Colleen Ann Hyder v. Board of Professional Responsibility of the Supreme Court of Tennessee

07/19/2024

IN THE SUPREME COURT OF TENNESSEE

AT NASHVILLE

Assigned on Briefs October 4, 2023

COLLEEN ANN HYDER v. BOARD OF PROFESSIONAL

RESPONSIBILITY OF THE SUPREME COURT OF TENNESSEE

Direct Appeal from the Chancery Court for Montgomery County

No. AA-22-1 Thomas J. Wright, Senior Judge

___________________________________

No. M2022-01703-SC-R3-BP

___________________________________

In this case, we review a trial court’s determination that a Montgomery County attorney

violated Rule 5.5(a) of the Rules of Professional Conduct by practicing law while her

license was suspended for failure to pay the professional privilege tax and the

accompanying sanction of a public censure. Finding no abuse of discretion, we affirm.

Tenn. Sup. Ct. R. 9, § 33.1(d); Judgment of the Trial Court Affirmed; Judgment of

the Hearing Panel Affirmed in Part, Reversed in Part

DWIGHT E. TARWATER, J., delivered the opinion of the court, in which HOLLY KIRBY, C.J.,

and JEFFREY S. BIVINS, ROGER A. PAGE, AND SARAH K. CAMPBELL, JJ., joined.

Roger A. Maness, Clarksville, Tennessee, for the appellant, Colleen Ann Hyder.

James W. Milam, Brentwood, Tennessee, for the appellee, Board of Professional

Responsibility.

OPINION

This is a direct appeal of a trial court judgment affirming in part a decision of a

Board of Professional Responsibility Hearing Panel (“Hearing Panel”). The Hearing Panel

issued a “public admonition” to Colleen Hyder after finding she practiced law with a

suspended license. The trial court affirmed the Hearing Panel’s findings that Ms. Hyder

practiced law while suspended but modified the Hearing Panel’s sanction and issued her a

public censure. On appeal, Ms. Hyder raises three issues: (1) whether the Hearing Panel

and trial court applied the correct legal standard relating to summary suspensions under

Tennessee Supreme Court Rule 9, section 26; (2) whether public censure is the appropriate

sanction; and (3) whether certain deposition testimony was properly excluded. After a

review of the record and the briefs, we find that the trial court did not abuse its discretion.

Accordingly, we affirm the trial court’s judgment.

I. FACTUAL & PROCEDURAL BACKGROUND

Colleen Hyder was licensed to practice law in 2010. On June 1, 2019, her

professional privilege tax came due, and she failed to pay by the statutory deadline. Six

months later, her tax was still delinquent. On December 5, 2019, the Tennessee Board of

Professional Responsibility (“the Board”) sent Ms. Hyder a notice of delinquency by email.

The body of the email provided instructions on how to cure the delinquency without

consequence.

On December 10, 2019, the Board sent Ms. Hyder a certified letter containing the

same notice of delinquency and instructions to cure. Two weeks passed, and she still had

not paid the tax. On December 27, 2019, the Board sent Ms. Hyder another email attaching

the notice of delinquency with instructions to cure. On January 16, 2020, the Board sent

Ms. Hyder yet another email notifying her that a proposed order of summary suspension

had been sent to the Tennessee Supreme Court for review, pursuant to Tennessee Supreme

Court Rule 9, section 26.4(b)–(c).

There is no dispute about the facts in this case. Ms. Hyder did not pay her 2019

professional privilege tax on time, and she received all of the correspondence from the

Board, including the proposed order of suspension. She was not only fully advised of her

failure to pay the tax, but was also provided the opportunity to cure. This Court filed the

order summarily suspending Ms. Hyder’s license to practice law on January 21, 2020. The

order stated: “[T]he license to practice law in this State of each of the following listed

attorneys is summarily suspended . . . . Colleen Ann Hyder . . . . [E]ach suspension shall

be effective immediately upon entry of this [o]rder . . . .” Ms. Hyder received a copy of

the filed order via email on the day of filing. The body of the email stated, “The suspension

[o]rder was entered on January 21, 2020, and is effective immediately.” This text was

underlined and in bold.

Nonetheless, she continued to represent existing clients in court proceedings. The

day after her suspension, she appeared in Montgomery County Circuit Court for a trial.

