allman-sc-order-contempt-2748-6.pdf (2018)

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IN THE SUPREME COURT OF TENNESSEE
AT NASHVILLE
IN RE: ANDY LAMAR ALLMAN,BPR #17857
An Attorney Licensed to Practice Law in Tennessee
(Sumner County)
FILED
No. M2017-01476-SC-BAR-BP OCT 23 2018
BOPR No.2017-2748-6-AW Clerk of the
Reold By Appellate Courts

ORDER

By order entered September 9, 2016, Andy Lamar Allman was temporarily
suspended from the practice of law. Mr. Allman has not sought nor been granted
reinstatement since that time. On July 17, 2017,1 the Board ofProfessional Responsibility
("Board") filed a Petition for Contempt, alleging that Mr. Allman engaged in the
unauthorized practice of law and failed to comply with the Order of Temporary
Suspension entered by this Court on September 9, 2016, and Tennessee Supreme Court
Rule 9.

By Order entered August 10, 2017, this Court appointed Matt Sweeney to serve as
Special Master; directed the Special Master to serve Mr. Allman, pursuant to Tennessee
Rule of Criminal Procedure 42, with a notice ofcriminal-contempt hearing; instructed the
Special Master to conduct an evidentiary hearing on the Petition; and directed the Special
Master, upon completion of the hearing, to transmit the record of the proceedings and a
report of his findings of fact and conclusions of law to this Court. The hearing before the
Special Master occurred on January 22, 2018, and on February 26, 2018, the Special
Master filed the record of the proceedings and a report of his findings of fact and
conclusions of law with this Court.

On March 9, 2018, Mr. Allman filed a "Motion to Set Aside Special Master's
Report of Findings of Fact and Conclusions of Law," arguing that the hearing that
occurred on January 22, 2018, was conducted in violation of his right to be present at
trial, right to counsel, right to confront witnesses, and right to a jury trial. In an order
filed on April 19, 2018, this Court granted Mr. Allman's motion to set aside the Special
Master's Report and remanded the case to the Special Master for a new evidentiary
hearing.

1 The BPR filed an amended petition for criminal contempt on October 4,2017.
On May 10, 2018, the BPR filed its Second Amended Petition for Criminal
Contempt. On August 30, 2018, the parties entered into a plea agreement,2 in which Mr.
Allman agreed to plead nolo contendere to two separate counts of criminal contempt in
exchange for dismissal of twenty-three3 other counts of criminal contempt. Pursuant to
the plea agreement, the sentence to be imposed would be determined by the Special
Master and this Court.

The hearing on the plea agreement and sentencing occurred before the Special
Master on August 30, 2018. At the hearing, the BPR provided the following proffer of
proof:

If called to testify in this matter, Ms. Lisa Smelser, would talk about
Counts 15 through 18. And she would establish that on November 9th,
2016, Ms. Smelser was terminated from her employment and called Mr.
Allman on his cell phone to seek legal advice and retain him as her
attorney.

During the November 9th, 2016, conversation, Ms. Smelser asked
Mr. Allman to provide legal representation to her, and Mr. Allman agreed.
Mr. Allman quoted a fee of$4,500 to represent Ms. Smelser.

On November 10th, 2016, Ms. Smelser presented a letter to Mr.
Allman that he had requested she draft for his review before sending to her
employer. Mr. Allman provided legal advice to Ms. Smelser regarding the
letter and advised her not to let the employer know she had retained an
attorney.

On November 22nd, 2016, Ms. Smelser met with Mr. Allman to
deliver a $4,500 cashier's check she obtained from Wilson Bank and Trust
on November 22nd, 2016. The cashier's check, payable to Mr. Allman,
represented the retainer fee requested by Mr. Allman and was delivered to
Mr. Allman on November 22nd, 2016. At no time prior to accepting the
$4,500 cashier's check did Mr. Allman disclose his suspension from the
practice oflaw to Ms. Smelser.

Shortly after delivery of the $4,500 retainer fee, Ms. Smelser
discovered Mr. Allman was suspended from the practice of law. Ms.

2 The parties originally executed a plea agreement on August 21, 2018, but signed a corrected
copy of the plea agreement on August 30,2018,the day ofthe hearing before the Special Master.

