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Garland v. Board of Professional Responsibility of Supreme Court of Tennessee

Supreme Court of Tennessee, Knoxville

August 10, 2017

DANNY C. GARLAND, II
v.
BOARD OF PROFESSIONAL RESPONSIBILITY OF THE SUPREME COURT OF TENNESSEE

          Session January 10, 2017

         Direct Appeal from the Chancery Court for Knox County No. 189106-3 Jon Kerry Blackwood, Senior Judge No. E2016-01106-SC-R3-BP - Filed August 10, 2017

         A hearing panel of the Board of Professional Responsibility determined that a Knoxville attorney should receive a public censure based on his violations of Rules of Professional Conduct 1.3, 1.4, and 8.4(a). The trial court affirmed the hearing panel's decision. After careful consideration, we affirm the judgment of the trial court.

         Appeal Pursuant to Tenn. Sup. Ct. R. 9, § 1.3; Judgment of the Chancery Court Affirmed

          Danny C. Garland, II, Knoxville, Tennessee, pro se.

          Krisann Hodges, Brentwood, Tennessee, for the appellee, Board of Professional Responsibility of the Supreme Court of Tennessee.

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

          OPINION

          SHARON G. LEE, JUSTICE

         I. Background

         This disciplinary action involves Knoxville attorney Danny C. Garland, II.[1] When this action began, Mr. Garland had been practicing law for seventeen years. He had one full-time employee, Jamie Harris, whose responsibilities included communicating with clients and preparing documents. He also had one part-time employee, Carol Snyder, who occasionally worked full time and whose responsibilities included answering the telephone and filing. Mr. Garland's practice primarily involved family law and consisted of about 100 active files. He relied on Ms. Harris to talk to clients and answer questions because he was often in court, depositions, or meetings. According to Mr. Garland, he reviewed his active files every thirty to forty-five days to ensure that no action was needed.

         In September 2010, Samantha McKeogh hired Mr. Garland to handle a stepparent adoption for her husband, Jason McKeogh. Mr. Garland had previously represented Ms. McKeogh in divorce proceedings. Both Ms. McKeogh and Mr. Garland believed that it would be difficult to get the child's father, Scott Atchley, to consent to an agreed order due to his history of erratic and uncooperative behavior. After Mr. Garland filed a petition for adoption on January 20, 2011, initial efforts to get Mr. Atchley's signature were unsuccessful. However, on July 7, 2011, Mr. Atchley came to Mr. Garland's office and signed an agreed order consenting to the adoption. Mr. Garland was not present, and his staff did not advise him that Mr. Atchley had signed the agreed order. Ms. Harris sent an email to Ms. McKeogh informing her that Mr. Atchley had signed the order. Ms. Snyder then mistakenly placed the agreed order in Ms. McKeogh's closed divorce file rather than in her open adoption file.

         On August 8, 2011, Ms. McKeogh sent an email to Ms. Harris asking about a hearing date, requesting a copy of the agreed order that Mr. Atchley had signed, and advising that she had a new address in Clarksville, Tennessee. Over five months later, on January 17, 2012, Ms. McKeogh emailed Ms. Harris inquiring about the status of the adoption and noting that she expected her husband, a staff sergeant in the United States Army, to be deployed to Afghanistan in a month or two. The email stated: "I know that you all are busy but it's been 6 months since [Mr. Atchley] signed his rights away."

         On March 23, 2012, the Knox County Chancery Court entered an order requiring Mr. Garland to prosecute the adoption matter. Mr. Garland, still unaware that Mr. Atchley had signed the agreed order over eight months earlier, called Ms. McKeogh to discuss whether she still wanted to pursue the matter. After Ms. McKeogh told Mr. Garland that Mr. Atchley had already signed the order, Mr. Garland reviewed his files and found the agreed order in Ms. McKeogh's closed divorce file. Mr. Garland attended a Chancery Court pre-trial conference on April 24, 2012. After the pre-trial conference, Mr. Garland decided he needed to prepare and file an amended petition containing Mr. Atchley's notarized signature. As a result, the adoption hearing previously set for May 1, 2012, was postponed.

         Ms. McKeogh was notified of the postponement, and efforts began anew to obtain Mr. Atchley's signature on the amended petition. On September 12, 2012, Mr. Garland's office received the amended petition for adoption signed by Mr. Atchley. The same day, Ms. Harris emailed Ms. McKeogh to inform her that the amended petition had been signed. Later that day, Ms. McKeogh replied to Ms. Harris, "So where do we go from here?" Ms. McKeogh also advised Ms. Harris that Mr. McKeogh might be deployed at the beginning of the year. Ms. Snyder mailed a copy of the amended petition to Ms. McKeogh so she and her husband could sign it. However, she mistakenly mailed the amended petition to Ms. McKeogh's former address in South Carolina and not to her current address in Clarksville, Tennessee. On September 20, 2012, Ms. Harris sent an email informing Ms. McKeogh that a meeting between Mr. Garland and the Chancellor would not occur "until MAYBE next week."

         Ms. McKeogh sent several emails to Ms. Harris in September, October, and November 2012. She also left numerous messages and voicemails, most of which were not returned. At one point when Ms. McKeogh called and asked to speak with Mr. Garland, she was told that Mr. Garland said she needed to speak with Ms. Harris. Ms. McKeogh then "kind of gave up trying to [reach Mr. Garland] and . . . just tried to focus all [her] efforts on trying to reach [Ms. Harris]." Mr. Garland agreed that Ms. McKeogh "stopped . . . trying to talk to me" and that "[h]ad she called . . ., [he] could have straightened it out." He recalled that he returned a call from Mr. McKeogh on one occasion but stated that Ms. McKeogh did not contact him directly and did not set up an appointment to meet with him.

