Thomas Fleming Mabry v. Board of Professional Responsibility Of The Supreme Court Of Tennessee

IN THE SUPREME COURT OF TENNESSEE

AT KNOXVILLE

May 6, 2014 Session

THOMAS FLEMING MABRY v. BOARD OF PROFESSIONAL

RESPONSIBILITY OF THE SUPREME COURT OF TENNESSEE

Direct Appeal from the Chancery Court for Knox County

No. 183743I Don R. Ash, Judge

No. E2013-01549-SC-R3-BP - Filed December 30, 2014

A hearing panel of the Board of Professional Responsibility determined that an attorney

failed to act diligently in his representation of a client and suspended the attorney from the

practice of law for forty-five days. The trial court affirmed the suspension. After careful

consideration, we affirm the judgment of the trial court.

Appeal Pursuant to Tenn. Sup.Ct. R. 9, § 1.3; Judgment of the Chancery Court

Affirmed

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

C ORNELIA A. C LARK, G ARY R. W ADE, and W ILLIAM C. K OCH, J R., JJ., joined.

David A. Lufkin, Sr., Knoxville, Tennessee, for the appellant, Thomas Fleming Mabry.

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

Responsibility of the Supreme Court of Tennessee.

OPINION

I.

Thomas Fleming Mabry, an attorney primarily practicing in Knox County, has been

licensed to practice law in Tennessee since 1980. On June 22, 2011, the Board of

Professional Responsibility (“the Board”) filed a petition for discipline against Mr. Mabry

based on three complaints of misconduct. A hearing panel (“the Panel”), appointed by the

Board pursuant to Tenn. Sup.Ct. R. 9, section 8.2, heard evidence on the Board’s petition for

discipline on July 18, 2012.1 The Panel found that Mr. Mabry violated Tenn. Sup.Ct. R. 8,

RPC 1.32 and RPC 8.4(a)3 by his failure to act diligently during his representation of Velda

Shore in a civil conspiracy lawsuit against Robert Goddard and Roger Fields. The Panel also

found that the Board failed to prove any of the other violations alleged in its petition. After

considering aggravating and mitigating factors, the Panel decided that Mr. Mabry should be

suspended from the practice of law for a period of forty-five days. Both Mr. Mabry and the

Board appealed to the Knox County Chancery Court, which affirmed the Panel’s findings and

recommendations. Mr. Mabry appeals the trial court’s decision.

II.

The Supreme Court of Tennessee is the source of authority of the Board of

Professional Responsibility and all its functions. Brown v. Bd. of Prof’l Responsibility, 29

S.W.3d 445, 449 (Tenn. 2000). As a part of our duty to regulate the practice of law, we bear

ultimate responsibility for enforcing the rules governing our profession. Doe v. Bd. of Prof’l

Responsibility, 104 S.W.3d 465, 470 (Tenn. 2003). We review judgments under our “inherent

power and essential and fundamental right to administer the rules pertaining to the licensing

of attorneys.” Skouteris v. Bd. of Prof’l Responsibility, 430 S.W.3d 359, 362 (Tenn. 2014)

(alterations in original) (quoting Hughes v. Bd. of Prof’l Responsibility, 259 S.W.3d 631, 640

(Tenn. 2008)).

When reviewing a hearing panel’s judgment, a trial court must consider the transcript

of the evidence before the hearing panel and its findings and judgment. Tenn. Sup.Ct. R. 9,

§ 1.3. On questions of fact, the trial court does not substitute its judgment for that of the

hearing panel as to the weight of the evidence. See Bd. of Prof’l Responsibility v. Allison, 284

S.W.3d 316, 323 (Tenn. 2009). Any modification to a hearing panel’s decision must be based

on one of the enumerated factors included in Tenn. Sup.Ct. R. 9, section 1.3. See Bd. of Prof’l

Responsibility v. Love, 256 S.W.3d 644, 652 (Tenn. 2008). Under section 1.3, a trial court

1

This Court adopted substantial changes to the Rules of Professional Conduct under Tenn. Sup.Ct.

