595 S.W.3d 593
Tenn.2020Background
- James A. Dunlap, Jr. (Georgia lawyer) was admitted pro hac vice to represent Tri‑Cities Holdings, LLC in a Tennessee administrative appeal of a denied Certificate of Need (CON) for a methadone clinic while also pursuing related federal ADA/Rehabilitation Act litigation.
- Federal litigation: Dunlap filed Tri‑Cities I (dismissed as not ripe while CON pending), later filed Tri‑Cities II (transferred) and Tri‑Cities III (against the administrative judge). A federal magistrate stayed discovery in Tri‑Cities II pending resolution of the administrative appeal.
- In administrative proceedings before ALJ Kim Summers, Dunlap repeatedly urged the judge to stay the CON appeal awaiting the federal court, but did not disclose the dismissal of Tri‑Cities I or the federal court’s discovery stay in Tri‑Cities II; he attached only partial federal filings and used inflammatory language (e.g., calling the judge a “fixer”).
- Judge Summers revoked Dunlap’s pro hac vice admission for misrepresenting federal‑case status and threatening the tribunal; that revocation was affirmed by state trial and appellate courts. Dunlap later sued in federal court; that suit was dismissed on summary judgment.
- The Board of Professional Responsibility charged Dunlap with multiple RPC violations; a hearing panel found violations of RPCs 3.3, 3.5(a), 8.4(c), and 8.4(d) and recommended a one‑year suspension. The chancery court affirmed; the Tennessee Supreme Court also affirmed.
Issues
| Issue | Plaintiff's Argument (Dunlap) | Defendant's Argument (Board/Court) | Held |
|---|---|---|---|
| Whether Dunlap violated RPC 3.3 / 8.4(c) by failing to disclose material federal‑court developments | Dunlap: the federal dismissal and discovery‑stay were irrelevant or HSDA’s counsel delayed disclosure; he did not intentionally mislead | Board/Court: the dismissal and stay were material; failure to disclose was equivalent to affirmative misrepresentation and dishonest conduct | Held: Violation of RPC 3.3 and 8.4(c) — substantial evidence supports finding of nondisclosure/misrepresentation |
| Whether Dunlap violated RPC 3.5(a) / 8.4(d) by threatening/coercing the administrative judge | Dunlap: statements were zealous advocacy; he was advising the judge of legal exposure under the ADA | Board/Court: language and threats (suing judge, DOJ enforcement, calling her a "fixer") were veiled threats to influence the tribunal and prejudicial to administration of justice | Held: Violation of RPC 3.5(a) and 8.4(d) — conduct properly characterized as coercive and prejudicial |
| Whether filing Tri‑Cities II in Middle District without good‑faith basis warranted discipline | Dunlap: litigating federally was permissible; no misconduct in filing the suit | Board/Court: hearing panel did not base sanctions on the mere filing; misconduct related to nondisclosure and threats | Held: No separate disciplinary finding for filing Tri‑Cities II; issue without merit |
| Whether one‑year suspension was appropriate | Dunlap: suspension disproportionate compared with other cases; no material harm proven | Board/Court: suspension aligns with applicable ABA Standards (6.12, 6.32, 7.2); aggravating factors (experience, multiple offenses, lack of remorse) outweigh mitigation | Held: One‑year suspension affirmed as proportionate and supported by evidence and ABA Standards |
Key Cases Cited
- Hyman v. Bd. of Prof'l Responsibility, 437 S.W.3d 435 (Tenn. 2014) (Supreme Court’s inherent power to regulate the practice of law)
- In re Burson, 909 S.W.2d 768 (Tenn. 1995) (authority for court regulation of bar)
- Green v. Bd. of Prof'l Responsibility, 567 S.W.3d 700 (Tenn. 2019) (importance of upholding integrity of bar and public trust)
- Hughes v. Bd. of Prof'l Responsibility, 259 S.W.3d 631 (Tenn. 2008) (standard for arbitrary or capricious review)
- Garland v. Bd. of Prof'l Responsibility, 536 S.W.3d 811 (Tenn. 2017) (role and authority of the Board)
- Bd. of Prof'l Responsibility v. Daniel, 549 S.W.3d 90 (Tenn. 2018) (use of ABA Standards and range of presumptive sanctions)
- Parrish, Bd. of Prof'l Responsibility v., 556 S.W.3d 153 (Tenn. 2018) (pejorative statements toward judges can violate RPCs)
- Beard v. Bd. of Prof'l Responsibility, 288 S.W.3d 838 (Tenn. 2009) (misrepresentations to a tribunal violate RPCs 3.3 and 8.4(c))
- Sallee v. Bd. of Prof'l Responsibility, 469 S.W.3d 18 (Tenn. 2015) (review standard: substantial and material evidence)
- Maddux v. Bd. of Prof'l Responsibility, 409 S.W.3d 613 (Tenn. 2013) (ABA Standards are guides, not fixed sentences)