SEAN K. HORNBECK
BOARD OF PROFESSIONAL RESPONSIBILITY OF THE SUPREME COURT OF TENNESSEE
Session June 1, 2017
Appeal from the Chancery Court for Davidson County No.
15-509-III Ben H. Cantrell, Special Judge
attorney disciplinary appeal, upon petition by the Tennessee
Board of Professional Responsibility, this Court ordered the
temporary suspension of the attorney from the practice of law
based on the threat of substantial harm he posed to the
public. For a time, the attorney was placed on disability
status; later he was reinstated to suspended status.
Subsequently, after an evidentiary hearing, a hearing panel
found multiple acts of professional misconduct, including
knowing conversion of client funds with substantial injury to
clients, submitting false testimony and falsified documents
in court proceedings, engaging in the unauthorized practice
of law, violating Supreme Court orders, and defrauding
clients. The hearing panel determined that the attorney
should be disbarred. On appeal to the chancery court, the
attorney argued inter alia that the disbarment
should be made retroactive to the date of his temporary
suspension. The chancery court affirmed the decision of the
hearing panel. On appeal to this Court, the attorney does not
question the disbarment but argues that it would be arbitrary
and capricious not to make his disbarment retroactive to the
date of his temporary suspension, in order to advance the
date on which he may apply for reinstatement of his law
license. We disagree. In contrast to suspension, which
contemplates that the lawyer will return to law practice,
disbarment is not a temporary status. Disbarment is a
termination of the individual's license to practice law
in Tennessee. Therefore, we decline to make the effective
date of the attorney's disbarment retroactive to the date
of his temporary suspension. Accordingly, we affirm.
Sup. Ct. R. 9, § 1.3 (2006) (currently Tenn. Sup. Ct. R.
9, § 33.1(d) (2014)) Direct Appeal; Judgment of the
Chancery Court Affirmed
William W. (Tripp) Hunt III, Nashville, Tennessee,  for the
appellant, Sean K. Hornbeck.
William C. Moody, Brentwood, Tennessee, for the appellee,
Board of Professional Responsibility of the Supreme Court of
Kirby, J., delivered the opinion of the Court, in which
Jeffrey S. Bivins, C.J., and Cornelia A. Clark and Sharon G.
Lee, JJ., joined. Roger A. Page, J., not participating.
and Procedural Background
appeal arises out of attorney disciplinary proceedings
against Appellant/Respondent Sean Hornbeck. Mr. Hornbeck
graduated from law school in 1996 and became licensed to
practice law in New York and the District of Columbia in
1997. After serving as a federal law clerk, Mr. Hornbeck
practiced law in the District of Columbia and then at a large
firm in Delaware. Later, he obtained his Tennessee law
license by way of reciprocity and opened his own law
practice, Hornbeck Law, in Nashville.
2008, a Texas businessman introduced Mr. Hornbeck to Harish
Raghavan, a businessman working in the finance industry in
New York City. After the introduction, Mr. Hornbeck proposed
a financial venture to Mr. Raghavan that entailed the
advancement of very substantial funds to Mr. Hornbeck. Under
Mr. Hornbeck's proposed plan, Mr. Raghavan would advance
Mr. Hornbeck funds to be held in an escrow account; these
funds would then serve as essential equity behind a huge
leverage transaction on a trading platform that would in turn
produce large profits. Mr. Hornbeck assured Mr. Raghavan that
the advanced funds would be "blocked, " meaning
they would not be used in investments or moved out of the
escrow account without Mr. Raghavan's express permission.
Raghavan agreed to Mr. Hornbeck's proposal. He
transferred between $5 million and $5.5 million into a
Wachovia Bank escrow account that was maintained by Mr.
Hornbeck in his capacity as an attorney. Although Mr.
Raghavan gave Mr. Hornbeck permission to move the escrow
account to a different, suitably rated financial institution,
Raghavan never gave Mr. Hornbeck permission to transfer any
of the money out of the escrow account.
Hornbeck promised Mr. Raghavan payouts from the transactions
within thirty days, to be paid to Mr. Raghavan in June or
July 2008. The payouts to Mr. Raghavan did not occur as
the promised payouts failed to materialize, Mr. Raghavan
began to pursue Mr. Hornbeck for a return of the monies he
had advanced. On August 12, 2008, Mr. Hornbeck arranged for a
return of $1 million to Mr. Raghavan's bank account.
