Danny C. Garland, II v. Board of Professional Responsibility Of The Supreme Court of Tennessee

IN THE SUPREME COURT OF TENNESSEE
AT KNOXVILLE
January 10, 2017 Session
DANNY C. GARLAND, II v. BOARD OF PROFESSIONAL
RESPONSIBILITY OF THE SUPREME COURT OF TENNESSEE
Direct Appeal from the Chancery Court for Knox County
No. 189106-3 Jon Kerry Blackwood, Senior Judge
No. E2016-01106-SC-R3-BP – Filed August 10, 2017
A hearing panel of the Board of Professional Responsibility determined that a Knoxville
attorney should receive a public censure based on his violations of Rules of Professional
Conduct 1.3, 1.4, and 8.4(a). The trial court affirmed the hearing panel’s decision. After
careful consideration, we affirm the judgment of the trial court.
Appeal Pursuant to Tenn. Sup. Ct. R. 9, § 1.3; Judgment of the
Chancery Court Affirmed
SHARON G. LEE, J., delivered the opinion of the Court, in which JEFFREY S. BIVINS, C.J.,
and CORNELIA A. CLARK and ROGER A. PAGE, JJ., joined. HOLLY KIRBY, J., filed a
dissenting opinion.
Danny C. Garland, II, Knoxville, Tennessee, pro se.
Krisann Hodges, Brentwood, Tennessee, for the appellee, Board of Professional
Responsibility of the Supreme Court of Tennessee.
OPINION
I. Background
This disciplinary action involves Knoxville attorney Danny C. Garland, II.1 When
this action began, Mr. Garland had been practicing law for seventeen years. He had one
full-time employee, Jamie Harris, whose responsibilities included communicating with
clients and preparing documents. He also had one part-time employee, Carol Snyder, who
1
This factual summary is based on evidence presented to the hearing panel on December 11,
2014.
occasionally worked full time and whose responsibilities included answering the
telephone and filing. Mr. Garland’s practice primarily involved family law and consisted
of about 100 active files. He relied on Ms. Harris to talk to clients and answer questions
because he was often in court, depositions, or meetings. According to Mr. Garland, he
reviewed his active files every thirty to forty-five days to ensure that no action was
needed.
In September 2010, Samantha McKeogh hired Mr. Garland to handle a stepparent
adoption for her husband, Jason McKeogh. Mr. Garland had previously represented Ms.
McKeogh in divorce proceedings. Both Ms. McKeogh and Mr. Garland believed that it
would be difficult to get the child’s father, Scott Atchley, to consent to an agreed order
due to his history of erratic and uncooperative behavior. After Mr. Garland filed a
petition for adoption on January 20, 2011, initial efforts to get Mr. Atchley’s signature
were unsuccessful. However, on July 7, 2011, Mr. Atchley came to Mr. Garland’s office
and signed an agreed order consenting to the adoption. Mr. Garland was not present, and
his staff did not advise him that Mr. Atchley had signed the agreed order. Ms. Harris sent
an email to Ms. McKeogh informing her that Mr. Atchley had signed the order. Ms.
Snyder then mistakenly placed the agreed order in Ms. McKeogh’s closed divorce file
rather than in her open adoption file.
On August 8, 2011, Ms. McKeogh sent an email to Ms. Harris asking about a
hearing date, requesting a copy of the agreed order that Mr. Atchley had signed, and
advising that she had a new address in Clarksville, Tennessee. Over five months later, on
January 17, 2012, Ms. McKeogh emailed Ms. Harris inquiring about the status of the
adoption and noting that she expected her husband, a staff sergeant in the United States
Army, to be deployed to Afghanistan in a month or two. The email stated: “I know that
you all are busy but it’s been 6 months since [Mr. Atchley] signed his rights away.”
On March 23, 2012, the Knox County Chancery Court entered an order requiring
Mr. Garland to prosecute the adoption matter. Mr. Garland, still unaware that Mr.
Atchley had signed the agreed order over eight months earlier, called Ms. McKeogh to
discuss whether she still wanted to pursue the matter. After Ms. McKeogh told Mr.
