Dockery v. Board of Professional Responsibility

937 S.W.2d 863, 1996 Tenn. LEXIS 646
CourtTennessee Supreme Court
DecidedOctober 14, 1996
StatusPublished
Cited by29 cases

This text of 937 S.W.2d 863 (Dockery v. Board of Professional Responsibility) is published on Counsel Stack Legal Research, covering Tennessee Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dockery v. Board of Professional Responsibility, 937 S.W.2d 863, 1996 Tenn. LEXIS 646 (Tenn. 1996).

Opinion

OPINION

BIRCH, Chief Justice.

Danny Kaye Dockery, Esquire, appeals the judgment of the Chancery Court of Shelby County suspending him from the practice of law for specified violations of the Code of Professional Responsibility committed in connection with his representation of Deborah Dalton. After a painstaking examination of the record and a thorough consideration of the issues presented, we find that the record fully supports the trial court’s judgment except as to the amount of money Dockery must pay Dalton as a prerequisite for reinstatement.

I

The record indicates that Dalton was injured in an automobile accident in September 1985. She received medical treatment at a Memphis hospital and consulted a local attorney to handle her claim. Soon thereafter, she moved to the state of Florida, where she obtained further medical treatment from Jerome M. Dolinsky, PA., D.C. Aso, she engaged E. Randall Beider, a Florida lawyer, to handle her claim for personal injury arising out of the automobile accident.

In December 1986, Dalton returned to Memphis, terminated her agreement with Beider, and retained Dockery to represent her in her claim. She agreed to pay Dockery a contingent fee of one-third of the proceeds remaining after payment of medical expenses. On March 17, 1987, Dockery, at Dolinsky’s request, agreed to withhold and remit Dolinsky’s fees from any recovery.

Evidently, Dockery negotiated Dalton’s claim to settlement. On November 17, 1987, the insurer issued its check in the amount of *864 $7,500 in full settlement of Dalton’s claim. 1 Dockery deposited this check into his escrow account on December 8,1987.

On December 9, 1987, Dockery issued a check to Dalton in the amount of $2,500. The check is inscribed “Full settlement to close Dalton v. Coffey.” Dockery did not inform Dolinsky of the settlement or that some of the proceeds remained in his escrow account. He did not remit any funds to Dolinsky at this point. Moreover, Dockery did not provide Dalton with an accounting or other statement showing how the funds received to her credit had been disbursed.

Dolinsky subsequently discovered that the case had been settled and funds disbursed. He waged an aggressive and persistent effort to collect his fee of $1,068 for medical services rendered. These efforts proved futile. On July 1, 1991, Dolinsky complained to the Board of Professional Responsibility that Dockery had not paid him. 2

Dolinsky’s complaint led to the initiation of formal disciplinary charges against Dockery. In a petition filed December 19, 1991, the Board of Professional Responsibility charged Dockery with violation of the following disciplinary rules:

DR 1-102(A)(1) (violating a disciplinary rule);
DR 1-102(A)(3) (engaging in illegal conduct involving moral turpitude);
DR 1-102(A)(4) (engaging in conduct involving dishonesty);
DR 1-102(A)(5) (engaging in conduct prejudicial to the administration of justice);
DR 1-102(A)(6) (engaging in conduct adversely reflecting on fitness to practice law);
DR 2-106(A) (collecting or charging excessive fee);
DR 6-101(A)(l) (handling legal matter not competent to handle);
DR 6-101(A)(2) (handling legal matter without adequate preparation);
DR 6-101(A)(3) (neglecting legal matter entrusted to lawyer);
DR 7-101(A)(l) (failing to act diligently and promptly);
DR 7-101(A)(2) (failing to keep client informed of status of case);
DR 7-101(A)(3) (failing to provide client with sufficient information to make informed decision);
DR 7-101(A)(4) (failing to comply with employment contract);
DR 7-102(A)(8) (knowingly engaging in illegal or unethical conduct);
DR 9-102(A) (failing to properly deposit client funds);
DR 9-102(B)(l) (failing to promptly notify client of the receipt of funds);
DR 9-102(B)(2) (failing to properly identify client funds);
DR 9-102(B)(3) (failing to properly maintain records of client funds); and DR 9-102(B)(4) (failing to promptly pay client).

II

The disciplinary proceeding progressed; it soon became apparent that a settlement could not be effected. Accordingly, a hearing panel was appointed pursuant to Rule 9, § 6.4, Rules of the Supreme Court of Tennessee. The record reflects that during the discovery process prior to the formal hearing before the disciplinary hearing panel, Dock-ery’s willful and persistent efforts to derail the process became a source of consummate frustration for the panel. Dockery seized every opportunity to thwart, stymie, and delay the orderly progress of the cause, and its procedural path is paved with Dockery’s un-kept promises and dilatory ploys. So egregious and blatant was Dockery’s resistance that counsel for the Board sought and received orders of sanction pursuant to Rule 37.02(A) and (B), Tennessee Rules of Civil Procedure. 3

*865 Sanctions notwithstanding, the hearing panel convened and took proof from several witnesses and from Dockery. His testimony, in the main, addressed matters more mitigating in nature, and he made no serious contest of the salient facts. In these circumstances, the facts upon which the violations were grounded stand virtually intact as alleged. The record reveals, nonetheless, that the panel extended to Dockery every modicum of “due process.” Perhaps the best example of this deference is found in the panel’s decision to permit Dockery to testify, thereby disregarding the sanctions previously requested and imposed.

After a full evidentiary hearing, the panel found that Dockery, indeed, had violated several sections of the Code of Professional Responsibility in connection with the Dalton matter. The panel’s findings and conclusions are quoted as follows:

It is the finding of the Panel that in numerous instances over an extended period Respondent eo-mingled entrusted funds with his personal funds, that he misapplied and misappropriated to his own use and benefit the funds entrusted to him. He failed to pay his client the amount she was owed and failed to maintain his records in a professional manner that would permit him to demonstrate what he had done with the settlement proceeds. The proof demonstrated a pattern by Respondent of mismanaging his escrow account, his escrow account records and using his escrow account for payment of personal and office expenses and showing no appreciation for the importance of maintaining his records accurately and doing this over an extended period of time.

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Bluebook (online)
937 S.W.2d 863, 1996 Tenn. LEXIS 646, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dockery-v-board-of-professional-responsibility-tenn-1996.