Board of Professional Responsibility Of The Supreme Court of Tennessee v. Charles Edward Daniel

06/08/2018

IN THE SUPREME COURT OF TENNESSEE

AT KNOXVILLE

January 10, 2018 Session

BOARD OF PROFESSIONAL RESPONSIBILITY OF THE SUPREME

COURT OF TENNESSEE v. CHARLES EDWARD DANIEL

Direct Appeal from the Chancery Court for Knox County

No. 2014-2315-2-AJ Hon. Telford G. Forgety, Jr., Chancellor

___________________________________

No. E2017-01170-SC-R3-BP

___________________________________

This direct appeal arises from a disciplinary proceeding against a Knoxville attorney. A

hearing panel (“Hearing Panel”) of the Board of Professional Responsibility (“Board”)

found that the attorney had violated Rule 8.4(b) and (c) of the Tennessee Rules of

Professional Conduct (“RPC”) by misappropriating funds from his law partnership in a

manner intended to conceal his actions from his law partners. The Hearing Panel

suspended him from the practice of law for three years but ordered the entire suspension

served on probation. We conclude that the Hearing Panel did not abuse its discretion by

suspending rather than disbarring the lawyer but did abuse its discretion by probating the

entire suspension. Accordingly, we modify the Hearing Panel’s judgment to include one

year of active suspension. In all other respects, the Hearing Panel’s judgment is affirmed.

Tenn. Sup. Ct. R. 9, § 1.3 (2013) (currently Tenn. Sup. Ct. R. 9, § 33.1(d) (2017))

Direct Appeal; Judgment of the Chancery Court Affirmed As Modified

CORNELIA A. CLARK, J., delivered the opinion of the Court, in which JEFFREY S. BIVINS,

C.J., and SHARON G. LEE, HOLLY KIRBY, and ROGER A. PAGE, JJ., joined.

Alan D. Johnson, Brentwood, Tennessee, for the appellant, Board of Professional

Responsibility of the Supreme Court of Tennessee.

H. Douglas Nichol, Knoxville, Tennessee, for the appellee, Charles Edward Daniel.

OPINION

I. Factual and Procedural Background

The appellee, Charles Edward Daniel, a Knoxville lawyer, received his license to

practice law in 1991 following his fifteen-year career in law enforcement positions,

including a position with the Internal Revenue Service criminal division. From 1991 to

mid-2002, Mr. Daniel worked as a solo practitioner, handling mostly workers’

compensation and personal injury cases. In mid-2002 Mr. Daniel and attorney Mike

Pemberton formed the law partnership of Daniel Pemberton (the “Partnership”). Mr.

Pemberton came to this partnership from another Knoxville law firm where he had served

for a time as managing partner. Mr. Daniel and Mr. Pemberton never had a written

partnership agreement, and they did not observe formalities in managing the Partnership,

including not formalizing any written agreement about how compensation would be

handled for cases brought into the Partnership at its inception or how expense advances

by any partner would be reimbursed.

From its inception in 2002 until his departure, Mr. Daniel managed and supervised

the Partnership’s finances, including handling the operating and trust accounts, receiving

and accounting for money, making deposits, reviewing and reconciling bank statements,

managing day-to-day financial operations, making payroll, paying bills, making

payments to third parties and clients, and maintaining and reporting on case expenses.

Mr. Daniel used QuickBooks to perform these tasks, and QuickBooks was installed only

on Mr. Daniel’s computer.

The Partnership broke up in late 2009 or early 2010. After Mr. Daniel left,

another partner, Dana Scott Pemberton,1 the wife of Mr. Pemberton, took over his

financial oversight responsibilities, and QuickBooks had been installed on her computer

by January 2010. Mrs. Pemberton soon discovered that from 2006 to 2009, Mr. Daniel

had, on several occasions, deposited client settlement checks into the Partnership’s trust

account and then written three checks on that account—one payable to the client and two

payable to the Partnership. He would then deposit one of the checks payable to the

Partnership into the Partnership’s operating account and deposit the second check

payable to the Partnership into his own personal account.

In May 2010, the Pembertons reported these suspicious transactions to the Board

of Professional Responsibility. The Board first contacted Mr. Daniel about the

allegations on June 22, 2010. Meanwhile, civil litigation was initiated to dissolve the

Partnership and divide its assets. The parties reached a confidential settlement of the

civil litigation in July 2011.

1

Mrs. Pemberton and her brother, James Scott, had joined the firm in 2002, before her marriage

to Mr. Pemberton. By 2003, they were junior partners. The firm was renamed Daniel, Pemberton, Scott

& Scott, PLLP.

-2-

Almost three years after the civil litigation settled, on May 2, 2014, the Board filed

a petition for discipline against Mr. Daniel.2 The Board alleged that he had “willfully and

knowingly engaged in a course of conduct whereby he embezzled money from the

[P]artnership, misappropriated [P]artnership funds and falsified records in order to

conceal his illicit activities.” The Board asserted that Mr. Daniel’s conduct violated

subsections (b) and (c) of RPC 8.4, which state:

It is professional misconduct for a lawyer to:

***

(b) commit a criminal act that reflects adversely on the lawyer’s honesty,

trustworthiness, or fitness as a lawyer in other respects;

(c) engage in conduct involving dishonesty, fraud, deceit, or

misrepresentation.

