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In re Cope

Supreme Court of Tennessee, Nashville

May 4, 2018

IN RE: JAMES CARL COPE, BPR #03340

          Session: February 7, 2018

          Review of Board of Professional Responsibility Panel No. 2016-2647-4-KH-22.3

         This Court suspended attorney James Carl Cope pursuant to Tennessee Supreme Court Rule 9, section 22.3, based on his federal felony conviction for insider trading and referred the matter to the Board of Professional Responsibility ("Board") to initiate proceedings to determine his final discipline. A hearing panel ("Panel") imposed a final discipline of twenty-five months' suspension, retroactive to the date of his initial suspension by this Court, which was on October 25, 2016. Neither the Board nor Mr. Cope appealed this judgment. The Board petitioned this Court for an order enforcing the Panel's judgment. Pursuant to Tennessee Supreme Court Rule 9, section 15.4(b) and (c), we determined that the punishment imposed by the Panel appeared inadequate and proposed that it be increased. Mr. Cope 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 judgment to impose the twenty-five-month suspension prospectively from the filing of this opinion.

         Tenn. Sup. Ct. R. 9, § 15.4, Judgment of the Hearing Panel Modified

          Aubrey B. Harwell, Jr.; Jon D. Ross; and Marie T. Scott, Nashville, Tennessee, for the appellant, James Carl Cope.

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

          Roger 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.

          OPINION

          ROGER A. PAGE, JUSTICE

         I. Facts and Procedural History

         James Carl Cope is an attorney originally licensed to practice law in Tennessee in 1974. On October 21, 2016, Mr. Cope pleaded guilty in federal district court to one count of the felony offense of insider trading in violation of United States Code title 15, section 78j(b) and Code of Federal Regulations title 17, section 240.10b-5.[1] The federal court ultimately sentenced him to twenty-four months of probation, the first nine months of which required home confinement, with a fine of $200, 000.

         On October 25, 2016, this Court suspended Mr. Cope's license to practice law and referred the matter to the Board for determination of final discipline to be imposed pursuant to Tennessee Supreme Court Rule 9, section 22.3. On November 7, 2016, the Board filed a Petition for Final Discipline.

         The matter came before the Panel on April 12 and 18, 2017. The only issue before the Panel was the extent of final discipline to be imposed as a result of the admitted criminal act. See Tenn. Sup. Ct. R. 9, § 22.3. During the hearing, Mr. Cope admitted that while he was on the Board of Directors for Pinnacle Financial Partners, he received non-public material information that Pinnacle was initiating a conversation with Avenue Bank about purchasing Avenue Bank. Mr. Cope purchased a total of 10, 179 shares of Avenue Bank using limit orders through his personal TD Ameritrade account on two separate dates. He did not share the information with anyone else. At the hearing, several witnesses, including judges, respected members of the bar, a county mayor, and a university president, testified to Mr. Cope's otherwise impeccable career in Rutherford County.

         On June 1, 2017, the Panel entered its Final Order of Discipline. The Panel first determined that the appropriate presumptive discipline under the American Bar Association Standards for Imposing Lawyer Sanctions ("ABA Standards") was disbarment. See ABA Standard 5.11.[2] The Panel found two aggravating factors to be applicable: (1) dishonest or selfish motive and (2) substantial experience in the practice of law. See ABA Standard 9.22. The Panel also found applicable the following mitigating factors: (1) absence of a prior disciplinary record; (2) full and free disclosure to the Board or cooperative attitude toward proceedings; (3) character and reputation of the attorney; and (4) remorse. See ABA Standard 9.32. The Panel then weighed the factors and imposed a period of twenty-five months' suspension, reasoning as follows:

The mitigating factors clearly outweigh aggravating factors and the additional mitigating factors justify a deviation from the generally appropriate discipline of disbarment as the public is sufficiently protected by a discipline of a suspension for a period of twenty-five (25) months retroactive to the date of the Order of Enforcement on October 25, 2016, which ...

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