Saturday, February 17, 2018
Tennessee Disbars Two: Metal Pipe Injury Defense Rejected In One Case; Other Followed In Footsteps Of Davy Crockett
The web page of the Tennessee Supreme Court
The Tennessee Supreme Court disbarred two Nashville attorneys, Sean K. Hornbeck and Robin K. Barry, revoking their law licenses. The Court rejected both attorneys’ requests to make the disbarment retroactive in order to enable them to apply for reinstatement of their law licenses sooner.
In the first case, Mr. Hornbeck persuaded a client to advance him over $5 million as part of a proposed financial venture that he promised would produce substantial payouts. Mr. Hornbeck deposited the client’s money into his trust account. When the payouts did not materialize, the client demanded his money back. Mr. Hornbeck returned only $1 million of the over $5 million entrusted to him. The rest of the client’s money was never recovered.
In December 2008, a complaint was filed with the Tennessee Board of Professional Responsibility, which is responsible for investigating complaints against lawyers and disciplining them for ethical violations. The Tennessee Supreme Court immediately suspended Mr. Hornbeck’s law license while the Board investigated the complaint.
A hearing panel of lawyers heard the evidence against Mr. Hornbeck. Mr. Hornbeck claimed that his mental state was affected by family crises and an injury from being hit in the head with a metal pipe. The hearing panel rejected this explanation and held that Mr. Hornbeck should be disbarred.
Mr. Hornbeck appealed to the chancery court. The chancery court affirmed the hearing panel’s judgment of disbarment, and Mr. Hornbeck appealed to the Tennessee Supreme Court.
In the second case, Ms. Barry deposited money from clients into her trust account. This money was intended to be held in trust for the clients. Instead, Ms. Barry comingled the funds with her own monies and generally used the funds in the trust account as operating funds for her law practice.
The money in Ms. Barry’s trust account included disputed insurance proceeds held for a client. While she negotiated a settlement on the insurance proceeds, Ms. Barry moved to Texas. She did not tell her Tennessee client that she had moved.
When the dispute over the insurance proceeds ended, Ms. Barry paid most of the insurance proceeds to the other party in the dispute, and then emptied out her trust account. Shortly after, Ms. Barry’s Tennessee client asked Ms. Barry to send her the remaining insurance proceeds that were owed to her.
Over the course of the next two years, Ms. Barry proceeded to stonewall her Tennessee client’s inquiries about the remaining insurance proceeds. First she made up reasons why the money could not yet be paid, then she promised to pay what was owed, and then she stopped responding at all. Ms. Barry never told her Tennessee client that she had moved to Texas. Even after the client tracked down Ms. Barry in Texas, she continued to stonewall the client.
The client finally filed a complaint with the Board of Professional Responsibility. The Tennessee Supreme Court suspended Ms. Barry’s law license while the Board investigated the complaint.
A hearing panel of lawyers heard the evidence against Ms. Barry and decided that Ms. Barry’s law license should be suspended for a period of time. The Board appealed to the chancery court, which reversed the hearing panel and entered a judgment of disbarment.
Ms. Barry appealed to the Tennessee Supreme Court. She argued that she should not be disbarred. Alternatively, like Mr. Hornbeck, Ms. Barry asked the Court to make her disbarment retroactive to the date when her law license was first suspended so that she could apply for reinstatement of her law license sooner.
As to Ms. Barry, the Tennessee Supreme Court found that disbarment was the appropriate remedy under the ethics rules, and it affirmed the chancery court on that issue.
The Court rejected both attorneys’ requests to make their disbarments retroactive to the date of their temporary suspension. The Court explained that when serious complaints are received and are being investigated by the Board, the Court will typically suspend an attorney’s law license during the investigation. If the attorney is disbarred, the disbarment becomes effective when the Court enters its order of disbarment, after all appeals are over. Disbarment is almost never retroactive.
The Court acknowledged that, under the ethics rules, five years after disbarment, a disbarred lawyer is allowed to apply for reinstatement of his or her law license. Regardless of a lawyer’s hope of reinstatement, the Court explained, “disbarment does not contemplate that the disbarred attorney will return to the practice of law. The purpose of disbarring an attorney is to remove from the profession a person who has proven to be unfit or unworthy of being entrusted with the duties and responsibilities accorded to those who have gained the privilege of a law license.”
In both cases, the Court affirmed the chancery courts’ judgments of disbarment and refused to make the disbarments retroactive. Therefore, both disbarments became effective when the Court entered its order of disbarment.
To read the unanimous opinions in Sean K. Hornbeck v. Board of Professional Responsibility of the Supreme Court of Tennessee and Board of Professional Responsibility of the Supreme Court of Tennessee v. Robin K. Barry, authored by Justice Holly Kirby, go to the Opinions section of TNCourts.gov.
In the Barry matter
The hearing panel found five aggravating circumstances and no mitigating circumstances. It suspended the attorney’s Tennessee law license for eighteen months, two months of which were to be served on active suspension. After the Board appealed, the chancery court held that the hearing panel’s decision was arbitrary and capricious and that disbarment was the only appropriate sanction.
The oral argument in the Barry case is linked here.
The Hornbeck oral argument is linked here.