The Hearing Panel held a hearing on March 1 and 2, 2016. The Board called Mr.

and Mrs. Pemberton to testify and submitted bank records documenting the suspicious

transactions from 2006-2009. Mr. Daniel testified on his own behalf and called various

witnesses, many of them attesting to his good character. Mr. Daniel’s defense was that

the Partnership owed him a great deal of money for operating expenses he had advanced

and partner draws he had skipped when the Partnership lacked funds. He maintained that

he had merely reimbursed himself when funds became available from settlements by

writing checks on the Partnership trust account payable to the Partnership and then

depositing those checks into his personal account. Mr. Daniel submitted settlement

agreements with clients and a spreadsheet showing fees and expenses for cases that

purported to account for all of the withdrawals from the Partnership’s trust account.

Before the Hearing Panel, Mr. Daniel testified that, for a significant time after the

Partnership’s formation, he had advanced funds as needed to cover all of the

Partnership’s operating expenses, including compensation for the attorneys and support

staff. Mr. Daniel testified that he had kept a handwritten ledger on a yellow legal pad of

the amounts he had advanced the Partnership and the amounts he had reimbursed himself

for these advances. By the time of the hearing Mr. Daniel had lost this legal pad,

however, so it was not submitted into evidence before the Hearing Panel. Nevertheless,

Mr. Daniel testified that Mr. Pemberton was aware of the handwritten ledger, explaining

that he had shared it and discussed it with Mr. Pemberton periodically. Mr. Daniel

testified that he had believed it was appropriate to reimburse himself amounts he was

owed by writing checks from the Partnership trust account payable to the Partnership and

then depositing those checks into his personal account. Mr. Daniel testified that he had

2

Some of this lengthy delay may be attributable both to the Partnership litigation and to the

pendency of criminal charges against Mr. Daniel, which were not resolved until August 12, 2013.

-3-

discussed the withdrawals and method of reimbursement with Mr. Pemberton. Mr.

Daniel denied taking client money.3 Mr. Daniel acknowledged that he had not

maintained the most straightforward accounts because he “was not a bookkeeper” but

stated that he had done “the best [he] could do.”

Mr. Pemberton, by contrast, denied knowledge of either the handwritten ledger

Mr. Daniel claimed to have maintained or Mr. Daniel’s method of reimbursing himself

by depositing checks payable to the Partnership in his personal account. Both of the

Pembertons testified that they had relied on Mr. Daniel to handle all financial oversight

of the Partnership until he left and Mrs. Pemberton had taken over those duties. Mr.

Pemberton testified that the partners had held brief, formal meetings only four or five

times a year to discuss the state of the Partnership, including budgetary issues.

Mr. Pemberton admitted drafting memos for those meetings summarizing, among

other things, the Partnership budgets. Although none of the memos were introduced into

evidence, Mr. Pemberton conceded that he had accessed the Partnership’s accounting

software to prepare the memos. He emphasized, however, that “[a]ll the financial

information that we got, other than me running the P[rofit] & L[oss] and running the

accounts receivables . . . came from Mr. Daniel” at least until January 2010.

The Pembertons also disputed Mr. Daniel’s claim that the Partnership owed him

money after 2006. According to the Pembertons, the Partnership had fully reimbursed

Mr. Daniel and all of the partners by 2006 for funds advanced to the Partnership and back

draws missed. The Pembertons maintained that they had confirmed the Partnership was

“square” with Mr. Daniel in conversations that they had with him. To support this

assertion, they pointed to a December 5, 2005 check Mr. Daniel had received in the

amount of $236,574.31. This check was in addition to the draws Mr. Daniel and the

other partners had received from the Partnership at the same time.

By contrast, Mr. Daniel testified that the December 5, 2005 check was the first

time the Partnership had enough funds to reimburse him any of the funds he had

advanced or draws he had skipped. Mr. Daniel testified that the December 5, 2005 check

only reimbursed him for funds he had advanced on the cases that settled in 2005. He

asserted that this check was not sufficient to reimburse him for all funds he had advanced

the Partnership since its inception and was not enough to repay him the entire amount he

was owed.4

3

Ultimately there was no proof offered of misappropriation of client money.

4

In his answer to the petition, Mr. Daniel admitted taking a total of $673,211.83 from the

Partnership. The spreadsheet Mr. Daniel submitted indicated that the Partnership owed him

approximately $827,000. The record does not reflect the amount of the confidential settlement of the civil

litigation involving the Partnership and its assets.

-4-

Some of the disagreement about the amounts the Partnership owed Mr. Daniel

arose from Mr. Pemberton’s and Mr. Daniel’s conflicting understanding of how fees on

cases Mr. Daniel brought to the Partnership in 2002 were to be shared with the

Partnership. Again, Mr. Daniel and Mr. Pemberton had no written agreement addressing

this issue, which would have simplified matters before the Hearing Panel. But the proof

was undisputed that, regarding fees on cases Mr. Pemberton brought to the Partnership,

the fees were allocated according to the percentage of work performed on each case

before and after formation of the Partnership. Mr. Daniel testified that the same

arrangement applied to fees on cases he brought to the Partnership. Mr. Daniel’s

testimony about the fee allocation was supported by that of attorney Tom Overton, who

was collaborating with Mr. Daniel on his biggest cases when the Partnership was formed

in 2002.

On the other hand, Mr. Pemberton testified that, with the single exception of the

large case, or set of cases, that Mr. Daniel was working on with Mr. Overton in 2002, Mr.

Daniel had agreed to split final fees on his pre-existing cases equally with the Partnership

when each case was resolved. Mr. Pemberton’s testimony was supported by the

following testimony Mr. Daniel gave in a 2004 deposition during his divorce

proceedings, which the Board introduced into evidence:

Q: When it was just Mike [Pemberton] and you, how did you divide the

income?

Mr. Daniel: We just split it up even.

Q: So, it was 50/50 from day one?

Mr. Daniel: Yes, ma’am, as best I remember, it was.

