1 In addition to t he six-month suspension, t he trial court also sus

pended Sneed f

or an i ndefi nite period of ti

me with the indefi

nite suspens

ion to end when Sneed had complet ed courses by the Board of Profession al Respo nsibility in the areas of g

eneral legal ethics and law offi ce management. The trial court al so specif

ied that if th e courses

were not completed during the six months of suspension, the indefinite sus pension would continue until the cour ses were completed. 

### IN THE SUPREME COURT OF TENNESSEE AT NASHVILLE October 4, 2000 Se ssion MICHAEL H. SNEED v. BOARD OF PROFESSIONAL RESPONSIBILITY Appeal from the Chancery Court for Davidson County No. 98-3543-II Tom E. Gray, Chancellor by Interchange

No. M1999-01588-SC-R3-CV - Filed December 13, 2000

This case is befo re the Court on an appeal of righ t from th e judgment of the Chancery Court of Davidson County suspending Michael H. Sneed, the a ppellant, from the

practice of law

for six months together with other sanctions. Sneed contends that the trial court erredin imposing discipline and that the six-month suspension is too harsh a sanction. Because we conclude that the trial co urt had the author ity to impose sa

nctions and that the

sanctions imposed a

re fair an d proportionate in light of the entire record, the judgment of the trial court is affirmed. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed A DOLPHO A. B IRCH , J R ., J., delivered the opinion of the court, in which E. R ILEY A NDERSON , C. J., F RANK F. D ROWOTA , III, J ANICE M. H OLDER , and W ILLI AM M. B ARKER , JJ., joined. Michael H. Sneed, Nashville, Tennessee, for the appellant, Michael H. Sneed. Cha rle s A. High , Na shv ill e, T enn ess ee, f or t he ap pel lee , Boa rd o f Pr ofes sio nal Res pon sib ili ty.

OPINION I. Facts and Procedural History Michael H. Sneed

was licensed to practice law in Tennessee on August 19, 1985, and has practiced in Tennessee since that date. He appeals the judgment of the Chancery Court of Davidson County s uspending him from the practice of law for six months along with other sanctions 1 for-2-

violations of the Code of Prof essional Responsib

ility in conne

ction with

his repr esentation of Jonathan Hyler and R. Scott Constantino, respectively. This cause was initiated on April 21, 1998, by the filing of a Petition for Discipline by the Board of Professional Responsibility (Board). A Hearing Panel convened on Septe mber 14, 1998, and on Septemb

er 29, 199 8, recomm

ended tha t Sneed be

suspende d for a pe riod of six m

onths

. Sneedpetitioned to the Chancery Court for Davidson County for a writ of certiorar

i, purs uant to Tennessee Supre

me Court Rule 9, Sect

ion 8.3, to review t

he judgment of the

Hearing Panel. In the trial court, Sneed

conceded most of

the allegations of the petition for discipline. He contended, however, that his negligence did not cause substantial harm to his clients. The following are the trial cou

rt’s findings as

to Sneed’s handlin

g of Hyler

’s and Constantino’ s cases: THE HYLER COMPLAINT 4. Jonathan Hyler filed a complaint against the respon den t withthe Board of Prof

essional Responsib

ility (“Board”) alleging that respondent

was ineffecti

ve in representing Hyler in a criminal case, by failing to raise an issue

r elating to certain evidence (a 911 tape) andalso failing to file an application for permission to appeal a ruling of the Court of Criminal Appea ls to th e Tennessee Supr eme Court. (The Hyler complaint is file number 15937-5-CH and will be referred to hereinafter by that number or as the “Hy ler case or “Hyler complaint.”) 5. Respondent was hired by Hyler to represent

him after Hyler hadbeen con victed of aggravated rape and sentenced to thirty (30) yearsin prison. Respondent argued the motion for new trial, which was denied, an d also han dled the appeal to the Court of Criminal Appeals, which upheld the conviction. 6. R espondent never

filed an applica

tion for permissio

n t o appeal the Court of Crimina l Appeals decision

to the Supreme Court. At a subsequent hearing on petition for post-conviction relief, Hyler testified that resp ondent had told him he intended to file the application and that he in fac t had filed th

