                 IN THE SUPREME COURT OF TENNESSEE
                            AT KNOXVILLE
                                January 10, 2017 Session

        DANNY C. GARLAND, II v. BOARD OF PROFESSIONAL
     RESPONSIBILITY OF THE SUPREME COURT OF TENNESSEE

              Direct Appeal from the Chancery Court for Knox County
                 No. 189106-3 Jon Kerry Blackwood, Senior Judge


                 No. E2016-01106-SC-R3-BP – Filed August 10, 2017




HOLLY KIRBY, J., dissenting.

       I respectfully dissent from the majority opinion in this case.

       From the majority’s recitation of the facts in this case, we can all agree that the
complainant, Ms. McKeogh, did not get good service overall from Mr. Garland’s office.
However, the majority’s recitation of the facts also makes it clear that the problems of
which Ms. McKeogh complains arise from the actions or inactions of Mr. Garland’s staff,
particularly Ms. Harris and Ms. Snyder.

        As the majority notes, Mr. Garland had a high-volume practice focusing on family
law. He was frequently in court, depositions and meetings, so he relied on his staff,
primarily Ms. Harris, to talk to clients and answer their questions, usually via email or by
telephone. He also relied on his staff to make him aware of things that needed his
attention, such as items arriving at his office in the mail. As a backstop, the majority
opinion indicates, Mr. Garland reviewed his active files every thirty to forty-five days to
make sure that something that needed action had not been overlooked.

        The facts in this case center on the failure of Mr. Garland’s staff to respond to Ms.
McKeogh’s inquiries, the staff’s failure to make Mr. Garland aware of things that needed
his attention, or staff members’ general incompetence in tasks such as filing and mailing.
For example, Mr. Garland’s staff failed to inform him that the child’s biological father,
Mr. Atchley, had signed a consent order agreeing to the adoption of the child. Ms.
Snyder then misfiled that consent order by placing it in Ms. McKeogh’s closed divorce
file instead of her open adoption file. Ms. Harris repeatedly failed to respond to Ms.
McKeogh’s numerous email inquiries about the status of her case. Although Ms. Harris
was told that Ms. McKeogh’s husband might be deployed soon, Ms. Snyder nevertheless
mailed a copy of the amended petition—for Ms. McKeogh’s husband to sign—to the
wrong address. Ms. Harris neglected to respond to Ms. McKeogh’s numerous voicemail
messages. When Ms. McKeogh became exasperated with the staff and asked to speak to
Mr. Garland, his staff told her that she should speak to Ms. Harris.

        The majority opinion observes, and Mr. Garland admits, that as the lawyer in
charge of his office, Mr. Garland “was responsible for the shortcomings of his staff.” I
agree. I part company with the majority because, while the charges against Mr. Garland
in this case emanate from his supervision of his nonlawyer staff, the Board chose not to
proceed against Mr. Garland under the rules that specifically govern a lawyer’s
responsibility for nonlawyer staff.

       Rule 5.3 of the Rules of Professional Conduct addresses a lawyer’s responsibilities
for nonlawyer assistants:


      Rule 5.3. Responsibilities Regarding Nonlawyer Assistance
      With respect to a nonlawyer employed or retained by or associated with a
      lawyer:
      (a) a partner, and a lawyer who individually or together with other lawyers
      possesses comparable managerial authority in a law firm, shall make
      reasonable efforts to ensure that the firm has in effect measures giving
      reasonable assurance that the nonlawyer’s conduct is compatible with the
      professional obligations of the lawyer;
      (b) a lawyer having direct supervisory authority over a nonlawyer shall
      make reasonable efforts to ensure that the nonlawyer’s conduct is
      compatible with the professional obligations of the lawyer; and
      (c) a lawyer shall be responsible for conduct of a nonlawyer that would be a
      violation of the Rules of Professional Conduct if engaged in by a lawyer if:
             (1) the lawyer orders or, with knowledge of the specific conduct,
             ratifies the conduct involved; or
             (2) the lawyer is a partner or has comparable managerial authority in
             the law firm in which the nonlawyer is employed, or has direct


