IN THE SUPREME COURT OF TENNESSEE
AT JACKSON
November 5, 2009 Session
TIMOTHY DARNELL FLOWERS v. BOARD OF PROFESSIONAL
RESPONSIBILITY
Direct Appeal from the Chancery Court for Shelby County
No. CH-07-1953-3 Donald P. Harris, Senior Judge
No. W2008-02648-SC-R3-CV - June 4, 2010
This appeal involves a disciplinary proceeding against a Memphis lawyer whose practice
focuses on immigration law. Following a hearing, one of the Board of Professional
Responsibility’s hearing panels unanimously determined that the lawyer should be suspended
from the practice of law for one year and should be required to make restitution to three
clients. The lawyer sought judicial review of the hearing panel’s suspension of his license.
Based on the record of the proceedings before the hearing panel, the Chancery Court for
Shelby County determined that twenty-three of the twenty-six courses of conduct found by
the hearing panel to violate the Rules of Professional Conduct were supported by substantial
and material evidence and that the evidence supported the hearing panel’s reliance on seven
aggravating factors. Accordingly, the trial court determined that the suspension of the
lawyer’s license for one year was supported by the ABA Standards for Imposing Lawyer
Sanctions (2005) and was not arbitrary and capricious. The lawyer appealed to this Court.
We affirm the suspension of the lawyer’s license to practice law for one year and the order
directing him to make restitution to three of his clients.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court
Affirmed in Part and Vacated in Part
W ILLIAM C. K OCH, J R., J., delivered the opinion of the Court, in which J ANICE M. H OLDER,
C.J., C ORNELIA A. C LARK, G ARY R. W ADE, and S HARON G. L EE, JJ., joined.
Samuel J. Muldavin, Memphis, Tennessee, for the appellant, Timothy Darnell Flowers.
Krisann Hodges, Disciplinary Counsel, Nashville, Tennessee, for the appellee, Board of
Professional Responsibility.
OPINION
I.
Timothy Darnell Flowers has been licensed to practice law in Tennessee since 1999.
He has practiced mainly as a sole practitioner and has focused his practice on immigration
law. He maintains his principal office in Memphis, the current site of the only immigration
court in Tennessee, and has operated a satellite office in Louisville, Kentucky. By his own
estimation, Mr. Flowers has handled between 800 and 1,000 individual immigration cases
before the Immigration Court, the Board of Immigration Appeals, and the United States
Court of Appeals for the Sixth Circuit.
Mr. Flowers’s clients present communications challenges that other lawyers do not
face. Many of his clients do not speak fluent English. Additionally, many are from countries
that have no written language or are not literate in the written language of their country of
origin. Thus, written communication with his clients is challenging and not always
effective.1 Accordingly, Mr. Flowers uses a number of interpreters to facilitate
communications with his clients and relies heavily on face-to-face meetings and telephone
calls.
This disciplinary proceeding involves complaints stemming from Mr. Flowers’s
representation of eight individual clients,2 a complaint against Mr. Flowers filed by the Chief
Deputy Clerk of the United States Court of Appeals for the Sixth Circuit, and additional acts
of misconduct uncovered during the Disciplinary Counsel’s investigation. While Mr.
Flowers’s representation of these clients reflects similar courses of conduct, we will briefly
summarize his representation of six of them.3
1
During oral argument, counsel for Mr. Flowers stated that it is not uncommon for Mr. Flowers’s
clients to bring written communications to his office and to request one of Mr. Flowers’s interpreters to read
the communication to them.
2
These clients include: Ahmed Bah, Mouminy Bah, Isata Jalloh, Kadija Jalloh, Fowzia Mohamed,
Aliou N’Diaye, Mamadou Pame, and Victor Perez-Mendez. The record contains a wide variety of different
spellings of Ms. Kadija Jalloh’s name. Because the Kadija Jalloh version appears with the greatest frequency
and on a document signed by Ms. Jalloh, though the correct spelling cannot be deciphered from the signature,
we have elected to refer to her using this spelling variation.
3
We have not included Mr. Flowers’s representation of Isata Jalloh in this discussion because the
Board of Professional Responsibility has not appealed from the reviewing court’s decision to set aside the
discipline based on his representation of this client.
-2-
In February 2001, Mr. Flowers agreed to represent Fowzia Mohamed in an appeal to
the Board of Immigration Appeals from an adverse immigration court decision. He collected
his fees and the filing fees in advance but then failed to file the appeal which was due in
March 2001. Mr. Flowers claimed that he did not realize that he had failed to file Ms.
Mohamed’s appeal for nearly two years. When he discovered his oversight in January 2003,
he filed a motion to reopen Ms. Mohamed’s appeal. While Mr. Flowers did not communicate
in writing with Ms. Mohamed regarding the status of her appeal, he asserts that he
communicated with her orally in December 2002. Even though he promised in July 2005 and
December 2006 to refund the payments that Ms. Mohamed had made, Mr. Flowers had not
made this refund by the time of the formal disciplinary hearing in June 2007.
Mouminy Bah had a similar experience with Mr. Flowers. In June 2004, he retained
Mr. Flowers to file an appeal with the Board of Immigration Appeals from an adverse
decision in his asylum case and paid Mr. Flowers $710. Mr. Flowers failed to file the appeal
by the June 9, 2004 deadline. As a result of Mr. Flowers’s conduct, Mr. Mouminy Bah’s
appeal became time-barred. Although Mr. Flowers indicated on more than one occasion
beginning in November 2005 that he would refund Mr. Mouminy Bah’s payments, he failed
to do so until June 2007. Mr. Flowers also failed to maintain the unearned attorney’s fees
in his trust account.
Mr. Flowers also collected fees from Ahmed Bah but failed to perform the agreed
upon services. After Mr. Ahmed Bah filed a complaint with the Board of Professional
Responsibility, Mr. Flowers agreed to refund Mr. Ahmed Bah $800. Based on this
agreement, the Board agreed in February 2005 to issue a private reprimand. Disciplinary
Counsel later ascertained that Mr. Flowers’s refund check to Mr. Ahmed Bah was returned
for insufficient funds. Disciplinary Counsel also discovered that Mr. Flowers had been
maintaining his trust account at an unapproved institution, that he had failed to deposit $800
into the account before sending his check to Mr. Ahmed Bah, and that he had again failed
to separate his funds from his client’s.
Mr. Flowers also failed to provide professional services to Aliou N’Diaye in a timely
manner. Mr. N’Diaye retained Mr. Flowers to pursue an appeal to the Board of Immigration
Appeals. Even though he indicated in the notice of appeal that a brief would be forthcoming,
Mr. Flowers failed to file a brief on Mr. N’Diaye’s behalf, and Mr. N’Diaye’s appeal was
dismissed. Mr. Flowers claimed that his failure to file the brief was part of a broader
strategy. After Mr. N’Diaye’s appeal was dismissed, Mr. Flowers filed several motions to
reopen Mr. N’Diaye’s case, but every one of these motions was filed after the ninety-day
period for filing motions to reopen had expired.