Q: Okay, before [Mr. Pemberton] came and you were a sole practitioner

and you had cases that were—you were already working when he came, did

you divide[] the income from those cases or did you retain those cases as

separate from the [P]artnership?

Mr. Daniel: I divided all but part of one case as best I remember.

In addition to this disagreement about fees on pre-existing cases, a later

disagreement about fees culminated in Mr. Daniel’s departure from the Partnership. This

fee dispute centered on how Mr. Daniel had agreed to allocate a substantial fee received

from a settlement of a wrongful death action. The wrongful death action stemmed from

the 2008 disappearance and murder of a young woman who had been staying in a

Knoxville hotel while in town as an employee trainer for a new restaurant. Matthew

Cook, a newly licensed lawyer whom Mr. Daniel had begun mentoring in 2007 and who

shared the Partnership’s office space, brought the wrongful death case to Mr. Daniel. Mr.

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Daniel and Mr. Cook represented the young woman’s mother, and an Alabama lawyer

represented the young woman’s father in the wrongful death suit against the hotel where

she had been staying. The Alabama counsel, Mr. Cook, and Mr. Daniel negotiated a fee

arrangement. The case eventually settled for a significant sum. Mr. Daniel paid Mr.

Cook his portion of the attorney fees. But Mr. Pemberton disputed the payment and

maintained that Mr. Cook had received fees to which he was not entitled at the expense

of the Partnership. As a result of this fee dispute, relations deteriorated between Mr.

Daniel and the other partners, and Mr. Daniel left the Partnership.

Several character witnesses testified on Mr. Daniel’s behalf, including Assistant

United States Attorney Steven Cook, former District Attorney General Randall Nichols,

attorneys Thomas Overton, Deborah Fulton, Ronald Attanasio, Steve Sharp, Matthew

Cook, and a former paralegal employee of the Partnership, Sonya Cooper. These

character witnesses described Mr. Daniel as a competent lawyer and an honest person

who provided substantial pro bono services for clients. Mr. Daniel’s character witnesses

admitted, however, that they had little or no knowledge of the facts or allegations of the

petition for discipline.5

The Hearing Panel made extensive findings of fact. The last finding summarized

the case this way:

Based on [] the evidence submitted at trial, the Panel finds that

Respondent believed that the Partnership owed Respondent money based

on funds he advanced to fund the operation of the Partnership from its

inception and for fees he earned on cases he brought to the Partnership.

The Panel finds that rather than address the issue of what money, if any,

Respondent was owed by the Partnership through formal negotiation or

litigation with the other partners, that Respondent instead paid himself

directly from cases that were settled through the check writing scheme

described above. The Panel finds that Respondent did not make the other

partners of the Partnership aware of what he was doing. The Panel finds

that the manner in which Respondent repaid himself money to which he

thought he was owed was conducted in a way to conceal his actions from

his other partners. The Panel finds that Respondent wrongfully took money

from the Partnership.

5

Two of the character witnesses, Matthew Cook and Sonya Cooper, worked on the wrongful

death suit that precipitated the break-up of the Partnership but were not involved in or knowledgeable

about the Partnership’s accounting management or software. Mr. Daniel had represented another

character witness, Ronald Attanasio, in a business dispute. Mr. Pemberton, who suspected that Mr.

Daniel had stolen client funds after discovering irregularities in the Partnership’s accounting books, had

contacted Mr. Attanasio. Mr. Attanasio assured Mr. Pemberton that Mr. Daniel had not misappropriated

any funds in his case, but Mr. Attanasio was otherwise unaware of the facts underlying the Board’s

allegations against Mr. Daniel.

-6-

Based on these factual findings, the Hearing Panel concluded as a matter of law

that Mr. Daniel violated both RPC 8.4(b) and (c) by “purposely and wrongfully

deposit[ing] funds that belonged to the Partnership into his own account.”

Having found these violations, the Hearing Panel then consulted the American Bar

Association Standards for Imposing Lawyer Sanctions (“ABA Standards”), specifically

ABA Standards 5.11 and 5.12, to guide its imposition of an appropriate sanction.

The Hearing Panel next found the following aggravating factors, pursuant to ABA

Standard 9.22, present in this case: (1) Mr. Daniel’s “dishonest or selfish motive”; (2)

“pattern of misconduct”; and (3) “substantial experience in the practice of law.” The

Hearing Panel also found the following mitigating factors, pursuant to ABA Standard

9.32, present in this case: (1) Mr. Daniel’s “absence of a prior disciplinary record”; (2)

“full and free disclosure to [the] disciplinary board and cooperative attitude toward the

proceedings”; (3) “good character, reputation, competency as a lawyer, and contribution

to the practice of law”; (4) the fact that “[n]o client was deprived of any money”; and (5)

“[t]he delay in the disciplinary proceedings against [Mr. Daniel].”

The Hearing Panel then compared Mr. Daniel’s misconduct to the misconduct at

issue in what it considered to be similar cases. In distinguishing Mr. Daniel’s misconduct

from the attorney misconduct in Lockett v. Board of Professional Responsibility, 380

S.W.3d 19 (Tenn. 2012), the Hearing Panel stated that “although the Panel finds that [Mr.

Daniel] intended to permanently deprive his partners of the funds that he misappropriated

from the Partnership, he did so based upon his sincere belief that these funds were owed

to him from the Partnership.” The Hearing Panel then sanctioned Mr. Daniel to a three-

year suspension but ordered the entire suspension served on probation.

