In Re: James Ralph Hickman, Jr., BPR 020125

06/30/2023

IN THE SUPREME COURT OF TENNESSEE

AT NASHVILLE

Assigned on Briefs September 30, 2022

IN RE: JAMES RALPH HICKMAN, JR., BPR #020125

___________________________________

No. M2022-00755-SC-BAR-BP

___________________________________

In this case, we consider the appropriate discipline for Tennessee attorney James Ralph

Hickman, Jr. The Board of Professional Responsibility filed a petition for discipline against

Hickman alleging that he violated the Rules of Professional Conduct while representing an

estate in probate proceedings. A hearing panel of the Board adjudicated the petition and

recommended a one-year suspension, with “at least” ninety days served as an active

suspension and the rest on probation. Any violation of the conditions of probation would

result in “reversion to active suspension.” The hearing panel also directed Hickman to

obtain a practice monitor during the probationary period, complete fifteen additional hours

of estate-management continuing legal education (“CLE”) and three additional hours of

ethics CLE, and pay the costs of the matter. Neither Hickman nor the Board appealed. The

Board petitioned this Court for an order enforcing the hearing panel’s judgment. Exercising

our authority under Tennessee Supreme Court Rule 9, section 15.4, we determined that the

punishment imposed by the hearing panel appeared too lenient and proposed to increase it.

After carefully considering the entire record, “with a view to attaining uniformity of

punishment throughout the State and appropriateness of punishment under the

circumstances of each particular case,” Tenn. Sup. Ct. R. 9, § 15.4(b), we affirm the hearing

panel’s one-year suspension but modify the judgment to impose six months of active

suspension followed by six months on probation. We also clarify that the period of

probation imposed should be fixed rather than indefinite and that violation of a condition

of probation does not automatically result in reversion of the probationary period to active

suspension. We affirm the decision of the hearing panel in all other respects.

Tenn. Sup. Ct. R. 9, § 15.4; Judgment of the Hearing Panel Modified in Part;

Affirmed in Part

SARAH K. CAMPBELL, J., delivered the opinion of the court, in which ROGER A. PAGE, C.J.,

and SHARON G. LEE, JEFFREY S. BIVINS, and HOLLY KIRBY, JJ., joined.

James W. Milam, Brentwood, Tennessee, for the Petitioner, Board of Professional

Responsibility.

Gregory Brown, Colleen T.G. Conboy, and G. Alan Rawls, Knoxville, Tennessee, for the

Respondent, James Ralph Hickman, Jr.

OPINION

I. Factual and Procedural Background

James Ralph Hickman, Jr., has been licensed to practice law in Tennessee since

1999. He works as a solo practitioner in Sevier County handling primarily family law and

appointed criminal matters. On January 29, 2020, the Board filed a petition for discipline

against Hickman alleging that he violated the Rules of Professional Conduct (“RPC”) while

representing the estate of Betty Marshall Lawrence in probate proceedings. In October

2021, a disciplinary hearing was held in Sevierville, Tennessee. We begin by providing a

summary of the facts underlying the Board’s petition and of the hearing panel’s judgment.1

Betty Marshall Lawrence’s Estate

Hickman’s father, James Ralph Hickman, Sr., had a bookkeeping and tax-

preparation business in Sevier County. For many years, he prepared taxes for Betty

Marshall Lawrence and became well acquainted with her. Lawrence’s health began to

decline in 2016. Around that time, she executed a power of attorney appointing Hickman’s

father as her attorney-in-fact.

Lawrence’s sister, Peggy Marshall, was her sole heir. The two were estranged and

had not spoken in about a year. Marshall eventually became aware that Hickman’s father

had been appointed as Lawrence’s attorney-in-fact, and she began communicating with

him about Lawrence’s health and other matters.

On October 15, 2016, Lawrence passed away. Marshall emailed Hickman’s father

to notify him of Lawrence’s death. She also emailed Hickman.

In the email to Hickman, Marshall noted that Hickman had “provided legal services”

to Lawrence in the “recent past” and expressed interest in “acquir[ing] his services to

handle probate” if probate was “part of [his] practice.” She requested that Hickman contact

her to schedule an appointment with her and her son. The email also mentioned Marshall’s

“reasonable expectation” that Hickman’s father, “as [Lawrence’s] POA [and] Accountant,

should be involved in providing professional services relating to estate issues to a final

settlement.” At that time, Marshall believed that she was going to serve as personal

representative of her sister’s estate. Marshall was no stranger to probate proceedings. She

had served as a Clerk and Master for Sevier County for nearly twenty years and as personal

representative for the estates of four family members.

1

The factual summary is based on the hearing panel’s findings of fact and the administrative record.

-2-

The meeting Marshall requested was held on October 17, 2016. Hickman, Marshall,

and Marshall’s son were in attendance. They discussed the probate process generally but

did not discuss legal fees or reach any agreement about fees. At some point after the initial

meeting with Hickman, Marshall became aware that her sister had executed a holographic

will and two codicils, one of which named Hickman’s father—not her—as the personal

representative of the estate.2

Hickman ultimately was retained by his father to represent Lawrence’s estate in the

probate proceedings. There was no written agreement between Hickman and his father

regarding fees, but Hickman claimed that his father suggested a flat percentage of the value

of the gross estate, with the percentage amount based on “a sliding scale which accounted

for ‘how big a pain [Marshall] was.’” Hickman agreed to this arrangement because he

expected “the time and labor involved in probating [Marshall’s] estate” to be “significantly

more than . . . for another similarly-sized estate” due to “Marshall’s reputation,

communication style, and role in the administration of the estate.”

