Monthly Archives: June 2018

Tennessee Supreme Court Reinstates Panel Decision Extending Attorney’s Disbarment

Lawyer convicted for possessing child pornography in 2007 denied petition to have his law license reinstated.

By Daniel A. Horwitz

In 2007, Drayton Smith—an accomplished wills and estate planning attorney—pleaded guilty to charges of receipt and possession of child pornography.  He was sentenced to five years in federal prison, another ten years of supervised probation, and required to register as a sex offender for life.  In a separate proceeding, he also consented to his immediate disbarment from the practice of law.

Yesterday, the Tennessee Supreme Court affirmed a panel decision forbidding Mr. Smith from having his law license reinstated.  Under the deferential standard of review that applies to appeals of agency determinations, the decision was plainly correct.  Nonetheless, the case gives rise to much broader concerns about Due Process and character and fitness requirements themselves.

In 2014, after his release from prison but during his probation, Mr. Smith petitioned a panel of Tennessee’s Board of Professional Responsibility (BPR)—the judicial agency that handles lawyer discipline—for reinstatement of his law license.  Mr. Smith’s physicians, the deputy director of the Tennessee Lawyers Assistance Program, several character witnesses, and a separate medical expert testified at Mr. Smith’s hearing, as did Mr. Smith himself.

The testimony presented at Mr. Smith’s hearing covered several topics.  Mr. Smith’s doctors testified about his treatment and opined that he was unlikely to reoffend.  Mr. Smith’s character witnesses—who included multiple current attorneys, former clients, and two retired judges—testified that he was a capable, intelligent attorney, and that he enjoyed a reputation as a skilled lawyer who represented his clients competently and with honesty and integrity.  As to the crime that he had committed, Mr. Smith testified that he had been convicted of possessing approximately 40 photographs of prepubescent girls, which he had downloaded while “suffering from chronic clinical depression.”  (He has since been diagnosed with pedophilia as well.)  Mr. Smith further testified that he thought of his crime as victimless at the time, but that “[s]ince his arrest, he had come to understand through counseling the harm that his actions caused to the persons in the images.”  Finally, Mr. Smith detailed the personal and professional consequences that he had experienced as a result of his crime, which can fairly be summarized as having lost everything.

Perhaps unsurprisingly, the Board of Professional Responsibility vigorously opposed Mr. Smith’s reinstatement.  In so doing, it emphasized a component of one of Mr. Smith’s medical reports, which indicated that during his treatment, he had scanned comic strips from a newspaper and then colored their clothing to make them appear nude—behavior that one doctor noted was “an indirect measure of interest in children.”  According to the BPR’s prosecutor, that behavior, which had stopped, was not disclosed to Mr. Smith’s probation officer, and it could be construed as possession of pornography (no) or use of a computer with internet access in violation of his probation (the Court noted that there was no evidence introduced on the matter).  The BPR’s prosecutor also cross-examined a church official who had come to support Mr. Smith and asked her whether Mr. Smith had sought “forgiveness from you or the church for his actions.”

Upon review, Mr. Smith’s hearing panel ruled that he had “failed to prove by clear and convincing evidence that he possesses the moral qualifications required to practice law in Tennessee.”  The panel’s unusually long decision was multi-pronged.  First, it found that Mr. Smith’s character witnesses were insufficiently knowledgeable about the precise details of his crime, treatment, and post-release conduct to have a credible opinion as to whether he should be reinstated.  Second, it expressed concern that Mr. Smith had not disclosed the comic strip incident to his probation officer, which it took as an indicator of dishonesty and potential probation violations.  Third, and most importantly, the hearing panel noted that:

“[T]here is a negative public stigma attached to individuals convicted of paraphilia and pedophilia offenses. Several of [Mr. Smith’s] friends . . . testified [that he] has lost friends, had his reputation damaged and will suffer public scorn from his criminal history and conviction. Moreover, both Dr. Battle and Dr. Abel testified as to the negative social stigma attached to sex offenders and pedophilia/paraphilia patients. Dr. Abel testified the general public believes paraphilia patients cannot be successfully treated. Even [Mr. Smith] acknowledged during his testimony, people are going to hate him just because they know he is a sex offender and that is not something that will go away.”

In other words: the panel “expressed concern with [Mr. Smith]’s status as a sex offender and, if [he] were reinstated, the impact of that status on the integrity of the bar.”