The Board appealed to the Chancery Court, arguing that the Hearing Panel abused

its discretion by suspending rather than disbarring Mr. Daniel. The Chancery Court

affirmed, concluding that the Hearing Panel’s judgment was not arbitrary or capricious

and was supported by substantial and material evidence. The Chancery Court stated that

the Hearing Panel’s judgment was not entirely clear on the question of “criminal intent,”

comparing the Hearing Panel’s conclusion that Mr. Daniel violated RPC 8.4(b) and (c)

with its statement that he sincerely believed the Partnership owed him the funds.

Nevertheless, the Chancery Court concluded that, even construing the Hearing Panel’s

judgment as including findings “that equate to criminal intent,” given the multiple

mitigating factors, the Hearing Panel did not abuse its discretion by imposing a sanction

of suspension with complete probation rather than disbarment. The Board then appealed

to this Court. See Tenn. Sup. Ct. R. 9, § 1.3 (currently § 33.1(d)).6

6

The 2006 version of Tennessee Supreme Court Rule 9 is used in this case because this matter

was initiated before January 1, 2014, when comprehensive changes to Rule 9 became effective.

-7-

II. Standard of Review

The Tennessee Supreme Court is the source of authority of the Board and all its

functions. Long v. Bd. of Prof’l Responsibility, 435 S.W.3d 174, 178 (Tenn. 2014)

(citing Brown v. Bd. of Prof’l Responsibility, 29 S.W.3d 445, 449 (Tenn. 2000)). As part

of our duty to regulate the practice of law in Tennessee, we bear ultimate responsibility

for enforcing the rules governing the legal profession. Id. (citing Doe v. Bd. of Prof’l

Responsibility, 104 S.W.3d 465, 469–70 (Tenn. 2003)). We review judgments under our

“inherent power [and] essential and fundamental right to . . . administer [the] rules

pertaining to the licensing . . . of attorneys.” Hughes v. Bd. of Prof’l Responsibility, 259

S.W.3d 631, 640 (Tenn. 2008) (quoting In re Burson, 909 S.W.2d 768, 773 (Tenn.

1995)).

Attorneys charged with disciplinary violations have a right to an evidentiary

hearing before a hearing panel, which determines if a violation has occurred and, if so,

the disciplinary penalty. Maddux v. Bd. of Prof’l Responsibility, 409 S.W.3d 613, 621

(Tenn. 2013) (“Maddux III”).7 Either party may appeal a hearing panel’s decision to the

circuit or chancery court, where review is conducted upon “the transcript of the evidence

before the hearing panel and its findings and judgment.” Tenn. Sup. Ct. R. 9, § 1.3

(currently § 33.1(d)). Either party then may appeal from the trial court’s decision directly

to this Court, where the cause is heard “upon the transcript of the record from the circuit

or chancery court, which shall include the transcript of evidence before the hearing

panel.” Id.

We apply the same standard of review as applied by the trial court and do not

disturb a hearing panel’s decision unless the hearing 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 the light of the entire record.

Id. § 1.3 (currently 33.1(b)); Moncier v. Bd. of Prof’l Responsibility, 406 S.W.3d 139,

150 (Tenn. 2013). We review questions of law de novo but do not substitute our

judgment for that of a hearing panel as to the weight of the evidence on questions of fact.

Maddux III, 409 S.W.3d at 622. Finally, a hearing panel’s findings as to aggravating and

mitigating factors are also reviewed in accordance with the five enumerated

7

While we do not discuss a second disciplinary case against this same attorney in this opinion,

Maddux v. Bd. of Prof’l Responsibility, 288 S.W.3d 340 (Tenn. 2009), we refer to the third case against

the named attorney as “Maddux III” to avoid any possible confusion.

-8-

circumstances in Tennessee Supreme Court Rule 9, section 1.3. Lockett, 380 S.W.3d at

23.

III. Analysis

To assess the appropriateness of the disciplinary sanction in a given case, we

begin, as did the Hearing Panel here, with the ABA Standards. See Tenn. Sup. Ct. R. 9, §

8.4 (currently § 15.4); Maddux III, 409 S.W.3d at 624. The ABA Standards are

“guideposts” rather than rigid rules for determining appropriate and consistent sanctions

for attorney misconduct. Maddux III, 409 S.W.3d at 624. As the ABA Standards note:

While there may be particular cases of lawyer misconduct that are

not easily categorized, the standards are not designed to propose a specific

sanction for each of the myriad of fact patterns in cases of lawyer

misconduct. Rather, the standards provide a theoretical framework to guide

the courts in imposing sanctions. The ultimate sanction imposed will

depend on the presence of any aggravating or mitigating factors in that

particular situation. The standards thus . . . are guidelines which give

courts the flexibility to select the appropriate sanction in each particular

case of lawyer misconduct.

ABA Standards, Theoretical Framework.

The first step is to identify the presumptive sanction based on the following

considerations: (1) the ethical duty the lawyer violated—whether to a client, the public,

the legal system, or duties as a professional; (2) the lawyer’s mental state; and (3) the

extent of the actual or potential injury caused by the lawyer’s misconduct. Bd. of Prof’l

Responsibility v. Cowan, 388 S.W.3d 264, 268 (Tenn. 2012) (citing the ABA Standards,

Preface). Next, any aggravating or mitigating circumstances must be considered in

determining whether to increase or decrease the presumptive sanction in a particular case.

Id. (discussing ABA Standard 9).

A. Presumptive Sanction: Disbarment or Suspension?

Before this Court the parties do not dispute that Mr. Daniel violated a duty to the

public. They agree that ABA Standard 5.1—Failure to Maintain Personal Integrity—

applies to Mr. Daniel’s misconduct of intentionally concealing transactions from his

partners and misappropriating partnership funds.8 The dispute here arises because the

Hearing Panel identified both ABA Standards 5.11 and 5.12 as appropriate guides for

8

Neither party disputes the Hearing Panel’s finding that “[n]o client was deprived of any money

belonging or owed to a client” so ABA Standard 4.0—Violations of Duties Owed to Clients—does not

apply. Nor was the misconduct in the context of legal proceedings so ABA Standard 6.0—Violations of

Duties Owed to the Legal System—does not apply either.

