IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

July 23, 2020 Session

PETER R. CULPEPPER v. BAKER, DONELSON, BEARMAN,

CALDWELL & BERKOWITZ, P.C., ET AL.

Appeal from the Circuit Court for Knox County

No. 1-168-19 Kristi M. Davis, Judge

___________________________________

No. E2019-01932-COA-R3-CV

___________________________________

In this legal malpractice action, the trial court granted judgment on the pleadings in favor 

of the defendants, determining that the plaintiff had waived any conflict of interest in his 

signed engagement letter. The court also ruled that the plaintiff’s legal malpractice 

claims were barred by the applicable statute of limitations. The plaintiff has appealed. 

Upon our review of the pleadings and acceptance as true of all well-pleaded facts 

contained in the plaintiff’s complaint and the reasonable inferences that may be drawn 

therefrom, we determine that the plaintiff has pled sufficient facts in support of his claim

of legal malpractice. We therefore reverse the trial court’s grant of judgment on the 

pleadings with regard to the plaintiff’s legal malpractice claim.

1

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

Reversed in Part, Affirmed in Part; Case Remanded

THOMAS R. FRIERSON, II, J., delivered the opinion of the court, in which D. MICHAEL 

SWINEY, C.J., and JOHN W. MCCLARTY, J., joined.

Peter R. Culpepper, Knoxville, Tennessee, Pro Se.

P. Edward Pratt, Knoxville, Tennessee, and Sam Berry Blair and Ryan A. Strain, 

Memphis, Tennessee, for the appellees, Baker, Donelson, Bearman, Caldwell & 

Berkowitz, P.C.; John S. Hicks; Tonya Mitchem Grindon; Martha L. Boyd; Samuel 

Lanier Felker; Lori B. Metrock; and Lori H. Patterson.

 

1 The plaintiff asserted other claims that were also dismissed by virtue of the trial court’s grant of 

judgment on the pleadings. We note that the plaintiff has not appealed the grant of judgment in favor of 

the defendants with respect to those claims.

10/16/2020
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OPINION

I. Factual and Procedural Background

On May 9, 2019, the plaintiff, Peter R. Culpepper, filed a complaint in the Knox 

County Circuit Court (“trial court”) against the following defendants: Baker, Donelson, 

Bearman, Caldwell & Berkowitz, P.C. (“the Baker firm”); John S. Hicks; Tonya 

Mitchem Grindon; Martha L. Boyd; Samuel Lanier Felker; Lori B. Metrock; and Lori H. 

Patterson (collectively, “Defendants”). In his complaint, Mr. Culpepper alleged legal 

malpractice arising out of Defendants’ simultaneous representation of Mr. Culpepper and 

his former employer, Provectus Biopharmaceuticals, Inc. (“Provectus”).2 Mr. Culpepper 

filed an amended complaint on May 31, 2019, wherein he alleged, inter alia, that 

Defendants had represented him while also representing and advising Provectus to his 

detriment and that Defendants had continued to represent Provectus to his detriment after 

they withdrew from his representation.

In his amended complaint, Mr. Culpepper explained that he was employed as the 

Chief Financial Officer for Provectus from 2004 until sometime in 2016 when he was 

named interim Chief Executive Officer. Mr. Culpepper maintained that position with 

Provectus until his employment termination effective December 28, 2016. According to 

Mr. Culpepper, Defendants represented him concerning matters before the United States

Securities and Exchange Commission (“SEC”) on August 4, 2016, and August 11, 2016. 

Mr. Culpepper alleged that on August 15, 2016, Defendants met with an independent

forensic accountant and discussed Mr. Culpepper “with respect to the SEC and other 

attorney-client privileged and confidential matters WITHOUT his knowledge” (emphasis 

in original).

Additionally, Mr. Culpepper alleged that Defendants discussed matters regarding 

Mr. Culpepper and the SEC with Provectus’s Board of Directors in 2016, without Mr. 

Culpepper’s knowledge, while simultaneously representing Mr. Culpepper. Mr. 

Culpepper further averred, inter alia, that Defendants presented fabricated documentation 

to support his ultimate termination for cause by Provectus in December 2016. Mr. 

Culpepper claimed that Defendants had represented him and Provectus simultaneously 

despite an obvious conflict of interest and had continued to represent Provectus following

termination of his representation on a substantially related matter. Additionally, Mr. 

Culpepper claimed that Defendants had concealed documentation in support of his claims 

until May 2018. Mr. Culpepper thus sought damages for legal malpractice, defamation, 

and false light invasion of privacy; a declaratory judgment regarding the proper amount 

 

2 Although Mr. Culpepper generally refers to the actions of “defendants,” most of the allegations in his 

complaint are directed toward the Baker firm as a whole. The individually named defendants are 

attorneys who were apparently employed by the Baker firm at the time of Mr. Culpepper’s representation.
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owed by him to Provectus pursuant to their settlement agreement; and indemnification for 

his attorney’s fees.

On July 3, 2019, Defendants filed a motion seeking leave to file their answer and 

accompanying exhibits under seal. In their answer, Defendants denied any liability and 

asserted various affirmative defenses, including expiration of the applicable statutes of 

limitation and waiver. Defendants attached to their answer an engagement letter signed 

by Mr. Culpepper on August 31, 2016. On August 13, 2019, Defendants filed a motion 

for judgment on the pleadings, asserting, inter alia, that Mr. Culpepper had waived any 

conflicts of interest in his August 31, 2016 engagement letter and had consented to 

Defendants’ continued representation of Provectus, even if such representation was 

ultimately adverse to Mr. Culpepper’s interests. Defendants also asserted that expiration 

of the applicable one-year statute of limitations barred Mr. Culpepper’s malpractice 

claims. 

