IN THE SUPREME COURT OF TENNESSEE
AT NASHVILLE
February 13, 2008 Session
BOARD OF PROFESSIONAL RESPONSIBILITY v.
EDWARD I. CURRY, III
Appeal by Permission from the Chancery Court for Shelby County
No. CH-04-2127-3 W. Michael Maloan, Chancellor
No. W2006-02688-SC-R3-CV - Filed October 3, 2008
This appeal involves a disciplinary proceeding against a lawyer that arises from a fee dispute. A
hearing panel of the Board of Professional Responsibility suspended the lawyer for six months after
determining (1) that he engaged in unprofessional conduct by placing an unauthorized endorsement
on a settlement check and (2) that he had converted funds he had withdrawn from his trust account
to pay his fee because he failed to return the funds after his client disputed his fee. The lawyer
appealed to the Chancery Court for Shelby County. Based on the record of the proceeding before
the hearing panel and additional evidence, the reviewing court reduced the six-month suspension to
a public censure after determining that the hearing panel erred by concluding that the lawyer had
converted his client’s funds and that he was obligated to return the funds after his client disputed his
fee. Disciplinary Counsel appealed to this Court. We hold that a public censure is an appropriate
remedy in this case.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed
WILLIAM C. KOCH , JR., J., delivered the opinion of the court, in which WILLIAM M. BARKER, C.J.,
JANICE M. HOLDER, CORNELIA A. CLARK, and GARY R. WADE, JJ., joined.
Jesse D. Joseph, Nashville, Tennessee, for the appellant, Board of Professional Responsibility of the
Supreme Court of Tennessee.
Robert L. Green and Darryl D. Gresham, Memphis, Tennessee, for the appellee, Edward I. Curry,
III.
OPINION
I.
Edward Inman Curry, III has been licensed to practice law in Tennessee since 1984. He
practices in Memphis where he is also a member of St. John’s Episcopal Church. When the facts
giving rise to this proceeding arose, Mr. Curry also served as a board member of Recovery Ministries
of the Episcopal Church, Inc., a national membership organization whose mission is to address
substance abuse issues. One of his fellow board members was the Right Reverend Charles I. Jones,
III, the Bishop of Montana.
On January 30, 1999, while both men were attending a Recovery Ministries board meeting
in New Orleans, Bishop Jones1 confided to Mr. Curry that he was facing disciplinary action by the
Episcopal Church in the United States. The bishop’s difficulties stemmed from a charge of sexual
misconduct with an adult parishioner before he was elected Bishop of Montana. Bishop Jones asked
Mr. Curry to represent him because he had been notified that he would be placed on trial before an
ecclesiastical court.
Mr. Curry and Bishop Jones disagree regarding the terms of Mr. Curry’s engagement. Bishop
Jones asserts that he and Mr. Curry agreed in New Orleans that Mr. Curry would represent him for
a nominal fee of one dollar plus reimbursement for Mr. Curry’s out-of-pocket expenses. For his part,
Mr. Curry insists that he told Bishop Jones in New Orleans that he desired to consider the matter
before agreeing to represent him. Mr. Curry and Bishop Jones do, however, agree that they
discussed the possibility that Mr. Curry’s fee might be paid by the Diocese of Montana or the
national Episcopal Church.
In early February 1999, after Mr. Curry returned to Memphis, he discussed representing
Bishop Jones with the senior rector at St. John’s. He expressed concern about representing Bishop
Jones because he did not desire to act inconsistently with his moral obligations to the church. The
rector assured him that representing Bishop Jones would not necessarily create a rift between Mr.
Curry and the Episcopal Church. Following this conversation, Mr. Curry prepared and mailed an
engagement letter to Bishop Jones dated February 4, 1999, stating that his fee would be calculated
on an hourly basis plus expenses and that he would be entitled to one-third of any recovery Bishop
Jones might receive, which would be credited against his hourly fee. If Mr. Curry’s share of the
recovery exceeded his hourly fee, Bishop Jones would retain the excess. However, if Mr. Curry’s
share of the recovery was less than his hourly fee, Bishop Jones would be personally responsible for
the difference.
Mr. Curry did not expressly ask Bishop Jones to indicate his assent to the terms in the
February 4, 1999 letter.2 Bishop Jones denies that he ever received the letter.
Mr. Curry’s efforts on behalf of Bishop Jones consumed a significant amount of his time over
the course of the next three years. He traveled to Chicago, Illinois and Billings, Montana to
negotiate a financial settlement for Bishop Jones in return for his voluntary resignation as Bishop
1
Even though Bishop Jones later resigned as Bishop of the Diocese of Montana, we will refer to him as “Bishop
Jones” in this opinion.
2
Mr. Curry did not ask Bishop Jones to sign the letter to indicate his assent to the terms of representation. The
Code of Professional Responsibility did not require contingency fees to be memorialized in writing. In March 2003, the
Rules of Professional Conduct replaced the Code of Professional Responsibility, and with the new rules came a
requirement that contingency fees be established in writing. Compare Tenn. Sup. Ct. R. 8, DR 2-106(B) (1999), with
Tenn. Sup. Ct. R. 8, RPC 1.15(c) (2007). Regardless, whether or not this fee arrangement constitutes a fee contingent
upon the outcome of the matter is not at issue in this case.
