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Henderson v. Board of Professional Responsibility of the Supreme Court of Tennessee10/30/2003
BACKGROUND
Mark W. Henderson has been practicing law in Tennessee since 1985. The present disciplinary proceedings against Henderson arose out of his legal representation of the plaintiff in a medical malpractice action styled Betty J. Faulk v. Columbia/HCA d/b/a Goodlark Hospital, which was filed in the Circuit Court for Dickson County. During his representation of Ms. Faulk, Henderson failed to answer discovery requests of the defendant hospital. Defense counsel filed a motion to compel and for sanctions against the plaintiff, which was granted when Henderson neither filed a response nor appeared at the hearing on the motion. On May 20, 1997, the court awarded sanctions in the amount of $615.40, and further directed that the case be dismissed unless the sanctions were paid within thirty days from the date of entry of the order.
After learning of the Court's ruling, but prior to entry of the order, Henderson furnished discovery materials to defense counsel, but did not send a check for the court-ordered sanctions. The tort case was dismissed with prejudice on July 1, 1997, as a result of Henderson's failure to comply with the May 20, 1997, order regarding the payment of sanctions. No objections to the dismissal order were filed. On July 28, 1997, Henderson spoke with defense counsel who informed Henderson that his office had not received a check in payment of the sanctions. Henderson did not tell defense counsel that a check had been sent with the discovery responses, but instead requested that the sanctions be waived; defense counsel declined.
On July 31, 1997, Henderson filed on his client's behalf a "Motion for A New Trial Or In The Alternative To Alter Or Amend Judgment." Attached to that motion was Henderson's affidavit, which provided in relevant part:
3. On May 5, 1997, a motion compelling discovery and sanctions was heard and granted. The order granting said motion was entered on May 20, 1997.
4. On May 12, 1997, the requested discovery and sanctions were delivered to defense counsel. A copy of the certification, return receipt and check are attached hereto.
5. On or about July 5, 1997, I received notice from the Dickson County Clerk's office that the above styled case had been dismissed for failure to comply with the ordered issued on May 20, 1997. I received no motion or other communication from defense counsel prior to the dismissal.
Attached to Henderson's affidavit was a copy of check number 0342 in the amount of $615.00, drawn on Union Planters Back account number 0138552, payable to counsel for the defendant and dated May 9, 1997.
Defense counsel never received the check. Henderson's bank records for account number 0138552 at Union Planters Bank for the time period of April 1, 1997, through September 30, 1997, do not reflect the clearing of check number 0342. These records do show that check number 0341 was drawn on the account on July 21, 1997, (clearing on July 24th) and that check number 0343 was drawn on August 7, 1997, (clearing on August 7th). Defense counsel requested that Henderson withdraw his motion to alter or amend judgment, which he did on February 5, 1998. The sanctions in the amount of $615.40 remained unpaid.
Disciplinary Proceedings
The Board of Professional Responsibility notified Henderson on January 28, 1999, of its proposed punishment of public censure for the aforementioned behavior. On February 26, 1999, Henderson replied by letter to the Board, stating that he was "opposed to further public censure by the Board," but indicating that he would accept a private reprimand. The B
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