                  IN THE SUPREME COURT OF TENNESSEE
                             AT NASHVILLE
                                 February 5, 2014 Session

                    WILLIAM CALDWELL HANCOCK v.
                BOARD OF PROFESSIONAL RESPONSIBILITY
                 OF THE SUPREME COURT OF TENNESSEE

           Direct Appeal from the Chancery Court for Davidson County
          Nos. 11-1816-IV & 11-1797-IV  Donald P. Harris, Special Judge


                No. M2012-02596-SC-R3-BP - Filed September 3, 2014


A federal bankruptcy court entered judgment denying a Nashville attorney’s application for
approximately $372,000 in attorney’s fees and expenses. Nine months later, the attorney
emailed the bankruptcy judge who denied his fee application, calling the judge a “bully and
clown” and demanding that he provide a written apology for denying the fee application.
The Board of Professional Responsibility instituted a disciplinary action against the attorney,
and a hearing panel of the Board found that the attorney violated several Rules of
Professional Conduct by sending the email and recommended that the attorney be suspended
from the practice of law for thirty days. The chancery court modified the hearing panel’s
judgment to include additional violations for misconduct associated with the attorney’s briefs
filed in the district court but affirmed the remainder of the hearing panel’s judgment. The
attorney timely appealed to this Court. We affirm the hearing panel’s conclusion that the
attorney’s email violated the rule against ex parte communications and was also sanctionable
as “conduct intended to disrupt a tribunal.” We conclude, however, that the hearing panel
erred by finding the attorney in violation of the ethical rule that prohibits attorneys from
making false statements about the qualifications or integrity of a judge. We also reverse the
chancery court’s modification of the hearing panel’s judgment. We affirm the attorney’s
thirty-day suspension from the practice of law.

                     Tenn. Sup. Ct. R. 9, § 1.3 Direct Appeal;
        Judgment of the Chancery Court Affirmed in Part; Reversed in Part

J ANICE M. H OLDER, J., delivered the opinion of the Court, in which S HARON G. L EE , J.,
joined. G ARY R. W ADE, C.J., and C ORNELIA A. C LARK, J., each filed a concurring opinion.
W ILLIAM C. K OCH, J R., J., not participating.

William Caldwell Hancock, Nashville, Tennessee, Pro Se.
Krisann Hodges, Brentwood, Tennessee, for the appellee, Board of Professional
Responsibility of the Supreme Court of Tennessee.

                                                 OPINION

                                    I. Facts and Procedural History

       On August 20, 2010, the Board of Professional Responsibility of the Supreme Court
of Tennessee (“the Board”) filed a petition for discipline against William Caldwell Hancock,
an attorney licensed in Tennessee since 1977. In its petition, the Board alleged that Mr.
Hancock violated a number of the Rules of Professional Conduct while acting as debtor’s
counsel for Barnhill’s Buffet, Inc. (“Barnhill’s”) in a bankruptcy action filed in the United
States Bankruptcy Court for the Middle District of Tennessee.12 On February 1, 2011, the
Board amended its petition for discipline, but the facts alleged in the Board’s initial and
amended petitions are identical. A hearing panel heard the case on October 11 and 12, 2011,
during which the following facts were revealed.

       On December 3, 2007, Mr. Hancock filed a voluntary bankruptcy petition on behalf
of Barnhill’s in the United States Bankruptcy Court for the Middle District of Tennessee.
After several months of contentious litigation, Mr. Hancock moved to withdraw as Barnhill’s
counsel on April 18, 2008, stating:

        [I have] been subjected to what are considered to be criminal threats of adverse
        action to be taken unless [Barnhill’s] or other parties could not or would not
        affirmatively meet the demand of other counsel for a set aside of estate or
        creditor assets to secure said counsel’s legal fees, which threats turned into
        reality when those demands were not met. The United States Trustee seems
        unwilling to remedy that misconduct. That same counsel has knowingly made
        (and refused to withdraw) wholly false allegations regarding [me] and
        [Barnhill’s] management in order to leverage a fees carve out of $45,000 from
        a creditor who opposed conversion.

Mr. Hancock subsequently filed a notice to withdraw his motion, but his employment was
eventually terminated when Barnhill’s bankruptcy was converted to a Chapter 7 proceeding


        12
          The Board’s petition also alleged that Mr. Hancock violated several rules of professional conduct
while acting as debtor’s counsel for Innovative Entertainment Concepts, Inc. (“IEC”) in another voluntary
bankruptcy action that was filed in the United States Bankruptcy Court for the Middle District of Tennessee.
The hearing panel determined, however, that Mr. Hancock had not committed professional misconduct in
the IEC case, and the hearing panel’s findings in that regard are not challenged by either party in this appeal.
We have therefore limited our discussion of the issues in this opinion to Mr. Hancock’s relevant conduct in
the Barnhill’s case.

