Rоger David HYMAN v. BOARD OF PROFESSIONAL RESPONSIBILITY OF THE SUPREME COURT of Tennessee.
Supreme Court of Tennessee.
March 31, 2014.
Sept. 4, 2013 Session.
435 S.W.3d 435
Simply put, the intermediate appellate judges, like the judges of the Supreme Court, are required to live in a certain area as a qualification for holding office, but they are not “assigned” to that area. Rather, they are “assigned” to the state at large and therefore may be elected by the qualified voters of the entire state.
The Petition to Rehear is denied. The costs are taxed to John Jay Hookеr, for which execution may issue if necessary. We adhere to the views and holdings expressed in our Opinion filed on March 17, 2014, and the accompanying Order. This Court will entertain no further petitions, motions, requests, or pleadings of any kind seeking reconsideration or rehearing of any of its orders. Mandate shall issue immediately.
It is so ORDERED.
Krisann Hodges, Brentwood, Tennessee, for the appellee, Board of Professional Responsibility of the Supreme Court of Tennessee.
JANICE M. HOLDER, J., delivered the opinion of the Court, in which GARY R. WADE, C.J., and CORNELIA A. CLARK, WILLIAM C. KOCH, JR., and SHARON G. LEE, JJ., joined.
A hearing panel of the Board of Professional Responsibility determined that a Knoxville attorney violated a number of the Rules of Professional Conduct and recommended his suspension from the practice of law for six months and his attendance аt six hours of ethics and professionalism courses in addition to those mandated by Tennessee Supreme Court Rule 21, section 3.01. The attorney timely filed a petition for certiorari in the Circuit Court for Knox County under Tennessee Supreme Court Rule 9, section 1.3. In his petition, the attorney alleged that the hearing panel improperly considered his disciplinary history and that his six-month suspension was excessive. The circuit court affirmed the judgment of the hearing panel. After a thorough review of the record, we affirm.
I. Facts and Procedural History
Roger David Hyman received a license to practice law in Tennessee in 1984. He worked in the Tennessee Attorney General‘s office until the mid-1990s when he opened a private practice in Knox County, Tennessee.
This case arises from a petition for discipline filed against Mr. Hyman by the Board of Professional Responsibility (“the Bоard“) on May 12, 2010. The petition combined two unrelated complaints. Mr. Hyman denied the allegations of misconduct contained in the petition.1
A hearing panel convened on May 23, 2011. After a number of witnesses testified, a member of the hearing panel determined that he had a conflict of interest because he had previously represented one of the Board‘s witnesses. Mr. Hyman‘s request for a mistrial was denied. The hearing panel agreed, however, to continue the proceedings until a later date, and the Chair of the Board assigned a new hearing panel.
The new hearing panel held a hearing on November 29 and 30, 2011. Before the hearing began, Mr. Hyman objected to the hearing panel‘s composition, arguing that he was denied due process because he was unable to participate in the selection of the hearing panel. Mr. Hyman did not allege bias on the part of any hearing panel member and acknowledged that the hearing panel was chosen in accordance with Tennessee Supreme Court Rule 9.1 The Board presented a number of witnesses, and the following facts were revealed.
Tanner Complaint
On February 13, 2006, Mr. Hyman filed an amended complaint for divorce on behalf of his client, Cory Kristy, who was married to Tamatha Tanner. The parties had executed a prenuptial agreement and had few marital assets. Mr. Kristy‘s only significant pre-marital asset consisted of an assortment of sports cards and a collection of “Transformer” memorabilia, which Mr. Kristy maintained were in Ms. Tanner‘s possession or had been lost or otherwise disposed of by Ms. Tanner. Ms. Tanner denied possessing, concealing, or disposing of Mr. Kristy‘s property.
