Session February 9, 2017
of Board of Professional Responsibility Panel No.
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.
Sup. Ct. R. 9, § 15.4; Judgment of the Hearing Panel
Reguli, Brentwood, Tennessee, for the appellant, Paul Julius
William C. Moody, Brentwood, Tennessee, for the appellee,
Board of Professional Responsibility of the Supreme Court of
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.
A. PAGE, JUSTICE
Facts and Procedural History
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. 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).
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
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.
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.
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
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.
his practice in general, several character witnesses
testified that Mr. Walwyn has a good reputation in the legal
community. 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.
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.
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.
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.
Standard of Review
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).
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).
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.
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
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.