M. Josiah Hoover, III v. Board of Professional Responsibility of the Supreme Court of Tennessee , 2012 Tenn. LEXIS 811 ( 2012 )

IN THE SUPREME COURT OF TENNESSEE
AT KNOXVILLE
September 5, 2012 Session
M. JOSIAH HOOVER, III v. BOARD OF PROFESSIONAL
RESPONSIBILITY OF THE SUPREME COURT OF TENNESSEE
Direct Appeal from the Chancery Court for Knox County
No. 1797253 Donald Harris, Senior Judge
No. E2011-02458-SC-R3-BP - Filed November 16, 2012
This is an appeal from a judgment affirming the disbarment of an attorney. After considering
evidence presented incident to five complaints against the attorney, a hearing panel
designated by the Board of Professional Responsibility concluded that disbarment was
warranted. On appeal, the trial court affirmed. In this appeal, the attorney has raised the
following issues for review: (1) whether the panel erred by denying his motion to continue
the hearing; (2) whether the panel erred by considering the attorney’s conduct in a case based
upon a complaint by another attorney who had no involvement in the case; (3) whether the
evidence supports the panel’s findings; (4) whether disbarment is an appropriate punishment;
and (5) whether the trial court erred by denying the attorney’s post-judgment motion to
supplement the record. We affirm the judgment.
Tenn. Sup. Ct. R. 9, § 1.3 Direct Appeal; Judgment of the Trial Court Affirmed
G ARY R. W ADE, C.J., delivered the opinion of the Court, in which J ANICE M. H OLDER,
C ORNELIA A. C LARK, W ILLIAM C. K OCH, J R., and S HARON G. L EE, JJ., joined.
M. Josiah Hoover, III, Knoxville, Tennessee, pro se.
Sandy Garrett, Senior Litigation Counsel, for the appellee, Board of Professional
Responsibility of the Supreme Court of Tennessee.
OPINION
I. Facts and Procedural Background
On July 22, 2010, the Board of Professional Responsibility (“BPR”) filed a petition
for discipline against M. Josiah Hoover, III, who has been licensed to practice law in this
state since 1981. The petition contained allegations of five instances of misconduct by the
following complainants: Norman Whitton, Ronald and Deborah Titus, and Wayne LeQuire,
all of whom were former clients of Hoover, and attorney Roy Neuenschwander. After
Hoover responded to the petition, a hearing panel (“Panel”) scheduled the matter to be heard
on December 8, 2010.
Two days before the hearing, Hoover filed a motion to continue, contending that both
he and the BPR had served discovery requests less than thirty days prior to the hearing and
that the time for responses would not expire until after the hearing date. Because the BPR
had subpoenaed several witnesses and was prepared to proceed without responses to its
discovery requests, it opposed the motion. The Panel denied the request for a continuance
and proceeded with the hearing as scheduled.1 During the hearing the parties adduced the
following evidence concerning the complaints against Hoover.
According to Hoover’s testimony and court records presented by the BPR, the first
complainant, Norman Whitton, hired him in January of 2007 to file a proof of claim in the
bankruptcy proceeding of a judgment debtor. Whitton paid Hoover $1000 for his
representation, and Hoover, without ascertaining the status of the bankruptcy beforehand,
filed a proof of claim. Afterward, Whitton discovered that the debtor had been discharged
from bankruptcy a month before the claim was filed. When he informed Hoover of the
discharge and asked for a refund of the advance fee, Hoover refused to return the $1000.
Proceeding pro se, Whitton filed suit against Hoover in the General Sessions Court for
Loudon County, alleging legal malpractice and breach of contract. He obtained a $1000
judgment. When Hoover appealed, the circuit court affirmed the judgment, finding that the
contract was unconscionable. On further appeal, the Court of Appeals concluded that the
contract did not qualify as unconscionable and modified the judgment to $500. Whitton v.
Hoover, 313 S.W.3d 262, 265 (Tenn. Ct. App. 2009). On December 7, 2010, one day prior
to the hearing before the Panel, Hoover paid $100 of the $500 judgment. As of the date of
the hearing, the balance remained unpaid.
