The Verdict

The Tennessee Court of Appeals affirmed findings of unauthorized practice and consumer protection violations but remanded for the limited purpose of assessing reasonable attorney’s fees

This case concerns violations of Tennessee’s statutes regarding the unauthorized practice of law (the “UPL Statute”) and the Tennessee Consumer Protection Act (“TCPA”) by The Witherspoon Law Group PLLC (“the Firm”), Mr. Nuru Witherspoon, Mr. Alphonso McClendon, and Mr. Glenn Smith (collectively, “Defendants”). Mr. Witherspoon is the sole owner of the Firm and is licensed to practice law but not in Tennessee. Mr. McClendon and Mr. Smith are nonlawyers who worked for the Firm. Defendants solicited four different families in Tennessee who were each in the process of making arrangements at funeral homes for their recently deceased children. Defendants solicited the Myers family while they were in the process of making funeral arrangements at a funeral home in Memphis and solicited the Jones, Nash, and Wilson families while they were at a funeral home in Chattanooga.

The State brought the action and called several witnesses, one of whom testified

I felt like they shouldn’t do that to nobody. You shouldn’t wait for somebody to go bury the[ir] daughter and put them in a room and ask them, “Well, ma’am, if you sign with us we can get you this much money. And if you do sign with us, ooh, we can pay for your funeral arrangements.”

The results of the trial

On the fourth day of trial, the jury was charged by the trial judge. After deliberation, the jury returned a unanimous verdict in favor of the State and assessed civil penalties against Defendants. The jury found that Mr. Smith and Mr. McClendon engaged in solicitation in violation of the UPL Statute, Mr. McClendon falsely advertised himself or held himself out as a lawyer in violation of the UPL Statute, and Mr. Witherspoon was responsible for the conduct of Mr. Smith and Mr. McClendon. In regard to the TCPA, the jury found that Mr. Smith and Mr. McClendon committed unfair or deceptive practices in violation of the TCPA and that Mr. Witherspoon and the Firm acted in common enterprise with Mr. Smith and Mr. McClendon. Thereafter, Defendants prematurely filed an appeal. The trial court then entered an order of judgment against Defendants in December 2021.

The ethics rules were inapplicable to the State’s complaint with respect to the non-lawyers

During his proffered testimony, Mr. Witherspoon testified that he was very familiar with the rules regarding the multi-jurisdictional practice of law. Yet, he cannot utilize Rule 5.5(c)(2) as a defense that would enable him to solicit clients in Tennessee. As previously discussed, the State’s allegations in this case were that two nonlawyers, Mr. McClendon and Mr. Smith, solicited clients in Tennessee and that Mr. McClendon held himself out as a lawyer. Mr. Witherspoon admitted that he was aware of Mr. McClendon’s and Mr. Smith’s activities in Tennessee. While Mr. Witherspoon may have had a reasonable expectation to be authorized to practice law in Tennessee on a temporary basis, he admitted that he did not have a license to practice law in Tennessee.

Sufficiency of evidence

we find that there was material evidence to support the jury’s verdict. Ms. Nash went to the funeral home to view her child’s body, make arrangements, and go home. Instead, before she even had a chance to view her child’s body, she was blindsided with an introduction to Mr. McClendon. She said that the situation was inappropriate and that she felt violated. Mrs. Taylor confirmed that this introduction happened to all three families. Perhaps most significantly, she testified that none of the three families asked for this introduction; rather, the families found out that the presentation was going to take place while in the process of handling the funeral arrangements for their deceased children. Not only was this situation inappropriate and distasteful given the circumstances, but Mr. McClendon’s conduct was unlawful.

.. we conclude that there is material evidence to support the jury’s verdict finding Mr. McClendon and Mr. Smith engaged in impermissible conduct in violation of the UPL Statute and the TCPA. We affirm the trial court’s determination that there was material evidence to support the jury’s verdict.

Attorney’s fees

The State has prevailed in this appeal. Therefore, we conclude that the State is entitled to an award of reasonable attorneys’ fees incurred before this Court. We grant the State’s request for an award of reasonable attorneys’ fees on appeal and remand the case to the trial court for a determination of the appropriate amount of those fees.

ABC News Channel 9 (Chattanooga)  reported on the trial court action

A Chattanooga jury has unanimously found a Texas law firm, its owner, and agents liable for consumer protection violations and the unauthorized practice of law when they solicited families of the victims of the deadly November 2016 school bus crash that killed six children.

Tennessee Attorney General Herbert Slatery, who filed the lawsuit, says the jury ruled in favor of Tennessee and against the Witherspoon Law Group, owner Nuru Witherspoon, and law firm representatives Glenn Smith and Alphonso McClendon, back on November 12th of this year.

Slatery filed suit after his office received reports that Witherspoon made contact with victim’s families as they were making funeral arrangements at a Chattanooga funeral home. Six children died in the November 21st crash on Talley Road in Hamilton County. The driver, Johnthony Walker, was sentenced to 6 years, one month in prison in 2018.

He says Witherspoon’s investigators presented themselves as attorneys and pressured families to sign contracts and documents, and that investigators offered to pay funeral costs for the families in exchange for using their services.

(Mike Frisch)