Harris v. Bd. of Prof'l Responsibility of the Supreme Court of Tenn., M2020-01113-SC-R3-BP

CourtSupreme Court of Tennessee
Writing for the CourtHOLLY KIRBY, JUSTICE
PartiesTYREE B. HARRIS, IV v. BOARD OF PROFESSIONAL RESPONSIBILITY OF THE SUPREME COURT OF TENNESSEE
Docket NumberM2020-01113-SC-R3-BP
Decision Date29 April 2022

TYREE B. HARRIS, IV
v.

BOARD OF PROFESSIONAL RESPONSIBILITY OF THE SUPREME COURT OF TENNESSEE

No. M2020-01113-SC-R3-BP

Supreme Court of Tennessee, Nashville

April 29, 2022


Assigned on Briefs October 6, 2021

Direct Appeal from the Circuit Court for Davidson County No. 19C1717 William B. Acree, Jr., Senior Judge

In this appeal from attorney disciplinary proceedings, the hearing panel found that the attorney's testimony about his income in a juvenile court proceeding to reduce his child support obligation violated Tennessee Supreme Court Rule 8, RPC 8.4(c). The hearing panel said that the attorney's answers were carefully crafted to give the appearance of literal truth but were in fact dishonest in that they intentionally omitted relevant information fairly called for in the questions. The hearing panel found that the presumptive sanction was disbarment, but it reduced the sanction to a one-year suspension in light of the attorney's prior unblemished forty-year legal career. The attorney appealed the hearing panel's decision to the circuit court, which affirmed. The attorney now appeals to this Court. He maintains that, in context, his answers were truthful and responsive to the specific questions asked, and that there was no violation of the Rules of Professional Conduct. He also contends that the sanction imposed by the hearing panel is overly harsh and an abuse of discretion. We affirm the trial court's judgment upholding the hearing panel's decision.

Tenn. Sup. Ct. R. 9, § 33.1(d); Judgment of the Circuit Court Affirmed

Tyree B. Harris, IV, and Katherine A. Brown, Nashville, Tennessee, for the Appellant, Tyree B. Harris, IV.

James W. Milam, Brentwood, Tennessee, for the Appellee, Board of Professional Responsibility.

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

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OPINION

HOLLY KIRBY, JUSTICE

Factual and Procedural Background

The respondent attorney in this case, Appellant Tyree B. Harris, IV, has been licensed to practice law in Tennessee since 1970. Pursuant to Tennessee Supreme Court Rule 9, § 33.1(d), he appeals the discipline imposed by a hearing panel of the Tennessee Board of Professional Responsibility ("BPR" or "Board"). The discipline at issue arises out of testimony Mr. Harris gave during child support proceedings. The child support testimony related to a client fee that had been the subject of a prior dispute between Mr. Harris and his former law firm. We will briefly summarize both the law firm dispute and the child support proceedings in order to address the discipline imposed.[1]

Law Firm Dispute

In 2010, Mr. Harris was a partner in the three-member Nashville law firm of Willis & Knight, PLC. In May of that year, the firm received a client fee payment of $336, 857.57. The client disputed a portion of the fee, so the firm kept the entire fee payment in its escrow account pending resolution of the dispute.

Ordinarily, the firm placed such fees in an operating account used to pay the firm's rent and other overhead costs. After covering those expenses, the firm would allocate any remaining funds to the designated capital accounts of individual partners, including Mr. Harris. Each of the three individual partners could then make cash withdrawals to pay personal expenses, thereby reducing his or her individual capital account balance. Among Mr. Harris's personal expenses was a child support obligation. He authorized the firm to send periodic checks directly to the child's mother and charge those amounts against his capital account balance.

By January 2011, the law firm resolved the fee dispute with its client and was ready to distribute the funds from the escrow account. Meanwhile, relations between the partners had become strained, in part because Mr. Harris believed he was bearing a disproportionate share of the firm's costs. The events that followed were a departure from the firm's usual practice regarding client fees, and Mr. Harris and another lawyer in his firm told somewhat differing versions of what happened.

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As outlined above, the firm's usual practice was to first deposit funds in the operating account, pay firm expenses, and then allocate any remaining funds to partners' individual capital accounts. According to Mr. Harris, he and two other members of the firm decided by a 2-1 vote to bypass the operating account entirely and distribute the partners' shares of the fee from the escrow account directly to each individual partner. Pursuant to this plan, on January 31, 2011, Mr. Harris directed the firm's bookkeeper to prepare three checks from the escrow account, one for each partner in the amount of his or her share of the fee. Mr. Harris's check was for $225, 000. Once he received the check from the firm's bookkeeper, he deposited it into a separate personal savings account.

