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In re Walwyn

Supreme Court of Tennessee, Nashville

August 4, 2017

IN RE: PAUL JULIUS WALWYN, BPR #018263

          Session February 9, 2017

         Review of Board of Professional Responsibility Panel No. 2015-2491-5-WM

         The Board of Professional Responsibility ("Board") initiated disciplinary proceedings against attorney Paul Julius Walwyn based on a client's complaint of professional misconduct. A hearing panel ("Panel") determined that Mr. Walwyn had violated the Rules of Professional Conduct ("RPC") and ultimately entered "Findings of Fact, Conclusions of Law and Amended Judgment of the Hearing Panel" ("Amended Judgment") imposing a public censure with a practice monitor for one year and six additional hours of continuing legal education ("CLE") on subjects related to the management of a law practice and/or client communication. Mr. Walwyn did not appeal the Amended Judgment to the trial court. The Board petitioned this Court for an order enforcing the Panel's Amended Judgment. Pursuant to Tennessee Supreme Court Rule 15.4(b) and (c), we determined that the punishment imposed by the Panel appeared inadequate and proposed that it be increased. Mr. Walwyn subsequently requested oral argument, which we granted. We now consider whether the punishment imposed by the Panel is appropriate under the circumstances of this case and is in uniformity with prior disciplinary decisions in this state. Following a thorough review of the record and the law, we conclude that it is not. Therefore, we modify the Panel's Amended Judgment to impose a one-year suspension from the practice of law, with six months to be served on active suspension and six months to be served on probation with a practice monitor. The duties and obligations in relation to the practice monitor shall be enforced in accordance with the Panel's Amended Judgment. We also impose six additional hours of CLE on subjects related to the management of a law practice and/or client communication.

         Tenn. Sup. Ct. R. 9, § 15.4; Judgment of the Hearing Panel Modified

          Connie Reguli, Brentwood, Tennessee, for the appellant, Paul Julius Walwyn.

          William C. Moody, Brentwood, Tennessee, for the appellee, Board of Professional Responsibility of the Supreme Court of Tennessee.

          Roger A. Page, J., delivered the opinion of the court, in which Jeffrey S. Bivins, C.J., and Cornelia A. Clark, Sharon G. Lee, and Holly Kirby, JJ., joined.

          OPINION

          ROGER A. PAGE, JUSTICE

         I. Facts and Procedural History

         This case arose from Mr. Walwyn's representation of Jonathan Gutierrez in a first degree murder trial in 2011. At the time, Mr. Walwyn had been licensed to practice law since 1996 and had been practicing criminal law for fifteen to sixteen years. Following Mr. Gutierrez's convictions for first degree murder and four counts of aggravated assault, he was sentenced to life in prison and four consecutive four-year sentences, for a total effective sentence of life plus sixteen years. Mr. Walwyn filed a motion for new trial, which was subsequently denied on September 30, 2011. However, Mr. Walwyn did not file a notice of appeal in Mr. Gutierrez's case until May 8, 2015, even though the Tennessee Rules of Appellate Procedure require that a notice of appeal be filed within thirty days.[1] The trial court appointed new counsel, Mr. Richard Strong, on June 3, 2015. The Tennessee Court of Criminal Appeals subsequently accepted the late-filed notice of appeal in the interest of justice. See Tenn. R. App. P. 4(a).

         On September 24, 2015, the Board filed a Petition for Discipline against Mr. Walwyn following a complaint of professional misconduct filed by Mr. Gutierrez on January 22, 2015. In the complaint, Mr. Gutierrez stated:

Mr. Walwyn filed a Motion for New Trial, and I was transported back to court in Davidson County a couple of times until the court denied my request for a new trial. Mr. Walwyn assured me that he would be filing the appeal soon thereafter.
Since that time[, ] I have contacted Mr. Walwyn several times via[] written correspondence and telephone[] to inquire about the status of my appeal[] and to request copies of my court records. I also had my mother to call Mr. Walwyn[] and meet with him at his office regarding the status of my appeal and obtaining my court records. Each time Mr. Walwyn assured me that everything was okay and that he would be sending me copies of my court records.
I never received any of my court records[, ] and, eventually[, ] Mr. Walwyn stopped accepting my calls[, ] and he has been unable to be reached by my family. Mr. Walwyn also has refused to acknowledge or respond to any of my written correspondences. As of this date[, ] it appears that Mr. Walwyn may have completely abandoned me and my case.
. . . I have tried repeatedly in every way I know how to find out about the status of my appeal. I still have no idea what the decision is, or if the court has even made a decision yet. Please help me find out what the status of my appeal is[] or require Mr. Walwyn to properly inform me and to forward a copy of my court records to me. Thank you for your time and cooperation in this matter.