e ap plication. Hyler testified that respondent

later told him

that the application had been filed, but not decided. Eventually, Hyler testi

fied that respond

ent told him the application had been denied. Hyler’s testimony at the hearing was corroborat

ed by two othe

r witnesses. 7. Respondent Sneedadmitted at the post-conviction hearing that he had not filed the application and that there was no good reason-3- for his having failed to do so. The Court of Criminal Appeals ruled th at Hyle r had been denied a “second tier” review of his conviction through no fault o f his o wn, and allowed a delayed appeal to the Supreme Court, which was eventually denied. 8. Through out the disciplinar y proceed ings with respec

t to th e Hyler complaint, the re

spondent was untime

ly in respond

ing to corres ponde nce from disciplinary counsel and simply ignored deadlines without explanation. The initial summar y of com plaint was mailed to the resp ondent on N ovember 12, 1996, reque sting a response withi n ten (10) days. (Exhibit A to petition.) Respondent answered on December

10, almost thirty

(30) days la

ter. (Exhibit B to petition.) A c opy of Mr. Hyler’s response to r espondent’s explanation was mailed to respond ent by disciplinary counsel on February 21, 1997 , requesting a r esponse within ten

(10) days. (Exhibit D to petition.) Respondent did not file a response until May 13, 1997 , almost three months later, even after two additional requests were mailed by disciplinary counse l, on March28, 1997 and April25, 1997. The latter request was sent by certified mail and advisedthat a motion for temporary suspension would be filed unless a response was received. (Exhibi ts E and F to petition.) As noted above, the respo ndent also filed a late answer to the petition and arrived thirty minutes late to the hearing, without explanation.

THE CONSTANTINO COMPLAINT 9. R. Scott Constantino filed a complaintagainst the respondent,

by next friend for Arthur Ba ile y, David Henson, and James White, former clients of the respondent, bas ed upon neglect, noncompliance withlocal rules and orders of a federal district court resulting in the dismissal of the case with prejudice, and failure to file a timely notice of

appeal. (The Constantino complaint is file number 17776-5-CH

and will be referred to hereinafter by number or as the “Florida federal case.”)

. . . 12. The respondent advised the plaintiffs after the tr ansfer that there would be a need to hire local couns el in F lorid a. It appears that the plaintiffs themselves interviewed several attorneys, but it was unclear from the testimony of Mr. Bailey, Mr. White , or of the respondent

as to how or when lo

cal c ounsel was in fact final ly-4- obtained. There was no evidence that the respondent made any effort to obtain local counsel in Florida. 13. After the transfer, the respondent engaged in a pattern of neglect and failure to comply with the local rules and orders of the court which eventually led to the di smissal of the plaintiff’s (sic) action with prejudice. 14. On January 20, 1995, the federal judg e inFlorida issued an Order to Show Cause to

the plaintiffs why their case should not be dismissed for lack

of prosecution be

cause of the fai

lure to file

a case management

report as pres cribed by lo cal rule. (Exhibit O

to petition.) 1 5. On February

17, 1995, the mag

istrate judge in

Flo rid a orde red respondent to show cause why h

e had not complied w

ith local rules concernin

g designation o

f local counsel. (

Exhibit P to petition.) On March 3, 1995, the federal district judge entered an order striking the case management report filed by the respondent

for failure to designat e local counsel. This order stated further that the court “would not tolerate further disregard of the Local

Rules” by the respondent. (Exhibit Q to petition.) 16. On March 28, 19 95, the magi strate jud ge issued another order to show cause compelling the respondent to compl y with the local rule with resp ect to designati ng local counse

l. (Exhibit R to petition.) On Apr il 17, 1995, the magistrate judge issued another order to show cause why the respondent should not be sanctionedfor failure to comply with the March 28 order. (Exhibit S to petition.) 17. On October 26, 1995, the magistrate judge issued an order granting defendant’s motion to compel discovery and sanctioning the pl aintiffs for failing to comply with CSX’s interrogatories and requests for

production of documents. The respondent was ordered to pay $150.0

0 in attorney ’s fees within ten (10) days. 1 8. On December 7, 1995, the magistrate judge issued a n order granting a sec ond mo tion to compel and sanctioning the responde nt for fai lure to adequate ly respond to

