Thomas Fleming Mabry v. Board of Professional Responsibility Of The Supreme Court Of Tennessee ( 2014 )

IN THE SUPREME COURT OF TENNESSEE
AT KNOXVILLE
May 6, 2014 Session
THOMAS FLEMING MABRY v. BOARD OF PROFESSIONAL
RESPONSIBILITY OF THE SUPREME COURT OF TENNESSEE
Direct Appeal from the Chancery Court for Knox County
No. 183743I Don R. Ash, Judge
No. E2013-01549-SC-R3-BP - Filed December 30, 2014
A hearing panel of the Board of Professional Responsibility determined that an attorney
failed to act diligently in his representation of a client and suspended the attorney from the
practice of law for forty-five days. The trial court affirmed the suspension. 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
S HARON G. L EE, C.J., delivered the opinion of the Court, in which J ANICE M. H OLDER,
C ORNELIA A. C LARK, G ARY R. W ADE, and W ILLIAM C. K OCH, J R., JJ., joined.
David A. Lufkin, Sr., Knoxville, Tennessee, for the appellant, Thomas Fleming Mabry.
Krisann Hodges, Brentwood, Tennessee, for the appellee, Board of Professional
Responsibility of the Supreme Court of Tennessee.
OPINION
I.
Thomas Fleming Mabry, an attorney primarily practicing in Knox County, has been
licensed to practice law in Tennessee since 1980. On June 22, 2011, the Board of
Professional Responsibility (“the Board”) filed a petition for discipline against Mr. Mabry
based on three complaints of misconduct. A hearing panel (“the Panel”), appointed by the
Board pursuant to Tenn. Sup.Ct. R. 9, section 8.2, heard evidence on the Board’s petition for
discipline on July 18, 2012.1 The Panel found that Mr. Mabry violated Tenn. Sup.Ct. R. 8,
RPC 1.32 and RPC 8.4(a)3 by his failure to act diligently during his representation of Velda
Shore in a civil conspiracy lawsuit against Robert Goddard and Roger Fields. The Panel also
found that the Board failed to prove any of the other violations alleged in its petition. After
considering aggravating and mitigating factors, the Panel decided that Mr. Mabry should be
suspended from the practice of law for a period of forty-five days. Both Mr. Mabry and the
Board appealed to the Knox County Chancery Court, which affirmed the Panel’s findings and
recommendations. Mr. Mabry appeals the trial court’s decision.
II.
The Supreme Court of Tennessee is the source of authority of the Board of
Professional Responsibility and all its functions. Brown v. Bd. of Prof’l Responsibility, 29
S.W.3d 445, 449 (Tenn. 2000). As a part of our duty to regulate the practice of law, we bear
ultimate responsibility for enforcing the rules governing our profession. Doe v. Bd. of Prof’l
Responsibility, 104 S.W.3d 465, 470 (Tenn. 2003). We review judgments under our “inherent
power and essential and fundamental right to administer the rules pertaining to the licensing
of attorneys.” Skouteris v. Bd. of Prof’l Responsibility, 430 S.W.3d 359, 362 (Tenn. 2014)
(alterations in original) (quoting Hughes v. Bd. of Prof’l Responsibility, 259 S.W.3d 631, 640
(Tenn. 2008)).
When reviewing a hearing panel’s judgment, a trial court must consider the transcript
of the evidence before the hearing panel and its findings and judgment. Tenn. Sup.Ct. R. 9,
§ 1.3. On questions of fact, the trial court does not substitute its judgment for that of the
hearing panel as to the weight of the evidence. See Bd. of Prof’l Responsibility v. Allison, 284
S.W.3d 316, 323 (Tenn. 2009). Any modification to a hearing panel’s decision must be based
on one of the enumerated factors included in Tenn. Sup.Ct. R. 9, section 1.3. See Bd. of Prof’l
Responsibility v. Love, 256 S.W.3d 644, 652 (Tenn. 2008). Under section 1.3, a trial court
1
This Court adopted substantial changes to the Rules of Professional Conduct under Tenn. Sup.Ct.
