James B. Johnson v. Board of Professional Responsibility of the Supreme Court of Tennessee

09/19/2025

IN THE SUPREME COURT OF TENNESSEE

AT NASHVILLE

Assigned on Briefs February 12, 2025

JAMES B. JOHNSON v. BOARD OF PROFESSIONAL RESPONSIBILITY

OF THE SUPREME COURT OF TENNESSEE

Direct Appeal from the Circuit Court for Davidson County

No. 23C-1171 Robert E. Lee Davies, Senior Judge

___________________________________

No. M2024-00452-SC-R3-BP

___________________________________

A hearing panel of the Board of Professional Responsibility found that James B. Johnson

violated Rules 1.6, 1.16, and 8.4(a) and (d) of the Tennessee Rules of Professional Conduct

when he publicly filed confidential communications between him and his client as an

exhibit to a motion to withdraw. The panel suspended him from the practice of law for

three months with thirty days as an active suspension and imposed additional continuing

legal education requirements. Finding no abuse of discretion, we affirm.

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

DWIGHT E. TARWATER, J., delivered the opinion of the Court, in which JEFFREY S. BIVINS,

C.J., and HOLLY KIRBY, SARAH K. CAMPBELL, and MARY L. WAGNER, JJ., joined.

James Broderick Johnson, Nashville, Tennessee, Pro Se.

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

Responsibility.

OPINION

I. FACTUAL & PROCEDURAL BACKGROUND

On March 11, 2021, the Board of Professional Responsibility of the Supreme Court

of Tennessee (“the Board”) received a complaint regarding attorney James B. Johnson from

his client, Janee Howard. She alleged that Mr. Johnson’s actions during the representation

had caused her harm and that he “quit . . . before a life changing date in [her] case.” While

not specifically raised by Ms. Howard in her complaint, it was how Mr. Johnson attempted

to “quit” her case that ultimately landed him before this Court.

Mr. Johnson and Ms. Howard met in early January 2021. Over the next few weeks,

Mr. Johnson began to assist with her ongoing divorce proceedings in Shelby County Circuit

Court, including appearing on her behalf in court and negotiating with opposing counsel.

On February 2, 2021, Mr. Johnson and Ms. Howard signed an engagement letter which

formalized the attorney client relationship. Specifically, the two agreed that Mr. Johnson

would negotiate “a settlement of [her] divorce and parenting issues for a flat fee of

$3,500.00 . . . to be paid” from the sale of Ms. Howard’s home. Even before, and surely

after, the engagement letter was signed, the two had disagreements about the scope and

strategy of the representation. These disagreements included arguments in Mr. Johnson’s

office and contentious emails between the two. For example, an email from Mr. Johnson

sent one day after the engagement letter was signed read:

I have decided that I am not going to prepare the MDA and Parenting Plan

to be signed this week because of your awful attitude and the disrespect you

exhibited towards me yesterday. Not only were you blatantly disrespectful,

but you have failed to show any remorse for your behavior. When you decide

to sincerely apologize for your behavior, then we may resume the attorney-

client relationship. However, I am in no way compelled to do any more work

for you until you show some respect and contrition. Until that happens, your

closing of the property will lie dormant and so will the MDA and Parenting

Plan. Finally, if you decide not to apologize and agree to curtail your

behavior, I will gladly terminate the attorney-client relationship and you can

pay me for the services rendered up to this point. You will then be free to

retain another attorney to handle this matter for you. But[] I will not tolerate

the type of behavior and disrespect that you displayed in my office yesterday.

Ms. Howard dutifully apologized by email but reiterated that she believed Mr.

Johnson had revealed confidential information to her husband. Afterwards, the relationship

continued to sour. On February 27, 2021, Mr. Johnson emailed Ms. Howard a summary

of her specific, substantive positions on matters in the litigation and stated that she had

“gone too far and [he would] not tolerate” her dissatisfaction with his services.

Mr. Johnson ultimately filed a “Motion to Withdrawal [sic] and Motion for Award

of Attorneys’ Fees” on March 16, 2021.1 In the motion, Mr. Johnson stated that he had

notified Ms. Howard of his intention to withdraw and had unsuccessfully attempted to get

her approval to do so. He asked the trial court to order Ms. Howard to pay him $3,500.00

as specified in the engagement letter, which he attached in complete and unredacted form.

1

Mr. Johnson filed a Notice of Appearance in the case on March 17, 2021, the day after moving to

withdraw.

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He further argued that after providing all agreed-upon services, Ms. Howard “refused to

follow the advice of counsel,” and “began to berate Mr. Johnson through written emails,

thereby causing Mr. Johnson to terminate the relationship.”

In support of his motion and without the informed consent of his client, Mr. Johnson

attached a collective exhibit of unredacted emails between him and Ms. Howard, including

those discussed supra. The emails contained discussion of the scope of the relationship,

Mr. Johnson’s professional opinions and advice related to the representation, Ms.

Howard’s position on matters at issue in the case, threats by Mr. Johnson to withhold

services as punishment for what he perceived as poor behavior by his client, and personal

insults between the two. There is no dispute that these are confidential communications

disclosed in a public filing. On March 30, 2021, the trial court, seemingly oblivious to the

improper disclosures, granted the motion to withdraw, denied the motion for attorneys’

fees, and stated that Mr. Johnson was permitted to file an attorney’s lien for his fees.

After Ms. Howard supplemented her submission at the Board’s request, Mr.

Johnson was first notified of the complaint on April 13, 2021. After multiple missed

deadlines, Mr. Johnson finally responded to the complaint on June 4, arguing that he had

provided professional and competent representation and that Ms. Howard’s behavior

caused him to terminate the relationship.

