sneed-1544-5-sc-opinion.pdf (2010)

Original PDF Document

---

Download Official Record (sneed-1544-5-sc-opinion.pdf)

Go to Top

Alternative Accessible HTML

IN THE SUPREME COURT OF TENNESSEE
AT NASHVILLE
January 5, 2010 Session Heard at Knoxville

MICHAEL SNEED v. BOARD OF PROFESSIONAL RESPONSIBILITY OF
THE SUPREME COURT OF TENNESSEE

Direct Appeal from the Circuit Court for Davidson County
No. 0801698 Donald P. Harris, Senior Judge

FELED
No. M2009—00720—SC—R3-CV JAN 2 5 2010
dark of the Courts
In this direct appeal of a lawyer disciplinary proceeding involving eight separate complaints,
we must determine whether the trial court correctly affirmed the hearing panel ’ s finding that
attorney Michael Sneed violated numerous ethical rules and should be disbarred from the
practice oflaw. Sneed contends that his disciplinary proceedings were procedurally unlawful
because the hearing panel did not (1) conduct a prehearing conference as required by
Tennessee Supreme Court Rule 9, section 13.6, (2) authorize the filing of two supplemental
petitions for discipline, or (3) allow him to call as witnesses disciplinary counsel or the Board
of Professional Responsibility’s executive secretary. He also asserts that the evidence does
not support the hearing panel’s findings of professional misconduct and that he was denied
a meaningful review in the trial court because the trial court failed to properly schedule and
review his appeal fiom the hearing panel. Finally, Sneed challenges the finding of the
hearing panel and the trial court that he should be disbarred from the practice of law. After
careful review, we affirm the judgment of the trial court disbarring Mr. Sneed.

Tenn. Sup. Ct. R. 9, § 1.3; Judgment of the Trial Court Affirmed

CORNELIAA. CLARK, J ., delivered the Opinion ofthe court, in which JANICE M. HOLDER, 0].,
and GARY R. WADE, WILLIAM C. KOCH, In, and SHARON G. LEE, ll, joined.

Michael Sneed, Nashville, Tennessee, pro se.

Sandy Garrett, Nashville, Tennessee, for the appellee, Board ofProfessional Responsibility.
OFINION

Factual and Procedural History
__—.___T‘.-.-.. =.—

Michael Sneed, a lawyer practicing in Davidson County, Tennessee, was admitted to
practice law in 1985. Prior to the events at issue in this case, Sneed accumulated an
extensive disciplinary record as follows:

- Admonition in July 1992 for failure to file a complaint within the applicable
statute of limitations and failure to communicate with a client.

° Admonition in August 1992 for failure to serve process resulting in the
dismissal of a client’s case and for lack of investigation prior to filing suit.

' Public censure in May 1993 for neglecting the cases of two clients and for
failing to communicate with clients.

° Public censure in August 1994 for failure to file a complaint within the
applicable statute of limitations.

Private reprimand in October 1995 for dismissing a case without the client’s
consent and for failure to communicate with the client.

Public censure in November 2000 for failure to timely file a complaint and for
failure to communicate with the client.

' Suspension of six months in 2001 for ineffectively representing a client in a
criminal matter, failing to comply with court orders and local rules of practice
which resulted in the dismissal of a civil case, and for failing to file a timely
appeal.

’ Public censure in November 2002 for conduct prejudicial to the administration
ofjustice, conduct that adversely reflects on the fitness to practice law, neglect
and failure to prepare,'and intentional or habitual violation of court rules.

In addition to these prior disciplinary actions, Sneed, in February 2009, was suspended
from the practice oflaw for eighteen months and received apublic censure arising out of five
separate matters related to his failure to keep adequate trust account records, neglecting
cases, and failing to communicate with clients. Additionally, by order entered
contemporaneously with this opinion, Sneed has been found guilty by this Court of fifty
counts of criminal contempt for, among other things, continuing to practice law after being
suspended by this Court in February 2009, holding himself out to the public and to the courts
as a licensed attorney, and making misrepresentations to courts concerning the status of his
law license. He was sentenced to serve fifty days in jail and fined $2,500 pursuant to
Tennessee Code Annotated section 29-9-103 (2000) (one who willfully disobeys a court
order and is found to be in criminal contempt may be sentenced to up to ten days of
incarceration and ordered to pay a fine of $50 for each act of contempt).

The present case against Sneed arises out of three petitions for discipline filed by-the ,
Board of Professional Responsibility (“Board”) based on eight complaints of misconduct.
The initial petition was filed on September 20, 2005, and was based upon the complaints of
two of Sneed’s clients, Vickie Berry and Enrique Lopez. A supplemental petition for
discipline was filed on January 13, 2006, arising out of complaints made by the Board itself,
Dr. Dwaine Allison, attorney Elliott Ozment, MargaritaKemien-Sanchez, and attorney Sean
Lewis on behalf of Anna Silva. A second supplemental petition for discipline was filed on
September 19, 2006, based upon a complaint made by Sean Lewis on behalf of Roldolpho
Gonzalez, another of Sneed’s clients.

