Actions from the Board of Professional Responsibility

Reinstated
The law license of Knoxville lawyer David A. Lufkin was reinstated on July 3 after the Supreme Court of Tennessee found that he was fit to resume the practice of law. Lufkin had been on disability inactive status since December 1999.

The following attorneys have been reinstated to the practice of law after complying with Supreme Court Rule 21, which requires mandatory continuing legal education:
Steven Royce Mills, Snellville, Ga.
Terri Renee Mussetter, Lexington, Ky.

The following attorneys have been reinstated to the practice of law after complying with Section 20 of Supreme Court Rule 9, which requires the payment of annual registration fees:
Bernard R. Cahill, Nashville
Terri Renee Mussetter, Lexington, Ky.

Censured
A censure declares conduct improper but does not limit the right to practice law.

Robert C. Brooks of Memphis was censured by the Board of Professional Responsibility on June 27 for negligently soliciting attorney fees. The board’s action came in response to a complaint filed by the chief judge of the U.S. District Court for the Western Division of Tennessee. The board found that Brooks solicited attorney fees from a defendant’s family while serving as appointed counsel for the defendant in a federal criminal matter, without first obtaining permission from the court as required by federal law. The board identified three mitigating factors that influenced its decision to impose a censure: (1) Brooks had expressed remorse for the error and apologized to the court, (2) there was no intent to violate rules or laws and (3) Brooks enjoys an overall favorable reputation for character in the legal community. Brooks agreed to accept the censure.

Also on June 27, the Board of Professional Responsibility censured Linda Kaye Kendall Garner of Memphis for failing to properly communicate with clients. The board found that between 2002 and 2004, Garner negligently failed to communicate with her clients regarding the setting of a writ of inquiry hearing in a personal injury action, which had been pending since 1995. The board also found that in May 2004, she failed to inform her clients about a second voluntary non-suit, which was required because a writ of inquiry hearing had not been conducted. The board identified four mitigating factors that influenced its decision to impose a censure: Garner was remorseful and apologetic to her clients, was willing to accept financial responsibility for her error, had no intent of violating conduct rules, and fully cooperated with the investigation. She agreed to accept the censure.

Lebanon lawyer Adam Wilding Parrish received a censure from the Board of Professional Responsibility on July 18 for co-mingling trust funds with personal funds and using his trust account as an operating account. In December 2005, the board received notice of an overdraft in Parrish’s trust account. Account records revealed a series of ATM withdrawals, debits and check card purchases. Upon further investigation, the board learned that from June 2005 to April 2006, Parrish did not maintain a business operating account but solely used his trust account as both a trust and operating account. Co-mingling trust funds with personal funds and using a trust account as an operating account violate Rules 1.15 and 8.4 of the Tennessee Rules of Professional Conduct. Parrish was given notice of the censure but did not request a hearing.

The Board of Professional Responsibility censured Steven T. Raney of Brentwood on July 18 for practicing law while suspended. On Jan. 18, 2005, a client hired Raney based on his assertion that he was licensed to practice law in Tennessee. In reality, however, he had been suspended since September 2003 for non-payment of his annual fees. From September 2005 to January 2006, he also was suspended for CLE non-compliance. His suspension for non-payment of fees was lifted on Jan. 31, 2006. Practicing law while suspended is a violation of Rules 1.16, 5.5 and 8.4(a)(c)(d)(g) of the Tennessee Rules of Professional Conduct. Raney was given notice of the censure but did not request a hearing.

Maryville attorney Charles M. Clifford was censured on July 24 for two violations of the Tennessee Rules of Professional Conduct. A petition for discipline had been filed against Clifford in February. On May 26, he admitted his guilt of failing to timely file an appellate brief, leading to dismissal of his client’s appeal (a violation of Rules 1.3 and 3.2); and failing to respond to disciplinary counsel when requested (a violation of Rule 8.1[b]). His conditional guilty plea was approved by the Board of Professional Responsibility and entered as an order by the state Supreme Court. In addition to imposing the censure, the court ordered Clifford to pay the costs of his disciplinary proceedings.

Also on July 24, Memphis lawyer James F. Schaeffer Jr. was censured for behavior that led a judge to hold him in contempt of court. The Board of Professional Responsibility filed a petition for discipline against Schaeffer and he submitted a conditional guilty plea in exchange for the censure. In addition to imposing the censure, the Supreme Court ordered that Schaeffer pay the costs associated with the disciplinary proceeding.

Samuel J. Harris, a Cookeville attorney, received a public censure from the Board of Professional Responsibility on Aug. 1 for engaging in the practice of law while administratively suspended. Harris was suspended on Sept. 5, 2005, for failing to pay his Board of Professional Responsibility registration fee but continued to practice law. He paid the necessary fee and was reinstated on Feb. 2, 2006. Practicing law while on administrative suspension violates Rule 5.5(a) of the Tennessee Rules of Professional Conduct.