R. 8, effective January 1, 2011. Because the underlying conduct in this case occurred prior to January 1,
2011, it is governed by the version of Tenn. Sup.Ct. R. 8 that was in effect before the 2011 revisions. This
Court also adopted substantial changes to Tenn. Sup.Ct. R. 9, effective January 1, 2014, but because this case
was initiated before January 1, 2014, it is governed by the pre-2014 version of Tenn. Sup.Ct. R. 9. We note,
however, that the relevant provisions of the pre-2014 version of Rule 9 do not differ from the current version
of Rule 9.
2
Tenn. Sup.Ct. R. 8, RPC 1.3 provides: “A lawyer shall act with reasonable diligence and
promptness in representing a client.”
3
Tenn. Sup.Ct. R. 8, RPC 8.4(a) provides, in pertinent part: “It is professional misconduct for a
lawyer to . . . violate or attempt to violate the Rules of Professional Conduct. . . .”
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has the discretion to reverse or modify a decision of the hearing panel only if the petitioner’s
rights have been prejudiced by findings, inferences, conclusions, or decisions that are:
(1) in violation of constitutional or statutory provisions; (2) in excess of
the panel’s jurisdiction; (3) made upon unlawful procedure; (4) arbitrary
or capricious or characterized by abuse of discretion or clearly
unwarranted exercise of discretion; or (5) unsupported by evidence
which is both substantial and material in the light of the entire record.
Tenn. Sup.Ct. R. 9, § 1.3.
Our standard of review on appeal is the same as that of the trial court. Skouteris, 430
S.W.3d at 362 (citing Hoover v. Bd. of Prof’l Responsibility, 395 S.W.3d 95, 103 (Tenn.
2012)).
III.
In 2008, Mr. Mabry filed suit on Ms. Shore’s behalf against Maple Lane Farms, LLC
in the Chancery Court for Blount County. The lawsuit arose out of a disagreement between
Ms. Shore and Maple Lane Farms regarding the use of Maple Lane Farms’ property for
concerts and other outdoor events. The Chancery Court action sought a declaratory judgment,
injunctive relief, and abatement of a nuisance.4 On August 19, 2008, Mr. Mabry filed a
second action on Ms. Shore’s behalf in the Circuit Court for Blount County seeking damages
against Roger Fields, a Building Commissioner for Blount County, and Robert Goddard, the
attorney for Blount County. The complaint alleged the existence of a civil conspiracy,
involving Mr. Fields, Mr. Goddard, and Blount County Mayor Jerry Cunningham, to require
Ms. Shore, rather than Maple Lane Farms, to appeal a decision by Mr. Fields to the Blount
County Board of Zoning Appeals. Mr. Cunningham was not named as a defendant. Within
a month after filing this lawsuit, Mr. Mabry, on behalf of Ms. Shore, voluntarily dismissed
Mr. Goddard, leaving Mr. Fields as the sole defendant.
On September 19, 2008, Mr. Fields moved to dismiss the complaint for failure to state
a claim upon which relief could be sought. He sent Mr. Mabry a proposed motion for
sanctions and a safe harbor letter pursuant to Tenn. R. Civ. P. 11. Mr. Mabry took no
action. On October 24, 2008, Mr. Fields filed an amended motion seeking dismissal of the
suit and Rule 11 sanctions against Mr. Mabry and Ms. Shore. Mr. Mabry did not respond to
this motion to dismiss. Meanwhile, Ms. Shore fired Mr. Mabry as her attorney. On December
31, 2008, Mr. Mabry filed a motion to withdraw as Ms. Shore’s counsel.
4
See Shore v. Maple Lane Farms, LLC, 411 S.W.3d 405 (Tenn. 2013) (finding, among other things,
that music from outdoor concerts near Ms. Shore’s house constituted a prima facie case of nuisance).
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On January 25, 2011, the Blount County Circuit Court heard Mr. Fields’ motion to
dismiss and to impose sanctions. In a memorandum of law filed with the trial court, Mr.
Mabry stated that the civil conspiracy claim against Mr. Fields became moot once Mr.
Goddard was dismissed from the case. In an order issued March 4, 2011, the Blount County
Circuit Court found that Mr. Mabry had more than ample opportunity—from the time he
dismissed the case against Mr. Goddard, his receipt of the safe harbor letter from Mr. Fields,
and being terminated by his client—to dismiss and/or correct by amendment the civil
conspiracy claim. The Blount County Circuit Court imposed Rule 11 sanctions against Mr.
