Sneed v. Board of Professional Responsibility , 2000 Tenn. LEXIS 689 ( 2000 )

IN THE SUPREME COURT OF TENNESSEE
AT NASHVILLE
October 4, 2000 Session
MICHAEL H. SNEED v. BOARD OF PROFESSIONAL RESPONSIBILITY
Appeal from the Chancery Court for Davidson County
No. 98-3543-II Tom E. Gray, Chancellor by Interchange
No. M1999-01588-SC-R3-CV - Filed December 13, 2000
This case is before the Court on an appeal of right from the judgment of the Chancery Court of
Davidson County suspending Michael H. Sneed, the appellant, from the practice of law for six
months together with other sanctions. Sneed contends that the trial court erred in imposing
discipline and that the six-month suspension is too harsh a sanction. Because we conclude that the
trial court had the authority to impose sanctions and that the sanctions imposed are fair and
proportionate in light of the entire record, the judgment of the trial court is affirmed.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed
ADOLPHO A. BIRCH, JR., J., delivered the opinion of the court, in which E. RILEY ANDERSON, C. J.,
FRANK F. DROWOTA, III, JANICE M. HOLDER, and WILLIAM M. BARKER, JJ., joined.
Michael H. Sneed, Nashville, Tennessee, for the appellant, Michael H. Sneed.
Charles A. High, Nashville, Tennessee, for the appellee, Board of Professional Responsibility.
OPINION
I. Facts and Procedural History
Michael H. Sneed was licensed to practice law in Tennessee on August 19, 1985, and has
practiced in Tennessee since that date. He appeals the judgment of the Chancery Court of Davidson
County suspending him from the practice of law for six months along with other sanctions1 for
1
In addition to the six-month suspension, the trial court also suspended Sneed for an indefinite period of time
with the indefinite suspension to end when Sneed had completed courses by the Board of Profession al Respo nsibility
in the areas of general legal ethics and law office management. The trial court also specified that if the courses were not
completed during the six months of suspension, the indefinite suspension would continue until the courses were
completed.
violations of the Code of Professional Responsibility in connection with his representation of
Jonathan Hyler and R. Scott Constantino, respectively.
This cause was initiated on April 21, 1998, by the filing of a Petition for Discipline by the
Board of Professional Responsibility (Board). A Hearing Panel convened on September 14, 1998,
and on September 29, 1998, recommended that Sneed be suspended for a period of six months.
Sneed petitioned to the Chancery Court for Davidson County for a writ of certiorari, pursuant to
Tennessee Supreme Court Rule 9, Section 8.3, to review the judgment of the Hearing Panel.
In the trial court, Sneed conceded most of the allegations of the petition for discipline. He
contended, however, that his negligence did not cause substantial harm to his clients. The following
are the trial court’s findings as to Sneed’s handling of Hyler’s and Constantino’s cases:
THE HYLER COMPLAINT
4. Jonathan Hyler filed a complaint against the respondent
with the Board of Professional Responsibility (“Board”) alleging that
respondent was ineffective in representing Hyler in a criminal case,
by failing to raise an issue relating to certain evidence (a 911 tape)
and also failing to file an application for permission to appeal a ruling
of the Court of Criminal Appeals to the Tennessee Supreme Court.
(The Hyler complaint is file number 15937-5-CH and will be referred
to hereinafter by that number or as the “Hyler case or “Hyler
complaint.”)
5. Respondent was hired by Hyler to represent him after Hyler
had been convicted of aggravated rape and sentenced to thirty (30)
years in prison. Respondent argued the motion for new trial, which
was denied, and also handled the appeal to the Court of Criminal
Appeals, which upheld the conviction.
6. Respondent never filed an application for permission to
appeal the Court of Criminal Appeals decision to the Supreme Court.
At a subsequent hearing on petition for post-conviction relief, Hyler
testified that respondent had told him he intended to file the
application and that he in fact had filed the application. Hyler
testified that respondent later told him that the application had been
filed, but not decided. Eventually, Hyler testified that respondent told
him the application had been denied. Hyler’s testimony at the hearing
was corroborated by two other witnesses.
7. Respondent Sneed admitted at the post-conviction hearing
that he had not filed the application and that there was no good reason
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for his having failed to do so. The Court of Criminal Appeals ruled
that Hyler had been denied a “second tier” review of his conviction
through no fault of his own, and allowed a delayed appeal to the
Supreme Court, which was eventually denied.
