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.
JANICE M. HOLDER, JUSTICE
A federal bankruptcy court entered judgment denying a Nashville attorney's application for approximately $372,000 in
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.
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. 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]
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
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"
09/28/2009 08:21 PM
To < firstname.lastname@example.org>
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 ...