Two days after her meeting with Hickman, Marshall sent Hickman’s father an email

stating that she “wish[ed] to wash [her] hands of further involvement” with administration

of the estate and requesting that he and Hickman proceed according to Lawrence’s wishes.

Marshall apparently had second thoughts, however, and remained involved as

administration of the estate moved forward. The next day, she inquired whether it was

“reasonable to expect at some point an inventory” of Lawrence’s estate. Hickman

responded that “the court will require an inventory . . . of real property and financial

holdings.” Although Marshall was willing to waive bond, she never waived inventory or

accounting.

On December 16, 2016, Hickman’s father requested a meeting to discuss the estate

and invited Hickman, Marshall, her son, and her son’s wife to attend. Legal fees were not

discussed at that meeting either. Rather than provide Marshall with an inventory,

Hickman’s father gave her a handwritten document valuing the estate at $103,421.00 and

listing assets that included cash, real property, and foreign currency. That document did

not identify expenses for legal fees or any other administrative costs.

Marshall emailed Hickman again in January 2017 to request an inventory and

accounting. Another email that Marshall sent that month to Hickman and his father

2

Hickman testified that his father also attended the meeting, that Marshall was aware at the time

of the meeting that his father was the personal representative, and that the parties decided at the meeting

that legal fees would be four to five percent of the gross estate. The hearing panel did not find this testimony

credible, in large part because it conflicted with documentary evidence. Hickman’s father likewise testified

that he and Hickman discussed the fee with Marshall. But “[c]ounsel for the parties acknowledged at trial

that the memory of [Hickman’s father] appeared to be impacted” by health issues he had been experiencing.

The hearing panel “acknowledge[d] that fact as it relate[d] to the weight to be given to his testimony.”

-3-

referenced her request for an inventory and her “continued inquiries” regarding assets. Yet

another email to Hickman’s assistant, which was forwarded to Hickman, again referenced

Marshall’s requests for an inventory. Marshall also emailed Hickman in early June 2017

to request a “status report” and referred to her “legal entitlement as to inventory [and]

expense of administration to this point.” Despite these and other repeated requests, neither

Hickman nor his father provided Marshall with an inventory or accounting.

Marshall also was in communication with Hickman and his father about Lawrence’s

car. At the time of her death, Lawrence owned a 2000 Ford Taurus. Hickman’s father took

possession of the car on October 21, 2016, and offered to purchase it from the estate for

$800. After receiving that offer, Marshall received an offer from a third party offering her

$3,000 for the car. Hickman’s father eventually transferred title to himself without paying

the estate.

Marshall wanted the probate proceeding completed as soon as possible. To that end,

a final meeting was held on June 26, 2017. Hickman, his father, Marshall, and Marshall’s

son attended the meeting. Neither Hickman nor his father provided Marshall with an

inventory at that meeting. Marshall’s son testified that he specifically raised the issue of

fees at the meeting because the fee arrangement had not been disclosed, and he knew it was

a question on his mother’s mind. But the fee arrangement was not disclosed at this meeting

either.

Hickman presented Marshall with a $77,000 check for her portion of the estate and

asked her to sign a receipt and release, which indicated the estate could be closed because

the personal representative had properly distributed and administered the estate. Marshall’s

son testified that, when Marshall was presented with the document, she became upset and

said the administration of the estate had not been handled properly. Frustrated, but knowing

that her son wanted her to wrap things up, Marshall eventually said, “Just hand me the

damn thing,” and signed the release, but only after Hickman assured her that his father

would file and provide her with an inventory and final accounting. She believed that

signing the release was the only way to bring the probate matter to a close and receive her

share of the estate. Marshall emailed Hickman the day after the meeting to confirm that he

had agreed to provide an inventory and accounting, and Hickman responded that he would

be “glad to honor these requests.” But neither Hickman nor his father did so.

On June 30, 2017, based on the release that Marshall had signed, Hickman filed a

motion to close the estate. The motion stated that certain disbursements from the estate

were made “as directed by Peggy Marshall,” but no inventory or accounting was filed with

the court. Nor did Hickman’s filings otherwise disclose how much the estate had paid

Hickman in legal fees or Hickman’s father for administering the estate. The probate court

granted the motion to close the estate on June 30, 2017, in reliance on “the affirmations

contained” in Hickman’s motion.

-4-

Despite never having entered a verbal or written agreement with Marshall regarding

the amount of fees to be paid from the estate, Hickman and his father each collected a fee

equal to six percent of the gross estate, or $12,000. They calculated the “gross estate” by

including real property that did not pass through probate and therefore was not under

administration. Excluding this real property, the combined fees received by Hickman and

his father amounted to twenty-two percent of the total value of the assets actually under

administration. Had Hickman charged his usual hourly rate of $225 for the 14.4 hours he

spent representing the estate, he would have earned only $3,240.

Hickman did not notify Marshall that he had filed the motion for closure. She

discovered that the estate had been closed when she inquired with the court clerk a few

weeks later. On July 20, 2017, Marshall emailed Hickman and his father to inform them

that she had learned the estate was closed. She noted that the “costs of administration” still

had not been disclosed and indicated that she was considering reopening the estate.

