Category Archives: Rules of Professional Conduct

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 Supreme Court Denies Proposed Rule Change Attempting to Police Discrimination and Harassment

By Daniel A. Horwitz

Earlier today, the Tennessee Supreme Court rejected a proposed rule change that would have subjected attorneys to professional discipline for expressing views that could be considered discriminatory or harassing.  The proposed changes were roundly criticized as an overbroad infringement upon attorneys’ constitutionally protected rights to freedom of speech and association.  The controversial rule received nearly 400 pages of commentary from members of the bar, members of the public, and interested organizations.

Model Rule of Professional Conduct 8.4(g) was initially drafted by the American Bar Association in August of 2016 as an effort to curb discrimination and harassment in the legal profession.  Thereafter, several prominent national commentators promptly criticized it, and to date, nearly every jurisdiction that has considered the proposed change has rejected it.

On November 15, 2017, the Tennessee Board of Professional Responsibility and the Tennessee Bar Association filed a joint petition asking the Tennessee Supreme Court to adopt an amended version of Rule of Professional Conduct 8.4(g).  The proposed amendments would have made certain forms of discrimination and harassment subject to professional sanction, with several exceptions.

Despite its laudable goals, the proposed amendments suffered from serious shortcomings.  As this author noted in a recent Nashville Post article on the proposal:

“Although motivated by good intentions, proposed Rule 8.4(g) is a constitutionally infirm speech code that suffers from several critical flaws. First, it is wildly overbroad; it would, for example, prohibit attorneys from restricting their pro bono practice to female victims of domestic violence or to members of their church, because doing so would constitute sex discrimination and discrimination on the basis of religion, respectively. Second, it grants the Board of Professional Responsibility immense new regulatory authority to punish attorney speech, and based on the BPR’s long history of selective enforcement and a curious exemption in 8.4(g) that makes clear that exercising ‘peremptory challenges . . . on a discriminatory basis does not alone establish a violation,’ it is fair to say that the BPR should not be trusted with such vast censorial authority. Third, more generally, it gives the Government the power to determine what kind of speech is permissible and what kind of speech is illegal—a deeply troubling and downright dangerous proposition that cannot be squared with basic principles of the First Amendment.”

In a formal opinion released in March, the Attorney General of Tennessee similarly concluded that the proposal was unconstitutional.

Upon review, the Tennessee Supreme Court issued a per curiam order denying the BPR’s and TBA’s joint petition.  “The Court has carefully considered the BPR and TBA’s proposed amendment, the comments received, including the points and issues raised therein, and this entire matter. Upon due consideration, the BPR and TBA’s petition to adopt a new Rule 8, RPC 8.4(g) is respectfully DENIED. It is so ORDERED,” today’s Order reads.  The Court’s formal denial is accessible here.

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