Mabry for attorney’s fees in the amount of $5,000.
On June 22, 2011, the Board filed a petition for discipline against Mr. Mabry based on
three complaints of misconduct it had received. Ms. Shore and Mr. Cunningham each filed
complaints stemming from Ms. Shore’s lawsuit against Mr. Fields and Mr. Goddard, while
Ginna French, another client of Mr. Mabry’s, filed a third, unrelated complaint. With regard
to Ms. Shore’s case, the disciplinary petition alleged that Mr. Mabry violated RPCs 1.3, 1.4,5
1.16,6 3.1,7 and 8.4(a). The petition requested that the Panel “make such findings as it deems
5
Tenn. Sup.Ct. R. 8, RPC 1.4 provides:
(a) A lawyer shall keep a client reasonably informed about the status of the
matter and comply with reasonable requests for information within a
reasonable time.
(b) A lawyer shall explain a matter to the extent reasonably necessary to
permit the client to make informed decisions regarding the representation.
6
Tenn. Sup.Ct. R. 8, RPC 1.16 provides, in pertinent part:
[A] lawyer shall not represent a client or, where representation has
commenced, shall withdraw from the representation of a client if . . . the
lawyer is discharged. . . . A lawyer who is discharged by a client . . . shall,
to the extent reasonably practicable, take steps to protect the client’s
interests. Depending on the circumstances, protecting the client’s interests
may include . . . cooperating with any successor counsel engaged by the
client; . . . promptly surrendering papers and property to which the client
is entitled and any work product prepared by the lawyer for the client and
for which the lawyer has been compensated; [and] . . . promptly
surrendering any other work product prepared by the lawyer for the client,
provided, however, that the lawyer may retain such work product to the
extent permitted by other law but only if the retention of the work product
will not have a materially adverse [e]ffect on the client with respect to the
subject matter of the representation . . . .
7
Tenn. Sup.Ct. R. 8, RPC 3.1 provides, in pertinent part:
(continued...)
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appropriate in imposing the discipline deemed appropriate.” Mr. Mabry, representing himself,
filed an answer on September 6, 2011. A hearing was set for May 9, 2012. The Board filed
its witness and exhibit list on April 27, 2012. On May 2, 2012, the Panel granted the Board
a continuance due to an unavailable witness, and the final hearing was reset for July 18, 2012.
On May 2, 2012, Mr. Mabry filed a witness list which included himself, two of his
former clients, and Laura McClendon and/or Ted Rice from the Tennessee Lawyers
Assistance Program (“TLAP”). On May 9, 2012, a telephonic scheduling conference was
held, and Mr. Mabry was given until June 15, 2012, to file his exhibit list. Mr. Mabry filed
the exhibit list on June 15 and filed an amended list ten days later.
On July 5, 2012, David A. Lufkin, Sr., filed a notice of appearance as counsel for Mr.
Mabry. On July 12, 2012, the Board filed a supplemental witness and exhibit list, and Mr.
Mabry, through counsel, filed a motion for a continuance and a request to reopen
discovery. Mr. Mabry’s motion asserted that two of his potential witnesses, Ms. McClendon
and Mr. Rice, did not have timely notice of the hearing due to communication errors. The
motion did not detail any attempts by Mr. Mabry or Mr. Lufkin to contact these witnesses,
other than stating that Mr. Lufkin “has this date talked and attempted communication with”
Ms. McClendon and Mr. Rice. In addition, the motion stated that Mr. Lufkin wanted to file
Interrogatories and Requests for Production.
On July 13, 2012, the Board filed its brief and a response to Mr. Mabry’s motion for
a continuance. The brief detailed the Board’s basis for seeking discipline against Mr. Mabry
and recommended that his law license be suspended. The Board opposed a continuance of
the hearing, noting that on July 12, 2012, Disciplinary Counsel emailed Ms. McClendon to
ask if she or Mr. Rice would be at Mr. Mabry’s hearing, but discovered that Ms. McClendon
was unaware of any hearing. The Board opposed reopening discovery more than three months
after the discovery deadline had expired. The Panel denied Mr. Mabry’s motion for a
continuance, noting that Mr. Mabry had made no attempt to subpoena Ms. McClendon or Mr.