R. 8, effective January 1, 2011. Because the underlying conduct in this case occurred prior to January 1,

2011, it is governed by the version of Tenn. Sup.Ct. R. 8 that was in effect before the 2011 revisions. This

Court also adopted substantial changes to Tenn. Sup.Ct. R. 9, effective January 1, 2014, but because this case

was initiated before January 1, 2014, it is governed by the pre-2014 version of Tenn. Sup.Ct. R. 9. We note,

however, that the relevant provisions of the pre-2014 version of Rule 9 do not differ from the current version

of Rule 9.

2

Tenn. Sup.Ct. R. 8, RPC 1.3 provides: “A lawyer shall act with reasonable diligence and

promptness in representing a client.”

3

Tenn. Sup.Ct. R. 8, RPC 8.4(a) provides, in pertinent part: “It is professional misconduct for a

lawyer to . . . violate or attempt to violate the Rules of Professional Conduct. . . .”

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has the discretion to reverse or modify a decision of the hearing panel only if the petitioner’s

rights have been prejudiced by findings, inferences, conclusions, or decisions that 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 the light of the entire record.

Tenn. Sup.Ct. R. 9, § 1.3.

Our standard of review on appeal is the same as that of the trial court. Skouteris, 430

S.W.3d at 362 (citing Hoover v. Bd. of Prof’l Responsibility, 395 S.W.3d 95, 103 (Tenn.

2012)).

III.

In 2008, Mr. Mabry filed suit on Ms. Shore’s behalf against Maple Lane Farms, LLC

in the Chancery Court for Blount County. The lawsuit arose out of a disagreement between

Ms. Shore and Maple Lane Farms regarding the use of Maple Lane Farms’ property for

concerts and other outdoor events. The Chancery Court action sought a declaratory judgment,

injunctive relief, and abatement of a nuisance.4 On August 19, 2008, Mr. Mabry filed a

second action on Ms. Shore’s behalf in the Circuit Court for Blount County seeking damages

against Roger Fields, a Building Commissioner for Blount County, and Robert Goddard, the

attorney for Blount County. The complaint alleged the existence of a civil conspiracy,

involving Mr. Fields, Mr. Goddard, and Blount County Mayor Jerry Cunningham, to require

Ms. Shore, rather than Maple Lane Farms, to appeal a decision by Mr. Fields to the Blount

County Board of Zoning Appeals. Mr. Cunningham was not named as a defendant. Within

a month after filing this lawsuit, Mr. Mabry, on behalf of Ms. Shore, voluntarily dismissed

Mr. Goddard, leaving Mr. Fields as the sole defendant.

On September 19, 2008, Mr. Fields moved to dismiss the complaint for failure to state

a claim upon which relief could be sought. He sent Mr. Mabry a proposed motion for

sanctions and a safe harbor letter pursuant to Tenn. R. Civ. P. 11. Mr. Mabry took no

action. On October 24, 2008, Mr. Fields filed an amended motion seeking dismissal of the

suit and Rule 11 sanctions against Mr. Mabry and Ms. Shore. Mr. Mabry did not respond to

this motion to dismiss. Meanwhile, Ms. Shore fired Mr. Mabry as her attorney. On December

31, 2008, Mr. Mabry filed a motion to withdraw as Ms. Shore’s counsel.

4

See Shore v. Maple Lane Farms, LLC, 411 S.W.3d 405 (Tenn. 2013) (finding, among other things,

that music from outdoor concerts near Ms. Shore’s house constituted a prima facie case of nuisance).

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On January 25, 2011, the Blount County Circuit Court heard Mr. Fields’ motion to

dismiss and to impose sanctions. In a memorandum of law filed with the trial court, Mr.

Mabry stated that the civil conspiracy claim against Mr. Fields became moot once Mr.

Goddard was dismissed from the case. In an order issued March 4, 2011, the Blount County

Circuit Court found that Mr. Mabry had more than ample opportunity—from the time he

dismissed the case against Mr. Goddard, his receipt of the safe harbor letter from Mr. Fields,

and being terminated by his client—to dismiss and/or correct by amendment the civil

conspiracy claim. The Blount County Circuit Court imposed Rule 11 sanctions against Mr.

Mabry for attorney’s fees in the amount of $5,000.

