### IN THE SUPREME COU RT OF TEN NESSEE AT KNOX VILLE Septem ber 3, 20 09 Sessio n

ROB ERT PH ILIP RAY BUR N, SR. v. BOA RD O F P ROF ESSI ONAL RESPON SI BILITY OF THE SUPRE ME C OURT OF TE NNE SS EE

Direc t Appeal from the Circ uit Court for Ham ilton Coun ty No. 07C967 Jon Ke rry Blackwood , Senior Jud ge, Sitting by Designation

No. E2008-01383-SC-R3- BP - F iled Dece m ber 1, 2009

This opinion addre sses an appea l from a judgme nt aff irming the disbarment of an attorney by a hear ing pa

nel desig nated by

the B oard of

Professional Responsibility

. The first issue prese nted is whether the panel was divested of jurisdiction when the Boa rd approve d a p ro p o s ed offe r of a conditional g uilty plea that the attorney later acc epted with modifications. A second issue is whether the attorney was entitled to a voluntary nonsuit in the trial court afte r fi l i n g a petition for writ of

cer tiorari seeking revie w of the adver se decision by the panel. I n i tially
, the panel reta ined jurisdiction to enter the order of disba rm en t

. Fu rt her, beca use the Tenne ssee Rules of Civil Procedur e apply to our rules of disciplinary enfor ceme nt, an attorney who files a petition for writ of

cer tiorari is entitled to a voluntary nonsuit; howeve r, principles of sovere ign immunit y prec lude the application of the one- y ear saving s statute, Tenne ssee Code Annotated section 28-1-105( a). A petition for cer

tiorari must, there fore
, be filed wi t h i n six ty day s of the panel judgme nt in order to prese rve an appea l. I n summary , the voluntary nonsuit is g rante d; howeve r, the appea l is dismiss ed beca use a second petition for writ o f cer tiorari was not timely filed. We, there fore
, reve rse the judgme nt of the trial court as to the denial of a voluntary nonsuit; we aff irm the judgme nt of disbarment by

the pane l.

Tenn. S up. Ct. R. 9, § 1.3 Direc t Appeal; Judgme nt of th e Trial Court Re verse d and Ap peal Dism issed

G A R Y R. W A D E , J
., delivere d the opinion of the court, in which J A N I C E M. H O L D E R , C.J
., C O R N E L I A A. C L A R K , W I L L I A M C. K O C H , J R ., and S H A R O N G. L E E , J J ., joined.

Wil liam T. Alt (on appea l) and Robert Phili p Ray burn, Sr. (pro se befor e hear ing panel, trial court), Chattanoog a, Te nnessee , for the a ppellant, Robert Philip R ay burn, Sr.Randall J ames Spivey
, Nashville, Tenne ssee, and J ames A. Vick, De puty Chief Disciplinary

Counsel, I nvestig ations, for the appellee
, Boa rd of Professional Responsibili ty of the Supreme Court of Tenne ssee.

OP INION

F acts and P roce dural B ackground This appea l involves three petitions for discipline filed by the Boa rd of Professional Responsibili ty (“B PR”) ag ainst Robert P hilip Ray burn, S r. (“Ray

burn”)
, a C hattanoog a attorney

. The Petition, a Supplemental Petition, and a Second Supplemental Petition were f iled on May

24, J uly 23, and September 11, 2006, respe ctively

. On September 28, 2006, the three separ ate petitions

were consolidated for proce eding s befor e a hear ing panel (“Pane l”) appointed by th e BP R

. S ee Tenn. Sup. Ct. R. 9, § 8.2. The petitions included alleg ations of misconduct by four individual complainants, all of whom wer e former clients of Ray burn: L loy d Swiceg ood, Michae l Rice, Tina L . Wil liams, and DeRenda K. Kirby

.

L loy d Swiceg ood was repr esente d by Ray b u rn i n l itigation arising out of a rea l estate transac tion. The litigation settled, and on October 21, 2004, Ray burn re ce i v ed pay

ment from an insurance company in the sum of $30,000 and the adver sary party in the sum of $1,000. Although Ray b u rn d ep osited the funds into his trust acc ount the next day
, the balanc e due to Swiceg ood ($20,726.50) was not paid for some seven months until M ay 25, 2005, afte r Ray burn had been notified of a disciplinary complaint. Ray burn failed to respond to numerous reque sts by disciplinary counsel to provide trust acc ount rec ords verify ing that the funds wer e maintained in his trust acc ount from the time they

wer e re ceive d until they

wer e disbursed to Swice g ood.

