William Caldwell Hancock v. Board of Professional Responsibility of the Supreme Court of Tennessee

IN THE SUPREME COURT OF TENNESSEE

AT NASHVILLE

February 5, 2014 Session

WILLIAM CALDWELL HANCOCK v.

BOARD OF PROFESSIONAL RESPONSIBILITY

OF THE SUPREME COURT OF TENNESSEE

Direct Appeal from the Chancery Court for Davidson County

Nos. 11-1816-IV & 11-1797-IV Donald P. Harris, Special Judge

No. M2012-02596-SC-R3-BP - Filed September 3, 2014

A federal bankruptcy court entered judgment denying a Nashville attorney’s application for

approximately $372,000 in attorney’s fees and expenses. Nine months later, the attorney

emailed the bankruptcy judge who denied his fee application, calling the judge a “bully and

clown” and demanding that he provide a written apology for denying the fee application.

The Board of Professional Responsibility instituted a disciplinary action against the attorney,

and a hearing panel of the Board found that the attorney violated several Rules of

Professional Conduct by sending the email and recommended that the attorney be suspended

from the practice of law for thirty days. The chancery court modified the hearing panel’s

judgment to include additional violations for misconduct associated with the attorney’s briefs

filed in the district court but affirmed the remainder of the hearing panel’s judgment. The

attorney timely appealed to this Court. We affirm the hearing panel’s conclusion that the

attorney’s email violated the rule against ex parte communications and was also sanctionable

as “conduct intended to disrupt a tribunal.” We conclude, however, that the hearing panel

erred by finding the attorney in violation of the ethical rule that prohibits attorneys from

making false statements about the qualifications or integrity of a judge. We also reverse the

chancery court’s modification of the hearing panel’s judgment. We affirm the attorney’s

thirty-day suspension from the practice of law.

Tenn. Sup. Ct. R. 9, § 1.3 Direct Appeal;

Judgment of the Chancery Court Affirmed in Part; Reversed in Part

J ANICE M. H OLDER, J., delivered the opinion of the Court, in which S HARON G. L EE , J.,

joined. G ARY R. W ADE, C.J., and C ORNELIA A. C LARK, J., each filed a concurring opinion.

W ILLIAM C. K OCH, J R., J., not participating.

William Caldwell Hancock, Nashville, Tennessee, Pro Se.

Krisann Hodges, Brentwood, Tennessee, for the appellee, Board of Professional

Responsibility of the Supreme Court of Tennessee.

OPINION

I. Facts and Procedural History

On August 20, 2010, the Board of Professional Responsibility of the Supreme Court

of Tennessee (“the Board”) filed a petition for discipline against William Caldwell Hancock,

an attorney licensed in Tennessee since 1977. In its petition, the Board alleged that Mr.

Hancock violated a number of the Rules of Professional Conduct while acting as debtor’s

counsel for Barnhill’s Buffet, Inc. (“Barnhill’s”) in a bankruptcy action filed in the United

States Bankruptcy Court for the Middle District of Tennessee.12 On February 1, 2011, the

Board amended its petition for discipline, but the facts alleged in the Board’s initial and

amended petitions are identical. A hearing panel heard the case on October 11 and 12, 2011,

during which the following facts were revealed.

On December 3, 2007, Mr. Hancock filed a voluntary bankruptcy petition on behalf

of Barnhill’s in the United States Bankruptcy Court for the Middle District of Tennessee.

After several months of contentious litigation, Mr. Hancock moved to withdraw as Barnhill’s

counsel on April 18, 2008, stating:

[I have] been subjected to what are considered to be criminal threats of adverse

action to be taken unless [Barnhill’s] or other parties could not or would not

affirmatively meet the demand of other counsel for a set aside of estate or

creditor assets to secure said counsel’s legal fees, which threats turned into

reality when those demands were not met. The United States Trustee seems

unwilling to remedy that misconduct. That same counsel has knowingly made

(and refused to withdraw) wholly false allegations regarding [me] and

[Barnhill’s] management in order to leverage a fees carve out of $45,000 from

a creditor who opposed conversion.

Mr. Hancock subsequently filed a notice to withdraw his motion, but his employment was

eventually terminated when Barnhill’s bankruptcy was converted to a Chapter 7 proceeding

12

The Board’s petition also alleged that Mr. Hancock violated several rules of professional conduct

while acting as debtor’s counsel for Innovative Entertainment Concepts, Inc. (“IEC”) in another voluntary

bankruptcy action that was filed in the United States Bankruptcy Court for the Middle District of Tennessee.

The hearing panel determined, however, that Mr. Hancock had not committed professional misconduct in

the IEC case, and the hearing panel’s findings in that regard are not challenged by either party in this appeal.

We have therefore limited our discussion of the issues in this opinion to Mr. Hancock’s relevant conduct in

the Barnhill’s case.

