Recent Supreme Court Opinions

In re: Loring Edwin Justice

An attorney who had been disbarred was assessed costs associated with his disbarment proceedings pursuant to pre-2014 Tennessee Supreme Court Rule 9, section 24.3. The attorney timely filed a petition seeking relief from costs, and a panel of the Board of Professional Responsibility conducted a hearing on the petition. The panel reduced the costs for 11.2 hours of disciplinary counsel time and otherwise denied the petition. The attorney has appealed to this Court, as permitted by pre-2014 Rule 9, section 24.3. Having carefully and thoroughly considered the record and each of the issues raised, we affirm the panel’s decision.

In re: Larry E. Parrish

The Tennessee Supreme Court has affirmed the Tennessee Board of Professional Responsibility’s assessment of costs from a disciplinary proceeding to Memphis attorney Larry E. Parrish and ordered him to pay the costs within 45 days.

Effective January 1, 2014, Tennessee Supreme Court Rule 9, which governs attorney discipline, was amended. The revised Rule 9 changed the process for assessing costs against attorneys in disciplinary cases filed or initiated on or after January 1, 2014. This case arose in 2013 when the Board received complaints of misconduct about Mr. Parrish. The Board filed a disciplinary proceeding against Mr. Parrish that resulted in findings of misconduct and sanctions against him. The Tennessee Supreme Court reviewed Mr. Parrish’s case, affirmed the findings of misconduct, and suspended him from practicing law for six months, with 30 days to be served on active suspension and the remainder on probation. After Mr. Parrish served his 30-day suspension, he agreed to a payment plan for the Board’s costs and made one payment. The Supreme Court reinstated Mr. Parrish to the practice of law. Soon after he was reinstated, Mr. Parrish petitioned the Board to revoke the costs assessed against him. Mr. Parrish claimed that the Board should have assessed costs based on the revised version of Rule 9 in effect when he was reinstated rather than Rule 9 in effect in 2013 when his disciplinary proceeding was initiated.

A hearing panel of the Board heard Mr. Parrish’s claims and denied him relief, finding that the Board had properly assessed costs against Mr. Parrish under the version of Rule 9 in effect when his disciplinary proceeding began in 2013. Mr. Parrish appealed to the Tennessee Supreme Court.

The Supreme Court affirmed the hearing panel’s decision, holding that the version of Rule 9 that applies in the assessment of costs depends on when the disciplinary case was filed or initiated, not when the attorney was reinstated. Therefore, the Board properly assessed costs against Mr. Parrish under the version of Rule 9 in effect when his misconduct was reported to the Board in 2013. The Supreme Court ordered Mr. Parrish to pay the costs he owes to the Board within 45 days of the filing of the Court’s opinion. Mr. Parrish’s failure to timely pay the costs may serve as a ground for revocation of his reinstatement to practice law.

In re: Winston Bradshaw Sitton

This case is a cautionary tale on the ethical problems that can befall lawyers on social media. The attorney had a Facebook page that described him as a lawyer. A Facebook “friend” involved in a tumultuous relationship posted a public inquiry about carrying a gun in her car. In response to her post, the attorney posted comments on the escalating use of force. He then posted that, if the Facebook friend wanted “to kill” her ex-boyfriend, she should “lure” him into her home, “claim” he broke in with intent to do her harm, and “claim” she feared for her life. The attorney emphasized in his post that his advice was given “as a lawyer,” and if she was “remotely serious,” she should “keep mum” and delete the entire comment thread because premeditation could be used against her “at trial.” In the ensuing disciplinary proceedings, a Board of Professional Responsibility hearing panel found that the attorney’s conduct was prejudicial to the administration of justice in violation of Rules of Professional Conduct 8.4(a) and (d). It recommended suspension of his law license for sixty days. Under Tennessee Supreme Court Rule 9, § 15.4, this Court determined that the punishment imposed by the hearing panel appeared inadequate and, after briefing, took the matter under advisement. We now hold that the sanction must be increased. The attorney’s advice, in and of itself, was clearly prejudicial to the administration of justice and violated the Rules of Professional Conduct. In addition, his choice to post the remarks on a public platform amplified their deleterious effect. The social media posts fostered a public perception that a lawyer’s role is to manufacture false defenses. They projected a public image of corruption of the judicial process. Under these circumstances, the act of posting the comments on social media should be deemed an aggravating factor that justifies an increase in discipline. Accordingly, we modify the hearing panel’s judgment to impose a four-year suspension from the practice of law, with one year to be served on active suspension and the remainder on probation.

Douglas Ralph Beier v. Board of Professional Responsibility

In this appeal from attorney disciplinary proceedings, the hearing panel of the Tennessee Board of Professional Responsibility determined that the attorney’s conduct in two cases violated the Rules of Professional Conduct. In one case, the hearing panel found that the attorney signed the name of a witness on an affidavit, falsely notarized the signature, and did not disclose to the trial court or opposing counsel that he had signed the witness’s affidavit. In another case, the hearing panel found, the attorney persuaded a client in a probate matter to agree to an unreasonable contingency fee arrangement, took advantage of the client’s disability, misrepresented to the probate court that the client was the decedent’s sole heir, failed to disclose the existence of other heirs, and got the probate court to agree to close the estate without a detailed accounting in order to avoid judicial scrutiny of the unreasonable fee. The hearing panel suspended the law license of the appellant attorney for two years, with three months served as active suspension and the remainder on probation. The attorney and the Board both appealed the hearing panel’s decision to the chancery court. The chancery court affirmed the hearing panel’s findings as to rule violations and aggravating and mitigating factors, but it modified the sanction to two years active suspension. The attorney now appeals to this Court, arguing that his conduct was not dishonest, he did not take advantage of a vulnerable client, and his probate fee arrangement was not unreasonable. We affirm the hearing panel’s factual findings and its findings as to rule violations. In view of the seriousness of the violations, we affirm the chancery court’s modification of the sanction to two years active suspension.

