Douglas Ralph Beier v. Board of Professional Responsibility of The Supreme Court of Tennessee

10/02/2020

IN THE SUPREME COURT OF TENNESSEE

AT KNOXVILLE

February 11, 2020 Session Heard at Nashville

DOUGLAS RALPH BEIER v. BOARD OF PROFESSIONAL

RESPONSIBILITY OF THE SUPREME COURT OF TENNESSEE

Direct Appeal from the Chancery Court for Hamblen County

No. 2018-CV-177 Robert E. Lee Davies, Senior Judge

___________________________________

No. E2019-00463-SC-R3-BP

___________________________________

In this appeal from attorney disciplinary proceedings, the hearing panel of the Tennessee

Board of Professional Responsibility determined that the attorney’s conduct in two cases

violated the Rules of Professional Conduct. In one case, the hearing panel found that the

attorney signed the name of a witness on an affidavit, falsely notarized the signature, and

did not disclose to the trial court or opposing counsel that he had signed the witness’s

affidavit. In another case, the hearing panel found, the attorney persuaded a client in a

probate matter to agree to an unreasonable contingency fee arrangement, took advantage

of the client’s disability, misrepresented to the probate court that the client was the

decedent’s sole heir, failed to disclose the existence of other heirs, and got the probate court

to agree to close the estate without a detailed accounting in order to avoid judicial scrutiny

of the unreasonable fee. The hearing panel suspended the law license of the appellant

attorney for two years, with three months served as active suspension and the remainder

on probation. The attorney and the Board both appealed the hearing panel’s decision to

the chancery court. The chancery court affirmed the hearing panel’s findings as to rule

violations and aggravating and mitigating factors, but it modified the sanction to two years

active suspension. The attorney now appeals to this Court, arguing that his conduct was

not dishonest, he did not take advantage of a vulnerable client, and his probate fee

arrangement was not unreasonable. We affirm the hearing panel’s factual findings and its

findings as to rule violations. In view of the seriousness of the violations, we affirm the

chancery court’s modification of the sanction to two years active suspension.

Tenn. Sup. Ct. R. 9, § 33.1(d)

Judgment of the Chancery Court Affirmed

HOLLY KIRBY, J., delivered the opinion of the court, in which JEFFREY S. BIVINS, C.J., and

CORNELIA A. CLARK, SHARON G. LEE, and ROGER A. PAGE, JJ., joined.

Douglas Ralph Beier, Morristown, Tennessee, Appellant, Pro Se.

Sandy Garrett and Jerry D. Morgan, Brentwood, Tennessee, for the Appellee, Board of

Professional Responsibility.

OPINION

FACTUAL AND PROCEDURAL BACKGROUND

Respondent-Appellant Douglas Ralph Beier has been licensed to practice law in

Tennessee since 1977. He maintains a general law practice in Morristown, in Hamblen

County. His practice has always included probate work.

The discipline in this case centers on two matters, which we describe below.

Affidavit Matter

The first matter involves the signature on an affidavit. In 2015, Mr. Beier had a

client who was a divorced father (“Father”). Father claimed that his daughter (“Daughter”),

then five years old, was sexually abused by her teenage sister while both were in the

custody of their mother, Father’s ex-wife (“Mother”). Mr. Beier prepared to file two

petitions on behalf of Father, both making the abuse allegations in support of his request

to modify the custody arrangement for Daughter.1

Shortly before he was scheduled to leave for a trip out of town, Mr. Beier prepared

an affidavit for Father and another affidavit for Daughter’s paternal grandmother

(“Grandmother”). The affidavits were to be used in court the next Monday. Mr. Beier left

both affidavits at his office to be signed while he went to court on another matter.

When Mr. Beier returned to his office later that same day, he saw that Father had

signed his affidavit but Grandmother had not signed hers. Mr. Beier signed Grandmother’s

1

One petition was to be filed in chancery court, and the other in juvenile court.

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name to her affidavit (the “Affidavit”). In his capacity as a notary public, Mr. Beier

notarized Grandmother’s Affidavit as well.2 He then left town on his scheduled trip.

When Mr. Beier returned the next Monday, August 31, 2015, he filed the petitions,

each with the Affidavit in support. Neither the petitions nor the Affidavit disclosed that

Mr. Beier had signed Grandmother’s name for her. Based on these filings, the juvenile

court entered an order temporarily suspending Mother’s parenting time.

Months later, counsel for Mother took Grandmother’s deposition. In the course of

the deposition, the attorney asked Grandmother whether the signature at the bottom of the

Affidavit was hers. Grandmother gave no answer. The attorney repeated the question,

more than once, with no response. Finally, Mr. Beier interjected, “That’s where I

subscribed your signature, right there.” Grandmother then agreed, “Uh-huh. Yeah. He

subscribed my signature.”

In October 2015, Mr. Beier filed a re-verified affidavit making the same statements,

signed by Grandmother. In January 2016, counsel for Mother filed a motion alleging

misconduct by Mr. Beier with respect to the Affidavit and asking the juvenile court to

assess sanctions against Mr. Beier.

In April 2016, Mr. Beier contacted Tennessee’s Board of Professional

Responsibility (the “Board”) to self-report his infraction.

Estate Matter

The second matter involved Mr. Beier’s representation of Ray Norton in connection

with an estate.

Mr. Norton contacted Mr. Beier for representation regarding the estate of his

deceased aunt, Audrey Jenkins. Mr. Norton, 62 years old, had received Social Security

Supplemental Security Income (SSI) benefits and Department of Veterans’ Affairs

disability benefits (as the child of a veteran) all of his adult life. Mr. Beier understood that

Mr. Norton qualified for disability benefits because of a nervous condition.

2

A notary public who “notarizes” a document “attest[s] to the authenticity” of a signature. Black’s

Law Dictionary 1274 (11th ed. 2019). He signs a “jurat,” which “typically says ‘Subscribed and sworn to

before me this day of [month], [year].’” Black’s Law Dictionary 1015 (11th ed. 2019). By doing so, the

notary public “certifies three things: (1) that the person signing the document did so in the [notary public’s]

presence, (2) that the signer appeared before the [notary public] on the date indicated, and (3) that the

[notary public] administered an oath or affirmation to the signer, who swore to or affirmed the contents of

the document.” Id.

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Mr. Norton brought a “friend,” Paul Barnes, to his initial meeting with Mr. Beier.

Mr. Norton explained that Mr. Barnes was the designated payee for some of the disability

benefits Mr. Norton received. During the meeting, Mr. Beier proposed that, as

compensation for his representation of Mr. Norton as to Ms. Jenkins’s estate, Mr. Beier

would receive a 33.3% contingency fee of the “gross estate.” Mr. Norton agreed to the

proposal.

Mr. Norton’s deceased aunt, Ms. Jenkins, was a widow without children. She died

intestate. She was predeceased by a full-sister and by a half-brother. Mr. Norton was the

only child of Ms. Jenkins’s full-sister. The half-brother, Sheridan James, had four living

children. Mr. Norton told Mr. Beier about these “half-cousins” at their initial meeting.

It appears from the record that Ms. Jenkins owned three parcels of real estate at the

time of her death. However, the real property was never part of the Jenkins estate.

In September 2013, Mr. Beier filed a petition on Mr. Norton’s behalf, asking the

chancery court to name Mr. Norton as Administrator of the Jenkins estate. The petition

alleged that Mr. Norton was Ms. Jenkins’s sole heir.

Later that same month, the mother of Sheridan James’s children saw the Jenkins

estate’s notice to creditors. She contacted Mr. Beier and told him about her children and

their father, Ms. Jenkins’s half-brother.

Eleven months later, Mr. Beier filed a petition and proposed order to close the

Jenkins estate. In the filing, Mr. Beier asserted that Mr. Norton, “being the sole beneficiary,

desires to close the estate without a detailed accounting.” Mr. Beier did not notify the

James children he had filed this petition. He did not disclose to the chancery court the

existence of the James children. Relying on Mr. Beier’s representation, the chancery court

granted the petition and closed the estate without a detailed accounting.