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and a trustee was appointed. On June 3, 2008, Mr. Hancock filed an initial fee application

with the bankruptcy court seeking $355,975 for attorney’s fees and expenses. The United

States Trustee objected to Mr. Hancock’s fee application, arguing, among other things, that

Mr. Hancock’s fees were unnecessarily and unreasonably inflated by his “abusive . . .

litigation tactics” during the case and by his failure to make adequate disclosures concerning

his alleged prior representation of an interested party in the Barnhill’s case. On July 7, 2008,

Mr. Hancock filed a First and Final Application for Allowance of Compensation, seeking

$356,554.50 in fees and $1071.55 in expenses. Mr. Hancock amended his final fee

application on July 17, 2008, requesting total compensation in the amount of $372,967.55

for attorney’s fees and expenses.

Following a five-day hearing, the bankruptcy court entered a twenty-six-page

memorandum opinion on December 9, 2008, denying Mr. Hancock’s request for fees but

awarding him $1071.55 for expenses. In support of its denial of Mr. Hancock’s fee, the

bankruptcy court described Mr. Hancock’s behavior throughout the Barnhill’s case as

“unprofessional,” “dilatory,” “disruptive,” “troubling,” “unacceptable,” “abusive,”

“intractable,” and “unfortunate.” The bankruptcy court acknowledged that Mr. Hancock

possessed a “keen intellect and understanding of bankruptcy law,” but it was “troubled

deeply” by his conduct and was “saddened by [his] apparent inability to either realize or

control his inappropriate actions and his propensity for conservative disclosures rather than

overt transparency.”

Mr. Hancock appealed the bankruptcy court’s denial of his fee to the United States

District Court for the Middle District of Tennessee. Mr. Hancock’s brief was due to be filed

in the district court on March 27, 2009, but on March 25, 2009, he moved to extend the time

for filing a brief, which the district court granted, extending Mr. Hancock’s filing deadline

to April 27, 2009. On May 1, 2009, Mr. Hancock filed a second motion to extend his time

for filing a brief and additionally sought “permission to file a brief in excess of [twenty-five]

but not more than [fifty] pages in length.” The district court granted Mr. Hancock’s requests

on May 11, 2009. As of August 5, 2009, however, Mr. Hancock had not yet filed a brief, and

the district court therefore entered an order to show cause why his appeal should not be

dismissed. Rather than respond to the district court’s show cause order, Mr. Hancock filed

a 128-page brief on August 14, 2009.

The Trustee moved to dismiss Mr. Hancock’s appeal or, in the alternative, to compel

his compliance with the district court’s prior order limiting his brief to fifty pages. On

August 31, 2009, the district court entered an order requiring Mr. Hancock to file a revised

brief not to exceed fifty pages. In response, Mr. Hancock filed a “revised brief” on

September 21, 2009. Although the two briefs were substantively identical, the font size and

spacing used in the revised brief reduced its size from 128 pages to fifty-one pages. Rather

than dismiss Mr. Hancock’s appeal for his failure to file a compliant brief, the district court

entered an order on September 23, 2009, summarily affirming the bankruptcy court’s ruling.

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In its order, the district court explained that it chose a summary affirmance because it “fully

expect[ed Mr. Hancock] to appeal further to the Sixth Circuit Court of Appeals, where he

might receive a decision on the merits.”

On September 28, 2009, Mr. Hancock sent the following email to Judge George Paine,

the bankruptcy court judge who denied his fee application in the Barnhill’s case:

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Two days after sending the email, Mr. Hancock appealed to the Sixth Circuit, which

affirmed the district court’s decision. See Hancock v. McDermott, 646 F.3d 356, 360 (6th

Cir. 2011).

Findings of the Hearing Panel

On November 2, 2011, the hearing panel filed its written findings with the Board in

compliance with Tennessee Supreme Court Rule 9. See Tenn. Sup. Ct. R. 9, § 8.3 (requiring

the hearing panel to submit its written findings within fifteen days of the conclusion of the

hearing).13 The hearing panel concluded that by sending the email to Judge Paine, Mr.

Hancock violated Rules 3.5(b)14 and (e),15 8.2(a)(1),16 and 8.4(a) and (d).17 The hearing

panel, however, did not find that Mr. Hancock violated any other Rules of Professional

Conduct as alleged by the Board in its petitions.18 The hearing panel considered the

American Bar Association’s Standards for Imposing Lawyer Sanctions (“ABA Standards”)

and determined that a suspension was appropriate. The hearing panel next determined that

the Board had proven the following aggravating factors: (1) Mr. Hancock’s multiple

13

Effective January 1, 2014, this Court made comprehensive changes to Rule 9. The events

described in this opinion, however, occurred prior to the effective date of our rule change. Any references

in this opinion to Rule 9 are therefore to the version in effect at the time of Mr. Hancock’s disciplinary

hearing.

14

Tennessee Supreme Court Rule 8, RPC 3.5(b) provides that “[a] lawyer shall not . . . communicate

ex parte with [a judge] during the proceeding unless authorized to do so by law or court order.”

15

Tennessee Supreme Court Rule 8, RPC 3.5(e) prohibits lawyers from “engag[ing] in conduct

intended to disrupt a tribunal,” and this prohibition extends “to any proceeding of a tribunal, including a

deposition.” Tenn. Sup. Ct. R. 8, RPC 3.5, cmt. 6.

