IN RE: Paul Julius WALWYN, BPR #018263
Supreme Court of Tennessee, AT NASHVILLE.
Filed August 4, 2017
February 9, 2017 Session
531 S.W.3d 131
William C. Moody, Brentwood, Tennessee, for the appellee, Board of Professional Responsibility of the Supreme Court of Tennessee.
Roger A. Page, J., delivered the opinion of the court, in which Jeffrey S. Bivins, C.J., and Cornelia A. Clark, Sharon G. Lee, and Holly Kirby, JJ., joined.
The Board of Professional Responsibility (“Board“) initiated disciplinary proceedings against attorney Paul Julius Walwyn based on a client‘s complaint of professional misconduct. A hearing panel (“Panel“) determined that Mr. Walwyn had violated the Rules of Professional Conduct (“RPC“) and ultimately entered “Findings of Fact, Conclusions of Law and Amended Judgment of the Hearing Panel” (“Amended Judgment“) imposing a public censure with a practice monitor for one year and six additional hours of continuing legal education (“CLE“) on subjects related to the management of a law practice and/or client communication. Mr. Walwyn did not appeal the Amended Judgment to the trial court. The Board petitioned this Court for an order enforcing the Panel‘s Amended Judgment. Pursuant to
I. Facts and Procedural History
This case arose from Mr. Walwyn‘s representation of Jonathan Gutierrez in a first degree murder trial in 2011. At the time, Mr. Walwyn had been licensed to practice law since 1996 and had been practicing criminal law for fifteen to sixteen years. Following Mr. Gutierrez‘s convictions for first degree murder and four counts of aggravated assault, he was sentenced to life in prison and four consecutive four-year sentences, for a total effective sentence of life plus sixteen years. Mr. Walwyn filed a motion for new trial, which was subsequently denied on September 30, 2011. However, Mr. Walwyn did not file a notice of appeal in Mr. Gutierrez‘s case until May 8, 2015, even though the Tennessee Rules of Appellate Procedure require that a notice of appeal be filed within thirty days.1 The trial court appointed new counsel, Mr. Richard Strong, on June 3, 2015. The Tennessee Court of Criminal Appeals subsequently accepted the late-filed notice of appeal in the interest of justice. See
On September 24, 2015, the Board filed a Petition for Discipline against Mr. Walwyn following a complaint of professional
Mr. Walwyn filed a Motion for New Trial, and I was transported back to court in Davidson County a couple of times until the court denied my request for a new trial. Mr. Walwyn assured me that he would be filing the appeal soon thereafter.
Since that time[,] I have contacted Mr. Walwyn several times via[ ] written correspondence and telephone[] to inquire about the status of my appeal[] and to request copies of my court records. I also had my mother to call Mr. Walwyn[] and meet with him at his office regarding the status of my appeal and obtaining my court records. Each time Mr. Walwyn assured me that everything was okay and that he would be sending me copies of my court records.
I never received any of my court records[,] and, eventually[,] Mr. Walwyn stopped accepting my calls[,] and he has been unable to be reached by my family. Mr. Walwyn also has refused to acknowledge or respond to any of my written correspondences. As of this date[,] it appears that Mr. Walwyn may have completely abandoned me and my case. . . . I have tried repeatedly in every way I know how to find out about the status of my appeal. I still have no idea what the decision is, or if the court has even made a decision yet. Please help me find out what the status of my appeal is[] or require Mr. Walwyn to properly inform me and to forward a copy of my court records to me. Thank you for your time and cooperation in this matter.