The Board filed its Petition for Discipline against Mr. Johnson on January 28, 2022,

after Mr. Johnson rejected a public censure and demanded a formal proceeding. The

Board’s petition was focused on the undeniable confidentiality of the disclosed emails in

support of Mr. Johnson’s motion to withdraw.

After a hearing on December 14, 2022, the hearing panel determined that Mr.

Johnson violated Rules 1.6, 1.16, and 8.4(a) and (d) of the Tennessee Rules of Professional

Conduct. Rule 1.6 forbids an attorney from revealing confidential information related to

the representation without a client’s informed consent. Tenn. Sup. Ct. R. 8, RPC 1.6. The

rule provides for a few exceptions, though the hearing panel did not find any of them

applicable here. Rule 1.16 governs when an attorney may or must withdraw from

representation of a client, but it also requires the attorney to take reasonable steps to protect

the client’s interests. Tenn. Sup. Ct. R. 8, RPC 1.16. Finally, Rule 8.4 is a general

provision stating that it is professional misconduct for an attorney to violate or attempt to

violate the Rules of Professional Conduct or to “engage in conduct that is prejudicial to the

administration of justice.” Tenn. Sup. Ct. R. 8, RPC 8.4.

The hearing panel then found the following American Bar Association Standards

for Imposing Lawyer Sanctions (“ABA Standards”) were applicable: 1.1, 3.0, 4.22. ABA

Standards 1.1 and 3.0 are general provisions stating respectively that “[t]he purpose of

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lawyer discipline proceedings is to protect the public and the administration of justice” and

that a court “imposing a sanction after a finding of lawyer misconduct . . . should consider”

certain factors, including “the duty violated[,]” “the lawyer’s mental state[,]” “the potential

or actual injury caused by the lawyer’s misconduct[,]” and “the existence of aggravating

or mitigating factors.” ABA Standard 4.22 then provides that “[s]uspension is generally

appropriate when a lawyer knowingly reveals information relating to the representation of

a client not otherwise lawfully permitted to be disclosed, and this disclosure causes injury

or potential injury to a client.”

In considering the requirements of Standard 3.0, the hearing panel noted that “the

duty [of confidentiality] violated was among the most fundamental owed by attorneys . . .

to clients.” The hearing panel found it to be a “[c]ritical” fact that the “duty . . . was

intentionally violated” by Mr. Johnson, as he “knowingly attached the confidential

communications at issue as an exhibit in support of his motion for withdrawal and fees.”

As support for this finding, the hearing panel found that Mr. Johnson’s actions showed a

lack of respect to his client, as evidenced by the “resentment and spite shown” in the

attached emails suggesting that Mr. Johnson filed them publicly in retaliation against his

client.

The hearing panel then considered the application of aggravating and mitigating

factors.2 It found three aggravating factors to be relevant: Mr. Johnson’s prior disciplinary

offenses, his refusal to acknowledge the wrongful nature of his conduct, and his substantial

experience in the law.3 Mr. Johnson had two prior disciplinary offenses: a public censure

in 2019 and a private informal admonition in 2022. The hearing panel also found that Mr.

Johnson did not acknowledge the wrongful nature of his conduct until the date of the

hearing, though he still continued to claim “that his overall conduct was appropriate and

professional.” The hearing panel additionally took note of the substantial amount of time

that Mr. Johnson has been an attorney, having been licensed since 1992. It declined to

apply any mitigating factors.

Noting that there was no showing of actual injury, the hearing panel found that the

Board had established a showing of potential injury, however, including that the trial court

could have formed an unfavorable opinion of Ms. Howard or that her husband could have

gained a tactical advantage in the divorce proceedings. Likening the revelation of

confidential client communications to opening Pandora’s Box, the hearing panel noted that

the potential harm was unpredictable and broad.

2

ABA Standards 9.21 (defining aggravating circumstances), 9.22 (listing aggravating factors), 9.31

(defining mitigating circumstances), and 9.32 (listing mitigating factors).

3

ABA Standards 9.22(a), (g), and (i), respectively.

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After considering its findings, the hearing panel suspended Mr. Johnson from the

practice of law for three months, with a one-month active suspension and two months of

probation. It further required Mr. Johnson to complete six additional hours of continuing

legal education “related to client relations, the management of a law practice, and/or Rules

of Professional Conduct” by the end of his three-month suspension.

Hearing panel member Christopher C. Sabis fully joined the majority and filed a

concurring opinion. In his separate opinion, Mr. Sabis explained that the Board and Mr.

Johnson were mistaken when they agreed that Mr. Johnson could have avoided a violation

of Rule 1.6 had he filed the emails under seal or for the court’s eyes only. As correctly

noted by Mr. Sabis, “[a] disclosure of confidential information to a judge is still a disclosure

of confidential information.”4

Mr. Johnson filed a Petition for Review in the Davidson County Circuit Court

arguing that the hearing panel’s judgment should be vacated, reversed, or modified as its

decisions were arbitrary and capricious and unsupported by substantial and material

evidence. The trial court first noted that Mr. Johnson’s excuse for his violation of Rule

1.6—that he did not understand the extent to which it protected confidential client

information—was meritless. It explained that attorneys licensed in this state are required

to understand the Rules of Professional Conduct, and his ignorance of Rule 1.6 did not

override the fact that he intentionally published his client’s confidential information.

However, the trial court agreed with Mr. Johnson that a subsequent motion filed in Ms.

