Mark D. Talley v. Board of Professional Responsibility
2011 Tenn. LEXIS 971
| Tenn. | 2011Background
- Mark D. Talley, a Memphis lawyer licensed in 1984, faced Board discipline for acts related to Luxor Capital Markets and later for conduct as Allstate Financial's counsel.
- Talley was indicted in 2005 for securities violations, theft, and related offenses; he pled guilty to facilitation of a violation of the Tennessee Securities Act in 2007 and received a suspended sentence and probation.
- The Board pursued disciplinary action alleging violations of Rules 8 and 9, with the hearing panel initially disbarment recommended after findings including admission through a guilty plea and dishonest conduct.
- A separate later proceeding resulted in a second hearing panel (2010) with detailed findings linking Talley’s indictments, guilty plea, and misleading conduct to serious sanctions under ABA Standards § 5.11(b).
- Talley sought judicial review by petition for writ of certiorari; the trial court affirmed, and the Board appealed to the Tennessee Supreme Court.
- Issue in contention: whether Talley’s petition lacked the statutorily required first-writ recitation, and whether such omission deprived jurisdiction or could be waived, and whether disbarment was appropriate.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jurisdiction based on writ petition requirements | Talley argues the petition lacked the first-writ recitation and thus deprivations of jurisdiction. | Board contends Cawood requires strict compliance; Talley’s petition should be dismissed. | Waiver of the recitation allowed; jurisdiction preserved; petition otherwise proper. |
| Effect of omission of first-writ recitation | Recitation omission is a jurisdictional defect requiring dismissal. | Recitation is waivable; not fatal here because petition was the first writ and verified. | Recitation is waivable; not fatal to jurisdiction in this case. |
| Whether disbarment is excessive punishment | Talley contends the offense was a misdemeanor and warrants suspension, not disbarment. | Disbarment justified under ABA Standards given willful fraud, prior discipline, and large investor harm. | Disbarment affirmed. |
| Interpretation of 'serious crime' under ABA Standards | Guilty plea to facilitation of a securities act violation could be non-serious. | Facilitation of a felony, underlying fraud, supports treating as a serious offense for sanction purposes. | Talley's facilitation of a felony qualifies as a 'serious crime' for sanction purposes; sanctions upheld. |
Key Cases Cited
- Flowers v. Board of Prof'l Responsibility, 314 S.W.3d 882 (Tenn. 2010) (affirms review standard for disciplinary judgments)
- Sneed v. Board of Prof'l Responsibility, 301 S.W.3d 603 (Tenn. 2010) (discusses appellate review and standards in disciplinary matters)
- Board of Prof'l Responsibility v. Cawood, 330 S.W.3d 608 (Tenn. 2010) (requires oath/affirmation and first-writ recitation for certiorari petitions)
- Depew v. King’s, Inc., 197 Tenn. 569 (Tenn. 1955) (jurisdictional rule on constitutional verification requirements)
- Crane Enamelware Co. v. Smith, 168 Tenn. 203 (Tenn. 1934) (court cannot waive statutory verification requirements)
- Louisville & Nashville R.R. v. Hammer, 191 Tenn. 700 (Tenn. 1951) (amendment relation back to filings under statutory procedures)