In calculating his final fee, Mr. Beier included two of the three parcels of real estate

Ms. Jenkins owned at the time of her death, even though they were never actually part of

the estate.3 The only work Mr. Beier performed regarding the real property was preparation

of an administrator’s deed. The total fee Mr. Beier ultimately received for handling the

3

The hearing panel found that Mr. Beier included two parcels in his fee calculation, but his

testimony to the hearing panel, reading from his notes, mentions three properties twice: “Charles Lee Drive,

. . . two other rentals” and “owned [the] house at Charles E. Drive . . . . owned the property at Roy Potter

Road. . . . [a]nother house Roy Potter Road.” Mr. Beier’s estate calculations list a House #1, House #2, and

a Rental.

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Jenkins estate was $78,614. Because the estate was closed without a detailed accounting,

there was no judicial approval of the fee.

Later, Mr. Norton learned he was not Ms. Jenkins’s sole heir, as Mr. Beier had

represented to the chancery court; his half-cousins, the James children, were entitled to a

portion of the Jenkins estate. Mr. Norton hired new counsel. In February 2016, the new

attorney filed a petition on behalf of Mr. Norton to reopen the Jenkins estate.

Mr. Norton’s new attorney contacted Mr. Beier about the Jenkins estate. In June

2016, after the Jenkins estate was reopened, Mr. Beier reimbursed the estate his entire fee,

with interest.

On October 16, 2016, the Board received a complaint of misconduct regarding Mr.

Beier’s handling of the Jenkins estate from one of the James children. Mr. Beier self-

reported this matter as well.

Hearing Panel

In early 2017, the Board filed a petition for discipline against Mr. Beier, citing the

Affidavit matter, and then a supplemental petition for discipline, citing the Jenkins estate

matter. Both matters proceeded before a hearing panel. After considering testimony and

affidavits submitted by both parties, the hearing panel issued findings of fact, finding in

pertinent part:

21. Having heard the testimony of Mr. Beier, [Grandmother], and

[Mother’s counsel], and considering the demeanor of the witnesses, the

inconsistencies in the testimony of Mr. Beier and [Grandmother], and their

relationship, along with the other evidence of record, the Panel finds that Mr.

Beier’s and [Grandmother]’s testimony that [Grandmother] gave Mr. Beier

permission to sign her name to the [A]ffidavit and that Mr. Beier did so on

August 26, 2015[,] is not credible.

22. By signing [Grandmother]’s name to the [A]ffidavit without

signifying that he was signing her name on her behalf, and by notarizing that

signature, Mr. Beier represented to the Juvenile and Chancery Courts that

[Grandmother] had in fact signed the [A]ffidavit personally, a representation

he knew to be false.

....

39. Mr. Beier took advantage of Mr. Norton’s disability in order to obtain

his agreement to the one-third fee.

....

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42. Mr. Beier had never previously charged a one-third contingency fee

for the probate of an estate.

....

53. Mr. Beier testified that he was unaware of the administration of the

estate that Darrell, Kevin, Steven[,] and Lavonda James were heirs of Ms.

Jenkins. Mr. Beier’s testimony was not credible to the extent that he knew

or should have known the James children were also heirs.

....

55. Because Mr. Norton was represented to the court as the only

beneficiary of the estate, it was not necessary for Mr. Beier to obtain the

court’s approval of his one-third fee.

....

58. In determining the value of the gross estate for purposes of computing

his one-third fee, Mr. Beier included the estimated value of two pieces of real

estate owned by Ms. Jenkins at the time of her death totaling $136,500.

....

60. The only service performed by Mr. Beier in relation to the real estate

was the preparation of one administrator’s deed.

....

73. At the time of filing the petition, Mr. Beier was either aware that half-

siblings had an equal right to inherit as full-siblings, or chose to remain

ignorant of that fact by not researching the issue, in order that Mr. Norton

would be the only beneficiary of the estate thus allowing Mr. Beier to charge

a one-third fee instead of his usual hourly fee.

Thus, in the Affidavit matter, regarding the testimony by Grandmother and Mr.

Beier asserting that Grandmother gave Mr. Beier permission to sign her name to the

Affidavit, the hearing panel found neither witness credible. The hearing panel also found

that, by signing Grandmother’s name and notarizing the signature, Mr. Beier represented

to the chancery and juvenile courts that Grandmother had signed the document, something

he knew to be false.

As to the Jenkins estate matter, the hearing panel found that Mr. Beier took

advantage of Mr. Norton’s vulnerability to secure an unreasonable contingency fee

agreement. It found Mr. Beier’s testimony, that he did not inform the chancery court about

the James children because he did not realize they might be heirs of Ms. Jenkins, was not

credible. By failing to disclose this information to the chancery court, the hearing panel

pointed out, Mr. Beier avoided court approval of his fee. It observed that Mr. Beier

included two parcels of real property in the “gross estate” for purposes of calculating his

fee, even though his work regarding the real property was de minimis. Including these two

parcels greatly increased the size of his contingency fee.

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Based upon these findings, the hearing panel concluded the Board had established

several violations of the Rules of Professional Conduct. In the Affidavit matter, it found

violations of the following rules:

RPC 3.3(a)(1) (candor toward the tribunal), “[b]y filing the Affidavit . . . when

he signed [Grandmother’s] name, by notarizing her purported signature when

she did not sign, and by failing to inform the courts that [Grandmother]’s

signature was made by himself . . . .”;

RPC 8.4(c) (misconduct), “[r]epresenting that the [A]ffidavit had been signed

by [Grandmother] was an act of deceit, dishonesty[,] and misrepresentation . . .

.”

In the Jenkins estate matter, it found violations of the following:

RPC 1.5(a) (fees), “[b]y charging a one-third fee, and by including the value of

the real estate for purposes of computing his fee, Mr. Beier charged [Mr.]

Norton, and collected, an unreasonable fee . . . .”

RPC 1.5(a) (fees), the fee agreement between Mr. Beier and Mr. Norton was

“insufficiently clear to communicate to Mr. Norton the remittance to him and

the method of its determination.”

RPC 3.3(a)(1) (candor toward the tribunal), “[b]y stating in the petition that Mr.

Norton was Ms. Jenkins’ sole heir . . . .”

RPC 3.3(a)(3) (candor toward the tribunal), “[b]y failing to inform the court of

the existence of the James descendants . . . .”

RPC 8.4(c) (misconduct), “[b]y taking advantage of Mr. Norton’s disability to

charge and collect from him an unreasonable fee . . . .“

RPC 8.4(c) (misconduct), “[b]y failing to include the James descendants in the

administration of the estate in order to charge and collect from Mr. Norton an

unreasonable fee . . . .”

RPC 8.4(a) (misconduct), the “[v]iolation of the aforementioned Rule of

Professional Conduct . . . .”4

4

An additional alleged violation of RPC 3.3(a)(1) regarding Mr. Beier’s response to Mother’s

counsel’s motion for sanctions was voluntarily dismissed.

-7-

After finding these violations, the hearing panel looked to the ABA Standards to

determine an appropriate type of discipline.5 It decided the Standards pointed to

suspension as the appropriate discipline.6

Turning to the aggravating and mitigating factors, the hearing panel first noted Mr.

Beier’s “dishonest or selfish motive” as an aggravating factor in filing Grandmother’s

Affidavit and also in his actions regarding the Jenkins estate. In the Jenkins estate matter,

it determined Mr. Beier was also motivated by his attempt to get an unreasonable fee. The

hearing panel observed that Mr. Beier’s misconduct involved multiple offenses. It found

that Mr. Beier refused to acknowledge the wrongful nature of his conduct, citing his

continued insistence that the Affidavit was not a false representation, that his fee

arrangement with Mr. Norton was reasonable, and that he did not knowingly misrepresent

Mr. Norton’s status as sole heir. The hearing panel also deemed Mr. Norton’s vulnerability

as a victim to be an aggravating factor. The final aggravating factor was Mr. Beier’s

substantial experience in the practice of law––over forty years, including time as a juvenile

and municipal judge. The hearing panel found no mitigating factors.7

Considering the violations and the aggravating factors, the hearing panel imposed a

sanction of a two-year suspension of Mr. Beier’s law license, with three months served as

active suspension and the remainder on probation.

