R. Sadler Bailey v. Board of Professional Responsibility , 2014 Tenn. LEXIS 611 ( 2014 )

IN THE SUPREME COURT OF TENNESSEE
AT JACKSON
April 9, 2014 Session
R. SADLER BAILEY v. BOARD OF PROFESSIONAL RESPONSIBILITY
Direct Appeal from the Chancery Court for Shelby County
No. CH-13-0157-2 Paul G. Summers, Senior Judge
_________________________________
No. W2013-01979-SC-R3-BP - Filed August 18, 2014
_________________________________
The Board of Professional Responsibility instituted a lawyer disciplinary proceeding against
an attorney based on complaints it received from a judge and opposing counsel regarding the
attorney’s disruptive behavior during trial proceedings. A hearing panel found that the
attorney had violated several Rules of Professional Conduct and suspended him from the
practice of law for sixty days. On appeal, the Chancery Court for Shelby County affirmed
the hearing panel’s finding that the attorney had violated several ethical rules but reversed
the suspension, instead recommending a public censure. The Board of Professional
Responsibility appealed to this Court. We reverse the Chancery Court’s reduction of
discipline and reinstate the hearing panel’s imposition of a sixty-day suspension.
Tenn. Sup. Ct. R. 9, § 1.3 Direct Appeal; Judgment of the Chancery Court Reversed
in Part and Affirmed in Part; Judgment of the Hearing Panel of the Board of
Professional Responsibility Reinstated
C ORNELIA A. C LARK, J., delivered the opinion of the Court, in which G ARY R. W ADE, C.J.,
and J ANICE M. H OLDER, W ILLIAM C. K OCH, J R., and S HARON G. L EE, JJ., joined.
Krisann Hodges, Brentwood, Tennessee, for the appellant, the Board of Professional
Responsibility.
Donald Capparella and Tyler Chance Yarbro, Nashville, Tennessee, for the appellee, R.
Sadler Bailey.
OPINION
I. Factual and Procedural History
This case arose out of complaints filed with the Tennessee Board of Professional
Responsibility (the “Board”) by the judge and opposing counsel in a medical malpractice
case, Watkins v. Methodist Healthcare System, alleging that the appellee, Robert Sadler
Bailey, had engaged in disruptive and disrespectful conduct during the trial.
Mr. Bailey has been licensed to practice law in Tennessee since 1985 and is a solo
practitioner in Memphis, Tennessee. Mr. Bailey was the lead plaintiff’s attorney in Watkins,
representing an eight-year-old girl who was allegedly the victim of a traumatic birth injury.
Methodist Healthcare System was represented by Lee Chase III, John Hall, and Robert
Shannon. Judge Karen Williams presided. By the time the jury trial began on March 17,
2008, the case had been pending for several years, during which time over 740 pleadings,
including five requests for interlocutory or extraordinary appeals, had been filed. Judge
Williams described the case as extraordinarily “hotly” contested with a “highly unusual”
“level of animosity” between the attorneys. The attorneys for each party repeatedly accused
each other of misrepresenting the facts of the case, bullying, and lying to the court.
On the morning of March 26, 2008, shortly before Mr. Bailey was to begin his
opening statement, Judge Williams repeated a previous admonition to counsel against making
speaking objections. Judge Williams instructed the attorneys to instead “[s]tand up, say I
object, and sit down. Do not interrupt each other.” According to Judge Williams, she was
“trying to keep [the attorneys] on topic” and control their behavior. Mr. Bailey then
delivered his opening statement, during which defense counsel asked four times to approach
the bench in order to make objections.
As the proceedings resumed that afternoon but before the jury returned to the
courtroom, Mr. Hall asked Judge Williams to reconsider an earlier evidentiary ruling. As it
became apparent that Judge Williams might reverse herself, Mr. Bailey became upset and
addressed the court as follows:
Now, do you want this case to be about whether there was an appointment
between the 16th and the 21st? Do you want the case to be about whether [the
plaintiff’s mother] called the doctor or whether she kept an appointment? If
that’s what you want, then you can save me and this child a hundred thousand
dollars, you know, because—let’s just take the mistrial now that we’re all
going to get because, you know, we don’t—we need to try the case on the
issues here . . . . Surely, Judge, you have to—you have to see that your rulings
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that you have made on these issues, they mean nothing if we don’t enforce
them . . . .
Both sides argued vehemently, until Judge Williams in large part reaffirmed her earlier
ruling. Judge Williams then stated, “the Court has ruled on this topic. Would you like a
mistrial or would you like to be seated?” At this point Mr. Bailey said “No” and agreed to
be seated. A moment later, Mr. Bailey objected again, and Judge Williams urged, “Let’s just
get this going. It’s 2:30 in the afternoon. You can pop up out of your chair just like they
popped up out of theirs. Let’s get the jury in here. I’ve never so pretried a case in my life.”
Despite Judge Williams’s statement, Mr. Bailey continued to argue his point, stopping just
before the jury entered the courtroom.
When Mr. Shannon began to deliver the opening statement for the defense, Mr. Bailey
immediately stood up to object, delivering the first of twelve objections, nearly all of which
were speaking objections. On four occasions Judge Williams had to call both attorneys to
the bench to discuss Mr. Bailey’s complaints. Although Judge Williams upheld some of Mr.