Rice and that he failed to offer any evidence that he attempted to contact them about the
hearing other than on July 12, 2012. Further, the Panel noted that Mr. Mabry made no
assertion that these witnesses had material knowledge relevant to the acts complained of in
the petition or that they had personal knowledge of any of the facts alleged. The Panel found
that Mr. Mabry had chosen to proceed pro se for more than a year and that Mr. Lufkin’s
7
(...continued)
A lawyer shall not bring or defend or continue with the prosecution or
defense of a proceeding, or assert or controvert or continue to assert or
controvert an issue therein, unless after reasonable inquiry the lawyer has
a basis for doing so that is not frivolous, which includes a good faith
argument for an extension, modification, or reversal of existing law.
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appearance less than two weeks before trial was not grounds for a continuance or reopening
of discovery.
Two days before the July 18, 2012 hearing, Mr. Mabry filed a motion to strike the
Board’s brief and its supplemental witness and exhibit list and to dismiss the petition. The
motion asserted that the Board’s supplemental witness and exhibit list, filed July 12, 2012,
was not timely and that the list attempted to serve notice of recent pleadings in Shore v.
Fields, a case with which Mr. Mabry had not been involved since December 2008. He argued
that the Board’s petition for discipline was defective because, by failing to state “a demand
for judgment for the relief the pleader seeks,” the petition did not comport with the
requirements of Tenn. R. Civ. P. 8.01. Thus, according to Mr. Mabry, he did not have
adequate time to prepare an effective defense. Mr. Mabry also sought to have his case
continued. At the beginning of the July 18, 2012 hearing, the Panel denied Mr. Mabry’s
motion.
At the Panel’s hearing on July 18, 2012, Mr. Mabry, Mr. Cunningham, Kevin Wayne
Shepherd, and Jean Elizabeth French testified. After considering the testimony of these
witnesses, numerous exhibits, and records of Mr. Mabry’s prior ethical violations, the Panel
issued its decision on August 2, 2012. The Panel found that, with regard to Ms. Shore’s case,
Mr. Mabry violated RPC 1.3 and RPC 8.4(a) by failing to act with reasonable diligence and
promptness in his representation of Ms. Shore following the motion to dismiss and safe harbor
letter. The Panel’s order stated, “[B]ased on his belief the claim became moot upon the
dismissal of defendant Goddard[,] it is incomprehensible why [Mr. Mabry] did not
simultaneously dismiss the conspiracy claim upon dismissing . . . Goddard. Instead, [Mr.
Mabry] did nothing, causing unnecessary litigation and subjecting his client to the possibility
of monetary sanctions.” The Panel found that the Board had failed to prove any of the other
disciplinary violations alleged in the petition. After considering the relevant aggravating and
mitigating factors applicable to Mr. Mabry’s case, the Panel determined that a forty-five-day
suspension was warranted. The aggravating factors considered were Mr. Mabry’s pattern of
misconduct, his refusal to acknowledge the wrongful nature of his conduct, his substantial
experience in the practice of law, and his seven prior disciplinary offenses. Between 1991 and
2008, Mr. Mabry was disciplined by the Board seven times, receiving two public censures,
four private reprimands and informal admonitions, and a suspension for eleven months,
twenty-nine days, which he served on probation from July 2008 to May 2009. As to
mitigating circumstances, the Panel noted Mr. Mabry’s disclosure to the Board, his
cooperative attitude, and the Rule 11 monetary sanction of $5,000. The Panel denied Mr.
Mabry’s subsequent motion to alter or amend and motion to stay the judgment.
Both Mr. Mabry and the Board appealed to the Knox County Chancery Court. On
March 15, 2013, the trial court reviewed the transcript from the Panel’s hearing and heard
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proffered testimony from Mr. Rice and Mr. Mabry. The trial court excluded the testimony of
Mr. Rice—that Mr. Mabry had been involved as a TLAP volunteer—finding that the evidence
had already been presented during Mr. Mabry’s testimony before the Panel. The trial court
did not consider the proferred testimony of Mr. Mabry, determining that Mr. Mabry did not
qualify as an expert witness and that his testimony would not have been of benefit to the
court. Further, the trial court held that the Panel did not abuse its discretion in refusing to
grant Mr. Mabry a continuance. The trial court affirmed the Panel’s findings of fact and
conclusions of law, determining that all were fully supported by the evidence. Mr. Mabry
appealed to this Court.
