# State of Tennessee v. Andy L. Allman > Court of Criminal Appeals of Tennessee · September 27, 2024 URL: https://www.frixlaw.com/law-library/cases/10592656 ## Case - **Court:** Court of Criminal Appeals of Tennessee - **Decided:** September 27, 2024 - **Precedential status:** Published - **Opinion:** Opinion - **Judges:** Judge Jill Bartee Ayers - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10592656 ## How later opinions describe it (automated extraction) - concluding that “because the trial court’s decision of whether to consolidate offenses is determined from the evidence presented at the hearing, appellate courts should usually only look to that evidence” - concluding that joinder of offenses was proper when the offenses were all part of a larger conspiracy to defraud Washington County, and much of the evidence of the methods used to defraud the county was admissible as to each count - concluding that although the trial court failed to “expressly state” that the evidence was “clear and convincing,” the defendant’s repeated admission to conduct supported a “clear and convincing” finding ## Opinion text 09/27/2024 IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE January 9, 2024 Session STATE OF TENNESSEE v. ANDY L. ALLMAN Appeal from the Criminal Court for Sumner County Nos. 548-2017, 875-2017, 133-2020 Dee David Gay, Judge ___________________________________ No. M2022-01542-CCA-R3-CD ___________________________________ Defendant, Andy L. Allman, appeals his convictions for twelve counts of theft and six counts of falsely holding oneself out to be a lawyer in case Nos. 2017-CR-548, 2017-CR- 548, and 2017-CR-875 for which he received an effective thirty-five year sentence to be served in confinement. Multiple counts were either nolle prosequied by the State before trial or dismissed during trial. On appeal, Defendant argues that (1) the evidence was insufficient to support his convictions; (2) the trial court erroneously charged the jury concerning his charges for falsely holding oneself out the be a lawyer; (3) his sentence is excessive; (4) a portion of the State’s closing argument resulted in plain error; (5) the trial court deprived Defendant of his right to present a defense by excluding evidence; (6) the trial court improperly admitted evidence of the Board of Professional Responsibility’s findings; (7) the trial court abused its discretion by denying Defendant’s motion to exclude evidence; and (8) the cumulative effect of these errors entitle him to a new trial. Following our review of the entire record, the briefs and oral arguments of the parties, and the applicable law, we affirm the judgments of the trial court but remand for entry of judgment forms for those counts that were either nolle prosequied by the State before trial or dismissed during trial. Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed JILL BARTEE AYERS, J., delivered the opinion of the court, in which ROBERT L. HOLLOWAY, JR., and TIMOTHY L. EASTER, JJ., joined. Patrick T. McNally, Nashville, Tennessee (on appeal) and Andy L. Allman, Pro Se (at trial), for the appellant, Andy L. Allman. Jonathan Skrmetti, Attorney General and Reporter; Richard D. Douglas, Senior Assistant Attorney General; Ray Whitley, District Attorney General; and Thomas Boone Dean and Tara Wyllie, Assistant District Attorneys General, for the appellee, State of Tennessee. OPINION Factual and Procedural Background The charges in this case arose when Defendant, a licensed attorney, deposited retainer fees paid by clients into his firm’s operating account and personal checking account, which frequently had negative balances, and thereafter failed to perform the agreed-upon legal work and failed to refund the retainer fees. Additionally, Defendant transferred client funds from an insurance settlement, and several estate, divorce, and child support settlements from his firm’s trust account into his firm’s operating account and his personal account where such funds were depleted. After Defendant was suspended from practicing law, he continued representing clients, taking fees, and providing legal advice without advising clients that his license to practice law had been suspended. Defendant was indicted for nineteen counts of theft of property, eight counts of falsely holding oneself out as a lawyer, and one count of the unlawful practice of law. The Grand Jury later returned two additional indictments charging Defendant with ten counts of theft and three counts of falsely holding himself out as a lawyer. The trial court consolidated the three indictments for one trial. We have compiled the following chart to outline Defendant’s charges, convictions, and dispositions:1 Indicted Jury Indicted Disposition Case Victim Count Count Offense Effective 35 year sentence 2017- 4 years 30%; CR- Concurrent: 5,11,14,16,18,19,21,22,23, & theft of Roger 548 2 1 25 (2017-CR-548) and count 11 (2017-CR- $4,500 Brown 875); Consecutive: 2020-CR-133 and counts 3, 9, 12, & 13 (2017-CR-548) theft of > Michael 12 years 30%; Consecutive: all counts in all 3 2 $60,000 Kevin Dycus cases theft of Bethany 5 3 4 years; alignment the same as count 2 $4,500 Stollar 1 The counts in which the State entered a nolle prosequi before trial or that were dismissed during trial are not included in the chart. -2- 6 years 30%; Concurrent: counts 9 & 12 (2017-CR-548) and count 2 (2020-CR-133) theft of > 9 7 Rosa Ponce Consecutive: counts 2, 3, 5, 11, 13, 14, 16, $10,000 18, 19, 21, 22, 23, & 25 (2017-CR-548) and count 11 (2017-CR-875) and count 1 (2020- CR-133) theft of Robert 11 9 4 years; alignment the same as count 2 $4,500 Lussier Floyd theft > 12 10 Kenneth 6 years; alignment the same as count 9 $10,000 Sutton theft > Estate of 12 years 30%; Consecutive: all counts in all 13 11 $60,000 Jane Denney three cases theft of Yvonne 14 12 4 years; alignment the same as count 2 $4,500 Prather theft of Nancy 16 14 4 years; alignment the same as count 2 $4,500 Whitman 2 years 30%; falsely Concurrent: counts 2, 5, 11, 14, 16, 18, 19, hold out Sharon 21, 22, 23 & 25 (2017-CR-548) and count 18 16 as a lawyer Sullivan 11 (2017-CR-875) T.C.A. § Consecutive: counts 3, 9, 12, & 13 (2017- 23-3-108 CR-548) and 2020-CR-133 falsely Danielle 19 17 hold out Dianne 2 years; alignment the same as count 18 as a lawyer Means theft of Wanda 21 18 4 years; alignment the same as count 2 $4,500 Kelley falsely 22 19 hold out Lisa Smelser 2 years; alignment the same as count 18 as a lawyer Theft of 23 20 "$2,500 or Lisa Smelser 4 years; alignment the same as count 2 more" falsely 25 21 hold out Rachell Scott 2 years; alignment the same as count 18 as a lawyer 2017- falsely Ginny 2 years; alignment the same as count 2 CR- 11 22 hold out O’Kelley (2017-CR-548) 875 as a lawyer -3- (Jinny Broughton)2 falsely Mario 1 year 30%; Consecutive: all counts in all 2020- 1 5 hold out as Herrera cases CR- a lawyer 133 Theft of Mario 6 years 30%; Concurrent: counts 9 and 12 2 6 $54,269.11 Herrera (2017-CR-548) Defendant ultimately proceeded to trial on twelve counts of theft and six counts of falsely holding oneself out as a lawyer as referenced in the above chart.3 Pretrial Motions A. Motion to Sever On May 17, 2019, Defendant filed a motion to sever the “flat fee” retainer counts arguing that “joinder of these [c]ounts at trial are not necessary to the proof of the remaining issues and are unduly prejudicial to . . . Defendant’s defense, denying . . . Defendant a fair determination.” More specifically, Defendant averred that the retainer fee counts were “contract disputes” because of their nonrefundable nature and were thus civil disputes and not criminal offenses. The State countered that the retainer fee counts were based on the same conduct or arose from the same criminal episode, requiring mandatory joinder, and the retainer fee counts showed a common scheme or plan, thus allowing permissive joinder. The State also pointed out that previous defense counsel had agreed to joinder. A report from forensic accountant Jennifer Stalvey was entered as an exhibit at the hearing. She did not testify, but the State noted that she had linked the check number or cash amount paid by each victim to a deposit into one of Defendant’s bank accounts. The report also listed whether the account into which the money was deposited had a negative balance immediately before the deposit. Tennessee Bureau of Investigation (“TBI”) Special Agent Reilly Gray testified that she was the lead investigator on Defendant’s case and began her investigation in the “latter part of 2016.” She said that the Board of Professional Responsibility (“BPR”), Hendersonville Police Department, and the District Attorney General’s office provided her with the names of “close” to seventy to seventy-five individuals as potential victims in this 2 Jinny Broughton is the same person as Ginny O’Kelley, who was listed as the victim in count eleven of case No. 2017-CR-875 of the first indictment. We will refer to her as Jinny Broughton or Ms. Broughton. 3 While the chart shows the counts as they are charged in the indictments as well as how they were charged to the jury, we will refer to the counts as they are charged in the indictment. -4- case. Special Agent Gray was also aware of a Davidson County theft case involving Defendant. Special Agent Gray interviewed the potential victims and obtained “close to a dozen” search warrants for Defendant’s residence, storage facility, and three different banks in which Defendant had firm and personal accounts. She interviewed a representative from each bank and obtained files and electronic devices. Concerning the retainer fee cases, Special Agent Gray testified: [I]ndividuals that had gone to seek out [Defendant] for various types of cases such as work place discrimination, employment issues, and they had retained [Defendant]. Most of those individuals talked about having a personal meeting with him at which time they gave him general information. He had them sign an agreement. In some of the cases, we received a copy of that agreement and in some of those they had signed their copy but did not have a copy that [Defendant] had signed. And they had been giving him roughly - - in most cases it was $4,500. In some cases it varied, but that was the typical retainer amount. And then to their knowledge no work was done on the case. And in some cases the statute of limitations had run out so that after [Defendant’s] suspension, they were not able to seek other representation for their case. * * * For the most part, most of them had not had any communication with [Defendant] after that initial meeting. They had made numerous attempts to call the office [in] which case they may actually speak with a staff member or a paralegal. They would mostly get the run-around that [Defendant] was in a meeting, he was on the phone, he was out of the office, and never [were] able to make contact with him. In some cases[,] they may have made contact, but he also told them I’m working on it, something will be done, and they never saw any actual hard evidence of that. There were no papers filed, nothing sent to them, nothing other than word of mouth that something was being accomplished. As to other cases, Special Agent Gray testified that Kenneth Sutton retained Defendant to represent him in a child support case and gave “over $12,000 to [Defendant] for that case.” She noted that on the same day that Defendant met with Mr. Sutton, $12,000 was deposited -5- into Defendant’s personal account. Special Agent Gray testified that “nothing was completed” on Mr. Sutton’s case, and “[w]e couldn’t find anything through the court system that anything had been done on Mr. Sutton’s case.” She said that the money was never deposited into Defendant’s firm’s trust account. Special Agent Gray agreed that the money was supposed to “be held as a result of a court order ordering [Mr. Sutton] to pay that into [Defendant’s] trust account as potential child [support] payment[.]” Special Agent Gray testified that Kevin Dycus contacted Defendant about representing him and his minor son, G.D.,4 in an estate case where Mr. Dycus’s ex-wife, G.D.’s mother, had passed away. G.D. was the beneficiary of her life insurance policy, and the funds were to be held in a trust account for G.D. to access after he became an adult. Special Agent Gray testified: Mr. Dycus had a check. This was over a hundred thousand dollars that was signed over to [Defendant]. That check was deposited into [Defendant’s] account. It was never actually given out or appropriated anywhere else in a separate trust account. Upon search of various records, either through Mr. Dycus [sic] and then also verified through other account records, at one point [Defendant] had actually texted a picture of an account to Mr. Dycus alleging that yes, the funds are here, these are the funds, basically to show this is where it is. Mr. Dycus had asked several times for an account number, for information to basically verify where this money was being held, and [Defendant] had texted him a picture, which we later found out through alternative records was actually a picture of another trust account for another victim in this case, and the funds for the Ingr[a]m5 estate had already been spent in various ways by [Defendant]. Special Agent Gray confirmed that Mr. Dycus never received any distribution of funds from the estate for G.D. As to the Jane Denney estate for which Defendant had been appointed executor, Special Agent Gray testified that the proceeds of the estate, which totaled “upwards of over a hundred thousand dollars[,]” were deposited by Defendant into a separate firm’s trust account at Pinnacle Bank. She noted that “this was the only account that we were aware of that he placed in a separate trust[.]” Special Agent Gray further testified: “[t]hat money 4 Because it is the policy of this court to protect the identity of minor victims, we will identify them by their initials. 