Bailey’s objections and Mr. Shannon withdrew some remarks, after several interruptions
Judge Williams instructed Mr. Bailey to let Mr. Shannon finish the defense’s opening
statement, declaring that she had “never heard so much squawking in opening comment in
[her] life.” Despite this admonition, Mr. Bailey objected twice more before Mr. Shannon
completed his statement.
Beginning at 9:13 a.m. the next day, March 27, 2008, Mr. Bailey made a series of
comments to Judge Williams outside the presence of the jury. Mr. Bailey began by
criticizing Judge Williams’s rulings of the previous day, and he continued to criticize her
conduct of the trial for several minutes.
Now, quite frankly, Judge, I cannot imagine why this [c]ourt would not want
me to call attention to a correct statement of the law. It is bizarre to me that
this [c]ourt somehow feels that I should be in any way limited, inhibited, or
proscribed from telling the jury the correct standard of law[.]
....
I’ve said to you so many times [that] if you have time to read, if you have time
to hear from both sides to think about it, you generally get it right. Quite
frankly, Judge, when you don’t have that, you almost always get it wrong.
....
We are on pace here to set a world record for reversible error if we don’t
straighten this out.
....
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And I’m not worried about 50 dollars that you want to wave in front of me on
a salmon-colored card.1 I’m worried about the 50 million [dollars] that’s at
stake if this little girl is deprived of justice.
....
Do you want to set a world record for error?
....
For crying out loud, in essence, your [c]ourt’s analysis is because a lawyer tries
to engage in discovery and do his job, he is therefore assisting the Defendant
in making a case. That’s crazy. That’s crazy.
....
You know, another thing, when is this [c]ourt going to take offense to a lawyer
lying to you? I mean, is it ever going to happen?
....
What’s so offensive to me is they make it up all the time and you don’t seem
to care that they make it up all the time.
....
They lie to you and you don’t care. What do I do about a lawyer that will lie
to the [c]ourt and what do I do about a [j]udge that doesn’t care? How do you
think you can get it right if you’re not going to hold lawyers to the standard of
telling you the truth?
At 9:30 a.m. Mr. Hall moved for a mistrial, accusing Mr. Bailey of strategically
bullying the court and prejudicing the proceedings. Mr. Bailey responded by arguing that he
was just trying to obtain a fair trial for his client. He then complained that Judge Williams
was doing something “so patent, so obviously wrong” that “it defie[d] [his] sense of right and
wrong as to how [he] [could not] get that through to [her],” and he again called her ruling
“bizarre.” He claimed that the trial judge had “never, at any time, demonstrated a willingness
to enforce [her] rulings,” and that he was merely “trying to keep [the defense] from running
the [c]ourt.”
At 9:43 a.m., Judge Williams denied the defense request for a mistrial, explaining:
If the [c]ourts of Shelby County [were to] grant a mistrial every time Mr.
Bailey gets on his soapbox he would never try another case in this [C]ounty.
That’s just the way Mr. Bailey tries his cases. That’s why I [have] ignored so
1
This reference is to the “pink cards” Judge Williams used to cite attorneys for contempt. The cited
attorney would have to pay a $50.00 fine to the clerk’s office and bring back a receipt before the trial could
resume.
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much that has gone on during pretrial because, quite frankly, Mr. Bailey, I
don’t listen to it.
When Mr. Bailey responded, “That’s pretty clear, Judge,” Judge Williams told him to sit
down and stated that his comments were “out of order.” Only once before, Judge Williams
then observed, had she “seen a lawyer try to so totally prevent the defense from having a
defense,” and she commented that if Mr. Bailey had his way, “the defense would be stripped
to nothing.” After Judge Williams finished speaking, Mr. Bailey said in a soft voice, “Oh,
my God.” Almost immediately afterwards, at 9:47 a.m., Judge Williams recessed the
proceedings.
When the court reconvened at 10:27 a.m., Judge Williams announced that “[t]he
[c]ourt is going to grant a mistrial based on Mr. Bailey’s contentious conduct toward the
[c]ourt.” No specific reference was made to a criminal contempt charge at this time. Judge
Williams then dismissed the jurors and adjourned court until 2:00 p.m.
After the mistrial, Mr. Bailey and his co-counsel decided that they needed to settle the
Watkins case quickly. They contacted Mr. Chase, who made an offer just slightly below an
amount the defense had offered shortly before trial. Mr. Bailey made a preliminary
agreement with Mr. Chase to accept the settlement offer, with the understanding that any
monetary sanctions Judge Williams might impose upon Mr. Bailey or his client, such as
defense court costs, would be ignored.
After coming to this arrangement, Mr. Bailey and Mr. Chase telephoned 2 Judge
Williams, at which point Mr. Bailey informed Judge Williams that if she could “excuse
[them] from having to come back at [2:00 p.m.], this case would be done.” When Judge
Williams reiterated that she would see them at 2:00 p.m., Mr. Bailey again interjected that
“that would mean [they] wouldn’t be able to settle” because of the “uncertainty.” Judge
Williams ended the call by once again stating she would see them all at 2:00 p.m.
When court reconvened at 2:00 p.m., Judge Williams declared Mr. Bailey to be in
“criminal contempt” for his remarks,3 explaining that the “dignity of the court was challenged
2
Judge Williams initially declined to accept their call and requested that they call back with a court
reporter on the line, which they did.