However, Mr. Hornbeck did not return the remaining balance of
between $4 million and $4.5 million. Mr. Hornbeck never gave
Mr. Raghavan an accounting of what happened to his money.
fall of 2008, Mr. Raghavan intervened in a lawsuit filed in
the chancery court for Davidson County and named Mr. Hornbeck
as a defendant. Mr. Raghavan sought an accounting of the
funds held in trust by Mr. Hornbeck. In October 2008, the
chancery court ordered Mr. Hornbeck to provide a detailed
accounting of the approximately $5.5 million Mr. Raghavan had
deposited in his trust account. It also ordered him to file
unredacted copies of his bank statements at Wachovia Bank and
November 2008, Mr. Hornbeck filed with the chancery court a
purported bank statement showing a balance in excess of $5.5
million in his trust account at Credit Suisse, as well as a
purported email from Credit Suisse confirming a balance of
over $5.5 million in the account. However, these documents
were falsified to indicate that Mr. Hornbeck's trust
account had $5.5 million when it did not. Jeff Weaver, an
administrative employee of Mr. Hornbeck's law firm, later
testified that he prepared the false financial documents and
the accompanying email Mr. Hornbeck submitted to the chancery
Accurate and unredacted records of Mr. Hornbeck's trust
account revealed that, in June and July of 2008, Mr. Hornbeck
transferred large sums of money from the trust account to
third party individuals and entities, as well as to his law
firm's operating account. During this time, Mr. Hornbeck
also made multiple over-the-counter withdrawals from the
trust account. All of these transfers and withdrawals
occurred without the knowledge of Mr. Raghavan.
November 26, 2008, the chancery court ordered Mr. Hornbeck to
transfer all of the funds remaining in the Credit Suisse
trust account to the clerk and master of the court. Mr.
Hornbeck did not comply with this order. Instead, he
instructed Credit Suisse to transfer the remaining funds in
his trust account, less than $200, 000, to the Regions Bank
account of his law firm employee, Jeff Weaver.
December 15, 2008, this Court issued an order temporarily
suspending Mr. Hornbeck from the practice of law. The order
was based on a petition of the Tennessee Board of
Professional Responsibility ("the "Board"), as
well as the verified complaint in intervention and certified
orders from the chancery court of Davidson County. Mr.
Hornbeck then asked this Court to instead place him on
disability inactive status; the request was supported by an
affidavit from Mr. Hornbeck's physician. This request was
granted in January 2009; the Court ordered that Mr.
Hornbeck's license to practice law be transferred to
disability inactive status until further order of the
Court. On October 21, 2011, upon an agreement
that Mr. Hornbeck was no longer disabled, the Court ordered
Mr. Hornbeck's disability inactive status dissolved. His
law license resumed its status as temporarily suspended
pending the resolution of disciplinary proceedings.
November 13, 2013, the Board filed a petition for discipline
against Mr. Hornbeck. Proceedings before a hearing panel were
held on December 3, 2014. The Board presented to the hearing
panel the evidence, arising out of the financial dealings
with Mr. Raghavan described above, that led to the temporary
suspension of Mr. Hornbeck's law license in 2008. Asked
in his testimony to the hearing panel about how the
transaction with Mr. Raghavan was supposed to generate a
profit or how he would be compensated, Mr. Hornbeck claimed
he had a poor memory of this time period. He attributed his
poor memory to a head injury he allegedly sustained in the
summer of 2008, when he was "jumped" and hit in the
head with a metal pipe. The claimed head injury, Mr. Hornbeck
said, affected his mental state and caused him to have to
take various medications. The injury roughly coincided with
the time period in which Mr. Hornbeck engaged Mr. Raghavan in
the ill-fated financial venture.
testimony to the hearing panel, Mr. Hornbeck claimed that,
when he submitted the falsified financial documents to the
chancery court in the prior proceedings, he believed them to
be true. At the time of his testimony to the chancery court,
Mr. Hornbeck said, he was experiencing multiple family crises
and still suffering from the effects of the 2008 head injury,
for which he was taking numerous medications. However, Mr.
Hornbeck also said that, despite the medications, he believed
that he was truthfully answering the questions asked of him.
proceedings before the hearing panel, the Board presented
evidence to support multiple other complaints against Mr.
Hornbeck as well. The evidence on these other complaints is
Joseph and Linda Dougherty retained Mr. Hornbeck in May 2007
to represent them in a dispute over earnest money paid to
Turnberry Homes on a contract to purchase a house. Mr.
Dougherty met Mr. Hornbeck for the first time over the phone
and they discussed the contract dispute. In the conversation,
Mr. Hornbeck insisted that Mr. Dougherty pay him a $5, 000
retainer over the phone in order to proceed with the lawsuit.
Mr. Hornbeck did not discuss with Mr. Dougherty the basis on
which he would be billed. Mr. Dougherty paid the retainer and
Mr. Hornbeck filed the lawsuit for the Doughertys in May. Mr.
Hornbeck communicated with the lawyer for Turnberry Homes a
couple of times and met with Mr. Dougherty at his office in
July 2007. After the July 2007 meeting, the Doughertys
received no further communications from Mr. Hornbeck, despite
their repeated attempts to reach him by telephone, e-mail,
and in person. Mr. Dougherty finally contacted another
attorney to pursue the return of his $20, 000 earnest money
from Turnberry Homes.
disciplinary proceedings on Mr. Hornbeck, the attorney for
Turnberry Homes, Todd Panther, testified that, on June 27,
2007, he sent Mr. Hornbeck a letter regarding the
Doughertys' case, outlining proposed terms of settlement.