Ronald and Deborah Titus employed Hoover to file a suit for breach of warranty in
the Circuit Court for Blount County. Hoover admitted that when the court granted summary
judgment denying recovery, he filed a notice of appeal but failed to follow up with a timely
brief. On January 11, 2008, the Court of Appeals ordered Hoover to either file a brief within
ten days or show cause why the appeal should not be dismissed. Upon request, the Court of
Appeals granted Hoover an extension of time for filing until February 25, 2008. Ten days
before the due date, Hoover wrote a letter to the Tituses, informing them that he would “have
the brief written on or before February 28, 2008.” Hoover did not file the required appellate
1
Hoover initially failed to appear at the hearing, which was scheduled for 9:00 a.m. Following a
brief delay, the Panel commenced the hearing in Hoover’s absence. When he arrived forty minutes late, the
Panel delayed the proceedings for his benefit in order to summarize what had occurred prior to his arrival.
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brief until February 29, 2008, at which time he also filed a motion asking the Court of
Appeals to accept a late transcript submitted contemporaneously with the brief. On March
12, 2008, the Court of Appeals denied the motion and dismissed the appeal for failure to file
a timely brief and failure to comply with the previous orders. Hoover filed a petition for
rehearing on April 14, 2008, which was denied as untimely. Deborah Titus testified that she
and her husband, who had paid Hoover over $13,000 in attorney’s fees, learned from the
Appellate Court Clerk’s Office rather than Hoover that their appeal had been dismissed.
Wayne LeQuire testified that he retained Hoover in September of 2008 to represent
him in a divorce. LeQuire’s wife had initiated the proceedings. Because Hoover emphasized
that an answer to the divorce complaint had to be filed by Monday, September 15, 2008, he
informed LeQuire that he would be required to arrange a consultation over the weekend
before the deadline, for which he “was going to charge . . . a little extra.” LeQuire met with
Hoover over that weekend and paid him $3500; however, when he attempted to contact
Hoover by telephone on September 15th, he was unsuccessful. Although Hoover had assured
LeQuire that he would file his answer on September 15th, he did not do so until two days
later.
Following the filing of the answer, Hoover scheduled a discovery deposition of
LeQuire’s wife and arranged for a meeting with LeQuire in order to properly prepare.
LeQuire averred that despite repeated attempts, he was unable to make contact with Hoover
until the day before the scheduled deposition. At that time, Hoover told LeQuire to meet him
on the following morning. When LeQuire telephoned Hoover the next morning, he was
again unable to make contact. Hoover returned the call at approximately 10:30 a.m. and
instructed LeQuire to meet him at noon—one hour before the 1:00 p.m. deposition—in the
parking lot of the building where the deposition was to be taken. LeQuire arrived at the
appropriate time. Hoover did not arrive until approximately 1:20 p.m. Because Hoover had
nothing but a pen and notepad, LeQuire was required to provide Hoover with materials he
kept in his own case file.
Because of the lack of preparation, LeQuire informed Hoover that he was
uncomfortable with going forward with the deposition at that time. Hoover, however,
persuaded him to proceed. In consequence, the deposition went “as bad as one can possibly
go,” according to LeQuire, who claimed that Hoover posed a number of questions that did
not make sense in the context of the case. Eventually, LeQuire, who perceived that he had
been “backed into a corner,” requested a recess, presented a settlement offer directly to
opposing counsel in excess of what he had initially planned, and settled the case.
Attorney Roy Neuenschwander complained about the conduct of Hoover in Edwards
v. Powers, No. 2:00-0775, 2003 WL 25674812 (S.D.W. Va. June 5, 2003) and in Hoover v.
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Disney, No. L-16572 (Cir. Ct. May 26, 2010). Hoover brought the Edwards case in the
United States District Court for the Southern District of West Virginia, asserting claims for
injuries suffered by a deceased prisoner and on behalf of his surviving spouse as a result of
civil rights violations. In an order issued on June 5, 2003, the district court enumerated
twelve instances of misconduct by Hoover as a result of his failure to comply with court
orders, various provisions of the Federal Rules of Civil Procedure, and the local rules of the
district. Edwards, 2003 WL 25674812, at *1-3. Among other things, the district court found
that Hoover had neglected to make several required discovery disclosures, had failed to
comply with multiple scheduling deadlines, had repeatedly filed untimely responses, and had
filed a “frivolous and vexatious” motion for sanctions against opposing counsel. In addition,
after being cautioned that any further violation of a court order would result in sanctions or
criminal contempt, Hoover violated an order requiring him to provide opposing counsel
certain documents by a specified time. Id. The district court further made the following
observation:
The court repeatedly has warned [Hoover] that he would be personally
sanctioned if he continued to fail to comply with the discovery requests and
orders of this court. Accordingly, the court FINDS that it has given [Hoover]
more than sufficient notice of his alleged misconduct and the consequences of
that misconduct. As stated in the show cause hearing, the court FINDS that
Hoover has repeatedly violated the orders of this court, the local rules, and the
Federal Rules of Civil Procedure. Although Mr. Hoover proffers that he did
not “intend to hinder or delay” litigation and that he has “done the best [he]
could” in this complex case, the court FINDS that these excuses are not
credible and that Mr. Hoover’s numerous violations of the rules were in fact
made in bad faith and with the intent to delay.