         Based on this complaint, the Board alleged violations of Tennessee Rules of Professional Conduct 1.1 (Competence), 1.3 (Diligence), 1.4 (Communication), 1.16 (Declining or Terminating Representation), and 8.4(a), (c), and (d) (Misconduct). See Tenn. Sup. Ct. R. 8. On May 17, 2016, a hearing panel that was appointed by the Board pursuant to Tennessee Supreme Court Rule 9, section 6.4 held a hearing on the matter. At the Panel hearing, Mr. Walwyn asserted that he initially intended to file a timely notice of appeal. When he discovered that he had missed the filing deadline, he informed Mr. Gutierrez of the missed deadline but told him that he would still be entitled to an appeal.

         Due to a recorded interview with the television show Gangland and the subsequent admission of that interview at Mr. Gutierrez's trial, Mr. Walwyn did not believe he should represent Mr. Gutierrez on appeal in case he needed to testify about the circumstances of the interview for appellate purposes. Mr. Walwyn also explained that he no longer represented clients on appeal and that the appellate issues in this case would be difficult to handle because of the television interview. Therefore, Mr. Walwyn asserted that in 2012 or 2013, he began looking for a good attorney with appellate experience to replace him on appeal. In 2013 or 2014, Mr. Walwyn began talking to attorney Richard Strong, who had left the district public defender's office in 2013, about taking the case and eventually decided Mr. Strong was the best attorney to be appointed to represent Mr. Gutierrez. After this decision was made, Mr. Walwyn informed Mr. Gutierrez's family that Mr. Strong was willing to represent Mr. Gutierrez on appeal and provided them with Mr. Strong's telephone number. Mr. Walwyn explained that during the three-and-a-half-year delay, he also spoke with three or four assistant district attorneys about the matter and that none of them opposed Mr. Walwyn's treatment of the appeal.

         Mr. Walwyn acknowledged that "it took a long time[.] [I]t took longer than it should[.]" However, Mr. Walwyn emphasized that he did not abandon Mr. Gutierrez, stating that he and Mr. Gutierrez "were in contact sporadically through the whole process." Mr. Walwyn explained that between filing the motion for new trial in 2011 and filing the notice of appeal in 2015, he videoconferenced with Mr. Gutierrez on two or three occasions and spoke with him on the telephone "a couple of times." Mr. Walwyn asserted that he also spoke with Mr. Gutierrez's mother. Mr. Walwyn could specifically remember sending one letter to Mr. Gutierrez. Mr. Walwyn emphasized that Mr. Gutierrez never asked the court for another attorney, that Mr. Gutierrez was aware of Mr. Walwyn's plan to choose another attorney, and that their attorney/client relationship was amicable. Mr. Walwyn also asserted that the long wait benefited Mr. Gutierrez because he obtained appropriate counsel for his appeal and may have benefited from some changes in the law regarding the use of media in the courtroom.

         Regarding his practice in general, several character witnesses testified that Mr. Walwyn has a good reputation in the legal community.[2] Mr. Walwyn explained that he is in court every day and that he is in his office "Monday through Thursday probably two to three hours on average." He also meets with clients and works in his office on Sundays from 8:30 a.m. until 2:00 p.m. During his representation of Mr. Gutierrez, Mr. Walwyn had a case load of approximately 400 open files. At the time of the hearing, Mr. Walwyn had approximately 250 open case files, 100 of which Mr. Walwyn was merely tracking after a guilty plea or conviction was entered to ensure his clients were complying with post-judgment conditions. Mr. Walwyn conceded that in 2011, he did not calendar deadlines or use a tickler system; instead, he put notations in files. However, currently, his assistant maintains an electronic calendar for his office and checks two calendars on the Davidson County court clerk's website. He also utilizes three internal paper calendars in his office. Mr. Walwyn now uses a tickler system to remind him when things need to be filed, and someone in his office looks at active upcoming cases weekly to review and verify dates or information.

