Actions from the Board of Professional Responsibility

Reinstated
By order of the Supreme Court entered Aug. 1, Kevin Shalom Terry of Nashville was reinstated to the practice of law on condition that he (1) successfully complete the essay portion of the state bar exam; (2) practice for one year in a group setting approved by the Board of Professional Responsibility; (3) comply with a five-year contract with the Tennessee Lawyers Assistance Program; (4) comply with a three-year law practice monitoring agreement approved by the board; and (5) reimburse the board and the Supreme Court for the costs of his disciplinary proceedings.

Charles David Deas, a Maryville attorney, was reinstated to the practice of law on Aug. 10. In issuing the order, the court also directed Deas to pay the costs of his disciplinary proceeding. Deas had been suspended in June for failing to respond to complaints of misconduct. After filing responses to the complaints, he requested dissolution of the temporary suspension and a hearing panel evaluating the case recommended that the suspension be lifted.

The following attorneys have been reinstated to the practice of law after complying with Supreme Court Rule 21, which requires mandatory continuing legal education:

Melvin L. Ford, Memphis; Shannon H. Chierichella, Warrenton, Va.; Lance Karl Hiltbrand, Edmond, Okla.; Kathryn Cronin Johnson, Charleston, W. Va.; Patrick Herman Noble, Henderson, Ky.; Madhurendra Kumar Singh, Las Cruces, N.M.; Gloria Stamps-Smith, Minneapolis, Minn.

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:

Ellen Tamara Lea Brazier, Clarksville; Harvey Louis Goodman, Knoxville; David R. Huggins, Memphis; Robert E. Barnes, Milwaukee, Wis.; Douglas Thomas Miracle, Jackson, Miss.; Madhurendra Kumar Singh, Las Cruces, N.M.

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

Jack C. Morris of Jackson was censured by the Board of Professional Responsibility on Aug. 11 for violating rules of professional conduct governing competent representation (Rule 1.1), diligence and promptness (Rule 1.3), client communication (Rule 1.4), expediting litigation (Rule 3.2) and conduct prejudicial to the administration of justice (Rule 8.4[d]). In representing a client before the Court of Criminal Appeals, the court found that Morris violated the Rules of Appellate Procedure by failing to include citations to the record in his brief. The court ordered a rewrite of the brief and Morris again failed to provide the documentation. The court responded by removing Morris and remanding the case to the trial court for appointment of substitute counsel. Upon notification of this action, Morris apologized to the court and explained that he had failed to calendar the deadline. The court accepted his apology.

The Board of Professional Responsibility censured Buchanan lawyer Victoria L. DiBonaventura on Aug. 15 for failing to adequately represent a client. DiBonaventura was paid $1,000 and provided with receipts, correspondence and court papers to handle a child support case. DiBonaventura never filed with the court, never entered an appearance and did not return calls from the client. The client terminated DiBonaventura and requested that all documents be returned. When the papers were not returned, the client filed a disciplinary complaint and requested return of the unearned fee. DiBonaventura eventually returned the documents but not the fee. In defending her actions, DiBonaventura argued that her spouse was ill during the period and she had responsibilities for his care. The board found that her actions violated rules of professional responsibility governing competent representation (Rule 1.1), diligence and promptness (Rule 1.3), client communication (Rule 1.4), duties upon withdrawal (Rule 1.16[d]) and conduct prejudicial to the administration of justice (Rule 8.4[d]).

Charles A. Spitzer of Jackson was censured by the Board of Professional Responsibility on Aug. 17 for having a sexual relationship with a client he was representing and for leaving his files at the client’s house, breaching confidentiality. The board found that these actions violated Rules 1.6, 1.7(b) and 8.4(a) and (d) of the Rules of Professional Responsibility. The board censured Spitzer on condition that he enter into and comply with a monitoring agreement with the Tennessee Lawyers Assistance Program. The board also ordered that any reported incidence of noncompliance be grounds for immediate suspension.

Shelbyville lawyer Clarence W. Phillips was censured by the Board of Professional Responsibility on Aug. 30 for improperly soliciting, via telephone, another lawyer’s client regarding possible representation after an auto accident. The potential client did not initiate contact with Phillips regarding possible employment; Phillips learned of the client through accident reports. Attorneys in Tennessee are not permitted to solicit clients in this fashion, and must limit direct communications to written or recorded means that may be mailed or electronically transmitted.

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 May 19, Lawrence A. Welch Jr. of Greeneville was suspended from the practice of law for three years for preparing and mailing a memorandum implicating a sitting judge and members of a law firm in a criminal conspiracy. Welch first appealed the findings of the hearing panel to the chancery court, which affirmed the recommended discipline, and then to the Supreme Court, which also upheld the hearing panel’s judgment.

The Supreme Court on Aug. 4 suspended the law license of Kingsport lawyer Thomas Martin Browder for 11 months and 29 days. However, the court suspended all but 30 days of the discipline in exchange for a conditional guilty plea and compliance with probationary requirements. In addition, the court determined that since Browder had ceased practicing law in May, the 30-day suspension had been met, allowing him to resume his practice. However, the court ordered him to comply with a Tennessee Lawyers Assistance Program contract for two years and ruled that any noncompliance would result in reimposition of the 11-month suspension. The suspension was imposed for tardiness in reimbursing employer advances, neglecting cases, missing appointments and failing to return phone calls and files to clients.

