oy FILED IN THE DISCIPLINARY DISTRICT IX OF THE DIGOCT HL PM W: 12 BOARD OF PROFESSIONAL RESPONSIBILITY pogo oF paoressionai OF THE SRONSIBEITY SUPREME COURT OF TENNESSEE EXEC, SEC’ INRE: AMY P. WEIRICH, BPR #14441 DOCKET NO. 2016-2533-9-KH Respondent, an Attorney Licensed to Practice Law in Tennessee (Shelby County) BOARD’S RESPONSE AND MEMORANDUM IN OPPOSITION TO SUMMARY JUDGMENT. Comes now the Board of Professional Responsibility (“Board”) to respond in opposition. to the Motion for Summary Judgment fited by the Respondent, Amy P. Weirich, and respectfully requests that the motion be denied in its entirety for the reasons set forth below. STANDARD FOR SUMMARY JUDGMENT As the moving party, Ms. Weirich has the burden to affirmatively negate an essential element of the Board's claim or demonstrate that the Board's evidence at the summary judgment stage is insufficient to establish its claim or defense. Rye v. Women's Care Cir, of Memphis, MPLLC, 477 S.W.3d 235, 264-65 (Tenn. 2015), cert. denied, 136 S. Ct. 2452 (2016) In response, the Board must demonstrate “... the existence of specific facts in the record which could lead a rational trier of fact to find in favor of the nonmoving party.” Id, The Board has responded in the manner provided by Tenn. R. Civ. P. 56 by: “(1) pointing to evidence establishing material factual disputes that were overlooked or ignored by the moving party; (2) rehabilitating the evidence attacked by the moving party; (3) producing additional evidence establishing the existence of a genuine issue for the trial; or (4) submitting an affidavitexplaining the necessity for further discovery pursuant to Tenn. R. Civ. P., Rule 56.06.” Boyce v: LPP Mortgage Ltd., 435 8.W.3d 758, 763-64 (Tenn. Ct. App. 2013), citing Martin v. Norfolk Southern Railway. Co., 271 S.W.3d 76, 84 (Tenn, 2008) (citations omitted), Based upon the following facts and argument, the Board submits that summary judgment is improper in this matter, STATEMENT OF FACTS ‘The panel is familiar with the underlying facts of this case and many of the facts contained in the Petition for Discipline are undisputed by Ms, Weirich. On August 26, 2014, the Board of Professional Responsibility (“Board”) opened an investigative file based upon the complaint of ethical misconduct received by William Shelton and based upon a decision of the Tennessee Supreme Court in the matter of State of Tennessee v. Noura Jackson, 444 $.W.3d 554, (Tenn, 2014) (See Petition for Discipline and Response to Petition for Discipline, par. 5) In summary, the Board has alleged that Ms. Weirich violated Rules of Professional Conduct 3.4(€)(1) and 8.4(a) and (<) based upon her inappropriate comment in clos ng argument about the criminal defendant's right not to testify. (See Petition for Discipline, pp 2-5) It is undisputed that Ms. Weirich began her portion of closing argument in Noura Jackson trial with the statement: “Just tell us where you were. That’s all we are asking, Noura.” (See Response to Petition for Dis ipline, para. 16) ‘The Tennessee Supreme Court found that Ms, Weirich’s argument to the jury constituted an improper comment on the defendant's decision not to testify and the Court concluded that the remark was not merely a summation because her comments were significantly different from the actual trial testimony of Ms. Eidson, a witness: The record belies the State's assertion that the trial court correctly characterized the lead prosecutor's argument as a permissible summation of the trial testimony of Defendant's aunt, Ms, Eidson. As the majority in the Court of Criminal Appeals explained, the lead prosecutor's argumentdiffered significantly from this testimony, Furthermore, the lead prosecutor included no prefacing language to signal that the argument was a summation of trial testimony, nor was the lead prosecutor's statement phrased in a manner to suggest that it was a summation of trial testimony. Instead, the lead prosecutor’s argument was phrased in the first person plural and as a demand that Defendant explain herself. The lead prosecutor's actions before and during the argument reinforced this perception. For example, the lead prosecutor walked across the court room, stood in front of Defendant, gestured toward her, and demanded in a loud voice, “Just tell us where you were! That's all we are asking, Noura!” ‘The lead prosecutor's word choice, specifically the plural pronouns “us” and “we” and the present tense verb, communicated to the jury that the lead prosecutor was speaking directly to Defendant on behalf of everyone in the court room. The prosecutor's language also conveyed the message that asking Defendant to explain her whereabouts was entirely reasonable and the least Defendant could do if she expected to be acquitted of the crime. The lead prosecutor's argument thus implicitly encouraged the jury to view Defendant's silence as a tacit admission of guilt. Regardless of the lead prosecutor's intent, we conclude that the lead prosecutor's remark was of such a character that the jury would necessarily have taken it to be a comment on Defendant's exercise of her constitutional right not to testify. State v. Jackson, 444 S.W.3d 554, 589 (Tenn. 2014) (See Board’s Statement of Additional Material Facts, Exhibit 2) Ms. Weirich acknowledges that the Tennessee Supreme Court’s holding speaks for itself. (See Response to Petition for Discipline, para, 28-29) In light of Ms. Weirich’s argument for summary judgment, this hearing panel should also consider several other relevant facts. First, the opinion of the Court of Criminal Appeals does not include a review and analysis of the Rules of Professional Conduct. (See Board’s Statement of Additional Materia! Facts, Exhibit 1) Second, the opinion of the Tennessee Supreme Court does not include a review and analysis of the Rules of Professional Conduct. (See Board's Statement of Additional Material Facts, Exhibit 2) Third, at the trial court level, the defendant's original and amended Motions for Judgment of Acquittal or in the Altemative Motion for New Trial did not seek a finding by the trial court that Ms. Weirich committed ethical misconduct by violating the Rules of Professional Conduct. (See Board's Statement of Additional MaterialFacts, Exhibits & 4) Finally, the trial court did not address the ethical implications