On September 30, 2019, the trial court entered an order granting judgment on the 

pleadings in favor of Defendants and dismissing all of Mr. Culpepper’s claims. In its 

order, the court stated in pertinent part:

The Court rules that in the August 31, 2016 engagement, waiver and 

consent letter, [Mr. Culpepper] waived all conflicts of interest and 

consented to Defendants’ representation of its other clients, including those 

clients adverse to [Mr. Culpepper]. [Mr. Culpepper] specifically agreed 

that he carefully read the foregoing letter and considered all the information 

necessary and useful in determining whether or not to consent to the 

representations outlined above. He was encouraged to consult with

independent counsel regarding this waiver and consent letter and 

represented he was fully aware of his legal rights in this regard. The letter 

also provides, “[u]pon reasoned reflection, I hereby voluntarily consent to 

the representations by Baker Donelson as outlined above.” Therefore, the

Court rules [Mr. Culpepper] voluntarily waived all conflicts of interest, 

which was the crux of the entire Amended Complaint.

Further, the Court also rules that the claims in the Amended 

Complaint are barred by the statute of limitations.

Further, the Court rules that the libel, defamation, and invasion of 

privacy claims were all determined adversely to [Mr. Culpepper] by the 

Arbitrator and therefore these claims are estopped.

The trial court thereby dismissed all of Mr. Culpepper’s claims with prejudice. Mr. 

Culpepper timely appealed.
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II. Issues Presented

Mr. Culpepper presents the following issues for our review, which we have 

restated slightly:

1. Whether the trial court erred by granting judgment in favor of 

Defendants without allowing Mr. Culpepper to argue against a stay 

of discovery when he was replying to Defendants’ motions.

2. Whether the trial court erred by granting judgment in favor of 

Defendants when Mr. Culpepper purportedly had not knowingly and 

voluntarily waived all conflicts of interest.

3. Whether the trial court erred by failing to apply the discovery rule to 

toll the limitations period based on Defendants’ alleged fraudulent 

concealment of their actions.

III. Standard of Review

Tennessee Rule of Civil Procedure 12.03 provides:

After the pleadings are closed but within such time as not to delay the trial, 

any party may move for judgment on the pleadings. If, on a motion for 

judgment on the pleadings, matters outside the pleadings are presented to 

and not excluded by the court, the motion shall be treated as one for 

summary judgment and disposed of as provided in Rule 56, and all parties 

shall be given reasonable opportunity to present all material made pertinent 

to such a motion by Rule 56.

In reviewing a trial court’s grant of judgment on the pleadings under Rule 12.03, 

we are bound to regard as false all allegations of the moving party that are denied by the 

non-moving party, and to accept all well-pleaded facts of the non-moving party, and the 

reasonable inferences that may be drawn therefrom, as true. McClenahan v. Cooley, 806 

S.W.2d 767, 769 (Tenn. 1991). “Conclusions of law are not admitted nor should 

judgment on the pleadings be granted unless the moving party is clearly entitled to 

judgment.” Id. In our review of this case, “all of the facts alleged by the Plaintiff in this 

case must be taken as true and the issue then before us is whether upon those facts the 

Plaintiff’s complaint states a cause of action that a jury should have been entitled to 

decide.” Id. An appellate court “should uphold granting the [Rule 12.03] motion only 

when it appears that the plaintiff can prove no set of facts in support of a claim that will 

entitle him or her to relief.” Young v. Barrow, 130 S.W.3d 59, 63 (Tenn. Ct. App. 2003). 

“A trial court’s legal conclusions regarding the adequacy of a complaint are reviewed de 
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novo without a presumption of correctness.” Stewart v. Schofield, 368 S.W.3d 457, 462-

63 (Tenn. 2012).

In reviewing pleadings, we “must give effect to the substance, rather than the form 

or terminology of a pleading.” Id. at 463 (citing Abshure v. Methodist HealthcareMemphis Hosp., 325 S.W.3d 98, 104 (Tenn. 2010)). We respect Mr. Culpepper’s 

decision to proceed without benefit of counsel and note that pleadings “prepared by pro 

se litigants untrained in the law should be measured by less stringent standards than those 

applied to pleadings prepared by lawyers.” Stewart, 368 S.W.3d at 462 (citing Carter v. 

Bell, 279 S.W.3d 560 568 (Tenn. 2009); Hessmer v. Hessmer, 138 S.W.3d 901, 903 

(Tenn. Ct. App. 2003); Young, 130 S.W.3d at 63). Although parties proceeding without 

benefit of counsel are “entitled to fair and equal treatment by the courts,” we “must not 

excuse pro se litigants from complying with the same substantive and procedural rules 

that represented parties are expected to observe.” Hessmer v. Hessmer, 138 S.W.3d 901, 

903 (Tenn. Ct. App. 2003).

IV. Motion for Protective Order

Mr. Culpepper asserts that the trial court erred by granting judgment on the 

pleadings without considering the merits of Defendants’ motion seeking a protective 

order, which Mr. Culpepper urges was filed “for the express purpose of avoiding [his] 

discovery requests.” In his appellate brief, Mr. Culpepper proceeds to cite federal 

precedent analyzing the proper standard for a court’s grant of a stay of discovery when a 

party has filed or intends to file a case-dispositive motion. Defendants contend that Mr. 

