IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

June 22, 2004 Session

SEILLER & HANDMAKER, L.L.P. and GLEN COHEN v. KELLY

FINNELL

An Appeal from the Circuit Court for Shelby County

No. 306486TD Kay S. Robilio, Judge

No. W2002-02593-COA-R3-CV - Filed October 27, 2004

This is an action to enroll a foreign judgment. A Tennessee resident was represented by a Kentucky

lawyer in a Kentucky lawsuit. When the Kentucky lawyer pursued collection of his fees, the

Tennessee client filed a bar complaint against him in Kentucky. The bar complaint was dismissed,

and the Kentucky lawyer filed a malicious prosecution lawsuit in Kentucky against the client, and

obtained a judgment. In this action, the Kentucky lawyer seeks to enroll the Kentucky judgment

against the Tennessee client. The client asserts that the judgment should not be enrolled in

Tennessee because it falls under the public policy exception to the full faith and credit clause of

United States Constitution. The client bases this argument on Tennessee Supreme Court Rule 9,

section 27.1, which prohibits any lawsuit based on a bar complaint, asserting that the enrollment of

a foreign judgment based on this cause of action would violate Tennessee public policy. The trial

court held that the Kentucky judgment was entitled to full faith and credit and domesticated the

judgment. We affirm the decision of the trial court, finding that the enrollment of the foreign

judgment does not violate Tennessee public policy.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

HOLLY M. KIRBY,J., delivered the opinion of the Court, in which ALAN E. HIGHERS,J. and DAVID

R. FARMER, J., joined.

Mark Vorder Bruegge, Jr. and Scott B. Ostrow, Memphis, Tennessee, for the appellant, Kelly

Finnell.

Wendell L. Jones, Louisville, Kentucky, for the appellees, Seiller & Handmaker, L.L.P. and Glen

Cohen.

OPINION

Plaintiff/Appellee Glen Cohen (“Cohen”) is a Kentucky attorney associated with the

Kentucky law firm Seiller & Handmaker LLP. Cohen and his law firm represented
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Defendant/Appellant Kelly Finnell (“Finnell”), a Tennessee resident and a licensed Tennessee

attorney, in a 1993 Kentucky lawsuit. After a successful outcome, a dispute arose regarding Cohen’s

legal fees, totaling $3,800, and Finnell refused to pay.

In late November 1997, Cohen filed a lawsuit in Kentucky against Finnell for collection of

his attorney’s fees. In early December 1997, Finnell sent Cohen a letter demanding that Cohen

voluntarily dismiss the collection lawsuit and enclosing a proposed bar complaint against Cohen,

alleging unethical conduct. In the letter, Finnell told Cohen that he would refrain from filing the bar

complaint and save Cohen the “embarrassment” of responding to it if Cohen would dismiss the

collection lawsuit. Cohen did not dismiss the collection lawsuit, and Finnell filed the bar complaint

against Cohen with the Kentucky authorities.

Finnell’s bar complaint against Cohen was dismissed. Cohen then amended his Kentucky

collection lawsuit against Finnell by adding a claim of malicious prosecution, asserting that the

purpose of Finnell’s bar complaint was to intimidate and harass Cohen into dropping his claim for

fees against Finnell. Finnell then filed a second bar complaint against Cohen in Kentucky. The

second complaint was likewise dismissed.

Although Finnell filed an answer in Kentucky to Cohen’s original collection lawsuit, no

answer was filed to the amended complaint alleging malicious prosecution. Cohen filed a motion

for default judgment, and Finnell failed to appear at the hearing on the motion. Consequently, in

May 1998, a default judgment was entered against Finnell, with a hearing on damages set for later

that month.

Prior to the hearing on damages, Finnell paid Cohen’s original $3,800 claim for attorney’s

fees, plus interest. After the hearing on damages, in August 1998, the Kentucky trial court entered

an order making the following findings:

4. Cohen sent a bill for $3800.00 in attorney fees and $400.00 in

mediation expenses. . . . [T]he court finds such fees and expenses

reasonable. . . .

