George H. Thompson, III v. Board of Professional Responsibility of the Supreme Court of Tennessee ( 2020 )

04/28/2020
IN THE SUPREME COURT OF TENNESSEE
AT NASHVILLE
February 11, 2020 Session
GEORGE H. THOMPSON, III v. BOARD OF PROFESSIONAL
RESPONSIBILITY OF THE SUPREME COURT OF TENNESSEE
Direct Appeal from the Chancery Court for Davidson County
No. 18-98I Don R. Ash, Senior Judge
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No. M2018-02216-SC-R3-BP
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This is an attorney discipline proceeding concerning attorney George H. Thompson, III,
and his representation of a client in her personal injury action. After filing a nonsuit on
his client’s behalf, the attorney failed to refile the case in a timely manner, which resulted
in the client’s claim being barred by the applicable statute of limitations. The attorney
later admitted his error and paid the client a sum of money to settle her potential claim
against him; however, the attorney failed to advise the client in writing that she should
seek independent legal counsel in reaching a settlement. The Board of Professional
Responsibility (“Board”) filed a petition for discipline against the attorney, and a hearing
panel (“Panel”) imposed a sanction of a one-year suspension with thirty days to be served
as an active suspension and the remainder to be served on probation with conditions. The
attorney sought review of the Panel’s decision in chancery court, and upon its review, the
chancery court affirmed the Panel’s decision. The attorney has now filed a direct appeal
to this Court. Following a thorough review of the record and applicable legal authorities,
we affirm the judgment of the chancery court.
Tenn. Sup. Ct. R. 9, § 33.1(d); Judgment of the Chancery Court Affirmed
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.
George H. Thompson, III, Nashville, Tennessee, Pro se.
Sandy Garrett and Jerry D. Morgan, Brentwood, Tennessee, for the appellee, Board of
Professional Responsibility of the Supreme Court of Tennessee.
OPINION
I. FACTUAL & PROCEDURAL BACKGROUND
The underlying facts of this case are undisputed.1 Mr. Thompson is an attorney
admitted to practice law in Tennessee in 1973. Mary Hall, the client, sustained injuries in
a February 2012 automobile accident, and she hired Mr. Thompson to represent her in
filing a personal injury action. On February 28, 2013, Mr. Thompson timely filed suit on
Ms. Hall’s behalf in Davidson County. On June 24, 2014, Mr. Thompson filed a
voluntary nonsuit, and an order was entered dismissing the suit without prejudice.
Although Mr. Thompson expressed his intention to refile the case, he neglected to
do so within one year of the date of the voluntary nonsuit. Consequently, Ms. Hall’s
cause of action was thereafter barred by the applicable statute of limitations. See Tenn.
Code Ann. § 28-1-105(a). During a meeting with his client on October 22, 2015, Mr.
Thompson gave Ms. Hall a $500 check and a handwritten memorandum acknowledging
his errors and promising to “make every effort to make [her] whole.”
On December 20, 2015, Ms. Hall filed a complaint with the Board alleging ethical
misconduct by Mr. Thompson. However, in March 2016, Mr. Thompson agreed to pay
Ms. Hall $5,000 in exchange for a full release of her legal malpractice claim against him.
Ms. Hall agreed to withdraw her ethical complaint. Mr. Thompson did not advise Ms.
Hall in writing of the desirability of seeking independent legal counsel prior to settling
her claim.
On June 30, 2016, the Board filed a petition for discipline against Mr. Thompson
alleging violations of Rules of Professional Conduct 1.1 (Competence), 1.3 (Diligence),
1.8(h)(2) (Conflict of Interest), 7.3 (Solicitation of Potential Clients), and 8.4(c) and (d)
(Misconduct).
Prior to the 2016 disciplinary matter, Mr. Thompson was sanctioned by the Board
on several other occasions, as found by the Panel:
1
The majority of the recited facts are derived from the stipulations provided by Mr. Thompson
and the Board to the Panel prior to the attorney’s disciplinary hearing in the present case. The stipulations
became a part of the administrative record.
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1. On September 30, 1994, Mr. Thompson received a private informal
admonition for allowing the statute of limitations to expire in a personal
injury matter.
2. On March 23, 1995, Mr. Thompson received a private informal
admonition for failing to act with reasonable diligence in two matters.
3. On February 25, 2000, Mr. Thompson received a private reprimand for
failing to act with reasonable diligence in a bankruptcy case.
4. On June 29, 2000, Mr. Thompson received a public censure for allowing
the statute of limitations to expire in a personal injury matter.