M i ch ae l Rice was repr esente d by Ray burn in his divorce proce eding

. The final di v o rc e decr ee was enter ed on November 27, 2000. On J une 26, 2002, the sale of Rice’s marital residenc e

was approve d, netting the sum of $128,403.61. The order approving the sale stated that “the balanc e of the proce eds from the sale of the marital home will be deposited into an interest bear ing acc ount which will require the signa tures of both parties for withdrawa l.” Ray burn paid Rice’s wife her half of the proce eds in Dec ember of 2002, but Rice’s share rema ined unpaid. On J uly 13, 2 0 0 5
, after
repe ated reque sts for pay ment by Rice, Ray

burn sent Rice a letter informing him that he was withdrawing from repr esenta tion and that “all acc ounts betwee n us will be settled” upon entry of the order of withdrawa l. The order was enter ed on Aug ust 2, 20 0 5
, an d o n October 12, 2005, in
response to a mot ion filed by Rice’s new counsel, the Circuit Court for Hamilton C o u n t y order ed Ray burn to immediately pay the proce eds of the sale of the marital home, plus interest, to the cler k’s office

. Ray

burn did not pay the $ 6 4
, 2 0 1.80 owed to Rice until September 8, 2006, near ly eleve n months afte r entry of the order and more than three months afte r a Petition for Discipline had been filed with the BPR. The intere st owed to Rice for the per iod during which he w as depr ived of the funds was $23,676.14, and Rice claimed damag es of $23,153.10 for Ray burn’s failure to timely
t ender the funds. These damag es included the amount that Rice paid to attorney s to assist in his eff orts to rec over the money that Ray burn owe d.

-2-Tina L

. Wil liams was repr esente d by Ray burn in a persona l injury suit. The case settled for $12 0
, 0 0 0 o n J u ly 26, 1994. Ray burn reta ined $10,998.06 of the settlement proce eds in order to resolve the subrog ation int er es t o f T i m e I nsuranc e Company

. There is no evidenc e that Ray burn maintained these funds in a trust acc ount. On Dec ember 14, 2005, the subrog ation claim was settled for $1,000. After Ray

burn failed to respond to numerous calls and letters reque sting pay ment of the $1,000, counsel for Time I nsuranc e filed a motion to enfor ce the settlement on M ar ch 21, 2006. R ay b u rn paid the balanc e of $9,998.06 to Wil liams on Marc h 23, 2006, but as of the date the Supplemental Petition for Discipline was filed, he had not paid the $1,000 s et t l em ent to Time I nsuranc e.

DeRenda K. Kirby was also repr esente d b y Ray burn i n a personal i njury claim. That case settled for $67,000 in J anuar y of 2006. On Marc h 24, 2006, Ray burn informed Kirby that he would
pay her the settlement proce eds owed to her ($44,000) in a series of five wee kly installments. Kirby

rec eived cashie r’s chec ks for $9,500 on Marc h 24 and April 5, 2006. Kirby rec eived a third cashie r’s chec k for $9,500 made pay able to her mother, Caroly n Kirby
, on May 18, 2006. Ray burn informed Kirby on J une 16, 2006, t hat his acc ountant had told him he would have to lower the installment
p ay ments for the rema ining funds beca use the bank was questioning the amount of money bein g withdrawn. Moreove r, he stated that the chec ks would have to be sent in dif fer ent people’ s names beca use Ray burn did not want to have to pay taxes on the money

. The rema ining balanc e of $15,500

was paid to Kirby by a cashie r’s chec k dated Aug ust 31, 2006, approximately eig ht months afte r the litigation had been resolved. T he petition alleg ed that Ray burn had failed to pla ce the proce eds of Kirby ’s settlement into a client trust acc ount and had commingle d the funds with his own monies.