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of Montana. He also counseled Bishop Jones regarding possible legal action against the national
Episcopal Church, the Church Insurance Companies,3 and other individuals. He also represented
Bishop Jones before the ecclesiastical court. Mr. Curry periodically forwarded Bishop Jones fee and
expense statements, and Bishop Jones made payments to Mr. Curry on at least five occasions prior
to January 6, 2001.4
On February 22, 2001, shortly after the special ecclesiastical court recommended that he be
defrocked, Bishop Jones reached a settlement with the Diocese of Montana. Bishop Jones agreed
that he would resign as Bishop of Montana in exchange for a severance package that consisted of
fifteen months’ compensation – $118,859.00 – and the forgiveness of the $54,978.91 mortgage on
his house which was held through the Diocese.5 This agreement was memorialized in a February
23, 2001 letter written by Mr. Curry to representatives of the Diocese of Montana. In the letter, Mr.
Curry stated his understanding that the Diocese would purchase and fund an annuity for Bishop
Jones. Mr. Curry further stated, “I will have a representative from Union Central [Life Insurance
Company]6 contact Jim [Hunt]7 regarding the purchase. The purchase and funding of the annuity
is to be done such that the first payment from the annuity will occur on March 25, 2001.”
Bishop Jones, who is also a certified public accountant, came up with the idea of using the
settlement funds to purchase an annuity. He decided that he could minimize his tax obligations by
having the Diocese of Montana purchase an annuity for him rather than receiving periodic cash
payments from the Diocese. Although Mr. Curry and Mr. Hunt continued to discuss the settlement,
they never finalized the terms of the purchase and funding of the annuity mentioned in the February
23, 2001 letter. Accordingly, in a letter dated March 19, 2001, Mr. Curry requested Mr. Hunt to mail
him a settlement check for $118,859, made jointly payable to him and Union Central. Mr. Curry told
Mr. Hunt that he would take care of the paperwork for the annuity through Union Central’s office
in Memphis and that he would then forward the paperwork to Mr. Hunt for his signature on behalf
of the Diocese. On March 19, 2001, the Diocese of Montana mailed Mr. Curry a check for $118,859
made jointly payable to Mr. Curry and Union Central.
Bishop Jones was reconsidering whether he wanted to purchase an annuity from Union
Central by the time Mr. Curry received the check from the Diocese of Montana. However, he was
3
Bishop Jones had a policy through the Church Insurance Companies whereby attorneys fees and expenses
would be covered in case of a legal or ecclesiastical proceeding. The Church Insurance Companies’ position was that
the policy did not cover the charge of sexual misconduct against Bishop Jones.
4
Bishop Jones paid Mr. Curry a total of $529.45 earmarked toward repayment of Mr. Curry’s expenses. He also
paid Mr. Curry $4,500, including $1,500 that had been solicited from members of Bishop Jones’s diocese for the explicit
purpose of paying his attorney’s fees.
5
Bishop Jones had previously rejected substantially larger settlement offers that included sums specifically
earmarked for the payment of his attorney’s fees. The offer he accepted did not include funds earmarked for his legal
expenses.
6
W e will henceforth refer to Union Central Life Insurance Company as “Union Central.”
7
Jim Hunt represented the Diocese of Montana during the negotiations.
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eager to take possession of the settlement proceeds because he was concerned that the Diocese of
Montana might decide to audit the diocesan accounts during his tenure. Accordingly, Mr. Curry set
out to cash the settlement check and then to hold the proceeds awaiting Bishop Jones’s direction.
Mr. Curry’s first effort to deposit the check into his escrow account failed because the bank
would not accept the check without Union Central’s endorsement. On March 28, 2001, Mr. Curry
discussed the matter with Richard Fisher, an agent for Union Central in Memphis, who suggested
that they telephone Union Central’s chief financial officer in Cincinnati to discuss how to proceed
with the check. Mr. Fisher placed a telephone call to Steven Valerius. Mr. Valerius and Mr. Curry
discussed the matter and agreed that Union Central had no interest in the settlement proceeds
because Bishop Jones had not applied for an annuity.8 Mr. Valerius did not, however, explicitly give
Mr. Curry permission to endorse the check on behalf of Union Central. Nonetheless, following the
telephone call with Mr. Valerius, Mr. Curry added the following endorsement underneath his own
endorsement: “Union Central Life by EIC III per Steve Valerius, CFO Deposit Only.” Then he
deposited the check into his trust account. Following a telephone conversation with Bishop Jones,
Mr. Curry withdrew one-third of the amount of the check as payment of his fee and deposited these
funds in his personal account.
Bishop Jones remained undecided regarding the terms of the settlement and the use of the
settlement funds throughout the Spring of 2001. At one point, he decided that he would prefer to
refinance his house on his own and to receive as an additional settlement funds equal to the amount
of his mortgage debt. He also decided that he would prefer to own the annuity himself. Bishop
Jones requested Mr. Curry to disburse $5,000 of the settlement proceeds to him while he shopped
around for an annuity with a more favorable interest rate. Mr. Curry forwarded Bishop Jones a check
for $5,000 on April 27, 2001.
Mr. Curry kept Mr. Hunt informed of Bishop Jones’s indecision regarding the settlement.
In a faxed letter dated May 16, 2001, Mr. Curry informed Mr. Hunt that he had placed the initial
proceeds in escrow, that Bishop Jones had received part of the proceeds, and that the final check
representing the mortgage forgiveness should be made payable to “Edward I. Curry, III, Attorney for
Ci Jones.”9 Mr. Hunt responded that the Diocese of Montana was agreeable to Bishop Jones’s
decision regarding the mortgage, as long as the Diocese could issue an IRS Form 1099 to Mr.
Curry’s firm reflecting the total amount of the settlement. On May 17, 2001, Mr. Curry sent another
check for $2,000 to Bishop Jones at his request.