She did not disclose her suspension to the trial judge. Later that day, she paid $457.06 in

delinquent taxes but did not pay the $100.00 late fee or $200.00 reinstatement fee. On

January 23, 2020, Ms. Hyder participated in a mediation and did not disclose her

suspension to the other participants in mediation. That day, she again appeared in

Montgomery County Circuit Court. She does not dispute that she appeared in court on

several occasions between January 23 and 27, 2020.

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Ms. Hyder engaged private counsel on Saturday, January 25, 2020. The following

Monday, January 27, 2020, she paid the delinquent tax fee and reinstatement fee and filed

her petition for reinstatement in accordance with Rule 9, section 26.4(d). On February 3,

2020, Ms. Hyder contacted the Board to inquire about her ability to practice law. The

Board advised Ms. Hyder that she was not permitted to represent clients or engage in the

practice of law until reinstated by an order of this Court.

On February 4, 2020, this Court filed an order reinstating Ms. Hyder’s license

retroactive to January 28, 2020, the date the Board received Ms. Hyder’s payment in full

of all requisite fees.

Hearing Panel

The Board received several complaints from attorneys, clients, and a judge

concerning Ms. Hyder’s practice of law with a suspended license. The Board filed its

petition for discipline on September 11, 2020, and requested a Hearing Panel. The Hearing

Panel unanimously determined that Ms. Hyder had engaged in the unauthorized practice

of law while her license was suspended in violation of Rule 5.5(a) of the Rules of

Professional Conduct. As directed in Tennessee Supreme Court Rule 9, section 15.4, the

Hearing Panel consulted the ABA Standards for Imposing Lawyer Sanctions (“ABA

Standards”) and identified ABA Standard 6.24 as applicable and setting the presumptive

sanction. ABA Standard 6.24 states: “Admonition is generally appropriate when a lawyer

engages in an isolated instance of negligence in complying with a court order or rule, and

causes little or no actual or potential injury to a party, or causes little or no actual or

potential interference with a legal proceeding.” ABA Standard 6.24. The Board did not

allege or prove any aggravating or mitigating factors. Relying on ABA Standard 6.24, the

Hearing Panel ordered that Ms. Hyder should receive a public admonition for practicing

while suspended.

Trial Court

Ms. Hyder timely filed a petition for review of the Hearing Panel’s decision in

Montgomery County Chancery Court. Tenn. Sup. Ct. R. 9, § 33.1(d). She did not dispute

the Panel’s findings of fact as to her appearances in court and in mediation while her license

was suspended. Rather, Ms. Hyder argued that Tennessee Supreme Court Rule 9, section

26 allowed her to continue representing existing clients for thirty days after her suspension.

She argued that section 26 is ambiguous because it does not set forth practice limitations

for attorneys facing suspension under this section and asserted that this section should be

read in pari materia with other sections of Rule 9. Ms. Hyder relies on section 12.3

(Temporary Suspension), section 22 (Attorneys Convicted Or Acknowledging Guilt of

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Crimes), and section 28 (Notice to Clients, Adverse Parties, and Other Counsel).1 She

argued that because an attorney temporarily suspended for misappropriating client funds

receives thirty days to wind up his or her practice, she should be allowed to continue to

represent existing clients while suspended for failing to pay her professional privilege

tax—a violation admittedly less severe.

Ms. Hyder also argued that the Hearing Panel improperly excluded the deposition

testimony of James Potter, an attorney who filed a complaint against Ms. Hyder on January

30, 2020. Mr. Potter had become aware that Ms. Hyder was practicing with a suspended

license. He contacted the ethics disciplinary counsel, who advised that he had an obligation

to report Ms. Hyder, pursuant to Rule 8.3(a) of the Rules of Professional Conduct, which

provides: “A lawyer who knows that another lawyer has committed a violation of the Rules

of Professional Conduct . . . shall inform the Disciplinary Counsel of the Board of

Professional Responsibility.”2 Tenn. Sup. Ct. R. 8, RPC 8.3(a). Ms. Hyder offered Mr.

Potter’s testimony on the alleged ambiguity of Rule 9, section 26.4. Given that Mr. Potter’s

complaint only included allegations of Ms. Hyder’s conduct after January 28, 2020, and

because Ms. Hyder’s license was reinstated retroactively to January 28, 2020, Mr. Potter’s

complaint was dismissed, and the Hearing Panel excluded the testimony as irrelevant. The

trial court determined that even if the transcript had been admitted, it would have had no

impact on the Hearing Panel’s decision.

