Thursday, August 10, 2017

Tennessee Reprimands But Did It Cite The Proper Rule Violation?

A decision issued today is summarized on the web page of the Tennessee Supreme Court

The Tennessee Supreme Court has affirmed a public reprimand for Knoxville attorney Danny C. Garland, II, based on his professional misconduct. 
 
In 2014, the Tennessee Board of Professional Responsibility filed a petition for discipline against Mr. Garland. The petition alleged, in part, that while handling an adoption case, Mr. Garland failed to communicate appropriately with his clients, failed to exercise reasonable diligence in his representation, and committed professional misconduct. A hearing panel found that Mr. Garland had violated the Rules of Professional Conduct and recommended that he be publicly reprimanded. The hearing panel considered his misconduct in handling the adoption case, his prior disciplinary record, and his experience in the practice of law. Mr. Garland appealed to the Knox County Chancery Court, which affirmed the hearing panel’s decision. Mr. Garland appealed to the Supreme Court.
 
The Supreme Court affirmed the judgment of the trial court. In an opinion authored by Justice Sharon G. Lee, the Court held that Mr. Garland failed to keep his client reasonably informed about the status of the adoption case, failed to promptly comply with his client’s requests for information, and failed to act with diligence in his representation, thereby causing a lengthy delay in the resolution of the adoption. In particular, the Court found Mr. Garland’s firm policies, practices, and procedures for communicating with clients and monitoring case files to be ineffective. The Court upheld public censure as an appropriate sanction for Mr. Garland’s professional misconduct.
 
In a dissenting opinion, Justice Holly Kirby determined that the Board of Professional Responsibility should have proceeded against Mr. Garland under the rules governing a lawyer’s supervision of and responsibility for the conduct of his nonlawyer staff. Because the Board failed to do so, the hearing panel did not make the proper findings for review by the Supreme Court.
 
To read the majority opinion authored by Justice Sharon G. Lee and the dissenting opinion of Justice Holly Kirby in Danny C. Garland, II v. Board of Professional Responsibility, visit the Opinions section of TNCourts.gov
 
From the dissent
 
Rule 5.3 was tailor-made for situations such as the one presented in this case. Mr. Garland had delegated to his nonlawyer staff responsibilities for taking client inquiries by email and telephone while he was in court, in depositions, or in meetings, for keeping his clients informed regarding the status of their matters, and for making certain that important correspondence and developments that demanded action were brought to Mr. Garland’s attention. Mr. Garland’s staff failed in all of these regards. Their conduct, if engaged in by a lawyer, would have violated more than one Rule of Professional Conduct, including RPC 1.4 on communications with clients and RPC 1.3 on diligence...
 
There are countless lawyers in Tennessee with law practices similar to Mr. Garland’s high-volume practice, in which many daily tasks and interactions with clients are delegated to nonlawyer staff. Delegating such tasks to nonlawyer employees does not violate ethical rules, but failing to properly supervise nonlawyer employees does. It is important for practicing lawyers to understand what this Court expects from them in terms of supervising nonlawyer staff to whom mundane but important tasks are delegated. The majority opinion gives lawyers little useful information in that regard.
 
The majority says only that Mr. Garland “should have taken a more active role in keeping  Ms. McKeough advised,” that he “did not discover” things such as the consent order that his staff misfiled, and that his “procedures were ineffective.” The majority opinion gives lawyers no indication of what specifically Mr. Garland should have done differently. It tells them only that he fell short. I fault the Board primarily for the posture of this case. It is important for ethical charges against lawyers to be properly framed, so that the rules adopted to govern certain situations are applied to the intended situations. That was not done in this case. 
 
The dissent raises a very important issue that disciplinary prosecutors face every day.
 Of course the prosecutor needs to pick the right rule violation(s) to pursue.
 But beyond that there is a vigorous debate among present and former bar prosecutors as to whether to charge the disciplinary equivalent of the kitchen sink or to "go skinny" and charge the violations that identify the essence of the misconduct.
 I always favored the skinny approach if for no other reason than that I had fewer allegations to brief post-hearing. (Mike Frisch)

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