Id. at *4.
Based on these findings, the district court imposed a monetary sanction in the amount
of $12,649.58, as reasonable attorney’s fees incurred by the opposing party as a result of
Hoover’s improper conduct. Id. Noting the “flagrant” nature of the conduct, the district
court also ordered that Hoover be fined $1000 per week for every week after the payment
deadline, if the amount had not been paid in full. Id. Further, citing Hoover’s “absolute
disregard for the practices and procedures of [the] court,” the district court ordered that his
pro hac vice status be revoked and that “he never again be allowed to practice before the
United States District Court for the Southern District of West Virginia following the
conclusion of matters in [the Edwards case].” Id.
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The State of West Virginia successfully petitioned for the domestication of the
judgment in the Chancery Court for Knox County. Following an unsuccessful motion to alter
or amend the judgment of the Chancery Court, Hoover attempted to appeal. Because the
notice of appeal had not been timely filed, the Court of Appeals granted a motion to dismiss
by the State of West Virginia. As of the date of the hearing before the Panel, Hoover owed
a balance of $8649.58 on the original award of attorney’s fees, $6270.95 in interest, and
$377,000.00 in penalties.
Attorney Neuenschwander also alerted the BPR to Hoover’s conduct in Hoover v.
Disney, a civil action that Hoover commenced pro se in the Circuit Court for Blount County.
In that case, Hoover asserted several claims based on a transaction in which he purportedly
purchased three horses from Tim Disney, who was represented by Neuenschwander. Hoover
sought $10,000,000 in punitive damages. In April of 2010, the circuit court granted summary
judgment in favor of Disney and, acting sua sponte, notified Hoover of its intent to impose
sanctions pursuant to Tennessee Rule of Civil Procedure 11 because his claim was frivolous.
After providing Hoover with an opportunity to respond, the circuit court issued an order on
May 26, 2010, holding that Hoover lacked “any evidentiary support and that the claims
[were] not warranted” under law. After observing that Hoover’s filings were deficient and
that he had failed to respond to a properly served request for admissions, the circuit court
concluded that the “proceedings ha[d] been a waste of judicial economy and expense.” As
Hoover admitted during his testimony before the Panel, the order further provided that for
a period of one year, Hoover could not file a complaint in the Circuit Court for Blount
County without first submitting his pleadings to a screening process designed to ensure
compliance with Tennessee Rule of Civil Procedure 11.02.2 After the dismissal of the claim,
Disney filed a malicious prosecution action against Hoover. That case was still pending at
the time of the hearing before the Panel.
In addition, the Panel considered Hoover’s prior disciplinary record, which included
the following: (1) a January 10, 1997 public censure for failure to adequately communicate
with clients and the BPR; (2) a February 10, 1997 private informal admonition for failure to
adequately communicate with a client; (3) a May 7, 1998 private informal admonition for
failure to adequately communicate with a client and the BPR; (4) an October 1, 1999 private
informal admonition for trust account overdrafts; (5) an August 6, 2003 private reprimand
for “ill-advisedly form[ing] a personal relationship with a woman who came before him in
his capacity as a substitute judicial commissioner under the General Sessions judges of Knox
2
Due to an apparent clerical error, the portion of the May 26, 2010 order outlining the court’s
sanction was not included in the record. Nevertheless, the findings of fact in the written decision of the Panel
provide the content of the missing portion of the order. Also, as noted, Hoover admitted to being sanctioned
in the manner described in his testimony before the Panel.
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County”; (6) a February 23, 2006 public censure for failure to timely respond to inquires
from the BPR; (7) a thirty-day suspension from the practice of law in 2008 for failure to
communicate with a client, failure to timely provide the client with her case file, and failure
to timely provide the client with the proceeds from the sale of her residence; and (8) a May
28, 2010 private informal admonition for creating a conflict of interest with a client by
“failing to communicate with co-counsel, against the specific direction of [the] client.”