8
On March 26, 2001, Bishop Jones had filled out an application for a Union Central annuity and faxed it to Mr.
Curry. However, many elements of the application were left blank, including determinations as to whether the annuity
would be “Qualified” or “Non Qualified”; whether or not Mr. Curry chose to have required federal taxes withheld from
annuity disbursements; and the dollar amount being used to fund the annuity.
9
The letter contains the notation “cc: Ci Jones.” Bishop Jones’s familiar name was “Ci Jones.” Bishop Jones
later testified that he “could have received this letter, but [he did not] remember receiving it” because he “would have
objected strongly” to the check being made payable to Mr. Curry as his attorney. The facsimile cover sheet and the
delivery confirmation appear in the record.
-4-
On May 23, 2001, the Diocese of Montana issued a check for $54,978.91 in place of the
forgiveness of Bishop Jones’s mortgage. Despite Mr. Curry’s and Mr. Hunt’s previous
correspondence, the check was once again issued to Union Central and Mr. Curry. Mr. Curry
endorsed the check in his own name and, on June 19, 2001, deposited it into his escrow account
without any endorsement by Union Central. This time the bank accepted the check for deposit and
credited Mr. Curry’s trust account. After a telephone conversation with Bishop Jones, he withdrew
one-third of the amount of the check and deposited the funds in his personal account as payment of
his fee. On June 25, 2001, Mr. Curry disbursed $2,400 to Bishop Jones at his request. Bishop Jones
was apparently still shopping for annuity interest rates at the time.
The relationship between Mr. Curry and Bishop Jones began to sour later in July 2001 after
Bishop Jones asked Mr. Curry to represent him pro bono on his appeal from the decision
recommending that he be defrocked as a priest. In a letter to Bishop Jones dated July 25, 2001, Mr.
Curry stated: “In response to your query as to whether I would be willing to handle the appeal [of
the ecclesiastical matter] on a pro bono basis . . . the answer is no. I would consider representing you
. . . under the same terms and conditions as before.” Included with this letter was another $5,000
disbursement of the settlement proceeds requested by Bishop Jones.
In a letter dated July 26, 2001, Mr. Curry transmitted his “final fee bill for services” to
Bishop Jones. The “final fee bill for services” reflected the withdrawal of $57,945.97 for Mr.
Curry’s “a fee,” as well as the withdrawal of approximately $12,000 for expenses. Mr. Curry’s
letter also updated Bishop Jones regarding the status of the negotiations with the Church Insurance
Companies. He concluded the letter with “I should have an interest rate for you on a fixed rate
annuity within the next several days. [A Union Central representative] was somewhat surprised that
you had found one at 6.00%.”
On July 30, 2001, Mr. Curry sent another letter to Bishop Jones informing him that it was
unlikely that the Episcopal Church would voluntarily pay for the legal expenses that Bishop Jones
had incurred in the ecclesiastical proceeding. Mr. Curry also informed Bishop Jones that a resolution
of his currently outstanding fees would be necessary before he would undertake to represent the
bishop in his claims against the Episcopal Church. Mr. Curry stated:
[P]rior to proceeding with these suits, we need to resolve the issue of
your outstanding fee statement, since it is now apparent that neither
PECUSA10 or CIC11 will voluntarily pay your fees and expenses
(other than the small payment received from the Presiding Bishop).
I forwarded a final statement to you last week and after giving you
credit for all receipts and adjustments, the balance owed is
$119,364.23.
10
This acronym refers to the Protestant Episcopal Church in the United States of America.
11
This acronym refers to the Church Insurance Companies.
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Mr. Curry also pointed out to Bishop Jones that while he had requested payment of these bills in the
past, he had not pressed the issue because of their “relationship.” He concluded by suggesting that
Bishop Jones contact him to set up a payment plan for the unpaid balance of his bill.
For his part, Bishop Jones wrote a letter to Mr. Curry on July 26, 2001. With the exception
of the funds that had already been disbursed to him, Bishop Jones insisted that all funds received
from the Diocese of Montana should be used to purchase “a fixed annuity, hopefully at six or more
percent . . . beginning now on August 25, 2001.” On August 4, 2001, Bishop Jones wrote Mr. Curry,
acknowledging receipt of Mr. Curry’s July 25, July 26, and July 30 letters. He stated, “Before we
can discuss any of the issues you raise in your letter, I feel you simply must comply with our
agreement regarding the annuity.”
Toward the end of July 2001 – as it became evident that he and Bishop Jones were heading
toward an impasse about his fee – Mr. Curry informed another lawyer, Kim Mullins, about the
situation with Bishop Jones. At Ms. Mullins’s suggestion, Mr. Curry and Ms. Mullins called Lance
Bracy, the Board of Professional Responsibility’s Chief Disciplinary Counsel, seeking informal
advice. Following his conversation with Mr. Bracy, Mr. Curry placed the remaining funds from
Bishop Jones’s settlement – $94,491.1512 – into a separate, interest-bearing account.
Bishop Jones filed a complaint against Mr. Curry with the Board of Professional
Responsibility. He also filed suit against Mr. Curry in the Circuit Court for Shelby County. Mr.
Curry filed a counterclaim against Bishop Jones for the unpaid portion of his fee. Mr. Curry and
Bishop Jones eventually settled their fee dispute to Bishop Jones’s full satisfaction, and the pending
lawsuit was dismissed. They also informed the Chief Disciplinary Counsel that they had resolved
their dispute. However, on October 29, 2002, following its own independent investigation of Bishop
Jones’s complaint, the Chief Disciplinary Counsel filed a Petition for Discipline against Mr. Curry.