Ba sed upon the activities alleg ed in the petition and two supplemental pe ti ti o n s f o r d is c ipline, the BPR acc used Ray

burn of violating Rules of Professional Conduct (“RPC”) 1.1, 1.2(a)
, 1.3, 1.4, 1.15(a) -(c ), 1.16(d), and 8.4(a) -(d)

. Ray burn filed answe rs but did not timely respond to interrog atories and reque sts for production of documents filed by the BPR. A defa ult judgme nt on the consolidated petitions was en tere d ag ainst Ray burn on J anuar

y 4, 2007, with the Panel specific ally finding that Ray burn’s actio n s “constitute[d] willful and eg reg ious failure s to make discovery and abuses of the discovery proce ss and a clea r rec ord of non-complianc e and delay
, for wh ich sanctions are war

rante d.” A formal hear ing date of Marc h 28, 2007 was set to deter min e “whe ther and to what extent discipline should be imposed ag ainst [R ay burn] for his violations of the Code of Profe ssional Responsibil ity .”

At the Marc h 28th hear ing, Ray burn enter ed into a conditional plea of g uilty in exchang e for

a suspension of his law license for three y ear s. See Tenn. Sup. Ct

. R. 9, § 16.1. He was not repr esente d by separ ate counsel. During the proc eeding s, disciplinary counsel infor

med the Panel that a proposed plea offe r had been submitt ed to a nd approve d by the B PR several da y s ear lier, on Marc h 23rd. At the t ime the B PR approved the of fer , howeve r, Ray

burn had not a g ree d to acc ept the terms.

The Panel approve d a conditional g uilty plea at the hear ing, modify ing the proposed terms at Ray burn’s re quest in order

to delay the ef fec tive date of

his suspension until J une 1, 2007. The

-3-conditions of t he plea ag ree ment prec luded R ay burn from acc epting any new cl i en ts and required h i m t o notify his exis ting clients of “the pending petitions for discipline, his g uilty plea to thos e petitions, his impending suspension, and his inability to repr esent those clients afte r J une 1, 2007.” The terms direc ted Ray

burn to notify his clients by the ear lier of ten day s following the entry of the Supreme Court’s order imposing discipline, see Tenn. Sup. Ct. R. 9, § 18.1, or April 20, 2007. At Ray burn’s reque st, the notification deadline was extended to April 27, 2007 in the Orde r Approving Conditi onal Guilty Plea as Modified, which the Panel enter ed on April 5, 2007. At the time of the hear ing, the Panel Chair war ned that, in the event Ray burn should not comply with the notification require ment and file cer

tificati o n of such notification with the BPR by the deadline, “the Boa rd would notify

the Panel, and [the Panel would] rec onvene at that time.”

On April 6, 2007, Ray

burn sent a letter to the Panel Chair questioning some of the conditions
set forth in the order that had been fi l ed on the previous day

. The Panel trea ted this letter as a Motion to Alter or Amend its April 5th Orde r Approving Conditi onal Guilty Plea as Modified and denied relief

. When Ray

burn did not provide the BPR with cer tificat i o n t hat he had notified his clients of his g uilt and im p en d i n g s u s pension by the deadline, the Panel set aside the conditional
g uilty plea and schedule d a hear ing on J une 5, 2007, to deter mine the appropr iate d i s ci p l i n e. Ray burn fa iled to appea

r.

On J une 19, 2007, the Panel enter ed an order of disbarment
, fi n d i n g sever al ag g rava ting fac tors applicable
, including: (1 ) substantial experience in the prac tice of law; (2) a pattern of misconduct, incompetenc e, or neg lect; (3) multipl e offe nses; (4) a selfish or dishonest motive; and (5) bad-f aith obstruction of the disciplinary proce eding by failure to c omply with the Panel’s rules and order s. There wer e no mitigating fac tors. The order require d pay ment o f re s t i t ution in the amount of $46,829.24 to Michae l Rice as a c ondition of reinstatement.