-9-

choosing presumptive sanctions in this case. The Board argues that the Hearing Panel

should have relied on ABA Standard 5.11, alone, which establishes disbarment as the

presumptive sanction. Mr. Daniel responds that the Hearing Panel did not commit

reversible error by identifying both. We turn to the relevant text. ABA Standard 5.1—

Failure to Maintain Personal Integrity—states:

Absent aggravating or mitigating circumstances, upon application of

the factors set out in Standard 3.0, the following sanctions are generally

appropriate in cases involving commission of a criminal act that reflects

adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in

other respects, or in cases with conduct involving dishonesty, fraud, deceit,

or misrepresentation:

5.11 Disbarment is generally appropriate when:

(a) a lawyer engages in serious criminal conduct a necessary element

of which includes intentional interference with the administration of justice,

false swearing, misrepresentation, fraud, extortion, misappropriation, or

theft; or the sale, distribution or importation of controlled substances; or the

intentional killing of another; or an attempt or conspiracy or solicitation of

another to commit any of these offenses; or

(b) a lawyer engages in any other intentional conduct involving

dishonesty, fraud, deceit, or misrepresentation that seriously adversely

reflects on the lawyer’s fitness to practice.

5.12 Suspension is generally appropriate when a lawyer knowingly

engages in criminal conduct which does not contain the elements listed in

Standard 5.11 and that seriously adversely reflects on the lawyer’s fitness to

practice.

The Hearing Panel clearly determined that Mr. Daniel violated RPC 8.4(b) and (c).

Mr. Daniel has not challenged this finding on appeal. In finding a violation of RPC

8.4(b) and (c), the Hearing Panel necessarily found that Mr. Daniel committed “a

criminal act that reflects adversely on [his] honesty, trustworthiness, or fitness as a

lawyer in other respects” and also found that he engaged “in conduct involving

dishonesty, fraud, deceit, or misrepresentation.” Tenn. Sup. Ct. R. 8, RPC 8.4(b) & (c).

In addition, the Hearing Panel’s findings that Mr. Daniel “wrongfully took money from

the Partnership,” and “intended to permanently deprive his partners of the funds that he

misappropriated from the Partnership,” indicate that the Hearing Panel found that Mr.

Daniel committed theft or a series of thefts. See Tenn. Code Ann. § 39-14-103 (2014 &

Supp. 2017) (“A person commits theft of property, if, with intent to deprive the owner of

property, the person knowingly obtains or exercises control over the property without the

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owner’s effective consent.”).9 Given these findings that Mr. Daniel intentionally

committed serious criminal conduct, the Hearing Panel was correct in identifying ABA

Standard 5.11 as an appropriate guidepost for selecting the presumptive sanction.

This is not to say, however, that the Hearing Panel had no authority to also

consider ABA Standard 5.12. To the contrary, we reiterate that “[t]he ABA Standards

‘are not designed to propose a specific sanction for each of the myriad of fact patterns in

cases of lawyer misconduct,’ and they are ‘not analogous to criminal determinate

sentences.’” Maddux III, 409 S.W.3d at 624 (quoting ABA Standards, Theoretical

Framework). As we explained in Cowan, a hearing panel may consider the full panoply

of sanctions applicable to lawyer misconduct, including admonition, reprimand,

suspension, or disbarment, even if a particular ABA Standard does not explicitly describe

the fact pattern in question. See 388 S.W.3d at 270.10 Any other interpretation would be

incongruous with using the ABA Standards as flexible guideposts.

Hearing panels should precisely and clearly identify all ABA Standards that are

relied upon for guidance in determining an appropriate sanction and should clearly and

concisely articulate findings of fact and conclusions of law. Doing so serves both to

inform the parties of the grounds for a hearing panel’s decision and facilitate appellate

review. Identifying the correct or most appropriate presumptive sanction may in some

cases be outcome determinative in this Court’s review. See Cowan, 388 S.W.3d at 270.

Hearing panels may on occasion be confronted with fact patterns that do not neatly fit

into a single ABA Standard, as this Court has been. Talley v. Bd. of Prof’l

Responsibility, 358 S.W.3d 185, 194 (Tenn. 2011) (“From our own review of the record

and the arguments presented, it is not entirely clear whether [Attorney’s] facilitation of

securities fraud falls within ABA Standards § 5.11(a) or (b) which presumptively result in

disbarment or ABA Standards § 5.12 which presumptively results in suspension.”). Even

in the rare case where lawyer misconduct seems to fall between presumptive sanctions or

within multiple ABA Standards identifying different presumptive sanctions, hearing

panels and this Court remain able and authorized to make an ultimate determination on

the appropriate sanction. Under such circumstances, hearing panels may identify all

relevant ABA Standards and then determine a sanction within the range of the

presumptive sanctions identified in the relevant ABA Standards. The Hearing Panel in

this case did just that.

9

The theft statute is also the only criminal statute the parties cited in their briefs to this Court.

10

In Cowan, we noted that reprimand or admonition may be appropriate in cases where a lawyer

has committed criminal acts despite the fact that ABA Standards 5.13 and 5.14 do not specifically

mention criminal conduct. 388 S.W.3d at 270 (“a contrary interpretation would imply that the Standards

fail to provide any sanction less serious than suspension for criminal conduct precisely because the

conduct was criminal”).

