Peter M. Napolitano v. Board of Professional Responsibility
535 S.W.3d 481
| Tenn. | 2017Background
- Connelly hired Napolitano in 2005; settlement of $75,000 paid into his trust account in 2007 with an agreement that Connelly receive $40,000 and Napolitano retain $35,000 for fees/expenses.
- Napolitano later sought to keep more due to claimed additional expenses; Connelly refused and filed a Board complaint in 2008 (dismissed in 2010 after Board suggested a smaller payment).
- Connelly sued Napolitano in 2011; during his 2012 deposition Napolitano denied having funds remaining in his trust account and made false statements about prior discipline, bankruptcies, and tax liens.
- Board filed disciplinary Petition (2013) alleging violations of RPC 1.15 (trust-account mishandling), RPC 3.3/4.1 (false testimony), and RPC 8.4 (dishonesty).
- A hearing panel found conversion of client funds and perjured deposition testimony, ordered a five-year suspension (one year active, four years probated), $7,500 restitution to Connelly, public-service hours, and initially barred him from control of his trust account; the circuit court affirmed most sanctions but reversed the lifetime trust-account prohibition.
- Tennessee Supreme Court affirmed suspension and $7,500 restitution, added requirement of a practice monitor during probation, and taxed costs to Napolitano.
Issues
| Issue | Plaintiff's Argument (Napolitano) | Defendant's Argument (Board/Panel/Connelly) | Held |
|---|---|---|---|
| Res judicata — whether the First Complaint dismissal bars the later disciplinary petition | First Complaint dismissal of fee reasonableness precludes relitigation; Panel should be limited to post-dismissal events | The second petition alleged distinct misconduct (trust-account conversion and false deposition testimony) not decided earlier; factual background was admissible | Res judicata does not apply; Panel properly considered prior facts for context |
| Restitution amount and timing ($7,500 ordered) | Panel rewrote parties’ settlement; contractual term conditions $7,500 until license reinstated so Panel exceeded authority | Restitution is disciplinary, independent of settlement terms; Panel may order restitution to compensate client for injury and delays | $7,500 restitution affirmed; Panel authorized to order restitution despite settlement provision and prior Board estimate |
| Implied finding of RPC 8.1 (false statements to disciplinary board) | Panel/court punished Napolitano for uncharged RPC 8.1 violation based on his January 2008 letter | Panel’s findings targeted credibility and violations of RPC 1.15 and 8.4(c); any Board-related falsehoods were treated as aggravating credibility evidence, not as an 8.1 adjudication | No relief — Panel did not impose discipline for RPC 8.1; focus remained on 1.15 and false sworn testimony under 8.4(c) |
| Discipline severity and conditions (disbarment vs. suspension; monitor) | Five-year suspension is excessive and inconsistent with precedent; panel cited wrong ABA Standards and overlooked mitigation | Conversion of client funds, prior similar suspension, and false sworn testimony are serious aggravators warranting significant discipline; disbarment urged | Five-year suspension (one year active, remainder probated) affirmed; disbarment not required; court adds practice monitor during probation and requires restitution, public-service hours, and payment of costs |
Key Cases Cited
- Walwyn v. Bd. of Prof’l Responsibility, 481 S.W.3d 151 (Tenn. 2015) (Supreme Court’s role in regulating lawyer discipline and appeal framework)
- Cowan v. Bd. of Prof’l Responsibility, 388 S.W.3d 264 (Tenn. 2012) (panel factfinding and disciplinary procedures)
- Long v. Bd. of Prof’l Responsibility, 435 S.W.3d 174 (Tenn. 2014) (res judicata elements and standard of review in disciplinary appeals)
- Creech v. Addington, 281 S.W.3d 363 (Tenn. 2009) (doctrine of res judicata/claim preclusion)
- Reguli v. Bd. of Prof’l Responsibility, 489 S.W.3d 408 (Tenn. 2015) (de novo review of legal questions; use of ABA Standards as guideposts)
- Bailey v. Bd. of Prof’l Responsibility, 441 S.W.3d 223 (Tenn. 2014) (discipline uniformity and ABA Standards guidance)
- Bonnington v. Bd. of Prof’l Responsibility, 762 S.W.2d 568 (Tenn. 1988) (suspension for repeated misappropriation; disciplinary precedent)
- Culp v. Bd. of Prof’l Responsibility, 407 S.W.3d 201 (Tenn. 2013) (false swearing by an attorney “strikes at the heart” of the justice system)