Howard’s case—introduced as “Exhibit 5” during the disciplinary hearing—should have

been excluded as a subsequent remedial measure under Tennessee Rule of Evidence 407,

finding that it was “used by the Board to argue culpable conduct.” Exhibit 5 was a motion

filed “For the Court’s Eyes Only” in support of Mr. Johnson’s efforts to establish an

attorney’s lien on Ms. Howard’s property. The trial court did not explain why it believed

that Exhibit 5 was a subsequent remedial measure under Rule 407.5 While finding that

Exhibit 5 may have hindered Mr. Johnson’s efforts to express remorse, the trial court

ultimately held that the hearing panel did not appear to have been overly influenced by

Exhibit 5 when it decided to apply ABA Standard 4.22.

The trial court also held that the mitigating factor of cooperation should have been

applied, as the hearing panel’s reliance on the relevant facts did “not justify its failure to

find this mitigating factor in favor of Mr. Johnson.”

4

See discussion of Exhibit 5 infra.

5

Exhibit 5 was not a subsequent remedial measure and was properly admitted. See infra.

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The trial court concluded that the hearing panel’s decision was supported by the

record, and that any change in Mr. Johnson’s sanction “would be de minim[i]s” since he

received “the minimum active suspension required”6 after applying ABA Standard 4.22.

The trial court therefore affirmed the hearing panel’s decision.

Mr. Johnson filed a notice of appeal to this Court.

II. STANDARD OF REVIEW

This Court is vested with the “inherent supervisory power to regulate the practice

of law.” Brown v. Bd. of Pro. Resp., 29 S.W.3d 445, 449 (Tenn. 2000) (quoting In re

Burson, 909 S.W.2d 768, 773 (Tenn. 1995)). “[W]e are tasked with the ultimate

disciplinary responsibility for violations of the ethical rules that govern the legal profession

. . . .” Waggoner v. Bd. of Pro. Resp., 673 S.W.3d 227, 234–35 (Tenn. 2023) (quotation

marks omitted) (quoting Sneed v. Bd. of Pro. Resp., 301 S.W.3d 603, 612 (Tenn. 2010)).

The Court does not “substitute its judgment for that of the hearing panel on questions

of fact.” Bd. of Pro. Resp. v. Prewitt, 647 S.W.3d 357, 366 (Tenn. 2022) (citing Napolitano

v. Bd. of Pro. Resp., 535 S.W.3d 481, 496 (Tenn. 2017)). The Court may only reverse or

modify any findings of the hearing panel and trial court if such findings were:

(1) in violation of constitutional or statutory provisions; (2) in excess of the

hearing panel’s jurisdiction; (3) made upon unlawful procedure; (4) arbitrary

or capricious or characterized by abuse of discretion or clearly unwarranted

exercise of discretion; or (5) unsupported by evidence which is both

substantial and material in the light of the entire record.

Tenn. Sup. Ct. R. 9, § 33.1(b); see also Bd. of Pro. Resp. v. Love, 256 S.W.3d 644, 653

(Tenn. 2008); Hoover v. Bd. of Pro. Resp., 395 S.W.3d 95, 103 (Tenn. 2012). An abuse of

discretion occurs when a tribunal “appl[ies] an incorrect legal standard or reach[es] a

decision that is against logic or reasoning that causes an injustice.” Bd. of Pro. Resp. v.

Parrish, 556 S.W.3d 153, 163 (Tenn. 2018) (alteration in original) (quoting Sallee v. Bd.

of Pro. Resp., 469 S.W.3d 18, 42 (Tenn. 2015)). “An arbitrary [or capricious] decision is

one that is not based on any course of reasoning or exercise of judgment, or one that

disregards the facts or circumstances of the case without some basis that would lead a

reasonable person to reach the same conclusion.” Hughes v. Bd. of Pro. Resp., 259 S.W.3d

631, 641 (Tenn. 2008) (alteration in original) (quoting Jackson Mobilphone Co. v. Tenn.

Pub. Serv. Comm’n, 876 S.W.2d 106, 111 (Tenn. Ct. App. 1993)). “[A] decision not

6

“A suspension order must result in some cessation of the practice of law for not less than thirty

days.” Tenn. Sup. Ct. R. 9, § 12.2(a).

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supported by substantial and material evidence qualifies as arbitrary and capricious.” Bd.

of Pro. Resp. v. Allison, 284 S.W.3d 316, 322 (Tenn. 2009). Substantial and material

evidence is that which “a rational mind might accept to support a rational conclusion” and

“will be sufficient if it furnishes a reasonably sound factual basis for the decision being

reviewed.” Id. (quoting City of Memphis v. Civ. Serv. Comm’n of Memphis, 216 S.W.3d

311, 316–17 (Tenn. 2007)). Substantial and material evidence “has also been described as

requiring ‘something less than a preponderance of the evidence . . . but more than a scintilla

or glimmer.’” Id. (quoting Jones v. Bureau of TennCare, 94 S.W.3d 495, 501 (Tenn. Ct.

App. 2002)).

III. ANALYSIS

Mr. Johnson does not dispute that he violated the Rules of Professional Conduct.

Rather, he argues that his sanction was too harsh. Mr. Johnson specifically challenges: (1)

the determination that his actions were “knowing,” as opposed to negligent, such that ABA

Standard 4.22 applied and whether the admission of Exhibit 5 contributed to that finding;

(2) the hearing panel’s application of an aggravating factor based on his refusal to

acknowledge the wrongful nature of his conduct; (3) the hearing panel’s failure to apply a

mitigating factor related to his cooperation with the Board; and (4) the severity of his

sanction when compared to other cases. We will address each in turn.

