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Hancock v. Board of Prof'l Responsibility of Supreme Court of Tennessee

Supreme Court of Tennessee, Nashville

September 3, 2014

WILLIAM CALDWELL HANCOCK
v.
BOARD OF PROFESSIONAL RESPONSIBILITY OF THE SUPREME COURT OF TENNESSEE

Session: February 5, 2014.

Tenn. S.Ct. R. 9, § 1.3 Direct Appeal; Judgment of the Chancery Court Affirmed in Part; Reversed in Part. Direct Appeal from the Chancery Court for Davidson County. Nos. 11-1816-IV & 11-1797-IV. Donald P. Harris, Special Judge.

William Caldwell Hancock, Nashville, Tennessee, Pro se.

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 SHARON G. LEE, J., joined. GARY R. WADE, C.J., and CORNELIA A. CLARK, J., each filed a concurring opinion. WILLIAM C. KOCH, JR., J., not participating. GARY R. WADE, C.J., concurring in part and dissenting in part.

OPINION

Page 845

JANICE M. HOLDER, JUSTICE

A federal bankruptcy court entered judgment denying a Nashville attorney's application for approximately $372,000 in

Page 846

attorney's fees and expenses. Nine months later, the attorney emailed the bankruptcy judge who denied his fee application, calling the judge a " bully and clown" and demanding that he provide a written apology for denying the fee application. The Board of Professional Responsibility instituted a disciplinary action against the attorney, and a hearing panel of the Board found that the attorney violated several Rules of Professional Conduct by sending the email and recommended that the attorney be suspended from the practice of law for thirty days. The chancery court modified the hearing panel's judgment to include additional violations for misconduct associated with the attorney's briefs filed in the district court but affirmed the remainder of the hearing panel's judgment. The attorney timely appealed to this Court. We affirm the hearing panel's conclusion that the attorney's email violated the rule against ex parte communications and was also sanctionable as " conduct intended to disrupt a tribunal." We conclude, however, that the hearing panel erred by finding the attorney in violation of the ethical rule that prohibits attorneys from making false statements about the qualifications or integrity of a judge. We also reverse the chancery court's modification of the hearing panel's judgment. We affirm the attorney's thirty-day suspension from the practice of law.

OPINION

I. Facts and Procedural History

On August 20, 2010, the Board of Professional Responsibility of the Supreme Court of Tennessee (" the Board" ) filed a petition for discipline against William Caldwell Hancock, an attorney licensed in Tennessee since 1977. In its petition, the Board alleged that Mr. Hancock violated a number of the Rules of Professional Conduct while acting as debtor's counsel for Barnhill's Buffet, Inc. (" Barnhill's" ) in a bankruptcy action filed in the United States Bankruptcy Court for the Middle District of Tennessee.[1] On February 1, 2011, the Board amended its petition for discipline, but the facts alleged in the Board's initial and amended petitions are identical. A hearing panel heard the case on October 11 and 12, 2011, during which the following facts were revealed.

On December 3, 2007, Mr. Hancock filed a voluntary bankruptcy petition on behalf of Barnhill's in the United States Bankruptcy Court for the Middle District of Tennessee. After several months of contentious litigation, Mr. Hancock moved to withdraw as Barnhill's counsel on April 18, 2008, stating:

[I have] been subjected to what are considered to be criminal threats of adverse action to be taken unless [Barnhill's] or other parties could not or would not affirmatively meet the demand of other counsel for a set aside of estate or creditor assets to secure said counsel's legal fees, which threats turned into reality when those demands were not met. The United States Trustee seems unwilling to remedy that misconduct. That same counsel has knowingly made (and refused to withdraw) wholly false allegations regarding [me] and [Barnhill's]

Page 847

management in order to leverage a fees carve out of $45,000 from a creditor who opposed conversion.

Mr. Hancock subsequently filed a notice to withdraw his motion, but his employment was eventually terminated when Barnhill's bankruptcy was converted to a Chapter 7 proceeding and a trustee was appointed. On June 3, 2008, Mr. Hancock filed an initial fee application with the bankruptcy court seeking $355,975 for attorney's fees and expenses. The United States Trustee objected to Mr. Hancock's fee application, arguing, among other things, that Mr. Hancock's fees were unnecessarily and unreasonably inflated by his " abusive . . . litigation tactics" during the case and by his failure to make adequate disclosures concerning his alleged prior representation of an interested party in the Barnhill's case. On July 7, 2008, Mr. Hancock filed a First and Final Application for Allowance of Compensation, seeking $356,554.50 in fees and $1071.55 in expenses. Mr. Hancock amended his final fee application on July 17, 2008, requesting total compensation in the amount of $372,967.55 for attorney's fees and expenses.

Following a five-day hearing, the bankruptcy court entered a twenty-six-page memorandum opinion on December 9, 2008, denying Mr. Hancock's request for fees but awarding him $1071.55 for expenses. In support of its denial of Mr. Hancock's fee, the bankruptcy court described Mr. Hancock's behavior throughout the Barnhill's case as " unprofessional," " dilatory," " disruptive," " troubling," " unacceptable," " abusive," " intractable," and " unfortunate." The bankruptcy court acknowledged that Mr. Hancock possessed a " keen intellect and understanding of bankruptcy law," but it was " troubled deeply" by his conduct and was " saddened by [his] apparent inability to either realize or control his inappropriate actions and his propensity for conservative disclosures rather than overt transparency."