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              supervisory authority over the nonlawyer, and knows of the
              nonlawyer’s conduct at a time when its consequences can be avoided
              or mitigated but fails to take reasonable remedial action.
Tenn. S. Ct. R. 8, RPC 5.3. Thus, Rule 5.3 sets outs what a lawyer is expected to do to
supervise his nonlawyer staff, and also establishes the parameters for when the lawyer
may be held responsible for staff’s conduct that would violate the Rules of Professional
Conduct if engaged in by a lawyer. Under Rule 5.3, a lawyer must “make reasonable
efforts” to ensure that his firm adopts “measures giving reasonable assurance” that the
nonlawyer staff’s conduct is “compatible with the professional obligations of the lawyer.”
Id. at 5.3(a). A lawyer with direct supervisory authority must “make reasonable efforts”
to ensure that his staff’s conduct is “compatible with” the lawyer’s professional
obligations. Id. at 5.3(b). If the lawyer’s staff engages in conduct that would be a
violation of the Rules of Professional Conduct if engaged in by a lawyer, the lawyer will
be held responsible for the violation if the lawyer “orders” or “ratifies” the staff’s
conduct, or if the lawyer “knows of” the staff’s conduct “at a time when its consequences
can be avoided or mitigated” but he nevertheless “fails to take reasonable remedial
action.”

       Rule 5.3 was tailor-made for situations such as the one presented in this case. Mr.
Garland had delegated to his nonlawyer staff responsibilities for taking client inquiries by
email and telephone while he was in court, in depositions, or in meetings, for keeping his
clients informed regarding the status of their matters, and for making certain that
important correspondence and developments that demanded action were brought to Mr.
Garland’s attention. Mr. Garland’s staff failed in all of these regards. Their conduct, if
engaged in by a lawyer, would have violated more than one Rule of Professional
Conduct, including RPC 1.4 on communications with clients and RPC 1.3 on diligence.

        Having established that Mr. Garland’s employees engaged in conduct that would
have constituted ethical violations if they were lawyers, it then becomes necessary to
examine Mr. Garland’s supervision of those employees. Under Rule 5.3(a), the Board
would look at whether Mr. Garland had in place “measures giving reasonable assurance”
that his staff’s conduct in performing the tasks delegated to them would comply with his
professional obligations. Since Mr. Garland had direct supervisory authority over his
staff, under 5.3(b), the Board would look at whether Mr. Garland made “reasonable
efforts” to ensure that his staff’s conduct comported with his professional obligations.
Under 5.3(c), the Board would determine whether Mr. Garland ordered the conduct that
formed the basis for the infraction, whether he ratified it, or whether he learned of it “at a
time when its consequences [could] be avoided or mitigated.”



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      In this case, despite the fact that the infractions are clearly premised on Mr.
Garland’s supervision of his nonlawyer employees, the Board inexplicably does not
appear to have proceeded against Mr. Garland under Rule 5.3. As noted in the majority
opinion, the Board made no findings, one way or the other, under Rule 5.3. We are given
no explanation for their failure to do so.

       I disagree with the majority opinion primarily because, absent appropriate findings
by the hearing panel under Rule 5.3, the case is simply not in the proper posture for our
decision. We have no findings on what measures Mr. Garland should have had in place
to supervise his staff. We have no findings on what efforts Mr. Garland should have
made to reasonably ensure that his staff’s conduct was appropriate. We have no findings
on whether Mr. Garland ordered or ratified his staff’s infractions, or whether he learned
of them at a time when the consequences to Ms. McKeough could have been “avoided or
mitigated.”

        There are countless lawyers in Tennessee with law practices similar to Mr.
Garland’s high-volume practice, in which many daily tasks and interactions with clients
are delegated to nonlawyer staff. Delegating such tasks to nonlawyer employees does not
violate ethical rules, but failing to properly supervise nonlawyer employees does. It is
important for practicing lawyers to understand what this Court expects from them in
terms of supervising nonlawyer staff to whom mundane but important tasks are
delegated. The majority opinion gives lawyers little useful information in that regard.
The majority says only that Mr. Garland “should have taken a more active role in keeping
Ms. McKeough advised,” that he “did not discover” things such as the consent order that
his staff misfiled, and that his “procedures were ineffective.” The majority opinion gives
lawyers no indication of what specifically Mr. Garland should have done differently. It
tells them only that he fell short.

        I fault the Board primarily for the posture of this case. It is important for ethical
charges against lawyers to be properly framed, so that the rules adopted to govern certain
situations are applied to the intended situations. That was not done in this case. Ms.




                                             -4-
        McKeough’s complaint should have proceeded under Rule 5.3, and the hearing
panel should have considered the matter under Rule 5.3. Because the Board did not do
so, this Court has not been given the findings needed to properly determine this appeal.

      For these reasons, I respectfully dissent.




                                          ______________________________
                                          HOLLY KIRBY, JUSTICE




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