of Ms. Weirich’s comments in the hearing for new trial. (See Board’s Statement of Additional Material Facts, Exhibit 5) RGUMENT It is well settled and indisputable that the Supreme Court has the “inherent supervisory power to regulate the practice of law ...” In re Burson, 909 S.W.2d 768, 773 (Tenn.1995). In exercise of that power, the Tennessee Supreme Court has promulgated Tenn. Sup. Ct. R. 9, which addresses the discipline of lawyers and the enforcement thereof, Brown v, Bd. of Prof'l Responsibility, of Supreme Court of Tennessee, 29 $.W.3d 445, 449 (Tenn. 2000), as corrected (May 25, 2000) Ms. Weirich contends that it is impermissible for the Board of Professional Responsibility to pursue disciplinary action when individual judges have not made complaints of misconduct. She contends that because the judges did not file complaints of misconduct, “their word is conclusive.” Ms, Weitich has provided no authority for the theory that the Board, and this hearing panel, is precluded from exercising the authority conferred by Tenn. Sup. Ct. R. 9, §4, to make a determination regarding ethical misconduct: The Board shall exercise the powers conferred upon it by this Rule, including the power: (a) To consider and investigate any alleged ground for discipline or alleged incapacity of any attorney called to its attention, or upon its own motion, and to take such action with respect thereto as shall be appropriate to effectuate the purposes of this Rule. The Board is authorized to investigate information from a source other than a signed written complaint if the Board deems the information sufficiently credible or verifiable through objective means, Tenn, Sup. Ct. R. 9 contains no limitation on Board’s ability to investigate and pursue disciplinary action based on the identity of a complainant, Rule 9 does not require the Board todeem the complaint of a judge as a “conclusive” determination of ethical misconduct, nor does it require the Board to abandon any disciplinary cases merely because a judge hearing the underlying civil or criminal matter chooses not to file a complaint. ‘The disciplinary system is designed for independent review of complaints by Disciplinary Counsel, the Board, District Committee Members, Hearing Panels, and the Tennessee Supreme Court itself. As explained in the Flowers v, Bd of Professional Responsibility case, neither the filing of a complaint nor the motivation of the person making the complaint undermines the Board’s authority to investigate and conclude that a violation of the Rules of Professional Conduet has occurred: In other words, the filing of a complaint does not, as suggested by Mr. Flowers, equate with a finding that an attorney has committed misconduct. Rather, upon receiving a complaint, Disciplinary Counsel conducts an investigation and determines the appropriate course of action. If, as in this case, Disciplinary Counsel determines that a formal hearing is appropriate and that recommendation is accepted by the Board of Professional Responsibility, the matter is then heard by a hearing panel, The hearing panel makes its own independent determination as to whether the attorney engaged in misconduct. The hearing panel's decision is then appealable to the courts, ‘The motivations of Mr. Flowers's clients, whatever they may have been, to file disciplinary complaints against him does not render these complaints frivolous and certainly does not nullify or undermine the findings of the hearing panel and the trial court, Flowers v. Bd. of Prof'l Responsibility, 314 S.W.3d 882, 893 (Tenn. 2010) Ms. Weirich’s argument is essentially the same argument raised in Flowers, only in reverse. She is conflating the ethical obligation to report misconduct with the conclusion that a sanctionable violation of the Rules of Professional Conduct has or has not occurred. It is the responsibility of the hearing panel to make an independent determination of misconduct in this matter.Ms. Weirich relies upon the Green v. Champs Elysees, Inc. case for the proposition that a judge must report misconduct when the judge has knowledge of a violation of the Rules of Professional Conduct that raises a substantial question regarding the lawyer's honesty, trustworthiness, or fitness as a lawyer. It is notable that the Green case involved continuing misconduct that was actually occurring before the Court of Appeals: In this appeal, the Appellants make unwarranted accusations impugning the integrity of the learned trial judge for the purpose of deflecting attention away from Attomey Roberts’ flagrant misconduct in the trial court below. The Appellants’ baseless and improper assertions about Chancellor McCoy now compel us to direct the Clerk of the Appellate Courts to send to the Board of Professional Responsibility a copy of this Opinion, the Appellants’ appellate briefs, and the recording of the oral argument in this appeal, for the Board's consideration as to whether Attorney Roberts has committed further misconduct in the course of this, appeal. Green v, Champs-Elysees, Inc., No. M2013-00232-COA-R3CY, 2014 WL 644726, at 9 (Tenn. Ct. App. Feb. 18, 2014) It is also notable that the Court of Appeals clearly recognizes that it is up to the Board to determine whether the attorney in that case had committed misconduct. The Board does not dispute that Tenn. Sup. Ct. R. 10, 2.15, imposes an obligation if the judge determines all of the factors contained within the rule are present. The Board will investigate and seck discipline, however, whether a judge reports it or not. See! Mabry v. Bd. of Prof'l Responsibility of Supreme Court, 458 $.W.3d 900 (Tenn, 2014) (lawyer sanctioned based upon complaint filed by client for failure to act diligently which resulted in a Rule 11 finding.) see also Cody v. Bd, of Prof't Responsibility of Supreme Court of Tennessee, 471 $.W.3d 420, 421 (Tenn, 2015) (lawyer sanctioned based upon complaint by opposing counsel and complaint * The opinions ofthe Tennessce Supreme Court do notin the complainants in these mates however, the Bort has attached the Petitions for Discipline elated to each case for he purpose of identifying the complainants. Due to volume, exhibits were not provided. See Exhibits A: « 6opened upon initiative of the Board regarding a continuing conflict of interest as evidenced by pleadings