                                                                                        12/04/2018
                 IN THE SUPREME COURT OF TENNESSEE
                            AT KNOXVILLE
                              September 6, 2018 Session

THOMAS F. MABRY v. BOARD OF PROFESSIONAL RESPONSIBILITY

              Direct Appeal from the Chancery Court for Knox County
               No. 193376-1       Robert E. Lee Davies, Senior Judge
                      ___________________________________

                             No. E2018-00204-SC-R3-BP
                       ___________________________________


Respondent attorney filed a notice with this Court that he was unable to respond to or
defend against a disciplinary complaint because he suffered from a disability by reason of
a mental illness. Following a formal hearing, a hearing panel concluded that the
respondent attorney was not incapacitated from responding to or defending against the
complaint against him. Upon its review, the chancery court reached the same conclusion
as the hearing panel. The respondent attorney has now filed a direct appeal to this Court.
We agree with the hearing panel and chancery court that the attorney has not shown by a
preponderance of the evidence that he lacked the capacity, by reason of mental illness, to
respond to or defend against his disciplinary complaint.

     Tenn. Sup. Ct. R. 9, § 33.1(d); Judgment of the Chancery Court Affirmed

ROGER A. PAGE, J., delivered the opinion of the court, in which JEFFREY S. BIVINS, C.J.,
and CORNELIA A. CLARK, SHARON G. LEE, and HOLLY KIRBY, JJ., joined.

Thomas Fleming Mabry, Asheville, North Carolina, pro se.

William C. Moody, Brentwood, Tennessee, for the appellee, Board of Professional
Responsibility of the Supreme Court of Tennessee.


                                       OPINION

                           I. Facts and Procedural History

      On October 20, 2015, attorney Thomas F. Mabry filed a notice of disability
pursuant to Tennessee Supreme Court Rule 9, section 27.4(a), in which he contended that
he was suffering from a disability by reason of mental illness that prevented him from
responding to or defending against the disciplinary proceeding pending against him.1
Following the procedure outlined in section 27.4(a), this Court placed him on disability
inactive status and ordered that a hearing panel conduct an evidentiary hearing to
determine whether Mr. Mabry had the capacity to continue to practice law and respond to
the disciplinary complaint. In re Mabry, No. M2015-02036-SC-BAR-BP (Tenn. Oct. 27,
2015) (per curiam order).

        The hearing was held on October 21, 2016. Mr. Mabry testified that he had
experienced suicidal ideations in the time leading up to a disciplinary hearing, manifested
in the thought that “maybe it might be best if [he] jumped off one of the cliffs . . . where
[he] hike[d].” Mr. Mabry explained that he participated in extreme hiking and rappelling
and that he was a recovering alcoholic. He testified that, anytime that he had to do
anything related to the practice of law, he was “basically in a panic mode.” He further
testified that he was “very paranoid about what the Board of Professional Responsibility
has done and can do to” him and that, when those thoughts entered his mind, it was
debilitating. Mr. Mabry also said that the shame associated with disciplinary proceedings
“builds up sometimes into thoughts of maybe [he] just would be better off not existing.”

       In support of his position, Mr. Mabry submitted a letter from a licensed clinical
social worker, Doug Ernst, and medical records from the Johnson County Community
Health Center. Mr. Mabry’s medical records indicate that he has generalized anxiety
disorder. Mr. Ernst’s letter to counsel for the Board of Professional Responsibility (“the
Board”) stated what Mr. Mabry expressed during his mental health assessment, including
that “Mr. Mabry stated suicidal thoughts only occur when feeling pressured by
complaints filed against him as he is attempting to close his law practice.” Mr. Ernst
wrote that Mr. Mabry did not meet the criteria for admission to the psychiatric hospital
and that Mr. Mabry was not experiencing suicidal ideations on the day of the assessment.

        On cross-examination, Mr. Mabry testified that he had not taken any
antidepressants since 2001. He chose not to take antidepressants because it inevitably led
to his drinking alcohol again. He said that his Alcoholics Anonymous meetings were his
mental health treatment and that it had been “a long time” since he had seen a medical
professional for mental health. Mr. Mabry admitted that he prepared his disability notice
himself and that he had recently participated in telephonic depositions, during which he
represented himself and cross-examined witnesses.

       The Board submitted as evidence emails and letters to and from Mr. Mabry about
legal matters in which he was helping friends and former clients. It also submitted
pictures posted by Mr. Mabry on social media documenting his outdoor activities.

       1
           The nature of the disciplinary complaint(s) is not in the record before this Court.
                                                    -2-
       The hearing panel issued its report and recommendation on January 17, 2017,
finding that Mr. Mabry was not incapacitated.2 The panel acknowledged that Mr. Mabry
had experienced suicidal ideations but determined that there was no evidence in the
record, either from Mr. Ernst, Mr. Mabry’s medical records, or anywhere else, “that [he]
suffers from a mental infirmity rendering him unable to respond or defend against the
pending disciplinary proceeding.” Mr. Mabry petitioned the chancery court for review.
The chancery court held a hearing and ultimately agreed with the hearing panel. Mr.
Mabry then filed a direct appeal to this Court. See Tenn. Sup. Ct. R. 9, § 33.1.