16

Tennessee Supreme Court Rule 8, RPC 8.2(a)(1) states that “[a] lawyer shall not make a statement

that the lawyer knows to be false or that is made with reckless disregard as to its truth or falsity concerning

the qualifications or integrity of [a judge].”

17

Tennessee Supreme Court Rule 8, RPC 8.4(a) states, “It is professional misconduct for a lawyer

to violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do

so, or do so through the acts of another.” Similarly, Tennessee Supreme Court Rule 8, RPC 8.4(d) provides

that “[i]t is professional misconduct for a lawyer to . . . engage in conduct that is prejudicial to the

administration of justice.”

18

The hearing panel rejected the Board’s contention that Mr. Hancock violated the following Rules

of Professional Conduct during the Barnhill’s case: 1.5(a) (fees), 1.7(a) (conflicts), 3.2 (expediting litigation),

3.3(a)(1) (candor toward the tribunal), 3.4(c) (fairness to opposing counsel), 3.5(e) (impartiality and decorum

of the tribunal), 4.4(a) (respect for the rights of third persons), and 8.4(c) (conduct involving dishonesty,

fraud, deceit, or misrepresentation). The hearing panel also found that Mr. Hancock’s email to Judge Paine

did not violate Rule 4.1(a), which states that “[i]n the course of representing a client, a lawyer shall not

knowingly make a false statement of material fact or law to a third person.” Tenn. Sup. Ct. R. 8, RPC 4.1.

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offenses; (2) his refusal to acknowledge the wrongful nature of his conduct; and (3) his

substantial experience in the practice of law. In mitigation, the hearing panel considered Mr.

Hancock’s personal and emotional problems during and after the Barnhill’s case. Based on

its assessment of the evidence and the relevant aggravating and mitigating circumstances, the

hearing panel concluded that Mr. Hancock should be suspended from the practice of law for

thirty days.

Both parties appealed the hearing panel’s judgment by filing separate petitions for

certiorari in the Chancery Court for Davidson County. See Tenn. Sup. Ct. R. 9, § 1.4 (“An

appeal from the recommendation or judgment of a hearing panel must be filed in the circuit

or chancery court of the county wherein the office of the respondent[-attorney] was located

at the time the charges were filed with the Board.”). The chancery court heard arguments

from counsel and entered judgment on October 25, 2012, affirming Mr. Hancock’s thirty-day

suspension but modifying the hearing panel’s judgment to include violations of Rules 3.2,19

3.4(c),20 8.4(a), and 8.4(d) for failing to file a brief in the district court that complied with the

district court’s prior orders and with its local rules.21

In its memorandum opinion, the chancery court explained that although the hearing

panel found that Mr. Hancock’s revised brief failed to comply with the district court’s orders

and with the local rules, the hearing panel nevertheless failed to find Mr. Hancock in

violation of the Rules of Professional Conduct for his actions concerning the district court

brief. The chancery court concluded that the hearing panel’s failure to make these findings

“appears to have been an oversight and . . . renders the decision of the hearing panel arbitrary

with regard to these alleged violations. . . .” The chancery court further explained that it

modified the judgment rather than remand the case to the hearing panel because “the

violations alleged would not justify the imposition of additional sanctions and this matter

needs to be concluded.” Accordingly, the chancery court affirmed Mr. Hancock’s thirty-day

suspension from the practice of law, and Mr. Hancock timely appealed to this Court.

19

Tennessee Supreme Court Rule 8, RPC 3.2 states, “A lawyer shall make reasonable efforts to

expedite litigation.”

20

Tennessee Supreme Court Rule 8, RPC 3.4(c) prohibits lawyers from “knowingly disobey[ing] an

obligation under the rules of a tribunal, except for an open refusal based on an assertion that no valid

obligation exists.”

21

On February 12, 2014, Mr. Hancock filed a “Motion to Annul the Judgment on Appeal for Fraud

Perpetrated Upon Disciplinary Tribunals and the Court by Disciplinary Counsel” in this Court. In his

motion, Mr. Hancock argues that the district court’s order did not impose a fifty-page limit for his brief.

After considering Mr. Hancock’s motion, the Board’s response, and the entire record, we conclude that Mr.

Hancock’s motion is without merit, and it is therefore denied.

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II. Analysis

Our review of the hearing panel’s judgment is governed by Tennessee Supreme Court

Rule 9, section 1.3, which provides as follows:

The court may reverse or modify the [hearing panel’s] decision if the rights of

the petitioner have been prejudiced because the panel’s findings, inferences,

conclusions or decisions are: (1) in violation of constitutional or statutory

provisions; (2) in excess of the 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 light of the entire record.

Absent these limited circumstances, the hearing panel’s decision should not be disturbed on

appeal. Maddux v. Bd. of Prof’l Responsibility, 409 S.W.3d 613, 621-22 (Tenn. 2013).

Tennessee Supreme Court Rule 9, section 1.3 further prohibits us from substituting our

judgment for that of the hearing panel on questions of fact and the weight of the evidence.