         Finally, on January 14, 2013, Ms. McKeogh sent another email to Ms. Harris that stated:

I've been trying to contact you for several months and have had no response. I don't know if there is just no news [and] that is why no one is returning my calls or [if] you aren't getting my messages. Whatever the reason is, I would really appreciate it if you or [Mr. Garland] could please call me or my husband and let us [know] what is going on. We are getting frustrated at the amount of time this case is taking. It has been two and a half years since we began this process, and since then, [Mr. Atchley] has signed his rights away twice. I understand that we aren't your only clients, and that the law doesn't happen overnight, it's a process.

         In a reply email dated January 18, 2013, Ms. Harris stated: "I want to start by apologizing for the lack of communication. That will be fixed." Unaware that the amended petition had been mailed to the wrong address, Ms. Harris further stated: "I believe the last activity was sending you the [amended] papers for you and your husband to sign." On January 21, 2013, Ms. McKeogh responded to Ms. Harris she had not received a copy of the amended petition. At that point, it was discovered that in September 2012, the amended petition had been sent to Ms. McKeogh's previous address, not to her current address in Clarksville.[2] After receiving the amended petition, Ms. McKeogh and her husband signed it in late January 2013 and immediately returned it to Mr. Garland's office. In February, March, and April 2013, Ms. McKeogh emailed Ms. Harris inquiring about the status of the case and the date of the final hearing. The amended petition for adoption was filed on March 23, 2013. On July 19, 2013, the adoption was granted.

         Ms. McKeogh's Complaint

         On June 7, 2013, Ms. McKeogh filed a complaint with the Board of Professional Responsibility. Ms. McKeogh alleged in the complaint that she hired Mr. Garland to handle an adoption case and that there had been an initial delay due to the difficulty in obtaining a response from Mr. Atchley. The complaint further stated:

In September 2012, [Mr. Atchley] signed away his rights for a second time. Since then, we have had little or no communication from Mr. Garland's office. We have called and emailed repeatedly, only to hear answering machines or excuses. I emailed [Ms. Harris] on January 14th, [2013], . . . telling her that we would contact the [Bar] Association if our calls continued to be ignored. She replied, telling us she was sorry for the communication issues and promising to fix them. However, since then we have had little to no communication, only being able to reach the secretary who takes our number and never returns our calls/emails. We understand that lawyers are very busy and that things don't happen overnight. However, it has been 3 years and we are paying clients that just want our little girl to have the same last name as us.

         On October 14, 2013, Mr. Garland responded to the complaint, asserting that he had drafted both a petition and an amended petition for adoption, that Mr. Atchley had been uncooperative, and that the adoption was granted after Mr. Atchley signed the amended petition. Mr. Garland said that his office was in frequent communication with Ms. McKeogh regarding efforts to obtain Mr. Atchley's signature for the adoption.

         Hearing Panel

         On June 27, 2014, the Board of Professional Responsibility filed a Petition for Discipline against Mr. Garland, alleging violations of Rules of Professional Conduct 1.3, [3]1.4, [4] and 8.4(a)[5] regarding his representation of Samantha and Jason McKeogh.[6] On December 11, 2014, a hearing panel heard the testimony of Mr. Garland, Ms. Harris, and Ms. Snyder and later reviewed the deposition testimony of Mr. and Ms. McKeogh. On December 22, 2014, the hearing panel issued its findings:

[1.] By failing to timely proceed with the petition for adoption after execution of the agreed order by Mr. Atchley on July 7, 2011, which led to a significant delay in the resolution of the adoption, Mr. Garland failed to act with reasonable diligence in the representation of his clients.
[2.] By failing to timely proceed with the petition for adoption after execution of the amended petition for adoption by Mr. Atchley on September 20, 2012, which led to a significant delay in the resolution of the adoption, Mr. Garland failed to act with reasonable diligence in the representation of his clients.
[3.] Mr. Garland is responsible for a failure to reasonably communicate with Ms. McKeogh regarding the status of the adoption.

         After determining that Mr. Garland violated Rules of Professional Conduct 1.3, 1.4, and 8.4(a), the hearing panel considered the following American Bar Association Standard ("ABA Standard") with respect to the appropriate sanction:

4.43 LACK OF DILIGENCE
Reprimand is generally appropriate when a lawyer is negligent and does not act with reasonable diligence in representing a client, and causes injury or potential injury to a client.

         ABA Standards for Imposing Lawyer Sanctions § 4.43 (1992). As aggravating factors, the hearing panel considered Mr. Garland's prior disciplinary record, [7] pattern of misconduct, multiple offenses, and substantial experience in the practice of law. See id. § 9.22(a), (c), (d), (i). As mitigating factors, the hearing panel found that Mr. Garland did not act with a dishonest or selfish motive and that he was cooperative in these proceedings. See id. § 9.32(b), (e). The hearing panel concluded that Mr. Garland should be publicly censured. See Tenn. Sup. Ct. R. 9, § 4.5.

         Trial Court

         Mr. Garland filed a Petition for Writ of Certiorari in the Knox County Chancery Court. On September 1, 2015, the trial court affirmed the hearing panel's decision. The trial court found that Mr. Garland's "office policy and . . . supervision enabled the lack of communication and delay in this case" and that the hearing panel's findings were supported by the record and were neither arbitrary nor capricious. The trial court also determined that a "reprimand is generally appropriate when a lawyer is negligent and does not act with reasonable diligence in representing a client and causes injury or potential injury to a client." Mr. Garland appealed to this Court.

         II. ...


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