3 The Board's second amended petition for criminal contempt alleged sixty separate counts of
criminal contempt. The Special Master subsequently determined that the petition alleged the essential
facts oftwenty-five separate charges.
2
Smelser contacted Mr. Allman to inquire about the suspension, and Mr.
Allman informed her that he was suspended for three forms he had been
late filing. Mr. Allman made it sound like it was just paperwork that had
not been timely filed. Based upon Mr. Allman's explanation, Ms. Smelser
continued with Mr. Allman as her attorney until she discovered he had been
arrested. Mr. Allman never returned any of the $4,500 retainer to Ms.
Smelser.

If called to testify on Counts 21 through 25, Ms. Wanda Kelley
would establish that shortly before November 7th, 2016, Ms. Kelley
contacted Mr. Allman and made him aware she wanted to hire him as her
attorney to represent her in an EEOC action.

Mr. Allman agreed to meet Ms. Kelley on November 7, 2016, at Mr.
Allman's law office on Saundersville Road in Hendersonville, Tennessee.
At the November 7, 2016, meeting, Ms. Kelley discussed her EEOC
complaint and her discrimination claims. At the conclusion of this one-hour
meeting, Mr. Allman stated to Ms. Kelley he would take her case and
would need a $4,500 retainer fee in cash.

Ms. Kelley left Mr. Allman's office and traveled to her bank in
Pegram, Tennessee, and withdrew $4,500 in cash. Ms. Kelley then traveled
from Pegram back to Hendersonville and delivered the $4,500 cash retainer
to Mr. Allman. Mr. Allman proceeded to count the money and provided
Ms. Kelley with a receipt in the amount of$4,500.

At this second meeting, Mr. Allman discussed the legal services he
would provide to Ms. Kelley. Mr. Allman presented Ms. Kelley with an
Attorney-Client Litigation Agreement, and Ms. Kelley signed the
agreement as requested and dated it November 7, 2016. Ms. Kelley asked
Mr. Allman if he needed to sign the Attorney-Client Litigation Agreement,
and Mr. Allman replied,"No."

At no time did Mr. Allman inform Ms. Kelley of his suspension
from the practice of law. Ms. Kelley would not have retained Mr. Allman
had he disclosed his suspension from the practice oflaw.

The week following November 7, 2016, Ms. Kelley met Mr. Allman
at his office to review documents related to her case. The meeting lasted
approximately one hour, during which Mr. Allman stated he would contact
the EEOC about her claim.

3
Subsequent to this third meeting, Ms. Kelley exchanged numerous
texts, e-mails, and phone calls regarding another meeting to discuss her
case. At no time did Mr. Allman inform Ms. Kelley of his suspension ofthe
practice of law. Ms. Kelley discovered Mr. Allman was suspended from the
media reports of his arrest. Mr. Allman never refunded any of the $4,500
retainer fee to Ms.Kelley.

When counsel for Mr. Allman had the chance to respond, he stated in pertinent
part,

So first I just want to note, because this is a nolo plea, Mr. Allman is not
accepting certain factual allocutions as presented. I think the pieces that are
particularly relevant for the sentencing phase, to the extent that the Court
gets there and to the acceptance of the plea, is that at all times Mr. Allman
had a good faith beliefthat he would be returning to the practice oflaw; and
he had a good faith belief that to the extent there was a suspension, it was
for technical reasons that were resolved quickly related to trust accounting
and other issues.

Later the Special Master had the following discussion with counsel for Mr. Allman:

Special Master: As to the allocution, your client hasn't requested to make
an allocution. But again, the Court would have to find that there's a
factual foundation —

Counsel: I understand.

Special Master: -- for the charges for a plea.

Counsel: And we accept —

Special Master: And so it's appropriate for the Board counsel to say what
they believe the evidence would show if this matter went forward to
trial.

Counsel: We agree fully. I just want to make clear on the record that that's
-- what we're doing under the nolo plea is accepting that there are
sufficient facts to meet the elements.

On September 6, 2018, the Special Master entered his report, accepting the plea
agreement and determining that the maximum sentence of ten days and fine of $50 for
each count of criminal contempt was appropriate in this case. Moreover, the Special
Master determined that, pursuant to the applicable sentencing considerations, the
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sentences should be run consecutively for a total effective sentence of20 days and a total
fine of$100.