On Aug ust 20, 2007, Ray burn filed a

petition for writ of c ertiora ri in the Hamilton County Circuit Court seeking revie w of the Panel’s ruling

. See Tenn. Sup. Ct. R. 9, § 8.3. A hearing was schedule d on May

1, 2008 befor e Judge J on Ker ry Bla ckwood, sitti ng by desig nation. On the day befor e the schedul ed h ea ri n g , Ray burn filed a “Notice of Voluntary Nonsuit Wit hout Prejudice,” citing as authority Rule 41.01 of the Tenne ssee Rules of Civil Procedur e. I n a May 20, 2007 order
, the trial court denied Ray

burn’s reque st, concluding that the g rant of a voluntary nonsuit was not an appropr iate dispositi on of a petition for writ of cer tiorari. Having revie wed t h e re co rd o f the
proce eding s provided by the BPR, the trial court enter ed a ruling on the merits, dismiss ing Ray burn’s petition for writ of cer

tiorari and aff

irming the judgme nt of disbarment in all respe cts. Ray burn filed a timely notice of a

ppeal to this Court.

Scope of Review The Supreme Court is the source of authority of the Boa rd of Professional Responsibili ty and all of its functions and, as such, has the ultimate disciplinary responsibility for violations of the rules
g overning our profe ssion. Hug hes v. Bd. of Prof’l Responsibili t y , 2 5 9 S

. W

. 3d 631, 640 (Tenn. 2008). We e x amine judgme nts in disciplinary matters in light of

our inhere nt pow er and essential

-4-an d fundame ntal rig ht to administer the Court’s rules perta ining to the licensing of attorney s. I d

.

(quoting I n re B urson, 909 S.W.2d 768, 773 (Tenn. 1995)).

The trial court may reve rse or modify a decision of the hear ing panel only when the panel’ s finding s, infere nces, c onclusions or dec isions are:

(1) in violation of constitutional or statutory provisions; (2) in excess of the panel’ s jur isdiction; (3) made upon unlawful proce dure; (4) arbitra ry or capr icious or char acte rized by abuse of discretion or clea rly unwar rante d exercise of discretion; or (5) unsupported by evidenc e which i s b o t h substantial and materia l in light of the entire r ecor d.

Tenn. Sup. Ct. R. 9, § 1.3. Moreove r, the trial court may not “substitute its judgme nt for that of the panel as to the weig ht of the evidenc e on questions of fac t.” I d.; see also Bd. of Prof’l Responsibili ty

v. L ove, 256 S.W .3d 644, 652-53 (Tenn. 2008). We revie w attorney disciplinary matters “upon the
transcr ipt of the rec ord fro m t he circ uit or chanc ery court, which shall include the transcr ipt of evidenc e bef

ore the hear ing pa

nel.” Te nn. Sup. Ct . R. 9, § 1.3. Our standard of review on a ppeal is ide ntical to tha t of the trial court under Rule 9, section 1.3, and, in c onsequenc e, we will r ever se a hea ring panel only

when the pa

nel’s “f indings, infe renc es, conc lusions, or decisions” fa ll within
any of the five circ umstances enumer ated in the rule. L ove, 256 S.W .3d at 653 (quoting Tenn. Sup. Ct. R. 9, § 1.3); see also Tenn. Code Ann. § 4-5-322( h) (2005); City of Memphis v. C ivil Serv. Comm’n of Memphis, 216 S.W .3d 311, 316 (Tenn. 2007) . “When none of the first three g rounds for reve rsal ar e p resent,

. . . the hear ing panel should be upheld unless the decision was either arbitra ry or capr icious, ‘cha

rac terized by an abuse, or clea rly unwar rante d exercise, of discretion’ or lac king in support by substantial and material evidenc e.” Hug hes, 259 S.W .3d at 641 (quoting CF I ndus. v. Tenn. Pub. Serv. Comm’n, 599 S.W .2d 536, 540 (Tenn. 1980) ).

Analysis Now represe nted by counsel, Ray burn presents two arg uments i n h i s appeal: first, that the Panel was divested of

jurisdiction when the BPR approve d the proposed offe r of a conditional g uilty plea and there fore had no power to modify the conditional plea, and second, that the trial court err ed by holding that he had no rig ht to take a voluntar y nonsuit of his petiti on for wr it of cer tiorari.

