Paul J. Walwyn v. Board of Professional Responsibility Of The Supreme Court of Tennessee
2015 Tenn. LEXIS 935
| Tenn. | 2015Background
- Paul J. Walwyn, a Nashville criminal-defense attorney, faced disciplinary petitions based on his appellate handling of three clients (Lara, Matthews, Hunt) for failing to timely file transcripts/briefs or notices of appeal. Court of Criminal Appeals entered show-cause orders and found Walwyn in contempt, imposing short jail sentences.
- Walwyn admitted in pretrial filings that he had fallen short of his duties under certain RPCs (notably RPCs 1.3, 1.4, 3.2) in two matters, but disputed some alleged violations and denied others.
- The Board introduced the appellate court orders, contempt findings, and Walwyn’s prior disciplinary history; Walwyn presented character witnesses and mitigating evidence (personal/family health issues, office problems).
- The Hearing Panel found multiple violations of the Rules of Professional Conduct across the three matters and imposed a six-month suspension, with 30 days active suspension and five months stayed on probation subject to a practice monitor and CLE requirements.
- The Davidson County Circuit Court affirmed the Hearing Panel by certiorari review; Walwyn appealed to the Tennessee Supreme Court raising (inter alia) claims that the Panel failed to define duties, improperly relied on appellate orders, refused discovery of comparative sanctions, misapplied ABA sanction standards, and that Tennessee’s disciplinary scheme/standard of proof violated due process.
Issues
| Issue | Plaintiff's Argument (Walwyn) | Defendant's Argument (Board) | Held |
|---|---|---|---|
| Whether Panel failed to define ethical duties / improperly relied on Court of Criminal Appeals orders | Panel failed to identify the specific ethical duty before finding violations; duty never "vested" in Lara and Hunt because clients did not direct appeals; reliance on appellate contempt orders was improper | Petitions and hearing findings specified the RPCs violated; Walwyn had ongoing appellate duties (filed notices/made filings) and the Panel independently reviewed the evidence, not bound by appellate orders | Held: Panel adequately defined duties; rules and record show Walwyn had appellate duties; reliance on appellate orders as evidence was permissible and Panel made independent findings |
| Denial of discovery for comparative sanctions | Untimely discovery request for comparative sanctions was necessary for mitigation | Request was filed after discovery deadline; comparative discipline is publicly accessible; no justification for tardiness | Held: Denial was not an abuse of discretion given untimeliness and access to public records |
| Appropriateness of sanction (ABA Standards, knowing conduct, injury, mitigation) | Board failed to prove knowing failure or actual/potential injury; Panel misapplied ABA standards and underweighted mitigation | Record shows foreseeable potential injury to clients and the legal system; prior similar discipline supports applying ABA Standards including 8.2; Panel considered mitigating factors and imposed a lenient sanction | Held: Suspension within ABA framework was appropriate; evidence supported knowing failures and potential injury; mitigating factors were considered and Panel’s sanction was not arbitrary or capricious |
| Constitutionality: standard of proof and other due process challenges | Preponderance standard violates due process; disciplinary process is quasi-criminal and structurally biased (investigative/adjudicative overlap, financial incentives) | Tennessee procedure provides notice, counsel, cross-examination, and appellate review; preponderance standard is permissible; prior Tennessee precedents uphold process; financial incentives and combined functions do not establish bias | Held: Preponderance-of-the-evidence standard satisfies due process; other procedural and structural due process challenges rejected; prior precedent controls |
Key Cases Cited
- Bd. of Prof'l Responsibility v. Cowan, 388 S.W.3d 264 (Tenn. 2012) (Tennessee Supreme Court’s role and review standards in attorney discipline)
- Moncier v. Bd. of Prof'l Responsibility, 406 S.W.3d 139 (Tenn. 2013) (due process and procedural protections in Tennessee disciplinary system)
- Long v. Bd. of Prof'l Responsibility, 435 S.W.3d 174 (Tenn. 2014) (bias and combination of investigatory/adjudicatory functions rejected)
- In re Barach, 540 F.3d 82 (1st Cir. 2008) (preponderance standard in attorney discipline does not violate due process)
- Santosky v. Kramer, 455 U.S. 745 (U.S. 1982) (framework for choosing appropriate standard of proof under due process)
- Sneed v. Bd. of Prof'l Responsibility, 301 S.W.3d 603 (Tenn. 2010) (ABA Standards guide sanctions analysis)
- Benton v. Snyder, 825 S.W.2d 409 (Tenn. 1992) (abuse of discretion standard for pretrial discovery rulings)
- West v. Schofield, 460 S.W.3d 113 (Tenn. 2015) (standards for abuse of discretion review)
- In re Ruffalo, 390 U.S. 544 (U.S. 1968) (disciplinary proceedings implicate due process rights)