The petition alleged that Mr. Curry had agreed to represent Bishop Jones for one dollar and that he
had “fraudulently converted funds he had a fiduciary responsibility to use for the agreed upon
purposes to benefit his client.”
One of the Board’s hearing panels conducted a hearing on July 19, 2004. The evidence
submitted to the hearing panel included the deposition testimony of Bishop Jones and his wife,
several communicants from the Diocese of Montana, Mr. Hunt, officials from Union Central, and
Bishop Jones’s former lawyers. Mr. Curry and Ms. Mullins testified in Mr. Curry’s defense.13 In
its August 27, 2004 order, the hearing panel declined to make factual findings regarding the terms
of the fee agreement between Mr. Curry and Bishop Jones. According to the panel, “[e]ven
assuming [Mr. Curry] believed there was no dispute as to the funds . . . as of July 26, 2001, he knew
differently. . . . [B]y failing to replace [the funds Mr. Curry had withdrawn as a fee] once it became
clear that his fee was in dispute, Curry violated [Tenn. Sup. Ct. R. 8, DR1-102(A)(1), (5), (6) and
12
Only $89,491.15 of the settlement funds remained. Mr. Curry added $5,000 to these funds because he was
unsure whether Bishop Jones had received the last $5,000 disbursement.
13
Ms. Mullins gave her testimony via a teleconference.
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DR9-102(A)(2)].”14 The hearing panel determined that Mr. Curry should be suspended from the
practice of law for six months, and that, following his suspension, he should be placed on probation
for six months.
Mr. Curry appealed to the Chancery Court for Shelby County. On June 13, 2006, the court
heard the matter on the record of the hearing panel’s proceeding and also heard testimony from Mr.
Curry and Ms. Mullins.15 In its October 30, 2006 amended judgment, the reviewing court adopted
the panel’s findings of fact. It also determined that Mr. Curry had endorsed the settlement check
without authority, thereby violating Tenn. Sup. Ct. R. 8, DR1-102(A)(1),(5), and (6).16 With regard
to Mr. Curry’s alleged violation of Tenn. Sup. Ct. R. 8, DR 9-102(A)(2), the court determined that
the plain language of the rule did not require an attorney to return funds withdrawn before a fee
dispute arises. Accordingly, the court overturned the hearing panel’s finding that Mr. Curry had
violated Tenn. Sup. Ct. R. 8, DR 9-102(A)(2). The court determined that Mr. Curry had neither
misused nor misappropriated client funds. After considering Mr. Curry’s unblemished record to be
a mitigating factor and his substantial experience in the practice of law to be an aggravating factor,
the reviewing court determined that a public censure was the appropriate sanction. The Disciplinary
Counsel has appealed.
II.
Like other cases involving disciplinary proceedings against lawyers that we have recently
decided, the procedural time-line in this case straddles the former and current versions of Tenn. Sup.
Ct. R. 9 § 1.3. The current version of Tenn. Sup. Ct. R. 9 § 1.3, which took effect on July 1, 2006,
contains a standard of review that differs from the previous rule. Accordingly, we must, at the
outset, choose which standard we will use to review the trial court’s opinion in this case.
14
At the time, Tenn. Sup. Ct. R. 8, DR 1-102(A) read:
A lawyer shall not:
(1) Violate a Disciplinary Rule.
...
(5) Engage in conduct that is prejudicial to the administration of justice.
(6) Engage in any other conduct that adversely reflects on his fitness to practice law.
Tenn. Sup. Ct. R. 8, DR 9-102(A)(2) read:
Funds belonging in part to a client and in part . . . to the lawyer . . . may be withdrawn [from the
lawyer’s insured depository account] when due unless the right of the lawyer . . . to receive it is
disputed by the client, in which event the disputed portion shall not be withdrawn until the dispute
is finally resolved.
15
The court excluded testimony of an expert witness with regard to the ethical propriety of Mr. Curry’s actions.
16
Although the court referred to the unauthorized endorsement of “checks” the record demonstrates that Mr.
Curry only purported to endorse for Union Central on one check. The other check was simply missing an endorsement.
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In Board of Professional Responsibility v. Love, 256 S.W.3d 644 (Tenn. 2008), we reviewed
a proceeding involving a petition for reinstatement to the practice of law. In that case, the trial court
conducted its hearing on August 9, 2006. Bd. of Prof’l Responsibility v. Love, 256 S.W.3d at 649.
We determined that we should apply the current post-July 1, 2006 standard of review:
Tennessee Supreme Court Rule 9, section 1.3, does not affect Love’s
vested rights or liabilities. To the contrary, the rule focuses only on
the way in which the trial court reviews a hearing panel’s decision.
And because the new standard is procedural in nature and does not
impair an obligation of contract, applying the new standard to trial
court proceedings conducted after its effective date would not
produce an unjust result. . . . Accordingly, we hold that the new
standard of review, which became effective July 1, 2006, was
applicable during the trial court’s August 9, 2006 hearing.