Marshall soon filed a petition to reopen the estate. The probate court granted her

petition, and she obtained new counsel to litigate the matter. The probate court ordered

Hickman and his father to file fee applications for any fees they had received from the

estate. Hickman filed a fee application which stated:

At the initial meeting between [Hickman, his father, and Marshall], a flat,

percentage fee was discussed and was agreed to by [Marshall]. Her only

concern was that she would not be in any way liable for the fee. That meeting

occurred October 17, 2016. The agreed percentage was 6 (6%) percent each

for the Personal Representative [Hickman’s father] and counsel [Hickman].

At each time this was discussed there was a conversation about how the

percentage would be calculated as well as the specific percentage. This

agreement was discussed again at the June 26, 2017, meeting before

[Marshall] signed the Receipt and Release.

The probate court also ordered Hickman’s father to file an inventory and accounting.

Although Hickman repeatedly urged his father to comply with the order, his father failed

to timely submit the documents and filed them only after the court threatened to hold him

in contempt.

Marshall objected to the inventory and accounting. The probate court ultimately

disallowed the $24,000 in fees paid out of the estate to Hickman and his father because

they “were unreasonable and without a basis in law or contract.” The court also required

Hickman’s father to pay the estate for Lawrence’s car and to pay the attorney’s fees

Marshall incurred in bringing the petition to reopen. In all, the probate court charged

Hickman’s father with the $32,217.14 that was owed to the estate after ruling on Marshall’s

objections to his accounting and inventory, as well as attorney’s fees. Hickman and his

-5-

father initially appealed the probate court’s ruling, but the appeal was dismissed after

Hickman paid $32,600.30 in settlement of the judgment against his father.

Both Marshall and the probate judge filed complaints against Hickman with the

Board of Professional Responsibility. On January 29, 2020, the Board filed a formal

petition for discipline against Hickman based on those two complaints. On October 19–20,

2021, a final hearing on the Board’s petition was held in Sevierville.

Hearing Panel’s Judgment

The hearing panel issued its written judgment on January 19, 2022. The panel

concluded that Hickman had violated three Rules of Professional Conduct: 1.5(a) (Fees),

3.3(a)(1) (Candor Toward the Tribunal), and 8.4(c) (Misconduct). See Tenn. Sup. Ct. R. 8.

Rule 1.5(a) provides that “[a] lawyer shall not make an agreement for, charge, or

collect an unreasonable fee or an unreasonable amount for expenses.” Id., RPC 1.5(a). The

hearing panel concluded that Hickman violated this rule by failing to make an appropriate

fee arrangement and by collecting an unreasonably excessive fee.

Rule 3.3(a)(1) provides that “[a] lawyer shall not knowingly make a false statement

of fact or law to a tribunal.” Id., RPC 3.3(a)(1). The hearing panel concluded that Hickman

violated this rule by making two false statements of fact to the probate court in documents

that he alone signed. First, he filed a motion for closure falsely stating that Marshall had

approved the disbursement of funds. Second, he filed a fee application falsely stating that

Marshall had agreed to the fee arrangement. The hearing panel noted that Comment 3 to

Rule 3.3(a)(1) provides that “an assertion purporting to be on the lawyer’s own

knowledge . . . may properly be made only when the lawyer knows the assertion is true or

believes it to be true on the basis of a reasonably diligent inquiry.” Id., RPC 3.3(a)(1) cmt.

3.

Rule 8.4(c) provides that “[i]t is professional misconduct for a lawyer to . . . engage

in conduct involving dishonesty, fraud, deceit, or misrepresentation.” Id., RPC 8.4(c). The

hearing panel concluded that Hickman violated this rule “by knowingly filing documents

with the Court which contained false statements of material fact and not disclosing the fee

arrangement for legal services provided to the estate before pressing Ms. Marshall to sign

the Receipt and Release,” by “failing to fulfill his duties to an heir of the estate as counsel

for the estate in apprising her of her rights,” and “by failing to ensure that Ms. Marshall

receive an inventory or accounting in a timely and meaningful manner.”

-6-

Turning to discipline, the hearing panel determined that American Bar Association

(“ABA”) Standards 4.62,3 6.12,4 and 7.25 applied and established suspension as the

baseline sanction. See Standards for Imposing Lawyer Sanctions 4.62, 6.12, 7.2 (Am. Bar

Ass’n, amended 1992) (hereinafter ABA Standards). The panel also noted that ABA

Standard 2.3 provides that the period of suspension should be at least six months. Under

ABA Standard 9.1, the hearing panel considered aggravating and mitigating factors to

determine the appropriate discipline for Hickman. The panel considered as aggravating

factors Hickman’s (1) dishonest or selfish motive; (2) refusal to acknowledge the wrongful

nature of his conduct; and (3) substantial experience in the practice of law. The only

mitigating factor the panel considered was Hickman’s lack of a prior disciplinary record.

The hearing panel ultimately recommended a one-year suspension and directed that

“no less than [ninety] days of this suspension should be an active suspension.” The

remainder of the suspension would be served on probation. During that probationary

period, Hickman was required to obtain a practice monitor who would report monthly to

disciplinary counsel. The hearing panel instructed that the active suspension should remain

in place until a practice monitor had been selected and retained. The panel also required

Hickman to complete fifteen additional hours of estate-management CLE and three

additional hours of ethics CLE and to pay the costs of the matter. Should Hickman fail to

comply with any conditions of probation, the judgment provided that the period of

probation would “rever[t] to active suspension for the remainder of the suspension period.”

