In cases of criminal conduct that reflects adversely on the lawyers honesty, trustworthiness, or fitness as a lawyer in other respects, ABA Standard 5.1 provides the following baseline sanctions:
5.11 Disbarment is generally appropriate when:
(a) a lawyer engages in serious criminal conduct a necessary element of which includes intentional interference with the administration of justice, false swearing, misrepresentation, fraud, extortion, misappropriation, or theft; or the sale, distribution or importation of controlled substances; or the intentional killing of another; or an attempt or conspiracy or solicitation of another to commit any of these offenses; or
(b) a lawyer engages in any other intentional conduct involving dishonesty, fraud, deceit, or misrepresentation that seriously adversely reflects on the lawyers fitness to practice.
5.12 Suspension is generally appropriate when a lawyer knowingly engages in criminal conduct which does not contain the elements listed in Standard 5.11 and that seriously adversely reflects on the lawyers fitness to practice.
Mr. Cope pleaded guilty to insider trading in violation of United States Code title 15, section 78j(b), which provides that
[i]t shall be unlawful for any person ... by the use of any means or instrumentality of interstate commerce or of the mails, or of any facility of any national securities exchange ... [t]o use or employ, in connection with the purchase or sale of any security registered on a national securities exchange or any security not so registered, or any securities-based swap agreement any manipulative or deceptive device or contrivance in contravention of such rules and regulations as the Commission may prescribe as necessary or appropriate in the public interest or for the protection of investors.
15 U.S.C. 78j(b) (footnote omitted). For this conduct, the ABA Standards set a presumptive sanction of disbarment because insider trading involves fraud and deceit. See ABA Standard 5.11(a)-(b). However, the ABA Standards also allow the application of aggravating or mitigating circumstances to adjust the sanction imposed. ABA Standard 9.1.
We first consider the facts of this case. Mr. Copes conduct was essentially limited to one instance, although the intended purchase of 10,000 shares took two separate days to complete. He did not share the non-public information with anyone else, and he did not attempt to hide his action. His unrealized profits amounted to approximately $56,000, which he has disgorged in addition to paying a $200,000 fine. He has had no other disciplinary actions in his lengthy career. Accordingly, the Panel found, and we agree, that two aggravating factors and four mitigating factors are applicable. The aggravating factors are (1) dishonest or selfish motive and (2) substantial experience in the practice of law. See ABA Standard 9.22. The four applicable mitigating factors are: (1) absence of a prior disciplinary record; (2) full and free disclosure to the Board or cooperative attitude toward proceedings; (3) character and reputation of the attorney; and (4) remorse. See ABA Standard 9.32.
In view of attaining uniformity of punishment, we must also consider the sanctions imposed in similar cases. See Allison , 284 S.W.3d at 327. For purposes of our analysis, cases presenting similar circumstances as this case are those in which an attorney has been convicted of a felony. In those cases, almost all of the attorneys were disbarred. See, e.g., In re Everett Hoge Mechem, BPR #11854 , No. M2017-00818-SC-BAR-BP (Tenn. Apr. 28, 2017) (Order) (twenty-eight counts of wire fraud, inter alia ); In re Frank Alfred Baker, BPR #31931 , No. M2016-01474-SC-BAR-BP (Tenn. Dec. 22, 2016) (Order) (four counts of wire fraud, inter alia ); In re John Lyndon Lowery, BPR #16195 , No. M2016-02492-SC-BAR-BP (Tenn. Dec. 15, 2016) (Order) (seven counts of theft and eight counts of forgery). However, there were two cases in which the attorney in question was convicted of a felony meeting the criteria of ABA Standard 5.11 but received a four-year suspension instead of disbarment. See In re Carla Ann Kent Ford, BPR #14312 , No. M2016-01035-SC-BAR-BP (Tenn. Dec. 22, 2016) (Order) (theft over $1,000); In re Joanna Temple, BPR #26096 , No. M2015-01280-SC-BAR-BP (Tenn. June 27, 2016) (Order) (attempted criminal usury conviction in New York). In another similar case, the attorney was convicted in state court of felony theft and in federal court of willful failure to file tax returns; in that case, the hearing panel determined that suspension was the appropriate baseline sanction under ABA Standard 5.12 and suspended the attorney for four years. Lockett v. Bd. of Profl Responsibility , 380 S.W.3d 19, 27 (Tenn. 2012).
