure to
comply with a court order is not a disciplinary offense . . . when it does not evidence
disrespect for the law . . . because the lawyer is unable to comply with the order”).

Conversely, the panel may have agreed with the Board’s position that Mr. Hancock
failed to prove that his mental illness prevented him from complying with his ethical
obligations and that his testimony concerning his mental illness is merely a mitigating factor
for the panel to consider when determining the appropriate sanction to impose. _S§e ABA
Standard 922(0) (listing the lawyer’ 3 “personal or emotional problems” as a mitigating factor
to punishment). The parties’ arguments raise legitimate questions about the credibility oer.
Hancock‘s testimony and the weight of the evidence adduced at the hearing. To that end, the
hearing panel could have resolved these issues in favor of either party. The point remains,
however, that the hearing panel did not resolve these issues, and without a specific finding,

25 in fact, the only mention of these rules appears in the hearing panel’s order, which states, “Mr.
Hancock did not violate Rules 3.2 (expediting litigation); 3.4(0) (fairness to opposing counsel); 3.5(e)
(impartiality and decorum of the tribunal); and 8.4(a) and (d) (misconduct) by failing to comply with
Bankruptcy rules and Orders.” By connecting the rules of professional conduct with the “Bankruptcy rules
and Orders,” it is clear that this finding relates only to Mr. Hancock’s actions while he was actively engaged
in the litigation of Barnhill’s bankruptcy. It does not, however, concern the briefs that Mr. Hancock filed
in the district court nor does it address Mr. Hancock’s actions or inactions during his appeal to that court.

-13-
the chancery court could only speculate as to the hearing panel’s intended conclusion.
Consequently, the Chancery court substituted its j udgment for that ofthe hearing panel, which
is expressly prohibited by Tennessee Supreme Court Rule 9, section 1.3. Accordingly, the
Chancery court erred by modifying the hearing panel’s judgment.

The Board bears the burden ofproof in attorney disciplinary proceedings. Spe Tenn.
Sup. Ct. R. 9, § 8.2 (“In hearings on formal charges of misconduct, Disciplinary Counsel
must prove the case by a preponderance of the evidence”). If the hearing panel fails to make
findings concerning a specific rule violation, it is incumbent on Disciplinary Counsel to
address the issue before a petition for certiorari is filed and the hearing panel is without
jurisdiction to modify its judgment. In this case, for example, the Board could have raised
any alleged omissions by the hearing panel in the form of a motion to alter or amend the
hearing panel’s judgment pursuant to Tennessee Rule of Civil Procedure 59. Se; Tenn. Sup.
Ct. R. 9, § 23.2 (stating in part that “the Tennessee Rules of Civil Procedure . . . apply in
disciplinary cases”). Due to the limited standard of review on appeal, we can only construe
the hearing panel’s silence as a dismissal of the allegations of misconduct concerning Mr.
Hancock’s briefs filed in the district court.

E. Appropriate Sanction

We must now determine whether the thirty-day suspension imposed by the hearing
panel is excessive. When determining the appropriate sanction, this Court looks to the ABA
Standards as our “guidepost[s].” Lockett v. Bd. of Prof’ 1 Responsibility. 380 S.W.3d 19,26
(Tenn. 2012); see also Tenn. Sup. Ct. R. 9, § 8 .4. Application ofthe ABA Standards requires
us to consider “the duty violated; . . . the lawyer’s mental state; . . . the potential or actual
injury caused by the lawyer’s misconduct; and . . . the existence of aggravating or mitigating
factors.” ABA Standard 3.0; see also Lockett, 380 S.W.3d at 26.

In this case, Mr. Hancock’s misconduct represents a breach of his duty to the legal
system. SQQABA Standard 6.3 (entitled “Improper Communications with Individuals in the
Legal System” and stating in part that “the following sanctions are generally appropriate in
cases involving attempts to influence ajudge”); see also ABA Standards app. 1 (connecting
the presumptive sanctions of Standard 6.3 to violations of Rule 3.5). Accordingly, we look
to ABA Standard 6.32, which states that “[s]uspensi0n is generally appropriate when a
lawyer engages in communication with an individual in the legal system when the lawyer
knows that such communication is improper, and causes injury or potential injury to a party
or causes interference or potential interference with the outcome of the legal proceeding.”
Because Mr. Hancock emailed Judge Paine prior to perfecting his appeal to the Sixth Circuit,
his email was sent while the Barnhiil’s matter was still pending. Mr. Hancock acknowledged
at the hearing that he should not have sent the email but did so out of frustration. We are
therefore convinced that ABA Standard 632’s presumptive sanction of suspension is
appropriate in this case.