A. Ex Parte Communication

We first address Mr. Hancock’s contention that the hearing panel erred by finding him

in violation of Tennessee Supreme Court Rule 8, RPC 3.5(b), which states that “[a] lawyer

shall not communicate ex parte with [a judge] during the proceeding unless authorized to do

so by law or court order.” Mr. Hancock maintains that because he had appealed Judge

Paine’s ruling before he sent the email, it was not sent “during the proceeding” and is

therefore not an ex parte communication. See generally Malmquist v. Malmquist, 415

S.W.3d 826 (Tenn. Ct. App. 2011), perm. app. denied (Tenn. Feb. 21, 2012) (concluding that

a trial judge was not required to recuse himself from a case when a threat allegedly made by

one of the litigants was communicated to the trial judge through a third party while the case

was on appeal). In contrast, the Board argues that although Mr. Hancock had appealed, his

email was sent while the Barnhill’s bankruptcy was ongoing in Judge Paine’s court. The

Board therefore contends that Mr. Hancock’s email was sent “during the proceeding.”

The phrase “during the proceeding” is not defined in Rule 3.5 or in its accompanying

comments. Comment 1 to Rule 3.5 states, however, that “[m]any forms of improper

influence upon a tribunal . . . are specified in the Tennessee Code of Judicial Conduct, with

which an advocate should be familiar.” The Code of Judicial Conduct’s analog to Rule 3.5

prohibits judges from “initiat[ing], permit[ting], or consider[ing] ex parte communications

. . . concerning a pending or impending matter.” Tenn. Sup. Ct. R. 10, RJC 2.9. The Code

of Judicial Conduct defines a “pending matter” as “a matter that has commenced” and

explains that “a matter continues to be pending through any appellate process until final

disposition.” Tenn. Sup. Ct. R. 10, Terminology. Because the judicial prohibition against

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ex parte communications extends to cases that have not yet completed the appellate process,

we can determine no reason why attorneys should not be similarly constrained. See Leslie

W. Abramson, The Judicial Ethics of Ex Parte and Other Communications, 37 Hous. L. Rev.

1343, 1391 (2001) (noting that “a proceeding is ‘pending’ from the filing of the claim until

the rendition of a final judgment” and that a lawyer may only communicate with a judge

about the merits of the case “[o]nce the time for appeal has run”); Alex Rothrock, Ex Parte

Communications with a Tribunal: From Both Sides, 29 Colo. Law. 55, 58 (2000) (noting that

“[t]he ‘pending or impending proceeding’ limitation on prohibited ex parte communications

has been extended to Rule 3.5(b)”); see also Restatement (Third) of The Law Governing

Lawyers § 113(1) (2000) (prohibiting attorneys from “knowingly communicat[ing] ex parte

with a judicial officer before whom a proceeding is pending concerning the matter, except

as authorized by law”) (emphasis added). Accordingly, Rule 3.5(b)’s proscription of ex parte

communications extends “through any appellate process until final disposition.” Tenn. Sup.

Ct. R. 10, Terminology.

Here, Mr. Hancock emailed Judge Paine on September 28, 2009, and specifically

referenced Judge Paine’s denial of his fee application. Two days later, Mr. Hancock

appealed the district court’s summary affirmance to the United States Court of Appeals for

the Sixth Circuit. Because the time in which Mr. Hancock could appeal the district court’s

ruling had not yet expired, the email was sent “during the proceeding” and constitutes an ex

parte communication in violation of Rule 3.5(b). We therefore affirm the hearing panel’s

finding that Mr. Hancock violated Rule 3.5(b).

Although we have concluded that Mr. Hancock’s email to Judge Paine constituted an

ex parte communication, we must nevertheless address Mr. Hancock’s alternative argument

that he may not be disciplined for his email because the email was permitted by Rule 9003(a)

of the Federal Rules of Bankruptcy Procedure. Rule 9003(a) states that “[e]xcept as

otherwise permitted by applicable law, any examiner, any party in interest, and any attorney,

accountant, or employee of a party in interest shall refrain from ex parte meetings and

communications with the court concerning matters affecting a particular case or proceeding.”

Mr. Hancock contends that federal precedents have interpreted Rule 9003(a) as only

prohibiting communications made prior to the trial court’s rendering a final decision. Mr.

Hancock cites, for example, the United States Court of Appeals for the Fifth Circuit’s

decision in In re Texas Extrusion Corp., 844 F.2d 1142 (5th Cir. 1988). In that case, the

bankruptcy judge verbally confirmed a joint plan of reorganization and asked counsel for one

of the creditors to prepare proposed findings of fact and conclusions of law. Id. at 1149-50.

The creditor’s counsel submitted proposed findings of fact and conclusions of law directly

to the bankruptcy judge and did not provide copies to the debtor’s counsel. Id. at 1150. On

appeal, the debtor argued that the creditor’s counsel engaged in ex parte communications in

violation of Bankruptcy Rule 9003(a). Id. at 1164. The Fifth Circuit reasoned, however, that

“[t]he matter was no longer pending for purposes of these provisions prohibiting ex parte

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contacts between counsel for a party and a judge in whose court that party’s case is pending.”

Id.

Notwithstanding the factual differences between Mr. Hancock’s case and In re Texas

Extrusion Corp., we do not view the Fifth Circuit’s decision as controlling law in this

disciplinary proceeding. As the advisory committee’s notes to Rule 9003(a) make clear,

“[Rule 9003(a)] is not a substitute for or limitation of any applicable canon of professional

responsibility or judicial conduct.” Fed. R. Bankr. P. 9003(a) advisory committee’s note.