Bd. of Prof’l Responsibility v. Love, 256 S.W.3d at 652 (emphasis added). Two months later, in
Hughes v. Board of Professional Responsibility, 259 S.W.3d 631 (Tenn. 2008), we reviewed another
proceeding involving a petition for reinstatement in which the trial judge was appointed and the
hearing was conducted after July 1, 2006. Hughes v. Bd. of Prof’l Responsibility, 259 S.W.3d at
___.17 This Court again applied the current standard of review. Hughes v. Bd. of Prof’l
Responsibility, 259 S.W.3d at ___.18
In both Love and Hughes, we also cited the general principle that remedial or procedural laws
apply retroactively to all actions pending when the new law took effect unless the application of the
new law would produce an unjust result. Hughes v. Bd. of Prof’l Responsibility, 259 S.W.3d at
___;19 Bd. of Prof’l Responsibility v. Love, 256 S.W.3d at 652. We have determined that using the
current standard of review in Tenn. Sup. Ct. R. 9 § 1.3 in cases heard by a trial court before July 1,
2006 could produce unjust results.
In trial court proceedings that occurred before July 1, 2006, the lawyers prepared and
presented their cases based on their understanding that the reviewing courts – both the trial court and
this Court – would employ the pre-July 1, 2006 standard of review. Changing the standard of review
after the lawyers have presented their cases without also giving the parties the opportunity to adjust
their strategy and their proof creates the possibility that the courts will decide the case based on
factors that the parties had no notice of when they presented their case. This essential unfairness can
be avoided by applying the current standard of review in Tenn. Sup. Ct. R. 9 § 1.3 in cases in which
the trial court hearing occurred after July 1, 2006 and by applying the pre-July 1, 2006 standard of
review in cases in which the trial court hearing occurred before July 1, 2006.
17
See Hughes v. Bd of Prof’l Responsibility, 2008 W L 2687436, at *4.
18
See Hughes v. Bd of Prof’l Responsibility, 2008 W L 2687436, at *7.
19
See Hughes v. Bd. of Prof’l Responsibility, 2008 W L 2687436, at *6.
-8-
In this case, unlike Love and Hughes, the trial court conducted its hearing before July 1, 2006,
the effective date of the current standard of review. Our application of the pre-July 1, 2006 version
of the standard of review is, therefore, consistent with our opinions in Love and Hughes and reflects
the standard of review that was available to the court and parties at the time of the trial court’s
hearing in each of these cases.
At the time of the hearing before the trial court in this case, Tenn. Sup. Ct. R. 9 § 1.3
required that the trial court’s judgment be based on the record before the hearing panel and on the
additional evidence that Mr. Curry elected to present. The trial court was charged with weighing this
evidence and then determining the facts by the preponderance of the evidence. Therefore, our review
of the trial court’s decision is de novo upon the record of the trial court, with a presumption of
correctness given to the trial court’s findings unless the evidence preponderates against those
findings. Milligan v. Bd. of Prof’l Responsibility, 166 S.W.3d 665, 671 (Tenn. 2005); Bd. of Prof’l
Responsibility v. Slavin, 145 S.W.3d 538, 545-46, 546 n.4 (Tenn. 2004). However, when neither the
hearing panel nor the trial court has made specific findings of fact on a particular matter, we will
review the record to determine where the preponderance of the evidence lies without employing a
presumption of correctness. See Hardcastle v. Harris, 170 S.W.3d 67, 78-79 (Tenn. 2004);
Ganzevoort v. Russell, 949 S.W.2d 293, 296 (Tenn. 1997).
III.
Despite the reticence of both the hearing panel and the reviewing court to make specific
findings of fact with regard to the terms of Mr. Curry’s engagement, we have determined that
definitively addressing this matter is essential to a just and proper adjudication of this case. In the
absence of findings by either the hearing panel or the reviewing court, we must undertake this task
ourselves. Doing so in this case will not undermine the superior ability of either the hearing panel
or the reviewing court to assess the credibility of the witnesses because most of the relevant
evidence, with the exception of Mr. Curry’s testimony, was presented in affidavits and depositions.20
It has been Bishop Jones’s contention throughout this proceeding that even though Mr. Curry
generated fee statements and forwarded them to him, the parties actually had an understanding that
Mr. Curry would look only to third parties for the payment of his fee. The Board apparently took
that position as well. We have determined that this version of the agreement between Mr. Curry and
Bishop Jones is at odds with the evidence in the record. We begin, therefore, with an examination
of the evidence concerning the February 4, 1999 fee agreement letter.
Mr. Curry testified that he prepared the February 4, 1999 engagement letter and duly mailed
it to Bishop Jones. He produced a copy of this letter at trial and stated unequivocally that the letter
reflected the terms upon which he agreed to represent Bishop Jones. For his part, Bishop Jones, his
wife, and two of his former clerical employees denied that he received the letter, and Bishop Jones
asserted that the letter produced by Mr. Curry did not reflect the parties’ actual agreement.
20
W hen evidence is presented though a deposition, the appellate courts are just as able to judge the witness’s
credibility as the trial court. See Bohanan v. City of Knoxville, 136 S.W .3d 621, 624 (Tenn. 2004); Wells v. Tenn. Bd.
of Regents, 9 S.W .3d 779, 784 (Tenn. 1999); Orman v. Williams Sonoma, Inc., 803 S.W .2d 672, 676 (Tenn. 1991).
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Tennessee’s courts recognize the rebuttable presumption that a letter that has been properly
mailed has been delivered to and received by the addressee. Auto Credit of Nashville v. Wimmer,
231 S.W.3d 896, 901 (Tenn. 2007); Modern Upholstered Chair Co. v. Henry, 213 Tenn. 475, 483,
376 S.W.2d 441, 444 (1964). To overcome this presumption, the addressee must present credible
evidence of non-receipt. See In re Adoption of S.A.W., No. M2007-01690-COA-R3-PT, 2008 WL
820540, at *1 (Tenn. Ct. App. Mar. 26, 2008) perm. app. denied (Tenn. June 23, 2008). Once
rebuttal evidence is presented, the question of receipt becomes an issue of fact for the trial court to
decide. U.S. Life Title Ins. Co. of N.Y. v. Dep’t of Commerce & Ins., 770 S.W.2d 537, 542 (Tenn.