5. On October 9, 2003, Mr. Thompson was suspended for one year by the
Tennessee Supreme Court, with the entire suspension to be held in
abeyance during a period of probation with conditions, for failing to timely
refile a personal injury matter after a voluntary dismissal.
6. On November 17, 2006, Mr. Thompson received a private informal
admonition as the result of a trust account overdraft.
7. On January 21, 2011, Mr. Thompson received a public censure when he
failed to adequately communicate with one client, and when he failed to
advise a potential client that he was declining to represent the client prior to
the expiration of the statute of limitations.
The present matter came before the Panel on September 7, 2017, and on
November 29, 2017, the Panel entered its Findings of Fact, Conclusions of Law and
Judgment. It determined that Mr. Thompson violated Rules 1.1, 1.3, 1.8(h)(2), and 8.4(c)
of the Rules of Professional Conduct.2 The Panel then considered the applicable ABA
Standards guiding the potential sanction to be imposed and found that ABA Standard
4.41 (Disbarment) and 8.2 (Suspension) applied in this case. It considered applicable the
following aggravating factors: prior disciplinary history, a pattern of misconduct,
multiple offenses, and substantial experience in the practice of law. See ABA Standards
2
Mr. Thompson stipulated that by failing to timely refile his client’s lawsuit, he violated Rules
1.1 (Competence) and 1.3 (Diligence), and that by not advising his client in writing of the desirability of
seeking independent counsel, he violated Rule 1.8(h)(2) (Conflict of Interest).
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for Imposing Lawyer Sanctions § 9.22(a), (c), (d), (i). The Panel also found applicable
the following mitigating factors: timely good faith effort to make restitution, cooperative
attitude toward the proceedings, and character or reputation. See id. § 9.32(d), (e), (g).
Ultimately, the Panel imposed a one-year suspension, with thirty days to be served as an
active suspension and the remainder to be served on probation. It further imposed the
following probation conditions: good behavior and engagement of a practice monitor.
Mr. Thompson filed a petition for review in the Chancery Court for Davidson
County, Tennessee, and on October 19, 2018, the chancery court affirmed the judgment
of the hearing panel. Mr. Thompson then filed a timely notice of appeal with this Court.
II. STANDARD OF REVIEW
The Tennessee Supreme Court is the source of authority for the Board 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 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 (quoting Hughes, 259 S.W.3d at 640). Our
standard of review is the same as that of the trial court, generally giving deference to the
hearing panel’s weighing of the evidence and reversing the hearing panel’s decision only
when the decision is
(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).
III. ANALYSIS
Mr. Thompson’s sole issue on appeal is the appropriateness of suspension as the
sanction in this case. In considering the appropriateness of the imposed sanction, we look
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to the ABA Standards for Imposing Lawyer Sanctions. Tenn. Sup. Ct. R. 9, § 15.4(a).
“The ABA Standards are ‘guideposts’ rather than rigid rules for determining appropriate
and consistent sanctions for attorney misconduct.” Bd. of Prof’l Responsibility v. Daniel,
549 S.W.3d 90, 100 (Tenn. 2018) (citing Maddux v. Bd. of Prof'l Responsibility, 409
S.W.3d 613, 624 (Tenn. 2013)). Indeed, the ABA Standards themselves provide as
follows:
While there may be particular cases of lawyer misconduct that are not
easily categorized, the standards are not designed to propose a specific
sanction for each of the myriad of fact patterns in cases of lawyer
misconduct. Rather, the standards provide a theoretical framework to guide
the courts in imposing sanctions. The ultimate sanction imposed will
depend on the presence of any aggravating or mitigating factors in that
particular situation. The standards . . . are guidelines which give courts the
flexibility to select the appropriate sanction in each particular case of
lawyer misconduct.
ABA Standards for Imposing Lawyer Sanctions, Theoretical Framework.
The first step is to identify the presumptive sanction based on the
following considerations: (1) the ethical duty the lawyer violated—whether
to a client, the public, the legal system, or duties as a professional; (2) the
lawyer’s mental state; and (3) the extent of the actual or potential injury
caused by the lawyer’s misconduct.
Daniel, 549 S.W.3d at 100 (citing Bd. of Prof’l Responsibility v. Cowan, 388 S.W.3d
264, 268 (Tenn. 2012)). The second step 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.