The hearing panel’s ruling was ultimately affirmed by the Tennessee Supreme Court, which reviews agency determinations under a highly deferential standard of review that ensures that they are virtually never disturbed except in the most outrageous cases.  Under that standard of review, the Court defers to all credibility determinations made by an agency, and it also gives the agency complete authority to determine the relative weight of the evidence presented to it.  After doing so, as long as there is more than a scintilla of “substantial and material” evidence in the record to support the agency’s decision, the decision must be affirmed.

Given this deferential standard of review, there is little doubt that the Tennessee Supreme Court correctly affirmed the hearing panel’s decision to deny Mr. Smith reinstatement.  Of special note, though, it did so only after an intermediate court held that the panel’s ruling had been “based solely on the nature of the crime committed and . . . [was] arbitrary and capricious and not supported by substantial and material evidence.”  The case also saw the BPR’s attorney chastised by the Tennessee Supreme Court for (badly) missing a filing deadline and then “attempt[ing] to use its own missed deadline as both weapon and shield.”  But the greatest import of the case is not its ultimate outcome for Mr. Smith.  Instead, it was the BPR’s troubling conduct along the way.

There is no doubt whatsoever that child pornography is widely viewed and treated as one of society’s most heinous crimes.  Those who believe that people convicted of possessing child pornography cannot suffer too much have a great deal of company.  Regardless, however, the BPR’s conduct in Mr. Smith’s case should concern everyone, because there is little reason to believe that it is or will be isolated.

Whether they are entitled to do so or not, government agency prosecutors should not be compelling clergy to divulge whether a person—any person—has asked forgiveness from their faith community or from God.  Whether they are entitled to do so or not, government agency prosecutors should not be positing that a person—any person—may have committed an uncharged, unproven criminal violation.  And whether they are entitled to do so or not, the Board of Professional Responsibility should not premise its determination about whether a person has the “moral qualifications required to practice law” upon vague and undefined notions of “public stigma”—a dangerously overbroad criterion that has frightening potential to be extended to anything that a handful of elite government agency appointees collectively deem “unpopular.”

It is also fair to worry that if the same searching inquiry and zeal were deployed against every other lawyer in Tennessee, there would not be anyone left to practice law in this state.  Indeed, if the BPR were interested in applying disciplinary rules evenhandedly, then its own agency prosecutor would find himself sanctioned for missing a filing deadline in Mr. Smith’s case—a prosecution that it has very recently brought against others.  That will not happen, of course, and it shouldn’t.  Even so, the knowledge that disciplinary rules are broad enough to enable the BPR to bring its hammer down selectively on anyone it pleases should concern everyone.

In theory, bar “character and fitness” requirements are intended to protect the public from unqualified and unethical lawyers.  As explained in a previous post, however, in the not-too-distant-past, such requirements were “wielded to keep disfavored minorities—like Jews and women—from becoming lawyers instead.”  With this disturbing historical context in mind, the same people who will be understandably pleased with the outcome of Mr. Smith’s case should also be concerned that the next person who is denied the opportunity to practice law due to the “public stigma” surrounding his or her past may be significantly less concerning.

Mr. Smith’s case also forces the rest of society to grapple with a number of difficult questions that the BPR has left unanswered.  When people who are convicted of possessing child pornography get out of prison, do we want them to be unemployed forever?  If not, what jobs should they be permitted to hold?  Whatever those jobs are, why is being a lawyer different?  If Mr. Smith’s honesty and integrity were as indisputable as all of his character witnesses claimed, would that change your view?

Separately, it is worth asking who—specifically—benefits from denying Mr. Smith the opportunity to practice his lifelong profession.  If Mr. Smith were able to return to his job, for instance, it stands to reason that he could begin paying restitution to the victims whose photos he downloaded.  By getting his law license back, Mr. Smith would also become a tax-paying, productive member of society again, rather than an unemployed one.  Further, by allowing Mr. Smith to practice law, people in need of legal assistance regarding wills and estate matters would have another capable option available to them in the marketplace for those legal services—meaning that the public would enjoy the greater choice, improved service, and lower prices that always result from enhanced competition.

Perhaps more than any other, the legal profession is obsessed with its reputation among the public.  Despite this obsession, however, it consistently enjoys one of the worst reputations of any major profession—just barely outpacing lobbyists and members of Congress, who are disproportionately made up of lawyers as well.