In a judgment filed on December 17, 2010, the Panel sustained each of the complaints
against Hoover. First, the Panel ruled that by charging Whitton an unreasonably high fee and
by failing to satisfy Whitton’s judgment, Hoover violated Tennessee Supreme Court Rule 8,
Rules of Professional Conduct (“RPC”) 1.5(a) and 8.4(a) and (g). Second, the Panel found
that Hoover failed to adequately inform the Tituses of the status of their case, failed to
explain the matter to the extent necessary for them to make informed decisions, and exhibited
a lack of diligence in handling their litigation. The Panel concluded that these acts and
omissions caused the Tituses to suffer serious financial losses and constituted violations of
RPC 1.3, 1.4(a) and (b), 3.2, and 8.4(a) and (d). Third, the Panel found that because Hoover
failed to keep LeQuire reasonably informed about the status of his case, failed to timely
respond to reasonable requests for information, and failed to properly apprise him of his
rights and obligations under the circumstances, he violated RPC 1.4(a) and (b), and 8.4(a)
and (d). Finally, as to the two matters reported by attorney Neuenschwander, the Panel found
that Hoover committed “multiple acts in total disregard of court deadlines, orders and
instructions designed to promote a proper and efficient administration of justice.” The Panel
concluded that Hoover caused “substantial harmful prejudice to his client” in Edwards, and
that he had “consistently impeded the administration of justice in both the Edwards and
Disney litigation.” The Panel determined that Hoover’s conduct violated RPC 1.3, 3.2, and
8.4(a), (d), and (g).
In assessing the appropriate level of discipline for these infractions, the Panel applied
the following aggravating factors: (1) substantial experience in the practice of law; (2) the
commission of multiple offenses in violation of numerous disciplinary rules; (3) a pattern of
misconduct and total disregard for procedural and ethical rules, as well as the rights of
clients; (4) a failure to acknowledge wrongdoing; (5) dishonest and selfish motives regarding
the purported need to maintain a law practice to generate funds to satisfy financial
obligations, despite having consistently disregarded such obligations in the past; and (6)
incompetence causing substantial harm to clients and interfering with the administration of
justice. The Panel found no mitigating factors, and concluded that Hoover should be
disbarred from the practice of law.
On February 14, 2011, Hoover filed a petition for writ of certiorari in the Chancery
Court for Knox County seeking review of the Panel’s ruling. See Tenn. Sup. Ct. R. 9, § 8.3.
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The trial court affirmed the judgment of disbarment in all respects. On November 15, 2011,
Hoover filed a notice of appeal to this Court. Approximately two months later, Hoover filed
a “Motion to Extend Time for Filing Transcript” in the trial court, seeking thirty days within
which to supplement the record by filing a transcript of the deposition in the LeQuire divorce
proceeding and a copy of the “file” of the case involving the Tituses. Because Hoover had
already filed the notice of appeal, thereby divesting its jurisdiction, the trial court denied the
motion. The trial court further observed that allowing Hoover to submit additional evidence
would be futile because its review was limited to the record of the evidence developed in the
hearing before the Panel. See Tenn. Sup. Ct. R. 9, § 1.3.
II. Scope of Review
The Supreme Court, as the source of authority of the Board of Professional
Responsibility and all of its functions, has the ultimate disciplinary authority pertaining to
the licensure of attorneys. Rayburn v. Bd. of Prof’l Responsibility, 300 S.W.3d 654, 660
(Tenn. 2009); Hughes v. Bd. of Prof’l Responsibility, 259 S.W.3d 631, 640 (Tenn. 2008).
Absent allegations of irregularities in the procedure before the hearing panel, the trial court’s
review of the decision by the hearing panel “shall be on the transcript of the evidence before
the hearing panel and its findings and judgment.” Tenn. Sup. Ct. R. 9, § 1.3; Flowers v. Bd.
of Prof’l Responsibility, 314 S.W.3d 882, 891 (Tenn. 2010). The trial court may reverse or
modify a decision of the hearing panel only when the panel’s findings, inferences,
conclusions or decisions 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. Moreover, the trial court “shall not substitute its judgment for that
of the panel as to the weight of the evidence on questions of fact.” Id.; Lockett v. Bd. of
Prof’l Responsibility, ___ S.W.3d ___, ___, 2012 WL 2550586, at *3-4 (Tenn. July 3, 2012).
