Opinion

Peter R. Culpepper v. Baker, Donelson, Bearman, Caldwell & Berkowitz, P.C.

Court: Court of Appeals of Tennessee
Filed: Oct 16, 2020
Status: Published
On the bench: Judge Thomas R. Frierson, II
Cited by: 0 cases
Authority: More cited than 12.9%

“[T]he standards stated in the Code are not irrelevant in determining the standard of care in certain actions for malpractice”

How later courts described this case

“[T]he standards stated in the Code are not irrelevant in determining the standard of care in certain actions for malpractice”

Written by the judges who cited it.

The opinion

10/16/2020

IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

July 23, 2020 Session

PETER R. CULPEPPER v. BAKER, DONELSON, BEARMAN,

CALDWELL & BERKOWITZ, P.C., ET AL.

Appeal from the Circuit Court for Knox County

No. 1-168-19 Kristi M. Davis, Judge

___________________________________

No. E2019-01932-COA-R3-CV

___________________________________

In this legal malpractice action, the trial court granted judgment on the pleadings in favor

of the defendants, determining that the plaintiff had waived any conflict of interest in his

signed engagement letter. The court also ruled that the plaintiff’s legal malpractice

claims were barred by the applicable statute of limitations. The plaintiff has appealed.

Upon our review of the pleadings and acceptance as true of all well-pleaded facts

contained in the plaintiff’s complaint and the reasonable inferences that may be drawn

therefrom, we determine that the plaintiff has pled sufficient facts in support of his claim

of legal malpractice. We therefore reverse the trial court’s grant of judgment on the

pleadings with regard to the plaintiff’s legal malpractice claim.1

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court

Reversed in Part, Affirmed in Part; Case Remanded

THOMAS R. FRIERSON, II, J., delivered the opinion of the court, in which D. MICHAEL

SWINEY, C.J., and JOHN W. MCCLARTY, J., joined.

Peter R. Culpepper, Knoxville, Tennessee, Pro Se.

P. Edward Pratt, Knoxville, Tennessee, and Sam Berry Blair and Ryan A. Strain,

Memphis, Tennessee, for the appellees, Baker, Donelson, Bearman, Caldwell &

Berkowitz, P.C.; John S. Hicks; Tonya Mitchem Grindon; Martha L. Boyd; Samuel

Lanier Felker; Lori B. Metrock; and Lori H. Patterson.

The plaintiff asserted other claims that were also dismissed by virtue of the trial court’s grant of

judgment on the pleadings. We note that the plaintiff has not appealed the grant of judgment in favor of

the defendants with respect to those claims.

OPINION

I. Factual and Procedural Background

On May 9, 2019, the plaintiff, Peter R. Culpepper, filed a complaint in the Knox

County Circuit Court (“trial court”) against the following defendants: Baker, Donelson,

Bearman, Caldwell & Berkowitz, P.C. (“the Baker firm”); John S. Hicks; Tonya

Mitchem Grindon; Martha L. Boyd; Samuel Lanier Felker; Lori B. Metrock; and Lori H.

Patterson (collectively, “Defendants”). In his complaint, Mr. Culpepper alleged legal

malpractice arising out of Defendants’ simultaneous representation of Mr. Culpepper and

his former employer, Provectus Biopharmaceuticals, Inc. (“Provectus”).2 Mr. Culpepper

filed an amended complaint on May 31, 2019, wherein he alleged, inter alia, that

Defendants had represented him while also representing and advising Provectus to his

detriment and that Defendants had continued to represent Provectus to his detriment after

they withdrew from his representation.

In his amended complaint, Mr. Culpepper explained that he was employed as the

Chief Financial Officer for Provectus from 2004 until sometime in 2016 when he was

named interim Chief Executive Officer. Mr. Culpepper maintained that position with

Provectus until his employment termination effective December 28, 2016. According to

Mr. Culpepper, Defendants represented him concerning matters before the United States

Securities and Exchange Commission (“SEC”) on August 4, 2016, and August 11, 2016.

