Thomas Fleming MABRY v. BOARD OF PROFESSIONAL RESPONSIBILITY OF the SUPREME COURT of Tennessee
No. E2013-01549-SC-R3-BP
Supreme Court of Tennessee, AT KNOXVILLE.
May 6, 2014 Session. Filed December 30, 2014
900
Krisann Hodges, Brentwood, Tennessee, for the appellee, Board of Professional Responsibility of the Supreme Court of Tennessee.
OPINION
Sharon G. Lee, C.J., Delivered the Opinion of the Court, in which Janice M. Holder, Cornelia A. Clark, Gary R. Wade, and William C. Koch, Jr., JJ., Joined.
A hearing panel of the Board of Professional Responsibility determined that an attorney failed to act diligently in his representation of a client and suspended the attorney from the practice of law for forty-five days. The trial court affirmed the suspension. After careful consideration, we affirm the judgment of the trial court.
I.
Thomas Fleming Mabry, an attorney primarily practicing in Knox County, has been licensed to practice law in Tennessee since 1980. On June 22, 2011, the Board of Professional Responsibility (“the Board“) filed a petition for discipline against Mr. Mabry based on three complaints of misconduct. A hearing panel (“the Panel“), appointed by the Board pursuant to
II.
The Supreme Court of Tennessee is the source of authority of the Board of Professional Responsibility and all its functions. Brown v. Bd. of Prof‘l Responsibility, 29 S.W.3d 445, 449 (Tenn.2000). As a part of our duty to regulate the practice of law, we bear ultimate responsibility for enforcing the rules governing our profession. Doe v. Bd. of Prof‘l Responsibility, 104 S.W.3d 465, 470 (Tenn.2003). We review judgments under our “inherent power and essential and fundamental right to administer the rules pertaining to the licensing of attorneys.” Skouteris v. Bd. of Prof‘l Responsibility, 430 S.W.3d 359, 362 (Tenn.2014) (alterations in original) (quoting Hughes v. Bd. of Prof‘l Responsibility, 259 S.W.3d 631, 640 (Tenn.2008)).
When reviewing a hearing panel‘s judgment, a trial court must consider the transcript of the evidence before the hearing panel and its findings and judgment.
(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.
Our standard of review on appeal is the same as that of the trial court. Skouteris, 430 S.W.3d at 362 (citing Hoover v. Bd. of Prof‘l Responsibility, 395 S.W.3d 95, 103 (Tenn.2012)).
III.
In 2008, Mr. Mabry filed suit on Ms. Shore‘s behalf against Maple Lane Farms, LLC in the Chancery Court for Blount County. The lawsuit arose out of a disagreement between Ms. Shore and Maple Lane Farms regarding the use of Maple Lane Farms’ property for concerts and other outdoor events. The Chancery Court action sought a declaratory judgment, injunctive relief, and abatement of a nuisance.4 On August 19, 2008, Mr. Mabry filed a second action on Ms. Shore‘s behalf in the Circuit Court for Blount County seeking damages against Roger Fields, a Building Commissioner for Blount County, and Robert Goddard, the attorney for Blount County. The complaint alleged the existence of a civil con-
On September 19, 2008, Mr. Fields moved to dismiss the complaint for failure to state a claim upon which relief could be sought. He sent Mr. Mabry a proposed motion for sanctions and a safe harbor letter pursuant to
On January 25, 2011, the Blount County Circuit Court heard Mr. Fields’ motion to dismiss and to impose sanctions. In a memorandum of law filed with the trial court, Mr. Mabry stated that the civil conspiracy claim against Mr. Fields became moot once Mr. Goddard was dismissed from the case. In an order issued March 4, 2011, the Blount County Circuit Court found that Mr. Mabry had more than ample opportunity—from the time he dismissed the case against Mr. Goddard, his receipt of the safe harbor letter from Mr. Fields, and being terminated by his client—to dismiss and/or correct by amendment the civil conspiracy claim. The Blount County Circuit Court imposed Rule 11 sanctions against Mr. Mabry for attorney‘s fees in the amount of $5,000.