P anel’s Jurisdi ction to Modify the Condi tional Plea A gree m ent During oral arg ument befor e this Court, Ray burn, throug h his counsel, claimed for the first time that the Panel had exceede d its jurisdiction by modify ing the terms of the conditional g uilty plea offe red by the BPR. This Court g rante d counsel permission to file a supplemental brief on the issue, and the B PR filed a response

.

Tenne s s ee Supreme Court Rule 9, section 16.1 provides that an attorney who has been formally char g ed with violating the Rules of Professional Conduct may tender a conditional g uilty
p l ea at an y s tag e of the proce eding s. I f the matter has been assig ned for hear ing, as was the ca s e here
, the g uilty plea shall be “appr oved or reje cted by the Boa rd upon rec ommendation of the hear ing

-5-panel.” I d. “Appr oval of such a tender ed plea by the Boa rd

. . . shall divest the hear ing panel or trial court of f urther jur isdiction.” Tenn. Sup. Ct. R. 9, § 16.2.

I n his post-arg ument brief, Ray burn descr ibes the proce dural history of his conditional plea
ag ree ment as follows:

Prior to the schedule d hear ing date the Disciplinary Counsel and [R ay burn] rea ched
ag ree ment on the terms of a propose d s ett lement. The proposed settlement was submitt ed by the Disciplinary Counsel to the Boa rd. I t then voted to acc ept the settlement. Wit h the approva l obtained from the Boa rd the written Conditi onal Plea of Guilty was prepa

red by Disciplinary Counsel. The hear ing panel was made awa re prior to the schedule d hear ing date that a Conditi onal Plea of Guilty had been rea ched with [ Ray burn].

Ray burn contends that beca

use the BPR had alre ady approve d a conditional g uilty plea prior to the Panel hear ing, the Panel was divested of jurisdiction under Supreme Court Rule 9, section 1 6

. 2

. Be cause , Ray

burn asser

ts, the Panel was without jurisdiction to modify the conditional g uilty plea, its orders of A

pril 5 and June 19, 2007 were void.

Ray burn’s arg ument is belied by the fac ts. Whil e the reco rd confirms that disciplinary counsel did discuss a proposed conditional g uilty plea at the meeting of the BPR on Marc h 23, 2007, it also establishes t hat R ay burn di d not acc ept the ter ms of the conditional guilty plea until Marc h 28th, the date of his hear ing befor e the Panel. On Marc h 23rd, there fore
, the BPR had no conditional
g uilty plea to a

pprove. Moreove r, the proposed g uilty plea that disciplinary counsel had prese nted
to the BPR on Marc h 23rd was modified, at Ray burn’s reque st, at the hear ing on Marc h 28th in order
to delay the suspension of Ray burn’s law license until J une 1, 2007. Finally
, even if d i s ci p l inary counsel had actua lly prese nted the BPR with a conditional g uilty plea on Marc h 23rd, the BPR could
not have g iven formal approva l. Be cause the matter had been ass i gn ed for hear ing by the Panel pursuant to Supreme Court Rule 9, section 8.2, any conditional g uilty plea, by the terms of the rule, could only be “appr oved o r re j ec t ed by the Boa

rd upon rec ommendation of the hear ing panel.” Tenn. Sup. Ct. R. 9, § 16.1 (emphasis added)

.

Be cause the BPR did not ap p ro v e a co nditional g uilty plea prior to the Panel hear ing on March 28, 2007, Supreme Court Rule 9, section 16.2 is inapplicable. I t was well within the jurisdiction of the Panel to both vacate the modified conditional g uilty plea when Ray burn failed to timely notify his exis ting clients of his impending suspension by the established date, and enter the order of disbarme nt when Ray burn fa iled to appea

r at the June 5th hear ing.

Voluntary Nonsui t of Pe tition f or Writ of Certiorar i Ray burn’s second arg ument, prese nted in his initial brief, is that he was ent it le d to voluntarily nonsuit his petition f

or writ of cer

tiorari in the Circuit Court of Hamilton County

. Supreme Court Rule 9, section 1.3 provides that the attorney or the B oard “ may

have a review of the j udg ment of

a hear ing panel in the manner provided by Tenn. Code Ann. § 27-9-101 et seq., except as otherwise

-6-provided here in.” Tenne ssee Code Annotated section 27-9-102 (2000) direc ts that this revie w shall

be obtained throug h the filing of a petition for writ of cer tiorari within six ty day s of the entry of the order of the he aring

panel. See also Tenn. Sup. Ct. R. 9, §§ 1.4, 8.3.