-14-
Pursuant to Tennessee Supreme Court Rule 9, section 4.2, “No suspension shall be
ordered for a specific period less than thirty days or in excess of five years.” The length of
an attorney’s suspension, however, depends in large part on the aggravating and mitigating
circumstances expressed in ABA Standard 9.0. See ABA Standard 9.1 (“After misconduct
has been established, aggravating and mitigating circumstances may be considered in
deciding what sanction to impose”). Here, the hearing panel found as aggravating factors
Mr. Hancock’s multiple offenses, his prior disciplinary history, and his substantial experience
in the practice of law. See ABA Standard 9.22. In mitigation, however, the hearing panel
found that Mr. Hancock was experiencing personal or emotional problems when his
misconduct occurred. See ABA Standard 9.32(c). On balance, we agree with the hearing
panel’s conclusion that the aggravating and mitigating circumstances justify a thirty-day
suspension. We therefore affirm Mr. Hancock’s suspension from the practice of law for
thirty days

111. Conclusion

We reverse the Chancery court’s modification of the hearing panel’s judgment. We
also reverse the hearing panel’s finding that Mr. Hancock violated Tennessee Supreme Court
Rule 8, RFC 8.2(a)(1). We affirm the judgments of the Chancery court and the hearing panel
in all other respects and affirm Mr. Hancock’s suspension from the practice of law for thirty
days. Costs of this appeal are taxed one-half to William Caldwell Hancock and his surety
and one—halfto the Board ofProfessional Responsibility ofthe Supreme Court ofTennessee,
for all of which execution may issue if necessary.

ANICE M. HOLDER,JUSTICE

-15-
IN THE SUPREME COURT OF TENNESSEE
AT NASHVILLE
February 5, 2014 Session

WILLIAM CALDWELL HANCOCK v.
BOARD OF PROFESSIONAL RESPONSIBILITY
OF THE SUPREME COURT OF TENNESSEE

Direct Appeal from the Chancery Court for Davidson County
Nos. 11—1816-IV & 11~1797—IV Donald P. Harris, Special Judge

FILED
No. M2012-02596-SC—R3-BP 35‘” 73?,”
Clerk oi the Courts
Rec'd By W

CORNELIA A. CLARK, J ., concurring in result.

I concur in the lead opinion’s conclusions that Mr. Hancock violated Tennessee
Supreme Court Rule 8, RPC 3.5(b) and 3.5(e) and that “an attorney may be disciplined
pursuant to [RPC]8.2 only if the false statement is communicated to a third party.” I
disagree, however, with the lead opinion’s conclusion that “the record lacks any indication
that Mr. Hancock sent the email to anyone other than Judge Paine.” Iwould instead hold that
the record contains substantial and material evidence establishing that Mr. Hancock sent an
email to third parties. As a result, I would affirm the hearing panel’s judgment that Mr.
Hancock violated RPC 8.200(1). In all other respects, I concur inthe lead opinion’s decision
affirming Mr. Hancock’s thirty-day suspension from the practice of law.

Mr. Hancock’s September 28, 2009 email to Judge Paine consisted of the one—page
email addressed to Judge Paine, which is quoted in the lead opinion, but it also included a
September 11, 2009 email Mr. Hancock sent to three other personswCandace Holloran,
Terrie Carlton, and John Roe. The September 11, 2009 email to third parties was attached
to and forwarded along with Mr. Hancock’s September 28, 2009 email to Judge Paine. In
his September 11, 2009 email to third parties, Mr. Hancock made the following statements
about Judge Paine:

As you know, as everybody who knows me knows, the scurrilous and
defamatory opinion that George Paine put on the internet denying my $37 1 ,000
in fees and destroying my reputation as a competent bankruptcy lawyer has put
me out of business.

It will take some time to build my [sic] and may not be doable at all as long as
Paine’s poison is out there destroying me every day.

During his testimony before the hearing panel, Mr. Hancock was most insistent that
his September 28, 2009 email to Judge Paine included, and was incomplete without, the
forwarded and attached September 11, 2009 email to third parties. Mr. Hancock objected
to the admission of exhibit forty—four on the ground that it was “incomplete,” because it
consisted of only the one-page September 28, 2009 email to Judge Paine. Later, referring
to the September 28, 2009 email to Judge Paine and the September 11, 2009 email to third
parties, Mr. Hancock instructed Disciplinary Counsel that she should “[p]ut them all together
and that’s one email.” Still later Mr. Hancock testified as follows regarding the emails.