IV.
Mr. Mabry’s brief consists of numbered paragraphs replete with rambling assertions
of error by the Panel and the trial court, with little or no supporting citations to authority. We
have carefully reviewed all of his allegations and assertions and find that none have merit.
A. Procedural Claims
Mr. Mabry first argues generally that his disciplinary proceedings violated Tennessee
Rules of Civil Procedure 5, 6, 7.01, 8.01, and 59.04 and that these procedural deficiencies
violated his Constitutional rights as guaranteed by the Fifth, Sixth, and Fourteenth
Amendments to the United States Constitution.
Among his many claims of procedural error, Mr. Mabry asserts that the Board’s
petition for discipline should have been dismissed because it did not specifically state the
punishment sought by the Board. We disagree. Though the Tennessee Rules of Civil
Procedure generally apply in attorney disciplinary proceedings, it is only where the Tennessee
Supreme Court Rules do not provide otherwise. See Tenn. Sup.Ct. R. 9, § 23.3. While Tenn.
R. Civ. P. 8.01 requires that a pleading contain a “demand for judgement for the relief the
pleader seeks,” Tenn. Sup.Ct. R. 9, section 8.2 provides that a formal disciplinary proceeding
is commenced by the filing of a petition “which shall be sufficiently clear and specific to
inform the respondent of the alleged misconduct.” Thus, Tenn. Sup.Ct. R. 9, section 8.2
governs the content requirements for petitions in attorney disciplinary proceedings, not Tenn.
R. Civ. P. 8.01. Mr. Mabry’s argument is without merit. Because the petition for discipline
filed in his case complies with the requirements of Tenn. Sup.Ct. R. 9, section 8.2, the petition
was not procedurally deficient.
Next, Mr. Mabry argues that he was prejudiced by the Board’s filing of its brief five
days before the Panel’s hearing and raises a similar objection as to the Board’s supplemental
witness and exhibit list. However, Mr. Mabry cites no valid authority to support his assertion
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of prejudice, and we find no error by the Panel in considering the Board’s pre-trial brief or in
allowing the supplemental witness and exhibit list. These filings were not only appropriate,
but were of assistance to the trier of fact and Mr. Mabry. This issue has no merit.
Mr. Mabry further argues that the Panel erred by denying his request for a continuance
filed six days before the scheduled hearing. Whether to grant or deny a motion for a
continuance is a matter of discretion, and we will not disturb a ruling on such a motion absent
an abuse of that discretion and a showing of prejudice to the party seeking the
continuance. Hoover, 395 S.W.3d at 103 (citing Blake v. Plus Mark, Inc., 952 S.W.2d 413,
415 (Tenn. 1997)). The petition for discipline in this case was filed on June 22, 2011, and Mr.
Mabry filed his answer on September 6, 2011. The case was set for hearing on May 9, 2012,
and subsequently reset for hearing on July 18, 2012, due to the unavailability of a material
witness. On July 12, 2012, Mr. Mabry moved for a continuance on the basis that, due to
“communication errors,” two of his witnesses, Ms. McClendon and Mr. Rice, had not been
notified of the hearing and could not attend. The Panel denied the motion. Mr. Mabry claims
the Panel’s decision was arbitrary, erroneous, and denied him the effective assistance of
counsel guaranteed by the Sixth Amendment to the United States Constitution. We find
nothing in the record to suggest that the Panel abused its discretion in denying Mr. Mabry a
continuance or that he was prejudiced in any way by this decision. Mr. Mabry had ample
notice of the hearing date and time to prepare his defense. Further, there is no Sixth
Amendment right to effective assistance of counsel in an attorney disciplinary
proceeding. See Welch v. Bd. of Prof’l Responsibility, 193 S.W.3d 457, 465 (Tenn. 2006)
(“[T]here is no . . . constitutional guarantee to effective counsel in a civil case.”); see also
Long v. Bd. of Prof’l Responsibility, 435 S.W.3d 174, 186 (Tenn. 2014) (“Attorney
disciplinary proceedings are not criminal proceedings[.]”). Accordingly, we reject this
argument as meritless.