5. Finnell never paid the fee. On November 21, 1997, the law firm

filed this lawsuit seeking compensation. On December 2, 1997,

Finnell sent a proposed bar complaint against Cohen with a letter

demanding Cohen voluntarily dismiss the action against him. The

court finds the sole purpose of this letter and proposed bar complaint

was to intimidate and harass Cohen and the law firm. Finnell

followed the letter with a telephone call on December 15, 1997, again

seeking to persuade Cohen to dismiss the lawsuit. Finnell testified

that he anticipated Cohen would be embarrassed by the bar action.

6. Cohen testified that as a result of the initial complaint, as well as

an amended complaint filed on February 6, 1998 after the first one

was dismissed, he was upset and embarrassed.
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7. Again Finnell testified that the purpose of the second bar

complaint, and the court so finds, was to cause Cohen to change his

intentions of pursuing the fee litigation. The second complaint is

more egregious than the first. While it is not uncommon for clients

to complain about fees, to question the ethics of an attorney goes to

the very heart of our profession. As a licensed attorney who

completes the necessary ethics courses to keep his license, Finnell

knew, or should have known, of the impact on an attorney’s

reputation when such allegations are made.

* * *

9. One of the primary purposes of punitive damages is to deter further

harmful conduct by a party. It is clear from Finnell’s conduct, toward

Cohen and before the Kentucky Bar Association and this court, that

he has little regard for the practice of law, reputation of lawyers and

orders of the courts of Kentucky. Finnell was willing to destroy an

attorney’s reputation for a mere $3800.00 fee.

Based on these findings, in addition to the $3800 in attorney’s fees already paid by Finnell, the

Kentucky trial court awarded Cohen $20,000 for economic loss for the time spent defending against

Finnell’s bar complaints, $25,000 for emotional distress, humiliation and embarrassment, and

$25,000 in punitive damages.

Finnell filed a motion to alter or amend, which was denied. Finnell then appealed the

judgment to the Kentucky Court of Appeals. In February 2001, the Kentucky Court of Appeals

affirmed the trial court’s order. Finnell appealed to the Kentucky Supreme Court, and permission

for his appeal was denied in August 2001.

Cohen filed a petition in the Shelby County Circuit Court in Tennessee to enroll the Kentucky

judgment against Finnell. Finnell sought to prevent the enrollment of the judgment under the public

policy exception to the Full Faith and Credit Clause of the U.S. Constitution. Finnell cited Tennessee

Supreme Court Rule 9, section 27.1, which enforces the Code of Professional Responsibility, which

states:

Communications to the board, hearing committee members or

disciplinary counsel relating to lawyer misconduct or disability and

testimony given in the proceeding shall be absolutely privileged, and

no civil lawsuit predicated thereon may be instituted against any

complainant or witness

Tenn. S. Ct. R. 9, § 27.1. Finnell argued that this rule expresses a Tennessee public policy against

permitting a lawyer to file a lawsuit against one who files an ethics complaint against the lawyer.

To permit the enrollment in Tennessee of a foreign judgment predicated on such a lawsuit, Finnell

contended, would violate the public policy of Tennessee. The Tennessee trial court rejected this
Finnell contends that, in light of section 27.1, Lackey is no longer good law.

1

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argument and enrolled Cohen’s Kentucky judgment against Finnell. From this order, Finnell now

appeals.

The facts of this case are undisputed. The trial court’s legal conclusions are reviewed de novo

with no presumption of correctness. Campbell v. Florida Steel Corp., 919 S.W.2d 26, 35 (Tenn.

1996).

Finnell argues that the Kentucky judgment should not be enforced because the underlying

cause of action, malicious prosecution for filing a bar complaint, violates Tennessee public policy.

Finnell argues that Tennessee Supreme Court Rule 9, section 27.1 grants absolute immunity from

suit for one who files a bar complaint in Tennessee against a lawyer. Finnell maintains that this Rule

was adopted to ensure that those utilizing the services of Tennessee lawyers will not hesitate to report

unethical conduct or fear reprisal for doing so. Permitting enrollment of the Kentucky judgment,

Finnell contends, would allow a Tennessee court to be used to punish a Tennessee resident for filing

a bar complaint with the Kentucky Bar Association, in violation of the public policy embodied in

section 27.1.