3
At this time, Judge Williams stated that she had spoken with an attorney about becoming a special
prosecutor, said she had discussed with another trial judge the possibility of appointing a judge from outside
the county, and told Mr. Bailey that a “charging document” “[would] be served on” him detailing the time
and place of his contempt hearing. However, after consulting with a prominent local attorney and member
of the defense bar who had an adversarial history with Mr. Bailey, Judge Williams decided that no special
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in such a way this morning that cannot be overlooked.” On the afternoon of April 2, 2008,
Judge Williams presided over a contempt hearing for Mr. Bailey, after which she found him
guilty of criminal contempt, fined him $50.00, and sentenced him to ten days in jail, with
nine days to be suspended if he would take part in the Tennessee Lawyer Assistance
Program.4
On April 4, 2008, Judge Karen Williams and Mr. Chase both sent letters to the Board,
reporting Mr. Bailey’s conduct during the Watkins trial. On August 22, 2008, the Board filed
a Petition for Discipline against Mr. Bailey.5
B. The Proof Presented to the Hearing Panel
At the July 23, 2012 hearing, four witnesses, including Judge Williams and Mr.
Bailey, testified regarding Mr. Bailey’s behavior during the Watkins trial.6 Ms. Amy
Mitchell, Judge Williams’s court clerk, witnessed Mr. Bailey’s behavior on March 27, 2008,
and recalled that although “initially he was normal,” “as he progressed it got worse.” While
usually she “enjoy[ed] Mr. Bailey coming to the courtroom[,]” that day was different because
“he turned towards the Court.” “He just got . . . very disrespectful” and became “very red
prosecutor, outside judge, or charging document was necessary in Mr. Bailey’s contempt proceeding.
4
Mr. Bailey appealed Judge Williams’s finding of criminal contempt to the Court of Appeals. The
Court of Appeals vacated the trial court’s order and remanded the matter to the trial court for a hearing before
a new judge. Watkins v. Methodist Healthcare Sys., No. W2008-01349-COA-R3-CV, 2009 WL 1328898,
at *1 (Tenn. Ct. App. May 13, 2009). While expressing “amazement” that Mr. Bailey was willing to settle
the underlying case so quickly if the issues affecting him were dropped, the Court of Appeals also held that
“the imposition of summary contempt was not appropriate in this case where a hearing was scheduled and
held some six days after the alleged acts of contempt occurred.” Id. at *6, *7. The intermediate appellate
court also found that the trial judge should have recused herself under the circumstances, given that the issues
included acts of “personal attack or disrespect of the trial judge.” Id. at *8.
Following the remand, the criminal contempt case against Mr. Bailey was ultimately dismissed as
a consequence of delays that resulted in the violation of Mr. Bailey’s right to a speedy trial. Watkins v.
Bailey, 484 F.App’x. 18, 22 n.2 (6th Cir. 2012); In re Bailey, No. W2011-00330-COA-R3-CV, 2012 WL
361961, at *1 (Tenn. Ct. App. Feb. 3, 2012);.
5
On April 27, 2009, the Board filed a Supplemental Petition for Discipline on the grounds that Mr.
Bailey had improperly held himself out as a Civil Trial Specialist certified by the Tennessee Commission
on Continuing Legal Education and Specialization and therefore violated Rules of Professional Conduct
7.1(a), 7.4(b) and (d), and 7.5(a). However, the Hearing Panel found that Mr. Bailey had not violated any
of these rules, and that finding is not at issue in this appeal.
6
The four-year delay between the filing of the petition and the hearing was due in part to the fact
that the Board stayed the matter pending the resolution of Mr. Bailey’s criminal contempt case.
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in the face and was using his hand gestures.” She testified that when Mr. Bailey “kept on and
kept on attacking” Judge Williams, she became so disturbed that she asked the deputy to go
up and talk to Judge Williams, who then called a recess. Mr. Loys A. “Trey” Jordan, another
attorney present in the courtroom that day, testified by deposition that Mr. Bailey became
more “frenetic” in his arguments, using a “snarky” and “harsh” tone to make statements that
Mr. Jordan “would not make” to the trial court. He described Judge Williams’s reaction to
Mr. Bailey as “stoic,” noting that she “basically had very little reaction.”
Judge Williams stated in her deposition that Mr. Bailey’s behavior throughout the trial
was “very aggressive” and “inappropriate,” noting that “[h]e would get angry, raise his
voice,” and repeatedly create problems in the courtroom. In her testimony before the Hearing
Panel Judge Williams agreed that she did not rein in the attorneys as much as she should
have, stating: “I should have gaveled these guys down much earlier.” She stated that she had
declared the mistrial because she believed there would otherwise be “grounds for appeal of
judicial unfairness. After all that was said, I didn’t think anybody would believe a judge
could be fair.”
Mr. Bailey testified that he did not mean to be disrespectful but that he was helping
Judge Williams to make correct rulings, even if it meant that he had to “push and push and
push” her in order to do so. He claimed that he and his co-counsel “found that the more
forceful that [they] were with her the more effective it was.” He stated that the way he spoke
to Judge Williams that morning was “no different than [the way he] had talked to [Judge
Williams] a hundred times,” although he agreed that he talked to her in a “more assertive
tone” than he would use with another judge. Before the Hearing Panel Mr. Bailey persisted
in criticizing Judge Williams’s “inconsistency,” contending that she did not enforce her own
ruling on speaking objections. He acknowledged that he characterized Judge Williams’s
rulings as “crazy,” but Mr. Bailey seemed not to consider this comment to be inappropriate,
justifying his conduct by citing his need to protect his minor client. He also described the
Board’s proceedings as “nonsense.”