Ray burn asse rts that Tenne ssee Rul e of Civil Procedur e 41.01 permits a voluntary nonsuit of a petition f

or writ of cer

tiorari. I n response , the BPR arg ues that beca use the petition for writ of

cer tiorari to the chanc ery or circ uit c ourt is sty led in T ennesse e Supreme Court Rule 9, section 1.4

as “[a]n appea l from the rec ommendation or judgme nt of a hear ing panel,” the Tenne ssee Rules of Appellate Procedur e, and not the Rules of Civil Procedur e, apply

. Acc ording ly
, the BPR points us to Tenne ssee Rule of Appellate P ro ce d u re 15(a)
, rathe r than Tenne ssee Rule of Civil Procedur e 41.01, for g uidance

. Rule 15(a)
, wh i ch g overns the voluntary dismiss al of an appea l, does not include an entitlement to a dismiss al without prejudice

. J ackson- Madison County Gen. Hosp. Dist.

v. Tenn. Hea lth Fa cilit i es C o m m’n, No. M1999-02804-COA- R3-CV, 2001 WL 1504745, at *4 (Tenn. Ct. App. Nov. 28, 2001) (citing Ba n k s v. Ky

. L ive Stock I ns. Co., 7 Tenn. Civ. App. (Hig g ins) 419, 429 (1916))

.

Rule 1 of the Tenne ssee Rules of Appellate Procedur e stipulates that the “rule s shall g overn proce dure in proce eding s befor e the Supreme Court, Court of Ap p eals, and Court of Criminal Appea ls.” Conversely
, Tenne ssee Rule of Civil Procedur e 1 states that “the Rules of Civil Procedur e shall g overn proce dure in the circ uit or chanc ery courts in all civil act i o n s , wh ether at law or in equity .” Be cause the petition for writ of cer tiorari wa s p en d i n g i n the circ uit court, the Rules of Appellate Procedur e have no application here
, either by analog y or otherwise. This is supported by section 23.3 of Te nnessee Supreme Court Rule 9, which dire cts that except as other wise provided in the Supreme Court Rules, “the Te nnessee Rules of Civil P roce dure a nd the Tenne ssee Rules of Evidence apply

in disciplinary

case s.” C lear ly
, there fore
, the Tennessee Rules of Civil P roce dure apply to the appea l of hea

ring panel judg ments to the trial court.

Under our Rules of Civil Procedur e, “the plaintiff shall have th e rig ht to take a voluntary nonsuit to dismiss an action without prejudice by filing a written notice of dismiss al at any time befor e the trial of a cause and serving a copy of the notice upon all parties,” among other means and pursuant to cer

tain conditions, none of which are applicable here

. Tenn. R. Civ. P. 41.01(1); see also Rickets v. Sex ton, 533 S.W .2d 293, 294 (Tenn. 1976) (“The lawy er for the plaintiff is the sole judge of the matter and the trial judge has no control over it. I t is not nece ssary that he approve the action

. . . nor may he nullify the rules by an order ‘disallowing ’ the nonsuit. All that is require d

. . . is the filing of a written notice o f d i s m issal.”). Rule 41.01(1), there fore
, provides that an attorney appea ling a hear ing panel’ s judgme n t b y m ea ns of a petition for writ of cer tiorari to a circ uit or chanc ery court is e ntitled to a voluntar y nonsuit of his or her pe tition. I ndeed, a voluntary

nonsuit afte r the filing of a petition for writ of cer tiorari may be entirely appropr iate in some circ umstances. For example, a par

ty may decide for financ ial considerations to dismiss the petition. A settlement

or a chang e in circ umstances obviating the need for relief might also war rant the filing of a voluntary nonsuit. Be cause Rule 41.01(1) appl i ed i n t he proce eding s, the trial court err ed by deny ing Ray burn’s motion and holding that “[a] Voluntary Non-Suit Wit hout Prejudice is not an appropr iate dispositi on of the Writ of Certiorar i.” We must, there fore
, reve rse the judgme nt of the trial court and

-7-g rant the motion for a voluntary nonsuit to the extent that the appea l from the decision of the Panel

is dismi ssed.