5 This was the estate of G.D.’s late mother. -6- was deposited, and within, I would say, approximately a 30-day period or a month’s time, that account was completely drained to the pennies.” Concerning Defendant’s other charges, Special Agent Gray testified that Rosa Ponce hired Defendant to represent her “in a claim against her previous employer to which that case had actually been settled” and Ms. Ponce was to receive a settlement of approximately $14,000. Defendant did not advise Ms. Ponce that the funds had been paid nor did he distribute the settlement funds to her. Special Agent Gray testified, “It wasn’t until her taxes were filed, then, that following year, that then her tax statement came in the mail that she had actually received the settlement, but she never received any payment from [Defendant].” Special Agent Gray also testified that she investigated several cases in which Defendant was practicing law while his license was suspended. She said that various individuals came forward who sought Defendant’s representation “after what we knew to be the permanent suspension date, and then, obviously, I had obtained the recording from Cheryl Garrett where she had stated that she had asked [Defendant] outright if he was her lawyer and he had said yes.” Special Agent Gray noted that on the day a search warrant was served at Defendant’s house, she called him and “he had asked me if it could wait because he was meeting with a client at that time[.]” The trial court denied Defendant’s severance motion, concluding: If you look at the mandatory joinder rule that the General pointed out, you’ve got that. If you look at permissive joinder, you look at whether they are part of a common scheme or plan and whether they are of the same or similar character. Same or similar character is a no-brainer. Yes. Offenses constitute parts of a common scheme or plan, we look and see what common scheme or plan evidence, and the one that would apply here is part of a larger continuing plan or conspiracy. What I’ve heard today, just briefly - - I mean, we’ve got similar situations: Denn[e]ys, hundred thousand dollars; Dycus, hundred thousand dollars; Sutton, $12,000; Ponce, $14,000. These are non-retainers and these [people] don’t know where the money is. You take the retainers - - and I do not believe that the Reguli6 case is authoritative here. What I think we need to look at is whether the [D]efendant was given money and whether he took that money or used it to do what he was supposed to do, and that’s what we’ll look in each of those other cases and we’ll have to go through each one of them. In order to do 6 Bd. of Pro. Resp. v. Reguli, 489 S.W.3d 408, 421-22 (Tenn. 2015). -7- that - - we’ll have to do that - - and it’ll take a week to go through that just pretrial. So as of this stage, I will not grant a severance. All these motions [sic] will be tried together, and that’s really what the parties agreed to do a long time ago. B. Motion to Dismiss Retainer Fee Cases On May 17, 2019, Defendant filed a motion to dismiss the “flat fee” retainer counts in case Nos. 2017-CR-548 and 2017-CR-875, or in the alternative for a bill of particulars, arguing that the indictments were not particular enough for him to establish a defense. Defendant asserted, relying on Reguli, that the fees were “advanced retainer fees” which were earned upon receipt. He further asserted that “[t]here is no evidence of a security retainer agreement which makes the paid fees held by the Defendant identified in the disclosures and documents as being property of the client payees. There is therefore no probable cause for the crimes of embezzlement, fraudulent conversion and similar offenses.” Defendant also attached the “Attorney-Client Litigation Agreement” for multiple listed victims and pages of forensic accountant Jennifer Stalvey’s report showing deposits, expenses, and total financial loss for multiple listed victims. At the hearing, Defendant reiterated his argument that the fees paid were nonrefundable fees, which under Reguli, were earned upon receipt. The State argued that under Reguli, retainer fees are refundable unless stated otherwise in an agreement signed by the client, and Defendant’s Attorney-Client Litigation agreements did not include this language. The trial court denied the motion to dismiss.7 C. Motion to Dismiss on Double Jeopardy Grounds On October 15, 2021, the trial court denied Defendant’s motion to dismiss four counts of falsely holding oneself out as a lawyer on double jeopardy grounds because the evidence presented was not “amenable to a Blockburger8 [a]nalysis because this [c]ourt cannot determine what charges or what allegations . . . [D]efendant was convicted of in the Board of Professional Responsibility to compare with the charges or the indictments[.]” The trial court concluded that the convicting document that required review under Blockburger was the plea agreement, which was not before the court at that hearing. 7 The hearing transcript mentioned a hearing from June/July 2019, but the record does not include a transcript of that hearing. 8 When analyzing double jeopardy issues, the appropriate two-part test is set out in Blockburger v. United States, 284 U.S. 299 (1932). -8- Thereafter, on October 20, 2021, Defendant filed a motion to reconsider the trial court’s denial of his motion to dismiss. Defendant attached to his motion a copy of his BPR plea agreement and argued that counts twenty (falsely holding himself out as a lawyer to Wanda Kelley), twenty-one (theft from Ms. Kelley), twenty-two (falsely holding himself out as a lawyer to Lisa Smelser), and twenty-three (theft from Ms. Smelser) in case No. 2017-CR-548 should be dismissed as violating double jeopardy protections. He asserted that these counts were identical to the criminal contempt charges to which Defendant pled guilty to in front of the BPR. According to the plea agreement, Defendant pled nolo contendere in 2018 to two counts of criminal contempt before the BPR. The plea agreement stated that those criminal contempt convictions were predicated on Defendant’s “undertaking the representation of Lisa Smelser in a wrongful termination action and accepting a $4,500 cashier’s check on November 22, 2016,” and “undertaking the representation of Wanda Kelley in a wrongful termination action, executing an Attorney-Client Litigation Agreement and accepting $4,500 in cash on November 7, 2016.” The trial court considered Defendant’s motion immediately before trial on November 1, 2021, noting that the appropriate analysis was in accordance with the two- step Blockburger approach. The court stated that the “[f]irst step of the Blockburger test is the threshold question of whether the convictions arise from the same act or transaction[,]” and the second is whether “each offense includes an element that the other does not.” The trial court concluded that the elements of theft, as indicted in counts twenty-one and twenty-three, were “completely different” from the elements of criminal contempt in the plea agreement. Therefore, counts twenty-one and twenty-three did not violate double jeopardy. Regarding falsely holding himself out as a lawyer to Ms. Smelser in count twenty-two, the trial court found that the dates in the indictment were different from the dates in the plea agreement. Thus, count twenty-two did not violate double jeopardy. The trial court found that count twenty, holding himself out as a lawyer to Ms. Kelley, was “in violation of the double jeopardy provisions of our constitution. You’ve got the same date. You’ve got the same conduct. And my ruling is [c]ount [twenty] will be dismissed. D. Motion to Allow Evidence of Delayed Paychecks by Defendant’s Employees Prior to trial, the State filed a motion to allow evidence that Defendant’s employees had delayed paychecks. On September 17, 2021, the trial court entered an order stating in relevant part: “[f]or reasons stated on the record, the State’s motion is taken under advisement and there will need to [be] a hearing outside the presence of the jury before these matters are addressed.” Although it appears the trial court heard argument on this motion on September 8, 2021, neither the motion nor the transcript of the hearing on this motion are included in the record on appeal. -9- During trial on November 4, 2021, the trial court held a jury-out hearing to consider whether to allow testimony from Defendant’s prior employees regarding “bounced and delayed paychecks.” The State argued that the employees should be “allowed to say that there were issues with their checks clearing and for the bank people to say that there were lots of issues with that.” Defendant responded that there were many witnesses and that “the bank statements speak for themselves.” The trial court held: [Defendant], we’ve kind of covered that and I put that off until we got closer to trial so I could know a little bit about what’s happened. Now, evidence has been pretty substantial here about negative balances and kind of walking the line there on the accounts. One of the arguments or a couple of the arguments would be motive and intent, and that would go to show not a propensity for violating the law, but as an element of proof for the underlying offenses. * * * . . . I’ve got to follow the Rules of Evidence, and my ruling stands. The State can call any witnesses they want to, and when it comes to [Defendant], if you want to call witnesses and the testimony is admissible under the Rule of Law, we’ll do it, so I will allow the testimony for those reasons. E. Motion to Exclude Testimony of Bank Employees On October 22, 2021, Defendant filed a motion in limine to exclude the testimony of Volunteer Bank employees Jimmy Overton and Alisha Matthews and testimony from the custodian of records for Pinnacle Bank. He argued that the parties had stipulated to the admission of his bank records, and the State was calling numerous witnesses to testify, thereby “making their testimony irrelevant, confusing, and a waste of time.” Before trial on November 1, 2021, Defendant reiterated his position that the testimony would be irrelevant and a “waste of time” because of his stipulation to the admission of the bank records. The State countered that a stipulation did not limit the presentation of its case, and the testimony would not be redundant because the witnesses would also testify about personal interactions with Defendant. Defendant responded that they “might need to voir dire each of [the witnesses].” The trial court refused this request and denied Defendant’s motion. G. Motion to Exclude Health Conditions of the Victims’ Family Members Defendant moved to exclude evidence at trial concerning the health conditions of Cathy Brown’s9 nephew, who was paralyzed and ultimately passed away, and Mario 9 Ms. Brown was a victim in Defendant’s Davidson County case. - 10 - Herrera’s mother. Mr. Herrera indicated in text messages exchanged with Defendant that he needed the money from the sale of his home for his mother who was ill. The State argued that the information was relevant, probative, and not overly prejudicial because it was one of the reasons that Mr. Herrera needed his money, which was supposed to be held in trust by Defendant. Ms. Brown had conversations with Defendant that she needed money from the sale of a home, also supposed to be held in trust by Defendant, for her nephew and that the money was needed quickly. Defendant argued that the evidence had no relevance because it did not prove any elements of the theft charge. He further asserted that the evidence “just invokes prejudice, sympathy, things that don’t really need to be in the jury’s analysis as to whether or not there was a theft.” The trial court disagreed and concluded: You know, one of the things about a jury trial, it involves humanity. It involves, you know, what happened. It involves facts. We just can’t take a count at a time, this happened, he didn’t do it; this happened, he said he was an attorney and he wasn’t. You know, we’ve got to deal with humanity, and this goes to intent. If somebody is telling you that they need this money to take care of a nephew, that goes - - you know, it’s prejudicial. And I’m sorry that it’s prejudicial, but most proof in a criminal trial is prejudicial. I find that the probative value outweighs the prejudicial effect on both of these, and these motions will be denied. Trial Doug Bergeron and Russell Willis, attorneys with the BPR, testified that the Rules of Professional Responsibility govern the ethical obligations of attorneys, including trust accounts. Mr. Bergeron explained that an attorney often holds another person’s money as a “fiduciary,” and there are a number of rules that are applicable to that practice. He testified that: “[a]s a fiduciary, you have certain obligations. You have to handle that property or money in the best interest of the person whose property or money it is,” “at all times.” He further explained that the money is usually held in one of two types of trust accounts: a regular trust account and an IOLTA account, which is an Interest On Lawyers’ Trust Accounts. Mr. Bergeron testified that an IOLTA is “for short-term placement of funds, whereas a trust account separately would be for very large amounts of money sitting for very long periods of time.” He explained that attorney fees that have not yet been earned and prepaid discretionary costs, such as in a contingency case, are the types of funds that go into a trust account until the work is performed and the expenses are incurred. Mr. - 11 - Bergeron testified that “any other funds received from clients or third parties to be held on behalf of the client or third party,” such as a settlement from a car accident case, “would be something that would have to go in a trust account until it was disbursed.” Mr. Bergeron testified that a client’s funds cannot be co-mingled with an attorney’s funds in a trust account. He said: “[i]f you earn funds, you have to remove them from a trust account.” Mr. Bergeron also identified the types of fees that an attorney may charge, which include contingency fees, hourly fees, refundable fees, and nonrefundable fees. He explained that any refundable fee is required to go into a trust account and not the attorney’s personal account or firm’s account until the money is earned. Mr. Bergeron testified that it would be improper for an attorney to deposit a refundable fee directly into an operating account instead of an IOLTA account. Attorneys are required to provide thorough billing statements, evidence that work on a case was completed, before moving portions of a refundable fee into an operating account. Mr. Bergeron explained that for a retainer fee to be nonrefundable, “[i]t has to be plainly stated in writing.” On cross-examination, Mr. Bergeron agreed that from the BPR’s perspective, a violation of a Rule of Professional Conduct is not a crime. Mr. Willis testified that he was the lawyer assigned to prosecute the disciplinary complaints against Defendant. He said that Defendant’s license to practice law was temporarily suspended on September 9, 2016, effective immediately. Pursuant to that suspension, Defendant was not to accept any new clients, and within thirty days, he was required to have stopped practicing law and to have withdrawn from all his cases. Defendant was also required to file a motion with the trial court to withdraw from representation or to file a notice of substitute counsel in his cases. It was also mandatory for Defendant to inform his clients and opposing counsel of his suspension. For existing clients, Defendant was required to send a certified letter, return receipt requested, informing them that he had been temporarily suspended from the practice of law and could no longer represent them. He was also required to return their case files and any unearned fees. Mr. Willis testified that Defendant was required to be “upfront” with his clients by telling them that he was suspended and that he could not provide any legal advice except to advise them to hire a new attorney. He said that Defendant was prohibited from presenting any “indicia of a lawyer,” meaning that Defendant could not “look like,” “sound like,” or “act like a lawyer.” In the BPR proceedings regarding Wanda Kelley and Lisa Smelser, Defendant did not contest the allegation that he continued practicing law without a license. He admitted before the BPR to violating certain rules and that he owed $108,077.08 to Kevin Dycus, $24,377.52 to Rosa Ponce, and $4,500 each to Bethany Stollar, Yvonne Prather, Robert Brown, and Nancy Whitman. - 12 - Erin Roach, a loan officer with Volunteer State Bank, testified that Defendant had three firm checking accounts with the bank. She explained that the signature cards for the accounts indicated that Defendant was the owner and “the presumption is that he’s the one who actually controls the funds.” There were also other individuals who had “signatory access.” Ms. Roach explained that “NSF” in bank records means “non-sufficient funds[,]” and “NSF/uncollected” means that the “account was charged back and the bank was unable to collect those funds.” She also said that “OD” is an overdraft, and a “returned item fee” means that a “check or transaction tried to clear the account and we chose not to pay it so we returned the item and did not pay it.” As for a “charge back[,]” Ms. Roach testified that “means a check was deposited into the account and the funds were not collected at the other bank and so we charged those funds back to the account to recoup them.” Ms. Roach testified that Defendant’s accounts were “regularly negative” which meant that he went below his balance “once a week, if not more.” Ms. Roach noted that because it was usually difficult to contact Defendant, branch manager Becky Rogers regularly attempted to contact Defendant and “Gloria” by email to collect funds to make the accounts “positive.” She said that Defendant eventually brought money in to make the accounts positive, sometimes after numerous attempts to contact him. Ms. Roach testified that in 2015 and 2016, Defendant’s loan payments were constantly late. She said, “After a while, it got to the point where the guarantor - - which just means an additional signer on the loan - - had to supplement some of the payments, and then [Defendant] just stopped paying altogether and the guarantor had to take over completely.” Ms. Roach testified that Volunteer State Bank ended its financial relationship with Defendant after his firm “operating” account had been negative for forty-five days. The bank eventually filed a lawsuit which resulted in a judgment that Defendant later paid. Ms. Roach testified that Defendant’s firm’s accounts had a total of $31,940 in NSF, NSF/uncollected charges, and returned item fees in a three-year period and that his personal accounts incurred an additional $10,000 in fees. She also noted that Defendant’s employees regularly had issues with cashing their paychecks due to insufficient funds. Jimmy Overton, Vice President of Loss Mitigation at Volunteer State Bank, testified that when Defendant’s accounts were referred to him because they were overdrawn, he would attempt to reach Defendant by phone. He said, “[a] lot of times I couldn’t get him, but I tried to reach him on the phone as many times as I could. I’ve texted him several times, called him on the phone to try to communicate with him.” Mr. Overton testified that after the bank ended its financial relationship with Defendant, on behalf of the bank, Mr. Overton obtained a judgment for $8,372.79 for an account that was overdrawn, which Defendant paid. Becky Rogers was previously employed by Volunteer State Bank as the branch manager of the Hendersonville location. When any of Defendant’s accounts were overdrawn and needed a deposit, which was a common issue with the accounts, she emailed - 13 - Defendant about bringing in funds. On cross-examination, Ms. Rogers testified that after she contacted Defendant, he usually brought a deposit to cover the negative balance in his accounts. Sometimes it would take a few days, and one email she sent to Defendant indicated that one of his accounts had been overdrawn for twenty-six days. She agreed that due to regulatory changes in banking, Defendant’s relationship with the bank changed because the bank was no longer allowed to “float” small business like it had in the past. Mary Jane Isham, a Senior Vice President at Pinnacle Bank, testified that Defendant had a personal and firm checking account and a line of credit at Pinnacle Bank that were opened in “probably 2014 to 2016.” She said that his firm’s account was frequently overdrawn, “[a]lmost every day or every Friday whenever payday was[,]” and “his employees were trying to get their payroll checks paid every week and it was overdrawn.” Ms. Isham further testified: “we tried to pay the checks that we could pay, but not all the employees would get paid at some periods. Some might and all might not. It just depended on what monies or funds were in the bank.” She said that Defendant made the banking decisions on his accounts, and she did not interact with anyone else. Ms. Isham testified that Defendant also opened a trust account for an estate for which he had been appointed as executor of the estate. She said that as executor, Defendant had the authority to transfer money out of the account. She noted that there were numerous transfers out of the account into two of Defendant’s Pinnacle checking accounts. Ms. Isham testified that Defendant’s relationship with the bank ended when they asked him to leave because there was “turmoil” every pay period. “It involved our entire office as to who we could pay and who we couldn’t pay[,] and it was very time-consuming.” She said that the total amount of fees charged to Defendant’s accounts by Pinnacle from December 2015 through March 2016 was $11,459, which was highly unusual. Ms. Isham testified that Defendant’s unsecured line of credit at the bank was $100,000, and it was ultimately “charged off” and never paid back. On cross-examination, Ms. Isham agreed that Defendant was contacted when there was a problem with payroll checks, and it was corrected “[m]ost of the time.” She reiterated that this problem occurred on a weekly basis. Patricia Elliott was previously employed as the Financial Center Manager at Simmons Bank. She said that Defendant first opened accounts at the bank in March of 2016, which included a firm’s operating account, an IOLTA account, and three personal accounts. She noted that the Tennessee Bar Foundation was also listed on the IOLTA account and thus would have received notifications of any overdrafts. Ms. Elliott testified that on December 8, 2016, the bank sent Defendant a letter notifying him that his accounts would be closed on December 16, 2016, due to the “unsatisfactory handling of his accounts.” She said that checks were frequently returned on the firm’s operating account because it was overdrawn, and Defendant’s employees began having difficulty getting their paychecks cashed each week. - 14 - On cross-examination, Ms. Elliott agreed that the bank began placing a temporary hold on a portion of some of the larger checks Defendant deposited for them to clear the bank. On redirect examination, Ms. Elliott agreed that in November 2016, Defendant’s IOLTA account was $4.09 overdrawn and a check written by Defendant for $230,064.09 on the account was returned for insufficient funds. She noted that Defendant had previously deposited a check in the account for that same amount on August 15, 2016. Michael Kevin Dycus – Theft of Property Greater Than $60,000 Teena Vincent testified that she had been a licensed attorney for twenty-two years and primarily practiced probate law. She testified that when she is probating an estate, she “open[s] a bank account in the estate of the decedent, and then I operate out of that, specifically for uses of that estate.” The estate has a separate “estate trust account, because only monies from that estate are deposited, only checks written from that estate account applies to that estate. You can’t co[-]mingle the - - the estates, they have to be separate.” She said that an attorney’s own money cannot be co-mingled with that of the estate. Ms. Vincent testified that she was appointed as the “administrator ad litem” for the Estate of Brenda Ingram in 2008. Defendant filed a notice of appearance in 2013 indicating that he represented Kevin Dycus, the father and guardian of G.D., Ms. Ingram’s minor son and an heir of her estate. In closing Ms. Ingram’s estate, Ms. Vincent prepared the “final receipt and release” for the funds in the estate and issued a check for $108,077.08, payable to Michael Kevin Dycus for G.D. That check was released to Defendant on March 14, 2014. Michael Kevin Dycus testified that after discovering Ms. Ingram had a $180,000 life insurance policy at the time of her death, with her estate as the beneficiary, he initially paid Defendant, a high school friend, $2,500 to represent him and G.D. with regard to the estate. Mr. Dycus and Ms. Ingram were divorced and shared joint custody of G.D. at the time of her death, and she had been married to her current husband for one and one-half years. Mr. Dycus testified that Ms. Vincent had shown him “some paper with bills, including funeral bills and various bills that the estate owed.” At that point, it was estimated that G.D. would receive seventy-five percent of Ms. Ingram’s estate. Mr. Dycus testified that Defendant advised him “that that figure should be closer to 90 percent.” Mr. Dycus testified that the $2,500 fee that he initially paid to Defendant was “to run an ad in the paper to notify [Ms. Ingram’s] husband that we were pursuing additional funds [from the life insurance policy]. [Defendant] said that was part of the law, and he said the rest of it would - - you know, would be his fee.” They never discussed Defendant receiving a portion of G.D.’s inheritance. Mr. Dycus testified that G.D. was appointed a guardian, and pursuant to the court order establishing the guardianship for the purposes of receiving the funds on behalf of G.D., no money was to be spent nor any change in - 15 - investments made from G.D.’s funds until a property management plan had been approved; any disbursements had to be approved by the court. Mr. Dycus testified that after Ms. Ingram’s estate was settled, the insurance company wrote a check in the amount of $108,077.08 payable to “Michael Kevin Dycus for [G.D.].” Mr. Dycus endorsed the check and gave it to Defendant. Mr. Dycus explained: So I wanted it - - a judge to put it in kind of a semi-trust, until [G.D.] was either 21 or 25, to be used for college. Or at a later date, like, 21 if you’re out of college, 25 if you’re not, and you can’t touch the fund without my consent, just - - that’s it. I wanted the funds to go [to] an investment group. I needed a judge to court order that, and so I signed the check over to [Defendant]. Mr. Dycus testified that Defendant was aware of the plans for the money, and he and Defendant never discussed Defendant charging a large fee or taking one third of the funds. He said Defendant “explained that he simply needed an investment plan from Edward Jones, and we’d take that to the judge, and the judge would sign it.” Based on his conversations with Defendant, Mr. Dycus was hoping that the process would take a few months to complete. Mr. Dycus testified that he communicated with Defendant on a regular basis over the two years following the receipt of the insurance check, but Defendant did not establish or complete an investment plan for G.D. to file with the court. When asked what Defendant told him about moving the funds into the court supervised account, Mr. Dycus testified: Generally that the case had been postponed. “I got called to a hearing out of town, going to have to postpone it again.” I heard several times that. You know, “Well, now the money has changed a little bit since it accrues a little bit [of] money in my” - - in his attorney trust account. “I need Edward Jones to send me a new plan. It’s got to be down to the penny.” Text messages exchanged between Mr. Dycus and Defendant were admitted at trial. Various court dates were discussed in the messages, but no hearing was ever held. At one point, Mr. Dycus received an approved management plan directly from his financial advisor at Edward Jones, told Defendant that he needed a court date to release the funds, and requested that he and Defendant meet to discuss the plan. However, Defendant repeatedly postponed the meeting and never set a date for a hearing. Mr. Dycus’s financial advisor at Edward Jones indicated that Defendant never gave her the information she needed to submit a plan to the judge. - 16 - Defendant denied receiving a plan from Mr. Dycus’s advisor at Edward Jones. He also claimed to have left messages for the advisor. In September 2015, Defendant told Mr. Dycus: “I got it all done. You don’t have to come in. It’s taken care of.” Mr. Dycus then assumed that “we got the court order from the judge signed and that [Defendant] could now release the money to Edward Jones.” However, Edward Jones never received any documentation from the court or funds from Defendant. Defendant later sent Mr. Dycus unsigned documents that were supposedly filed with the court. In January 2016, Defendant assured Mr. Dycus that G.D.’s money was still safe in Defendant’s firm’s trust account, and he provided a printout showing the amount of money in the account. Defendant never mentioned taking additional fees out of the funds. In August 2016, Mr. Dycus learned that Defendant had not yet filed a motion to release G.D.’s money. Mr. Dycus eventually enrolled G.D. in a rehabilitation program and needed some of G.D.’s funds to pay for it. Defendant sent Mr. Dycus a screenshot of his firm’s trust account showing a balance of $230,000 and noted that not all of the money in the account belonged to G.D. He indicated that he would get the money to Mr. Dycus the following day. When Mr. Dycus found out Defendant wrote a check directly to the rehabilitation center, Mr. Dycus informed Defendant that he had already paid the center and needed the check to be payable to him for reimbursement. However, Defendant sent the rehabilitation center the check and after it was deposited, the rehabilitation center contacted Mr. Dycus to let him know Defendant’s check did not clear the bank. In December 2016, Mr. Dycus was informed by his Edward Jones representative that Defendant’s law license had been suspended and that there were lawsuits pending against Defendant. Mr. Dycus and Defendant exchanged numerous text messages in which Mr. Dycus asked Defendant to contact someone at Edward Jones about disbursing G.D.’s funds. Mr. Dycus was supposed to receive a check for $97,000, the remaining balance of G.D.’s trust fund, less the amount subtracted for the cost of the rehabilitation center. Mr. Dycus became concerned about receiving this amount after the check for the rehabilitation center did not clear; however, Defendant assured him that the check was good. Mr. Dycus stopped hearing from