On June 22, 2011, the Board filed a petition for discipline against Mr. Mabry based on

three complaints of misconduct it had received. Ms. Shore and Mr. Cunningham each filed

complaints stemming from Ms. Shore’s lawsuit against Mr. Fields and Mr. Goddard, while

Ginna French, another client of Mr. Mabry’s, filed a third, unrelated complaint. With regard

to Ms. Shore’s case, the disciplinary petition alleged that Mr. Mabry violated RPCs 1.3, 1.4,5

1.16,6 3.1,7 and 8.4(a). The petition requested that the Panel “make such findings as it deems

5

Tenn. Sup.Ct. R. 8, RPC 1.4 provides:

(a) A lawyer shall keep a client reasonably informed about the status of the

matter and comply with reasonable requests for information within a

reasonable time.

(b) A lawyer shall explain a matter to the extent reasonably necessary to

permit the client to make informed decisions regarding the representation.

6

Tenn. Sup.Ct. R. 8, RPC 1.16 provides, in pertinent part:

[A] lawyer shall not represent a client or, where representation has

commenced, shall withdraw from the representation of a client if . . . the

lawyer is discharged. . . . A lawyer who is discharged by a client . . . shall,

to the extent reasonably practicable, take steps to protect the client’s

interests. Depending on the circumstances, protecting the client’s interests

may include . . . cooperating with any successor counsel engaged by the

client; . . . promptly surrendering papers and property to which the client

is entitled and any work product prepared by the lawyer for the client and

for which the lawyer has been compensated; [and] . . . promptly

surrendering any other work product prepared by the lawyer for the client,

provided, however, that the lawyer may retain such work product to the

extent permitted by other law but only if the retention of the work product

will not have a materially adverse [e]ffect on the client with respect to the

subject matter of the representation . . . .

7

Tenn. Sup.Ct. R. 8, RPC 3.1 provides, in pertinent part:

(continued...)

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appropriate in imposing the discipline deemed appropriate.” Mr. Mabry, representing himself,

filed an answer on September 6, 2011. A hearing was set for May 9, 2012. The Board filed

its witness and exhibit list on April 27, 2012. On May 2, 2012, the Panel granted the Board

a continuance due to an unavailable witness, and the final hearing was reset for July 18, 2012.

On May 2, 2012, Mr. Mabry filed a witness list which included himself, two of his

former clients, and Laura McClendon and/or Ted Rice from the Tennessee Lawyers

Assistance Program (“TLAP”). On May 9, 2012, a telephonic scheduling conference was

held, and Mr. Mabry was given until June 15, 2012, to file his exhibit list. Mr. Mabry filed

the exhibit list on June 15 and filed an amended list ten days later.

On July 5, 2012, David A. Lufkin, Sr., filed a notice of appearance as counsel for Mr.

Mabry. On July 12, 2012, the Board filed a supplemental witness and exhibit list, and Mr.

Mabry, through counsel, filed a motion for a continuance and a request to reopen

discovery. Mr. Mabry’s motion asserted that two of his potential witnesses, Ms. McClendon

and Mr. Rice, did not have timely notice of the hearing due to communication errors. The

motion did not detail any attempts by Mr. Mabry or Mr. Lufkin to contact these witnesses,

other than stating that Mr. Lufkin “has this date talked and attempted communication with”

Ms. McClendon and Mr. Rice. In addition, the motion stated that Mr. Lufkin wanted to file

Interrogatories and Requests for Production.

On July 13, 2012, the Board filed its brief and a response to Mr. Mabry’s motion for

a continuance. The brief detailed the Board’s basis for seeking discipline against Mr. Mabry

and recommended that his law license be suspended. The Board opposed a continuance of

the hearing, noting that on July 12, 2012, Disciplinary Counsel emailed Ms. McClendon to

ask if she or Mr. Rice would be at Mr. Mabry’s hearing, but discovered that Ms. McClendon

was unaware of any hearing. The Board opposed reopening discovery more than three months

after the discovery deadline had expired. The Panel denied Mr. Mabry’s motion for a

continuance, noting that Mr. Mabry had made no attempt to subpoena Ms. McClendon or Mr.

