In Re: James Carl Cope, BPR 03340

05/04/2018
IN THE SUPREME COURT OF TENNESSEE
AT NASHVILLE
February 7, 2018 Session
IN RE: JAMES CARL COPE, BPR #03340
Review of Board of Professional Responsibility Panel
No. 2016-2647-4-KH-22.3
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No. M2016-02144-SC-BAR-BP
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This Court suspended attorney James Carl Cope pursuant to Tennessee Supreme Court
Rule 9, section 22.3, based on his federal felony conviction for insider trading and
referred the matter to the Board of Professional Responsibility (“Board”) to initiate
proceedings to determine his final discipline. A hearing panel (“Panel”) imposed a final
discipline of twenty-five months’ suspension, retroactive to the date of his initial
suspension by this Court, which was on October 25, 2016. Neither the Board nor Mr.
Cope appealed this judgment. The Board petitioned this Court for an order enforcing the
Panel’s judgment. Pursuant to Tennessee Supreme Court Rule 9, section 15.4(b) and (c),
we determined that the punishment imposed by the Panel appeared inadequate and
proposed that it be increased. Mr. Cope subsequently requested oral argument, which we
granted. We now consider whether the punishment imposed by the Panel is appropriate
under the circumstances of this case and is in uniformity with prior disciplinary decisions
in this state. Following a thorough review of the record and the law, we conclude that it
is not. Therefore, we modify the Panel’s judgment to impose the twenty-five-month
suspension prospectively from the filing of this opinion.
Tenn. Sup. Ct. R. 9, § 15.4, Judgment of the Hearing Panel Modified
ROGER A. PAGE, J., delivered the opinion of the Court, in which JEFFREY S. BIVINS, C.J.,
and CORNELIA A. CLARK, SHARON G. LEE, and HOLLY KIRBY, JJ., joined.
Aubrey B. Harwell, Jr.; Jon D. Ross; and Marie T. Scott, Nashville, Tennessee, for the
appellant, James Carl Cope.
Krisann Hodges, Brentwood, Tennessee, for the appellee, Board of Professional
Responsibility of the Supreme Court of Tennessee.
OPINION
I. Facts and Procedural History
James Carl Cope is an attorney originally licensed to practice law in Tennessee in
1974. On October 21, 2016, Mr. Cope pleaded guilty in federal district court to one
count of the felony offense of insider trading in violation of United States Code title 15,
section 78j(b) and Code of Federal Regulations title 17, section 240.10b-5.1 The federal
court ultimately sentenced him to twenty-four months of probation, the first nine months
of which required home confinement, with a fine of $200,000.
On October 25, 2016, this Court suspended Mr. Cope’s license to practice law and
referred the matter to the Board for determination of final discipline to be imposed
pursuant to Tennessee Supreme Court Rule 9, section 22.3. On November 7, 2016, the
Board filed a Petition for Final Discipline.
The matter came before the Panel on April 12 and 18, 2017. The only issue before
the Panel was the extent of final discipline to be imposed as a result of the admitted
criminal act. See Tenn. Sup. Ct. R. 9, § 22.3. During the hearing, Mr. Cope admitted that
while he was on the Board of Directors for Pinnacle Financial Partners, he received non-
public material information that Pinnacle was initiating a conversation with Avenue Bank
about purchasing Avenue Bank. Mr. Cope purchased a total of 10,179 shares of Avenue
Bank using limit orders through his personal TD Ameritrade account on two separate
dates. He did not share the information with anyone else. At the hearing, several
witnesses, including judges, respected members of the bar, a county mayor, and a
university president, testified to Mr. Cope’s otherwise impeccable career in Rutherford
County.
On June 1, 2017, the Panel entered its Final Order of Discipline. The Panel first
determined that the appropriate presumptive discipline under the American Bar
Association Standards for Imposing Lawyer Sanctions (“ABA Standards”) was
disbarment. See ABA Standard 5.11.2 The Panel found two aggravating factors to be
1
The judge did not accept his plea on that date, instead insisting that his fine be raised. The
judge subsequently accepted his plea with a modified fine on December 9, 2016.
2
ABA Standard 5.11 states that
Disbarment is generally appropriate when:
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applicable: (1) dishonest or selfish motive and (2) substantial experience in the practice
of law. See ABA Standard 9.22. The Panel also found applicable the following
mitigating factors: (1) absence of a prior disciplinary record; (2) full and free disclosure
to the Board or cooperative attitude toward proceedings; (3) character and reputation of
the attorney; and (4) remorse. See ABA Standard 9.32. The Panel then weighed the
factors and imposed a period of twenty-five months’ suspension, reasoning as follows:
The mitigating factors clearly outweigh aggravating factors and the
additional mitigating factors justify a deviation from the generally
appropriate discipline of disbarment as the public is sufficiently protected
by a discipline of a suspension for a period of twenty-five (25) months
retroactive to the date of the Order of Enforcement on October 25, 2016,
which also coincides with the completion of [Mr. Cope’s] federal sentence
for insider trading.
