De Novo Supreme Court Review of Attorney Sanctions Under Rule 9 § 33.1(d) to Ensure Statewide Uniformity

I. Introduction

This attorney discipline case arose from Fred C. Dance’s handling of settlement proceeds in a wrongful death matter. Dance received a $20,000 settlement check payable to his IOLTA, deposited it, and then withdrew virtually the entire amount through checks to himself and to a third party while facing “money issues.” He did not disburse the settlement funds to his clients for nearly four years and only repaid after a disciplinary complaint was filed.

A hearing panel found violations of Rules 1.4(a)(3), 1.4(a)(4), 1.15(a), 1.15(d), 8.4(a), and 8.4(c) of the Tennessee Rules of Professional Conduct and concluded Dance had knowingly converted client property. Applying the ABA Standards, the panel recommended disbarment. The circuit court affirmed, citing a deferential standard of review.

The Supreme Court’s opinion addresses two central issues: (1) the proper standard of review the Court applies to a hearing panel’s recommended sanction under Rule 9, § 33.1(d), and (2) whether disbarment (now permanent under Tennessee’s rules) was proportionate and uniform compared to similar Tennessee discipline cases involving misappropriation/conversion and deception.

II. Summary of the Opinion

• Standard of review clarified: The Court holds that review of a hearing panel’s recommended punishment under Rule 9, § 33.1(d) is de novo for “uniformity” and “appropriateness,” matching the standard applied under Rule 9, § 15.4.
• Misconduct findings upheld: The Court affirms the hearing panel’s finding that Dance knowingly converted client property, supporting application of ABA Standard 4.11 (disbarment presumptively appropriate for knowing conversion causing injury or potential injury).
• Aggravation/mitigation rulings upheld: The Court affirms the panel’s use of aggravating factors (dishonest/selfish motive; substantial experience; slight weight to prior discipline) and its rejection of proposed mitigating factors (including compelled restitution, claimed cooperation, and claimed remorse).
• Sanction modified for uniformity: After comparative review, the Court concludes permanent disbarment would be disproportionately harsh relative to similar cases and imposes a five-year suspension, with three years active suspension.

III. Analysis

A. Precedents Cited (and How They Shape the Decision)

1. Standard-of-review authorities

• In re Walwyn, 531 S.W.3d 131 (Tenn. 2017)
  Walwyn held that under Rule 9, § 15.4, the Court reviews recommended punishment de novo due to its inherent authority, the “uniformity of punishment” mandate, and its ability to modify sanctions. Dance extends Walwyn’s logic to the § 33.1(d) appellate pathway—especially after the 2025 amendment adding the same “uniformity”/“appropriateness” language.
• Gray v. Bd. of Pro. Resp., 710 S.W.3d 664 (Tenn. 2025)
  Gray articulated that, in § 33.1(d) appeals, the Supreme Court had been applying the same standard as the trial court (the five-prong § 33.1(b) standard). Dance partially departs from this approach: it keeps deferential review for subsidiary findings but adopts de novo review for the sanction itself.
• Doll v. Bd. of Prof. Resp., 691 S.W.3d 372 (Tenn. 2024)
  Doll held hearing panels and trial courts are not permitted “to base recommended attorney discipline sanctions on a review of sanctions imposed in comparative cases.” Dance uses Doll to justify why the Supreme Court itself must conduct the uniformity review and why de novo review of the sanction is “logically necessary.”
• Manookian v. Bd. of Pro. Resp., 685 S.W.3d 744 (Tenn. 2024) and In re Sitton, 618 S.W.3d 288 (Tenn. 2021)
  These cases anchor the Court’s constitutional/inherent authority over attorney discipline and its plenary power to promulgate/enforce ethics rules—supporting the idea that the Court must retain independent judgment over the ultimate sanction, while still deferring to hearing panel credibility findings.
• Belmont v. Bd. of L. Exam'rs, 511 S.W.2d 461 (Tenn. 1974)
  Cited for the Court’s “original power to review” actions of disciplinary bodies when interpreting and applying professional rules—reinforcing de novo review as consistent with the Court’s original jurisdiction in this domain.
• Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 170 (2012)
  Used for the textual canon that identical phrases in a legal text are presumed to bear the same meaning. Because § 15.4 and (as amended) § 33.1(d) contain the same “uniformity”/“appropriateness” directive, the Court treats them as triggering the same de novo review of sanctions.