Culpepper’s arguments lack merit because (1) the trial court never granted Defendants’

motion seeking a protective order, finding it to be pretermitted due to the grant of 

judgment on the pleadings and (2) Mr. Culpepper has provided an insufficient record to 

permit review of this issue in any event. Based upon our thorough review of the record, 

we agree with Defendants on both points.

The record before us contains neither Defendants’ motion seeking a protective 

order nor any responsive pleadings filed by Mr. Culpepper. Defendants assert that there 

were additional memoranda and other documents filed by the parties relative to this issue 

that likewise were not included in the record. Moreover, no order disposing of 

Defendants’ motion is contained in the record; instead, the trial court judge noted in her 

oral ruling granting judgment on the pleadings that such action “pretermit[ted] . . . the 

issue with respect to the motion for protective order . . . .”

Inasmuch as the trial court never ruled on the motion for protective order, there is 

nothing for this Court to review. As a Court of appeals and errors, “we are limited in 

authority to the adjudication of issues that are presented and decided in the trial courts.” 

Dorrier v. Dark, 537 S.W.2d 888, 890 (Tenn. 1976). Furthermore, even if the trial court 

had rendered a decision on this issue, “[t]his Court’s authority to review a trial court’s
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decision is limited to those issues for which an adequate legal record has been 

preserved.” Taylor v. Allstate Ins. Co., 158 S.W.3d 929, 931 (Tenn. Ct. App. 2004). 

To the extent that Mr. Culpepper’s argument could be construed as advocating that

further discovery was required before the trial court considered a grant of judgment on 

the pleadings, this Court has previously rejected such an argument. In Sakaan v. Fedex 

Corp., Inc., No. W2016-00648-COA-R3-CV, 2016 WL 7396050, at *5 (Tenn. Ct. App. 

Dec. 21, 2016), this Court explained:

A motion for judgment on the pleadings involves the consideration of 

nothing other than what its title suggests; the motion requests that a court 

grant judgment based on the pleadings alone. Accordingly, discovery is not 

necessary to sharpen any factual issues, and the trial court’s resolution of 

the motion is not dependent on anything other than the pleadings.

We therefore conclude that Mr. Culpepper’s first issue on appeal is without merit.

V. Waiver and Legal Malpractice Claims

Mr. Culpepper asserts that the trial court erred by granting judgment on the 

pleadings in favor of Defendants with regard to Mr. Culpepper’s legal malpractice 

claims, which were based on an alleged conflict of interest in Defendants’ representation 

of Mr. Culpepper and Provectus. Mr. Culpepper postulates that (1) Defendants breached 

Tennessee’s Rules of Professional Responsibility with regard to conflicts of interest and 

(2) he did not and could not knowingly and voluntarily waive the conflicts. In response, 

Defendants posit that the waiver contained in Mr. Culpepper’s engagement letter, 

undisputedly executed by Mr. Culpepper, was a sufficient basis for the trial court’s 

ruling.

As Mr. Culpepper points out, this Court has previously addressed the issue of 

whether an alleged breach of a disciplinary rule equates to legal malpractice:

There is no doubt that the Code of Professional Responsibility (“the 

Code”) does not set the standard for determining the civil liability of an 

attorney. See Lazy Seven Coal Sales, Inc. v. Stone & Hinds, P.C., 813 

S.W.2d 400 (Tenn. 1991). However, that fact does not preclude the 

possibility that violation of the Code is relevant evidence in a subsequent 

civil case. Id. at 405 (“[T]he standards stated in the Code are not irrelevant 

in determining the standard of care in certain actions for malpractice”). The 

Tennessee Supreme Court recognized that the Code may provide guidance 

in defining a lawyer’s obligation to a client. Moreover, in some instances, 

conduct which violates the Code may also be a breach of the attorney’s 

standard of care. While violation of the Code, standing alone, will not 
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suffice to prove civil liability, it seems clear that such a violation may be 

relevant evidence of a breach of the standard of care.

Roy v. Diamond, 16 S.W.3d 783, 790-91 (Tenn. Ct. App. 1999).

With regard to a claim of legal malpractice, this Court has previously elucidated:

To establish a prima facie cause of action for legal malpractice, the plaintiff 

has the burden of proving each of the following elements: (1) a duty owed 

by the lawyer; (2) breach of that duty; (3) damages suffered by the plaintiff; 

(4) the attorney’s breach as the cause in fact of those damages; and (5) the 

attorney’s breach as the proximate, or legal, cause of the plaintiff’s 

damages. See Gibson v. Trant, 58 S.W.3d 103, 108 (Tenn. 2001). The 

issues at the heart of this case, therefore, are whether [the attorney]

breached his duty to [the client] and if so, whether that breach caused [the 

client] to suffer damages.

A plaintiff can show breach of the duty owed by an attorney by 

demonstrating that “the attorney’s conduct fell below that degree of care, 

skill, and diligence which is commonly possessed and exercised by 

attorneys practicing in the same jurisdiction.” See Sanjines v. Ortwein and 

Assocs., P.C., 984 S.W.2d 907, 910 (Tenn. 1998). Furthermore, with 

reference to legal malpractice, a plaintiff has been determined to have 

suffered damages or injury as the result of “the loss of a legal right, remedy 

or interest, or the imposition of a liability.” See Parnell v. Ivy, 158 S.W.3d 

924, 927 (Tenn. Ct. App. 2004) (quoting John Kohl & Co. P.C. v. 