Ct. App. 1988).
While Bishop Jones insisted that he did not receive Mr. Curry’s February 4, 1999
engagement letter, he conceded that he “very rarely” opened the mail delivered to his office. Two
of the persons who worked in the diocesan office testified that they did not recall opening this letter
and did not recall seeing it until after this dispute arose.21 We have determined that Bishop Jones’s
evidence is not sufficient to rebut the presumption that Mr. Curry prepared and mailed the February
4, 1999 engagement letter and that Bishop Jones received it.
We have also determined that Mr. Curry’s testimony regarding the negotiation and substance
of his agreement to represent Bishop Jones is more credible than Bishop Jones’s version and is
corroborated by the record. Mr. Curry testified that he did not agree to represent Bishop Jones
during their conversations in New Orleans because he desired to consider the matter further. He also
testified that he talked with his rector about the advisability of representing Bishop Jones and that
he agreed to represent Bishop Jones only after he talked with his rector. Mr. Curry’s rector
corroborated that this conversation occurred after Mr. Curry returned from New Orleans.
Bishop Jones’s awareness of his obligation to pay attorney’s fees is further buttressed by the
fact that he paid Mr. Curry $4,500 in July 2000 using his personal funds and funds he had solicited
from communicants in the Diocese of Montana expressly for the purpose of paying his attorney’s
fees. Mr. Curry’s receipt of this payment was reflected in the October 31, 2000 fee statement he sent
to Bishop Jones. In December 2000, Mr. Curry sent a letter to Bishop Jones reminding him of his
personal obligation to pay attorney’s fees.22 In a January 21, 2001 letter to Mr. Curry, Bishop Jones
stated that he was prepared to resign as Bishop of Montana if he could be assured of a disability
pension and the payment of his attorney’s fees.
After Bishop Jones and Mr. Curry discussed pursuing claims against the Episcopal Church,
Mr. Curry told Bishop Jones in a letter dated April 27, 2001 that “rather than charging you an hourly
rate of $185.00 plus expenses with credit for a of any recovery, I will handle [claims] . . . on a pure
contingency basis. . . . You will be responsible for payment of . . . expenses regardless of any
recovery.” Additionally, in his July 25, 2001 letter to Bishop Jones, Mr. Curry specifically declined
21
The testimony of Bishop Jones’s wife regarding the mail received at home is irrelevant because Mr. Curry’s
February 4, 1999 letter was mailed to Bishop Jones’s office address.
22
Bishop Jones denied receiving this letter as well. He presented no evidence other than his testimony, however,
to rebut the presumption that the letter was received upon its mailing.
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to represent Bishop Jones pro bono on the appeal from the ecclesiastical court’s decision to defrock
him but offered to represent Bishop Jones “on the same terms and conditions as before.” Finally,
we note that Bishop Jones, on several occasions, made representations to church officials and
communicants of the Diocese of Montana that he was encountering great personal hardship because
of his escalating attorney’s fees.
We are not unmindful of the evidence presented by the Board to establish its assertion that
Mr. Curry agreed to represent Bishop Jones for one dollar plus expenses. This evidence includes
(1) Bishop Jones’s and his wife’s accounts of their meeting with Mr. Curry in New Orleans on
January 30, 1999, (2) the recollections of other persons who had gathered to support Bishop Jones,
prior to his ecclesiastical trial on November 19, 2000 in Minneapolis, Minnesota, during which
Bishop Jones publicly thanked Mr. Curry for representing him without a fee and Mr. Curry
purportedly responded that “he was glad to do it,” and (3) Mr. Hunt’s recollection that Mr. Curry told
him twice during two different telephone conversations that he was not taking a fee to represent
Bishop Jones.
Mr. Curry’s version of his January 30, 1999 conversation with Bishop Jones in New Orleans
differs from those of Bishop Jones and his wife. Mr. Curry also testified that he did not hear Bishop
Jones’s comment about the one-dollar fee in Minneapolis and that, if he had, he would have
responded to it at the time. Finally, Mr. Curry testified that Mr. Hunt had misconstrued his
comments. He stated that on one occasion during the negotiations, he told Mr. Hunt, out of
frustration with Bishop Jones, that he “would be willing to waive [his] fee just to get rid of the case.”
Mr. Curry also testified on another occasion that he told Mr. Hunt that the settlement should not
include a separate amount for attorney’s fees.
After taking the entire record into consideration, particularly the documentary evidence
prepared contemporaneously with the significant events in this case and the other corroborating
evidence, we have determined that the preponderance of the evidence supports a finding that Bishop
Jones’s engagement of Mr. Curry was based on the terms contained in Mr. Curry’s February 4, 1999
letter. We have also determined that the preponderance of the evidence supports a finding that both
Mr. Curry and Bishop Jones intended to seek the payment of all or part of these fees from the
Diocese of Montana, the Church Insurance Companies, or the Episcopal Church and that Bishop
Jones remained personally liable for the fees that were not paid by these parties. Were we to reach
any other conclusion, we would be forced to conclude that Bishop Jones was actively misleading
church officials and other communicants in the Diocese of Montana regarding his obligation to pay
attorney’s fees.
IV.