                                                      -2-
and a trustee was appointed. On June 3, 2008, Mr. Hancock filed an initial fee application
with the bankruptcy court seeking $355,975 for attorney’s fees and expenses. The United
States Trustee objected to Mr. Hancock’s fee application, arguing, among other things, that
Mr. Hancock’s fees were unnecessarily and unreasonably inflated by his “abusive . . .
litigation tactics” during the case and by his failure to make adequate disclosures concerning
his alleged prior representation of an interested party in the Barnhill’s case. On July 7, 2008,
Mr. Hancock filed a First and Final Application for Allowance of Compensation, seeking
$356,554.50 in fees and $1071.55 in expenses. Mr. Hancock amended his final fee
application on July 17, 2008, requesting total compensation in the amount of $372,967.55
for attorney’s fees and expenses.

        Following a five-day hearing, the bankruptcy court entered a twenty-six-page
memorandum opinion on December 9, 2008, denying Mr. Hancock’s request for fees but
awarding him $1071.55 for expenses. In support of its denial of Mr. Hancock’s fee, the
bankruptcy court described Mr. Hancock’s behavior throughout the Barnhill’s case as
“unprofessional,” “dilatory,” “disruptive,” “troubling,” “unacceptable,” “abusive,”
“intractable,” and “unfortunate.” The bankruptcy court acknowledged that Mr. Hancock
possessed a “keen intellect and understanding of bankruptcy law,” but it was “troubled
deeply” by his conduct and was “saddened by [his] apparent inability to either realize or
control his inappropriate actions and his propensity for conservative disclosures rather than
overt transparency.”

        Mr. Hancock appealed the bankruptcy court’s denial of his fee to the United States
District Court for the Middle District of Tennessee. Mr. Hancock’s brief was due to be filed
in the district court on March 27, 2009, but on March 25, 2009, he moved to extend the time
for filing a brief, which the district court granted, extending Mr. Hancock’s filing deadline
to April 27, 2009. On May 1, 2009, Mr. Hancock filed a second motion to extend his time
for filing a brief and additionally sought “permission to file a brief in excess of [twenty-five]
but not more than [fifty] pages in length.” The district court granted Mr. Hancock’s requests
on May 11, 2009. As of August 5, 2009, however, Mr. Hancock had not yet filed a brief, and
the district court therefore entered an order to show cause why his appeal should not be
dismissed. Rather than respond to the district court’s show cause order, Mr. Hancock filed
a 128-page brief on August 14, 2009.

       The Trustee moved to dismiss Mr. Hancock’s appeal or, in the alternative, to compel
his compliance with the district court’s prior order limiting his brief to fifty pages. On
August 31, 2009, the district court entered an order requiring Mr. Hancock to file a revised
brief not to exceed fifty pages. In response, Mr. Hancock filed a “revised brief” on
September 21, 2009. Although the two briefs were substantively identical, the font size and
spacing used in the revised brief reduced its size from 128 pages to fifty-one pages. Rather
than dismiss Mr. Hancock’s appeal for his failure to file a compliant brief, the district court
entered an order on September 23, 2009, summarily affirming the bankruptcy court’s ruling.

                                               -3-
In its order, the district court explained that it chose a summary affirmance because it “fully
expect[ed Mr. Hancock] to appeal further to the Sixth Circuit Court of Appeals, where he
might receive a decision on the merits.”

       On September 28, 2009, Mr. Hancock sent the following email to Judge George Paine,
the bankruptcy court judge who denied his fee application in the Barnhill’s case:




                                              -4-
       Two days after sending the email, Mr. Hancock appealed to the Sixth Circuit, which
affirmed the district court’s decision. See Hancock v. McDermott, 646 F.3d 356, 360 (6th
Cir. 2011).

                                      Findings of the Hearing Panel

       On November 2, 2011, the hearing panel filed its written findings with the Board in
compliance with Tennessee Supreme Court Rule 9. See Tenn. Sup. Ct. R. 9, § 8.3 (requiring
the hearing panel to submit its written findings within fifteen days of the conclusion of the
hearing).13 The hearing panel concluded that by sending the email to Judge Paine, Mr.
Hancock violated Rules 3.5(b)14 and (e),15 8.2(a)(1),16 and 8.4(a) and (d).17 The hearing
panel, however, did not find that Mr. Hancock violated any other Rules of Professional
Conduct as alleged by the Board in its petitions.18 The hearing panel considered the
American Bar Association’s Standards for Imposing Lawyer Sanctions (“ABA Standards”)
and determined that a suspension was appropriate. The hearing panel next determined that
the Board had proven the following aggravating factors: (1) Mr. Hancock’s multiple


