Hyman v. Bd. of Prof'l Responsibility of the Supreme Court of Tenn.
| Decision Date | 31 March 2014 |
| Docket Number | No. E2012–02091–SC–R3–BP.,E2012–02091–SC–R3–BP. |
| Citation | 437 S.W.3d 435 |
| Parties | Roger David HYMAN v. BOARD OF PROFESSIONAL RESPONSIBILITY OF the SUPREME COURT of Tennessee. |
| Court | Tennessee Supreme Court |
OPINION TEXT STARTS HERE
C. Phillip Carter, M.D., Knoxville, Tennessee, for the appellant, Roger David Hyman.
Krisann Hodges, Brentwood, Tennessee, for the appellee, Board of Professional Responsibility of the Supreme Court of Tennessee.
A hearing panel of the Board of Professional Responsibility determined that a Knoxville attorney violated a number of the Rules of Professional Conduct and recommended his suspension from the practice of law for six months and his attendance at six hours of ethics and professionalism courses in addition to those mandated by Tennessee Supreme Court Rule 21, section 3.01. The attorney timely filed a petition for certiorari in the Circuit Court for Knox County under Tennessee Supreme Court Rule 9, section 1.3. In his petition, the attorney alleged that the hearing panel improperly considered his disciplinary history and that his six-month suspension was excessive. The circuit court affirmed the judgment of the hearing panel. After a thorough review of the record, we affirm.
Roger David Hyman received a license to practice law in Tennessee in 1984. He worked in the Tennessee Attorney General's office until the mid–1990s when he opened a private practice in Knox County, Tennessee.
This case arises from a petition for discipline filed against Mr. Hyman by the Board of Professional Responsibility (“the Board”) on May 12, 2010. The petition combined two unrelated complaints. Mr. Hyman denied the allegations of misconduct contained in the petition.
A hearing panel convened on May 23, 2011. After a number of witnesses testified, a member of the hearing panel determined that he had a conflict of interest because he had previously represented one of the Board's witnesses. Mr. Hyman's request for a mistrial was denied. The hearing panel agreed, however, to continue the proceedings until a later date, and the Chair of the Board assigned a new hearing panel.
The new hearing panel held a hearing on November 29 and 30, 2011. Before the hearing began, Mr. Hyman objected to the hearing panel's composition, arguing that he was denied due process because he was unable to participate in the selection of the hearing panel. Mr. Hyman did not allege bias on the part of any hearing panel member and acknowledged that the hearing panel was chosen in accordance with Tennessee Supreme Court Rule 9.1 The Board presented a number of witnesses, and the following facts were revealed.
On February 13, 2006, Mr. Hyman filed an amended complaint for divorce on behalf of his client, Cory Kristy, who was married to Tamatha Tanner. The parties had executed a prenuptial agreement and had few marital assets. Mr. Kristy's only significant pre-marital asset consisted of an assortment of sports cards and a collection of “Transformer” memorabilia, which Mr. Kristy maintained were in Ms. Tanner's possession or had been lost or otherwise disposed of by Ms. Tanner. Ms. Tanner denied possessing, concealing, or disposing of Mr. Kristy's property.
After being served with the amended complaint, Ms. Tanner hired attorney WilliamDavis to represent her. Mr. Davis notified Mr. Hyman by letter dated June 9, 2006, that he represented Ms. Tanner and attached a copy of the notice of appearance he had filed in the trial court. On June 15, 2006, Mr. Hyman responded to Mr. Davis' letter and enclosed a proposed marital dissolution agreement.
Mr. Davis and Mr. Hyman continued to correspond concerning the case. On July 17, 2006, Mr. Hyman filed a motion for default judgment, which contained a certification that he had mailed a copy of the motion to Mr. Davis as Ms. Tanner's “putative attorney (although no Answer nor Appearance has been filed).” Contrary to his statement in the certification, Mr. Hyman did not mail a copy of the motion to Mr. Davis but instead mailed a copy of the motion directly to Ms. Tanner. Ms. Tanner contacted Mr. Davis when she received the motion. Mr. Davis in turn wrote to Mr. Hyman, admonishing him for directly contacting his client.
Throughout the summer of 2006, Mr. Hyman repeatedly requested permission to inspect Ms. Tanner's home for Mr. Kristy's personal property. Mr. Davis initially declined to schedule a home inspection because Ms. Tanner's infant son suffered from health issues relating to his premature birth. Ultimately, however, the trial court ordered an inspection of Ms. Tanner's home. Mr. Davis wrote to Mr. Hyman in advance of the home inspection to alert him of the child's health issues, enclosing written materials from the child's pediatrician explaining that the child had a heightened risk of infection. Mr. Davis therefore requested that the participants at the home inspection apply liquid hand sanitizer prior to entering Ms. Tanner's home. When the parties arrived for the inspection, however, Mr. Hyman refused to use the hand sanitizer, calling it “snake oil.” Mr. Davis threatened to end the inspection unless Mr. Hyman complied with Ms. Tanner's request, and Mr. Hyman eventually applied the hand sanitizer.