8. Throughout the disciplinary proceedings with respect to the
Hyler complaint, the respondent was untimely in responding to
correspondence from disciplinary counsel and simply ignored
deadlines without explanation. The initial summary of complaint was
mailed to the respondent on November 12, 1996, requesting a
response within ten (10) days. (Exhibit A to petition.) Respondent
answered on December 10, almost thirty (30) days later. (Exhibit B
to petition.) A copy of Mr. Hyler’s response to respondent’s
explanation was mailed to respondent by disciplinary counsel on
February 21, 1997, requesting a response within ten (10) days.
(Exhibit D to petition.) Respondent did not file a response until May
13, 1997, almost three months later, even after two additional
requests were mailed by disciplinary counsel, on March 28, 1997 and
April 25, 1997. The latter request was sent by certified mail and
advised that a motion for temporary suspension would be filed unless
a response was received. (Exhibits E and F to petition.) As noted
above, the respondent also filed a late answer to the petition and
arrived thirty minutes late to the hearing, without explanation.
THE CONSTANTINO COMPLAINT
9. R. Scott Constantino filed a complaint against the
respondent, by next friend for Arthur Bailey, David Henson, and
James White, former clients of the respondent, based upon neglect,
noncompliance with local rules and orders of a federal district court
resulting in the dismissal of the case with prejudice, and failure to file
a timely notice of appeal. (The Constantino complaint is file number
17776-5-CH and will be referred to hereinafter by number or as the
“Florida federal case.”)
...
12. The respondent advised the plaintiffs after the transfer
that there would be a need to hire local counsel in Florida. It appears
that the plaintiffs themselves interviewed several attorneys, but it was
unclear from the testimony of Mr. Bailey, Mr. White, or of the
respondent as to how or when local counsel was in fact finally
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obtained. There was no evidence that the respondent made any effort
to obtain local counsel in Florida.
13. After the transfer, the respondent engaged in a pattern of
neglect and failure to comply with the local rules and orders of the
court which eventually led to the dismissal of the plaintiff’s (sic)
action with prejudice.
14. On January 20, 1995, the federal judge in Florida issued
an Order to Show Cause to the plaintiffs why their case should not be
dismissed for lack of prosecution because of the failure to file a case
management report as prescribed by local rule. (Exhibit O to
petition.)
15. On February 17, 1995, the magistrate judge in Florida
ordered respondent to show cause why he had not complied with
local rules concerning designation of local counsel. (Exhibit P to
petition.) On March 3, 1995, the federal district judge entered an
order striking the case management report filed by the respondent for
failure to designate local counsel. This order stated further that the
court “would not tolerate further disregard of the Local Rules” by the
respondent. (Exhibit Q to petition.)
16. On March 28, 1995, the magistrate judge issued another
order to show cause compelling the respondent to comply with the
local rule with respect to designating local counsel. (Exhibit R to
petition.) On April 17, 1995, the magistrate judge issued another
order to show cause why the respondent should not be sanctioned for
failure to comply with the March 28 order. (Exhibit S to petition.)
17. On October 26, 1995, the magistrate judge issued an order
granting defendant’s motion to compel discovery and sanctioning the
plaintiffs for failing to comply with CSX’s interrogatories and
requests for production of documents. The respondent was ordered
to pay $150.00 in attorney’s fees within ten (10) days.
18. On December 7, 1995, the magistrate judge issued an
order granting a second motion to compel and sanctioning the
respondent for failure to adequately respond to CSX’s interrogatories,
imposing sanctions of $250.00, and ordering that responses be made
within ten (10) days. (Exhibit U to petition.) On January 4, 1996, the
magistrate judge issued another order, denying sanctions for failure
to comply with the prior orders, but cautioning the respondent that he
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must timely comply with the court’s future orders. (Exhibit V to
petition.)
19. On February 5, 1996, the federal district judge entered a
notice scheduling a final pre-trial conference for February 28, 1996
at 10:10 A.M. (Exhibit W to petition.) The pre-trial conference was
re-scheduled at the respondent’s request for February 29, but the
respondent failed to appear at the final pre-trial conference. On
March 1, 1996, the district court entered an order dismissing the
plaintiffs’ case with prejudice for respondent’s failure to appear at the
final pre-trial conference and numerous failures to comply with the
local rules and the court’s prior orders, as outlined in the preceding
paragraphs. This order, which was incorporated by reference into the
petition, and the findings of which are admitted by the respondent,
found, among other things a “pattern (by the respondent) of
disregarding the Local Rules and the orders of this Court.” (Exhibit
X to petition.)
20. The respondent attempted to appeal the district court’s
order, but the appeal was dismissed by the Eleventh Circuit Court of
Appeals because it was not timely filed. (Exhibit Y to petition.)
