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

01/25/2024

IN THE SUPREME COURT OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs September 6, 2023

THOMAS FLEMING MABRY v. THE BOARD OF PROFESSIONAL

RESPONSIBILITY OF THE TENNESSEE SUPREME COURT

Direct Appeal from the Chancery Court

Chancery Court for Knox County

No. 202551-2 William B. Acree, Senior Judge

___________________________________

No. E2022-00945-SC-R3-BP

___________________________________

This is an appeal in a lawyer-disciplinary proceeding involving Tennessee attorney Thomas

Fleming Mabry. In March 2019, the Board of Professional Responsibility filed a petition

for discipline against Mr. Mabry charging him with numerous infractions based on

complaints from several different parties. After the onset of the COVID-19 pandemic, Mr.

Mabry refused to participate in depositions, either in-person, telephonically, or over

videoconference. At his final disciplinary hearing conducted via Zoom, Mr. Mabry briefly

connected, by audio only, and objected to holding the hearing virtually and to the Board

introducing depositions of unavailable witnesses. He requested an indefinite continuance.

He ended the connection. The hearing continued without Mr. Mabry’s participation, and

the Hearing Panel found him in violation of multiple Tennessee Rules of Professional

Conduct. The panel permanently disbarred Mr. Mabry and ordered him to make restitution.

Mr. Mabry appealed to the chancery court claiming several procedural violations, but the

chancery court found no merit in his arguments. Mr. Mabry has now filed a direct appeal

to this Court, raising the same procedural challenges. Upon review, we agree with the

judgments of the Hearing Panel and chancery court—disbarment is the appropriate

sanction for Mr. Mabry’s actions.

Tenn. Sup. Ct. R. 9, § 33.1(d); Judgment of the Chancery Court Affirmed.

ROGER A. PAGE, J., delivered the opinion of the court, in which HOLLY KIRBY, C.J., and

JEFFREY S. BIVINS, SARAH K. CAMPBELL, and DWIGHT E. TARWATER, JJ., joined.

Thomas Fleming Mabry, Asheville, NC, pro se.

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

Responsibility.

OPINION

I. FACTS & PROCEDURAL BACKGROUND

In March 2019, the Board of Professional Responsibility (“the Board”) filed a

petition for discipline against Thomas Fleming Mabry.1 The incidents at issue in the present

disciplinary matter involve four clients. In October 2014, Mr. Mabry prepared a will for a

now deceased North Carolina resident, Kenneth McKeon. Mr. Mabry was not, and

apparently has never been, licensed to practice law in North Carolina. Mr. McKeon sold a

property in exchange for a promissory note in the amount of $28,000. The buyer made

payments directly to Mr. McKeon until his death in November 2014. Mr. Mabry wrote a

check for $344.50 to the county clerk as payment for court costs related to probate of the

estate. The check returned unpaid because it was drawn on a closed IOLTA account. The

proceeds of the promissory note were bequeathed to Linda Russell. Mr. Mabry directed the

buyer to send all her payments to his office so he could send the payments to Ms. Russell.

Mr. Mabry received the payments but did not forward them to Ms. Russell. From May

2015 to August 2016, the buyer sent payments of $500 per month to Mr. Mabry totaling

$8,000. The buyer then began sending the payments directly to Ms. Russell.

Around January and November 2015, while suspended in Tennessee and not

licensed in North Carolina, Mr. Mabry held himself out as a licensed attorney to another

North Carolina resident, Ronda Ingraham. Ms. Ingraham retained Mr. Mabry to prepare

her will and represent her in the termination of a domestic partnership. He prepared legal

documents and negotiated with opposing counsel. Ms. Ingraham paid a total of $5,175 in

legal fees. He did not refund any of the money.