In appeals from judgments of the trial courts, this Court reviews attorney disciplinary
matters “upon the transcript of the record from the circuit or chancery court, which shall
include the transcript of evidence before the hearing panel.” Tenn. Sup. Ct. R. 9, § 1.3. Our
standard of review on appeal is identical to that of the trial court and, in consequence, a
reversal is warranted only when the panel’s “findings, inferences, conclusions, or decisions”
fall within one of the five circumstances enumerated in Rule 9, section 1.3. Bd. of Prof’l
Responsibility v. Love, 256 S.W.3d 644, 653 (Tenn. 2008) (quoting Tenn. Sup. Ct. R. 9, §
1.3); see also Tenn. Code Ann. § 4-5-322(h) (2011). In particular, this Court will not reverse
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the decision of a hearing panel so long as the evidence “furnishes a reasonably sound factual
basis for the decision being reviewed.” Hughes, 259 S.W.3d at 641 (quoting Jackson
Mobilphone Co. v. Tenn. Pub. Serv. Comm’n, 876 S.W.2d 106, 111 (Tenn. Ct. App. 1993)).
III. Analysis
In this appeal, Hoover argues (1) that the Panel erred by denying his motion for a
continuance; (2) that the Panel erred by considering his conduct in Edwards; (3) that the
Panel’s findings lack sufficient evidentiary support; (4) that disbarment is too severe under
these circumstances; and (5) that the trial court erred by denying his post-judgment motion
to supplement the record.
A. Motion for Continuance
Hoover’s first contention is that the Panel erred by denying the motion for a
continuance he filed two days before the hearing. He contends that he was entitled to a
continuance because he was suffering from a severe infection at the time.
Because the decision to grant a motion for a continuance is discretionary, our review
is under an abuse of discretion standard. Hunter v. Ura, 163 S.W.3d 686, 709-10 (Tenn.
2005); Blake v. Plus Mark, Inc., 952 S.W.2d 413, 415 (Tenn. 1997). A hearing panel abuses
its discretion by “(1) applying an incorrect legal standard, (2) reaching an illogical or
unreasonable decision, or (3) basing its decision on a clearly erroneous assessment of the
evidence.” Lee Med., Inc. v. Beecher, 312 S.W.3d 515, 524 (Tenn. 2010). Moreover, the
ruling on a motion for a continuance will not be disturbed on appeal absent a showing of
prejudice to the party that sought the continuance. Blake, 952 S.W.2d at 415.
The record demonstrates that the hearing before the Panel had been scheduled several
months in advance. Hoover filed his motion for a continuance two days before the hearing.
By that point, the BPR had arranged for its witnesses to testify on the scheduled date, and it
did not insist upon responses to its outstanding discovery requests. Although Hoover now
seeks to rely upon illness as the basis for the continuance, his motion made no reference to
any physical infirmity. The only ground he provided was the fact that the parties had
outstanding discovery requests. Further, Hoover participated in the hearing, and he has made
no attempt to show any prejudice resulting from the denial of his motion for a continuance.
This record contains no information calling into question the Panel’s determination that the
discovery issue did not warrant a last-minute continuance. In light of these circumstances,
the Panel did not abuse its discretion by refusing to continue the hearing.
B. Consideration of Edwards v. Powers
We next address Hoover’s contention that the Panel erred by allowing the BPR to
present evidence related to his conduct in Edwards, in which the United States District Court
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for the Southern District of West Virginia sanctioned Hoover for a variety of misconduct.
See 2003 WL 25674812, at *1-4. Hoover asserts that the Panel should not have considered
his conduct in Edwards because it was reported by attorney Neuenschwander, who had no
involvement in that case. Hoover also alleges that Neuenschwander submitted his complaint
to the BPR in an effort to have Hoover disqualified from representing Neuenschwander’s ex-
wife in an alimony dispute.
Supreme Court Rule 8, RPC 8.3 provides that “[a] lawyer who knows that another
lawyer has committed a violation of the Rules of Professional Conduct that raises a
substantial question as to that lawyer’s honesty, trustworthiness, or fitness as a lawyer in
other respects, shall inform the Disciplinary Counsel of the [BPR].” The district court in
Edwards enumerated twelve instances of misconduct by Hoover, which resulted in monetary
sanctions that remain unpaid as well as a permanent revocation of his pro hac vice status.