Okay. It is one e-mail. And the first page of it is what you have showed me.
The secondpage ofit is, is aforwarding ofa previous e»mail that I had sent
to my landlord when, when I coaldh ’tpay my rent and they dun me. They were
going to throw me out ofmy ofiice, and that was September 09. And when that
happened, that was just about the same time Judge Trauger threw out my
appeal, and I, I didn ’t take it very well.

(Emphasis added.) Mr. Hancock subsequently agreed that three-page exhibit forty—five,
which included the September 11, 2009 email, constituted the entire email he sent to Judge
Paine on September 28, 2009. Mr. Hancock declared that he had no objection to Disciplinary
Counsel moving the three pages into evidence as exhibit forty-five. Mr. Hancock thus
authenticated the September 11, 2009 email he sent to third parties, requested that it be
introduced into evidence, expressly indicated that he had no objection to its entry into
evidence, and agreed that he sent the email to his landlords and to Judge Paine.

Although neither the hearing panel nor the trial judge quoted from the September 1 1,
2009 email, the hearing panel referred to exhibit forty-five in its decision. Additionally, the
Board had alleged in paragraphs sixty-four, sixty-five, and sixty-eight of the amended
petition that the statements Mr. Hancock made about Judge Paine in the September 1 1, 2009
email amounted to a violation of RFC 8.2(a). At no point during the proceedings before the
hearing panel did the Board abandon its assertion that these statements constituted aviolation
of RPC 8.2(a). Thus, based on the circumstances ofthis case, including: (1) the allegations
ofthe amended petition concerning the conduct that violated RPC 8.2(a); (2) the proofin this

_2_
record ofthe September 11, 2009 email Mr. Hancock sent to three other persons; and (3) the
deferential standard of review this Court must apply when reviewing a hearing panel’s
decision, Iwould hold that the record contains substantial and material evidence supporting
the hearing panel’ 3judgment that Mr. Hancock violated RPC 8 2(a) by publishing statements
about Judge Paine to third parties.

Because the record on appeal contains substantial and material evidence ofpublication
to third parties, it is not necessary in this case to decide whether ajudge’s disclosure of an
ex parte communication pursuant to Tennessee Supreme Court Rule 10, RJC 2.9(B)(5) would
alone constitute publication sufficient to establish a Violation of RFC 8.2.

For the reasons stated herein, I would affirm the hearing panel’s judgment that Mr.
Hancock violated RPC 8 .2(a)( 1). In all other respects, I concur in the lead opinion’s decision
affirming Mr. Hancock’s thirty-day suspension from the practice of law.

Cosmetic: a. (th2
CORNELIA A. CLARK, JUSTICE
IN THE SUPREME COURT OF TENNESSEE
AT NASHVILLE
February 5, 2014 Session

WILLIAM CALDWELL HANCOCK v.
BOARD OF PROFESSIONAL RESPONSIBILITY
OF THE SUPREME COURT OF TENNESSEE

Direct Appeal from the Chancery Court for Davidson County
Nos. 11—1816-IV & 11-1797—IV Donald P. Harris, Special Judge

F! L E D
No. M2012—02596—SC—R3—BP SEP _,. 3 2014
Clerk of the Courts
Flec'd By

GARY R. WADE, C.J., concurring in part and dissenting in part.

I concur in the lead opinion’s conclusions that (1) Mr. Hancock violated Tennessee
Supreme Court Rule 8, RFC 3503); (2) the disciplinary authority of this Court is not
preempted by the Federal Rules of Bankruptcy Procedure; (3) discipline imposed pursuant
to Tennessee Supreme Court Rule 8, RPC 8.2 requires that the false statement about a
judicial or legal official be communicated to a third party; and (4) the Chancery court erred
by modifying thejudgment ofthe hearing panel to include Violations ofRules ofProfessional
Conduct 3.2, 3.4(0), 8.4(a), and 8.4(d). I disagree, however, with the conclusion that Mr.
Hancock violated Tennessee Supreme Court Rule 8, RFC 35(6), and the imposition of a
thirty—day suspension. Because I cannot find a basis to suspend Mr. Hancock for his
offensive misbehavior, I would hold that a public reprimand is the appropriate sanction in
this case.