Ray burn’s motion, howeve r, sug g ests that the voluntary dismiss al o f his suit is “without prejudice .” This trac ks the lang uag e of Rule 41.01(1), but, of course, tha t rule does not g uara ntee that a lawsuit that has been voluntarily d i s m issed can be ref iled in all circ umstances. The 2005 Advisory Commi ssion Comments to Rule 41.01 war n that “[p] laintiffs and their counsel should note that in cer tain circ umstances a case cannot be rec ommenced afte r the filing of a voluntary nonsuit.” Fur ther, the 2006 Comments sug g est that “a plaintiff must car efully consider

. . . whether the saving s statu te

. . . authorizes a rec ommenceme nt of the plaintiff’s action afte r a nonsuit.” The saving s statute, wher e applica

ble, per mits a plaintiff who has vol untarily nonsuited a properly filed action
t o ref ile within a y ear of the nonsuit. Tenn. Code Ann. § 28-1-105( a) (2000) (“I f the action is

commence d within the time limited by a rule or statute of limit ation, but the judgme nt or decr ee is rende red ag ainst the plaintiff upon any g round not concluding the plaintiff’s rig ht of action,

. . . the plaintiff . . . may

. . . commence a new

action within one (1) y ear . . . .”).

This Court rece ntly

addre ssed the application of the saving s statute to actions ag ainst state entities such as the BPR. I n Davidson v. L ewis Br others Ba kery
, an injured employ ee filed a timely worke rs’ c ompensation claim ag ainst his employ er a nd the Second I njury

Fund, an administrative unit of the Tenne ssee Depa rtment of L abor and Workforce Deve lopment. 227 S.W .3d 17, 18 (Tenn. 2007). The employ ee took a voluntary nonsuit pursuant to Tenne ssee Rule of Civil Procedur e 41.01 and, eig ht months later, ref iled his c laim a g ainst both de fenda nts. I d. at 18. Be cause principles of

sovere ign immunit y preve nt a ny party from bring ing a lawsuit ag ainst “the State,” which includes, inter ali a, t h e b oards of the State, unless a statute clea rly and unmistakably discloses the Gene ral Assembly ’s intent to permit the suit, id. at 19, we held that whe n a

claimant voluntarily non-suit[ s] a claim ag ainst a unit of the State’s g overnme nt, .

.

. the principles of sovere ign immunit y and waiver

. . . rema in opera ble. Be cause the saving s statue does not contain the waiver of sovere ign immunit y nece ssary to support a suit aga i n st the State

. . . section 28-1-105( a) does not “save ” a claim
ag ainst the Fund w hen the a pplicable statute of

limit ations has otherw ise run.

I d. at 20; see also L y

nn v. City of Jackson, 63 S.W .3d 332, 337 (Tenn. 2001) (“[T]he g ener al rule in Tenne ssee is that saving s statutes may not be applied to extend the period within which an action must be filed under

the [Tennessee Gover

nment Tort L iability

Act].”).

The BPR, like the Second I njury Fund, is an arm of the State. Thus, the same sovere ign immunit y principles that preve nted the ref iling of the claim ag ainst the Fund in Davidson also apply here

. Moreove r, the six ty -day period within which Ray burn was permitted file a petition for writ of

cer tiorari from the Panel’s J une 19, 2007 order of disbarment, see Tenn. Code Ann. § 27-9-102 and Tenn. Sup. Ct. R. 9, § 8.3, has long since passed. Ray burn’s voluntary non-suit, there fore
, has had the ef fec t of barr ing a

ny considera

tion of his petition for writ of ce rtioriari.

-8-The dismiss al of an appea l of a panel judgme nt of disbarment or suspension in ex ce s s of

three months is trea ted as if no appea l had been taken. See Tenn. Sup. Ct. R. 9, § 8.4 (providing that the BPR shall forwa

rd a copy of the judgme nt to the Supreme C o u rt fo r revie w and approva l or disapproval of the proposed p u nishment). Our responsibility
, there fore
, is to “re view the

rec ommended punishment provided in [t he] judgme nt

. . . with a view to attai n i n g uniformity of punishment

. . . and appropr iateness of punishment under the circ umstances of eac h particula r case .” I d. Under

these c ircumstance s, we a ffirm the or der of disbarment.