        13
           Effective January 1, 2014, this Court made comprehensive changes to Rule 9. The events
described in this opinion, however, occurred prior to the effective date of our rule change. Any references
in this opinion to Rule 9 are therefore to the version in effect at the time of Mr. Hancock’s disciplinary
hearing.
        14
          Tennessee Supreme Court Rule 8, RPC 3.5(b) provides that “[a] lawyer shall not . . . communicate
ex parte with [a judge] during the proceeding unless authorized to do so by law or court order.”
        15
          Tennessee Supreme Court Rule 8, RPC 3.5(e) prohibits lawyers from “engag[ing] in conduct
intended to disrupt a tribunal,” and this prohibition extends “to any proceeding of a tribunal, including a
deposition.” Tenn. Sup. Ct. R. 8, RPC 3.5, cmt. 6.
        16
           Tennessee Supreme Court Rule 8, RPC 8.2(a)(1) states that “[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 falsity concerning
the qualifications or integrity of [a judge].”
        17
           Tennessee Supreme Court Rule 8, RPC 8.4(a) states, “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.” Similarly, Tennessee Supreme Court Rule 8, RPC 8.4(d) provides
that “[i]t is professional misconduct for a lawyer to . . . engage in conduct that is prejudicial to the
administration of justice.”
        18
           The hearing panel rejected the Board’s contention that Mr. Hancock violated the following Rules
of Professional Conduct during the Barnhill’s case: 1.5(a) (fees), 1.7(a) (conflicts), 3.2 (expediting litigation),
3.3(a)(1) (candor toward the tribunal), 3.4(c) (fairness to opposing counsel), 3.5(e) (impartiality and decorum
of the tribunal), 4.4(a) (respect for the rights of third persons), and 8.4(c) (conduct involving dishonesty,
fraud, deceit, or misrepresentation). The hearing panel also found that Mr. Hancock’s email to Judge Paine
did not violate Rule 4.1(a), which states that “[i]n the course of representing a client, a lawyer shall not
knowingly make a false statement of material fact or law to a third person.” Tenn. Sup. Ct. R. 8, RPC 4.1.

                                                       -5-
offenses; (2) his refusal to acknowledge the wrongful nature of his conduct; and (3) his
substantial experience in the practice of law. In mitigation, the hearing panel considered Mr.
Hancock’s personal and emotional problems during and after the Barnhill’s case. Based on
its assessment of the evidence and the relevant aggravating and mitigating circumstances, the
hearing panel concluded that Mr. Hancock should be suspended from the practice of law for
thirty days.

        Both parties appealed the hearing panel’s judgment by filing separate petitions for
certiorari in the Chancery Court for Davidson County. See Tenn. Sup. Ct. R. 9, § 1.4 (“An
appeal from the recommendation or judgment of a hearing panel must be filed in the circuit
or chancery court of the county wherein the office of the respondent[-attorney] was located
at the time the charges were filed with the Board.”). The chancery court heard arguments
from counsel and entered judgment on October 25, 2012, affirming Mr. Hancock’s thirty-day
suspension but modifying the hearing panel’s judgment to include violations of Rules 3.2,19
3.4(c),20 8.4(a), and 8.4(d) for failing to file a brief in the district court that complied with the
district court’s prior orders and with its local rules.21

       In its memorandum opinion, the chancery court explained that although the hearing
panel found that Mr. Hancock’s revised brief failed to comply with the district court’s orders
and with the local rules, the hearing panel nevertheless failed to find Mr. Hancock in
violation of the Rules of Professional Conduct for his actions concerning the district court
brief. The chancery court concluded that the hearing panel’s failure to make these findings
“appears to have been an oversight and . . . renders the decision of the hearing panel arbitrary
with regard to these alleged violations. . . .” The chancery court further explained that it
modified the judgment rather than remand the case to the hearing panel because “the
violations alleged would not justify the imposition of additional sanctions and this matter
needs to be concluded.” Accordingly, the chancery court affirmed Mr. Hancock’s thirty-day
suspension from the practice of law, and Mr. Hancock timely appealed to this Court.




        19
           Tennessee Supreme Court Rule 8, RPC 3.2 states, “A lawyer shall make reasonable efforts to
expedite litigation.”
        20
          Tennessee Supreme Court Rule 8, RPC 3.4(c) prohibits lawyers from “knowingly disobey[ing] an
obligation under the rules of a tribunal, except for an open refusal based on an assertion that no valid
obligation exists.”
        21
          On February 12, 2014, Mr. Hancock filed a “Motion to Annul the Judgment on Appeal for Fraud
Perpetrated Upon Disciplinary Tribunals and the Court by Disciplinary Counsel” in this Court. In his
motion, Mr. Hancock argues that the district court’s order did not impose a fifty-page limit for his brief.
After considering Mr. Hancock’s motion, the Board’s response, and the entire record, we conclude that Mr.
Hancock’s motion is without merit, and it is therefore denied.

                                                   -6-
                                         II. Analysis

       Our review of the hearing panel’s judgment is governed by Tennessee Supreme Court
Rule 9, section 1.3, which provides as follows:

       The court may reverse or modify the [hearing panel’s] decision if the rights of
       the petitioner have been prejudiced because the panel’s findings, inferences,
       conclusions or decisions are: (1) in violation of constitutional or statutory
       provisions; (2) in excess of the 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.

Absent these limited circumstances, the hearing panel’s decision should not be disturbed on
appeal. Maddux v. Bd. of Prof’l Responsibility, 409 S.W.3d 613, 621-22 (Tenn. 2013).
Tennessee Supreme Court Rule 9, section 1.3 further prohibits us from substituting our
judgment for that of the hearing panel on questions of fact and the weight of the evidence.