On June 22, 2011, the Board filed a petition for discipline against Mr. Mabry based on three complaints of misconduct it had received. Ms. Shore and Mr. Cunningham each filed complaints stemming from Ms. Shore‘s lawsuit against Mr. Fields and Mr. Goddard, while Ginna French, another client of Mr. Mabry‘s, filed a third, unrelated complaint. With regard to Ms. Shore‘s case, the disciplinary petition alleged that Mr. Mabry violated
On May 2, 2012, Mr. Mabry filed a witness list which included himself, two of his former clients, and Laura McClendon and/or Ted Rice from the Tennessee Lawyers Assistance Program (“TLAP“). On May 9, 2012, a telephonic scheduling conference was held, and Mr. Mabry was given until June 15, 2012, to file his exhibit list. Mr. Mabry filed the exhibit list on June 15 and filed an amended list ten days later.
On July 5, 2012, David A. Lufkin, Sr., filed a notice of appearance as counsel for Mr. Mabry. On July 12, 2012, the Board filed a supplemental witness and exhibit list, and Mr. Mabry, through counsel, filed a motion for a continuance and a request to reopen discovery. Mr. Mabry‘s motion asserted that two of his potential witnesses, Ms. McClendon and Mr. Rice, did not have timely notice of the hearing due to communication errors. The motion did not detail any attempts by Mr. Mabry or Mr. Lufkin to contact these witnesses, other than stating that Mr. Lufkin “has this date talked and attempted communication with” Ms. McClendon and Mr. Rice. In addition, the motion stated that Mr. Lufkin wanted to file Interrogatories and Requests for Production.
On July 13, 2012, the Board filed its brief and a response to Mr. Mabry‘s mo-
tinue to assert or controvert an issue therein, unless after reasonable inquiry the lawyer has a basis for doing so that is not frivolous, which includes a good faith argument for an extension, modification, or reversal of existing law.
tion for a continuance. The brief detailed the Board‘s basis for seeking discipline against Mr. Mabry and recommended that his law license be suspended. The Board opposed a continuance of the hearing, noting that on July 12, 2012, Disciplinary Counsel emailed Ms. McClendon to ask if she or Mr. Rice would be at Mr. Mabry‘s hearing, but discovered that Ms. McClendon was unaware of any hearing. The Board opposed reopening discovery more than three months after the discovery deadline had expired. The Panel denied Mr. Mabry‘s motion for a continuance, noting that Mr. Mabry had made no attempt to subpoena Ms. McClendon or Mr. Rice and that he failed to offer any evidence that he attempted to contact them about the hearing other than on July 12, 2012. Further, the Panel noted that Mr. Mabry made no assertion that these witnesses had material knowledge relevant to the acts complained of in the petition or that they had personal knowledge of any of the facts alleged. The Panel found that Mr. Mabry had chosen to proceed pro se for more than a year and that Mr. Lufkin‘s appearance less than two weeks before trial was not grounds for a continuance or reopening of discovery.
Two days before the July 18, 2012 hearing, Mr. Mabry filed a motion to strike the Board‘s brief and its supplemental witness and exhibit list and to dismiss the petition. The motion asserted that the Board‘s supplemental witness and exhibit list, filed July 12, 2012, was not timely and that the list attempted to serve notice of recent pleadings in Shore v. Fields, a case with which Mr. Mabry had not been involved since December 2008. He argued that the Board‘s petition for discipline was defective because, by failing to state “a demand
At the Panel‘s hearing on July 18, 2012, Mr. Mabry, Mr. Cunningham, Kevin Wayne Shepherd, and Jean Elizabeth French testified. After considering the testimony of these witnesses, numerous exhibits, and records of Mr. Mabry‘s prior ethical violations, the Panel issued its decision on August 2, 2012. The Panel found that, with regard to Ms. Shore‘s case, Mr. Mabry violated
Both Mr. Mabry and the Board appealed to the Knox County Chancery Court. On March 15, 2013, the trial court reviewed the transcript from the Panel‘s hearing and heard proffered testimony from Mr. Rice and Mr. Mabry. The trial court excluded the testimony of Mr. Rice—that Mr. Mabry had been involved as a TLAP volunteer—finding that the evidence had already been presented during Mr. Mabry‘s testimony before the Panel. The trial court did not consider the proffered testimony of Mr. Mabry, determining that Mr. Mabry did not qualify as an expert witness and that his testimony would not have been of benefit to the court. Further, the trial court held that the Panel did not abuse its discretion in refusing to grant Mr. Mabry a continuance. The trial court affirmed the Panel‘s findings of fact and conclusions of law, determining that all were fully supported by the evidence. Mr. Mabry appealed to this Court.