and representation in court). The Board disputes Ms. Weirich's broad proposition that the judges in the Noura Jackson trial and appeal “considered the propriety” of Ms, Weirich’s closing argument, Each court considered the record of the criminal case and applied criminal and constitutional law to determine if there was reversible error. None of the courts engaged in analysis of the Rules of Professional Conduct in their opinions or orders. Finally, as noted in the parties’ stipulation, the Board maintains that whether or not a judge made a disciplinary complaint is immaterial and irrelevant to this proceeding, This hearing panel will consider whether the proof establishes a disciplinary violation. It is the purview of the hearing panel to interpret the Rules of Professional Conduct and apply them to the facts presented, and then to determine what sanction is appropriate, if any. See In re Crossen, 880 N.E.2d 353 (Mass. 2008) (finding that expert testimony concerning the fact of an ethical violation is not appropriate in bar disciplinary proceedings because the fact finder does not need assistance understanding and applying the ethical rules.) See also In re Disciplinary Action Against McKechnie, 656 N.W.2d 661 (N.D. 2003) (expert testimony regarding the interpretation of the rules of professional conduct and whether a rule has been violated is inappropriate in a disciplinary proceeding. Interpretation of the rules of professional conduct, like interpretation of statutes, is a question of law for a court to decide.)The Board’s response demonstrates that Ms. Weirich is not entitled to summary judgment. She has not demonstrated that the Board is acting in excess of its authority to investigate, bring formal proceedings, and seek disciplinary sanctions in this matter. For the reasons stated above, the Motion for Summary Judgment should be denied in its entirety. Respectfully submitted, Krisairf Hodges BPR #17086 ‘Tennessee Board of Professional Responsibility Deputy Chief Disciplinary Counsel 10 Cadillac Drive, Suite 220 Brentwood, Tennessee 37027 (615) 361-7500 IRTIFICATE OF SERV I certify that a copy of the Board’s Response and Memorandum in Opposition to Summary Judgment has been served upon counsel for Respondent, Jef Feibelman, Esq., by regular U.S. Mail, at 130 North Court Avenue, Memphis, TN 38103, and by e-mail to {feibelman@bpjlaw.com , on this the || day of October, 2016. lodges, BPR No. 017086 Deputy Chief Disciplinary Counsel ‘TN Board of Professional ResponsibilityIN DISCIPLINARY DISTRICT IL OF THE BOARD OF PROFESSIONAL RESPONSIBILIT OF THE SUPREME COURT OF TENNESSEE, Excautiva Soaratr IN RE: THOMAS FLEMING MABRY, Docknt No. 2O// 2055 -s) -S& BPR #9065, Respondent An Attorney Licensed and Admitted to the Practice of Law in Tennessee (Knox County) PETITION FOR DISCIPLINE Comes now Disciplinary Counsel for the Board of Professional Responsibility of the Supreme Court of Tennessee (hereinafter referred to as the Board), pursuant to Rule 9, Rules of the Supreme Court of Tennessee and files this Petition for Discipline against the Respondent, Thomas Fleming Mabry, and would respeetfully show: 1. Respondent is an attorney admitted by the Supreme Court of Tennessee to practice law in the State of Tennessee, His office address is 1717 Boyd's Creek Pike, Suite 104- D, Post Office Box 52385, Knoxville, Tennessee 37950 in Knox County and Disciplinary District I 2. Pursuant to Section 1, of Rule 9, Rules of the Supreme Court of Tennessee, any attorney admitted to practice law in Tennessee is subject to the disciplinary jurisdiction of the Supreme Court, the Board of Professional Responsibility, the Hearing Committees, hereinafter established, and the Circuit and Chancery Courts. Exhibit A3. Pursuant to Section 3 of Rule 9, Rules of the Supreme Court of Tennessee, the license to practice law in Tennessee is a privilege and it is the duty of every recipient of that privilege to conduct himself at all times in conformity with the standards imposed upon members of the bar as conditions for the privilege to practice law. Acts or omissions by an attorney, which violate the Tennessee Rules of Professional Conduct, shall constitute misconduct and shall be grounds for discipline. 4, Thomas Fleming Mabry has failed to conduct himself in conformity with said standards and is guilty of acts and omissions in violation of the authority cited. Accordingly, the Board of Professional Responsibility authorized the filing of formal charges on June 10, 2011. File No. 31590-2-SG — Informant: Jerry Cunningham 5. On October 27, 2008, the Board received a complaint from attomey Jerry Cunningham against the Respondent, Thomas F, Mabry, designated as File No. 31590-2-SG. On November 12, 2008, the Board sent the Respondent a notice of the complaint and asked for the Respondent's response within ten (10) days. The Respondent wrote to the Board by letter dated November 24, 2008. Additionally, the Respondent provided a response to the Board dated December 30, 2008. Copies of the complaint, the Board’s letter to the Respondent and the Respondent’s letters to the Board are attached hereby as Collective Exhibit A. 6. On August'19, 2008, the Respondent filed a Complaint in the Circuit Court for Blount County, Tennessee styled Shore v. Fields and Goddard. A copy of the complaint is attached as Exhibit B. 7. The Respondent alleges in paragraphs 19 through 21 of the Shore v. Fields complaint a civil conspiracy,8. On September 18, 2008, the Respondent filed an Amendment to Complaint and/or Notice of Voluntary Dismissal by voluntarily deleting Robert Goddard as a defendant in Shore v, Fields 9. Ina Memorandum of Law filed February 9, 2011, the Respondent acknowledges his civil conspiracy theory became moot when Mr. Goddard was dismissed from the case, A copy of Respondent’s Memorandum is attached as Exhibit C, 10, The Respondent never took any action to dismiss the civil conspiracy from the complaint remaining against defendant Fields, 11, By Order filed March 4, 2011, the Court found that “Mr. Mabry had more than ample time between the time of the decision to voluntary nonsuit and dismiss Mr. Goddard from the case and the contemporaneous receipt of the safe harbor letter, and December 4, 2008 to dismiss and/or correct by amendment the civil conspiracy allegations