Pursuant to Tennessee Supreme Court Rule 8, RPC 8.5(a), Mr. Hancock is subject to

this Court’s disciplinary authority “regardless of where [his] conduct occur[red].” The

applicable standards of professional conduct in this case therefore derive from Tennessee

Supreme Court Rule 8, not Bankruptcy Rule 9003(a). See Tenn. Sup. Ct. R. 8, RPC 8.5(b)(1)

(stating that the applicable rules of professional conduct “for conduct in connection with a

matter pending before a tribunal[ are] the rules of the jurisdiction in which the tribunal sits,

unless the rules of the tribunal provide otherwise.”); see also Bankr. M.D. Tenn. R. 2091-1(a)

(“The standards of professional conduct for an attorney who appears for any purpose [in the

United States Bankruptcy Court for the Middle District of Tennessee] shall include the

current rules of professional conduct adopted by the Supreme Court of the State of

Tennessee.”).22 Accordingly, Mr. Hancock’s preemption argument is without merit. We

therefore affirm the hearing panel’s finding that Mr. Hancock violated Rule 3.5(b).

B. Conduct Intended to Disrupt a Tribunal

We must next determine whether the hearing panel erred by finding that Mr.

Hancock’s email constituted “conduct intended to disrupt a tribunal.” Tenn. Sup. Ct. R. 8,

RPC 3.5(e). Comment 5 to Rule 3.5(e) explains that an attorney’s “function is to present

evidence and argument so that the cause may be decided according to law.” To that end,

“[a]n advocate can present the cause, protect the record . . . , and preserve professional

integrity” without “belligerence or theatrics.” Tenn. Sup. Ct. R. 8, RPC 3.5 cmt. 5. An

attorney’s ethical obligation to avoid engaging in conduct intended to disrupt a tribunal

extends to “any proceeding of a tribunal, including a deposition,” Tenn. Sup. Ct. R. 8, RPC

3.5 cmt. 6, and the attorney’s conduct “need not occur inside the courtroom to be disruptive

to a tribunal.” Ann. Mod. Rules Prof. Cond., Rule 3.5 (7th ed. 2011). But see Geoffrey C.

Hazard, Jr. & W. William Hodes, The Law of Lawyering § 31.6, at 31-38 (3d ed. 2007)

(opining that “[i]f a lawyer takes action outside a courtroom setting, it is virtually impossible

that it could ‘disrupt’ a tribunal or be intended to do so”).

22

The Local Rules of Court for the United States Bankruptcy Court for the Middle District of

Tennessee underwent comprehensive amendments that went into effect on December 1, 2013. Because the

events described in this opinion preceded those amendments, all references to the Local Bankruptcy Rules

in this opinion are to the Rules in effect at the time of Mr. Hancock’s disciplinary hearing.

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Based on the text of the rule and its comments, the scope of Rule 3.5(e) is clearly

limited to those situations in which an attorney’s actions interfere with a tribunal’s ability to

conduct its affairs. Although we recognize that Mr. Hancock was not involved in the

ongoing litigation of Barnhill’s bankruptcy action when he emailed Judge Paine, a

“proceeding” was nevertheless pending because his time for appealing to the Sixth Circuit

had not yet expired. As the hearing panel acknowledged, Mr. Hancock’s email has a

“threatening tone” and represents the “abusive [and] obstreperous conduct” that Rule 3.5(e)

prohibits. Tenn. Sup. Ct. R. 3.5(e) cmt. 5. We therefore conclude that Mr. Hancock’s

violation of Rule 3.5(e) is supported by substantial and material evidence.23

C. Statement Concerning Judge Paine’s Integrity

We next address Mr. Hancock’s challenge to Tennessee Supreme Court Rule 8, RPC

8.2(a)(1), which provides that “[a] lawyer shall not make a statement that the lawyer knows

to be false or that is made with reckless disregard as to its truth or falsity concerning the

qualifications or integrity of . . . a judge . . . .” Mr. Hancock maintains that Rule 8.2(a)(1)

is a facially unconstitutional, content-based restriction on his right to free speech under the

United States and Tennessee Constitutions. See U.S. Const. amend. I (“Congress shall make

no law . . . abridging the freedom of speech . . . .”); Tenn. Const. art. 1, § 19 (stating in part

that “[t]he free communication of thoughts and opinions, is one of the invaluable rights of

man, and every citizen may freely speak, write, and print on any subject”); see also S. Living,

Inc. v. Celauro, 789 S.W.2d 251, 253 (Tenn. 1990) (recognizing that Article I, Section 19 of

the Tennessee Constitution “should be construed to have a scope at least as broad” as that of

the First Amendment to the United States Constitution). Specifically, Mr. Hancock borrows

from the law of defamation and argues that Rule 8.2(a)(1) violates the First Amendment

because it does not require the Board to prove that the attorney “published” the false

statement about the judge’s integrity or qualifications. Mr. Hancock also contends that Rule

8.2(a)(1) is unconstitutional as applied to his case because the Board did not prove that his

statements in the email were “actually false.”