The trial court affirmed the judgment of the Hearing Panel in all respects, except for

the sanction. The trial court concluded the Hearing Panel applied an incorrect legal

standard when it relied on ABA Standard 6.24, calling for a public admonition, because it

did not contemplate the potential injury to Ms. Hyder’s clients or potential interference

with legal proceedings stemming from her unauthorized practice of law while suspended.

The trial court found ABA Standard 6.23 more appropriate in the circumstances of this

case because Ms. Hyder’s participation in court proceedings while suspended undermined

the validity of those proceedings, which could negatively affect her clients and the

administration of justice. The trial court found that public reprimand is the presumptive

sanction under ABA Standard 6.23. Public reprimand is the equivalent of a public censure

under Tennessee Supreme Court Rule 9. The trial court therefore modified Ms. Hyder’s

sanction to public censure.

1

Ms. Hyder added Rule 9, section 37, which governs the suspension of an attorney’s law license

for default on a student loan or service conditional scholarship program, to her in pari materia argument in

this Court.

2

Mr. Potter’s letter to the Board states: “I have been advised by your ethics counsel, Ms. Laura

Chastain of my duty to report [Ms. Hyder] to your attention . . . . I spoke with Ms. Chastain and enquired

if I had an ethical obligation to report this. She said to write you this letter.”

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Ms. Hyder appeals to this Court, challenging the trial court’s interpretation of Rule

9, section 26 and modification of her sanction to public censure.

II. STANDARD OF REVIEW

The Supreme Court is vested with the “inherent supervisory power to regulate the

practice of law.” Brown v. Bd. of Pro. Resp. of Sup. Ct. of Tenn., 29 S.W.3d 445, 449

(Tenn. 2000) (quoting In re Burson, 909 S.W.2d 768, 773 (Tenn. 1995)). “[W]e are tasked

with the ultimate disciplinary responsibility for violations of the ethical rules that govern

the legal profession.” Waggoner v. Bd. of Pro. Resp. of Sup. Ct. of Tenn., 673 S.W.3d 227,

235–36 (Tenn. 2023) (quoting Sneed v. Bd. of Pro. Resp. of Sup. Ct. of Tenn., 301 S.W.3d

603, 612 (Tenn. 2010)) (internal quotations omitted).

The Court does not “substitute its judgment for that of the [H]earing [P]anel on

questions of fact.” Bd. of Pro. Resp. of Sup. Ct. of Tenn. v. Prewitt, 647 S.W.3d 357, 366

(Tenn. 2022) (citing Napolitano v. Bd. of Pro. Resp., 535 S.W.3d 481, 496 (Tenn. 2017)).

The Court may only reverse or modify any findings of the Hearing Panel and trial court if

such findings were:

(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); see also Bd. of Pro. Resp. v. Love, 256 S.W.3d 644, 653

(Tenn. 2008); Hoover v. Bd. of Pro. Resp. of Sup. Ct. of Tenn., 395 S.W.3d 95, 103 (Tenn.

2012). An abuse of discretion occurs when a tribunal applies an incorrect legal standard

or reaches a decision that is against logic or reasoning that causes an injustice. Bd. of Pro.

Resp. v. Parrish, 556 S.W.3d 153, 163 (Tenn. 2018).

The determination of the correct legal standard is a question of law. See id. at 163–

67 (conducting de novo review of whether the lower court used the correct legal standard).

We review questions of law de novo with no presumption of correctness. Harris v. Bd. of

Pro. Resp. of Sup. Ct. of Tenn., 645 S.W.3d 125, 136 (Tenn. 2022).

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III. ANALYSIS

The Professional Privilege Tax

and the Unauthorized Practice of Law

First, we must determine whether the trial court abused its discretion in affirming

the Hearing Panel’s interpretation of Rule 9, section 26 to find Ms. Hyder engaged in the

unauthorized practice of law.

Tennessee is one of five states that currently impose a professional privilege tax.3

Attorneys across the State of Tennessee are subject to this tax simply for having a license

to practice law, regardless of income. See Tenn. Code Ann. § 67-4-1703 (West 2023).