Mr. Hancock appealed the bankruptcy court's denial of his fee to the United States District Court for the Middle District of Tennessee. Mr. Hancock's brief was due to be filed in the district court on March 27, 2009, but on March 25, 2009, he moved to extend the time for filing a brief, which the district court granted, extending Mr. Hancock's filing deadline to April 27, 2009. On May 1, 2009, Mr. Hancock filed a second motion to extend his time for filing a brief and additionally sought " permission to file a brief in excess of [twenty-five] but not more than [fifty] pages in length." The district court granted Mr. Hancock's requests on May 11, 2009. As of August 5, 2009, however, Mr. Hancock had not yet filed a brief, and the district court therefore entered an order to show cause why his appeal should not be dismissed. Rather than respond to the district court's show cause order, Mr. Hancock filed a 128-page brief on August 14, 2009.

The Trustee moved to dismiss Mr. Hancock's appeal or, in the alternative, to compel his compliance with the district court's prior order limiting his brief to fifty pages. On August 31, 2009, the district court entered an order requiring Mr. Hancock to file a revised brief not to exceed fifty pages. In response, Mr. Hancock filed a " revised brief" on September 21, 2009. Although the two briefs were substantively identical, the font size and spacing used in the revised brief reduced its size from 128 pages to fifty-one pages. Rather than dismiss Mr. Hancock's appeal for his failure to file a compliant brief, the district court entered an order on September 23, 2009, summarily affirming the bankruptcy court's ruling. In its order, the district court explained that it chose a summary affirmance because it " fully expect[ed Mr. Hancock] to appeal further to the Sixth

Page 848

Circuit Court of Appeals, where he might receive a decision on the merits."

On September 28, 2009, Mr. Hancock sent the following email to Judge George Paine, the bankruptcy court judge who denied his fee application in the Barnhill's case:

" Caldwell Hancock"

< hancocklaw@comcase.net>

09/28/2009 08:21 PM

To < george_paige@tnmb.uscourts.gov>

cc

bcc

Subject FW: Past Due Rent Suites 243 and 245

History: This message has been forwarded.

I have been thinking about what you did to me and my family every hour of every day since last December. I get litte reminders day. Here's one from a few days ago demonstrating the product of your handwork.

My family and I are still waiting for your written apology.

I also invite you to meet with me face to face - if you have the courage - and explain to me man to man and eye to eye WHY you denied my fees - I say " why" because you should know and I do know that the garbage you published is not law and not fact and is just cover -

there is an unspoken " why" and I have a pretty good idea what it is but really would like to hear it from your lips if you have the courage to be truthful -

and I want you to tell me why you chose to trash me and my work and skills in words that no decent human being would dare manufacture and publish about another unless his intention was to destroy another's livelihood.

I am available just about every day at lunchtime at any place suitable to you.

You have singlehandedly destroyed my ability to make a living - If you have a decent bone in your body you will get down off your high horse and act like a man instead of a bully and clown, show some honesty and interity now that you have proved your point, and repair the damage you have done. The written apology would be a good starting place and the confession would be good for your immortal soul. Then maybe you and I can find a way to make peace with each other. Don't you think that would be a really good idea?

I look forward to hearing from you.

Caldwell Hancock

The Hancock Law Firm

102 Woodmont Boulevard, Suite 200

Nashvile, TN 37205

(615) 345-0202

(615) 296-0947 fax

Two days after sending the email, Mr. Hancock appealed to the Sixth Circuit, which affirmed the district court's decision.

Page 849

See Hancock v. McDermott, 646 F.3d 356, 360 (6th Cir. 2011).

Findings of the Hearing Panel

On November 2, 2011, the hearing panel filed its written findings with the Board in compliance with Tennessee Supreme Court Rule 9. See Tenn. S.Ct. R. 9, § 8.3 (requiring the hearing panel to submit its written findings within fifteen days of the conclusion of the hearing).[2] The hearing panel concluded that by sending the email to Judge Paine, Mr. Hancock violated Rules 3.5(b)[3] and (e),[4] 8.2(a)(1),[5] and 8.4(a) and (d).[6] The hearing panel, however, did not find that Mr. Hancock violated any other Rules of Professional Conduct as alleged by the Board in its petitions.[7] The hearing panel considered the American Bar Association's Standards for Imposing Lawyer Sanctions (" ABA Standards" ) and determined that a suspension was appropriate. The hearing panel next determined that the Board had proven the following aggravating factors: (1) Mr. Hancock's multiple offenses; (2) his refusal to acknowledge the wrongful nature of his conduct; and (3) his substantial experience in the practice of law. In mitigation, the hearing panel considered Mr. Hancock's personal and emotional problems during and after the Barnhill's case. Based on its assessment of the evidence and the relevant aggravating and mitigating circumstances, the hearing panel concluded that Mr. Hancock should be suspended from the practice of law for thirty days.

Both parties appealed the hearing panel's judgment by filing separate petitions for certiorari in the Chancery Court for Davidson County. See Tenn. S.Ct. R. 9, § 1.4 ( " An appeal from the recommendation or judgment of a hearing panel must be filed in the circuit or chancery court of the county wherein the office of the respondent[-attorney]

Page 850

was located at the time the charges were filed with the Board." ). The chancery court heard arguments from counsel and entered judgment on October 25, 2012, affirming Mr. Hancock's thirty-day suspension but modifying the hearing panel's judgment to include violations of Rules 3.2,[8] 3.4(c),[9] 8.4(a), and 8.4(d) for failing to file a brief in the district court that complied with the district court's prior orders and with its local rules.[10]

In its memorandum opinion, the chancery court explained that although the hearing panel found that Mr. Hancock's revised brief failed to comply with the district court's orders and with the local rules, the hearing panel nevertheless failed to find Mr. Hancock in violation of the Rules of Professional Conduct for his actions concerning the district court brief. The chancery court concluded that the hearing panel's failure to make these findings " appears to have been an oversight and . . . renders the decision of the hearing panel arbitrary with regard to these alleged violations. . . ." The chancery court further explained that it modified the judgment rather than remand the case to the hearing panel because " the violations alleged would not justify the imposition of additional sanctions and this matter needs to be concluded." Accordingly, the chancery court affirmed Mr. Hancock's thirty-day suspension from the practice of law, and Mr. Hancock timely appealed to this Court.