23

Mr. Hancock also asserts in his brief that Rule 3.5(e) is unconstitutional. Mr. Hancock cites no

authority for this proposition and provides no rationale for his conclusion. We therefore decline to address

this issue. But see Gentile v. State Bar of Nev., 501 U.S. 1030, 1081-82 (1991) (O’Connor, J., concurring)

(stating that attorneys “may legitimately be subject to ethical precepts that keep them from engaging in what

otherwise might be constitutionally protected speech”); Bd. of Prof’l Responsibility v. Slavin, 145 S.W.3d

538, 549 (Tenn. 2004) (recognizing that attorneys’ First Amendment rights “are often subordinated to other

interests inherent in the judicial setting”); Ramsey v. Bd. of Prof’l Responsibility, 771 S.W.2d 116, 121

(Tenn. 1989) (“A lawyer has every right to criticize court proceedings and the judges and courts of this State

after a case is concluded, so long as the criticisms are made in good faith with no intent or design to willfully

or maliciously misrepresent those persons and institutions or to bring them into disrepute.”) (emphasis

added).

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It is well settled that this Court will decide constitutional issues only when doing so

is “absolutely necessary for [the] determination of the case and the rights of the parties.”

Owens v. State, 908 S.W.2d 923, 926 (Tenn. 1995). We therefore resolve appeals on non-

constitutional grounds whenever it is possible to do so. Keough v. State, 356 S.W.3d 366,

371 (Tenn. 2011). Because we conclude that Rule 8.2 implicitly requires proof of

publication, we decline to decide Mr. Hancock’s constitutional argument.

Rule of Professional Conduct 8.2 prohibits an attorney from making false statements

concerning the integrity or qualifications of a judge because these statements “unfairly

undermine public confidence in the administration of justice.” Tenn. Sup. Ct. R. 8, RPC 8.2

cmt. 1; Ramsey, 771 S.W.2d at 121 (describing the harm that results from a lawyer’s false

statements about a judge as being the “dimin[ution of] the confidence of the public in our

courts”). By the same token, Rule 8.2 is “not designed to shield judges from unpleasant or

offensive criticism.” Office of Disciplinary Counsel v. Gardner, 793 N.E.2d 425, 432 (Ohio

2003); see also In re Green, 11 P.3d 1078, 1087 (Colo. 2000) (recognizing a “reduced

governmental interest” when the attorney’s criticisms of the judge were communicated only

to the judge and opposing counsel); In re Wilkins, 777 N.E.2d 714, 718 (Ind. 2002)

(recognizing “the state’s interest in preserving the public’s confidence in the judicial

system”); In re Holtzman, 577 N.E.2d 30, 33 (N.Y. 1991) (stating that an attorney’s public

statements to media about a trial judge “undermine[d] public confidence in the judicial

system”); Tobin A. Sparling, Attorneys Un-Muzzled: Does Republican Party of Minnesota

v. White Invalidate the Use of an Objective Standard in Cases Involving Extrajudicial Speech

Criticizing a Judge?, 30 Hamline L. Rev. 59, 70 (2007) (characterizing courts’ primary

justification for sanctioning attorneys for statements about judges as being that “[t]he judicial

system suffers when [an attorney’s] false criticism diminishes public confidence in its

effectiveness and impartiality”). But see In re Evans, 801 F.2d 703, 706 (4th Cir. 1986)

(disbarring an attorney from federal court for statements made in a letter to a judge that were

“undignified, discourteous, and degrading” although the letter was sent to only the subject

judge).

This Court has long recognized that attorneys are in the best position to know the

“character and efficiency of our judges.” In re Hickey, 258 S.W. 417, 429 (Tenn. 1923).

Because attorneys are among the most credible of witnesses on the qualifications of judges,

the public routinely relies on attorneys’ assessments when deciding whether to vote for a

particular candidate seeking judicial office. Tenn. Sup. Ct. R. 8, RPC 8.2 cmt. 1; see also In

re Green, 11 P.3d at 1085 (acknowledging that public criticism of judges by attorneys is an

important public interest because many judges in Colorado are subject to retention elections).

Rule 8.2 therefore encourages attorneys to provide “honest and candid opinions” for the

public’s benefit. Tenn. Sup. Ct. R. 8, RPC 8.2 cmt 1.

Given the purpose of Rule 8.2(a)(1) and the harm that it seeks to prevent, we conclude

that an attorney may be disciplined pursuant to Rule 8.2 only if the false statement is

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communicated to a third party. See Restatement (Third) of The Law Governing Lawyers

§ 114 (providing that “[a] lawyer may not knowingly or recklessly make publicly a false

statement of fact concerning the qualifications or integrity of an incumbent of a judicial

office”) (emphasis added); see also id. at cmt. b (“Because the purpose of [Section 114] is

to protect the public reputation of the judicial and public legal office, there is less reason for

concern with statements made by a lawyer in private conversation. Such conversation is not

included within the rule.”). We are therefore unable to conclude that Mr. Hancock’s email

falls within the scope of Rule 8.2(a)(1) because the record lacks any indication that Mr.