Mr. Mabry next asserts that the Panel erred by not indicating in its judgment that it
considered probation as a possible sanction. He raised this issue to the Panel in his motion
to alter or amend judgment filed August 27, 2012. However, Mr. Mabry has cited no
authority that would require the Panel to indicate in its judgment that it considered every
possible form of punishment, including probation, and we are aware of no such
authority. Again, this issue has no merit.
Mr. Mabry next complains that the Board and the Panel engaged in improper ex parte
communications at the July 18, 2012 hearing, in that the Board provided the Panel with a
“bound volume,” of which Mr. Mabry had “no idea what was contained within.” However,
the Board notes that this “bound volume” merely contained the official public record of the
case and that Mr. Mabry could have accessed any of these documents. Mr. Mabry fails to
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explain how or why he is entitled to relief on this issue, and we once again consider it to be
without merit.
Finally, Mr. Mabry argues very generally that the alleged procedural deficiencies in
his disciplinary process violated his due process rights under the Fifth and Fourteenth
Amendments.8 Attorneys facing disciplinary proceedings are entitled to procedural due
process, which includes notice of the alleged misconduct and an opportunity to be
heard. Moncier v. Bd. of Prof’l Responsibility, 406 S.W.3d 139, 156 (Tenn. 2013). While an
attorney in a disciplinary proceeding does not have the same due process rights as the
criminally accused, they do have a number of significant procedural rights, such as “the right
to be represented by counsel, to cross-examine witnesses called against them, and to present
evidence on their own behalf.” Hyman v. Bd. of Prof’l Responsibility, 437 S.W.3d 435, 445
(Tenn. 2014) (citing Tenn. Sup.Ct. R. 9, § 8.2). Attorneys are also permitted to appeal the
judgment of the hearing panel. See Tenn. Sup.Ct. R. 9, § 1.3. Mr. Mabry was provided with
all of these procedural rights. He was given adequate notice of the disciplinary charges
against him, has had the opportunity to be represented by the attorney of his choosing, was
able to cross-examine the witnesses the Board called against him, and has been given and has
fully utilized his opportunity to respond. As noted above, there were no procedural errors in
Mr. Mabry’s case. Accordingly, we find that Mr. Mabry has received due process throughout
his disciplinary proceedings.
B. Evidentiary Claims
Mr. Mabry’s next general argument is that the trial court erred in excluding his
testimony and the testimony of Mr. Rice. During the trial court’s evidentiary hearing, Mr.
Mabry proffered the testimony of Mr. Rice, which indicated that Mr. Mabry was once
monitored by TLAP for substance abuse and that he later mentored other lawyers in the
program. Mr. Mabry also attempted to testify as an expert regarding alleged irregularities in
his disciplinary proceedings. We reject both of Mr. Mabry’s arguments.
The Tennessee Rules of Evidence apply in attorney disciplinary proceedings, “[e]xcept
as otherwise provided in [the Supreme Court Rules].” Tenn. Sup.Ct. R. 9, § 23.3. Tenn.
Sup.Ct. R. 9 restricts a trial court’s review of a hearing panel’s judgment to the transcript of
the evidence that was before the hearing panel, unless “allegations of irregularities in the
procedure before the panel are made.” Tenn. Sup.Ct. R. 9, § 1.3. While Mr. Mabry alleged
“irregularities,” the trial court found that neither his offer of proof nor his own expert
testimony would have aided in the trial court’s review of the proceedings, and thus neither
was appropriate for the trial court to consider. We agree.
8
For this proposition, Mr. Mabry also invokes the Tennessee Constitution and the Magna Carta.
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With regard to Mr. Rice’s testimony, the trial court found that while Mr. Mabry’s
experiences with TLAP were laudable, the same evidence had been presented to the Panel
through his own testimony. It was, therefore, unnecessary for Mr. Rice or any other TLAP
representative to present this testimony to the trial court. In fact, such cumulative evidence
would have been beyond the proper scope of the trial court’s review, which, as a general
matter, is limited to the transcript of evidence that was before the Panel. Id. Accordingly, we
find that the trial court did not abuse its discretion in excluding Mr. Rice’s testimony.