against defendant, Roger D. Fields, which Mr. Mabry knew, certainly by that time, if not before, was a claim or legal contention that was not warranted by existing law or by a nonftivolous argument for the extension, modification or reversal of existing law or the establishment of new law; that the allegation and factual contention did not have evidentiary support and was not likely to have evidentiary support after a reasonable opportunity for further investigation or discovery; and that, at that point, that particular allegation and factual contention were being presented for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. Yet, he took no measures to dismiss or correct that portion of the pleadings.” ‘A copy of the March 4, 2011 Order is attached as Exhibit D, 12, The Court found in its March 2011 Order that “Mabry’s failure to amend the complaint and/or dismiss the specific allegations pertaining to civil conspiracy has causedunnecessary delay in the resolution of the case, Knowing that plaintiff could not possibly prove an allegation of civil conspiracy between defendant Fields and former defendant Goddard, as well as being advised in the letter from defendant’s attorney that sanctions would be sought if corrective actions were not taken, Mr. Mabry had an obligation to take appropriate action, which he failed to do.” 13, By Order filed March 4, 2011, the Circuit Court for Blount County found the Respondent's allegations in the complaint filed in Shore v. Fields regarding civil conspiracy violated Rule 11.02(1)(2)(3). 14, The acts and omissions of the Respondent set forth in paragraph 5 through 13 constitute ethical misconduct in violation of Rules 3.1 and 8.4(a)(d)(¢). ile No. 318 Complainant: Velda Shore 15. On December 11, 2008, the Board received a complaint from Velda Shore against the Respondent, ‘Thomas Mabry, designated as file number 31802-2-PS. On January 16, 2009, the Board sent the Respondent a notice of the complaint and requested the Respondent's response within ten (10) days. ‘The Respondent's response dated February 3, 2009 was received by the Board. On February 3, 2009, the Board sent the Respondent a Notice of Petition for ‘Temporary Suspension and asked for the Respondent’s response. The Respondent's response dated February 23, 2009 was received by the Board. Copies of the Complaint, notices of the Complaint, and the Respondent's responses are attached as Collective Exhibit BE, 16. The Respondent represented the complainant in two cases, Shore v. Fields and Shore v. Maple Lane Farms. 17, The Respondent failed to adequately respond to the Complainant's request for information about her lawsuits.18. The Respondent entered into an agreement with opposing counsel regarding the Complainant's case of Shore v. Maple Lane Farms without the Complainant’s knowledge or consent, 19. In Shore v. Fields, the Respondent filed in Shore v. Fields a claim for civil conspiracy with no basis for that claim, 20. The Complainant requested the Respondent amend the Shore v. Fields Complaint but the Respondent failed to do so, 21, The Respondent engaged in communications with the media regarding the Complainant's cases without the Complainant's permission, 22. The Complainant discharged the Respondent on approximately December 4, 2008. 23. After discharging the Respondent, the Respondent failed to release the Complainant’s file to the Complainant and/or her new counsel. 24, After the Complainant discharged the Respondent, the Respondent failed to withdraw from the Complainant's case of Shore v. Maple Lane Farms. 25. Based upon the Respondent’s failure to provide the Complainant and/or her subsequent counsel with her file, Complainant's new counsel, Kevin Shepard, filed a Motion to Continue. 26. The acts and omissions of the Respondent as set forth in paragraphs 15 through 25 constitute ethical misconduct violation of Rules 1.35 1.4; 3.1; 1.16; and 8.4(a)(o)(@). File No. 33051-2-PS ~ Complaint of Ginna French 27. Pursuant to Rule 9, Rules of the Supreme Court, the Respondent was notified of the Complaint filed By Ginna French on April 6, 2010 against Thomas F. Mabry and designatedas file number 33051-2-PS, The Respondent was asked to respond within ter (10) days. The Respondent failed to respond to this April 14, 2010 letter. On April 29, 2010, the Board the Respondent a second letter requesting the Respondent's immediate response to the complaint, The Respondent's response dated May 14, 2010, was received by the Board. Copies of the Complaint, Notices of the Complaint and the Respondent's response ate attached as Collective Exhibit F. 28. The Respondent filed the Complainant's Complaint of French v. Allstate Insurance Company in approximately January of 2009. 29. After filing the Complainant’s cause of action in January of 2009, the Respondent neglected the Complainant’s case, 30. The Respondent failed to communicate with the Complainant and failed to respond to her requests for information, 31. The Respondent failed to respond to opposing counsel’s requests for information regarding the Complainant’s case, 32. On approximately July 27, 2009, counsel for All-State Insurance Company, filed 4 Motion to Dismiss for lack of prosecution and altematively for failure to state a claim for which relief may be granted, 33, On October 28, 2009, the Respondent filed a nonsuit of the Complainant's case, A copy of the nonsuit is attached as Exhibit G to this petition. 34, The Respondent filed the nonsuit in the Complainant's case without the Complainant's knowledge or permission. 