State ex rel. Turner v. Denman

• Decision Date: 12 December 1952
• Parties: STATE ex rel. TURNER et al. v. DENMAN et al. 36 Tenn.App. 613, 259 S.W.2d 891
• Court: Tennessee Court of Appeals

Page 891

259 S.W.2d 891

STATE ex rel. TURNER et al. v. DENMAN et al.

36 Tenn.App. 613, 259 S.W.2d 891

Court of Appeals of Tennessee, Middle Section.

Dec. 12, 1952.

Certiorari Denied by Supreme Court June 5, 1953.

[36 TENNAPP 614] Frank N. Bratton, Athens, and James F. Corn, Cleveland, for appellants.

E. B. Baker, Chattanooga, for Dan Massey. Harry Burke, Chattanooga, for Steven C. Stone, and Robert L. Denman, Chattanooga, pro se.

HICKERSON, Judge.

The bill was filed on behalf of the Chattanooga Bar Association by and through its Grievance Committee to disbar Robert L. Denman, Dan Massey, and Steven C. Stone from practicing law and to enjoin Ralph Gunn, a layman in the legal field, from soliciting legal business for lawyers.

[36 TENNAPP 615] Complainants charged in their bill that defendants had been guilty of unprofessional conduct in the following particulars: (1) Soliciting business; (2) Mr. Denman and Mr. Massey, partners, representing opposing sides in the same controversy; (3) Dan Massey and Steven C. Stone trying, by threats, to prevent complainants from interviewing witnesses in the case on trial; (4) Mr. Stone made false statements to an opposing Attorney relating to legal matters in which they were interested; (5) The three defendants followed a pattern of unethical conduct which showed that they did not have the proper conception of the correct conduct of a lawyer; and (6) Defendant Gunn was engaged in soliciting legal business for Denman, Massey, and Stone.

Various specific cases of alleged unethical conduct were stated in the bill.

The three partners, Denman, Massey, and Stone, filed separate answers in which they denied all the material allegations of the bill.

Upon a full hearing on oral testimony, depositions, and exhibits, the Chancellor: (1) Acquitted Robert L. Denman of all unethical conduct; (2) Found Dan Massey guilty of certain unethical conduct and reprimanded him; (3) Found Steven C. Stone guilty of interfering with complainants in an effort to interview a witness in the case on trial and reprimanded him; and (4) Entered no decree against Ralph Gunn.

To review that decree, complainants appealed to this Court. Defendants did not appeal.

The law which governs the issues made by the pleadings is settled beyond controversy in this jurisdiction: (1) By statute, Tennessee Code Sections 9974 and 9975; (2) By the Canons of Professional and Judicial Ethics of the American Bar Association, Appendix, 29 Tenn.App. [36 TENNAPP 616] 839, Rule 38 of the Supreme Court and Rule 31 of the Court of Appeals; and by judicial decision of this court, Schoolfield v. Bean, 26 Tenn.App. 30, 167 S.W.2d 359; Memphis & Shelby County Bar Association v. Aspero, 35 Tenn.App. 9, 242 S.W.2d 319.

Code Section 9974 provides:

'Any attorney, solicitor or counselor at law admitted to practice in the courts of the state may be disbarred or suspended from the practice of law----

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'(2) Who shall seek out any person having a claim for personal injury, or having any other ground of action, in order to obtain employment by such claimant, or shall employ agents or runners for like purposes, or pay or reward directly or indirectly, those who bring, or influence the bringing, of such cases to him or his office.

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'(5) Who shall be guilty of any unprofessional conduct, dishonesty, malpractice, or any conduct which renders him unfit to be a member of the bar.' Code Section 9975 provides:

'Punishment.--In cases arising under the first subdivision of the preceding section, the judgment of the court must be that the name of the attorney shall be stricken from the roll of attorneys, solicitors and counselors, and that he be excluded from practicing as such attorney or counselor in all the courts of this state; and, upon conviction, in cases under other subdivisions of the preceding section, the judgment shall be permanent or temporary deprivation of the right to practice law, or a censure or reprimand, according to the gravity of the offense.'

[36 TENNAPP 617] The Canons of Professional Ethics provides:

Section 27. 'It is unprofessional to solicit professional employment by circulars, advertisements, through touters or by personal communications or interviews not warranted by personal relations. Indirect advertisements for professional employment such as furnishing or inspiring newspaper comments, or procuring his photograph to be published in connection with causes in which the lawyer has been or is engaged or concerning the manner of their conduct, the magnitude of the interest involved, the importance of the lawyer's position, and all other like self-laudation, offend the traditions and lower the tone of our profession and are reprehensible; but the customary use of simple professional cards is not improper.'