Rice and that he failed to offer any evidence that he attempted to contact them about the

hearing other than on July 12, 2012. Further, the Panel noted that Mr. Mabry made no

assertion that these witnesses had material knowledge relevant to the acts complained of in

the petition or that they had personal knowledge of any of the facts alleged. The Panel found

that Mr. Mabry had chosen to proceed pro se for more than a year and that Mr. Lufkin’s

7

(...continued)

A lawyer shall not bring or defend or continue with the prosecution or

defense of a proceeding, or assert or controvert or continue to assert or

controvert an issue therein, unless after reasonable inquiry the lawyer has

a basis for doing so that is not frivolous, which includes a good faith

argument for an extension, modification, or reversal of existing law.

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appearance less than two weeks before trial was not grounds for a continuance or reopening

of discovery.

Two days before the July 18, 2012 hearing, Mr. Mabry filed a motion to strike the

Board’s brief and its supplemental witness and exhibit list and to dismiss the petition. The

motion asserted that the Board’s supplemental witness and exhibit list, filed July 12, 2012,

was not timely and that the list attempted to serve notice of recent pleadings in Shore v.

Fields, a case with which Mr. Mabry had not been involved since December 2008. He argued

that the Board’s petition for discipline was defective because, by failing to state “a demand

for judgment for the relief the pleader seeks,” the petition did not comport with the

requirements of Tenn. R. Civ. P. 8.01. Thus, according to Mr. Mabry, he did not have

adequate time to prepare an effective defense. Mr. Mabry also sought to have his case

continued. At the beginning of the July 18, 2012 hearing, the Panel denied Mr. Mabry’s

motion.

At the Panel’s hearing on July 18, 2012, Mr. Mabry, Mr. Cunningham, Kevin Wayne

Shepherd, and Jean Elizabeth French testified. After considering the testimony of these

witnesses, numerous exhibits, and records of Mr. Mabry’s prior ethical violations, the Panel

issued its decision on August 2, 2012. The Panel found that, with regard to Ms. Shore’s case,

Mr. Mabry violated RPC 1.3 and RPC 8.4(a) by failing to act with reasonable diligence and

promptness in his representation of Ms. Shore following the motion to dismiss and safe harbor

letter. The Panel’s order stated, “[B]ased on his belief the claim became moot upon the

dismissal of defendant Goddard[,] it is incomprehensible why [Mr. Mabry] did not

simultaneously dismiss the conspiracy claim upon dismissing . . . Goddard. Instead, [Mr.

Mabry] did nothing, causing unnecessary litigation and subjecting his client to the possibility

of monetary sanctions.” The Panel found that the Board had failed to prove any of the other

disciplinary violations alleged in the petition. After considering the relevant aggravating and

mitigating factors applicable to Mr. Mabry’s case, the Panel determined that a forty-five-day

suspension was warranted. The aggravating factors considered were Mr. Mabry’s pattern of

misconduct, his refusal to acknowledge the wrongful nature of his conduct, his substantial

experience in the practice of law, and his seven prior disciplinary offenses. Between 1991 and

2008, Mr. Mabry was disciplined by the Board seven times, receiving two public censures,

four private reprimands and informal admonitions, and a suspension for eleven months,

twenty-nine days, which he served on probation from July 2008 to May 2009. As to

mitigating circumstances, the Panel noted Mr. Mabry’s disclosure to the Board, his

cooperative attitude, and the Rule 11 monetary sanction of $5,000. The Panel denied Mr.

Mabry’s subsequent motion to alter or amend and motion to stay the judgment.

Both Mr. Mabry and the Board appealed to the Knox County Chancery Court. On

March 15, 2013, the trial court reviewed the transcript from the Panel’s hearing and heard

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proffered testimony from Mr. Rice and Mr. Mabry. The trial court excluded the testimony of

Mr. Rice—that Mr. Mabry had been involved as a TLAP volunteer—finding that the evidence

had already been presented during Mr. Mabry’s testimony before the Panel. The trial court

did not consider the proferred testimony of Mr. Mabry, determining that Mr. Mabry did not

qualify as an expert witness and that his testimony would not have been of benefit to the

court. Further, the trial court held that the Panel did not abuse its discretion in refusing to

grant Mr. Mabry a continuance. The trial court affirmed the Panel’s findings of fact and

conclusions of law, determining that all were fully supported by the evidence. Mr. Mabry

appealed to this Court.

IV.

Mr. Mabry’s brief consists of numbered paragraphs replete with rambling assertions

of error by the Panel and the trial court, with little or no supporting citations to authority. We

have carefully reviewed all of his allegations and assertions and find that none have merit.

