*1 Mark D. TALLEY
BOARD OF PROFESSIONAL
RESPONSIBILITY. Tennessee, Supreme Court of at Jackson. April 2011 Session. Oct. *2 Counsel, Spivey, Disciplinary J.
Randall Tennessee, Nashville, appellee, Responsibility. of Professional Board OPINION KOCH, JR., J., delivered WILLIAM C. Court, in which opinion of the CLARK, C.J., GARY R. A. CORNELIA LEE, JJ., WADE, G. and SHARON J., HOLDER, M. joined. JANICE
concurring opinion. separate disciplinary pro- involves appeal
This lawyer Memphis who ceeding against in Court for pleaded guilty the Criminal facilitating the felonious Shelby County to Securities Act. of the Tennessee violation Responsibili- After a Board of Professional that he be ty hearing panel recommended disbarred, petition for lawyer filed a Chancery writ of certiorari in the judicial review Shelby County seeking The trial hearing panel’s decision. the recommendation of court affirmed lawyer hearing appealed and the panel, of Pro- appeal, On the Board this Court. Responsibility asserts that fessional be- lawyer’s should be dismissed certiorari did his for writ of cause required by not contain the recitation (2000). Ann. 27-8-106 For Tenn.Code lawyer pun- asserts that the part, is excessive. We ishment of disbarment lawyer’s defi- have determined that certiorari does not cient for writ of reviewing the prevent the courts from decision. We have also hearing panel’s fully supports determined that the record findings and that dis- hearing panel’s lawyer is not an excessive barring cir- light in of the facts and punishment of this case. cumstances I. Tennessee, Jones, lawyer practicing D. is a Memphis, for Mark I.
Ted law Memphis who was licensed Talley. Mark D. appellant, all In he was one of a number income from sources until restitution ... full.” jury paid persons grand indicted federal District of the Northern Florida On November en- this Court *3 relating ponzi to a scheme involv- conduct tered an of regard order enforcement with (“Lux- ing Capital Group Luxor Markets to the matters included Mr. or”). a corporation, Luxor was Tennessee plea. conditional guilty sus- order Talley and Mr. had been retained Lux- pended Talley Mr. from the of law practice agent.” Approxi- or to act as an “escrow for years plus five an suspension indefinite $1,000,000 mately money of investors’ $170,000. until repaid he Thorntons passed through Mr. account trust expressly required Talley The order Mr. to allegedly in manner pay and was disbursed a the Thorntons in- gross “10% of his come representations with the in- from all sources” until all inconsistent to the restitu- paid. tion had been The order also direct- vestors. Talley ed Mr. pay to costs of Talley acquitted charges, Mr. was of all disciplinary proceeding. six-week following a trial in the United disciplinary complaint against While the for States District Court the Northern Mr. Talley stemming from on his activities However, shortly District of Florida. af- Talley behalf of Luxor was pending, Mr. trial, a lawyer representing ter the an employed attorney was as with Allstate receiver one of the affiliat- corporations of (“Allstate Corporation Financial Finan- complaint against ed with Luxor filed a cial”). Talley Mr. described Fi- Allstate with Talley Mr. the Board of Professional being nancial in the “factoring business” (“Board”) Responsibility regarding Mr. part strategy was “covered call Talley’s conduct as “escrow Luxor’s joint August 25, venture.” On less 29, 2001, agent.” disciplinary October On than one month after the of his entry petition discipline alleg- counsel filed for guilty plea conditional with Board ing Talley that Mr. had violated Tenn. Luxor, stemming from his activities with 8, DR-102(A)(l)-(6), Sup.Ct. R. DR 2- Talley Mr. indicted a Shelby was Coun- DR-102(A)(7) 110(B)(2), (8), -102(B)(1), & ty grand jury for his em- activities as an DR-9-102(A) (B) & in the course of ployee of Allstate Financial. The indict- his work with Luxor. that Mr. alleged Talley guilty ment of conspiracy one count to of commit theft Talley and, July Mr. retained counsel on $60,000, property over the value of four plea entered a guilty conditional counts of viola- Tennessee Securities Act he which admitted that he had violated tions, - over property six counts theft of 8, DR-1-102(A)(1), $60,000, the value of two of theft of counts 102(A)(6) 9-102(A) (B). DR & $10,000, one property over value of Talley to be agreed suspended from the property count of theft over the value law years plus “for five an $1,000.00. Talley’s attorney informed (until suspension indefinite restitution is Mr. Talley been indict- Board had made) all except with time suspended ed. (180 days) beginning [ six months Janu- ] with
ary all time to be remaining 19, 2005, disciplinary On December probation.” served on He to agreed also discipline counsel filed repay Mr. and Mrs. Michael Thornton against on based on his work $170,000 by making “monthly Citing the payments behalf of Allstate Financial. ... equal gross in an amount to 10% his charges against in the indictments hearing panel to the Talley ing matter alleged that Mr.