With regards to Hyler’s complaint, the trial court found that Sneed had violated the following
Disciplinary Rules: DR 1-102(A)(1),2 DR 6-101(A)(3),3 and DR 7-101(A)(1) and (2).4 With regards
to Constantino’s complaint, the trial court found that Sneed had violated the following Disciplinary
2
DR 1-1 02(A)(1 ) provide s: “A lawyer shall no t . . . [v]iolate a Disc iplinary Rule.”
3
DR 6-1 01(A)(3 ) provide s: “A lawyer shall no t . . . [n]eglect a legal m atter entrusted to the lawyer.”
4
DR 7-1 01(A)(1 ) and (2) p rovide:
(A)(1) A la wyer shall act with re asonable diligence and promp tness in repres enting a client.
(2) A lawye r shall keep a clien t reasonab ly informed a bout the status o f a matter and promp tly comply with
reasonable requests for communication or information.
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Rules: DR 1-102(A)(1)5 and (5),6 DR 3-101(B),7 DR 6-101(A)(2)8 and (3),9 DR 7-101(A)(1)-(3),10
DR 7-101(A)(4)(a) and (b),11 and DR 7-106(A)12 and (C)(7).13
On July 11, 1999, the trial court entered its judgment finding that Sneed had violated the
Disciplinary Rules as specified, and it suspended him for a period of six months. Pursuant to the
provisions of Tennessee Supreme Court Rule 9, Section 1.3, Sneed perfected his appeal to this
5
See supra note 2 and accomp anying text.
6
DR 1-102(A )(5) prov ides: “A lawyer shall not . . . [e]ngage in conduct that is prejudicial to the administration
of justice.”
7
DR 3-101(B) p rovides: “A lawyer shall not practice law in a jurisdiction where to do so would be in violation
of regulations of the profess ion in that jurisdic tion.”
8
DR 6-101(A)(2) provides: “A lawyer shall not . . . [h]andle a legal matter without preparation adequate in the
circumstanc es.”
9
See supra note 3 and accomp anying text.
10
DR 7-1 01(A)(1 )-(3) prov ide:
(A)(1) A la wyer shall act with re asonable diligence and promp tness in repres enting a client.
(2) A lawyer shall keep a client reasonably informed about the status of a matter and prom ptly comp ly
with reasonable requests for communication or information.
(3) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make
informed decisions regarding the representation.
11
DR 7-101(A)(4)(a) and (b) provide:
(4) A lawyer shall not intention ally:
(a) Fail to seek the lawful objectives of the client through reasonably available means permitted by law
and the Disciplinary Rules, except as p rovided by DR 7 -101(B ). A lawyer do es not violate th is
Disciplinary Rule, however, by acceding to reasonable requests of opposing counsel which do not
prejudice the rights of the client, by being punctual in fulfilling all professional commitments, by
avoiding offensive tactics, or by treating with courtesy and consideration all persons involved in the
legal process.
(b) Fail to carry out a contract of employment entered into with a client for professional services, but
a lawyer may withdraw as permitted under DR 2-110, DR 5-102, and DR 5-105.
12
DR 7-106(A) provides: “A lawyer shall not disregard or advise the client to disregard a standing rule of a
tribunal or a ruling of a tribunal m ade in the co urse of a proceeding, but ma y take appropriate steps in go od faith to test
the validity of such rule or ruling.”
13
DR 7-106(C)(7) provides: “In appearing in a professional capacity before a tribunal, a lawyer shall not . . .
[i]ntentionally or habitually violate any established rule of proc edure or o f evidence.”
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Court. Before this Court, Sneed characterizes his conduct as negligent. He contends, however, that
negligent conduct is not subject to discipline–only willful misconduct is. Sneed contends also that
the Board, ignoring its “policy of progressive discipline,” has imposed a disproportionately harsh
sentence.
II. Standard of Review
Tennessee Supreme Court Rule 9, Section 1.3, provides that review by the Supreme Court
“shall be heard upon the transcript of the record from the circuit or chancery court, which shall
include the transcript of evidence before the hearing committee.” Additionally, our review of this
cause is de novo on the record of the trial court, and to the findings of the trial court there is attached
a presumption of correctness unless the evidence preponderates against those findings.14 See Tenn.
R. App. P. 13(d); see also Dockery v. Board of Professional Responsibility, 937 S.W.2d 863, 865
(Tenn. 1996).
III. Analysis
Sneed contests the authority of the Board to impose sanctions. Specifically, he maintains that
although his misconduct was negligent, it was not willful. He insists, then, that negligent
misconduct is not subject to discipline. Disciplinary Rule 1-102, which defines “misconduct,”
implies that the mere violation of a Disciplinary Rule, without inquiry into the gravity of the conduct,
may subject an attorney to discipline. See DR 1-102(A)(1). Additionally, contrary to Sneed’s
assertion, his misconduct may be characterized as willful and intentional. Because Sneed concedes
violations of the Disciplinary Rules, we see no need to examine the nature of the misconduct or his
intention further to determine the Board’s authority to impose discipline.