I n conducting our revie w of the BPR’s punishment under Rule 9, section 8.4, “we ar e require d to revie w all of the circ umstances of the particula r case and also, for the sake of uniformity
, [t he] sancti ons imposed in other case s prese nting simil ar circ umstances.” Bd. of Prof’l Responsibili ty v. Allison, 284 S.W .3d 316, 327 (Tenn. 2009) (citing Bd. of Prof’l Responsibili ty v. Maddux, 148 S .W.3d 37, 40 (Tenn. 2004)). T he AB A Standards for I mposing L awy er Sanc tions, (“A BA Standards”) serve as g uidelines for attorney discipline. Tenn. Sup. Ct. R. 9, § 8.4; Allison, 284 S.W .3d at 327. Under section 3

. 0 of those standards, four fac tors should be considere d
reg arding the sever ity of a sanction: “(a ) the duty violated; (b) t h e l awy er’ s mental state; (c) the potential or actual injury cause d by the l awy er’ s m isconduct; and (d) the ex istence of ag g rava ting

or mitigating fac tors.” Gene ral principles g uiding the deter mination of the proper penalty appea r in sections 4 throug h 8 of the AB A Standards, while section 9 lists the rel ev an t ag g rava ting and mitigating circ umstances.

The rec ord demonstrates that Ray burn knowi n g ly a

n d r e p e a te d ly d eprive d his clients of funds
to which th ey we re entitled. Ray burn’s clients wer e not paid the balanc es due until months afte r their case s had settled. I n some case s, the proof established t h at Ray burn had commingle d his clients’ settlement proce eds with his own persona l f unds and wa s not f

orthcoming with his clients

as to when those funds would be paid. Fur ther, the amounts i n v o l v ed were substantial. For example, Ray

burn withheld pay

ment of over $64,000 to Rice for over four y ear s afte r the s ale of Rice’s mar ital home, and Rice inc urre d considera ble expense in his effor

t to rec over those funds. The other three instances of misconduct also involved the misuse of funds resulting in i n j u ry t o Ray burn’s clients. See AB A Standards § 4.11 (“D isbarment is g ener ally appropr iate when a lawy er knowing ly conver

ts client proper

ty and cause s injury or potential injury to a client

. ”) ; id. § 4.61 (“D isbarment is g ener ally appropr iate when a lawy er knowing ly dece ives a client with the intent to benef it the lawy er or another
, and cause s serious injury or potential injury to the client.”)

. Finally
, Ray burn’s y ear s of p ra ct i ce experience
, pattern of misconduct and neg lect, dishonesty with his clients, and delay and obstruction of the d i s ci p l i nary proce eding s all are ag g rava ting fac tors

war ranting disbarment.

Conclusion The Panel acte d within its authority in modify ing the conditional g uilty plea when Ray burn failed to comply with its terms; howeve r, Ray bu rn wa s p er mitted by Tenne ssee Rule of Civil Procedur e 41.01 to take a voluntary nonsuit of his petition for a writ of cer tiorari from the judgme nt of t he P anel. Ac cording ly , the judg ment of the trial c ourt is reve rsed and Ray burn’s appeal of the Panel decision is dismiss ed. The order of d i s b ar m en t is aff irmed. This opinion is not subject to

-9-rehe aring under Rule 39 of t he Tennessee Rules o f Appellate Procedur e. The Cl erk is direc ted t o

cer tify this opinion as fina l a nd to issue the mandate immediately

. Wit hin te n day s, Ray burn shall file an aff

idavit with the BPR showing that he has complied with all of the require ments of Tenne ssee Supreme Court Rule 9, section 18. Tenn. Sup. Ct. R. 9, § 18.8. The costs of this appea l

are taxed to Robert Phili p Ray burn, Sr., and his surety , for which execution may issue if nece ssary

.

___________________________________ GARY R. WADE, J USTI CE

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