-3-
One of the motions to reopen that Mr. Flowers filed on Mr. N’Diaye’s behalf was
based on an adjustment of status resulting from Mr. N’Diaye’s marriage to an American
citizen. This motion was premature because Mr. N’Diaye’s spouse’s I-130 form 4 had not yet
been approved. When Mr. Flowers renewed the motion following the approval of the I-130
form, the Board of Immigration Appeals found that Mr. N’Diaye’s motion was time-barred.5
Victor Perez-Mendez received similar treatment from Mr. Flowers in a deportation
proceeding. Mr. Flowers moved for a continuance of the deportation hearing but failed to
file an application for statutory cancellation of removal or the required supporting documents
and exhibits. As a result of Mr. Flowers’s failure to file these documents, the immigration
court granted the government’s motion to pretermit Mr. Perez-Mendez’s application for
statutory cancellation of removal. Mr. Flowers also failed to seek reconsideration of this
ruling. Because of Mr. Flowers’s inaction, Mr. Perez-Menedez is barred from filing an
application for statutory cancellation of removal.6
Between October 31, 2002 and April 28, 2003, Mamadou Pame paid Mr. Flowers
$1,500 as a “non-refundable retainer” and for “brief preparation.” Even though he
represented to the immigration court that he was Mr. Pame’s lawyer for the purpose of
obtaining a copy of the decision in Mr. Pame’s case, Mr. Flowers never filed a brief with the
Board of Immigration Appeals. Instead, he prepared a three and one-half page letter, signed
Mr. Pame’s name, and mailed it to the Board of Immigration Appeals. Mr. Flowers never
sought Mr. Pame’s permission to sign his name on the letter and never provided Mr. Pame
with a copy of the letter.
4
“To obtain an immigrant visa based on marriage to a United States citizen, the American spouse
must first file a Form I-130 Petition for Alien Relative to establish his or her relationship to the spouse who
seeks to immigrate to the United States. If immigration officials approve the I-130 application, the alien
spouse must then file a Form I-485 Application to Register for Permanent Residence or Adjust Status.”
Reynaldo Ramirez, Jr., Title 18 U.S.C. § 922(G)(5)(A): A Strict Liability Statute and Entrapment by Estoppel
- A Viable Defense for Texas Commissioned Security Officers Defined as Illegal Aliens in Light of Fifth
Circuit Rulings in Lucio v. United States and United States v. Uresti-Careaga, 34 T. Marshall L. Rev. 397,
398 n.3 (2009) (citation omitted).
5
Mr. Flowers stated that he had obtained an agreement from a lawyer representing the Department
of Homeland Security permitting him to file a joint motion to reopen and remand Mr. N’Diayes’s case
following approval of his spouse’s I-130 form. However, Mr. Flowers produced no written documentation
or other evidence of this agreement.
6
In the proceeding before the hearing panel, Mr. Flowers insisted that he knew that Mr. Perez-
Mendez was not likely to prevail on his request for statutory cancellation of removal and that he believed
that Mr. Perez-Mendez had a stronger case for asylum and relief under the Nicaraguan Adjustment and
Central American Relief Act. However, Mr. Flowers did not communicate this opinion to Mr. Perez-Mendez
and did not obtain Mr. Perez-Mendez’s permission to withdraw the statutory cancellation claim.
-4-
Kadija Jalloh also experienced difficulties with Mr. Flowers’s representation. Mr.
Flowers agreed in September 2003 to represent Ms. Kadija Jalloh in seeking asylum. As a
result of confusion between Mr. Flowers and Ms. Kadija Jalloh as to whether a June 2004
asylum hearing had been continued to a later date, Ms. Kadija Jalloh did not attend the
hearing and her deportation was ordered. Mr. Flowers, who had been seeking the
continuance because he did not have a copy of Ms. Kadija Jalloh’s birth certificate, was
provided with this document in October 2004 but did not seek to reopen her case until March
2005.
Mr. Flowers’s clients are not the only persons to raise concerns regarding his conduct.
The chief deputy clerk of the United States Court of Appeals for the Sixth Circuit submitted
a complaint against Mr. Flowers. The clerk asserted that between 2004 and 2005, Mr.
Flowers filed eighteen petitions for appellate review of decisions of the Board of
Immigration Appeals on behalf of eighteen different clients. All of these petitions were
dismissed for want of prosecution because Mr. Flowers either failed to pay the filing fee,
failed to file the required forms, or failed to file a brief. According to the clerk, court
personnel contacted Mr. Flowers to address these defects in his appeals. Mr. Flowers failed
to remedy the deficiencies sufficiently to avoid dismissal.7
In two of these cases, Mr. Flowers tendered checks to the appellate court drawn on
his trust account. The financial institution where Mr. Flowers maintained his trust account
was not an approved institution. Because these checks were returned for insufficient funds,
the appellate court informed Mr. Flowers that his future payments would be required to be
by certified check or money order. Notwithstanding these instructions, Mr. Flowers
submitted checks drawn on his trust account in three additional cases. Even though these
errors were later remedied, the United States Court of Appeals eventually dismissed these
appeals for lack of jurisdiction, want of prosecution, and failure to file a brief.
This disciplinary proceeding was not Mr. Flowers’s first encounter with the Board of
Professional Responsibility. In addition to the private reprimand he received in February
2005 stemming from his representation of Mr. Ahmed Bah, he was suspended from the
practice of law from September 7, 2004 to September 15, 2004, for failure to satisfy the
continuing legal education requirements. He was again suspended from October 3, 2005 to
October 15, 2005, for the same reason. Finally, Mr. Flowers’s license was suspended from
September 26, 2005 to January 10, 2006, because he failed to pay his annual registration fee.
Mr. Flowers continued to practice law during each of these periods of administrative
suspension. He conducted phone conferences and filed briefs, motions, petitions, notices of
7
Mr. Flowers later testified that he allowed these cases to be dismissed for strategic reasons.
-5-
appeal, notices of appearance, requests for copies of hearing tapes and immigration court
decisions, and transmitted other legal documents to the immigration courts, the Board of
Immigration Appeals, and the United States Court of Appeals for the Sixth Circuit. Mr.
Flowers did not apprise his clients or the tribunals before which he was practicing that his
license had been suspended between September 7, 2004 and September 15, 2004, and
between September 26, 2005 and January 10, 2006.
After receiving complaints regarding Mr. Flowers’s conduct, Disciplinary Counsel
requested Mr. Flowers to file formal responses to the complaints. Mr. Flowers failed to do
so. On December 28, 2005, Disciplinary Counsel filed a disciplinary petition against Mr.
Flowers. Mr. Flowers answered this petition on January 31, 2006. Thereafter, on May 31,
2006 and August 16, 2006, Disciplinary Counsel filed a supplemental petition and a second
supplemental petition for discipline. Mr. Flowers responded to these petitions on August 15,
2006 and September 7, 2006 respectively. On November 21, 2006, Disciplinary Counsel
propounded a request for admissions to which Mr. Flowers responded on December 19,
2006.
On March 21, 2007, Disciplinary Counsel moved for a partial summary judgment and
included a statement of undisputed material facts with the motion. In this motion,
Disciplinary Counsel asserted that, based on the undisputed facts, Mr. Flowers had violated
seven Disciplinary Rules based on his conduct prior to March 1, 2003 8 and fourteen Rules
of Professional Conduct9 by his conduct thereafter. Mr. Flowers opposed the motion for
partial summary judgment but did not contradict the statement of undisputed facts. The
hearing panel granted Disciplinary Counsel’s motion for partial summary judgment on June
5, 2007.
The hearing panel conducted a hearing on the remaining issues on June 21, 2007. On
August 6, 2007, the hearing panel filed its judgment, along with lengthy and detailed findings
of fact and conclusions of law. The panel concluded that Mr. Flowers had violated Tenn.
Sup. Ct. R. 8, DR 1-102(A)(1), (4), (5), (6), 2-106(A), 6-101(A)(3), 7-101(A)(2), (3), 7-
102(A)(3), (5), and 9-102(A), (B). The panel also concluded that Mr. Flowers had violated
8
Prior to March 1, 2003, the effective date of the current Rules of Professional Conduct, the Code
of Professional Responsibility governed the professional conduct of lawyers. See Henderson v. Bd. of Prof’l
Responsibility, 125 S.W.3d 405, 408 n.2 (2003). Accordingly, with regard to Mr. Flowers’s professional
conduct that occurred before March 1, 2003, Disciplinary Counsel alleged that Mr. Flowers had violated
Tenn. Sup. Ct. R. 8, DR 1-102(A), 2-106(A), 6-101(A), 7-101(A), 7-102(A), 9-102(A), and 9-102(B).