2. Framework for selecting sanctions (ABA Standards methodology)

• Dunlap v. Bd. of Pro. Resp., 595 S.W.3d 593 (Tenn. 2020) and Gray v. Bd. of Pro. Resp., 710 S.W.3d 664 (Tenn. 2025)
  Provide the sequencing: identify the presumptive sanction under the ABA Standards, then adjust based on aggravating and mitigating factors.
• Meehan v. Bd. of Pro. Resp., 584 S.W.3d 403 (Tenn. 2019)
  Emphasizes panels need only “consider the applicable provisions” and need not make findings on every enumerated aggravating/mitigating factor. Dance relies on this to uphold the panel’s handling of remoteness and other proposed mitigators.

3. Conversion, intent/knowledge, and credibility

• Fam. Tr. Servs. LLC v. Green Wise Homes LLC, 693 S.W.3d 284 (Tenn. 2024)
  Supplies a general Tennessee definition of conversion (“appropriation ... to a party’s own use in exclusion or defiance of the owner’s rights”), which the Court adapts in the discipline context to analyze “knowingly converted” under ABA Standard 4.11.
• PNC Multifamily Cap. Institutional Fund XXVI Ltd. P'ship. v. Bluff City Cmty. Dev. Corp., 387 S.W.3d 525 (Tenn. Ct. App. 2012)
  Discusses whether money can be converted under Tennessee common law. Dance acknowledges this doctrinal debate but treats it as beside the point because ABA Standard 4.11 “clearly contemplates that client funds are capable of being converted,” and Tennessee’s discipline rules require application of the ABA Standards.
• In re Sitton, 618 S.W.3d 288 (Tenn. 2021)
  Used to emphasize deference to hearing panel credibility determinations and its explanation of “remorse” as more than regret over consequences.

4. Aggravation/mitigation and “cooperation” and discipline history

• Harris v. Board of Professional Responsibility, 645 S.W.3d 125 (Tenn. 2022)
  Dance rejects the respondent’s reliance on Harris for the proposition that conversion alone is insufficient to show dishonesty. The Court notes Harris merely quoted an unchallenged hearing panel statement and was about RPC 8.4—not ABA Standard 9.22(b). Dance uses this to affirm aggravation based on selfishness and dishonesty supported by additional facts (stalling, misrepresentations, noncommunication).
• Beier v. Bd. of Pro. Resp., 610 S.W.3d 425 (Tenn. 2020)
  Supports the proposition that private discipline counts as a disciplinary record, precluding the “absence of a prior disciplinary record” mitigator, and that lack of credibility undermines “cooperative attitude” mitigation.
• Johnson v. Bd. of Pro. Resp., 737 S.W.3d 276 (Tenn. 2025)
  Clarifies that “cooperative attitude” mitigation generally requires going above and beyond what is required, and even then carries little weight because cooperation is a duty. Dance uses Johnson to affirm the panel’s refusal to award this mitigation.
• Bd. of Pro. Resp. v. Cowan, 388 S.W.3d 264 (Tenn. 2012) and Lockett v. Bd. of Pro. Resp., 380 S.W.3d 19 (Tenn. 2012)
  Support that aggravating/mitigating factors are illustrative and other factors may be considered, but Dance emphasizes the permissive nature (“may”) rather than a requirement that panels must adopt unenumerated mitigators (like “only one client”).