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Here, the Hearing Panel’s determination that Mr. Daniel violated RPC 8.4(b) and

(c) clearly mandated consideration of ABA Standard 5.11. The Hearing Panel also found

that Mr. Daniel acted intentionally to conceal transactions from his partners even though

he believed that he was entitled to those funds. By the time of the proceedings before the

Hearing Panel, Mr. Daniel and the Partnership had settled civil litigation arising out of

these transactions. Upon considering the duty violated, Mr. Daniel’s mental state, and

the actual or potential injury resulting from his misconduct, we cannot say that the

Hearing Panel acted arbitrarily and capriciously in considering both ABA Standard 5.11,

identifying disbarment, and ABA Standard 5.12, identifying suspension as the

presumptive sanctions relevant to this case.

B. The Assessment of Aggravating and Mitigating Factors

Next, we turn to the Hearing Panel’s assessment of the aggravating and mitigating

factors, which guided its ultimate decision to choose disbarment or some form of

suspension. Again, the ABA Standards provide guidance in an “illustrative rather than

exclusive” list of various aggravating and mitigating factors in sections 9.1, 9.2, and 9.3.

Bailey v. Bd. of Prof’l Responsibility, 441 S.W.3d 223, 235 (Tenn. 2014) (quoting

Lockett, 380 S.W.3d at 28).

1. Aggravating Factors

The Hearing Panel found the existence of three aggravating factors: (1) dishonest

or selfish motive; (2) pattern of misconduct; and (3) experience in the practice of law.

Mr. Daniel does not contest the application of these factors, and we therefore apply them.

Before this Court the Board argues that three other aggravating factors apply

which were not included in the Hearing Panel’s or trial court’s judgments: (1) that Mr.

Daniel committed multiple offenses; (2) refused to acknowledge the wrongful nature of

his conduct; and (3) committed wrongful acts against vulnerable victims, his law

partners. We review the application of these factors in accordance with Tennessee

Supreme Court Rule 9, section 1.3. Lockett, 380 S.W.3d at 22–23.

The Board acknowledged that the Hearing Panel applied “pattern of misconduct,”

ABA Standard 9.22(c), as an aggravating factor but argues that it also should have

applied “multiple offenses,” ABA Standard 9.22(d), as an aggravating factor as the

hearing panel did in Board of Professional Responsibility v. Maddux, 148 S.W.3d 37, 41

(Tenn. 2004) (“Maddux I”), where, similar to this case, there were multiple

misappropriations over a three-year period. We agree that the evidence would support a

finding of this aggravating factor. However, nothing compelled the Hearing Panel to

apply both aggravating factors in the circumstances of this case. As Mr. Daniel points

out, the multiple instances of misappropriations by writing checks would underlie both

the pattern of misconduct factor and multiple offenses factor if both were applied,

resulting in double consideration of essentially the same circumstances. The fact that the

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Hearing Panel chose to include “pattern of misconduct” but not “multiple offenses” was

not arbitrary and capricious.11

Next, the Board argues that Mr. Daniel’s refusal to acknowledge the wrongful

nature of his conduct should have been applied as an aggravating factor. Mr. Daniel

mounted a defense to the Board’s charges, claiming that he made his partners aware of

his transactions and that he was entitled to all the funds he withdrew. While the Hearing

Panel did not credit his defense in its entirety, the mounting of a defense, without more,

should not be applied as an aggravating factor.12 Because the Board only argues that

“Mr. Daniel took the position that he was owed the money that he misappropriated” as a

basis for this factor, which was Mr. Daniel’s defense, we find that the Hearing Panel did

not err by refusing to apply this aggravating factor.

Finally, the Board argued to the trial court and before this Court that Mr. Daniel’s

wrongful conduct while managing the firm’s accounts should have been considered an

aggravating factor due to the vulnerability of his victims. We agree. “[T]he fiduciary

duty of loyalty that exists between partners and the trust that law firms must place in their

attorneys to act as representatives of the firm cause[s] the law firm to be vulnerable with

11

Mr. Daniel has not challenged application of pattern of misconduct here, and we need not

define its parameters or any potential overlap with the parameters of the related multiple offenses

aggravating factor. We acknowledge, however, a lack of precision in some of our own prior decisions

describing and applying these factors. See, e.g., Lockett, 380 S.W.3d at 29 (describing “a pattern of

multiple instances of misconduct” as “consistent with ABA Standards 9.22[](c)[] and (d)”); Maddux III,

409 S.W.3d at 628 (describing attorney’s “prior disciplinary proceedings [that] involved similar

misconduct” as weighing “heavily in aggravation” without citing the “pattern of misconduct” aggravating

factor). We note as well that some decisions suggest that “multiple offenses” rather than “pattern of

misconduct” more properly applies in the circumstances of this case. See, e.g., Threadgill v. Bd. of Prof’l

Responsibility, 299 S.W.3d 792, 810 (Tenn. 2009), overruled by Lockett, 380 S.W.3d 19 on a separate

legal issue; Matter of Levine, 811 S.E.2d 349, 353 (Ga. 2018); In re Disc. of Walton, 287 P.3d 1098,

1104 (Or. 2012); In re Disc. Proc. Against Brothers, 70 P.3d 940, 945 (Wash. 2003); Matter of Disc. Proc.

Against McMullen, 896 P.2d 1281, 1291 (Wash. 1995), as amended (July 25, 1995); In re Reardon, 759

A.2d 568, 577 (Del. 2000); People v. Bontrager, 407 P.3d 1235, 1278–79 (Colo. O.P.D.J. 2017).