In response, Cohen argues that Tennessee permits a malicious prosecution action arising out

of a false and malicious bar complaint against an attorney, citing Lackey v. Metropolitan Life Ins.

Co., 206 S.W.2d 806 (Tenn. App. 1946), and maintains that Cohen’s claim against Finnell would be

permitted in Tennessee. In the alternative, Cohen contends, even if section 27.1 is an absolute grant 1

of immunity to one who files a bar complaint against a Tennessee lawyer, it does not rise to the level

of a public policy which would prohibit giving full faith and credit to the Kentucky judgment.

 Finnell correctly states the rule of law that “Tennessee courts are not obligated to give full

faith and credit to any judgment of a state which we hold to be violative of Tennessee’s public policy

or the Federal Constitution.” Aqua Sun Invs., Inc. v. Henson, 1993 WL 382230 *2 (Tenn. Ct. App.

Sept. 30, 1993). Finnell acknowledges, however, that a party who invokes the public policy

exception must identify the public policy that is offended by the foreign judgment and has a “‘stern

and heavy’ burden.” Id. (quoting Biogen Distrib., Inc. v. Tanner, 842 S.W.2d 253, 256 (Tenn. Ct.

App. 1992)). 

Tennessee public policy is found in its “constitution, statutes, judicial decisions, and common

law.” Alcazar v. Hayes, 982 S.W.2d 845, 851 (Tenn. 1998). “Although the determination of public

policy is primarily a function of the legislature, the judiciary may determine public policy in the

absence of any constitutional or statutory declaration.” Id. (quoting Crawford v. Buckner, 839

S.W.2d 754, 759 (Tenn.1992)). 

Finnell cites In re Riggs as an example of a foreign judgment denied full faith and credit by

Tennessee courts based on the public policy exception. In re Riggs, 612 S.W.2d 461 (Tenn. Ct. App.

1980). In Riggs, a child was born out of wedlock. The mother released her parental rights so that
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the child could be adopted, and falsely denied any knowledge of the father’s name or his

whereabouts. Consequently, the biological father did not receive notice of the child’s adoption by

a couple in Georgia. The adoptive couple moved to Tennessee, and in Tennessee proceedings the

biological father sought custody of the child, arguing that the Georgia adoption decree should not be

given full faith and credit in Tennessee because the father had no notice and no right to a hearing

before his parental rights were terminated. The Tennessee Court of Appeals refused to honor the

Georgia judgment terminating the father’s parental rights because it was repugnant to “Tennessee’s

interest in sustaining the father-child relationship and protecting the family unit.” Aqua Sun Inv.,

Inc., 1993 WL 382230 (Tenn. Ct. App. 1993) (citing In re Riggs, 612 S.W.2d 461 (Tenn. Ct. App.

1980)). Finnell asserts that Tennessee Supreme Court Rule 9, section 27.1 evidences the public

policy of protecting the integrity of the legal system, and that Tennessee’s interest in protecting its

legal system is as important as the interests underlying the public policy found in Riggs.

Indeed, in In re Estate of Davis, No. M2003-02614-COA-R3-CV, 2004 WL 1950729 (Tenn.

Ct. App. August 3, 2004), this Court refused to honor an antenuptial agreement executed in Florida

because the agreement violated Tennessee public policy. In Tennessee, an antenuptial agreement is

enforceable only if it was entered into “freely, knowledgeably and in good faith without exertion of

duress or undue influence upon either spouse.” Id. at *3 (citing Tenn. Code Ann. § 36-3-501

(2001)). Thus, the parties to an antenuptial agreement must fully and fairly disclose their financial

condition prior to execution of the agreement if the agreement is later to be enforced, regardless of

whether the marriage ends by divorce or by the death of one of the spouses. In contrast, under

Florida law, full and fair disclosure of both parties’ financial circumstances is required only if the

marriage ends in divorce. If the marriage ends by the death of one of the spouses, under Florida law,

the parties to the antenuptial agreement are not required to give full and fair disclosure of their

financial condition prior to execution of the agreement in order for the agreement to be enforceable

in the probate court. Id. at *4 (citing Fla. Stat. Ann § 732.702 (2002)). In Davis, the surviving spouse

signed an antenuptial agreement that waived the elective share of her husband’s estate even though,

at the time the agreement was executed, she was not aware of his financial condition. Id. at *7.

