In re Crabtree, M2022-00339-SC-BAR-BP

CourtSupreme Court of Tennessee
Writing for the CourtROGER A. PAGE, CHIEF JUSTICE
PartiesIN RE: JOSEPH H. CRABTREE, JR., BPR #011451
Docket NumberM2022-00339-SC-BAR-BP
Decision Date22 November 2022

IN RE: JOSEPH H. CRABTREE, JR., BPR #011451

No. M2022-00339-SC-BAR-BP

Supreme Court of Tennessee, Nashville

November 22, 2022


Assigned on Briefs June 28, 2022

This is an attorney discipline proceeding concerning Tennessee attorney Joseph H. Crabtree, Jr. and his representation of several clients with varying legal issues. The Board of Professional Responsibility ("the Board") filed formal petitions for discipline against Mr. Crabtree in February 2019. A Hearing Panel of the Board ("Hearing Panel") adjudicated the petitions and rendered a judgment suspending Mr. Crabtree for two years and ordering him to serve six months as active suspension and the remainder on probation. It also directed Mr. Crabtree to pay restitution to two clients, to reimburse one client for any costs assessed against her upon the dismissal of her case, and to reimburse the Tennessee Lawyers Fund for Client Protection ("TLFCP") for any money it pays to the complainants in this matter. Mr. Crabtree failed to perfect an appeal from the Hearing Panel's decision, and the Board petitioned this Court for an order enforcing the Hearing Panel's judgment. Pursuant to Tennessee Supreme Court Rule 9, sections 15.4(d) and (e), we determined that the punishment imposed by the Hearing Panel appeared inadequate. Thus, we proposed to increase it. Based on our careful consideration of the entire record, "with a view to attaining uniformity of punishment throughout the State and appropriateness of punishment under the circumstances of each particular case," we modify the judgment of the Hearing Panel to impose a three-year suspension, with one year served as active suspension and the remainder on probation. Tenn. Sup. Ct. R. 9, § 15.4(b), (d). During the first year of the probationary period, Mr. Crabtree shall engage a practice monitor at his own expense to supervise his compliance with trust account rules and office management procedures in accordance with Tennessee Supreme Court Rule 9, section 12.9. Finally, as a condition of reinstatement, Mr. Crabtree shall complete twelve hours of continuing legal education ("CLE"), with six hours focused on ethics and six hours on law office management, in addition to the annual fifteen-hour CLE requirement. In all other respects, including payment of restitution to his clients and reimbursement to TLFCP, the decision of the Hearing Panel is affirmed.

Tenn. Sup. Ct. R. 9, § 15.4; Judgment of the Hearing Panel Modified in Part; Affirmed in Part.

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

Joseph H. Crabtree, Jr., Athens, Tennessee, Respondent, pro se.

ROGER A. PAGE, C.J., delivered the opinion of the court, in which SHARON G. LEE, JEFFREY S. BIVINS, HOLLY KIRBY and SARAH K. CAMPBELL, JI, joined.

OPINION

ROGER A. PAGE, CHIEF JUSTICE

I. Factual &Procedural History

This matter involves an attorney disciplinary proceeding governed by Tennessee Supreme Court Rule 9. In 2019 and 2020, the Board of Professional Responsibility filed three petitions for discipline (initial, supplemental, and second supplemental) against attorney Joseph H. Crabtree, Jr. of Athens, Tennessee. Mr. Crabtree has been licensed to practice law in Tennessee since 1985. The petitions alleged violations of the Tennessee Rules of Professional Conduct ("RPC") based on four complaints from Mr. Crabtree's former clients: Jerry Wilson, Cynthia and Stephen Kyker, Crystal Velez, and Vickie Haberbosch. The Wilson, Kyker, and Velez complaints were included in the initial and supplemental petitions for discipline. After Mr. Crabtree failed to file answers to the petitions, the court entered default judgments against him and deemed admitted the allegations of the initial and supplemental petitions. Mr. Crabtree filed an answer to the second supplemental petition, which contained the Haberbosch complaint. As a result, a disciplinary hearing was convened both to adjudicate Ms. Haberbosch's complaint and to determine an appropriate sanction for the allegations of the initial and supplemental petitions, which included the Wilson, Kyker, and Velez complaints.

The disciplinary hearing convened via Zoom on January 13, 2021. Three witnesses testified: Ms. Haberbosch, Mrs. Kyker, and Mr. Crabtree. The following is a summary of the facts deemed admitted by the default judgments against Mr. Crabtree and the proof presented at the disciplinary hearing.