Mr. Mabry also billed another client for services he did not provide and failed to

deposit funds into his IOLTA account. He continued representing that particular client even

1

Mr. Mabry was licensed in Tennessee in 1980. Mr. Mabry’s history with the Board goes back to

1991, and he has previously been a litigant in this Court. He received public censures in 1991 and 1993;

private informal admonitions in 2001, 2002, and 2011; a private reprimand in 2002; an eleven-month and

twenty-nine-day suspension in 2008; a forty-five-day suspension in 2014; and a two-year suspension in

2019. The 2014 matter was litigated in this Court. See Mabry v. Bd. of Pro. Resp., 458 S.W.3d 900 (Tenn.

2014). In 2015, Mr. Mabry filed a notice of disability with this court, pursuant to Tennessee Supreme Court

Rule 9, section 27.4(a), in which he contended that he was suffering from a mental illness that prevented

him from responding to or defending against the disciplinary proceeding pending against him. Mabry v. Bd.

of Pro. Resp., 563 S.W.3d 192, 193 (Tenn. 2018). A letter from a licensed clinical social worker stated that

“Mr. Mabry expressed during his mental health assessment [] that . . . ‘[his] suicidal thoughts only

occur[red] when [he felt] pressured by complaints filed against him as he [was] attempting to close his law

practice.’” Id. at 193. The hearing panel found that Mr. Mabry was not incapacitated because there “was no

evidence in the record . . . or anywhere else, ‘that [he] suffers from a mental infirmity rendering him unable

to respond [to] or defend against the pending disciplinary proceeding.’” Id. at 194 (first alteration in

original). The chancery court and this Court both affirmed the hearing panel’s decision. Id. at 194, 195.

-2-

after he was suspended and did not inform the judge of his suspension for several months.

He represented other clients in a foreclosure sale after the clients sold their property and

the buyer defaulted on the loan. The IRS recorded a lien on the property. His clients did

not discover the IRS lien until they attempted to sell the property again. He continued

billing the clients during his period of suspension.

In January 2020, Board Disciplinary Counsel Travis M. Lampley sent Mr. Mabry

an email stating that he would be filing a motion to continue a scheduled hearing for later

that month because a witness would be unavailable on the scheduled date and a continuance

would give the parties more time to attempt to resolve the issues out of court. Mr. Mabry

responded, stating that he had “[n]o objection to this Motion, so long as no more witnesses

nor discovery be allowed to be filed and/or presented at the future hearing other than those

witnesses and that discovery which has been previously submitted.” According to the

record, Mr. Lampley never responded to Mr. Mabry’s email.2 Mr. Lampley filed the motion

to continue, and the next day the Hearing Panel held a telephonic status conference, at

which they heard arguments from Mr. Lampley and Mr. Mabry. The Panel granted the

motion and reset the hearing for March 11, 2020. The conditions Mr. Mabry requested

were not included in the order. The hearing was again rescheduled from March 11, 2020,

to April 27 and 28, 2020.

By this time, the pandemic necessitated “stay-at-home” orders.3 The Tennessee

Supreme Court Order Suspending In-Person Court Proceedings was extended over the

following year, which allowed courts to conduct hearings and trials over online

videoconferencing platforms. Order Suspending In-Person Court Proceedings, In re:

COVID-19 Pandemic, No. ADM2020-00428 (Tenn. Mar. 13, 2020) (declaring a state of

emergency and urging “all judges and court clerks . . . to limit in-person courtroom contact

as much as possible by utilizing available technologies, including alternative means of

filing, teleconferencing, email, and video conferencing”). In April 2020, the Hearing Panel

ruled, over Mr. Mabry’s objection, that the Board could present the testimony of

unavailable witnesses by deposition as long as the Board complied with Tennessee Rule of

Civil Procedure 32.01(3).4 The Hearing Panel agreed to address the matter “anew” in the

2

Mr. Lampley filed an affidavit stating that he “did not respond to nor accept the conditions stated

by Mr. Mabry in his email of January 27, 2020.”

3

CDC Museum COVID-19 Timeline, Centers for Disease Control and Prevention,

https://www.cdc.gov/museum/timeline/covid19.html (last visited Nov. 15, 2023).

4

Rule 32.01(3) states in relevant part: “The deposition of a witness, whether or not a party, may be

used by any party for any purpose if the court finds that the witness is ‘unavailable’ as defined by Tennessee

Rule of Evidence 804(a).”

-3-

event that Mr. Mabry presented evidence of an agreement between himself and Mr.

Lampley by an appropriate motion.