After being served with the amended complaint, Ms. Tanner hired attorney Wil-
Mr. Davis and Mr. Hyman continued to correspond concerning the case. On July 17, 2006, Mr. Hyman filed a motion for default judgment, which contained a certification that he had mailed a copy of the motion to Mr. Davis as Ms. Tanner‘s “putative attorney (although no Answer nor Appearance has been filed).” Contrary to his statement in the certification, Mr. Hyman did not mail a copy of the motion to Mr. Davis but instead mailed a copy of the motion directly to Ms. Tanner. Ms. Tanner contacted Mr. Davis when she received the motion. Mr. Davis in turn wrote to Mr. Hyman, admonishing him for directly contacting his client.
Throughout the summer of 2006, Mr. Hyman repeatedly requested permission to inspect Ms. Tanner‘s home for Mr. Kristy‘s personal property. Mr. Davis initially declined to schedule a home inspection because Ms. Tanner‘s infant son suffered from health issues relating to his premature birth. Ultimately, however, the trial court ordered an inspection of Ms. Tanner‘s home. Mr. Davis wrote to Mr. Hyman in advance of the home inspection to alert him of the child‘s health issues, enclosing written materials from the child‘s pediatrician explaining that the child had a heightened risk of infection. Mr. Davis therefore requested that the participants at the home inspection apply liquid hand sanitizer prior to entering Ms. Tanner‘s home. When the parties arrived for the inspection, howevеr, Mr. Hyman refused to use the hand sanitizer, calling it “snake oil.” Mr. Davis threatened to end the inspection unless Mr. Hyman complied with Ms. Tanner‘s request, and Mr. Hyman eventually applied the hand sanitizer.
While deposing Ms. Tanner during litigation, Mr. Hyman repeatedly called her a “liar and a thief,” threatened her with the possibility of incarceration, and twice asked her if English was her “native language.” The deposition culminated in the following exchange:
Mr. Hyman: So, according to your attorney, who is not facing a jail cell door, but you are if you‘re found in contempt, you are not going to answer my question?
Mr. Davis: She is not going to answer your question.
Mr. Hyman: See, he is not going to court to jail. Now, tell us about—
* * *
Mr. Davis: Nobody is—I would ask you not to make threats like that to my client. I would ask you to limit your questions to our stipulation.
Ms. Tanner: I need a break.
Mr. Davis: There is nobody going to jail.
* * *
Mr. Davis: We‘re taking a break.
Mr. Hyman: No, we‘re not taking a break.
Mr. Davis: I‘m taking a break.
Ms. Tanner: I‘d like to take a break.
Mr. Hyman: We‘re over.
* * *
Mr. Hyman: No, we‘re not going to take it up with the judge. I will notice you. If you file an objection, then that‘s your prеrogative. Okay? And I‘ll be seeking attorneys fees and costs and everything else.
Mr. Davis: Good. Take it up with the judge.
Mr. Hyman: You‘re protecting a liar and a thief.
Mr. Kristy was granted a divorce in late 2007. On March 11, 2008, however, Mr. Hyman filed a replevin action on Mr. Kristy‘s behalf seeking either the return of the sports cards and “Transformer” collection or $1,000,000 in damages.2 Six days after filing suit, Mr. Hyman filed an abstract of suit and notice of lien lis pendens in the Knox County Register of Deeds, which asserted a $1,000,000 claim against Ms. Tanner‘s property. Ms. Tanner again retained Mr. Davis, who eventually filed a motion to release the lien lis pendens. After conducting a hearing, the trial court entered an order declaring Mr. Hyman‘s lien void and ordering its release from the land records.