35. The acts and omissions of the Respondent as set forth in paragraphs 27 through 34 constitute ethical misconduct in violation of Rules 1.3; 1.4; 3.2; 8.4(a)(@).ALLEGED VIOLATIONS 36. It is alleged that the Respondent violated, as set forth, the following authorities: Rule 1.3 DILIGENCE A lawyer shall act with reasonable diligence and promptness in representing a client, Rule 1.4 COMMUNICATION (@)__ A lawyer shall keep a client reasonably informed about the status of a matter and comply with reasonable requests for information within a reasonable time. (b) A lawyer shall explain a inatter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation, Rule 1.16 DECLINING AND TERMINATING REPRESENTATION (@) Except as stated in paragraph (c), a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of the client if: (1) the representation will result in a violation of the Rules of Professional Conduct or other law; or (2) __ the lawyer’s physical or mental condition materially impairs the lawyer's ability to represent the client; or 3) the lawyer is discharged. (b)___ Except as stated in paragraph (c), a lawyer may withdraw from the representation of a client if the withdrawal can be accomplished without material adverse effect on the interests of the client, or if: (1) the olient persists in a course of action involving the lawyer's services that the lawyer reasonably believes is criminal or fraudulent; (2) the client has used the lawyer's services to perpetrate a crime or fraud; G) client insists upon pursuing an objective or taking action that the lawyer considers repugnant or imprudent; (4) the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer's services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled;(5) ___ the representation will result in an unanticipated and substantial financial burden on the lawyer or has been rendered unreasonably difficult by the client; (6) other good cause for withdrawal exists; or (7) _ after consuitation withdrawal of the lawyer, the lawyer, the client consents in writing to the (©) _ When ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good cause for terminating the representation. @) Upon termination of the representation of a client, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests, including: (1) giving reasonable notice to the client so as to allow time for the employment of other counsel; @) promptly surrendering papers and property of the client and any work product prepared by the lawyer for the client and for which the lawyer has been compensated; @) promptly surrendering any other work product prepared by the lawyer for the client, provided, however, that the lawyer may retain such work product to the extent permitted by other law but only if the retention of the work product will not have a materially adverse affect on the client with respect to the subject matter of the representation; (4) promptly refunding to the client any advance payment for expenses that have not been incurred by the lawyer; and (S) promptly refunding any advance payment for fees that have not been earned. Rule 3.1 MERITORIOUS CLAIMS AND CONTENTIONS A lawyer shall not bring or defend or continue with the prosecution or defense of a proceeding, or assert or controvert or continue to assert or controvert an issue therein, unless after reasonable inquiry the lawyer has a basis for doing so that is not frivolous, which includes a good faith argument for an extension, modification, or reversal of existing law. A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may nevertheless so defend the proceeding as to require that every element of the ease be established. Rule 3.2 EXPEDITING LITIGATION A lawyer shall make reasonable efforts to expedite litigation,Rule 8.4 MISCONDUCT. It is professional misconduct for a lawyer to: (@) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another; (©) engage in conduct involving dishonesty, fraud, deceit, or misrepresentation; (@ engage in conduct that is prejudicial to the administration of justi AGGRAVATING CIRCUMSTANCES 37. After misconduct has been established, aggravating circumstances may be considered in deciding what sanctions to impose. 38. The Respondent's prior disciplinary offenses including the following public discipline of a Public Censure on May 2, 1991; a Public Censure on September 22, 1993; and a suspension of 11 months, 29 days on July 15, 2008 are aggravating circumstances justifying an increase in the degree of discipline to be imposed against the Respondent, 39. ‘The Respondent's pattern of misconduct is an aggravating circumstance justifying an increase in the degree of discipline to be imposed against the Respondent, 40. The Respondent's multiple offenses are an aggravating circumstance justifying an increase in the degree of discipline to be imposed against the Respondent. 41. The Respondent's substantial experience in the practice of law, having been licensed since 1980 is an aggravating circumstance justifying an increase in the degree of discipline to be imposed against the Respondent. RELIEF 42. Disciplinary Counsel respectfully requests that the Heating Panel receive evidence in this cause and make such findings as it deems appropriate in imposing the disciplinedeemed appropriate. Respectfully submitted, Naney 8. Jones, BPR #16369 Chief Disciplinary Counsel Derry Chaat By: Sandy Garrett, BPR #13863 Senior Litigation Counsel Board of Professional Responsibility 10 Cadillac Drive, Suite 220 Brentwood, TN 37027 (615) 361-7500 10NOTICE TO PLEAD TO: ‘Thomas Mabry Pos Office Box $2375 Knoxville, TIN 37950 You are hereby notified that you are required to file your answer with Rita Webb, Executive Secretary, Board of Professional Responsibility, 10 Cadillac Drive, Suite 220, Brentwood, Tennessee 37027, and serve a copy of your answer upon Disciplinary Counsel be leemed admitted. CERTIFICATE OF SERVICE I certify that a copy of the foregoing Petition for Discipline has been served upon the Respondent, Thomas Mabry, Post Office Box 52375, Knoxville, TN 37950, via regular and Certified Mail (#:70/0.3070000/4 T2b 241. Jon the Z2vp day of June, 2011. Sondy Conut! Sandy Garrett uWIN DISCIPLINARY DISTRICT IX OF THE BOARD OF PROFESSIONAL RESPONSIBILITY OF THE SUPREME COURT OF TENNESSE! INRE: HOMER L. CODY, DOCKET NO. 2012- BPR¢# 10755, Respondent, ‘An Attorney Licensed to Practice Law in Tennessee (Shelby County) [ITION FOR DISCIPLINE 1, Comes now Petitioner, the Board of Professional Responsibility of the Supreme Court of Tennessee, by and through Disciplinary Counsel, and pursuant to Rule 9, Rules of the ‘Supreme Court of Tennessee, files this Petition for Discipline against the Respondent, Homer L. Cody, and would respectfully show: 2. Mr, Cody is an attorney admitted by the Supreme Court of Tennessee to practice Jaw in the State of Tennessee, with his last known primary address as registered with the Board at 6955 N. Watkins Road, Millington, Tennessee, 38053, in plinary District IX when the conduct underlying the initial disciplinary complaint occurred. Mr. Cody’s Board of Professional Responsibility No. is 10755. 