Defendant after January 2017, and he never received any of the funds owed to G.D. Estate of Jane Denney – Theft of Property Greater Than $60,000 Defendant was appointed as executor of Jane Denney’s estate. Ms. Denney passed away in February 2015, and her beneficiaries included Elizabeth Brown, Sheila Andrews, A.B. (a minor), and Defendant’s stepfather Paul Moore. The estate consisted of Ms. Denney’s home, jewelry, coins, guns, and a van, and Defendant was responsible for the sale of the home and distribution of the personal property. In his fiduciary capacity as executor of the estate, Defendant received a check for $119,941.39 from the sale of Ms. Denney’s home, which he deposited into a separate trust account on October 8, 2015. At some point, Defendant provided a final accounting and distribution document to the - 17 - beneficiaries concerning the distribution of Ms. Denney’s estate, which they signed, indicating the amount of personal property each beneficiary had received and the amount of money to be distributed to each of them from the estate. Thereafter, Defendant made a series of transactions from the trust account distributing funds into his firm’s operating account and other trust accounts, so that by December 18, 2015, the balance of the account was $2.82. Ms. Andrews, A.B.’s mother Darlene Batey, and Mr. Moore all testified that they did not authorize any of the transactions, and none of the funds from Ms. Denney’s estate were ever distributed to them. Defendant indicated to some of the beneficiaries that he was waiting for the “trustee” to release the funds from the estate account. Mark Smith, the Clerk and Master for the Sumner County Chancery Court, testified that Ms. Denney had a will at the time of her death, and Defendant was named as the executor. A petition for probate was filed on July 7, 2015, and a hearing took place on August 25, 2015. An order was entered and signed by the judge on August 26, 2015, which contained the following notation: “net funds derived from the sale of the real property are to be held in the estate account and not disbursed without an order from the Court[.]” Mr. Smith also noted that Defendant signed an affidavit and swore that he would “honestly and faithfully execute the duties of the executor” of Ms. Denney’s estate “according to the laws of Tennessee to the best of my knowledge and ability[.]” Mr. Smith testified that neither Defendant nor anyone else requested permission or was granted authority to make any distribution of the funds from the sale of Ms. Denney’s property. He noted that Ms. Denney’s will excused a final accounting by the executor. Kenneth Floyd Sutton – Theft of Property Greater Than $10,000 but Less Than $60,000 Kenneth Floyd Sutton hired Defendant to represent him in a child support case, and paid Defendant a retainer fee of $1,500 in cash on November 26, 2013. Mr. Sutton testified that the case was not very complicated and involved child support arrearages for a child who Mr. Sutton was unaware of until the child was nearly eighteen years old. The child’s mother was seeking a large sum of money for the arrearages. Mr. Sutton was initially happy with Defendant’s work. Mr. Sutton later wrote Defendant a check in the amount of $941 to reimburse Defendant for a fee Defendant had paid on Mr. Sutton’s behalf. On June 15, 2015, Mr. Sutton wrote a check payable for $4,000 which he understood would go into an “escrow account” and remain there until it was determined if Mr. Sutton was required to pay child support arrearages, in which event the funds would be applied to the child support awarded. The money would be returned to Mr. Sutton if he was not required to pay child support. Mr. Sutton wrote “CSA” on the memo line of the check, which meant “[c]hild support arrearages.” Mr. Sutton did not give the money to Defendant for personal use. Approximately one year later, Defendant told Mr. Sutton that an additional $12,587 was needed in his account to pay child support arrearages. Mr. Sutton believed the amount - 18 - to be accurate because he had received a letter from the judge specifying that amount. Defendant told Mr. Sutton to bring the amount in cash or a money order because a personal check would not clear the bank in time. Mr. Sutton gave Defendant $12,587 in cash and received a receipt stating that the money was for child support arrearages. Defendant never told Mr. Sutton that amount was for his fee. On that same date, Defendant deposited $12,000 into his personal bank account he shared with his wife, and that amount was then withdrawn from his personal account to make a credit card payment. Mr. Sutton testified that Defendant did not have his consent to use his money for Defendant’s personal expenses. Mr. Sutton testified that his child support case was eventually appealed and remanded to the trial court. Another attorney from Defendant’s firm represented Mr. Sutton on appeal. On remand, the trial court found that Mr. Sutton owed approximately $12,000 in child support arrearages, the amount Mr. Sutton had previously given Defendant to pay the arrearages. Mr. Sutton then hired a second attorney to prove that he had already paid that amount. Mr. Sutton testified that he gave Defendant more than $16,000 which was never returned to him. To Mr. Sutton’s knowledge, Defendant only made one payment of $941 on Mr. Sutton’s behalf. Mr. Sutton never received a bill from Defendant for his services. Rosa Ponce - Theft of Property Greater Than $10,000 but Less Than $60,000 Rosa Ponce hired Defendant in 2012 to represent her in an employment dispute with the Clarksville Montogomery County Community Action Agency, Head Start Department (“Head Start”) and paid him $4,500 for his services. Ms. Ponce was eventually fired from her job and filed for unemployment, which was initially denied but later approved after Defendant helped her with an appeal. She had started a complaint on her own with the Equal Employment Opportunity Commission (“EEOC”), and after Ms. Ponce gave Defendant her employment-related paperwork, Defendant made “some adjustments” to her claim to make it stronger. Ms. Ponce later received a “right to sue” letter from the EEOC. She worked with an attorney named Jedidiah in Defendant’s office who “made it seem like we didn’t have a strong case and that we should think about settling.” She told him to “go ahead and figure out a settlement.” They ultimately agreed to a settlement, and she reviewed a settlement agreement at Defendant’s office. Ms. Ponce did not know the settlement had been completed until she began publicly speaking out about her case and asking Montgomery County officials for her money. She then received a call from someone at Defendant’s office instructing her that the settlement agreement prohibited her from speaking publicly about the lawsuit. Ms. Ponce spoke with Defendant about that issue, but he did not mention that he had received a settlement check. On March 3, 2015, Head Start wrote a check payable to Ms. Ponce in the amount of $14,694.14, which Defendant received and signed Ms. Ponce’s name as her attorney. He then deposited the settlement check into his firm’s operating account at Pinnacle Bank - 19 - without informing Ms. Ponce he had received the check. He also received a check payable to his firm in the amount of $15,622.48. In January or February of 2016, Ms. Ponce received a W-2 statement from Head Start for 2015 showing she received wages, tips or other compensation in the amount of $24,377.52. She cried upon receipt because that “confirmed that there was a settlement.” Her “only assumption was to think that [Defendant] had [the money] and just didn’t give it to [her].” Ms. Ponce directed all future communications about the settlement to the BPR. Ms. Ponce lived at the same address from the time she retained Defendant to represent her until Defendant’s trial, and she never had any difficulty receiving other mail from the EEOC concerning her case. She testified that she did not give Defendant permission to deposit the money into his account, and she never received any of her money. Defendant admitted that he owed Ms. Ponce money. On cross-examination, Ms. Ponce agreed the settlement that she signed with Head Start contained a “non-disparagement clause” and that she violated that clause by emailing numerous individuals, including county commissioners, about her case. Ms. Ponce asserted that she was not aware of the clause, even though she had signed the agreement, because she had never received a copy of the settlement signed by Head Start and was “under the assumption that things were still being worked out and that I was free to speak my mind and say whatever I wanted[.]” She said that she had asked Defendant when she signed the agreement in February of 2015 if she could speak out against Head Start, and he said that she could. Ms. Ponce testified: “It was my mistake to not read the agreement because I trusted [Defendant] as my lawyer.” Thereafter, Head Start requested that the settlement money be returned to them because Ms. Ponce had violated the settlement agreement by speaking out. On redirect examination, Ms. Ponce testified that she contacted Defendant after receiving the W-2. Defendant never mentioned the settlement amount and replied: I have reached out to their attorney about withdrawing their complaint or W- 2, either of which should fix the tax issue. I have had multiple phone conversations with them about giving up their intent on suing you for breach of the settlement agreement. I anticipate having an answer from them no later than next Wednesday as to whether they are going to continue pursuing this. We will get this wrapped up before your tax deadline. As for the W-2, I had anticipated you receiving a 1099 instead of a W-2, but I’ll get clarification on that when I talk to them. Roger Brown - Theft of Property Greater Than $2,500 but Less than $10,000 Roger Brown worked as a dispatcher for Robert Orr Sysco. After his employment was terminated, he noticed that the company was firing employees once they turned sixty years old. He contacted Defendant on December 13, 2013, which was a Friday afternoon, about a potential age discrimination lawsuit because he had seen Defendant on television - 20 - commercials. Defendant told Mr. Brown that his claim was valid and to bring payment to Defendant’s office that night so that Defendant could file the lawsuit the following morning, which was Saturday. Mr. Brown informed Defendant that it would take some time to get to Defendant’s office in Hendersonville because it was late, and traffic was bad, but Defendant said that he would wait. Mr. Brown testified that he and Defendant had a brief meeting, and he provided Defendant with documentation from his termination. He and Defendant then entered into an Attorney-Client Litigation Agreement pursuant to which Mr. Brown paid Defendant $4,500 by check for his legal services. The agreement did not state that the fee was nonrefundable. Mr. Brown asked Defendant if the money was for a retainer fee, and Defendant directed him to write “admin remedy fee” on the memo line. Defendant then deposited the check into his Volunteer State Bank firm’s operating account on December 16, 2013, which at that time had a negative balance. Defendant did not tell Mr. Brown that he was going to immediately spend the money, nor did he say that he needed to deposit it directly into his firm’s operating account to apply to his negative balance. Mr. Brown testified that he did not give Defendant permission to take his money and spend it before it was earned. Mr. Brown testified that he did not talk with Defendant very often after their initial meeting. At that meeting, Defendant told Mr. Brown that he “could contact a lady named Nicole” who worked at Defendant’s office to discuss the case. However, when Mr. Brown contacted Nicole, she would not give him any information about his case and said that he needed to speak with Defendant. Mr. Brown testified: Every few months or something, I’d get a - - you know, I’d finally get through to him, and he’d tell me he was real busy, he was out of state working other cases and everything, and it just kept on and on, you know. He would tell me all the lawyers - - or all the judges retired at the same time, and so he was having to wait, you know, for them. And then he said that he did get me - - there was another judge that was going to take it, but he was waiting - - he was getting ready to retire, so he was holding onto it until he got - - you know, he retired, then he could just pass it on to somebody else. Mr. Brown detailed his attempts to contact Defendant from August 17, 2015, until March 28, 2016. On March 28, 2016, Defendant finally responded that he would call Mr. Brown the following morning. Again, Defendant never called, and Mr. Brown texted him on March 31, April 6, and April 12, 2016, indicating that Defendant had failed to call him. Defendant finally responded on April 12, 2016, saying that he had not forgotten about Mr. Brown. Mr. Brown texted Defendant on June 3, 9, and 20, 2016, asking about his case, and Defendant responded on June 21, 2016, asking if Mr. Brown was free the following morning and to call him at 10:00 a.m. Mr. Brown called at 10:00, and Defendant texted that he was “on the other line.” Mr. Brown requested that Defendant return his call, but - 21 - Defendant never called back. Defendant then sent a text asking if Mr. Brown could meet on July 14, 2016, at 2:00 p.m. After that, Mr. Brown was unable to get in touch with Defendant, and Defendant sent a text on July 30, 2016, asking Mr. Brown if they were meeting that day. Mr. Brown agreed and said that they were supposed to meet at 9:00 a.m. Defendant responded that he might be “about ten minutes late[.]” Defendant later asked to move their appointment to the following morning or the next Saturday morning because he had been at the hospital most of the night with his daughter. Mr. Brown agreed to meet Defendant the following Saturday at 10:00 a.m. On October 31, 2016, Mr. Brown sent Defendant a text that read in part: I’m contacting you again because I am both tired and frustrated by the lack of information about my case. I was in your office on August 6th, and you promised me and my wife that you would send my paperwork by mail. That was almost three months ago. What is the next course of action? On November 2, 2016, Defendant responded: “Sorry for the delay. I didn’t know you hadn’t received it. On the way to you now. I’ll call you this afternoon.” However, Mr. Brown never received any legal documents from Defendant. He called Defendant on November 4, 2016, because he had seen information about Defendant’s suspension in a news article. Defendant answered the call and told Mr. Brown that it was “just a misunderstanding.” Mr. Brown testified that he never received any notice from Defendant in September or October 2016, that Defendant had been suspended from practicing law. Mr. Brown testified that he received “nothing” in exchange for the $4,500 