Dearborn & Ewing, 977 S.W.2d 528, 532 (Tenn. 1998)). “An actual injury 

may also take the form of the plaintiff being forced to take some action or 

otherwise suffer ‘some actual inconvenience,’ such as incurring an expense, 

as a result of the defendant’s negligent or wrongful act.” John Kohl & Co. 

P.C. v. Dearborn & Ewing, 977 S.W.2d 528, 532 (Tenn. 1998) (quoting 

State v. McClellan, 113 Tenn. 616, 85 S.W. 267, 270 (1905)). This Court 

has previously explained that “the mere possibility or probability of injury .

. . is not enough for a cause of action for legal malpractice to accrue.” 

Caledonia Leasing & Equip. Co., Inc. v. Armstrong, Allen, Braden, 

Goodman, McBride & Prewitt, 865 S.W.2d 10, 17 (Tenn. Ct. App. 1992). 

“In order to prove damages in a legal malpractice action, a plaintiff must 

prove that he would have obtained relief in the underlying lawsuit, but for 

the attorney’s malpractice.” Shearon v. Seaman, 198 S.W.3d 209, 214 

(Tenn. Ct. App. 2005). The plaintiff must also demonstrate a causal 

connection between the attorney’s negligence and the plaintiff’s injury. See 

Lazy Seven Coal Sales, Inc. v. Stone & Hinds, P.C., 813 S.W.2d 400, 407 

(Tenn. 1991).
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Jones v. Allman, 588 S.W.3d 649, 655-56 (Tenn. Ct. App. 2019), perm. app. denied

(Tenn. Sept. 19, 2019).

The trial court’s grant of judgment on the pleadings concerning Mr. Culpepper’s 

legal malpractice claims was predicated in part on his waiver of any conflict of interest in 

the signed engagement letter. Defendants attached this engagement letter to their answer 

filed in this matter. As such, the engagement letter became a part of that pleading and 

was properly considered by the trial court in its analysis of Defendants’ motion for 

judgment on the pleadings.

3

 See Bartley v. Nunley, No. E2019-01694-COA-R3-CV, 

2020 WL 5110302, at *7 (Tenn. Ct. App. Aug. 28, 2020). 

The engagement letter provides as follows in pertinent part:

1. Scope of Representation.

You will be our client in this matter. We will be engaged to advise 

you in connection with the SEC investigation entitled Provectus 

Biopharmaceuticals, Inc. (“Provectus”) (H0-13000). Our acceptance of 

this engagement (the “Matter”) does not involve representing you or your 

interests in any other matter.

2. Fees and Expenses.

Provectus Biopharmaceuticals Company, Inc. (the “Company”) has 

agreed to pay our fees and costs. We will, therefore, seek payment from 

the Company.

3. Conflicts.

We are a large firm with offices in a number of cities in the United 

 

3 Tennessee Rule of Civil Procedure 10.03 provides:

Whenever a claim or defense is founded upon a written instrument other than a 

policy of insurance, a copy of such instrument or the pertinent parts thereof shall be 

attached to the pleading as an exhibit unless the instrument is (1) a matter of public 

record in the county in which the action is commenced and its location in the record is set 

forth in the pleading; (2) in the possession of the adverse party and this fact is stated in 

the pleading; (3) inaccessible to the pleader or is of such nature that attaching the 

instrument would be unnecessary or impracticable and this fact is stated in the pleading, 

together with the reason therefor. Every exhibit so attached or referred to under (1) and 

(2) shall be a part of the pleading for all purposes.

(Emphasis added.)
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States, and we represent many other companies and individuals. Given the 

breadth of our practice, it is possible that during the time we are 

representing you, some of our present or future clients will be engaged in 

transactions, or encounter disputes, with you or the Company. You agree 

that we may continue to represent, and may undertake in the future to 

represent, existing or new clients in any matter that is not substantially 

related to our work for you even if the interests of such clients in those 

matters are directly adverse to you. At no time would we use or disclose 

any confidential or proprietary information relating to our representation 

of you in connection with our representation of another client without your 

written consent, as appropriate. You should know that, in similar 

engagement letters with many of our other clients, we have asked for 

similar agreements to preserve our ability to represent you.

4. Joint Representation.

As you know, we are representing you jointly with the Company, 

Timothy Scott and Eric Wachter. You have consented to this joint 

representation. In a situation where our firm represents multiple clients 

jointly in the same matter, we are free to share confidential information 

communicated to us by one client with the other joint clients in the course 

of and in furtherance of the joint representation. We would expect to share 

information we receive from you with the Company, but we will not 

necessarily share with you information that we receive from other clients, 

and you will not be entitled to obtain any confidential information 

provided to us by any other joint client either during the joint 

representation or thereafter. Please contact me immediately if you have 

any objections or concerns regarding this approach.

Based on the information we now have, we are not aware of any 

actual and present conflicts of interest between you and either the 

Company, Timothy Scott or Eric Wachter that would preclude this joint 

representation. However, in any situation in which a lawyer represents 

more than one client, there is the potential for the clients to have or to 

develop conflicting interests. If you are aware or become aware of any 

potential or actual conflict of interest with the Company, Timothy Scott or 

Eric Wachter, please notify us promptly. Likewise, if we become aware 

that a conflict has arisen or become apparent, we will notify you promptly.

If a conflict should arise between you and the Company, we will be 

required to withdraw from representing you, and you may need to engage 

another attorney to represent you. You agree that, should this occur, we 

would be free to continue to represent the Company and other joint clients 
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(except in litigation directly adverse to you in this or a substantially related 

matter) and that we and they may use any information we have obtained 

during our representation of you, including any confidential information 

you may provide to us. This may include sharing information you provide 

to us with the Company and advising the Company with respect to any 

issues raised by such information. In addition, if a conflict should arise 

between you and the Company, Timothy Scott or Eric Wachter, we may be

required to withdraw from representing one or more of you, and you may 

need to engage another attorney to represent you.

