549 S.W.3d 71
Tenn.2018Background
- James Carl Cope, licensed in Tennessee since 1974, pleaded guilty in federal court to one count of insider trading (15 U.S.C. § 78j(b)); he was sentenced to 24 months probation (including 9 months home confinement) and fined $200,000.
- The Tennessee Supreme Court suspended Cope’s law license on October 25, 2016, and referred the matter to the Board of Professional Responsibility to determine final discipline under Tenn. Sup. Ct. R. 9, § 22.3.
- A hearing panel found the ABA Standards’ presumptive sanction to be disbarment (Standard 5.11), found two aggravating factors (dishonest/selfish motive; extensive experience) and four mitigating factors (no prior discipline; cooperation; good character; remorse), and imposed a 25‑month suspension retroactive to October 25, 2016.
- The Board petitioned to enforce the Panel’s order; the Tennessee Supreme Court, reviewing de novo under Tenn. Sup. Ct. R. 9, § 15.4, proposed increasing the punishment as inadequate and invited briefing and oral argument.
- The Court concluded suspension (not disbarment) was appropriate given Cope’s atypical, isolated misconduct, lack of client harm, restitution/disgorgement and mitigation, but ordered the 25‑month suspension to run prospectively from the filing date of the opinion to maintain uniformity with prior cases.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Appropriate final discipline for an attorney convicted of felony insider trading | Board: Disbarment is warranted under ABA Standard 5.11 because insider trading involves fraud/deceit | Cope: Suspension (or lesser) is sufficient given restitution, fines, loss of income, remorse, and exemplary career | Court: Suspension appropriate (not disbarment) given mitigating factors and limited, atypical misconduct, but suspension must be prospective to preserve uniformity |
| Whether the Panel’s retroactive suspension produced uniform punishment | Board: Implicitly supports longer/similar sanctions to prior felony cases | Cope: Retroactive suspension plus criminal penalties already adequately punish him | Court: Retroactive 25‑month suspension would be anomalously short compared with similar felony-discipline cases; make suspension prospective |
| Weight of ABA Standards and comparative cases in determining sanction | Board: ABA Standards’ presumptive disbarment should control absent strong mitigation | Cope: Mitigation and comparative cases justify deviation from disbarment | Court: ABA Standards guide baseline; mitigation can justify departure—here supports suspension rather than disbarment |
| Role of criminal punishment in attorney discipline | Board: Discipline serves independent public-protection purpose beyond criminal penalties | Cope: Criminal penalties already punitive and sufficient | Held: Disciplinary purpose (public protection, confidence in profession) is distinct; criminal penalties do not obviate need for appropriate disciplinary sanction |
Key Cases Cited
- In re Vogel, 482 S.W.3d 520 (Tenn. 2016) (Court’s supervisory role over Board and use of ABA Standards)
- In re Walwyn, 531 S.W.3d 131 (Tenn. 2017) (de novo review of hearing-panel punishment)
- Sallee v. Bd. of Prof'l Responsibility, 469 S.W.3d 18 (Tenn. 2015) (ABA Standards as disciplinary guidelines)
- Bd. of Prof’l Responsibility v. Allison, 284 S.W.3d 316 (Tenn. 2009) (need for reviewing circumstances and prior sanctions for uniformity)
- Maddux v. Bd. of Prof’l Responsibility, 148 S.W.3d 37 (Tenn. 2004) (ABA Standards framing aggravating/mitigating adjustments)
- Lockett v. Bd. of Prof’l Responsibility, 380 S.W.3d 19 (Tenn. 2012) (four‑year suspension in felony-related professional-misconduct context)
- Hughes v. Bd. of Prof’l Responsibility, 259 S.W.3d 631 (Tenn. 2008) (Court’s ultimate disciplinary responsibility)
- Doe v. Bd. of Prof’l Responsibility, 104 S.W.3d 465 (Tenn. 2003) (role of the Court in enforcing professional rules)
- Cowan v. Bd. of Prof’l Responsibility, 388 S.W.3d 264 (Tenn. 2012) (discipline serves public protection beyond criminal sanctions)