CSX’s interroga

tories, imposing sanctions of

$250.00, and ordering that responses be made within ten (10) days. (Exhibit

U to petition.) On January 4, 1996, the magist rate judge issued another order, denying sanctions for f ailure to comply with

the prior orders, but cautioning the respondent that he2 DR 1-1 02(A)(1 ) provide s: “A lawyer shall no t . . . [v]iolate a Disc iplinary Rule.” 3 DR 6-1 01(A)(3 ) provide s: “A lawyer shall no t . . . [n]eglect a legal m atter entrusted to the lawyer.” 4 DR 7-1 01(A)(1 ) and (2) p rovide: (A)(1) A la wyer shall act with re asonable diligence and promp tness in repres enting a client. (2) A lawye r sh all keep a clien t reasonab ly informed a bout the status o f a matter and promp tly comply with reasonable requests for communication or information. -5- must time lycomply with th

e court’s future

orders. (Exhibit V to petition.) 19. On February 5, 19 96, the fede ral distri ct judge entered a notice scheduling a final pre-trial conference for February 28, 1996 at 10:10 A.M. (Exhibit W to petition.) The pre-trial conference was re - scheduledat the respondent’s request for February 29, but the respondent

fai l ed to appear at the final pre-trial conference. On March1, 1996, the district court entered a n order dismissing the plaintiffs’ case with prejudicefor respondent’s failure to appear at the final pre- tri al c onf eren ce an d nu mer ous fai lur es t o co mpl y with the local rules and the court’s prior orders, a s outlined in the preceding paragraphs. This order, which was incorporated by referenc e into the petition, a nd the findings of whic h are admitted by

the respondent, found, a mong other things a “pattern (by the respondent) of disregardingthe Local Rules and the ordersof this Court.” (Exhib it X to petition.) 20

. The respondent attempted to appeal the district court ’ s order, but the appeal was dismissed by the Eleventh Circuit Court of Appeals because it was not timely filed. (Exhibit Y to petition.) With regards to Hyler’s complaint, t he trial cour t found that Sneed had violated the following Disciplinary

Rules: DR 1-102(A)(1), 2 DR 6-101(A)(3), 3 and DR 7-101(A)(1) and (2). 4 With regards to Constantino’s complaint, the trial court found that Sneed had violated the following Disciplinary5 See supra note 2 and accomp anying text. 6 DR 1-102(A )(5) prov ides: “A lawyer shall not . . . [e]ngage i n conduct that i

s prejudicial

to the admi

nistr ation of justice.”

7 DR 3-101(B) p rovides: “A lawyer shall not pract

ice law i n a juri sdicti

on where t

o do so would be i

n violat ion of regulations of the profess ion in that jurisdic tion.”

8 DR 6-101(A)(2) provides: “A lawyer shal l not . . . [h]andle a

legal matter without preparati on adequate in the circumstanc es.”

9 See supra note 3 and accomp anying text. 10 DR 7-1 01(A)(1 )-(3) prov ide: (A)(1) A la wyer shall act with re asonable diligence and promp tness in repres enting a client. (2) A lawyer shall keep a client reasonably in

formed about the st

atus of a matt

er and prom ptly comp ly with reasonable requests for communication or informati on. (3) A lawyer shal

l explain a mat

ter to the extent reasonably necessary to permit the cli ent to make informed decisions regarding the representati on. 11 DR 7-101(A)(4)(a) and (b) provide: (4) A lawyer shall not intention ally: (a) Fail to seek the lawful objectives of the client

through reasonably available means permitted by l aw and the Dis

cipli nary Ru les , except as p rovided by DR 7 -101(B ). A lawyer do es not violate th is Disciplinary Rule, howe ver, by a cceding t