ABA Standards

“[A] hearing panel shall consider the applicable ABA Standards when determining

the proper discipline for attorney misconduct.” Tenn. Sup. Ct. R. 9, § 15.4(a); accord Bd.

of Pro. Resp. v. Sheppard, 556 S.W.3d 139, 147 (Tenn. 2018). These standards serve as

guidelines rather than “rigid rules that dictate a particular outcome.” Hyman v. Bd. of Pro.

Resp., 437 S.W.3d 435, 447 (Tenn. 2014). “The Standards recommend the type of

sanction—such as disbarment or suspension—that the ABA Sanctions Committee deems

generally appropriate for various kinds of misconduct.” Bd. of Pro. Resp. v. Cowan, 388

S.W.3d 264, 268 (Tenn. 2012). The ABA model considers “the duty violated, the

attorney’s mental state, and any actual or potential injury.” Id. “[T]he severity of the

presumptive sanction varies depending upon the lawyer’s mental state—whether the

lawyer acted intentionally, knowingly, or negligently—and the seriousness of the actual or

potential injury caused by the lawyer’s misconduct.” Maddux v. Bd. of Pro. Resp., 409

S.W.3d 613, 624 (Tenn. 2013). The ABA standards define these terms. Id. An act is done

knowingly if it is accomplished with “the conscious awareness of the nature or attendant

circumstances of the conduct but without the conscious objective or purpose to accomplish

a particular result.” ABA Standards, Definitions. On the other hand, an attorney’s

violation is deemed negligent where he or she failed “to heed a substantial risk that

circumstances exist or that a result will follow,” and that his or her “failure is a deviation

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from the standard of care that a reasonable lawyer would exercise in the situation.” Id.

Potential injury includes harm to a client “that is reasonably foreseeable at the time of the

lawyer’s misconduct, and which, but for some intervening factor or event, would probably

have resulted from the lawyer’s misconduct.” Id.

“Once a presumptive sanction is determined, Standard 9 then provides that a greater

or lesser sanction may be appropriate due to the existence of aggravating or mitigating

factors.” Cowan, 388 S.W.3d at 268; ABA Standard 9.0. “Thus, any analysis of the proper

discipline involves two steps: first, [to] identify the presumptively appropriate sanction

applicable to the established misconduct, and then [to] consider whether that sanction

should be increased or decreased due to aggravating and mitigating circumstances, if any.”

Cowan, 388 S.W.3d at 268.

Mr. Johnson argues that his actions were negligent rather than knowing and thus the

hearing panel erred in applying Standard 4.22—which provides for suspension as the

presumptive sanction for knowing conduct—rather than Standard 4.23—which provides

for public reprimand as the presumptive sanction for negligent conduct. Seemingly, Mr.

Johnson argues that he only negligently violated Rule 1.6 when he attached the confidential

communications to his motion because he either: (1) incorrectly believed that Rule 1.16

required him to show the communications as justification for his withdrawal; and/or (2)

believed that Rule 1.6(b)(5)7 provided an applicable exception for establishing a claim or

defense against Ms. Howard. Respectfully, he appears to be conflating whether he

knowingly violated Rule 1.6 with whether he “knowingly reveal[ed] information relating

to the representation of a client” as described in Standard 4.22. Regardless, the hearing

panel found that Mr. Johnson “intentionally violated” his “duty of confidentiality” when

he “knowingly attached the confidential communications” to the motion. It further found

that there was a showing of potential injury to Ms. Howard and applied ABA Standard 4.22

calling for suspension as the presumptive sanction for this “knowing[]” action.

Mr. Johnson’s arguments that Standard 4.23 “could have” applied are misguided

and unpersuasive. Mr. Johnson is mistaken that his ignorance of the Rules of Professional

Conduct means that his actions were inherently negligent as opposed to knowing. He

deliberately attached confidential emails to and from his client without her consent to a

publicly filed motion to withdraw. The emails were not filed by accident, nor did he

mistakenly believe he had his client’s consent. Rather, he disclosed what he knew were

confidential communications relating to the representation of his client.

7

Rule 1.6(b)(5) provides: “(b) A lawyer may reveal information relating to the representation of a

client to the extent the lawyer reasonably believes necessary: . . . (5) to establish a claim or defense on

behalf of the lawyer in a controversy between the lawyer and the client . . . .” Tenn. Sup. Ct. R. 8, RPC 1.6.

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That he incorrectly believed Rule 1.16 required him to disclose the information as

grounds for withdrawal is no defense. See In re Bowen, 252 A.3d 300, 311 (Vt. 2021)

(“[Attorney’s] mistaken belief that the disclosure was appropriate under the rules does

nothing to change the fact that he knowingly disclosed the information.”); In re Cross, 500

P.3d 958, 960 (Wash. 2021) (en banc) (“[A] lawyer’s conscious choice to disclose client

information that the RPCs protect from disclosure constitutes ‘knowing,’ rather than

‘negligent,’ conduct—even if the lawyer does not know that the RPCs protect that

information.”); cf. Moore v. Lawrence Cnty., 230 S.W.2d 666, 668 (Tenn. 1950) (holding

that ignorance of the law is no defense). Rule 1.16 merely explains the grounds for when

an attorney must or may withdraw from representation; it does not state that an attorney

can disclose such justifications publicly in violation of other Rules of Professional

Conduct. See Tenn. Sup. Ct. R. 8, RPC 1.16. In fact, Rule 1.16(c) specifically states that

“[a] lawyer must comply with applicable law requiring notice to or permission of a tribunal

when terminating a representation.” Tenn. Sup. Ct. R. 8, RPC 1.16(c). The “applicable

law” includes Rule 1.6. Mr. Johnson’s misunderstanding of Rule 1.16 does not entitle him

to a lesser sanction for his violation of Rule 1.6.