As a general rule, negligent misconduct may provide a basis for discipline. The ABA
Standards for Imposing Lawyer Sanctions (1986) provide:
4.42 Suspension is generally appropriate 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.
(Emphasis added.) In addition, our rules state that a lawyer’s negligent misconduct may be grounds
14
Tennessee Supreme Court Rule 9, Section 1.3, does not explicitly provide for de novo review upon the record
of the trial court, with a presumption of correctne ss unless the prep onderan ce of the evid ence is contr ary to the findings.
This standard, however, is implied from the following sources: Tenn. R. App. P. 13(d ); Murphy v. Board of Professional
Respon sibility, 924 S.W .2d 643 , 647 (T enn. 199 6); Gillock v. Board of Professional Responsibility of Supreme Court,
656 S.W.2d 365, 367 (Tenn. 1983); and Scruggs v. Bracy, 619 S.W.2d 101 , 103 (Tenn. 1981).
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for discipline. For example, DR 6-101(A)(3) states, “A lawyer shall not . . . [n]eglect a legal matter
entrusted to the lawyer.” (Emphasis added.) This Court has also imposed sanctions for negligent
misconduct. In Office of Disciplinary Counsel v. Henry, 664 S.W.2d 62, 65 (Tenn. 1983), the trial
court found that the attorney had (1) failed to act competently, (2) knowingly advanced a claim that
was unwarranted under existing law, and (3) engaged in conduct that was prejudicial to the
administration of justice. This Court upheld the trial court’s finding that the attorney’s negligent
misconduct warranted suspension. Henry, 664 S.W.2d at 65. Thus, Sneed may be disciplined for
negligent misconduct.
Because the Board has the authority to discipline an attorney for negligent misconduct and
Sneed does not dispute that he violated the Disciplinary Rules, the only issue to determine is whether
the sanctions imposed were appropriate. Sneed contends that the six-month suspension and other
sanctions imposed by the trial court are excessive. He argues that the Board has adopted a policy
of “progressive discipline” which was not implemented in this case. There is no evidence, however,
that this policy exists. Even were such a policy in existence, Sneed’s suspension would have been
proper in light of his prior disciplinary record involving similar misconduct.15 We are of the opinion
that the discipline imposed by the trial court is appropriate under the circumstances of this case.
IV. Conclusion
We conclude that the Board had the authority to discipline Sneed for negligent conduct, and
the sanctions imposed by the trial court are fair and proportionate. The judgment of the trial court
is, therefore, affirmed. Accordingly, Sneed is suspended from the practice of law for a period of six
months. In addition, Sneed shall be suspended for an indefinite period of time with the indefinite
suspension to end when he has completed courses by the Board of Professional Responsibility in the
areas of general legal ethics and law office management. It is intended that Sneed complete the
15
The follo wing are disc iplinary actions taken against S need for sim ilar miscond uct:
1. Violation of DR 6-101 and DR 7-101(A)--Admonition on July 29, 1992, for failure to file a complaint
within the app licable statute o f limitations as well as fa ilure to com municate with client.
2. Violation of DR 6-101--Admonition on August 26, 1992, for failure to serve process which resulted in the
dismissal of clien t’s case and fo r lack of investiga tion prior to filing a compla int.
3. Violation of DR 7-101(A)(1)-(4), DR 6-101(A)(1)-(3), and DR 1-102(A)(1)-(6)--Public censure in May
1993 fo r failure to timely file a co mplaint and for failure to co mmunica te with client.
4. Violation of DR 6-101(A)(2) and (3) and DR 7-101(A)(2) and (3)--Public censure on August 15, 1994,
for failure to file a complaint within the applicable statute of limitations.
5. Violation of DR 7-101 (A)(4) and DR 7-101(A)(2) and (3)--Private reprimand on October 13, 1995, for
dismissal of a c ase without clien t’s consent and for failure to co mmunica te with client.
6. Violation of DR 7-101(A)(1)-(4), DR 6-101(A)(1)-(3), and DR 1-102(A)(1)-(6)--Public censure on
Novem ber 21, 2 000, for failur e to timely file a com plaint and fo r failure to com municate with client.
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courses within the six-month period of suspension allowing the definite suspension of six months
and the indefinite period of suspension to run concurrently. If the courses are not completed during
the six months of suspension, indefinite suspension shall continue until the courses are completed.
Costs are taxed to the appellant, Michael H. Sneed.
___________________________________
ADOLPHO A. BIRCH, JR., JUSTICE
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