As for Mr. Mabry’s qualifications as an expert, he cites to the Preamble to the Rules
of Professional Conduct, Tenn. Sup.Ct. R. 8, which states that “[a] lawyer is an expert in law,”
in arguing that the trial court erred in not allowing him to testify as an expert in the area of his
own disciplinary proceedings. However, such a claim is lacking in both merit and common
sense. Tennessee Rules of Evidence 702 and 703 govern the admission of expert
testimony. See McDaniel v. CSX Transp., Inc., 955 S.W.2d 257, 264-65 (Tenn. 1997). Rule
702 provides: “If scientific, technical, or other specialized knowledge will substantially assist
the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified
as an expert by knowledge, skill, experience, training, or education may testify in the form of
an opinion or otherwise.” Tenn. R. Evid. 702. Rule 703 further provides that “[t]he court
shall disallow testimony in the form of an opinion or inference if the underlying facts . . .
indicate lack of trustworthiness.” Tenn. R. Evid. 703. Questions regarding the admissibility,
relevancy, and competency of expert testimony are left to the discretion of the trial court,
Hunter v. Ura, 163 S.W.3d 686, 704 (Tenn. 2005) (citing McDaniel, 955 S.W.2d at 263), and
the trial court’s ruling may only be overturned if that discretion is abused or arbitrarily
exercised, State v. Ballard, 855 S.W.2d 557, 562 (Tenn. 1993).
The trial court did not act arbitrarily in determining that Mr. Mabry was not qualified
as an expert; rather, the trial court had good reason for this decision. Mere personal
knowledge about his disciplinary proceedings did not qualify Mr. Mabry as an expert, and
though he is technically considered an “expert in law” under Tenn. Sup.Ct. R. 8, his
knowledge of the disciplinary process would have hardly “substantially assist[ed]” a trial
judge, who is an expert in the law himself. See Tenn. R. Evid. 702. Moreover, Mr. Mabry’s
unmistakable bias as to the validity of his own disciplinary proceedings “indicates a lack of
trustworthiness” that provides additional grounds for excluding his opinion testimony. See
Tenn. R. Evid. 703. Therefore, we find that the trial court did not abuse its discretion in
refusing to allow Mr. Mabry to testify as an expert witness.
C. Arbitrary and Capricious Claim
Mr. Mabry argues that the Panel acted arbitrarily or capriciously in finding that he
violated RPC 1.3 and RPC 8.4(a) and in imposing a forty-five-day suspension. We
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disagree. “A lawyer shall act with reasonable diligence and promptness in representing a
client.” Tenn. Sup.Ct. R. 8, RPC 1.3. In particular, a lawyer has a duty to pursue the client’s
best interests and to take care not to place the client in a vulnerable position or unnecessarily
expose the client to sanctions. See Hanzelik v. Bd. of Prof’l Responsibility, 380 S.W.3d 669,
680 (Tenn. 2012) (finding that an attorney who allowed a client to be held in contempt of
court due to poor communication failed to provide “diligent representation”). Additionally,
diligence requires that an attorney make “reasonable efforts to expedite litigation.” Id.
The Panel was presented with evidence that Mr. Mabry filed a complaint on behalf of
Ms. Shore, alleging a civil conspiracy between three Blount County officials—Mr. Goddard,
Mr. Fields, and Mr. Cunningham. Within a month after the lawsuit was filed, Mr. Mabry
voluntarily dismissed Mr. Goddard from the case, leaving Mr. Fields as the only
defendant. Mr. Mabry later expressed that, at this point, the civil conspiracy claim became
moot.9 Mr. Fields notified Mr. Mabry of his intention to seek sanctions if the case were not
dismissed, but Mr. Mabry did not respond. Mr. Fields then filed a motion to dismiss and
requested that sanctions be imposed against Mr. Mabry and Ms. Shore. Mr. Mabry still did
not respond. The Blount County Circuit Court found that Mr. Mabry’s conduct warranted a
sanction of $5,000 in attorney’s fees.
Upon review of these facts, we find that the Panel did not act arbitrarily or capriciously
in determining that Mr. Mabry violated RPC 1.3 and RPC 8.4(a). On the contrary, Mr.
Mabry’s failure to take any action in response to Mr. Fields’ safe harbor letter, motion to
dismiss, and motion for sanctions was neglectful, unprofessional, and exposed his client to
the very real possibility of monetary sanctions. We find there was substantial and material
evidence supporting the Panel’s findings that Mr. Mabry violated the duty of diligence
required of attorneys by RPC 1.3, and in doing so, that he violated RPC 8.4(a).