II. Analysis

Our review of the hearing panel's judgment is governed by Tennessee Supreme Court Rule 9, section 1.3, which 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.

Absent these limited circumstances, the hearing panel's decision should not be disturbed on appeal. Maddux v. Bd. of Prof'l Responsibility, 409 S.W.3d 613, 621-22 (Tenn. 2013). Tennessee Supreme Court Rule 9, section 1.3 further prohibits us from substituting our judgment for that of the hearing panel on questions of fact and the weight of the evidence.

A. Ex Parte Communication

We first address Mr. Hancock's contention that the hearing panel erred by finding him in violation of Tennessee Supreme Court Rule 8, RPC 3.5(b), which

Page 851

states that " [a] lawyer shall not communicate ex parte with [a judge] during the proceeding unless authorized to do so by law or court order." Mr. Hancock maintains that because he had appealed Judge Paine's ruling before he sent the email, it was not sent " during the proceeding" and is therefore not an ex parte communication. See generally Malmquist v. Malmquist, 415 S.W.3d 826 (Tenn. Ct. App. 2011), perm. app. denied (Tenn. Feb. 21, 2012) (concluding that a trial judge was not required to recuse himself from a case when a threat allegedly made by one of the litigants was communicated to the trial judge through a third party while the case was on appeal). In contrast, the Board argues that although Mr. Hancock had appealed, his email was sent while the Barnhill's bankruptcy was ongoing in Judge Paine's court. The Board therefore contends that Mr. Hancock's email was sent " during the proceeding."

The phrase " during the proceeding" is not defined in Rule 3.5 or in its accompanying comments. Comment 1 to Rule 3.5 states, however, that " [m]any forms of improper influence upon a tribunal . . . are specified in the Tennessee Code of Judicial Conduct, with which an advocate should be familiar." The Code of Judicial Conduct's analog to Rule 3.5 prohibits judges from " initiat[ing], permit[ting], or consider[ing] ex parte communications . . . concerning a pending or impending matter." Tenn. S.Ct. R. 10, RJC 2.9. The Code of Judicial Conduct defines a " pending matter" as " a matter that has commenced" and explains that " a matter continues to be pending through any appellate process until final disposition." Tenn. S.Ct. R. 10, Terminology. Because the judicial prohibition against ex parte communications extends to cases that have not yet completed the appellate process, we can determine no reason why attorneys should not be similarly constrained. See Leslie W. Abramson, The Judicial Ethics of Ex Parte and Other Communications, 37 Hous. L. Rev. 1343, 1391 (2001) (noting that " a proceeding is 'pending' from the filing of the claim until the rendition of a final judgment" and that a lawyer may only communicate with a judge about the merits of the case " [o]nce the time for appeal has run" ); Alex Rothrock, Ex Parte Communications with a Tribunal: From Both Sides, 29 Colo. Law. 55, 58 (2000) (noting that " [t]he 'pending or impending proceeding' limitation on prohibited ex parte communications has been extended to Rule 3.5(b)" ); see also Restatement (Third) of The Law Governing Lawyers § 113(1) (2000) (prohibiting attorneys from " knowingly communicat[ing] ex parte with a judicial officer before whom a proceeding is pending concerning the matter, except as authorized by law" ) (emphasis added). Accordingly, Rule 3.5(b)'s proscription of ex parte communications extends " through any appellate process until final disposition." Tenn. S.Ct. R. 10, Terminology.

Here, Mr. Hancock emailed Judge Paine on September 28, 2009, and specifically referenced Judge Paine's denial of his fee application. Two days later, Mr. Hancock appealed the district court's summary affirmance to the United States Court of Appeals for the Sixth Circuit. Because the time in which Mr. Hancock could appeal the district court's ruling had not yet expired, the email was sent " during the proceeding" and constitutes an ex parte communication in violation of Rule 3.5(b). We therefore affirm the hearing panel's finding that Mr. Hancock violated Rule 3.5(b).

Although we have concluded that Mr. Hancock's email to Judge Paine constituted an ex parte communication, we must nevertheless address Mr. Hancock's alternative argument that he may not be disciplined for his email because the email was

Page 852

permitted by Rule 9003(a) of the Federal Rules of Bankruptcy Procedure. Rule 9003(a) states that " [e]xcept as otherwise permitted by applicable law, any examiner, any party in interest, and any attorney, accountant, or employee of a party in interest shall refrain from ex parte meetings and communications with the court concerning matters affecting a particular case or proceeding."