The Board sought to discipline Mr. Curry based on his conduct with regard to the deposit of
the two settlement checks from the Diocese of Montana and with regard to his withdrawal of a
portion of the proceeds of these checks to pay his legal fees. The hearing panel based its decision
to discipline Mr. Curry on its conclusions (1) that Mr. Curry had “converted” a portion of the
settlement proceeds to his own use, (2) that Mr. Curry had failed to return the withdrawn funds to
his trust account when “it became clear that the fee was in dispute,” and (3) that Mr. Curry supplied
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Union Central’s endorsement on one of the settlement checks when he did not have actual or
apparent authority to do so.
The reviewing court, after considering the evidence presented to the hearing panel and after
hearing additional proof, concluded that Mr. Curry had not converted the portion of the settlement
proceeds that he withdrew from his trust account and that Mr. Curry was not required to replace the
funds he had withdrawn after the fee dispute arose. However, the court concurred with the hearing
panel’s conclusion that Mr. Curry had acted unethically by supplying Union Central’s endorsement
on one of the settlement checks without authority.
A.
We turn first to Mr. Curry’s actions with regard to his receipt of the settlement funds from
the Diocese of Montana. Based on this record, there is no basis for concluding that Mr. Curry
engaged in any misconduct with regard to Bishop Jones by receiving these funds from the Diocese
and depositing them into his trust account. In fact, it is clear that Mr. Curry was following Bishop
Jones’s directions and was acting with Bishop Jones’s full knowledge and assent.
It is undisputed that, when Mr. Curry received the first settlement check from the Diocese,
Bishop Jones was attempting to minimize his tax liability and to identify an investment vehicle for
the settlement funds that would yield the best return. At the same time, it is also undisputed that
Bishop Jones was concerned about what an audit of the financial records of the Diocese of Montana
might reveal. While Bishop Jones was reluctant to receive the settlement funds directly, he desired
to make sure the funds were beyond the reach of the Diocese. Accordingly, he and Mr. Curry agreed
that Mr. Curry would hold the funds “in escrow” in Mr. Curry’s trust account until Bishop Jones
could sort things out.
Bishop Jones was clearly aware of where the settlement proceeds were. He received periodic
updates from Mr. Curry regarding the status of these funds, and on four occasions between April 27
and July 25, 2001, Mr. Curry promptly disbursed funds when Bishop Jones requested him to do so.
Based on this evidence, there is no basis to conclude that Mr. Curry violated Tenn. Sup. Ct. R. 8, DR
9-102(B)(3), (4).23
Even though the hearing panel declined to make findings regarding the terms of Mr. Curry’s
engagement, we have determined that the evidence supports finding that Mr. Curry was entitled to
a fee for his services to Bishop Jones based on the terms in Mr. Curry’s February 4, 1999 letter.
Accordingly, Mr. Curry did not convert or misappropriate funds from Bishop Jones when he
withdrew $57,945.57 from his trust account to pay his fee. In addition, the evidence does not
support a finding that Bishop Jones was contesting Mr. Curry’s right to a fee or that Mr. Curry
should have known that Bishop Jones would have objected to using a portion of the settlement
23
Although neither the hearing panel nor the reviewing court determined that Mr. Curry was in violation of the
provisions of the Code of Professional Responsibility, the Board contended before the hearing panel that he violated
Tenn. Sup. Ct. R. 8, DR 9-102(B)(4) and, in its brief to this Court, asserted that M r. Curry violated Tenn. Sup. Ct. R.
8, DR 9-102(B)(3) as well.
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proceeds to pay his fee when he withdrew the funds to pay his fee from his trust account.24 Thus,
Tenn. Sup. Ct. R. 8, DR 9-102(A)(2) has no application in this case. There was no existing fee
dispute when Mr. Curry withdrew the funds, and, therefore, he was not obligated to return them after
a dispute subsequently arose.
B.
The Board also asserted that Mr. Curry committed forgery when he placed Union Central’s
endorsement on the first settlement check and deposited the check into his trust account. The
hearing panel and the reviewing court stopped short of concluding that Mr. Curry had committed
forgery but concluded that he lacked authorization to place Union Central’s endorsement on the
check. Based on this finding, the hearing panel and the reviewing court concluded that Mr. Curry
had engaged in conduct prejudicial to the administration of justice and in conduct that adversely
reflects on his fitness to practice law in violation of Tenn. Sup. Ct. R. 8, DR 1-102(A)(5), (6).
The record shows unmistakably that Mr. Curry did not have actual or apparent authority from
Union Central to affix its endorsement on the settlement check. Even though it is plain that Union
Central had no legal interest in the check, the undisputed evidence regarding the statements of the
insurance company’s officials cannot be construed as authorizing Mr. Curry to endorse its name on
the settlement check. Thus, the evidence supports the finding of both the hearing panel and the
reviewing court that Mr. Curry affixed an unauthorized endorsement on the settlement check.
For the purpose of negotiating a check, the Uniform Commercial Code defines an
“unauthorized signature” as “one made without actual, implied, or apparent authority and includes
a forgery.” Tenn. Code Ann. § 47-1-201(44) (2001). The Uniform Commercial Code does not
define “forgery,” and instead the courts look to the definition of the offense in the criminal code.
See McConnico v. Third Nat’l Bank, 499 S.W.2d 874, 884-85 (Tenn. 1973).
Under current law, a person commits forgery when he or she “forges25 a writing with intent
to defraud or harm another.” Tenn. Code Ann. § 39-14-114(a). Thus, a necessary element of the
act of forgery is an intent to defraud. State v. Rounsaville, 701 S.W.2d 817, 819-20 (Tenn. 1985).