George H. Thompson, III v. Board of Professional Responsibility

This is an attorney discipline proceeding concerning attorney George H. Thompson, III, and his representation of a client in her personal injury action. After filing a nonsuit on his client’s behalf, the attorney failed to refile the case in a timely manner, which resulted in the client’s claim being barred by the applicable statute of limitations. The attorney later admitted his error and paid the client a sum of money to settle her potential claim against him; however, the attorney failed to advise the client in writing that she should seek independent legal counsel in reaching a settlement. The Board of Professional Responsibility (“Board”) filed a petition for discipline against the attorney, and a hearing panel (“Panel”) imposed a sanction of a one-year suspension with thirty days to be served as an active suspension and the remainder to be served on probation with conditions. The attorney sought review of the Panel’s decision in chancery court, and upon its review, the chancery court affirmed the Panel’s decision. The attorney has now filed a direct appeal to this Court. Following a thorough review of the record and applicable legal authorities, we affirm the judgment of the chancery court.

Board of Professional Responsibility v. James S. MacDonald

The Board of Professional Responsibility (“the Board”) filed a Petition for Discipline against James MacDonald (“Attorney”) based on a single complaint arising from his representation of Michael Huddleston.  A hearing panel (“the Panel”) was appointed and, after an evidentiary hearing, the Panel dismissed the Petition for Discipline and concluded that the Board “failed to sustain its burden of proving, by a preponderance of the evidence, that Attorney violated” any Rules of Professional Conduct (“RPC”).  Thereafter, the Board filed a petition for review of the Panel’s decision in the Knox County Chancery Court.  The chancery court reversed the Panel’s dismissal of all six rule violations and determined that the Panel’s conclusions were arbitrary and capricious and unsupported by the evidence.  In addition, the chancery court held that the Panel abused its discretion by applying an incorrect legal standard.  The chancery court found that Attorney violated all six rules alleged in the Board’s petition and imposed a public censure as punishment.  Attorney sought review in this Court, arguing that the chancery court incorrectly substituted its own judgment for that of the Panel’s and abused its discretion.  Upon review of the record and applicable law, we reverse the chancery court’s conclusion that Attorney violated RPC 3.3(b) and (c), 3.4(a) and (b), and 8.4(a), and we reinstate the Panel’s dismissal of those allegations.  Additionally, we hold that the chancery court was without authority to conclude that Attorney violated RPC 8.4(c), and this Court must treat the Panel’s failure to make a conclusion as a dismissal of the allegation.  Therefore, the Petition for Discipline against Attorney is dismissed in its entirety.

James A. Dunlap, Jr. v. Board of Professional Responsibility 

Tennessee Supreme Court has affirmed the one-year suspension of Georgia attorney James A. Dunlap, Jr., from the practice of law in Tennessee.

Mr. Dunlap had been admitted to practice in Tennessee for the limited purpose of representing a client in an administrative appeal before the Administrative Procedures Division of the Tennessee Secretary of State’s Office. The one-year suspension resulted from his misconduct while representing the client when he failed to disclose material information and made misrepresentations to the administrative law judge presiding over the appeal, threatened to sue the judge in an attempt to influence the judge’s decision, and mischaracterized the judge and the tribunal as not being fair and impartial.

A Board of Professional Responsibility hearing panel found that Mr. Dunlap’s conduct violated Tennessee Rules of Professional Conduct 3.3 (candor toward the tribunal), 3.5(a) (impartiality and decorum of the tribunal), 8.4(c) (conduct involving dishonesty, fraud, deceit, or misrepresentation), and 8.4(d) (conduct that is prejudicial to the administration of justice). The hearing panel recommended a one-year suspension for Mr. Dunlap’s misconduct. The Davidson County Chancery Court affirmed the hearing panel’s decision. Mr. Dunlap appealed to the Tennessee Supreme Court challenging the factual bases for the hearing panel’s findings, arguing that suspension was inconsistent with sanctions imposed in other cases, and asserting that his conduct did not cause any harm.

The Supreme Court examined the evidence, the presumptive sanction for Mr. Dunlap’s misconduct, and the applicable aggravating and mitigating factors under the American Bar Association’s Standards for Imposing Lawyer Sanctions. The Court concluded that the hearing panel’s decision was supported by substantial and material evidence and was neither arbitrary nor an abuse of discretion. The Supreme Court also determined that the delay in the administrative appeal resulting from Mr. Dunlap’s misconduct and his disparaging remarks toward the administrative law judge and the tribunal evidenced harm to the legal system. Thus, the Supreme Court affirmed the chancery court’s judgment and upheld Mr. Dunlap’s one-year suspension from the practice of law in Tennessee.