                                       II. Standard of Review

       The Tennessee Supreme Court is the source of authority for the Board and its
functions. In re Vogel, 482 S.W.3d 520, 530 (Tenn. 2016) (citing Long v. Bd. of Prof’l
Responsibility, 435 S.W.3d 174, 178 (Tenn. 2014)). “As a part of our duty to regulate the
practice of law in this state, we have the ultimate disciplinary responsibility for violations
of the rules governing our profession.” Hughes v. Bd. of Prof’l Responsibility, 259
S.W.3d 631, 640 (Tenn. 2008) (citing Doe v. Bd. of Prof’l Responsibility, 104 S.W.3d
465, 469–70 (Tenn. 2003)). We examine disciplinary judgments pursuant to this Court’s
“inherent power” and “essential and fundamental right” to enforce the rules regulating the
practice of law. Vogel, 482 S.W.3d at 530 (quoting Hughes, 259 S.W.3d at 640). Our
standard of review is the same as that of the trial court, generally giving deference to the
hearing panel’s weighing of the evidence and reversing the hearing panel’s decision only
when the decision is

        (1) in violation of constitutional or statutory provisions; (2) in excess of the
        hearing 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 the light of the entire record.

Tenn. Sup. Ct. R. 9, § 33.1(b); see Long, 435 S.W.3d at 178.

                                              III. Analysis

      The primary issue in this case is whether Mr. Mabry has shown by a
preponderance of the evidence that he is suffering from a disability by reason of mental

        2
            The hearing panel initially filed its report on January 5, 2017, but it revised its report to take
into account Mr. Mabry’s post-hearing brief that had not been filed properly due to a clerical error on the
part of the Board.
                                                    -3-
illness that makes it impossible for him to respond or defend against the disciplinary
complaint lodged against him. Mr. Mabry argues that he has made a sufficient showing
via Mr. Ernst’s letter and his medical records. He notes that it was difficult to know how
to proceed when there was no precedent delineating the quantity/quality of proof
necessary to meet the rule’s requirement. The Board, on the other hand, contends that the
proof presented never addressed Mr. Mabry’s ability to defend against the disciplinary
complaints and, therefore, Mr. Mabry did not meet his burden.3 We agree with the
Board.

       The rule in question is Tennessee Supreme Court Rule 9, section 27.4(a):

       (a) If, during the course of a disciplinary investigation or proceeding, the
       respondent attorney contends that he/she is suffering from a disability by
       reason of mental or physical infirmity or illness, or because of addiction to
       drugs or intoxicants, which disability makes it impossible for the
       respondent attorney to respond to or defend against the complaint, such
       contention shall place at issue the respondent attorney’s capacity to
       continue to practice law. Disciplinary Counsel, the respondent attorney or
       the attorney for the respondent attorney shall file in the Nashville office of
       the Clerk of the Supreme Court a Notice advising the Court of such
       contention within ten days of learning of the contention, if the Court has not
       been otherwise notified. The Court thereupon shall enter an order
       immediately transferring the respondent attorney to disability inactive
       status for an indefinite period and until the further order of the Court. The
       Court may take or direct such action as it deems necessary or proper to
       make a determination as to the respondent attorney’s capacity to continue
       to practice law and to respond to or defend against the complaint, including
       the examination of the respondent attorney by such qualified medical or
       mental health experts as the Court shall designate or the referral of the
       matter to a hearing panel for a formal hearing to determine the respondent
       attorney’s capacity to continue to practice law and to respond to or defend
       against the complaint. In any such proceeding, the burden of proof shall
       rest upon the respondent attorney and shall be by a preponderance of the
       evidence.

      This section requires a responding attorney to prove by a preponderance of the
evidence that (1) the attorney has a disability, either due to mental/physical illness or due

       3
         Both parties make other arguments concerning the proof required to meet the burden, and Mr.
Mabry also takes issue with the chancery court’s order in other respects. However, discussion of these
arguments is unnecessary to the resolution of this appeal.
                                                -4-
to addiction to drugs or alcohol and (2) the disability makes it impossible for the attorney
to respond to or defend against disciplinary complaints. Mr. Mabry submitted proof that
he has generalized anxiety disorder and suicidal ideations. Mr. Ernst wrote that Mr.
Mabry tied his anxiety and suicidal ideations to his disciplinary proceedings, but Mr.
Ernst did not opine whether Mr. Mabry’s mental illness had any impact on his capacity to
respond to or defend against the disciplinary complaint. Likewise, Mr. Mabry did not
testify that his disability made it impossible for him to respond to or defend himself
against the disciplinary complaint. Because there is no evidence that Mr. Mabry’s
disability makes it impossible for him to respond to the disciplinary complaint, we agree
with the hearing panel and chancery court that he has not met his burden of proof.

                                     CONCLUSION

       We affirm the chancery court’s conclusion that Mr. Mabry has not shown by a
preponderance of the evidence that he has a disability making it impossible for him to
respond to or defend against disciplinary proceedings. Consequently, we order that his
disability inactive status be removed and that any pending disciplinary proceedings
against him shall be resolved prior to the effective date of any reinstatement. Mr.
Mabry’s suspension pursuant to the opinion and the judgment order entered December
30, 2014, in case number E2013-01549-SC-R3-BP, from which he has never sought
reinstatement, remains in full force and effect. Costs of this appeal are taxed to Mr.
Mabry. See Fletcher v. State, 9 S.W.3d 103, 105 (Tenn. 1999).




                                                 _________________________________
                                                 ROGER A. PAGE, JUSTICE




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