Originally imposed on twenty-one professions in 1992, the purpose of the tax was to fill a

revenue budget gap and was driven by the State’s need to fund the Basic Education

Program, which is the funding formula for the State’s K-12 system. Tenn. Advisory

Comm’n on Intergovernmental Rels., The Professional Privilege Tax in Tennessee: Taxing

Professionals Fairly 1, (Dec. 2016), https://www.tn.gov/content/dam/tn/tacir/document

s/2016_ProPrivilegeTax.pdf. In 2002, the tax was increased from $200.00 to $400.00. Id.;

Tax Reform Act of 2002, ch. 856, § 7, 2002 Tenn. Pub. Acts 2312, 2322–23 (codified at

Tenn. Code Ann. § 67-4-1703). The legislature eliminated this tax on fifteen professions

in 2020.4 Act of May 1, 2019, ch. 478, 2019 Tenn. Pub. Acts, https://publi

cations.tnsosfiles.com/acts/111/pub/pc0478.pdf (codified at Tenn. Code Ann. § 67-4-

1702). As of June 1, 2023, only attorneys, lobbyists, and persons licensed or registered

under Title 48 of the Tennessee Code as agents, broker-dealers, and investment advisers

are subject to Tennessee’s professional privilege tax.5 Tenn. Code Ann. § 67-4-1702; Act

3

Other states include Alabama, Connecticut, Delaware, and Montana. See Ala. Code § 40-12-49

(West 2023); Conn. Gen. Stat. Ann. § 51-81b (West 2023); Del. Code Ann. tit. 30, § 2301(a)–(b) (West

2023); Mont. Code Ann. § 37-61-211 (West 2023).

4

The following professions are no longer subject to the tax effective June 1, 2020: accountant,

architect, audiologist, chiropractor, dentist, engineer, landscape architect, optometrist, pharmacist,

podiatrist, psychologist, real estate principal broker, speech pathologist, sports agent, and veterinarian.

Compare Act of March 2, 1992, ch. 529, § 8, 1992 Tenn. Pub. Acts 7, 9–10 (codified as amended at Tenn.

Code Ann. § 67-4-1702) with Act of May 1, 2019, ch. 478, 2019 Tenn. Pub. Acts, https://pub

lications.tnsosfiles.com/acts/111/pub/pc0478.pdf (codified at Tenn. Code Ann. § 67-4-1702) with Act of

Apr. 27, 2022, ch. 1083, 2022 Tenn. Pub. Acts, https://publications.tnsosfiles.com/acts/112/pub/pc1083.pdf

(codified at Tenn. Code Ann. § 67-4-1702) and Tenn. Code Ann. § 67-4-1702 (West 2023).

5

As of June 1, 2023, physicians and osteopathic physicians are no longer subject to the professional

privilege tax. Tenn. Code Ann. § 67-4-1702; Act of Apr. 27, 2022, ch. 1083, § 1, 2022 Tenn. Pub. Acts,

https://publications.tnsosfiles.com/acts/112/pub/pc1083.pdf (codified at Tenn. Code Ann. § 67-4-1702).

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of Apr. 27, 2022, ch. 1083, 2022 Tenn. Pub. Acts, https://publications.tn

sosfiles.com/acts/112/pub/pc1083.pdf (codified at Tenn. Code Ann. § 67-4-1702).

All attorneys licensed in the State of Tennessee, regardless of salary, are still

required to pay this annual professional privilege tax in the amount of $400.00. See Tenn.

Code Ann. §§ 67-4-1702–1703 (West 2023). This tax is due every year on the first of June.

Id. § 67-4-1703(a). The Commissioner of Revenue compiles a list of delinquent taxpayers

and notifies the appropriate licensing board or agency of the taxpayers “who are delinquent

ninety (90) days or more from the due date of the tax.” Id. § 67-4-1704(d). The statute

specifically states that “[t]he Supreme Court has established rules to suspend the license of

an attorney who fails to pay the privilege tax.” Id. § 67-4-1704(f).

Tennessee Supreme Court Rule 9, section 26 governs delinquent professional

privilege taxes and states in part:

Upon the Court’s review and approval of the proposed Suspension Order, the

Court will file the Order summarily suspending the license to practice law of

each attorney listed in the Order. The suspension shall remain in effect until

the attorney pays the delinquent privilege taxes and any interest and

penalties, and pays to the Board the One Hundred Dollar ($100.00)

delinquent compliance fee and the Two Hundred Dollar ($200.00)

reinstatement fee, and until the attorney is reinstated pursuant to Subsection

(d). An attorney who fails to resolve the suspension within thirty days of the

Court’s filing of the Suspension Order shall comply with the requirements of

Section 28.

Tenn. Sup. Ct. R. 9, § 26.4(c).