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Wilson Complaint

In January 2017, Mr. Wilson retained Mr. Crabtree to provide legal advice about a workers' compensation settlement that Mr. Wilson agreed upon with his employer's counsel. Mr. Wilson asked Mr. Crabtree to review the agreement because his employer's counsel deducted social security from the agreed upon settlement amount. Mr. Crabtree advised Mr. Wilson that the social security offsets were inappropriate and claimed that he could help Mr. Wilson obtain a greater settlement. Because of that assurance, Mr. Wilson agreed to retain Mr. Crabtree to represent him. However, when Mr. Crabtree corresponded with the employer's counsel, he learned that his advice to Mr. Wilson was erroneous because legal precedent authorized social security offsets against the proposed settlement amount. Mr. Crabtree failed to inform Mr. Wilson that his advice was erroneous and also failed to finalize the settlement agreement with employer's counsel. Mr. Wilson attempted to contact Mr. Crabtree several times regarding the status of the claim. Mr. Crabtree failed to timely respond or otherwise communicate with Mr. Wilson, ultimately allowing the statute of limitations to expire on the claim. He excused his behavior by stating that a new workers' compensation law came into effect while the case was pending, causing him to miss some deadlines.

In July 2018, Mr. Wilson sued Mr. Crabtree for legal malpractice. Mr. Crabtree negotiated a settlement of the malpractice claim with Mr. Wilson. Mr. Crabtree did this without advising Mr. Wilson to seek advice from independent legal counsel before settling the malpractice claim. In September 2018, Mr. Crabtree presented Mr. Wilson with two forms: "Release of All Claims and Indemnity Agreement" and "Agreed Order of Dismissal with Prejudice." Once again, he failed to advise Mr. Wilson in writing to seek the advice of independent legal counsel before executing the settlement documents. Mr. Wilson executed the documents and in exchange received $8,638.27 as a settlement from Mr. Crabtree. At the disciplinary hearing, Mr. Crabtree stated that Mr. Wilson was "made whole" by the settlement.

Kyker Complaint

In November 2012, Mrs. Kyker and her husband retained Mr. Crabtree to represent them in a lawsuit seeking damages for personal injuries and loss of consortium. The claim involved Mrs. Kyker's injuries allegedly sustained in a laser hair removal procedure. In January 2013, Mr. Crabtree sent pre-suit notice to one of the defendants, the clinic's licensed physician assistant ("PA"), but the notice only mentioned Mrs. Kyker as a plaintiff

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and failed to list Mr. Kyker. In March 2013, Mr. Crabtree filed suit on behalf of both Mr. and Mrs. Kyker against the PA and the other defendants who were involved with the procedure and the clinic.

The case remained pending for several years. During that time, Mr. Crabtree filed several pleadings for the Kykers. In July 2017, Mr. Crabtree filed a response to a motion for summary judgment and a motion for a trial date and a scheduling order. In July 2018, Mr. Crabtree filed an agreed scheduling order for the disclosure of all expert witnesses. In August 2018, after consulting Mrs. Kyker and obtaining her approval, Mr. Crabtree filed a response declining a settlement offer.

Though Mr. Crabtree sporadically worked on the case, Mrs. Kyker described having difficulty communicating and meeting with him. She testified that, on more than one occasion, several months passed with no communication from him at all. On February 12, 2019, seven years after initiating the lawsuit, Mrs. Kyker sent Mr. Crabtree a certified letter in an attempt to establish communication. Days later, Mrs. Kyker visited the trial court clerk's office to inquire about the status of the case and get copies of her records. During this visit, she learned several updates about her case for the first time. In March 2014, the trial court dismissed Mr. Kyker's loss of consortium claim for failure to comply with statutory pre-suit notice requirements, and granted the PA's motion for discretionary costs. This dismissal was due to Mr. Crabtree's failure to add Mr. Kyker as a plaintiff on the presuit notice sent to the PA in 2013. Tenn. Code Ann. § 29-26-121(a)(1) (2012). In December 2018, the trial court entered an order granting the defendants' joint motion to dismiss Mrs. Kyker's case without prejudice because Mr. Crabtree failed to file any opposition to the motion to dismiss, failed to comply with two court orders, and failed to prosecute the case. In the spring of 2019, the trial court entered two orders granting a motion to assess the discretionary costs of one of the defendants against both plaintiffs: $2,629.42 against Mrs. Kyker and $2,260.42 against Mr. Kyker. Mr. Crabtree failed to file a response to either motion and did not notify his clients of the debts against them. Finally, Mrs. Kyker testified that a treating physician paid her $3,730.00 to release him from the case. After Mr. Crabtree received the money, he placed it into a trust account, but he never disbursed the funds to Mrs. Kyker.

In Mr. Crabtree's testimony, he acknowledged that Mr. and Mrs. Kyker likely had difficulty reaching him. He described having difficulty scheduling depositions because the case involved so many parties and lawyers and the parties were hard to reach. However, in his testimony, Mr. Crabtree stated: "I, frankly, dropped the ball. I'm not going to try to

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say that anything was justified or...

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