While deposing Ms. Tanner during litigation, Mr. Hyman repeatedly called her a “liar and a thief,” threatened her with the possibility of incarceration, and twice asked her if English was her “native language.” The deposition culminated in the following exchange:
Mr. Hyman: So, according to your attorney, who is not facing a jail cell door, but you are if you're found in contempt, you are not going to answer my question?
Mr. Davis: She is not going to answer your question.
Mr. Hyman: See, he is not going to court—to jail. Now, tell us about—
* * *
Mr. Davis: Nobody is—I would ask you not to make threats like that to my client. I would ask you to limit your questions to our stipulation.
Ms. Tanner: I need a break.
Mr. Davis: There is nobody going to jail.
* * *
Mr. Davis: We're taking a break.
Mr. Hyman: No, we're not taking a break.
Mr. Davis: I'm taking a break.
Ms. Tanner: I'd like to take a break.
Mr. Hyman: We're over.
* * *
Mr. Hyman: No, we're not going to take it up with the judge. I will notice you. If you file an objection, then that's your prerogative. Okay? And I'll be seeking attorneys fees and costs and everything else.
Mr. Davis: Good. Take it up with the judge.
Mr. Hyman: You're protecting a liar and a thief.
Mr. Kristy was granted a divorce in late 2007. On March 11, 2008, however, Mr. Hyman filed a replevin action on Mr. Kristy's behalf seeking either the return of the sports cards and “Transformer” collection or $1,000,000 in damages.2 Six days after filing suit, Mr. Hyman filed an abstract of suit and notice of lien lis pendens in the Knox County Register of Deeds, which asserted a $1,000,000 claim against Ms. Tanner's property. Ms. Tanner again retained Mr. Davis, who eventually filed a motion to release the lien lis pendens. After conducting a hearing, the trial court entered an order declaring Mr. Hyman's lien void and ordering its release from the land records.
On March 26, 2008, Fred and Diane Korten hired Mr. Hyman to represent them in an action filed by David Sallas in the Circuit Court for Blount County, Tennessee. Mr. Sallas, the Kortens' general contractor, alleged that the Kortens failed to pay him the amount required by the contract for the construction of the Kortens' home in Maryville, Tennessee. The Kortens filed a counterclaim against Mr. Sallas, alleging a number of construction defects. During the initial stages of discovery, the Kortens provided Mr. Hyman with a copy of a DVD recording they created during the construction of their home to document the alleged construction defects.3 Although the DVD contained audio of the Kortens as well as the video recording, Mr. Hyman advised the Kortens to remove the audio portion of the recording because he believed it constituted inadmissible hearsay. The Kortens hired someone to remove the audio, and Mr. Hyman subsequently provided Mr. Sallas' attorney, Keith Alley, with a copy of the DVD from which the sound had been removed.
After viewing the DVD, Mr. Alley requested that Mr. Hyman provide a DVD with the original audio recording. Mr. Hyman refused, maintaining that the audio portion of the DVD was inadmissible. Mr. Alley filed a motion to compel and for sanctions, which was set for hearing on October 3, 2008. On September 22, 2008, Mr. Hyman and Mr. Alley ostensibly resolved the discovery dispute by telephone, and Mr. Alley forwarded a proposed order to Mr. Hyman for his signature two days later. In the letter accompanying the proposed order, Mr. Alley stated that he would proceed with his motion on October 3, 2008, unless Mr. Hyman returned a signed copy of the proposed order by October 2, 2008. Mr. Hyman failed to provide Mr. Alley with a signed copy prior to the hearing.
Mr. Alley attempted unsuccessfully to contact Mr. Hyman at his office on the morning of the hearing, and Mr. Alley appeared in court to argue his motion. Neither Mr. Hyman nor the Kortens, however, were present. When Mr. Hyman's assistant informed him that Mr. Alley was in court on the motion, Mr. Hyman immediately called Mr. Alley's office and spoke with Mr. Alley's assistant, Kimberly Gage. Mr. Hyman shouted at Ms. Gage repeatedly and threatened to report Mr. Alley to the Board. Mr. Hyman also spoke with Melanie Davis, an attorney in Mr. Alley's office, shouted at her throughout their conversation,and again threatened to report Mr. Alley to the Board.
As the hearing proceeded without Mr. Hyman, Mr. Alley informed the trial court of his conversation with Mr. Hyman the prior week. The trial court granted Mr....
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