Neither party appealed from the hearing panel’s decision. On June 6, 2022, the Board filed

with this Court a notice of submission with a proposed order of enforcement incorporating

the hearing panel’s decision.

On July 7, 2022, exercising its authority under Tennessee Supreme Court Rule 9,

section 15.4, this Court issued an order expressing concern that the sanction was too lenient

and not comparable to punishment imposed in similar cases. We also expressed concern

that the language the hearing panel used to identify the period of active suspension was too

indefinite. We proposed to increase Hickman’s punishment pursuant to Tennessee

3

ABA Standard 4.62 provides that “[s]uspension is generally appropriate when a lawyer knowingly

deceives a client, and causes injury or potential injury to the client.”

4

ABA Standard 6.12 provides that

[s]uspension 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.

5

ABA Standard 7.2 provides that “[s]uspension is generally appropriate when a lawyer knowingly

engages in conduct that is a violation of a duty as a professional and causes injury or potential injury to a

client, the public, or the legal system.”

-7-

Supreme Court Rule 9, section 15.4,6 directed the Board to file the record of the disciplinary

hearing, and set a briefing schedule. The matter was submitted to the Court for decision on

the record and the briefs, without oral argument.

II. Standard of Review

“This Court is the final and ultimate arbiter of the propriety of the professional

conduct of all lawyers practicing in Tennessee.” Flowers v. Bd. of Pro. Resp., 314 S.W.3d

882, 891 (Tenn. 2010). In that role, we promulgate and enforce the rules that govern the

legal profession in this State. Bd. of Pro. Resp. v. MacDonald, 595 S.W.3d 170, 181 (Tenn.

2020).

When a complaint is filed against an attorney alleging professional misconduct,

disciplinary counsel for the Board of Professional Responsibility investigates the

allegations. Tenn. Sup. Ct. R. 9, § 15.1(b). At the conclusion of the investigation,

disciplinary counsel may recommend dismissal, private informal admonition, private

reprimand, public censure, or prosecution of formal charges. Id. When a complaint is

prosecuted, the matter typically is decided by a hearing panel of the Board. See id.

§ 15.2(a), (d). Disciplinary counsel has the burden to prove allegations against an attorney

“by a preponderance of the evidence.” Id. § 15.2(h).

The hearing panel must submit “its findings and judgment, in the form of a final

decree of a trial court, to the Board within thirty days after the conclusion of the hearing.”

Id. § 15.3(a). If a hearing panel recommends discipline, the attorney can appeal the decision

or accept the judgment. See id. § 33. If the punishment is disbarment, suspension, or public

censure and no appeal is perfected from the hearing panel’s decision, the Board files with

this Court a notice of submission, the judgment, a proposed order of enforcement, and a

protocol memorandum. Id. § 15.4(b).

Even if neither party appeals the judgment of a hearing panel, we review the

judgment under our inherent authority to supervise and regulate the practice of law in

Tennessee. In re Sitton, 618 S.W.3d 288, 294 (Tenn. 2021); see also In re Cope, 549

S.W.3d 71, 73 (Tenn. 2018); In re Vogel, 482 S.W.3d 520, 530 (Tenn. 2016). To facilitate

that review, we may direct the Board to file the record of the disciplinary proceeding. See

Tenn. Sup. Ct. R. 9, § 15.4(b). Our review is aimed at “attaining uniformity of punishment

throughout the State and appropriateness of punishment under the circumstances of each

particular case.” Id.; see also id. § 15.4(d).

6

The Court’s order cited section 15.4(d) and (e). The Board correctly notes in a footnote in its brief

that the order should have cited section 15.4(b) and (c) instead because neither party appealed. This error

is harmless, because the operative language is identical.

-8-

If the punishment appears “inadequate or excessive,” this Court “issue[s] an order

advising the Board and the respondent attorney that it proposes to increase or to decrease

the punishment.” Id. § 15.4(c). When, as here, this Court proposes to increase the

punishment, the Court allows the attorney and the Board to file briefs. Id.

We review the hearing panel’s recommended punishment de novo. In re Walwyn,

531 S.W.3d 131, 137 (Tenn. 2017). We consider “all of the circumstances of the particular

case and also, for the sake of uniformity, sanctions imposed in other cases presenting

similar circumstances.” In re Cope, 549 S.W.3d at 74 (quoting Bd. of Pro. Resp. v. Allison,

284 S.W.3d 316, 327 (Tenn. 2009)). After considering the record and the briefs, we “may

modify the judgment of the hearing panel . . . in such manner as [we] deem[] appropriate.”

Tenn. Sup. Ct. R. 9, § 15.4(c).

III. Analysis

The main issue presented for our review is whether Hickman’s punishment is too

lenient. Hickman says it is not and asks us to affirm the hearing panel’s judgment. He

argues that the circumstances of this case are distinguishable from Beier v. Board of

Professional Responsibility, 610 S.W.3d 425 (Tenn. 2020), Board of Professional

Responsibility v. Walker, 638 S.W.3d 127 (Tenn. 2021), and Board of Professional

Responsibility v. Justice, 577 S.W.3d 908 (Tenn. 2019). According to Hickman, the

proposed punishment is consistent with sanctions this Court has approved in other cases

involving similar conduct, such as Nevin v. Board of Professional Responsibility, 271

S.W.3d 648 (Tenn. 2008). Hickman also contends that the hearing panel should have

applied four additional mitigating factors in determining his punishment.