IV.
Mr. Mabry‘s brief consists of numbered paragraphs replete with rambling assertions of error by the Panel and the trial court, with little or no supporting citations to authority. We have carefully reviewed all of his allegations and assertions and find that none have merit.
A. Procedural Claims
Mr. Mabry first argues generally that his disciplinary proceedings violated Ten-
Among his many claims of procedural error, Mr. Mabry asserts that the Board‘s petition for discipline should have been dismissed because it did not specifically state the punishment sought by the Board. We disagree. Though the Tennessee Rules of Civil Procedure generally apply in attorney disciplinary proceedings, it is only where the Tennessee Supreme Court Rules do not provide otherwise. See
Next, Mr. Mabry argues that he was prejudiced by the Board‘s filing of its brief five days before the Panel‘s hearing and raises a similar objection as to the Board‘s supplemental witness and exhibit list. However, Mr. Mabry cites no valid authority to support his assertion of prejudice, and we find no error by the Panel in considering the Board‘s pre-trial brief or in allowing the supplemental witness and exhibit list. These filings were not only appropriate, but were of assistance to the trier of fact and Mr. Mabry. This issue has no merit.
Mr. Mabry further argues that the Panel erred by denying his request for a continuance filed six days before the scheduled hearing. Whether to grant or deny a motion for a continuance is a matter of discretion, and we will not disturb a ruling on such a motion absent an abuse of that discretion and a showing of prejudice to the party seeking the continuance. Hoover, 395 S.W.3d at 103 (citing Blake v. Plus Mark, Inc., 952 S.W.2d 413, 415 (Tenn.1997)). The petition for discipline in this case was filed on June 22, 2011, and Mr. Mabry filed his answer on September 6, 2011. The case was set for hearing on May 9, 2012, and subsequently reset for hearing on July 18, 2012, due to the unavailability of a material witness. On July 12, 2012, Mr. Mabry moved for a continuance on the basis that, due to “communication errors,” two of his witnesses, Ms. McClendon and Mr. Rice, had not been notified of the hearing and could not attend. The Panel denied the motion. Mr. Mabry claims the Panel‘s decision was arbitrary, erroneous, and denied him the effective assistance of counsel guaranteed by the
Mr. Mabry next asserts that the Panel erred by not indicating in its judgment that it considered probation as a possible sanction. He raised this issue to the Panel in his motion to alter or amend judgment filed August 27, 2012. However, Mr. Mabry has cited no authority that would require the Panel to indicate in its judgment that it considered every possible form of punishment, including probation, and we are aware of no such authority. Again, this issue has no merit.
Mr. Mabry next complains that the Board and the Panel engaged in improper ex parte communications at the July 18, 2012 hearing, in that the Board provided the Panel with a “bound volume,” of which Mr. Mabry had “no idea what was contained within.” However, the Board notes that this “bound volume” merely contained the official public record of the case and that Mr. Mabry could have accessed any of these documents. Mr. Mabry fails to explain how or why he is entitled to relief on this issue, and we once again consider it to be without merit.
Finally, Mr. Mabry argues very generally that the alleged procedural deficiencies in his disciplinary process violated his due process rights under the
nally accused, they do have a number of significant procedural rights, such as “the right to be represented by counsel, to cross-examine witnesses called against them, and to present evidence on their own behalf.” Hyman v. Bd. of Prof‘l Responsibility, 437 S.W.3d 435, 445 (Tenn.2014) (citing
B. Evidentiary Claims
Mr. Mabry‘s next general argument is that the trial court erred in excluding his testimony and the testimony of Mr. Rice. During the trial court‘s evidentiary hearing, Mr. Mabry proffered the testimony of Mr. Rice, which indicated that Mr. Mabry was once monitored by TLAP for substance abuse and that he later mentored other lawyers in the program. Mr. Mabry also attempted to testify as an expert regarding alleged irregularities in his disciplinary proceedings. We reject both of Mr. Mabry‘s arguments.