5. Comparative sanction authorities (uniformity/proportionality)

• Board of Professional Responsibility v. Barry, 545 S.W.3d 408 (Tenn. 2018)
  The Board’s principal comparator for disbarment: knowing conversion and misrepresentations/noncommunication. Dance carefully distinguishes Barry due to a key rule-change context: at the time, disbarment was not permanent, whereas it is now, making “disbarment” materially harsher today.
• Napolitano v. Bd. of Pro. Resp., 535 S.W.3d 481 (Tenn. 2017)
  Strong comparator supporting suspension despite knowing conversion and disbarment as presumptive sanction. Dance uses Napolitano to show Tennessee has imposed long suspensions—even with serious aggravation—rather than disbarment in comparable misappropriation disputes.
• Waggoner v. Board of Professional Responsibility, 673 S.W.3d 227 (Tenn. 2023) and Waggoner, No. 2016-2561-9-AW, at 19 (Bd. Pro. Resp. Mar. 17, 2017)
  The earlier Waggoner hearing-panel matter (not a published Supreme Court opinion) is treated as highly probative because the Court had “fulsome findings” available; it involved knowing conversion, delay in redepositing, and personal use, yet resulted in a three-year suspension (approved by order). This discrepancy is central to the Court’s uniformity analysis.
• In re Hickman, 673 S.W.3d 188 (Tenn. 2023), Waggoner v. Board of Professional Responsibility, 673 S.W.3d 227 (Tenn. 2023), Board of Professional Responsibility v. Sheppard, 556 S.W.3d 139 (Tenn. 2018), Milligan v. Board of Professional Responsibility, 166 S.W.3d 665 (Tenn. 2005)
  Treated as varying-strength comparators. Hickman is “sufficiently similar” in effect (taking money without entitlement and delay in return) even though the presumptive sanction differed. Sheppard and Beier are distinguished as involving materially different fact patterns (mismanagement/unreasonable fee vs. direct personal appropriation of settlement funds). Milligan is noted as partially analogous but not “on all fours.”
• Justice v. Bd. of Pro. Resp., 693 S.W.3d 225 (Tenn. 2024) (Kirby, C.J., concurring)
  Cited for the proposition that even where disbarment is the presumptive sanction, comparative review can justify a lesser sanction.
• Bd. of Pro. Resp. v. Daniel, 549 S.W.3d 90 (Tenn. 2018) and Bd. of Pro. Resp. v. Bonnington, 762 S.W.2d 568 (Tenn. 1988)
  Used to emphasize that “misappropriation” exists on a spectrum (“widely varying degrees”), supporting careful tailoring of sanctions rather than a rigid rule.

B. Legal Reasoning

1. The new, unified sanction-review standard under Rule 9

The Court identifies two procedural routes for Supreme Court oversight of discipline sanctions: (a) the non-appeal enforcement track under Rule 9, § 15.4, and (b) the appeal track through trial court to the Supreme Court under Rule 9, § 33.1(d).

Historically, the Court used de novo review under § 15.4 (per In re Walwyn) but applied a deferential standard under § 33.1(d) (per Gray and other cases). Dance rejects this “bifurcated approach” and adopts a single approach for reviewing recommended punishment:

• Sanction review: De novo under § 33.1(d), because that subsection now contains the same “uniformity”/“appropriateness” directive as § 15.4 and because uniformity review cannot meaningfully occur under abuse-of-discretion constraints.
• Everything else: Deferential review for subsidiary determinations (rule violations; credibility; aggravating/mitigating findings) under § 33.1(b)’s five categories of reversible error.

This is also institutionally grounded: attorney discipline is an exercise of the Supreme Court’s inherent and original authority (Manookian; In re Sitton; Belmont). The Court frames de novo review of the ultimate sanction as necessary to fulfill its continuing responsibility that a license is a “continuing proclamation” of fitness to practice.

2. Application to Dance’s conduct: knowing conversion and presumptive sanction

On the merits, the Court affirms the panel’s finding of “knowing conversion” because Dance withdrew client-settlement funds for personal expenses immediately after deposit, depleted the IOLTA balance, failed to disburse for years, and restored funds only after Board involvement. The panel’s credibility finding rejecting Dance’s “I forgot” explanation is given deference (In re Sitton).

Because the conduct meets ABA Standard 4.11 (knowing conversion causing injury or potential injury), disbarment is the presumptive sanction. The Court notes it need not reach ABA Standard 4.61 (client deception) given the sufficiency of 4.11.

3. Aggravating and mitigating factors

The Court affirms the aggravation findings—particularly “dishonest or selfish motive”—distinguishing the respondent’s argument based on Harris and emphasizing that ABA Standard 9.22(b) covers “selfishness” as well as dishonesty. The Court also accepts that additional facts beyond conversion supported dishonesty (stalling, misrepresentations, years of noncommunication).

The Court rejects asserted mitigators by applying established discipline principles:

• No “absence of prior discipline”: a private informal admonition counts as discipline (Beier).
• “Remoteness” handled permissibly: the panel considered remoteness by giving slight weight to the prior admonition, and it need not label this as a separate mitigator (Meehan).
• Cooperation is not presumed: “cooperative attitude” generally requires going beyond baseline duties, and credibility concerns cut against it (Johnson; Beier).
• “Only one client” not required: panels may consider unlisted factors but are not required to; additionally, the panel found injury to multiple siblings (Cowan; Lockett).
• Remorse is credibility-dependent: mere acknowledgement is not necessarily “remorse” (In re Sitton).

4. Why the Court reduced disbarment to a lengthy suspension

After affirming the ABA Standards analysis, the Court performs the distinctive task that only it may perform under Tennessee’s system: comparative uniformity review. It finds that the presumption of disbarment is not the end of the inquiry because the Court must also harmonize outcomes across similar cases.