Talley, the day, R. RPC 1.15 further On the same proceedings. had violated 8.4(a) (d). While Mr. hearing appointed and RPC chair new Board’s — January on to hearing an answer panel and directed respond failed apparently he hearing and to its report conduct another requests attempts discovery repeated days findings following within fifteen hearing. for a set the hearing. con- hearing panels Board’s One of the conducted second hearing by telephone May ducted a *4 Talley 2010. hearing January Mr. on May filed on an order 2007. In hearing. panel testified at this allega- found that hearing panel its and recommendations on Janu- findings discipline be for would tions in the ary It found: Tal- because of Mr. as confessed” “take[n] (1) Talley Mr. had acted as coun- that discovery to the ley’s respond failure to Financial; sel for Allstate to requests efforts set the and (2) hearing Talley a concluded other hearing. principals that Mr. and Talley that had violated “DR 8.4 and Mr. of Financial had been in- Allstate finding aggravating DR After two 1.15.” August dicted on no mitigating circum- circumstances1 theft of conspiracy property to commit stances, hearing panel determined that $60,000, device, ... employing over “a In accor- Talley Mr. should be disbarred. to defraud scheme or artifice investors 1.3, 9,R. Mr. dance with offer, pur- in with the sale connection or a for writ of certiorari Talley filed security, chase to wit: invest- Chancery Shelby County in in Allstate Finan- ments/reinvestments of the judicial hearing pan- review seeking cial in violation of Corporation, T.C.A. el’s decision. 48-2-121; ...”, unlawfully or [and] 12, 2007, pro- while the On December knowingly, directly indirectly, engag- or de- ceedings hearing panel’s to review the act, ing practice, or “in an course Mr. pending, Talley pleaded cision were or operates oper- business which would Shelby guilty in the Criminal Court for upon ate as a fraud or deceit investors “facilitation, misdemeanor of County to a offer, sale, pur- with the connection wit, to of securities ac- violation law” and security, to chase of a wit: invest- cepted sentence of eleven suspended in Allstate Finan- ments/reinvestments days. twenty-nine By agree- months and cial in violation Corporation, of T.C.A. ment, placed court sentencing Mr. Tal- §48-2-121...”; ley for eleven months and probation (3) lawyer Talley’s that Mr. had re- twenty-nine days, fined him $500 ported to this indictment the Board costs, him to one perform and ordered Responsibility; of Professional community work. hundred hours service (4) Talley pleaded Mr. had guilty that On the trial in which July court to facilitation of a violation of the Mr. Talley’s petition judicial re- seeking Act; Securities Tennessee view hearing panel’s May (5) by pleading guilty to facili- vacating order filed an pending order criminal hearing panel’s judgment remand- tation of a violation of (1) (2) aggravating "previous suspen- 1. The two were duct" and Mr. circumstances history Talley’s "prior Mr. con- sions of law.” unethical from Act, Tal- litiga- Securities order avoid the ‘hazards of Tennessee “criminally ley being “admitted” tion’ that he did not believe of a responsible facilitation he anything had done criminal- furnishing] ... felony [by substan- ly wrong in the before tial assistance the commission [p]anel;” and felony;” (12)that facilitated fraud (6) felony Talley pleaded that the that cost mil- investors five six dollars, in-
guilty facilitating “specifically lion a loss that was reason- device, employment of a ably volved foreseeable at time of artifice scheme or to defraud inves- misconduct. offer, with tors connection fact, Based on these findings purchase security”; sale or concluded that Mr. plea, return for this guilty guilty December plea constituted had received a suspend- an admission of violations of Tenn. of eleven
ed sentence months and (3)-(6).2 8, DR-1-102(A)(1), Thus, *5 days been twenty-nine and had (1) hearing panel Talley found that Mr. probation placed on for the dura- rule, (2) disciplinary engaged violated a in sentence; suspended tion of the fraud, deceit, involving dishonesty, conduct (8) (3) Talley that Mr. had or- misrepresentation, also been or in engaged con- a fine costs pay plus prejudicial