Further, the hearing panel was correct to reject his argument that Rule 1.6(b)(5)

provided a relevant exception to the disclosures in this matter. It is not lost on this Court

that Mr. Johnson’s claimed motivation for moving to withdraw (concern that Ms. Howard

may refuse to pay his fees) is suspect. The engagement letter stated that Ms. Howard would

pay Mr. Johnson with funds from the sale of a particular piece of real property. When the

motion to withdraw was filed, nothing in the record suggests that the property had been

sold, and it does not appear that Ms. Howard ever threatened to withhold payment. Rather,

he argued in the motion that Ms. Howard “refused to follow the advice of counsel, began

to berate Mr. Johnson through written emails, [and] thereby caus[ed] Mr. Johnson to

terminate the relationship,” which he supported with the attachment of a collective exhibit

of confidential emails. And in his initial response to the Board regarding Ms. Howard’s

complaint, he stated that he “decided to terminate the relationship” because he “would not

accept” her “derogatory lace of attacks upon [him].” Yet in front of the hearing panel, Mr.

Johnson’s argument became that he “reasonably believed that [Ms. Howard] was not going

to pay [him]” and attached the emails to show that he “actually did the work and had earned

the fees.” Thus, Mr. Johnson’s argument that he believed Rule 1.6(b)(5) empowered him

to disclose confidential information to support his claim for attorneys’ fees—and that this

belief suggests that the wrong ABA Standard was applied to his actions—is unconvincing.

Substantial and material evidence supported the hearing panel’s decision to reject it.

It is generally improper for a hearing panel to rely upon an attorney’s motive, as

opposed to his or her mental state, for purposes of determining the presumptive sanction.

See, e.g., In re Att’y D., 57 P.3d 395, 400 (Colo. 2002) (en banc) (distinguishing between

“mental state” in Standard 3.0 and “motivation” in Standard 9.32(b)). However, the

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hearing panel’s order makes clear that its selection of the presumptive sanction was based

on a “knowing” state of mind based on the circumstances surrounding the disclosure, rather

than on Mr. Johnson’s motive. Knowledge may be inferred from appropriate

circumstances. Tenn. Sup. Ct. R. 8, RPC 1.0(f). We find no error in the hearing panel’s

analysis of the circumstances of Mr. Johnson’s actions here to support its determination of

his mental state.

Regardless of his motivations for filing, the disclosure of confidential

communications in Mr. Johnson’s motion to withdraw was unjustifiable. There was

substantial and material evidence to support the application of Standard 4.22 to Mr.

Johnson’s rules violations, and the hearing panel therefore did not act arbitrarily or

capriciously.

Exhibit 5

In support of his argument that his actions were merely negligent and not knowing,

Mr. Johnson argues that Exhibit 5, the motion filed “For the Court’s Eyes Only,” should

not have been admitted because it was a subsequent remedial measure under Tenn. R. Evid.

407. This rule provides, in relevant part: “When, after an event, measures are taken which,

if taken previously, would have made the event less likely to occur, evidence of the

subsequent remedial measures is not admissible to prove strict liability, negligence, or

culpable conduct in connection with the event.” Tenn. R. Evid. 407.

The Board offered Exhibit 5 as proof that Mr. Johnson knew how to protect

confidential client communications. Of course, Exhibit 5 is proof of no such thing. As the

concurring opinion pointed out, disclosure of confidential information to a judge is still

disclosure of confidential information. See In re Vogel, 482 S.W.3d 520, 531–32 (Tenn.

2016) (finding an attorney violated Rule 1.6 by disclosing confidential information to a

judge).

The trial court noted that it “appeared likely” that Exhibit 5 “may have affected” the

hearing panel’s finding that Mr. Johnson refused to acknowledge the wrongful nature of

his conduct. Nevertheless, the trial court held that the hearing panel did not appear to have

been influenced by Exhibit 5 when it decided to apply ABA Standard 4.22. Mr. Johnson

argues that the hearing panel acted arbitrarily and capriciously by admitting Exhibit 5. Had

it not done so, he argues that the hearing panel and trial court “could have” found he

violated Rule 1.6 negligently, not knowingly, entitling him to a lesser presumptive

sanction.

To be clear, Exhibit 5 is not evidence of a subsequent remedial measure. It was not

filed “to prevent the situation from causing further injury.” See Rothstein v. Orange Grove

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Ctr., Inc., 60 S.W.3d 807, 813 (Tenn. 2001). It was filed by Mr. Johnson to collect his fee.

It did not remedy anything. Rather, it made things worse. Nevertheless, the trial court

ultimately held that the hearing panel did not appear to have been overly influenced by

Exhibit 5 when it decided to apply ABA Standard 4.22. And, as the trial court pointed out,

the hearing panel “gave Mr. Johnson about the lightest sanction it could.” Therefore, the

hearing panel’s admission of Exhibit 5 was neither arbitrary or capricious, nor was its

limited reliance upon that evidence to support the application of ABA Standard 4.22

misplaced.

Mitigating Factor of Cooperation

Mr. Johnson next argues that his cooperation warranted the application of the

mitigating factor found in ABA Standard 9.32(e).8 He contends that there was no evidence

to support the hearing panel’s finding that the Board had difficulty contacting him during

the proceedings, a point on which the trial court agreed. However, Mr. Johnson argues that

the trial court then erred by finding that despite the fact that it disagreed with the hearing

panel in not applying this mitigating factor, it could not reduce his sanction. Mr. Johnson

contends that the hearing panel’s reliance “upon non-existent evidence,” along with the

introduction of Exhibit 5, “shows that the [hearing] [p]anel acted arbitrarily and

capriciously.”

