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Sallee v. Tenn. Bd. of Prof'l Responsibility

Supreme Court of Tennessee, Knoxville

July 23, 2015

YARBORO SALLEE
v.
TENNESSEE BOARD OF PROFESSIONAL RESPONSIBILITY

Session January 8, 2015

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[Copyrighted Material Omitted]

Page 20

Appeal Pursuant to Tenn. S.Ct. R. 9, § 1.3 ; Judgment of the Trial Court Affirmed. Appeal from the Chancery Court for Knox County. No. 1840281. Don R. Ash, Judge.

Appellant Yarboro Sallee, Knoxville, Tennessee, self-represented.[1]

A. Russell Willis, Brentwood, Tennessee, for the appellee, Board of Professional Responsibility of the Supreme Court of Tennessee.

HOLLY KIRBY, J., delivered the opinion of the Court, in which SHARON G. LEE, C.J., and CORNELIA A. CLARK, GARY R. WADE, and JEFFREY S. BIVINS, JJ., joined.

OPINION

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HOLLY KIRBY, Judge

In this appeal from attorney disciplinary proceedings, the hearing panel of the Tennessee Board of Professional Responsibility suspended the law license of the appellant attorney for one year. The hearing panel determined that the attorney violated Rules 1.4, 1.5, 1.16, 4.4, and 8.4 of the Tennessee Rules of Professional Conduct. Its decision was based on, inter alia, the attorney's failure to communicate with the client, excessive fees, withholding items from the client's files after termination of her representation, and sending the clients' new attorney emails threatening criminal prosecution of the former clients. The attorney sought judicial review of the hearing panel's decision, and the trial court affirmed the decision of the hearing panel. The attorney now appeals to this Court. After a careful review of the record, we affirm.

Factual and Procedural Background

Appellant Yarboro Sallee obtained her license to practice law in Tennessee in 1994. For approximately eighteen years, she practiced law in Anderson County and surrounding areas without disciplinary incident.

The case that prompted this disciplinary complaint arose from a tragic occurrence. On October 15, 2009, Lori Noll fell down steps in her home. She died five days later. Ms. Noll was a wife, mother of two children, and the daughter of the claimants in this case, Frances Rodgers and Vearl Bible (collectively, the " Claimants" ). Despite a medical examiner's finding that the death was accidental, the Claimants suspected that their daughter's husband, Adam Noll, was responsible for her death, motivated by a one-million dollar insurance policy on Ms. Noll's life. A close friend of the Claimants recommended Attorney Sallee to advise them on their legal options.

On September 18, 2010, the Claimants had an initial meeting with Attorney Sallee, to discuss the feasibility of a wrongful death action on behalf of their deceased daughter. Attorney Sallee offered to investigate the matter. At this initial meeting, Attorney Sallee did not discuss her compensation with the Claimants, beyond telling them that she would not charge them a fee if her investigation failed to reveal anything suspicious.

A few days later, on September 21, 2010, Attorney Sallee met with the Claimants to discuss the 911 call Mr. Noll made regarding their daughter's death. In the 911 call, Mr. Noll gave the dispatcher a questionable explanation for Ms. Noll's fall and his subsequent actions. After Attorney Sallee conveyed her preliminary thoughts, the Claimants agreed to retain Attorney Sallee and wrote her a check for $5,000. In this meeting, the Claimants orally agreed to pay Attorney Sallee $250 per hour for her services.

At the time of the September 21 meeting, the Claimants and Attorney Sallee all realized that the statute of limitations for a wrongful death action would expire shortly,

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in mid-October 2010. Even though she had only an oral representation agreement, in light of the looming expiration of the limitations period, Attorney Sallee launched into intensive work on the case. Documentation later submitted by Attorney Sallee indicated that her initial work included tasks such as making several trips to the police station regarding the 911 tape, viewing multiple episodes of the 48 Hour television show on similar cases, researching wound patterns and medical examiner statutes, researching strangulation and comparing strangulation with blunt trauma, driving to various locations to pick up medical records, and then upon arrival spending substantial time waiting for the medical records.