The three petitions for discipline were consolidated for trial before a hearing panel
(“Panel”) appointed pursuant to Tennessee Supreme Court Rule 9, section 8.2. On August
13 and 27, 2007 ,the Panel heard testimony from eight witnesses and received 43 exhibits
into evidence. In a judgment filed on January 25, 2008, the Panel concluded that Sneed
violated numerous ethical rules and should be disbarred. The record as to each complaint of
misconduct may be summarized as follows:

Vickie Berry Matter

Sneed represented Vickie Berry in a slip and fall case. On September 2, 2003, Sneed
filed suit on Berry’s behalf The case was continued several times at Sneed’s request and,
at one point, was dismissed for failure to prosecute. Although the dismissal for failure to
prosecute was eventually set aside, the case was later dismissed on a motion for summary
judgment. & Berry v. Houchens Mkt. of Tenn, 1110., 253 S.W.3d 141, 143, 148 (Tenn. Ct.
App. 2007).

While Berry’s case was being litigated, she complained to the Board that Sneed failed
to respond to her inquires about the case and failed to keep her informed about the status of
the case. Berry testified before the Panel that Sneed kept her “pretty much in the dark” about
her case for several years. She left numerous messages on his cell phone and office phone
to no avail. She even sent him a certified letter complaining about his failure to keep her
informed about the case. Sneed did not refute B erry ’ s testimony except to point out that she
u
ll

acknowledged that he had communicated with her during the last two years of their
'

professional relationship — which was after she had complained to the Board. The Panel
found that Sneed failed to keep Berry informed about the status ofher case, failed to comply
with reasonable requests for information made by her, and failed to pursue her case with
reasonable diligence and promptness, all in violation of Rules of Professional Conduct1
(“RFC”) 1.3,2 1.4,3 and 8.4.4

Enrique Lapez Matter

Enrique Lopez hired Sneed to pursue a claim against the United States arising out of
the federal government’s seizure of $19,790 from Lepez at the Nashville International
Airport in 2002. Lopez’s claim was denied because it was untimely filed. He complained
to the Board that Sneed failed to keep him informed about the case, failed to appear for
scheduled meetings, and failed to pursue his claim with diligence and promptness. Further,
Sneed represented two other individuals (Fernando Funtes and Migel Herrera) in the same
matter without explaining to Lopez the potential conflict of interest. B efore the Panel, Sneed
admitted that he had represented all three claimants to the seized money and that he did not
disclose his potential conflict of interest to any of them.

The Panel concluded that Sneed failed to pursue Lopez’s claim for the seized money
with diligence and promptness in violation of RFC 1.3. The Panel also found that because
Sneed represented Lopez simultaneously with other individuals having claims to the seized
money, he should have explained to his clients the potential conflict of interest as required
by RPC 1.7.5 The Panel also determined that Sneed was guilty of professional misconduct
under RFC 8.4.

‘ The Rules of Professional Conduct are set out at Tennessee Supreme Court Rule 8.

7“ RPC 1.3 provides that “[a] lawyer shall act with reasonable diligence and promptness in
representing a client.”

3 RFC 1.4(a) requires a lawyer to “keep a client reasonably inform ed about the status of a matter and
comply with reasonable requests for information within a reasonable time.”

" RPC 8.4(a) defines professional misconduct, in part, as violating a Rule of ProfeSSional Conduct.

5 RFC l.7(b)(2) prohibits a lawyer from representing a client ifthe lawyer has a conflict of interest
unless the client consents, in writing, following the lawyer’s “explanation ofthe implications ofthe common
representation and the advantages and risks involved.” The Panel did not specifically find that a conflict
existed, but determined that the potential for a conflict required disclosure.

4
Trust Account Matter
.,_,___-...w ,_,m.__ - -

On November 26, 2003, Bank of America reported to the Board that Sneed had
overdrafted his trust account. In a series of letters, the Board requested that Sneed explain
the overdrafts. Sneed reapondcd that the overdrafts occurred because checks were written
out of the wrong account. The Board requested more detailed information from Sneed,
including a copy of his trust account bank statements, but Sneed failed to respond. The
Board then subpoenaed Sneed’s bank. records and discovered 13 checks made payable to cash
and 24 debits, none of which reflected client names or case numbers. In letters written to
Sneed in August and September 2005, the Board requested an explanation. Sneed again did
not respond. Not until the Board sent Sneed notice threatening a summary suspension of his
law license did Sneed respond that he was attempting to retrace the trans actions in question
and would have the requested information soon. He did not, however, provide any further
explanation or produce any records.

Sneed admitted that checks written on his trust account were returned for insufficient
funds, and the Panel found that he failed to properly maintain his trust account in violation
of RPC 1.156 and failed to respond to the Board’s requests for information in violation of
RFC 8.1(13).7 '

Dr. Dwaz'ne Allison Matter

In 2004, Sneed represented two clients, Jose Marmol and Jesus Mendez, in a personal
injury case. Sneed referred Marmol and Mendez to Dr. Dwaine Allison for medical
treatment. To secure payment for his services, Dr. Allison had a written lien against the
proceeds from Marmol ’s and Mendez’s case. In 2005 , Sneed settled Marmol’s and Mendez’s
case and dispersed the settlement funds without withholding-any ofthe monies he knew were
due Dr. Allison. Sneed admitted that he was aware of Dr. Allison’s lien. He also admitted
that he settled the casebut did not pay Dr. Allison the amount of the lien or withhold any of
the money to protect the lien. Dr. Allison testified, without contradiction, that Sneed told
him on multiple occasions that he would protect the lien. The Panel concluded that Sneed

6 RFC 1.15 governs lawyer trust accounts, providing at section (a) that “[a] lawyer shall hold
prOperty and fimds of clients or third persons that are in a lawyer’s possession in connection with a
representation separate from the lawyer’s own property and funds.”

