Bd. of Prof'l Responsibility of the Supreme Court of Tenn. v. Prewitt
| Citation | 647 S.W.3d 357 |
| Decision Date | 06 June 2022 |
| Docket Number | M2021-01141-SC-R3-BP |
| Parties | BOARD OF PROFESSIONAL RESPONSIBILITY OF the SUPREME COURT OF TENNESSEE v. Candes Vonniest PREWITT |
| Court | Tennessee Supreme Court |
Benjamin K. Raybin, Nashville, Tennessee, for the appellant, Candes Vonniest Prewitt.
James W. Milam, Brentwood, Tennessee, for the appellee, Board of Professional Responsibility.
This is an appeal of a trial court's judgment affirming a decision of a hearing panel of the Board of Professional Responsibility. The hearing panel found that an attorney had violated multiple Rules of Professional Conduct and imposed a thirty-day suspension from the practice of law with conditions on reinstatement. After careful review, we affirm the decision of the hearing panel and the judgment of the trial court.
In 2012, Candes Vonniest Prewitt was licensed to practice law in Tennessee. In December of that year, she and Demetrius Tucker began an on-and-off romantic relationship that lasted for several years. In July 2014, while Mr. Tucker was working as a security guard for a Nashville night club, a disgruntled patron shot him. Mr. Tucker was seriously injured and incurred over $500,000 in medical expenses. A co-worker, Dionage Harris, was also injured in the incident. Both men retained Ms. Prewitt to represent them in a personal injury lawsuit. Ms. Prewitt agreed to handle the lawsuit under a contingency fee agreement of one-third of any damages recovered.
In July 2015, Ms. Prewitt filed a complaint on behalf of Mr. Tucker and Mr. Harris against their employer, Robert Higgins d/b/a WKND Lounge, and the premises owner, Dialysis Clinic, Inc. ("the defendants"), in the Davidson County Circuit Court.1 The suit alleged that the defendant employer was negligent by failing to report to law enforcement that the man who shot Mr. Tucker had been ejected from the club earlier in the evening and had threatened to return and kill everyone.2
After the lawsuit was filed, Ms. Prewitt and Mr. Tucker continued their on-and-off romantic relationship. Ms. Prewitt did not advise Mr. Tucker of a potential conflict of interest based on their personal relationship and did not have him sign a written conflict waiver.
By February 15, 2018, Ms. Prewitt was required to file plaintiffs’ expert disclosures under Tennessee Rule of Civil Procedure 26.02(4). This filing deadline was set five months earlier during an August 31, 2017 discovery conference. Ms. Prewitt filed the disclosures on February 15. The defendants then moved to exclude two of the plaintiffs’ expert witnesses—a security expert designated to testify on the liability issue and a chiropractor designated to testify about Mr. Harris's injuries. In April 2018, the circuit court granted the motion, excluding the two expert witnesses after finding that the expert disclosures provided by Ms. Prewitt were deficient under Rule 26.02(4).3 The disclosures failed to include the substance of the facts and opinions to which the witnesses were expected to testify and a summary of the grounds for each opinion; failed to list the witnesses’ qualifications, publications for the previous ten years, and cases in which they had testified as an expert in the previous four years; and failed to disclose the compensation to be paid to the witnesses for their work on the case. Ms. Prewitt did not inform her clients of the circuit court's ruling excluding their expert witnesses.
In late April 2018, the defendants moved for summary judgment, arguing that they did not owe a duty of care to the plaintiffs because the shooting was not foreseeable. Ms. Prewitt told neither Mr. Tucker nor Mr. Harris that summary judgment motions had been filed, and she did not prepare any response to the motions. Instead, in May 2018, she moved to withdraw from the case and postpone the summary judgment hearing. By this time, Ms. Prewitt was expecting a child with Mr. Tucker, and their romantic relationship had ended. As grounds for her motion to withdraw, Ms. Prewitt stated that "the communication between counsel and laintiffs ha[d] broken down." She mentioned neither her pregnancy nor her personal relationship with Mr. Tucker. Ms. Prewitt represented to the circuit court that her clients’ interests would not be materially adversely affected by her withdrawal. Ms. Prewitt did not include her clients on the certificate of service for the motion to withdraw and did not send them copies of the motion. Ms. Prewitt claimed she told them both by telephone that she intended to withdraw from the case. On July 3, 2018, the circuit court entered an order allowing Ms. Prewitt to withdraw. The circuit court gave Mr. Tucker and Mr. Harris thirty days to obtain new counsel and continued the summary judgment hearing to August 10, 2018.