In May 2020, Disciplinary Counsel Joseph K. Byrd began representing the Board,

replacing Mr. Lampley. Mr. Byrd filed a motion for leave to depose complainants Ronda

Ingraham and Linda Russell because they lived more than 100 miles from the hearing,

which was to take place in Knoxville. The Board sought to depose Ms. Ingraham by phone

because she resided in Maryland. The Board asked for leave to travel to Georgia to depose

Ms. Russell in person. Mr. Mabry objected, citing the alleged agreement between himself

and Mr. Lampley. In his brief on appeal, Mr. Mabry claimed that he “never received the

Notice of the taking of deposition of Linda Russell by mail and the emailed Notice of

Deposition . . . went to spam. . . .” He also filed a motion for a continuance, stating that he

was sixty-five years old, at higher risk for COVID-19, and could not and would not “enter

the home or [] any physical proximity of any witness who may or may not have been tested

for COVID-19.” He stated that requiring him to participate would violate the Tennessee

Supreme Court’s order regarding the pandemic, which charged judges with the

“responsibility of ensuring that core constitutional functions and rights are protected.”5

The Board objected to Mr. Mabry’s request for an indefinite continuance, arguing

that this reliance on the Court’s May 2020 order regarding the pandemic was “misplaced”

because the order actually encouraged courts to use remote-conferencing technology to

prevent in-person contact. In addition, the Board pointed out that Mr. Lampley never

responded to Mr. Mabry’s conditions, that Mr. Lampley submitted an affidavit denying

that he reached an agreement with Mr. Mabry, that the Hearing Panel had already

authorized the Board to present testimony of unavailable witnesses by deposition, and that

Mr. Mabry failed to timely object6 to the Second Scheduling Order. By an order filed on

August 11, 2020, the Hearing Panel continued the hearing until September 29, 2020, to be

conducted telephonically, and it instructed the Board to provide Mr. Mabry with a means

to participate in the depositions by Zoom, telephone, or some other platform if he did not

wish to participate in person.

Later in August 2020, Mr. Byrd filed two notices of deposition stating that he would

be deposing Ms. Ingraham by telephone and Ms. Russell in person in Atlanta. Mr. Mabry

responded that he would not participate in the depositions and would “not be available for

5

He also asserted that there was “no emergency whatsoever requiring this matter to go to hearing

in late July, 2020,” that he “should not be required to remain for two (2) days in the presence of individuals

who may or may not have been exposed to the COVID-19 virus during the ongoing pandemic,” and that he

would be “prejudiced by any inability to confront and cross-examine live witnesses.”

6

According to the Board, Mr. Mabry filed his written objection “after the Board filed its Motion

for Leave to Take Depositions of Unavailable Witnesses for Use at Trial filed on June 5, 2020, five months

after the Second Scheduling Order was entered.” (Emphasis removed).

-4-

any deposition or other matter until the Hearing Panel telephone conference on September

29, 2020,” and would object to admission of the deposition notices. He filed an objection

and a motion to set a scheduling conference, claiming to be unavailable “for the remainder

of August [and] much of the month of September 2020” due to “previous work

commitments scheduled for the time and date of the depositions and into the future.” He

did not provide specific information concerning those commitments, and he asserted that

the emailed notice was “an unreasonable request to take discovery depositions in

contravention of the letter, intent and spirit of the January, 2020 agreement” between

himself and Mr. Lampley. In an order filed August 25, 2020, the Hearing Panel ruled that

the Board’s actions were authorized by the August 10 order. On August 25, the Hearing

Panel overruled Mr. Mabry’s objection and denied his motion for a scheduling conference.

Mr. Mabry did not participate in either deposition.

In November 2020, this Court issued an order extending the State of Emergency. In

an order specific to the Board, this Court suspended in-person proceedings through

February 28, 2021 and provided that “such proceedings shall be conducted during the

period of suspension by telephone, video, teleconferencing, or other means that do not

involve in-person contact.” Order Continuing Suspension of Board of Professional

Responsibility’s Proceedings and Extending Deadlines, In re: COVID-19 Pandemic, No.

ADM2020-00428 (Tenn. Oct. 27, 2020). However, the Court did provide a procedure for

parties to request exceptions and authorized hearing panels to rule on such requests “based

on the particular circumstances of th[e] matter.” Id. To request an exception, the order

provided that “[t]he petitioner shall provide justification for the necessity of conducting the

particular proceeding in an in-person format.” Id.