Mr. Hancock contends that federal precedents have interpreted Rule 9003(a) as only prohibiting communications made prior to the trial court's rendering a final decision. Mr. Hancock cites, for example, the United States Court of Appeals for the Fifth Circuit's decision in In re Texas Extrusion Corp., 844 F.2d 1142 (5th Cir. 1988). In that case, the bankruptcy judge verbally confirmed a joint plan of reorganization and asked counsel for one of the creditors to prepare proposed findings of fact and conclusions of law. Id. at 1149-50. The creditor's counsel submitted proposed findings of fact and conclusions of law directly to the bankruptcy judge and did not provide copies to the debtor's counsel. Id. at 1150. On appeal, the debtor argued that the creditor's counsel engaged in ex parte communications in violation of Bankruptcy Rule 9003(a). Id. at 1164. The Fifth Circuit reasoned, however, that " [t]he matter was no longer pending for purposes of these provisions prohibiting ex parte contacts between counsel for a party and a judge in whose court that party's case is pending." Id.

Notwithstanding the factual differences between Mr. Hancock's case and In re Texas Extrusion Corp., we do not view the Fifth Circuit's decision as controlling law in this disciplinary proceeding. As the advisory committee's notes to Rule 9003(a) make clear, " [Rule 9003(a)] is not a substitute for or limitation of any applicable canon of professional responsibility or judicial conduct." Fed. R. Bankr. P. 9003(a) advisory committee's note.

Pursuant to Tennessee Supreme Court Rule 8, RPC 8.5(a), Mr. Hancock is subject to this Court's disciplinary authority " regardless of where [his] conduct occur[red]." The applicable standards of professional conduct in this case therefore derive from Tennessee Supreme Court Rule 8, not Bankruptcy Rule 9003(a). See Tenn. S.Ct. R. 8, RPC 8.5(b)(1) (stating that the applicable rules of professional conduct " for conduct in connection with a matter pending before a tribunal[ are] the rules of the jurisdiction in which the tribunal sits, unless the rules of the tribunal provide otherwise." ); see also Bankr. M.D. Tenn. R. 2090-2(a) ( " The standards of professional conduct for an attorney who appears for any purpose [in the United States Bankruptcy Court for the Middle District of Tennessee] shall include the current rules of professional conduct adopted by the Supreme Court of the State of Tennessee." ).[11] Accordingly, Mr. Hancock's preemption argument is without merit. We therefore affirm the hearing panel's finding that Mr. Hancock violated Rule 3.5(b).

B. Conduct Intended to Disrupt a Tribunal

We must next determine whether the hearing panel erred by finding that Mr. Hancock's email constituted " conduct intended to disrupt a tribunal." Tenn. S.Ct. R. 8, RPC 3.5(e).

Page 853

Comment 5 to Rule 3.5(e) explains that an attorney's " function is to present evidence and argument so that the cause may be decided according to law." To that end, " [a]n advocate can present the cause, protect the record . .., and preserve professional integrity" without " belligerence or theatrics." Tenn. S.Ct. R. 8, RPC 3.5 cmt. 5. An attorney's ethical obligation to avoid engaging in conduct intended to disrupt a tribunal extends to " any proceeding of a tribunal, including a deposition," Tenn. S.Ct. R. 8, RPC 3.5 cmt. 6, and the attorney's conduct " need not occur inside the courtroom to be disruptive to a tribunal." Ann. Mod. Rules Prof. Cond., Rule 3.5 (7th ed. 2011). But see Geoffrey C. Hazard, Jr. & W. William Hodes, The Law of Lawyering § 31.6, at 31-38 (3d ed. 2007) (opining that " [i]f a lawyer takes action outside a courtroom setting, it is virtually impossible that it could 'disrupt' a tribunal or be intended to do so" ).

Based on the text of the rule and its comments, the scope of Rule 3.5(e) is clearly limited to those situations in which an attorney's actions interfere with a tribunal's ability to conduct its affairs. Although we recognize that Mr. Hancock was not involved in the ongoing litigation of Barnhill's bankruptcy action when he emailed Judge Paine, a " proceeding" was nevertheless pending because his time for appealing to the Sixth Circuit had not yet expired. As the hearing panel acknowledged, Mr. Hancock's email has a " threatening tone" and represents the " abusive [and] obstreperous conduct" that Rule 3.5(e) prohibits. Tenn. S.Ct. R. 3.5(e) cmt. 5. We therefore conclude that Mr. Hancock's violation of Rule 3.5(e) is supported by substantial and material evidence.[12]

C. Statement Concerning Judge Paine's Integrity

We next address Mr. Hancock's challenge to Tennessee Supreme Court Rule 8, RPC 8.2(a)(1), which provides that " [a] lawyer shall not make a statement that the lawyer knows to be false or that is made with reckless disregard as to its truth or falsity concerning the qualifications or integrity of . . . a judge . . . ." Mr. Hancock maintains that Rule 8.2(a)(1) is a facially unconstitutional, content-based restriction on his right to free speech under the United States and Tennessee Constitutions. See U.S. Const. amend. I ( " Congress shall make no law . . . abridging the freedom of speech . . . ." ); Tenn. Const. art. 1, § 19 (stating in part that " [t]he free communication of thoughts and opinions, is one of the invaluable rights of man, and every citizen may freely speak, write, and print on any subject" ); see also S. Living, Inc. v. Celauro, 789 S.W.2d 251, 253 (Tenn. 1990) (recognizing that Article I, Section 19 of the Tennessee Constitution " should

Page 854

be construed to have a scope at least as broad" as that of the First Amendment to the United States Constitution). Specifically, Mr. Hancock borrows from the law of defamation and argues that Rule 8.2(a)(1) violates the First Amendment because it does not require the Board to prove that the attorney " published" the false statement about the judge's integrity or qualifications. Mr. Hancock also contends that Rule 8.2(a)(1) is unconstitutional as applied to his case because the Board did not prove that his statements in the email were " actually false."