In this case, there is no dispute that Ms. Hyder failed to pay her 2019 professional

privilege tax by the June 1 deadline, did not cure her non-payment when given multiple

opportunities, and was subsequently summarily suspended. She also does not dispute that

she continued to appear in court and in mediation on behalf of clients after her suspension.

Rather, she argues that her continued representation of existing clients is allowed because

Rule 9, section 26 is ambiguous and does not specify practice limitations applicable to an

attorney who has been summarily suspended for failing to pay his or her professional

privilege tax. Looking to section 26 and other sections of Rule 9, Ms. Hyder gleaned that

she was allowed to continue her representation of existing clients for thirty days after her

suspension.

We begin and end our analysis with section 26, which is directly applicable to this

case. Section 26 is a specific provision that applies only to attorneys suspended for failure

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to pay their professional privilege tax. “Specific provisions relating to a particular subject

must govern in respect to that subject . . . .” Wade v. Madding, 28 S.W.2d 642, 649 (Tenn.

1930); see also Woodroof v. City of Nashville, 192 S.W.2d 1013, 1015 (Tenn. 1946);

Arnwine v. Union Cnty. Bd. of Educ., 120 S.W.3d 804, 809 (Tenn. 2003).

The language in Rule 9, section 26 does not contain, and makes no reference to, a

thirty-day period during which a suspended attorney may continue practicing law. Rather,

section 26.4(c) contains a provision that provides an attorney an additional thirty days to

resolve the suspension before he or she is required to notify clients, adverse parties, and

other counsel of his or her suspension under section 28. Tenn. Sup. Ct. R. 9, §§ 26.4(c),

28.2. We note that Ms. Hyder is not being disciplined for failing to notify clients, adverse

parties, and other counsel of her suspension, but is being disciplined for practicing law with

a suspended license. The language “the [o]rder summarily suspending the license to

practice law,” is clear and unambiguous. Tenn. Sup. Ct. R. 9, § 26.4(c). This section goes

on to provide that “[t]he suspension shall remain in effect until the attorney pays the

delinquent privilege taxes and any interest and penalties, and pays to the Board the One

Hundred Dollar ($100.00) delinquent compliance fee and the Two Hundred Dollar

($200.00) reinstatement fee, and until the attorney is reinstated pursuant to Subsection (d).”

Tenn. Sup. Ct. R. 9, § 26.4(c) (emphasis added). This section obviously means that the

suspension is effective upon entry of the order and remains in effect until the attorney is

reinstated.

The order is also clear and unambiguous: “[E]ach suspension shall be effective

immediately upon entry of this [o]rder.” These words leave no doubt that an attorney

whose name is listed on the suspension order is no longer licensed to practice law.

“[E]ffective immediately upon entry” means effective immediately upon entry, not thirty

days hence.

When a rule or statute is unambiguous, we apply the plain and ordinary meaning of

the words. Eastman Chem. Co. v. Johnson, 151 S.W.3d 503, 507 (Tenn. 2004); Lind v.

Beaman Dodge, Inc., 356 S.W.3d 889, 895 (Tenn. 2011); Stevens v. Linton, 229 S.W.2d

510, 512 (Tenn. 1950). A rule or statute does not become ambiguous simply because a

party alleges so. State v. Welch, 595 S.W.3d 615, 622 (Tenn. 2020) (“A party cannot create

an ambiguity by presenting a nonsensical or clearly erroneous interpretation of the statute.

In other words, both interpretations must be reasonable in order for an ambiguity to exist.”

(quoting State v. Frazier, 558 S.W.3d 145, 152 (Tenn. 2018))). Utilizing certain canons of

statutory construction, including in pari materia, is unnecessary when a rule or statute is

unambiguous. Lind, 356 S.W.3d at 895 (“When a statute is clear, we apply the plain

meaning without complicating the task.”).

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It must be remembered though that this rule “in pari materia” is applicable

only when the terms of a statute to be construed are ambiguous or its

significance is doubtful, and the rule is not to be applied to effect a

construction contrary to the clearly manifest intent of the legislature.

Linton, 229 S.W.2d at 512.

We agree with the trial court that “[t]here is nothing ambiguous about [section

26.4(c)] that would require the court to resort to maxims of statutory construction to discern

the intent of this Rule.” Ms. Hyder was suspended effective immediately. She continued

to practice in spite of her suspension. This is the unauthorized practice of law.