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C. The Hearing Panel’s Findings
In its final decision, issued December 4, 2012, the Hearing Panel determined that Mr.
Bailey had violated Rules of Professional Conduct 3.4(c);7 3.5(e);8 and 8.4(a) and (d).9 Tenn.
Sup. Ct. Rule 8. Specifically, the Hearing Panel observed that no matter “how worthy or
vulnerable the attorney’s client may be, or how poorly the [j]udge may be performing, or how
difficult or unethical the adversary counsel may be,” an attorney cannot justify “making rude,
insulting, disrespectful and demeaning statements to the [j]udge during open [c]ourt.” The
Panel noted that even when testifying in his disciplinary hearing, Mr. Bailey continued to
insult Judge Williams and justify his conduct. The Panel concluded that Mr. Bailey made
abusive and critical comments to the judge in order to obtain favorable rulings from her and
in doing so insulted the integrity of the trial [c]ourt.10
Having determined that disciplinary violations had occurred, the Hearing Panel then
applied the American Bar Association Standards for Imposing Lawyer Sanctions (“ABA
Standards”). It first determined that ABA Standards 6.22 and 7.2,11 which state the criteria
for suspension, were applicable. The Hearing Panel then found that Mr. Bailey’s testimony
indicated that his statements were intentional, that he showed little respect for the trial court
7
Rule 3.4(c) addresses “Fairness to Opposing Party and Counsel,” and provides that “[a] lawyer shall
not . . . knowingly disobey an obligation under the rules of a tribunal, except for an open refusal based on
an assertion that no valid obligation exists[.]”
8
Rule 3.5(e) addresses “Impartiality and Decorum of the Tribunal,” and provides that “[a] lawyer
shall not . . . engage in conduct intended to disrupt a tribunal.”
9
Rules 8.4 addresses “Misconduct” and provides in pertinent part as follows:
It is professional misconduct for a lawyer to:
(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce
another to do so, or do so through the acts of another;
....
(d) engage in conduct that is prejudicial to the administration of justice[.]
10
Mr. Bailey had initially been charged with violating Rules 3.1, 3.2, 3.3(a)(1), 3.4(c), 3.5(e), 7.1(a),
7.4(b) and (d), 7.5(a), 8.2(a)(1), and 8.4(a), (b), (c), and (d). As a preliminary matter, the parties stipulated
that Mr. Bailey had not violated Rule 8.4(b).
11
Although the Final Decision of the Hearing Panel cites ABA Standard 7.1, the correct ABA
Standard is 7.2.
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or its rulings, and that he expressed no remorse for his conduct. It found that Mr. Bailey’s
conduct was “disruptive” and unacceptable trial advocacy that caused “actual injury to the
legal system and profession.” It also found that Mr. Bailey had a prior history of discipline,
having received a private informal admonition from the Board on August 21, 1990.12 The
Hearing Panel thus found five aggravating factors:
1. [Mr.] Bailey has substantial experience in the practice of law.
2. [Mr.] Bailey has demonstrated a pattern of misconduct.
3. [Mr.] Bailey has a prior disciplinary sanction.
4. There are multiple offenses in that [Mr.] Bailey has violated several Rules of
Professional Conduct.
5. [Mr.] Bailey has refused to acknowledge the wrongful nature of his misconduct.
After assessing these factors and its findings, the Hearing Panel unanimously found that Mr.
Bailey should be suspended from the practice of law for sixty days.
Mr. Bailey filed a petition for writ of certiorari in the Chancery Court for Shelby
County seeking review of the judgment of the Hearing Panel pursuant to Tennessee Supreme
Court Rule 9. Tenn. Sup. Ct. R. 9, § 1.3.13 Mr. Bailey and the Board subsequently entered
into an agreed order to stay the Hearing Panel’s decision pending appeal. Senior Judge Paul
G. Summers, who was appointed to preside over the proceedings, affirmed the Hearing
Panel’s conclusion that Mr. Bailey had violated Rules of Professional Conduct 3.4(c), 3.5(e),
and 8.4(a) and (d) but reduced the sanction from a sixty-day suspension to a public censure.
The Board subsequently appealed the Chancery Court’s judgment to this Court. See Tenn
Sup. Ct. R. 9, § 1.3.
II. Standard of Review
As part of this Court’s duty to regulate the practice of law in Tennessee, this Court is
ultimately responsible for the process of disciplining and sanctioning attorneys who violate
the ethical rules governing the legal profession. Bd. of Prof’l Responsibility v. Cowan, 388
S.W.3d 264, 267 (Tenn. 2012). Pursuant to Tennessee Supreme Court Rule 9, section 8.2,
attorneys charged with disciplinary violations have a right to an evidentiary hearing before
12
This admonition occurred when Mr. Bailey self-reported an incident in which an assistant
mistakenly removed funds from his firm’s escrow account—funds he immediately replaced upon discovering
what had occurred.
13
Because this case was initiated prior to January 1, 2014, it is governed by the pre-2014 version of
Tennessee Supreme Court Rule 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.