In spite of numerous attempts to follow up with Mr. Hornbeck,
Mr. Panther got no response. On August 21, 2007, Mr. Panther
sent another letter to Mr. Hornbeck. The second letter
referenced Mr. Hornbeck's failure to respond to Mr.
Panther's first letter. It informed Mr. Hornbeck that
Turnberry Homes was actively marketing the disputed property
in order to mitigate its damages. The second letter also
mentioned their agreement that Turnberry Homes had an
indefinite extension to answer the complaint Mr. Hornbeck had
filed, given the ongoing settlement discussions. Mr. Hornbeck
did not communicate any of these matters to the Doughertys.
In the disciplinary proceedings, the Doughertys testified
that they would not have agreed to the indefinite extension
mentioned in Mr. Panther's second letter. The second
letter from Mr. Panther also went unanswered. In 2009, with
assistance from the Consumer Affairs Division of the
Tennessee Department of Commerce and Insurance, the
Doughertys settled their case with Turnberry Homes.
Mr. Hornbeck did not perform the services for which they
retained him, the Doughtertys pursued Mr. Hornbeck for a
return of their $5, 000 retainer. Mr. Hornbeck sent the
Doughertys a proposed settlement agreement, but he did not
advise them to get advice from another attorney before
entering into a settlement agreement with him. The draft
settlement agreement was never executed and the Doughertys
never got a refund from Mr. Hornbeck.
Elizabeth Garland, a registered nurse assistant, retained Mr.
Hornbeck to represent her in a contract matter with a third
party related to a house fire she experienced. She hired Mr.
Hornbeck on May 21, 2008, and paid him a $1, 500 retainer.
Mr. Hornbeck wrote one letter to the adverse party on her
behalf, and then apparently did no further work on Ms.
Garland's matter. After May 2008, Mr. Hornbeck stopped
communicating with Ms. Garland. She and her husband called
Mr. Hornbeck multiple times and left messages; he never
returned their phone calls or sent them any emails. Ms.
Garland never received a refund of the retainer she paid Mr.
Hornbeck and only received her file after she filed a
complaint against Mr. Hornbeck in March 2009.
2010, after Mr. Hornbeck's license to practice law had
been temporarily suspended and he was placed on disability
inactive status, Mr. Hornbeck worked as an assistant for
attorney Mary Clement at her law office in Sumner County. He
typed pleadings, greeted clients, answered the phone, met
with prospective clients, and performed basic legal research
and marketing for Ms. Clement. On one occasion he sat at
counsel table in court with Ms. Clement and handed her
exhibits as she asked for them. Ms. Clement billed clients
for Mr. Hornbeck's time.
the time in which Mr. Hornbeck was working at Ms.
Clement's office, Ms. Clement represented Mr. Glover
Palmer Smith on a criminal matter. While Mr. Smith's case
was ongoing, Mr. Hornbeck called him and suggested they meet
to discuss Mr. Smith's case and some financial matters.
They met at a Mexican restaurant. After discussing the appeal
of his criminal case, Mr. Hornbeck told Mr. Smith that Ms.
Clement needed two $5, 000 checks from him. Mr. Hornbeck
assured Mr. Smith that he would receive an itemized statement
later. Mr. Smith wrote two $5, 000 checks as requested and
made them payable to Ms. Clement. He gave both checks to Mr.
Hornbeck. One check was endorsed by someone other than Ms.
Clement and deposited into Mr. Hornbeck's bank account.
In the disciplinary proceedings, Ms. Clement testified that
Mr. Hornbeck had no reason to meet with Mr. Smith and that
she had not asked Mr. Hornbeck to collect any money from Mr.
Smith. Ms. Clement testified that Mr. Hornbeck was not
authorized to deposit checks for her.
the hearing, the hearing panel issued its judgment on March
25, 2015. The hearing panel found that Mr. Hornbeck violated
Tennessee Supreme Court Rule 8, Rules of Professional Conduct
(2006) ("RPC"), including RPC 1.3
(Diligence); RPC 1.4 (Communication); RPC 1.8(h)
(Conflict of Interest); RPC 1.15(a) (Safekeeping Property and
Funds); RPC 1.16(d) (Declining or Terminating
Representation); RPC 3.2 (Expediting
Litigation); RPC 5.5 (Unauthorized Practice of
Law); and RPC 8.4(a), (b), (c), (d) and (g)
(Misconduct). The hearing panel concluded that the
Board had proven these violations by a preponderance of the
evidence and that Mr. Hornbeck's acts of dishonesty
seriously and adversely reflected on his fitness to practice
required by Tennessee Supreme Court Rule 9, section 8.4
(2006),  the hearing panel then considered the
American Bar Association Standards for Imposing Lawyer
Sanctions ("ABA Standards") applicable to this
4.11 FAILURE TO PRESERVE THE CLIENT'S PROPERTY Disbarment
is generally appropriate when a lawyer knowingly converts
client property and causes injury or potential injury to a
4.32 FAILURE TO AVOID CONFLICTS OF INTEREST
Suspension is generally appropriate when a lawyer knows of a
conflict of interest and does not fully disclose to a client
the possible effect of that conflict, and causes ...