Mr. Culpepper alleged that on August 15, 2016, Defendants met with an independent

forensic accountant and discussed Mr. Culpepper “with respect to the SEC and other

attorney-client privileged and confidential matters WITHOUT his knowledge” (emphasis

in original).

Additionally, Mr. Culpepper alleged that Defendants discussed matters regarding

Mr. Culpepper and the SEC with Provectus’s Board of Directors in 2016, without Mr.

Culpepper’s knowledge, while simultaneously representing Mr. Culpepper. Mr.

Culpepper further averred, inter alia, that Defendants presented fabricated documentation

to support his ultimate termination for cause by Provectus in December 2016. Mr.

Culpepper claimed that Defendants had represented him and Provectus simultaneously

despite an obvious conflict of interest and had continued to represent Provectus following

termination of his representation on a substantially related matter. Additionally, Mr.

Culpepper claimed that Defendants had concealed documentation in support of his claims

until May 2018. Mr. Culpepper thus sought damages for legal malpractice, defamation,

and false light invasion of privacy; a declaratory judgment regarding the proper amount

Although Mr. Culpepper generally refers to the actions of “defendants,” most of the allegations in his

complaint are directed toward the Baker firm as a whole. The individually named defendants are

attorneys who were apparently employed by the Baker firm at the time of Mr. Culpepper’s representation.

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owed by him to Provectus pursuant to their settlement agreement; and indemnification for

his attorney’s fees.

On July 3, 2019, Defendants filed a motion seeking leave to file their answer and

accompanying exhibits under seal. In their answer, Defendants denied any liability and

asserted various affirmative defenses, including expiration of the applicable statutes of

limitation and waiver. Defendants attached to their answer an engagement letter signed

by Mr. Culpepper on August 31, 2016. On August 13, 2019, Defendants filed a motion

for judgment on the pleadings, asserting, inter alia, that Mr. Culpepper had waived any

conflicts of interest in his August 31, 2016 engagement letter and had consented to

Defendants’ continued representation of Provectus, even if such representation was

ultimately adverse to Mr. Culpepper’s interests. Defendants also asserted that expiration

of the applicable one-year statute of limitations barred Mr. Culpepper’s malpractice

claims.

On September 30, 2019, the trial court entered an order granting judgment on the

pleadings in favor of Defendants and dismissing all of Mr. Culpepper’s claims. In its

order, the court stated in pertinent part:

The Court rules that in the August 31, 2016 engagement, waiver and

consent letter, [Mr. Culpepper] waived all conflicts of interest and

consented to Defendants’ representation of its other clients, including those

clients adverse to [Mr. Culpepper]. [Mr. Culpepper] specifically agreed

that he carefully read the foregoing letter and considered all the information

necessary and useful in determining whether or not to consent to the

representations outlined above. He was encouraged to consult with

independent counsel regarding this waiver and consent letter and

represented he was fully aware of his legal rights in this regard. The letter

also provides, “[u]pon reasoned reflection, I hereby voluntarily consent to

the representations by Baker Donelson as outlined above.” Therefore, the

Court rules [Mr. Culpepper] voluntarily waived all conflicts of interest,

which was the crux of the entire Amended Complaint.

Further, the Court also rules that the claims in the Amended

Complaint are barred by the statute of limitations.

Further, the Court rules that the libel, defamation, and invasion of

privacy claims were all determined adversely to [Mr. Culpepper] by the

Arbitrator and therefore these claims are estopped.

The trial court thereby dismissed all of Mr. Culpepper’s claims with prejudice. Mr.

Culpepper timely appealed.

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II. Issues Presented

Mr. Culpepper presents the following issues for our review, which we have

restated slightly:

1. Whether the trial court erred by granting judgment in favor of

Defendants without allowing Mr. Culpepper to argue against a stay

of discovery when he was replying to Defendants’ motions.

2. Whether the trial court erred by granting judgment in favor of

Defendants when Mr. Culpepper purportedly had not knowingly and

voluntarily waived all conflicts of interest.