A. Procedural Claims

Mr. Mabry first argues generally that his disciplinary proceedings violated Tennessee

Rules of Civil Procedure 5, 6, 7.01, 8.01, and 59.04 and that these procedural deficiencies

violated his Constitutional rights as guaranteed by the Fifth, Sixth, and Fourteenth

Amendments to the United States Constitution.

Among his many claims of procedural error, Mr. Mabry asserts that the Board’s

petition for discipline should have been dismissed because it did not specifically state the

punishment sought by the Board. We disagree. Though the Tennessee Rules of Civil

Procedure generally apply in attorney disciplinary proceedings, it is only where the Tennessee

Supreme Court Rules do not provide otherwise. See Tenn. Sup.Ct. R. 9, § 23.3. While Tenn.

R. Civ. P. 8.01 requires that a pleading contain a “demand for judgement for the relief the

pleader seeks,” Tenn. Sup.Ct. R. 9, section 8.2 provides that a formal disciplinary proceeding

is commenced by the filing of a petition “which shall be sufficiently clear and specific to

inform the respondent of the alleged misconduct.” Thus, Tenn. Sup.Ct. R. 9, section 8.2

governs the content requirements for petitions in attorney disciplinary proceedings, not Tenn.

R. Civ. P. 8.01. Mr. Mabry’s argument is without merit. Because the petition for discipline

filed in his case complies with the requirements of Tenn. Sup.Ct. R. 9, section 8.2, the petition

was not procedurally deficient.

Next, Mr. Mabry argues that he was prejudiced by the Board’s filing of its brief five

days before the Panel’s hearing and raises a similar objection as to the Board’s supplemental

witness and exhibit list. However, Mr. Mabry cites no valid authority to support his assertion

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of prejudice, and we find no error by the Panel in considering the Board’s pre-trial brief or in

allowing the supplemental witness and exhibit list. These filings were not only appropriate,

but were of assistance to the trier of fact and Mr. Mabry. This issue has no merit.

Mr. Mabry further argues that the Panel erred by denying his request for a continuance

filed six days before the scheduled hearing. Whether to grant or deny a motion for a

continuance is a matter of discretion, and we will not disturb a ruling on such a motion absent

an abuse of that discretion and a showing of prejudice to the party seeking the

continuance. Hoover, 395 S.W.3d at 103 (citing Blake v. Plus Mark, Inc., 952 S.W.2d 413,

415 (Tenn. 1997)). The petition for discipline in this case was filed on June 22, 2011, and Mr.

Mabry filed his answer on September 6, 2011. The case was set for hearing on May 9, 2012,

and subsequently reset for hearing on July 18, 2012, due to the unavailability of a material

witness. On July 12, 2012, Mr. Mabry moved for a continuance on the basis that, due to

“communication errors,” two of his witnesses, Ms. McClendon and Mr. Rice, had not been

notified of the hearing and could not attend. The Panel denied the motion. Mr. Mabry claims

the Panel’s decision was arbitrary, erroneous, and denied him the effective assistance of

counsel guaranteed by the Sixth Amendment to the United States Constitution. We find

nothing in the record to suggest that the Panel abused its discretion in denying Mr. Mabry a

continuance or that he was prejudiced in any way by this decision. Mr. Mabry had ample

notice of the hearing date and time to prepare his defense. Further, there is no Sixth

Amendment right to effective assistance of counsel in an attorney disciplinary

proceeding. See Welch v. Bd. of Prof’l Responsibility, 193 S.W.3d 457, 465 (Tenn. 2006)

(“[T]here is no . . . constitutional guarantee to effective counsel in a civil case.”); see also

Long v. Bd. of Prof’l Responsibility, 435 S.W.3d 174, 186 (Tenn. 2014) (“Attorney

disciplinary proceedings are not criminal proceedings[.]”). Accordingly, we reject this

argument as meritless.

Mr. Mabry next asserts that the Panel erred by not indicating in its judgment that it

considered probation as a possible sanction. He raised this issue to the Panel in his motion

to alter or amend judgment filed August 27, 2012. However, Mr. Mabry has cited no

authority that would require the Panel to indicate in its judgment that it considered every

possible form of punishment, including probation, and we are aware of no such

authority. Again, this issue has no merit.