The law firm sued Mr. Harris in the Chancery Court for Davidson County. The complaint asserted, among other things, that Mr. Harris converted some or all of the $225, 000. In the litigation, Mr. Harris testified about the purported 2-1 vote to bypass the firm's operating account and distribute the client fee directly to the partners. One of the firm's partners disputed Mr. Harris's testimony and maintained there was never a vote to bypass the firm's operating account.

The chancery court tried the case in 2015 and found that Mr. Harris's testimony about the purported vote was not credible. It held him liable to the law firm for conversion, intentional misrepresentation, misrepresentation by concealment, fraud, and breach of fiduciary duty. The court awarded the firm compensatory and punitive damages along with costs and fees. See Knight v. Harris, No. M2016-00909-COA-R3-CV, 2018 WL 372211, at *3 (Tenn. Ct. App. Jan. 11, 2018), perm. app. denied, (Tenn. May 17, 2018).

On appeal, the Court of Appeals mostly affirmed the chancery court's findings. However, it reversed the chancery court's award of punitive damages on the basis that the record lacked clear and convincing evidence that Mr. Harris had fraudulent intent when he converted his share of the disputed client fee. Id. at *10-11.

Child Support Proceedings

Meanwhile, in September 2010, while the disputed client fee was still being held in the law firm's escrow account, Mr. Harris petitioned the Juvenile Court of Davidson County to reduce his child support obligation.[2] In the petition, Mr. Harris claimed his income had decreased. The petition was pending in January 2011, when Mr. Harris

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received his $225, 000 share of the disputed law firm fee and deposited it into his personal account.

The juvenile court scheduled its hearing on the child support modification petition for April 1, 2011. About a week before the hearing, and a day before Mr. Harris's scheduled deposition, the juvenile court conducted a telephonic hearing to address discovery obligations. The court ordered Mr. Harris to produce his tax returns and the law firm's profit-loss statements dating back to 2007.[3]

At Mr. Harris's deposition, counsel for the child's mother asked Mr. Harris about his income, his capital account, and checks from his law firm. As detailed below, Mr. Harris's responses did not disclose the fact that he had received and deposited into his personal savings account a $225, 000 check from the firm's escrow account.

Specifically, Mr. Harris was first asked about his law firm capital account:

Q. Is that something that you as a partner at a law firm would be concerned about, the value of your capital account
A. It allows me to draw.
Q. Okay. And so that means you get to get money out of the law firm?
A. Yes.
Q. Okay. And when it's zero, like it is now - - or below zero like it is now, what does that - - what effect does that have on you?
A. I have not drawn anything from the firm with the single exception of my child support. I have not drawn a penny from Willis & Knight, PLC, in the last five months.
Q. Okay. And - -
4
A. I'm sorry, four months.
Q. All right.
A. Four months.

Shortly after, Mr. Harris was asked about checks from the firm:

Q. Okay. Are there - - is there a record of the checks that you've received from the firm from 2007 until present?
A. My tax returns.
Q. No, no, that's not what I'm asking. I'm asking for a record that shows how much - - how many checks were written to you and how much they were for from the firm. Does that record exist?
A. I don't believe so.
Q. Okay.
A. I can't say that it doesn't, but I don't believe that it does, because you're - - the only thing I get is a draw, and I take the draw and that's it. . . .
Q. Okay. The information I want is from 2007 until present, any check that has been written by the law firm to you. You have the ability to get that for me, don't you?
A. I guess I probably could. I would have to get the cancelled checks. I don't know where the cancelled checks are. I mean, all I can do is ask.

At the child support modification hearing a week later, Mr. Harris offered similar testimony about his capital account, the firm's income, and his income:

Q: Mr. Harris, have you taken a draw since the first of the year?
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A: No. (Pause). Technically I have. The court ordered me to continue to pay the full amount of the child support except for the month of March, and because the firm writes a check and charges it against my capital account, that check has continued to [the child's mother], so technically, I have taken a draw to the extent that I have paid the capital account, but in no other way have I.
[The Court]: Just so I make sure I understand, you are saying that the only draw you have taken has been child support.
A: Yes, Your Honor. And that is a check that is written by the firm to . . . the mother.

Mr....

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