There is an old saying about how when your only tool is a hammer, then you treat everything as a nail. I’m not getting the vernacular 100% correct, but you get the gist.
That is the introduction for this post today because, as a lawyer who makes a living representing other lawyers (and obviously needs lawyers to realize they need to hire lawyers), it is often extremely easy to feel compelled to write about examples of situations where lawyer should not represent themselves.
Today is one of those days where I give in to temptation. But, not completely, because today’s post is not just about a lawyer who likely would have done better not proceeding pro se but also demonstrates a way that, at least in Tennessee, the whole disciplinary process is still one involving various decks that can readily be stacked against you.
This story revolves around a Tennessee lawyer who is now suspended from practice for three years. One year of active suspension and two years of probation where the lawyer will be permitted to return to practice but subject to certain conditions.
This is not a post that is trying to stake out a position that the lawyer in question isn’t rightly going to be on the sidelines for a while. I know nothing about the case that isn’t in the order issued by the Tennessee Supreme Court. The opinion details deficiencies in how the lawyer handled at least four separate client matters involving deficient advice, deficient paperwork, deficient communications, blowing important deadlines, and settling malpractice claims against him without complying with RPC 1.8. But for today’s purposes, the contents of the opinion are enough for me to make my two points.
Point one. Lawyer should have hired a lawyer.
Point two. The procedural process that plays out in Tennessee offers way too many opportunities to the prosecution to have multiple bites at the apple.
Ready? Here we go.
Point one is a bit easy. Not res ipsa easy exactly but a sweat does not have to be broken. At the outset the lawyer originally did not respond to the first two petitions filed against him and had default judgments entered against him on those. The Tennessee Supreme Court opinion offers insight into how what it perceived as indifference in the handling of his own case also shaded how it viewed the allegations of the clients as well as what sort of punishment was needed:
Mr. Crabtree also exhibited a pattern of disregarding or neglecting court orders in this proceeding and in the representation of his clients. For example, Mrs. Kyker’s claim was dismissed in part because Mr. Crabtree failed to comply with two court orders. Additionally, beginning in the trial court and continuing in this Court, Mr. Crabtree failed to comply with filing and briefing deadlines, resulting in both the trial court and this Court dismissing his appeals. Even after this Court entered an order notifying him that it proposed to increase his sanction and after he requested and received an extension of the briefing deadline in this Court, Mr. Crabtree simply failed to file a brief or a motion requesting an additional extension of time. He chose to do nothing at all, consistent with the pattern of misconduct he exhibited in representing his former clients.
Mr. Crabtree’s apathetic and unconcerned attitude toward his professional ethical obligations and this serious proceeding is inexplicable….
Point two takes more effort to explain but is still pretty straightforward. I’ve written here before about the fact that, while relatively rare, the Tennessee Supreme Court has, and has exercised, its power to blow up otherwise completed disciplinary outcomes if it concludes that the punishment that was levied was not appropriate.
Sometimes it does so when a settlement has been reached between the disciplinary entity and the respondent lawyer. Sometimes it does so even when the matter has been adjudicated but neither side has appealed.
This is closer to one of the latter instances as the BPR did not appeal the original ruling, which was that the lawyer be suspended for two years with 6 months of active suspension. The lawyer did but as explained above the appeal was dismissed by the Tennessee Supreme Court for procedural deficiencies.
The Court did not think that punishment seemed appropriate, so even after dismissing his appeal it exercised its power to review the matter. What demonstrates the deck-stacking nature of the process (in addition to the simple fact that even if the BPR doesn’t appeal and the Court goes to the trouble of dismissing the lawyer’s appeal the case still isn’t over if the Court is unsatisfied with the outcome) is that the BPR then engaged in those proceedings by now arguing that — even though it wasn’t willing to appeal the original ruling — it did think the punishment should be more significant. It now argued that the lawyer should be suspended for four years instead of two, with one year of active suspension.
There is a level at which it is easy to say “it is what it is” at that point. There is no law or rule that prevents the BPR from doing that kind of pile on, but it is a consummate example of a moment in time (admittedly a moment preceded by many earlier moments) when the respondent lawyer could really use an independent advocate to marshal arguments in opposition.
Now, ultimately, the BPR did not get the full amount of discipline for which it argued. The Court did increase the active suspension period to one year, but only increased the overall suspension period to three years rather than four. Thus, it is impossible to say that representation, if only limited to the proceedings initiated by the Court, would have made much difference.
But my first point was not that the lawyer was okay being self-represented until the Court reached down and injected itself into the process. The lawyer would have been much better off with counsel from the jump.