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a hearing panel, which determines if a violation has occurred and, if so, the disciplinary
penalty. Maddux v. Bd. of Prof’l Responsibility, 409 S.W.3d 613, 621 (Tenn. 2013). Either
party may appeal a hearing panel’s decision to the circuit or chancery court, and then may
appeal from the trial court’s decision directly to this Court. Tenn. Sup. Ct. R. 9, § 1.3. Our
review is conducted upon “the transcript of the record from the circuit or chancery court,
which shall include the transcript of evidence before the hearing panel.” Id.
We apply the same standard of review as applied by the trial court and do not disturb
the hearing panel’s decision unless the rights of the petitioner have been prejudiced because
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 an abuse of discretion or clearly unwarranted
exercise of discretion; or (5) unsupported by evidence which is both substantial
and material in light of the entire record.
Id.; Moncier v. Bd. of Prof’l Responsibility, 406 S.W.3d 139, 150 (Tenn. 2013). We review
questions of law de novo but do not substitute our judgment for that of the hearing panel as
to the weight of the evidence on questions of fact. Tenn. Sup. Ct. R. 9, § 1.3; Maddux, 409
S.W.3d at 622.
III. Analysis
The Board argues that the Chancery Court properly affirmed the Hearing Panel’s
finding that Mr. Bailey violated Rules of Professional Conduct 3.4(c), 3.5(e), and 8.4(a) and
(d), and Mr. Bailey does not take issue with this finding, or the assessment of a public
censure. However, the Board contends that Chancery Court erred by holding that: (1) the
Hearing Panel’s application of ABA Standards 6.22 and 7.2 was arbitrary and capricious; (2)
the Hearing Panel’s assessment of aggravating and mitigating factors was arbitrary and
capricious; and (3) the imposition of a sixty-day suspension was arbitrary, capricious, and
characterized by an abuse of discretion in light of comparative discipline. Mr. Bailey
responds that the trial court correctly determined these three issues.
A. Application of ABA Standards
In order to determine the appropriate discipline in a given case, we turn to the ABA
Standards for Imposing Lawyer Sanctions. See Tenn. Sup. Ct. R. 9, § 8.4; Maddux, 409
S.W.3d at 624. These standards are “guideposts” rather than rigid rules for determining
appropriate and consistent sanctions for attorney misconduct. Maddux, 409 S.W.3d at 624.
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The ABA Standards provide a framework that gives “courts the flexibility to select the
appropriate sanction in each particular case of lawyer misconduct.’” Id. (quoting ABA
Standards, Theoretical Framework). The ABA Standards specify that when imposing a
sanction, the court should consider:
(1) What ethical duty did the lawyer violate? (A duty to a client, the public, the
legal system, or the profession?);
(2) What was the lawyer’s mental state? (Did the lawyer act intentionally, knowingly,
or negligently?);
(3) What was the extent of the actual or potential injury caused by the lawyer’s
misconduct? (Was there a serious or potentially serious injury?); and
(4) Are there any aggravating or mitigating circumstances?
Id. (quoting ABA Standards, Theoretical Framework). These inquiries aid in shaping our
discussion as we address the issues raised by the parties.
The Hearing Panel found that Mr. Bailey knowingly disobeyed a court order, and that
Mr. Bailey’s behavior was “disruptive and caused actual injury to the legal system and
profession,” therefore warranting suspension under the ABA Standards. Under ABA
Standard 6.22, “[s]uspension is generally appropriate when a lawyer knows that he or she is
violating a court order or rule, and causes injury or potential injury to a party, or causes
interference or potential interference with a legal proceeding.” ABA Standard 6.22.
According to the ABA Standards, “knowledge” is “the conscious awareness of the nature or
attendant circumstances of the conduct but without the conscious objective or purpose to
accomplish a particular result.” ABA Standards, Black Letter Rules, Definitions. “Injury”
is defined as “harm to a client, the public, the legal system, or the profession which results
from a lawyer’s misconduct.” Id. “‘Potential injury’ is the harm to a client, the public, the
legal system or the profession that is foreseeable at the time of the lawyer’s misconduct, and
which, but for some intervening event, would probably have resulted from the lawyer’s
misconduct.” Id.
Addressing the initial requirements of Standard 6.22, the Board argues that Mr. Bailey
“knowingly” “violated a court order or rule” when he continued to make speaking objections
after being instructed not to, and when his behavior escalated into a series of insulting and
demeaning statements to the court. Mr. Bailey counters that Judge Williams did not enforce
her ruling regarding speaking objections and even encouraged him to speak up as necessary,
and therefore no court rule was broken.
The proof in this record establishes that Judge Williams did instruct both attorneys to
avoid making speaking objections, ordering them to “stand up, say I object, and sit down.
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Do not interrupt each other.” During Mr. Bailey’s opening statement, defense counsel asked
to approach the bench four times to make an objection and thus avoided making speaking
objections within the jury’s hearing. During Mr. Shannon’s opening statement, however, Mr.
Bailey made twelve speaking objections, often before the jury, and he continued to object
even after Judge Williams instructed him to let Mr. Shannon finish his opening statement
uninterrupted. Mr. Bailey also testified that his statements to the court were intentional,
albeit made in the interest of representing his client. The evidence therefore supports the
Hearing Panel’s finding that Mr. Bailey knowingly disobeyed a court order.
