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Hancock v. Bd. of Prof'l Responsibility of the Supreme Court of Tenn. - 447 S.W.3d 844 (Tenn. 2014)

Rule:

Tenn. Sup. Ct. R. Prof. Conduct 8, 3.5(b) states that a lawyer shall not communicate ex parte with a judge during a proceeding unless authorized to do so by law or court order.  Tenn. Sup. Ct. R. Prof. Conduct 8, 3.5(e) prohibits lawyers from engaging in conduct intended to disrupt a tribunal, and this prohibition extends to any proceeding of a tribunal, including a deposition. Tenn. Sup. Ct. R. Prof. Conduct 8, 3.5, cmt. 6.

Rule of Professional Conduct 8.2 prohibits an attorney from making false statements concerning the integrity or qualifications of a judge because these statements "unfairly undermine public confidence in the administration of justice." Tenn. Sup. Ct. R. 8, RPC 8.2 cmt. 1. Given the purpose of Tenn. Sup. Ct. R. Prof. Conduct 8, 8.2(a)(1), and the harm that it seeks to prevent, an attorney may be disciplined pursuant to Tenn. Sup. Ct. R. Prof. Conduct 8, 8.2, only if a false statement is communicated to a third party.

Facts:

A federal bankruptcy court entered judgment denying a Nashville attorney's application for approximately $372,000 in attorney's fees and expenses. Nine months later, the attorney emailed the bankruptcy judge who denied his fee application, calling the judge a "bully and clown" and demanding that he provide a written apology for denying the fee application. The Board of Professional Responsibility instituted a disciplinary action against the attorney, and a hearing panel of the Board found that the attorney violated several Rules of Professional Conduct by sending the email and recommended that the attorney be suspended from the practice of law for 30 days. The chancery court modified the hearing panel's judgment to include additional violations for misconduct associated with the attorney's briefs filed in the district court but affirmed the remainder of the hearing panel's judgment. The attorney challenged the judgment.

Issue:

Can an attorney be suspended from the practice of law because he emailed a bankruptcy judge, calling the judge names, including a bully and a clown?

Answer:

Yes

Conclusion:

The court held that the attorney’s email violated the rule against ex parte communications, Tenn. Sup. Ct. R. Prof. Conduct 8, 3.5(b), and was also sanctionable as conduct intended to disrupt a tribunal, under Tenn. Sup. Ct. R. Prof. Conduct 8, 3.5(e). The court rejected the attorney's argument that the email was not an ex parte communication because it was made after he filed an appeal, and not "during the proceeding". While Tenn. Sup. Ct. R. Prof. Conduct 8, 3.5(b) did not define the phrase "during the proceeding", the analog to the rule in Code of Judicial Conduct prohibited ex parte communications in a "pending matter", which was defined as during the appellate process. The court found that Tenn. Sup. Ct. R. Prof. Conduct 8, 3.5(b) applied to the attorney's email. However, the attorney was not in violation of the ethical rule that prohibited attorneys from making false statements about the qualifications or integrity of a judge, Tenn. Sup. Ct. R. Prof. Conduct 8, 8.2(a)(1), because while the email was disrespectful, the record did not show that the attorney sent the email to anyone other than the judge. No public statement was made. The court affirmed the hearing panel’s determination that the attorney’s conduct violated Tenn. Sup. Ct. R. 8, 3.5(e) as conduct intended to disrupt a tribunal, based on the hearing panel’s finding that the email to the judge had a "threatening tone" and represented the "abusive and obstreperous conduct" that Rule 3.5(e) prohibited. The court thus affirmed the attorney’s suspension from the practice of law for 30 days; however, the court held that the chancery court erred, under Tenn. Sup. Ct. R. 9, § 1.3, by modifying the hearing panel's judgment to find additional violations.

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