The final disciplinary hearing occurred in January 2021 via Zoom. Mr. Mabry

claims that he tried to connect twice unsuccessfully, and then connected to the hearing by

audio only. He made a statement objecting to holding the final hearing virtually and to the

Board’s plan to introduce depositions of unavailable witnesses for proof at the hearing. He

requested an indefinite continuance until in-person proceedings resumed. He said that

proceeding via Zoom was a deprivation of his due process right to cross-examine witnesses

live and in real time. He advised the Hearing Panel that he would not participate further in

the disciplinary hearing and ended the connection.7

7

His characterization of this was as follows:

The “Zoom” format failed, as the links provided for access to a live video hearing failed

twice . . . as no video hookup for [Mr. Mabry] was secured by [the Board], thus effectively

eliminating [Mr. Mabry’s] meaningful participation in the hearing. Appellant gave an

[o]pening [s]tatement and when it appeared that [the Board] could not or was not interested

in providing him full access to the hearing, he left the [h]earing. . . . All events leading to

the filing of [the Board’s] Disciplinary Petition occurred during the period of time that [Mr.

-5-

After his departure, the hearing proceeded. The Board introduced the transcripts of

Ms. Russell’s in-person deposition and Ms. Ingraham’s telephonic deposition, and it called

four additional witnesses to testify via Zoom. The Hearing Panel found that Mr. Mabry

violated Tennessee Supreme Court Rule 8, Rules of Professional Conduct 1.1

(Competence); 1.3 (Diligence); 1.4(a) (Communication); 1.5(a) (Fees); 1.15(c)

(Safekeeping Property); 1.16(d)(1), (2), (4), and (6) (Declining or Terminating

Representation); 5.5 (Unauthorized Practice of Law; Multijurisdictional Practice of Law);

and 8.4(a)–(c) and (g) (Misconduct). Regarding Mr. Mabry’s conduct in North Carolina,

where he was not licensed to practice law, the Hearing Panel found that he violated two

North Carolina General Statutes, sections 84-4 (discussing persons qualified to engage in

the practice of law) and 84-8 (finding any person engaged in the unauthorized practice of

law is guilty of a misdemeanor). The Hearing Panel also found him in violation of North

Carolina Rules of Professional Conduct 1.5(a) (Fees), 5.5(a) and (b)(2) (Unauthorized

Practice of Law; Multijurisdictional Practice of Law), and 8.4(a)–(c) (Misconduct).8 The

Panel identified disbarment as the presumptive baseline sanction under the ABA Standards

for Imposing Lawyer Sanctions, citing standards 4.11, 4.41(a)–(c), 4.51, 4.61, 5.11(a)–(b),

6.11, and 7.1. It applied seven aggravating factors: (1) prior disciplinary offenses, (2)

dishonest or selfish motive, (3) pattern of misconduct, (4) multiple offenses, (5) refusal to

acknowledge the wrongful nature of his conduct; (6) substantial experience in the practice

of law, and (7) indifference to making restitution. The panel permanently disbarred Mr.

Mabry and ordered him to make restitution totaling $20,819.

Mr. Mabry appealed to the chancery court, challenging only certain procedural

aspects of the disciplinary hearing as being “made upon unlawful procedure.” Tenn. Sup.

Ct. R. 9, § 33.1(b)(3). The procedural aspects he challenged were the handling of the

alleged agreement between himself and Mr. Lampley, the introduction of the depositions

as evidence, and the video format of the disciplinary hearing. The chancery court affirmed

the Hearing Panel’s decision in all respects, stating that any efforts by the Board to aid Mr.

Mabry were “unlikely” to “alleviate[] an ignorance that was willful.” Mr. Mabry now

appeals to this Court, raising the same procedural challenges.

Mabry] was suffering from a disability caused in significant part from stress due to the

numerous and continuous disciplinary complaints required to be defended.

(Emphasis added) (citations omitted). He closed his opening statements with: “and now I’m going

to go get my C[OVID-19] vaccine. You all have a good day and have a good hearing.”

8

See Tennessee Supreme Court Rule 8, RPC 8.5, which sets out the choice of law provisions for

attorney-disciplinary actions and provides that, in the exercise of the disciplinary authority of this

jurisdiction, the rules of professional conduct to be applied for conduct not related to a matter pending

before a tribunal are the rules of the jurisdiction in which the lawyer’s conduct occurred or had its

predominant effect, if the predominant effect is in a jurisdiction different from where the conduct occurred.

Here, some of Mr. Mabry’s conduct occurred in North Carolina and also had its predominant effect there.