3 Pursuant to Section 1 of Rule 9, any attorney admitted to practice law in Tennessee is subject to the disciplinary jurisdiction of the Supreme Court, the Board of Professional Responsibility, the Hearing Committee, hereinafter established, and the Circuit and Chancery Courts. Exhibit B 0014. Pursuant to Section 3 of Rule 9, the license to practice law in this state is a privilege and it is the duty of every recipient of that privilege to conduct himself or herself at all times in conformity with the standards imposed upon members of the bar as conditions for the privilege to practice law. Acts or omissions by an attorney which violate the Rules of Professional Conduct of the State of Tennessee shall constitute misconduct and be grounds for discipline. 5. Mr. Cody has failed to conduct himself in conformity with said standards and is guilty of acts and omissions in violation of the authorities cited infra and on June 22, 2012, the Board authorized the filing of formal charges against Mr, Cody. FILE NO. 35031-9-KB. JRMANT—MICHAEL McLAREN, 6. On March 13, 2012, Mr. McLaren forwarded information to the Board regarding the conduct of Mr. Cody. The matter was designated as File No. 35031-9-KB, 7. Copies of Mr. McLaren’s letter and attached documentation are attached hereto as Collective Exhibit A. 8. On March 22, 2012, the Board sent the information received from Mr. MeLaren to Mr. Cody and asked for his response. 9. A copy of the Board's letter sent to Mr. Cody on March 22, 2012, is attached hereto as Exhibit B. 10, Mr. Cody provided a response to the Board by letter dated April 2, 2012. 11. Copies of Mr. Cody’s April 2, 2012 letter and attached documentation are attached hereto as Collective Exhibit C. 2 00212. Mr. MeLaren provided additional information to the Board by letter dated May 29, 2012. 13. Copies of Mr, McLaren’s May 29, 2012 letter and attached documentation are hibit D attached hereto as Collective 14, On August 13, 2002, Mr. Cody filed a civil action in the Shelby County Chancery Court on behalf of Pee Wee Wisdom Child Development Center (“Pee Wee") and Vivian Braxton, Pee Wee’s executive director, 15. The civil action sought judicial intervention for the corporate dissolution of Pee ‘Wee, a non-profit child care organization that was heavily subsidized by the State of Tennessee. 16. On September 3, 2002, Robert Dinkelspiel, Esq. was appointed as Receiver for Pee Wee. 17, Mr. Cody continued to represent Pee Wee even though Mr. Dinkelspiel had not given Mr. Cody authority to continue such representation. 18. One of the issues raised in the case was whether Ms. Braxton had failed to perform her fiduciary duties as a director and officer of Pee Wee. 19. On August 14, 2003, Ms. Braxton was indicted for Theft of Property Over {$60,000.00 in connection with funds belonging to Pee Wee. 20. On December 2, 2003, Ms. Braxton pled guilty to the crime of Theft of Property Over $60,000.00. 21. Mr. Cody was asked by opposing counsel to discontinue his representation of both Pee Wee and Ms. Braxton but Mr. Cody failed to do so. . 00322. Mr. Cody was ordered to discontinue representation of both Pee Wee and Ms. Braxton by the Court of Appeals due to his conflict of interest in two separate orders, one dated January 29, 2008 and another dated August 27, 2010, 23. On November 20, 2009, Mr. Cody was ordered to discontinue his representation of both Pee Wee and Ms, Braxton by the Chancery Court 24, Mr. Cody continued to represent both Pee Wee and Ms. Braxton in their civil suits. 25. On February 3, 2011, the Board initiated a formal disciplinary proceeding against Mr. Cody under Docket Number 2011-2008-9-RS. 26. On March 16, 2012, the Supreme Court imposed a Public Censure against Mr. Cody for the conflict of interest he had with parties having adverse interests against one another. 27. Copies of the Supreme Court’s March 16, 2012 Order of Enforcement and associated Press Release are attached hereto as Collective Exhibit E. 28. On March 6, 2012, Mr. Cody filed with the Shelby County Chancery Court a Motion to Declare Null and Void, To Set Aside, and to Vacate All Orders Issued by This Court. (See Collective Exhibit A) 29. Mr. Cody purported to represent both Pee Wee and Vivian Braxton in the filing of said Motion. 30. On March 13, 2012, Mr, Cody filed a Memorandum in Support of his previously filed Motion, (See Collective Exhibit A) 31, On March 20, 2012, Mr. MeLaren, who was appointed by Mr. Dinkelspiel to represent Pee Wee, filed a Motion to Strike Any and All Pleadings Filed by Homer Cody on Behalf of Pee Wee and Vivian Braxton, 00432. On March 30, 2012, the Chancery Court held a hearing on the Motions filed by Mr. Cody and Mr, McLaren. (See Collective Exhibit D) 33. The Chancery Court stated, “. . .I think that Court of Appeals’ decision had the predictable affect (sic) of terminating your continued representation of these parties in this same action in either this court or any other court. And even if it didn’t, I think it would be a denial of the right to effective counsel for you not to be able to represent your elients on appeal if this Court renders a decision contrary to your client’s position or interest.” (See Collective D, Hearing ‘Transcript, p. 18) 34, The Chancery Court granted the Motion to strike pleadings filed by Mr. Cody and entered its Order on April 10, 2012. 35. The Order prohibited Mr. Cody from further representation of Pee Wee or Vivian Braxton. 36. A copy of the Order is attached hereto as Exhil 37. Mr. Cody drafted a Notice of Extraordinary Appeal on behalf of Vivian Braxton but failed to state that the pleading was prepared with the assistance of counsel. 38. On or about May 10, 2012, Ms. Braxton filed the Notice of Extraordinary Appeal with the Court of Appeals in Case No. W2012-00956-COA-RLO-CY. 39. Mr. Cody has a concurrent conflict of interest in his representation of Pee Wee and Vivian Braxton. 40. Mr. Cody has previously been disciplined for similar conduct. 