3. Whether the trial court erred by failing to apply the discovery rule to

toll the limitations period based on Defendants’ alleged fraudulent

concealment of their actions.

III. Standard of Review

Tennessee Rule of Civil Procedure 12.03 provides:

After the pleadings are closed but within such time as not to delay the trial,

any party may move for judgment on the pleadings. If, on a motion for

judgment on the pleadings, matters outside the pleadings are presented to

and not excluded by the court, the motion shall be treated as one for

summary judgment and disposed of as provided in Rule 56, and all parties

shall be given reasonable opportunity to present all material made pertinent

to such a motion by Rule 56.

In reviewing a trial court’s grant of judgment on the pleadings under Rule 12.03,

we are bound to regard as false all allegations of the moving party that are denied by the

non-moving party, and to accept all well-pleaded facts of the non-moving party, and the

reasonable inferences that may be drawn therefrom, as true. McClenahan v. Cooley, 806

S.W.2d 767, 769 (Tenn. 1991). “Conclusions of law are not admitted nor should

judgment on the pleadings be granted unless the moving party is clearly entitled to

judgment.” Id. In our review of this case, “all of the facts alleged by the Plaintiff in this

case must be taken as true and the issue then before us is whether upon those facts the

Plaintiff’s complaint states a cause of action that a jury should have been entitled to

decide.” Id. An appellate court “should uphold granting the [Rule 12.03] motion only

when it appears that the plaintiff can prove no set of facts in support of a claim that will

entitle him or her to relief.” Young v. Barrow, 130 S.W.3d 59, 63 (Tenn. Ct. App. 2003).

“A trial court’s legal conclusions regarding the adequacy of a complaint are reviewed de

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novo without a presumption of correctness.” Stewart v. Schofield, 368 S.W.3d 457, 462-

63 (Tenn. 2012).

In reviewing pleadings, we “must give effect to the substance, rather than the form

or terminology of a pleading.” Id. at 463 (citing Abshure v. Methodist Healthcare-

Memphis Hosp., 325 S.W.3d 98, 104 (Tenn. 2010)). We respect Mr. Culpepper’s

decision to proceed without benefit of counsel and note that pleadings “prepared by pro

se litigants untrained in the law should be measured by less stringent standards than those

applied to pleadings prepared by lawyers.” Stewart, 368 S.W.3d at 462 (citing Carter v.

Bell, 279 S.W.3d 560 568 (Tenn. 2009); Hessmer v. Hessmer, 138 S.W.3d 901, 903

(Tenn. Ct. App. 2003); Young, 130 S.W.3d at 63). Although parties proceeding without

benefit of counsel are “entitled to fair and equal treatment by the courts,” we “must not

excuse pro se litigants from complying with the same substantive and procedural rules

that represented parties are expected to observe.” Hessmer v. Hessmer, 138 S.W.3d 901,

903 (Tenn. Ct. App. 2003).

IV. Motion for Protective Order

Mr. Culpepper asserts that the trial court erred by granting judgment on the

pleadings without considering the merits of Defendants’ motion seeking a protective

order, which Mr. Culpepper urges was filed “for the express purpose of avoiding [his]

discovery requests.” In his appellate brief, Mr. Culpepper proceeds to cite federal

precedent analyzing the proper standard for a court’s grant of a stay of discovery when a

party has filed or intends to file a case-dispositive motion. Defendants contend that Mr.

Culpepper’s arguments lack merit because (1) the trial court never granted Defendants’

motion seeking a protective order, finding it to be pretermitted due to the grant of

judgment on the pleadings and (2) Mr. Culpepper has provided an insufficient record to

permit review of this issue in any event. Based upon our thorough review of the record,

we agree with Defendants on both points.

The record before us contains neither Defendants’ motion seeking a protective

order nor any responsive pleadings filed by Mr. Culpepper. Defendants assert that there

were additional memoranda and other documents filed by the parties relative to this issue

that likewise were not included in the record. Moreover, no order disposing of

Defendants’ motion is contained in the record; instead, the trial court judge noted in her

oral ruling granting judgment on the pleadings that such action “pretermit[ted] . . . the

issue with respect to the motion for protective order . . . .”