James Lloyd Gordon, a Memphis lawyer, was suspended from the practice of law on Aug. 11 for a period of 11 months and 29 days, with the first 90 days to be served and the balance waived in exchange for a conditional guilty plea and probation. Gordon admitted in his plea that he failed to pay approximately $2,165 in client settlement funds from his escrow account for more than three years, and was grossly negligence in failing to timely and properly investigate the circumstances of the delay. He ultimately paid the claim. During the probationary period, Gordon must (1) allow an escrow account monitor to access all records and information associated with his account; (2) ensure that the monitor provides monthly progress reports to the Board of Professional Responsibility; and (3) review and implement principles contained in Formal Ethics Opinion 89-F-121 and the ABA’s Guide to Lawyer Trust Accounts.

On Aug. 23, the Supreme Court suspended the law license of Nashville attorney Denielle V. Young for one year. Young previously had pleaded guilty to the criminal offense of passing worthless checks.

Disbarred
In Tennessee, disbarment becomes effective 10 days after an order of the court. Under the Rules of Professional Conduct, a disbarred lawyer must notify all clients, co-counsel and opposing counsel of the disbarment; must deliver to all clients any papers or property to which they are entitled; may not use the indicia of lawyer, counselor at law, legal assistant, law clerk or similar title; and may not maintain a presence or occupy an office where the practice of law is conducted. A lawyer who has been disbarred after hearing or by consent may not apply for reinstatement for at least five years. When applying, the lawyer must prove by clear and convincing evidence that reinstatement would not be detrimental to the integrity and standing of the bar or the administration of justice, nor be subversive to the public interest.

The Supreme Court disbarred Chattanooga attorney Richard J. McAfee on Aug. 23 and ordered him to pay the costs of his disciplinary proceeding. McAfee accepted disbarment by consent pursuant to Supreme Court Rule 9 Sec. 15.

Contempt of Court
On Aug. 17, the Tennessee Supreme Court found Memphis lawyer Bretran R. Thompson in willful contempt of court based on the report of a special master appointed to review his case. Both the Board of Professional Responsibility and the special master found that Thompson had taken funds from potential clients promising to represent them while disbarred. The court sentenced Thompson to 50 days in jail (allowing credit for time served in a separate Shelby County criminal matter), imposed fines in the amount of $1,250, ordered restitution within six months to four complainants and directed him to pay the costs and expenses of the contempt proceeding.

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

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Tennessee’s disciplinary structure and process
Part 5: Attorneys convicted of a crime
This month, in part five of an on-going series on the disciplinary structure and process that governs ethical behavior of attorneys licensed in Tennessee, we explore how the state deals with attorneys convicted of crimes. Information is based on Rule 9 as amended by the Tennessee Supreme Court on April 25.

Rule 9, Section 14 of the Rules of the Supreme Court governs the disciplinary process employed when a Tennessee-licensed attorney is a defendant in a criminal case involving a “serious crime.” Section 14.2 defines a “serious crime” as any felony under the laws of Tennessee and any other crime that involves improper conduct as an attorney, interference with the administration of justice, false swearing, misrepresentation, fraud, willful failure to file income tax returns, deceit, bribery, extortion, misappropriation, theft, or solicitation of another to commit any of these crimes.

Immediate Suspension
An attorney being prosecuted for a serious crime who enters a plea of no contest, enters a guilty plea, or is found guilty by a jury or trial court is immediately suspended from the practice of law. The Tennessee Supreme Court is empowered to act on its own when it learns of convictions. The suspension is imposed regardless of whether the attorney intends to appeal the conviction and remains in effect until all appeals have been exhausted. If a conviction is thrown out on final appeal, the attorney’s license to practice law is immediately reinstated.

Formal Disciplinary Hearing
In addition to suspending a convicted attorney, the Supreme Court refers the matter to the Board of Professional Responsibility, which is to initiate a formal proceeding before a hearing panel. However, unlike the suspension, which occurs immediately, the hearing is not to be conducted until all court appeals are concluded.

If a conviction is thrown out on final appeal, reinstatement by the court does not terminate a pending disciplinary proceeding. In this situation, the hearing panel and the board retain the right to determine what, if any, discipline is appropriate.

Out-of-State Cases
An attorney who is subject to discipline in Tennessee, but lives in or commits a crime in another state, is subject to the same process described above. However, in these cases, disciplinary counsel for the board bears the responsibility for ensuring that the Supreme Court obtains a certificate of conviction from the out-of-state jurisdiction.

Voluntary Disbarment
An attorney who is the subject of a pending prosecution may at any time consent to disbarment by signing an affidavit stating that he is giving consent freely and voluntarily, is not subject to coercion or duress, is fully aware of the implications of consent, acknowledges that the alleged facts are true and believes that no successful defense can be made. The affidavit is filed with the board, which then files a copy with the Supreme Court. The court in turn enters an order disbarring the attorney. The order becomes a matter of public record, however, the affidavit is not publicly disclosed or made available for use in any other proceeding except by order of the court.

Crimes Other Than Serious Crimes
If the Supreme Court receives a certificate of conviction for a crime that does not rise to the level of a serious crime, the court is to refer the matter to the board. The board then may take whatever action it deems appropriate. For minor offenses, however, the court in its discretion may decide not to refer the matter to the board. In these cases, no discipline is imposed.

— Stacey Shrader