9
Tenn. Sup. Ct. R. 8, RPC 1.1, 1.2, 1.3, 1.4(a), (b), 1.5(a), 1.7(b), 1.15(a), (b), 1.16(d), 3.3(a), 3.4(c)
5.3(b), 5.5(a), 8.4(a), (c), (d), (g) and Tenn. Sup. Ct. R. 9, § 29.1(A)(1).
-6-
Tenn. Sup. Ct. R. 8, RPC 1.1, 1.2(a), 1.3, 1.4(a), (b), 1.5(a), 1.15(a), (b), 1.16(d)(1), (2), (4),
(5), 3.3(a), 3.4(c), 4.4(a), 5.5(a), 8.4(a), (c), (d), (g), and Tenn. Sup. Ct. R. 9, § 29.1(A)(1).
The hearing panel also considered the aggravating and mitigating factors identified
in the American Bar Association’s Standards for Imposing Lawyer Sanctions (2005) (“ABA
Standards”) which the Board of Professional Responsibility has adopted.10 See ABA
Standards §§ 9.22, 9.32. The hearing panel found the existence of multiple aggravating
factors including that Mr. Flowers (1) had a prior disciplinary offense resulting in a 2005
private reprimand as to six complaint files related to neglect for failing to move with
reasonable promptness in his immigration law practice, (2) failed to refund unearned fees as
promised in either a timely fashion or at all, affording evidence of a selfish motive, (3)
engaged in a pattern of neglect and dilatory conduct, (4) committed multiple offenses, (5)
refused to acknowledge the wrongful nature of his conduct, (6) affected vulnerable victims
by his actions, and (7) has been indifferent to making restitution to former clients.
In light of its findings regarding Mr. Flowers’s multiple acts of misconduct and the
presence of numerous aggravating factors, the hearing panel suspended Mr. Flowers’s license
to practice law for one year. In addition, the hearing panel conditioned the reinstatement of
Mr. Flowers’s license on his compliance with the requirements prescribed by a reinstatement
committee and this Court. Finally, the hearing panel directed Mr. Flowers to pay the costs
of the proceeding and to make restitution to Ms. Mohamed and Messrs. Amadou Tidjani
Bah11 and Mouminy Bah.
Mr. Flowers filed a petition for writ of certiorari and supersedeas in the Chancery
Court for Shelby County seeking judicial review of the hearing panel’s decision. The trial
court reviewed the record of the proceeding before the hearing panel and filed a detailed
memorandum opinion on September 17, 2008. The trial court concluded that twenty-three
of twenty-six courses of conduct found by the hearing panel to be violations of the Code of
Professional Conduct and the Rules of Professional Responsibility were supported by
10
Tenn. Sup. Ct. R. 9, § 8.4; see Bd. of Prof’l Responsibility v. Maddux, 148 S.W.3d 37, 40 (Tenn.
2004).
11
In addition to providing that restitution be paid to Mouminy Bah and Fowzia Mohamed, the hearing
panel also directed Mr. Flowers to pay $3,360 in restitution to Amadou Tidjani Bah. The trial court affirmed
this judgment. The parties’ briefing seemingly suggests a restitution award to Ahmed Bah. We are,
however, unable to readily decipher from the record whether Ahmed Bah and Amadou Tidjani Bah are the
same person or the exact basis for the decision to set the restitution amount at $3,360, as opposed to a higher
or lower amount. Mr. Flowers has not challenged the amount of restitution or the appropriateness of the
restitution being paid to Amadou Tidjani Bah. Additionally, the Board has not raised any concerns regarding
this matter. Accordingly, we decline to pursue these issues further.
-7-
substantial and material evidence. In its final judgment entered on October 23, 2008, the trial
court found that “[i]n view of the number of violations that were supported by evidence and
the aggravating circumstances found to apply, the court is of the opinion that a one-year
suspension, the requirement that Mr. Flowers make restitution, and the additional
requirement that he petition for reinstatement were appropriate sanctions.”
Mr. Flowers filed a notice of appeal with this Court on November 19, 2008. His two
briefs contain numerous concessions regarding the impropriety of his conduct. He concedes
that his dilatory responses to the complaints involving Mses. Mohamed and Kadija Jalloh and
Messrs. Pame and Mouminy Bah violated Tenn. Sup. Ct. R. 8, RPC 8.1(b).12 He also
concedes that he violated Tenn. Sup. Ct. R. 8, RPC 1.15(a)13 by giving Mr. Ahmed Bah a
worthless check written on a trust account that was not maintained at an approved financial
institution. Mr. Flowers likewise concedes that he violated Tenn. Sup. Ct. R. 8, RPC 1.15(a)
by tendering checks without sufficient funds in his trust account to the United States Court
of Appeals for the Sixth Circuit. Along with these concessions, Mr. Flowers asserts that
these violations were inadvertent and that he has closed the unapproved trust account.
Mr. Flowers admits that he failed to file an appeal on behalf of Ms. Mohamed and that
he did not inform her in writing of his failure to do so. He also admits that he violated Tenn.
Sup. Ct. R. 8, RPC 1.3,14 1.4(a),15 and 1.4 (b)16 in his representation of Mr. Mouminy Bah.
Likewise, he concedes that he continued to practice law while his license was suspended for
failing to pay his annual registration fee and for failing to obtain the required hours of
continuing legal education and that he failed to notify his clients or the tribunals before
which he was practicing that his license had been suspended. As mitigation, Mr. Flowers
12
Tenn. Sup. Ct. R. 8, RPC 8.1(b) provides, in relevant part, that “a lawyer . . . in connection with
a disciplinary matter, shall not . . . knowingly fail to respond to a lawful demand for information from an
admissions or disciplinary authority, except that this Rule does not require disclosure of information
otherwise protected by Rule 1.6.”
13
Tenn. Sup. Ct. R. 8, RPC 1.15(a) requires that “[a] lawyer shall hold property and funds of clients
or third persons that are in a lawyer’s possession in connection with a representation separate from the
lawyer’s own property and funds.”
14
Tenn. Sup. Ct. R. 8, RPC 1.3 provides that “[a] lawyer shall act with reasonable diligence and
promptness in representing a client.”
15
Tenn. Sup. Ct. R. 8, RPC 1.4(a) mandates that “[a] lawyer shall keep a client reasonably informed
about the status of a matter and comply with reasonable requests for information within a reasonable time.”
16
Tenn. Sup. Ct. R. 8, RPC 1.4(b) requires that “[a] lawyer shall explain a matter to the extent
reasonably necessary to permit the client to make informed decisions regarding the representation.”
-8-
offers that he “never wilfully engaged in unauthorized practice,” that he “took steps to avoid
doing so,” and that he “has been forthcoming about this administrative shortcoming since the
inception of these proceedings.”
Although he concedes that he has violated many Rules of Professional Conduct, Mr.
Flowers insists that the trial court erred by affirming the hearing panel’s findings that he
committed any of the disciplinary violations that he has not admitted. He also insists that his
“one-year suspension [should] be reversed and that [he should] receive a sanction consistent
with the violations to which he has readily admitted.” Mr. Flowers supports these assertions
with the following seven arguments. First, his clients’ complaints should be disregarded
because the clients filed them solely to maintain or advance their immigration appeals.