You also understand that we may be asked to represent other 

individuals or entities who, by virtue of their current or former 

employment with or other relationship to the Company, may seek our

advice in connection with these Matters, and you consent to such 

representation on the same terms as set forth above. You agree to waive 

any claim of conflict based on our past, current, and future representation 

of the Company and its current or former officers, employees, directors, 

etc. As noted above, our fees and costs for representing you in the Matter 

will be paid by the Company, and you agree that you waive any claim of 

conflict based upon our receipt of fees from the Company.

You should be aware that joint representation of multiple clients 

may result in significant benefits for each client, but it may also result in 

certain risks that might not arise if each client had his or its own separate 

counsel. Possible benefits may include a common strategy, access to 

privileged and other information held by other clients in the group, various 

other tactical advantages, and shared legal fees and costs. There are also 

potential risks. For example, as explained above, a conflict of interest

between or among clients could arise or become apparent, which may 

require Baker Donelson to withdraw from representing one or more of the 

joint clients. In addition, the Company has decided as a condition of this 

joint representation, that confidential or privileged information disclosed 

to Baker Donelson by individual clients will be shared with the Company 

and that confidential or privileged information of the Company will not 

necessarily be shared with individual clients, including yourself. The 

Company may disclose, or direct us to disclose, to the SEC, or other 

federal or state regulatory agencies or other third parties confidential or 

privileged information provided by you and could decide to use such 

information in a manner that could be disadvantageous to you. And, 

although you will participate in decisions regarding our representation of 

you, you will not be consulted on all decisions regarding our 

representation of the Company or other joint clients in the Matter.
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While the Company has agreed that Baker Donelson may represent 

you in the Matter, you are of course free at any time to consult with any 

other attorney, including with respect to whether you should enter into this 

agreement, and to make different arrangements for your representation.

5. Conclusion of Representation.

Either of us may terminate the engagement at any time for any 

reason by written notice, subject on our part to our professional obligations 

to you under applicable rules of professional conduct and the terms and 

conditions set forth in this agreement. Unless previously terminated, our 

representation of you will terminate upon completion of the services for 

the Matter described above in paragraph 1. It is understood and agreed 

that in the event of any termination or withdrawal, we will be entitled to 

receive any unpaid fees and expenses from the Company. Subsequent 

invoices sent to collect expenses and/or unpaid balances, and/or 

accounting records or client lists shall not extend the attorney-client

relationship. Unless you engage us after termination of this matter, we 

will have no continuing obligation to advise you with respect to future 

legal developments, such as changes in the applicable laws or regulations, 

which could have an impact on your future rights and liabilities.

A provision at the conclusion of the engagement letter states as follows:

I have carefully read the foregoing letter, considered all information 

necessary and useful in determining whether or not to consent to the 

representations outlined above. I have been encouraged to consult with 

independent counsel regarding this consent to representation, and I am fully 

aware of my legal rights in this regard. Upon reasoned reflection, I hereby 

voluntarily consent to the representations by Baker Donelson as outlined 

above.

Mr. Culpepper’s signature appears thereon, dated August 31, 2016. Mr. Culpepper does 

not dispute that he signed the engagement letter, although he asserts in his brief that he 

does not specifically remember doing so.

The parties agree that Tennessee Supreme Court Rule 8, Rule of Professional 

Conduct 1.7 (“RPC 1.7”), applies in this situation. RPC 1.7 states in pertinent part:

(a) Except as provided in paragraph (b), a lawyer shall not represent a 

client if the representation involves a concurrent conflict of interest. 

A concurrent conflict of interest exists if:
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(1) the representation of one client will be directly adverse 

to another client; or

(2) there is a significant risk that the representation of one 

or more clients will be materially limited by the 

lawyer’s responsibilities to another client, a former 

client or a third person or by a personal interest of the 

lawyer.

(b) Notwithstanding the existence of a concurrent conflict of interest 

under paragraph (a), a lawyer may represent a client if:

(1) the lawyer reasonably believes that the lawyer will be 

able to provide competent and diligent representation 

to each affected client;

(2) the representation is not prohibited by law;

(3) the representation does not involve the assertion of a 

claim by one client against another client represented 

by the lawyer in the same litigation or other 

proceeding before a tribunal; and

(4) each affected client gives informed consent, confirmed 

in writing.

Mr. Culpepper has not disputed that Defendants terminated their representation of 

him in December 2016. Because Defendants allegedly continued their representation of 

Provectus following termination of their representation of Mr. Culpepper in 2016, the 

parties are in accord that Tennessee Supreme Court Rule 8, Rule of Professional Conduct 

1.9 (“RPC 1.9”) would also apply in this situation. RPC 1.9 states as follows:

a) A lawyer who has formerly represented a client in a matter shall not 

thereafter represent another person in the same or a substantially 

related matter in which that person’s interests are materially adverse 

to the interests of the former client unless the former client gives 

informed consent, confirmed in writing.4

 

4 Comment 3 to RPC 1.9 provides that matters are “substantially related” if they “involve the same 

transaction or legal dispute or other work the lawyer performed for the former client” or “if there is a 

substantial risk that confidential factual information that would normally have been obtained in the prior 

representation would materially advance the client’s position in the subsequent matter, unless that 

information has become generally known.”
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(b) Unless the former client gives informed consent, confirmed in 

writing, a lawyer shall not knowingly represent a person in the same 

or a substantially related matter in which a firm with which the 

lawyer formerly was associated had previously represented a client

(1) whose interests are materially adverse to that person; 

and

(2) about whom the lawyer had acquired information 

protected by RPCs 1.6 and 1.9(c) that is material to the 

matter.

