567 S.W.3d 700
Tenn.2019Background
- Gerald S. Green, licensed in Tennessee since 1981, faced disciplinary proceedings based on two client complaints (Kizer and McKinney) and failure to comply with Mississippi’s pro hac vice rule while representing a criminal defendant in Mississippi.
- Green has an extensive prior disciplinary history (seventeen prior sanctions, many for communication and neglect).
- Kizer: Green settled a General Sessions matter, later agreed to represent Kizer on appeal for an extra (unpaid) fee; at trial Green called only Kizer and did not present other evidence of alleged defective work by Roto-Rooter—Kizer claimed he expected such proof and was not informed.
- McKinney: After a default judgment in General Sessions, opposing counsel sought to set it aside; Green agreed to appear and did not notify McKinney, who later discovered the judgment had been set aside only when trying to use it.
- Mississippi matter: Green appeared and filed pleadings in a Mississippi criminal case before completing required pro hac vice procedures (and proceeded at trial without local counsel); Mississippi Supreme Court reversed convictions because of Rule 46(b) violations.
- The Hearing Panel found multiple RPC violations (RPC 1.3, 1.4 (twice), 5.5(a), 8.4(a), 8.4(d)), imposed a six-month suspension (30 days active; remainder probation) with conditions including CLE, restitution, and a practice monitor; the Chancery Court affirmed and the Tennessee Supreme Court also affirmed.
Issues
| Issue | Board's (prosecution) Position | Green's Position | Held |
|---|---|---|---|
| Whether Green violated RPC 1.3 (diligence) and RPC 1.4 (communication) in Kizer matter | Green failed to communicate scope/strategy and went to trial without informing client of issues to be addressed | Green argued he advised Kizer and acted diligently; factual dispute | Substantial evidence supported violations of RPC 1.3 and RPC 1.4; Hearing Panel’s factual findings upheld |
| Whether Green violated RPC 1.4 and RPC 8.4(a) in McKinney matter | Green failed to notify client about request to set aside judgment, appeared without client notice, and thus acted improperly | Green claimed he believed judgment was improperly obtained and acted as officer of the court; lacked proof of fraud | Substantial evidence supported violations of RPC 1.4 and RPC 8.4(a) |
| Whether appearing/filing in Mississippi before satisfying Rule 46(b) constituted unauthorized practice (RPC 5.5(a)) and conduct prejudicial to administration of justice (RPC 8.4(d)) | Green appeared and filed pleadings before pro hac vice admission and trial proceeded without local counsel; Mississippi convictions were reversed | Green argued trial court authorized his participation and prosecutor/judge’s misunderstanding mitigates culpability | Substantial evidence supported violations of RPC 5.5(a) and RPC 8.4(d); Mississippi reversal demonstrated prejudice; trial-court/ prosecutor errors were mitigating but not exculpatory |
| Appropriateness of sanction (suspension, practice monitor, conditions) | Suspension justified given pattern of similar misconduct, multiple prior sanctions, and risk to public; practice monitor warranted | Suspension excessive; practice monitor unnecessary; asserted mitigating factors and remorse | Suspension (six months; 30 days active) and probation conditions affirmed: record supports aggravating factors (17 prior sanctions, pattern), mitigating factors considered, and practice monitor justified |
Key Cases Cited
- Sneed v. Bd. of Prof'l Responsibility, 301 S.W.3d 603 (Tenn. 2010) (standard for appellate review of disciplinary findings)
- Maddux v. Bd. of Prof'l Responsibility, 409 S.W.3d 613 (Tenn. 2013) (hearing panel factfinder deference and sanction review)
- Daniel v. Bd. of Prof'l Responsibility, 549 S.W.3d 90 (Tenn. 2018) (standards for reviewing hearing panel decisions)
- Lockett v. Bd. of Prof'l Responsibility, 380 S.W.3d 19 (Tenn. 2012) (ABA Standards and aggravating/mitigating factors guidance)
- Newberry v. State, 145 So. 3d 652 (Miss. 2014) (Mississippi Supreme Court reversing convictions for failure to comply with pro hac vice Rule 46(b))
- In re Hawver, 339 P.3d 573 (Kan. 2014) (attorney misconduct leading to retrial can be prejudicial to administration of justice)