Inasmuch as the trial court never ruled on the motion for protective order, there is

nothing for this Court to review. As a Court of appeals and errors, “we are limited in

authority to the adjudication of issues that are presented and decided in the trial courts.”

Dorrier v. Dark, 537 S.W.2d 888, 890 (Tenn. 1976). Furthermore, even if the trial court

had rendered a decision on this issue, “[t]his Court’s authority to review a trial court’s

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decision is limited to those issues for which an adequate legal record has been

preserved.” Taylor v. Allstate Ins. Co., 158 S.W.3d 929, 931 (Tenn. Ct. App. 2004).

To the extent that Mr. Culpepper’s argument could be construed as advocating that

further discovery was required before the trial court considered a grant of judgment on

the pleadings, this Court has previously rejected such an argument. In Sakaan v. Fedex

Corp., Inc., No. W2016-00648-COA-R3-CV, 2016 WL 7396050, at *5 (Tenn. Ct. App.

Dec. 21, 2016), this Court explained:

A motion for judgment on the pleadings involves the consideration of

nothing other than what its title suggests; the motion requests that a court

grant judgment based on the pleadings alone. Accordingly, discovery is not

necessary to sharpen any factual issues, and the trial court’s resolution of

the motion is not dependent on anything other than the pleadings.

We therefore conclude that Mr. Culpepper’s first issue on appeal is without merit.

V. Waiver and Legal Malpractice Claims

Mr. Culpepper asserts that the trial court erred by granting judgment on the

pleadings in favor of Defendants with regard to Mr. Culpepper’s legal malpractice

claims, which were based on an alleged conflict of interest in Defendants’ representation

of Mr. Culpepper and Provectus. Mr. Culpepper postulates that (1) Defendants breached

Tennessee’s Rules of Professional Responsibility with regard to conflicts of interest and

(2) he did not and could not knowingly and voluntarily waive the conflicts. In response,

Defendants posit that the waiver contained in Mr. Culpepper’s engagement letter,

undisputedly executed by Mr. Culpepper, was a sufficient basis for the trial court’s

ruling.

As Mr. Culpepper points out, this Court has previously addressed the issue of

whether an alleged breach of a disciplinary rule equates to legal malpractice:

There is no doubt that the Code of Professional Responsibility (“the

Code”) does not set the standard for determining the civil liability of an

attorney. See Lazy Seven Coal Sales, Inc. v. Stone & Hinds, P.C., 813

S.W.2d 400 (Tenn. 1991). However, that fact does not preclude the

possibility that violation of the Code is relevant evidence in a subsequent

civil case. Id. at 405 (“[T]he standards stated in the Code are not irrelevant

in determining the standard of care in certain actions for malpractice”). The

Tennessee Supreme Court recognized that the Code may provide guidance

in defining a lawyer’s obligation to a client. Moreover, in some instances,

conduct which violates the Code may also be a breach of the attorney’s

standard of care. While violation of the Code, standing alone, will not

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suffice to prove civil liability, it seems clear that such a violation may be

relevant evidence of a breach of the standard of care.

Roy v. Diamond, 16 S.W.3d 783, 790-91 (Tenn. Ct. App. 1999).

With regard to a claim of legal malpractice, this Court has previously elucidated:

To establish a prima facie cause of action for legal malpractice, the plaintiff

has the burden of proving each of the following elements: (1) a duty owed

by the lawyer; (2) breach of that duty; (3) damages suffered by the plaintiff;

(4) the attorney’s breach as the cause in fact of those damages; and (5) the

attorney’s breach as the proximate, or legal, cause of the plaintiff’s

damages. See Gibson v. Trant, 58 S.W.3d 103, 108 (Tenn. 2001). The

issues at the heart of this case, therefore, are whether [the attorney]

breached his duty to [the client] and if so, whether that breach caused [the

client] to suffer damages.