It is well settled that this Court will decide constitutional issues only when doing so is " absolutely necessary for [the] determination of the case and the rights of the parties." Owens v. State, 908 S.W.2d 923, 926 (Tenn. 1995). We therefore resolve appeals on non-constitutional grounds whenever it is possible to do so. Keough v. State, 356 S.W.3d 366, 371 (Tenn. 2011). Because we conclude that Rule 8.2 implicitly requires proof of publication, we decline to decide Mr. Hancock's constitutional argument.

Rule of Professional Conduct 8.2 prohibits an attorney from making false statements concerning the integrity or qualifications of a judge because these statements " unfairly undermine public confidence in the administration of justice." Tenn. S.Ct. R. 8, RPC 8.2 cmt. 1; Ramsey, 771 S.W.2d at 121 (describing the harm that results from a lawyer's false statements about a judge as being the " dimin[ution of] the confidence of the public in our courts" ). By the same token, Rule 8.2 is " not designed to shield judges from unpleasant or offensive criticism." Office of Disciplinary Counsel v. Gardner, 99 Ohio St.3d 416, 2003 Ohio 4048, 793 N.E.2d 425, 432 (Ohio 2003); see also In re Green, 11 P.3d 1078, 1087 (Colo. 2000) (recognizing a " reduced governmental interest" when the attorney's criticisms of the judge were communicated only to the judge and opposing counsel); In re Wilkins, 777 N.E.2d 714, 718 (Ind. 2002) (recognizing " the state's interest in preserving the public's confidence in the judicial system" ); In re Holtzman, 78 N.Y.2d 184, 577 N.E.2d 30, 33, 573 N.Y.S.2d 39 (N.Y. 1991) (stating that an attorney's public statements to media about a trial judge " undermine[d] public confidence in the judicial system" ); Tobin A. Sparling, Attorneys Un-Muzzled: Does Republican Party of Minnesota v. White Invalidate the Use of an Objective Standard in Cases Involving Extrajudicial Speech Criticizing a Judge?, 30 Hamline L. Rev. 59, 70 (2007) (characterizing courts' primary justification for sanctioning attorneys for statements about judges as being that " [t]he judicial system suffers when [an attorney's] false criticism diminishes public confidence in its effectiveness and impartiality" ). But see In re Evans, 801 F.2d 703, 706 (4th Cir. 1986) (disbarring an attorney from federal court for statements made in a letter to a judge that were " undignified, discourteous, and degrading" although the letter was sent to only the subject judge).

This Court has long recognized that attorneys are in the best position to know the " character and efficiency of our judges." In re Hickey, 149 Tenn. 344, 258 S.W. 417, 429 (Tenn. 1923). Because attorneys are among the most credible of witnesses on the qualifications of judges, the public routinely relies on attorneys' assessments when deciding whether to vote for a particular candidate seeking judicial office. Tenn. S.Ct. R. 8, RPC 8.2 cmt. 1; see also In re Green, 11 P.3d at 1085 (acknowledging that public criticism of judges by attorneys is an important public interest because many judges in Colorado are subject to retention elections). Rule 8.2 therefore encourages attorneys to provide

Page 855

" honest and candid opinions" for the public's benefit. Tenn. S.Ct. R. 8, RPC 8.2 cmt 1.

Given the purpose of Rule 8.2(a)(1) and the harm that it seeks to prevent, we conclude that an attorney may be disciplined pursuant to Rule 8.2 only if the false statement is communicated to a third party. See Restatement (Third) of The Law Governing Lawyers § 114 (providing that " [a] lawyer may not knowingly or recklessly make publicly a false statement of fact concerning the qualifications or integrity of an incumbent of a judicial office" ) (emphasis added); see also id. at cmt. b (" Because the purpose of [Section 114] is to protect the public reputation of the judicial and public legal office, there is less reason for concern with statements made by a lawyer in private conversation. Such conversation is not included within the rule." ). We are therefore unable to conclude that Mr. Hancock's email falls within the scope of Rule 8.2(a)(1) because the record lacks any indication that Mr. Hancock sent the email to anyone other than Judge Paine.[13] Although we agree with the hearing panel's conclusion that Mr. Hancock's email was " extremely disrespectful," we cannot agree that it is sanctionable under Rule 8.2(a)(1). We therefore reverse the hearing panel's finding that Mr. Hancock violated Rule 8.2(a)(1).

D. Chancery Court's Modification of the Judgment

We next address the chancery court's modification of the judgment to include violations of Rules of Professional Conduct 3.2, 3.4(c), 8.4(a), and 8.4(d) arising out of Mr. Hancock's late-filed and noncompliant briefs in the district court. The chancery court concluded that because the hearing panel found as a factual matter that Mr. Hancock's revised brief failed to comply with the district court's orders and with the local rules, the hearing panel's failure to find rule violations for these actions constituted " oversight and . . . render[ed] the decision of the hearing panel arbitrary." See Tenn. S.Ct. R. 9, § 1.3 (permitting the court to reverse or modify the hearing panel's decision if the decision is, among other things, " arbitrary or capricious or characterized by an abuse of discretion or clearly unwarranted discretion" ). Although we agree that the hearing panel's judgment does not include any mention of the alleged violations arising from Mr. Hancock's briefs in the district court, we disagree with the chancery court's conclusion that the absence of findings renders the hearing panel's decision arbitrary.