o reasonabl

e request

s of opposing counsel w

hich do not prejudice the rights of the cl ient, by being punctual in f ulfilling all professiona l commitment s, by avoiding offensive tactics, or by treating with courtesy and consideration all persons involved in the legal process. (b) Fail to carry out a contract of employment enter ed into with aclient for professional services, but a lawyer may wit hdraw as per

mitted u nder DR 2-110, DR 5-102, and DR 5-105. 12 DR 7-106(A) provides: “A lawyer shall not disregard or advise the cl ient to disregard a standing rule of a tribunal or a ruling of a tribunal m ade in the co urse of a proceeding, but ma y take appropriate steps in go od faith to test the validity of such rule or ruling.”

13 DR 7-106(C)(7) provides: “In appearing in a prof essional capaci

ty before a t

ribunal, a l

awyer shall not . . . [i]ntentionally or habitually violate any established rule of proc edure or o f evidence.” -6- Rules: DR 1-102(A)(1) 5 and (5), 6 DR 3-101(B), 7 DR 6-101(A)(2) 8 and(3), 9 DR 7-101(A)(1)-(3), 10 DR 7-101(A)(4)(a) and (b), 11 and DR 7-106(A) 12 and (C)(7). 13 On July 11, 1999, th

e trial courtentered its judgment finding that Sneed had violated the Di sciplinaryRu les as specified, and it suspended him for a period of six months. Pursuant to the provisions of Tennessee Supreme Cour t Rule 9, Section 1.3, Sneed perfecte

d his appeal to this14 Tennessee Supreme Court Rule 9, Section 1. 3, does not explicitly provide for de novo review upon the record of the trial court, with a presumption of correctne ss unless the prep onderan ce of the evid ence is contr ary to the findings. This stand

ard, however,

is i mplied from t he fol lowin g sources: Ten

n. R. App. P. 13(d ); Murphy v. Board of Professiona l Respon sibility , 924 S.W .2d 643 , 647 (T enn. 199 6); Gillock v . Board of Professional Responsibility of Supreme Court , 656 S.W.2d 365, 367 (Tenn. 1983); and Scruggs v. Bracy , 619 S.W.2d 101 , 103 (Tenn. 1981). -7- Court. Before this Court, Sneed characterizeshis conduct as negligent. He contends, however, that negligent conduct is

not subject to discipline–only willful misconduct is. Sneed contends also that the Board, ignorin

g it s “policy of p

rogressive disc

ipline,” has impose

d a disproportiona

tely harsh sentence. II. Standard of Review Tennessee Supreme Court Rule 9, Section 1.3, provides that review by the Supreme Court “shall be heard upon the

transcript of the

record from the

circuit or chanc ery court,

which shall include the transcript of evidence before the hearing committee.” Additionally, our review of this cause is de novo o n the record of the trial court, and t o the findi ngs of the trial court there is attached a presumption of correctness unless the evidence preponderates

against those fi

ndings. 14 SeeTenn. R. App. P. 13(d); see also Dockery v. Board of Profes sional Responsibility , 937 S.W.2d 863, 865 (Tenn. 1996). III . Analysis Sneedcontests the authority of the Board to impose sanctions. Specifically , he maintains that although his misconduct was n egligent, it wa

s not willful. He insi

s ts, then, t hat negligent misconduct

is not su bjectto discipline. Disciplinary Rule 1-102, which defines “misconduct,” implies that the mere violation of a Disciplinary

Rule, without inquir

y into the gr

avity of the

conduct, may subject an attorney to di scipline. See DR 1-102(A)(1). Additionally, contrary to Sneed’s assertion, his misconduct may be characterized as willful and intentional. Because Sneed concedes violations of the Disciplinar y Rules, we se

e no need to

examine the nature of the misconduct o r his intention further to determine the Board’s authority to impose discipline. As a general rule