Suspended
Suspension is effective 10 days after issuance, except where immediate suspension is necessary to protect the public. A suspended lawyer may not accept new clients but may continue representing current clients for 30 days. The lawyer must notify all clients, co-counsel and opposing counsel of the suspension order; return to clients any papers or property to which they are entitled; not use the indicia of lawyer, legal assistant or law clerk; and not maintain a presence where the practice of law is conducted. An attorney suspended for one year or more must prove by clear and convincing evidence that he has the moral qualifications, competency and learning required for admission to the practice of law, and that resumption of his practice would not be detrimental to the integrity and standing of the bar or the administration of justice, nor be subversive to the public interest. An attorney suspended for less than one year with conditions may resume practice after complying with those conditions. An attorney suspended for less than one year with no conditions may resume practice without reinstatement.

On July 18, the Tennessee Supreme Court suspended Memphis attorney Stephen M. Brown for 45 days. The suspension arose out of Brown’s prior representation of a masonry subcontractor involved with construction at the FedExForum between 2003 and 2004. In attempting to settle his client’s dispute with the lead contractor, Brown admitted that he used means that had no substantial purpose other than to embarrass or burden other lawyers and parties; and had directly communicated on behalf of his client with a represented party without first obtaining the consent of that party’s lawyer. The Board of Professional Responsibility filed a petition for discipline in August 2005. In March 2006, Brown tendered and the board accepted a conditional guilty plea in exchange for the temporary suspension. In addition to imposing the suspension, the court ordered Brown to pay the costs of his disciplinary proceedings.

Compiled by Stacey Shrader from information obtained from the Board of Professional Responsibility of the Tennessee Supreme Court.

• • •

Tennessee’s disciplinary structure and process
Part 4: District Committees & Hearing Panels

Last month, the Journal looked at the nine disciplinary districts in Tennessee. This month, in part four of an on-going series on the disciplinary structure and process that governs ethical behavior of attorneys licensed in Tennessee, we explore the role of committees and hearing panels in each disciplinary district. Information is based on Rule 9 as amended by the Tennessee Supreme Court on April 25.

Overview of Disciplinary District Committees
Tennessee has nine disciplinary districts created by the state Supreme Court to conduct inquiries into allegations of improper conduct. Within each district, the Supreme Court appoints a committee to hear disciplinary cases. The Board of Professional Responsibility and local bar associations in each district may recommend to the court particular individuals they believe would serve well in that role. Rules governing district committees are found in Section 6 of Rule 9. Committees are to be comprised of no less than five and no more than 30 licensed attorneys who maintain a law practice in the district or reside in the district if they do not actively practice law. Committee members may serve two consecutive three-year terms but must take a year off before being reappointed a third time. Terms are staggered so that only a third of the members step down each year.

Overview of Hearing Panels
District committees conduct inquiries into charges of unethical conduct through the use of hearing panels. Panels are composed of three district committee members who are assigned to cases by the Board of Professional Responsibility on a rotating basis. Each panel elects a chair, holds appropriate hearings and within 15 days submits its findings and judgment to the board. The hearing panel can act only with the concurrence of a majority of its members. In determining the appropriate level of discipline, the hearing panel is to rely on the ABA Standards for Imposing Lawyer Sanctions. Appeals of hearing panel decisions are made to the circuit or chancery court in the county where the respondent practices law.

How these bodies function in the disciplinary process
Disciplinary counsel investigates allegations of ethical misconduct and is authorized by the rules of the Supreme Court to recommend a range of remedies, from dismissal of a case to the filing of formal charges. District committees and hearing panels play different roles at different times, depending on the recommended discipline.

Dismissal or informal admonition. If disciplinary counsel recommends dismissal of a case or imposition of an informal admonition, the decision is reviewed by one district committee member in the disciplinary district where the subject of the complaint practices law. This individual, known as the “reviewing member,” may approve or modify the recommendation. If disciplinary counsel or the individual bringing the complaint is dissatisfied with the reviewing member’s decision, an appeal may be made to the board. The board may approve, modify or disapprove the reviewing member’s decision or direct that the matter be investigated further. If the attorney who is the subject of the complaint (the respondent) is dissatisfied, he may request a formal proceeding before a hearing panel after 20 days.

Reprimand or censure. If, after investigating a complaint, disciplinary counsel recommends and the board approves a private reprimand or public censure that is not acceptable to the respondent, the proposed discipline is vacated and held in abeyance. Counsel then may ask the board for authority to bring formal charges before a hearing panel. The board may approve or disapprove that request. If the board approves the decision, a hearing panel is convened.

Formal charges. If disciplinary counsel recommends prosecution of formal charges before a hearing panel, the board reviews the decision and may approve or modify the recommendation. If the board approves the decision, a hearing panel is convened.

— Stacey Shrader