Attorney Sallee communicated developments in the case primarily by sending emails to Ms. Rodgers. Although Attorney Sallee and Ms. Rodgers exchanged many emails, none of Attorney Sallee's emails detailed her time spent working on the case. A few contained general information, largely in the context of demands for more money. For example, an email from Attorney Sallee to Ms. Rodgers dated October 9, 2010, claimed that Attorney Sallee had already worked " in excess of 60 hours" and had " set aside other cases because things had to be done." The October 9 email to Ms. Rodgers insisted that Attorney Sallee " need[ed] to be paid and we need to have an agreement before I can spend the next 48 hours straight without an agreement." In response, Ms. Rodgers told Ms. Sallee that she and Mr. Bible would be happy to sign a written representation agreement if Attorney Sallee would send them one to review. Ms. Rodgers also asked Attorney Sallee to let them know if she needed more money.

A few days later, on October 13, 2010, Attorney Sallee told the Claimants that, in order to continue representing them, she would need a $20,000 retainer. Despite the absence of a written representation agreement, Ms. Rodgers wrote Attorney Sallee a check for an additional $15,000. Thus, combined with the prior $5,000, within roughly three weeks after her initial engagement, Ms. Sallee received a total of $20,000 in fees. During this time, Attorney Sallee did not provide the Claimants with any sort of billing statement.

On October 15, 2010, Attorney Sallee filed a timely wrongful death complaint against Mr. Noll in the Circuit Court of Knox County, Tennessee. Attorney Sallee's agreement was to represent only the Claimants. Despite this, the complaint drafted by Attorney Sallee was filed on behalf of not only the Claimants, but also on behalf of Ms. Noll's children and the estate of Ms. Noll. The complaint did not plead the claim by the grandparents as " next friend" of the grandchildren.

On October 19, 2010, Attorney Sallee sent another email to Ms. Rodgers. This email emphasized to Ms. Rodgers that Attorney Sallee had " already put in in excess of 80 plus hours and spent @200 in expenses like for the 911 recording and x-rays and mil[e]age." That same day, Ms. Rodgers received a visit at her home from the friend who had initially recommended Attorney Sallee to the Claimants. The friend admonished Ms. Rodgers that the Claimants had not given Attorney Sallee enough money for her retainer. This prompted Ms. Rodgers to immediately write Attorney Sallee an additional check, in the amount of $10,000. The friend then delivered Ms. Rodgers' check to Attorney Sallee.

In the same time frame, Attorney Sallee advised the Claimants that, in addition to the pending wrongful death action against Mr. Noll, they should seek custody of their grandchildren. Ms. Rodgers was reluctant to do so. She agreed, however, to permit

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Attorney Sallee to file a dependency and neglect petition as to the grandchildren in the juvenile court, on the Claimants' behalf. They agreed on a flat fee for Attorney Sallee for the juvenile court action, in the amount of $4,000.

During this time period, in connection with the pending wrongful death action, an issue arose concerning the retention of a crime scene expert. Attorney Sallee told the Claimants that a particular forensics expert, Rod Englert, was essential to their case, and asked the Claimants to write an additional $5,000 check to retain Mr. Englert as their expert witness.

In sum, then, within a month after the initial engagement, the Claimants provided Attorney Sallee with three separate checks: (1) a $10,000 check, as a further retainer (2) a $4,000 flat fee for the juvenile court proceeding, and (3) a $5,000 check to retain the forensics expert, Mr. Englert. This was in addition to the $20,000 in fees they had already paid her.