Section 28. 'It is unprofessional for a lawyer to volunteer advice to bring a lawsuit, except in rare cases where ties of blood, relationship or trust make it his duty to do so. Stirring up strife and litigation is not only unprofessional, but it is indictable at common law. It is disreputable to hunt up defects in titles or other causes of action and inform thereof in order to be employed to bring suit or collect judgment, or to breed litigation by seeking out those with claims for personal injuries or those having any other grounds of action in order to secure them as clients or to employ agents or runners for like purposes, or to pay or reward, directly or indirectly, those who bring or influence the bringing of such cases to his office, or to remunerate policemen, court or prison officials, physicians, hospital attaches or others who may succeed, under the guise of giving [36 TENNAPP 618] disinterested friendly advice in influencing the criminal, the sick and the injured, the ignorant or others, to seek his professional services. A duty to the public and to the profession devolves upon every member of the Bar having knowledge of such practices upon the part of any practitioner immediately to inform thereof, to the end that the offender may be disbarred.'

Section 29. 'Lawyers should expose without fear or favor before the proper tribunals corrupt or dishonest conduct in the profession, and should accept without hesitation employment against a member of the Bar was has wronged his client. The counsel upon the trial of a cause in which perjury has been committed owe it to the profession and to the public to bring the matter to the knowledge of the prosecuting authorities. The lawyer should aid in guarding the Bar against the admission to the profession of candidates unfit or unqualified because deficient in either moral character or education. He should strive at all times to uphold the honor and to maintain the dignity of the profession and to improve not only the law but the administration of justice.'

Section 39. 'A lawyer may properly interview any witness or prospective witness for the opposing side in any civil or criminal action without the consent of opposing counsel or party. In doing so, however, he should scrupulously avoid any suggestion calculated to induce the witness to suppress or deviate from the truth, or in any degree to affect his free and untrammeled conduct when appearing at the trial or on the witness stand.'

In Schoolfield v. Bean, 26 Tenn.App. 30, 167 S.W.2d 359, 369, this court held:

[36 TENNAPP 619] 'We therefore hold that we have the right to review the action of the trial court to determine whether he exercised a reasonable discretion, or whether he abused his discretion, in suspending the defendants from the right to practice law for one year.'

In Memphis & Shelby County Bar Association v. Aspero, 35 Tenn.App. 9, 242 S.W.2d 319, 330, this rule is stated:

'The Chancellor, after finding the respondent guilty of this charge, fixed her punishment at a reprimand. The case is being tried in this Court de novo, and it is our duty to review, not only the findings of fact, but also the punishment imposed, since, if the Chancellor abused his discretion with regard to punishment, it is our duty to impose such punishment as should have been imposed below.'

We shall apply these rules to the facts shown by the evidence in disposing of the questions made by the assignments of error.

The preponderance of the evidence clearly sustains the findings of the Chancellor wherein he held that Robert L. Denman, Dan Massey, and Steven C. Stone were not guilty of certain unethical practices charged in the bill; and we concur in such conclusions of fact.

The evidence does not justify a decree of disbarment, reprimand, or censure of Robert L. Denman. The Chancellor correctly acquitted him of all charges of wrong-doing.

The Chancellor disposed of the charges against defendant Ralph Gunn in these words:

'It does not appear that this defendant rendered any material assistance in the practice of law. I feel, therefore, that the only additional advice is that he [36 TENNAPP 620] be admonished to stick more closely to the Bible and pulpit in a continued effort to improve humanity.'

The final decree provides:

'The court does not find it necessary to make any order concerning Ralph Gunn, who was absent during most of the trial.'

Relating to Dan Massey the final decree states:

'The court is of the opinion and so finds that the greater weight of the evidence shows that Dan Massey has violated the Canons of Professional Ethics and law as charged in the petitions in his conduct in the Fawbush case, in his treatment of a witness in the Penny case, in his admitted conduct in the Burleson case, in his conduct at the viaduct and in the treatment of liability insurance companies and their investigators.

'In view of the number of charges made and the voluntary failure of the plaintiff to introduce any proof concerning about one-half of them, the testimony of the character witnesses and other circumstances, I deem a reprimand and censure as provided by law sufficient punishment. It is therefore, ordered,...