Korten Complaint
On March 26, 2008, Fred and Diane Korten hired Mr. Hyman to represent them in an action filed by David Sallas in the Circuit Court for Blount County, Tennessee. Mr. Sallas, the Kortens’ general contractor, alleged that the Kortens failed to pay him the amount required by the contract for the construction of the Kortens’ home in Maryville, Tennessee. The Kortens filed a counterclaim against Mr. Sallas, alleging a number of construction defects. During the initial stages of discovery, the Kortens provided Mr. Hyman with a copy of a DVD recording they created during the construction of their home to document the alleged construction defects.3 Although the DVD contained audio of the Kortens as well as the video recording, Mr. Hyman advised the Kortens to remove the audio portion of the recording because he believed it constitut-
After viewing the DVD, Mr. Alley requested that Mr. Hyman providе a DVD with the original audio recording. Mr. Hyman refused, maintaining that the audio portion of the DVD was inadmissible. Mr. Alley filed a motion to compel and for sanctions, which was set for hearing on October 3, 2008. On September 22, 2008, Mr. Hyman and Mr. Alley ostensibly resolved the discovery dispute by telephone, and Mr. Alley forwarded a proposed order to Mr. Hyman for his signature two days later. In the letter accompanying the proposed order, Mr. Alley stated that he would proceed with his motion on October 3, 2008, unless Mr. Hyman returned a signed copy of the proposed order by October 2, 2008. Mr. Hyman failed to provide Mr. Alley with a signed copy prior to the hearing.
Mr. Alley attempted unsuccessfully to contact Mr. Hyman at his office on the morning of the hearing, and Mr. Alley appeared in court to argue his motion. Neither Mr. Hyman nor the Kortens, however, were present. When Mr. Hyman‘s аssistant informed him that Mr. Alley was in court on the motion, Mr. Hyman immediately called Mr. Alley‘s office and spoke with Mr. Alley‘s assistant, Kimberly Gage. Mr. Hyman shouted at Ms. Gage repeatedly and threatened to report Mr. Alley to the Board. Mr. Hyman also spoke with Melanie Davis, an attorney in Mr. Alley‘s office, shouted at her throughout their conversation, and again threatened to report Mr. Alley to the Board.
As the hearing proceeded without Mr. Hyman, Mr. Alley informed the trial court of his conversation with Mr. Hyman the prior week. The trial court granted Mr. Alley‘s motion to compel and entered an order reflecting the terms of the proposed order that Mr. Alley sent to Mr. Hyman on September 24, 2008. The trial court reserved the issue of sanctions until October 17, 2008, to allow Mr. Hyman sufficient time to appear.
Mr. Hyman filed a motion for sanctions on October 7, 2008, alleging that Mr. Alley improperly sought a hearing on his motion to compel. Mr. Hyman, however, withdrew his motion before the rescheduled hearing on Mr. Alley‘s motion for discovery sanctions. The trial court heard arguments on Mr. Alley‘s motion and on October 28, 2008, entered an order requiring the Kortens to pay $5,842.50 in sanctions within thirty days, finding that “there [was] no just reason for the Kortens and Attorney Hyman to have failed to appear in court on October 3, 2008.”
On December 5, 2008, Mr. Alley filed a motion for contempt alleging that the Kortens had failed to pay the sanctions as required by the October 28, 2008 order. On the same day, Mr. Hyman filed a Notice of Interpleader and paid $5,842.50 to the court clerk. On December 15, 2008, the trial court found that “no just cause exists for the delay in paying the sum directly to [the plaintiff].” In January 2009, the Kortens discharged Mr. Hyman and retained substitute counsel.
In December 2009, now-deceased Blount County Circuit Court Judge William Dale Young was admitted to the hospital unexpectedly. Mr. Hyman was scheduled to appear before Judge Young the next morning. Mr. Hyman was unaware of Judge Young‘s unexpected hospitalization and did not learn that court proceedings had been cancelled until his arrival at the courthouse. Mr. Hyman became upset and confronted Amanda Nolen, Judge Young‘s administrative assistant, in her office. Although Ms. Nolen tried to explain to Mr. Hyman why court had been abruptly cancelled, Mr. Hyman became “extremely angry” and expressed his belief that Ms. Nolen was “picking on him” and that “[Judge Young‘s] office had a conspiracy against him.” The court officer escorted Mr. Hyman from Ms. Nolen‘s office.4
Prior Disciplinary History
The Board introduced evidence concerning Mr. Hyman‘s prior disciplinary history. Mr. Hyman has been disciplined on five separate oсcasions since 1996. On March 18, 1996, Mr. Hyman was publicly censured after he willfully violated an order of protection. On March 19, 1997, Mr. Hyman was privately reprimanded for an alleged assault on an opposing party. Although
In December 1999, Mr. Hyman pleaded guilty to a petition for discipline alleging that he grabbed an opposing attorney‘s arm after a court hearing and blocked her exit from the courtroom. This Court subsequently suspended Mr. Hyman from the practice of law for thirty days, placed him on probation for one year, and required him to attend a year-long anger-management program.