dered to duct $500 that to the administra- (4) perform and had been ordered to in justice, engaged tion of and conduct community one hundred hours of adversely that reflects on his fitness to work; service Tenn. Sup.Ct. law. R. DR-1- (3)-(6). 102(A)(1), (9) Talley that Mr. had filed a condi- plea tional with guilty the Board to the Turning appropriate punishment, July involving 2005 “conduct hearing panel determined that the wrongful nature similar in to the Mr. Talley pleaded guilty crime- to which petition conduct” out in the set purpose was a “serious crime” for the filed on discipline December the American Bar Association Standards 2005; (“ABA Lawyer for Imposing Sanctions (10) Talley Standards”). any that Mr. “failed to admit hearing panel The deter-
guilt testimony in before [hear- Mr. falls with- mined that conduct little, 5.11(b) if ing] [p]anel and Standards, showed in Section of the ABA any, with his regard remorse aggrava- for which even disbarment absent conduct;” ting generally appropri- circumstances is (11) Talley hearing panel he ate. found the that Mr. stated that also
pleaded presence in both “guilty aggravating instances of -three factors.3 1, 2003, 2. Disciplinary Prior to March the effective Rules of the of Profes- date Code Conduct, Responsibility the current Professional sional that were effect at the Rules of Responsibility governed Code of time. Professional professional lawyers. conduct of See (1) Responsibility, aggravating Henderson v. Board 3. These factors included: Mr. of Prof'l (Tenn.2003). (2) Talley experienced lawyer; 408 n. 2 Mr. Tal- S.W.3d is an arising Talley ley disciplinary Mr. prior conduct for which was' indicted had a offense out pled February Talley guilty pattern, and between factual occurred similar and result, little, willing- May any, 1995 and hear had if As shown remorse ing panel recognized regard specifically was his with that it ness to admit misconduct disciplinary to review hearing panel upon judgments Accordingly, unanimous- against lawyers, we do so in proceedings should that Mr. be ly recommended pow inherent light of our fundamental and disbarred. administer, and enforce promulgate, er to 16, 2010, Talley filed On March licensing pro rules governing in the for writ certiorari Chan- lawyers practicing fessional conduct of ju- County, seeking cery Shelby Tennessee. v. Board Sneed Re of Prof'l hearing panel’s Janu- review dicial 612; at see sponsibility, S.W.3d also Talley supported 2010 order. Mr. ary Rayburn Responsibility, Board of Prof'l with an affirmation but failed (Tenn.2009). indicating include recitation application was his an attorney Disciplinary first When or the petition, judicial In his insisted seeks review of a hearing writ. Counsel decision, pleaded crime to he had panel’s that the which the trial court’s “review was not “serious crime” on the guilty transcript shall be evidence purpose findings ABA Standards before the and its 9, § was punishment. judgment.” an excessive disbarment 1.3. However, the trial court filed a August irregularities On allegations “[i]f meticulously rejecting detailed order procedure in the before the are made, Talley’s argument facilitating the vio- the trial court is authorized take Act proof lation of the Tennessee Securities may necessary such additional be affirming not a “serious such allegations.” Sup. offense” to resolve *6 attorney of the findings and recommendations hear- R. 1.3. If either the Ct. or ing panel. timely Mr. notice Disciplinary appeals filed the Counsel this Court, appeal. of our review in a appeal of an disci- is plinary upon transcript matter based the The Board of Responsibility Professional the record trial court of before the and a subject asserts that this Court lacks mat- transcript of before the hearing evidence jurisdiction Talley’s appeal. ter over if panel any and before the trial court Talley disagrees. also ar- produced. Sup. evidence has been gues pun- that disbarment an excessive is 9, §R. 1.3. Ct. pleaded ishment because the offense he guilty to is a misdemeanor and not a court, felo- Like the trial we ny. punish- The Board insists affirm the may decision of the or imposed ment is with the ABA consistent proceed- remand -case for further is Standards and not excessive. modify or ings. may [We] reverse petitioner if the rights