The Board disagrees. It argues that Hickman’s punishment is too lenient considering

the sanctions imposed in similar cases, and should, at a minimum, be increased to a

three-year suspension. The Board posits that the Walker and Justice cases are the most

appropriate comparators. Relying on Beier, the Board further argues that the ninety-day

period of active suspension is inadequate and should be increased to two years of active

suspension.

After reviewing the record and the parties’ briefs, our only disagreement with the

hearing panel’s judgment is the length of the active suspension. As explained below, we

conclude that the circumstances of this case and the goal of attaining uniformity of

punishment warrant a longer and more clearly defined period of active suspension than the

period of “at least” ninety days imposed by the hearing panel.

Circumstances of This Case

Before comparing this case to others, we first consider the “appropriateness of

punishment under the circumstances of [this] particular case.” Tenn. Sup. Ct. R. 9,

-9-

§ 15.4(b). The hearing panel correctly found that, given the nature of Hickman’s

misconduct, ABA Standards 4.62, 6.12, and 7.2 applied and established suspension as the

appropriate discipline for Hickman. Hickman agreed to represent Lawrence’s estate

knowing that his father would be serving as the estate’s personal representative, and he

never disclosed the fee agreement to Marshall, the sole heir to the estate. Moreover, the fee

Hickman received was unreasonable under the circumstances. See Wright ex rel. Wright v.

Wright, 337 S.W.3d 166, 177 (Tenn. 2011) (explaining that the reasonableness of an

attorney’s fee “must depend upon the particular circumstances of the individual case”

(quoting White v. McBride, 937 S.W.2d 796, 800 (Tenn. 1996))); Tenn. Sup. Ct. R. 8, RPC

1.5(a)(1)–(10) (listing factors to consider in determining whether a fee is reasonable).

Hickman calculated the fee by improperly inflating the gross value of the probate estate to

include real property that passed directly to devisees. He also failed to explain why the

circumstances of this case justified a fee that so far exceeded what he would have received

if billing his usual hourly rate. Finally, Hickman obtained the fee only by falsely

representing to the probate court that Marshall had approved the disbursement, and he

sought to keep the fee by falsely representing to the probate court that Marshall had agreed

to the arrangement.

The hearing panel also considered all of the correct aggravating and mitigating

factors. Three aggravating factors counsel in favor of a more severe punishment:

Hickman’s dishonest or selfish motive, his refusal to acknowledge the wrongful nature of

his conduct, and his substantial experience in the practice of law. The hearing panel

correctly considered as a mitigating factor that Hickman had no previous disciplinary

record.

Hickman contends that four other mitigating factors counsel leniency. We disagree.

Hickman claims that he exhibited remorse, ABA Standard 9.32(1), but the record

establishes at most that Hickman regretted agreeing to represent the estate in the first place,

not that he believed he had done something wrong by collecting the $12,000 fee. Hickman

claims that he has a “good reputation in the community.” ABA Standard 9.32(g). Other

than his own say-so, the only evidence Hickman offers to prove his good reputation is the

assertion in his brief that Retired Chief Justice Gary R. Wade has agreed to serve as his

practice monitor. But there is nothing in the record to support that assertion. Hickman

claims that he cooperated with the Board during the disciplinary process and engaged in

full and free disclosure, ABA Standard 9.32(e), but the record tells a different story. The

Board’s disciplinary counsel had great difficulty eliciting responsive answers from

Hickman during the hearing. Finally, Hickman claims that he made a “timely good faith

effort to make restitution.” ABA Standard 9.32(d). We cannot agree. To be sure, Hickman

eventually paid more than $32,000 to settle the judgment against his father. Yet he did so

only after the probate court ordered his father to pay that amount, and only after initially

appealing the probate court’s judgment. Given those circumstances, Hickman’s ultimate

payment of the judgment seems to have been a pragmatic decision that the amount at issue

was not worth the effort to appeal, not a timely good-faith effort to make restitution.

- 10 -

Under our Rules, the period of suspension for an attorney must be more than thirty

days but less than ten years. Tenn. Sup. Ct. R. 9, § 12.2(a)(2). ABA Standard 2.3 provides

that the period of suspension should fall somewhere between six months and three years.

As three aggravating factors cut against Hickman and only one mitigating factor counsels

leniency, a one-year period of suspension, which is near the middle of the baseline range,

appears to be an appropriate punishment for Hickman’s misconduct.

Comparison to Similar Cases

The Board urges us to increase Hickman’s suspension to three years. It contends

that this case presents facts similar to Walker and Justice. We do not find those cases

analogous.

In Walker, we affirmed a three-year suspension, with two years active and one year

on probation under the supervision of a practice monitor. 638 S.W.3d at 135–36. Walker

made false representations to the chancery court and opposing counsel during a tax-sale

redemption proceeding, violated an injunction issued in those proceedings resulting in a

judgment of criminal contempt, and made false representations in a pro hac vice application

filed in a different matter. Id. at 130–35. The hearing panel found that Walker had violated

seven different Rules of Professional Conduct: 3.1 (Meritorious Claims and Contentions),

3.3 (Candor Toward the Tribunal), 3.4 (Fairness to Opposing Party and Counsel), 4.1

(Truthfulness in Statements to Others), 8.4(a) (Violating or Attempting to Violate the

RPCs), 8.4(c) (Dishonesty, Fraud, Deceit, or Misrepresentation), and 8.4(d) (Conduct

Prejudicial to the Administration of Justice). Id. at 128–29.