(c) A lawyer who has formerly represented a client in a matter or whose 

present or former firm has formerly represented a client in a matter 

shall not thereafter reveal information relating to the representation 

or use such information to the disadvantage of the former client 

unless (1) the former client gives informed consent, confirmed in 

writing, or (2) these Rules would permit or require the lawyer to do 

so with respect to a client, or (3) the information has become 

generally known.

Defendants do not dispute that a conflict of interest arose between Provectus and 

Mr. Culpepper at some point; in fact, the existence of such a conflict was the reason 

provided by Defendants for terminating their representation of Mr. Culpepper in 

December 2016. Defendants assert, however, that Mr. Culpepper waived all conflicts of 

interest with other clients of the Baker firm and gave informed consent to Defendants’ 

continued representation of Provectus in the event such a conflict arose. Although we 

agree with Defendants that Mr. Culpepper acknowledged his voluntary agreement to the 

waiver contained in the engagement letter, such acknowledgement is not determinative of 

the issue of whether Mr. Culpepper’s consent was informed.

“Informed consent” is defined in the Rules of Professional Conduct as “the 

agreement by a person to a proposed course of conduct after the lawyer has 

communicated adequate information and explanation about the material risks of and 

reasonably available alternatives to the proposed course of conduct.” Tenn. Sup. Ct. R. 8, 

RPC 1.0. As our Supreme Court has explained:

[O]ur rules permit a waiver of a conflict of interest if “(1) the lawyer 

reasonably believes the representation will not be adversely affected; and 

(2) the client consents in writing after consultation.” Tenn. Sup. Ct. R. 8, 

RPC 1.7(b). In order to waive a conflict of interest, the petitioner must 

demonstrate that he fully understands the nature of the conflict and its 

effect; that he understands his right to the appointment of other counsel if 
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necessary; and that, notwithstanding the potential ill effects of continued 

representation by counsel of record, he desires to proceed. A valid waiver 

must, of course, not only be made knowingly, but also be made fully and 

voluntarily in the context of the case. 

Frazier v. State, 303 S.W.3d 674, 683-84 (Tenn. 2010) (other internal citations omitted).

Although there is a dearth of case law interpreting the Rules of Professional 

Conduct in relation to the factual scenario presented in this matter, we note that the 

comments to RPC 1.7 are instructive to our analysis. For example, comment 6 to RPC 

1.7 states: “Loyalty to a current client prohibits undertaking representation directly 

adverse to that client without that client’s informed consent. Thus, absent consent, a 

lawyer may not act as an advocate in one matter against a person the lawyer represents in 

some other matter, even when the matters are wholly unrelated.” As such, it is clear that 

a client can provide informed consent in order to enable an attorney to undertake 

concurrent representation that is adverse to that client in certain circumstances. However, 

when such consent is given, “the information provided [to the client] must include the 

implications of the common representation, including possible effects on loyalty, 

confidentiality and the attorney-client privilege and the advantages and risks involved.” 

See RPC 1.7, cmt. 18.

In the case at bar, Mr. Culpepper executed an acknowledgement stating that he 

had “carefully read” the engagement letter and had “considered all information necessary 

and useful in determining whether or not to consent to the representations” stated therein. 

Mr. Culpepper further acknowledged that he had been encouraged to consult with 

independent counsel regarding his consent to representation. Mr. Culpepper affirmed 

that he had, upon “reasoned reflection,” “voluntarily consent[ed] to the representations by 

Baker Donelson as outlined above.” 

The question that remains unanswered, however, is whether Mr. Culpepper was 

provided information concerning “the implications of the common representation, 

including possible effects on loyalty, confidentiality and the attorney-client privilege” or 

“the potential ill effects of continued representation by counsel of record” such that he 

could “fully understand[] the nature of the conflict and its effect.” See Frazier, 303 

S.W.3d at 683-84; RPC 1.7, cmt. 18.

Mr. Culpepper posits that his consent was not “informed” in that he was not 

afforded sufficient information concerning the nature and extent of the conflict and its 

effect on his individual representation. We note that according to the engagement letter,

although Mr. Culpepper expressly agreed that the Baker firm “would expect to share 

information [the Baker firm] receive[d] from [Mr. Culpepper] with [Provectus],” he also 

agreed that the Baker firm would not necessarily share information received from 
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Provectus with Mr. Culpepper. In addition, we note again that the engagement letter 

expressly provides:

If a conflict should arise between you and the Company, we will be 

required to withdraw from representing you, and you may need to engage 

another attorney to represent you. You agree that, should this occur, we 

would be free to continue to represent the Company and other joint clients 

(except in litigation directly adverse to you in this or a substantially related 

matter) and that we and they may use any information we have obtained 

during our representation of you, including any confidential information 

you may provide to us. This may include sharing information you provide 

to us with the Company and advising the Company with respect to any 

issues raised by such information. . . . 

You agree to waive any claim of conflict based on our past, current, and 

future representation of the Company and its current or former officers, 

employees, directors, etc. As noted above, our fees and costs for 

representing you in the Matter will be paid by the Company, and you agree

that you waive any claim of conflict based upon our receipt of fees from the 

Company.