41. Mr. Cody failed to inform the Court of Appeals that he had prepared pleadings on behalf of Vivian Braxton, 00542, Mr. Cody engaged in conduct prejudicial to the administration of justice ALLEGED VIOLATIONS 43, The acts and omissions by Mr, Cody constitute ethical misconduct in violation of Rules of Professional Conduct 1.7(a), 3.3(a) and 8.4(a) and (d): Rule 1.7 CONFLICT OF INTEREST: CURRENT CLIENTS (Effective January 1, 2011) (@) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if (1) the representation of one client will be directly adverse to another client; ot (2) there is a significant risk that the representation of one or more clients will ‘be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer. Rule 3.3(a) CANDOR TOWARD THE TRIBUNAL (@) A lawyer shall not knowingly: (1) make a false statement of faet or law to a tribunal; Rule 8.4 MISCONDUCT It is professional misconduct for a lawyer to: (a) violate or attempt to violate the Rules of Profe or induce another to do so, ordo so through the ional Conduct, knowingly assist of another; (@ engage in conduct that is prejudicial to the administration of justice; 006AGGRAVATING FACTORS 44. After misconduct has been established, ABA Standards for Imposing Lawyer Sanctions, Section 9.2, provides for aggravating circumstances that may justify an inerease in the degree of discipline to be imposed. 45. Mr, Cody's prior disciplinary offenses are an aggravating circumstance justifying an increase in the degree of discipline to be imposed against him, 46. Mr. Cody’s pattern of misconduct is an aggravating circumstance justifying an increase in the degree of discipline to be imposed against him, 47. Mr. Cody’s multiple offenses are an aggravating circumstance justifying an increase in the degree of discipline to be imposed against him. 48. Mr. Cody's refusal to acknowledge the wrongful nature of his conduct is an aggravating circumstance justifying an increase in the degree of discipline to be imposed against him. 49. Mr, Cody’s substantial experience in the practice of law is an aggravating circumstance justifying an increase in the degree of discipline to be imposed against him. PRAYER FOR RELIEF 50, WHEREFORE, the Board requests that a Hearing Panel be appointed to heat testimony and to receive evidence in this cause and to make such finding of fact and order such disciplinary action as it may deem appropriate 007Respectfully Submitted, Nancy Chief S. Jones, BPR #16369 isciplinary Counsel By: Kh Sp. Kein D. Balkwill, BPR #20434 Disciplinary Counsel - Litigation 10 Cadillac Drive, Suite 220 Brentwood, Tennessee 37027 (615) 695-0943 NOTICE TO PLEAD TO: HOMER L. CODY You are hereby notified that you are required to file your Answer with Rita Webb, Executive Secretary, Board of Professional Responsibility, 10 Cadillac Drive, Suite 220, Brentwood, Tennessee 37027, and serve a copy of your Answer upon Disciplinary Counsel within twenty (20) days after service of this Petition. If you fail to file an Answer, the allegations contained in the Petition for Discipline shall be deemed admitted and a default judgment taken. Ser 1 certify that a copy of the foregoing has been sent to Respondent, Homer L. Cody, by regular and Certified Mail No. 7010 3090 0001 4729 4799, to 6955 N. Watkins Road, 008IN DISCIPLINARY DISTRICT IX OFTHE BI3FEB 14 AMIO: 05 BOARD OF PROFESSIONAL RESPONSIBILITY OFTHE Boar oF ii # SUPREME COURT OF TENNESSEE (Us. me EXEC, $e INRE: HOMERL. CODY, DOCKET NO. 2012-2142-9-KB BPR¢# 10755, Respondent, An Attorney Licensed to Practice Law in Tennessee (Shelby County) SUPPLEMENTAL PETITION FOR DISCIPLINE 1. Comes now Petitioner, the Board of Professional Responsibility of the Supreme Court of Tennessee, by and through Disciplinary Counsel, and pursuant to Rule 9, Rules of the Supreme Court of Tennessee, files this Supplemental Petition for Discipline against the Respondent, Homer L. Cody, and would respectfully show: 2. Mr, Cody is an attomey admitted by the Supreme Court of Tennessee to practice aw in the State of Tennessee, with his last known primary address as registered with the Board at 6955 N. Watkins Road, Millington, Tennessee, 38053, in Disciplinary District IX when the conduct underlying the initial disciplinary complaint occurred, Mr. Cody's Board of Professional Responsibility No, is 10755 3. Pursuant to Section 1 of Rule 9, any attorney admitted to practice law in Tennessee is subject to the disciplinary jurisdiction of the Supreme Court, the Board of Professional Responsibility, the Hearing Committee, hereinafter established, and the Circuit and Chancery Courts. Exhibit C4, Pursuant to Section 3 of Rule 9, the license to practice law in this state is a privilege and it is the duty of every recipient of that privilege to conduct himself or herself at all times in conformity with the standards imposed upon members of the bar as conditions for the privilege to practice law. Acts or omissions by an attomey which violate the Rules of Professional Conduct of the State of Tennessee shall constitute misconduct and be grounds for discipline. 5. Mr. Cody has failed to conduct himself in conformity with said standards and is guilty of acts and omissions in violation of the authorities cited infra and on December 14, 2012, the Board authorized the filing of formal charges against Mr. Cody. 6. . On September 11, 2012, the Board sent a letter to Mr. Cody along with a copy of a civil complaint he filed with the United States District Court for the Wester District of ‘Tennessee, and asked for his response within ten (10) days. 7. Copies of the Board’s September 11, 2012 letter and attached documentation are attached hereto as Collective Exhibit A. 8. Mr. Cody provided a response to the Board by letter dated September 19, 2012, 9. A copy of Mr. Cody's September 19, 2012 letter to the Board is attached hereto as Exhibit B. 10, On September 25, 2012, the Board sent a second letter to Mt. Cody requesting additional information, 11. A copy of the Board’s September 25, 2012 letter to Mr. Cody is attached hereto as Exhibit C. 63912, Mr. Cody provided a second response to the Board by letter dated October 2, 2012. 13, A copy of Mr. Cody's October 2, 2012 letter to the Board is attached hereto as Exhibit D. 14, The Board hereby incorporates the allegations set forth in Paragraphs 14 through 38 of the Petition for Discipline filed against Mr. Cody on August 2, 2012, as if set out herein verbatim. 