Administrative Proceedings
Review of Attorney Disciplinary Proceedings
Except as indicated, all indented material is copied directly from the court’s opinion.
Decisions of the Tennessee Supreme Court
Waggoner v. Board of Responsibility of the Supreme Court of Tennessee, No. W2022-01294-SC-R3-BP, p. 7-8 (Tenn. July 11, 2023).
As the “final and ultimate arbiter of the propriety of the professional conduct of all lawyers practicing in Tennessee,” Talley v. Bd. of Pro. Resp., 358 S.W.3d 185, 190 (Tenn. 2011) (citing Flowers v. Bd. of Pro. Resp., 314 S.W.3d 882, 891 (Tenn. 2010); Sneed v. Bd. of Pro. Resp., 301 S.W.3d 603, 612 (Tenn. 2010)), we are tasked with “the ultimate disciplinary responsibility for violations of the ethical rules that govern the legal profession,” Sneed, 301 S.W.3d at 612 (citing Doe v. Bd. of Pro. Resp., 104 S.W.3d 465, 469–70 (Tenn. 2003)). Thus, we review judgments in disciplinary proceedings “in light of our inherent power . . . [and] fundamental right to prescribe and administer rules pertaining to the licensing and admission of attorneys.” Bd. of Pro. Resp. v. Parrish, 556 S.W.3d 153, 162 (Tenn. 2018) (alteration in original) (internal quotation marks omitted) (quoting Bd. of Pro. Resp. v. Allison, 284 S.W.3d 316, 321 (Tenn. 2009)).
When reviewing a disciplinary judgment, we apply the same standard of review as the trial court. Id. (citing Long v. Bd. of Pro. Resp., 435 S.W.3d 174, 178 (Tenn. 2014)); see also Tenn. Sup. Ct. R. 9, § 33.1(d). Under that standard, we may reverse or modify the hearing panel’s decision only where:
the rights of the party filing the Petition for Review have been prejudiced because the hearing panel’s findings, inferences, conclusions or decisions are: (1) in violation of constitutional or statutory provisions; (2) in excess of the hearing 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.
Tenn. Sup. Ct. R. 9, § 33.1(b). A hearing panel’s decision is supported by “substantial and material evidence” where the evidence “furnishes a reasonably sound factual basis for the decision being reviewed.” Parrish, 556 S.W.3d at 163 (quoting Sneed, 301 S.W.3d at 612). “A reasonably sound basis is less than a preponderance of the evidence but more than a scintilla or glimmer.” Harris v. Bd. of Pro. Resp., 645 S.W.3d 125, 137 (Tenn. 2022) (quoting Beier v. Bd. of Pro. Resp., 610 S.W.3d 425, 438 (Tenn. 2020)).
We review questions of law de novo without a presumption of correctness. Id. at 136 (citing Bd. of Pro. Resp. v. Barry, 545 S.W.3d 408, 420 (Tenn. 2018)). However, we defer to the hearing panel’s determinations on questions of fact and the weight given to them. Id.; Long, 435 S.W.3d at 178 (citing Allison, 284 S.W.3d at 323).
In re Hickman, No. M2022-00755-SC-BAR-BP, p. 8-9 (Tenn. June 30, 2023).
“This Court is the final and ultimate arbiter of the propriety of the professional conduct of all lawyers practicing in Tennessee.” Flowers v. Bd. of Pro. Resp., 314 S.W.3d 882, 891 (Tenn. 2010). In that role, we promulgate and enforce the rules that govern the legal profession in this State. Bd. of Pro. Resp. v. MacDonald, 595 S.W.3d 170, 181 (Tenn. 2020).
When a complaint is filed against an attorney alleging professional misconduct, disciplinary counsel for the Board of Professional Responsibility investigates the allegations. Tenn. Sup. Ct. R. 9, § 15.1(b). At the conclusion of the investigation, disciplinary counsel may recommend dismissal, private informal admonition, private reprimand, public censure, or prosecution of formal charges. Id. When a complaint is prosecuted, the matter typically is decided by a hearing panel of the Board. See id. § 15.2(a), (d). Disciplinary counsel has the burden to prove allegations against an attorney “by a preponderance of the evidence.” Id. § 15.2(h).
The hearing panel must submit “its findings and judgment, in the form of a final decree of a trial court, to the Board within thirty days after the conclusion of the hearing.” Id. § 15.3(a). If a hearing panel recommends discipline, the attorney can appeal the decision or accept the judgment. See id. § 33. If the punishment is disbarment, suspension, or public censure and no appeal is perfected from the hearing panel’s decision, the Board files with this Court a notice of submission, the judgment, a proposed order of enforcement, and a protocol memorandum. Id. § 15.4(b).
Even if neither party appeals the judgment of a hearing panel, we review the judgment under our inherent authority to supervise and regulate the practice of law in Tennessee. In re Sitton, 618 S.W.3d 288, 294 (Tenn. 2021); see also In re Cope, 549 S.W.3d 71, 73 (Tenn. 2018); In re Vogel, 482 S.W.3d 520, 530 (Tenn. 2016). To facilitate that review, we may direct the Board to file the record of the disciplinary proceeding. See Tenn. Sup. Ct. R. 9, § 15.4(b). Our review is aimed at “attaining uniformity of punishment throughout the State and appropriateness of punishment under the circumstances of each particular case.” Id.; see also id. § 15.4(d).
If the punishment appears “inadequate or excessive,” this Court “issue[s] an order advising the Board and the respondent attorney that it proposes to increase or to decrease the punishment.” Id. § 15.4(c). When, as here, this Court proposes to increase the punishment, the Court allows the attorney and the Board to file briefs. Id.
We review the hearing panel’s recommended punishment de novo. In re Walwyn, 531 S.W.3d 131, 137 (Tenn. 2017). We consider “all of the circumstances of the particular case and also, for the sake of uniformity, sanctions imposed in other cases presenting similar circumstances.” In re Cope, 549 S.W.3d at 74 (quoting Bd. of Pro. Resp. v. Allison, 284 S.W.3d 316, 327 (Tenn. 2009)). After considering the record and the briefs, we “may modify the judgment of the hearing panel . . . in such manner as [we] deem[] appropriate.” Tenn. Sup. Ct. R. 9, § 15.4(c).