A decision is arbitrary if it " disregards the facts or circumstances of the case without some basis that would lead a reasonable person to reach the same conclusion." City of Memphis v. Civil Serv. Comm'n, 216 S.W.3d 311, 316 (Tenn. 2007) (quoting Jackson Mobilphone Co. v. Tenn. Pub. Serv. Comm'n, 876 S.W.2d 106, 110-11 (Tenn. Ct. App. 1993)). Based on our review of the hearing panel's memorandum

Page 856

opinion and its written judgment, we are unable to conclude that the hearing panel made any " finding[], inference[], conclusion[] or decision[]" with respect to Mr. Hancock's alleged violations of Rules 3.2 and 3.4(c).[14] It is well settled that the reviewing court is without authority to amend, modify, or reverse the judgment of the hearing panel unless the appealing party establishes one of the enumerated circumstances in section 1.3. Hyman v. Board of Prof'l Responsibility, No. E2012-02091-SC-R3-BP, 437 S.W.3d 435, 443-44, 2014 WL 1280265, at *7 (Tenn. Mar. 31, 2014). As its basis for modifying the hearing panel's judgment, the chancery court stated that " the violations alleged would not justify the imposition of additional sanctions and this matter needs to be concluded." Neither of these justifications expressed by the chancery court are among those enumerated in Tennessee Supreme Court Rule 9, section 1.3.

As Mr. Hancock notes in his briefs filed in this Court, the hearing panel's silence concerning his alleged violations of Rules 3.2, 3.4(c), 8.4(a), and 8.4(d) may reflect its intent to dismiss these allegations of misconduct. Perhaps the panel was persuaded by his testimony that a resurgence of mental illness during the time of his appeal to the district court precluded him from complying with the court's orders. See Tenn. S.Ct. R. 8, RPC 3.2 cmt. 1 (recognizing that " there will be occasions when a lawyer may properly seek a postponement for personal reasons, such as illness" ); id., RPC 3.4(c) (restricting the reach of the rule to situations in which the lawyer " knowingly disobey[s] an obligation under the rules of a tribunal" ) (emphasis added); id., RPC 8.4 cmt. 9 (stating in part that " [f]ailure to comply with a court order is not a disciplinary offense . . . when it does not evidence disrespect for the law . . . because the lawyer is unable to comply with the order" ).

Conversely, the panel may have agreed with the Board's position that Mr. Hancock failed to prove that his mental illness prevented him from complying with his ethical obligations and that his testimony concerning his mental illness is merely a mitigating factor for the panel to consider when determining the appropriate sanction to impose. See ABA Standard 9.22(c) (listing the lawyer's " personal or emotional problems" as a mitigating factor to punishment). The parties' arguments raise legitimate questions about the credibility of Mr. Hancock's testimony and the weight of the evidence adduced at the hearing. To that end, the hearing panel could have resolved these issues in favor of either party. The point remains, however, that the hearing panel did not resolve these issues, and without a specific finding, the chancery court could only speculate as to the hearing panel's intended conclusion. Consequently, the chancery court substituted its judgment for that of the hearing panel, which is expressly prohibited by Tennessee Supreme Court Rule 9, section 1.3. Accordingly, the chancery court erred by modifying the hearing panel's judgment.

The Board bears the burden of proof in attorney disciplinary proceedings.

Page 857

See Tenn. S.Ct. R. 9, § 8.2 ( " In hearings on formal charges of misconduct, Disciplinary Counsel must prove the case by a preponderance of the evidence." ). If the hearing panel fails to make findings concerning a specific rule violation, it is incumbent on Disciplinary Counsel to address the issue before a petition for certiorari is filed and the hearing panel is without jurisdiction to modify its judgment. In this case, for example, the Board could have raised any alleged omissions by the hearing panel in the form of a motion to alter or amend the hearing panel's judgment pursuant to Tennessee Rule of Civil Procedure 59. See Tenn. S.Ct. R. 9, § 23.2 (stating in part that " the Tennessee Rules of Civil Procedure . . . apply in disciplinary cases" ). Due to the limited standard of review on appeal, we can only construe the hearing panel's silence as a dismissal of the allegations of misconduct concerning Mr. Hancock's briefs filed in the district court.

E. Appropriate Sanction

We must now determine whether the thirty-day suspension imposed by the hearing panel is excessive. When determining the appropriate sanction, this Court looks to the ABA Standards as our " guidepost[s]." Lockett v. Bd. of Prof'l Responsibility, 380 S.W.3d 19, 26 (Tenn. 2012); see also Tenn. S.Ct. R. 9, § 8.4. Application of the ABA Standards requires us to consider " the duty violated; . . . the lawyer's mental state; . . . the potential or actual injury caused by the lawyer's misconduct; and . . . the existence of aggravating or mitigating factors." ABA Standard 3.0; see also Lockett, 380 S.W.3d at 26.

In this case, Mr. Hancock's misconduct represents a breach of his duty to the legal system. See ABA Standard 6.3 (entitled " Improper Communications with Individuals in the Legal System" and stating in part that " the following sanctions are generally appropriate in cases involving attempts to influence a judge" ); see also ABA Standards app. 1 (connecting the presumptive sanctions of Standard 6.3 to violations of Rule 3.5). Accordingly, we look to ABA Standard 6.32, which states that " [s]uspension is generally appropriate 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." Because Mr. Hancock emailed Judge Paine prior to perfecting his appeal to the Sixth Circuit, his email was sent while the Barnhill's matter was still pending. Mr. Hancock acknowledged at the hearing that he should not have sent the email but did so out of frustration. We are therefore convinced that ABA Standard 6.32's presumptive sanction of suspension is appropriate in this case.