that he paid Defendant “to represent [him] in [his] case.” Defendant never filed a complaint on his behalf. Defendant told Mr. Brown that there would be a deposition, but it never took place. Mr. Brown testified that Defendant once mentioned a class action lawsuit in Houston, Texas, but he told Mr. Brown that he did not need to join the case. Mr. Brown also never received an accounting from Defendant detailing how the $4,500 was spent. Bethany Stollar - Theft of Property Greater Than $2,500 but Less than $10,000 Bethany Stollar worked as a professor at Middle Tennessee State University for six years and was fired in May of 2014. She contacted Defendant to discuss her case, and he said that she “had a very good case.” Ms. Stollar signed an Attorney-Client Litigation Agreement with Defendant on May 16, 2014, and wrote him a check for the $4,500 retainer fee. She noted that her check was initially returned for insufficient funds because the money she had borrowed from her father was not yet in her checking account. Ms. Stollar wrote Defendant a second check, which he deposited into his firm’s operating account, which had a negative balance at the time. She thought that in exchange for the retainer fee, Defendant would “create a case” for her wrongful termination. She also noted that - 22 - Defendant told her that “he would take me on contingency and that the [$]4,500 was all I was going to pay him at that point.” Concerning Defendant’s representation, Ms. Stollar testified: I contacted [Defendant] multiple times to find out what we were doing because I had never experienced anything like this before. I was told that the judges were - - had retired - - most of the judges had retired and there was a huge backlog. That went on for about a year. The year after that, I - - I was under the understanding that we only had a year to file for the case. So after a year had passed, I was like, you know, “what are we doing,” you know, “Can you give me some information,” and there were just lots of excuses for why we hadn’t filed anything yet. Ms. Stollar mainly communicated with Defendant by email and text messages. On December 1, 2015, she texted Defendant indicating that she had emailed him the first week of September and was still waiting for some kind of update on her case. She also noted that her father wanted the money that he loaned her for the retainer fee repaid, and she did not have the funds to pay him. Defendant replied that he was preparing for the trial date and could try to schedule an early mediation date. He did not have an actual date at that time. At that point, Ms. Stollar thought Defendant had filed a lawsuit on her behalf, although she had not seen the actual pleading. Ms. Stollar continued texting Defendant requesting updates on her case. Sometimes he replied but did not give her any substantive information. She also called him multiple times, and someone answered one time and promised her that she would receive a call back “after that week was over.” On June 6, 2016, after calling Defendant multiple times, Ms. Stollar sent Defendant a text indicating that she had not heard from him or “Shelly” and asked if she needed to drive to his office to get some answers. Defendant then replied: “Sorry. I’m in downtown in deep depos. Promise I will call this afternoon.” On November 20, 2016, Defendant sent Ms. Stollar a link to a document that could only be accessed through “Dropbox.” Defendant did not tell her at the time that his law license was suspended. Ms. Stollar testified that she then asked Defendant for a case number for her lawsuit. The following day, she tried to call “Shelly,” but got no answer. Thereafter, Ms. Stollar sent the following text to Defendant: “Okay. Well, hmmm, I tried to call. No answer. I tried Shelly’s extension, no answer. I’ve tried to find a case number. Nada. Why can’t someone just tell me what’s going on?” Defendant replied: “Hold on.” Ms. Stollar testified that the Dropbox document referenced the Tennessee Board of Regents (“TBR”), and she called the board and learned that nothing had been filed with them on her behalf. She then texted Defendant stating that nothing had been filed with the - 23 - TBR, and Defendant responded, “That’s not correct. It’s in the system.” Ms. Stollar called the TBR, and texted Defendant the following message: “I called again today and spoke with Mickey Sheen. Absolutely nothing filed with them in your name or mine. Hey, I’m tired of the lies. Something needs to happen today or that’s it.” Ms. Stollar later sent Defendant a text message indicating that she had spoken with another attorney, Patrick Parker, and he would not take her case. She further said that she was still waiting to hear from Defendant. Ms. Stollar also sent Defendant an email when she learned of his suspension. Other than the Dropbox document, Ms. Stollar testified that she never received a complaint filed on her behalf by Defendant nor did she attend any depositions or participate in mediation. Ms. Stollar testified that she received “nothing” for the $4,500 retainer fee that she paid Defendant. It was not her “understanding” that the money would be deposited into Defendant’s firm’s operating account to be used immediately to pay his expenses. Ms. Stollar testified that she would not have given Defendant any money had she known that he was not going to file a lawsuit on her behalf. On cross-examination, Ms. Stollar agreed that there was some difficulty with Dropbox and that Defendant emailed her a signed copy of the complaint against the TBR that had been drafted on her behalf. She further agreed that she met with Defendant on July 7, 2014, to discuss her case. Robert Lussier - Theft of Property Greater Than $2,500 but Less than $10,000 Robert Lussier testified that he was a union trustee in 2015 and suspected that embezzlement was occurring because the union president and secretary refused him access to the “books.” He decided he needed an attorney, and a friend recommended Defendant. Mr. Lussier contacted Defendant’s office and later met with him. He hired Defendant to gain access to the union records and signed a “retainage agreement” with him on May 19, 2015, agreeing to pay a $4,500 retainer fee. Mr. Lussier paid the fee in cash and noted that the agreement did not state that the fee was nonrefundable. Defendant told him that “it would take a little while,” which did not “shock” Mr. Lussier because he was aware that the court system “is not the fastest beast in the world.” Mr. Lussier estimated that it would “take at least a few months” to get his case started. To Mr. Lussier’s knowledge, his case against the union never progressed. Mr. Lussier testified: After about three months of absolutely nothing happening, I started getting suspicious, and [Defendant] had informed [him] that his preferred means of communication was text messages because phone calls just weren’t working very well. And text messages was fine for me. But after about three months, I was starting to get suspicious that this case should have moved farther along - 24 - by now. I understood it was going to take some time, but something should have been done within the first three months. So I started saving all text messages. Mr. Lussier noted that it had been difficult to reach Defendant by phone which was very frustrating. Thereafter, Mr. Lussier repeatedly texted Defendant requesting updates and the status of his case, and he called Defendant and left some voice messages. He also asked if Defendant had completed the “paperwork” he had promised to file. Mr. Lussier explained that the paperwork he and Defendant had discussed was to “force the union to give [him] the documents” which was the “gist of the whole case.” He said that Defendant frequently failed to respond to the texts; however, in October 2015, Defendant indicated that he would file something with the court within a week. Mr. Lussier testified that by December 2015, despite his repeated inquiries, nothing had been done on his case. From January 2016 until April 2016, Mr. Lussier continued sending Defendant text messages requesting Defendant to contact him because he had not heard from anyone about the status of his case. In an April text, Mr. Lussier indicated that he may need to “call CAP” to file a complaint to get a response from Defendant. At that point, Defendant responded and claimed that he had “been on the road” and would have information for Mr. Lussier the following day and for Mr. Lussier to call Defendant’s cell phone at 10:00 a.m. Mr. Lussier called the following morning at 10:00, and Defendant did not answer. They eventually had a conversation, and Defendant indicated that he would soon file the complaint against the union. On May 19, 2016, Defendant told Mr. Lussier that the paperwork was ready and asked if they could meet the following week. Defendant scheduled a meeting with Mr. Lussier, and Mr. Lussier asked Defendant to email him a copy of the complaint to review before the meeting. Mr. Lussier testified: The reason for this is because in the phone calls, he would have me come down to the office supposedly to review this document that’s done. But every time I get there, it’s not done. And for me to go from where I was living all the way to Hendersonville to review and sign a document that’s not ready is getting ridiculous. It’s a pain, it’s a long trip out of my way, you know. Why am I wasting my time doing this? You know, better question is, why is he wasting his time making me come down there to do that? And he’s supposed to e-mail it to me, but he’s not. Beginning on May 21, 2016, Mr. Lussier repeatedly asked Defendant to email him a copy of the complaint, but he never received it, nor did he meet with Defendant. On December 6, 2016, Mr. Lussier learned that Defendant’s law license had been suspended. When Mr. Lussier asked Defendant if he ever had any intention of working on - 25 - his case, Defendant replied: “Yes. It has taken a little longer than expected. I am responding to your board complaint.” Mr. Lussier noted that he had filed a complaint with the BPR. He also requested that Defendant return the $4,500 retainer fee. Defendant then indicated that he thought Mr. Lussier wanted him to stop working on the case. Mr. Lussier testified that he never received any notification from Defendant stating that Defendant had been suspended from practicing law. Additionally, Mr. Lussier never received any invoices or billing from Defendant concerning work performed on Mr. Lussier’s case. On May 19, 2016, when Mr. Lussier paid Defendant $4,500 in cash, Defendant deposited $1,000 into his firm’s operating account at Pinnacle; the deposit raised the balance from negative $460 to positive $541.48. Mr. Lussier testified that he did not consent to Defendant spending his retainer fee before it was earned, and Defendant did not inform him that he would immediately spend it. When asked what he received for his $4,500 retainer fee, Mr. Lussier replied: “[t]o put it bluntly, I got a year of stalling and lip service.” He felt that Defendant could not “have used a whole lot of money” on his case, and he expected Defendant to return his money or at least the part Defendant had not earned. Mr. Lussier never received a refund of his retainer fee. On cross-examination, Mr. Lussier agreed it was his understanding that the most he would pay for Defendant’s representation would be $4,500 and that Defendant would not bill him any additional fees. Mr. Lussier further agreed that he gave Defendant a copy of the minutes and approximately hour-long audio recordings of each monthly union meeting Mr. Lussier attended, and that Mr. Lussier had ongoing problems with the union. Mr. Lussier acknowledged that he and Defendant had approximately five to six in-person meetings, and he provided Defendant with the name and phone number of his maintenance craft director. He was aware that Defendant contacted the director who said that they had a short conversation. Mr. Lussier found this surprising “because when [the director] starts talking, you cannot shut him up.” Yvonne Prather - Theft of Property Greater Than $2,500 but Less than $10,000 Yvonne Prather was previously employed as a professor at Austin Peay State University teaching in the Department of Communication, both undergraduate and graduate. She had previously contacted Defendant when she was up for a promotion in 2004 or 2005, but he was not accepting new clients. Ms. Prather contacted Defendant when she was up for a promotion again in 2006 or 2007 and had paid him a retainer; however, she received the promotion in 2007 and no longer needed Defendant’s assistance. Ms. Prather called and requested Defendant return her retainer fee, which he did “after several attempts.” Ms. Prather testified that she was up for promotion to “full professorship” in December 2015. Anticipating challenges with her promotion, she again decided to retain Defendant for legal services. She met with Defendant on December 4, 2015, and wrote - 26 - him a check for the $4,500 retainer fee, which Defendant deposited into his firm’s operating account later that day. She acknowledged that Defendant signed the Attorney- Client Litigation Agreement, but she did not. The agreement did not state that the retainer fee was nonrefundable. The day before Defendant deposited Ms. Prather’s check, the balance in his firm’s operating account was $416.75; after the deposit of her retainer fee, the balance was $3,482.26. Three days later, on December 7, 2015, Ms. Prather was promoted to a full professorship and thus did not need Defendant’s services. She testified that she communicated to Defendant that she no longer wanted him to pursue her case and that she called and sent emails and text messages to Defendant, but her efforts at communication were unsuccessful. On November 5, 2016, Ms. Prather asked Defendant about the status of the refund of her retainer fee. She sent a second message on November 13, 2016. She did not hear from Defendant or anyone in his office between December 2015 and November 2016, and she never received a refund of her retainer fee. She said that Defendant did not file a lawsuit on her behalf, and she did not attend any court hearings or mediation. Ms. Prather testified that she received “[a]bsolutely nothing” for the money that she paid to Defendant. On cross-examination, Ms. Prather agreed that her salary was also an issue when she hired Defendant in December 2015. She also acknowledged her understanding that she would not have to pay Defendant any more than $4,500 regardless of the amount of work done on her case. She never received a refund of her retainer fee or any portion thereof. Nancy Whitman - Theft of Property Greater Than $2,500 but Less than $10,000 Nancy Whitman was employed as the Executive Director of the Homesafe Domestic Violence Shelter (“Homesafe”) and sought legal services after she and a disabled coworker were notified on July 18, 2016, by email that they had been fired. Ms. Whitman testified that she left a message for