, negligent misc

onduct may provide

a basis for disciplin e. The ABA Standards for Imposing Lawy er Sanctions (1986) provide: 4.42 Suspension is generally appropriate when: (a) a lawyer knowingly f

ails to perform services for a client and causes injury or potential injury to a client; or (b) a lawyer engag

es in a pattern of neglect and causes injury or potential injury to a c

lient. (Emphasis

added.) In addition, our rules state that a lawyer’s negligent misconduct may be grounds15 The follo wing are disc iplinary actions taken against S need for sim ilar miscond uct: 1. Violati

on of DR 6-101 and DR 7-101( A)--Ad mo nitio n on July 29, 1992, for failure to fil e a complaint within the app licable statute o f limitations as well as fa ilure to com municate with client.
2. Violati

on of DR 6-101--Admonition on August 26, 1992, for fail

ure to serve proces s which resul ted in the dismissal of clien t’s case and fo r lack of investiga tion prior to filing a compla int.
3. Viol ation of

DR 7-1 01(A) (1)- (4),

DR 6-101(A)(1)-(3), and DR 1-102(A)(1)-(6)--Public censure in May 1993 fo r failure to timely file a co mplaint and for failure to co mmunica te with client.
4. Violati

on of DR 6-101(A)(2)

and (3) and DR 7- 101(A)(2) and ( 3)--Publ ic censu re on August

15 , 1994, for failure to file a complaint within the applicable statute of limitations. 5. Violati

on of DR 7-101 (A)(4) an

d DR 7-101(A)(2) and (3)-- Private r eprimand on Oct

ober 13, 1995, f

or dismissal of a c ase without clien t’s consent and for failure to co mmunica te with client.
6. Violati

on of DR 7-101 (A)(1) -(4), DR 6-101(A) (1)-( 3), and DR 1 -102(A)( 1)-(6)- -Public censure on Novem ber 21, 2 000, for failur e to timely file a com plaint and fo r failure to com municate with client. -8- for discipline. For example, DR 6-101(A)(3) states, “A lawyer shall not . . . [n]eglect a legal matter entrustedto the lawyer.” (Emphasis added.) This Court has also imposed sanctions for negligent misconduct. In Office of

Disciplinary

Counsel v. Henry , 664 S.W.2d 62, 65 (Tenn. 1983), the trial court found that the attorney had (1) failed to act competently , (2) knowingly advanced a claim that wa s unwarranted und

er existing law, a

nd (3) engag

ed in conduct that w

as prejudicial to t

h e administration of justice. This Court upheld the trial court’s finding that the attorney’s neglige nt misconduct

warranted suspension. Henry , 664 S.W.2d at 65. Thus, Sneed may be disciplined for negligent misconduct. Because the Board has theauthority to discipline an attorney for neg ligent misconduct and Sneeddoes not dispute that he violated the Disciplinary Rules, the only issue to determine is whether the sanctions imposed were appropriate. Sneed contends that the s

ix-month suspension and other sanctions imposed by the t ria l court are excessive. He argues that the Board has adopted a policy of “progressive discipline” which was not implemented in this case. There is no evidence, however, that this policy exists. Even were such a policy in existence, Sneed’s suspension would have been proper in light of his prior disciplinary

record involving

similar misconduct

. 15 We are of the opinion that the discipline imposed by the trial court is appropriate under the circumstances of this case. IV. Conclusion We conclude that the Board had the authority to discipline Sneed for neg ligent conduct, and the sanctions imposed by the trial court are fair and proportionate. The judgment of the trial court is, therefore, affirmed. Accordingly, Snee d is suspended from the practice of law for a period

of six mont hs. In addition, Sneed sha ll be suspended fo

r an indefinite pe

riod of time

with the indefinite suspension to end when he has completed courses by the Board of Professional Responsibility in the areas of general leg

al ethics and law o

ffice manage

ment. It is inten

ded that Sneed com plete the-9-

courses within the six-month period of suspension allowing the definite suspension of six months andthe indefinite period of suspension to runconcurrently. If the courses a re not completed during the six months of suspension, indefinite suspension shall continue until the courses are completed. Costs are taxed to the appellant, Michael H. Sneed.

___________________________________ ADOLPHO A. B IRCH, JR., JUSTI CE