Hickman’s misconduct does not rise to the same level as Walker’s. To be sure,

Hickman and Walker both made false representations to a judicial tribunal. Unlike Walker,

however, Hickman did not violate any court orders and instead repeatedly urged his father

to comply with the probate court’s order by filing an inventory and accounting. Nor does

Hickman have any record of disciplinary violations in other proceedings. Walker violated

seven Rules of Professional Conduct compared to Hickman’s three. Thus, while

undoubtedly deserving of punishment, Hickman’s conduct is not as egregious as Walker’s

and his punishment therefore should not be as severe.

In Justice, this Court affirmed a disbarment. 577 S.W.3d at 933. Justice plagiarized

numerous billing entries from a paralegal who was working for him and presented them as

his own on the fee statement he filed with a federal district court. Id. at 911, 913–17. He

also gave false testimony about the fee statement in court. Id. at 911. The hearing panel

found that Justice violated Rules of Professional Conduct 1.5(a) (Fees), 3.4(b) (Fairness to

Opposing Party and Counsel), 8.4(a) (Violating or Attempting to Violate the RPCs), and

8.4(c) (Dishonesty, Fraud, Deceit, or Misrepresentation), and twice violated Rule 3.3(a)(1)

(Candor Toward the Tribunal). Id. at 921–22. This Court found that six aggravating factors

- 11 -

and only two mitigating factors applied. Id. at 932. Considering “the imbalance of

aggravating and mitigating factors, and the nature of Mr. Justice’s misconduct, which

evidenced his utter disregard for the fundamental obligation of lawyers to be truthful and

honest officers of the court,” the Court concluded that disbarment was the appropriate

sanction. Id.

Although the Board acknowledges that Hickman’s conduct does not “involve the

same level of planning as [Justice’s] deceitful scheme,” it contends that Hickman “clearly

deceived” the probate court when he filed the motion to close the estate. We think

Hickman’s misconduct is significantly less serious than Justice’s. Hickman’s filings in the

probate court contained false representations, but he did not commit forgery, give false

testimony, or engage in any other misconduct that, together with his false representations,

would have demonstrated the sort of “utter disregard” for the truth at issue in Justice. Id.

at 932. Moreover, Hickman has only three aggravating factors compared to Justice’s six.

Id.

Hickman, meanwhile, points to our decision in Nevin in urging us to reduce his

suspension to only six months. There, we upheld Nevin’s six-month suspension for

violating five rules in his representation of three separate clients. Nevin, 271 S.W.3d at

650–51, 655.7

In the first matter, Nevin served as a conservator for an elderly woman in a nursing

home. See id. at 651. He failed to comply with a court order requiring him to sell his client’s

house and land. Id. He also used his client’s funds to buy two six-month certificates of

deposit, even though the probate court’s property-management plan indicated that his client

would need the funds for living expenses before the certificates matured. Id. When his

client’s funds became insufficient to pay living expenses, Nevin transferred money from

his client trust account, which included funds belonging to other clients, to the

conservatorship account. Id. He testified that he believed he was acting in his client’s best

interest because liquidating the certificates too early would have resulted in a penalty, and

he did not believe any harm would come to his other clients because the client trust account

still had “a sufficient balance to meet any obligations.” Id. Additional infractions included

selling his client’s land, stocks, and bonds without court approval and comingling his

client’s funds with monies in his client trust account without recording the transactions. Id.

at 651–52. Nevin ultimately owed his client $25,000. Id. at 655.

In the second matter, Nevin served as personal representative for a woman’s estate.

Id. at 652. He significantly underrepresented estate assets in an inventory he filed with the

probate court and nearly doubled his hourly rate for the work he performed. Id. He

7

The Code of Professional Responsibility governed Nevin’s case because Nevin’s actions occurred

prior to March 1, 2003, when the Rules of Professional Conduct first took effect. Nevin, 271 S.W.3d at 653

n.4.

- 12 -

attempted to blame his secretary for the inventory error even though he reviewed it himself

before filing. Id. To his credit, he filed an amended inventory within two weeks of learning

of the error. Id.

In a third matter, Nevin mismanaged guardianship funds for a four-year-old child

who had received a medical malpractice settlement. Id. at 652–53. With court

authorization, Nevin purchased a home for the child and his mother, but improperly put the

title in the child’s name without indicating that Nevin had purchased the home as guardian

for the child. Id. at 653. The deed provided that tax bills should be sent to the child, and

with no procedure in place to ensure that Nevin would eventually receive the bills, the

property taxes went unpaid. Id. This failure to pay resulted in the tax sale of the property.

Id. Also, despite learning that the child’s mother was renting the house to a third party,

Nevin did nothing to ensure that the rental income went to the child. Id.

The hearing panel determined that Nevin had violated five distinct provisions of the

then-governing Code of Professional Responsibility and had violated two of those

provisions three times each. Id. at 653–54. It also found five aggravating circumstances

and two mitigating circumstances. Id. at 656–57. The hearing panel imposed a suspension

of six months, and this Court affirmed. Id. at 658–59.