         Prior to this disciplinary hearing, Mr. Walwyn had been disciplined on five separate occasions. In 2003, he received a private reprimand for failing to file a proposed order for four years. In 2004, he received a public censure for filing a proposed order late in a child support and custody case, filing a notice of appeal in a criminal case five days late, filing an appellate brief sixty days late, and failing to file a timely petition to this Court, resulting in the petition being denied as untimely. In 2006, he received a public censure for failing to timely respond to Disciplinary Counsel. As a condition of his guilty plea, Mr. Walwyn was required to undergo a law practice management evaluation by another attorney; audit the law practice management course at the Nashville School of Law; and complete six additional hours of CLE hours on subjects related to client relations, the management of a law practice, the Rules of Professional Conduct, or disciplinary actions of the Board of Professional Responsibility. In 2006, Mr. Walwyn received a private informal admonition for neglecting to have a default judgment set aside and for failing to provide an affidavit to Disciplinary Counsel. Finally, in December 2015, Mr. Walwyn was suspended from the practice of law for six months, with thirty days to be served on active suspension and five months to be served on probation. See Walwyn v. Bd. of Prof'l Resp., 481 S.W.3d 151, 161-62, 171 (Tenn. 2015). Mr. Walwyn was still completing this probation at the time of his disciplinary hearing in this case.

         After considering all of the evidence, the Panel concluded that Mr. Walwyn had violated Rule 1.1 (Competence) by not exhibiting the skill, thoroughness, or preparation necessary when representing Mr. Gutierrez; Rule 1.3 (Diligence) by failing to file a timely notice of appeal and by waiting three and a half years to file a motion to accept a delayed appeal; Rule 1.4 (Communication) by failing to keep Mr. Gutierrez informed about the status of his case; and Rule 8.4(a) and (d) (Misconduct) by violating the Rules of Professional Misconduct and by engaging in conduct what was prejudicial to the administration of justice with the above stated conduct. See Tenn. Sup. Ct. R. 8. Based on these findings and consideration of the applicable aggravating and mitigating circumstances, the Panel concluded that Mr. Walwyn should be suspended from the practice of law for one year and that the entire year should be suspended and served on probation under the supervision of a practice monitor. The Panel also concluded that Mr. Walwyn should complete six additional hours of CLE on subjects related to the management of a law practice or client communication. However, because Tennessee Supreme Court Rule 9, section 12.2(a) states that "[a] suspension order must result in some cessation of the practice of law for not less than thirty days, " the Board filed a motion to alter or amend the Panel's judgment. The Panel subsequently filed an amended judgment reducing Mr. Walwyn's discipline to a public censure with the conditions that he be supervised by a practice monitor for one year and that he complete six additional hours of CLE on subjects related to the management of a law practice and/or client communication.

         Mr. Walwyn did not appeal the decision of the Panel. See Tenn. Sup. Ct. R. 9, § 33. The Board filed a Notice of Submission, Protocol Memorandum, and Order of Enforcement on July 20, 2016, seeking approval and enforcement of the Panel's decision. See Tenn. Sup. Ct. R. 9, § 15.4(b). On July 27, 2016, this Court entered an order proposing to increase Mr. Walwyn's punishment because it seemed inadequate. See Tenn. Sup. Ct. R. 9, § 15.4(c). Mr. Walwyn subsequently submitted an appellate brief and requested oral argument. See Tenn. Sup. Ct. R. 9, § 15.4(c). We now consider the case at bar.