Ms. Rodgers found that she felt uneasy about Attorney Sallee's advice to retain Mr. Englert as the Claimants' expert witness. After doing online research on the topic, Ms. Rodgers found another expert, Dr. Cyril Wecht, whom she preferred. Ms. Rodgers described Dr. Wecht as " world-renowned" in the field of forensics. After Ms. Rodgers relayed to Attorney Sallee her research on Dr. Wecht, Attorney Sallee reluctantly drew up an engagement letter for Dr. Wecht and forwarded Ms. Rodgers' $5000 expert retainer check to him.

In addition to the wrongful death lawsuit and the juvenile court petition, Attorney Sallee filed a petition on the Claimants' behalf in the probate court, aimed at preventing Mr. Noll from liquidating the estate of Ms. Noll. Attorney Sallee did not tell the Claimants in advance that she was going to file the probate court petition on their behalf.

In late November 2010, approximately two and a half months after their initial consultation, Attorney Sallee sent Ms. Rodgers an email exhorting her that the Claimants " needed to give her some more money, that she was out of money," and that she " needed at least another $20,000." Ms. Rodgers complied with this demand by sending Attorney Sallee a check in the amount of $20,000. According to documentation later submitted by Attorney Sallee,[2] after she received Ms. Rodgers' $20,000 check, Attorney Sallee worked approximately 11.5 more hours.

Finally, in early December 2010, the Claimants asked Attorney Sallee for a written contract addressing her representation of them. In response, Attorney Sallee gave the Claimants several confusing draft agreements that included " a conglomeration of hourly charges, plus contingency [fees]." The inclusion of contingency fees in the draft agreements came as a surprise to the Claimants; they had been under the impression that Attorney Sallee was to receive only hourly fees, not contingency fees. In view of this discrepancy, the Claimants declined to sign the proposed agreements. A torrent of emails between Attorney Sallee and Ms. Rodgers ensued.

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On December 10, 2010, almost three months after their initial meeting, Attorney Sallee sent an email to Ms. Rodgers that included complaints about her compensation. Unlike her many preceding emails, Attorney Sallee's December 10 email included a precise total for Attorney Sallee's time entries to date; Attorney Sallee claimed that she had put in " [o]ver 528.1 hours so far . . . [a]nd that is not comprehensive and does not include fees for time in phone calls or e-mails or time and a half for necessary work after six." Attorney Sallee bluntly criticized Ms. Rodgers as a client and insisted on a fee contract that included contingency fees:

So the total value of just my time not including calls and emails is in excess of [$]132,000. I was content to just go along and just get what was convenient for you, so is this better? This case, cases is, are [sic] worth more than that to me IF you let me run it and win. Your back seat driving will destroy it. I will be forced to withdraw if I don't get Englert and whatever experts I need. I am willing to work something out agreeable to us all but I will not brook [sic] anymore second guessing. . . . The cases need what they need Fran and you don't know anything about it. . . . To protect me and my interests, we need to sign a contract covering all cases and insurance funds and contingency fees next week. We need to come to a clear understanding. . . . I will send you a proposal and you can agree to find someone else, but I will have the right to file against any funds recovered in the future by any other lawyer. . . . You are not the lawyer, I am. You don't know enough to know what I need. I do.

Despite Attorney Sallee's jeremiad, the Claimants continued to refuse to sign the fee agreements she proposed.

In an apparent attempt to pressure the Claimants into executing her proposed fee agreement, in early January 2011, Attorney Sallee threatened to " drop [the Claimants] from the case." Finally fed up, the Claimants instead " decided it was time to drop her." The Claimants sent Attorney Sallee a formal letter terminating her representation of them in all matters.

Attorney Sallee did not take the termination well. She first accused the Claimants of conspiring behind her back. When the Claimants requested their file, Attorney Sallee refused to provide them the entire file. As justification, Attorney Sallee asserted that the Claimants owed her " eighty-plus thousand dollars, in addition to what [they had] already paid her." She mailed the Claimants a letter to this effect on January 5, 2011.