Neither the Board nor Mr. Cope appealed the Panel’s decision, and the parties agreed to
submit the case to this Court for final disposition. On August 17, 2017, this Court issued
an order stating that the proposed punishment seemed inadequate and should be
increased. See Tenn. Sup. Ct. R. 9, § 15.4(b)-(c). Subsequently, Mr. Cope requested oral
argument, which this Court granted, and the parties filed briefs in this matter.
II. Standard of Review
The Tennessee Supreme Court is the source of authority for the Board of
Professional Responsibility and its functions. In re Vogel, 482 S.W.3d 520, 530 (Tenn.
2016) (citing Long v. Bd. of Prof’l Responsibility, 435 S.W.3d 174, 178 (Tenn. 2014)).
“As a part of our duty to regulate the practice of law in this state, we have the ultimate
disciplinary responsibility for violations of the rules governing our profession.” Hughes
v. Bd. of Prof’l Responsibility, 259 S.W.3d 631, 640 (Tenn. 2008) (citing Doe v. Bd. of
Prof’l Responsibility, 104 S.W.3d 465, 469-70 (Tenn. 2003)). We examine disciplinary
(a) a lawyer engages in serious criminal conduct a necessary element of which
includes intentional interference with the administration of justice, false swearing,
misrepresentation, fraud, extortion, misappropriation, or theft; or the sale, distribution or
importation of controlled substances; or the intentional killing of another; or an attempt
or conspiracy or solicitation of another to commit any of these offenses; or
(b) a lawyer engages in any other intentional conduct involving dishonesty,
fraud, deceit, or misrepresentation that seriously adversely reflects on the lawyer’s fitness
to practice.
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judgments pursuant to this Court’s “inherent power” and “essential and fundamental
right” to enforce the rules regulating the practice of law. Vogel, 482 S.W.3d at 530
(internal quotation marks omitted) (quoting Hughes, 259 S.W.3d at 640).
In a case such as this one, where the attorney pleaded guilty to a felony, which is
defined as a serious crime under Tennessee Supreme Court Rule 9, section 2, the attorney
is suspended immediately by order of this Court upon the Board’s filing a Notice of
Submission with proper proof of the guilty plea, and the matter is referred “to the Board
for the institution of a formal proceeding before a hearing panel in which the sole issue to
be determined shall be the extent of the final discipline to be imposed.” Tenn. Sup. Ct. R.
9, § 22.3(c). It is this Court’s duty to “review the recommended punishment provided in
such judgment or settlement with a view to attaining uniformity of punishment
throughout the State and appropriateness of punishment under the circumstances of each
particular case.” Id., § 15.4(b). If we conclude that the punishment imposed is
inadequate or excessive, we must:
issue an order advising the Board and the respondent attorney that it
proposes to increase or to decrease the punishment. If the Court proposes
to increase the punishment, the respondent attorney shall have twenty days
from the date of the order to file a brief and request oral argument; if the
Court proposes to decrease the punishment, the Board shall have twenty
days from the date of the order within which to file a brief and request oral
argument. Reply briefs shall be due within twenty days of the filing of the
preceding brief. If a party requests oral argument, the Court may grant it.
Upon termination of such proceedings as are requested, the Court may
modify the judgment of the hearing panel or the settlement in such manner
as it deems appropriate.
Id., § 15.4(c). Our standard of review as to the recommended punishment is de novo.
See In re Walwyn, 531 S.W.3d 131, 137 (Tenn. 2017) (citing Tenn. Sup. Ct. R. 9, §
15.4(b)-(c); Hughes, 259 S.W.3d at 640).
III. Analysis
The Board argues that disbarment is the appropriate discipline in this case, while
Mr. Cope contends that disbarment would be contrary to the purposes of lawyer
discipline as a punitive sanction. As both parties acknowledge, “the ABA Standards are
guidelines to be used in determining the appropriate level of discipline for lawyer
misconduct.” Sallee v. Bd. of Prof'l Responsibility, 469 S.W.3d 18, 42 (Tenn. 2015)
(citations omitted). In considering the sanction imposed in this case, “we are required to
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review all of the circumstances of the particular case and also, for the sake of uniformity,
sanctions imposed in other cases presenting similar circumstances.” Bd. of Prof’l
Responsibility v. Allison, 284 S.W.3d 316, 327 (Tenn. 2009) (citing Bd. of Prof’l
Responsibility v. Maddux, 148 S.W.3d 37, 40 (Tenn. 2004)). ABA Standard 3.0 states
that the four factors to consider are: “the duty violated,” “the lawyer’s mental state,” “the
potential or actual injury caused by the lawyer’s misconduct,” and “the existence of
aggravating or mitigating factors.” “The ABA Standards suggest the appropriate baseline
sanction, and aggravating and mitigating factors may justify an increase or reduction in
the degree of punishment to be imposed.” Vogel, 482 S.W.3d at 534 (citing Maddux, 148
S.W.3d at 41).