5

The final sentence of Rule 9, Section 15.4(a), states: “In determining the appropriate type of

discipline, the hearing panel shall consider the applicable provisions of the ABA Standards for Imposing

Lawyer Sanctions.” Tenn. Sup. Ct. R. 9, § 15.4(a).

6

The hearing panel cited ABA Standard 6.12, which suggests suspension “when a lawyer knows

that false statements or documents are being submitted to the court or that material information is

improperly being withheld, and takes no remedial action, and causes injury or potential injury to a party to

the legal proceeding, or causes an adverse or potentially adverse effect on the legal proceeding.” It also

cited ABA Standard 7.2, which suggests suspension “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.” The hearing panel also noted ABA Standard 5.13, which suggests reprimand as

appropriate “when a lawyer knowingly engages in any other conduct that involves dishonesty, fraud, deceit,

or misrepresentation and that adversely reflects on the lawyer’s fitness to practice law.”

7

The hearing panel acknowledged Mr. Beier returned the fee he received from the Jenkins estate

and self-reported the allegations of his misconduct, but it declined to find either action to be a mitigating

factor because Mr. Beier did both under threat of legal action.

-8-

Chancery Court

The Board appealed the hearing panel’s decision to the Hamblen County Chancery

Court, arguing disbarment would have been a more appropriate sanction.8

The chancery court issued its order on November 28, 2018. It first determined that

the hearing panel’s factual findings were supported by the evidence. It held that the hearing

panel’s conclusions regarding Rule violations and application of aggravating and

mitigating factors were also supported by the evidence.

Reviewing the discipline imposed by the hearing panel, the chancery court

concluded the panel had abused its discretion. It performed a comparative analysis of

similar cases and determined it would be more appropriate to make the entire two-year

suspension an active suspension, in order to “underscore the seriousness of the violations

by Mr. Beier, protect the public from similar misconduct by members of the bar, and

preserve the confidence of the public in the integrity and trustworthiness of lawyers in

general.”

Mr. Beier now appeals to this Court.

STANDARD OF REVIEW

In exercise of the authority vested in it by the Tennessee Constitution, this Court

oversees the practice of law in this State. See Tenn. Const. art. II, § 1; Tenn. Const. art. II,

§ 2; Tenn. Const. art. VI, § 1. As such,

[t]he Supreme Court of Tennessee is responsible for promulgating and

enforcing the rules that govern the legal profession as part of its duty to

regulate the practice of law in this state. The Board of Professional

Responsibility is one source of authority that addresses and brings forth

allegations against attorneys regarding ethical violations, and this Court is

ultimately responsible for reviewing its recommendations for attorney

discipline.

Once the Board of Professional Responsibility initiates formal

disciplinary proceedings against a lawyer, the rules of this Court require that

8

Mr. Beier also appealed, raising issues concerning a procedural deficiency, the hearing panel’s

conduct, and the inclusion of prior private discipline as aggravating factors. The chancery court found all

three issues to be without merit.

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he or she has the right to an evidentiary hearing before a panel of three

attorneys who determine the appropriate disciplinary action. An attorney

may appeal the decision of the hearing panel to the circuit or chancery

court[,] and then directly to this Court, where our review is upon the

transcript of the record from the trial court, including the record of the

evidence presented to the hearing panel.

Bd. of Prof’l Responsibility v. MacDonald, 595 S.W.3d 170, 181 (Tenn. 2020) (citations

omitted) (internal quotation marks omitted). As we explained:

This Court and the circuit or chancery court apply the same standard

of review on appeal. The reviewing court may affirm the hearing panel’s

decision or, in certain circumstances, “remand the case for further

proceedings,” but it may only reverse or modify a hearing panel’s decision

if:

the rights of the party filing the Petition for Review have been

prejudiced because the hearing panel’s findings, inferences,

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

or statutory provisions; (2) in excess of the hearing panel’s

jurisdiction; (3) made upon unlawful procedure; (4) arbitrary

or capricious or characterized by abuse of discretion or clearly

unwarranted exercise of discretion; or (5) unsupported by

evidence which is both substantial and material in the light of

the entire record.

Id. (citation omitted) (quoting Tenn. Sup. Ct. R. 9, § 33.1(b)). “Absent these limited

circumstances, the hearing panel’s decision should not be disturbed on appeal.” Hancock

v. Bd. of Prof’l Responsibility, 447 S.W.3d 844, 850 (Tenn. 2014) (citing Maddux v. Bd. of

Prof’l Responsibility, 409 S.W.3d 613, 621–22 (Tenn. 2013)). The Court may not

“substitute its judgment for that of the hearing panel’s as to the weight of the evidence on

questions of fact.” Napolitano v. Bd. of Prof’l Responsibility, 535 S.W.3d 481, 496 (Tenn.

2017) (citing Long v. Bd. of Prof’l Responsibility, 435 S.W.3d 174, 178 (Tenn. 2014)).

We recently clarified:

Under Rule 9, a hearing panel is directed to consider the applicable

provisions of the ABA Standards to determine the appropriate sanction in a

particular case. Tenn. Sup. Ct. R. 9, § 15.4(a). There is no authority under

Rule 9 for a hearing panel to base its recommended sanction on a review of

sanctions imposed in similar cases. In addition, a trial court’s authority to

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reverse or modify a hearing panel’s decision is limited to the five grounds

listed in Section 33.1(b). Inconsistency with sanctions in similar cases is not

a listed ground.

Meehan v. Bd. of Prof’l Responsibility, 584 S.W.3d 403, 416 (Tenn. 2019). Thus, neither

BPR hearing panels nor reviewing trial courts are authorized to base a recommended

sanction on a review of sanctions imposed in comparative cases.

Overall, this Court “bear[s] ultimate responsibility for enforcing the rules governing

our profession.” Mabry v. Bd. of Prof’l Responsibility, 458 S.W.3d 900, 903 (Tenn. 2014)

(citing Doe v. Bd. of Prof’l Responsibility, 104 S.W.3d 465, 470 (Tenn. 2003)).

ANALYSIS

On appeal, Mr. Beier states the issues in broad terms, such as whether “the hearing

panel’s findings, inferences, conclusions, and decisions were made upon unlawful

procedures.” Under each issue, he offers a fusillade of arguments and sub-issues. We have

carefully considered all of them. In the interest of brevity, in this Opinion, we describe in

a general way the arguments and sub-issues we find to be without merit on their face, and

discuss in more depth the issues that warrant more analysis.

Improprieties in Prior Proceedings

Mr. Beier asserts first that the chancery court substituted its judgment for that of the

hearing panel by making its own findings of fact and conclusions of law beyond those

made by the hearing panel. He lists ten statements by the chancery court as examples. We

address two of them.9

Mr. Beier disputes the chancery court’s statement, “Neither Mr. Norton nor his

friend, Mr. Barnes, understood the nature of the contingency fee agreement,” by arguing

the hearing panel did not make such a finding. The hearing panel found expressly that Mr.

Norton did not understand the contingency fee agreement. Although it made no express

9

Mr. Beier disputes several trial court statements that have no bearing on the issues at hand. In the

Affidavit matter, these include whether Father was Mr. Beier’s neighbor and the trial court’s description of

the petitions to modify the parenting plan. In the Jenkins estate matter, these include whether Mr. Beier

knew of the benefits that necessitated having Mr. Barnes as Mr. Norton’s payee. Mr. Beier also erroneously

asserts that some statements are not supported by the record, such as references to the demand letter from

the new attorney for the Jenkins estate. These arguments have no merit.

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finding as to Mr. Barnes,10 this is of no moment. Mr. Barnes was not Mr. Beier’s client,

nor is Mr. Beier accused of any ethical violation as to Mr. Barnes.

Mr. Beier also challenges the chancery court’s conclusion that “it was completely

improper to include the value of the real estate when the title to that real property passed

directly to the heirs of Ms. Jenkins by operation of law,” arguing the hearing panel did not

make this finding. In concluding Mr. Beier’s fee was unreasonable, the hearing panel noted

(1) Mr. Beier calculated his fee based in part on the estimated value of real estate owned

by Ms. Jenkins; (2) title to the real estate passed by operation of law directly to her heirs

upon her death; and (3) the only work Mr. Beier did involving the real estate was

preparation of a single administrator’s deed. The chancery court simply connected those

dots. This was no error.