Although the bar seems unaware of it, the public is unimpressed with lawyers for any number of legitimate reasons, chief among them being that the legal system is profoundly abusive—particularly to those who have to navigate it alone; that the vast majority of people cannot afford legal services; and that justice is only really available to those who can afford it.  Despite the serious structural problems with the profession, however, bar regulators have done little and less to address any of them.  Instead, they have focused their efforts to “protect the integrity of the profession” on causes like enforcing speech codes that prohibit lawyers from criticizing judges; advocated for new speech codes that would enable bar regulators to punish all manner of disfavored speech; demanded unquestioned and borderline dogmatic respect for participants in the legal system; and agitated for robust “civility” enforcement.

Taken together, one could be forgiven for concluding that the legal profession’s primary response to widespread criticism has not been to address its root causes, but to make such criticism illegal.  Whether the bar regulators who are in a position to address the structural problems in the profession are interested in doing so, however, remains an open question.

Read the Tennessee Supreme Court’s unanimous opinion in Drayton Beecher Smith, II v. Board of Professional Responsibility of the Tennessee Supreme Court, authored by Chief Justice Jeffrey Bivins, here.

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Tennessee’s Medical Malpractice Statute Traps Another Plaintiff

Tennessee Supreme Court holds that the Health Care Liability Act’s statute of limitations is not extended if a plaintiff sends pre-suit notice to the wrong defendant.

By Daniel A. Horwitz

Tiffinne Runions, a Madison County mother who lost her child five days after childbirth, has also lost her day in court based on a misaddressed pre-suit notice.  As a result, Ms. Runions’ lawsuit did not fail based on a judge or jury rejecting the merits of her claim that “the defendants’ negligent conduct . . . caused the baby’s death.”  Instead, her lawsuit never even made it past the courthouse doors due to her attorney’s mistake about who owned the hospital that delivered her baby.

Over the past decade, one medical malpractice claim after another in Tennessee has been derailed following plaintiffs’ unsuccessful attempts to comply with certain pre-suit notice requirements mandated by Tennessee’s Health Care Liability Act (HCLA).  As a result, the Tennessee Supreme Court’s unanimous decision to dismiss Ms. Runions’ lawsuit even before its merits could be considered represents only the latest casualty in a long line of medical malpractice cases—known as “healthcare liability” claims in Tennessee—that have been doomed from their inception due to attorneys’ procedural mistakes.

As this author previously explained in a 2015 Nashville Bar Journal article:

In 2009, interest groups representing both healthcare providers and injured patients worked together “to draft and pass” several amendments to Tennessee’s medical malpractice statute that aimed to improve medical malpractice litigation for all involved.  According to the Tennessee Supreme Court, the goals of the 2009 amendments were “to give defendants written notice that a potential healthcare liability claim may be forthcoming,” to “facilitate early resolution of healthcare liability claims,” and to “equip[] defendants with the actual means to evaluate the substantive merits of a plaintiff’s claim by enabling early discovery of potential co-defendants and early access to a plaintiff’s medical records.”  To accomplish these goals, the legislature required medical malpractice plaintiffs to satisfy six pre-suit “notice requirements,” and it further required plaintiffs to file a “certificate of good faith” with their complaints in cases in which expert testimony would eventually be required.

Due to the myriad technical dismissals that resulted from these reforms, however, the 2009 amendments unexpectedly turned out to be red tape with fangs for medical malpractice plaintiffs. . . .  Thus, what began as a laudable effort to improve medical malpractice litigation in Tennessee has instead created new procedural barriers that cause many cases to be dismissed on grounds that are completely unrelated to the merits of a plaintiff’s claim.[1]

Critically, the HCLA provides that a plaintiff who complies with the statute’s mandatory pre-suit notice requirements automatically receives a 120-day extension to the one-year statute of limitations for filing suit.  In theory, this extension benefits both parties by affording them a longer period of time to negotiate a potential settlement before contentious litigation begins.  In practice, however, the extension functions as a “fatal booby trap for unwary plaintiffs,” because “if a plaintiff’s attorney has erred in complying with one or more of the HCLA’s pre-suit notice requirements, then he almost invariably will not discover his error until the initial one-year statute of limitations has expired.”[2]

The Court’s opinion in Runions v. Jackson-Madison County General Hospital District makes clear that this “fatal booby trap” has just claimed another victim.  In Runions, the aggrieved mother (or, more accurately, her attorney) attempted to comply with all of the HCLA’s pre-suit notice requirements before filing her lawsuit.  Critically, however, her attorney made one significant misstep: he misidentified the hospital’s owner and operator.  As the Court explains:

“Ms. Runions knew that she and her baby received medical treatment at Jackson-Madison County General Hospital, but she did not correctly identify the District as the owner and operator of Jackson-Madison County General Hospital.  Instead, she identified and gave pre-suit notice to Bolivar General Hospital, Inc.; West Tennessee Healthcare, Inc.; and West Tennessee Healthcare Network through their registered agent, Ms. Higgs, who also served as general counsel for the District.”

