M. Josiah HOOVER, III v. BOARD OF PROFESSIONAL RESPONSIBILITY OF the SUPREME COURT of Tennessee.
Supreme Court of Tennessee, at Knoxville.
Nov. 16, 2012.
Sept. 5, 2012 Session.
Sandy Garrett, Senior Litigation Counsel, for the appellee, Board of Professional Responsibility of the Supreme Court of Tennessee.
GARY R. WADE, C.J., delivered the opinion of the Court, in which JANICE M. HOLDER, CORNELIA A. CLARK, WILLIAM C. KOCH, JR., and SHARON G. LEE, JJ., joined.
This is an appeal from a judgment affirming the disbarment of an attorney. After considering evidence presented incident to five complaints against the attorney, a hearing panel designated by the Board of Professional Responsibility concluded that disbarment was warranted. On appeal, the trial court affirmed. In this appeal, the attorney has raised the following issues for review: (1) whether the panel erred by denying his motion to continue the hearing; (2) whether the panel erred by considering the attorney‘s conduct in a case based upon a complaint by another attorney who had no involvement in the case; (3) whether the evidence supports the panel‘s findings; (4) whether disbarment is an appropriate punishment; and (5) whether the trial court erred by denying the attorney‘s post-judgment motion to supplement the record. We affirm the judgment.
I. Facts and Procedural Background
On July 22, 2010, the Board of Professional Responsibility (“BPR“) filed a petition for discipline against M. Josiah Hoover, III, who has been licensed to practice law in this state since 1981. The petition contained allegations of five instances of misconduct by the following complainants: Norman Whitton, Ronald and Deborah Titus, and Wayne LeQuire, all of whom were former clients of Hoover, and attorney Roy Neuenschwander. After Hoover responded to the petition, a hearing panel (“Panel“) scheduled the matter to be heard on December 8, 2010.
Two days before the hearing, Hoover filed a motion to continue, contending that both he and the BPR had served discovery requests less than thirty days prior to the hearing and that the time for responses would not expire until after the hearing date. Because the BPR had subpoenaed several witnesses and was prepared to proceed without responses to its discovery requests, it opposed the motion. The Panel denied the request for a continuance and proceeded with the hearing as scheduled.1 During the hearing the parties adduced the following evidence concerning the complaints against Hoover.
According to Hoover‘s testimony and court records presented by the BPR, the first complainant, Norman Whitton, hired him in January of 2007 to file a proof of claim in the bankruptcy proceeding of a judgment debtor. Whitton paid Hoover $1000 for his representation, and Hoover, without ascertaining the status of the bankruptcy beforehand, filed a proof of claim. Afterward, Whitton discovered that the debtor had been discharged from bankruptcy a month before the claim was filed. When he informed Hoover of the discharge and asked for a refund of the advance fee, Hoover refused to return the $1000. Proceeding pro se, Whitton filed suit against Hoover in the General Sessions Court for Loudon County, alleging legal malpractice and breach of contract. He obtained a $1000 judgment. When Hoover appealed, the circuit court affirmed the judgment, finding that the contract was unconscionable. On further appeal, the Court of Appeals concluded that the contract did not qualify as unconscion-
Ronald and Deborah Titus employed Hoover to file a suit for breach of warranty in the Circuit Court for Blount County. Hoover admitted that when the court granted summary judgment denying recovery, he filed a notice of appeal but failed to follow up with a timely brief. On January 11, 2008, the Court of Appeals ordered Hoover to either file a brief within ten days or show cause why the appeal should not be dismissed. Upon request, the Court of Appeals granted Hoover an extension of time for filing until February 25, 2008. Ten days before the due date, Hoover wrote a letter to the Tituses, informing them that he would “have the brief written on or before February 28, 2008.” Hoover did not file the required appellate brief until February 29, 2008, at which time he also filed a motion asking the Court of Appeals to accept a late transcript submitted contemporaneously with the brief. On March 12, 2008, the Court of Appeals denied the motion and dismissed the appeal for failure to file a timely brief and failure to comply with the previous orders. Hoover filed a petition for rehearing on April 14, 2008, which was denied as untimely. Deborah Titus testified that she and her husband, who had paid Hoover over $13,000 in attorney‘s fees, learned from the Appellate Court Clerk‘s Office rather than Hoover that their appeal had been dismissed.