Mr. Beier next contends his prior disciplinary offenses should not have been

included in the Board’s petition for discipline and its supplemental petition because the

discipline imposed was private. Mr. Beier is mistaken. We have previously made it clear

that such offenses may be considered. See Cohn v. Bd. of Prof’l Responsibility, 151 S.W.3d

473, 487 (Tenn. 2004) (citing Berke v. Chattanooga Bar Ass’n, 436 S.W.2d 296, 309

(Tenn. Ct. App. 1968)) (“Although private reprimands are indeed intended to be a matter

between the attorney and the Board, ‘former misconduct must remain a part of the

professional record to be considered as part of the evidence of professional fitness or

unfitness.’”). Thus, the Board properly included Mr. Beier’s prior offenses in its petition

and supplemental petition.

Evidence of Rule Violations

Mr. Beier argues next that the hearing panel’s findings as to rule violations were

either not supported by substantial and material evidence or were otherwise arbitrary and

capricious.

In “applying the substantial and material evidence test, it is our duty to determine

whether the decision is supported by such relevant evidence as a rational mind might accept

to support a rational conclusion.” Bd. of Prof’l Responsibility v. Allison, 284 S.W.3d 316,

322 (Tenn. 2009) (quoting City of Memphis v. Civil Serv. Comm’n, 216 S.W.3d 311, 316–

17 (Tenn. 2007)) (internal quotations omitted). We look at whether the record contains a

“reasonably sound factual basis” for the hearing panel’s decision. See Hoover v. Bd. of

Prof’l Responsibility, 395 S.W.3d 95, 103 (Tenn. 2012) (quoting Hughes v. Bd. of Prof’l

10

However, Mr. Barnes’ testimony suggests he did not understand the fee agreement either.

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Responsibility, 259 S.W.3d 631, 641 (Tenn. 2008)); Civil Serv. Comm’n, 216 S.W.3d at

317 (quoting Jackson Mobilphone Co. v. Tenn. Pub. Serv. Comm’n, 876 S.W.2d 106, 110–

11 (Tenn. Ct. App. 1993)). A reasonably sound basis is less than a preponderance of the

evidence but “more than a scintilla or glimmer.” Allison, 284 S.W.3d at 322–23 (quoting

Jones v. Bureau of TennCare, 94 S.W.3d 495, 501 (Tenn. Ct. App. 2002)).

We look at the evidence in the record as to each ethical violation found by the

hearing panel.

A. Rule of Professional Conduct 1.5

Rule of Professional Conduct 1.5(a) prohibits lawyers from charging unreasonable

fees for their services and specifically prohibits them from entering into agreements for

unreasonable fees. Tenn. Sup. Ct. R. 8, RPC 1.5(a). RPC 1.5(c) permits contingency fees,

but they are subject to the subsection (a) prohibition against unreasonable fees. See Tenn.

Sup. Ct. R. 8, RPC 1.5(c), cmt. [3]. Fee agreements must state the method by which the

fee will be determined. Tenn. Sup. Ct. R. 8, RPC 1.5(c). After representation is concluded,

attorneys must provide clients with a written statement “stating the outcome of the matter

and, if there is a recovery, showing the remittance to the client and the method of its

determination.” Id.

In the Jenkins estate matter, the hearing panel concluded the contingency fee Mr.

Beier charged was unreasonable. It cited the agreement for a one-third contingency fee, as

well as inclusion of the value of two parcels of real property in the estate on which the

contingency was calculated, even though they were never part of the Jenkins estate.11 Plus,

the only work Mr. Beier performed regarding the real property was preparation of a single

administrator’s deed. The hearing panel said he collected an overall excessive fee. It also

concluded Mr. Beier did not adequately explain to Mr. Norton how his fee would be

determined.

Mr. Beier insists the fee was reasonable. He points to Mr. Norton’s testimony that

he, Mr. Norton, did not know what was in the Jenkins estate, the amount of any debts, or

whether the real property had any value beyond the mortgages, claims, and liens. Mr. Beier

11

The parcels of real property passed directly to the heirs by operation of law and were not subject

to probate. Tenn. Code Ann. § 31-2-103 (2015) (“The real property of an intestate decedent shall vest

immediately upon death of the decedent in the heirs . . . .”); see also Crook v. Crook, 345 S.W.2d 679, 680

(Tenn. 1961) (“Now, it is fundamental, as stated in Phillips’ Pritchard on Wills, Sec. 31, p. 31, that ‘as a

rule, neither (an executor or administrator) has control of, or can assume the management of, anything but

personal estate, and neither can dispose of real estate, even for the payment of debts, unless that power is

conferred by the will, without instituting legal proceedings and obtaining a decree of a court of competent

jurisdiction for that purpose.’”).

- 13 -

claims he risked getting no fee from the estate at all. He maintains that Mr. Norton

understood and assented to their fee agreement, as evidenced by Mr. Norton’s signature,

and that the ledger sheets told Mr. Norton what would be owed Mr. Beier and why.

As Mr. Beier points out, it is undisputed that Mr. Norton agreed to the fee

arrangement in this case. This fact does not absolve Mr. Beier. Regardless of clients’

assent, lawyers must refrain from entering into an unreasonable fee agreement in the first

place. “A lawyer shall not make an agreement for . . . an unreasonable fee or an

unreasonable amount for expenses.” Tenn. Sup. Ct. R. 8, RPC 1.5(a) (emphasis added).12

The record in this case contains substantial and material evidence to support the

hearing panel’s conclusion that the fee arrangement between Mr. Beier and Mr. Norton

was unreasonable. The agreement provided for Mr. Beier’s representation in the Jenkins

estate in exchange for “33.3% of [the] gross estate.” Mr. Beier said he had never before

charged a contingency fee in a probate case. In the initial telephone call between Mr. Beier

and Mr. Norton, as well as in their first meeting, Mr. Norton told Mr. Beier that Ms. Jenkins

had owned about three different parcels of real property. Reviewing his notes, Mr. Beier

conceded he “may” have called the Tax Assessor’s office to ascertain the value of those

properties. This supports the hearing panel’s finding that, during his initial meeting with

Mr. Norton, Mr. Beier learned of several parcels of property associated with the estate and

the assessed values of those properties. As noted by the chancery court, Mr. Beier easily

could have determined whether any of the properties had liens. Ultimately, all of this

information should have caused him to realize that a fee arrangement for one-third of the

gross estate would generate a fee that far exceeded the typical probate fee for a similar

estate in that area.

12

As quoted by this Court in White v McBride:

The fact that an attorney fully informs his client of the contingent fee contract and its

implications does not validate it. The court in Florida Bar v. Moriber, 314 So.2d 145, 149

(Fla. 1975), faced a similar defense and stated “even if we presume that the client were an

educated, experienced party dealing at arm’s length with Respondent, it is our view that an

attorney may still be disciplined for overreaching when fees charged are grossly

disproportionate to the services rendered.” In the instant case even if Mr. White fully

explained the contingent fee contract to Mr. McGrory, it does not validate the agreement

in this case. It is quite possible that Mr. McGrory did not fully understand the matter and

had no idea what other attorneys in the area would charge for similar services to obtain his

legal share of his wife’s estate, which he would have received by operation of law. The

duty must therefore be placed on the attorney to deal fairly and in good faith with his clients

in setting fees.

937 S.W.2d 796, 799 (Tenn. 1996) (quoting the trial court ruling).

- 14 -

Mr. Beier’s arguments hearken to those made, and rejected, in White v. McBride,

937 S.W.2d 796 (Tenn. 1996). In White, as in this case, the attorney entered into a one-

third contingency fee arrangement to probate an estate. Id. at 797. The trial court held the

fee arrangement violated the predecessor to RPC 1.5 as an unreasonable fee, in that it was

“grossly disproportionate to the services he rendered.” Id. at 799. The attorney argued the

fee was not unreasonable because, at the time he entered into the contingency-fee contract,

“he had no idea as to the size” of the estate at issue. Id. at 800. This Court rejected that

argument, finding the evidence showed the attorney had information available showing

that the estate was sizeable, so uncertainty as to “the exact value of [the] estate” did “not

justify the one-third percentage.” Id. at 801. The White Court also noted that, “[a]lthough

this estate matter was not without problems, it was, in the scheme of things, not terribly

complicated or novel,” and did not warrant a fee “grossly in excess” of the fee customarily

charged in that area for an estate of that size. Id. The same can be said in this case.

