Mabry v. The Bd. of Prof'l Responsibility of the Tenn. Supreme Court
| Docket Number | E2022-00945-SC-R3-BP |
| Decision Date | 25 January 2024 |
| Parties | THOMAS FLEMING MABRY v. THE BOARD OF PROFESSIONAL RESPONSIBILITY OF THE TENNESSEE SUPREME COURT |
| Court | Tennessee Supreme Court |
Assigned on Briefs September 6, 2023
Direct Appeal from the Chancery Court Chancery Court for Knox County No. 202551-2 William B. Acree, Senior Judge
This is an appeal in a lawyer-disciplinary proceeding involving Tennessee attorney Thomas Fleming Mabry. In March 2019, the Board of Professional Responsibility filed a petition for discipline against Mr. Mabry charging him with numerous infractions based on complaints from several different parties. After the onset of the COVID-19 pandemic, Mr. Mabry refused to participate in depositions, either in-person telephonically, or over videoconference. At his final disciplinary hearing conducted via Zoom, Mr. Mabry briefly connected, by audio only, and objected to holding the hearing virtually and to the Board introducing depositions of unavailable witnesses. He requested an indefinite continuance. He ended the connection. The hearing continued without Mr. Mabry's participation, and the Hearing Panel found him in violation of multiple Tennessee Rules of Professional Conduct. The panel permanently disbarred Mr Mabry and ordered him to make restitution. Mr. Mabry appealed to the chancery court claiming several procedural violations but the chancery court found no merit in his arguments. Mr. Mabry has now filed a direct appeal to this Court, raising the same procedural challenges. Upon review, we agree with the judgments of the Hearing Panel and chancery court-disbarment is the appropriate sanction for Mr. Mabry's actions.
Tenn. Sup. Ct. R. 9, § 33.1(d); Judgment of the Chancery Court Affirmed.
Thomas Fleming Mabry, Asheville, NC, pro se.
James W. Milam, Brentwood, Tennessee, for the appellee, Board of Professional Responsibility.
ROGER A. PAGE, J., delivered the opinion of the court, in which HOLLY KIRBY, C.J., and JEFFREY S. BIVINS, SARAH K. CAMPBELL, and DWIGHT E. TARWATER, JJ., joined.
In March 2019, the Board of Professional Responsibility ("the Board") filed a petition for discipline against Thomas Fleming Mabry.[1] The incidents at issue in the present disciplinary matter involve four clients. In October 2014, Mr. Mabry prepared a will for a now deceased North Carolina resident, Kenneth McKeon. Mr. Mabry was not, and apparently has never been, licensed to practice law in North Carolina. Mr. McKeon sold a property in exchange for a promissory note in the amount of $28,000. The buyer made payments directly to Mr. McKeon until his death in November 2014. Mr. Mabry wrote a check for $344.50 to the county clerk as payment for court costs related to probate of the estate. The check returned unpaid because it was drawn on a closed IOLTA account. The proceeds of the promissory note were bequeathed to Linda Russell. Mr. Mabry directed the buyer to send all her payments to his office so he could send the payments to Ms. Russell. Mr. Mabry received the payments but did not forward them to Ms. Russell. From May 2015 to August 2016, the buyer sent payments of $500 per month to Mr. Mabry totaling $8,000. The buyer then began sending the payments directly to Ms. Russell.
Around January and November 2015, while suspended in Tennessee and not licensed in North Carolina, Mr. Mabry held himself out as a licensed attorney to another North Carolina resident, Ronda Ingraham. Ms. Ingraham retained Mr. Mabry to prepare her will and represent her in the termination of a domestic partnership. He prepared legal documents and negotiated with opposing counsel. Ms. Ingraham paid a total of $5,175 in legal fees. He did not refund any of the money.
Mr. Mabry also billed another client for services he did not provide and failed to deposit funds into his IOLTA account. He continued representing that particular client even after he was suspended and did not inform the judge of his suspension for several months. He represented other clients in a foreclosure sale after the clients sold their property and the buyer defaulted on the loan. The IRS recorded a lien on the property. His clients did not discover the IRS lien until they attempted to sell the property again. He continued billing the clients during his period of suspension.