The letter further explained that although there were benefits to joint 

representation, there were also risks, such as “that confidential or privileged information 

disclosed to Baker Donelson by individual clients will be shared with the Company and 

that confidential or privileged information of the Company will not necessarily be shared 

with individual clients, including yourself.” In addition, the letter provided that 

Provectus “may disclose, or direct us to disclose, to the SEC, or other federal or state 

regulatory agencies or other third parties confidential or privileged information provided 

by you and could decide to use such information in a manner that could be 

disadvantageous to you.” Moreover, the letter clarified that Mr. Culpepper would “not be

consulted on all decisions regarding our representation of the Company or other joint 

clients in the Matter.” 

Despite the aforementioned language, the letter also included that “[b]ased on the 

information we now have, we are not aware of any actual and present conflicts of interest 

between you and either the Company, Timothy Scott or Eric Wachter that would preclude 

this joint representation.” The letter further provided that “if we become aware that a 

conflict has arisen or become apparent, we will notify you promptly.” However, 

according to the factual allegations contained in Mr. Culpepper’s amended complaint, 

Defendants had met with a forensic accountant and discussed issues concerning Mr. 

Culpepper on August 15, 2016, without Mr. Culpepper’s knowledge. This meeting 

occurred before Mr. Culpepper signed the conflict waiver on August 31, 2016. Mr. 

Culpepper alleged in his amended complaint that this meeting with the forensic 
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accountant ultimately resulted in the fabrication of documentation to support Mr. 

Culpepper’s termination from Provectus for cause. Mr. Culpepper further alleged that he 

was never made aware of the meeting until documents were disclosed in May 2018. We 

note that Defendants did not withdraw from their representation of Mr. Culpepper until 

after his termination from Provectus in December 2016.

Accepting these allegations as true, as we must when reviewing a grant of 

judgment on the pleadings, we conclude that Mr. Culpepper’s complaint stated sufficient 

facts to support his claim. We reiterate that this Court “should uphold granting the [Rule 

12.03] motion only when it appears that the plaintiff can prove no set of facts in support 

of a claim that will entitle him or her to relief.” Young, 130 S.W.3d at 63. Mr. Culpepper 

effectively alleged that Defendants engaged to represent him and continued that 

representation despite dealing simultaneously with Provectus and third parties to his 

detriment, thus establishing a potential violation of RPC 1.7. Mr. Culpepper further 

alleged that Defendants continued to represent Provectus on a substantially related matter 

after they withdrew from representing him and that Provectus’s interests were materially 

adverse to his interests as a former client, thus establishing a potential violation of RPC 

1.9. Such violations of the Rules of Professional Conduct can be evidence of a breach of 

the standard of care, see Roy, 16 S.W.3d at 790-91, and Mr. Culpepper claimed that he 

was damaged by wrongful termination from his employment and other monetary losses 

as a result of Defendant’s breach of duty. We therefore conclude that Mr. Culpepper 

properly stated a claim for legal malpractice in his amended complaint. See Jones, 588 

S.W.3d at 655-56.

Moreover, Mr. Culpepper argues that even if it could be shown that he provided

informed consent to the conflict in this matter, not all conflicts are waivable. We agree, 

observing that comment 15 to RPC 1.7 provides: “Consentability is typically determined 

by considering whether the interests of the clients will be adequately protected if the 

clients are permitted to give their informed consent to representation burdened by a 

conflict of interest.” Representation of a client “is prohibited if, in the circumstances, the 

lawyer cannot reasonably conclude that the lawyer will be able to provide competent and 

diligent representation.” Id. Analysis of this issue requires further factual determination 

that is inappropriate for judgment on the pleadings.

For the foregoing reasons, we conclude that the trial court improperly granted 

judgment on the pleadings to Defendants concerning Mr. Culpepper’s claim of legal 

malpractice. We therefore reverse the trial court’s grant of judgment on the pleadings to 

Defendants regarding this issue.

VI. Statute of Limitations

Mr. Culpepper has also raised an issue concerning the trial court’s alternative 

ruling that Mr. Culpepper’s legal malpractice claims were barred by the applicable one-
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year statute of limitations. Mr. Culpepper contends that the trial court erred by failing to 

apply the discovery rule to toll the statute of limitations based on Defendants’ fraudulent 

concealment of their August 2016 meeting with the forensic accountant, which occurred 

without Mr. Culpepper’s knowledge and to his detriment. 

Our Supreme Court summarized Tennessee’s discovery rule applicable to legal 

malpractice claims in John Kohl & Co. P.C. v. Dearborn & Ewing, 977 S.W.2d 528, 532-

33 (Tenn. 1998):

When the cause of action accrues is determined by applying the discovery 

rule. Under this rule, a cause of action accrues when the plaintiff knows or 

in the exercise of reasonable care and diligence should know that an injury 

has been sustained as a result of wrongful or tortious conduct by the 

defendant.

In legal malpractice cases, the discovery rule is composed of two 

distinct elements: (1) the plaintiff must suffer legally cognizable damage—

an actual injury—as a result of the defendant’s wrongful or negligent 

conduct, and (2) the plaintiff must have known or in the exercise of 

reasonable diligence should have known that this injury was caused by the 

defendant’s wrongful or negligent conduct. An actual injury occurs when 

there is the loss of a legal right, remedy or interest, or the imposition of a 

liability. An actual injury may also take the form of the plaintiff being 

forced to take some action or otherwise suffer “some actual 

inconvenience,” such as incurring an expense, as a result of the defendant’s 

negligent or wrongful act. However, the injury element is not met if it is 

contingent upon a third party’s actions or amounts to a mere possibility.

