Speaking again of rarer occurrences

Last week I dedicated a post to highlighting some topics of note that I hadn’t written about in a while.  This is another such post as the Tennessee Supreme Court has again taken action on its own initiative to increase discipline against an attorney beyond a result that both the accused attorney and the prosecuting entity had decided not to even appeal.  I previously wrote about such an occurrence back in April 2015.

Any time it happens it’s an interesting outcome because for lawyers in such proceedings, and the lawyers who represent them, the possibility always looms in the background when handling a matter but does not frequently occur.  As the opinion explains, Tenn. Sup. Ct. R. 9, § 15.4 imposes a duty on the Court even if no one has appealed to “review the recommended punishment provided in such judgment or settlement with a view to attaining uniformity of punishment throughout the State and appropriateness of punishment under the circumstances of each particular case.”

This more recent instance has occurred to a Nashville criminal defense lawyer by the name of Paul Walwyn and you can read the full ruling here.

The nature of case against the lawyer reads in a pretty straightforward manner:

This case arose from Mr. Walwyn’s representation of Jonathan Gutierrez in a first degree murder trial in 2011. At the time, Mr. Walwyn had been licensed to practice law since 1996 and had been practicing criminal law for fifteen to sixteen years. Following
Mr. Gutierrez’s convictions for first degree murder and four counts of aggravated assault, he was sentenced to life in prison and four consecutive four-year sentences, for a total effective sentence of life plus sixteen years. Mr. Walwyn filed a motion for new trial,
which was subsequently denied on September 30, 2011. However, Mr. Walwyn did not file a notice of appeal in Mr. Gutierrez’s case until May 8, 2015, even though the Tennessee Rules of Appellate Procedure require that a notice of appeal be filed within
thirty days.  The trial court appointed new counsel, Mr. Richard Strong, on June 3, 2015.  The Tennessee Court of Criminal Appeals subsequently accepted the late-filed notice of appeal in the interest of justice. See Tenn. R. App. P. 4(a).

The opinion reveals there were some factual wrinkles, including questions about how (in)frequent communication with the client was during the delay in noticing the appeal and that a TV interview the lawyer provided after trial meant he shouldn’t handle the appeal, but the primary focus of the disciplinary matter was on the 3 1/2 year delay in filing a notice of appeal.

Originally the hearing panel imposed a one-year suspension with all of the time served on probation rather than active suspension.  While that used to be an acceptable framework in Tennessee, the rules changed within the last few years and, now, if an attorney is to be suspended they must have an active period of suspension of no fewer than 30 days.  Because the hearing panel managed to overlook the rule changes, disciplinary counsel filed a motion to have the judgment altered to comply with the rules.  In response, the hearing panel altered the punishment not by imposing 30 days of active suspension but by reducing the punishment to a public censure along with certain conditions, including a practice monitor.  Thereafter, Mr. Walwyn (not surprisingly) did not appeal and neither did disciplinary counsel (surprisingly).

The Court exercised its Section 15.4 obligation to review, however, and indicated it would consider increasing the punishment.  After that point, the Board – which is allowed a second bite at the apple in such a situation – did begin to advocate to the Court that Mr. Walwyn should be suspended.  The Court agreed and imposed a 12-month suspension with 6 months of active suspension and 6 months on probation with a practice monitor as well as imposing some additional CLE requirements as the final sanction.

In the end, the driving force was the fact that the attorney had previously been disciplined several times for very similar conduct.

Prior to this disciplinary hearing, Mr. Walwyn had been disciplined on five separate occasions. In 2003, he received a private reprimand for failing to file a proposed order for four years. In 2004, he received a public censure for filing a proposed order late
in a child support and custody case, filing a notice of appeal in a criminal case five days late, filing an appellate brief sixty days late, and failing to file a timely petition to this Court, resulting in the petition being denied as untimely. In 2006, he received a public
censure for failing to timely respond to Disciplinary Counsel. As a condition of his guilty plea, Mr. Walwyn was required to undergo a law practice management evaluation by another attorney; audit the law practice management course at the Nashville School of
Law; and complete six additional hours of CLE hours on subjects related to client relations, the management of a law practice, the Rules of Professional Conduct, or disciplinary actions of the Board of Professional Responsibility. In 2006, Mr. Walwyn received a private informal admonition for neglecting to have a default judgment set aside and for failing to provide an affidavit to Disciplinary Counsel. Finally, in December 2015, Mr. Walwyn was suspended from the practice of law for six months, with thirty days to be served on active suspension and five months to be served on
probation. See Walwyn v. Bd. of Prof’l Resp., 481 S.W.3d 151, 161-62, 171 (Tenn.2015). Mr. Walwyn was still completing this probation at the time of his disciplinary hearing in this case.

Loyal readers of this blog (or at least those with eidetic memories) will recall that December 2015 suspension of Mr. Walwyn as being the case in which his lawyer articulated the “rambling and bordering on incoherent” attack on the structure of the disciplinary system in Tennessee.  (That same lawyer represented Mr. Walwyn in this matter as well.)

Finally, having received a bit of feedback from a fellow ethics nerd as a comment on my post about my perceived delay in a California disciplinary case last week, I also want to mention that this case also shows some of my perspective as to timing.  A review of this latest Walwyn matter will show that the time between the filing of the formal petition for discipline and this ultimate outcome from the Tennessee Supreme Court, even with all of the added procedural hurdles involved, was just under 2 years.

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