A plaintiff can show breach of the duty owed by an attorney by

demonstrating that “the attorney’s conduct fell below that degree of care,

skill, and diligence which is commonly possessed and exercised by

attorneys practicing in the same jurisdiction.” See Sanjines v. Ortwein and

Assocs., P.C., 984 S.W.2d 907, 910 (Tenn. 1998). Furthermore, with

reference to legal malpractice, a plaintiff has been determined to have

suffered damages or injury as the result of “the loss of a legal right, remedy

or interest, or the imposition of a liability.” See Parnell v. Ivy, 158 S.W.3d

924, 927 (Tenn. Ct. App. 2004) (quoting John Kohl & Co. P.C. v.

Dearborn & Ewing, 977 S.W.2d 528, 532 (Tenn. 1998)). “An actual injury

may also take the form of the plaintiff being forced to take some action or

otherwise suffer ‘some actual inconvenience,’ such as incurring an expense,

as a result of the defendant’s negligent or wrongful act.” John Kohl & Co.

P.C. v. Dearborn & Ewing, 977 S.W.2d 528, 532 (Tenn. 1998) (quoting

State v. McClellan, 113 Tenn. 616, 85 S.W. 267, 270 (1905)). This Court

has previously explained that “the mere possibility or probability of injury .

. . is not enough for a cause of action for legal malpractice to accrue.”

Caledonia Leasing & Equip. Co., Inc. v. Armstrong, Allen, Braden,

Goodman, McBride & Prewitt, 865 S.W.2d 10, 17 (Tenn. Ct. App. 1992).

“In order to prove damages in a legal malpractice action, a plaintiff must

prove that he would have obtained relief in the underlying lawsuit, but for

the attorney’s malpractice.” Shearon v. Seaman, 198 S.W.3d 209, 214

(Tenn. Ct. App. 2005). The plaintiff must also demonstrate a causal

connection between the attorney’s negligence and the plaintiff’s injury. See

Lazy Seven Coal Sales, Inc. v. Stone & Hinds, P.C., 813 S.W.2d 400, 407

(Tenn. 1991).

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Jones v. Allman, 588 S.W.3d 649, 655-56 (Tenn. Ct. App. 2019), perm. app. denied

(Tenn. Sept. 19, 2019).

The trial court’s grant of judgment on the pleadings concerning Mr. Culpepper’s

legal malpractice claims was predicated in part on his waiver of any conflict of interest in

the signed engagement letter. Defendants attached this engagement letter to their answer

filed in this matter. As such, the engagement letter became a part of that pleading and

was properly considered by the trial court in its analysis of Defendants’ motion for

judgment on the pleadings.3 See Bartley v. Nunley, No. E2019-01694-COA-R3-CV,

2020 WL 5110302, at *7 (Tenn. Ct. App. Aug. 28, 2020).

The engagement letter provides as follows in pertinent part:

1. Scope of Representation.

You will be our client in this matter. We will be engaged to advise

you in connection with the SEC investigation entitled Provectus

Biopharmaceuticals, Inc. (“Provectus”) (H0-13000). Our acceptance of

this engagement (the “Matter”) does not involve representing you or your

interests in any other matter.

2. Fees and Expenses.

Provectus Biopharmaceuticals Company, Inc. (the “Company”) has

agreed to pay our fees and costs. We will, therefore, seek payment from

the Company.

3. Conflicts.

We are a large firm with offices in a number of cities in the United

Tennessee Rule of Civil Procedure 10.03 provides:

Whenever a claim or defense is founded upon a written instrument other than a

policy of insurance, a copy of such instrument or the pertinent parts thereof shall be

attached to the pleading as an exhibit unless the instrument is (1) a matter of public

record in the county in which the action is commenced and its location in the record is set

forth in the pleading; (2) in the possession of the adverse party and this fact is stated in

the pleading; (3) inaccessible to the pleader or is of such nature that attaching the

instrument would be unnecessary or impracticable and this fact is stated in the pleading,

together with the reason therefor. Every exhibit so attached or referred to under (1) and

(2) shall be a part of the pleading for all purposes.