Based on this complaint, the Board alleged violations of Tennessee Rules of Professional Conduct 1.1 (Competence), 1.3 (Diligence), 1.4 (Communication), 1.16 (Declining or Terminating Representation), and 8.4(a), (c), and (d) (Misconduct). See
Due to a recorded interview with the television show Gangland and the subsequent admission of that interview at Mr. Gutierrez‘s trial, Mr. Walwyn did not believe he should represent Mr. Gutierrez on appeal in case he needed to testify about the circumstances of the interview for appellate purposes. Mr. Walwyn also explained that he no longer represented clients on appeal and that the appellate issues in this case would be difficult to handle because of the television interview. Therefore, Mr. Walwyn asserted that in 2012 or 2013, he began looking for a good attorney with appellate experience to replace him on appeal. In 2013 or 2014, Mr. Walwyn began talking to attorney Richard Strong, who had left the district public defender‘s office in 2013, about taking the case and eventually decided Mr. Strong was the best attorney to be appointed to represent Mr. Gutierrez. After this decision was made, Mr. Walwyn informed Mr. Gutierrez‘s family that Mr. Strong was willing to represent Mr. Gutierrez on appeal and provided them with Mr. Strong‘s telephone number. Mr. Walwyn explained that during the three-and-a-half-year delay, he also spoke with three or four assistant district attorneys about the matter and that none of them opposed Mr. Walwyn‘s treatment of the appeal.
Mr. Walwyn acknowledged that “it took a long time[.] [I]t took longer than it
Regarding his practice in general, several character witnesses testified that Mr. Walwyn has a good reputation in the legal community.2 Mr. Walwyn explained that he is in court every day and that he is in his office “Monday through Thursday probably two to three hours on average.” He also meets with clients and works in his office on Sundays from 8:30 a.m. until 2:00 p.m. During his representation of Mr. Gutierrez, Mr. Walwyn had a case load of approximately 400 open files. At the time of the hearing, Mr. Walwyn had approximately 250 open case files, 100 of which Mr. Walwyn was merely tracking after a guilty plea or conviction was entered to ensure his clients were complying with post-judgment conditions. Mr. Walwyn conceded that in 2011, he did not calendar deadlines or use a tickler system; instead, he put notations in files. However, currently, his assistant maintains an electronic calendar for his office and checks two calendars on the Davidson County court clerk‘s website. He also utilizes three internal paper calendars in his office. Mr. Walwyn now uses a tickler system to remind him when things need to be filed, and someone in his office looks at active upcoming cases weekly to review and verify dates or information.
Prior to this disciplinary hearing, Mr. Walwyn had been disciplined on five separate occasions. In 2003, he received a private reprimand for failing to file a proposed order for four years. In 2004, he received a public censure for filing a proposed order late in a child support and custody case, filing a notice of appeal in a criminal case five days late, filing an appellate brief sixty days late, and failing to file a timely petition to this Court, resulting in the petition being denied as untimely. In 2006, he received a public censure for failing to timely respond to Disciplinary Counsel. As a condition of his guilty plea, Mr. Walwyn was required to undergo a law practice management evaluation by another attorney; audit the law practice management course at the Nashville School of Law; and complete six additional hours of CLE hours on subjects related to client relations, the management of a law practice, the Rules of Professional Conduct, or disciplinary actions of the Board of Professional Responsibility. In 2006, Mr. Walwyn received a private informal admonition for neglecting to have a default judgment set aside and for failing to provide an affidavit to Disciplinary Counsel. Finally, in December 2015, Mr. Walwyn was suspended from
After considering all of the evidence, the Panel concluded that Mr. Walwyn had violated
Mr. Walwyn did not appeal the decision of the Panel. See
II. Standard of Review
The Tennessee Supreme Court is the source of authority for the Board of Professional Responsibility and its functions. In re Vogel, 482 S.W.3d 520, 530 (Tenn. 2016) (citing Long v. Bd. of Prof‘l Resp., 435 S.W.3d 174, 178 (Tenn. 2014)). “As a part of our duty to regulate the practice of law in this state, we have the ultimate disciplinary responsibility for violations of the rules governing our profession.” Hughes v. Bd. of Prof‘l Resp., 259 S.W.3d 631, 640 (Tenn. 2008) (citing Doe v. Bd. of Prof‘l Resp., 104 S.W.3d 465, 469-70 (Tenn. 2003)). We examine disciplinary judgments pursuant to this Court‘s “inherent power” and “essential and fundamental right” to enforce the rules regulating the practice of law. Vogel, 482 S.W.3d at 530 (internal quotation marks omitted) (quoting Hughes, 259 S.W.3d at 640).