The application of this mitigating factor traditionally requires a finding that an

attorney went above and beyond in cooperating with the Board. See, e.g., In re Disciplinary

Proc. Against Trejo, 185 P.3d 1160, 1176 (Wash. 2008) (en banc) (applying mitigating

factor based on cooperation of attorney who volunteered additional information of his

violations outside the scope requested by the state bar); In re Mann, 853 P.2d 1115, 1119

n.12 (Alaska 1993) (applying mitigating factor based on attorney voluntarily turning

himself in for violations which could have gone undiscovered without his disclosure). And

even then, it should typically be afforded little weight, as attorneys have a duty to cooperate

with disciplinary authorities. See Tenn. Sup. Ct. R. 9, § 1 (Preamble).

As an initial matter, we agree with Mr. Johnson that the record did not support the

hearing panel’s finding that he failed to keep an active mailing address on file with the

Board. He apparently did not live at the address on file, but he testified that he retrieved

his mail from the house. In fact, the only communication from the Board that he allegedly

never received was a private admonition in a separate matter. No other salient facts about

his mailing address, other than it was the home of his ex-wife, appear in the record. Thus,

8

“[F]ull and free disclosure to disciplinary board or cooperative attitude toward proceedings.”

ABA Standard 9.32(e).

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there was not substantial or material evidence to support the hearing panel’s finding that

Mr. Johnson’s mailing address caused any real contact issues with him.

However, the hearing panel relied on additional evidence in declining to apply this

mitigating factor. It found that Mr. Johnson was “not as diligent as he could have been in

ensuring that [the Board] could contact him during this important matter,” and that he

raised certain objections late. The hearing panel’s findings of fact lend significant support

to this determination. The Board sent Mr. Johnson a copy of Ms. Howard’s complaint by

email on April 13, 2021, and requested a response within ten days. On May 6, 2021, the

Board sent additional information to Mr. Johnson and requested a response within seven

days. Mr. Johnson did not respond to the Board until May 18, 2021, thirty-five days after

the initial communication and twelve days after the follow-up. In his response, he stated

he would need until May 25, 2021, to provide a written response. On June 4, 2021, ten

days after his personally requested deadline and fifty-two days after the Board’s initial

communication, Mr. Johnson finally provided his written response. Clearly, there was

substantial and material evidence to support the hearing panel’s finding that Mr. Johnson

could have been more diligent in his communications with the Board.

There is also substantial and material evidence to support the hearing panel’s finding

that Mr. Johnson raised certain objections late. A scheduling order was entered by the

hearing panel on April 7, 2022, setting forth various filing deadlines and a hearing date of

September 20, 2022. Included in this order was an August 17, 2022 deadline for all

motions in limine. On September 6, 2022, the Board served its witness list, which reserved

the right to call Ms. Howard as a “[p]otential rebuttal witness.” On the same day, Mr.

Johnson served his own witness list, which also included Ms. Howard. The day before the

scheduled hearing and after all deadlines in the scheduling order had run, the hearing panel

continued the hearing until October 17. During an October 7 hearing conducted upon Mr.

Johnson’s informal request, he moved to exclude Ms. Howard as a rebuttal witness for the

Board because he had been unable to serve her with a subpoena compelling her testimony

in his case in chief. The hearing panel denied the motion but ordered a second continuance

to provide Mr. Johnson with additional time to properly serve Ms. Howard. On November

18, Mr. Johnson once again moved to strike Ms. Howard as a rebuttal witness for the Board

after trying and failing to serve her with a subpoena. The hearing panel denied the motion

and found that despite having all relevant materials regarding the Board’s allegations for

months, he “delayed in deciding” to call her as a witness in his case-in-chief. He waited

until after the original hearing date had passed to raise the issue for the first time and was

given additional time to complete service upon her—which he failed to do. Upon review

of this record, we conclude that substantial and material evidence supports the hearing

panel’s decision to reject the mitigating factor found in Standard 9.32(e).

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Therefore, the hearing panel did not act arbitrarily or capriciously when it declined

to apply this mitigating factor.

Aggravating Factors

Mr. Johnson also disagreed with the hearing panel’s application of an aggravating

factor based on his failure to acknowledge the wrongfulness of his conduct. It is true that

this factor should not be applied where an attorney is merely mounting a defense. Bd. of

Pro. Resp. v. Daniel, 549 S.W.3d 90, 104 (Tenn. 2018). Generally, however, the

application of this factor is upheld as a matter of law where the facts are undisputed and

the lawyer refused to acknowledge the wrongfulness of his or her conduct. See, e.g., Fla.

Bar v. Germain, 957 So. 2d 613, 622 (Fla. 2007) (per curiam) (approving application of

aggravating factor under Standard 9.22(g) when lawyer stipulated to most of the facts, did

not dispute that he engaged in misconduct including lying under oath, yet continued to

assert that his actions did not constitute unethical conduct); Att’y Grievance Comm’n v.

Mininsohn, 846 A.2d 353, 376 (Md. 2004) (upholding aggravating factor because the

lawyer exhibited “a certain callousness toward his situation” and a “reluctance to accept

responsibility for his actions”).