7 RFC 8.1(b) requires a lawyer to respond to a demand for information from disciplinary authority.

5
failed to safeguard funds in which he knew Dr. Allison had an interest in violation of RFC
1.15 .3 The Panel also found a violation ofRPC 8.4(a). '

Elliott Ozment Matter

In 2005, attorney Elliott Ozment, who was the chairman of the Nashville Bar
Association’s Committee on Immigration Law, filed a complaint with the Board arising out
of Sneed’s relationship with Carmen Ceja, a nonlawyer, and her business, Cej a Enterprises.
Ozment complained to the Board that Ceja was engaged in the unauthorized practice of law,
that Sneed practiced law in Ceja’ s offices, and that he accepted referrals from Ceja and acted
under her direction. Ozment complained that Sneed was “practicing law in the back room
of Ceja Enterprises,” and that Ceja “uses the fact that Michael Sneed is on her premises and
approves her work as a marketing device to reassure unsuspecting foreign nationals that Cej a
Enterprises is qualified and competent to do immigration work for her clients.” Ozment
further claimed that Ceja “solicits cases and makes the decision on whether to accept a
particular case, sets the fee to charge, and then does the work. If an attorney is needed to
make a personal appearance . . . she directs [Sneed] accordingly.”

The Board charged Sneed with sharing fees with and assisting Ceja in the
unauthorized practice of law. Sneed admitted that he practiced law on the premises of Ceja
Enterprises and that he accepted referrals from Ceja Enterprises. He also admitted that he
paid Ceja, although he claimed that it was for rent and interpretive services. He denied that
he acted under Ceja’s direction or that they shared fees.

The Panel found that Sneed “practiced law with Ceja in a manner that was, or would
mislead the public into believing that it was, a partnership or association with Ceja.” The
Panel also found that “Ceja was engaged in the unauthorized practice of law [and] that
[Sneed] assisted Ceja in that activity.” In addition, the Panel determined that “if Carmen
Ceja and her employees were acting under [Sneed’s] direction in legal matters, then he failed
to provide them with proper supervision, and that he may instead have taken advice and
direction fiom Cannon Ceja and her employees regarding his handling of cases referred to
him by Cej a." Based upon these findings, the Panel concluded that Sneed violated RPC 5.3 ,9

3 RFC 1.15(c) provides in pertinent part that “[u]pon receiving funds or other property in which a
client or third person has an interest, a lawyer shall promptly notify the client or third person. Except as
stated in this Rule or otherwise permitted by law or by agreement with the client, a lawyer shall promptly
deliver to the client or third person any funds or other property that the client or third person is entitled to
receive.” (In 2008, this language appeared at RPC 1.1500».

9 RFC 5.3 governs a lawyer’s reSponsibilities regarding nonlawyer assistants.

6
5 .4(b),m 5.5(b),” 7.6(b)(1 )(ii),12 8.1(b), and 8.4(a), but that the evidence did not establish that
Sneed Was fee sharing with Ceja or paying her for referrals. The Panel noted that Sneed’s
testimony regarding his relationship with Ceja and her business was “lacking in clarity,
consistency, or credibility.”

Anna Silva c/o Sean Lewis Matter

Sean Lewis, a Nashville attorney, filed a complaint with the Board on behalf ofAnna
Silva which was based on five allegations: (l) Sneed ran an advertisement for legal services
in a Hispanic publication in which his ad was part of a larger advertisement for Ceja
Enterprises, (2) Carmen Ceja and Ceja Enterprises referred clients to Sneed, (3) Snead had
an office inside the offices of Ceja Enterprises, (4') Snead met with clients at the offices of
Ceja Enterprises, and (5) there was no signage at Ceja Enterprises indicating that Sneed had
a separate law office on the premises. Sneed admitted all five allegations. The Panel found
that for the reasons discussed in connection with the complaint of Elliott Ozment, Sneed
violated RPC 5.713 and 8.4{a}.

Sean Lewis/Roldohaho Gonzalez Matter

Sean Lewis filed a complaint with the Board regarding Roldolpho Gonzalez, one of
Sneed’s clients. Gonzalez paid $64.50 to Ceja Enterprises for the purpose of filing a lawsuit
' based on a promissory note that Ceja Enteipris as had drafted for Gonzalez. Sneed then filed
the suit. The $64.50 that Gonzalez paid to Cej a Enterprises was given to Sneed, who claimed
that he used it to file the suit, although he could not recall whether he placed the money in

1" RPC 5.4(b) provides that “{a] lawyer shall not form a partnership with a nonlawyer if any of the
activities ofthe partnership consist of the practice of law.”

“ RFC 5503) prohibits a lawyer from assisting “a person in the performance of activity that
constitutes the unauthorized practice of law."

’2 RPC 7.6(b)(l)(ii) prohibits a lawyer from accepting referrals or compensation from an
intermediary organization if the lawyer knows or reasonably should know that the organization is engaged
in the unauthorized practice of law.

13 RPC 5.7(a) provides in relevant part that “{a] lawyer shall be subject to the Rules of Professional
Conduct with respect to the provision of law—related services . . . if the law-related services are provided:
(1) By the lawyer in circumstances that are not distinct from the lawyer’s provision oflegal services
to clients; or
(2) By a separate entity controlled by the lawyer individually or with oth ers ifthe lawyer fails to take
reasonable measures to assure that a person obtaining the law—related services knows that the services of the
separate entity are not legal services and that the protections of the client-lawyer relationship do not exist.”
his trust account. Despite repeated requests from the Board to provide his. trust account
information regarding the Gonzalez matter, Sneed failed to provide the information.