Mr. Beier maintains he adequately informed Mr. Norton about how his fee would

be calculated, relying in part on ledger sheets provided to Mr. Norton. Mr. Beier describes

the ledger sheets as a “multipage accounting” that “sets out assets received, creditors paid,

2/3 of the assets to [Mr. Norton] and 1/3 to [Mr.] Beier[,] totals the assets and itemizes

every payment[, and] sets out the funds received in the Bank account and itemizes every

check.” He asserts the ledger sheets “show[] the cash received and the money to be paid.”

The hearing panel reviewed the collection of handwritten ledger sheets prepared by

Mr. Beier “to keep [Mr. Norton] abreast of the status of his funds, of the value of his assets,

[and] the distributions” and concluded they were unsuitable to communicate to Mr. Norton

what he would pay and how that amount would be calculated. We agree. From our review,

the ledger sheets more closely resemble personal notes than any sort of clarifying

communication.

Overall, the comments of this Court in White v. McBride are applicable to Mr.

Beier’s fee arrangement with Mr. Norton. The record contains substantial and material

evidence supporting the hearing panel’s conclusion that “the fee sought to be charged was

clearly excessive.” Id.

B. Rule of Professional Conduct 3.3

In relevant part, Rule of Professional Conduct 3.3 states:

(a) A lawyer shall not knowingly:

(1) make a false statement of fact or law to a tribunal; or

...

- 15 -

(3) in an ex parte proceeding, fail to inform the tribunal of all material

facts known to the lawyer that will enable the tribunal to make an

informed decision, whether or not the facts are adverse.

Tenn. Sup. Ct. R. 8, RPC 3.3(a).

The hearing panel in this case concluded Mr. Beier violated Rule 3.3(a)(1) in the

Affidavit matter and also in the Jenkins estate matter. In the Affidavit matter, it found Mr.

Beier knowingly made false statements of fact when he signed Grandmother’s name to the

Affidavit and filed it without disclosing he had done so. In the Jenkins estate matter, it

found Mr. Beier knowingly made a false statement of fact and law by telling the probate

court that Mr. Norton was Ms. Jenkins’s sole heir. Also in the Jenkins estate matter, the

hearing panel concluded Mr. Beier violated Rule 3.3(a)(3) by failing to inform the probate

court about Mr. Norton’s half-cousins. We address the findings in the Affidavit matter

first, and then the findings in the Jenkins estate matter.

As to the Affidavit matter, Mr. Beier argues the hearing panel ignored the fact that

the information in the Affidavit was true. He characterizes as “uncontradicted” his

assertion that he signed the Affidavit with Grandmother’s permission.

Mr. Beier’s argument that the statements in the Affidavit were true is beside the

point. The falsity was in Mr. Beier’s representation to the trial court that Grandmother had

signed the Affidavit and thus had sworn to the statements it contained. By notarizing the

signature on the Affidavit, Mr. Beier falsely affirmed that he had witnessed Grandmother

sign the Affidavit. As cited by the hearing panel, “A notary’s acknowledgment says to the

world that the execution of the instrument was carried out according to law.” Beazley v.

Turgeon, 772 S.W.2d 53, 59 (Tenn. Ct. App. 1988).

From our review of the evidence, Mr. Beier’s assertion that it was “uncontradicted”

that he had Grandmother’s permission to sign her name to the Affidavit is, well,

contradicted. Indeed, the statements made by both Grandmother and Mr. Beier were so

inconsistent they led the hearing panel to determine that neither was a credible witness.

Well after the Affidavit with Mr. Beier’s signature was filed, and after the parenting

arrangement was modified based in part on the Affidavit, Mother’s attorney took

Grandmother’s deposition. The attorney asked Grandmother three times who signed the

Affidavit.13 She did not respond to the question until Mr. Beier interjected that he had

13

The following is the relevant excerpt from Grandmother’s deposition:

- 16 -

“subscribed” her signature. Grandmother then parroted Mr. Beier’s response. The attorney

who took the deposition testified that Grandmother “wasn’t answering the question. I

asked her . . . . And she stared at [the Affidavit] and stared at it and stared at it. I’ve

practiced law nine years[;] that was the longest pause I’d ever experienced in a deposition.

By far. Nothing came close.”

During that same deposition, Grandmother said she and Father were traveling to

Knoxville to take Daughter to see Dr. Diana McCoy when Mr. Beier asked them to come

in and sign their affidavits. Father went in to sign his affidavit but, Grandmother explained,

she did not because Daughter “was asleep in the car so [Mr. Beier] asked me if he could

sign my name and I said, yes. So that’s the reason I did not go in.” The Affidavit indicates

on its face that Mr. Beier signed and notarized it on August 26, 2015; Mr. Beier affirmed

the date in his testimony. Dr. McCoy’s affidavit says she met with Father that day, but it

says she did not meet with Daughter until the following day, August 27, 2015.

In her testimony to the hearing panel, Grandmother said she went with Father to

Knoxville, for his first visit with Dr. McCoy, after Father went by Mr. Beier’s office to

sign his affidavit. In contrast to her deposition testimony, Grandmother told the hearing

panel she did not sign her affidavit because she had “just forgotten” about it. During the

Knoxville trip, according to Grandmother’s hearing panel testimony, Mr. Beier contacted

them and she gave him permission to sign the Affidavit.

Q. . . . is that your signature at the bottom of the [Affidavit]? Not at the very

bottom but toward the bottom?

[Grandmother], is that your signature at the bottom of the document? I’m going to

ask you one more time for the record and please respond to my question. Is that your

signature at the bottom of the document?

MR. BEIER: That’s where I subscribed your signature, right there.

A. Uh-huh. Yeah. He subscribed my signature.

Q. My question is, is this your signature toward the bottom of . . [.] Don’t speak,

Mr. Lawyer. Above where it says [Grandmother] there’s a blank and then there’s a

signature that says “[Grandmother’s name,]”[] is that your signature?

A. He subscribed my signature.

Q. [Grandmother], this is not a hard question. Is that . . [.]

A, No. That is not my . . [.] No. That is not my signature.

- 17 -

Contradicting both versions of Grandmother’s testimony, Mr. Beier testified to the

hearing panel that he called Grandmother and told her she needed to come to his office and

sign the Affidavit because he was about to leave town. According to Mr. Beier,

Grandmother said health problems prevented her from coming to his office so she asked

Mr. Beier to sign for her instead.

Even apart from the numerous contradictions, none of this evidence explains Mr.

Beier’s decision not to inform the trial court in the parenting proceeding that he had signed

Grandmother’s name to the Affidavit and had notarized the signature as Grandmother’s

signature. Taken together, this amounts to substantial and material evidence to support the

hearing panel’s conclusion that Mr. Beier knowingly made false statements in violation of

Rule 3.3(a)(1).

As to the Jenkins estate matter, Mr. Beier argues he did not “knowingly” or

“intentionally” mislead the probate court by failing to disclose Mr. Norton’s cousins.

Instead, out of negligent ignorance of the law, he mistakenly did not equate the inheritance

rights of half-siblings with those of full siblings.14

The hearing panel determined that Mr. Beier acted knowingly when he initially

claimed Mr. Norton was the sole heir, when he failed to correct himself after the mother of

Mr. Norton’s cousins contacted him, and when he failed to inform the probate court of

those cousins. Mr. Beier has practiced law since 1977; he has done probate work ever

since he began. He said he “probably open[s] two estates a month.” Tennessee Code

Annotated § 31-2-107, titled “Relatives of the half blood,” is concise and clear: “Relatives

of the half blood inherit the same share they would inherit if they were of the whole blood.”