This case is now before us because Mr. Walwyn did not appeal the Panel‘s amended judgment, and the Board seeks enforcement of the proposed punishment. Pursuant to
issue an order advising the Board and the respondent attorney that it proposes to increase or to decrease the punishment. If the Court proposes to increase the punishment, the respondent attorney shall have twenty days from the date of the order to file a brief and request oral argument; if the Court proposes to decrease the punishment, the Board shall have twenty days from the date of the order within which to file a brief and request oral argument. Reply briefs shall be due within twenty days of the filing of the preceding brief. If a party requests oral argument, the Court may grant it. Upon termination of such proceedings as are requested, the Court may modify the judgment of the hearing panel or the settlement in such manner as it deems appropriate.
III. Analysis
The primary issue in this case is whether the punishment imposed by the Panel was appropriate under the specific circumstances of this case and was uniform with other disciplinary decisions in similar circumstances. In his brief and during oral argument, Mr. Walwyn argued that the procedure utilized in this review violated his procedural and substantive due process rights. Therefore, we will first address those assertions.
A. Due Process
Both the United States and Tennessee Constitutions protect the right to due process of law. Section 1 of the Fourteenth Amendment to the United States Constitution provides, “No State shall make or enforce any law which . . . deprive[s] any person of life, liberty, or property, without due process of law . . . .”
1. Procedural Due Process
Mr. Walwyn first argues that his procedural due process rights have been violated because he did not receive adequate notice of the proposed punishment in his case. However, this argument has no merit.
The overarching principle of procedural due process requires “notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950) (citations omitted); see Keisling v. Keisling, 92 S.W.3d 374, 377 (Tenn. 2002) (citations omitted). Or, stated another way, procedural due process ensures that litigants are “given an opportunity to have their legal claims heard at a meaningful time and in a meaningful manner.” Lynch v. City of Jellico, 205 S.W.3d 384, 391 (Tenn. 2006). Mr. Walwyn was given notice of the alleged violations of the Rules of Professional Conduct when the Board filed a petition for discipline. Furthermore,
As such, Mr. Walwyn received adequate notice of his range of possible punishment, and his procedural due process rights were not violated by the procedure this Court used in reviewing and increasing Mr. Walwyn‘s disciplinary sanctions.
2. Substantive Due Process
Mr. Walwyn also argues that this Court‘s review and modification of the Panel‘s decision violates his substantive due process rights. Specifically, Mr. Walwyn argues that the type of review this Court is utilizing in this case, see
Substantive due process, unlike procedural due process, “bars oppressive
With these principles in mind, we conclude that our review of Mr. Walwyn‘s disciplinary sanction in this case does not violate his substantive due process rights. While the practice of law and its regulation are certainly important, it simply does not rise to the same level as those rights that have been identified by state and federal courts as “implicit in the concept of ordered liberty” so as to trigger substantive due process concerns. Palko v. Connecticut, 302 U.S. 319, 325 (1937), overruled on other grounds by Benton v. Maryland, 395 U.S. 784 (1969). Indeed, in Tennessee, the practice of law is a privilege and not a right. Murphy v. Bd. of Prof‘l Resp., 924 S.W.2d 643, 647 (Tenn. 1996).
To the extent that Mr. Walwyn asserts that his right of access to courts has been violated, we disagree. Limiting the review in this proceeding to the singular issue of whether his punishment is appropriate and consistent with the goal of attaining uniformity of punishment throughout the State in similar circumstances does not deprive Mr. Walwyn of access to the courts.
In addition, we are not persuaded that reviewing Mr. Walwyn‘s sanction to ensure uniformity of discipline across the state is “arbitrary[] or conscience[-]shocking.” Collins, 503 U.S. at 128. Therefore, we conclude that the procedure for our review of sanctions as set out in
B. Appropriateness of Punishment
Next, we will address whether the punishment imposed by the Panel was appropriate under the circumstances of Mr. Walwyn‘s case. See
In deciding an appropriate sanction when an attorney is found to have breached the rules governing his or her profession, we are required to review all of the circumstances of the particular case and also, for the sake of uniformity, sanctions imposed in other cases presenting similar circumstances. Bd. of Prof‘l Resp. v. Maddux, 148 S.W.3d 37, 40 (Tenn. 2004). We are also guided in our decision by the American Bar Association‘s Standards for Imposing Lawyer Sanctions, which have been adopted by the Board for disciplinary matters. See id.