12

Other state courts have used similar reasoning in assessing this aggravating factor. See In re

Smith, 236 P.3d 137, 149 (Or. 2010) (“the accused’s reliance on [] arguments [for his defense]—although

unavailing—cannot be used to enhance the penalty that would otherwise be imposed for his violations”);

Attorney Grievance Comm’n v. Monfried, 794 A.2d 92, 105 (Md. 2002) (“The mere filing of the

exceptions in the exercise of an attorney’s right under the Maryland Rules does not equate to lack of

remorse.”); In re Suttle, 701 S.E.2d 154, 155–56 (Ga. 2010) (“As an initial matter, we recognize that an

attorney’s refusal to acknowledge the wrongful nature of his or her behavior should not automatically be

considered a factor in aggravation of punishment, particularly in the face of an honest and objectively

reasonable belief in one’s own innocence.”); In re Davenport, 49 P.3d 91, 104 (Or. 2002) (“To invoke

ABA Standard 9.22(g), the Bar must point to some other evidence, aside from an accused lawyer’s refusal

to concede the Bar’s factual allegations, to support a finding that the lawyer has refused to acknowledge

the wrongful nature of his or her conduct.”); In re Marshall, 217 P.3d 291, 307 (Wash. 2009) (“Although

[respondent] has shown no penitence for his actions, we do not penalize him for making arguments in his

defense.”).

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respect to [the attorney’s] misconduct.” Maddux I, 148 S.W.3d at 41. That vulnerability

is even more pronounced here, where Mr. Daniel, apart from being a partner in his firm,

also solely managed the Partnership’s finances and account books. Thus, the Hearing

Panel erred by failing to consider the vulnerability of the victims as an aggravating factor.

2. Mitigating Factors

The Hearing Panel found the existence of five mitigating factors asserted by Mr.

Daniel pursuant to ABA Standard 9.32: (1) Mr. Daniel’s “absence of a prior disciplinary

record”; (2) “full and free disclosure to [the] disciplinary board and cooperative attitude

toward the proceedings”; (3) “good character, reputation, competency as a lawyer, and

contribution to the practice of law”; (4) the fact that “[n]o client was deprived of any

money”; and (5) “[t]he delay in the disciplinary proceedings against [Mr. Daniel].” The

Board does not challenge the factors involving Mr. Daniel’s disclosure and cooperative

attitude, the delay in proceedings, or the absence of a prior disciplinary record, and we

agree those factors apply in this case.

The Board does object to the Hearing Panel’s finding as a mitigating factor that

“[n]o client was deprived of any money.” We have not previously considered whether

this fact may be considered as a mitigating factor or should only be considered in

determining which ABA Standards apply to establish the presumptive sanction. We note

that ABA Standard 4.0 generally establishes presumptive sanctions for violations of

duties owed to clients. Standard 4.1 addresses failure to preserve the client’s property

and identifies disbarment as the presumptive sanction “when a lawyer knowingly

converts client property and causes injury or potential injury to a client.” ABA Standard

4.11. In contrast, ABA Standard 5.11 identifying disbarment as the presumptive sanction

requires intentional conduct. We note that the Supreme Court of Minnesota has recently

reversed an earlier decision and now holds that whether client money was taken should

only be considered in determining the appropriate presumptive sanction and should not

be considered as a mitigating factor. In re Disc. Action v. Bonner, 896 N.W.2d 98, 109–

10 (Minn. 2017).

While we tend to agree that this fact is more appropriately considered in the

context of identifying the presumptive sanction under the ABA Standards, we recognize

that Tennessee law affords hearing panels broad discretion to consider any fact in

mitigation. See Lockett, 380 S.W.3d at 27–28 (quoting ABA Standard 9.31). In light of

this broad discretion and our own deferential standard of review, we cannot say that the

Hearing Panel abused its discretion by considering that no client was deprived of any

money as a mitigating factor.

Finally, the Board argues that little weight should be given to the witnesses who

testified as to Mr. Daniel’s good character. In a different context, we have explained that

less weight should be given to a character witness’s testimony if that witness does not

know the details of the factual allegations against an attorney. Culp v. Bd. of Prof’l

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Responsibility, 407 S.W.3d 201, 208–09 (Tenn. 2013) (discussing Milligan v. Bd. of

Prof’l Responsibility, 301 S.W.3d 619, 632 (Tenn. 2009)). The Hearing Panel stated that

Mr. Daniel’s “character witnesses admitted that they had little or no knowledge of the

facts of this case and the allegations set forth” against Mr. Daniel. Thus, we cannot say

that the Hearing Panel gave inappropriate weight to this mitigating factor.13

In summary, the Hearing Panel erred in failing to find an aggravating factor, the

vulnerability of Mr. Daniel’s victims, but otherwise did not abuse its discretion in

choosing which aggravating and mitigating factors to consider. Thus we move to our

own analysis of what constitutes adequate discipline in this case.

C. Comparable Discipline

This Court “evaluate[s] each instance of attorney discipline in light of its particular

facts and circumstances,” even as it “consider[s] the sanctions that have been imposed in

prior cases that present similar circumstances so as to maintain consistency and

uniformity in disciplinary proceedings.” Maddux I, 148 S.W.3d at 40. However, “the

objective of achieving uniformity of punishment in disciplinary proceedings does not

require that every named offense be accorded identical punishment.” Bd. of Prof’l

Responsibility v. Bonnington, 762 S.W.2d 568, 570 (Tenn. 1988). While the

misappropriation of funds by an attorney is serious misconduct, we have previously

rejected “a hard and fast rule that all misappropriations of funds by lawyers should result

in disbarment,” instead recognizing that “there are widely varying degrees of

misappropriation of funds.” Id.

Maddux I was our first case addressing “the question of the proper sanction in

cases involving an attorney’s misappropriation of fees from his or her own law firm.”