-6-

II. STANDARD OF REVIEW

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

functions. In re Vogel, 482 S.W.3d 520, 530 (Tenn. 2016) (citing Long v. Bd. of Pro. Resp.,

435 S.W.3d 174, 178 (Tenn. 2014)). “As a part of our duty to regulate the practice of law

in this state, we have the ultimate disciplinary responsibility for violations of the rules

governing our profession.” Hughes v. Bd. of Pro. Resp., 259 S.W.3d 631, 640 (Tenn. 2008)

(citing Doe v. Bd. of Pro. Resp., 104 S.W.3d 465, 469–70 (Tenn. 2003)). We examine

disciplinary judgments pursuant to this Court’s “inherent power” and “essential and

fundamental right” to enforce the rules regulating the practice of law. Vogel, 482 S.W.3d

at 530 (quoting Hughes, 259 S.W.3d at 640). Our standard of review is the same as that of

the chancery court, generally giving deference to the Hearing Panel’s weighing of the

evidence. Reversing the Hearing Panel’s decision is only appropriate when the decision

fits one of the following requirements:

(1) [I]n 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 light of the entire record.

Tenn. Sup. Ct. R. 9, § 33.1(b); see also Long, 435 S.W.3d at 178.

III. ANALYSIS

As he did before the chancery court, Mr. Mabry again raises procedural issues on

appeal before this Court relating to the deposition testimony of certain unavailable

witnesses and the videoconference format of the final disciplinary hearing. After review,

we conclude his procedural challenges are without merit.

A. Depositions of Unavailable Witnesses

Specifically, Mr. Mabry continues to assert in this Court that the Board should not

have been permitted to depose two unavailable witnesses or offer their depositions as proof

at the hearing. His argument is primarily based on his assertion of the alleged agreement

with Mr. Lampley that no further depositions of unavailable witnesses would be taken if

Mr. Mabry would agree to the Board’s January 2020 motion for a continuance. Mr. Mabry

argues that the chancery court abused its discretion by affirming the Hearing Panel’s

rejection of his assertion of an agreement and the Hearing Panel’s decision to allow the

Board to introduce the depositions at the disciplinary hearing. The Board maintains that

the chancery court properly denied relief on this issue. We agree.

-7-

It is undisputed that the Hearing Panel’s order granting the Board’s motion to

continue did not mention or adopt the conditions proposed by Mr. Mabry. After reviewing

the record, we agree with the chancery court that there is simply no evidence of such an

agreement between Mr. Mabry and Mr. Lampley. The record merely reflects Mr. Mabry’s

attempt to solicit an agreement. His request and Mr. Lampley’s lack of response are not

evidence of an agreement. Rather, an agreement requires the “mutual assent” of involved

parties. See Sweeten v. Trade Envelopes, Inc., 938 S.W.2d 383, 386 (Tenn. 1996) (quoting

Higgins v. Oil, Chem. & Atomic Workers, 811 S.W.2d 875, 879 (Tenn. 1991) (A contract

“must result from a meeting of the minds of the parties in mutual assent to the terms.”);

McMahan v. McMahan, No. E2004-03032-COA-R3-CV, 2005 WL 3287475, at *5 (Tenn.

Ct. App. Dec. 5, 2005) (quoting 17 Am. Jur. 2d Contracts § 4 (1991)) (“[T]he existence of

a contract, the meeting of the minds, the intention to assume an obligation, and the

understanding are to be determined in case of doubt not alone from the words used, but

also the situation, acts, and the conduct of the parties, and the attendant circumstances.”);

Smith v. Murray, 311 S.W.2d 591, 595 (Tenn. 1958) (quoting 12 Am. Jur. 2d Contracts §

40) (“[G]enerally speaking, mere silence or failure to reject an offer when it is made does

not constitute an acceptance. Under some circumstances, however, silence and inaction

operate as an acceptance, as where, under the circumstances, an inference of assent is

warranted or at least where, under the circumstances, such an inference is required or is

necessary.””).