The facts in Nevin’s case are not on all fours with those here, but there are strong

similarities. Hickman charged the estate an unreasonably excessive fee, far in excess of his

usual hourly fee, just as Nevin did in the second matter. Further, like Nevin in the first and

second matters, Hickman made false statements to the probate court. In some respects,

Hickman’s conduct was less serious than Nevin’s because he did not comingle funds,

mismanage client property, or engage in a pattern of misconduct. In others, however, it was

more serious. In Nevin, we determined that Nevin “knew or should have known that his

actions were improper and potentially harmful” and that it was fair to infer that his conduct

was “grossly negligent, if not reckless.” Id. at 658 (emphasis added). Here, by contrast, the

hearing panel found that Hickman was “knowingly deceptive in failing to disclose the fee

arrangement and the amount of fees he received for his legal services.”

Our order proposing to increase Hickman’s punishment cited our decision in Beier,

which involved a two-year suspension, as a potentially similar case. 610 S.W.3d at 430.

The Board contends that the facts in Beier are “closely analogous” to those presented here.

Hickman disagrees, noting several differences that make a lesser sanction appropriate in

this case.

We agree with the Board that Beier presents similar circumstances, but we also

agree with Hickman that there are differences that call for a slightly more lenient

punishment here. The disciplinary proceedings in Beier arose from misconduct in two

separate matters. Id. The first matter was a child-custody dispute. Id. at 431. Beier’s client,

a divorced father, sought to modify the custody agreement for his daughter. Id. Beier

- 13 -

prepared affidavits for both his client and the client’s mother. Id. The client signed his, but

his mother did not sign hers. Id. Rather than obtain her signature, however, Beier forged

the signature and notarized the affidavit himself. Id. He then filed the document in court

without advising either the judge or opposing counsel that he had signed the document. Id.

His actions were discovered when opposing counsel deposed the client’s mother and asked

if the signature was hers. Id. When she failed to answer, Beier interjected, saying that he

had “subscribed her signature.” Id. The client’s mother agreed, and Beier later filed a

re-verified affidavit, which the client’s mother actually signed, making the same

statements. Id. After opposing counsel filed a motion with the court alleging misconduct

with respect to the affidavit and asking the court to impose sanctions, Beier self-reported

to the Board. Id.

In the second matter, Beier’s client asked Beier to represent his deceased aunt’s

estate. Id. Beier knew that the client was disabled because of a nervous condition and

required assistance in handling his affairs. Id. at 431–32, 444. Beier proposed to the client

that he pay 33.3% of the “gross estate” as a contingency fee, and the client agreed to this

arrangement. Id. at 432. Although the client advised Beier that he had some “half-cousins”

who were beneficiaries of the estate by operation of law, Beier failed to contact them when

he opened the estate and alleged in his petition that his client was the sole beneficiary. Id.

He also failed to include the beneficiaries even when their mother contacted him after

seeing the estate’s notice to creditors. Id. Instead, eleven months later, Beier filed a petition

to close the estate, in which he reiterated that his client was the sole beneficiary of the estate

and asserted that he wanted to close the estate without a detailed accounting. Id. The

chancery court relied on these representations and closed the estate. Id.

In calculating his final fee, Beier included in the value of the gross estate two parcels

of real property that were never part of the estate. Id. Beier’s fee of $78,614 was not subject

to judicial approval because the client had purportedly waived his right to a detailed

accounting. Id.

The client eventually learned that his half-cousins were entitled to a portion of his

aunt’s estate and hired new counsel, who petitioned to reopen the estate. Id. When the new

counsel contacted Beier about reopening the estate, Beier reimbursed the estate his entire

fee, plus interest. Id. Beier again self-reported his misconduct to the Board, and one of the

cousins also complained to the Board. Id. at 432–33.

The hearing panel found that Beier violated Rules of Professional Conduct 3.3(a)(1)

(Candor Toward the Tribunal) and 8.4(c) (Dishonesty, Fraud, Deceit, or Misrepresentation)

in the matter concerning the forged affidavit. Id. at 434. In the estate matter, the hearing

panel found that he violated Rule 1.5(a) (Fees) by charging an unreasonable fee and by

failing to communicate clearly with the client about the method for determining and

remitting the fee. Id. The hearing panel further found that Beier violated Rule 3.3(a)(1) by

stating that his client was the sole heir in his petition; Rule 3.3(a)(3) by failing to inform

- 14 -

the court of the other heirs; Rule 8.4(c) by taking advantage of his client’s disability to

charge and collect an unreasonable fee; Rule 8.4(c) by failing to include the cousins in the

administration of the estate so that he could charge his client an unreasonable fee; and Rule

8.4(a) by violating the other rules. Id. The hearing panel identified five aggravating factors:

Beier’s “dishonest or selfish motive” in both matters, the multiple offenses, his refusal to

acknowledge the wrongfulness of his conduct, his estate client’s “vulnerability as a

victim,” and his substantial experience in the practice of law, having practiced for “over

forty years, including time as a juvenile and municipal judge.” Id. at 435. The hearing panel

found no mitigating factors. Id. It imposed a two-year suspension with three months served

as an active suspension and the remainder on probation. Id. The Board appealed, and the

trial court ordered the entire two-year suspension served as an active suspension. Id. Beier

appealed to this Court. Id.