decision of the II. prejudiced pan- have been because inferences, findings, This Court is the final and ulti el’s conclusions or (1) mate are: of propriety profes arbiter decisions in violation constitu- (2) lawyers practicing statutory sional conduct of all or provisions; tional ex- (3) panel’s jurisdiction; Tennessee. v. Board cess of the Flowers made Prof'l (Tenn. (4) Responsibility, upon procedure; arbitrary 314 S.W.3d 891 unlawful 2010); capricious by also v. see Sneed Board or or characterized abuse of Prof'l (Tenn. Responsibility, clearly 301 612 of discretion or unwarranted S.W.3d ex- 2010). discretion; Accordingly, unsupported when we are ercise of or called prior
either the nal offense. violation or current crimi-
191 by is both mation nor recitation evidence which substantial that it was the first light writ, and material in the of the entire application for the we concluded that record. deprived these omissions trial court of subject jurisdiction matter 1.3; required Tenn. Sup.Ct. R. see also Flowers this appeal. dismiss the Board’s v. Board 314 Responsibility, Prof'l 891; Cawood, Responsibility S.W.3d at v. Board v. Sneed Board Prof'l of Prof'l at Responsibility, 301 S.W.3d 330 at applied S.W.3d 609. We have since reasoning this to petitions by attor III. neys seeking to review a hearing panel’s year, seeking Last a proceeding decision that did not contain an oath or judicial a hearing panel’s review of deci or a petition affirmation recitation sion, petition this Court held that for See, application was the first the writ. required writ of Sup. certiorari Board, v. e.g., Responsibili Penn of Prof'l 9, § be supported by Ct. 1.3 “must oath (Tenn.2011); ty, 2011 1542989 WL Nebel v. or affirmation state that it is the first Responsibility, Board 2011 WL Prof'l application for writ.” Board Prof'l (Tenn.2011).5 Cawood, Responsibility v. 330 S.W.3d (Tenn.2010).4 We “a also held that requires Board asserts that Cawood jurisdiction court over subject lacks us to Talley’s appeal. dismiss Mr. Howev statutory petition certiorari er, petition significant differs supported oath or affirmation.” ly from fatally we found defec Cawood, Board 'l Responsibility v. Cawood, of Prof tive in Cawood. (citing at Depew King’s, S.W.3d neither an oath contained or affirmation Inc., 569, 570-72, 197 Tenn. nor a that it appli recitation was the first (1955)). 728-29 cation petition, writ. Mr. however, Because the filed in required Board contains the affirmat Cawood neither an oath affir contained ion6 but does not contain recitation *7 case, May 4.On present this Court amended Tenn. the issue in current 9, Sup.Ct. expressly § R. to post-amendment 1.3 include Sup.Ct. version of Tenn. R. require 9, oath or and recitation affirmation § 1.3. recognized Accordingly, ments amended, in Cawood. 9, Sup.Ct. requires § Tenn. R. 1.3 (oath 5. We have also held that verification petition that under this be "[a] section shall affirmation) requirements or and recitation made or under oath affirmation and shall (statement petition application is the first application state that it first is the writ) applicable appeals for are to requirement writ.” The oath affirmation or by criminal cases writ of certiorari to the requirement mirrors the in Tenn. Ann. Code L.W., Appeals. Court Criminal State v. See (2000) § petition that a 27-8-106 for writ of 911, (Tenn.2011). 350 S.W.3d 913-15 requirement certiorari “be to” and the sworn VI, § petition in Tenn. 10 Cost. art. that the contemporary meanings 6. The of "oath” and “supported by be oath or affirmation.” are: “affirmation” requirement petition that the "state that it is (1) meanings: has a two different [O]ath application the first for the writ” mirrors swearing to God that is true one's statement requirement § in Tenn.Code Ann. 27-8-106. However, VI, promise; one or that will be bound to § art. Tenn. Const. 