Second, disciplinary matters involving the practice of immigration law should be addressed
by the Board of Immigration Appeals rather than state disciplinary authorities. Third, the
hearing panel’s emphasis on written communications with his clients was misplaced because
most of his clients are illiterate in English, as well as in the written languages of their
countries of origin. Fourth, purposely delaying proceedings is an appropriate tactic in
immigration matters. Fifth, the hearing panel’s finding that his fees were unreasonable is not
supported by substantial and material evidence. Sixth, the hearing panel’s findings regarding
the vulnerability of his clients is not supported by substantial and material evidence. Finally,
his failure to object to Disciplinary Counsel’s statement of undisputed facts filed in support
of the motion for partial summary judgment does not provide a basis for any findings of
misconduct other than the misconduct he has admitted.
Disciplinary Counsel responds that the evidence presented to the hearing panel
establishes Mr. Flowers’s many violations of the Code of Professional Responsibility and the
Rules of Professional Conduct irrespective of the motivations of his clients for filing the
complaints. Disciplinary Counsel also insists that its authority and the authority of this Court
over professional conduct of attorneys practicing in Tennessee extends to attorneys practicing
in the area of immigration law. Additionally, Disciplinary Counsel contends that the hearing
panel’s findings are supported by substantial and material evidence of violations of the Code
of Professional Responsibility and the Rules of Professional Conduct and that the hearing
panel correctly applied the ABA Standards with regard to its decision to suspend Mr.
Flowers’s license to practice law for one year.
II.
This Court is the final and ultimate arbiter of the propriety of the professional conduct
of all lawyers practicing in Tennessee. Sneed v. Bd. of Prof’l Responsibility, 301 S.W.3d
603, 612 (Tenn. 2010). Accordingly, when we are called upon to review judgments in
disciplinary proceedings against lawyers, we do so in light of our fundamental and inherent
-9-
power to promulgate, administer, and enforce the rules governing the licensing and
professional conduct of lawyers practicing in Tennessee. Rayburn v. Bd. of Prof’l
Responsibility, 300 S.W.3d 654, 660 (Tenn. 2009).
When an attorney or the Disciplinary Counsel seeks judicial review of a hearing
panel’s decision, the trial court’s “review shall be on the transcript of the evidence before the
hearing panel and its findings and judgment.” Tenn. Sup. Ct. R. 9, § 1.3. However, “[i]f
allegations of irregularities in the procedure before the panel are made, the trial court is
authorized to take such additional proof as may be necessary to resolve such allegations.”
Tenn. Sup. Ct. R. 9, § 1.3. If either the attorney or the Disciplinary Counsel appeals to this
Court, our review of an appeal in a disciplinary matter is based upon the transcript of the
record before the trial court and a transcript of evidence before the hearing panel and before
the trial court if any evidence has been produced. Tenn. Sup. Ct. R. 9, § 1.3.
Like the trial court, we
may affirm the decision of the panel or remand the case for
further proceedings. [We] may reverse or modify the decision if
the rights of the petitioner have been prejudiced because the
panel’s findings, inferences, conclusions or decisions are: (1) in
violation of constitutional or statutory provisions; (2) in excess
of the panel’s jurisdiction; (3) made upon unlawful procedure;
(4) arbitrary or capricious or characterized by abuse of
discretion or clearly unwarranted exercise of discretion; or (5)
unsupported by evidence which is both substantial and material
in the light of the entire record.
Tenn. Sup. Ct. R. 9, § 1.3; see also Sneed v. Bd. of Prof’l Responsibility, 301 S.W.3d at 612.
In assessing “the substantiality of evidence, the court shall take into account whatever in the
record fairly detracts from its weight, but the court shall not substitute its judgment for that
of the panel as to the weight of the evidence on questions of fact.” Tenn. Sup. Ct. R. 9, § 1.3.
To determine “whether ‘substantial and material’ evidence supports the panel’s decision, the
Court evaluates whether the evidence ‘furnishes a reasonably sound factual basis for the
decision being reviewed.’” Threadgill v. Bd. of Prof’l Responsibility, 299 S.W.3d 792, 807
(Tenn. 2009) (quoting City of Memphis v. Civil Serv. Comm’n of Memphis, 216 S.W.3d 311,
317 (Tenn. 2007)).
-10-
III.
Mr. Flowers first asserts that the hearing panel should either have completely
disregarded the complaints filed by his clients or, at least, should have given these complaints
less weight because filing disciplinary complaints against lawyers is a common tactic used
to reopen immigration cases. He points to In re Lozada, 19 I. & N. Dec. 637 (BIA 1988) for
the proposition that his clients were required to file disciplinary complaints against him if
they sought to have their immigration cases reopened for ineffective assistance of counsel.
We find this argument unpersuasive.
When a complaint is filed against a lawyer in Tennessee, Disciplinary Counsel must
investigate the alleged misconduct.17 Following the investigation, Disciplinary Counsel has
several options, including dismissal of the complaint, an informal admonition, a private
reprimand, a public censure, or a prosecution of formal charges before a hearing panel. 18
Accordingly, Disciplinary Counsel is not required to proceed to a prosecution of formal
charges based upon every complaint and instead may recommend dismissal, informal
admonition, private reprimand, or public censure.19 Tenn. Sup. Ct. R. 9, §§ 7.2, 8.1.
If Disciplinary Counsel recommends proceeding to a formal hearing, the Board of
Professional Responsibility must then review the recommendation and decide whether to
approve or modify it.20 If the matter proceeds to a formal hearing before a hearing panel,
Disciplinary Counsel bears the burden of proving misconduct by a preponderance of the
evidence.21 Following the hearing, the hearing panel decides whether Disciplinary Counsel
has established one or more grounds of misconduct.22 An attorney may seek judicial review
17
Tenn. Sup. Ct. R. 9, §§ 1.1, 7.1, 7.2, 8.1.
18
Tenn. Sup. Ct. R. 9, § 8.1.
19
When the Disciplinary Counsel’s recommended disposition is dismissal or an informal admonition,
the recommendation is reviewed by a member of the district committee in the appropriate disciplinary district
who may approve or modify it. Disciplinary Counsel may appeal the action of the district committee
member to the Board of Professional Responsibility. Tenn. Sup. Ct. R. 9, § 8.1.
20
Tenn. Sup. Ct. R. 9, § 8.1.
21
Tenn. Sup. Ct. R. 9, § 8.2.
22
Tenn. Sup. Ct. R. 9, §§ 8.2, 8.3, 8.4.
-11-
of the hearing panel’s judgment in either the circuit or chancery court.23 The trial court’s
review
shall be on the transcript of the evidence before the hearing
panel and its findings and judgment. If allegations of
irregularities in the procedure before the panel are made, the
trial court is authorized to take such additional proof as may be
necessary to resolve such allegations. The court may affirm the
decision of the panel or remand the case for further proceedings.
The court may reverse or modify the decision if the rights of the
petitioner have been prejudiced because the panel’s findings,
inferences, conclusions or decisions are: (1) in violation of
constitutional or statutory provisions; (2) in excess of the panel’s
jurisdiction; (3) made upon unlawful procedure; (4) arbitrary or
capricious or characterized by abuse of discretion or clearly
unwarranted exercise of discretion; or (5) unsupported by
evidence which is both substantial and material in the light of
the entire record.
In determining the substantiality of evidence, the court
shall take into account whatever in the record fairly detracts
from its weight, but the court shall not substitute its judgment
for that of the panel as to the weight of the evidence on
questions of fact.
Tenn. Sup. Ct. R. 9, § 1.3.
In other words, the filing of a complaint does not, as suggested by Mr. Flowers, equate
with a finding that an attorney has committed misconduct. Rather, upon receiving a
complaint, Disciplinary Counsel conducts an investigation and determines the appropriate
course of action. If, as in this case, Disciplinary Counsel determines that a formal hearing
is appropriate and that recommendation is accepted by the Board of Professional
Responsibility, the matter is then heard by a hearing panel. The hearing panel makes its own
independent determination as to whether the attorney engaged in misconduct. The hearing
panel’s decision is then appealable to the courts.