Wayne LeQuire testified that he retained Hoover in September of 2008 to represent him in a divorce. LeQuire‘s wife had initiated the proceedings. Because Hoover emphasized that an answer to the divorce complaint had to be filed by Monday, September 15, 2008, he informed LeQuire that he would be required to arrange a consultation over the weekend before the deadline, for which he “was going to charge ... a little extra.” LeQuire met with Hoover over that weekend and paid him $3500; however, when he attempted to contact Hoover by telephone on September 15th, he was unsuccessful. Although Hoover had assured LeQuire that he would file his answer on September 15th, he did not do so until two days later.
Following the filing of the answer, Hoover scheduled a discovery deposition of LeQuire‘s wife and arranged for a meeting with LeQuire in order to properly prepare. LeQuire averred that despite repeated attempts, he was unable to make contact with Hoover until the day before the scheduled deposition. At that time, Hoover told LeQuire to meet him on the following morning. When LeQuire telephoned Hoover the next morning, he was again unable to make contact. Hoover returned the call at approximately 10:30 a.m. and instructed LeQuire to meet him at noon—one hour before the 1:00 p.m. deposition—in the parking lot of the building where the deposition was to be taken. LeQuire arrived at the appropriate time. Hoover did not arrive until approximately 1:20 p.m. Because Hoover had nothing but a pen and notepad, LeQuire was required to provide Hoover with materials he kept in his own case file.
Because of the lack of preparation, LeQuire informed Hoover that he was uncomfortable with going forward with the deposition at that time. Hoover, however, persuaded him to proceed. In consequence, the deposition went “as bad as one can possibly go,” according to LeQuire, who claimed that Hoover posed a number of questions that did not make sense in the context of the case. Eventually, LeQuire,
Attorney Roy Neuenschwander complained about the conduct of Hoover in Edwards v. Powers, No. 2:00-0775, 2003 WL 25674812 (S.D.W.Va. June 5, 2003) and in Hoover v. Disney, No. L-16572 (Cir.Ct. May 26, 2010). Hoover brought the Edwards case in the United States District Court for the Southern District of West Virginia, asserting claims for injuries suffered by a deceased prisoner and on behalf of his surviving spouse as a result of civil rights violations. In an order issued on June 5, 2003, the district court enumerated twelve instances of misconduct by Hoover as a result of his failure to comply with court orders, various provisions of the Federal Rules of Civil Procedure, and the local rules of the district. Edwards, 2003 WL 25674812, at *1-3. Among other things, the district court found that Hoover had neglected to make several required discovery disclosures, had failed to comply with multiple scheduling deadlines, had repeatedly filed untimely responses, and had filed a “frivolous and vexatious” motion for sanctions against opposing counsel. In addition, after being cautioned that any further violation of a court order would result in sanctions or criminal contempt, Hoover violated an order requiring him to provide opposing counsel certain documents by a specified time. Id. The district court further made the following observation:
The court repeatedly has warned [Hoover] that he would be personally sanctioned if he continued to fail to comply with the discovery requests and orders of this court. Accordingly, the court FINDS that it has given [Hoover] more than sufficient notice of his alleged misconduct and the consequences of that misconduct. As stated in the show cause hearing, the court FINDS that Hoover has repeatedly violated the orders of this court, the local rules, and the Federal Rules of Civil Procedure. Although Mr. Hoover proffers that he did not “intend to hinder or delay” litigation and that he has “done the best [he] could” in this complex case, the court FINDS that these excuses are not credible and that Mr. Hoover‘s numerous violations of the rules were in fact made in bad faith and with the intent to delay.
Based on these findings, the district court imposed a monetary sanction in the amount of $12,649.58, as reasonable attorney‘s fees incurred by the opposing party as a result of Hoover‘s improper conduct. Id. Noting the “flagrant” nature of the conduct, the district court also ordered that Hoover be fined $1000 per week for every week after the payment deadline, if the amount had not been paid in full. Id. Further, citing Hoover‘s “absolute disregard for the practices and procedures of [the] court,” the district court ordered that his pro hac vice status be revoked and that “he never again be allowed to practice before the United States District Court for the Southern District of West Virginia following the conclusion of matters in [the Edwards case].” Id.