In mid-January 2011, Mr. Bible and Ms. Rodgers each sent a complaint letter to the Tennessee Board of Professional Responsibility (" BPR" or " the Board" ), outlining some of the difficulties with Attorney Sallee's representation of them. The letters to the BPR protested Attorney Sallee's refusal to turn over files, medical records and other items, questioned Attorney Sallee's mental health status[3] in light of her behavior, and noted that Attorney Sallee had never given them an itemized billing statement, despite her numerous assertions regarding the amount of time she had spent working on their legal matters.

In early February 2011, Attorney Sallee sent the BPR her initial response to the Claimants' complaints: a 21-page letter, single-spaced. Although she had never

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given the Claimants an itemization of her time spent on their cases, Attorney Sallee attached to her BPR response an itemized " billing statement" with detailed time entries on the work she claimed to have done for the Claimants. [4]

Despite the Claimants' complaint to the BPR, Attorney Sallee continued to refuse to turn over to the Claimants items from their files. This forced the Claimants to hire another attorney, Larry Vaughan, to obtain the withheld items. To that end, in early March 2011, Attorney Vaughan filed an action on behalf of the Claimants against Attorney Sallee in the Knox County Chancery Court. The lawsuit specifically sought medical records on Ms. Noll that Attorney Sallee had retrieved from the hospital, as well as brain tissue slides from Ms. Noll's autopsy that were in Attorney Sallee's possession.

The filing of the chancery court complaint did not persuade Attorney Sallee to turn over the disputed items to the Claimants. Instead, on March 4, 2011, Attorney Sallee sent Attorney Vaughan an email threatening legal action against the Claimants if they did not drop the lawsuit:

Dear Mr. Vaughan: I am in receipt of your complaint drafted on behalf of Fran Rodgers (Mr. Bible was not my client). I suggest an immediate meeting between you and I at your earliest convenience. The crucial facts pled in your complaint are grossly incorrect or deliberate misrepresentations or outright fraud by your client. Further, there are issues that you have apparently unfairly been deliberately kept ignorant of. I am confident that you will agree to immediately withdraw that complaint after I share the overwhelming proof on the facts in this matter. If not, of course, I will be filing a cross complaint against your clients for theft of services and other unsavory torts committed by them against my firm. . . . Sincerely, Yarboro Sallee

Attorney Vaughan apparently did not respond to this email, and his failure to respond displeased Attorney Sallee. Consequently, three days later, on March 7, 2011, Attorney Sallee sent Attorney Vaughan another email. This one threatened criminal charges:

I am enclosing a letter to you that needs an immediate response from you. Please respond to my offer of meeting with you to show you the overwhelming proof that I have against your client. This investigation[]is required by Rule 11. If I do not hear from you today before end of business, you can respond by e-mail to ac[c]ept my offer of a meeting, I will be proceeding to charge your clients with felony violations of TCA 39-14-104 (1). Sincerely, Yarbi

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Attorney Sallee's saber-rattling emails apparently did not have their intended effect; the chancery court lawsuit to obtain the Claimants' materials proceeded. In early April 2011, the chancellor ordered Attorney Sallee to turn over the remaining items to the Claimants.

In the meantime, the BPR began investigating the Claimants' complaints. In December 2011, the Board filed the instant petition for discipline against Attorney Sallee. The petition alleged violations of Tenn. S.Ct. R. 8, RPC 1.1 (competence), RPC 1.4 (communication), RPC 1.5 (fees), RPC 1.16(d) (protecting client's interests after discharge), RPC 4.4(a)(2) (threatening criminal or lawyer disciplinary charges), RPC 8.4(a) (misconduct by violation of RPC), and RPC 8.4(d) (misconduct by conduct prejudicial to administration of justice). A BPR hearing panel was appointed.