148 S.W.3d at 40. The attorney in Maddux I misappropriated over ninety thousand

dollars in law firm funds during the turbulent break-up of the law partnership at a time

when senior partners had halted all monthly draws. Id. at 38. The attorney claimed that

he took law firm funds with an eye towards gaining “leverage for negotiating with his

partners.” Id. Based on a finding that the attorney in Maddux I “lacked criminal intent”

and that his conduct adversely reflected on his fitness to practice law rather than seriously

13

Additionally, the Board argues that character witness testimony should not mitigate the level

of sanctions in misappropriations cases because of the seriousness of the misconduct at issue. See Matter

of Siegel, 627 A.2d 156, 161 (N.J. 1993) (“[a]lthough good reputation, prior trustworthy professional

conduct, and general good character are often considered as mitigating factors . . . , their importance is

diminished where misappropriation is involved”). However, the New Jersey case that the Board cites to

was later summarized to mean that “misappropriation of client or law firm funds will almost invariably

result in disbarment” and that only the most exceptional mitigating circumstances would result in a

sanction less than disbarment. Matter of Greenberg, 714 A.2d 243, 244 (N.J. 1998). We have not

adopted that policy in Tennessee. See Bd. of Prof’l Responsibility v. Bonnington, 762 S.W.2d 568, 570–

71 (Tenn. 1988); Maddux I, 148 S.W.3d at 40 (“no one sanction is necessarily more appropriate than any

other” in cases of attorney misappropriation of law firm funds).

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adversely reflected on his fitness to practice, we were guided by ABA Standard 5.13

which set reprimand as the presumptive sanction. Id. at 40–41. Based on the balance of

aggravating and mitigating circumstances in that case, we affirmed a thirty-day active

suspension followed by a one-year probationary suspension on the attorney-respondent.

Id. at 42. While there are many similarities between the case before us and Maddux I, the

Hearing Panel’s determination that ABA Standards 5.11 and 5.12 apply include the

finding of misconduct that seriously adversely reflects on Mr. Daniel’s fitness to

practice14 and here the baseline sanction is either suspension or disbarment.

In Lockett, the attorney received a four-year active suspension for criminal

conduct including the misappropriation of law firm funds and a willful failure to file

income tax returns. 380 S.W.3d at 21. Despite identifying ABA Standard 5.11 and

disbarment as the presumptive baseline sanction, the attorney in Lockett was suspended

and not disbarred. Id. at 29–30. We distinguished Lockett from Maddux I by noting that

the attorney in Maddux I “did not have a criminal intent to keep the converted funds

permanently” while the attorney in Lockett “pleaded guilty to having a criminal intent to

permanently deprive his law firm of the misappropriated funds.” Id. at 30. Here, the

Hearing Panel found that Mr. Daniel “intended to permanently deprive his partners of the

funds that he misappropriated from the Partnership,” like the attorney in Lockett and

unlike the attorney in Maddux.

In Bonnington, 762 S.W.2d 568, a lawyer was sanctioned with a four-year active

suspension for misappropriating client and law firm funds. The attorney in Bonnington

made multiple withdrawals from an estate account he was administering although he later

deposited funds back into the estate account. Id. at 569. The final deposit that the

attorney made to reimburse the estate account was from his law firm’s trust account and

the attorney self-reported his misappropriations to the Board of Professional

Responsibility at about the same time that his law firm was conducting an audit of his

handling of the estate account. Id.

In all of these comparison cases the length of the suspensions imposed are similar

to the suspension in this case, but the attorneys in the comparison cases were all required

to serve at least some period of active suspension. See Lockett, 380 S.W.3d at 30

(affirming the hearing panel’s imposition of a four-year suspension without a

probationary period); Maddux I, 148 S.W.3d at 41–42 (affirming a thirty-day suspension

and a one-year probationary period afterwards, even though the presumptive sanction was

reprimand); Bonnington, 762 S.W.2d at 570–71 (affirming a four-year suspension which

was “only one year short of the maximum punishment of disbarment” and without a

probationary period).

14

Both ABA Standards 5.11(b) and 5.12 are generally appropriate when attorney misconduct

“seriously adversely reflects on the lawyer’s fitness to practice.”

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In summary, the Hearing Panel failed to find an applicable aggravating factor, the

vulnerability of Mr. Daniel’s law partner victims, and the sanction imposed by the

Hearing Panel, probating the entire three-year suspension, is out of line with the sanctions

in comparable cases. Other than noting that the parties’ civil litigation settlement

removed the need for restitution as a probation condition, the Hearing Panel also gave no

explanation for why it decided to probate Mr. Daniel’s entire period of suspension. Nor

did the Hearing Panel impose any conditions, probation monitoring, or supervision of Mr.

Daniel during the probationary period. See Tenn. Sup. Ct. R. 9, § 8.5 (currently Tenn.

Sup. Ct. R. 9, § 14) (“Probation shall be used only in cases where there is little likelihood

that the respondent will harm the public during the period of rehabilitation and where the

conditions of probation can be adequately supervised.”). For all the foregoing reasons,

we conclude that the Hearing Panel acted arbitrarily and capriciously by probating the

entirety of Mr. Daniel’s suspension.

Thus, to attain an appropriate sanction, comparable to sanctions imposed in other

similar cases and reflecting the aggravating and mitigating factors, we modify Mr.

Daniel’s three-year suspension to include one year of active suspension followed by

probation for the remainder of the suspension.

IV. Conclusion

For the reasons stated herein, we affirm as modified the Chancery Court’s

judgment. Costs of this appeal are taxed to Mr. Daniel, for which execution may issue if

necessary.

_________________________________

CORNELIA A. CLARK, JUSTICE

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