(Emphasis added.)

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States, and we represent many other companies and individuals. Given the

breadth of our practice, it is possible that during the time we are

representing you, some of our present or future clients will be engaged in

transactions, or encounter disputes, with you or the Company. You agree

that we may continue to represent, and may undertake in the future to

represent, existing or new clients in any matter that is not substantially

related to our work for you even if the interests of such clients in those

matters are directly adverse to you. At no time would we use or disclose

any confidential or proprietary information relating to our representation

of you in connection with our representation of another client without your

written consent, as appropriate. You should know that, in similar

engagement letters with many of our other clients, we have asked for

similar agreements to preserve our ability to represent you.

4. Joint Representation.

As you know, we are representing you jointly with the Company,

Timothy Scott and Eric Wachter. You have consented to this joint

representation. In a situation where our firm represents multiple clients

jointly in the same matter, we are free to share confidential information

communicated to us by one client with the other joint clients in the course

of and in furtherance of the joint representation. We would expect to share

information we receive from you with the Company, but we will not

necessarily share with you information that we receive from other clients,

and you will not be entitled to obtain any confidential information

provided to us by any other joint client either during the joint

representation or thereafter. Please contact me immediately if you have

any objections or concerns regarding this approach.

Based on the information we now have, we are not aware of any

actual and present conflicts of interest between you and either the

Company, Timothy Scott or Eric Wachter that would preclude this joint

representation. However, in any situation in which a lawyer represents

more than one client, there is the potential for the clients to have or to

develop conflicting interests. If you are aware or become aware of any

potential or actual conflict of interest with the Company, Timothy Scott or

Eric Wachter, please notify us promptly. Likewise, if we become aware

that a conflict has arisen or become apparent, we will notify you promptly.

If a conflict should arise between you and the Company, we will be

required to withdraw from representing you, and you may need to engage

another attorney to represent you. You agree that, should this occur, we

would be free to continue to represent the Company and other joint clients

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(except in litigation directly adverse to you in this or a substantially related

matter) and that we and they may use any information we have obtained

during our representation of you, including any confidential information

you may provide to us. This may include sharing information you provide

to us with the Company and advising the Company with respect to any

issues raised by such information. In addition, if a conflict should arise

between you and the Company, Timothy Scott or Eric Wachter, we may be

required to withdraw from representing one or more of you, and you may

need to engage another attorney to represent you.

You also understand that we may be asked to represent other

individuals or entities who, by virtue of their current or former

employment with or other relationship to the Company, may seek our

advice in connection with these Matters, and you consent to such

representation on the same terms as set forth above. You agree to waive

any claim of conflict based on our past, current, and future representation

of the Company and its current or former officers, employees, directors,

etc. As noted above, our fees and costs for representing you in the Matter

will be paid by the Company, and you agree that you waive any claim of

conflict based upon our receipt of fees from the Company.

You should be aware that joint representation of multiple clients

may result in significant benefits for each client, but it may also result in

certain risks that might not arise if each client had his or its own separate

counsel. Possible benefits may include a common strategy, access to

privileged and other information held by other clients in the group, various

other tactical advantages, and shared legal fees and costs. There are also

potential risks. For example, as explained above, a conflict of interest

between or among clients could arise or become apparent, which may

require Baker Donelson to withdraw from representing one or more of the

joint clients. In addition, the Company has decided as a condition of this

joint representation, that confidential or privileged information disclosed

to Baker Donelson by individual clients will be shared with the Company

and that confidential or privileged information of the Company will not

necessarily be shared with individual clients, including yourself. The

Company may disclose, or direct us to disclose, to the SEC, or other

federal or state regulatory agencies or other third parties confidential or

privileged information provided by you and could decide to use such

information in a manner that could be disadvantageous to you. And,

although you will participate in decisions regarding our representation of

you, you will not be consulted on all decisions regarding our

representation of the Company or other joint clients in the Matter.

