Beier v. Bd. of Prof'l Responsibility of the Supreme Court of Tenn.

• Decision Date: 02 October 2020
• Docket Number: No. E2019-00463-SC-R3-BP,E2019-00463-SC-R3-BP
• Parties: Douglas Ralph BEIER v. BOARD OF PROFESSIONAL RESPONSIBILITY OF the SUPREME COURT of Tennessee
• Court: Tennessee Supreme Court

610 S.W.3d 425

Douglas Ralph BEIER

v.BOARD OF PROFESSIONAL RESPONSIBILITY OF the SUPREME COURT of Tennessee

No. E2019-00463-SC-R3-BP

Supreme Court of Tennessee, AT KNOXVILLE.

February 11, 2020 Session Heard at Nashville

FILED October 2, 2020

Douglas Ralph Beier, Morristown, Tennessee, Appellant, Pro Se.

Sandy Garrett and Jerry D. Morgan, Brentwood, Tennessee, for the Appellee, Board of Professional Responsibility.

Holly Kirby, J., delivered the opinion of the court, in which Jeffrey S. Bivins, C.J., and Cornelia A. Clark, Sharon G. Lee, and Roger A. Page, JJ., joined.

Holly Kirby, J.

In this appeal from attorney disciplinary proceedings, the hearing panel of the Tennessee Board of Professional Responsibility determined that the attorney's conduct in two cases violated the Rules of Professional Conduct. In one case, the hearing panel found that the attorney signed the name of a witness on an affidavit, falsely notarized the signature, and did not disclose to the trial court or opposing counsel that he had signed the witness's affidavit. In another case, the hearing panel found, the attorney persuaded a client in a probate matter to agree to an unreasonable contingency fee arrangement, took advantage of the client's disability, misrepresented to the probate court that the client was the decedent's sole heir, failed to disclose the existence of other heirs, and got the probate court to agree to close the estate without a detailed accounting in order to avoid judicial scrutiny of the unreasonable fee. The hearing panel suspended the law license of the appellant attorney for two years, with three months served as active suspension and the remainder on probation. The attorney and the Board both appealed the hearing panel's decision to the chancery court. The chancery court affirmed the hearing panel's findings as to rule violations and aggravating and mitigating factors, but it modified the sanction to two years active suspension. The attorney now appeals to this Court, arguing that his conduct was not dishonest, he did not take advantage of a vulnerable client, and his probate fee arrangement was not unreasonable. We affirm the hearing panel's factual findings and its findings as to rule violations. In view of the seriousness of the violations, we affirm the chancery court's modification of the sanction to two years active suspension.

FACTUAL AND PROCEDURAL BACKGROUND

Respondent-Appellant Douglas Ralph Beier has been licensed to practice law in Tennessee since 1977. He maintains a general law practice in Morristown, in Hamblen County. His practice has always included probate work.

The discipline in this case centers on two matters, which we describe below.

Affidavit Matter

The first matter involves the signature on an affidavit. In 2015, Mr. Beier had a client who was a divorced father ("Father"). Father claimed that his daughter ("Daughter"), then five years old, was sexually abused by her teenage sister while both were in the custody of their mother, Father's ex-wife ("Mother"). Mr. Beier prepared to file two petitions on behalf of Father, both making the abuse allegations in support of his request to modify the custody arrangement for Daughter.¹

Shortly before he was scheduled to leave for a trip out of town, Mr. Beier prepared an affidavit for Father and another affidavit for Daughter's paternal grandmother ("Grandmother"). The affidavits were to be used in court the next Monday. Mr. Beier left both affidavits at his office to be signed while he went to court on another matter.

When Mr. Beier returned to his office later that same day, he saw that Father had signed his affidavit but Grandmother had not signed hers. Mr. Beier signed Grandmother's name to her affidavit (the "Affidavit"). In his capacity as a notary public, Mr. Beier notarized Grandmother's Affidavit as well.² He then left town on his scheduled trip.

When Mr. Beier returned the next Monday, August 31, 2015, he filed the petitions, each with the Affidavit in support. Neither the petitions nor the Affidavit disclosed that Mr. Beier had signed Grandmother's name for her. Based on these filings, the juvenile court entered an order temporarily suspending Mother's parenting time.

Months later, counsel for Mother took Grandmother's deposition. In the course of the deposition, the attorney asked Grandmother whether the signature at the bottom of the Affidavit was hers. Grandmother gave no answer. The attorney repeated the question, more than once, with no response. Finally, Mr. Beier interjected, "That's where I subscribed your signature, right there." Grandmother then agreed, "Uh-huh. Yeah. He subscribed my signature."

In October 2015, Mr. Beier filed a re-verified affidavit making the same statements, signed by Grandmother. In January 2016, counsel for Mother filed a motion alleging misconduct by Mr. Beier with respect to the Affidavit and asking the juvenile court to assess sanctions against Mr. Beier.