Despite this, Mr. Beier maintains he was unaware of section 31-2-107 and his

research only led him to Tennessee Code Annotated § 31-2-104, on intestate succession

for an estate.15 Put simply, the hearing panel did not believe Mr. Beier’s claim of

14

In support, Mr. Beier cites Office of Disciplinary Counsel v. McKinney, 668 S.W.2d 293 (Tenn.

1984), for the proposition that malpractice is not an appropriate basis for disciplinary proceedings.

Respectfully, Mr. Beier overstates the holding in McKinney and overlooks the fact that McKinney is

distinguishable because there was no evidence of intentional misconduct. In McKinney, the Court found

that the trial court had placed undue weight on a malpractice jury verdict against the attorney. McKinney,

668 S.W.2d at 298. The Court held that “the record supports the conclusions reached by the Hearing Panel

that McKinney was ‘grossly negligent in regard to those matters . . . [but did not commit] intentional

misconduct.’” McKinney, 668 S.W.2d at 299. The McKinney Court reversed the trial court’s punishment;

the Court reinstated the panel’s imposition of a public censure. Id.; see also Sneed v. Bd. of Prof’l

Responsibility, 37 S.W.3d 886, 891 (Tenn. 2000) (concluding that the Board had the authority to discipline

attorneys for negligent conduct).

15

This statute sets forth intestate succession for an estate. See Tenn. Code Ann. § 31-2-104.

- 18 -

ignorance. There is ample evidence to support this conclusion. In his deposition prior to

the hearing, Mr. Beier indicated he learned on September 16, 2013, during his first meeting

with Mr. Norton, that Ms. Jenkins had a deceased half-brother whose children were alive.

Mr. Beier filed the petition asking the court to appoint Mr. Norton as administrator of the

Jenkins estate—in which he professed Mr. Norton was his aunt’s sole heir—two days later.

During his testimony to the hearing panel, Mr. Beier equivocated that he was “not exactly

sure” when he learned of Mr. Norton’s half-cousins. Regardless, it is undisputed that Mr.

Beier was told about the half-cousins a week later, when he received a telephone call from

their mother, Nancy James. Eleven months later, still acting ex parte, Mr. Beier asked the

court to close the Jenkins estate, with no detailed accounting, based on his assertion that

Mr. Norton was the sole heir. The court closed the estate on that basis.

At no point did Mr. Beier inform the probate court of the existence of the James

descendants. The omission of this information paved the way for Mr. Beier to collect an

outsized fee without court oversight.

We find substantial and material evidence in the record to support the hearing

panel’s conclusion that Mr. Beier made a false statement to the probate court during ex

parte proceedings, in violation of RPC 3.3(a)(1) and (3).

C. Rule of Professional Conduct 8.4

We next address the violations of Rule 8.4. In pertinent part, it provides:

It is professional misconduct for a lawyer to:

(a) 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; [or]

...

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

misrepresentation . . . .

Tenn. Sup. Ct. R. 8, RPC 8.4. The hearing panel found Mr. Beier separately violated Rule

8.4(c) by representing that Grandmother had signed the Affidavit,16 by taking advantage of

Mr. Norton’s disability to collect an unreasonable fee, and by failing to include the James

descendants as heirs to Ms. Jenkins’s estate in order to collect his unreasonable fee. The

16

Mr. Beier contests the hearing panel’s conclusion that his misconduct in the Affidavit matter also

violated RPC 8.4(a) and (c). His arguments essentially repeat those we have already addressed above.

- 19 -

hearing panel concluded that each violation also constituted professional misconduct under

Rule 8.4(a).

As to this violation in the Jenkins estate matter, Mr. Beier argues the record is bereft

of any proof supporting the Board’s allegations that Mr. Norton suffered from “low

cognitive functioning,” “severe anxiety disorder,” “diminished mental capacity,” and was

otherwise “not capable of understanding.”17 Mr. Beier takes issue with the hearing panel’s

conclusion that he took advantage of Mr. Norton.

The hearing panel found:

29. Mr. Norton, age 62 years, has received Social Security Supplemental

Income (SSI) benefits from the Department of Veteran Affairs as the

“helpless child of a veteran”18 all his adult life as the result of his “nerves.”

For his SSI benefits, the Social Security Administration required that he have

a representative payee. Mr. Beier knew of Mr. Norton’s disability.

30. At the time of Ms. Jenkins’ death, and the probate of her estate, Paul

Barnes was Mr. Norton’s representative payee.

31. Mr. Barnes described Mr. Norton has a “trusting man” who needed

someone to help him with his affairs.

32. On September 16, 2013, Mr. Norton and Mr. Barnes met with Mr.

Beier concerning Mr. Beier’s possible representation of Mr. Norton in the

probate of Ms. Jenkins’ estate.

....

39. Mr. Beier took advantage of Mr. Norton’s disability in order to obtain

his agreement to the one-third fee.

17

Mr. Beier also reiterates that Mr. Norton signed the documents on his contingency fee and thus

agreed to the fee. We have already addressed that argument above. We note that Mr. Beier concedes that

he was not accused of violating RPC 1.14, which sets forth attorneys’ responsibilities concerning clients

with diminished mental capacity. See Tenn. Sup. Ct. R. 8, RPC 1.14. Thus, it was not necessary for the

hearing panel to find that Mr. Norton has diminished capacity.

18

The hearing panel explained here, citing 38 U.S.C. §§ 101(4)(A), 1542 and 38 C.F.R. 3.356, that

“Children of veterans of a period of war may receive compensation from the VA, and that compensation

may continue into adulthood if the child is ‘permanently incapable of self-support’ prior to age 18.”

- 20 -

The hearing panel’s findings are well supported in the record. As discussed above,

there is substantial and material evidence in the record to support the hearing panel’s

finding that Mr. Beier did not sufficiently communicate to Mr. Norton how his fee would

be determined and that Mr. Norton did not understand the arrangement to which he had

agreed. The record also supports the hearing panel’s finding that Mr. Beier exploited Mr.

Norton’s disability. The evidence showed that Mr. Norton receives government benefits

because of his disability and that Mr. Barnes, who accompanied Mr. Norton to meet with

Mr. Beier, is the designated payee for them. Discussing his disability, Mr. Norton testified:

“Well, one, I have problems remembering things, and then not only that, I’ve had bad

problems with my nerves about all my life.” Mr. Barnes described Mr. Norton as a trusting

man who needs help with his affairs. In his testimony, Mr. Beier admitted he was made

aware during his first meeting with Mr. Norton and Mr. Barnes that Mr. Norton needed a

payee to receive benefits related to a nervous condition. Considered together, all of this

constitutes substantial and material evidence to support the hearing panel’s conclusions as

to violations of Rule 8.4(a) and (c) in the Jenkins estate matter.

Mr. Beier protests the hearing panel’s finding that the same conduct subject to the

rule violations discussed above also violated Rule 8.4. He contends this finding amounts

to repeat charges levied in order to justify enhanced punishment. He asserts this practice

contributes to inconsistent discipline of attorneys.

We make short work of this argument. To be sure, there is some overlap in the

ethics rules. Knowing false statements to a tribunal that violate RPC 3.3(a)(1) may also

constitute “conduct involving dishonesty, fraud, deceit, or misrepresentation” under RPC

8.4(c). Rather than revealing flaws in the ethics rules or disciplinary practices, this reflects

the seriousness of the misconduct. There is no overreach in finding that Mr. Beier’s

conduct violated more than one rule.

Propriety of the Sanction Imposed

Mr. Beier argues that the sanction imposed should be, at most, public censure. The

Board asks the Court to affirm the discipline imposed by the chancery court, a two-year

active suspension.

Having concluded that the hearing panel properly determined Mr. Beier violated

Rules 1.5, 3.3, and 8.4, to evaluate whether the discipline is appropriate, we first consider

whether the hearing panel applied the appropriate ABA Standards for Imposing Lawyer

Sanctions in identifying a baseline sanction for Mr. Beier’s conduct. After that, we look at

the aggravating and mitigating factors in this case. Then we consider the sanction and

comparative cases.