The Board also argues that Mr. Bailey’s conduct caused “interference or potential
interference with a legal proceeding” insofar as his disruptive behavior violated his
professional duty to refrain from abusive conduct and resulted in interference with a legal
proceeding. Namely, his behavior resulted in Judge Williams’s declaration of a mistrial in
Watkins. The Board also argues that his behavior resulted in “actual injury” or “potential
injury” to his own client, Ms. Watkins, who might have been damaged by the mistrial,
although ultimately she was able to settle the case. Mr. Bailey argues that his comments
were all made in furtherance of legal arguments, and thus were not disruptive to the legal
process but rather a necessary means of partaking in it. Moreover, he argues that the granting
of a mistrial was improper and unforeseeable because the pertinent comments took place
outside the presence of the jury.14 Finally, he argues that his client suffered no injury, as his
efforts were all attempts to zealously represent her and she ultimately received a favorable
settlement.
Like the Hearing Panel, we quote from Comment 5 to Rule of Professional Conduct
3.5, which directly addresses the duty of lawyers to behave in a manner conducive to creating
a civil courtroom atmosphere, even in difficult circumstances.
The advocate’s function is to present evidence and argument so that the cause
may be decided according to law. Refraining from abusive or obstreperous
conduct is a corollary of the advocate’s right to speak on behalf of litigants.
A lawyer may stand firm against abuse by a judge, but should avoid
reciprocation; the judge’s default is no justification for similar dereliction by
an advocate. An advocate can present the cause, protect the record for
subsequent review, and preserve professional integrity by patient firmness no
less effectively than by belligerence or theatrics.
14
As a result of the mistrial, Ms. Regina Watkins brought a malpractice suit against Mr. Bailey,
which was ultimately dismissed on summary judgment by the trial court. The trial court’s ruling was later
affirmed by the Sixth Circuit, which noted that “although Mr. Bailey’s behavior warranted some form of
punishment, the declaration of a mistrial was unnecessary.” Watkins v. Bailey, 484 F. App’x at 22 n.2.
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Rule 8, RPC 3.5, Comment 5. A court may sanction attorney speech and behavior precisely
because the “integral role that attorneys play in the judicial system . . . requires them to
refrain from speech or conduct that may obstruct the fair administration of justice.” Bd. of
Prof’l Responsibility v. Slavin, 145 S.W.3d 538, 550 (Tenn. 2004) (quoting Office of
Disciplinary Counsel v. Gardner, 793 N.E.2d 425, 428-29 (Ohio 2003)). Attorneys have a
duty to maintain a “respectful attitude” toward the court, and to refrain from “doing anything
which will tend to destroy the confidence of the public in the courts.” Ramsey v. Bd. of
Prof’l Responsibility, 771 S.W.2d 116, 122 (Tenn. 1989) (quoting In re Hickey, 258 S.W.
417, 430 (Tenn. 1924)).
Specifically, a lawyer’s duty to advocate zealously on behalf of his client is no excuse
for unprofessional conduct that threatens to disrupt a courtroom, as “the idea that there is a
conflict between zealous advocacy and ethical and professional behavior is completely false.”
In re Moncier, 550 F. Supp. 2d 768, 807 (E.D. Tenn. 2008). Even if an attorney believes that
the court has issued an erroneous ruling, zealous representation of a client “‘never justifies
the use of disrespectful, unprofessional or indecorous language to the court.’” Id. (quoting
Conklin v. Warrington Twp., No. 1:05-CV-1707, 2006 WL 2246415, at *2 (M.D. Pa. Aug.
4, 2006)). “When zealous advocacy degenerates into impertinent, scandalous, and insulting
language, it is the court’s duty to address squarely the offending conduct, and to tailor a
sanction appropriate to the offense.” Id. (quoting Conklin, 2006 WL 2246415, at *2).
Here, the proof supports the Hearing Panel’s finding that Mr. Bailey’s conduct caused
interference or potential interference with a legal proceeding as well as actual or potential
injury to the clients or parties. Mr. Bailey’s twelve objections during opposing counsel’s
opening statement were extremely disruptive and in violation of Judge William’s express
order that there be no speaking objections. Most significantly, however, directly before and
after Mr. Shannon’s opening statement, Mr. Bailey badgered and insulted Judge Williams.
Among other abusive statements, he called her rulings “bizarre” and “crazy”; claimed that
she “almost always” got the law “wrong” in her rulings; accused her of setting a “world
record for reversible error”; ridiculed the “salmon-colored card” she used to cite attorneys
for contempt; and described her as indifferent to whether a lawyer was “lying to [her].”
Indeed, even Mr. Bailey’s later testimony was markedly disrespectful toward Judge Williams
as well as the Hearing Panel itself, insofar as he continued to describe her rulings as “crazy”
and the disciplinary hearing as “nonsense.”
The effects of Mr. Bailey’s behavior are also clear. Mr. Bailey’s outbursts on the
morning of March 27th were so outrageous that they caused opposing counsel to move for
a mistrial. Judge Williams shortly thereafter granted a mistrial, citing Mr. Bailey’s
“contentious conduct.” As a result of the mistrial, Mr. Bailey decided to settle the case, and
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his client ultimately accepted a settlement offer slightly lower than the offer the defense made
just before trial began.