Defendant, and she and her coworker went to the EEOC to file a complaint. However, Defendant returned her call and advised her not to file the complaint but to “come see him because time was of the essence.” She scheduled an appointment with Defendant on July 21, 2016. Ms. Whitman noted that she had contacted a total of five attorneys, including Defendant, about her case. Defendant was the only attorney who agreed to take her case. Ms. Whitman described the meeting she and her coworker had with Defendant on July 21: So we just had a discussion, kind of overview of what our case was and any of the issues that we wanted to bring forward. We talked about - - there were - 27 - kind of three different things that [Defendant] said that he would do. One would be to file a preservation of evidence letter with our former employer; Number 2, he was going to file with the Tennessee Human Rights Commission; and Number 3, that he ended - - we would end up going to court and that that would take about 90 days from beginning to end of that whole process. We had requested that . . . [Defendant’s] office communicate with us on a weekly basis so we kind of knew what was happening and wouldn’t be left in the dark, and there was an agreement for that to happen. Ms. Whitman testified that Defendant agreed to represent both her and her coworker for $4,500, and Ms. Whitman wrote a personal check for the entire fee. Both Ms. Whitman and her coworker signed an Attorney-Client Litigation Agreement with Defendant, but he did not sign them. The agreement did not state that the $4,500 retainer fee was nonrefundable. Defendant deposited Ms. Whitman’s check into his firm’s operating account that same day and immediately withdrew $500 in cash. Ms. Whitman testified concerning her attempts to contact Defendant by phone and email to obtain updates on her case. She said, “[s]ometimes e-mails were answered, sometimes they weren’t. Sometimes I called the office and left messages and no one got back to us.” On one occasion, Ms. Whitman called “every single extension” in Defendant’s office and “left a message for every single staff person in that office to get back to me and tell me what was happening because I was so frustrated and hadn’t heard anything from anyone.” On October 31, 2016, she learned that Defendant’s law license had been suspended, and he claimed that it “was just a small misunderstanding.” Defendant also told her that on November 2, 2016, she would receive a “copy of the case filing that was going to go to mediation.” She never received a copy of the filing. Ms. Whitman testified that she sent a certified letter to Defendant on November 15, 2016, terminating her agreement with him and requesting a refund of the $4,500 retainer fee. She recited the entire history of the case, including all meetings, phone calls, text messages, and email correspondence with Defendant. Ms. Whitman also noted in the termination letter that on October 21, 2016, she had received from Defendant a copy of a letter dated August 1, 2016, Defendant claimed had been sent to Homesafe for preservation of evidence. However, there was “no corresponding proof that it was certified return receipt and anyone had ever signed it - - received it.” She said that on October 14, 2016, it was determined during a conference call that “this was no longer [an] appropriate [case] to file.” Defendant was out of the office that day and did not participate in the conference call, but Ms. Whitman later called Defendant and spoke with him. The return receipt showed that Defendant’s office received Ms. Whitman’s termination letter on November 18, 2016. Ms. Whitman testified that Defendant never notified her verbally when they spoke, or by written notification, that his law license had been suspended. She never received a refund of her $4,500 retainer fee. - 28 - On cross-examination, Ms. Whitman acknowledged it was her understanding that Defendant would not bill her any amount over $4,500 for his representation. She said: “[i]t was my understanding that we would go to court, that there would be a filing with the Tennessee Human Rights Commission.” Ms. Whitman agreed that it appeared a letter was sent to Homesafe approximately eleven days after she signed the agreement with Defendant. Mario Hererra – Theft of Property Greater Than $10,000 but Less Than $60,000 and Falsely Holding Oneself Out as a Lawyer Defendant initially agreed to represent Mario Herrera during his divorce and post- divorce proceedings, but they did not discuss a fee. Mr. Herrera’s and his ex-wife’s home later sold for $121,000, and they had agreed to equally divide the proceeds. On December 16, 2014, the Sumner County Chancery Court Clerk and Master issued a check made payable to Mr. Herrera and Defendant for $59,969.11 for Mr. Herrera’s share of the proceeds from the sale of the home. Defendant told Mr. Herrera he would deposit the check for him and asked for his bank account number. However, Defendant did not deposit the check into Mr. Herrara’s account and instead wrote “Mario O. Herrera by attorney” on the check, signed his own name on the back of the check as an endorsement, and deposited the check into his firm’s trust account. Defendant then wrote a check out of his firm’s trust account for $54,269.11 with “Herrera Fee” written on the memo line and deposited that check into his firm’s operating account. Mr. Herrera did not authorize Defendant to take any money from the proceeds of the sale of the home. Mr. Herrera made attempts to contact Defendant about the money over the next several years, but still had not received it when he saw Defendant in court in 2016. At that time, Defendant agreed to help Mr. Herrera with a child support matter. Again, there was no discussion concerning legal fees. Mr. Herrera contacted Defendant again in 2019 for help with a child support issue. He said that he had received a letter from the State of Tennessee indicating that he owed $25,000 in child support. Defendant had told Mr. Herrera he should wait until both of his daughters turned eighteen before getting his money from the home sale “because the State is saying that - - that if you get your money right now, you’re going to run - - run with the money, you’re not going to pay your child support.” Mr. Herrerra identified text messages that he exchanged with Defendant on August 5, 2019, concerning the child support matter. He said that he and Defendant also had some phone conversations about the matter. Defendant never told Mr. Herrera that his law license had been suspended and that he could no longer represent Mr. Herrera. Defendant indicated that he was still working on Mr. Herrera’s case. Mr. Herrera testified that as of November 6, 2019, he still believed Defendant was a lawyer and was working on his case. When Mr. Herrera inquired about the status of the money from the sale of the home, Defendant claimed that he was “working on it” and blamed the court system for the delay. - 29 - He said Defendant “always mentioned a name” of a person which led Mr. Herrera to believe that the money was safe in an account. By February 2020, Mr. Herrera learned that Defendant no longer had any of his money. He testified that he and Defendant never discussed Defendant’s taking any of the money from the sale of Mr. Herrera’s home as a legal fee and Mr. Herrera never agreed to that arrangement. Mr. Herrera did agree that he was expecting to pay and would have paid Defendant a reasonable fee out of the proceeds from the sale of the home for his work if Mr. Herrera had been asked to do so. During one phone conversation, Defendant mentioned conducting an accounting of the money, but Mr. Herrera never received an accounting or any money from Defendant. Mr. Herrera resolved the child support matter on his own. Christopher Jay Ingrum testified that he represented Mr. Herrera’s ex-wife, Brenda Primeau, during their post-divorce proceedings. He asserted that when hired by a client, he placed the client’s money into a trust account before it was earned and then it went into an attorney or operating account after it was earned. Mr. Ingrum testified that the Herrera/Primeau case was not overly complicated; he charged Ms. Primeau a total of $4,468.27 in legal fees for his work. On behalf of Ms. Primeau, Mr. Ingrum received a check in the amount of $59,969.11 from the sale of the home. The check was payable to himself and Ms. Primeau; they both endorsed it, and Mr. Ingrum deposited the check into a trust account. The balance of his fee was taken from those proceeds, and he issued Ms. Primeau a check for the balance of $57,500.84 along with an itemized bill “show[ing] all of the professional services rendered by the attorneys and by the paralegals” and for “additional charges for things like copies, postage, things of that nature.” Lisa Smelser - Theft of Property Greater Than $2,500 but Less than $10,000 and Falsely Holding Oneself Out as a Lawyer Lisa Smelser testified that she contacted Defendant in November 2016 about a workplace issue, and Defendant agreed to proofread a document she planned to send to her employer. She and Defendant communicated about the issue, and Defendant answered her questions on how to proceed. Ms. Smelser then decided to hire Defendant to represent her, and she signed an Attorney-Client Litigation Agreement with him that did not state that the retainer fee was nonrefundable. Thereafter, on November 22, 2016, at Defendant’s request, Ms. Smelser brought him a cashier’s check for $4,500 for the retainer fee. On that same date, Defendant deposited $3,500 from the cashier’s check into his firm’s operating account and $500 into his personal account at Simmons Bank. Defendant’s firm’s operating account had a negative balance at the time of the deposit. Ms. Smelser later learned that Defendant had been suspended from practicing law. When she contacted him about the suspension, he claimed that it was “only temporary[,]” and that “Patrick” was helping with his cases until the suspension was lifted. Defendant - 30 - also told Ms. Smelser at that time that he would send a letter to her employer. Ms. Smelser contacted Defendant several days later and asked him to send her a copy of the document he sent to her employer. Ms. Smelser communicated exclusively with Defendant, and she contacted him on December 2, 2016, to inform him that she had not heard anything from her employer. Ms. Smelser testified that ultimately Defendant did not file the lawsuit that they had discussed, and he did not send her copies of any documents he claimed to have sent to her employer. She said that she received “[n]othing” in exchange for the $4,500 retainer fee that she paid Defendant, and she never received a refund of her money. Wanda Kelley - Theft of Property Greater Than $2,500 but Less than $10,000 and Falsely Holding Oneself Out as a Lawyer Wanda Kelley testified that she contacted Defendant about representing her in a potential discrimination case against her employer, and they met at his office on November 7, 2016. Defendant agreed to represent her and told her his fee was $4,500 in cash. Ms. Kelley told Defendant that she did not have that much cash but offered to go and withdraw the funds from her bank account. Defendant instructed her to withdraw the funds that day. Ms. Kelley testified that she had to withdraw the money from two different banks, and she got delayed in traffic on her way back to Defendant’s office. While she was driving, Defendant called and asked her whereabouts because she “was taking so long” to return. She said that the Attorney-Client Litigation Agreement with Defendant did not state that the retainer fee was nonrefundable. She paid him the $4,500 fee on November 7, 2016, and on November 10, 2016, Defendant deposited $4,400 into his firm’s operating account at Simmons Bank. The account had a negative balance at the time. Ms. Kelley testified that she met with Defendant one additional time after paying the retainer fee. After that, he either missed appointments with her or asked to reschedule. Ms. Kelley testified that Defendant told her that he would file a lawsuit for discrimination, backpay, and violation of the Family Medical Leave Act. However, he never filed any legal documents on her behalf, and she said that all she received in exchange for paying the retainer fee was “[d]epression” and “heartache.” Sharon Sullivan – Falsely Holding Oneself Out as a Lawyer Sharon Sullivan testified that in December 2013 she hired Defendant to represent her in an employment matter. Concerning the progress of his representation, Ms. Sullivan testified: “[w]ell, over the years until about January 2017, it was just me reaching out to him, trying to get information. Basically[,] nothing was done toward the lawsuit.” Ms. Sullivan noted that after October 9, 2016, the bulk of her communication with Defendant was by text message, which continued until January 26, 2017. Based on their communications, Ms. Sullivan thought Defendant was acting as her attorney and was in the process of “working a deal with [her] former employe[r]’s attorney for settlement[.]” She noted that Defendant agreed to meet with her on January 18, 2017, to discuss a - 31 - settlement, but the meeting never occurred. Ms. Sullivan continued communicating with Defendant by text message until she learned that Defendant’s law license had been suspended. She testified: “I had family members that had seen it on the news and questioned me about it, and I questioned [Defendant] and he said that it was not true.” Ms. Sullivan never received a certified letter or any other communication from Defendant advising her that his law license had been suspended and that he could no longer act as her attorney. She requested her case file, and Defendant eventually returned it to her. Danielle Means - Falsely Holding Oneself Out as a Lawyer Danielle Means testified that she hired Defendant to represent her in January 2013. The representation was still ongoing in 2016. Defendant never informed her that he could no longer represent her after his law license was suspended. Beginning November 3, 2016, Ms. Means said that she exchanged text messages with Defendant regarding a settlement of her case, and Defendant advised her that she could do an “e-signature” if she was in California at the time. Ms. Means testified that Defendant conveyed a settlement offer, but she did not know that he had been suspended from practicing law. When she asked Defendant if he was sending an agreement for her to sign, he asked if she sent her “W-9.” He then confirmed that he had received her tax document. Ms. Means expected her settlement to be complete once she sent the tax document. Ms. Means texted Defendant in January 2017 and asked if he had lied to her or if she had gotten a settlement that he failed to distribute to her. Defendant responded that there was a “settlement and that we ‘needed to finalize[.]’” He also offered advice on how to prevent defense counsel from learning that she had gone to a rehabilitation facility. Ms. Means