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While the Company has agreed that Baker Donelson may represent

you in the Matter, you are of course free at any time to consult with any

other attorney, including with respect to whether you should enter into this

agreement, and to make different arrangements for your representation.

5. Conclusion of Representation.

Either of us may terminate the engagement at any time for any

reason by written notice, subject on our part to our professional obligations

to you under applicable rules of professional conduct and the terms and

conditions set forth in this agreement. Unless previously terminated, our

representation of you will terminate upon completion of the services for

the Matter described above in paragraph 1. It is understood and agreed

that in the event of any termination or withdrawal, we will be entitled to

receive any unpaid fees and expenses from the Company. Subsequent

invoices sent to collect expenses and/or unpaid balances, and/or

accounting records or client lists shall not extend the attorney-client

relationship. Unless you engage us after termination of this matter, we

will have no continuing obligation to advise you with respect to future

legal developments, such as changes in the applicable laws or regulations,

which could have an impact on your future rights and liabilities.

A provision at the conclusion of the engagement letter states as follows:

I have carefully read the foregoing letter, considered all information

necessary and useful in determining whether or not to consent to the

representations outlined above. I have been encouraged to consult with

independent counsel regarding this consent to representation, and I am fully

aware of my legal rights in this regard. Upon reasoned reflection, I hereby

voluntarily consent to the representations by Baker Donelson as outlined

above.

Mr. Culpepper’s signature appears thereon, dated August 31, 2016. Mr. Culpepper does

not dispute that he signed the engagement letter, although he asserts in his brief that he

does not specifically remember doing so.

The parties agree that Tennessee Supreme Court Rule 8, Rule of Professional

Conduct 1.7 (“RPC 1.7”), applies in this situation. RPC 1.7 states in pertinent part:

(a) Except as provided in paragraph (b), a lawyer shall not represent a

client if the representation involves a concurrent conflict of interest.

A concurrent conflict of interest exists if:

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(1) the representation of one client will be directly adverse

to another client; or

(2) there is a significant risk that the representation of one

or more clients will be materially limited by the

lawyer’s responsibilities to another client, a former

client or a third person or by a personal interest of the

lawyer.

(b) Notwithstanding the existence of a concurrent conflict of interest

under paragraph (a), a lawyer may represent a client if:

(1) the lawyer reasonably believes that the lawyer will be

able to provide competent and diligent representation

to each affected client;

(2) the representation is not prohibited by law;

(3) the representation does not involve the assertion of a

claim by one client against another client represented

by the lawyer in the same litigation or other

proceeding before a tribunal; and

(4) each affected client gives informed consent, confirmed

in writing.

Mr. Culpepper has not disputed that Defendants terminated their representation of

him in December 2016. Because Defendants allegedly continued their representation of

Provectus following termination of their representation of Mr. Culpepper in 2016, the

parties are in accord that Tennessee Supreme Court Rule 8, Rule of Professional Conduct

1.9 (“RPC 1.9”) would also apply in this situation. RPC 1.9 states as follows:

a) A lawyer who has formerly represented a client in a matter shall not

thereafter represent another person in the same or a substantially

related matter in which that person’s interests are materially adverse

to the interests of the former client unless the former client gives

informed consent, confirmed in writing.4

Comment 3 to RPC 1.9 provides that matters are “substantially related” if they “involve the same

transaction or legal dispute or other work the lawyer performed for the former client” or “if there is a

substantial risk that confidential factual information that would normally have been obtained in the prior

representation would materially advance the client’s position in the subsequent matter, unless that

information has become generally known.”

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(b) Unless the former client gives informed consent, confirmed in

writing, a lawyer shall not knowingly represent a person in the same

or a substantially related matter in which a firm with which the

lawyer formerly was associated had previously represented a client

(1) whose interests are materially adverse to that person;

and

(2) about whom the lawyer had acquired information

protected by RPCs 1.6 and 1.9(c) that is material to the

matter.

present or former firm has formerly represented a client in a matter

shall not thereafter reveal information relating to the representation

or use such information to the disadvantage of the former client

unless (1) the former client gives informed consent, confirmed in

writing, or (2) these Rules would permit or require the lawyer to do

so with respect to a client, or (3) the information has become

generally known.