Pursuant to Tennessee Supreme Court Rule 9, section 4.2, " No suspension shall be ordered for a specific period less than thirty days or in excess of five years." The length of an attorney's suspension, however, depends in large part on the aggravating and mitigating circumstances expressed in ABA Standard 9.0. See ABA Standard 9.1 (" After misconduct has been established, aggravating and mitigating circumstances may be considered in deciding what sanction to impose." ). Here, the hearing panel found as aggravating factors Mr. Hancock's multiple offenses, his prior disciplinary history, and his substantial experience in the practice of law. See ABA Standard 9.22. In mitigation, however, the hearing panel found that Mr. Hancock was experiencing personal or emotional problems when his misconduct occurred. See ABA Standard 9.32(c). On balance, we agree with the hearing panel's conclusion

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that the aggravating and mitigating circumstances justify a thirty-day suspension. We therefore affirm Mr. Hancock's suspension from the practice of law for thirty days.

III. Conclusion

We reverse the chancery court's modification of the hearing panel's judgment. We also reverse the hearing panel's finding that Mr. Hancock violated Tennessee Supreme Court Rule 8, RPC 8.2(a)(1). We affirm the judgments of the chancery court and the hearing panel in all other respects and affirm Mr. Hancock's suspension from the practice of law for thirty days. Costs of this appeal are taxed one-half to William Caldwell Hancock and his surety and one-half to the Board of Professional Responsibility of the Supreme Court of Tennessee, for all of which execution may issue if necessary.

CONCUR BY: CORNELIA A. CLARK; GARY R. WADE (In Part)

CONCUR

Cornelia A. Clark, J., concurring in result.

I concur in the lead opinion's conclusions that Mr. Hancock violated Tennessee Supreme Court Rule 8, RPC 3.5(b) and 3.5(e) and that " an attorney may be disciplined pursuant to [RPC]8.2 only if the false statement is communicated to a third party." I disagree, however, with the lead opinion's conclusion that " the record lacks any indication that Mr. Hancock sent the email to anyone other than Judge Paine." I would instead hold that the record contains substantial and material evidence establishing that Mr. Hancock sent an email to third parties. As a result, I would affirm the hearing panel's judgment that Mr. Hancock violated RPC 8.2(a)(1). In all other respects, I concur in the lead opinion's decision affirming Mr. Hancock's thirty-day suspension from the practice of law.

Mr. Hancock's September 28, 2009 email to Judge Paine consisted of the one-page email addressed to Judge Paine, which is quoted in the lead opinion, but it also included a September 11, 2009 email Mr. Hancock sent to three other persons--Candace Holloran, Terrie Carlton, and John Roe. The September 11, 2009 email to third parties was attached to and forwarded along with Mr. Hancock's September 28, 2009 email to Judge Paine. In his September 11, 2009 email to third parties, Mr. Hancock made the following statements about Judge Paine:

As you know, as everybody who knows me knows, the scurrilous and defamatory opinion that George Paine put on the internet denying my $371,000 in fees and destroying my reputation as a competent bankruptcy lawyer has put me out of business.
. . . .
It will take some time to build my [sic] and may not be doable at all as long as Paine's poison is out there destroying me every day.

During his testimony before the hearing panel, Mr. Hancock was most insistent that his September 28, 2009 email to Judge Paine included, and was incomplete without, the forwarded and attached September 11, 2009 email to third parties. Mr. Hancock objected to the admission of exhibit forty-four on the ground that it was " incomplete," because it consisted of only the one-page September 28, 2009 email to Judge Paine. Later, referring to the September 28, 2009 email to Judge Paine and the September 11, 2009 email to third parties, Mr. Hancock instructed Disciplinary Counsel that she should " [p]ut them all

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together and that's one email." Still later Mr. Hancock testified as follows regarding the emails.

Okay. It is one e-mail. And the first page of it is what you have showed me. The second page of it is, is a forwarding of a previous e-mail that I had sent to my landlord when, when I couldn't pay my rent and they dun me. They were going to throw me out of my office, and that was September 09. And when that happened, that was just about the same time Judge Trauger threw out my appeal, and I, I didn't take it very well.

(Emphasis added.) Mr. Hancock subsequently agreed that three-page exhibit forty-five, which included the September 11, 2009 email, constituted the entire email he sent to Judge Paine on September 28, 2009. Mr. Hancock declared that he had no objection to Disciplinary Counsel moving the three pages into evidence as exhibit forty-five. Mr. Hancock thus authenticated the September 11, 2009 email he sent to third parties, requested that it be introduced into evidence, expressly indicated that he had no objection to its entry into evidence, and agreed that he sent the email to his landlords and to Judge Paine.

Although neither the hearing panel nor the trial judge quoted from the September 11, 2009 email, the hearing panel referred to exhibit forty-five in its decision. Additionally, the Board had alleged in paragraphs sixty-four, sixty-five, and sixty-eight of the amended petition that the statements Mr. Hancock made about Judge Paine in the September 11, 2009 email amounted to a violation of RPC 8.2(a). At no point during the proceedings before the hearing panel did the Board abandon its assertion that these statements constituted a violation of RPC 8.2(a). Thus, based on the circumstances of this case, including: (1) the allegations of the amended petition concerning the conduct that violated RPC 8.2(a); (2) the proof in this record of the September 11, 2009 email Mr. Hancock sent to three other persons; and (3) the deferential standard of review this Court must apply when reviewing a hearing panel's decision, I would hold that the record contains substantial and material evidence supporting the hearing panel's judgment that Mr. Hancock violated RPC 8.2(a) by publishing statements about Judge Paine to third parties.