The State of West Virginia successfully petitioned for the domestication of the judgment in the Chancery Court for Knox County. Following an unsuccessful motion to alter or amend the judgment of the Chancery Court, Hoover attempted to appeal. Because the notice of appeal had not been timely filed, the Court of Appeals granted a motion to dismiss by the State of West Virginia. As of the date of the hearing before the Panel, Hoover owed a bal-
Attorney Neuenschwander also alerted the BPR to Hoover‘s conduct in Hoover v. Disney, a civil action that Hoover commenced pro se in the Circuit Court for Blount County. In that case, Hoover asserted several claims based on a transaction in which he purportedly purchased three horses from Tim Disney, who was represented by Neuenschwander. Hoover sought $10,000,000 in punitive damages. In April of 2010, the circuit court granted summary judgment in favor of Disney and, acting sua sponte, notified Hoover of its intent to impose sanctions pursuant to
In addition, the Panel considered Hoover‘s prior disciplinary record, which included the following: (1) a January 10, 1997 public censure for failure to adequately communicate with clients and the BPR; (2) a February 10, 1997 private informal admonition for failure to adequately communicate with a client; (3) a May 7, 1998 private informal admonition for failure to adequately communicate with a client and the BPR; (4) an October 1, 1999 private informal admonition for trust account overdrafts; (5) an August 6, 2003 private reprimand for “ill-advisedly form[ing] a personal relationship with a woman who came before him in his capacity as a substitute judicial commissioner under the General Sessions judges of Knox County“; (6) a February 23, 2006 public censure for failure to timely respond to inquires from the BPR; (7) a thirty-day suspension from the practice of law in 2008 for failure to communicate with a client, failure to timely provide the client with her case file, and failure to timely provide the client with the proceeds from the sale of her residence; and (8) a May 28, 2010 private informal admonition for creating a conflict of interest with a client by “failing to communicate with co-counsel, against the specific direction of [the] client.”
In a judgment filed on December 17, 2010, the Panel sustained each of the complaints against Hoover. First, the Panel ruled that by charging Whitton an unreasonably high fee and by failing to satisfy Whitton‘s judgment, Hoover violated Tennessee Supreme Court Rule 8, Rules of Professional Conduct (“RPC“) 1.5(a) and 8.4(a) and (g). Second, the Panel found that Hoover failed to ade-
In assessing the appropriate level of discipline for these infractions, the Panel applied the following aggravating factors: (1) substantial experience in the practice of law; (2) the commission of multiple offenses in violation of numerous disciplinary rules; (3) a pattern of misconduct and total disregard for procedural and ethical rules, as well as the rights of clients; (4) a failure to acknowledge wrongdoing; (5) dishonest and selfish motives regarding the purported need to maintain a law practice to generate funds to satisfy financial obligations, despite having consistently disregarded such obligations in the past; and (6) incompetence causing substantial harm to clients and interfering with the administration of justice. The Panel found no mitigating factors, and concluded that Hoover should be disbarred from the practice of law.
On February 14, 2011, Hoover filed a petition for writ of certiorari in the Chancery Court for Knox County seeking review of the Panel‘s ruling. See
II. Scope of Review
The Supreme Court, as the source of authority of the Board of Professional Responsibility and all of its functions, has the ultimate disciplinary authority pertaining to the licensure of attorneys. Rayburn v. Bd. of Prof-‘l Responsibility, 300 S.W.3d 654, 660 (Tenn.2009); Hughes v. Bd. of Prof-‘l Responsibility, 259 S.W.3d 631, 640 (Tenn.2008). Absent allegations of irregularities in the procedure before the hearing panel, the trial court‘s review of the decision by the hearing panel “shall be on the transcript of the evidence before the hearing panel and its findings and
(1) in violation of constitutional or statutory provisions; (2) in excess of the panel‘s jurisdiction; (3) made upon unlawful procedure; (4) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion; or (5) unsupported by evidence which is both substantial and material in the light of the entire record.
In appeals from judgments of the trial courts, this Court reviews attorney disciplinary matters “upon the transcript of the record from the circuit or chancery court, which shall include the transcript of evidence before the hearing panel.”
III. Analysis
In this appeal, Hoover argues (1) that the Panel erred by denying his motion for a continuance; (2) that the Panel erred by considering his conduct in Edwards; (3) that the Panel‘s findings lack sufficient evidentiary support; (4) that disbarment is too severe under these circumstances; and (5) that the trial court erred by denying his post-judgment motion to supplement the record.