                                A. Ex Parte Communication

         We first address Mr. Hancock’s contention that the hearing panel erred by finding him
in violation of Tennessee Supreme Court Rule 8, RPC 3.5(b), which states that “[a] lawyer
shall not communicate ex parte with [a judge] during the proceeding unless authorized to do
so by law or court order.” Mr. Hancock maintains that because he had appealed Judge
Paine’s ruling before he sent the email, it was not sent “during the proceeding” and is
therefore not an ex parte communication. See generally Malmquist v. Malmquist, 415
S.W.3d 826 (Tenn. Ct. App. 2011), perm. app. denied (Tenn. Feb. 21, 2012) (concluding that
a trial judge was not required to recuse himself from a case when a threat allegedly made by
one of the litigants was communicated to the trial judge through a third party while the case
was on appeal). In contrast, the Board argues that although Mr. Hancock had appealed, his
email was sent while the Barnhill’s bankruptcy was ongoing in Judge Paine’s court. The
Board therefore contends that Mr. Hancock’s email was sent “during the proceeding.”

         The phrase “during the proceeding” is not defined in Rule 3.5 or in its accompanying
comments. Comment 1 to Rule 3.5 states, however, that “[m]any forms of improper
influence upon a tribunal . . . are specified in the Tennessee Code of Judicial Conduct, with
which an advocate should be familiar.” The Code of Judicial Conduct’s analog to Rule 3.5
prohibits judges from “initiat[ing], permit[ting], or consider[ing] ex parte communications
. . . concerning a pending or impending matter.” Tenn. Sup. Ct. R. 10, RJC 2.9. The Code
of Judicial Conduct defines a “pending matter” as “a matter that has commenced” and
explains that “a matter continues to be pending through any appellate process until final
disposition.” Tenn. Sup. Ct. R. 10, Terminology. Because the judicial prohibition against

                                             -7-
ex parte communications extends to cases that have not yet completed the appellate process,
we can determine no reason why attorneys should not be similarly constrained. See Leslie
W. Abramson, The Judicial Ethics of Ex Parte and Other Communications, 37 Hous. L. Rev.
1343, 1391 (2001) (noting that “a proceeding is ‘pending’ from the filing of the claim until
the rendition of a final judgment” and that a lawyer may only communicate with a judge
about the merits of the case “[o]nce the time for appeal has run”); Alex Rothrock, Ex Parte
Communications with a Tribunal: From Both Sides, 29 Colo. Law. 55, 58 (2000) (noting that
“[t]he ‘pending or impending proceeding’ limitation on prohibited ex parte communications
has been extended to Rule 3.5(b)”); see also Restatement (Third) of The Law Governing
Lawyers § 113(1) (2000) (prohibiting attorneys from “knowingly communicat[ing] ex parte
with a judicial officer before whom a proceeding is pending concerning the matter, except
as authorized by law”) (emphasis added). Accordingly, Rule 3.5(b)’s proscription of ex parte
communications extends “through any appellate process until final disposition.” Tenn. Sup.
Ct. R. 10, Terminology.

       Here, Mr. Hancock emailed Judge Paine on September 28, 2009, and specifically
referenced Judge Paine’s denial of his fee application. Two days later, Mr. Hancock
appealed the district court’s summary affirmance to the United States Court of Appeals for
the Sixth Circuit. Because the time in which Mr. Hancock could appeal the district court’s
ruling had not yet expired, the email was sent “during the proceeding” and constitutes an ex
parte communication in violation of Rule 3.5(b). We therefore affirm the hearing panel’s
finding that Mr. Hancock violated Rule 3.5(b).

        Although we have concluded that Mr. Hancock’s email to Judge Paine constituted an
ex parte communication, we must nevertheless address Mr. Hancock’s alternative argument
that he may not be disciplined for his email because the email was permitted by Rule 9003(a)
of the Federal Rules of Bankruptcy Procedure. Rule 9003(a) states that “[e]xcept as
otherwise permitted by applicable law, any examiner, any party in interest, and any attorney,
accountant, or employee of a party in interest shall refrain from ex parte meetings and
communications with the court concerning matters affecting a particular case or proceeding.”

        Mr. Hancock contends that federal precedents have interpreted Rule 9003(a) as only
prohibiting communications made prior to the trial court’s rendering a final decision. Mr.
Hancock cites, for example, the United States Court of Appeals for the Fifth Circuit’s
decision in In re Texas Extrusion Corp., 844 F.2d 1142 (5th Cir. 1988). In that case, the
bankruptcy judge verbally confirmed a joint plan of reorganization and asked counsel for one
of the creditors to prepare proposed findings of fact and conclusions of law. Id. at 1149-50.
The creditor’s counsel submitted proposed findings of fact and conclusions of law directly
to the bankruptcy judge and did not provide copies to the debtor’s counsel. Id. at 1150. On
appeal, the debtor argued that the creditor’s counsel engaged in ex parte communications in
violation of Bankruptcy Rule 9003(a). Id. at 1164. The Fifth Circuit reasoned, however, that
“[t]he matter was no longer pending for purposes of these provisions prohibiting ex parte

                                             -8-
contacts between counsel for a party and a judge in whose court that party’s case is pending.”
Id.

       Notwithstanding the factual differences between Mr. Hancock’s case and In re Texas
Extrusion Corp., we do not view the Fifth Circuit’s decision as controlling law in this
disciplinary proceeding. As the advisory committee’s notes to Rule 9003(a) make clear,
“[Rule 9003(a)] is not a substitute for or limitation of any applicable canon of professional
responsibility or judicial conduct.” Fed. R. Bankr. P. 9003(a) advisory committee’s note.