The Panel found that Sneed assisted Ceja Enterprises and Carmen Ceja in the
unauthorized practice of law; committed trust account violations; failed to respond to the
Board’s requests for information; engaged in conduct involving dishonesty, fraud, deceit, or
misrepresentation; and engaged in conduct prejudicial to the administration ofjustice, all in
violation of RFC 1.15, 5.4(b) and (c), 5.5(b), 7.6(b)(l)(ii), 8.1(b), and 8.4(a), (c), and (d).
However, the Panel again found that the evidence did not support a finding that Sneed
compensated Carmen Ceja or her business for referrals.

Margarita Kennett—Sanchez Matter

In 2005 , Margarita Kennen-Sanchez retained Sneed to represent her in an immigration
matter and paid him $1,500 to appear with her at an immigration hearing in Memphis.
According to Kennen—Sanchez, Sneed was late for the hearing, which had to be rescheduled
because he failed to advise her that her husband also needed to be present at the hearing to
resolve questions about their marriage. Apparently believing that she had received nothing
ofvalue from Sneed, Kennen~S anchez complained that he should have refunded the fee she
paid him. The Board alleged that Sneed was incompetent to handle immigration matters,
failed to communicate with his client, and charged an excessive fee.

The Panel resolved most of the issues in favor of Sneed. Specifically, the Panel
determined that the Board failed to prove that Sneed was incompetent to handle immigrati on
matters, charged an excessive fee, or that he failed to communicate with his client. However,
in deciding that Sneed had assisted Ceja Enterprises and Carmen Ceja in the unauthorized
practice of law, the Panel noted that Kennett—Sanchez testified that her immigration petition
had been prepared by Carmen Ceja, that Ceja gave her legal advice concerning a domestic
matter, and that Ceja prepared correspondence to immigration authorities on her behalf.

_ Panel Decision

After hearing testimony on August 13 and 27, 2007, the Panel issued its judgment on
January 25 , 2008. In addition to its conclusions regarding the ethical rules Sneed violated
with respect to each complaint as set forth above, the Panel recommended that Sneed be
disbarred from the practice of law.

In support ofits recommendation that Sneed be disbarred, the Panel found that Sneed
“has not benefitted from prior discipline and that the public would be endangered and the
legal profession and administration ofjustice would be disserved if [Sneed] were permitted
to continue the practice of law.” The Panel filrther determined that Sneed intentionally
violated the ethical rules and that his actions “resulted in both potential and actual serious
injury.” The Panel found several aggravating factors applicable, including (1) numerous
prior disciplinary offenses, (2) a pattern of misconduct, (3) multiple offenses in the present
action, and (4) Sneed’s refusal to acknowledge the wrongful nature of his conduct. The
Panel also observed that Sneed’s repeated failures to respond in a timely manner to requests
for information from the Board indicated a pattern and practice of disregard for the ethical
rules. Further, the Panel found that Sneed failed to appreciate the severity of his ethical
violations and that he could not recall prior instances of discipline arising from similar
misconduct. Finally, the Panel observed that in representing himselfbefore the Panel, Sneed
repeatedly failed to reSpond to pleadings in a timely manner, showed a lack ofunderstanding
of the fundamental rules of evidence, and advanced legal positions that were wholly
unsupported by the law or the facts. The Panel found no mitigating factors.

Trial Cour: Proceedings

On May 29, 2008, Sneed filed a petition for writ of certiorari in the Davidson County
Circuit Court seeking review of the Panel’s decision pursuant to Tennessee Supreme Court
Rule 9, section 1.3. The petition challenged the Panel’s decision on numerous grounds: (1)
the Panel erred in considering the two supplemental petitions for discipline, (2) the Panel
erred in failing to hold a pretrial conference, (3) the Panel erred by not allowing Sneed to call
, as witnesses disciplinary counsel Sandy Garrett or Mary Woodroof, the Board’s executive
secretary, (4) Sneed was denied the right to review public records regarding the performance
of Panel members in prior cases, (5) the Panel members were biased against him, (6) the
Panel considered evidence outside the pleadings, (7) the Panel erred in considering Sneed’s
trust account records, (8) the Panel erred in concluding that Sneed had a conflict of interest
by simultaneously representing three claimants to the money seiZed by the federal
government, (9) the evidence was insufficient to find that Sneed failed to keep Vickie Berry
informed ofthe status ofher case, (1 0) the evidence was insufficient to find that Sneed failed
to safeguard money owed to Dr. Allison, (1 1) the evidence Was insufficient to find that Sneed
failed to properly maintain his trust account, and (12) the Panel’s judgment was “void
because it recommended disbarment.”

The trial court, in a memorandum opinion filed December 22, 2008, thoroughly
analyzed each of Sneed’s challenges to the Panel’s decision and rejected each one.
Accordingly, the trial court affirmed the Panel’s decision, including the sanction of
disbarment.
Standard of Review

As part of our duty to regulate the practice of law in Tennessee, this Court bears the
ultimate disciplinary responsibility for violations of the ethical rules that govern the legal
profession. Doe v. Bd. of Prof’l Responsibility, 104 S.W.3d 465, 469-70 (Tenn. 2003).
Accordingly, this Court reviews disciplinary judgments in light of our “inherent power . . .
and fundamental right to prescribe and administer rules pertaining to the licensing and
admission of attorneys.” u re Burson, 909 S.W.2d 768, 773 (Tenn. 1995).