Mr. Mabry next complains that the Board and the Panel engaged in improper ex parte

communications at the July 18, 2012 hearing, in that the Board provided the Panel with a

“bound volume,” of which Mr. Mabry had “no idea what was contained within.” However,

the Board notes that this “bound volume” merely contained the official public record of the

case and that Mr. Mabry could have accessed any of these documents. Mr. Mabry fails to

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explain how or why he is entitled to relief on this issue, and we once again consider it to be

without merit.

Finally, Mr. Mabry argues very generally that the alleged procedural deficiencies in

his disciplinary process violated his due process rights under the Fifth and Fourteenth

Amendments.8 Attorneys facing disciplinary proceedings are entitled to procedural due

process, which includes notice of the alleged misconduct and an opportunity to be

heard. Moncier v. Bd. of Prof’l Responsibility, 406 S.W.3d 139, 156 (Tenn. 2013). While an

attorney in a disciplinary proceeding does not have the same due process rights as the

criminally accused, they do have a number of significant procedural rights, such as “the right

to be represented by counsel, to cross-examine witnesses called against them, and to present

evidence on their own behalf.” Hyman v. Bd. of Prof’l Responsibility, 437 S.W.3d 435, 445

(Tenn. 2014) (citing Tenn. Sup.Ct. R. 9, § 8.2). Attorneys are also permitted to appeal the

judgment of the hearing panel. See Tenn. Sup.Ct. R. 9, § 1.3. Mr. Mabry was provided with

all of these procedural rights. He was given adequate notice of the disciplinary charges

against him, has had the opportunity to be represented by the attorney of his choosing, was

able to cross-examine the witnesses the Board called against him, and has been given and has

fully utilized his opportunity to respond. As noted above, there were no procedural errors in

Mr. Mabry’s case. Accordingly, we find that Mr. Mabry has received due process throughout

his disciplinary proceedings.

B. Evidentiary Claims

Mr. Mabry’s next general argument is that the trial court erred in excluding his

testimony and the testimony of Mr. Rice. During the trial court’s evidentiary hearing, Mr.

Mabry proffered the testimony of Mr. Rice, which indicated that Mr. Mabry was once

monitored by TLAP for substance abuse and that he later mentored other lawyers in the

program. Mr. Mabry also attempted to testify as an expert regarding alleged irregularities in

his disciplinary proceedings. We reject both of Mr. Mabry’s arguments.

The Tennessee Rules of Evidence apply in attorney disciplinary proceedings, “[e]xcept

as otherwise provided in [the Supreme Court Rules].” Tenn. Sup.Ct. R. 9, § 23.3. Tenn.

Sup.Ct. R. 9 restricts a trial court’s review of a hearing panel’s judgment to the transcript of

the evidence that was before the hearing panel, unless “allegations of irregularities in the

procedure before the panel are made.” Tenn. Sup.Ct. R. 9, § 1.3. While Mr. Mabry alleged

“irregularities,” the trial court found that neither his offer of proof nor his own expert

testimony would have aided in the trial court’s review of the proceedings, and thus neither

was appropriate for the trial court to consider. We agree.

8

For this proposition, Mr. Mabry also invokes the Tennessee Constitution and the Magna Carta.

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With regard to Mr. Rice’s testimony, the trial court found that while Mr. Mabry’s

experiences with TLAP were laudable, the same evidence had been presented to the Panel

through his own testimony. It was, therefore, unnecessary for Mr. Rice or any other TLAP

representative to present this testimony to the trial court. In fact, such cumulative evidence

would have been beyond the proper scope of the trial court’s review, which, as a general

matter, is limited to the transcript of evidence that was before the Panel. Id. Accordingly, we

find that the trial court did not abuse its discretion in excluding Mr. Rice’s testimony.

