Neither Too Short Nor Too Long

The Tennessee Supreme Court has affirmed a sanction imposed on an attorney for misconduct in two personal injury matters

A hearing panel of the Board of Professional Responsibility concluded that Daryl A. Gray violated Rules 1.3, 1.4, 1.15(d) and (e), 1.16, 4.1(a), and 8.4(c) of the Tennessee Rules of Professional Conduct and suspended him from the practice of law for six months. The violations stemmed from two separate complaints, both involving Mr. Gray’s representation of plaintiffs in personal injury lawsuits. The trial court affirmed the hearing panel’s decision. After careful consideration, we too affirm.

One matter involved the failure to timely disburse settlement proceeds

On April 3, 2017, almost ten months after the case settled, Mr. Gray deposited $6,333.00 with the Shelby County Circuit Court and initiated an interpleader action. Mr. Gray served Dr. James, Baptist One Care, and Campbell Clinic with notice of the action. Dr. James filed an answer claiming the interpleaded funds for his medical bills totaling $5,915.00. He also filed a counterclaim for breach of contract and conversion and asked for court costs, attorney’s fees, and expenses. No other medical provider, insurer, or third party filed an answer or asserted a claim to the interpleaded funds. The trial court signed an order on January 3, 2019, approving disbursement of the interpleaded funds to Dr. James and Mr. Seiler for the medical bills and attorney’s fees.

The other involved an accident

Kristopher McMickens was injured in an automobile accident on December 3, 2016. He hired Mr. Gray to represent him in a personal injury action against the at-fault driver, Alfred Farmer. Mr. Farmer, however, passed away from crash-related injuries before the suit could be filed. No estate was opened following Mr. Farmer’s death, so no personal representative was appointed to accept service of process.

An unhappy client

Beginning in late 2018, the relationship between Mr. Gray and Mr. McMickens deteriorated. Around that time, Mr. McMickens became extremely hostile with Mr. Gray and his office staff, going so far as to angrily call Mr. Gray’s office on several occasions. During these calls, he made clear that he knew Mr. Gray’s home address and eventually threatened to kill Mr. Gray along with his family. Mr. McMickens apparently tried to emphasize the seriousness of these threats by referencing his record of being charged with violent crimes. During a text exchange on February 5, 2019, Mr. McMickens told Mr. Gray:

Look I don’t know who you think I am I don’t need money to make things happen, you won’t [sic] to keep yourLaw [sic] firm in Memphis it will be good you do right by me I don’t do games, I record conversation to [sic].

Mr. Gray understandably perceived this message as a threat. He responded with a text: “I no longer represent you. Find another attorney.”

Then

On September 18, 2019, the Shelby County Circuit Court dismissed the tort action against the estate of Mr. Farmer. The court’s order explained that the original complaint was filed against a non-entity and the amended complaint was never served on anyone. Thus, the statute of limitations barred Mr. McMickens’s claim. The Court of Appeals affirmed that decision. McMickens v. Perryman ex rel. Est. of Farmer, No. W2022-00445COA-R3-CV, 2023 WL 3736436 (Tenn. Ct. App. May 31, 2023).

While the motion to withdraw was still pending, Mr. McMickens retained new counsel and filed a legal malpractice action against Mr. Gray. The motion to withdraw was finally granted on January 24, 2022, nearly three years after Mr. Gray told Mr. McMickens that he no longer represented him.

The court sustained findings of rule violations

Here, the six-month suspension is an appropriate sanction given the seriousness of Mr. Gray’s misconduct. The first part of the sanction is a two-month active suspension, during which Mr. Gray will not be allowed to practice law in Tennessee and must satisfy additional continuing legal education requirements. The second part is a four-month probationary period, during which he must meet regularly with a practice monitor.

Too short a period of active suspension will not go far enough to deter attorney misconduct, while too long of one can become the practical equivalent of disbarment. See Stephen G. Bené, Note, Why Not Fine Attorneys?: An Economic Approach to Lawyer Disciplinary Sanctions, 43 Stan. L. Rev. 907, 929 (1991) (“As far as the attorney is concerned, any suspension over a year or two in length may be the same to him as outright disbarment, since he will have to find another occupation to support himself.”). In this case, the period of active suspension falls comfortably between those two extremes. This strikes the balance necessary to deter other lawyers from engaging in a similar pattern of misconduct.

Conclusion

For the reasons discussed, we hold that the hearing panel’s conclusions that Mr. Gray violated Tennessee Rules of Professional Conduct 1.3, 1.4, 1.15(d) and (e), 1.16, 4.1(a), and 8.4(c) are supported by substantial and material evidence, are neither arbitrary nor capricious, and are not an abuse of discretion. Although the hearing panel’s reliance on ABA Standard 6.12 was improper, its other determinations related to Mr. Gray’s punishment—including the recommended sanction—are supported by substantial and material evidence and are not arbitrary or capricious or an abuse of discretion. We therefore affirm the judgments of the hearing panel and the trial court. The costs of this appeal are taxed to Mr. Gray, for which execution may issue if necessary.

(Mike Frisch)