         II. Standard of Review

         The Tennessee Supreme Court is the source of authority for the Board of Professional Responsibility and its functions. In re Vogel, 482 S.W.3d 520, 530 (Tenn. 2016) (citing Long v. Bd. of Prof'l Resp., 435 S.W.3d 174, 178 (Tenn. 2014)). "As a part of our duty to regulate the practice of law in this state, we have the ultimate disciplinary responsibility for violations of the rules governing our profession." Hughes v. Bd. of Prof'l Resp., 259 S.W.3d 631, 640 (Tenn. 2008) (citing Doe v. Bd. of Prof'l Resp., 104 S.W.3d 465, 469-70 (Tenn. 2003)). We examine disciplinary judgments pursuant to this Court's "inherent power" and "essential and fundamental right" to enforce the rules regulating the practice of law. Vogel, 482 S.W.3d at 530 (internal quotation marks omitted) (quoting Hughes, 259 S.W.3d at 640).

         Tennessee Supreme Court Rule 9, section 15 governs the Board's initiation, investigation, and hearing procedures in disciplinary matters. If the Disciplinary Counsel for the Board decides to prosecute formal charges against an attorney, the matter will be decided by a hearing panel. See Tenn. Sup. Ct. R. 9, § 15.2(a). At the hearing, "Disciplinary Counsel must prove the case by a preponderance of the evidence." Tenn. Sup. Ct. R. 9, § 15.2(h). After the hearing, the hearing panel submits "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." See Tenn. Sup. Ct. R. 9, § 15.3(a). After the hearing panel's judgment has been entered, the disciplined attorney can either appeal the decision, see Tenn. Sup. Ct. R. 9, § 33, or accept the judgment. If the punishment is disbarment, suspension, or public censure and the attorney does not appeal the decision, the Board must file in this Court a Notice of Submission, the judgment, a proposed Order of Enforcement, and a Protocol Memorandum. See Tenn. Sup. Ct. R. 9, § 15.4(b).

         This case is now before us because Mr. Walwyn did not appeal the Panel's amended judgment, and the Board seeks enforcement of the proposed punishment. Pursuant to Rule 9, section 15.4, it is this Court's duty to "review the recommended punishment provided in such judgment or settlement with a view to attaining uniformity of punishment throughout the State and appropriateness of punishment under the circumstances of each particular case." Tenn. Sup. Ct. R. 9, § 15.4(b). If we conclude that the punishment imposed is inadequate or excessive, we must:

issue an order advising the Board and the respondent attorney that it proposes to increase or to decrease the punishment. If the Court proposes to increase the punishment, the respondent attorney shall have twenty days from the date of the order to file a brief and request oral argument; if the Court proposes to decrease the punishment, the Board shall have twenty days from the date of the order within which to file a brief and request oral argument. Reply briefs shall be due within twenty days of the filing of the preceding brief. If a party requests oral argument, the Court may grant it. Upon termination of such proceedings as are requested, the Court may modify the judgment of the hearing panel or the settlement in such manner as it deems appropriate.

Tenn. Sup. Ct. R. 9, § 15.4(c). Given our inherent authority to enforce the disciplinary rules for the legal profession, the mandate that we review the recommended punishment with a "view to attaining uniformity of punishment, " and our ability to modify the judgment of the hearing panel as we deem appropriate, we conclude that our standard of review as to the recommended punishment is de novo. Tenn. Sup. Ct. R. 9, § 15.4(b)-(c); Hughes, 259 S.W.3d at 640.

         III. Analysis

         The primary issue in this case is whether the punishment imposed by the Panel was appropriate under the specific circumstances of this case and was uniform with other disciplinary decisions in similar circumstances. In his brief and during oral argument, Mr. Walwyn argued that the procedure utilized in this review violated his procedural and substantive due process rights. Therefore, we will first address those assertions.

         A. Due Process

         Both the United States and Tennessee Constitutions protect the right to due process of law. Section 1 of the Fourteenth Amendment to the United States Constitution provides, "No State shall make or enforce any law which . . . deprive[s] any person of life, liberty, or property, without due process of law . . . ." U.S. Const. amend. XIV, § 1. Article I, section 8 of the Tennessee Constitution states, "[N]o man shall be taken or imprisoned, or disseized of his freehold, liberties or privileges, or outlawed, or exiled, or in any manner destroyed or deprived of his life, liberty or property, but by the judgment of his peers or the law of the land." TN Const. Art. 1, § 8. We have determined that this provision of the Tennessee Constitution is "synonymous" with the Due Process Clause of the Fourteenth Amendment. Gallaher v. ...


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