See 2003 WL 25674812, at *1-4. As the Panel determined, this conduct—which included
failure to comply with multiple court orders and procedural rules—violated multiple Rules
of Professional Conduct, including RPC 1.3, which provides that “[a] lawyer shall act with
reasonable diligence and promptness in representing a client,” and RPC 8.4(d), which defines
professional misconduct, in relevant part, as engaging “in conduct that is prejudicial to the
administration of justice.” Clearly, this conduct raised a substantial question as to Hoover’s
“fitness as a lawyer.” Tenn. Sup. Ct. R. 8, RPC 8.3.
Because RPC 8.3 provides that a lawyer with knowledge of conduct by another lawyer
that meets these criteria “shall inform” the BPR, Neuenschwander was not only authorized
to report the misconduct in Edwards, he was obligated to do so, irrespective of whether he
was involved in the case. See id. As a result, the contention that Neuenschwander’s lack of
involvement in Edwards precluded the Panel from considering Hoover’s misconduct in that
case is without merit.
We likewise reject Hoover’s claim that consideration of his misconduct in Edwards
was improper because Neuenschwander lodged the complaint in an effort to disqualify
Hoover from representing his wife in an alimony dispute. The Panel based its findings of
misconduct regarding the matters reported by Neuenschwander exclusively on court records
and properly concluded that any possible motive for filing his complaint was irrelevant to the
determination of whether the misconduct resulted in violations of the Rules of Professional
Conduct. See Flowers, 314 S.W.3d at 893 (finding that the complainants’ motives for filing
disciplinary complaints “[did] not render the[] complaints frivolous and certainly [did] not
nullify or undermine the findings of the hearing panel and the trial court”).
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C. Sufficiency of the Evidence
Although Hoover asserts that the evidence presented at the hearing was insufficient
to support the findings of the Panel, he does not specify which of the numerous ethical
violations are lacking in this regard. In general terms, Hoover disputes the determination that
he acted unethically while representing Ronald and Deborah Titus and Wayne LeQuire.
According to Hoover, he was unable to comply with the filing requirements in the Tituses’
appeal because a trial transcript had not been prepared by a court reporter. As to his
representation of LeQuire, Hoover contends that, contrary to the conclusion of the Panel, his
deposition of LeQuire’s wife was “extremely thorough” and resulted in an expedient
settlement of the case.
As noted, the Panel concluded that Hoover’s representation of the Tituses violated
several Rules of Professional Conduct, including RPC 1.3 (“A lawyer shall act with
reasonable diligence and promptness in representing a client.”); RPC 1.4(a) (“A lawyer shall
. . . keep the client reasonably informed about the status of the matter[.]”); RPC 1.4(b) (“A
lawyer shall explain a matter to the extent reasonably necessary to permit the client to make
informed decisions regarding the representation.”); RPC 3.2 (“A lawyer shall make
reasonable efforts to expedite litigation.”); RPC 8.4(a) (“It is professional misconduct to . .
. violate or attempt to violate the Rules of Professional Conduct . . . [.]”); and RPC 8.4(d) (“It
is professional misconduct to . . . engage in conduct that is prejudicial to the administration
of justice[.]”). The Panel further found that, during his representation of LeQuire, Hoover
violated RPC 1.4(a) and (b), and RPC 8.4(a) and (d).
We find that the record contains substantial and material evidence which supports the
Panel’s findings. See Tenn. Sup. Ct. R. 9, § 1.3. In his opening statement, Hoover asserted
that he “didn’t miss any deadlines except for filing [the appellate] brief and the transcript”
during his representation of the Tituses. The record of that case establishes that Hoover filed
a notice of appeal but neglected to file an appellate brief. On January 11, 2008, the Court of
Appeals granted Hoover ten days to file his brief or to show cause why the appeal should not
be dismissed. Upon a request by Hoover, the court extended the deadline to February 25,
2008. In a letter dated February 15, 2008, Hoover informed the Tituses that he would “have
the brief written on or before February 28, 2008.” Hoover did not file the brief until
February 29, 2008—four days after the extended deadline. The Court of Appeals dismissed
the appeal for failure to file a timely brief and failure to comply with its previous orders.
