BOARD OF PROFESSIONAL RESPONSIBILITY OF THE SUPREME COURT OF TENNESSEE
ROBIN K. BARRY
Session June 1, 2017
Appeal from the Chancery Court for Davidson County No.
15-1270-I Ben H. Cantrell, Senior Judge
an appeal from attorney disciplinary proceedings based on the
attorney's knowing conversion of client funds. In this
case, disputed insurance funds were placed in the
attorney's trust account pending resolution of the
dispute. Shortly after the disputed insurance funds were
deposited, the attorney began to comingle funds in her trust
account and use the insurance proceeds for her own purposes.
At about the time the dispute over the insurance funds was
resolved, the attorney moved out of state. In response to her
client's repeated inquiries about disbursement of the
client's share of the funds, the attorney stalled, made
misrepresentations, and finally stopped communicating with
the client altogether. After the client filed a complaint
with the Tennessee Board of Professional Responsibility
against the attorney, the hearing panel found violations of
RPC 1.4, RPC 1.15(a) and (d) and RPC 8.4, which included the
knowing conversion of client funds and the failure to
communicate. The hearing panel found five aggravating
circumstances and no mitigating circumstances. It suspended
the attorney's Tennessee law license for eighteen months,
two months of which were to be served on active suspension.
After the Board appealed, the chancery court held that the
hearing panel's decision was arbitrary and capricious and
that disbarment was the only appropriate sanction. The
attorney now appeals to this Court, arguing that disbarment
is not warranted. In the alternative, the attorney argues
that the disbarment should be made retroactive to the date of
her original temporary suspension. Under the circumstances of
this case, we affirm the chancery court and disbar the
attorney from the practice of law in Tennessee, and we
decline to make the disbarment retroactive.
Tenn. 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, Robin Kathleen Barry.
William 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, Sharon G.
Lee, and Roger A. Page, JJ., joined.
and Procedural Background
appeal arises out of disciplinary proceedings against
Appellant/Respondent Robin K. Barry. Ms. Barry was licensed
to practice law in Texas in 2001 and in Tennessee in
proceeding arose out of Ms. Barry's 2009 representation
of Miranda Adams. At that time, Ms. Barry was a solo
practitioner in Nashville, Tennessee.
background, Ms. Barry's client, Ms. Adams, cohabited with
Daniel Gill and had a child with him. Ms. Adams moved out of
their home with the child and contacted Ms. Barry to
represent her in legal matters against Mr.
Gill. To that end, in February 2009, Ms. Barry
and Ms. Adams entered into a retainer agreement. Under the
agreement, Ms. Adams paid Ms. Barry a $1, 650 retainer,
against which Ms. Barry was to bill Ms. Adams $200 per hour.
The agreement required Ms. Barry to provide Ms. Adams with
after the legal proceedings were initiated, Mr. Gill died.
This rendered moot the legal proceedings for which Ms. Barry
issues arose, however, that required Ms. Adams to need legal
representation. The primary one was a dispute over a $100,
000 life insurance policy on the life of Mr. Gill. Although
Ms. Adams was the named beneficiary on the policy, Mr.
Gill's former wife, Alicia Harris, claimed that she was
entitled to the proceeds pursuant to a provision in her
divorce decree with Mr. Gill. Based on this turn of events, Ms.
Barry and Ms. Adams verbally modified their retainer
agreement to apply it to Ms. Barry's representation of
Ms. Adams in the dispute over the insurance proceeds. Ms.
Barry did not require Ms. Adams to pay her an additional
2009, the life insurance company paid insurance proceeds of
$100, 000 to Ms. Adams. Because ownership of the funds was in
dispute, Ms. Barry deposited the money into her trust account
at SunTrust Bank. The money was to be held in Ms. Barry's
trust account until the dispute between Ms. Adams and Ms.
Harris was resolved. Immediately prior to the deposit, the
balance in the trust account was $5.00, so essentially the
only funds in Ms. Barry's trust account were the disputed
life insurance proceeds.
than simply keeping the $100, 000 in the trust account for
Ms. Adams, Ms. Barry used the funds for other purposes. Any
effort to discern how the funds were actually used is
complicated by the fact that Ms. Barry did not keep proper
trust account records. The only "record keeping"
done was keeping stubs from checks written on the trust
account. Ms. Barry kept neither a ledger nor a journal to
document the transactions in her trust account. During her
testimony in the disciplinary hearing below, Ms. Barry was
unable to locate her check stubs. Consequently, the primary
evidence at the hearing of the activity in Ms. Barry's
trust account consisted of the SunTrust Bank records for the
account; these were submitted as an exhibit at the hearing
and corroborated by Ms. Barry.
testimony, Ms. Barry said that her routine for indicating the
client for whom money was being deposited or expended was to
write her clients' names on trust account deposit slips
or on the memo line of checks. Despite this routine, some of
the deposit slips and checks on the account did not include a
client name. To convey a sense of how Ms. Barry utilized the
trust account, we will outline the transactions in the
account, as described in Ms. Barry's testimony and as
evidenced in the available records.
