State of Tennessee v. Andy L. Allman

Majority - Jill Bartee Ayers, J.

Yes, the evidence was sufficient to support Allman's convictions for theft of property and falsely holding oneself out as a lawyer. The court found that for the theft charges, there was sufficient evidence that Allman intended to deprive the victims of their property and lacked effective consent. For the retainer fees, since the Attorney-Client Litigation Agreements did not explicitly state the fees were nonrefundable, as required by Tennessee Rule of Supreme Court 8, RPC 1.5(f), the fees were refundable and should have been placed in a trust account. Allman instead deposited them into his frequently overdrawn operating or personal accounts, failed to perform the promised legal work, and did not refund the fees. For the client trust funds (Dycus, Denney, Sutton, Ponce, Herrera), Allman diverted settlement or estate funds into his personal or operating accounts without authorization and depleted them, repeatedly misrepresenting the status of the funds to the clients. The court distinguished State v. Kendrick, where the defendant performed partial work, by noting Allman performed no meaningful work for the retainer fees. Regarding the charges of falsely holding oneself out as a lawyer, the court affirmed that Tennessee Code Annotated section 23-3-108(a) applies to any person, including suspended attorneys, because a lawyer whose license is suspended is not a 'lawyer' during the period of suspension, even if they remain a member of the bar. The court also held that the statute is a strict liability offense, meaning it requires no proof of a specific culpable mental state (mens rea), aligning with public welfare offenses designed to protect the public, and is therefore not void for vagueness. The evidence overwhelmingly demonstrated that Allman continued to act as a lawyer, provided legal advice, and accepted fees from clients without disclosing his suspension. On jury instructions, the court found that while the trial court erred by including a mens rea element for the strict liability offense of falsely holding oneself out as a lawyer, this error was harmless as it actually increased the State's burden of proof. The omission of a 'deception' instruction for theft was also deemed harmless due to the overwhelming evidence of Allman's conduct. Instructions regarding the BPR Rules of Professional Responsibility were properly given for contextual purposes with a limiting instruction. Allman's proposed instruction on 'flat fees' being 'earned upon receipt' was an inaccurate statement of law given the specific requirement in RPC 1.5(f) for nonrefundable fees to be explicitly stated in writing. The court upheld the denial of Allman's pretrial motions, finding that the exclusion of certain evidence (profit and loss statements, client files, time records) was proper due to unreliability, self-serving nature, or irrelevance. The admission of BPR findings of misappropriation under Rule 404(b) was upheld as showing motive and intent, with substantial compliance with procedural requirements. The denial of motions to exclude testimony (victim family health, employee paychecks, bank employees) was affirmed as the evidence was relevant to Allman's intent and motive. The motion to dismiss retainer fee cases and the motion to sever charges were properly denied as the offenses constituted a common scheme or plan and were of similar character. Finally, Allman's double jeopardy claim concerning a 'falsely holding out' charge was denied because the conduct occurred on different dates and the elements of contempt differ from the strict liability offense under T.C.A. § 23-3-108. For sentencing, the trial court properly applied enhancement factors, including Allman's extensive criminal activity, abuse of a position of trust, and the significant damage suffered by victims beyond the direct theft. The court also correctly ordered partial consecutive sentences based on valid statutory grounds, such as numerous felony convictions and offenses committed while on bond, affirming the effective thirty-five-year sentence.