In January 2020, Board Disciplinary Counsel Travis M. Lampley sent Mr. Mabry an email stating that he would be filing a motion to continue a scheduled hearing for later that month because a witness would be unavailable on the scheduled date and a continuance would give the parties more time to attempt to resolve the issues out of court. Mr. Mabry responded, stating that he had "[n]o objection to this Motion, so long as no more witnesses nor discovery be allowed to be filed and/or presented at the future hearing other than those witnesses and that discovery which has been previously submitted." According to the record, Mr. Lampley never responded to Mr. Mabry's email.[2] Mr. Lampley filed the motion to continue, and the next day the Hearing Panel held a telephonic status conference, at which they heard arguments from Mr. Lampley and Mr. Mabry. The Panel granted the motion and reset the hearing for March 11, 2020. The conditions Mr. Mabry requested were not included in the order. The hearing was again rescheduled from March 11, 2020, to April 27 and 28, 2020.
By this time, the pandemic necessitated "stay-at-home" orders.[3] The Tennessee Supreme Court Order Suspending In-Person Court Proceedings was extended over the following year, which allowed courts to conduct hearings and trials over online videoconferencing platforms. Order Suspending In-Person Court Proceedings, In re: COVID-19 Pandemic, No. ADM2020-00428 (Tenn. Mar. 13, 2020) (declaring a state of emergency and urging "all judges and court clerks . . . to limit in-person courtroom contact as much as possible by utilizing available technologies, including alternative means of filing, teleconferencing, email, and video conferencing"). In April 2020, the Hearing Panel ruled, over Mr. Mabry's objection, that the Board could present the testimony of unavailable witnesses by deposition as long as the Board complied with Tennessee Rule of Civil Procedure 32.01(3).[4] The Hearing Panel agreed to address the matter "anew" in the event that Mr. Mabry presented evidence of an agreement between himself and Mr. Lampley by an appropriate motion.
In May 2020, Disciplinary Counsel Joseph K. Byrd began representing the Board, replacing Mr. Lampley. Mr. Byrd filed a motion for leave to depose complainants Ronda Ingraham and Linda Russell because they lived more than 100 miles from the hearing, which was to take place in Knoxville. The Board sought to depose Ms. Ingraham by phone because she resided in Maryland. The Board asked for leave to travel to Georgia to depose Ms. Russell in person. Mr. Mabry objected, citing the alleged agreement between himself and Mr. Lampley. In his brief on appeal, Mr. Mabry claimed that he "never received the Notice of the taking of deposition of Linda Russell by mail and the emailed Notice of Deposition . . . went to spam...." He also filed a motion for a continuance, stating that he was sixty-five years old, at higher risk for COVID-19, and could not and would not "enter the home or [] any physical proximity of any witness who may or may not have been tested for COVID-19." He stated that requiring him to participate would violate the Tennessee Supreme Court's order regarding the pandemic, which charged judges with the "responsibility of ensuring that core constitutional functions and rights are protected."[5]
The Board objected to Mr. Mabry's request for an indefinite continuance, arguing that this reliance on the Court's May 2020 order regarding the pandemic was "misplaced" because the order actually encouraged courts to use remote-conferencing technology to prevent in-person contact. In addition, the Board pointed out that Mr. Lampley never responded to Mr. Mabry's conditions, that Mr. Lampley submitted an affidavit denying that he reached an agreement with Mr. Mabry, that the Hearing Panel had already authorized the Board to present testimony of unavailable witnesses by deposition, and that Mr. Mabry failed to timely object[6] to the Second Scheduling Order. By an order filed on August 11, 2020, the Hearing Panel continued the hearing until September 29, 2020, to be conducted telephonically, and it instructed the Board to provide Mr. Mabry with a means to participate in the depositions by Zoom, telephone, or some other platform if he did not wish to participate in person.
Later in August 2020, Mr. Byrd filed two notices of deposition stating that he would be deposing Ms. Ingraham by telephone and Ms. Russell in person in Atlanta. Mr. Mabry responded that he would not participate in the depositions and would "not be available for any deposition or other matter until the Hearing Panel telephone conference on September 29, 2020," and would object to admission of the deposition notices. He filed an objection and a motion to set a scheduling conference, claiming to be unavailable "for the remainder of August [and] much of the month of September 2020" due to "previous work commitments scheduled for the time and date of the depositions and into the future." He did not provide specific information concerning those commitments, and he asserted that the emailed notice was "an unreasonable request to take discovery depositions in contravention of the letter, intent and spirit of the January, 2020 agreement" between himself and Mr. Lampley. In an order filed August 25, 2020, the Hearing Panel ruled that the Board's actions were authorized by the August 10 o...
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