15, 2009, eleven days after depositing Ms. Adams' $100,
000 in life insurance proceeds into her trust account, Ms.
Barry wrote check #1058 from the account in the amount of $7,
691.50 to Jennifer Duke, one of Ms. Barry's previous
divorce clients. This caused the trust account balance to
fall to $92, 313.50. Ms. Barry could not remember why the
check to Ms. Duke was written; she speculated that it was
part of the distribution of a real estate transaction for Ms.
Duke. At the time the check was written, none of
the money in the account belonged to Ms. Duke. Therefore, the
$7, 691.50 paid to Ms. Duke necessarily came from the money
held in trust for Ms. Adams. For the next several months, Ms.
Barry wrote no further checks on the trust account.
fall of 2009, there was more activity in the trust account.
On October 20, Ms. Barry deposited $1, 500.00 in cash into
the trust account; the deposit slip did not have a
client's name on it. Ms. Barry could not recall where the
deposited cash came from or whether it related to a client.
December 23, 2009, Ms. Barry wrote check #1061 for $264.50 to
the Tennessee circuit court clerk's office. She wrote
"Messick" on the memo line of the check to indicate
that it was payment for the filing fee in a divorce action
for another client, Mr. Messick. Ms. Barry did not know
whether the $1, 500 deposit made in October 2009 related to
Mr. Messick. Ms. Barry made no other deposits to the trust
account before she wrote check #1061 on behalf of Mr.
Messick. Consequently, it appears that the check written on
Mr. Messick's behalf was drawn from the funds being held
in the trust account for Ms. Adams.
the course of the next year, Ms. Barry wrote eight checks
totaling $7, 150 from the trust account, all made payable to
herself, that did not include a client's name on the memo
line. Those eight checks were:
Barry testified that she did not recall why these checks were
written or why she failed to put a client's name on the
were other transactions in Ms. Barry's trust account
during this same period of time. On June 30, 2010, Ms. Barry
deposited $3, 013.96 into the account. The deposit included
$2, 000 in cash and a check from Consensus Mediation Services
in the amount of $1, 013.96. The deposit slip did not contain
a client name for the cash deposit. The check indicated on
the memo line that it was for "[Rule] 31 GC
training/Supplies." Ms. Barry testified that she had
already earned this money by teaching and providing other
related services. At the hearing, she stated that she did not
know why she deposited the $3, 013.96 into her trust account.
August 4, 2010, Ms. Barry deposited a check for $1, 300 from
Dan Barry into her trust account. The check had no
notation on the memo line, and the record does not include an
explanation for this check.
two weeks later, on August 19, 2010, Ms. Barry deposited $1,
000 from Timmy Dawson into her trust account, comprised of a
$1, 500 check minus $500 in cash. The check contained the
notation "lawyer fees" on the memo line. Ms. Barry
wrote one check to herself, check #1076 for $750, with Mr.
Dawson's name on the memo line. Because only $750 of the
total $1000 deposit was spent on Mr. Dawson's behalf, it
appears that $250 should have remained in Ms. Barry's
trust account for the benefit of Mr. Dawson.
September 1, 2010, Ms. Barry deposited $2, 500 from Kimberly
McGahey into the trust account; the check said
"retainer fee" on the memo line. Ms. Barry wrote
five checks on the trust account that had Ms. McGahey's
name on the memo line. Check #1068 ($257.50) was written to
the circuit court clerk for filing fees, and check #1069
($50) was written to a process server. The other three
checks-checks #1070 ($400), #1071 ($400), and #1073
($700)-were all made payable to Ms. Barry. These five checks
totaled $1, 807.50 out of the $2500 retainer Ms. McGahey
paid. It appears, then, that $692.50 should have remained in
the trust account for the benefit of Ms. McGahey.
part of the same September 1, 2010 deposit, Ms. Barry
deposited another check from Consensus Mediation Services
into the trust account, this one in the amount of $1, 340.37,
less $340.37 taken in cash. The memo line on the check read
"[Rule] 31 TRNG thru 8-28-10." Ms. Barry testified
that this also was a check for fees she had already earned.
Consequently, there was apparently no reason to deposit those
monies in a trust account.
next month, on October 8, 2010, Ms. Barry deposited a $1, 000
check from Chad Charles into her trust account. This check
included the notation "legal services" on the memo
line. Ms. Barry testified that this check was a
retainer for legal services she provided to Mr. Charles. Ms.
Barry wrote three checks from the trust account, made payable
to herself, with the notation "Charles" on the memo
line. These three checks totaled $1, 600: checks #1072
($600), #1075 ($500), and #1077 ($500). The amounts expended
on Mr. Charles' behalf exceeded the amount deposited by
$600. Apparently, then, Ms. Barry used $600 in trust account
funds for the benefit of Mr. Charles that may have belonged
to Ms. Adams or other clients.
early 2011, Ms. Adams and Ms. Harris reached a settlement in
their dispute over the life insurance proceeds deposited into
Ms. Barry's trust account. Around the same time, in early
March 2011, Ms. Barry moved to Texas and began practicing law
there. Despite the move, Ms. Barry continued to represent Ms.
Adams in her settlement with Ms. Harris. Ms. Barry did not
tell Ms. Adams that she had moved to Texas.
March 28, 2011, Ms. Adams and Ms. Harris executed a
settlement agreement on the disputed funds. Under the
settlement, the parties agreed that Ms. Harris was entitled
to $95, 000 out of the $100, 000 in insurance proceeds being
held in the trust account. Just before the agreement was
signed, however, Ms. Barry's trust account balance was
only $92, 055.46. On February 24, 2011, to cover the required
$95, 000 check, Ms. Barry deposited $3, 000.50 (a $3, 462.50
less $462 in cash) into the trust account. The deposit was a
check from client Lisa Chamberlain, bearing the notation
"attorney fees" on the memo line. Ms. Barry said
that these were likely earned fees for work she had performed
for Ms. Chamberlain. Pursuant to the settlement agreement, on
March 24, 2011, Ms. Barry wrote check #1079 to Ms.
Harris's attorney in the amount of $95, 000. By the time
the check cleared a few days later, the trust account had an
ending balance of $80.58.
April 22, 2011, Ms. Barry wrote check #1080 to herself for
$75. Ms. Barry wrote "Adams" on the memo line of
this check. She explained at the disciplinary hearing that
she wrote the $75 check to "empt[y] out" her trust
account because she had moved to Texas and did not intend to
continue practicing law in Tennessee.
the time Ms. Adams and Ms. Harris executed the settlement
agreement on the disputed life insurance funds, Ms. Adams and
Ms. Barry exchanged a series of emails regarding the $5, 000
balance that should have been in Ms. Barry's trust
account. On March 22, 2011, before the agreement was
executed, Ms. Barry emailed Ms. Adams and attached the
proposed settlement agreement for her review. In Ms.
Adams' reply, she asked Ms. Barry about court costs and
when the balance of the funds would be distributed to her. On
the same day, Ms. Barry responded by telling Ms. Adams that
she would send her the "remaining funds" after
court costs were paid. In her email, Ms. Barry assured Ms.
Adams that the money was "in my trust account."
However, when Ms. Barry wrote that email, the balance in her
trust account was only $55.96.
next month, on April 14, 2011, Ms. Adams emailed Ms. Barry
again to ask when she would receive the remaining funds held
in trust. Ms. Barry replied that same day; she told Ms. Adams
that she would send her copies of all relevant documents, but
she was waiting to receive the court cost bill before sending
Ms. Adams the remaining funds.
month later, on June 2, 2011, Ms. Adams emailed Ms. Barry
again, inquiring about when Ms. Barry would send her the
balance of the funds. Ms. Barry did not respond until June
18, 2011. In her email, Ms. Barry explained to Ms. Adams that
she had received the court cost bill but was waiting for the
court order closing the estate, so "then I can do the
accounting and refund you the balance." This statement
was a misrepresentation, however, because the order closing
the estate was entered on June 8, 2011, ten days before Ms.
Barry's email to Ms. Adams. At the time of Ms.
Barry's response, the balance in the trust account was
August 30, 2011, having heard nothing in the interim, Ms.
Adams emailed Ms. Barry again. She told Ms. Barry that she
had tried multiple times to contact her, by email and by
telephone, with no success. Ms. Adams implored Ms. Barry to
contact her about the remaining balance due her from the
funds held in trust. Ms. Barry did not respond.
that, Ms. Adams discovered that Ms. Barry had moved to Texas
and was practicing law there. Ms. Adams left a voicemail
message at Ms. Barry's new place of employment. On
October 25, 2011, after receiving Ms. Adams' voicemail
message, Ms. Barry replied by email. Ms. Barry told Ms. Adams
that she moved to Texas for family reasons, had taken a job
working for someone else, and was "trying to wrap up all
my TN cases/business from" Texas. She promised Ms. Adams
that she would "make a point this weekend to get [Ms.
Adams file out of storage] so we can finish this up."
Ms. Barry gave Ms. Adams a cell phone number and asked Ms.
Adams to refrain from calling her at work. Despite her
assurances to Ms. Adams, Ms. Barry made no attempt to contact
year went by. On November 7, 2012, Ms. Adams made one last
attempt to contact Ms. Barry by email regarding the funds due
her. Ms. Barry testified at her disciplinary hearing that she
did not reply to this email. Ms. Barry admitted that she had
"no good explanation for" her failure to contact
Ms. Adams again.
record indicates that Ms. Barry performed a significant
amount of work for Ms. Adams. Despite this, Ms. Barry never
sent Ms. Adams a periodic statement or a bill. She never
provided Ms. Adams an accounting for ...