After Ms. Prewitt told Mr. Tucker she would no longer represent him, he consulted another attorney about taking over the case. The attorney asked Mr. Tucker to get him the case file and information about any lien Ms. Prewitt intended to assert for her work on the case. When Ms. Prewitt submitted a four-page document itemizing her work at $500 per hour, billed in quarter-hour increments and totaling $121,750, the attorney declined to represent Mr. Tucker. After some discussion with Mr. Tucker in an exchange of text messages, Ms. Prewitt agreed to release the lien in exchange for half of Mr. Tucker's recovery in the lawsuit. But when Ms. Prewitt turned over the case file to Mr. Tucker, she gave him an unconditional release of the lien. The attorney then agreed to take the case.
When Mr. Tucker's attorney reviewed the case file, he found that it was missing transcripts of the three depositions that had been taken, as well as a video recording of Mr. Tucker's shooting.4 The attorney also learned that no depositions of medical or security experts had been taken, that the circuit court had excluded two expert witnesses, and that summary judgment motions were pending and set for hearing in less than thirty days.5 The attorney obtained a continuance of the hearing and filed a response to the summary judgment motions.
In October 2018, the circuit court heard the defendants’ motions for summary judgment. In January 2019, the circuit court granted the motions for summary judgment. The basis for the circuit court's ruling was the plaintiffs’ failure to establish that the defendants owed a duty of care based on a foreseeable risk of harm of criminal acts. The circuit court noted that the plaintiffs had not provided evidence of any criminal activity in the immediate vicinity of the night club.
In January 2019, Mr. Tucker submitted a disciplinary complaint to the Board against Ms. Prewitt. In November 2019, the Board filed a petition for discipline against Ms. Prewitt, alleging that in her representation of Mr. Tucker she violated Rules of Professional Conduct 1.1 (Competence), 1.3 (Diligence), 1.7 (Conflict of Interest: Current Clients), 1.16 (Declining or Terminating Representation), and 8.4 (Misconduct). Ms. Prewitt denied any misconduct. After a July 15, 2020 evidentiary hearing, the hearing panel issued a written decision on August 14, 2020, finding that Ms. Prewitt had violated Rules 1.1, 1.3, 1.7, 1.16, and 8.4(a). The hearing panel imposed a thirty-day active suspension, and as conditions for reinstatement, Ms. Prewitt had to complete ten extra hours of ethics continuing legal education and engage a practice monitor for six months.
After the panel issued its ruling, the Board filed an application to recover its costs under Tennessee Supreme Court Rule 9, section 31.3(a).6 Ms. Prewitt opposed the Board's application, contending the disciplinary hearing had been improperly conducted based on an alleged conflict of interest of a hearing panel member. The hearing panel issued an order giving Ms. Prewitt fourteen days to fully substantiate the conflict of interest, including when she discovered it, and to file a brief in support of the relief she was seeking. Ms. Prewitt filed no response. The hearing panel granted the Board's application for costs.
Under Tennessee Supreme Court Rule 9, section 33.1(a), Ms. Prewitt appealed the hearing panel's decision to the Chancery Court for Davidson County. The trial court allowed Ms. Prewitt to present testimony regarding her claim that a hearing panel member had a conflict of interest. In September 2021, the trial court issued its order affirming the hearing panel's decision. The trial court ruled that Ms. Prewitt had waived the issue of a panel member's alleged conflict of interest by failing to comply with the hearing panel's order to substantiate the claimed conflict, and that she also waived her objection to costs by failing to raise an objection to the hearing panel. Ms. Prewitt appealed to this Court under Tennessee Supreme Court Rule 9, section 33.1(d).7
This Court has the inherent power "to regulate and supervise the practice of law in Tennessee." Dunlap v. Bd. of Pro. Resp. , 595 S.W.3d 593, 606 (Tenn. 2020) ). Included in this inherent power is "the ultimate responsibility of enforcing our rules of professional conduct" and sanctioning attorneys who violate those rules. Bd. of Pro. Resp. v. Sheppard , 556 S.W.3d 139, 146 (Tenn. 2018) ).
The Board of Professional Responsibility "derives its authority and functions from this Court." Dunlap , 595 S.W.3d at 606 (citing Garland , 536 S.W.3d at 816 ). An attorney charged with disciplinary violations is entitled to an evidentiary hearing before a Board of Professional Responsibility hearing panel to determine whether disciplinary action is warranted and, if so,...
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