The second part of Mr. Mabry’s deposition-related argument concerns notice. He

asserts that, because the Board did not provide proper notice of the depositions, it should

not have been allowed to depose the witnesses or offer the depositions as proof at the

hearing. Mr. Mabry argues that Mr. Byrd’s notice of deposition was not in keeping with

the comity and professional courtesies that previously existed between Mr. Mabry and

disciplinary counsel, that Mr. Byrd should have attempted to set the depositions by

agreement, and that the notice was fatally flawed because it was served by email and failed

to comply strictly with the rules concerning service by email found in Tennessee Rule of

Civil Procedure 5.02(2).9 He points out, apparently for the first time before this Court,

9

Rule 5.02(2) provides as follows:

(a) Service on any attorney or on a party may also be made by emailing the person

the document in Adobe PDF to the recipient’s email address, which shall be promptly

furnished on request. The sender shall include language in the subject line designed to alert

the recipient that a document is being served under this rule.

(b) A sender who emails a document and is notified that it was not received must

promptly furnish a copy of the document to the person who did not receive it.

(c) A document transmitted by email shall be treated as a document that was mailed

for purposes of computation of time under Rule 6.

-8-

several technical violations of Rule 5.02 including that the email failed to identify the

number of pages in the document and the date and time of transmission, and the physical

address in the email was different from the address where the certificates were sent, among

other things. He also states that the Board failed to provide an affidavit indicating why the

witnesses were “unavailable for subpoena” or otherwise unavailable to testify.

Conversely, the Board argues that the Hearing Panel properly admitted the

depositions and that the chancery court did not err in so holding. The Board points out that

Mr. Mabry made only a general objection to the depositions, which was overruled, and he

did not identify any reasons for his alleged unavailability on the dates noticed for the

depositions.10 According to the Board, the chancery court properly held that the notices of

deposition Mr. Mabry received were not deficient as to content and timing and that they

satisfied due process.

When considering Mr. Mabry’s objection to the Hearing Panel’s decision to permit

the deposition proof, the chancery court explained that “[a]n attorney facing disciplinary

charges in Tennessee is undoubtedly entitled to notice.” Moncier v. Bd. of Pro. Resp., 406

S.W.3d 139, 156 (Tenn. 2013). “Strictly speaking,” wrote the chancery court, “notice in

this context refers to notice of the charges against the attorney, not specifically a

deposition.” See Mabry v. Bd. of Pro. Resp., 458 S.W.3d 900, 908 (Tenn. 2014) (stating

that “procedural due process . . . includes notice of the alleged misconduct.”) (emphasis

added). Notice as a concept “concerns notions of fundamental fairness, affording parties

the opportunity to be apprised when their interests are implicated in a given matter.” 58

Am. Jur. 2d Notice § 2. As the chancery court indicated, notice of depositions must be

“meaningful” “when a deposition is to be used as proof at trial” and “Mr. Mabry is entitled

to be ‘able to cross-examine the witnesses the Board called against him.’” Mabry, 458

S.W.3d at 908. The chancery court then aptly noted as follows:

Mr. Mabry once again does not specify the exact problem with using the

depositions at trial. There is no dispute between the parties that Ms. Ingraham

(d) For good cause shown, an attorney or self-represented party may obtain a court

order prohibiting service of documents on that person by electronic mail and requiring that

all documents be served under subsection (1) or (3).

10

The chancery court noted the following:

Mr. Mabry’s objection that he could not appear for a deposition for at least a month

is dubious at best, and a vague reference to “previous work commitments scheduled for the

time and date of the depositions and into the future” in Mr. Mabry’s motion is hardly

sufficient to render the notice provided inadequate. Accordingly, the [c]ourt finds Mr.

Mabry’s contention that he did not receive adequate notice . . . to be without merit.

(Citations omitted).

-9-

and Ms. Russell both resided more than 100 miles away from the place of the

final hearing. Nor is there any dispute that [the] Board both sought and

received orders from the [Hearing] Panel authorizing the depositions for

proof and, in the case of Ms. Ingraham, the deposition to be conducted

telephonically. In light of Mr. Mabry’s concerns related to the COVID-19

[p]andemic, the [Hearing] Panel required the Board to provide Mr. Mabry

with a means of appearing remotely for each deposition for proof. The Board

did so. . . . The mere fact that the [Hearing] Panel heard, weighed, and

rejected Mr. Mabry’s concerns is of course no procedural error but due

process itself—albeit with an unfavorable outcome [for Mr. Mabry].

We agree. In fact, it is arguable that Mr. Mabry’s objections to the validity of service

by email should be deemed waived because he did not include them with specificity in his

motions before the Hearing Panel or chancery court. See Waggoner v. Bd. of Pro. Resp.,

No. W2022-01294-SC-R3-BP, 2023 WL 4441951, at *3 n.12 (Tenn. July 11, 2023) (citing

Tenn. R. App. P. 13(b); State v. Bristol, 654 S.W.3d 917, 925 (Tenn. 2022)) (“[I]ssues

raised by parties that are unsupported by authority or citation to the record are waived.”).