In cases of criminal conduct “that reflects adversely on the lawyer’s honesty,
trustworthiness, or fitness as a lawyer in other respects,” ABA Standard 5.1 provides the
following baseline sanctions:
5.11 Disbarment is generally appropriate when:
(a) a lawyer engages in serious criminal conduct a necessary element
of which includes intentional interference with the administration of justice,
false swearing, misrepresentation, fraud, extortion, misappropriation, or
theft; or the sale, distribution or importation of controlled substances; or the
intentional killing of another; or an attempt or conspiracy or solicitation of
another to commit any of these offenses; or
(b) a lawyer engages in any other intentional conduct involving
dishonesty, fraud, deceit, or misrepresentation that seriously adversely
reflects on the lawyer’s fitness to practice.
5.12 Suspension is generally appropriate when a lawyer knowingly engages
in criminal conduct which does not contain the elements listed in Standard
5.11 and that seriously adversely reflects on the lawyer’s fitness to practice.
Mr. Cope pleaded guilty to insider trading in violation of United States Code title
15, section 78j(b), which provides that
[i]t shall be unlawful for any person . . . by the use of any means or
instrumentality of interstate commerce or of the mails, or of any facility of
any national securities exchange . . . [t]o use or employ, in connection with
the purchase or sale of any security registered on a national securities
exchange or any security not so registered, or any securities-based swap
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agreement any manipulative or deceptive device or contrivance in
contravention of such rules and regulations as the Commission may
prescribe as necessary or appropriate in the public interest or for the
protection of investors.
15 U.S.C. 78j(b) (footnote omitted). For this conduct, the ABA Standards set a
presumptive sanction of disbarment because insider trading involves fraud and deceit.
See ABA Standard 5.11(a)-(b). However, the ABA Standards also allow the application
of aggravating or mitigating circumstances to adjust the sanction imposed. ABA
Standard 9.1.
We first consider the facts of this case. Mr. Cope’s conduct was essentially
limited to one instance, although the intended purchase of 10,000 shares took two
separate days to complete. He did not share the non-public information with anyone else,
and he did not attempt to hide his action. His unrealized profits amounted to
approximately $56,000, which he has disgorged in addition to paying a $200,000 fine.
He has had no other disciplinary actions in his lengthy career. Accordingly, the Panel
found, and we agree, that two aggravating factors and four mitigating factors are
applicable. The aggravating factors are (1) dishonest or selfish motive and (2) substantial
experience in the practice of law. See ABA Standard 9.22. The four applicable
mitigating factors are: (1) absence of a prior disciplinary record; (2) full and free
disclosure to the Board or cooperative attitude toward proceedings; (3) character and
reputation of the attorney; and (4) remorse. See ABA Standard 9.32.
In view of attaining uniformity of punishment, we must also consider the sanctions
imposed in similar cases. See Allison, 284 S.W.3d at 327. For purposes of our analysis,
cases presenting similar circumstances as this case are those in which an attorney has
been convicted of a felony.3 In those cases, almost all of the attorneys were disbarred.
See, e.g., In re Everett Hoge Mechem, BPR #11854, No. M2017-00818-SC-BAR-BP
(Tenn. Apr. 28, 2017) (Order) (twenty-eight counts of wire fraud, inter alia); In re Frank
Alfred Baker, BPR #31931, No. M2016-01474-SC-BAR-BP (Tenn. Dec. 22, 2016)
3
In his brief to this Court, Mr. Cope presented several cases that he argued were comparable to
his case. However, the baseline sanction in the cases he cited was not disbarment as in his case; therefore,
the cases are not comparable. See Milligan v. Bd. of Prof’l Responsibility, 166 S.W.3d 665, 674 (Tenn.
2005) (determining “the appropriate period of suspension”); Maddux, 148 S.W.3d at 41 (concluding
“reprimand would be the appropriate baseline sanction”). Another case cited by Mr. Cope is not
comparable because the opinion concerns only the requirements imposed for reinstatement and does not
address the attorney’s suspension other than stating that he received a two-year suspension. Dockery v.
Bd. of Prof’l Responsibility, 937 S.W.2d 863, 865 (Tenn. 1996).