        Pursuant to Tennessee Supreme Court Rule 8, RPC 8.5(a), Mr. Hancock is subject to
this Court’s disciplinary authority “regardless of where [his] conduct occur[red].” The
applicable standards of professional conduct in this case therefore derive from Tennessee
Supreme Court Rule 8, not Bankruptcy Rule 9003(a). See Tenn. Sup. Ct. R. 8, RPC 8.5(b)(1)
(stating that the applicable rules of professional conduct “for conduct in connection with a
matter pending before a tribunal[ are] the rules of the jurisdiction in which the tribunal sits,
unless the rules of the tribunal provide otherwise.”); see also Bankr. M.D. Tenn. R. 2091-1(a)
(“The standards of professional conduct for an attorney who appears for any purpose [in the
United States Bankruptcy Court for the Middle District of Tennessee] shall include the
current rules of professional conduct adopted by the Supreme Court of the State of
Tennessee.”).22 Accordingly, Mr. Hancock’s preemption argument is without merit. We
therefore affirm the hearing panel’s finding that Mr. Hancock violated Rule 3.5(b).

                           B. Conduct Intended to Disrupt a Tribunal

         We must next determine whether the hearing panel erred by finding that Mr.
Hancock’s email constituted “conduct intended to disrupt a tribunal.” Tenn. Sup. Ct. R. 8,
RPC 3.5(e). Comment 5 to Rule 3.5(e) explains that an attorney’s “function is to present
evidence and argument so that the cause may be decided according to law.” To that end,
“[a]n advocate can present the cause, protect the record . . . , and preserve professional
integrity” without “belligerence or theatrics.” Tenn. Sup. Ct. R. 8, RPC 3.5 cmt. 5. An
attorney’s ethical obligation to avoid engaging in conduct intended to disrupt a tribunal
extends to “any proceeding of a tribunal, including a deposition,” Tenn. Sup. Ct. R. 8, RPC
3.5 cmt. 6, and the attorney’s conduct “need not occur inside the courtroom to be disruptive
to a tribunal.” Ann. Mod. Rules Prof. Cond., Rule 3.5 (7th ed. 2011). But see Geoffrey C.
Hazard, Jr. & W. William Hodes, The Law of Lawyering § 31.6, at 31-38 (3d ed. 2007)
(opining that “[i]f a lawyer takes action outside a courtroom setting, it is virtually impossible
that it could ‘disrupt’ a tribunal or be intended to do so”).


        22
           The Local Rules of Court for the United States Bankruptcy Court for the Middle District of
Tennessee underwent comprehensive amendments that went into effect on December 1, 2013. Because the
events described in this opinion preceded those amendments, all references to the Local Bankruptcy Rules
in this opinion are to the Rules in effect at the time of Mr. Hancock’s disciplinary hearing.

                                                  -9-
       Based on the text of the rule and its comments, the scope of Rule 3.5(e) is clearly
limited to those situations in which an attorney’s actions interfere with a tribunal’s ability to
conduct its affairs. Although we recognize that Mr. Hancock was not involved in the
ongoing litigation of Barnhill’s bankruptcy action when he emailed Judge Paine, a
“proceeding” was nevertheless pending because his time for appealing to the Sixth Circuit
had not yet expired. As the hearing panel acknowledged, Mr. Hancock’s email has a
“threatening tone” and represents the “abusive [and] obstreperous conduct” that Rule 3.5(e)
prohibits. Tenn. Sup. Ct. R. 3.5(e) cmt. 5. We therefore conclude that Mr. Hancock’s
violation of Rule 3.5(e) is supported by substantial and material evidence.23

                         C. Statement Concerning Judge Paine’s Integrity

        We next address Mr. Hancock’s challenge to Tennessee Supreme Court Rule 8, RPC
8.2(a)(1), which provides that “[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 falsity concerning the
qualifications or integrity of . . . a judge . . . .” Mr. Hancock maintains that Rule 8.2(a)(1)
is a facially unconstitutional, content-based restriction on his right to free speech under the
United States and Tennessee Constitutions. See U.S. Const. amend. I (“Congress shall make
no law . . . abridging the freedom of speech . . . .”); Tenn. Const. art. 1, § 19 (stating in part
that “[t]he free communication of thoughts and opinions, is one of the invaluable rights of
man, and every citizen may freely speak, write, and print on any subject”); see also S. Living,
Inc. v. Celauro, 789 S.W.2d 251, 253 (Tenn. 1990) (recognizing that Article I, Section 19 of
the Tennessee Constitution “should be construed to have a scope at least as broad” as that of
the First Amendment to the United States Constitution). Specifically, Mr. Hancock borrows
from the law of defamation and argues that Rule 8.2(a)(1) violates the First Amendment
because it does not require the Board to prove that the attorney “published” the false
statement about the judge’s integrity or qualifications. Mr. Hancock also contends that Rule
8.2(a)(1) is unconstitutional as applied to his case because the Board did not prove that his
statements in the email were “actually false.”