On November 8, 2003, Mr. Hyman was privately reprimanded for failing to communicate with his client and for threatening his client‘s mother with an unfounded lawsuit. On November 8, 2006, Mr. Hyman received an informal admonition for threatening to report another attorney to the Board.
Findings of the Hearing Panel
On December 12, 2011, the hearing panel filed a written judgment with the Board in compliance with Tennessee Supreme Court Rule 9. See
- Rule 4.2, “Communication with a Person Represented by Counsel,” by directly communicating with Ms. Tanner, who Mr. Hyman knew was represented by counsel;
- Rule 4.4(a)5 by intending to disrupt the home inspection and related proceedings with no substantial purpose other than to embarrass and burden Ms. Tanner and Mr. Davis;
- Rule 3.5(e)6 by threatening Ms. Tanner during her deposition; and
- Rules 3.17 and 4.4(a) by filing a notice of lien lis pendens against Ms. Tanner that was later declared void.
In addition to each of the above violations, the hearing panel determined that Mr. Hyman violated Rules 8.4(a) and 8.4(d).8 The hearing panel did not, however, find that Mr. Hyman violated Rule 3.4, “Fairness to Opposing Party and Counsel.”9
- Rules 3.4 and 8.4(d) by directing the Kortens to remove the audio from the DVD;
- Rule 3.4(c), which prohibits attorneys from “knowingly disobey[ing] an obligation under the rules of a tribunal“;
- Rules 8.4(a) and 8.4(d) by failing to appear at the hearing on Mr. Alley‘s motion to compel;
- Rules 3.4(c), 8.4(a), and 8.4(d) by his knowing failure to pay in a timely fashion the sanctions required by the trial court‘s October 28, 2008 order; and
- Rules 4.4(a), 8.4(a), and 8.4(d) by interacting with Mr. Alley, Ms. Davis, Ms. Gage, and Ms. Nolen with the intent to disrupt the proceedings and without any substantial purpose other than to embarrass or burden them.
stroy, or conceal a document or other material having potential evidentiary value. A lawyer shall not counsel or assist another person to do any such act; or (b) falsify evidence, counsel or assist a witness to offer false or misleading testimony; or (c) knowingly disobey an obligation under the rules of a tribunal, except for an open refusal based on an assertion that no valid obligation exists; or (d) in pretrial procedure, make a frivolous discovery request or fail to make a reasonably diligent effort to comply with a legally proper discovery request by an opposing party; or (e) in trial, (1) allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence; or (2) assert personal knowledge of facts in issue except when testifying as a witness; or (3) state a personal opinion as to thе justness of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of an accused; or (f) request a person other than a client to refrain from voluntarily giving relevant information to another party unless: (1) the person is a relative or an employee or other agent of a client; and (2) the lawyer reasonably believes that the person‘s interests will not be adversely affected by refraining from giving such information; or (g) request or assist any person to take action that will render the person unavailable to appear as a witness by way of a deposition or at trial; or (h) offer an inducement to a witness that is prohibited by law; or pay, offer to pay, or acquiesce in the payment of compensation to a witness contingent on the content of his or her testimony or the оutcome of the case. A lawyer may advance, guarantee, or acquiesce in payment of: (1) expenses reasonably incurred by a witness in attending or testifying; (2) reasonable compensation to a witness for that witness‘s loss of time in attending or testifying; or (3) reasonable fee for the professional services of an expert witness.
The hearing panel concluded, however, that Mr. Hyman did not violate Rules 1.2, “Scope of Representation and Allocation of Authority Between Client and Lawyer“; 1.3, “Diligence“; 1.4, “Communication“; or 3.5(e).