It is a close question whether Mr. Johnson acknowledged the wrongfulness of his

conduct before the hearing panel and trial court. On one hand, the trial court found him to

be “remorseful to the point of being sorrowful regarding his conduct.”9 On the other hand,

however, central arguments in his defense in front of the hearing panel involved the

incorrect notion that his violation could have been avoided had he simply filed the

confidential information under seal. We do not doubt that Mr. Johnson regrets his actions,

but the hearing panel’s decision on this factor was supported by substantial and material

evidence in the record, and we will not substitute our judgment simply because reasonable

minds could disagree on this issue. Sallee, 469 S.W.3d at 42 (stating that under the abuse

of discretion standard, a hearing panel’s ruling “will be upheld so long as reasonable minds

can disagree as to propriety of the decision made”) (quoting State v. Scott, 33 S.W.3d 746,

752 (Tenn. 2000)).

Uniformity of Punishment

Mr. Johnson next argues that his suspension was overly harsh when compared to

other similar disciplinary cases. “In deciding an appropriate sanction when an attorney is

found to have breached the rules governing his or her profession, we are required to review

9

We do note, however, that this factor involves acknowledging wrongfulness, not merely

expressing remorse.

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all of the circumstances of the particular case and also, for the sake of uniformity, sanctions

imposed in other cases presenting similar circumstances.” Allison, 284 S.W.3d at 327.

Mr. Johnson cites three cases from the District of Columbia Court of Appeals and

urges this Court to find his suspension “too severe” in comparison. We decline to do so.

The cases cited by Mr. Johnson involve that court applying various jurisdictions’ rules to

disparate facts. In re Gonzalez, 773 A.2d 1026, 1027 (D.C. 2001) (applying Virginia law

where the state board sought only private admonition); In re Ponds, 876 A.2d 636, 636–37

(D.C. 2005) (per curiam) (applying Maryland law where neither party opposed a public

censure); In re Osemene, 277 A.3d 1271, 1271 (D.C. 2022) (applying District of Columbia

law where neither party objected to the recommended public censure). Mr. Johnson also

cites a public censure filed against a Washington County attorney in 2021 where the

attorney disclosed confidential information when responding to a former client’s negative

online review of his services. Release of Information, Bd. of Pro. Resp. of the Sup. Ct. of

Tennessee (Apr. 8, 2021), https://docs.tbpr.org/johnson-64942.pdf. The limited facts of

that case are significantly different than this matter, and that attorney was only found to

have violated a single, different Rule of Professional Conduct: 1.9(c) (duties to former

clients). See id.

Frankly, there are few disciplinary decisions in this state regarding disclosures of

confidential information,10 and none of them are “sufficiently similar to the case before us

to serve as direct precedent for the punishment in this case.” Vogel, 482 S.W.3d at 542.

Tennessee and other jurisdictions have imposed a variety of sanctions for violations of Rule

1.6,11 which suggests “that no one punishment is necessarily more appropriate than any

other in these types of cases.” Id. at 544.

Two decisions from this Court are somewhat instructive but both have significant

factual differences justifying harsher or lesser sanctions. First, in Vogel, an attorney was

placed on active suspension for a year for violations of Rules 1.7, 1.9, and 8.4 based on

two separate complaints. 482 S.W.3d at 522–33. In the relevant complaint, the attorney

had filed a motion to withdraw from representation in a criminal matter which stated that

he could not disclose the nature of the conflict of interest without violating attorney-client

confidentiality. Id. at 522. The trial court granted the motion, but the judge later instructed

10

Probably because client confidentiality is a bedrock principle that all attorneys realize they must

preserve and protect.

11

See, e.g., Matter of Breault, 913 S.E.2d 691, 699–700 (Ga. 2025) (ordering a six-month

suspension); Bd. of Pro. Resp. v. Austin, 538 P.3d 653, 656 (Wyo. 2023) (upholding a sixty-day

suspension); In re Disciplinary Action Against Dyer, 817 N.W.2d 351, 363 (N.D. 2012) (ordering a nine-

month suspension); In re Lyle, 74 A.3d 654 (Del. 2013), reinstatement granted, 86 A.3d 1119 (Del. 2014)

(unpublished table decision) (upholding public reprimand and six-month suspension).

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the attorney to send his former client an explanation after she had requested further

information for why the attorney had withdrawn. Id. The attorney obliged, sending a letter

which explained his withdrawal, divulged confidential information related to the

representation, and “contained assertions that cast [the client] in a negative light.” Id. at

522–23. For whatever reason, the attorney sent a copy of this letter to the judge—who was

still assigned to the case at that point. Id. at 523. Ultimately, the attorney was found to

have violated Rules 1.9 and 8.4 related to this disclosure of confidential client information.

Id. at 522–24. The attorney had also engaged in an inappropriate sexual relationship with

a client in violation of Rules 1.7(a)(2) and 8.4(a). Id. at 524–29. While the hearing panel

initially imposed a twelve-month suspension with only thirty days active, this Court found

that punishment inadequate and ultimately imposed a twelve-month active suspension. Id.

at 544.

More recently in Slaughter v. Board of Professional Responsibility of the Supreme

Court of Tennessee, this Court upheld a hearing panel’s decision to impose a public censure

on an attorney for violating Rules 1.6 and 8.4. 706 S.W.3d 326, 329 (Tenn. 2025). In that

matter, an attorney had a meeting with a client, another party, and that other party’s

counsel. Id. During that meeting, Mr. Slaughter expressed concerns about a prior case he

had worked on and the other attorney’s connection to it, revealing confidential information

about that case and the parties involved, including a juvenile victim. Id. The other attorney

ended the meeting and reported the behavior to the Board. Id. Mr. Slaughter argued at

different points that the information was either not confidential or that he had his client’s

consent, both of which the Board and hearing panel rejected. Id. at 329–30. Ultimately,

this Court overturned a finding that the attorney had violated Rule 4.4(a)(1) but upheld the

hearing panel’s decision to impose a public censure for a violation of Rule 1.6(a). Id. at

334.