A. Motion for Continuance
Hoover‘s first contention is that the Panel erred by denying the motion for a continuance he filed two days before the hearing. He contends that he was entitled to a continuance because he was suffering from a severe infection at the time.
Because the decision to grant a motion for a continuance is discretionary, our review is under an abuse of discretion standard. Hunter v. Ura, 163 S.W.3d 686, 709-10 (Tenn.2005); Blake v. Plus Mark, Inc., 952 S.W.2d 413, 415 (Tenn.1997). A hearing panel abuses its discretion by “(1) applying an incorrect legal standard, (2) reaching an illogical or unreasonable decision, or (3) basing its decision on a clearly erroneous assessment of the evidence.” Lee Med., Inc. v. Beecher, 312 S.W.3d 515, 524 (Tenn.2010). Moreover, the ruling on a motion for a continuance will not be disturbed on appeal absent a showing of prejudice to the party that sought the continuance. Blake, 952 S.W.2d at 415.
The record demonstrates that the hearing before the Panel had been scheduled several months in advance. Hoover filed his motion for a continuance two days before the hearing. By that point, the BPR had arranged for its witnesses to testify on the scheduled date, and it did not insist upon responses to its outstand-
B. Consideration of Edwards v. Powers
We next address Hoover‘s contention that the Panel erred by allowing the BPR to present evidence related to his conduct in Edwards, in which the United States District Court for the Southern District of West Virginia sanctioned Hoover for a variety of misconduct. See 2003 WL 25674812, at *1-4. Hoover asserts that the Panel should not have considered his conduct in Edwards because it was reported by attorney Neuenschwander, who had no involvement in that case. Hoover also alleges that Neuenschwander submitted his complaint to the BPR in an effort to have Hoover disqualified from representing Neuenschwander‘s ex-wife in an alimony dispute.
Supreme Court Rule 8, RPC 8.3 provides that “[a] lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer‘s honesty, trustworthiness, or fitness as a lawyer in other respects, shall inform the Disciplinary Counsel of the [BPR].” The district court in Edwards enumerated twelve instances of misconduct by Hoover, which resulted in monetary sanctions that remain unpaid as well as a permanent revocation of his pro hac vice status. See 2003 WL 25674812, at *1-4. As the Panel determined, this conduct—which included failure to comply with multiple court orders and procedural rules—violated multiple Rules of Professional Conduct, including RPC 1.3, which provides that “[a] lawyer shall act with reasonable diligence and promptness in representing a client,” and RPC 8.4(d), which defines professional misconduct, in relevant part, as engaging “in conduct that is prejudicial to the administration of justice.” Clearly, this conduct raised a substantial question as to Hoover‘s “fitness as a lawyer.”
Because RPC 8.3 provides that a lawyer with knowledge of conduct by another lawyer that meets these criteria “shall inform” the BPR, Neuenschwander was not only authorized to report the misconduct in Edwards, he was obligated to do so, irrespective of whether he was involved in the case. See id. As a result, the contention that Neuenschwander‘s lack of involvement in Edwards precluded the Panel from considering Hoover‘s misconduct in that case is without merit.
We likewise reject Hoover‘s claim that consideration of his misconduct in Edwards was improper because Neuenschwander lodged the complaint in an effort to disqualify Hoover from representing his wife in an alimony dispute. The Panel based its findings of misconduct regarding the matters reported by Neuenschwander exclusively on court records and properly concluded that any possible motive for filing his complaint was irrelevant to the determination of whether the misconduct resulted in violations of the Rules of Professional Conduct. See Flowers, 314 S.W.3d at 893 (finding that the
C. Sufficiency of the Evidence
Although Hoover asserts that the evidence presented at the hearing was insufficient to support the findings of the Panel, he does not specify which of the numerous ethical violations are lacking in this regard. In general terms, Hoover disputes the determination that he acted unethically while representing Ronald and Deborah Titus and Wayne LeQuire. According to Hoover, he was unable to comply with the filing requirements in the Tituses’ appeal because a trial transcript had not been prepared by a court reporter. As to his representation of LeQuire, Hoover contends that, contrary to the conclusion of the Panel, his deposition of LeQuire‘s wife was “extremely thorough” and resulted in an expedient settlement of the case.