After he died, the Tennessee probate court held that the antenuptial agreement was enforceable. This

Court reversed, and held that the requirement of full and fair disclosure for antenuptial agreements

rises to the level of public policy due to the “unique and confidential nature of the marital

relationship” and that this policy “promote[s] the highest degree of fiduciary duty between spouses.”

Id. 

Thus in Davis, the husband’s heirs sought to enforce an antenuptial agreement in derogation

of the wife’s historic statutory elective share. The Tennessee legislature enacted a statute providing

that, in order to enforce such an agreement, the parties to the agreement must have fulfilled their

fiduciary duty to one another to fully disclose their circumstances. Thus, this Court found that, given

the unique nature of the marital relationship, the statute enacted by the Tennessee legislature rose to

the level of a statement of public policy. Likewise, in Riggs, given the fundamental nature of the

parental relationship, enforcing a judgment that terminated the father’s parental rights with no notice

and no right to a hearing was repugnant to the State’s strong interest in protecting the father-child

relationship.
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Finnell argues that the Supreme Court Rule represents public policy because the Tennessee

Legislature empowered the Tennessee Supreme Court to make rules governing the practice of law

in Tennessee. In response, the Supreme Court promulgated the Rules of Disciplinary Enforcement

to enforce the code of professional responsibility. However, in Crews v. Buckman Labs., the

Tennessee Supreme Court specifically declined to rule “that every provision of the Code of

Professional Responsibility reflects an important public policy.” Crews v. Buckman Labs., 78

S.W.3d 852, 865 (Tenn. 2002). As such, Finnell must meet the burden of showing why section 27.1

reflects public policy.

Certainly, both Tennessee and Kentucky have a strong interest in protecting the integrity of

their respective legal systems. Both states have regulations that govern immunity from prosecution

related to bar complaints. Tenn. S. Ct. R. 9 § 27.1; Ky. Sup. Ct. Rule 3.160. However, the relevant

Tennessee rule is much broader in scope than the corresponding Kentucky rule, which obviously

permits the filing of a malicious prosecution lawsuit against one who files a bar complaint against

an attorney. The mere recognition of a Kentucky judgment, which is based on a law more narrow

in scope than the Tennessee counterpart, does not in and of itself violate Tennessee public policy.

Indeed, the facts of this case illustrate the competing interests sought to be balanced by both

Tennessee and Kentucky. As noted by Finnell, permitting an attorney to respond to a bar complaint

against him by filing a malicious prosecution lawsuit may deter one with a legitimate complaint from

filing it, for fear of reprisal. As demonstrated by Finnell’s conduct, however, such immunity could

be utilized by one with impure motives to file a false and malicious bar complaint against a lawyer,

leaving the lawyer with no recourse. Thus, in balancing the competing interests, Tennessee and

Kentucky have found the balance in differing disciplinary rules. Moreover, the interests involved,

while important indeed, do not, as in Davis, involve an interest such as the fiduciary duty between

spouses at the heart of the marital relationship, or the parental rights of a biological father. Therefore,

assuming arguendo that section 27.1 would prohibit in Tennessee the malicious prosecution claim

filed by Cohen against Finnell, we must nevertheless conclude that enrollment of the Kentucky

judgment does not violate Tennessee public policy.

This Court has previously held that “a state court must give full faith and credit to a monetary

judgment rendered in a court of another state, even though the enforcing forum might not recognize

the underlying cause of action.” Mirage Casino-Hotel v. Pearsall, No. 02A01-9608-CV-00198, 1997

WL 275589, at *5 (Tenn. Ct. App. May 27, 1997). The facts of this case fall squarely under this

holding.

The decision of the trial court is affirmed. Costs are taxed against Defendant/Appellant Kelly

Finnell, for which execution may issue if necessary.

___________________________________ 

HOLLY M. KIRBY, JUDGE