Defendants do not dispute that a conflict of interest arose between Provectus and

Mr. Culpepper at some point; in fact, the existence of such a conflict was the reason

provided by Defendants for terminating their representation of Mr. Culpepper in

December 2016. Defendants assert, however, that Mr. Culpepper waived all conflicts of

interest with other clients of the Baker firm and gave informed consent to Defendants’

continued representation of Provectus in the event such a conflict arose. Although we

agree with Defendants that Mr. Culpepper acknowledged his voluntary agreement to the

waiver contained in the engagement letter, such acknowledgement is not determinative of

the issue of whether Mr. Culpepper’s consent was informed.

“Informed consent” is defined in the Rules of Professional Conduct as “the

agreement by a person to a proposed course of conduct after the lawyer has

communicated adequate information and explanation about the material risks of and

reasonably available alternatives to the proposed course of conduct.” Tenn. Sup. Ct. R. 8,

RPC 1.0. As our Supreme Court has explained:

[O]ur rules permit a waiver of a conflict of interest if “(1) the lawyer

reasonably believes the representation will not be adversely affected; and

(2) the client consents in writing after consultation.” Tenn. Sup. Ct. R. 8,

RPC 1.7(b). In order to waive a conflict of interest, the petitioner must

demonstrate that he fully understands the nature of the conflict and its

effect; that he understands his right to the appointment of other counsel if

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necessary; and that, notwithstanding the potential ill effects of continued

representation by counsel of record, he desires to proceed. A valid waiver

must, of course, not only be made knowingly, but also be made fully and

voluntarily in the context of the case.

Frazier v. State, 303 S.W.3d 674, 683-84 (Tenn. 2010) (other internal citations omitted).

Although there is a dearth of case law interpreting the Rules of Professional

Conduct in relation to the factual scenario presented in this matter, we note that the

comments to RPC 1.7 are instructive to our analysis. For example, comment 6 to RPC

1.7 states: “Loyalty to a current client prohibits undertaking representation directly

adverse to that client without that client’s informed consent. Thus, absent consent, a

lawyer may not act as an advocate in one matter against a person the lawyer represents in

some other matter, even when the matters are wholly unrelated.” As such, it is clear that

a client can provide informed consent in order to enable an attorney to undertake

concurrent representation that is adverse to that client in certain circumstances. However,

when such consent is given, “the information provided [to the client] must include the

implications of the common representation, including possible effects on loyalty,

confidentiality and the attorney-client privilege and the advantages and risks involved.”

See RPC 1.7, cmt. 18.

In the case at bar, Mr. Culpepper executed an acknowledgement stating that he

had “carefully read” the engagement letter and had “considered all information necessary

and useful in determining whether or not to consent to the representations” stated therein.

Mr. Culpepper further acknowledged that he had been encouraged to consult with

independent counsel regarding his consent to representation. Mr. Culpepper affirmed

that he had, upon “reasoned reflection,” “voluntarily consent[ed] to the representations by

Baker Donelson as outlined above.”

The question that remains unanswered, however, is whether Mr. Culpepper was

provided information concerning “the implications of the common representation,

including possible effects on loyalty, confidentiality and the attorney-client privilege” or

“the potential ill effects of continued representation by counsel of record” such that he

could “fully understand[] the nature of the conflict and its effect.” See Frazier, 303

S.W.3d at 683-84; RPC 1.7, cmt. 18.

Mr. Culpepper posits that his consent was not “informed” in that he was not

afforded sufficient information concerning the nature and extent of the conflict and its

effect on his individual representation. We note that according to the engagement letter,

although Mr. Culpepper expressly agreed that the Baker firm “would expect to share

information [the Baker firm] receive[d] from [Mr. Culpepper] with [Provectus],” he also

agreed that the Baker firm would not necessarily share information received from

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Provectus with Mr. Culpepper. In addition, we note again that the engagement letter

expressly provides: