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

Supreme Court of Tennessee, Nashville

February 16, 2018

BOARD OF PROFESSIONAL RESPONSIBILITY OF THE SUPREME COURT OF TENNESSEE
v.
ROBIN K. BARRY

          Session June 1, 2017

          Direct Appeal from the Chancery Court for Davidson County No. 15-1270-I Ben H. Cantrell, Senior Judge

         This is 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, [1] for the appellant, Robin Kathleen Barry.

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

          Holly 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.

          OPINION

          HOLLY KIRBY, JUSTICE

         Factual and Procedural Background

         This 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 2002.[2]

         This proceeding arose out of Ms. Barry's 2009 representation of Miranda Adams. At that time, Ms. Barry was a solo practitioner in Nashville, Tennessee.

         As 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.[3] 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 periodic statements.

         Shortly after the legal proceedings were initiated, Mr. Gill died. This rendered moot the legal proceedings for which Ms. Barry was retained.

         Other 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.[4] 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 retainer.

         In May 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.

         Rather 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.

         In her 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.

         On May 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.[5] 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.

         In the 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.

         On 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.

         Over 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:

12/11/2009
check #1059:
$1, 000.00
12/17/2009
check #1060:
$600.00
01/07/2010
check #1062:
$1, 500.00
02/05/2010
check #1063:
$1, 200.00
02/12/2010
check #1064:
$300.00
04/07/2010
check #1066
$1, 000.00
07/16/2010
check #1067:
$1, 500.00
01/02/2011
check #1078:
$50.00

         Ms. Barry testified that she did not recall why these checks were written or why she failed to put a client's name on the memo line.

         There 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.

         On August 4, 2010, Ms. Barry deposited a check for $1, 300 from Dan Barry[6] into her trust account. The check had no notation on the memo line, and the record does not include an explanation for this check.

         Approximately 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.

         On 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.

          As 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.

         The 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.[7] 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.[8]

         In 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.

         On 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.[9] 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.[10]

         On 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.

         Around 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.

         The 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.

         Over a 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 only 96¢.[11]

         On 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.

         After that, Ms. Adams discovered that Ms. Barry had moved to Texas and was practicing law there.[12] 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 her again.

         Over a 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.

         The 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 ...


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