The knowledge component of the discovery rule may be established 

by evidence of actual or constructive knowledge of the injury. 

Accordingly, the statute of limitations begins to run when the plaintiff has 

actual knowledge of the injury as where, for example, the defendant admits 

to having committed malpractice or the plaintiff is informed by another 

attorney of the malpractice. Under the theory of constructive knowledge, 

however, the statute may begin to run at an earlier date—whenever the 

plaintiff becomes aware or reasonably should have become aware of facts 

sufficient to put a reasonable person on notice that an injury has been 

sustained as a result of the defendant’s negligent or wrongful conduct. We 

have stressed, however, that there is no requirement that the plaintiff 

actually know the specific type of legal claim he or she has, or that the 

injury constituted a breach of the appropriate legal standard. Rather, “the 

plaintiff is deemed to have discovered the right of action if he is aware of 

facts sufficient to put a reasonable person on notice that he has suffered an 
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injury as a result of wrongful conduct.” Carvell [v. Bottoms], 900 S.W.2d 

[23,] 29 [(Tenn. 1995)] (quoting Roe v. Jefferson, 875 S.W.2d 653, 657 

(Tenn. 1994)). “It is knowledge of facts sufficient to put a plaintiff on 

notice that an injury has been sustained which is crucial.” Stanbury [v. 

Bacardi], 953 S.W.2d [671,] 678 [(Tenn. 1997)]. A plaintiff may not, of 

course, delay filing suit until all the injurious effects or consequences of the 

alleged wrong are actually known to the plaintiff. Allowing suit to be filed 

once all the injurious effects and consequences are known would defeat the 

rationale for the existence of statutes of limitations, which is to avoid the 

uncertainties and burdens inherent in pursuing and defending stale claims.

(Other internal citations omitted.)

In the instant case, Mr. Culpepper stated in his amended complaint that he was 

unaware of Baker Donelson’s meeting with the forensic accountant, which he alleged 

resulted in the disclosure of privileged communications and, ultimately, the fabrication of 

documents to justify his termination for cause from Provectus, until documents were 

disclosed in May 12, 2018 revealing these facts. Mr. Culpepper further alleged that the 

Baker firm “fraudulently concealed the notes of any meetings it had with [the forensic 

accountant] about [Mr. Culpepper] until [the forensic accountant] revealed the notes” and 

that he was not made aware of Defendants’ meeting with the forensic accountant until 

May 12, 2018. Mr. Culpepper has alleged that he therefore could not have and did not 

discover “facts sufficient to put a reasonable person on notice that he ha[d] suffered an 

injury as a result of wrongful conduct” until that time. See John Kohl & Co., 977 S.W.2d 

at 533 (quoting Carvell v. Bottoms, 900 S.W.2d 23, 29 (Tenn. 1995)). Mr. Culpepper 

filed his original complaint on May 9, 2019, which was within one year of the date he 

claimed to have discovered such facts.

Defendants counter in their appellate brief that Mr. Culpepper knew that he had 

been terminated in December 2016 and knew that Defendants had continued to represent 

Provectus in a manner adverse to Mr. Culpepper in 2017 and early 2018. However, these 

facts do not necessarily establish that Mr. Culpepper was on notice that he had been 

injured by conduct attributable to Defendants at that time. Defendants further assert that 

Mr. Culpepper made statements during his March 15, 2018 deposition, taken in the 

course of arbitration proceedings, accusing Defendants of much of the same conduct 

alleged in the amended complaint. We note, however, that the trial court neither referred 

to nor appeared to consider Mr. Culpepper’s deposition when granting judgment on the 

pleadings, which was proper inasmuch as Rule 12.03 directs that the court cannot 

consider “matters outside the pleadings” when ruling on such motion. See Bartley, 2020 

WL 5110302, at *8 (“[I]f the trial court had considered [a potential witness’s] deposition 

transcript or his notes, the effect would have been to convert Plaintiffs’ motion for a 

judgment on the pleadings to a motion for summary judgment.”). We are likewise bound 

to consideration of the pleadings alone on appeal. See Local TV Tenn. LLC v. N.Y.S.E. 
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Wolfchase LLC, No. W2017-00675-COA-R3-CV, 2018 WL 1721866, at *4 (Tenn. Ct. 

App. Apr. 9, 2018). 

Based solely on the facts alleged in Mr. Culpepper’s amended complaint, which 

must be taken as true, we determine that the trial court erred in granting judgment in 

favor of Defendants with regard to Mr. Culpepper’s legal malpractice claim predicated 

upon the statute of limitations and in failing to determine that the discovery rule could be 

applied. We therefore reverse this portion of the trial court’s judgment as well.

VII. Conclusion

For the foregoing reasons, we reverse the trial court’s grant of judgment on the 

pleadings in favor of Defendants with regard to Mr. Culpepper’s legal malpractice claim. 

The balance of the trial court’s judgment, which was not appealed, remains in effect. 

Costs on appeal are assessed to the appellees, Baker, Donelson, Bearman, Caldwell & 

Berkowitz, P.C.; John S. Hicks; Tonya Mitchem Grindon; Martha L. Boyd; Samuel 

Lanier Felker; Lori B. Metrock; and Lori H. Patterson. This case is remanded to the trial 

court for further proceedings consistent with this opinion and collection of costs assessed 

below.

_________________________________

THOMAS R. FRIERSON, II, JUDGE