The motivations of Mr. Flowers’s clients, whatever they may have been, to file
disciplinary complaints against him does not render these complaints frivolous and certainly
23
Tenn. Code Ann. § 27-9-101 (2000); Tenn. Sup. Ct. R. 9, §§ 1.3, 8.4.
-12-
does not nullify or undermine the findings of the hearing panel and the trial court. A client’s
self-interested motivation for filing a complaint certainly provides fair grounds for
questioning the client’s credibility or to undermine the force of the client’s complaint. In
fact, Mr. Flowers pursued this strategy before the hearing panel by citing and relying on In
re Lozada. There is no indication in this record that the hearing panel failed to consider these
arguments. To the contrary, the hearing panel asked questions regarding the In re Lozada
requirements.
Mr. Flowers’s argument that his clients’ complaints should be entirely disregarded
lacks support in logic and law. The argument ignores the independent and critical roles of
(1) the Disciplinary Counsel in investigating the complaint and in determining whether
proceeding to a formal hearing is warranted, (2) the Board of Professional Responsibility in
reviewing that recommendation, (3) the hearing panel in reaching a conclusion as to whether
misconduct was committed, and (4) the role of the trial court in addressing an appeal from
the hearing panel’s decision. We will not invalidate the judgment of the hearing panel or the
decision of the trial court based upon the self-interested nature of Mr. Flowers’s clients’
complaints.
IV.
Mr. Flowers next asserts that serious concerns arise “when attorneys unschooled in
the practice of immigration law are asked to sit in judgment of an immigration practitioner.”
He argues that, pursuant to a decision of the United States Attorney General in In re
Compean, 24 I. & N. Dec. 710 (A.G. 2009), “it is the Board of Immigration Affairs24 that
shall arbitrate the bar complaint because what constitutes diligent practice of immigration
law may differ in certain respects from diligent practice in other areas of the law.”
The decision of the Attorney General of the United States in In re Compean appeared
to remove the requirement, set forth in In re Lozada, of filing a complaint with the state
disciplinary body in order to reopen an immigration case based upon ineffective assistance
of counsel. In re Compean, 24 I. & N. Dec. at 737. Instead of filing a complaint directly
with the state disciplinary authority, the Attorney General’s decision required resident aliens
to attach a completed and signed complaint to their motion and provided that the Board of
Immigration Appeals will determine whether to refer the complaint to the appropriate state
disciplinary body. In re Compean, 24 I. & N. Dec. at 737-38.
Shortly after Mr. Flowers filed his brief in this Court, the acting Attorney General
vacated his predecessor’s directive. In re Compean, 25 I. & N. Dec. 1 (A.G. 2009). In
24
It appears that this reference is intended to be to the Board of Immigration Appeals.
-13-
reaching the conclusion to vacate the earlier decision, the acting Attorney General stated the
following:
Establishing an appropriate framework for reviewing motions to
reopen immigration proceedings based on claims of ineffective
assistance of counsel is a matter of great importance. I do not
believe that the process used in Compean resulted in a thorough
consideration of the issues involved, particularly for a decision
that implemented a new, complex framework in place of a
well-established and longstanding practice that had been
reaffirmed by the Board in 2003 after careful consideration. The
preferable administrative process for reforming the Lozada
framework is one that affords all interested parties a full and fair
opportunity to participate and ensures that the relevant facts and
analysis are collected and evaluated.
Accordingly, I direct the Acting Director of the Executive
Office for Immigration Review to initiate rulemaking
procedures as soon as practicable to evaluate the Lozada
framework and to determine what modifications should be
proposed for public consideration. After soliciting information
and public comment, through publication of a proposed rule in
the Federal Register, from all interested persons on a revised
framework for reviewing claims of ineffective assistance of
counsel in immigration proceedings, the Department of Justice
may, if appropriate, proceed with the publication of a final rule.
In re Compean, 25 I. & N. Dec. at 2. Thus, the earlier In re Compean order on which Mr.
Flowers relies is now without force.
However, even if the Attorney General’s decision had not been vacated, Mr. Flowers’s
argument would still be unavailing. While the Attorney General expressed concern in the
first In re Compean order that In re Lozada’s complaint requirement was contributing to the
filing of frivolous complaints before state disciplinary bodies, the Attorney General expressly
noted that, although no longer required to do so, a resident alien may still choose to file a
complaint directly with the state disciplinary authorities. In re Compean, 24 I. & N. Dec. at
738 n.11. Furthermore, nothing in In re Compean reflects any attempt to preempt the
exercise of state disciplinary authority over immigration lawyers nor does its reasoning give
any pause to the exercise of oversight over Tennessee licensed attorneys engaging in the
practice of immigration law.
-14-
Quite to the contrary of Mr. Flowers’s assertion that state disciplinary authorities have
no role with regard to the practice of immigration law, there is an important role to be
exercised by the Board of Professional Responsibility with regard to the practice of
immigration lawyers in Tennessee. On the national level, federal judges have increasingly
expressed concerns about the representation afforded by some of the lawyers handling
immigration cases.25 Rather than state disciplinary bodies being a hindrance in immigration
practice, commentators have suggested that such state professional oversight authorities may
play an important role in helping protect vulnerable clients and ensure that state practice
standards for representation of clients are adhered to by lawyers practicing in this field.26 We
are not persuaded by Mr. Flowers’s contention that In re Compean or its reasoning, even if
it had not been vacated, require or even suggest that state disciplinary authorities should
withdraw from involvement in regulating the professional responsibility standards for
licensed attorneys practicing in the area of immigration law.
V.
Mr. Flowers next argues that the hearing panel erred by finding that he violated Tenn.
Sup. Ct. R. 8, RPC 1.4(a), (b).27 The hearing panel found nine incidents of misconduct
involving violations of both subsections of Rule 1.4 by Mr. Flowers with regard to his
representation of Mses. Mohamed and Kadija Jalloh and Messrs. Ahmed Bah, Mouminy Bah,
Pame, Perez-Mendez, and N’Diaye. The trial court affirmed these findings with one
exception. The court set aside the hearing panel’s finding with regard to Mr. Flowers’s
25
See generally, e.g., Aris v. Mukasey, 517 F.3d 595, 600 (2d Cir. 2008) (noting “the disturbing
pattern of ineffectiveness evidenced in the record in this case (and, with alarming frequency, in other
immigration cases before us)”); Richard L. Abel, Practicing Immigration Law in Filene’s Basement, 84 N.C.
L. Rev. 1449, 1491 (2006); LaJuana Davis, Reconsidering Remedies for Ensuring Competent Representation
in Removal Proceedings, 58 Drake L. Rev. 123, 141-43 (2009); Robert A. Katzmann, The Legal Profession
and the Unmet Needs of the Immigrant Poor, 21 Geo. J. Legal Ethics 3, 9 (2008).
26
See e.g., Peter L. Markowitz, Barriers to Representation for Detained Immigrants Facing
Deportation: Varick Street Detention Facility, A Case Study, 78 Fordham L. Rev. 541, 574 (2009); Careen
Shannon, Regulating Immigration Legal Service Providers: Inadequate Representation and Notario Fraud,
78 Fordham L. Rev. 577, 611-12 (2009).
27
Tenn. Sup. Ct. R. 8, RPC 1.4 requires that
(a) A lawyer shall keep a client reasonably informed about the status of a matter and comply
with reasonable requests for information within a reasonable time.
(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client
to make informed decisions regarding the representation.
-15-
representation of Ms. Kadija Jalloh.28 Disciplinary Counsel has not appealed the trial court’s
decision to set aside the hearing panel’s findings regarding Ms. Jalloh.