Having found that section 26.4(c) is unambiguous, we need not extend our journey

through the other sections of Rule 9 to construct an in pari materia thirty-day grace period.

We do note, however, that Ms. Hyder is correct that section 26.4(c) references section 28,

which references section 12.3(c). Tenn. Sup. Ct. R. 9, §§ 26.4(c), 28, 12.3(c). Section 28

is the ten-day notice provision for a suspended attorney to notify clients, adverse parties,

and other counsel of her suspension. Tenn. Sup. Ct. R. 9, § 28. Section 28.1 in the clearest

of terms states that “[o]rders imposing . . . suspension[s] . . . are effective upon entry.”

Tenn. Sup. Ct. R. 9, § 28.1. Section 12.3 provides four specific instances when a

temporarily suspended attorney has thirty days to continue representing his or her existing

clients: (1) an attorney’s misappropriation of client funds for his or her own use; (2) an

attorney’s failure to respond to the Board concerning a complaint of misconduct; (3) an

attorney’s failure “to substantially comply with a Tennessee Lawyer Assistance Program

monitoring agreement;” or (4) an attorney otherwise poses a threat of substantial harm to

the public. Tenn. Sup. Ct. R. 9, § 12.3(a). Notably, a suspension for failure to pay the

professional privilege tax is not one of these four circumstances. Ms. Hyder’s reliance on

sections 22 and 37 is similarly unavailing.

We are not persuaded by Ms. Hyder’s argument that an immediate cessation in legal

representation for failure to pay the professional privilege tax somehow discourages

attorneys from consulting the Rules of Professional Conduct and other Tennessee Supreme

Court Rules to determine the correct course of action. All members of the Bar should know

and follow the Rules of Professional Conduct, the laws of this State, and orders from this

Court. Lawyers advise clients to that effect. No less should be expected of the profession.

The Board informed Ms. Hyder that her suspension was effective immediately in its

January 21, 2020 email. Neither the suspension order nor the email mentions a thirty-day

grace period or references another disciplinary rule. Each plainly states the suspension is

effective immediately. This language is direct and clear. “Effective immediately” means

effective immediately.

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Upon entry of the suspension order, Ms. Hyder was no longer authorized to

represent clients. She continued to do so, violating Rule 5.5(a) of the Rules of Professional

Conduct and an order from this Court. See Tenn. Sup. Ct. R. 8, RPC 5.5(a); cf. Tenn. Sup.

Ct. R. 9, § 11.3 (“Adjudication that a lawyer has willfully refused to comply with a court

order also shall be grounds for discipline.”)

Ms. Hyder’s tax was delinquent for over six months at the time of her suspension.

She received numerous notices of delinquency with instructions to cure. This is plenty of

grace. We decline to read in an additional thirty-day grace period that is not in the

unambiguous language of Rule 9, section 26.

The Appropriate Sanction

We next determine whether the trial court abused its discretion by imposing a public

censure. Rule 9 provides that when determining the appropriate sanction, the Hearing

Panel and reviewing courts shall consult the ABA Standards to identify the presumptive

sanction and then consider whether any aggravating or mitigating factors apply to justify

an upward or downward deviation from the presumptive sanction. Tenn. Sup. Ct. R. 9, §

15.4(a) (“In determining the appropriate type of discipline, the hearing panel shall consider

the applicable provisions of the ABA Standards for Imposing Lawyer Sanctions.”);

Meehan v. Bd. of Pro. Resp. of Sup. Ct. of Tenn., 584 S.W.3d 403, 413 (Tenn. 2019). “With

no aggravating or mitigating factors, the presumptive sanction applies.” Meehan, 584

S.W.3d at 413 (citing Bd. of Pro. Resp. of Sup. Ct. of Tenn. v. Sheppard, 556 S.W.3d 139,

147 (Tenn. 2018)).

The Hearing Panel identified public admonition under ABA Standard 6.24 as the

appropriate sanction with no aggravating or mitigating factors. The trial court determined

ABA Standard 6.23 was more appropriate in the circumstances of this case because Ms.

Hyder’s unauthorized practice of law posed potential injury to her clients and potential

interference with legal proceedings. The trial court therefore modified the sanction to a

public censure, which is the term Rule 9 uses to describe a public reprimand. See In Re

Walwyn, 531 S.W.3d 131, 141 (Tenn. 2017); Tenn. Sup. Ct. R. 9, § 12.4.