Rule 3.5(e) of the Rules of Professional Conduct states that “[a] lawyer shall
not. . . engage in conduct intended to disrupt a tribunal.” Tenn. Sup. Ct. R. 8, RFC 3.5(e).
As pointed out in the lead opinion, an attorney’s ethical obligation to avoid such conduct
extends to “any proceeding of a tribunal, including a deposition,” Tenn. Sup. Ct. R. 8, RPC
3.5 cmt. 6, and the attorney’s conduct “need not occur inside the courtroom to be disruptive
to a tribunal.” Ann. Mod. Rules Prof. Cond., Rule 3.5 (7th ed. 2011). The lead opinion does
not, however, explore the meaning of “tribunal,” which is defined as follows:

(m) “Tribunal” denotes a court (including a special master, referee, judicial
commissioner, or other similar judicial official presiding over a court
proceeding), an arbitrator in a binding arbitration proceeding, or a legislative
body, administrative agency, or other body acting in an adjudicative capacity.
A legislative body, administrative agency, or other body acts in an adj udicative
capacity when a neutral official, after the presentation of evidence or legal
argument by a party or parties, will render a bindingjggal judgment directly
affecting a party’s interests in a particular matter.

Tenn. Sup. Ct. R. 8, RFC 1.0(m) (emphasis added). The plain language of this definition
somewhat limits the scope of when a court (or a substitute judicial official) may be
considered a “tribunal” for purposes of the Rules of Professional Conduct. Specifically, the
definition contemplates that the judicial official will be “presiding over” a proceeding and,
at some future time, “will render” a judgment in a particular matter.

In this instance, the bankruptcy judge to whom Mr. Hancock directed his email was
no longer presiding over the bankruptcy court proceeding at the time of Mr. Hancock’s
offensive misconduct. The bankruptcy court entered its final judgment on December 9,
2008, whereas Mr. Hancock did not send the email until September 28, 2009, more than nine
months later. At that point, there could be no possibility that the bankruptcy judge was going
to “render a binding legal judgment directly affecting a party’s interests in [the Bamhill’s]
matter,” such judgment having already been entered. In fact, by the time Mr. Hancock sent
his email to the bankruptcy judge, the district court had already entered its September 23,
2009 order affirming the bankruptcy court’s judgment, and Mr. Hancock was already in the
process of appealing to the Sixth Circuit Court of Appeals. In consequence, although I agree
that Mr. Hancock’s email constituted an ex parte communication in violation of Tennessee
Supreme Court Rule 8, RFC 3.5(b), I cannot interpret this misconduct as “intend[ing] to
disrupt a tribunal” as defined by RPC 3.5(e).

When an attorney is found to have violated Rule 3.5 of the Rules of Professional
Conduct, we refer to the presumptive sanctions of Standard 6.3 in the American Bar
Association’s Standards for Imposing Lawyer Sanctions. The lead opinion upholds Mr.
Hancock’s thirty-day suspension based upon Standard 6.32, which provides that
“[s]uspension is generally appropriate when a lawyer engages in communication with an
individual in the legal system when the lawyer knows that such communication is improper,
gnd causes injury or potential injury to a party or causes interference or potential interference
with the outcome of the legal proceeding.” (Emphasis added.) Because a judge is not a
“party” to a proceeding, the application of Standard 6.32 in this case would require that by
sending the inappropriate email to the bankruptcyjudge, Mr. Hancock “cause[d] interference
or potential interference with the outcome of the legal proceeding.”
, Under these circumstances, where the email was sent more than nine months after the
bankruptcy judge had issued a final judgment, Mr. Hancock’s misconduct could not have
interfered, either actually or potentially, with the outcome ofthe Barnhill’ s proceeding in the
bankruptcy court. Specifically, because the bankruptcy judge was no longer presiding over
the Barnhill’s proceeding, Mr. Hancock’s email of September 28, 2009, could not have
influenced the decision of the bankruptcy judge or otherwise interfered with the judgment
rendered on December 9, 2008. In my view, therefore, Standard 6.32 does not apply, and,
instead, the appropriate sanction is found in Standard 6.34--“Admonition is generally
appropriate when a lawyer engages in an isolated instance of negligence in improperly
communicating with an individual in the legal system.” Considering the aggravating and
mitigating factors in this case, I would impose a public reprimand rather than a thirty—day
suspension.I

We
GARY R. WébE, CHIEF JUSTICE

1 My conclusion as to the appropriate sanction would remain the same even if Mr. Hancock were
found to have violated Tennessee Supreme Court Rule 8, RFC 8.2(a), as advocated by Justice Clark in her
separate concurring opinion. In that instance, the presumptive sanctions inABA Standard 6.1 would apply.
Standard 6.14, like Standard 6.34, provides for an “admonition.”

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