In determining the appropriate sanction, the hearing panel considered the ABA Standards for Imposing Lawyer Sanctions (“ABA Standards“) and found that Mr. Hyman‘s actions “pose[d] a serious threat to the orderly administration of justice and the governance of the legal profession.” Although the hearing panel acknowledged that some of Mr. Hyman‘s violations—his direct contact with Ms. Tanner and his interactions with the Kortens and with Mr. Alley and his staff—were “less egregious and likely worthy of only a private or public reprimand,” the hearing panel concluded that Mr. Hyman‘s other violations evidenced a “complete disregard for the Rules [of Professional Conduct].” Addi-
The hearing panel stated that it felt “compelled to mete a meaningful penalty” because Mr. Hyman “has not benefitted from his previous discipline and . . . continues to make the same mistakes.” Accordingly, the hearing panel concluded that Mr. Hyman should be suspended from the practice of law for six months and ordered that he attend six hours of ethics and professionalism courses in addition to his Continuing Legal Education ethics requirements. See
On February 9, 2012, Mr. Hyman timely sought judicial review of the hearing panel‘s judgment by filing a petition for certiorari in the Circuit Court for Knox County. See
After hearing arguments from counsel, the circuit court entered written findings of fact and conclusions of law on August 12, 2012. The circuit court considered the entire record of the disciplinary hearing and affirmed the hearing panel‘s judgment. In doing so, the circuit court noted that Mr. Hyman “seems incapable of controlling his anger” and that Mr. Hyman‘s “explanations for his behavior are disingenuous and lame.” Mr. Hyman has appealed the circuit court‘s denial of his petition for certiorari.
II. Analysis
This Court has the inherent power to regulate and supervise the practice of law in Tennessee. In re Burson, 909 S.W.2d 768, 772-73 (Tenn. 1995). Accordingly, we promulgated Tennessee Supreme Court Rule 9, which outlines the attorney disciplinary process. See Brown v. Bd. of Prof‘l Responsibility, 29 S.W.3d 445, 449 (Tenn. 2000). Tennessee Supreme Court Rule 9, section 1.3 provides as follows:
The court may reverse or modify the [hearing panel‘s] decision if the rights of the petitioner have been prejudiced because the panel‘s findings, inferences, conclusions or decisions are: (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 light of the entire record.
A. Due Process
Mr. Hyman first contends that the method for selecting hearing panel members deprives him of his right to due process under the United States and Tennessee Constitutions. See
Attorney disciplinary proceedings are “quasi-criminal” in nature. Moncier v. Bd. of Prof‘l Responsibility, 406 S.W.3d 139, 155 (Tenn. 2013) (citing In re Ruffalo, 390 U.S. 544, 551 (1968)). Accordingly, attorneys who are subject to discipline are entitled to procedural due process, which includes notice of the alleged misconduct and an opportunity to be heard. Moncier, 406 S.W.3d at 156. An attorney disciplinary proceeding does not, however, give rise to “the full panoply of [due process] rights afforded to an accused in a criminal case.” Id. (quoting People v. Harfmann, 638 P.2d 745, 747 (Colo. 1981)).
Nevertheless, this Court has promulgated rules that grant a number of additional rights to attorneys in disciplinary matters beyond those constitutionally required. For example, attorneys subject to discipline in Tennessee have the right to be represented by counsel, to cross-examine witnesses called against them, and to present evidence on their own behalf.
Noticeably absent, however, from the list of rights afforded attorneys in disciplinary proceedings is the right to participate in the selection of the hearing panel. Rather than allowing attorneys to participate in the selection of the hearing panel, we promulgated Rule 9, section 8.2, which vests the power of appointment in the Chair of the Board and provides in pertinent part:
Following the sеrvice of the answer or upon failure to answer, the matter shall be assigned by the Chair to a hearing panel. In assigning the members of the hearing panel, the Chair shall select them on a rotating basis from the members of the district committee in the district in which the respondent practices law; if there is an insufficient number of committee members in that district who are able to serve on the hearing panel, the Chair may appoint one or more members from the district
committee of an adjoining district to serve on the panel.