Bd. of Prof‘l Resp. v. Allison, 284 S.W.3d 316, 327 (Tenn. 2009) (citing Maddux, 148 S.W.3d at 40); see
Mr. Walwyn asks this Court to approve the Panel‘s judgment—public censure with the conditions that he be supervised by a practice monitor for one year and that he complete six additional hours of CLE on subjects related to the management of a law practice and/or client communication. He asserts that this sanction is appropriate under the circumstances and is in compliance with the ABA standards. However, the Board argues that Mr. Walwyn‘s history of discipline and conduct in this case justifies “a significant suspension in excess of the previous suspension.” We agree with the Board.
1. Circumstances of the Case
We begin the analysis by outlining the duties that Mr. Walwyn violated and the corresponding circumstances supporting the violations. The Panel concluded that Mr. Walwyn had violated Rules 1.1 (Competence), 1.3 (Diligence), 1.4 (Communication), and 8.4(a) and (d) (Misconduct) of the Tennessee Rules of Professional Conduct.
(a) A lawyer shall:
(1) promptly inform the client of any decision or circumstance with respect to which the client‘s informed consent, as defined in
RPC 1.0(e) , is required by these Rules;(2) reasonably consult with the client about the means by which the client‘s objectives are to be accomplished;
(3) keep the client reasonably informed about the status of the matter;
(4) promptly comply with reasonable requests for information; and
(5) consult with the client about any relevant limitation on the lawyer‘s conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law.
(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.
Finally,
It is professional misconduct for a lawyer to:
(a) violate or attempt to violate the Rules of Professional Conduct . . . ; [or]
(d) engage in conduct that is prejudicial to the administration of justice. . . .
2. ABA Standards
Given the above circumstances of the case, we next examine the ABA Standards for Imposing Lawyer Sanctions to determine what the baseline sanction was for the specific circumstances in Mr. Walwyn‘s case. ABA Standards 2.2 through 2.7 list the most common forms of disciplinary sanctions as disbarment, suspension, interim suspension, reprimand (also known as censure or public censure), admonition (also known as a private reprimand), and probation. ABA Standards 2.2-2.7. ABA Standard 4.4 specifically addresses the appropriate sanction when there is a failure to act with reasonable diligence when representing a client. Id. at 4.4. Based on the circumstances of this case, we conclude that Mr. Walwyn‘s behavior of failing to file the delayed notice of appeal for three and a half years squarely fits within ABA Standard 4.42. It states:
4.42 Suspension is generally appropriate when:
(a) a lawyer knowingly fails to perform services for a client and causes injury or potential injury to a client, or
(b) a lawyer engages in a pattern of neglect [which] causes injury or potential injury to a client.
Id. at 4.42 (alteration added). Mr. Walwyn testified that after he missed the initial deadline by mistake, he then waited for years to file the delayed appeal as he periodically searched for an appellate attorney to take his place on appeal. Furthermore, Mr. Gutierrez faced the potential injury of being unable to file a delayed appeal. See infra next paragraph. Therefore, pursuant to the ABA Standards, suspension is the appropriate sanction for this lack of diligence in pursuing a delayed appeal.
ABA Standard 4.5 addresses the appropriate sanction when there is a lack of competence exhibited when representing a client. ABA Standard 4.5. Based on the circumstances of Mr. Walwyn‘s situation, we conclude that ABA Standard 4.53 is the
4.53 Reprimand is generally appropriate when a lawyer:
(a) demonstrates failure to understand relevant legal doctrines or procedures and causes injury or potential injury to a client; or
(b) is negligent in determining whether he or she is competent to handle a legal matter and causes injury or potential injury to a client.
Id. at 4.53. It is clear that Mr. Walwyn negligently missed the original deadline for filing the notice of appeal due to a lack of calendaring deadlines and a very large caseload. Mr. Walwyn then proceeded to wait until years later to file the notice of appeal even after he discovered his mistake. At the hearing, even Mr. Walwyn acknowledged that “it took a long time[.] [I]t took longer than it should[.]” Mr. Walwyn seemed to believe that no matter how late the delayed notice of appeal was filed, it would be granted and there would be no injury to his client. However, that is not always the case.