As for Mr. Mabry’s qualifications as an expert, he cites to the Preamble to the Rules

of Professional Conduct, Tenn. Sup.Ct. R. 8, which states that “[a] lawyer is an expert in law,”

in arguing that the trial court erred in not allowing him to testify as an expert in the area of his

own disciplinary proceedings. However, such a claim is lacking in both merit and common

sense. Tennessee Rules of Evidence 702 and 703 govern the admission of expert

testimony. See McDaniel v. CSX Transp., Inc., 955 S.W.2d 257, 264-65 (Tenn. 1997). Rule

702 provides: “If scientific, technical, or other specialized knowledge will substantially assist

the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified

as an expert by knowledge, skill, experience, training, or education may testify in the form of

an opinion or otherwise.” Tenn. R. Evid. 702. Rule 703 further provides that “[t]he court

shall disallow testimony in the form of an opinion or inference if the underlying facts . . .

indicate lack of trustworthiness.” Tenn. R. Evid. 703. Questions regarding the admissibility,

relevancy, and competency of expert testimony are left to the discretion of the trial court,

Hunter v. Ura, 163 S.W.3d 686, 704 (Tenn. 2005) (citing McDaniel, 955 S.W.2d at 263), and

the trial court’s ruling may only be overturned if that discretion is abused or arbitrarily

exercised, State v. Ballard, 855 S.W.2d 557, 562 (Tenn. 1993).

The trial court did not act arbitrarily in determining that Mr. Mabry was not qualified

as an expert; rather, the trial court had good reason for this decision. Mere personal

knowledge about his disciplinary proceedings did not qualify Mr. Mabry as an expert, and

though he is technically considered an “expert in law” under Tenn. Sup.Ct. R. 8, his

knowledge of the disciplinary process would have hardly “substantially assist[ed]” a trial

judge, who is an expert in the law himself. See Tenn. R. Evid. 702. Moreover, Mr. Mabry’s

unmistakable bias as to the validity of his own disciplinary proceedings “indicates a lack of

trustworthiness” that provides additional grounds for excluding his opinion testimony. See

Tenn. R. Evid. 703. Therefore, we find that the trial court did not abuse its discretion in

refusing to allow Mr. Mabry to testify as an expert witness.

C. Arbitrary and Capricious Claim

Mr. Mabry argues that the Panel acted arbitrarily or capriciously in finding that he

violated RPC 1.3 and RPC 8.4(a) and in imposing a forty-five-day suspension. We

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disagree. “A lawyer shall act with reasonable diligence and promptness in representing a

client.” Tenn. Sup.Ct. R. 8, RPC 1.3. In particular, a lawyer has a duty to pursue the client’s

best interests and to take care not to place the client in a vulnerable position or unnecessarily

expose the client to sanctions. See Hanzelik v. Bd. of Prof’l Responsibility, 380 S.W.3d 669,

680 (Tenn. 2012) (finding that an attorney who allowed a client to be held in contempt of

court due to poor communication failed to provide “diligent representation”). Additionally,

diligence requires that an attorney make “reasonable efforts to expedite litigation.” Id.

The Panel was presented with evidence that Mr. Mabry filed a complaint on behalf of

Ms. Shore, alleging a civil conspiracy between three Blount County officials—Mr. Goddard,

Mr. Fields, and Mr. Cunningham. Within a month after the lawsuit was filed, Mr. Mabry

voluntarily dismissed Mr. Goddard from the case, leaving Mr. Fields as the only

defendant. Mr. Mabry later expressed that, at this point, the civil conspiracy claim became

moot.9 Mr. Fields notified Mr. Mabry of his intention to seek sanctions if the case were not

dismissed, but Mr. Mabry did not respond. Mr. Fields then filed a motion to dismiss and

requested that sanctions be imposed against Mr. Mabry and Ms. Shore. Mr. Mabry still did

not respond. The Blount County Circuit Court found that Mr. Mabry’s conduct warranted a

sanction of $5,000 in attorney’s fees.

Upon review of these facts, we find that the Panel did not act arbitrarily or capriciously

in determining that Mr. Mabry violated RPC 1.3 and RPC 8.4(a). On the contrary, Mr.

Mabry’s failure to take any action in response to Mr. Fields’ safe harbor letter, motion to

dismiss, and motion for sanctions was neglectful, unprofessional, and exposed his client to

the very real possibility of monetary sanctions. We find there was substantial and material

evidence supporting the Panel’s findings that Mr. Mabry violated the duty of diligence

required of attorneys by RPC 1.3, and in doing so, that he violated RPC 8.4(a).

