673 S.W.3d 227
Tenn.2023Background
- Waggoner was suspended in 2017 for misappropriating client funds and ordered to reimburse a client; he remained suspended until reinstatement conditions were met.
- While suspended (Aug. 1, 2017–Aug. 2018), Waggoner kept Memphis Legal Group operating: he marketed the firm, ran a direct-mail marketing business, and retained influence over staffing and operations.
- He interviewed, recruited, and hired at least eight contract attorneys to carry on legal work, communicated with attorneys and staff (often via office manager Christi Walker), and used staff as intermediaries with former clients.
- Separately, Waggoner received minor clients’ settlement checks in 2014, deposited them in a firm account, and did not deliver the net proceeds to the court clerk until 2020.
- A Board hearing panel found violations of multiple RPCs (including 5.5(a), 8.4(a), and others) and recommended a four‑year suspension; the trial court affirmed some findings, reversed others, and reduced the suspension to one year.
- The Tennessee Supreme Court affirmed that Waggoner violated RPC 5.5(a), upheld additional misconduct findings not appealed, and imposed a two‑year suspension (eighteen months active), restitution for accrued interest to the minors, twelve additional CLE hours, and a practice monitor during the probated period.
Issues
| Issue | Board's Argument | Waggoner's Argument | Held |
|---|---|---|---|
| Whether Waggoner violated RPC 5.5(a) by managing/marketing the firm, hiring attorneys, and communicating with staff/clients while suspended | His management, marketing, hiring, and communications amounted to practicing law or assisting others to do so and thus violated RPC 5.5(a) | His actions fell short of practicing law: he did not appear in court or prepare pleadings and used intermediaries to avoid unauthorized practice | Court held he violated RPC 5.5(a); managing/marketing, recruiting/hiring lawyers, and directing staff (even via intermediaries) during suspension constitute unauthorized practice |
| Whether the trial court erred in reducing the hearing panel’s four‑year suspension to one year | The trial court gave too narrow a view of "practice of law" and improperly reduced the sanction; more severe suspension appropriate | The hearing panel’s sanction was excessive; mitigation supports a lesser sanction (e.g., public censure) | Court imposed a two‑year suspension with 18 months active, six months probated with a practice monitor, restitution, CLE, and payment of costs |
| Validity of other misconduct findings (handling of minors’ funds; diligence, communication, safekeeping) | Board: Waggoner mishandled minors’ settlement funds, failed to act diligently, communicate, and safeguard client funds | Waggoner contested some findings but did not appeal many of them | Court affirmed findings as to mishandling funds and violations of RPCs 1.3, 1.4, 1.15, 1.16, and 8.4; ordered restitution of accrued interest |
| Application of aggravating/mitigating factors and ABA Standards to sanction | Aggravating factors and ABA Standards support suspension (Board proposed 6 months–3 years; hearing panel recommended 4 years) | Waggoner urged mitigating factors (cooperation, lack of selfish motive) and argued for leniency | Court applied ABA Standards and five aggravating factors (prior discipline, experience, failure to acknowledge wrongdoing, multiple offenses, dishonest/selfish motive), found no mitigating factors, and set sanction accordingly |
Key Cases Cited
- In re Burson, 909 S.W.2d 768 (Tenn. 1995) (defines "practice of law" as services requiring a lawyer's professional judgment)
- In re Miller, 238 P.3d 227 (Kan. 2010) (suspended lawyer who retained control and hired others to do legal work committed unauthorized practice)
- Green v. Bd. of Pro. Resp., 567 S.W.3d 700 (Tenn. 2019) (suspension affirmed for violations including RPC 5.5(a))
- Flowers v. Bd. of Pro. Resp., 314 S.W.3d 882 (Tenn. 2010) (one‑year suspension for practicing during suspension by filing documents and participating in proceedings)
- Hornbeck v. Bd. of Pro. Resp., 545 S.W.3d 386 (Tenn. 2018) (describing disciplinary purposes: protect public, preserve confidence in profession)
- Talley v. Bd. of Pro. Resp., 358 S.W.3d 185 (Tenn. 2011) (Supreme Court as final arbiter of attorney discipline)