Finally, ABA Standard 8.2 states, “Suspension is generally appropriate when a lawyer has been reprimanded for the same or similar misconduct and engages in further similar acts of misconduct that cause injury or potential injury to a client, the public, the legal system, or the profession.” ABA Standard 8.2. As previously noted, prior to this disciplinary hearing Mr. Walwyn had been disciplined on five separate occasions. In 2003, he received a private reprimand for failing to file a proposed order for four years. In 2004, he received a public censure for filing a proposed order late in a child support and custody case, filing a notice of appeal in a criminal case five days late, filing an appellate brief sixty days late, and failing to file a timely petition to this Court, resulting in the petition being denied as untimely. In 2006, he received a public censure for failing to timely respond to Disciplinary Counsel. In 2006, Mr. Walwyn received a private informal admonition for neglecting to have a default judgment set aside and for failing to provide an affidavit to Disciplinary Counsel. Finally, in December 2015, Mr. Walwyn was suspended from the practice of law for six months, with thirty days to be served on active suspension and five months to be served on probation, for failing to file a timely notice of appeal in two separate cases, failing to timely file transcripts and appellate briefs in two separate cases, and failing to timely respond to orders of the court. See Walwyn, 481 S.W.3d at 153-160. Therefore, Mr. Walwyn has been disciplined multiple times for habitually missing deadlines in his clients’ cases.
We note that the ABA Standards for Imposing Lawyer Sanctions do not pro-
Based on all of the above information, we conclude that suspension is the appropriate baseline sanction for Mr. Walwyn‘s misconduct. The ABA Standards sets forth the following definition for a suspension:
Suspension is the removal of a lawyer from the practice of law for a specified minimum period of time. Generally, suspension should be for a period of time equal to or greater than six months, but in no event should the time period prior to application for reinstatement be more than three years. Procedures should be established to allow a suspended lawyer to apply for reinstatement, but a lawyer who has been suspended should not be permitted to return to practice until he has completed a reinstatement process demonstrating rehabilitation, compliance with all applicable discipline or disability orders, and fitness to practice law.
ABA Standards 2.3 (emphasis added). Furthermore,
3. Aggravating and Mitigating Circumstances
We now consider whether any of the ABA aggravating or mitigating circumstances apply to this case. Vogel, 482 S.W.3d at 538; see ABA Standards 9.1-9.4. “Aggravation or aggra-3vating circumstances are any considerations or factors that may justify an increase in the degree of discipline to be imposed.” Id. at 9.21. “This Court considers the aggravating and mitigating circumstances enumerated in the ABA standards to be ‘illustrative rather than exclusive.‘” Vogel, 482 S.W.3d at 538 (quoting Lockett v. Bd. of Prof‘l Resp., 380 S.W.3d 19, 28 (Tenn. 2012)).
After considering all of the aggravating factors in ABA Standard 9.22, we agree with the Panel and conclude that the following aggravating circumstances apply: prior disciplinary offenses, a pattern of misconduct, multiple offenses, vulnerability of victim, and substantial experience in the practice of law. After considering all of the mitigating factors in ABA Standard 9.32, we agree with the Panel and conclude that the following apply: absence of a dishonest or selfish motive, personal and emotional problems, full and free disclosure to disciplinary board or cooperative attitude toward proceedings, and character or reputation. See ABA Standard 9.32. We also note that neither party contests the application of these aggravating and mitigating circumstances.
Although we appreciate that Mr. Walwyn exhibits no ill motive in failing to calendar deadlines and that he has now taken steps to correct this problem, we still find Mr. Walwyn‘s pattern of missing deadlines particularly troubling. As stated above, almost all of his prior disciplinary sanctions have been because of missed deadlines or failing to timely respond to orders of the court. While Mr. Walwyn
Based on the above analysis and the application of the listed aggravating and mitigating circumstances, we conclude that the appropriate sanction in this particular circumstance is a one-year suspension from the practice of law, with six months to be served on active suspension and six months to be served on probation with a practice monitor. We also conclude that six additional hours of CLE on subjects related to the management of a law practice and/or client communication are appropriate under the circumstances.