        23
           Mr. Hancock also asserts in his brief that Rule 3.5(e) is unconstitutional. Mr. Hancock cites no
authority for this proposition and provides no rationale for his conclusion. We therefore decline to address
this issue. But see Gentile v. State Bar of Nev., 501 U.S. 1030, 1081-82 (1991) (O’Connor, J., concurring)
(stating that attorneys “may legitimately be subject to ethical precepts that keep them from engaging in what
otherwise might be constitutionally protected speech”); Bd. of Prof’l Responsibility v. Slavin, 145 S.W.3d
538, 549 (Tenn. 2004) (recognizing that attorneys’ First Amendment rights “are often subordinated to other
interests inherent in the judicial setting”); Ramsey v. Bd. of Prof’l Responsibility, 771 S.W.2d 116, 121
(Tenn. 1989) (“A lawyer has every right to criticize court proceedings and the judges and courts of this State
after a case is concluded, so long as the criticisms are made in good faith with no intent or design to willfully
or maliciously misrepresent those persons and institutions or to bring them into disrepute.”) (emphasis
added).

                                                      -10-
       It is well settled that this Court will decide constitutional issues only when doing so
is “absolutely necessary for [the] determination of the case and the rights of the parties.”
Owens v. State, 908 S.W.2d 923, 926 (Tenn. 1995). We therefore resolve appeals on non-
constitutional grounds whenever it is possible to do so. Keough v. State, 356 S.W.3d 366,
371 (Tenn. 2011). Because we conclude that Rule 8.2 implicitly requires proof of
publication, we decline to decide Mr. Hancock’s constitutional argument.

        Rule of Professional Conduct 8.2 prohibits an attorney from making false statements
concerning the integrity or qualifications of a judge because these statements “unfairly
undermine public confidence in the administration of justice.” Tenn. Sup. Ct. R. 8, RPC 8.2
cmt. 1; Ramsey, 771 S.W.2d at 121 (describing the harm that results from a lawyer’s false
statements about a judge as being the “dimin[ution of] the confidence of the public in our
courts”). By the same token, Rule 8.2 is “not designed to shield judges from unpleasant or
offensive criticism.” Office of Disciplinary Counsel v. Gardner, 793 N.E.2d 425, 432 (Ohio
2003); see also In re Green, 11 P.3d 1078, 1087 (Colo. 2000) (recognizing a “reduced
governmental interest” when the attorney’s criticisms of the judge were communicated only
to the judge and opposing counsel); In re Wilkins, 777 N.E.2d 714, 718 (Ind. 2002)
(recognizing “the state’s interest in preserving the public’s confidence in the judicial
system”); In re Holtzman, 577 N.E.2d 30, 33 (N.Y. 1991) (stating that an attorney’s public
statements to media about a trial judge “undermine[d] public confidence in the judicial
system”); Tobin A. Sparling, Attorneys Un-Muzzled: Does Republican Party of Minnesota
v. White Invalidate the Use of an Objective Standard in Cases Involving Extrajudicial Speech
Criticizing a Judge?, 30 Hamline L. Rev. 59, 70 (2007) (characterizing courts’ primary
justification for sanctioning attorneys for statements about judges as being that “[t]he judicial
system suffers when [an attorney’s] false criticism diminishes public confidence in its
effectiveness and impartiality”). But see In re Evans, 801 F.2d 703, 706 (4th Cir. 1986)
(disbarring an attorney from federal court for statements made in a letter to a judge that were
“undignified, discourteous, and degrading” although the letter was sent to only the subject
judge).

       This Court has long recognized that attorneys are in the best position to know the
“character and efficiency of our judges.” In re Hickey, 258 S.W. 417, 429 (Tenn. 1923).
Because attorneys are among the most credible of witnesses on the qualifications of judges,
the public routinely relies on attorneys’ assessments when deciding whether to vote for a
particular candidate seeking judicial office. Tenn. Sup. Ct. R. 8, RPC 8.2 cmt. 1; see also In
re Green, 11 P.3d at 1085 (acknowledging that public criticism of judges by attorneys is an
important public interest because many judges in Colorado are subject to retention elections).
Rule 8.2 therefore encourages attorneys to provide “honest and candid opinions” for the
public’s benefit. Tenn. Sup. Ct. R. 8, RPC 8.2 cmt 1.

       Given the purpose of Rule 8.2(a)(1) and the harm that it seeks to prevent, we conclude
that an attorney may be disciplined pursuant to Rule 8.2 only if the false statement is

                                              -11-
communicated to a third party. See Restatement (Third) of The Law Governing Lawyers
§ 114 (providing that “[a] lawyer may not knowingly or recklessly make publicly a false
statement of fact concerning the qualifications or integrity of an incumbent of a judicial
office”) (emphasis added); see also id. at cmt. b (“Because the purpose of [Section 114] is
to protect the public reputation of the judicial and public legal office, there is less reason for
concern with statements made by a lawyer in private conversation. Such conversation is not
included within the rule.”). We are therefore unable to conclude that Mr. Hancock’s email
falls within the scope of Rule 8.2(a)(1) because the record lacks any indication that Mr.
Hancock sent the email to anyone other than Judge Paine.24 Although we agree with the
hearing panel’s conclusion that Mr. Hancock’s email was “extremely disrespectful,” we
cannot agree that it is sanctionable under Rule 8.2(a)(1). We therefore reverse the hearing
panel’s finding that Mr. Hancock violated Rule 8.2(a)(1).