Mr. Flowers concedes that he violated Rule 1.4(a), (b) with regard to his
representation of Mr. Mouminy Bah and Ms. Mohamed. However, he insists that the hearing
panel erred by finding misconduct with regard to his representation of Messrs. Ahmed Bah,
Pame, Perez-Mendez, and N’Diaye. He argues that the hearing panel placed too much
emphasis on written correspondence with his non-English speaking clients, many of whom
came from cultures with no written language or were not literate in the language of their
country of origin. He also notes the difficulties with communications because many of his
clients moved frequently and with arranging meetings because of scheduling conflicts and
his clients’ lack of transportation.
In light of these circumstances, Mr. Flowers argues that the hearing panel failed to
take into consideration the practical realities of communicating with clients who present such
communication complexities. In light of the difficulties with written communications, Mr.
Flowers asserts that he followed a reasonable, pragmatic course by hiring multiple
interpreters to facilitate communication with his clients and that he was able to communicate
appropriately with his clients through face-to-face meetings and by telephone.
Mr. Flowers’s argument is not without some resonance. However, it applies only to
the Tenn. Sup. Ct. R. 8, RPC 1.4(a), (b) violations with regard to Mr. Pame. As for the
remaining violations of Tenn. Sup. Ct. R. 8, RPC 1.4(a), (b), which include misconduct with
regard to his representation of Messrs. Ahmed Bah, Perez-Mendez, and N’Diaye, the
argument is inapplicable because the hearing panel’s findings did not involve Mr. Flowers’s
failure to communicate with these clients in writing. These violations were linked to Mr.
Flowers’s failure to attempt to communicate with these clients regarding significant matters
or Mr. Flowers providing misleading or inaccurate information to these clients.
Turning to Mr. Flowers’s representation of Mr. Pame, Mr. Flowers did not dispute
that he did not have a written employment contract, fee agreement, or agreement limiting the
scope of his representation. Mr. Flowers also conceded that he did not send Mr. Pame a
28
The trial court explained as follows:
According to the unrebutted testimony of Mr. Flowers, he did keep Ms. Jalloh reasonably
informed of the status of her case by oral communications. The hearing panel could not
ignore that testimony. While Mr. Flowers did not send Ms. Jalloh copies of the motions he
was filing, the court is of the opinion sending the client copies of all pleadings is not
required by the rule. The hearing panel’s finding that Mr. Flowers violated Rule 1.4(a)(b)
with regard to Ms. Jalloh must be set aside.
-16-
written copy of a letter to which he signed Mr. Pame’s name either before or after filing it
with the Board of Immigration Appeals. These admissions formed the basis of the hearing
panel’s determination that Mr. Flowers violated Tenn. Sup. Ct. R. 8, RPC 1.4(a), (b) with
regard to his representation of Mr. Pame. Mr. Flowers, however, offered unrebutted
testimony during the hearing regarding language difficulties in communicating with Mr.
Pame, as well as his own diligent maintenance of oral communication and consultation with
Mr. Pame via Mr. Pame’s own interpreter.
Mr. Flowers’s argument regarding what constitutes reasonable communication with
non-English speaking clients from cultures without written languages or non-literate clients
raises an important issue that warrants close examination and studious reflection.
Disciplinary Counsel, however, failed to even address it. Given this oversight, the
complexity of the issue, and the dearth of competent evidence presented by Disciplinary
Counsel regarding the appropriate ways to communicate with illiterate, non-English speaking
clients, we find that Disciplinary Counsel has not rebutted Mr. Flowers’s arguments with
regard to the violation of Tenn. Sup. Ct. R. 8. PRC 1.4(a), (b) as it relates to the
representation of Mr. Pame. Mr. Flowers’s argument, however, is inapplicable to the
violations of Tenn. Sup. Ct. R. 8, RPC 1.4(a), (b) as they relate to his representation of
Messrs. Ahmed Bah, Perez-Mendez, and N’Diaye. Accordingly, his argument does not
provide a basis for setting aside the hearing panel’s findings with regard to these clients.
VI.
Mr. Flowers also contends that the hearing panel erred by finding that he violated
Tenn. Sup. Ct. R. 8, RPC 4.4(a).29 He argues that his action “to stay removal proceedings
based upon the possibility that presently nonexistent grounds for remaining in the United
States might arise in the future, was not only proper, but sound immigration practice.” He
asserts that the hearing panel’s determination that this action violated Tenn. Sup. Ct. R. 8,
RPC 4.4(a) reflects a “misapprehension regarding sound immigration law practice and not
upon misconduct on [Mr. Flowers’s] part.”
Having considered Mr. Flowers’s argument, it is more accurate to state that Mr.
Flowers misapprehends the distinction between zealous representation of his clients and a
violation of Tenn. Sup. Ct. R. 8, RPC 4.4(a). While there are numerous attorneys working
in the area of immigration law who do not run afoul of this rule, Mr. Flowers is certainly not
alone among the practitioners of immigration law who do. The filing of frivolous appeals
29
Tenn. Sup. Ct. R. 8, RPC 4.4(a) provides that “[i]n representing a client, a lawyer shall not . . . use
means that have no substantial purpose other than to embarrass, delay, or burden a third person or knowingly
use methods of obtaining evidence that violate the legal rights of such a person.”
-17-
“is a recurring problem in immigration practice. Part of the lawyer’s eagerness in bringing
such an action may be attributed to the fact that under immigration laws, an alien who files
a petition for review in federal court is generally granted an automatic stay of deportation.” 30
Because “of these kinds of appeals [an] immigrant often stays in the U.S. for a number of
years beyond the time to which he [or she] is entitled.” 31
In a seminal case issued more than three decades ago, the United States Court of
Appeals for the First Circuit wrestled with a petition for disciplinary action filed against an
attorney who had engaged in conduct similar to Mr. Flowers. In re Bithoney, 486 F.2d 319
(1st Cir 1973). Precisely as Mr. Flowers has done, Mr. Bithoney filed multiple appeals in
order to stay the proceedings and to prevent deportation of his clients and then let the appeals
languish until they were dismissed. In re Bithoney, 486 F.2d at 320-21. Responding to Mr.
Bithoney’s contention that he was simply engaged in zealous representation of his clients to
prevent their deportation, the United States Court of Appeals reasoned as follows:
[W]e [must] indulge every presumption in favor of the attorney
who presents or defends a position which is found to lack
support. We must insure that there is breathing room for the
fullest possible exercise of the advocacy function. But there
must be limits. . . . [T]he duty of a lawyer is to represent his
client zealously, but only ‘within the bounds of the law’. The
processes of this court are made available for the general good;
to the extent that they are abused they become less available to
those genuinely in need of them. Such abuse also lowers public
esteem for the judicial system and, particularly in the situation
presented here, can unjustifiably result in unmerited benefit.
In re Bithoney, 486 F.2d at 322. Drawing upon a prior decision of the United States Court
of Appeals for the Fourth Circuit, the court declared:
While we must be careful to assure that the courts are always
open to complaining parties, we have an equal obligation to see
that its processes are not abused by harassing, or by recklessly
invoking court action in frivolous causes or by foot dragging
30
Robert G. Heiserman & Linda K. Pacun, Professional Responsibility in Immigration Practice and
Government Services, 22 San Diego L. Rev. 971, 980-81 (1985).
31
Katy Motiey, Note, Ethical Violations by Immigration Attorneys: Who Should Be Sanctioning?,
5 Geo. J. Legal Ethics 675, 677 (1992).
-18-
and delaying in order to deny or postpone the enjoyment of
unquestioned rights. Lawyers have an obligation as officers of
the court not to indulge in any of these practices. Vexatious
litigation and the law’s delays have brought the courts in low
repute in many instances, and when the responsibility can be
fixed, remedial action should be taken.