15. On September 5, 2012, Mr. Cody filed a civil Racketeer Influenced and Corrupt Organizations (“RICO”) Act complaint in the United States District Court for the Westem District of Tennessce on behalf of Vivian Braxton and Pee Wee Wisdom Child Development Center, Inc. (“BWW”) (See Collective Exhibit A) 16. Mr. Cody named as defendants several of the attoreys and judges who participated in the state civil proceeding involving Ms. Braxton and PWW. 17, Mr. Cody referred to the judges in the RICO complaint as “judicial mobsters” and the “Tennessee Judicial Mafia”. 18. Mr. Cody alleged that the ‘Tennessee Attomey General’s office, participating judges, and the Receiver, Robert Dinkelspiel, were part of a conspiracy to defraud Vivian Braxton and PWW by implementing schemes to illegally convert PWW’s assets through a pattern of racketeering. 19. The Defendants have filed a joint motion seeking to disqualify Mr. Cody as counsel for his clients. 3 64020. Mr. Cody has been prohibited from the representation of Vivian Braxton and PWW by Orders of the Court of Appeals and Shelby County Chancery Court as set forth in the Petition for Discipline filed against him on August 2, 2012. 21, | Mr. Cody was publicly censured on March 16, 2012, for having a concurrent conflict of interest in the representation of Vivian Braxton and PWW as set forth in the Petition for Discipline filed against him on August 2, 2012. 22. Mr, Cody’s continuing representation of Vivian Braxton and PWW constitutes an ongoing concurrent conflict of interest. 23. Mr. Cody’s filing of the RICO lawsuit is frivolous and without merit. 24, Mr Cody continues to disregard previous court orders prohibiting his representation of Vivian Braxton and PWW. 25. Mr. Cody’s filing of the RICO lawsuit has no substantial purpose other than to embarrass, delay, or burden third persons. 26. Mr, Cody has made statements in the RICO complaint concerning the integrity of judges and a public legal officer that he knows to be false or which were made with reckless disregard to the truth, 27. Mr. Cody has engaged in conduct prejudicial to the administration of justice ALL :D VIOLATIO} 28. The acts and omissions by Mr. Cody constitute ethical misconduct in violation of Rules of Professional Conduct 1.7(a), 3.1, 3.4(c), 4.4(a)(1), 8.2(a), and 8.4(a) and (dl): 641Rulle 1.7(a) CONFLICT OF INTEREST: CURRENT CLIENTS (Effective January 1, 2011) (2) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists (1) the representation of one client will be directly adverse to another client; or (2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's respon: to another client, a former client or a third person or by a personal interest of the lawyer. Rule 3.1 MERITORIOUS CLAIMS AND CONTENTIONS (Effective January 1, 2011) A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless after reasonable inquiry the lawyer has a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification, or reversal of existing law. A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may nevertheless so defend the proceeding as to require that every element of the case be established. Rule3.4(¢) FAIRNESS TO OPPOSING PARTY AND COUNSEL (Effective January 1, 2011) A lawyer shall not: (©) knowingly disobey an obligation under the rules of a tribunal, except for an open refusal based on an assertion that no valid obligation exists; Rule 4.4(a)(1) RESPECT FOR THE RIGHTS OF THIRD PERSONS (Effective January 1, 2011) (2) Inrepresenting a client, a lawyer shall not: (1) use means that have no substantial purpose other than to embarrass, delay, or burden a third person or knowingly use methods of obtaining evidence that violate the legal rights of such a person; 642Rule 8.2(a) JUDICIAL AND LEGAL OFFICIALS (Effective January 1, 2011) (@) A lawyer shall not make a statement that the lawyer knows to be false or that is made with reckless disregard as to its truth or faisity concerning the qualifications or integrity of the following persons: (2) ajudge; @) — anadjudicatory officer or public legal officer; or ) candidate for election or appointment to judicial or legal office, Rule 8.4 MISCONDUCT (Effective January 1, 2011) Itis professional misconduct for a lawyer to: (@) Violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another; (@ engage in conduct that is prejudicial to the administration of justice; AGGRAVATING FACTORS 29. After misconduct has been established, ABA Standards for Imposing Lawyer Sanctions, Section 9.2, provides for aggravating circumstances that may justify an increase in the degree of discipline to be imposed. 30. Mr. Cody's prior disciplinary offenses are an aggravating circumstance justifying an increase in the degree of discipline to be imposed against him. 31. Mr. Cody’s pattern of misconduct is an aggravating circumstance justifying an increase in the degree of discipline to be imposed ag t him, 32. Mr. Cody's multiple offenses are an aggravating circumstance justifying an increase in the degree of discipline to be imposed against him, 64333. Mr. Cody's refusal to acknowledge the wrongful nature of his conduct is an aggravating circumstance justifying an increase in the degree of discipline to be imposed against him. 34. Mr. Cody has substantial experience in the practice of law having been licensed in ‘Tennessee since 1984, which is an aggravating circumstance justifying an increase in the degree of discipline to be imposed against him. PRAYER FOR RELD 35. WHEREFORE, the Board requests that the appointed Hearing Panel hear testimony and receive evidence in this cause and make such finding of fact and order such disciplinary action as it may deem appropriate. Respectfully Submitted, ‘in D, Balkwill, BPR #20424 iplinary Counsel - Litigation 10 Cadillac Drive, Suite 220 Brentwood, Tennessee 37027 (615) 695-0943 644TO: HOMERL. CODY You are hereby notified that you are required to file your Answer with Rita Webb, Executive Secretary, Board of Professional Responsibility, 10 Cadillac Drive, Suite 220, Brentwood, Tennessee 37027, and serve a copy of your Answer upon Disciplinary Counsel within twenty (20) days after service of this Petition. If you fail to file an Answer, the allegations contained in the Petition for Discipline shall be deemed admitted and a default judgment taken, Certificate of Service I certify that a copy of the foregoing has been sent to Respondent, Homer L. Cody, by regular and Certified Mail No. 7006 0100 0005 9970 1984, to 6955 N. Watkins Road, Millington, TN, 38053, on this the {Ut day of January, 2013, 645