Because the record on appeal contains substantial and material evidence of publication to third parties, it is not necessary in this case to decide whether a judge's disclosure of an ex parte communication pursuant to Tennessee Supreme Court Rule 10, RJC 2.9(A)(5) would alone constitute publication sufficient to establish a violation of RPC 8.2.

For the reasons stated herein, I would affirm the hearing panel's judgment that Mr. Hancock violated RPC 8.2(a)(1). In all other respects, I concur in the lead opinion's decision affirming Mr. Hancock's thirty-day suspension from the practice of law.

DISSENT

Gary R. Wade, C.J., concurring in part and dissenting in part.

I concur in the lead opinion's conclusions that (1) Mr. Hancock violated Tennessee Supreme Court Rule 8, RPC 3.5(b); (2) the disciplinary authority of this Court is not preempted by the Federal Rules of Bankruptcy Procedure; (3) discipline imposed pursuant to Tennessee Supreme Court Rule 8, RPC 8.2 requires that the false statement about a judicial or legal official be communicated to a third party; and (4) the chancery court erred by modifying the judgment of the hearing panel to include violations of Rules of Professional Conduct 3.2, 3.4(c), 8.4(a), and 8.4(d). I disagree, however, with the conclusion that

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Mr. Hancock violated Tennessee Supreme Court Rule 8, RPC 3.5(e), and the imposition of a thirty-day suspension. Because I cannot find a basis to suspend Mr. Hancock for his offensive misbehavior, I would hold that a public reprimand is the appropriate sanction in this case.

Rule 3.5(e) of the Rules of Professional Conduct states that " [a] lawyer shall not . . . engage in conduct intended to disrupt a tribunal." Tenn. S.Ct. R. 8, RPC 3.5(e). As pointed out in the lead opinion, an attorney's ethical obligation to avoid such conduct extends to " any proceeding of a tribunal, including a deposition," Tenn. S.Ct. R. 8, RPC 3.5 cmt. 6, and the attorney's conduct " need not occur inside the courtroom to be disruptive to a tribunal." Ann. Mod. Rules Prof. Cond., Rule 3.5 (7th ed. 2011). The lead opinion does not, however, explore the meaning of " tribunal," which is defined as follows:

(m) " Tribunal" denotes a court (including a special master, referee, judicial commissioner, or other similar judicial official presiding over a court proceeding), an arbitrator in a binding arbitration proceeding, or a legislative body, administrative agency, or other body acting in an adjudicative capacity. A legislative body, administrative agency, or other body acts in an adjudicative capacity when a neutral official, after the presentation of evidence or legal argument by a party or parties, will render a binding legal judgment directly affecting a party's interests in a particular matter.

Tenn. S.Ct. R. 8, RPC 1.0(m) (emphasis added). The plain language of this definition somewhat limits the scope of when a court (or a substitute judicial official) may be considered a " tribunal" for purposes of the Rules of Professional Conduct. Specifically, the definition contemplates that the judicial official will be " presiding over" a proceeding and, at some future time, " will render" a judgment in a particular matter.

In this instance, the bankruptcy judge to whom Mr. Hancock directed his email was no longer presiding over the bankruptcy court proceeding at the time of Mr. Hancock's offensive misconduct. The bankruptcy court entered its final judgment on December 9, 2008, whereas Mr. Hancock did not send the email until September 28, 2009, more than nine months later. At that point, there could be no possibility that the bankruptcy judge was going to " render a binding legal judgment directly affecting a party's interests in [the Barnhill's] matter," such judgment having already been entered. In fact, by the time Mr. Hancock sent his email to the bankruptcy judge, the district court had already entered its September 23, 2009 order affirming the bankruptcy court's judgment, and Mr. Hancock was already in the process of appealing to the Sixth Circuit Court of Appeals. In consequence, although I agree that Mr. Hancock's email constituted an ex parte communication in violation of Tennessee Supreme Court Rule 8, RPC 3.5(b), I cannot interpret this misconduct as " intend[ing] to disrupt a tribunal" as defined by RPC 3.5(e).

When an attorney is found to have violated Rule 3.5 of the Rules of Professional Conduct, we refer to the presumptive sanctions of Standard 6.3 in the American Bar Association's Standards for Imposing Lawyer Sanctions. The lead opinion upholds Mr. Hancock's thirty-day suspension based upon Standard 6.32, which provides that " [s]uspension is generally appropriate 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

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the legal proceeding." (Emphasis added.) Because a judge is not a " party" to a proceeding, the application of Standard 6.32 in this case would require that by sending the inappropriate email to the bankruptcy judge, Mr. Hancock " cause[d] interference or potential interference with the outcome of the legal proceeding."

Under these circumstances, where the email was sent more than nine months after the bankruptcy judge had issued a final judgment, Mr. Hancock's misconduct could not have interfered, either actually or potentially, with the outcome of the Barnhill's proceeding in the bankruptcy court. Specifically, because the bankruptcy judge was no longer presiding over the Barnhill's proceeding, Mr. Hancock's email of September 28, 2009, could not have influenced the decision of the bankruptcy judge or otherwise interfered with the judgment rendered on December 9, 2008. In my view, therefore, Standard 6.32 does not apply, and, instead, the appropriate sanction is found in Standard 6.34--" Admonition is generally appropriate when a lawyer engages in an isolated instance of negligence in improperly communicating with an individual in the legal system." Considering the aggravating and mitigating factors in this case, I would impose a public reprimand rather than a thirty-day suspension.[1]


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