545 S.W.3d 408
Tenn.2018Background
- In 2009 Robin K. Barry represented Miranda Adams in a dispute over $100,000 life‑insurance proceeds; the proceeds were deposited into Barry’s SunTrust trust account while ownership was disputed.
- Barry commingled funds and repeatedly withdrew trust funds (including $7,691.50 paid to a third party and $7,150 paid to herself), used earned‑fee checks in the trust account, and failed to keep proper trust ledgers.
- After a 2011 settlement allocating $95,000 to the other claimant, Barry lacked sufficient trust funds to disburse the roughly $5,000 remaining to Adams, made misleading statements about the funds, moved to Texas without informing Adams, and largely ceased communicating.
- Adams filed a complaint in 2013; Barry was temporarily suspended for failure to respond. She later paid Adams $5,000 shortly before the disciplinary hearing but defended substantial fees claimed for work performed.
- A hearing panel found Barry knowingly converted client funds and violated multiple RPCs, imposed an 18‑month suspension (two months active, remainder on probation), and found five aggravating factors and no mitigating factors.
- The Board appealed; the chancery court reversed as arbitrary and capricious, adopting the ABA Standards baseline (disbarment for knowing conversion causing injury). The Tennessee Supreme Court affirmed and ordered disbarment effective 10 days after entry of its order, declining retroactivity.
Issues
| Issue | Plaintiff's Argument (Board) | Defendant's Argument (Barry) | Held |
|---|---|---|---|
| Whether the hearing panel’s sanction was arbitrary or capricious | Panel failed to apply ABA Standards; knowing conversion causing injury generally warrants disbarment | Suspension was adequate; comparable Tennessee cases allow suspension instead of disbarment | Court: panel was arbitrary/capricious for not imposing presumptive ABA sanction; affirmed chancery court reversing to disbarment |
| Appropriate baseline sanction for knowing conversion of client funds | ABA Standard 4.11 makes disbarment generally appropriate when conversion causes injury | Mitigating circumstances (minor prior history, remorse, restitution, cooperation) justify less than disbarment | Court: ABA Standard 4.11 applies; aggravating factors and lack of mitigating factors support disbarment |
| Whether mitigating factors warranted a lesser sanction | No meaningful mitigation; conduct and post‑complaint responses undercut mitigation | Barry asserted mitigation: limited prior discipline, remorse, eventual restitution, cooperation | Court: hearing panel reasonably found no mitigating factors; defendant’s claimed mitigators insufficient |
| Whether disbarment should be retroactive to the temporary suspension date | Disbarment need not be retroactive; appeals delay reinstatement eligibility is appropriate | Retroactivity would avoid extending time before eligibility for reinstatement unfairly | Court: declined retroactivity; disbarment effective 10 days after entry per applicable Rule 9 |
Key Cases Cited
- Mabry v. Board of Professional Responsibility, 458 S.W.3d 900 (Tenn. 2014) (Supreme Court’s supervisory role over attorney discipline)
- Walwyn v. Board of Professional Responsibility, 481 S.W.3d 151 (Tenn. 2015) (standard of review for disciplinary decisions and Rule 9 guidance)
- Maddux v. Board of Professional Responsibility, 148 S.W.3d 37 (Tenn. 2004) (adoption and use of ABA Standards in Tennessee discipline decisions)
- Lockett v. Board of Professional Responsibility, 380 S.W.3d 19 (Tenn. 2012) (ABA Standards as guideposts and discussion of sanctions consistency)
- Bonnington v. Board of Professional Responsibility, 762 S.W.2d 568 (Tenn. 1988) (disbarment appropriate for knowing, repeated deprivation of client funds)