Still, even if this Court found that the Board failed to strictly comply with Rule 5.02 in its

deposition notices, Mr. Mabry failed to show prejudice. It is apparent from the record that

Mr. Mabry received notice of the depositions. He responded that same day to the email

transmitting the notice with an email of his own saying that he would not be available for

any deposition until after the September 29, 2020 hearing. He also filed a motion that same

date objecting to the notice. We conclude that the Board complied with the Rules of Civil

Procedure for taking the depositions for proof, and the chancery court properly affirmed

the Hearing Panel’s decision to admit the depositions at the final disciplinary hearing.

B. The Final Hearing

Mr. Mabry reiterates his argument that holding the disciplinary hearing over Zoom

deprived him of his opportunity to be heard in a meaningful time and manner and that there

was no exigency requiring the Zoom hearing. He claims that his inability to confront and

cross examine live witnesses was prejudicial, especially since his license to practice law is

on the line. He claims that the Board did not secure a “video hookup” for him, which

“effectively eliminat[ed his] meaningful participation in the hearing.” He says that there

was “no [v]irtual [b]ailiff” to see why his video connection would not function and that no

one sought to assist him so he could fully participate in the hearing. As a result, he believes

this Court should set aside the Hearing Panel’s decision and order a new in-person hearing.

In denying his due process claims, the chancery court noted that Mr. Mabry offered

no authority for his argument that the Zoom hearing deprived him of a meaningful

opportunity to be heard. He also failed to explicitly argue the exact deficiency with the

Zoom hearing other than the Hearing Panel proceeding in his absence. See Brooks v. Bd.

- 10 -

of Pro. Resp., 578 S.W.3d 421, 431 (Lee, J., concurring in part and not joining in part).11

Still, the chancery court chose to address the argument on the merits and applied the

balancing test the United States Supreme Court adopted in Mathews v. Eldridge, 424 U.S.

319, 335 (1976) (The Court balanced “the private interest that will be affected by the

official action; [and] the risk of an erroneous deprivation of such interest through the

procedures used, and the probable value, if any, of additional or substitute procedural

safeguards,” against “the Government’s interest, including the function involved and the

fiscal and administrative burdens that the additional or substitute procedural requirement

would entail.”). The chancery court considered Mr. Mabry’s law license being at stake,

“the risk of an erroneous deprivation” of that interest through the use of a Zoom hearing,

and “the probable value . . . of additional or substitute procedural safeguards.” Those

considerations were balanced against “the Government’s interest, including the function

involved and the fiscal and administrative burdens” associated with “the additional or

substitute procedural requirement[s]” that Mr. Mabry proposed. See id. at 335.

Ultimately, the chancery court found that the Mathews factors weighed

“overwhelmingly against Mr. Mabry’s preferred procedure.” The chancery court reasoned

that because “Mr. Mabry was given more than a month’s notice that the hearing would be

conducted via Zoom[,] . . . [i]t [was] inconceivable that Mr. Mabry could not have figured

out some solution to his difficulties with Zoom in that time.” He was also given the option

to simply call into the hearing rather than use video. “But rather than working towards any

sort of solution, Mr. Mabry simply chose to end his participation. The risk of erroneous

deprivation in this instance is therefore entirely a consequence of his own actions.” We

agree.

In Moncier, this Court considered Tennessee’s attorney disciplinary procedures in

light of the constitutional requirement of procedural due process. 406 S.W.3d at 156. We

explained that “Tennessee’s disciplinary process affords lawyers notice and an opportunity

to be heard, as well as other protections, including the right to have counsel present, the

opportunity to cross examine witnesses, and the right to present evidence.” Id. (citing Tenn.

Sup. Ct. R. 9, §§ 8.1 to 8.4). Since the pandemic, many courts have analyzed the fairness

of judicial proceedings conducted remotely. Compare Adoption of Patty, 186 N.E.3d 184,

198–200 (Mass. 2022) (holding that the trial judge made no effort to remedy the technical

difficulties experienced by several participants, creating obstacles for the self-represented

mother and preventing her from participating meaningfully in the hearing to terminate her

11

In her concurrence, Justice Lee noted the following:

In short, [the litigant] failed to adequately make a procedural due process claim; at

most, he only hinted at such a claim. That should have ended the discussion. . . . A party,

not the Court, should identify the issues and provide adequate legal authority and argument.