The fact that a signature or endorsement is unauthorized does not necessarily establish it as a forgery
unless there is also evidence of an intent to defraud. 1A Larry Lawrence, Uniform Commercial Code
§ 1-201:745, at 122 (3d ed. 1996).
Mr. Curry’s endorsement of the settlement check does not constitute a forgery for two
reasons. First, the endorsement does not purport to be the act of Union Central; rather, it purports
to be the act of “EIC III” [Mr. Curry] as an agent of Union Central. The fact that the endorsement
24
The record does not support the Board’s assertion that there was a “continuing dispute from the inception of
the representation regarding the right of [Mr. Curry] to withdraw any attorney fees out of Rev. Jones’ settlement.”
25
The definition of “forge” in Tenn. Code Ann. § 39-14-114(b)(1)(A)(i) (2006) includes to “[a]lter, make
complete, execute or authenticate any writing so that it purports to . . . [b]e the act of another who did not authorize that
act[.]”
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reflects that Mr. Curry was acting as an agent for a disclosed principle prevents the endorsement
from being a forgery. Mallory v. State, 179 Tenn. 617, 624, 168 S.W.2d 787, 789 (1943) (holding
that the “endorsement ‘Labor Advocate, by P.T. Mallory’ did not purport to be counterfeit of the
name of the payee of the check”). Second, this record lacks any evidence that could support a
conclusion that Mr. Curry intended to defraud the Diocese of Montana, Union Central, or Bishop
Jones when he affixed Union Central’s endorsement to the settlement check. Union Central had no
legal claim to the proceeds of the check, and the Diocese of Montana had no interest in the ultimate
disposition of the funds as long as it was released from further liability to Bishop Jones. Bishop
Jones wanted Mr. Curry to take possession of the settlement proceeds and knew that Mr. Curry had
deposited them into his trust account. Accordingly, we have concluded that the Board failed to prove
that Mr. Curry’s unauthorized endorsement of the settlement check amounts to a forgery.
C.
Even though Mr. Curry did not commit forgery, it is clear that he placed Union Central’s
endorsement on the settlement check when he knew, or should have known, that he was not
authorized to do so. Mr. Curry essentially misrepresented to the depository bank that he had
authority to affix Union Central’s endorsement to the settlement check. As a practicing commercial
lawyer with over twenty years of experience, Mr. Curry should also have been aware of the complex
legal consequences resulting from the negotiation of a check bearing an unauthorized endorsement.
The fact that none of these consequences ultimately arose does not diminish the fact that Mr. Curry’s
conduct was contrary to law and that it exposed the banks that accepted and processed the settlement
check to liability and loss.
We evaluate each proceeding involving the discipline of a lawyer in light of its particular
facts and circumstances. Bd. of Prof’l Responsibility v. Maddux, 148 S.W.3d 37, 40 (Tenn. 2004);
Ramsey v. Bd. of Prof’l Responsibility, 771 S.W.2d 116, 123 (Tenn. 1989). Penalties recommended
or imposed for lawyer misconduct should also be considered in light of the American Bar
Association’s Standards for Imposing Lawyer Sanctions (2005) (“ABA Standards”), which the Board
itself has adopted. Bd. of Prof’l Responsibility v. Maddux, 148 S.W.3d at 40. ABA Standards § 3.0
states that in imposing discipline after a finding of lawyer misconduct, the court should consider “(a)
the duty violated; (b) the lawyer’s mental state; (c) the potential or actual injury caused by the
lawyer’s misconduct; and (d) the existence of aggravating or mitigating factors.”
Based on our review of the record, we agree with both the hearing panel and the reviewing
court that Mr. Curry placed an unauthorized endorsement on the settlement check and that, under
the facts of this case, this conduct violated Tenn. Sup. Ct. R. 8, DR 1-102(A)(5), (6). However, this
conduct was not criminal in nature. Thus, like the reviewing court, we note that ABA Standards §
5.13 states that a “[r]eprimand is generally appropriate when a lawyer knowingly engages in any
other conduct that involves dishonesty, fraud, deceit, or misrepresentation and that reflects adversely
on the lawyer’s fitness to practice law.” In addition, ABA Standards § 7.3 similarly provides that
a “[r]eprimand is generally appropriate when a lawyer negligently engages in conduct that is a
violation of a duty owed as a professional and causes injury or potential injury to a client, the public,
or the legal system.”
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While a reprimand is an appropriate punishment for the act that Mr. Curry committed, we
must also consider any aggravating and mitigating factors that may appear in the record. Bd. of
Prof’l Responsibility v. Maddux, 148 S.W.3d at 41. The record in this case reflects the following
two aggravating factors: Mr. Curry’s substantial legal experience and his refusal to acknowledge the
wrongfulness of the unauthorized endorsement. ABA Standards § 9.22(g), (i). At the same time,
the record reflects the following mitigating factors: the absence of a prior disciplinary record, the
presence of personal problems, and Mr. Curry’s character and reputation. ABA Standards § 9.32(a),
(c), (g). Based on Mr. Curry’s conduct and our weighing of the aggravating and mitigating factors,
we concur with the trial court’s conclusion that the proper penalty for Mr. Curry’s unauthorized
endorsement of the settlement check is a public censure in accordance with Tenn. Sup. Ct. R. 9, §
4.4.
V.
We conclude that the public censure imposed by the reviewing court is a fair and
proportionate punishment under the facts of this case. Accordingly, we affirm the judgment of the
reviewing court and tax the costs of this appeal to the Board of Professional Responsibility.
______________________________
WILLIAM C. KOCH, JR., JUSTICE
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