Here, in imposing a suspension, the Panel relied on ABA Standards 4.41(c) and
8.2, which state, respectively:
4.41 Disbarment is generally appropriate when . . . (c) a lawyer engages in
a pattern of neglect with respect to client matters and causes serious or
potentially serious injury to a client.
and
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8.2 Suspension is generally appropriate when a lawyer has been
reprimanded for the same or similar misconduct and engages in further
similar acts of misconduct that cause injury or potential injury to a client,
the public, the legal system, or the profession.
ABA Standards for Imposing Lawyer Sanctions §§ 4.41(c), 8.2.
Mr. Thompson challenges the discipline imposed as arbitrary and capricious,
specifically arguing: “In light of appellant’s age and specific personal and practice
circumstances, . . . [the] suspension would likely be fatal to his practice and would force
appellant into involuntary retirement . . . less than two years from the time he would be
able to transition his practice to his son.” He asserts that he did not intentionally or
knowingly violate any of the Rules of Professional Conduct and “denies making any
misrepresentation or acting with any dishonest or selfish motive.” He, therefore, asks this
Court to modify his sanction to a public censure.
As outlined above, Mr. Thompson was found to have violated four different Rules
of Professional Conduct. See Tenn. Sup. Ct. R. 8, RPC 1.1 (“A lawyer shall provide
competent representation to a client. Competent representation requires the legal
knowledge, skill, thoroughness, and preparation reasonably necessary for the
representation.”); RPC 1.3 (“A lawyer shall act with reasonable diligence and promptness
in representing a client.”); RPC 1.8(h)(2) (“A lawyer shall not . . . (2) settle a claim or
potential claim for such liability with an unrepresented client or former client unless the
lawyer fully discloses all the terms of the agreement to the client in a manner that can
reasonably be understood by the client and advises the client in writing of the desirability
of seeking and gives the client a reasonable opportunity to seek the advice of independent
legal counsel in connection therewith.”); RPC 8.4(c) (“It is professional misconduct for a
lawyer to . . . (c) engage in conduct involving dishonesty, fraud, deceit, or
misrepresentation[.]”). Mr. Thompson has not challenged these findings on appeal. The
Panel found four aggravating factors to be relevant here, mainly concerning his lengthy
disciplinary history. The Panel also found three mitigating factors to apply to Mr.
Thompson, including his timely good faith effort to make restitution with his injured
client, his cooperative attitude, and his good character/reputation.
Mr. Thompson has made clear that he would also like this Court to consider as
mitigating factors the detriment to his solo practice from an active suspension, his
“specific personal and practice circumstances,” and his lack of dishonest or selfish
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motives. However, as the chancery court aptly noted, “detriment to a lawyer’s practice is
not a mitigating factor included in the ABA Standards for Lawyer Sanctions.” Further,
even assuming arguendo that the “lack of dishonest or selfish motives” factor was
supported by the evidence, Mr. Thompson does not challenge the Board’s finding that he
violated Rule of Professional Conduct 8.4(c) by acting dishonestly. Moreover, Mr.
Thompson has failed to demonstrate how the Panel’s apparent failure to consider any of
these additional mitigating factors was arbitrary or capricious or how their application
would warrant a reduction in punishment.
Mr. Thompson has received seven previous sanctions throughout his career, four
of which involved his failure to file matters within the applicable statute of limitations as
he did in the case before us. Suspension was, therefore, appropriate under Standard 8.2
as found by the Panel. Still, it is evident that the Panel also generously and appropriately
weighed the applicable mitigating factors in Mr. Thompson’s favor as it imposed the least
amount of time to serve as an active suspension that is allowable under our rules when
imposing a suspension. See Tenn. Sup. Ct. R. 9, § 12.2(a) (“A suspension order must
result in some cessation of the practice of law for not less than thirty days.”).
We conclude that Mr. Thompson has failed to demonstrate that the sanction
imposed by the Panel was arbitrary or capricious. See Bd. of Prof’l Responsibility v.
Reguli, 489 S.W.3d 408, 420-21 (Tenn. 2015) (citing Bd. of Prof’l Responsibility v.
Allison, 284 S.W.3d 316, 322 (Tenn. 2009)) (“A decision that lacks substantial and
material evidentiary support is arbitrary and capricious.”). The chancery court, therefore,
did not err in affirming the Panel’s decision.
IV. CONCLUSION
For the foregoing reasons, the chancery court’s judgment upholding the Panel’s
decision is affirmed. The costs of this appeal are taxed to George H. Thompson, III, for
which execution may issue if necessary.
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ROGER A. PAGE, JUSTICE
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