When reviewing a hearing panel’s judgment, a trial court considers “the transcript of
the evidence before the hearing panel and its findings and judgment.” Tenn. Sup. Ct. R. 9,
§ 1.3. The trial court has the discretion to receive additional proof only to resolve
“allegations of irregularities in the procedure before the panel.” Li. The standard of review
applicable to the trial court and to this Court on appeal is set forth in Tennessee Supreme
Court Rule 9, section 1.3, which provides that the Panel’s findings may be reversed or
modified if

the rights of the petitioner have been prejudiced because the panel’s findings,
inferences, conclusions or decisions are: (l) 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 unwarranted exercise of discretion; or (5) unsupported by
evidence which is both substantial and material in the light ofthe entire record.

Furthermore, the reviewing court “shall not substitute its judgment for that of the panel as
to the weight ofthe evidence on questions of fact.” id, “In determining Whether substantial
and material evidence supports the panel’s decision, the Court evaluates whether the
evidence ‘fumishes a reasonably sound factual basis for the decision being reviewed.”
Threadgill v. Bd. of Profl Respousibilitv, _ S.W.3d W4, _, 2009 WL 416943 8, at *10
(Tenn. 2009) (quoting Gig: of Memphis v. Civil Serv. Comm’n of Memphis, 216 S.W.3d
31 l, 317 (Tenn. 2007)) (internal quotation marks omitted). Conclusions of law are revieWed
de novo, without a presumption of correctness. Beard v. Bd. of Prof°l Responsibility. 288
S.W.3d 838, 854 (Tenn. 2009).

Analysis

”Unlawful Procedure ”

As explained above, Tennessee Supreme Court Rule 9, section 1.3, provides that the
decision of the Panel may be modified or reversed “if the rights of the petitioner have been

10
prejudiced because the panel’s findings, inferences, conclusions or decisions are . . . made
upon unlawful procedure.” Sneed contends that the Panel’s decision was made upon
unlawfiil procedure because the Panel did not (1) conduct a prehearing conference, (2)
authorize the filing of the two supplemental petitions for discipline, or (3) allow him to
proffer the testimony of disciplinary counsel Sandy Garrett or Mary Woodroof, the Board’s
executive secretary. We address each of these arguments in turn.

A.

Sneed asserts that the Panel violated Tennessee Supreme Court Rule 9, section 13 .6,
by failing to hold a pretrial conference. Section 13.6 ofRule 9 provides that “[a] pre—hearing
conference shall be held within sixty (60) days ofthe filing date of any petition cornmencing
a formal proceeding.” According to this rule, the purpose of the pretrial conference is to
schedule deadlines for discovery, the filing of motions, the exchange of witness and exhibit
lists, set a trial date, and resolve similar housekeeping matters. I;

In this case, the record reflects that on June 9, 2006, the Board filed with-the Panel a
“Notice to Set Mandatory Pro—Hearing Case Management Conference.” However, no such
conference was ever scheduled or held. On August 27, 2007 k the second day ofhis hearing
before the Panel — Sneed filed a motion to set a prehearing conference. The Panel denied the
motion because a pretrial conference “could serve no point . . . halfway through the hearing.”
In addressing this issue, the trial court found that Sneed failed to show that he was prejudiced
by the lack of a pretrial conference. The trial court noted that since no deadlines were
imposed upon Sneed for discovery or the filing of motions, Sneed was allowed to and did
continue to file motions up to and alter the date of the hearing before the Panel.

In our View, the trial court correctly resolved this issue. Under Tennessee Supreme
Court Rule 9, section 1.3, the purported unlawful procedure must have resulted in prejudice
to the petitioner. Sneed does not specify in his brief what matters, if any, he would have
presented to the Panel at a pretrial conference or otherwise explain how he was prejudiced
by the failure ofthe Panel to conduct a pretrial conference. 14 As the trial court observed, the
Panel did not impose any limitations on Sneed’s ability to conduct discovery or file motions
and he continued to file motions even while his hearing was underway. Moreover, Sneed did
not request a pretrial conference until his hearing had already begun and, indeed, was in its
second day. Under these circumstances, we agree with the trial court that Sneed is not
entitled to relief based on the Panel’s failure to conduct a prehearing conference.

'4 At oral argument before this Court, Sneed stated that had a pretrial conference been held he would
have been able to challenge the filing of the supplemental petitions for discipline. However, the record
reflects that he in fact raised that issue before the Panel and the Panel considered and rejected it.

ll
B.

Sneed also asserts that the Panel acted unlawfully by allowing disciplinary counsel to
file the two supplemental petitions for discipline without first seeking leave of the Panel.
Sneed relies upon Tennessee Supreme Court Rule 9, section 23 .3, which states that “[e]xcept
as otherwise provided in these Rules, the Tennessee Rules of Civil Procedure and the
Tennessee Rules of Evidence apply in disciplinary cases.” Rule 15.04 of the Rules of Civil
Procedure provides that “[u]pon motion of a party [,] the court may, upon reasonable notice
and upon such terms as are just, permit the party to serve a supplemental pleading . . . .”
Sneed moved to dismiss the two supplemental petitions filed against him on the ground that
the Panel had not granted disciplinary counsel leave to file the petitions under Tennessee
Rule of Civil Procedure 15.04.