Hancock sent the email to anyone other than Judge Paine.24 Although we agree with the

hearing panel’s conclusion that Mr. Hancock’s email was “extremely disrespectful,” we

cannot agree that it is sanctionable under Rule 8.2(a)(1). We therefore reverse the hearing

panel’s finding that Mr. Hancock violated Rule 8.2(a)(1).

D. Chancery Court’s Modification of the Judgment

We next address the chancery court’s modification of the judgment to include

violations of Rules of Professional Conduct 3.2, 3.4(c), 8.4(a), and 8.4(d) arising out of Mr.

Hancock’s late-filed and noncompliant briefs in the district court. The chancery court

concluded that because the hearing panel found as a factual matter that Mr. Hancock’s

revised brief failed to comply with the district court’s orders and with the local rules, the

hearing panel’s failure to find rule violations for these actions constituted “oversight and . . .

render[ed] the decision of the hearing panel arbitrary.” See Tenn. Sup. Ct. R. 9, § 1.3

(permitting the court to reverse or modify the hearing panel’s decision if the decision is,

among other things, “arbitrary or capricious or characterized by an abuse of discretion or

clearly unwarranted discretion”). Although we agree that the hearing panel’s judgment does

not include any mention of the alleged violations arising from Mr. Hancock’s briefs in the

district court, we disagree with the chancery court’s conclusion that the absence of findings

renders the hearing panel’s decision arbitrary.

A decision is arbitrary if it “disregards the facts or circumstances of the case without

some basis that would lead a reasonable person to reach the same conclusion.” City of

Memphis v. Civil Serv. Comm’n, 216 S.W.3d 311, 316 (Tenn. 2007) (quoting Jackson

24

Contrary to Justice Clark’s assertions, the critical issue in this case is not whether Mr. Hancock

published an email to persons other than Judge Paine. Instead, our analysis is limited to the email for which

he was found in violation of Rule 8.2(a)(1). In its Memorandum Opinion, the hearing panel quoted

extensively from the body of Mr. Hancock’s email to Judge Paine. It did not, however, reference Mr.

Hancock’s September 11, 2009 email to his landlords. Furthermore, aside from Mr. Hancock’s request that

the attachments be admitted simultaneously with his email to Judge Paine, none of the testimony presented

at the disciplinary hearing concerned the attachments. We therefore disagree with Justice Clark’s conclusion

that substantial and material evidence supports the hearing panel’s finding that Mr. Hancock violated Rule

8.2(a)(1).

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Mobilphone Co. v. Tenn. Pub. Serv. Comm’n, 876 S.W.2d 106, 110-11 (Tenn. Ct. App.

1993)). Based on our review of the hearing panel’s memorandum opinion and its written

judgment, we are unable to conclude that the hearing panel made any “finding[], inference[],

conclusion[] or decision[]” with respect to Mr. Hancock’s alleged violations of Rules 3.2 and

3.4(c).25 It is well settled that the reviewing court is without authority to amend, modify, or

reverse the judgment of the hearing panel unless the appealing party establishes one of the

enumerated circumstances in section 1.3. Hyman v. Board of Prof’l Responsibility, No.

E2012-02091-SC-R3-BP, ___ S.W.3d ___, ___, 2014 WL 1280265, at *7 (Tenn. Mar. 31,

2014). As its basis for modifying the hearing panel’s judgment, the chancery court stated

that “the violations alleged would not justify the imposition of additional sanctions and this

matter needs to be concluded.” Neither of these justifications expressed by the chancery

court are among those enumerated in Tennessee Supreme Court Rule 9, section 1.3.

As Mr. Hancock notes in his briefs filed in this Court, the hearing panel’s silence

concerning his alleged violations of Rules 3.2, 3.4(c), 8.4(a), and 8.4(d) may reflect its intent

to dismiss these allegations of misconduct. Perhaps the panel was persuaded by his

testimony that a resurgence of mental illness during the time of his appeal to the district court

precluded him from complying with the court’s orders. See Tenn. Sup. Ct. R. 8, RPC 3.2

cmt. 1 (recognizing that “there will be occasions when a lawyer may properly seek a

postponement for personal reasons, such as illness”); id., RPC 3.4(c) (restricting the reach

of the rule to situations in which the lawyer “knowingly disobey[s] an obligation under the

rules of a tribunal”) (emphasis added); id., RPC 8.4 cmt. 9 (stating in part that “[f]ailure to

comply with a court order is not a disciplinary offense . . . when it does not evidence

disrespect for the law . . . because the lawyer is unable to comply with the order”).

Conversely, the panel may have agreed with the Board’s position that Mr. Hancock

failed to prove that his mental illness prevented him from complying with his ethical

obligations and that his testimony concerning his mental illness is merely a mitigating factor

for the panel to consider when determining the appropriate sanction to impose. See ABA

Standard 9.22(c) (listing the lawyer’s “personal or emotional problems” as a mitigating factor

to punishment). The parties’ arguments raise legitimate questions about the credibility of Mr.

Hancock’s testimony and the weight of the evidence adduced at the hearing. To that end, the

hearing panel could have resolved these issues in favor of either party. The point remains,

however, that the hearing panel did not resolve these issues, and without a specific finding,

25

In fact, the only mention of these rules appears in the hearing panel’s order, which states, “Mr.