We agree with the Board that the Chancery Court erred in holding that the Hearing
Panel’s decision to apply ABA Standard 6.22 was arbitrary and capricious and conclude that
the Chancery Court improperly substituted its judgment for that of the Hearing Panel
regarding the weight of the evidence. Substantial and material evidence supports the Hearing
Panel’s finding that Mr. Bailey’s behavior warranted suspension pursuant to ABA Standard
6.22.
However, we agree with Mr. Bailey that the Chancery Court correctly determined that
the Hearing Panel should not have applied ABA Standard 7.2 to his case. Upon reading
Standard 7.2 in context, we agree that it falls under section 7.0 and thus applies only to cases
involving “false and misleading communications about the lawyer or the lawyer’s services,”
as well as violations of rules regarding client solicitation and representation, improper fees,
the unauthorized practice of law, or a failure to report misconduct. ABA Standards 7.0.
Once the Hearing Panel determined that Mr. Bailey was not to be sanctioned for violating
any such rules, the discipline described by ABA Standard 7.2 did not apply. See Hyman v.
Bd. of Prof’l Responsibility, No. E2012-02091-SC-R3-BP, 2014 WL 1280265, at *10 (Tenn.
Mar. 31, 2014) (finding sanctions set forth in ABA Standard 7.2 to be inapplicable where the
party was not alleged to have committed violations described in ABA Standard 7.0).15
B. The Assessment of Aggravating and Mitigating Factors
After properly identifying the “presumptively appropriate sanction applicable to the
established misconduct”—in Mr. Bailey’s case suspension pursuant to ABA Standard
6.22—the next task is to “consider whether that sanction should be increased or decreased
due to aggravating and mitigating circumstances, if any.” Cowan, 388 S.W.3d at 268.
Greater or lesser sanctions may be appropriate depending on whether or not aggravating or
mitigating factors exist. ABA Standards 9.1, 9.2, 9.3. We have held that the factors
enumerated in ABA Standard 9 are “illustrative rather than exclusive,” and that “any
considerations or factors” justifying an increase or decrease in the sanction may be
15
Although it relied exclusively on ABA Standards 6.22 and 7.2 when determining the appropriate
sanction to impose in Mr. Bailey’s case, the Hearing Panel also could have relied on ABA Standard 6.32,
based on Mr. Bailey’s violation of Rule of Professional Conduct 3.5(e). See ABA Standards app. 1 (stating
that violations of Rule 3.5 trigger the presumptive sanctions of Standard 6.3). However, because we have
concluded that the Hearing Panel’s application of ABA Standard 6.22 is supported by substantial and
material evidence, the Hearing Panel’s failure to cite ABA Standard 6.32 does not entitle Mr. Bailey to relief.
See Lockett v. Bd. of Prof’l Responsibility, 380 S.W.3d 19, 28 (Tenn. 2012) (“A hearing panel does not
abuse its discretion when it makes a choice among several acceptable alternatives.”).
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considered, Lockett, 380 S.W.3d 19, 28 (Tenn. 2012) (internal quotation marks omitted)
(citing ABA Standards 9.21, 9.22).
The Hearing Panel found no mitigating factors and five aggravating factors, the latter
including Mr. Bailey’s substantial experience in the practice of law, his demonstrated pattern
of misconduct, his prior disciplinary sanction, the fact that he committed multiple offenses
in violating several Rules of Professional Conduct, and his refusal to acknowledge the
wrongful nature of his misconduct. The Chancery Court found that the Hearing Panel abused
its discretion in this finding, and instead cited the remoteness and inadvertent nature of the
infraction that gave rise to the prior discipline, as well as the unselfish motivations for Mr.
Bailey’s behavior, both of which the Chancery Court found should mitigate Mr. Bailey’s
sanction, in light of the highly combative atmosphere of the Watkins courtroom.
The Board argues that the Hearing Panel properly weighed the aggravating and
mitigating factors and that the Chancery Court erred by holding that the Hearing Panel’s
assessment of these factors was arbitrary and capricious. Although the Board concedes that
Mr. Bailey’s motivations were unselfish and that his prior disciplinary sanction occurred over
twenty years ago, it also argues that, even after taking into account the unusually vituperative
nature of the Watkins case, the aggravating factors outweigh any mitigating factors in Mr.
Bailey’s case and justify the Hearing Panel’s imposition of a sixty-day suspension. Mr.
Bailey argues that the Chancery Court properly weighed the mitigating factors to find that
a public censure would be more appropriate.
After reviewing the record, we find that the Hearing Panel properly considered the
pertinent aggravating and mitigating factors in recommending a sixty-day suspension, and
that its judgment was supported by substantial and material evidence and thus was neither
arbitrary nor capricious. Even if Mr. Bailey’s prior disciplinary sanction was remote and
non-serious, and even if Mr. Bailey believed himself to be acting in the best interest of his
client in a difficult situation, these factors as cited by the Chancery Court are not
determinative in this case. The Hearing Panel properly found the proof to demonstrate that:
(1) Mr. Bailey is an attorney with many years of courtroom experience; (2) he engaged in a
pattern of misconduct during the course of the Watkins trial; (3) he violated several rules of
professional conduct in doing so; and 4) he showed a lack of remorse for his behavior. We
agree that these factors weighed in favor of imposing a suspension. Like the Hearing Panel,
we find Mr. Bailey’s lack of remorse and his persistence in exhibiting disrespect to the trial
court and the Hearing Panel especially troubling, and we cannot agree with his perspective
that there are effectively few limits on an attorney’s conduct, as long as his motives are pure.
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C. The Imposition of a Sixty-Day Suspension
The Board argues that the Hearing Panel’s imposition of a sixty-day suspension is
appropriate and supported by existing Tennessee case law. Mr. Bailey argues that the
Chancery Court properly found that the Hearing Panel’s imposition of a sixty-day suspension
resulted in prejudice to Mr. Bailey and was arbitrary and capricious when compared with
other decisions in which this Court determined suspension to be appropriate.
This Court “evaluate[s] each instance of attorney discipline in light of its particular
facts and circumstances,” even as it “consider[s] the sanctions that have been imposed in
prior cases that present similar circumstances so as to maintain consistency and uniformity
in disciplinary proceedings.” Bd. of Prof’l Responsibility v. Maddux, 148 S.W.3d 37, 40
(Tenn. 2004).
Other Tennessee cases involving attorneys who engaged in disrespectful and abusive
behavior in the courtroom or in pleadings addressed to the Court prove instructive. In
Ramsey, 771 S.W.2d at 122-123, a district attorney failed to obey court orders, refused to
answer a judge’s questions, and engaged in inappropriate conduct in the courtroom,
slamming a door noisily on his way out. This Court determined that the attorney’s
misconduct warranted a 180-day suspension—with 135 days probated and the remaining
forty-five days served on active suspension, with the proviso that he would be required to
serve the entire suspension should he again violate any Rules of Professional Conduct or be
found in contempt of court. Id. at 123. In Farmer v. Board of Professional Responsibility,
660 S.W.2d 490, 491 (Tenn. 1983), an attorney was suspended for sixty days for using
“scurrilous and improper” language in briefs to the court and for accusing fellow attorneys
and the court of telling lies. He was suspended despite his claims that he felt that he “had
to resort to—or [he] was justified in resorting to stronger tactics, more positive language to
get the attention of the [c]ourt.” Id. at 492. Another attorney who filed frivolous pleadings,
described a judge in pleadings as “[p]etty, barbarous and cruel” and a “retaliator” who
“disgraces his judicial office,” and engaged in other inappropriate behavior that resulted in
one federal judge barring him from her courtroom had his license suspended by this Court
for two years. Bd. of Prof’l Responsibility v. Slavin, 145 S.W.3d 538, 543, 551 (Tenn.
2004).
Like the attorney in Farmer, Mr. Bailey was abusive to the court, speaking
disrespectfully, disobeying an instruction to avoid speaking objections, inappropriately
implying that Judge Williams tolerated lying in her courtroom, and accusing defense counsel
of telling lies. Again, like Mr. Farmer, Mr. Bailey felt that he had to “push and push” to get
the rulings he wanted from Judge Williams, stating that he and co-counsel had “found that
the more forceful that we were with her the more effective it was.” Additionally, like Mr.
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Slavin, Mr. Bailey accused a judge of incompetence, although his conduct lacked the
intensity or personal vitriol, as well as the cumulative instances of unprofessional behavior,
present in Mr. Slavin’s case.
In finding the imposition of the sixty-day suspension to be an abuse of the Hearing
Panel’s discretion, the Chancery Court cited Maddux, 148 S.W.3d at 38, in which an attorney
received a thirty-day suspension for converting over $90,000 in funds from his partnership.
In Maddux, however, the attorney was remorseful, admitted his wrongdoing, and cooperated
with the disciplinary proceedings. Id. at 39. Most significantly, however, Maddux involved
an unusual set of circumstances, including the attorney living with the threat of discipline for
ten years because Disciplinary Counsel waited for four and a half years after the initial
complaint was filed to file his petition for discipline. Id. at 40. In contrast to Maddux, Mr.
Bailey appeared unremorseful and disdainful in his testimony before the Hearing Panel, still
convinced that his behavior was justified by his need to represent his client and persisting in
characterizing the trial court’s rulings as “crazy” and inconsistent.
Given these precedents, we conclude that Mr. Bailey’s sixty-day suspension is
consistent with comparable Tennessee cases involving similar violations of the Rules of
Professional Conduct and that the length of the suspension is appropriately tailored to the
facts of Mr. Bailey’s circumstances. Indeed, the Hearing Panel imposed only a sixty-day
suspension, although the ABA Standards state that a suspension generally should be for no
less than six months. We wholeheartedly agree with the Hearing Panel’s conclusion that
“simply abusing or insulting the [c]ourt to get rulings in [favor of a client] cannot ever be
endorsed or justified by our rules and our system of professional conduct.” Indeed, it is
especially important that attorneys, who play an integral role in the judicial system, “respect
the line separating, in the judicial context, tolerable criticism from unacceptable speech.”
Slavin, 145 S.W.3d at 551. Attorneys who cross this line may not avoid punishment by
claiming that their misconduct served the greater good or the interests of their clients, as such
exceptions would overwhelm the rules.
IV. Conclusion
The judgment of the Hearing Panel was supported in all respects by substantial and
material evidence and was therefore neither arbitrary nor capricious. Accordingly, we
reverse that portion of the judgment of the Chancery Court which reduced Mr. Bailey’s
sanction and reinstate the Hearing Panel’s imposition of a sixty-day suspension of Mr.
Bailey’s law license. Costs of this appeal are taxed to Mr. Bailey, for which execution may
issue if necessary.
_________________________________________
CORNELIA A. CLARK, JUSTICE
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