D. Appropriate Punishment

The American Bar Association Standards for Imposing Lawyer Sanctions (1986, as

amended 1992) (“ABA Standards”) provide guidelines for determining the appropriate level

9

Though we acknowledge that a civil conspiracy claim can, under certain circumstances, proceed

against only one defendant, the record indicates that this was not Mr. Mabry’s intention. In expressing his

belief that the civil conspiracy claim became moot once he dismissed Mr. Goddard from the lawsuit, Mr.

Mabry indicated that he did not intend to proceed with that claim against Mr. Fields. Since it was unclear

whether the civil conspiracy claim was moot, the Panel properly found that Mr. Mabry did not violate RPC

3.1 for maintaining a frivolous claim. However, the Panel found that Mr. Mabry violated his duty of

diligence under RPC 1.3 for, among other things, failing to appropriately respond to Mr. Fields’ motion to

dismiss, safe harbor letter, and motion for sanctions. As the Panel properly noted, the failure to find a

violation of RPC 3.1 does not preclude a finding that an attorney has failed to act with the diligence required

by RPC 1.3.

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of discipline for lawyer misconduct. Lockett v. Bd. of Prof’l Responsibility, 380 S.W.3d 19,

25-27 (Tenn. 2012); see also Tenn. Sup.Ct. R. 9, § 8.4. The ABA Standards promote the

“consideration of all factors relevant to imposing the appropriate level of sanction in an

individual case.” Lockett, 380 S.W.3d at 28 (quoting ABA Standard 1.3). In this case, the

trial court considered ABA Standards 4.42, 7.2, and 8.2 to be applicable.

ABA Standard 4.42 states that suspension is generally appropriate for lack of diligence

when “(a) a lawyer knowingly fails to perform services for a client and causes injury or

potential injury to a client,” or “(b) a lawyer engages in a pattern of neglect [and] causes injury

or potential injury to a client.” ABA Standard 7.2 states that “[s]uspension is generally

appropriate when a lawyer knowingly engages in conduct that is a violation of a duty owed

as a professional and causes injury or potential injury to a client, the public, or the legal

system.” And ABA Standard 8.2 states that “[s]uspension is generally appropriate when a

lawyer has been reprimanded for the same or similar misconduct and engages in further

similar acts of misconduct that cause injury or potential injury to a client, the public, the legal

system, or the profession.”

We find that each of these ABA Standards applies to the facts and circumstances of

Mr. Mabry’s case. The record reflects that Mr. Mabry has been sanctioned by the Board

seven times since 1991. This included an eleven month, twenty-nine-day suspension from the

practice of law that he served on probation beginning July 2008. By an Order of Enforcement

entered by this Court on July 15, 2008, Mr. Mabry’s probation was conditioned upon him,

among other things, “not engag[ing] in conduct which violates Tenn. Sup.Ct. R. 8, RPC 1.1,

1.2, 1.3, 1.4, 1.5, 1.15 or 1.16.” Less than five months later, Mr. Mabry violated RPC 1.3 by

engaging in an unacceptable pattern of neglect, violating his duty to the legal profession, and

causing potential injury to his client, the public, the legal system, and the profession.

In light of these facts, we agree with the Panel’s finding that suspension is the

appropriate sanction. As to the length of the suspension, Tenn. Sup.Ct. R. 9, section 4.2

states: “No suspension shall be ordered for a specific period less than thirty days or in excess

of five years.” Given Mr. Mabry’s conduct and history of professional misconduct, we find

that a forty-five-day suspension from the practice of law is not an arbitrary and capricious

application of Rule 9 nor the ABA Standards. Mr. Mabry “has not heeded lessons from facing

numerous prior disciplinary proceedings and, in fact, continues to repeat the same

mistakes.” Sneed v. Bd. of Prof’l Responsibility, 301 S.W.3d 603, 618 (Tenn. 2010). As such,

we find that Mr. Mabry’s penalty is supported by substantial and material evidence and that

the Panel did not abuse its discretion by imposing it.

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CONCLUSION

For the reasons stated above, the judgment of the Knox County Chancery Court is

affirmed. The costs of this appeal are taxed to Thomas Fleming Mabry and his surety, for

which execution may issue if necessary.

_________________________________

SHARON G. LEE, CHIEF JUSTICE

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