Hancock did not violate Rules 3.2 (expediting litigation); 3.4(c) (fairness to opposing counsel); 3.5(e)

(impartiality and decorum of the tribunal); and 8.4(a) and (d) (misconduct) by failing to comply with

Bankruptcy rules and Orders.” By connecting the rules of professional conduct with the “Bankruptcy rules

and Orders,” it is clear that this finding relates only to Mr. Hancock’s actions while he was actively engaged

in the litigation of Barnhill’s bankruptcy. It does not, however, concern the briefs that Mr. Hancock filed

in the district court nor does it address Mr. Hancock’s actions or inactions during his appeal to that court.

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the chancery court could only speculate as to the hearing panel’s intended conclusion.

Consequently, the chancery court substituted its judgment for that of the hearing panel, which

is expressly prohibited by Tennessee Supreme Court Rule 9, section 1.3. Accordingly, the

chancery court erred by modifying the hearing panel’s judgment.

The Board bears the burden of proof in attorney disciplinary proceedings. See Tenn.

Sup. Ct. R. 9, § 8.2 (“In hearings on formal charges of misconduct, Disciplinary Counsel

must prove the case by a preponderance of the evidence.”). If the hearing panel fails to make

findings concerning a specific rule violation, it is incumbent on Disciplinary Counsel to

address the issue before a petition for certiorari is filed and the hearing panel is without

jurisdiction to modify its judgment. In this case, for example, the Board could have raised

any alleged omissions by the hearing panel in the form of a motion to alter or amend the

hearing panel’s judgment pursuant to Tennessee Rule of Civil Procedure 59. See Tenn. Sup.

Ct. R. 9, § 23.2 (stating in part that “the Tennessee Rules of Civil Procedure . . . apply in

disciplinary cases”). Due to the limited standard of review on appeal, we can only construe

the hearing panel’s silence as a dismissal of the allegations of misconduct concerning Mr.

Hancock’s briefs filed in the district court.

E. Appropriate Sanction

We must now determine whether the thirty-day suspension imposed by the hearing

panel is excessive. When determining the appropriate sanction, this Court looks to the ABA

Standards as our “guidepost[s].” Lockett v. Bd. of Prof’l Responsibility, 380 S.W.3d 19, 26

(Tenn. 2012); see also Tenn. Sup. Ct. R. 9, § 8.4. Application of the ABA Standards requires

us to consider “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 3.0; see also Lockett, 380 S.W.3d at 26.

In this case, Mr. Hancock’s misconduct represents a breach of his duty to the legal

system. See ABA Standard 6.3 (entitled “Improper Communications with Individuals in the

Legal System” and stating in part that “the following sanctions are generally appropriate in

cases involving attempts to influence a judge”); see also ABA Standards app. 1 (connecting

the presumptive sanctions of Standard 6.3 to violations of Rule 3.5). Accordingly, we look

to ABA Standard 6.32, which states that “[s]uspension is generally appropriate when a

lawyer engages in communication with an individual in the legal system when the lawyer

knows that such communication is improper, and causes injury or potential injury to a party

or causes interference or potential interference with the outcome of the legal proceeding.”

Because Mr. Hancock emailed Judge Paine prior to perfecting his appeal to the Sixth Circuit,

his email was sent while the Barnhill’s matter was still pending. Mr. Hancock acknowledged

at the hearing that he should not have sent the email but did so out of frustration. We are

therefore convinced that ABA Standard 6.32’s presumptive sanction of suspension is

appropriate in this case.

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Pursuant to Tennessee Supreme Court Rule 9, section 4.2, “No suspension shall be

ordered for a specific period less than thirty days or in excess of five years.” The length of

an attorney’s suspension, however, depends in large part on the aggravating and mitigating

circumstances expressed in ABA Standard 9.0. See ABA Standard 9.1 (“After misconduct

has been established, aggravating and mitigating circumstances may be considered in

deciding what sanction to impose.”). Here, the hearing panel found as aggravating factors

Mr. Hancock’s multiple offenses, his prior disciplinary history, and his substantial experience

in the practice of law. See ABA Standard 9.22. In mitigation, however, the hearing panel

found that Mr. Hancock was experiencing personal or emotional problems when his

misconduct occurred. See ABA Standard 9.32(c). On balance, we agree with the hearing

panel’s conclusion that the aggravating and mitigating circumstances justify a thirty-day

suspension. We therefore affirm Mr. Hancock’s suspension from the practice of law for

thirty days.

III. Conclusion

We reverse the chancery court’s modification of the hearing panel’s judgment. We

also reverse the hearing panel’s finding that Mr. Hancock violated Tennessee Supreme Court

Rule 8, RPC 8.2(a)(1). We affirm the judgments of the chancery court and the hearing panel

in all other respects and affirm Mr. Hancock’s suspension from the practice of law for thirty

days. Costs of this appeal are taxed one-half to William Caldwell Hancock and his surety

and one-half to the Board of Professional Responsibility of the Supreme Court of Tennessee,

for all of which execution may issue if necessary.

JANICE M. HOLDER, JUSTICE

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