10 does not promise when require a statement or made one a writ of certiorari to recite it is application “the so swears. An affirmation is similar dec first for the writ.” In terms require religious without invocation. of these ments, laration verification recitation Garner, Bryan Dictionary there difference Tenn. A. A Modem Le is no between 9, (2d ed.1995); Sup.Ct. prior gal Usage § R. as it to 607 also 1.3 existed our see Black’s 2, amendment, (8th ed.2004). May prior Dictionary 2011 at Law 64 The verifi- version 192 § 27-8-1067 Ann. only in Tenn.Code for the writ. application the first
that it is 1951, 9, this R. 1.3. In Sup.Ct. whether now decide Tenn. we must Accordingly, omission of seeking judi- that the petition determined proper an otherwise the first decision hearing panel’s recitation cial review that it the recitation was not not contain for a writ of certiorari application that does the writ is insuf- a trial application the first when it affirmed is jurisdictional jurisdiction matter subject confer petitioner ficient to permit court’s decision reviewing courts. on the writ of certiorari amend his recitation, which was re missing add the to issue writs power courts’ statute, held that only by quired VI, Article Section flows from of certiorari filing back to “relate[d] amendment Thus, in 10 of the Tennessee Constitution. Louisville & pleadings.” See original subject matter a court with to vest order 700, Hammer, 191 Tenn. R.R. v. Nashville proceeding, in a certiorari jurisdiction (1951). 971, 705, S.W.2d 973 236 satisfy must of certiorari for writ Ar VI, requirements. Section 10’s Article cer- for writ of Talley’s petition for a VI, requires petitions 10
ticle Section it not con because does tiorari is deficient by oath “supported to be writ of certiorari appli the first recitation that it is tain the requirement Because this or affirmation.” by Tenn. required the writ as cation for constitutional, mandatory. See it is is However, (1 Overt.) unlike the R. 1.3. Knabb, 57- 1 Tenn. Beck v. this over requirement, (1804). waive oath or affirmation cannot The courts case, Inc., present In the King’s, sight v. waivable. Depew requirement, this 729; require at recitation obligation 276 S.W.2d to meet the at 197 Tenn. Smith, rule, which this Court’s Enamelware Co. ment arose from Crane (1934), 76 S.W.2d to the parties adhere appealing directed subject jurisdictional, and pur it is statutory procedures because established conferred cannot be jurisdiction except where a writ of certiorari suing v. Insur waiver or consent. McCarver There is a altered Penn., 380, 383 208 S.W.3d ance Co. expanding between significant difference (Tenn.2006); Sprint v. U.S. Meighan authority to issue jurisdictional the court’s (Tenn. Co., Commc’ns granted by beyond certiorari a writ of 1996). allowing of Tennessee and the Constitution to a court- waiver of a failure to adhere *8 peti that a Conversely, requirement rule. See Crane Enamelware Co. imposed that it is writ of certiorari state tion for 206, Smith, at Tenn. at v. 168 the writ is not application the first not that while a court could (noting of Tennessee. 645 found in the Constitution untimely an case, permit an it allow amendment For of this is found purposes "I, abridged. right writ to file the is Talley’spetition Mark as cation in Mr. states: Yer.) 21, (7 hereby by affir- Talley, Duggan McKinney, state under oath or Tenn. D. 15 See preceding petition Shannon, that the facts in the (1834); mation Constitu- 22 Robert T. The to the best for certiorari are true and correct (1915). 448 n. 5 the State Tennessee tion of knowledge, my information and belief.” writ requirement Sup.Ct. clearly Tenn. This satisfies verification application the first certiorari state that it is Const, VI, 10, 9, 1.3, § § Tenn. art. R. Code writ existed since 1858. See has § Tenn.Code Ann. 27-8-106. (Return Meigs Wil- § J. & Tennessee 3128 eds., & Co. Cooper E.G. Eastman liam F. recognized petitions 7. This Court has 1858). long regulated, a writ of certiorari can be