                       D. Chancery Court’s Modification of the Judgment

        We next address the chancery court’s modification of the judgment to include
violations of Rules of Professional Conduct 3.2, 3.4(c), 8.4(a), and 8.4(d) arising out of Mr.
Hancock’s late-filed and noncompliant briefs in the district court. The chancery court
concluded that because the hearing panel found as a factual matter that Mr. Hancock’s
revised brief failed to comply with the district court’s orders and with the local rules, the
hearing panel’s failure to find rule violations for these actions constituted “oversight and . . .
render[ed] the decision of the hearing panel arbitrary.” See Tenn. Sup. Ct. R. 9, § 1.3
(permitting the court to reverse or modify the hearing panel’s decision if the decision is,
among other things, “arbitrary or capricious or characterized by an abuse of discretion or
clearly unwarranted discretion”). Although we agree that the hearing panel’s judgment does
not include any mention of the alleged violations arising from Mr. Hancock’s briefs in the
district court, we disagree with the chancery court’s conclusion that the absence of findings
renders the hearing panel’s decision arbitrary.

      A decision is arbitrary if it “disregards the facts or circumstances of the case without
some basis that would lead a reasonable person to reach the same conclusion.” City of
Memphis v. Civil Serv. Comm’n, 216 S.W.3d 311, 316 (Tenn. 2007) (quoting Jackson



        24
            Contrary to Justice Clark’s assertions, the critical issue in this case is not whether Mr. Hancock
published an email to persons other than Judge Paine. Instead, our analysis is limited to the email for which
he was found in violation of Rule 8.2(a)(1). In its Memorandum Opinion, the hearing panel quoted
extensively from the body of Mr. Hancock’s email to Judge Paine. It did not, however, reference Mr.
Hancock’s September 11, 2009 email to his landlords. Furthermore, aside from Mr. Hancock’s request that
the attachments be admitted simultaneously with his email to Judge Paine, none of the testimony presented
at the disciplinary hearing concerned the attachments. We therefore disagree with Justice Clark’s conclusion
that substantial and material evidence supports the hearing panel’s finding that Mr. Hancock violated Rule
8.2(a)(1).

                                                    -12-
Mobilphone Co. v. Tenn. Pub. Serv. Comm’n, 876 S.W.2d 106, 110-11 (Tenn. Ct. App.
1993)). Based on our review of the hearing panel’s memorandum opinion and its written
judgment, we are unable to conclude that the hearing panel made any “finding[], inference[],
conclusion[] or decision[]” with respect to Mr. Hancock’s alleged violations of Rules 3.2 and
3.4(c).25 It is well settled that the reviewing court is without authority to amend, modify, or
reverse the judgment of the hearing panel unless the appealing party establishes one of the
enumerated circumstances in section 1.3. Hyman v. Board of Prof’l Responsibility, No.
E2012-02091-SC-R3-BP, ___ S.W.3d ___, ___, 2014 WL 1280265, at *7 (Tenn. Mar. 31,
2014). As its basis for modifying the hearing panel’s judgment, the chancery court stated
that “the violations alleged would not justify the imposition of additional sanctions and this
matter needs to be concluded.” Neither of these justifications expressed by the chancery
court are among those enumerated in Tennessee Supreme Court Rule 9, section 1.3.

        As Mr. Hancock notes in his briefs filed in this Court, the hearing panel’s silence
concerning his alleged violations of Rules 3.2, 3.4(c), 8.4(a), and 8.4(d) may reflect its intent
to dismiss these allegations of misconduct. Perhaps the panel was persuaded by his
testimony that a resurgence of mental illness during the time of his appeal to the district court
precluded him from complying with the court’s orders. See Tenn. Sup. Ct. R. 8, RPC 3.2
cmt. 1 (recognizing that “there will be occasions when a lawyer may properly seek a
postponement for personal reasons, such as illness”); id., RPC 3.4(c) (restricting the reach
of the rule to situations in which the lawyer “knowingly disobey[s] an obligation under the
rules of a tribunal”) (emphasis added); id., RPC 8.4 cmt. 9 (stating in part that “[f]ailure to
comply with a court order is not a disciplinary offense . . . when it does not evidence
disrespect for the law . . . because the lawyer is unable to comply with the order”).

       Conversely, the panel may have agreed with the Board’s position that Mr. Hancock
failed to prove that his mental illness prevented him from complying with his ethical
obligations and that his testimony concerning his mental illness is merely a mitigating factor
for the panel to consider when determining the appropriate sanction to impose. See ABA
Standard 9.22(c) (listing the lawyer’s “personal or emotional problems” as a mitigating factor
to punishment). The parties’ arguments raise legitimate questions about the credibility of Mr.
Hancock’s testimony and the weight of the evidence adduced at the hearing. To that end, the
hearing panel could have resolved these issues in favor of either party. The point remains,
however, that the hearing panel did not resolve these issues, and without a specific finding,


        25
            In fact, the only mention of these rules appears in the hearing panel’s order, which states, “Mr.
Hancock did not violate Rules 3.2 (expediting litigation); 3.4(c) (fairness to opposing counsel); 3.5(e)
(impartiality and decorum of the tribunal); and 8.4(a) and (d) (misconduct) by failing to comply with
Bankruptcy rules and Orders.” By connecting the rules of professional conduct with the “Bankruptcy rules
and Orders,” it is clear that this finding relates only to Mr. Hancock’s actions while he was actively engaged
in the litigation of Barnhill’s bankruptcy. It does not, however, concern the briefs that Mr. Hancock filed
in the district court nor does it address Mr. Hancock’s actions or inactions during his appeal to that court.