This Court filed an order on September 13, 2018,requiring Mr. Allman to respond
to the Special Master's report and show cause why this Court should not enter judgment
holding him in contempt of this Court's September 9, 2016 Order and impose the
sentence determined by the Special Master. The Court also allowed the BPR to respond
to the Special Master's report.

Upon our review ofthe transcript of the hearing and the report filed by the Special
Master in this matter, as well as the responses to the Special Master's report filed by Mr.
Allman and the BPR, we agree that there are adequate factual bases to support the two
charges of contempt to which Mr. Allman entered pleas of nolo contendere. Therefore,
Mr. Allman is adjudged to be guilty of two counts of criminal contempt. Accordingly,
we must determine the appropriate punishment.

Tennessee Code Annotated section 29-9-102(2012) provides the authority for this
Court to punish criminal contempt: "The power of the several courts to issue
attachments, and inflict punishments for contempts of court, shall not be construed to
extend to any except the following cases• (3)The willful disobedience or resistance
of any officer of the such courts, party,juror, witness, or any other person, to any lawful
writ, process, order, rule, decree, or command of such courts...." Tenn. Code Ann. §
29-9-102. "This provision enables the courts to maintain the integrity of their orders."
Konvalinka v. Chattanooga-Hamilton Cty. Hosp. Auth., 249 S.W.3d 346, 354 (Tenn.
2008). "Criminal contempt... is designed 'to preserve the power and vindicate the
dignity and authority ofthe law and the court as an organ ofsociety.'" Baker v. State, 417
S.W.3d 428, 436 (Tenn. 2013) (quoting State v. Beeler, 387 S.W.3d 511, 520 (Tenn.
2012)). "Sanctions for criminal contempt are generally both punitive and unconditional
in nature, designed to punish past behavior, not to coerce direct[] compliance with a court
order or influence future behavior." Id.

Section 29-9-103 (2012) outlines the range of punishments for criminal contempt.
It states:

(a) The punishment for contempt may be by fine or by imprisonment, or
both.

(b) Where not otherwise specially provided, the circuit, chancery, and
appellate courts are limited to a fine of fifty dollars ($50.00), and
imprisonment not exceeding ten (10) days, and, except as provided
in § 29-9-108, all other courts are limited to a fine often dollars ($10.00).

Tenn. Code Ann. § 29-9-103.
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Thus, section 29-9-103(b) authorizes up to ten days incarceration, as well as a
fifty dollar ($50.00) fine, for each of Mr. Allman's contempt convictions. The Special
Master determined that the maximum sentence for each count of criminal contempt was
appropriate in this case.

As stated by this Court in In re Sneed,

This Court has previously observed that "criminal contempt is generally
regarded as a crime." Black, 938 S.W.2d at 402. Because it is punishable
by confinement of less than one year, we consider it a misdemeanor for
sentencing purposes. See Tenn. Code Ann. § 39-11-110 (2006); but see
State v. Wood, 91 S.W.3d 769, 776 (Tenn. Ct. App. 2002) (holding
inapplicable to a criminal contempt conviction arising from a civil matter
that portion of the misdemeanor sentencing provision requiring the trial
court to fix a percentage of the sentence to serve, and that statutory
provision allowing a misdemeanant to earn good time credits). We
therefore look to the Tennessee Criminal Sentencing Reform Act of 1989,
Tenn. Code Ann. §§ 40-35-101 through —505(2006), for guidance.

302 S.W.3d 825, 828 (Tenn. 2010). Thus, this Court shall consider whether the
following principles apply to determine whether a sentence of confinement is necessary:

(A) Confinement is necessary to protect society by restraining a
defendant who has a long history of criminal conduct;

(B) Confinement is necessary to avoid depreciating the seriousness
of the offense or confinement is particularly suited to provide an effective
deterrence to others likely to commit similar offenses; or

(C) Measures less restrictive than confinement have frequently or
recently been applied unsuccessfully to the defendant;

Tenn. Code Ann. 40-35-103(1). In this case, the Court finds that confinement is
necessary to avoid depreciating the seriousness of the offense—that is, blatant disregard
of this Court's order of temporary suspension. Rule of Professional Conduct 8.4(g)
states that an attorney must comply with orders entered in proceedings in which the
lawyer is a party. Tenn. Sup. Ct. R. 8, RPC 8.4(g)("It is professional misconduct for a
lawyer to:...(g) knowingly fail to comply with a final court order entered in a
proceeding in which the lawyer is a party ... ."). There are two exceptions to this rule,
but neither is applicable. Id. Additionally, this Court has outlined the duty to follow
orders, even though they are perceived to be erroneous, or even those held to be
erroneous: "[E]ven though the trial judge's order is erroneous and is reversed on appeal,
an adjudication of contempt for failure to obey that order will be sustained." State v.
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Jones, 726 S.W.2d 515, 517 (Tenn. 1987)(citing Vanvabry v. Staton, 88 Tenn. 334, 12
S.W.786(1890)).