testified that Defendant told her that “Patrick” was an attorney assisting with her case and that “Patrick” had discussions with opposing counsel about a settlement and that “Patrick” would return shortly. Ms. Means sent Defendant a Facebook message in April 2017 asking why she had received a bill from the court if her case had settled. Defendant responded that he did not know. At the time, she was still unaware that Defendant had been suspended from practicing law, and she considered him to be her attorney. Ms. Means testified that Defendant asked her to email him a copy of the bill and said that it could be the result of the “original nonsuit.” Defendant sent Ms. Means a message stating that he would ask “Patrick” about the issue and that “[w]e nonsuited the case and refiled it.” Defendant also said that the nonsuit occurred a “while back” and was a “procedural step” that did not change the case “at all.” Defendant messaged Ms. Means that “Patrick” was finalizing her settlement. When Ms. Means asked when the settlement would occur, Defendant replied that he was unsure but would make inquiries. Ms. Means testified that in July 2017 she learned that Defendant’s law license had been suspended, and she confronted him about it. She said that Patrick Parker successfully - 32 - resolved her case, but that Defendant had repeatedly communicated with her as her attorney after his suspension. Rachell Scott – Falsely Holding Oneself Out as a Lawyer Rachell Scott testified that in 2016, she hired Defendant to represent her in a lawsuit against her former employer. The agreement that she signed with Defendant indicated that she paid him a $4,500 retainer fee. She said that Defendant claimed to have filed the lawsuit, and she believed that her case was active based on Defendant’s representations to her. Ms. Scott testified that she exchanged phone calls and text messages with Defendant about her case in 2017, and he attempted to set up meetings with her. In January 2017, she learned that his law license had been suspended. Defendant claimed that it was “just a minor thing” that he would resolve by sending in “some paperwork.” When Ms. Scott further pressed Defendant about the suspension, he said that someone was helping him “knock some of these cases out” until his law license was reinstated. According to text messages, Ms. Scott and Defendant were to meet in January 2017. She texted Defendant that she was “looking through [her] records” and did not have “anything with [her] case number on it.” Ms. Scott asked Defendant if their meeting was still scheduled for 3:00 p.m. on January 10, 2017, and Defendant said he would “never make it” by that time. She texted Defendant that he needed to call her and that she needed answers. Ms. Scott testified that she never received a response from Defendant or any further communication about her case. Jinny Broughton - Falsely Holding Oneself Out as a Lawyer Jinny Broughton testified that she hired Defendant in August 2015 to represent her in an employment dispute. She testified that Defendant never filed a lawsuit on her behalf, did not give her any completed paperwork, and was “very hard” to contact. Ms. Broughton texted Defendant about her case on September 14, 2016, and he claimed that he was “incorporating” information into discovery. Ms. Broughton testified that in December 2016, she texted Defendant a screenshot of his order of suspension. He responded, “[t]hat’s old.” Ms. Broughton later texted Defendant and asked him to send her a copy of interrogatories and “paperwork” he had received on her case, and Defendant said he would send the documents. Ms. Broughton testified that she did not receive any documents from Defendant, but Defendant assured her he would send them. He later sent an email explaining changes that had been made to the documents and his reason for the changes. Ms. Broughton said that she continued asking Defendant to provide her with “legal paperwork.” She also asked for filed copies of documents rather than drafts. Defendant responded that a family member died and asked her to “give [him] a bit.” - 33 - Ms. Broughton testified that she sent Defendant multiple text messages in January 2017 asking that they talk “ASAP.” Defendant eventually responded claiming that he thought Ms. Broughton had “terminated” his services. Other Trial Testimony Kristie Wixson, a criminal intelligence analyst for the Regional Organized Crime Information Center, testified that she performed an analysis of Defendant’s bank accounts from three different banks and organized them into Excel spreadsheets as well as prepared charts for trial. She also entered information concerning some of Defendant’s credit cards and organized the bank records to reflect the transactions involving each victim and charges related to Defendant’s case. Ms. Wixson testified concerning several transactions made between Defendant’s various accounts showing declining balances. She also compiled a list from Defendant’s accounts of “all the fees charged, non-sufficient funds fees, overdraft charges, paid item fees, uncollected charges, returned item fees, [and] charge-back fees[,]” which totaled $58,393. Her spreadsheets were exhibited to her testimony. Jennifer Stalvey, who was working as a forensic accountant with the Tennessee Department of Commerce and Insurance, reviewed Defendant’s financial records, settlement statements, and the victims’ interview summaries and prepared a report as to each victim, excluding Mr. Herrera, from a period of December 3, 2012, to November 22, 2016. Concerning the theft of trust cases, Ms. Stalvey determined that after deducting his expenses, Defendant owed $14,694.14 to Ms. Ponce, $16,433.00 to Mr. Sutton, $108,122.65 to Mr. Dycus, and $105,299.13 to the beneficiaries of Ms. Denney’s estate. Ms. Stalvey further testified about the theft of retainer cases and verified that Defendant owed $4,500 to Mr. Brown, $4,490 to Ms. Stollar, $4,500 to Mr. Lussier, $4,500 to Ms. Prather, $4,500 to Ms. Whitman, $4,500 to Ms. Kelley, and $4,500 to Ms. Smelser. On cross-examination, Ms. Stalvey testified that she did not conduct an independent search of records from the Sumner County court, EEOC, or Tennessee Department of Labor related to the victims but relied on information the TBI had been provided by the District Attorney General’s Office. She also spoke with Ms. Wixson who did not provide substantive information about Defendant’s clients. Ms. Stalvey agreed that her conclusions were only as reliable as the information she had been given. She testified: “That’s why I’m very selective about what I utilized within the scope that I was provided. I did not rely on many of the records. I only chose the records that were - - for the most part, that were independently prepared.” Ms. Stalvey testified that from the records she reviewed, a pattern of behavior emerged where Defendant transferred and kept clients’ retainer fees when no legal work had been performed and no expenses had been paid on behalf of the clients. She understood from the investigators that no “meaningful work” was performed by Defendant, which meant that the victim “paid a retainer” and “did not benefit from any work.” Ms. Stalvey - 34 - testified that her task “was to identify were there any fees returned to the victims.” She was unaware of how many meetings, phone calls, and email exchanges Defendant had with the victims or how much documentation had been provided by victims to Defendant at the beginning of his representation for him to sort through, review, and research. Ms. Stalvey did not know how much legal research Defendant had performed or how many legal documents or pleadings Defendant had drafted and filed on behalf of the victims. However, she said that was “not what my task was for this assignment.” She was looking for “financial impropriety.” Ms. Stalvey testified that she was not provided with client files from Defendant’s office, and she did not speak with any of the victims in this case. She agreed that she was “working off an assumption.” On redirect examination, Ms. Stalvey testified that the TBI files contained information related to the victims and their statements. She agreed that each count Defendant had been charged for each victim could stand alone and did not require a pattern with the other counts to be shown. Michael Tolbird attended law school with Defendant and began working remotely for Defendant from Florida in 2013. They had an agreement in which Defendant would pay Mr. Tolbird a monthly stipend plus a percentage of any settlement monies or judgment monies for cases on which Mr. Tolbird worked. He received the monthly stipends but did not receive the “percentage payment until much later” after he filed a lawsuit against Defendant in general sessions court in August 2015, which he and Defendant agreed to settle. Mr. Tolbird estimated that the settlement was for $13,000 which was originally paid in December 2015 by a check that did not clear and was later replaced by a cashier’s check. Sarah Morgenstern was employed by Defendant as a paralegal for approximately one year from 2015 until 2016. She said that Defendant oversaw the office, was in control of the finances, made banking decisions, and cashed and deposited the checks. Ms. Morgenstern did not have access to online banking for Defendant’s firm’s accounts. She testified that Defendant sometimes refused to “put money on the stamp machine” for letters to be sent out, and Defendant would not set up payroll so that employees could be paid by automatic deposit. Ms. Morgenstern said that she would was paid with a paper check which she sometimes was unable to cash due to insufficient funds. She noted that at one point, she had three paychecks from Defendant that she could not cash and had to borrow money from her parents to pay her bills. Charity Demay-Samuels began working for Defendant as a paralegal and office manager in January or February of 2012 and left in August of 2014. She said that Defendant was in control of the finances in his office, and he made the banking decisions, including the cashing of clients’ checks. Ms. Demay-Samuels did not have access to online banking while working for Defendant, despite her requests to do so. She said that at times her paycheck would not clear due to insufficient funds in Defendant’s account, which also - 35 - caused insufficient funds in her account. She noted that at one point, her bank would no longer accept Defendant’s checks for deposit. Ms. Demay-Samuels testified that sometimes when clients called upset or inquiring as to the status of their cases, Defendant directed her and other employees to tell clients that work had been performed when such work had not actually been done. She said that Defendant took cases on contingency fees rather than billable hours. Ms. Demay-Samuels testified that “if the case was won and the [c]ourt was going to award attorney’s fees, [Defendant] would have us go back through the file and start creating the time to be paid for our time.” She noted that “[t]here were too many clients for the paralegals to handle.” Ms. Demay-Samuels eventually left employment at Defendant’s office due to her health and was offered a three-month severance package. She was eventually paid for all of the time that she worked for Defendant, but she had to “have an attorney” get her last month’s pay. Nicole Canter testified that she began working for Defendant as a paralegal in the spring of 2012 and remained there until the summer of 2015. She said that Defendant was in control of the office and finances, and he made all the banking decisions. She did not have any access to online banking or any of Defendant’s firm’s accounts. Ms. Canter testified that her paychecks “were not always accepted by [her] bank and frequently [she] had to wait for them to go through.” She was unable to cash her final paycheck. Ms. Canter testified that during her employment with Defendant, there were many unhappy clients calling Defendant’s office about the status of their cases, and there were a lot of overdue invoices. She spoke to some of the clients and gave them what information she had, and she referred them to Defendant. Ms. Canter testified that some clients did not get their settlement checks. She said that before leaving employment at Defendant’s office, “there was a client at the door asking to see [Defendant] because he had settled her case and I didn’t have the money and I didn’t know where it was and I didn’t have anything to tell her and [Defendant] wasn’t there.” Ms. Canter testified that she left Defendant’s office because “the rent check bounced and paychecks were always questionable and I realized I needed more stable employment.” She asserted that Defendant’s financial issues “trickled down to the clients.” Shelly Biemel testified that she worked for Defendant from June 2015 until December 2016. She began as a paralegal and later became the office manager. Ms. Biemel testified that Defendant was in control of the office and finances, and he made banking decisions, such as determining in which account to deposit checks. Ms. Biemel did not have access to online banking. She said that she had trouble multiple times cashing her paycheck. Ms. Biemel testified: “I did know that when he would get a retainer from a client, that he would go deposit the check and then our checks would be available. So I knew that the retainer was paying our payroll.” She also said that there were clients who - 36 - were upset about the way their cases were being handled and noted that deadlines were missed in some of the cases. A large number of Defendant’s cases were EEOC cases. Katlin Dinkens, formerly Wilburn, worked for Defendant from October 2015 until November 2016 as an assistant and later a paralegal. She said that Defendant oversaw the office and made banking decisions, including cashing checks and depositing them. She did not have access to online banking while working for Defendant. Ms. Dinkens testified that her paycheck was returned several times for insufficient funds while working for Defendant. Christine Gaetano worked for Defendant from 2013 until 2016. She was initially hired by Defendant to work from home as a staff writer and “specifically write fact sections of responses to summary judgment motions.” Ms. Gaetano testified that Defendant was in control of the office, and she assumed he was in control of the finances. She said that her first paycheck from Defendant was rejected by her bank, Volunteer State Bank, and that they would not cash it or take it for deposit. Ms. Gaetano called Defendant, and he gave her what she thought at the time was a rational explanation. She said that Defendant made the check good, but the problems persisted with her paychecks. Ms. Gaetano thought Defendant had too many cases to be adequately handled by the paralegals, noting that the case list for each paralegal was “extremely long.” Allison Porter was an associate attorney with Defendant for one year from 2015 until 2016. She explained that