These two cases highlight how the factual context of the disclosure of confidential

information, as well as the existence of other Rules violations, can justify a lesser or stricter

sanction for attorneys. The Slaughter case involved a lesser sanction for a single Rule 1.6

violation, and Mr. Johnson was found here to have violated additional Rules with the

presence of additional aggravating factors. And while the method of disclosure in Vogel

was more similar to Mr. Johnson’s actions, the violations in that case included an improper

sexual relationship that justified a more substantial sanction. 482 S.W.3d at 540–45.

Ultimately, we do not see any justification in our case law to alter Mr. Johnson’s

sanction for purposes of uniformity of punishment.

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Potential Injury

Finally, Mr. Johnson argues that Ms. Howard did not suffer any actual harm. While

it is not entirely clear, Mr. Johnson appears to be arguing that the lack of actual injury

entitles him to a lesser punishment. Regardless, his argument fails. The Board did not

allege actual harm, and the hearing panel did not find any. But the hearing panel did find

potential injury, which Mr. Johnson does not dispute in his briefing. ABA Standard 3.0

does not differentiate between potential or actual injury, and both ABA Standards 4.22 and

4.23 can apply where there is a showing of either potential or actual injury. ABA Standards

3.0, 4.22, 4.23. Certainly, a showing of actual harm to Ms. Howard could have been used

as justification by the hearing panel for a more significant sanction, but a finding of

potential injury is all that is required for section 4.22 to apply and suspension to become

the presumptive sanction.

There was substantial and material evidence to support the hearing panel’s finding

that Mr. Johnson’s violations had the potential to cause his client injury. Mr. Johnson

exposed communications from a client going through a contentious divorce where custody

of children was at issue that (1) detailed her position on substantive issues in the case that

her husband could have used to his advantage, and (2) contained emotional and angry

reactions that could have affected the trial court’s opinion of her. It is good that Ms.

Howard was apparently not actually injured by Mr. Johnson’s violation, but the finding of

potential for injury was supported by substantial and material evidence in the record.

CONCLUSION

We “take[] seriously [our] obligation to supervise and regulate the practice of law.”

Sneed, 301 S.W.3d at 618. We issue licenses to those whom we deem qualified to engage

in the practice of law and, when necessary, discipline attorneys who violate the rules

governing the profession. Id. “[A] license to practice law in this state is not a right, but a

privilege.” Id. (citing Milligan v. Bd. of Pro. Resp., 301 S.W.3d 619, 630 (Tenn. 2009)).

“It is the duty of every recipient of [this] privilege to act at all times, both professionally

and personally, in conformity with the standards imposed upon members of the bar as

conditions for the privilege to practice law.” Tenn. Sup. Ct. R. 9, § 1.

Mr. Johnson violated a foundational principle of the attorney-client relationship

when he knowingly revealed confidential communications to and from his client. Based

on substantial and material evidence, the hearing panel found that he published confidential

information “in retaliation for her inquiries and requests.” It is apparent from the email

communications that Mr. Johnson and Ms. Howard had a contentious relationship, but that

is no excuse for Mr. Johnson’s actions. The public filing of embarrassing, confidential

client communications is a breach of the sanctity of attorney-client confidentiality.

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Mr. Johnson’s actions showed a baffling lack of respect for his client’s confidential

information. It is not uncommon for an attorney to feel compelled to withdraw when the

relationship with the client breaks down. And we have no doubt that this particular

attorney-client relationship had reached that point. But if Mr. Johnson felt it was time to

end the relationship, he could have filed a motion to withdraw citing “a breakdown in

communication” or something similar. Courts in this state generally do not require more

specific information, especially when that information may be protected by Rule 1.6. See

ABA Comm. on Ethics & Pro. Resp., Formal Op. 476 (2016) (discussing attorneys’

obligation to comply with Rule 1.6 when moving to withdraw from representation). If he

felt that Rule 1.16 required him to disclose specific justifications for his withdrawal, he

could have taken steps short of publicly filing confidential client communications,

including: filing a motion to withdraw that informed the court that ethical rules prevented

him from disclosing detailed justifications; contacting the Board for an informal ethics

opinion; or even simply reviewing the Rules of Professional Conduct to see which may

apply to his motion.12 Mr. Johnson chose to do none of those things and, instead, violated

his client’s confidences.

The confidentiality of communications between a client and attorney is sacred. It is

not to be violated or taken lightly. Lawyers sometimes have bad days and difficult client

relationships, but that is not an excuse to violate a client’s trust.

The hearing panel did not abuse its discretion when it suspended Mr. Johnson from

the practice of law for three months with thirty days served as active suspension. There

was substantial and material evidence to support the relevant findings and to apply ABA

Standard 4.22 with suspension as the presumptive sanction. The hearing panel did not act

arbitrarily or capriciously in reaching its findings or in determining the ultimate sanction.

We therefore affirm the judgments of the hearing panel and trial court imposing a

suspension of three months with thirty days served as active suspension along with

additional CLE requirements. The costs of this appeal are taxed to Mr. Johnson, for which

execution may issue if necessary.

_______________________________

DWIGHT E. TARWATER, JUSTICE

12

Mr. Johnson testified that he did not even research Rule 1.6 until approximately two weeks before

his hearing.

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