In sum, our current disciplinary framework provides adequate protection to attorneys who are accused of professional misconduct and is not “in violation of constitutional or statutory provisions.”
B. Prior Sanctions
Mr. Hyman next contends that the hearing panel erred in admitting evidence of his disciplinary history because the Board introduced this evidence to create “a presumption of guilt” against him. Accordingly, Mr. Hyman argues that the admission of evidence of his prior discipline was unduly prejudicial under Rule 404(b) of the Tennessee Rules of Evidence and there-fore should have been excluded. See
Tennessee Supreme Court Rule 9, section 8.2 permits the Board to introduce evidence of an attorney‘s prior disciplinary record, including private discipline, as proof of an aggravating circumstance as long as the evidence is “otherwise admissible under the Tennessee Rules of Evidence.” Similarly, Rule 9, section 8.4 requires the hearing panel to refer to the ABA Standards when determining the appropriate sanction to impose. Much like Rule 9, section 8.2, the ABA Standards list an attorney‘s “prior disciplinary offenses” as a potential basis for increasing an attorney‘s sanction beyond the presumptive sanction. See ABA Standard 9.22(a).
Our review of the record reveals that the Board introduced Mr. Hyman‘s disciplinary history as proof of an aggravating circumstance. Rule 9, section 8.2 specifically permits the Board to introduce evidence of prior discipline to determine the appropriate sanction to impose. Here, the hearing panel considеred Mr. Hyman‘s prior discipline for the sole purpose of determining whether an aggravating circumstance existed to justify increasing Mr. Hyman‘s presumptive sanction. Therefore, the hearing panel did not abuse its
Mr. Hyman also argues that evidence of his private reprimand in 1997 should have been excluded at the hearing because the underlying assault charge on which his discipline was based had been dismissed. We are unpersuaded by Mr. Hyman‘s argument because his private reprimand did not arise from a conviction for assault. Instead, the Board‘s written reprimand clearly states that “[a]lthough the assault matter was dismissed and [Mr. Hyman] denies actually touching the woman, [Mr. Hyman] admits that he regrettably began to shout at [the victim] after she began to shout at [him].” We therefore decline to grant relief on this basis.
C. ABA Standards for Imposing Lawyer Sanctions
Mr. Hyman‘s final argument on appeal is that the hearing panel misapplied the ABA Standards. In essence, Mr. Hyman argues that the hearing panel arbitrarily imposed a six-month suspension. See
To determine the appropriate discipline in a given case, the hearing panel must refer to the ABA Standards. See
- What ethical duty did the lawyer violate? (A duty to a client, the public, the legal system, or the profession?);
- What was the lawyer‘s mental state? (Did the lawyer act intentionally, knowingly, or negligently?);
- What was the extent of the actual or potential injury caused by the lawyer‘s misconduct? (Was there a serious or potentially serious injury?); and
- Are there any aggravating or mitigating circumstances?
ABA Standards, Theoretical Framework.
Applicable Standards
Stating that Mr. Hyman‘s misconduct “pose[d] a serious threat to the orderly administration of justice and the governance of the legal profession,” the hearing panel applied the ABA framework to conclude that Mr. Hyman‘s misconduct represented, among other things, a breach of his duties to the legal system. Accordingly, the hearing panel cited ABA Standard 6.22, which states that “[s]uspension is generally appropriate when a lawyer knows that he or she is violating a court order or rule, and causes injury or potential injury to a client or a party, or causes interference or potential interference with a legal proceeding.”11 Mr. Hyman argues, however, that the hearing panel erroneously concluded that he “knowingly” violated the October 28, 2008 order by his late payment of the sanctions, contending
The hearing panel also cited ABA Standard 3.2 as applying to this case.12 The record reveals, however, that the Board asserted the applicability of ABA Standard 6.32 in its Pretrial Brief and in its closing statement at the disciplinary hearing. Neither party has addressed this discrepancy, and we therefore assume that the hearing panel‘s intended reference was to ABA Standard 6.32, not to ABA Standard 3.2, which does not exist. ABA Standard 6.32 provides for suspension “when a lawyer engages in communication with an individual in the legal system when the lawyer knows that such communication is improper, and causes injury or potential injury to a party or causes interference or potential interference with the outcome of the legal proceeding.” To that end, Mr. Hyman‘s direct communication with Ms. Tanner, whom he knew to be represented by counsel, clearly implicates ABA Standard 6.32, and the hearing panel‘s applica-
tion of this standard is therefore supported by substantial and material evidence.