193 verification of a for writ any of certio- felony under the laws of Tennessee rule). rari, it could waive its own and any other crime a necessary ele- ment of which as determined The Board did not challenge Mr. Tal- statutory or common law definition of ley’s petition in the trial court. We fail to crime, such involves improper conduct see how the Board prejudiced by has been attorney, as an interference with the failure to include the recita- justice, administration of swearing, false petition, tion in his particularly light misrepresentation, fraud, willful failure undisputed fact that Mr. Talley’s peti- returns, deceit, to file income tax brib- was, fact, tion first for writ ery, extortion, misappropriation, theft, of certiorari he seeking review of the or an attempt or a conspiracy or 27, solicita- hearing panel’s January 2010 order. tion of another to commit a Accordingly, “serious we find that the Board crime.” waived challenge its to the omission of the and,
recitation in Mr. Talley’s petition 9, Sup.Ct. 14.2, § Tenn. R. by its own therefore, that Mr. Talley’s oversight does terms, includes crimes that are not felo- not deprive the trial court or this Court of nies, i.e. misdemeanors. subject jurisdiction in this proceed- ing. This case upon calls us to deter mine how a conviction for facilitation in
IV. violation of § Tenn.Code Ann. 39-11- Mr. Talley’s sole argument on this 403(a) (2010) should be considered in the appeal is that disbarment is pun excessive context of a disciplinary proceeding ishment. Relying 9, R. against lawyer. context, In the criminal 14.2, § he asserts that plead he did not the seriousness of a facilitation offense is guilty to a “serious crime” because he directly related to the underlying offense pleaded guilty to a misdemeanor. Mr. being facilitated. See TenmCode Ann. 9, reliance on Tenn. Sup.Ct. R. 39-ll-403(b).8 § In the lawyer context of § 14.2 misplaced is for two reasons. disciplinary proceedings, other states as certain the seriousness of a first reason is conviction for that the definition of criminal “serious facilitation based on 9, crime” in Tenn. the offense Sup.Ct. R. See, § 14.2 e.g., that was In re relates to the facilitated. Unta summary suspension lan, 978, (D.C.1993); of a law 619 In license A.2d “pending disposition final 978-79 re Gorry, disciplinary proceeding.” See 34 A.D.3d 821 N.Y.S.2d Katz, (2006); In re R. 114-15 14.1. It does not involve 31 A.D.3d (2006); offenses for which In re Car attorney may an N.Y.S.2d be men, disbarred. The second reason A.D.3d 806 N.Y.S.2d (2005).9 Talley’s argument ignores plain lan- We approach find this to be guage of Tenn. Sup.Ct. 14.2, which sound.10 Because Mr. Talley pleaded *9 defines “serious crime” as guilty to facilitating a felony violation of 11—403(b) § 8. Tenn.Code Ann. § states that R. 14.2. See 22 N.Y.Code of 39— "[t]he facilitation of the commission of a felo- Regulations § Rules and 691.7. ny is an offense of the class next below the felony by person facilitated charged.” the so approach 10. This is also consistent with this analysis Court's of related conclusion, concepts criminal reaching In this we note that attempt, such conspiracy, the New York as applying courts are and solicitation. a definition strikingly of "serious crime” that is § similar to See Tenn. 14.2. words, (2002), Mr. Talley’s § we scheme. In other mis- 48-2-121 Ann. Tenn.Code staggeringly large injury was not conduct that offense caused find his claim without is merit. to investors. a “serious crime” event, hearing not the panel underlying the did Given the nature offense any In Talley deceit, be disbarred recommend fraud and facilitated—willful factors, pleaded committed or he had presence weighty aggravating because of hearing factors, crime.” The guilty to a “serious mitigating an as absence its disbarment recommenda- panel based injury well the extent of caused finding Talley that Mr. had misconduct, tion its we have little dif- Sup.Ct. R. DR-1- violated ficulty concluding hearing panel in (3)-(6) 102(A)(1), fell and that his conduct in did not an excessive sanction impose 5.11(b). § Mr. Tal- ABA within Standards recommending Talley that Mr. be dis- are ley findings address how these fails to barred. our own of the