The Tennessee Rules of Evidence apply in attorney disciplinary proceedings, “[e]xcept as otherwise provided in [the Supreme Court Rules].”
With regard to Mr. Rice‘s testimony, the trial court found that while Mr. Mabry‘s experiences with TLAP were laudable, the same evidence had been presented to the Panel through his own testimony. It was, therefore, unnecessary for Mr. Rice or any other TLAP representative to present this testimony to the trial court. In fact, such cumulative evidence would have been beyond the proper scope of the trial court‘s review, which, as a general matter, is limited to the transcript of evidence that was before the Panel. Id. Accordingly, we find that the trial court did not abuse its discretion in excluding Mr. Rice‘s testimony.
As for Mr. Mabry‘s qualifications as an expert, he cites to the Preamble to the Rules of Professional Conduct,
The trial court did not act arbitrarily in determining that Mr. Mabry was not qualified as an expert; rather, the trial court had good reason for this decision. Mere personal knowledge about his disciplinary proceedings did not qualify Mr. Mabry as an expert, and though he is technically considered an “expert in law” under
C. Arbitrary and Capricious Claim
Mr. Mabry argues that the Panel acted arbitrarily or capriciously in finding that he violated
The Panel was presented with evidence that Mr. Mabry filed a complaint on behalf of Ms. Shore, alleging a civil conspiracy between three Blount County officials—Mr. Goddard, Mr. Fields, and Mr. Cunningham. Within a month after the lawsuit was filed, Mr. Mabry voluntarily dismissed Mr. Goddard from the case, leaving Mr. Fields as the only defendant. Mr. Mabry later expressed that, at this point, the civil conspiracy claim became moot.9 Mr. Fields notified Mr. Mabry of his intention to seek sanctions if the case were not dismissed, but Mr. Mabry did not respond. Mr. Fields then filed a motion to dismiss and requested that sanctions be imposed against Mr. Mabry and Ms. Shore. Mr. Mabry still did not respond. The Blount County Circuit Court found that Mr. Mabry‘s conduct warranted a sanction of $5,000 in attorney‘s fees.
Upon review of these facts, we find that the Panel did not act arbitrarily or capriciously in determining that Mr. Mabry violated
D. Appropriate Punishment
The American Bar Association Standards for Imposing Lawyer Sanctions (1986, as amended 1992) (“ABA Standards“) provide guidelines for determining the appropriate level of discipline for lawyer misconduct. Lockett v. Bd. of Prof‘l Responsibility, 380 S.W.3d 19, 25-27 (Tenn.2012); see also
ABA Standard 4.42 states that suspension is generally appropriate for lack of diligence when “(a) a lawyer knowingly fails to perform services for a client and
We find that each of these ABA Standards applies to the facts and circumstances of Mr. Mabry‘s case. The record reflects that Mr. Mabry has been sanctioned by the Board seven times since 1991. This included an eleven month, twenty-nine-day suspension from the practice of law that he served on probation beginning July 2008. By an Order of Enforcement entered by this Court on July 15, 2008, Mr. Mabry‘s probation was conditioned upon him, among other things, “not engag[ing] in conduct which violates
In light of these facts, we agree with the Panel‘s finding that suspension is the appropriate sanction. As to the length of the suspension,
CONCLUSION
For the reasons stated above, the judgment of the Knox County Chancery Court is affirmed. The costs of this appeal are taxed to Thomas Fleming Mabry and his surety, for which execution may issue if necessary.
SHARON G. LEE
CHIEF JUSTICE
Notes
(a) A lawyer shall keep a client reasonably informed about the status of the matter and comply with reasonable requests for information within a reasonable time.
(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.
[A] lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if . . . the lawyer is discharged . . . . A lawyer who is discharged by a client shall, to the extent reasonably practicable, take steps to protect the client‘s interests. Depending on the circumstances, protecting the client‘s interests may include . . . cooperating with any successor counsel engaged by the client; . . . promptly surrendering papers and property to which the client is entitled and any work product prepared by the lawyer for the client and for which the lawyer has been compensated; [and] . . . promptly surrendering any other work product prepared by the lawyer for the client, provided, however, that the lawyer may retain such work product to the extent permitted by other law but only if the retention of the work product will not have a materially adverse [e]ffect on the client with respect to the subject matter of the representation. . . .