D. Appropriate Punishment
The American Bar Association Standards for Imposing Lawyer Sanctions (1986, as
amended 1992) (“ABA Standards”) provide guidelines for determining the appropriate level
9
Though we acknowledge that a civil conspiracy claim can, under certain circumstances, proceed
against only one defendant, the record indicates that this was not Mr. Mabry’s intention. In expressing his
belief that the civil conspiracy claim became moot once he dismissed Mr. Goddard from the lawsuit, Mr.
Mabry indicated that he did not intend to proceed with that claim against Mr. Fields. Since it was unclear
whether the civil conspiracy claim was moot, the Panel properly found that Mr. Mabry did not violate RPC
3.1 for maintaining a frivolous claim. However, the Panel found that Mr. Mabry violated his duty of
diligence under RPC 1.3 for, among other things, failing to appropriately respond to Mr. Fields’ motion to
dismiss, safe harbor letter, and motion for sanctions. As the Panel properly noted, the failure to find a
violation of RPC 3.1 does not preclude a finding that an attorney has failed to act with the diligence required
by RPC 1.3.
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of discipline for lawyer misconduct. Lockett v. Bd. of Prof’l Responsibility, 380 S.W.3d 19,
25-27 (Tenn. 2012); see also Tenn. Sup.Ct. R. 9, § 8.4. The ABA Standards promote the
“consideration of all factors relevant to imposing the appropriate level of sanction in an
individual case.” Lockett, 380 S.W.3d at 28 (quoting ABA Standard 1.3). In this case, the
trial court considered ABA Standards 4.42, 7.2, and 8.2 to be applicable.
ABA Standard 4.42 states that suspension is generally appropriate for lack of diligence
when “(a) a lawyer knowingly fails to perform services for a client and causes injury or
potential injury to a client,” or “(b) a lawyer engages in a pattern of neglect [and] causes injury
or potential injury to a client.” ABA Standard 7.2 states that “[s]uspension is generally
appropriate when a lawyer knowingly engages in conduct that is a violation of a duty owed
as a professional and causes injury or potential injury to a client, the public, or the legal
system.” And ABA Standard 8.2 states that “[s]uspension is generally appropriate when a
lawyer has been reprimanded for the same or similar misconduct and engages in further
similar acts of misconduct that cause injury or potential injury to a client, the public, the legal
system, or the profession.”
We find that each of these ABA Standards applies to the facts and circumstances of
Mr. Mabry’s case. The record reflects that Mr. Mabry has been sanctioned by the Board
seven times since 1991. This included an eleven month, twenty-nine-day suspension from the
practice of law that he served on probation beginning July 2008. By an Order of Enforcement
entered by this Court on July 15, 2008, Mr. Mabry’s probation was conditioned upon him,
among other things, “not engag[ing] in conduct which violates Tenn. Sup.Ct. R. 8, RPC 1.1,
1.2, 1.3, 1.4, 1.5, 1.15 or 1.16.” Less than five months later, Mr. Mabry violated RPC 1.3 by
engaging in an unacceptable pattern of neglect, violating his duty to the legal profession, and
causing potential injury to his client, the public, the legal system, and the profession.
In light of these facts, we agree with the Panel’s finding that suspension is the
appropriate sanction. As to the length of the suspension, Tenn. Sup.Ct. R. 9, section 4.2
states: “No suspension shall be ordered for a specific period less than thirty days or in excess
of five years.” Given Mr. Mabry’s conduct and history of professional misconduct, we find
that a forty-five-day suspension from the practice of law is not an arbitrary and capricious
application of Rule 9 nor the ABA Standards. Mr. Mabry “has not heeded lessons from facing
numerous prior disciplinary proceedings and, in fact, continues to repeat the same
mistakes.” Sneed v. Bd. of Prof’l Responsibility, 301 S.W.3d 603, 618 (Tenn. 2010). As such,
we find that Mr. Mabry’s penalty is supported by substantial and material evidence and that
the Panel did not abuse its discretion by imposing it.
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CONCLUSION
For the reasons stated above, the judgment of the Knox County Chancery Court is
affirmed. The costs of this appeal are taxed to Thomas Fleming Mabry and his surety, for
which execution may issue if necessary.
_________________________________
SHARON G. LEE, CHIEF JUSTICE
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