In re Bithoney, 486 F.2d at 322 n.1 (quoting Gullo v. Hirst, 332 F.2d 178, 179 (4th Cir.
1964).
We share the sentiments of the United States Court of Appeals for the First Circuit.
We are wary of creating a standard that would inhibit attorneys from aggressively and
zealously pursuing their clients’ interests. The law is not static and requires lawyers to push
its boundaries, including seeking change therein. When an attorney is near, or even slips
slightly over, the line where zealous representation goes too far, we will indulge a
presumption in favor of the attorney advocating for his or her client in order to provide
breathing room for such representation. However, that does not mean that the practice of law
is unbounded.
More than a century ago, a commentator on legal ethics wrote that
[i]n . . . the profession of the law, the lawyer is not a hired
mercenary; nor a hired blackguard; nor a hired vilifier of the
other side; but rather is to be compared to the noble knights of
the middle ages, who were professional warriors in the interest
of truth and justice; who donned their armor and fought their
battles, after due notice, in the open; their oath was to conquer
or die on the field of honor, but they were to conquer in a fair
and open fight.32
Unfortunately, this description sounds somewhat antiquated and a trifle naive in our current
legal climate, but there is more than one kernel of truth buried in it. One truth is that lawyers
are not mercenaries but rather are professional advocates and counselors. While others may
have different views of the practice of law,33 we subscribe to Chief Justice Cardozo’s view
32
John C. Harris, Legal Ethics, 69 Alb. L. J. 300, 304 (1907).
33
For example, in 1818, Lord Brougham offered a competing vision of the practice of law when he
observed:
(continued...)
-19-
that “[m]embership in the bar is a privilege burdened with conditions. [An attorney is]
received into that ancient fellowship for something more than private gain. [He or she
becomes] an officer of the court, and, like the court itself, an instrument or agency to advance
the ends of justice.” People ex rel. Karlin v. Culkin, 162 N.E. 487, 489 (N.Y. 1928) (citation
omitted).
The evidence in this record demonstrates that Mr. Flowers abandoned the balance
between zealously representing his clients and the rules for the professional performance of
his vocation. He exploited a procedural mechanism to file eighteen frivolous appeals, then
failed to prosecute those appeals and allowed them to be dismissed. Mr. Flowers was not
pushing the boundaries of the law but was instead abusing its procedural safeguards. That
Mr. Flowers hoped that a meritorious ground for relief might arise during this time period
bought with a stay created by a frivolous appeal does not alter the nature of the appeal itself.
While the members of this Court in addressing ethical complaints will strongly safeguard the
zealous representation of clients by attorneys, we will not accept lawyers abandoning their
professionalism in the interest of mercenary tactics that violate the requirements of the Rules
of Professional Conduct.
VII.
Mr. Flowers argues that the hearing panel erred by finding that he violated Tenn. Sup.
Ct. R. 8, RPC 1.5(a)34 by charging an unreasonable fee with regard to the filings with the
United States Court of Appeals for the Sixth Circuit. He notes that the record is entirely
devoid of any evidence addressing what constitutes a reasonable charge by immigration
lawyers either in Memphis or, in fact, anywhere else. As a result, Mr. Flowers argues that
any finding that he charged unreasonable fees as to any matter, not just as to filings in the
United States Court of Appeals for the Sixth Circuit, is accordingly unsupported by the
record.
33
(...continued)
An advocate, in the discharge of his duty, knows but one person in the entire world, and that
person is his client. To save that client by all means and expedients, and at all hazards and
costs to other persons, and, amongst them, to himself, is his first and only duty; and in
performing this duty he must not regard the alarm, the torments, the destruction which he
may bring upon others.
2 Trial of Queen Caroline 8 (1821).
34
Tenn. Sup. Ct. R. 8, RPC 1.5(a) provides that “[a] lawyer’s fee and charges for expenses shall be
reasonable.”
-20-
The hearing panel found two violations of Tenn. Sup. Ct. R. 8, RPC 1.5(a). One
violation occurred with regard to Mr. Flowers’s representation of Ms. Mohamed before the
Board of Immigration Appeals; the other involved the eighteen appeals that Mr. Flowers filed
in the United States Court of Appeals for the Sixth Circuit. Mr. Flowers’s argument is
inapplicable to the hearing panel’s findings with regard to Ms. Mohamed. These findings
were based on Mr. Flowers charging Ms. Mohamed for fees and filing costs for services that
he did not perform and then failing to reimburse Ms. Mohamed for her expenditures. It is
not necessary to know the standard fee rates in the Memphis area to conclude that this is an
improper fee.
As for the filings in the United States Court of Appeals for the Sixth Circuit, the
record is deficient with regard to what fees Mr. Flowers actually charged in these cases.35
Furthermore, Disciplinary Counsel failed to address Mr. Flowers’s argument that
Disciplinary Counsel should have presented evidence regarding the reasonable fees for these
services. Given the dearth of evidence about the fees charged for filing appeals of
immigration cases in the United States Court of Appeals for the Sixth Circuit and the Board’s
failure to address Mr. Flowers’s argument, we find that Disciplinary Counsel has not rebutted
Mr. Flowers’s challenge to the lack of evidence to support the hearing panel’s findings
regarding Mr. Flowers’s violation of Tenn. Sup. Ct. R. 8, RPC 1.5(a) as it relates to his
filings in the United States Court of Appeals for the Sixth Circuit.
VIII.
Mr. Flowers contends that the Hearing Panel erred by finding as an aggravating factor
that his clients were vulnerable victims. Tenn. Sup. Ct. R. 9, § 8.4 provides that “[i]n
determining the appropriate type of discipline, the hearing panel shall consider the applicable
provisions of the ABA Standards for Imposing Lawyer Sanctions.” ABA Standards §
9.22(h) includes as an aggravating factor, the “vulnerability of [the] victim.” Mr. Flowers
insists that the hearing panel’s conclusion that his clients were vulnerable victims is
inappropriately based upon their inability to speak or write in English, and he argues that this
finding “suggests an attitude of condescension and paternalism that is unseemly, unfortunate
and unfair.”
35
We do not doubt the possibility that somewhere in the record is evidence relating to the fees
charged by Mr. Flowers with regard to these filings before the Sixth Circuit. However, the Board has not
provided the Court with any assistance as to this matter, and “[j]udges are not like pigs, hunting for truffles
buried in” the record. Albrechtsen v. Bd. of Regents of Univ. of Wis. Sys., 309 F.3d 433, 436 (7th Cir. 2002)
(quoting United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991)). Parties are required to provide citation
and support identifying where in the record evidence can be found. Tenn. R. App. P. 27.
-21-
Mr. Flowers’s argument cannot succeed. In addition to his clients’ difficulties with
writing and speaking in English, Mr. Flowers described the difficult circumstances of many
of his clients in his own hearing before the hearing panel. In testimony before the hearing
panel, Mr. Flowers recounted the difficult circumstances that many of his clients confronted,
requiring them to move often, work long hours with changing schedules, as well as their
limited financial resources and lack of transportation or of a solid understanding of the
broader culture. Furthermore, Mr. Flowers’s clients were seeking assistance in a particularly
weighty matter – attempting to remain in the United States and to avoid being deported. We
find no error in the hearing panel’s conclusion that Mr. Flowers’s clients were vulnerable
victims. See In re DeMell, 589 F.3d 569, 584 (2d Cir. 2009) (concluding that clients of an
attorney in a high volume immigration practice similar to Mr. Flowers’s practice were
vulnerable victims under ABA Standards § 9.22(h)).
IX.
Mr. Flowers argues that the hearing panel improperly leapt from his admission of facts
set forth in Disciplinary Counsel’s statement of undisputed material facts to the conclusion
that those facts actually established violations of the Rules of Professional Conduct.