Moreover, Deborah Titus testified that Hoover failed to communicate with her about the
appeal and that she only learned the appeal had been dismissed when she contacted the
Appellate Court Clerk’s Office to check on the status of the case. While Hoover told the
Panel that he “did all that could be done, given the circumstances,” he acknowledged that
“the brief probably should have been filed.” In our view, this evidence furnishes a sound
basis for the Panel’s conclusion that Hoover failed to act with reasonable diligence and
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promptness, see Tenn. Sup. Ct. R. 8, RPC 1.3; that he failed to keep the Tituses reasonably
informed about their case, see Tenn. Sup. Ct. R. 8, RPC 1.4(a); that he failed to adequately
explain the matter to the Tituses, see Tenn. Sup. Ct. R. 8, RPC 1.4(b); that he failed to make
reasonable efforts to expedite the Tituses’ appeal, see Tenn. Sup. Ct. R. 8, RPC 3.2; and that
he engaged in professional misconduct, see Tenn. Sup. Ct. R. 8, RPC 8.4(a), (d).
As to the LeQuire complaint, Hoover admitted to the Panel that he had initially
informed LeQuire that he would submit a filing on his behalf by September 15, 2008, but
failed to do so until two days later. LeQuire testified that on multiple occasions, including
the week leading up to the deposition, Hoover failed to return his phone calls or otherwise
communicate with him about the case. In addition, LeQuire asserted that Hoover failed to
meet with him as agreed to prepare for the deposition and that, as a result of Hoover’s lack
of preparation, the deposition went so badly that LeQuire made a settlement offer directly to
opposing counsel in excess of what he had initially planned. This evidence furnishes a sound
basis for the Panel’s determination that Hoover violated RPC 1.4(a) and (b) and engaged in
professional misconduct as defined in RPC 8.4(a) and (d) during his representation of
LeQuire. Hoover’s allegation that his deposition of LeQuire’s wife was efficacious and
resulted in an expedient settlement amounts to nothing more than a request for this Court to
re-weigh the evidence, which our scope of review does not permit. See Sneed v. Bd. of
Prof’l Responsibility, 301 S.W.3d 603, 612 (“[T]he reviewing court ‘shall not substitute its
judgment for that of the panel as to the weight of the evidence on questions of fact.’”
(quoting Tenn. Sup. Ct. R. 9, § 1.3)).
In summary, we agree with the trial court that the violations found by the Panel are
supported by substantial and material evidence. Tenn. Sup. Ct. R. 9, § 1.3.
D. Propriety of Disbarment
Hoover next argues that disbarment is too harsh a punishment for his misconduct,
which he maintains amounts to nothing more than “reasonable mistakes.” He further
contends that a more lenient punishment would be consistent with prior attorney discipline
cases in this Court.
We rely upon the ABA Standards for Imposing Lawyer Sanctions (“ABA Standards”)
as guidelines in evaluating the appropriate type of sanction for attorney misconduct. Tenn.
Sup. Ct. R. 9, § 8.4; Lockett, ___ S.W.3d at ___, 2012 WL 2550586, at *6. Pursuant to ABA
Standard 3.0, we consider the following four factors regarding the severity of a sanction: “(a)
the duty violated; (b) the lawyer’s mental state; (c) the potential or actual injury caused by
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the lawyer’s misconduct; and (d) the existence of aggravating or mitigating factors.” 3 We
also consider the general principles guiding the determination of the proper penalty set out
in ABA Standards 4 through 8. See Rayburn, 300 S.W.3d at 664. Of particular relevance
to the instant matter, “[d]isbarment is generally appropriate when . . . a lawyer knowingly
fails to perform services for a client and causes serious or potentially serious injury to a
client; or . . . a lawyer engages in a pattern of neglect with respect to client matters and
causes serious or potentially serious injury to a client.” ABA Standard 4.41(b)-(c).
Disbarment is also “generally appropriate when a lawyer knowingly engages in conduct that
is a violation of a duty owed as a professional with the intent to obtain a benefit for the
lawyer or another, and causes serious or potentially serious injury to a client, the public, or
the legal system.” ABA Standard 7.1.
The record demonstrates that on multiple occasions Hoover knowingly failed to
perform services for his clients and violated his professional duties, which caused serious or
potentially serious injuries to his clients and the legal system. For example, the appeal that
Hoover initiated on behalf of the Tituses was dismissed when he failed to timely file a brief
despite two extensions of the filing deadline. In Edwards, Hoover’s repeated violations of
rules and court orders prejudiced his client, interfered with the proceedings, and resulted in
monetary sanctions that remained unpaid at the time of the hearing before the Panel.