As noted, the Panel concluded that Hoover‘s representation of the Tituses violated several Rules of Professional Conduct, including RPC 1.3 (“A lawyer shall act with reasonable diligence and promptness in representing a client.“); RPC 1.4(a) (“A lawyer shall ... keep the client reasonably informed about the status of the matter[.]“); RPC 1.4(b) (“A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.“); RPC 3.2 (“A lawyer shall make reasonable efforts to expedite litigation.“); RPC 8.4(a) (“It is professional misconduct to ... violate or attempt to violate the Rules of Professional Conduct ... [.]“); and RPC 8.4(d) (“It is professional misconduct to ... engage in conduct that is prejudicial to the administration of justice[.]“). The Panel further found that, during his representation of LeQuire, Hoover violated RPC 1.4(a) and (b), and RPC 8.4(a) and (d).
We find that the record contains substantial and material evidence which supports the Panel‘s findings. See
As to the LeQuire complaint, Hoover admitted to the Panel that he had initially informed LeQuire that he would submit a filing on his behalf by September 15, 2008, but failed to do so until two days later. LeQuire testified that on multiple occasions, including the week leading up to the deposition, Hoover failed to return his phone calls or otherwise communicate with him about the case. In addition, LeQuire asserted that Hoover failed to meet with him as agreed to prepare for the deposition and that, as a result of Hoover‘s lack of preparation, the deposition went so badly that LeQuire made a settlement offer directly to opposing counsel in excess of what he had initially planned. This evidence furnishes a sound basis for the Panel‘s determination that Hoover violated RPC 1.4(a) and (b) and engaged in professional misconduct as defined in RPC 8.4(a) and (d) during his representation of LeQuire. Hoover‘s allegation that his deposition of LeQuire‘s wife was efficacious and resulted in an expedient settlement amounts to nothing more than a request for this Court to re-weigh the evidence, which our scope of review does not permit. See Sneed v. Bd. of Prof-‘l Responsibility, 301 S.W.3d 603, 612 (Tenn.2010) (“[T]he reviewing court ‘shall not’ substitute its judgment for that of the panel as to the weight of the evidence on questions of fact.” (quoting
In summary, we agree with the trial court that the violations found by the Panel are supported by substantial and material evidence.
D. Propriety of Disbarment
Hoover next argues that disbarment is too harsh a punishment for his misconduct, which he maintains amounts to nothing more than “reasonable mistakes.” He further contends that a more lenient punishment would be consistent with prior attorney discipline cases in this Court.
We rely upon the ABA Standards for Imposing Lawyer Sanctions (“ABA Standards“) as guidelines in evaluating the appropriate type of sanction for attorney misconduct.
In addition, “for the sake of uniformity,” we review the “sanctions imposed in other cases presenting similar circumstances.” Bd. of Prof-‘l Responsibility v. Allison, 284 S.W.3d 316, 327 (Tenn.2009). Disbarment has been deemed appropriate for attorney misconduct involving a pattern of neglect despite prior discipline, as is the case here. See, e.g., Sneed, 301 S.W.3d at 617 (approving disbarment where attorney, among other things, neglected to communicate with clients and exhibited a pattern of unethical conduct despite prior disciplinary action against him).
E. Motion to Supplement the Record
As a final matter, we address Hoover‘s contention that the trial court erred by denying his motion to supplement the record with a transcript of the deposition of LeQuire‘s wife, which, he argues, warranted consideration under
Initially, as the trial court correctly determined, Hoover‘s filing of a notice of appeal divested the trial court of jurisdiction to consider his later motion. Spence v. Allstate Ins. Co., 883 S.W.2d 586, 596 (Tenn.1994) (“[A] trial court has no jurisdiction to consider a Rule 60.02 motion during the pendency of an appeal.“). Furthermore, absent allegations of irregularities in the procedure before the hearing
IV. Conclusion
Based on our review of the record, we find that the Panel did not abuse its discretion by denying Hoover‘s motion for a continuance or by considering his conduct in Edwards. We further conclude that the record supports the findings of the Panel, that disbarment is an appropriate punishment, and that the trial court properly denied Hoover‘s post-judgment motion to supplement the record. Accordingly, we affirm the judgment of the trial court.4 The costs of this appeal are taxed to M. Josiah Hoover, III, and his surety, for which execution may issue if necessary.