The filing of the BPR petition was followed by a plethora of pre-trial motions and disputes. After these were resolved, on August 14 and 15, 2012, the panel conducted its final hearing. The hearing panel heard testimony from Ms. Rodgers as well as several expert witnesses. Attorney Sallee was represented by counsel at the final hearing, but she did not attend it.[5]

In light of Attorney Sallee's absence from the final hearing, her June 2012 deposition was admitted into evidence. In her deposition testimony, Attorney Sallee said that, during the time she was representing the Claimants, she was also representing 28 to 30 other clients in ongoing matters. She asserted that she refrained from pursuing new business while she was representing the Claimants. Attorney Sallee conceded that, when she filed the Claimants' wrongful death lawsuit, she had never successfully prosecuted a wrongful death claim to resolution. She maintained that, in her first meeting with the Claimants, she gave them a copy of a proposed fee contract. However, she acknowledged that the Claimants never executed that proposed fee contract or any other written fee agreement.

In her testimony, Attorney Sallee addressed the number of hours she worked on the Claimants' wrongful death case: " [I]t was in excess of 40 [hours per week] . . . at several points, as well as weekends." She said that she used email to update the Claimants on the work she was doing and the number of hours she had worked. Regarding the " billing statement" submitted to the BPR in response to the complaint, Attorney Sallee purportedly could not recall when the document was created, but she claimed that she " added to it at some point as I went along." Asked if her preparation of the " billing statement" was contemporaneous with the provision of legal services, Attorney Sallee gave this response: " I kept notes, and I -- obviously didn't type it up like this, but I kept notes, yes. But my concern was getting the work done."

In the deposition, Attorney Sallee was questioned at length about a number of the entries on the itemized " billing statement." She acknowledged errors in the entries but claimed that all of the errors were inadvertent, the result of her focus on " getting the work done."

For example, BPR counsel questioned Attorney Sallee about time entries on the " billing statement" that indicated that, on some days, she had worked anywhere from

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19 hours to 23 hours in a single day.[6] Attorney Sallee insisted that she had in fact worked the number of hours reflected on the statement:

[W]hen I did these columns, some of them have -- are not exactly lined up where they should be. But did I work many, many hours a day devoted to this case? Yes, I did. And the activities here were all performed. Now, where they were exactly on what day, I'm -- I think that the columns are a little off.

Asked if she slept on days when she claimed to have worked 19 to 23 hours, Attorney Sallee responded, " Yes, I did, but not that much. And as I said, it appears to me that what's happened is these columns are not lined up completely correctly. All the work was performed that's listed."

BPR counsel also asked Attorney Sallee about time entries on the " billing statement" on her retrieval and review of 911 records. Specifically, Attorney Sallee was asked why she did not consolidate four different time entries on her review of the 911 records. She did not directly answer the question, but instead said that the time entries were for time transcribing the 911 tape, as well as time spent doing " various research on that and -- on the Internet as well as books and materials like that." BPR counsel also questioned Attorney Sallee's choice to personally make the many trips to the police office and to various hospitals to retrieve records--charged at a lawyer's rate--instead of employing a courier or an assistant to do so. Attorney Sallee responded that she could not hire a non-lawyer to perform these tasks because police officials and hospital representatives did not want to give her the information she sought, and " the case . . . had gotten so convoluted and at such a late date that the only person that could do it [pick up records] would have been an attorney."

In her deposition testimony, Attorney Sallee maintained that it was not inappropriate for her to charge the Claimants for the considerable time she spent educating herself about pathology and autopsy protocols, instead of enlisting the aid of an expert.[7] At the time, she said, she was planning to take the deposition of an expert, but nevertheless believed that the hours she charged the Claimants were " all necessary. Did I try to -- to find out as much as I could about the subject matter to achieve my clients' goals? Yes, I did."

At the time of her deposition, Attorney Sallee claimed that the Claimants owed her " eighty-some thousand" dollars, over and above the $54,000 they had already paid.[8] Before the Claimants filed their complaint with the BPR, Attorney Sallee filed an attorney fee lien for these fees against the ...


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