In April 2016, Mr. Beier contacted Tennessee's Board of Professional Responsibility (the "Board") to self-report his infraction.

Estate Matter

The second matter involved Mr. Beier's representation of Ray Norton in connection with an estate.

Mr. Norton contacted Mr. Beier for representation regarding the estate of his deceased aunt, Audrey Jenkins. Mr. Norton, 62 years old, had received Social Security Supplemental Security Income (SSI) benefits and Department of Veterans’ Affairs disability benefits (as the child of a veteran) all of his adult life. Mr. Beier understood that Mr. Norton qualified for disability benefits because of a nervous condition.

Mr. Norton brought a "friend," Paul Barnes, to his initial meeting with Mr. Beier. Mr. Norton explained that Mr. Barnes was the designated payee for some of the disability benefits Mr. Norton received. During the meeting, Mr. Beier proposed that, as compensation for his representation of Mr. Norton as to Ms. Jenkins's estate, Mr. Beier would receive a 33.3% contingency fee of the "gross estate." Mr. Norton agreed to the proposal.

Mr. Norton's deceased aunt, Ms. Jenkins, was a widow without children. She died intestate. She was predeceased by a full-sister and by a half-brother. Mr. Norton was the only child of Ms. Jenkins's full-sister. The half-brother, Sheridan James, had four living children. Mr. Norton told Mr. Beier about these "half-cousins" at their initial meeting.

It appears from the record that Ms. Jenkins owned three parcels of real estate at the time of her death. However, the real property was never part of the Jenkins estate.

In September 2013, Mr. Beier filed a petition on Mr. Norton's behalf, asking the chancery court to name Mr. Norton as Administrator of the Jenkins estate. The petition alleged that Mr. Norton was Ms. Jenkins's sole heir.

Later that same month, the mother of Sheridan James's children saw the Jenkins estate's notice to creditors. She contacted Mr. Beier and told him about her children and their father, Ms. Jenkins's half-brother.

Eleven months later, Mr. Beier filed a petition and proposed order to close the Jenkins estate. In the filing, Mr. Beier asserted that Mr. Norton, "being the sole beneficiary, desires to close the estate without a detailed accounting." Mr. Beier did not notify the James children he had filed this petition. He did not disclose to the chancery court the existence of the James children. Relying on Mr. Beier's representation, the chancery court granted the petition and closed the estate without a detailed accounting.

In calculating his final fee, Mr. Beier included two of the three parcels of real estate Ms. Jenkins owned at the time of her death, even though they were never actually part of the estate.³ The only work Mr. Beier performed regarding the real property was preparation of an administrator's deed. The total fee Mr. Beier ultimately received for handling the Jenkins estate was $78,614. Because the estate was closed without a detailed accounting, there was no judicial approval of the fee.

Later, Mr. Norton learned he was not Ms. Jenkins's sole heir, as Mr. Beier had represented to the chancery court; his half-cousins, the James children, were entitled to a portion of the Jenkins estate. Mr. Norton hired new counsel. In February 2016, the new attorney filed a petition on behalf of Mr. Norton to reopen the Jenkins estate.

Mr. Norton's new attorney contacted Mr. Beier about the Jenkins estate. In June 2016, after the Jenkins estate was reopened, Mr. Beier reimbursed the estate his entire fee, with interest.

On October 16, 2016, the Board received a complaint of misconduct regarding Mr. Beier's handling of the Jenkins estate from one of the James children. Mr. Beier self-reported this matter as well.

Hearing Panel

In early 2017, the Board filed a petition for discipline against Mr. Beier, citing the Affidavit matter, and then a supplemental petition for discipline, citing the Jenkins estate matter. Both matters proceeded before a hearing panel. After considering testimony and affidavits submitted by both parties, the hearing panel issued findings of fact, finding in pertinent part:

21. Having heard the testimony of Mr. Beier, [Grandmother], and [Mother's counsel], and considering the demeanor of the witnesses, the inconsistencies in the testimony of Mr. Beier and [Grandmother], and their relationship, along with the other evidence of record, the Panel finds that Mr. Beier's and [Grandmother]’s testimony that [Grandmother] gave Mr. Beier permission to sign her name to the [A]ffidavit and that Mr. Beier did so on August 26, 2015[,] is not credible.

22. By signing [Grandmother]’s name to the [A]ffidavit without signifying that he was signing her name on her behalf, and by notarizing that signature, Mr. Beier represented to the Juvenile and Chancery Courts that [Grandmother] had in fact signed the [A]ffidavit personally, a representation he knew to be false.

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39. Mr. Beier took advantage of Mr. Norton's disability in order to obtain his agreement to the one-third fee.

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42.

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