The Panel, on October 13, 2006, filed a memorandum opinion finding that the
supplemental petitions for discipline “seem appropriate in the event, as here, additional
grounds for prosecution of fcrrnal charges are discovered after the filing of a petition.” The
Panel went on to note, however, that leave to file a‘ supplemental petition for discipline was
not required because the decision to file disciplinary proceedings was within the sole
province 'of the Board. In addressing this issue, the trial court found that although the Panel .
erred in concluding that disciplinary counsel was not required to seek leave of the Panel
before filing the supplemental petitions, Sneed was not entitled to relief on that basis because
he had ample time to respond to the supplemental petitions and in fact did so. In other
words, Sneed was not prejudiced by the purported error. The trial court also observed that,
in view of the Panel’s memorandum opinion of October 13, 2006, Sneed was on notice that
the Panel had implicitly approved the filing of the supplemental petitions and that he was
required to respond to the allegations. We find no error in the trial court’s resolution of this
issue, and likewise conclude that under these particular circumstances Sneed is not entitled
to relief based on a violation of Tennessee Rule of Civil Procedure 15 .04.

C.

Sneed next maintains that he was denied the right to present evidence to the Panel
because the Panel refused to allow him to proffer the testimony ofdisciplinary counsel Sandy
Garrett and the Board’s executive secretary, Mary Woodroof. During discovery, Sneed
submitted interrogatories to the Board which were answered by Garrett. He subsequently
subpoenaed both Garrett and Woodrocf for a deposition. The Davidson County Chancery
Court quashed the subpoenas.

At his disciplinary hearing, Sneed sought to call Garrett and Woodroof as witnesses.
He argued that Garrett’s testimony was necessary in order for him to get documents

12
introduced into evidence that were part of her re5ponses to his interrogatories. However,
Garrett agreed to make the documents an exhibit and they were introduced as evidence
during the hearing. The trial court found that the Panel did not err in refusing to allow Sneed
to call Garrett as a witness because she had no personal knowledge of the facts related to the
complaints against him. In addition, Sneed acknowledged at the hearing that Garrett’s
interrogatory responses were related to documents. Those documents were provided to
Sneed and were introduced as evidence. Accordingly, like the trial court, we find that the
Panel did not err in refiising to allow Sneed to call Garrett as a witness.

As to Woodroof, the chairman ofthe Panel asked Sneed during the hearing about the
substance of her proposed testimony. Sneed responded that he wanted to establish that he
had subpoenaed her for a deposition, the subpoena had been quashed, and that Woodruff did
not attend the deposition. The parties then stipulated to these facts. The chairman of the
Panel then asked Sneed, “[d]oes that take care of Ms. Woodroot’s testimony?” Sneed
responded, “that satisfies me, your Honor.” Citing Tennessee Rule of Evidence 103(a)
(“[e]rror may not be predicated upon a ruling which admits or excludes evidence unless a
substantial right of the party is affected”), the trial court found no error. Nor do we,
particularly given that the parties stipulated to the substance of Woodroot‘s proposed
testimony. We also note that in his brief filed in this Court, Sneed cites no authority or
otherwise attempts to explain how the Panel or the trial court erred in resolving this issue.
Thus, even if the issue had merit, which it does not,-the issue would be waived. gee Tenn.
R. App. P. 27(a) (“The brief of the appellant shall contain . . . (7) [a]n argument . . . setting
forth the contentions of the appellant with respect to the issues presented . . . with citations
to the authorities and appropriate references to the record”).

Evidentiary Supportfor Panel ”.9 Conclusions

Among the issues listed for review in his brief filed in this Court, Sneed includes the
sufficiency of the evidence regarding the complaints of Vickie Berry, Enrique Lopez,
Dwaine Allison, and the Panel’s finding that he aided the unauthorized practice of law.
However, he makes no argument and cites no authority in his briefin support ofthese issues.
Thus, the question of whether the evidence is sufficient to support the Panel’s findings is
waived. ffl Tenn. R. App. P. 27 (a)(7). It is not the role of the courts, trial or appellate, to
research or construct a litigant’s case or arguments for him or her, and where a party fails to
develop an argument in support of his or her contention or merely constructs a skeletal
argument, the issue is waived.

Even if Sneed had properly challenged the sufficiency of the evidence, the record
contains ample evidence to support the Panel’ 3 findings. As to Vickie Berry, the Panel found
that Sneed did not keep her reasonably informed about the status of her case. The Panel

13
based its finding on Berry’s testimony that “for four years, I was pretty much in the dar ”
because Sneed failed to respond to her phone calls and requests for information. This
evidence was uncontradicted at trial and is clearly sufficient to support the Panel’s
conclusion.

Regarding the complaint ofEnrique Lopez, it was undisputed that Sneed represented
three claimants, including Lopez, to money seized by the federal government. Sneed
admitted at the hearing that he represented all three claimants to the money and that he did
not explain to them his potential conflict of interest. The Panel and the trial court‘ correctly
found that he should have done so as required by RPC 1.703).”

As to the complaint of Dr. Dwaine Allison, it was uncontroverted that Sneed
represented two clients, Jose Marmol and Jesus Mendez, in a personal injury case. Sneed'
referred Marmol and Mendez to Dr. Allison for medical treatment. Thereafter, Sneed settled
his clients” case and dispersed the settlement fiinds without withholding any of the monies
he knew were due Dr. Allison. Sneed admitted that he was aware of Dr. Allison’s lien
against the settlement proceeds. He also admitted that he settled the case but did not pay Dr.
Allison the amount of the lien or withhold any of the money to protect the lien. Dr. Allison
testified that Sneed told him on multiple occasions that he would protect the lien. In our
view, this evidence is sufficient to support the Panel‘s finding that Sneed failed to safeguard
hands in which he knew Dr. Allison had an interest as required by RPC 1.15.