4. Uniformity of Punishment
We must now consider whether this sanction is in uniformity with other sanctions that have been applied in this state. Mr. Walwyn argues that this Court has reserved “suspensions for criminal conduct, false statements and testimony, sexual misconduct with clients, and financial fraud“; therefore, suspension is inappropriate in his case. The Board disagrees and indicates that Mr. Walwyn‘s case is unique from most other cases because he has been “disciplined for the same misconduct so many times.” We agree with the Board.
During the exchange of interrogatories, the Board provided Mr. Walwyn with six comparable cases in which an attorney had been disciplined. They are set out in the Protocol Memorandum as follows:
- Paul J. Walwyn (Davidson County)—December 3, 2015—Suspended for six months, with 30 days active suspension and the remainder on probation. In three separate criminal appeals, Mr. Walwyn failed to timely file transcripts and briefs. In two of those cases, Mr. Walwyn failed to timely file the notice of appeal. Also, Mr. Walwyn failed to adequately communicate with his clients.
- Paul J. Walwyn (Davidson County)—July 22, 2004—Public Censure. In a child support and custody case, Mr. Walwyn neglected the matter and failed to timely submit an order. In a criminal case, Mr. Walwyn filed a notice of appeal late, filed his brief late and failed to file an application for permission to appeal to the Supreme Court.
- John E. Herbison (Montgomery County)—November 20, 2014—Suspended for 18 months, with 60 days active suspension and the remainder on probation. In two cases, Mr. Herbison failed to adequately communicate with his clients. In a third case, he failed to file a notice of appeal in a criminal case and filed an untimely request for a late appeal.
- Christopher P. Westmoreland (Bedford County)—October 15, 2015—Public Censure. In one criminal appeal, Mr. Westmoreland failed to timely file a brief. In another criminal appeal, he failed to file a timely notice of appeal.
- C. LeAnn Smith (Davidson County)—December 27, 2005—Public Censure. Ms. Smith failed to timely file a notice of appeal in a criminal case. An order was then entered allowing her ten days to file the notice of appeal but she failed to do so.
- Angela J. Hopkins (Madison County)—October 19, 2009—Public Censure. Ms. Hopkins failed to file a notice of appeal in a criminal case and failed to seek permission to file a late appeal.
Interestingly, two of Mr. Walwyn‘s prior disciplinary cases are listed as comparable to the present case. Aside from these six examples, Mr. Walwyn indicates that three additional cases are also instructive. See
Of these examples, we find Mr. Walwyn‘s 2015 six-month suspension, Mr. Herbison‘s eighteen-month suspension, see In re: John Edward Herbison, B.P.R. # 12659, No. M2014-02193-SC-BAR-BP (Tenn. Nov. 20, 2014) (Order of Enforcement), and Mr. Parrish‘s one-year suspension the most instructive because they all include the failure to file timely court documents and the failure to properly communicate with a client. Therefore, it is clear from these cases that suspension for a period of six to eighteen months is in uniformity with past cases. Thus, the above-proposed sanction of a one-year suspension is appropriate in this case and uniform with past disciplinary actions.
However, even these cases are not fully analogous with Mr. Walwyn‘s current case because of Mr. Walwyn‘s past disciplinary history for substantially the same conduct. It is because of this past disciplinary history that we conclude that six months of Mr. Walwyn‘s suspension shall be served on active suspension while the remaining six months will be served on probation with a practice monitor. We also impose six additional hours of CLE on subjects related to the management of a law practice and/or client communication.
CONCLUSION
Based on our careful consideration of the entire record “with a view to attaining uniformity of punishment throughout the State and appropriateness of punishment under the circumstances of each particular case,”
ROGER A. PAGE
JUSTICE
Notes
In an appeal as of right to the Supreme Court, Court of Appeals or Court of Criminal Appeals, the notice of appeal required by Rule 3 shall be filed with and received by the clerk of the trial court within 30 days after the date of entry of the judgment appealed from; however, in all criminal cases the “notice of appeal” document is not jurisdictional and the filing of such document may be waived in the interest of justice.