                  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



G ARY R. W ADE, C.J., concurring in part and dissenting in part.

        I concur in the lead opinion’s conclusions that (1) Mr. Hancock violated Tennessee
Supreme Court Rule 8, RPC 3.5(b); (2) the disciplinary authority of this Court is not
preempted by the Federal Rules of Bankruptcy Procedure; (3) discipline imposed pursuant
to Tennessee Supreme Court Rule 8, RPC 8.2 requires that the false statement about a
judicial or legal official be communicated to a third party; and (4) the chancery court erred
by modifying the judgment of the hearing panel to include violations of Rules of Professional
Conduct 3.2, 3.4(c), 8.4(a), and 8.4(d). I disagree, however, with the conclusion that Mr.
Hancock violated Tennessee Supreme Court Rule 8, RPC 3.5(e), and the imposition of a
thirty-day suspension. Because I cannot find a basis to suspend Mr. Hancock for his
offensive misbehavior, I would hold that a public reprimand is the appropriate sanction in
this case.

         Rule 3.5(e) of the Rules of Professional Conduct states that “[a] lawyer shall
not . . . engage in conduct intended to disrupt a tribunal.” Tenn. Sup. Ct. R. 8, RPC 3.5(e).
As pointed out in the lead opinion, an attorney’s ethical obligation to avoid such conduct
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). The lead opinion does
not, however, explore the meaning of “tribunal,” which is defined as follows:

       (m) “Tribunal” denotes a court (including a special master, referee, judicial
       commissioner, or other similar judicial official presiding over a court
       proceeding), an arbitrator in a binding arbitration proceeding, or a legislative
       body, administrative agency, or other body acting in an adjudicative capacity.
       A legislative body, administrative agency, or other body acts in an adjudicative
       capacity when a neutral official, after the presentation of evidence or legal
       argument by a party or parties, will render a binding legal judgment directly
       affecting a party’s interests in a particular matter.

Tenn. Sup. Ct. R. 8, RPC 1.0(m) (emphasis added). The plain language of this definition
somewhat limits the scope of when a court (or a substitute judicial official) may be
considered a “tribunal” for purposes of the Rules of Professional Conduct. Specifically, the
definition contemplates that the judicial official will be “presiding over” a proceeding and,
at some future time, “will render” a judgment in a particular matter.

       In this instance, the bankruptcy judge to whom Mr. Hancock directed his email was
no longer presiding over the bankruptcy court proceeding at the time of Mr. Hancock’s
offensive misconduct. The bankruptcy court entered its final judgment on December 9,
2008, whereas Mr. Hancock did not send the email until September 28, 2009, more than nine
months later. At that point, there could be no possibility that the bankruptcy judge was going
to “render a binding legal judgment directly affecting a party’s interests in [the Barnhill’s]
matter,” such judgment having already been entered. In fact, by the time Mr. Hancock sent
his email to the bankruptcy judge, the district court had already entered its September 23,
2009 order affirming the bankruptcy court’s judgment, and Mr. Hancock was already in the
process of appealing to the Sixth Circuit Court of Appeals. In consequence, although I agree
that Mr. Hancock’s email constituted an ex parte communication in violation of Tennessee
Supreme Court Rule 8, RPC 3.5(b), I cannot interpret this misconduct as “intend[ing] to
disrupt a tribunal” as defined by RPC 3.5(e).

       When an attorney is found to have violated Rule 3.5 of the Rules of Professional
Conduct, we refer to the presumptive sanctions of Standard 6.3 in the American Bar
Association’s Standards for Imposing Lawyer Sanctions. The lead opinion upholds Mr.
Hancock’s thirty-day suspension based upon Standard 6.32, which provides 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.” (Emphasis added.) Because a judge is not a
“party” to a proceeding, the application of Standard 6.32 in this case would require that by
sending the inappropriate email to the bankruptcy judge, Mr. Hancock “cause[d] interference
or potential interference with the outcome of the legal proceeding.”




                                               -2-
       Under these circumstances, where the email was sent more than nine months after the
bankruptcy judge had issued a final judgment, Mr. Hancock’s misconduct could not have
interfered, either actually or potentially, with the outcome of the Barnhill’s proceeding in the
bankruptcy court. Specifically, because the bankruptcy judge was no longer presiding over
the Barnhill’s proceeding, Mr. Hancock’s email of September 28, 2009, could not have
influenced the decision of the bankruptcy judge or otherwise interfered with the judgment
rendered on December 9, 2008. In my view, therefore, Standard 6.32 does not apply, and,
instead, the appropriate sanction is found in Standard 6.34—“Admonition is generally
appropriate when a lawyer engages in an isolated instance of negligence in improperly
communicating with an individual in the legal system.” Considering the aggravating and
mitigating factors in this case, I would impose a public reprimand rather than a thirty-day
suspension.1




                                                              _____________________________
                                                              GARY R. WADE, CHIEF JUSTICE




        1
          My conclusion as to the appropriate sanction would remain the same even if Mr. Hancock were
found to have violated Tennessee Supreme Court Rule 8, RPC 8.2(a), as advocated by Justice Clark in her
separate concurring opinion. In that instance, the presumptive sanctions in ABA Standard 6.1 would apply.
Standard 6.14, like Standard 6.34, provides for an “admonition.”

                                                  -3-