Regarding the various complaints that Sneed assisted Carmen Ceja and Ceja
Enterprises in the unauthorized practice of law, the trial court found that there was sufficient
evidence to support the Panel’s conclusion that he in fact did so. We agree. The record
contains undisputed evidence that Sneed practiced law on the premises of Ceja Enterprises,
that Carmen Ceja and her employees were not lawyers, that she and Cej a Enterprises referred
cases to Sneed, that Sneed appeared in an advertisement for Ceja Enterprises, and that he
paid Ceja money, although he claimed it was for interpreters and rent.16 In addition, there
is Roldolpho Gonzalez’s testimony that his promissory note was drafted by Ceja Enterprises
and that he thought Cannon Ceja was a lawyer. He was advised to file suit on the note and
paid Ceja Enterprises the filing fee. Sneed filed the lawsuit. At the time, he was practicing
law at Ceja Enterprises and gave no outward indication, such as a sign, that his practice was
distinct from the business of Ceja Enterprises. Further, Margarita Kennen-Sanchez testified

‘5 RFC 1.7(b)(2) prohibits a lawyer from representing a client ifthe lawyer has a conflict of interest
unless the client consents, in writing, following the lawyer’s “explanation ofthe implications ofthe common
representation and the advantages and risks involved.”

‘6 The Panel found that Sneed’s testimony regarding his relationship with Ceja and her business was
“lacking in clarity, consistency, or credibility.” '

14
that Carmen Ceja had given her advice concerning her immigration case, including telling
her that “it was a sure thing.” She also testified that Ceja prepared papers for her
immigration hearing which Sneed then attended.

Considering this evidence as a whole, we have determined that the Panel had a sound
factual basis to conclude Sneed aided Ceja and her business in the unauthorized practice of
law. Again, Sneed has presented no argument to the contrary in his brief filed in this Court.

Meaningful Review by the Trial Court

Sneed maintains that he was denied a meaningful review in the trial court because the
trial court purportedly failed to properly schedule and review his appeal from the Ferret.-
Specifically, Sneed claims that he was unaware that his case was going to be heard on the
merits by the trial court on September 22, 2008. According to Sneed, he thought that the trial
court was only going to hear various motions he had filed. When the parties appeared in
court on September 22, 2008, disciplinary counsel informed the trial judge that she had filed
a motion to set the case for trial and that it was her understanding that the case had in fact
been set for September 22, 2008. Accordingly, disciplinary counsel announced that she was
ready to proceed with the trial. The trial judge stated that he too understood that the case had
been set for trial on that date. Accordingly, the judge decided to proceed. The trial consisted
of statements by counsel. No new evidence was introduced.

On October 14, 2008, approximately three weeks after the trial but more than two
months before the trial court ruled, the Board filed the exhibits that had been introduced at
the hearing before the Panel. On October 31, 2008, Sneed filed a “motion for rehearing or
to strike the administrative record,” arguing that he had not been prepared for the case to be
heard on September 22, 2008. He also claimed that he was entitled to a new hearing because
the exhibits were filed after September 22, 2008. The Board responded that Sneed was not
prejudiced by the delay in filing the exhibits because the trial court had not yet ruled on the
case. The trial court agreed and denied Sneed’s motion, concluding that “the Court is
satisfied that [Sneed] understood the matter was set for final hearing on September 22,
2008.” The trial court also noted that Sneed did not identify any additional proof that he
wanted to present, and further failed to identify any prejudice he suffered as a result of the
filing of the exhibits after the hearing. In this Court, Sneed likewise does not identify any
evidence he would have presented or any prejudice he suffered as a result of the late filing
of the exhibits. Like the trial court, we conclude that this issue has no merit.

In short, we reject each of Sneed’s procedural challenges to the conclusions of the
Panel and the trial court. We now turn to the Panelis decision to sanction Sneed by
recommending that he be disbarred.

15
Appropriateness ofthe Sanction.

In his brief filed in this Court, Sneed lists among his issues whether the discipline
recommended by the Panel and affirmed by the trial court is excessive. He does not,
however, argue the point or cite any authority in support of the issue. Thus, the issue is
waived. SeeTenn. R. AppP. 27(a)(7), Even ifSneed had properly challenged the sanction,
we have concluded that the Panel correctly found that he should be disbarred from the
practice of law.

To determine the appropriate level of attorney discipline, we are guided by the ABA
Standards for Imposing Lawyer Sanctions (“ABA Standards”). Tenn. Sup. Ct. R. 9, § 8.4.
Section 3.0 of the ABA Standards identifies four factors to consider regarding the severity
of a sanction: “(a) the duty violated; (b) the lawyer’s mental state; and (c) the actual or
potential injury caused by the lawyer’s misconduct; and (d) the existence of aggravating or
mitigating factors.” Under section 9.22 of the ABA Standards, aggravating factors include,
among other things, prior disciplinary offenses, a pattern of misconduct, multiple offenses,
a refusal to acknowledge the wrongfill nature ofthe misconduct, and substantial experience
in the practice of law. The ABA Standards provide that disbarment is appropriate when “a
lawyer engages in a pattern of neglect” that causes serious or potentially serious injury to a
client, or when the lawyer “knowingly engages in conduct that is a violation of a duty owed
as a professional with the intent to obtain a benefit for the lawyer or another, and causes
serious or potentially serious injury to a client, the public, or the legal system.” ABA
Standards, §§ 4.41, 7.1. '