- 21 -

A. ABA Standards for Baseline Sanction

The hearing panel found that the appropriate ABA standards for consideration were

5.13 (reprimand), 6.12 (suspension), and 7.2 (suspension). It determined that Mr. Beier’s

license to practice law should be “suspended for a period of two (2) years pursuant to

Tennessee Supreme Court Rule 9, § 12.2. Pursuant to Rule 9, § 14.1, all but three (3)

months of the suspension are deferred with Mr. Beier to be subject to probation for the

remainder of his suspension.” The chancery court, however, concluded that the baseline

sanction should be disbarment pursuant to ABA Standard 7.1.

For Mr. Beier’s violations arising out of the Affidavit matter, we agree with the

hearing panel that ABA Standards 5.13,19 6.12,20 and 7.221 are applicable. While Mr.

Beier’s actions amounted to dishonesty, there was no apparent motive of personal profit.

But the rule violations arising out of the Jenkins estate are another matter. As to those

more serious violations, we agree with the chancery court that, under ABA Standard 7.1,

disbarment must also be considered as an appropriate baseline sanction. Standard 7.1

provides:

Disbarment is generally appropriate when a lawyer knowingly engages in

conduct that is a violation of a duty owed as a professional with the intent to

obtain a benefit for the lawyer or another, and causes serious or potentially

serious injury to a client, the public, or the legal system.

Standards for Imposing Lawyer Sanctions § 7.1. We agree that, based on the rule violations

committed, all of the above ABA Standards are applicable. Therefore, before consideration

of any aggravating or mitigating factors, the ABA Standards establish a baseline sanction

of suspension or even possibly disbarment.

B. Aggravating and Mitigating Factors

19

“Reprimand is generally appropriate when a lawyer knowingly engages in any other conduct that

involves dishonesty, fraud, deceit, or misrepresentation and that adversely reflects on the lawyer’s fitness

to practice law.” Standards for Imposing Lawyer Sanctions § 5.13.

20

“Suspension is generally appropriate when a lawyer knows that false statements or documents

are being submitted to the court or that material information is improperly being withheld, and takes no

remedial action, and causes injury or potential injury to a party to the legal proceeding, or causes an adverse

or potentially adverse effect on the legal proceeding.” Standards for Imposing Lawyer Sanctions § 6.12.

21

“Suspension 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.” Standards for Imposing Lawyer Sanctions § 7.2.

- 22 -

Mr. Beier next objects that the hearing panel’s conclusions regarding aggravating

and mitigating factors are arbitrary and capricious. The hearing panel found applicable the

following aggravating factors: (1) dishonest or selfish motive, (2) multiple offenses, (3)

refusal to acknowledge wrongful nature of conduct (4) vulnerability of victim, and (5)

substantial experience in the practice of law. It found no mitigating factors applicable.

First, we consider the aggravating factors. Mr. Beier says there is “no argument” to

support a finding of dishonest or selfish motive as to the Affidavit matter, and reprises his

earlier arguments that the fee in the Jenkins estate matter was neither selfish nor dishonest.

We disagree. We have already held there is substantial and material evidence to support

the hearing panel’s finding that Mr. Beier made a false statement by signing Grandmother’s

name to the Affidavit, notarizing the signature, and filing the Affidavit without disclosing

that he signed it. We have also held that there is substantial and material evidence to

support the hearing panel’s finding that Mr. Beier (1) exploited Mr. Norton’s disability; (2)

misrepresented to the probate court that Mr. Norton was Ms. Jenkins’s sole heir; and (3)

refrained from disclosing Mr. Norton’s half-cousins to the probate court, all in order to

facilitate his receipt of an unreasonable fee without court oversight. This evidence fully

supports application of the “dishonest or selfish motive” aggravating factor.

Next, Mr. Beier argues that the hearing panel misapplied the multiple offenses

aggravating factor. Citing Board of Professional Responsibility v. Daniel, 549 S.W.3d 90

(Tenn. 2018), he argues that this aggravating factor “is generally understood to mean same

or similar offenses as a pattern of conduct” and it is inapplicable here because his violations

were separate and isolated.

As pointed out in Daniel, courts have at times conflated “multiple offenses” with “a

pattern of misconduct.” Id. at 103 n.11 (acknowledging a “lack of precision” in analyzing

“multiple offenses” versus “pattern of misconduct”). It appears Mr. Beier does the same.

The hearing panel in this case specifically concluded that the record did not support a

conclusion that Mr. Beier engaged in a pattern of misconduct. Rather, it found that the

“multiple offenses” factor applied because Mr. Beier committed more than one violation

of the rules. We see no error in applying this aggravating factor.

Mr. Beier contends that the hearing panel erred in applying the aggravating factor

that he refuses to acknowledge the wrongful nature of his conduct. He again cites Daniel

for the proposition that “the mounting of a defense, without more, should not be applied as

an aggravating factor.” Id. at 104.

In applying this aggravating factor, the hearing panel emphasized that Mr. Beier

refuses to acknowledge that signing Grandmother’s name to the Affidavit, notarizing the

signature, and filing it without disclosing his actions amounts to a false representation to

- 23 -

the court. It also noted that Mr. Beier refused to acknowledge that his assertion to the

probate court that Mr. Norton was Ms. Jenkins’s sole heir was false, that the contingency

fee agreement for the Jenkins estate was unreasonable, or that his fee in that matter was

exorbitant. Mr. Beier continues these positions in this appeal. Attorneys often offer

defenses while also acknowledging their conduct was wrong. Mr. Beier does not. In this

case, much of Mr. Beier’s defense is essentially insistence that his conduct was not wrong.

Under these circumstances, we find no error in the hearing panel’s application of the

aggravating factor that he refuses to acknowledge the wrongful nature of his conduct.

Mr. Beier next disputes the hearing panel’s conclusion that Mr. Norton was a

vulnerable victim. In making this determination, there need not be a finding that the victim

has diminished capacity; rather, the hearing panel may look at the victim’s overall

circumstances. See, e.g., Maddux v. Bd. of Prof’l Responsibility, 288 S.W.3d 340, 349

(Tenn. 2009) (elderly couple with one spouse suffering from a physical handicap

constituted vulnerable victims). The same substantial and material evidence supporting

the hearing panel’s finding that Mr. Beier took advantage of Mr. Norton’s disability also

supports its decision to apply the aggravating factor regarding the vulnerability of the

victim. We find no error in the hearing panel’s application of this factor.

Finally, Mr. Beier challenges the consideration of his substantial experience in the

practice of law as an aggravating factor rather than a mitigating factor because, he says, he

maintained “40 years of practice without any significant disciplinary actions.”

Respectfully, absence of a disciplinary record is a separate consideration. This aggravating

factor underscores that, with his years of experience, Mr. Beier should have known better.

See Skouteris v. Bd. of Prof’l Responsibility, 430 S.W.3d 359, 371 (Tenn. 2014) (“Mr.

Skouteris also argues that his punishment should be reduced in light of his twenty-four-

year law career. Under the ABA Standards, however, substantial experience in the practice

of law is an aggravating factor, not a mitigating factor. ABA Standard 9.22(i).”).

Mr. Beier also argues that the hearing panel erred by concluding there were no

mitigating factors in this case. He contends that the hearing panel ignored (1) his self-

reports, (2) his complete restitution of fee in the Jenkins estate matter, (3) the fact that no

harm occurred in either case, (4) his full cooperation with the investigation, (5) his lack of

significant prior disciplinary action, and (6) the fact that the violations were isolated

instances of misconduct.

The hearing panel specifically addressed Mr. Beier’s first two arguments, pointing

out that his self-reports and restitution were not mitigating factors because (1) Mr. Beier

reported his misconduct only under the threat of report by other counsel, and (2) he only

returned his fee in the Jenkins estate matter after Mr. Norton’s new attorney demanded that

he do so. See Standards for Imposing Lawyer Sanctions, § 9.4(a) (amended 1992) (listing

- 24 -

“forced or compelled restitution” under “Factors which are neither aggravating nor

mitigating”). We agree.

As for lack of harm, in the Jenkins estate matter, harm was averted only because

Mr. Beier’s misconduct was caught in time to reopen the estate and avoid disinheritance of

the rest of Ms. Jenkins’s heirs. We also agree with the hearing panel that Mr. Beier cannot

be said to have fully cooperated with the investigation when his testimony was deemed not

credible and to this day he has not acknowledged the wrongfulness of his conduct.