The opinion’s key uniformity move is the recognition that “disbarment” is not a fixed quantum over time. After rules changes, disbarment is now permanent, and the Court views that as materially more severe than older “disbarment” cases where reinstatement was possible. That temporal change makes Barry—the Board’s strongest disbarment comparator—less determinative because it reflects an earlier regime.

Against that, the Court identifies multiple suspension outcomes for similar conduct—especially Napolitano and the earlier Waggoner hearing panel decision approving a three-year suspension for strikingly similar knowing conversion and delay. The Court also notes it is “unaware of any case imposing permanent disbarment for similar misconduct,” and thus chooses a five-year suspension with three years active suspension as a uniformity compromise: severe enough to reflect the egregiousness of knowing conversion, but avoiding permanent disbarment as an outlier.

C. Impact

• Immediate procedural impact: Parties appealing sanctions under Rule 9, § 33.1(d) can expect the Supreme Court to independently assess sanction “uniformity” and “appropriateness” rather than asking only whether the panel abused its discretion on punishment.
• Institutional impact on discipline litigation strategy:
  • Respondents and the Board will likely intensify briefing on comparative-case sanction ranges, because the Supreme Court’s de novo sanction review makes proportionality arguments more outcome-determinative on appeal.
  • The Board’s hearing-panel record remains crucial for the “subsidiary findings” reviewed deferentially (credibility, mental state, aggravation/mitigation), but the ultimate sanction is more contestable at the Supreme Court level.
• Doctrinal impact on “disbarment” analysis: The opinion effectively instructs that comparative sanction analysis must account for the modern reality of permanent disbarment. Older cases labeled “disbarment” may not be comparable in severity to current disbarment, potentially shifting the modern baseline toward long suspensions in some misappropriation cases unless and until the Court establishes a new set of permanent-disbarment comparators.
• Substantive discipline impact: Although the Court reduced the sanction, it reaffirmed that knowing conversion of client funds is “egregious” and that ABA Standard 4.11 properly sets disbarment as the presumptive sanction—signaling that respondents should not read the result as softening the underlying condemnation of misappropriation.

IV. Complex Concepts Simplified

• IOLTA (Interest on Lawyer Trust Account): A segregated trust account used to hold client money. The lawyer must not treat it as personal funds and must promptly disburse money owed to clients.
• “Knowing conversion” (discipline context): Taking or using client funds for oneself with conscious awareness of what the funds are and whose they are—regardless of whether the lawyer intended to permanently deprive the client. In this case, the rapid withdrawals, depletion of the account, and years-long failure to repay supported a “knowing” finding.
• Presumptive sanction (ABA Standards): A baseline discipline level suggested for a category of misconduct (here, disbarment under ABA Standard 4.11). It can be adjusted up or down for aggravating or mitigating factors.
• Aggravating vs. mitigating factors: Circumstances that make punishment more severe (e.g., selfish motive, experience, prior discipline) or less severe (e.g., genuine remorse, exceptional cooperation, lack of prior discipline).
• De novo vs. abuse of discretion:
  • De novo review means the Supreme Court makes its own independent judgment on the sanction’s appropriateness and statewide consistency.
  • Abuse of discretion would mean the Court would change the sanction only if the hearing panel’s choice was outside the range of reasonable options.
• Uniformity/proportionality review: Comparing sanctions across similar prior cases to avoid outlier punishments for similar misconduct.
• Permanent disbarment: Under current Tennessee rules, a disbarred lawyer generally cannot seek reinstatement. This magnifies the practical severity of “disbarment” compared to older regimes allowing reinstatement after a period of years.

V. Conclusion

Dance is a significant attorney-discipline decision chiefly because it clarifies how the Tennessee Supreme Court reviews sanctions on appeal. The Court aligns Rule 9, § 33.1(d) with Rule 9, § 15.4 by holding that the recommended punishment is reviewed de novo for “uniformity” and “appropriateness,” while leaving subsidiary findings to the deferential § 33.1(b) framework.

On the facts, the Court affirmed that Dance’s conduct constituted knowing conversion of client funds and validated the hearing panel’s aggravation/mitigation analysis. Yet, after comparative review—and with careful attention to the heightened severity of today’s permanent disbarment—the Court concluded disbarment would be an outlier and imposed a five-year suspension with three years active. The opinion thereby reinforces two messages at once: knowing conversion remains presumptively disbarment-level misconduct under the ABA Standards, but the Supreme Court will independently calibrate sanctions to maintain statewide consistency under the modern disciplinary regime.