The hearing panel also cited ABA Standard 8.2, which states that “[s]uspension 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.” Mr. Hyman‘s disciplinary history clearly reflects that he has been disciplined on a number оf prior occasions for “the same or similar misconduct.” The hearing panel‘s conclusion that ABA Standard 8.2 applies is therefore supported by substantial and material evidence.
Finally, the hearing panel also cited ABA Standard 7.2 in its Conclusions of Law. ABA Standard 7.2 provides for suspension “when a lawyer knowingly engages in conduct that is a violation of a duty owed as a professional and causes injury or potential injury to a client, the public, or the legal system.” Standing alone, this Standard appears to apply. ABA Standard 7.2, however, is a subsection of ABA Standard 7.0, which applies to “cases involving false or misleading communication about the lawyer or the lawyer‘s services, improper communication of fields of practice, improper solicitation of professional employment from a prospective client, unreasonable or improper fees, unauthorized practice of law, improper withdrawal from representation, or failure to report professional misconduct.” The conduct that triggers ABA Standard 7.0 is not alleged in Mr. Hyman‘s case, and the sanction set forth in ABA Standard 7.2 is therefore inapplicable.13
The hearing panel‘s findings are supported by substantial and material evidence, and we therefore affirm the hearing panel‘s conclusion that the ABA Standards support suspending Mr. Hyman from the practice of law for six months.
Aggravating and Mitigating Circumstances
After the hearing panel determines the appropriate baseline sanction, the hearing panel should also consider any aggravating or mitigating circumstances that may justify an increase or decrease of the baseline sanction. See ABA Standard 9.1 (“[A]ggravating and mitigating circumstances may be considered in deciding what sanction to impose.“);14 see also
Notes
The ABA Standards provide the following mitigating factors: (a) absence of a prior disciplinary record; (b) absence of a dishonest or selfish motive; (c) personal or emotional problems; (d) timely good faith effort to make restitution or to rectify consequences of misconduct; (e) full and free disclosure to disciplinary board or cooperative attitude toward proceedings; (f) inexperience in the practice of law; (g) character or reputation; (h) physical disability; (i) mental disability or chemical dependency including alcoholism or drug abuse when: (1) there is medical evidence that the respondent is affected by a chemical dependency or mental disability; (2) the chemical dependency or mental disability caused the misconduct; (3) the respondent‘s recovery from the chemical dependency or mental disability is demonstrated by a meaningful and sustained period of successful rehabilitation; and (4) the recovery arrested the misconduct and recurrence of that misconduct is unlikely; (j) delay in disciplinary proceedings; (k) imposition of other penalties or sanctions; (l) remorse; (m) remoteness of prior offenses. ABA Standard 9.32.
The hearing panel found the following four aggravating circumstances: (1) Mr. Hyman‘s prior disciplinary offenses; (2) Mr. Hyman‘s pattern of misconduct; (3) the number of offenses in the current petition; and (4) Mr. Hyman‘s substantial еxperience in the practice of law. In mitigation, the hearing panel considered the premature birth of Mr. Hyman‘s daughter during the Korten litigation and the resulting loss of sleep that Mr. Hyman experienced during that time. After a thorough review of “the transcript of the evidence before the hearing panel and its findings and judgment,” we are unable to conclude that the hearing panel‘s consideration of these factors is “arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.”
III. Conclusion
We affirm the judgment of the circuit court and the hearing panel suspending Mr. Hyman from the practice of law for six months. Costs of this appeal are taxed to Roger David Hyman and his surety, for which execution may issue if necessary.
JANICE M. HOLDER
JUSTICE