Tenn. R. App. P. 13(b). When a party fails to do so, it is not the Court’s role to step in and

fill in the gaps.

- 11 -

fundamental parenting rights), and Kinder Morgan Prod. Co. v. Scurry Cnty. Appraisal

Dist., 637 S.W.3d 893, 916-17 (Tex. App. 2021) (holding that the “technical difficulties”

experienced “were beyond [the plaintiff’s] control and prevented its lead counsel from

accomplishing what he had been hired and expected to do–to effectively participate and

represent his client’s interests at trial”), with In re Trinity S., No. E2021-00098-COA-R3-

PT, 2021 WL 3486188, at *4 (Tenn. Ct. App. Aug. 9, 2021) (upholding the use of

videoconferencing despite a claim that the procedure violated the parent’s constitutional

right to procedural due process where the mother claimed the trial should have been

continued because in-person proceedings returned only five weeks later).

Simply put, Mr. Mabry’s disciplinary hearing did not involve any type of unique

problem or special circumstance that would lead this Court to be concerned that he was not

given sufficient notice or an opportunity to be heard. There is no evidence in the record

that Mr. Mabry had an unstable connection or other insurmountable technical difficulties.

Nor is there evidence that he was incapable of participating in his hearing. Mr. Mabry noted

in his brief that “Tennessee actually had” a “[g]uide for Zoom” that was posted to the

tncourts.gov website in April 2020.12 Mr. Mabry quotes the following section of the guide:

“To host a hearing using Zoom, you will need web access and a web camera. We

recommend using a desktop or laptop computer, but Zoom is also compatible with a tablet

or cell phone.” He also cites to the Board’s Polices and Rules requiring the Hearing Panel

to “take such steps as appropriate to ensure the maintenance of order, decorum, judicial

temperament and avoidance of ex parte communications” and to “perform their duties

impartially, competently and diligently and in a manner to uphold and promote

independence, integrity and impartiality.” Bd. of Pro. Resp. of the Tenn. Sup. Ct., Policies

and Rules of the Bd. of Pro. Resp. of the Tenn. Sup. Ct., (Mar. 25, 2020)

https://docs.tbpr.org/pub/board-policies-3-25-20.pdf. It appears that Mr. Mabry was under

the unrealistic expectation that the Board and/or disciplinary counsel were required to set

up his videoconferencing device for participation in the hearing. No such requirement

exists.

Mr. Mabry never requested an exception to the suspension of in-person proceedings.

Instead, he requested an indefinite continuance. The Hearing Panel did not abuse its

discretion by denying the continuance, and the chancery court properly affirmed the

Hearing Panel’s decision to hold the hearings via Zoom. We further note that the Hearing

Panel found that Mr. Mabry committed many disciplinary infractions, and he does not

challenge these findings on appeal, choosing instead to attack the procedure. We are

unconvinced that a new, in-person hearing would have any impact on the outcome of his

disciplinary proceedings.

12

Indeed, the guide can be found on the Administrative Office of the Courts website. Admin. Off.

of the Cts., Online Ct. Using Zoom: Initial Setup & Use,

https://www.tncourts.gov/sites/default/files/docs/online_court_zoom_guide.pdf (last visited Dec. 20,

2023).

- 12 -

IV. CONCLUSION

For the foregoing reasons, we affirm the chancery court’s decision to uphold the

findings and sanction imposed by the Hearing Panel. The Hearing Panel did not err in its

findings, and we agree that disbarment is the appropriate sanction for Mr. Mabry’s actions.

Consequently, we conclude that Mr. Mabry is permanently disbarred from the practice of

law pursuant to Tennessee Supreme Court Rule 9, section 12.1. Mr. Mabry shall be

required to make restitution to the aggrieved parties pursuant to Rule 9, section 12.7. In the

event restitution is made by the Tennessee Lawyers’ Fund for Client Protection, Mr. Mabry

will be responsible for reimbursement of the same amount. Costs of this appeal are taxed

to Mr. Mabry.

_________________________________

ROGER A. PAGE, JUSTICE

- 13 -