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(Order) (four counts of wire fraud, inter alia); In re John Lyndon Lowery, BPR #16195,
No. M2016-02492-SC-BAR-BP (Tenn. Dec. 15, 2016) (Order) (seven counts of theft and
eight counts of forgery). However, there were two cases in which the attorney in
question was convicted of a felony meeting the criteria of ABA Standard 5.11 but
received a four-year suspension instead of disbarment. See In re Carla Ann Kent Ford,
BPR #14312, No. M2016-01035-SC-BAR-BP (Tenn. Dec. 22, 2016) (Order) (theft over
$1,000); In re Joanna Temple, BPR #26096, No. M2015-01280-SC-BAR-BP (Tenn. June
27, 2016) (Order) (attempted criminal usury conviction in New York). In another similar
case, the attorney was convicted in state court of felony theft and in federal court of
willful failure to file tax returns; in that case, the hearing panel determined that
suspension was the appropriate baseline sanction under ABA Standard 5.12 and
suspended the attorney for four years. Lockett v. Bd. of Prof’l Responsibility, 380 S.W.3d
19, 27 (Tenn. 2012).4
Based on the above analysis, we conclude that the circumstances justify the
imposition of a term of suspension rather than that of disbarment in this case because,
inter alia, Mr. Cope has had no other disciplinary actions in his career, his criminal
conduct was atypical, and his conduct did not injure his clients. In addition, the Panel’s
imposition of a term of suspension of twenty-five months is appropriate because Mr.
Cope’s conduct was somewhat less egregious than that of other attorneys who received
lengthier suspensions, particularly in the Lockett case wherein the criminal conduct
spanned three years and directly impacted the attorney’s firm. See Lockett, 380 S.W.3d
at 21-22. However, in the interest of maintaining uniformity in attorney sanctions, Mr.
Cope’s suspension must be prospective rather than retroactive to the date of his initial
suspension by this Court in October 2016. If Mr. Cope’s suspension were retroactive, the
total length of his suspension would only be twenty-five months, half of what other
attorneys in similar cases (even those whose suspension was also retroactive) received.
Because a retroactive suspension would be a drastic departure from the length of the
sanctions imposed in prior cases, we modify the Panel’s judgment to impose a twenty-
five-month suspension prospectively from the filing of this opinion.
Mr. Cope argues that any increase in his sanctions constitutes punishment
antithetical to the purposes of attorney discipline and points to the economic
4
Ms. Ford’s suspension was prospective, resulting in a total suspension of four years and seven
months. In re Ford, No. M2016-01035-SC-BAR-BP (Order). Ms. Temple’s four-year suspension was
retroactive. In re Temple, No. M2015-01280-SC-BAR-BP (Order). Mr. Lockett’s four-year suspension
was also retroactive. Lockett, No. E2011-01170-SC-R3-BP (Tenn. May 29, 2014) (Post-judgment
Order).
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consequences of his actions, from the disgorgement of unrealized profits and a hefty fine
to the loss of his income, as evidence that he has been punished enough. The ABA
Standards provide that “[t]he purpose of lawyer discipline proceedings is to protect the
public and the administration of justice from lawyers who have not discharged, will not
discharge, or are unlikely properly to discharge their professional duties to clients, the
public, the legal system, and the legal profession.” ABA Standard 1.1. This Court’s
opinion in Cowan also draws a distinction between the sanctions imposed for attorney
discipline and criminal penalties, noting that the primary purpose for attorney
discipline—protection of the public—“is not abated merely because criminal penalties
have already been imposed.” Bd. of Prof’l Responsibility v. Cowan, 388 S.W.3d 264,
271 (Tenn. 2012). This Court has recognized that “[w]hile the attorney disciplinary
process is punitive in some respects, its purpose is to safeguard the administration of
justice, protect the public from the misconduct or unfitness of members of the legal
profession, and preserve the confidence of the public in the integrity and trustworthiness
of lawyers in general.” Hornbeck v. Bd. of Prof’l Responsibility, ___ S.W.3d ___, 2018
WL 915027, at *8 (Tenn. 2018) (citing ABA Standard 1.1). Mr. Cope insists that the
public is in no danger from him and that further sanctions serve merely to punish him, but
Mr. Cope’s suspension is commensurate with the larger purpose of attorney discipline,
which includes preserving the public’s confidence in the profession.
CONCLUSION
Based on our careful consideration of the entire record “with a view to attaining
uniformity of punishment throughout the State and appropriateness of punishment under
the circumstances of each particular case,” Tenn. Sup. Ct. R. 9, § 15.4 (b), we modify the
judgment of the Hearing Panel to impose a twenty-five-month suspension, prospective
from the filing of this opinion. The costs of this cause shall be paid by James Carl Cope,
for which execution may issue if necessary.
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ROGER A. PAGE, JUSTICE
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