she handled some cases after Defendant did the “initial interviews to take on the clients, and then from that, if we needed to file anything with the court, do their court complaints, any EEOC complaints, anything that needed to be filed, talking to the client, going to court for them, I handled all that from the time after he took them on as a client.” Ms. Porter testified that Defendant oversaw the office and finances and made banking decisions. She had no access to online banking. Ms. Porter testified that a few months into her employment with Defendant, her paycheck “bounced.” She spoke with Defendant and got a new one. Because she was paid only once per month, she arranged with Defendant to be paid by cashier’s check. Ms. Porter testified that she did not get paid for the last “couple of months” she worked for Defendant. Ms. Porter testified that there were issues in Defendant’s office with paying the fees to file complaints for new clients, causing deadlines to be missed. She said, “[c]lients were calling, and - - yeah, we were just fielding a lot of phone calls with people trying to get in touch with [Defendant] and get their cases going.” She “definitely” felt that Defendant’s clients were not being properly served. Ms. Porter testified that she was named, along with Defendant, in a complaint to the BPR concerning the mismanagement of a client’s case. She was named in the complaint because she had conducted one of the depositions. Ms. Porter was aware of some clients who requested that their retainer fees be refunded by - 37 - Defendant. She noted that at one point, Defendant’s practice lost access to legal research platforms, making it difficult to respond to various motions in cases. Ms. Porter testified that the deadline in certain cases is very strict and that there is no recourse if a complaint is not timely filed. Jedidiah Cochran entered into an “of counsel” agreement with Defendant in June or July of 2014 and was paid a $3,000 monthly retainer to work on cases Defendant assigned to him. Mr. Cochran testified: “[s]o there was an arrangement where any attorney’s fees from the cases which I actively worked, I would - - I would get a percentage of that, and I think the percentage was 50 percent.” He said that Defendant was in control of the office at Allman & Associates, and he assumed that Defendant was also in control of the finances and banking decisions. Mr. Cochran testified that his last $3,000 retainer check from Defendant did not clear the bank. He called Defendant, and the issue was handled “fairly quickly.” Mr. Cochran never received the agreed upon percentage for any of the cases he worked on. Mr. Cochran testified that he worked on Rosa Ponce’s case and negotiated a settlement for $40,000. He took and “defended” depositions and handled mediation in Atlanta. Mr. Cochran testified: Ms. Ponce would get her portion. [Defendant] would get his portion, then cut a check to me for my portion. But that - - that settled roughly the same time as I was leaving Nashville. So I was dissolving the arrangement between [Defendant] and I, so I - - I never followed up on that. Mr. Cochran identified two checks from Head Start. One was written to Defendant for his legal fees and contingency fee, and the second was written to Ms. Ponce for the settlement amount. Pursuant to Mr. Cochran’s agreement with Defendant, he should have received half of the legal fees; however, never received his half. Margaret Brooke Smith worked for Defendant as an associate attorney from July 2016 until November 7, 2016. At the end of September 2016, she learned that Defendant had been suspended from practicing law effective October 9, 2016. She noted that the order suspending Defendant had been entered on September 9, 2016, but Defendant did not notify her of his suspension. She learned of it from some of the paralegals who worked in Defendant’s office. Ms. Smith testified that Defendant and Shelly Biemel oversaw the office, and Defendant had control of the finances and made banking decisions. Ms. Smith did not have access to online banking. Ms. Smith testified that she and Aaron Ryan, another attorney employed by Defendant, asked Defendant about the suspension order, and he said that he had hired an attorney who was taking care of everything and that the order of suspension would be lifted by October 9, 2016. Ms. Smith later spoke with someone else and realized “the situation - 38 - was like much more dire than [she] was initially led to believe” and that there were a significant number of complaints against Defendant. She noted that on November 3, 2016, Channel 4 News showed up at Defendant’s office, and on November 4, 2016, an eviction notice was sent to the office stating that rent had not been paid in months. On November 5, 2016, Ms. Smith received a call from a paralegal at the office who said that several of the paralegals’ checks had “bounced.” After that, on November 7, 2016, she and Mr. Ryan tendered their resignations. Ms. Smith testified: I think there were like 400 clients on the Listserv, something like that, if my memory serves me correctly. And we were doing everything we could to - - and “we” being the two paralegals, Katie and Shelly, Aaron and I were burning CDs with the clients’ files and getting the clients their files as quick as we could, and letting them know that we were no longer - - we were no longer associates at the firm. And that, you know, we would be gone by December 9th, so to come and get their files by then. Ms. Smith said that she exclusively worked on labor and employment cases. She did not keep track of her billable hours but noted that it was customary in private practice to keep track of those hours. She further testified that “it’s imperative to let the client know, ‘I worked, you know, four hours on this initial pleading,’ and keep them apprised of the expenditure[s].” Ms. Smith explained: If they’ve deposited anything in the trust, it’s kind of like a representation agreement, you would have a retainer. So if your retainer - - it’s typically $5,000 initially. And so that’s held in a trust for the client, and it’s earned upon attorneys working to receive it. So if you work on a complaint for three hours, you would let Client A know, “Hey, I drafted your complaint for three hours.” They would review and approve it, and then it allows you the ability to remove that, those funds from the retainer and earn them. So it’s just imperative that the client is kept aware and apprised of the work being done and the amount that they’re being charged - - charged throughout the process of their complaint, I guess. Ms. Smith testified that she worked on Mr. Sutton’s child support case and later represented him pro bono after she was employed by another law firm. She agreed that the $12,000 in cash Mr. Sutton had given to Defendant to hold for the child support arrearages should have been deposited into a trust account and disbursed to the child pursuant to the court order. The money should not have been deposited into Defendant’s personal account. - 39 - Aaron Ryan’s testimony was similar to Ms. Smith’s concerning retainer fees, and he also asserted that “[w]hen a settlement comes in from a case, then the attorney would put that money into a trust account until it can be transferred over to the client.” He noted that one client’s money cannot be removed from the trust account to pay another client. Mr. Ryan testified that he began working for Defendant as an associate in late July 2016 and resigned on November 7, 2016. He remained at the office until December 2016 to “help wind things down.” Mr. Ryan testified that Defendant oversaw the office, and he assumed Defendant was in control of the finances and made banking decisions. Mr. Ryan did not have access to online banking for any of Defendant’s accounts. Mr. Ryan testified that he arrived to work one day in early September 2016, and the office door was locked. He later learned that Defendant had been suspended from practicing law, and the BPR had issued an order instructing Defendant not to take any new cases at that time. Defendant had thirty days from entry of that order to stop practicing law. Mr. Ryan testified that Defendant gave him the impression that the matter would be resolved soon. He said: “[Defendant] told us that he had received three complaints from clients who were filed to the B[PR] and that he needed to respond to those, that he had failed to respond, and that after he did that, then the suspension would be lifted.” Mr. Ryan testified that Defendant’s course of conduct did not change after his license was suspended and things at Defendant’s office got worse after clients learned of the suspension. He said: So at that point, clients were starting to find out that his license was suspended and were starting to come into the office and ask questions and have concerns. And, you know, like I said, he was out of the office for about two weeks.10 And so we really didn’t have any guidance, and it felt like we were falling further and further behind with all of these cases. Mr. Ryan testified that he and others then spoke with someone at the BPR because Defendant was still saying that it was a misunderstanding, that he had failed to respond to some clients, and that everything would be straightened out. After speaking to someone at the BPR, Mr. Ryan and Ms. Smith informed Defendant they would be resigning and “getting clients their files and telling them to seek other counsel.” Mr. Ryan testified: From that point on, we were basically just trying to triage these cases, and get clients their files, and ensure that these cases were taken care of while they found new counsel. There was a steady stream of clients coming into the office who were angry and who wanted to know what was going on with their case and what was going on with their attorney. 10 Mr. Ryan had previously testified that Defendant was out of the office due to his brother’s death. - 40 - And so we had to meet with these clients on a pretty regular basis every day to fill them in on the situation to get them their files. Mr. Ryan concluded his interactions with Defendant on December 9, 2016. He was never required to keep track of billable hours while working for Defendant. He had one paycheck that was returned for insufficient funds while working for Defendant and later had two paychecks and one insurance reimbursement check that he was unable to cash while working for Defendant. He said that Defendant gave him cash for the check that was returned. On cross-examination, Mr. Ryan testified that Defendant drafted a letter to send to his clients concerning his suspension and notifying them that associate attorneys, including him and Ms. Smith, would be taking care of their cases. However, he did not remember when the letter was sent out. He agreed that this caused some panic with clients. Mr. Ryan testified that he and Ms. Smith sent out a second letter to clients. He agreed that during Defendant’s suspension, Mr. Ryan and Ms. Smith drafted pleadings, continued to seek Defendant’s guidance, and used Defendant’s electronic signature on pleadings. Theresa Scott Swanson testified that after passing the bar examination, she worked for five and a half years with attorney Patrick Parker. She said that their office was “of counsel” with Defendant’s office, “which means that we could help [Defendant] with cases that he had.” Ms. Swanson noted that she and Mr. Parker took some of the “overflow cases” that Defendant’s office could not handle. She said that it became clear after some time, that some of Defendant’s cases were ones that should not have been taken because “there were some quality issues with the type of case that was being accepted[.]” Ms. Swanson testified: “[e]mployment law cases are - - are really hard to win anyway. And there were just a lot of clients who maybe had hurt feelings about losing their job, but it was not - - it didn’t rise to the level of a - - of a federal lawsuit.” She noted that some of Defendant’s clients thought that they had excellent cases. Ms. Swanson testified that deadlines for employment law cases are firm and that clients do not have any recourse or remedy if a deadline is missed. On cross-examination, Ms. Swanson estimated that she and Mr. Parker handled approximately eighty of Defendant’s clients after his suspension. She agreed that Defendant’s office had already provided quite a bit of work on some cases that she and Mr. Parker took over. She did not have any knowledge of the fee arrangement between Defendant and Mr. Parker. Ms. Swanson was aware that a letter had been sent to clients regarding the suspension of Defendant’s law license. She thought that the letter “quoted the Supreme Court rule about the suspension, and it gave a time frame by which they could seek other counsel.” She could not remember what other information was included in the letter. Ms. Swanson did not recall a second letter that went out to clients informing them that they no longer had legal representation. - 41 - Merry Lewellyn, owner of Tennessee Business Services, provided accounting, payroll, and cashflow management services for Defendant’s law office from early 2013 until September 2016. She used QuickBooks software to keep track of Defendant’s income and expenses. The payroll services involved “paying his weekly salary payments to employees.” Ms. Lewellyn’s husband used separate software for Defendant’s cash flow management. However, that service stopped because it was hard for Defendant to “have time to sit down and go over the cash flow and things like that, and that just eventually stopped working.” Ms. Lewellyn’s relationship with Defendant ended after his business closed. She said that he still owed them $2,400 at the time for multiple months of service. Ms. Lewellyn explained that she had “view-only” access to Defendant’s firm bank accounts and would receive “information of deposits and outgoing funds and record those in Quickbooks.” She was unable to transfer money from one account to another and did not have any interactions with the banks. Ms. Lewellyn had the authority to print the payroll checks without Defendant’s permission and issue checks in small amounts for case- related expenses. However, she was not authorized to write checks for anything else. She was aware that some of the payroll checks were returned for insufficient funds. Ms. Lewellyn identified one handwritten check for $37,000.40 that Defendant had written out to himself. The memo line stated “Dycus settlement fee.” Ms. Lewellyn noted that when she first began working for Defendant, he had some old debts, or “accounts payable,” that she was eventually able to clear by paying them over a period of time. Ms. Lewellyn testified that Defendant made the banking decisions for his firm, including on which account a check would be drawn. She did not make deposits or withdrawals on his behalf. In late 2016, Defendant direct [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10592656. Public record. Not legal advice.