This Court concluded that substantial and material evidence supported the hearing

panel’s finding that Beier violated the Rules of Professional Conduct. Id. at 438–44. With

respect to punishment, we agreed with the hearing panel’s application of ABA Standards

5.13, 6.12, and 7.2, which identified reprimand and suspension as the presumptive

sanctions for Beier’s misconduct in the affidavit matter. Id. at 445. But we explained that

ABA Standard 7.1, which set the baseline sanction as disbarment, also had to be considered

for the more serious violations stemming from Beier’s misconduct in the estate matter. Id.

We found Beier’s misconduct distinguishable from that of the attorney in Justice

because Beier did not engage in “a pattern of misconduct.” See id. at 449. We explained

that disbarment, the sanction imposed in Justice, “is typically reserved for cases that

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

by Mr. Beier.” Id. We instead found that Beier’s misconduct more closely resembled two

other cases that imposed two-year suspensions:

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.

- 15 -

Beier, 610 S.W.3d at 449. Although Beier’s conduct in the estate matter “did not include

actual misappropriation of client funds, as in Milligan,” we viewed “the circumstances

under which Beier obtained an unreasonable fee” from his client in the estate matter as

“equivalent.” Id. We emphasized that Beier “took advantage of [his client] as a vulnerable

victim, misrepresented to the probate court that [his client] was [his aunt’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.” Id. We agreed with the hearing panel that there were five aggravating factors and no

mitigating factors and therefore affirmed the two-year suspension, all to be served as active

suspension. Id.

While Hickman’s conduct bears similarity to Beier’s conduct in the estate matter,

several differences between Hickman’s circumstances and those present in Beier persuade

us that a lesser sanction is appropriate here. First, Hickman’s misconduct was limited to a

single proceeding. Beier, by contrast, made false representations in two separate

proceedings. Second, even comparing Hickman’s conduct with that of Beier’s in the estate

matter, Hickman’s misconduct was less serious. While both Hickman and Beier exacted

an unreasonable fee from the estate and failed to provide an accounting to avoid judicial

scrutiny of the fee, Hickman did not take advantage of a vulnerable victim or engage in

additional deceitful conduct unrelated to the fee. Third, Hickman has two fewer

aggravating factors than Beier. And while Beier had no mitigating factors, Hickman has

one.

Yet Hickman’s misconduct is sufficiently similar to Beier’s to warrant an increase

in the length of Hickman’s period of active suspension. The hearing panel required only

ninety days of Hickman’s one-year suspension to be served on active suspension. The

differences between the circumstances of this case and Beier do not justify such a

significant disparity in the length of the active suspension. Accordingly, we increase

Hickman’s period of active suspension from ninety days to six months.

Indefinite Language in the Judgment

There is one final issue to consider. The hearing panel’s judgment required Hickman

to serve “no less than” ninety days active suspension. The judgment left open the possibility

that the active suspension could be longer—and the period of probation accordingly

shorter—if Hickman failed to engage a practice monitor within ninety days. The judgment

also provided that, if Hickman failed to comply with any condition of probation, the

suspension would automatically “rever[t] to active suspension for the remainder of the

suspension period.”

The judgment was flawed in these two respects. Tennessee Supreme Court Rule 9,

section 14.1, provides that the “imposition of a suspension for a fixed period . . . may be

deferred in conjunction with a fixed period of probation.” (emphasis added). The period of

- 16 -

probation the hearing panel imposed was not fixed. If Hickman failed to engage a practice

monitor within ninety days, his active suspension would continue, cutting into his

probationary period.8 Rather than leave Hickman’s period of probation open ended, the

hearing panel should have ordered a “fixed period of probation” as section 14.1 instructs.

The hearing panel was mistaken that a violation of the conditions of probation would

result in “reversion to active suspension.” Tennessee Supreme Court Rule 9, section 14.2

outlines the procedure to be followed when an attorney violates a condition of probation.

That procedure includes disciplinary counsel filing a petition to revoke probation, notice

to the attorney, and an opportunity for the attorney to appear before the hearing panel.

Tenn. Sup. Ct. R. 9, § 14.2. Contrary to the hearing panel’s view, the period of probation

does not automatically revert to active suspension.

IV. Conclusion

We have closely reviewed the record “with a view to attaining uniformity of

punishment throughout the State and appropriateness of punishment under the

circumstances.” Id. § 15.4(b). After considering the nature of Hickman’s conduct,

applicable ABA Standards, the balance of aggravating and mitigating factors, and cases

involving comparable circumstances, we conclude that the judgment of the hearing panel

should be modified to impose a one-year suspension, with six months to be served as active

suspension. We clarify that the probation period should be fixed rather than indefinite. We

affirm all other conditions of probation imposed by the hearing panel but further clarify

that violation of one of those conditions does not automatically result in reversion of the

period of probation to active suspension. Rather, a violation would trigger the procedure

outlined in Tennessee Supreme Court Rule 9, section 14.2. We also order Hickman to

comply in all respects with Tennessee Supreme Court Rule 9, especially the obligations

and responsibilities of suspended attorneys. Costs of this appeal are taxed to Hickman, for

which execution may issue if necessary.

_____________________________

SARAH K. CAMPBELL, JUSTICE

8

When the Board requires an attorney to engage a practice monitor, the attorney must provide the

Board with a list of three proposed monitors within fifteen days of entry of the judgment. See Tenn. Sup.

Ct. R. 9, § 12.9(c). Given this timeline, Hickman’s practice monitor almost certainly would have been in

place before the end of his period of active suspension.

- 17 -