Garland that Mr. Atchley had already signed the order, Mr. Garland reviewed his files
and found the agreed order in Ms. McKeogh’s closed divorce file. Mr. Garland attended a
Chancery Court pre-trial conference on April 24, 2012. After the pre-trial conference, Mr.
Garland decided he needed to prepare and file an amended petition containing Mr.
Atchley’s notarized signature. As a result, the adoption hearing previously set for May 1,
2012, was postponed.
Ms. McKeogh was notified of the postponement, and efforts began anew to obtain
Mr. Atchley’s signature on the amended petition. On September 12, 2012, Mr. Garland’s
office received the amended petition for adoption signed by Mr. Atchley. The same day,
2
Ms. Harris emailed Ms. McKeogh to inform her that the amended petition had been
signed. Later that day, Ms. McKeogh replied to Ms. Harris, “So where do we go from
here?” Ms. McKeogh also advised Ms. Harris that Mr. McKeogh might be deployed at
the beginning of the year. Ms. Snyder mailed a copy of the amended petition to Ms.
McKeogh so she and her husband could sign it. However, she mistakenly mailed the
amended petition to Ms. McKeogh’s former address in South Carolina and not to her
current address in Clarksville, Tennessee. On September 20, 2012, Ms. Harris sent an
email informing Ms. McKeogh that a meeting between Mr. Garland and the Chancellor
would not occur “until MAYBE next week.”
Ms. McKeogh sent several emails to Ms. Harris in September, October, and
November 2012. She also left numerous messages and voicemails, most of which were
not returned. At one point when Ms. McKeogh called and asked to speak with Mr.
Garland, she was told that Mr. Garland said she needed to speak with Ms. Harris. Ms.
McKeogh then “kind of gave up trying to [reach Mr. Garland] and . . . just tried to focus
all [her] efforts on trying to reach [Ms. Harris].” Mr. Garland agreed that Ms. McKeogh
“stopped . . . trying to talk to me” and that “[h]ad she called . . . , [he] could have
straightened it out.” He recalled that he returned a call from Mr. McKeogh on one
occasion but stated that Ms. McKeogh did not contact him directly and did not set up an
appointment to meet with him.
Finally, on January 14, 2013, Ms. McKeogh sent another email to Ms. Harris that
stated:
I’ve been trying to contact you for several months and have had no
response. I don’t know if there is just no news [and] that is why no one is
returning my calls or [if] you aren’t getting my messages. Whatever the
reason is, I would really appreciate it if you or [Mr. Garland] could please
call me or my husband and let us [know] what is going on. We are getting
frustrated at the amount of time this case is taking. It has been two and a
half years since we began this process, and since then, [Mr. Atchley] has
signed his rights away twice. I understand that we aren’t your only clients,
and that the law doesn’t happen overnight, it’s a process.
In a reply email dated January 18, 2013, Ms. Harris stated: “I want to start by
apologizing for the lack of communication. That will be fixed.” Unaware that the
amended petition had been mailed to the wrong address, Ms. Harris further stated: “I
believe the last activity was sending you the [amended] papers for you and your husband
to sign.” On January 21, 2013, Ms. McKeogh responded to Ms. Harris she had not
received a copy of the amended petition. At that point, it was discovered that in
September 2012, the amended petition had been sent to Ms. McKeogh’s previous
3
address, not to her current address in Clarksville.2 After receiving the amended petition,
Ms. McKeogh and her husband signed it in late January 2013 and immediately returned it
to Mr. Garland’s office. In February, March, and April 2013, Ms. McKeogh emailed Ms.
Harris inquiring about the status of the case and the date of the final hearing. The
amended petition for adoption was filed on March 23, 2013. On July 19, 2013, the
adoption was granted.
Ms. McKeogh’s Complaint
On June 7, 2013, Ms. McKeogh filed a complaint with the Board of Professional
Responsibility. Ms. McKeogh alleged in the complaint that she hired Mr. Garland to
handle an adoption case and that there had been an initial delay due to the difficulty in
obtaining a response from Mr. Atchley. The complaint further stated:
In September 2012, [Mr. Atchley] signed away his rights for a second time.
Since then, we have had little or no communication from Mr. Garland’s
office. We have called and emailed repeatedly, only to hear answering
machines or excuses. I emailed [Ms. Harris] on January 14th, [2013], . . .
telling her that we would contact the [Bar] Association if our calls
continued to be ignored. She replied, telling us she was sorry for the
communication issues and promising to fix them. However, since then we
have had little to no communication, only being able to reach the secretary
who takes our number and never returns our calls/emails. We understand
that lawyers are very busy and that things don’t happen overnight.
However, it has been 3 years and we are paying clients that just want our
little girl to have the same last name as us.
On October 14, 2013, Mr. Garland responded to the complaint, asserting that he
had drafted both a petition and an amended petition for adoption, that Mr. Atchley had
been uncooperative, and that the adoption was granted after Mr. Atchley signed the
amended petition. Mr. Garland said that his office was in frequent communication with
Ms. McKeogh regarding efforts to obtain Mr. Atchley’s signature for the adoption.
2
In December 2012, the postal service apparently returned the amended petition to Mr. Garland’s
office. Mr. Garland explained that he and his staff missed several days of work in December 2012 and
January 2013 due to the holidays and inclement weather.
4
Hearing Panel
On June 27, 2014, the Board of Professional Responsibility filed a Petition for
Discipline against Mr. Garland, alleging violations of Rules of Professional Conduct 1.3,3
1.4,4 and 8.4(a)5 regarding his representation of Samantha and Jason McKeogh.6 On
December 11, 2014, a hearing panel heard the testimony of Mr. Garland, Ms. Harris, and
Ms. Snyder and later reviewed the deposition testimony of Mr. and Ms. McKeogh. On
December 22, 2014, the hearing panel issued its findings:
[1.] By failing to timely proceed with the petition for adoption after
execution of the agreed order by Mr. Atchley on July 7, 2011, which led to
a significant delay in the resolution of the adoption, Mr. Garland failed to
act with reasonable diligence in the representation of his clients.
3
“A lawyer shall act with reasonable diligence and promptness in representing a client.” Tenn.
Sup. Ct. R. 8, RPC 1.3.
4
Rule 1.4 provides:
(a) A lawyer shall:
(1) promptly inform the client of any decision or circumstance with respect to which the
client’s informed consent, as defined in RPC 1.0(e), is required by these Rules;
(2) reasonably consult with the client about the means by which the client’s objectives are
to be accomplished;
(3) keep the client reasonably informed about the status of the matter;
(4) promptly comply with reasonable requests for information; and
(5) consult with the client about any relevant limitation on the lawyer’s conduct when the
lawyer knows that the client expects assistance not permitted by the Rules of Professional
Conduct or other law.
(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client
to make informed decisions regarding the representation.
Tenn. Sup. Ct. R. 8, RPC 1.4.
5
Under Rule 8.4(a), it is professional misconduct for a lawyer to “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 . . . .” Tenn. Sup. Ct. R. 8, RPC 8.4(a).
6
The petition included allegations with respect to Mr. Garland’s representation of another client
in an unrelated case, but that claim was later dismissed by the hearing panel.
5
[2.] By failing to timely proceed with the petition for adoption after
execution of the amended petition for adoption by Mr. Atchley on
September 20, 2012, which led to a significant delay in the resolution of the
adoption, Mr. Garland failed to act with reasonable diligence in the
representation of his clients.
[3.] Mr. Garland is responsible for a failure to reasonably communicate
with Ms. McKeogh regarding the status of the adoption.
After determining that Mr. Garland violated Rules of Professional Conduct 1.3,
1.4, and 8.4(a), the hearing panel considered the following American Bar Association
Standard (“ABA Standard”) with respect to the appropriate sanction:
4.43 LACK OF DILIGENCE
Reprimand is generally appropriate when a lawyer is negligent and does not
act with reasonable diligence in representing a client, and causes injury or
potential injury to a client.
ABA Standards for Imposing Lawyer Sanctions § 4.43 (1992). As aggravating factors,
the hearing panel considered Mr. Garland’s prior disciplinary record,7 pattern of
misconduct, multiple offenses, and substantial experience in the practice of law. See id.
§ 9.22(a), (c), (d), (i). As mitigating factors, the hearing panel found that Mr. Garland did
not act with a dishonest or selfish motive and that he was cooperative in these
proceedings. See id. § 9.32(b), (e). The hearing panel concluded that Mr. Garland should
be publicly censured. See Tenn. Sup. Ct. R. 9, § 4.5.
Trial Court
Mr. Garland filed a Petition for Writ of Certiorari in the Knox County Chancery
Court. On September 1, 2015, the trial court affirmed the hearing panel’s decision. The
trial court found that Mr. Garland’s “office policy and . . . supervision enabled the lack of
communication and delay in this case” and that the hearing panel’s findings were
supported by the record and were neither arbitrary nor capricious. The trial court also
determined that a “reprimand is generally appropriate when a lawyer is negligent and
does not act with reasonable diligence in representing a client and causes injury or
potential injury to a client.” Mr. Garland appealed to this Court.
7
Mr. Garland received a private informal admonition on June 13, 2007, for a violation of RPC
1.3 (diligence), and he received a private reprimand on January 30, 2013, for a violation of RPC 1.3
(diligence) and 1.4 (communication).
6
II. Analysis
The Supreme Court of Tennessee is the source of authority for the Board of
Professional Responsibility and all of its functions. Brown v. Bd. of Prof’l Responsibility,
29 S.W.3d 445, 449 (Tenn. 2000). As part of our duty to regulate the practice of law in
Tennessee, we bear the ultimate responsibility for enforcing the rules governing our
profession. See Doe v. Bd. of Prof’l Responsibility, 104 S.W.3d 465, 470 (Tenn. 2003).
“We review judgments under our ‘inherent power and essential and fundamental right to
administer the rules pertaining to the licensing of attorneys.’” Skouteris v. Bd. of Prof’l
Responsibility, 430 S.W.3d 359, 362 (Tenn. 2014) (quoting Hughes v. Bd. of Prof’l
Responsibility, 259 S.W.3d 631, 640 (Tenn. 2008).
Effective January 1, 2014, this Court adopted substantial changes to Tennessee
Supreme Court Rule 9, which governs disciplinary proceedings. See Tenn. Sup. Ct. R. 9.
Cases initiated before the effective date are governed by the pre-2014 version of Rule 9.
See Cody v. Bd. of Prof’l Responsibility, 471 S.W.3d 420, 424 n.9 (Tenn. 2015). Because
this case was initiated in June 2013, when Ms. McKeogh filed a complaint against Mr.
Garland, we apply the pre-2014 version of Rule 9.
When reviewing a hearing panel’s judgment, a trial court must consider the
transcript of the evidence before the hearing panel and the hearing panel’s findings and
judgment. Tenn. Sup. Ct. R. 9, § 33.1(b). Regarding questions of fact, the trial court
should not substitute its own judgment for the conclusions of the hearing panel regarding
the weight of the evidence. Skouteris, 430 S.W.3d at 362 (citing Bd. of Prof’l
Responsibility v. Allison, 284 S.W.3d 316, 323 (Tenn. 2009)). Further, “[a]ny
modification to a hearing panel’s decision must be based on one of the [factors
enumerated] in Tennessee Supreme Court Rule 9, section 1.3.” Id. (citing Bd. of Prof’l
Responsibility v. Love, 256 S.W.3d 644, 652 (Tenn. 2008)). We apply the same standard
of review as that applied by a trial court. Mabry v. Bd. of Prof’l Responsibility, 458
S.W.3d 900, 903 (Tenn. 2014) (citing Skouteris, 430 S.W.3d at 362). Furthermore, we
will not disturb the hearing panel’s decision unless
the rights of the party filing the Petition for Review have been prejudiced
because the hearing panel’s findings, inferences, conclusions or decisions
are: (1) in violation of constitutional or statutory provisions; (2) in excess of
the hearing 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, § 33.1(b).
7
Here, the issues we review are (1) whether the trial court erred in affirming the
hearing panel’s decision that Mr. Garland violated Rule of Professional Conduct 1.4;
(2) whether the trial court erred in affirming the hearing panel’s decision that Mr. Garland
violated Rule of Professional Conduct 1.3; (3) whether the trial court erred in upholding
the hearing panel’s decision that Mr. Garland’s conduct and the resulting delay amounted
to misconduct under Rule of Professional Conduct 8.4(a); and (4) whether Mr. Garland’s
public censure was an appropriate sanction.
Rule of Professional Conduct 1.4 (Communication)
Mr. Garland argues that the trial court erred in affirming the hearing panel’s
decision that he violated Rule of Professional Conduct 1.4 because the panel
“erroneously applied a strict liability standard.” Mr. Garland asserts that he and his staff
acted reasonably in communicating with Ms. McKeogh, that his office had policies and
procedures in place that identified the mistakes that were made, and that Ms. McKeogh
did not try to contact him directly. The Board responds that Rule of Professional Conduct
1.4 does not contain a required mental state and that mental state is considered in
determining the sanction for a violation. The Board asserts that Mr. Garland had an
obligation to communicate with Ms. McKeogh, that Mr. Garland “fail[ed] to insert
himself” in the communication process, and that Mr. Garland “created an environment in
which . . . a mistake would go undetected indefinitely.”
Rule of Professional Conduct 1.4(a) states that a lawyer shall
(1) promptly inform the client of any decision or circumstance with respect
to which the client’s informed consent, as defined in RPC 1.0(e), is
required by these Rules;
(2) reasonably consult with the client about the means by which the client’s
objectives are to be accomplished;
(3) keep the client reasonably informed about the status of the matter;
(4) promptly comply with reasonable requests for information; and
(5) consult with the client about any relevant limitation on the lawyer’s
conduct when the lawyer knows that the client expects assistance not
permitted by the Rules of Professional Conduct or other law.
Tenn. Sup. Ct. R. 8, RPC 1.4(a). Rule 1.4(b) states that “[a] lawyer shall explain a matter
to the extent reasonably necessary to permit the client to make informed decisions
regarding the representation.” Tenn. Sup. Ct. R. 8, RPC 1.4(b). The comments to the rule
8
underscore the importance of maintaining consistent and reasonable client
communication:
[1] Reasonable communication between the lawyer and the client is
necessary for the client effectively to participate in the representation. . . .
[4] A lawyer’s regular communication with clients will minimize the
occasions on which a client will need to request information concerning the
representation. When a client makes a reasonable request for information,
however, paragraph (a)(4) requires prompt compliance with the request, or
if a prompt response is not feasible, that the lawyer, or a member of the
lawyer’s staff, acknowledge receipt of the request and advise the client
when a response may be expected. Client communications, including
telephone calls, should be promptly returned or acknowledged.
Tenn. Sup. Ct. R. 8, RPC 1.4 cmts. 1 & 4 (2013) (emphasis added).
We conclude that Mr. Garland failed to keep Ms. McKeogh reasonably informed
about the status of the adoption case and failed to promptly comply with her reasonable
requests for information. While Mr. Garland was handling Ms. McKeogh’s case, from
September 2010 to July 2013, he had minimal contact with her. Although Mr. Garland
filed the adoption petition in January 2011, he did not communicate with Ms. McKeogh
again until March 2012 when he received an order from the court to prosecute the case.
Even after the misfiling error was discovered and corrected, the lack of communication
continued. Despite being prompted by the court order, Mr. Garland failed to take a more
active role in advising Ms. McKeogh about the status of her case and responding to her
requests for information, despite her growing sense of urgency and understandable
frustration. After the McKeoghs signed the amended petition in January 2013, Ms.
McKeogh called and emailed Mr. Garland’s office during February, March, and April
2013 for information but received little to no response until after she filed her complaint
with the Board in June 2013.
Throughout Mr. Garland’s handling of the stepparent adoption, communication
was primarily a one-way street. Ms. McKeogh repeatedly and unsuccessfully contacted
Mr. Garland’s office by telephone and email to obtain information on the status of the
case. Ms. McKeogh testified she tried to contact Mr. Garland directly but, in the fall of
2012, was told by a member of his staff that Mr. Garland said she needed to speak with
Ms. Harris. After this exchange, Ms. McKeogh gave up trying to reach Mr. Garland and
focused on trying to contact Ms. Harris. Although Mr. Garland argues that Ms. McKeogh
was at fault for failing to contact him directly, the evidence indicates she did attempt to
communicate with him, and, in any event, the ethical obligations in Rules of Professional
Conduct 1.4 lie with the attorney, not the client.
9
Admittedly, time constraints, workloads, dockets, and court appearances often
make it difficult for an attorney to return every phone call or respond to every email
immediately. However, Mr. Garland should have taken a more active role in keeping Ms.
McKeogh advised of the case’s progress and should have responded promptly and
reasonably to her requests for information. Mr. Garland’s failure to adequately
communicate with Ms. McKeogh during the pendency of the case resulted in a
considerable delay in finalizing the adoption. The hearing panel’s determinations that Mr.
Garland violated Rule of Professional Conduct 1.4 are supported by substantial and
material evidence in this record.
Rule of Professional Conduct 1.3 (Diligence)
Mr. Garland argues that the hearing panel erred in determining that he violated
Rule of Professional Conduct 1.3 based on Ms. Snyder’s failure to mail the amended
petition to Ms. McKeogh’s correct address in September 2012. He also asserts that the
delay from Ms. Snyder’s error resulted from the failure of Ms. McKeogh to leave a
forwarding address with the Postal Service and the failure of the occupant of Ms.
McKeogh’s former address to promptly return the mail to sender. The Board responds
that the hearing panel’s determination was based on Mr. Garland’s neglect and not simply
the mailing error made by his assistant.
Rule of Professional Conduct 1.3 states that “[a] lawyer shall act with reasonable
diligence and promptness in representing a client.” Tenn. Sup. Ct. R. 8, RPC 1.3. “A
lawyer’s work load must be controlled so that each matter can be handled competently.”
Id. cmt. 2.
The hearing panel found that Mr. Garland did not act with reasonable diligence by
“failing to timely proceed with the petition for adoption after execution of the agreed
order by Mr. Atchley on July 7, 2011,” and by “failing to timely proceed with the petition
for adoption after execution of the amended petition for adoption by Mr. Atchley on
September 20, 2012.”
Contrary to Mr. Garland’s assertion, the clerical error in mailing the amended
petition to the wrong address in September 2012 was not the sole basis for the hearing
panel’s determination. There was a series of missteps and inaction by Mr. Garland that
caused a delayed resolution in the adoption case.
After the initial agreed order was signed by Mr. Atchley in July 2011, Mr. Garland
failed to review the order before it was misfiled in his office. After the agreed order was
signed, Ms. McKeogh contacted Mr. Garland’s office numerous times by email and
telephone, requested a copy of the agreed order, gave notice of her change of address,
asked about scheduling a hearing, and referenced her husband’s possible deployment.
10
Despite Ms. McKeogh’s obvious efforts to move forward with her case, Mr. Garland did
not discover that the agreed order had been misfiled for another eight months.
Mr. Garland testified he reviewed his files every thirty to forty-five days. Either
this file review did not occur as regularly as Mr. Garland indicated or his review was
insufficient because Ms. McKeogh’s file was inactive for long periods of time during the
thirty-five months that Mr. Garland was handling the uncontested adoption case. A
review of the file every thirty to forty-five days would have shown on many occasions
that the case was dormant and required Mr. Garland’s attention and action.
After an amended petition was prepared and Mr. Atchley’s notarized signature
was obtained in September 2012, an erroneous mailing to Ms. McKeogh’s prior address
created more delay, even though Ms. McKeogh had provided an updated address over
one year earlier. Once again, despite Ms. McKeogh’s calls, voicemails, and emails, and
Mr. Garland’s purported regular file review, Mr. Garland did not discover that the case
was at a standstill. In addition, when Mr. and Ms. McKeogh signed the amended petition
and returned it to Mr. Garland’s office by the end of January 2013, Mr. Garland delayed
filing it with the court clerk until March 23, 2013. Ms. McKeogh emailed Mr. Garland’s
office in February, March, and April inquiring about the hearing date and received little
or no response. The final hearing on the adoption was not held until four months after the
amended petition was filed and over a month after Ms. McKeogh filed her complaint
with the Board. Mr. Garland failed to act with reasonable diligence and promptness in
representing Ms. McKeogh.
We conclude that the hearing panel’s determination that Mr. Garland violated Rule
of Professional Conduct 1.3 is supported by substantial and material evidence.
Rule of Professional Conduct 8.4(a) (Misconduct)
Mr. Garland argues that no action or inaction on his part caused the delay in
pursuing Ms. McKeogh’s case or amounted to an ethical violation. He asserts that he had
policies and practices in place to ensure reasonable client communication and that he
should not be held “vicariously liable” for the errors of his staff or Ms. McKeogh’s
failure to communicate.8 In particular, he cites Ms. Harris’s failure to inform him about
the agreed order in July 2011, Ms. Snyder’s misfiling of the agreed order, Ms. Harris’s
failure to bring Ms. McKeogh’s concerns to his attention, Ms. Snyder’s mailing of the
amended petition to the wrong address in September 2012, and Ms. McKeogh’s failure to
contact him directly. The Board responds that Mr. Garland’s pattern of neglect and his
8
In his reply brief, Mr. Garland argues that his internal policies and procedures complied with
Rule of Professional Conduct 5.3(a) and (b). However, the hearing panel did not make any findings or
base its decision on these provisions.
11
failure to maintain reasonable communications with Ms. McKeogh resulted in errors and
delay and was a violation of Rule of Professional Conduct 8.4(a).
Rule of Professional Conduct 8.4(a) states that it is professional misconduct for a
lawyer to “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.” Tenn. Sup. Ct. R.
8, RPC 8.4(a).
Although Mr. Garland asserts that his firm had reasonable policies and practices in
place for communicating with clients and monitoring case files, the procedures were
ineffective. The evidence established that Mr. Garland failed to maintain adequate
communication with Ms. McKeogh; failed to act diligently in monitoring and pursuing
the adoption in a timely fashion; and failed to adequately review Ms. McKeogh’s file on
a regular basis to ascertain if the file needed attention. Although Mr. Garland blames his
problems on his staff, he admitted at oral argument before this Court that he was
responsible for the shortcomings of his staff.
We conclude that the hearing panel’s determination that Mr. Garland violated Rule
of Professional Conduct 8.4(a) was supported by substantial and material evidence.
Appropriate Sanction
While not specifically argued by Mr. Garland, we agree with the trial court that
public censure was an appropriate sanction. See Tenn. Sup. Ct. Rule 9, § 4.5. We are
guided by the ABA Standards for determining the appropriateness of such discipline.
Sneed v. Bd. of Prof’l Responsibility, 301 S.W.3d 603, 617 (Tenn. 2010) (citing Tenn.
Sup. Ct. R. 9, § 8.4). “The ABA Standards promote the ‘consideration of all factors
relevant to imposing the appropriate level of sanction in an individual case.’” Mabry, 458
S.W.3d at 910 (quoting Lockett v. Bd. of Prof’l Responsibility, 380 S.W.3d 19, 28 (Tenn.
2012)). The hearing panel considered the following provision:
Reprimand is generally appropriate when a lawyer is negligent and does not
act with reasonable diligence in representing a client, and causes injury or
potential injury to a client.
ABA Standards § 4.43. As aggravating factors, the hearing panel considered Mr.
Garland’s prior disciplinary record, pattern of misconduct in this case, multiple offenses,
and substantial experience in the practice of law. See id. § 9.22(a), (c), (d). To these we
would add that Mr. Garland’s primary defense is to blame the problems on his office staff
and his client. See id. § 9.22(g). As mitigating factors, the hearing panel found that Mr.
Garland did not act with a dishonest or selfish motive and that he was cooperative in
12
these proceedings. See id. § 9.32(b), (e). We agree that a public censure is appropriate in
this case. See Tenn. Sup. Ct. R. 9, § 4.4.
III. Conclusion
After carefully reviewing the issues raised by Mr. Garland, the entire record, briefs
filed by the parties, argument of counsel, and all applicable authority, we find that none
of Mr. Garland’s arguments have merit. Based on our standard of review, we hold that
the result reached by the hearing panel was not arbitrary, capricious, or characterized by
an abuse of discretion; and Mr. Garland’s public censure was fully supported by evidence
which is both substantial and material in light of the entire record. The judgment of the
Knox County Chancery Court is affirmed. The costs of this appeal are taxed to Danny C.
Garland, II, and his surety, for which execution may issue if necessary.
______________________________
SHARON G. LEE, JUSTICE
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