The Tennessee Supreme Court today upheld the decisions of a Board of Professional Responsibility Hearing Panel and chancery court to permanently disbar attorney Thomas Fleming Mabry.
In 2019, the Board of Professional Responsibility filed a petition for discipline against Mr. Mabry based on his representation of four separate clients in Tennessee and North Carolina. In early 2020, the Board’s disciplinary counsel emailed Mr. Mabry stating that he would be filing a motion to continue a hearing scheduled for later that month because a witness would be unavailable. Mr. Mabry responded, stating his agreement “so long as no more witnesses nor discovery be allowed to be filed and/or presented at the future hearing other than those witnesses and that discovery which has been previously submitted.” However, according to the record on appeal, disciplinary counsel never responded to Mr. Mabry’s email and the requested conditions were not included in the order.
Soon after, the onset of the COVID-19 pandemic necessitated “stay-at-home” orders, and the Tennessee Supreme Court issued orders allowing courts to conduct hearings and trials by online video conferencing platforms. Thereafter, Mr. Mabry refused to participate in depositions, either in-person, telephonically, or by video conferencing.
His final disciplinary hearing occurred in January 2021 via Zoom. He briefly connected, by audio only, and objected to holding the hearing virtually. He also objected to the Board introducing depositions of unavailable witnesses, then ended the connection. Mr. Mabry’s hearing continued without his participation. The Hearing Panel allowed the Board to introduce the transcripts of two depositions and to call four additional witnesses to testify via Zoom. The Hearing Panel found Mr. Mabry in violation of multiple Tennessee Rules of Professional Conduct, permanently disbarred him, and ordered him to make restitution.
Mr. Mabry appealed to the chancery court, challenging certain procedural aspects of the disciplinary hearing, including the introduction of depositions as evidence and the video format of the hearing. The chancery affirmed the Hearing Panel, finding Mr. Mabry’s arguments to be without merit.
Mr. Mabry then filed a direct appeal to the Supreme Court raising the same procedural challenges. Upon review, the Supreme Court agreed with the chancery court that there was no evidence of a binding agreement between Mr. Mabry and disciplinary counsel concerning the depositions presented at the hearing. The Court also agreed that the Board complied with the Tennessee Rules of Civil Procedure for taking depositions for proof. As such, the Court determined that the Hearing Panel properly admitted the depositions at the final disciplinary hearing. In addition, the Supreme Court rejected Mr. Mabry’s challenge to the video format of his disciplinary hearing.
To read the unanimous opinion of the Court in Thomas Fleming Mabry v. Board of Professional Responsibility, authored by Justice Roger A. Page, please visit the Opinions section of TNCourts.gov