In this case, Mr. Allman was temporarily suspended from the practice of law on
September 9, 2016. Almost two months later, he agreed to represent two different
clients. He did not disclose his suspension until one of the clients questioned him, and
even then he minimized the seriousness of it and implied it was based on his failure to
file documents timely. He accepted two retainer fees of $4,500 and has not repaid these
fees. At the hearing, Mr. Allman's attorney argued that "Mr. Allman had a good faith
belief that he would be returning to the practice of law" and that the suspension "was for
technical reasons." Regardless, even accepting Mr. Allman's contention as true, the fact
remains that he accepted new clients almost two months after he had been temporarily
suspended by this Court. Thus, in order to avoid depreciating the seriousness of these
offenses, we find that a ten-day maximum sentence, as well as a fifty-dollar fine, for each
of Mr. Allman's contempt convictions is appropriate.

Finally, we must determine the manner in which Mr. Allman shall serve his
sentences. Tennessee Code Annotated section 40-35-115 outlines the applicable criteria
for when "a defendant is convicted of more than one(1) criminal offense" and states that
the Court "shall order sentences to run consecutively or concurrently as provided by the
criteria in this section." Tenn. Code Ann. § 40-35-115 (2014). The decision regarding
whether sentences are to be served concurrently or consecutively is left to the sound
discretion of the sentencing court. See State v. Nelson, 275 S.W.3d 851, 870 (Tenn.
Crim. App. 2008). The pertinent criteria for this case in section 40-35-115 states that a
defendant can be sentenced consecutively if "[t]he defendant is sentenced for criminal
contempt." Tenn. Code Ann. § 40-35-115(b)(7). Any single ground is a sufficient basis
for the imposition ofconsecutive sentences. State v. Pollard, 432 S.W.3d 851, 862
(Tenn. 2013). As Mr. Allman has been found guilty of criminal contempt, we find by a
preponderance of the evidence that the criteria is satisfied to impose consecutive service
for the two counts of criminal contempt. See In re Sneed, 302 S.W.3d 825, 828 (Tenn.
2010)(ordering a partially consecutive sentence in an attorney criminal contempt case).
Moreover, we find that a total effective sentence of twenty days' incarceration is "a
sentence justly deserved in relation to the seriousness ofthe offense[s]," Tenn. Code Ann.
§ 40-35-102(1), and "no greater than that deserved for the offense[s] committed." Id. §
40-35-103(2).

Accordingly, pursuant to Tennessee Code Annotated section 29-9-103, we hereby
sentence Mr. Allman to ten days' incarceration in Sumner County Jail for each count, to
be served consecutively, for a total effective sentence of twenty days' incarceration. Mr.
Allman shall surrender himself to the Sumner County Sheriff's Department within fifteen
days of the filing date of this Order. If Mr. Allman fails to report to the Sumner County
Sheriff's Department within fifteen days of the filing date of this Order, any law
enforcement officer in this State is authorized to arrest Mr. Allman and transport him to
7
the Sumner County Sheriffs Department to serve his sentence. Furthermore, Mr. Allman
shall pay a fine of fifty dollars ($50.00)for each of the two counts, for a total fine of one
hundred dollars ($100.00). The Clerk of this Court is directed to forward a copy of this
order to Mr. Allman and the Sheriff of Sumner County. The Clerk also shall forward a
copy ofthis order to the Board ofProfessional Responsibility.

On October 5, 2018, Mr. Allman filed a "Motion for Leave to File Document
Under Seal." Upon review, we hereby grant Mr. Allman's motion to file the lodged
document under seal.

Upon the filing of the Special Master's declaration of costs in this matter, both
sides shall respond within ten days as to the assessment of costs.

PER CURIAM

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