Clarifying any ambiguity regarding this contention at oral argument, Mr. Flowers indicated
that he is asserting that the record lacks substantial and material evidence to support the
hearing panel’s findings of violations of the Rules of Professional Conduct beyond those he
admitted.
The Board did not present additional witnesses during the proceedings before the
hearing panel. Rather, Mr. Flowers and Mr. Thierno Sylla, one of his interpreters, were the
only witnesses. Accordingly, Mr. Flowers insists that the only evidence upon which the
hearing panel could rely consisted of his admissions, his testimony, and the testimony of Mr.
Sylla.
We have already noted that Mr. Flowers made numerous concessions in this Court
regarding violations of the Rules of Professional Conduct. He concedes (1) that he violated
Tenn. Sup. Ct. R. 8, RPC 8.1(b) by providing dilatory responses relating to the matters
involving Messrs. Mouminy Bah and Pame and Mses. Mohamed and Kadija Jalloh; (2) that
he violated Tenn. Sup. Ct. R. 8, RPC 1.15(a) by using a worthless check drawn on an
unapproved trust account to reimburse Mr. Ahmed Bah for his unearned attorney’s fee; (3)
that he violated Tenn. Sup. Ct. R. 8, RPC 1.15(a) by tendering worthless checks to the United
States Court of Appeals for the Sixth Circuit; (4) that he failed to file an appeal for Ms.
Mohamed and then failed to inform her of his oversight; (5) that he violated Tenn. Sup. Ct.
R. 8, RPC 1.3 and 1.4(a), (b) in his representation of Mr. Mouminy Bah; (6) that he
-22-
continued to practice law while his law license was suspended; and (7) that he failed to notify
his clients and the tribunals before which he practiced that he had been suspended.
Along with these concessions, we have already noted that the trial court set aside the
hearing panel’s findings that Mr. Flowers violated Tenn. Sup. Ct. R. 8, RPC 1.4(a), (b) with
regard to his representation of Ms. Kadija Jalloh and that he violated Tenn. Sup. Ct. R. 8, DR
1-102(A)(1)(5), (6) and 6-101(A)(3) and Tenn. Sup. Ct. R. 8, RPC 3.4(c), 4.4.(a), and 8.4(a),
(d) with regard to his representation of Ms. Isata Jalloh. Disciplinary Counsel did not appeal
these determinations. Furthermore, based on our independent review of the record, we have
concluded that Disciplinary Counsel has failed to counter Mr. Flowers’s arguments regarding
inadequately communicating with Mr. Pame and charging unreasonable fees for the filings
in the United States Court of Appeals for the Sixth Circuit. We therefore set aside the hearing
panel’s findings with regard to these violations.
Accordingly, we turn our attention to whether the record contains substantial and
material evidence to support the hearing panel’s findings with regard to the violations that
were neither conceded by Mr. Flowers nor set aside by the trial court or this Court. Mr.
Flowers’s argument is generic and does not direct us to any specific evidentiary shortcomings
regarding any particular violation. We have reviewed the March 21, 2007 “Statement of
Material Facts not in Dispute in Support of the Board’s Motion for Partial Summary
Judgment” which was not contemporaneously objected to by Mr. Flowers, the transcript of
the June 21, 2007 disciplinary hearing, the hearing panel’s August 2, 2007 “Findings of Fact,
Conclusions of Law and Judgment,” and the trial court’s September 17, 2008 memorandum
opinion. Having done so, we conclude that the remaining violations are indeed supported
by substantial and material evidence.
X.
Mr. Flowers finally contends that the one-year suspension of his license to practice
law is excessive. Disciplinary Counsel responds that Mr. Flowers’s conceded violations are
alone sufficient to justify a one-year suspension and that the additional violations serve to
bolster the correctness of this sanction.
In determining “an appropriate sanction when an attorney is found to have breached
the rules governing his or her profession, we are required to review all of the circumstances
of the particular case and also, for the sake of uniformity, sanctions imposed in other cases
presenting similar circumstances.” Bd. of Prof’l Responsibility v. Allison, 284 S.W.3d 316,
327 (Tenn. 2009). We also use the ABA Standards for guidance. Tenn. Sup. Ct. R. 9, § 8.4;
Threadgill v. Bd. of Prof’l Responsibility of Supreme Court, 299 S.W.3d at 809-10.
-23-
Mr. Flowers conducted his large immigration law practice in a manner that exhibited
serious incidents of professional neglect, lack of responsiveness once apprised of deficiencies
or potential deficiencies in his performance, abuses of the procedural protections of the
judicial process, repeated failures to honor the dictates of supervisory professional
authorities, repeated failures to communicate with his clients regarding matters of great
importance, and repeated failures to maintain his trust account properly.
Under the ABA Standards, “[s]uspension is generally appropriate when a lawyer
knows or should know that he is dealing improperly with client property and causes injury
or potential injury to a client.”36 Suspension is also considered appropriate where “[a] lawyer
engages in a pattern of neglect [that] causes injury or potential injury to a client.” 37
Additionally, “[s]uspension is generally appropriate when a lawyer knowingly engages in
conduct that is a violation of a duty as a professional and causes injury or potential injury to
a client, the public, or the legal system.”38 Furthermore, suspension is “generally appropriate
when a lawyer has been reprimanded for the same or similar misconduct and engages in
further similar acts of misconduct that cause injury or potential injury to a client, the public,
the legal system, or the profession.”39 Mr. Flowers’s conduct transgresses each of the
aforementioned standards for which suspension of six months or more but less than three
years is recommended.40
Aggravating factors assist in determining what sanction should be imposed.41 The
hearing panel also found multiple aggravating factors, including, (1) a prior disciplinary
offense,42 (2) a selfish motive by failing to return unearned fees,43 (3) a pattern of neglect and
dilatory conduct constituting multiple offenses,44 (4) refusal to acknowledge the wrongful
36
ABA Standards § 4.12.
37
ABA Standards § 4.42(b).
38
ABA Standards § 7.2.
39
ABA Standards § 8.2.
40
ABA Standards § 2.3.
41
ABA Standards § 9.1.
42
ABA Standards § 9.22(a).
43
ABA Standards § 9.22(b).
44
ABA Standards § 9.22(c).
-24-
nature of his conduct,45 and (5) an indifference to making restitution.46 The Hearing Panel
also found that Mr. Flowers’s misconduct was committed against vulnerable victims.47
Given the variety, number, and severity of the violations committed by Mr. Flowers
as well as the aggravating factors present in this case, we find that Mr. Flowers’s contention
that the hearing panel imposed, and the trial court affirmed, an excessive sanction is without
merit. Simply stated, we find no basis to warrant setting aside or reducing the one-year
suspension of Mr. Flowers’s license to practice law.
XI.
For the reasons stated above, we vacate the finding of a violation of Tenn. Sup. Ct.
R. 8, RPC 1.4(a), (b) & 8.4(a), (c), (d) with regard to Mr. Flowers’s representation of Mr.
Pame and of Tenn. Sup. Ct. R. 8, RPC 1.5(a) with regard to Mr. Flowers’s filings before the
United States Court of Appeals for the Sixth Circuit. We affirm all the other violations
affirmed by the trial court. Accordingly, we likewise affirm the hearing panel’s suspension
of Mr. Flowers’s license to practice law for one year, its order requiring reimbursement, and
the conditions attached to Mr. Flowers’s reinstatement. We also tax the costs of this appeal
to Timothy Darnell Flowers and his surety for which execution, if necessary, may issue.
______________________________
WILLIAM C. KOCH, JR., JUSTICE
45
ABA Standards § 9.22(g).
46
ABA Standards § 9.22(j).
47
ABA Standards § 9.22(h).
-25-