Based on the above analysis, we conclude that the circumstances justify the imposition of a term of suspension rather than that of disbarment in this case because, inter alia , Mr. Cope has had no other disciplinary actions in his career, his criminal conduct was atypical, and his conduct did not injure his clients. In addition, the Panels imposition of a term of suspension of twenty-five months is appropriate because Mr. Copes conduct was somewhat less egregious than that of other attorneys who received lengthier suspensions, particularly in the Lockett case wherein the criminal conduct spanned three years and directly impacted the attorneys firm. See Lockett , 380 S.W.3d at 21-22. However, in the interest of maintaining uniformity in attorney sanctions, Mr. Copes suspension must be prospective rather than retroactive to the date of his initial suspension by this Court in October 2016. If Mr. Copes suspension were retroactive, the total length of his suspension would only be twenty-five months, half of what other attorneys in similar cases (even those whose suspension was also retroactive) received. Because a retroactive suspension would be a drastic departure from the length of the sanctions imposed in prior cases, we modify the Panels judgment to impose a twenty-five-month suspension prospectively from the filing of this opinion.
Mr. Cope argues that any increase in his sanctions constitutes punishment antithetical to the purposes of attorney discipline and points to the economic consequences of his actions, from the disgorgement of unrealized profits and a hefty fine to the loss of his income, as evidence that he has been punished enough. The ABA Standards provide that [t]he purpose of lawyer discipline proceedings is to protect the public and the administration of justice from lawyers who have not discharged, will not discharge, or are unlikely properly to discharge their professional duties to clients, the public, the legal system, and the legal profession. ABA Standard 1.1. This Courts opinion in Cowan also draws a distinction between the sanctions imposed for attorney discipline and criminal penalties, noting that the primary purpose for attorney discipline-protection of the public-is not abated merely because criminal penalties have already been imposed. Bd. of Profl Responsibility v. Cowan , 388 S.W.3d 264, 271 (Tenn. 2012). This Court has recognized that [w]hile the attorney disciplinary process is punitive in some respects, its purpose is to safeguard the administration of justice, protect the public from the misconduct or unfitness of members of the legal profession, and preserve the confidence of the public in the integrity and trustworthiness of lawyers in general. Hornbeck v. Bd. of Profl Responsibility , 545 S.W.3d 386, 396-97, 2018 WL 915027, at *8 (Tenn. 2018) (citing ABA Standard 1.1). Mr. Cope insists that the public is in no danger from him and that further sanctions serve merely to punish him, but Mr. Copes suspension is commensurate with the larger purpose of attorney discipline, which includes preserving the publics confidence in the profession.
CONCLUSION
Based on our careful consideration of the entire record with a view to attaining uniformity of punishment throughout the State and appropriateness of punishment under the circumstances of each particular case, Tenn. Sup. Ct. R. 9, § 15.4 (b), we modify the judgment of the Hearing Panel to impose a twenty-five-month suspension, prospective from the filing of this opinion. The costs of this cause shall be paid by James Carl Cope, for which execution may issue if necessary.
In his brief to this Court, Mr. Cope presented several cases that he argued were comparable to his case. However, the baseline sanction in the cases he cited was not disbarment as in his case; therefore, the cases are not comparable. See Milligan v. Bd. of Profl Responsibility , 166 S.W.3d 665, 674 (Tenn. 2005) (determining the appropriate period of suspension); Maddux , 148 S.W.3d at 41 (concluding reprimand would be the appropriate baseline sanction). Another case cited by Mr. Cope is not comparable because the opinion concerns only the requirements imposed for reinstatement and does not address the attorneys suspension other than stating that he received a two-year suspension. Dockery v. Bd. of Profl Responsibility , 937 S.W.2d 863, 865 (Tenn. 1996).
Ms. Fords suspension was prospective, resulting in a total suspension of four years and seven months. In re Ford , No. M2016-01035-SC-BAR-BP (Order). Ms. Temples four-year suspension was retroactive. In re Temple , No. M2015-01280-SC-BAR-BP (Order). Mr. Locketts four-year suspension was also retroactive. Lockett , No. E2011-01170-SC-R3-BP (Tenn. May 29, 2014) (Post-judgment Order).