ABA Standard 6.23 reads in full: “Reprimand is generally appropriate when a

lawyer negligently fails to comply with a court order or rule, and causes injury or potential

injury to a client or other party, or causes interference or potential interference with a legal

proceeding.” ABA Standard 6.23. Ms. Hyder contends that because her ethical violations

arose out of negligence and her clients did not suffer actual harm, the trial court erred in

applying Standard 6.23.

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We agree with the trial court that Standard 6.23 is the appropriate standard. Ms.

Hyder repeatedly appeared in court, conducted a trial, and participated in a mediation while

her license was suspended. Each appearance was a violation of Rule 5.5 of the Rules of

Professional Conduct and an order from this Court. See Tenn. Sup. Ct. R. 8, RPC 5.5.

Each violation had the potential to cause injury to clients and/or interfere with legal

proceedings. While there is nothing in the record to suggest Ms. Hyder’s clients suffered

actual harm from her unauthorized practice of law, Standard 6.23 contemplates both actual

and potential injury. ABA Standard 6.23. As the trial court stated, unlike drafting contracts

and other legal documents,

[t]he potential for injury existed because her representation of clients in court

[and in mediation] while her license was suspended calls into question the

validity of the actions taken on behalf of the client, against the opposing

parties, and undermines the validity of the proceedings she participated in

while suspended.

We also agree with the trial court that the Hearing Panel applied an incorrect legal

standard when it imposed a public admonition because Rule 9, section 15.4(a) only allows

three types of discipline when a matter has advanced to a disciplinary hearing—disbarment,

suspension, or public censure. Tenn. Sup. Ct. R. 9, § 15.4(a). This section does not allow

for a private reprimand after a petition for discipline is filed. Tenn. Sup. Ct. R. 9, § 15.4(a)

(“Temporary suspension [], private reprimand [], and private informal admonition [] are

not types of discipline available to the hearing panel following the filing of a Petition for

Discipline.”). Upon the Board’s filing of the petition for discipline, the minimum sanction

available for Ms. Hyder was public censure. We are not persuaded by her argument that,

because private reprimand is unavailable, the Board exceeded its grasp, and the Hearing

Panel should have dismissed the petition for discipline.

The trial court did not abuse its discretion by modifying Ms. Hyder’s sanction to a

public censure for practicing law with a suspended license. In our determination, we

considered Ms. Hyder’s repeated violations of Rule 5.5 of the Rules of Professional

Conduct, the ABA Standards, the potential harm to Ms. Hyder’s clients, the potential

interference with legal proceedings, and the types of sanctions available in this case under

Rule 9, section 15.4.

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The Exclusion of Deposition Testimony

Finally, we determine whether the trial court abused its discretion by excluding

James Potter’s deposition testimony. “Rulings on the introduction of evidence are usually

within the discretion of the trial judge and will not be reversed except for an abuse of that

discretion.” Dockery v. Bd. of Pro. Resp. of Sup. Ct. of Tenn., 937 S.W.2d 863, 866 (Tenn.

1996).

Because Mr. Potter’s complaint was ultimately dismissed, the Hearing Panel found

his testimony to be irrelevant. The trial court determined his testimony would have no

impact on the Hearing Panel’s finding that Ms. Hyder engaged in the unauthorized practice

of law between January 21 and January 27, 2020. Ms. Hyder attempted to introduce Mr.

Potter’s deposition testimony, arguing that it is somehow relevant to the claimed ambiguity

in Rule 9, section 26.

We find Mr. Potter’s deposition testimony to have been properly excluded. The

record indicates that Mr. Potter learned that Ms. Hyder had been suspended after checking

the Board website. He did not know the reason for the suspension. Nor did he know that

she was suspended pursuant to Tennessee Supreme Court Rule 9, section 26.

The record only shows that the ethics disciplinary counsel advised Mr. Potter he

was duty-bound to report an attorney he believed to be practicing law with a suspended

license. His testimony has no bearing on any claimed ambiguity of Rule 9, section 26 or

the Hearing Panel’s determination of whether Ms. Hyder engaged in the unauthorized

practice of law.

CONCLUSION

Under current law, Tennessee lawyers must pay their professional privilege tax or

face suspension effective immediately upon order of this Court. Engaging in the practice

of law while suspended for nonpayment of the privilege tax is the unauthorized practice of

law.

We affirm Ms. Hyder’s public censure. The costs of this appeal are taxed to Colleen

A. Hyder.

_________________________________

DWIGHT E. TARWATER, JUSTICE

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