erroneous. From review V. presented, it arguments is record and above, not clear whether Mr. D. entirely For the reasons stated Mark within facilitation of securities fraud falls Talley from is disbarred 5.11(a) (b) § pre- ABA which Standards law of Tennessee. The costs the State result in disbarment or ABA sumptively D. of this are assessed Mark appeal presumptively execution, § 5.12 which re- Standards Talley, surety, for which and his suspension. sults in may if necessary, issue. ambiguity controlling This HOLDER, J., concurring. M. JANICE presumptions because this case Court, I judgment concur in the §§ apply
ABA 5.11 5.12 Standards I in the reasoning but do not concur aggravating mitigating absence majority opinion. § ABA 5.1. See Standards circumstances. Talley appealed At case, the time Mr. mitigating In there are no cir this hearing panel, decision Tennessee cumstances, aggravating and the circum First, Supreme Rule section 1.3 stated considerable weight. stances are of already been that “a disciplined party disciplinary proceeding had may judgment out of a arising pat conduct similar fact seek review Second, hearing provided by ‘in the manner willing tern. was not seq., except or to remorse T.C.A. 27-9-101 et as other admit misconduct show ” provided with wise herein.’ Bd. Res regard to either his in this conduct of Prof'l Cawood, conduct proceeding ponsibility or his in the earlier (Tenn.2010). Cawood, proceeding. In we held that disciplinary Responsibility’s the Board of Professional Furthermore, under ABA Standai'ds statutory require failure to follow 3.0(c), poten- courts should consider “the ments writ of for a certiorari injury lawyer’s tial caused or actual jurisdiction deprived chancery court of when imposing misconduct” a sanction. Cawood, appeal. fatal to its was part Mr. Talley’s conduct was of a fraudu- S.W.3d at 609. lent in which scheme investors lost over five majority opinion million dollars. states that “the reasonably this harm courts’ writs of power concluded that issue certiorari *10 VI, when Mr. his flows Article Section 10 of the foreseeable committed from facilitating I The disagree. misconduct of this fraudulent Tennessee Constitution.” power to issue a writ of certiorari in the
present case flows from the gov- statutes Jack COLLIER certiorari, erning the writ of Tennessee v. Code Annotated sections 27-8-101 to -118 (2000). Jurisdiction this case is con- DEVELOPERS, GREENBRIER statute, trolled the Tennessee LLC, et al. Today, Constitution. the Court inexplica- bly has decided that we can waive some Court Appeals Tennessee, requirements of the statute because there Section, Eastern at Knoxville. provision is no of the Tennessee Constitu- tion that is similar to requirements. those Feb. 2009 Session.
We liberty are not at to ignore a statute if April 2009. it does not conflict with the Tennessee or United States Depew Constitutions. v. Application for Permission Appeal Inc., King’s, 197 Tenn. by Supreme Denied (Tenn.1955); see Crane Enamel- May Smith, ware Co. 168 Tenn. (Tenn.1934) (“The
S.W.2d court has no authority to waive a statutory re-
quirement.”). Cawood,
In this Court held requirements of the applied. statute
requirements of the statute are clear. The petition for writ of certiorari must be (“the verification”)
sworn to and state that (“the it is the first for the-writ recitation”). Tenn.Code Ann. 27-8-106.
Mr. Talley’s petition for certiorari con tained the verification but did not include
the recitation. Mr. Talley’s petition for writ of certiorari grant therefore failed jurisdiction to the chancery court. Ca
wood,
a hearing panel suspension recommends a
exceeding three months or disbarment and appeal perfected, no this Court reviews punishment to determine if it is appro- priate under the circumstances of the case.
Tenn. Sup.Ct. 8.4. Under the cir- case, cumstances of ¿igree this I with the majority that disbarment is appropriate.