We agree with Mr. Beier that, under the ABA Standards, the absence of a prior

disciplinary record is a mitigating factor. See Standards for Imposing Laywer Sanctions,

§ 9.32(a). Unfortunately, Mr. Beier has a prior disciplinary record. The fact that his prior

disciplinary actions were private doesn’t mean they don’t exist. In addition, the fact that

there was not a pattern of misconduct is not a mitigating factor, it is only a reason not to

apply the “pattern of misconduct” aggravating factor. See Standards for Imposing Lawyer

Sanctions, § 9.22(c).

In sum, the hearing panel’s findings as to Mr. Beier’s violations of the Rules of

Professional Conduct and its application of the pertinent aggravating and mitigating factors

are supported by substantial and material evidence in light of the entire record.

C. Propriety of Sanction and Uniformity Analysis

As outlined above, the hearing panel imposed a two-year suspension with all but

three months deferred, subject to probation. This discipline was based on ABA Standards

that did not include disbarment as an appropriate baseline sanction. After finding that ABA

Standard 7.1 on disbarment was an appropriate baseline sanction, the chancery court found

the hearing panel had abused its discretion in imposing only three months’ active

suspension, and went on to impose a two-year active suspension.22

A hearing panel abuses its discretion only when it “applies an incorrect legal

standard, or reaches a decision which is against logic or reasoning that causes an injustice

to the party complaining.” Bd. of Prof’l Responsibility v. MacDonald, 595 S.W.3d 170,

22

The chancery court stated in its Conclusion:

[G]iven the aggravating factors of dishonest or selfish motive, of multiple offenses, of his

refusal to acknowledge the wrongful nature of his conduct, of his taking advantage of Mr.

Norton, and his over forty years of experience, with no mitigating factors, the Court finds

the Panel’s imposition of suspension for two years, with all but three months deferred,

amounts to abuse of discretion.

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182 (Tenn. 2020) (quoting Sallee v. Bd. of Prof’l Responsibility, 469 S.W.3d 18, 42 (Tenn.

2015)) (alterations in original omitted). As noted above, we agree with the chancery court

that ABA Standard 7.1 on disbarment is applicable. The hearing panel failed to consider

disbarment as an applicable baseline sanction. Under these circumstances, we agree with

the chancery court that the hearing panel abused its discretion. Given that the ABA

Standards established a baseline sanction of either suspension or disbarment, the above

aggravating factors and the absence of any mitigating factors point to a substantial

suspension, one that exceeds three months active suspension. We agree with the chancery

court’s observation that a more substantial sanction is needed in order to “underscore the

seriousness of the violations by Mr. Beier, protect the public from similar misconduct by

members of the bar, and preserve the confidence of the public in the integrity and

trustworthiness of lawyers in general.”23 Specifically, we agree with both the chancery

court and the Board that, under the circumstances of this case, a two-year suspension to be

served fully on active suspension is the appropriate sanction.

In arguing for a two-year suspension, the Board compares Mr. Beier’s conduct to

the violations in Board of Professional Responsibility v. Justice, 577 S.W.3d 908 (Tenn.

2019). In Justice, we affirmed the sanction of disbarment where the attorney violated RPC

1.5(a), 3.4(b), 8.4(a), and 8.4(c)—and twice violated RPC 3.3(a)(1). Id. at 921–22, 933.

In that case, six aggravating factors and two mitigating factors were found applicable. Id.

at 922. Despite the sanction handed down in Justice, however, the Board asks the Court to

affirm the chancery court’s imposition of a two-year active suspension.

We agree. From our review of prior cases, disbarment is typically reserved for cases

that involve a pattern of misconduct or even more serious rule violations than those

committed by Mr. Beier. For example, in Skouteris, the attorney effectively converted the

funds of six clients and demonstrated a troubling pattern of misconduct prior to those

violations. Skouteris, 430 S.W.3d at 362–66, 367 n.4. In Meehan, we reinstated the

hearing panel’s initial decision to disbar an attorney convicted of bank fraud. Meehan, 584

S.W.3d at 414, 418. In Hoover, the attorney knowingly failed to perform services for his

23

The chancery court based its conclusion on the appropriate sanction in part on a comparative

analysis, that is, a review of similar cases to determine the appropriate sanction. As noted above, this Court

recently held that, while hearing panels and trial courts must consider the applicable provisions of the ABA

Standards to determine the appropriate sanction in a particular case, “[t]here is no authority under Rule 9

for a hearing panel to base its recommended sanction on a review of sanctions imposed in similar cases.”

Meehan, 584 S.W.3d at 416 (citing Tenn. Sup. Ct. R. 9, § 15.4(a)). Moreover, “a trial court’s authority to

reverse or modify a hearing panel’s decision is limited to the five grounds listed in Section 33.1(b).

Inconsistency with sanctions in similar cases is not a listed ground.” Id. Thus, reviewing trial courts are

not authorized to base a recommended sanction on a review of sanctions imposed in comparative cases.

Our opinion in Meehan, however, was issued after the chancery court’s decision in this case, so the chancery

court could not have been aware of it when the ruling was made.

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clients and violated his professional duties on multiple occasions. The numerous

aggravating factors included substantial experience practicing law, multiple offenses, a

pattern of misconduct, failure to acknowledge wrongdoing, and incompetence. Hoover,

395 S.W.3d at 107. Even in Justice, despite the similarity of the attorney’s offenses and

aggravating factors to Mr. Beier’s situation, the attorney demonstrated a pattern of

misconduct. Justice, 577 S.W.3d at 932.

We agree with the chancery court’s observation that this case may fairly be

compared to Milligan v. Board of Professional Responsibility, 166 S.W.3d 665, 674 (Tenn.

2005), and Napolitano v. Board of Professional Responsibility, 535 S.W.3d 481 (Tenn.

2017). In Milligan, the attorney settled a case without the client’s authority; forged

signatures on the settlement check and the release document; got an employee to falsely

notarize, after the fact, the forged signatures; deposited all of the settlement funds into his

personal account; and procured false affidavits to conceal his misconduct. Milligan, 166

S.W.3d at 669. The Court imposed a two-year suspension from the practice of law. Id. at

674. In Napolitano, the Court affirmed a five-year suspension for an attorney who had

previously served a five-year suspension, lied under oath, and committed misconduct

involving a client’s property. Napolitano, 535 S.W.3d at 484–87.

In this case, in the Affidavit matter, Mr. Beier signed Grandmother’s name, falsely

notarized the signature, and neither he nor Grandmother offered credible testimony on how

the signature came about. The Jenkins estate matter did not include actual

misappropriation of client funds, as in Milligan. However, the circumstances under which

Mr. Beier obtained an unreasonable fee are equivalent. To obtain the extravagant fee, Mr.

Beier took advantage of Mr. Norton as a vulnerable victim, misrepresented to the probate

court that Mr. Norton was Ms. Jenkins’s sole heir, failed to disclose to the court the

existence of the other heirs, and then persuaded the probate court to close the estate without

a detailed accounting in order to avoid judicial scrutiny of the fee. We agree with the

hearing panel that there are no mitigating factors and several aggravating factors, including

dishonest or selfish motive, multiple offenses, a vulnerable victim, and over 40 years’

experience in the practice of law. On top of that, Mr. Beier refuses to acknowledge the

wrongfulness of his conduct.

For all of these reasons, we agree with the Board and affirm the chancery court’s

decision to impose a two-year suspension, all to be served as active suspension.

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CONCLUSION

Accordingly, based on the severity of Mr. Beier’s violations, the applicable

aggravating circumstances, the relevant caselaw, and the entire record, we conclude that a

two-year suspension from the practice of law, all to be served as active suspension, is

appropriate. It is further ordered that Mr. Beier shall comply in all respects with Tennessee

Supreme Court Rule 9, specifically with regard to the obligations and responsibilities of

suspended attorneys. Costs of this appeal are taxed to Mr. Beier, for which execution may

issue if necessary.

_________________________________

HOLLY KIRBY, JUSTICE

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