Hoover’s failure to prepare for a key deposition in the LeQuire matter led his client to make
a settlement offer directly to adversary counsel. The frivolous action against Tim Disney
resulted in Rule 11 sanctions designed to prevent Hoover from further abusing the legal
system. Also, as noted by the Panel, Hoover’s prior disciplinary record included eight
instances of misconduct, one of which involved a thirty-day suspension in 2008 for failure
to perform services in a timely manner and failure to communicate with his client, much like
the complaints filed by Whitton, the Tituses, and LeQuire. See ABA Standard 8.1(b)
(“Disbarment is generally appropriate when a lawyer . . . [h]as been suspended for the same
or similar misconduct and intentionally or knowingly engages in further acts of misconduct
that cause injury or potential injury to a client, the legal system, or the profession.”).
Moreover, the Panel properly found multiple aggravating factors warranting disbarment,
including Hoover’s substantial experience practicing law, his commission of multiple
offenses in violation of numerous disciplinary rules, his pattern of misconduct, his failure to
acknowledge wrongdoing, and his incompetence causing substantial harm to clients and
interfering with the administration of justice. In light of Hoover’s misconduct, we conclude
that the decision by the Panel to impose disbarment in this case was not arbitrary, capricious,
or characterized by an abuse of discretion.
3
ABA Standard 9 provides a list of aggravating and mitigating factors, which we consider an
illustrative rather than exclusive list of factors. Lockett, ___ S.W.3d at ___, 2012 WL 2550586, at *7.
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In addition, “for the sake of uniformity,” we review the “sanctions imposed in other
cases presenting similar circumstances.” Bd. of Prof’l Responsibility v. Allison, 284 S.W.3d
316, 327 (Tenn. 2009). Disbarment has been deemed appropriate for attorney misconduct
involving a pattern of neglect despite prior discipline, as is the case here. See, e.g., Sneed,
301 S.W.3d at 617 (approving disbarment where attorney, among other things, neglected to
communicate with clients and exhibited a pattern of unethical conduct despite prior
disciplinary action against him).
E. Motion to Supplement the Record
As a final matter, we address Hoover’s contention that the trial court erred by denying
his motion to supplement the record with a transcript of the deposition of LeQuire’s wife,
which, he argues, warranted consideration under Tennessee Rule of Civil Procedure 60.02
because it would contradict LeQuire’s testimony. As noted, Hoover filed his motion to
supplement the record approximately three months after the trial court issued its judgment
and two months after he filed his notice of appeal to this Court.
Initially, as the trial court correctly determined, Hoover’s filing of a notice of appeal
divested the trial court of jurisdiction to consider his later motion. Spence v. Allstate Ins.
Co., 883 S.W.2d 586, 596 (Tenn. 1994) (“[A] trial court has no jurisdiction to consider a
Rule 60.02 motion during the pendency of an appeal.”). Furthermore, absent allegations of
irregularities in the procedure before the hearing panel, a trial court’s review of a hearing
panel decision “shall be on the transcript of the evidence before the hearing panel and its
findings and judgment.” Tenn. Sup. Ct. R. 9, § 1.3. Because Hoover did not allege any
procedural irregularities in the proceeding before the Panel, the trial court could not have
considered the additional evidence that he sought to introduce in his motion. See id.;
Milligan v. Bd. of Prof’l Responsibility, 301 S.W.3d 619, 625 n.21 (Tenn. 2009) (“[T]he trial
court may take additional proof only as necessary to resolve allegations that the hearing panel
engaged in irregular procedure.”).
IV. Conclusion
Based on our review of the record, we find that the Panel did not abuse its discretion
by denying Hoover’s motion for a continuance or by considering his conduct in Edwards.
We further conclude that the record supports the findings of the Panel, that disbarment is an
appropriate punishment, and that the trial court properly denied Hoover’s post-judgment
motion to supplement the record. Accordingly, we affirm the judgment of the trial court.4
4
Following oral argument in this case, Hoover filed a “Motion for Relief from Judgment,” in which
he requests that the Court refrain from issuing a judgment pending resolution of a motion for a new trial that
he filed in the trial court after he initiated the instant appeal. Because we have determined that it is
(continued...)
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The costs of this appeal are taxed to M. Josiah Hoover, III, and his surety, for which
execution may issue if necessary.
______________________________
GARY R. WADE, CHIEF JUSTICE
4
(...continued)
appropriate to issue judgment without delay, this motion is denied.
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