                                                    -13-
the chancery court could only speculate as to the hearing panel’s intended conclusion.
Consequently, the chancery court substituted its judgment for that of the hearing panel, which
is expressly prohibited by Tennessee Supreme Court Rule 9, section 1.3. Accordingly, the
chancery court erred by modifying the hearing panel’s judgment.

        The Board bears the burden of proof in attorney disciplinary proceedings. See Tenn.
Sup. Ct. R. 9, § 8.2 (“In hearings on formal charges of misconduct, Disciplinary Counsel
must prove the case by a preponderance of the evidence.”). If the hearing panel fails to make
findings concerning a specific rule violation, it is incumbent on Disciplinary Counsel to
address the issue before a petition for certiorari is filed and the hearing panel is without
jurisdiction to modify its judgment. In this case, for example, the Board could have raised
any alleged omissions by the hearing panel in the form of a motion to alter or amend the
hearing panel’s judgment pursuant to Tennessee Rule of Civil Procedure 59. See Tenn. Sup.
Ct. R. 9, § 23.2 (stating in part that “the Tennessee Rules of Civil Procedure . . . apply in
disciplinary cases”). Due to the limited standard of review on appeal, we can only construe
the hearing panel’s silence as a dismissal of the allegations of misconduct concerning Mr.
Hancock’s briefs filed in the district court.

                                   E. Appropriate Sanction

        We must now determine whether the thirty-day suspension imposed by the hearing
panel is excessive. When determining the appropriate sanction, this Court looks to the ABA
Standards as our “guidepost[s].” Lockett v. Bd. of Prof’l Responsibility, 380 S.W.3d 19, 26
(Tenn. 2012); see also Tenn. Sup. Ct. R. 9, § 8.4. Application of the ABA Standards requires
us to consider “the duty violated; . . . the lawyer’s mental state; . . . the potential or actual
injury caused by the lawyer’s misconduct; and . . . the existence of aggravating or mitigating
factors.” ABA Standard 3.0; see also Lockett, 380 S.W.3d at 26.

        In this case, Mr. Hancock’s misconduct represents a breach of his duty to the legal
system. See ABA Standard 6.3 (entitled “Improper Communications with Individuals in the
Legal System” and stating in part that “the following sanctions are generally appropriate in
cases involving attempts to influence a judge”); see also ABA Standards app. 1 (connecting
the presumptive sanctions of Standard 6.3 to violations of Rule 3.5). Accordingly, we look
to ABA Standard 6.32, which states that “[s]uspension is generally appropriate when a
lawyer engages in communication with an individual in the legal system when the lawyer
knows that such communication is improper, and causes injury or potential injury to a party
or causes interference or potential interference with the outcome of the legal proceeding.”
Because Mr. Hancock emailed Judge Paine prior to perfecting his appeal to the Sixth Circuit,
his email was sent while the Barnhill’s matter was still pending. Mr. Hancock acknowledged
at the hearing that he should not have sent the email but did so out of frustration. We are
therefore convinced that ABA Standard 6.32’s presumptive sanction of suspension is
appropriate in this case.

                                              -14-
        Pursuant to Tennessee Supreme Court Rule 9, section 4.2, “No suspension shall be
ordered for a specific period less than thirty days or in excess of five years.” The length of
an attorney’s suspension, however, depends in large part on the aggravating and mitigating
circumstances expressed in ABA Standard 9.0. See ABA Standard 9.1 (“After misconduct
has been established, aggravating and mitigating circumstances may be considered in
deciding what sanction to impose.”). Here, the hearing panel found as aggravating factors
Mr. Hancock’s multiple offenses, his prior disciplinary history, and his substantial experience
in the practice of law. See ABA Standard 9.22. In mitigation, however, the hearing panel
found that Mr. Hancock was experiencing personal or emotional problems when his
misconduct occurred. See ABA Standard 9.32(c). On balance, we agree with the hearing
panel’s conclusion that the aggravating and mitigating circumstances justify a thirty-day
suspension. We therefore affirm Mr. Hancock’s suspension from the practice of law for
thirty days.

                                       III. Conclusion

        We reverse the chancery court’s modification of the hearing panel’s judgment. We
also reverse the hearing panel’s finding that Mr. Hancock violated Tennessee Supreme Court
Rule 8, RPC 8.2(a)(1). We affirm the judgments of the chancery court and the hearing panel
in all other respects and affirm Mr. Hancock’s suspension from the practice of law for thirty
days. Costs of this appeal are taxed one-half to William Caldwell Hancock and his surety
and one-half to the Board of Professional Responsibility of the Supreme Court of Tennessee,
for all of which execution may issue if necessary.




                                                    JANICE M. HOLDER, JUSTICE




                                             -15-