In recommending that Sneed be disbarred, the Panel correctly considered and applied
the ABA Standards. The Panel properly found that Sneed “has not benefitted from prior
. discipline and that the public would be endangered and the legal profession and
administration of justice would be disserved if [Sneed] were permitted to continue the
practice of law.” The Panel further determined that Sneed intentionally violated the ethical
rules and that his actions “resulted in both potential and actual serious injury.” The Panel‘
also noted, appropriately in our View, that Sneed’s repeated failures to respond in a timely
manner to requests for information from disciplinary counsel indicated a pattern and practice
of disregard for the ethical rules. Further, the Panel found that Sneed failed to appreciate the
severity of his ethical violations. Indeed, he could not recall prior instances of discipline
arising from similar misconduct. Moreover, the Panel observed that in representing himself
before the Panel, Sneed repeatedly failed to respond to pleadings in a timely manner, showed
a lack of understanding of the fimdamental rules of evidence, and advanced legal positions
that were wholly unsupported by the law or the facts. Finally, the Panel found several
aggravating factors applicable, including (1) numerous prior disciplinary offenses, (2) a
pattern ofmisconduct, (3) multiple offenses in the present action, and (4) Sneed’s refusal to

16
acknowledge the wrongful nature of his conduct. The Panel could have found a fifth
aggravating factor — substantial experience in the practice of law - given that Sneed has been
licensed since 1985. ‘7 The Panel found no mitigating factors, and no such factors have been
suggested to this Court.

We agree with each of the Panel’s findings as detailed above and agree that
disbarrnent is the appropriate form of discipline. We do not reach this conclusion lightly, for
we realize that Sneed’s livelihood is at stake. At the same time, however, this Court takes
seriously its obligation to supervise and regulate the practice of law. As part of our duty to
regulate the legal profession, we have the ultimate responsibility for addressing ethical
violations. Hughes v. Bd. ofProfl Responsibility. 259 S.W.3d 631, 640 (Tenn. 2008). We
issue licenses to those whom we deem qualified to engage in the practice of law and, when
necessary, discipline attorneys who violate the ruies governing the profession. 1393, 104
S.W.3d at 470. Those rules are clear that a “license to practice law in this State is a
continuing proclamation by the Court that the holder is fit to be entrusted with professional
and judicial matters, and to aid in the administration ofjustice as an attorney and as an officer
of the Court.” Tenn. Sup. Ct. R. 9, § 3.1. Furthermore, “[i]t is the duty of every recipient of
that privilege to act at all times . . . in conformity with the standards imposed upon members
of the bar as conditions for the privilege to practice law.” id, In short, a license to practice
law in this state is not a right, but a privilege. Milligan v. Bd. of Prof’l Responsibility, W
S.W.3d _, _, 2009 WL 4637249, at *8 (Term. 2009).

It is apparent to us, as it was to the Panel and the trial. court, that Sneed has fallen far
short of conforming to the legal profession’s ethical standards. A lawyer with Sneed’s
extensive record of ethical infractions simply cannot be permitted to continue practicing law
in our courts. He has not heeded lessons from facing numerous prior disciplinary
proceedings and, in fact, continues to repeat the same mistakes.13 Furthermore, as far as this
record shows, he has not acknowledged the wrongful nature of his conduct, and we have
been unable to find even a hint of remorse in the record before us. Perhaps worse, Sneed’s
repeated, intentional disregard ofthe ethical rules undermines the protection ofthe public and
the preservation of the public’s confidence in the legal system. Indeed, the pattern and
pervasive nature of the unethical conduct committed by Sneed, coupled with his apparent
unwillingness to abide by the rules ofthe profession despite years ofdisciplinary action taken
against him, can do little but add to the cynicism about lawyers and foster disrespect for the

” Mr, Sneed’s disciplinary history reflects that he has been actively practicing law for many years
since being licensed.

‘3 For example, Sneed was before this Court in 2001 having violated some ofthe same ethical rules
that he stands adjudged to have violated today. S_ee Sneed v. Bd. ofProf’l Responsibility. 3'? S.W.3d 886,
889-90 (Tenn. 2001).

17
administration ofjustice that ultimately does great harm to the public, the legal system, and
the profession of law. In light of all these circumstances, we have concluded that the Panel
and the trial court appropriately found that Sneed should be disbarred.

Cenclusion

For the reasons stated above, we affirm the trial court’s judgment in all respects,
including Sneed’s disbarment from the practice of law. This opinion is not subject to
rehearing under Tennessee Rule ofAppellate Procedure 3 9 and, in order to protect the public,
is effective immediately under Supreme Court Rule 9, Section“ 18.5. The Clerk is directed
to certify this opinion as final and issue the mandate immediately as provided by Tennessee
Rule of Appellate Procedure 42(a). Costs of this appeal are assessed to Michael Sneed, and
his surety, for which execution may issue if necessary. '

COM 0. Claude)
CORNELIA A. CLARK, JUSTICE

,i
' l
.' '72.
" - ., Michael W. Catajsnonglerk, hereby certify that
‘ "this is a true and exact copy of the original
18 Obmtm‘ J
'tiledinttr ease.
mas—~11 . dayof. Chasm;- mom
remakes oust
By:- “at "

Go to Top

Assistance Request

Request Accessibility Assistance

Name

Email

Phone

What do you need help with?

The HTML version is missing content

The HTML version contains errors

The reading order is incorrect or confusing

I need help understanding the content

I need a different alternative format

Other

Preferred format

Additional details

Urgency Urgent Soon Not urgent

Go to Top