Upon discovering the error, “Ms. Runions moved to amend her complaint to substitute the District for Bolivar General Hospital, Inc. d/b/a Jackson-Madison County General Hospital.”  Normally, permitting such an amendment is standard practice; Tennessee Rule of Civil Procedure 15.01 makes clear that permission to amend pleadings should be “freely given” early on in a case, and the error at issue in Ms. Runions’ case was identified almost immediately.  Additionally, when a plaintiff has sued the wrong party, Tennessee Rule of Civil Procedure 15.03 provides further that “[a]n amendment changing the party or the naming of the party by or against whom a claim is asserted” should be treated as if it occurred on the date when the plaintiff’s original complaint was filed.

The entire purpose of Tennessee Rule of Civil Procedure 15.03 is to prevent a claim from becoming time-barred by the statute of limitations due to a mere “mistake concerning the identity of the proper party.”  In Runions, however, by the time the mistake was discovered, the harm was incurable.

After providing pre-suit notice to the hospital, Ms. Runions’ attorney believed that the statute of limitations had been extended by 120 days based on the HCLA’s automatic extension provision.  Because her pre-suit notice had identified the wrong hospital owner, however, the extension was never triggered—something that she did not discover until it was too late.  Accordingly, by the time that Ms. Runions learned that her pre-suit notice was defective, the one-year, unextended statute of limitations had already elapsed, and Ms. Runions’ lawsuit was forever time-barred.

As this author has previously noted, this framework conflicts with both Tennessee law generally and the stated purposes of the HCLA specifically.  From a broad perspective, “Tennessee law reflects a longstanding, consistent public policy that favors resolving litigation on its merits, rather than promoting dismissals based on purely procedural grounds.”[3]  Further, based on an information asymmetry concerning whether the applicable statute of limitations has been extended, mandating strict compliance with the HCLA’s notice provisions in order to trigger the 120-day extension “function[s] to undermine dialogue between litigants by creating perverse litigation incentives that facilitate only mock settlement negotiations and delusive discovery.”[4]  As a result, significant reform is in order.

Notably, although Ms. Runions will not be able to pursue a medical malpractice claim against the hospital that delivered her child, she may well be able to pursue a legal malpractice claim against the attorney who represented her.  According to practitioners in the space, such claims are rapidly increasing in frequency.  Indeed, given how easily attorneys can find themselves on the receiving end of such claims due to the HCLA’s significant procedural complexities, most plaintiff’s lawyers no longer take medical malpractice cases at all.

Read the Tennessee Supreme Court’s unanimous opinion in Tiffinne Wendalyn Gail Runions v. Jackson-Madison County General Hospital District, authored by Justice Sharon G. Lee, here.

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[1] Daniel A. Horwitz, The Law of Unintended Consequences:  Avoiding the Health Care Liability Act Booby Trap, Nashville Bar Journal (June 2015), available at (citations omitted).

[2] Id. at 3.

[3] Id. at n. 28 (citing  Brown v. Samples, No. E2013-00799-COA-R9-CV, 2014 WL 1713773, at *8 (Tenn. Ct. App. Apr. 29, 2014) (collecting cases and holding that “Tennessee courts have long recognized that the interests of justice are promoted by providing injured persons an opportunity to have their lawsuits heard and evaluated on the merits”); Givens v. Vanderbilt Univ., No. M2013-00266-COA-R3-CV, 2013 WL 5773431, at *4 (Tenn. Ct. App. Oct. 24, 2013) (“We conclude that section 121 does not require a court to dismiss a complaint with prejudice for noncompliance with the notice requirement of that section. This conclusion is in keeping with the general principle that ‘Tennessee law strongly favors the resolution of all disputes on their merits.’” (quoting Henley v. Cobb, 916 S.W.2d 915, 916 (Tenn.1996))); Bowers v. Gutterguard of Tennessee, Inc., M2002-02877-COA-R3-CV, 2003 WL 22994302, at *5, (Tenn. Ct. App. Dec. 17, 2003) (“[I]t is the general rule that courts are reluctant to give effect to rules of procedure . . . which prevent a litigant from having a claim adjudicated upon its merits.” (quoting Childress v. Bennett, 816 S.W.2d 314, 316 (Tenn. 1991))). See also Chambers, 2014 WL 1266101 at *5.).

[4] Id. at p. 7.