Fletcher Whaley Long v. Board of Professional Responsibility of the Supreme Court of Tennessee , 2014 Tenn. LEXIS 444 ( 2014 )

IN THE SUPREME COURT OF TENNESSEE
AT NASHVILLE
February 5, 2014 Session
FLETCHER WHALEY LONG v. BOARD OF PROFESSIONAL
RESPONSIBILITY OF THE SUPREME COURT OF TENNESSEE
Direct Appeal from the Chancery Court for Montgomery County
No. MCCHCVMG1216 Don R. Ash, Senior Judge
_________________________________
No. M2013-01042-SC-R3-BP - Filed June 4, 2014
A Hearing Panel of the Board of Professional Responsibility determined that an attorney had
violated multiple disciplinary rules and imposed a public censure. The attorney appealed,
and the trial court affirmed the Hearing Panel’s decision. On appeal to this Court, the
attorney raises a number of issues, including a facial constitutional challenge to Tenn. Sup.
Ct. R. 9. After reviewing the evidence and the applicable law, we reject the attorney’s
constitutional challenge to Tenn. Sup. Ct. R. 9, and we conclude that his other issues are
without merit. We therefore affirm the judgment of the trial court.
Appeal Pursuant to Tenn. Sup. Ct. R. 9, § 1.3; Judgment of the Chancery Court
Affirmed
S HARON G. L EE, J., delivered the opinion of the Court, in which G ARY R. W ADE, C.J., and
J ANICE M. H OLDER, C ORNELIA A. C LARK, and W ILLIAM C. K OCH, J R., JJ., joined.
John Edward Herbison, Clarksville, Tennessee, for the appellant, Fletcher Whaley Long.
Krisann Hodges, Brentwood, Tennessee, for the appellee, Board of Professional
Responsibility of the Supreme Court of Tennessee.
OPINION
I. P ROCEEDINGS B ELOW
On August 29, 2011, the Board of Professional Responsibility (“the Board”) filed a
Petition for Discipline against Fletcher Whaley Long, who was licensed to practice law in
Tennessee in 1997. The Board alleged that Mr. Long committed professional misconduct
during his representation of Lawrence Earl Ralph. On May 22 and May 23, 2012, a hearing
panel (“the Panel”), appointed by the Board pursuant to Tennessee Supreme Court Rule 9,
section 8.2, heard evidence in the case. On May 30, 2012, the Panel issued its decision
finding that Mr. Long had violated Tennessee Supreme Court Rule 8, RPCs 1.4(a), 1.15(a),
1.16(d)(5) and 8.4(a), and imposed a public censure.1
Pursuant to Tennessee Supreme Court Rule 9, section 1.3, Mr. Long appealed the
Panel’s decision to the Montgomery County Chancery Court (“the Trial Court”). On March
27, 2013, the Trial Court, based on the transcript and the record of the Panel’s proceeding,
affirmed the Panel’s findings and recommendations. Mr. Long appeals the decision of the
Trial Court.
II. S TANDARD OF R EVIEW
The Supreme Court of Tennessee is the source of authority of the Board of
Professional Responsibility and all its functions. Brown v. Bd. of Prof’l Responsibility, 29
S.W.3d 445, 449 (Tenn. 2000). As a part of our duty to regulate the practice of law in
Tennessee, we bear ultimate responsibility for enforcing the rules governing our
profession. Doe v. Bd. of Prof’l Responsibility, 104 S.W.3d 465, 469-70 (Tenn. 2003). We
review judgments under our “inherent power [and] essential and fundamental right to . . .
administer [the] rules pertaining to the licensing . . . of attorneys.” Hughes v. Bd. of Prof’l
Responsibility, 259 S.W.3d 631, 640 (Tenn. 2008) (citing In re Burson, 909 S.W.2d 768, 773
(Tenn. 1995)).
When reviewing a hearing panel’s judgment, a trial court must consider the transcript
of the evidence before the hearing panel and its findings and judgment. Tenn. Sup. Ct. R.
9, § 1.3. On questions of fact, the trial court does not substitute its judgment for that of the
hearing panel as to the weight of the evidence. Bd. of Prof’l Responsibility v. Allison, 284
S.W.3d 316, 323 (Tenn. 2009) (citing Bd. of Prof’l Responsibility v. Love, 256 S.W.3d 644,
653 (Tenn. 2008)). Any reversal or modification of a hearing panel’s decision must be based
on the reviewing court’s finding that the hearing panel’s decision was:
(1) in violation of constitutional or statutory provisions; (2) in excess of the
panel’s jurisdiction; (3) made upon unlawful procedure; (4) arbitrary or
capricious or characterized by abuse of discretion or clearly unwarranted
1
The petition for discipline alleged that Mr. Long violated RPCs 1.4(a), 1.15(a), 1.16(d)(5), and 8.4(a) as
they existed at the time of the alleged misconduct. We note that the Panel’s legal conclusions cite current
RPC 1.4(a)(4) and quote a portion of current RPC 1.16(d)(6). Because the rules, as written at the time of the
alleged misconduct, are not substantively different from their current versions, our analysis is not affected
by the Panel’s erroneous references to those current rules.
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exercise of discretion; or (5) unsupported by evidence which is both substantial
and material in the light of the entire record.
Tenn. Sup. Ct. R. 9, § 1.3; Love, 256 S.W.3d at 653. Our standard of review on appeal is the
same as that of the trial court. Hoover v. Bd. of Prof’l Responsibility, 395 S.W.3d 95, 103
(Tenn. 2012).
III. S UMMARY OF F ACTS
We begin our review with a summary of the evidence presented to the Panel and
reviewed by the Trial Court.
On May 14, 2003, Mr. Ralph was incarcerated in the Warren County jail after being
convicted of three misdemeanors and sentenced to serve time in jail. On May 19, 2003, Mr.
Ralph’s brother, David Ferrell, contacted Mr. Long and asked him to represent Mr.
Ralph. On May 20, 2003, Mr. Long and his assistant, Theresa Eatherly, drove to
McMinnville to meet Mr. Ferrell. Mr. Long and Mr. Ferrell met in front of the Warren
County courthouse, where Mr. Ferrell paid Mr. Long $7500 in cash. Mr. Long handwrote
a fee agreement, which stated only the following:
Deposit of 7,500
escrow account
Draw out as earned
200/hour
After Mr. Long and Mr. Ferrell signed the agreement, Mr. Long met with the trial judge and
the assistant district attorney general. After the conference, the trial judge set an appeal bond
for Mr. Ralph’s release. Mr. Long left the courthouse and met Mr. Ferrell in the parking
lot. Mr. Ferrell was pleased that Mr. Long had been successful in securing an appeal bond.
As to the status of Mr. Long’s attorney fee, Mr. Long testified that he asked Mr.
Ferrell if he agreed that Mr. Long had earned the $7500 fee and that Mr. Ferrell
answered: “Yes, sir, I would agree with that.” Mr. Long further testified that Mr. Ferrell
said it was “okay with him” if Mr. Long treated the $7500 as an earned fee. Mr. Ferrell
denied that he ever agreed to modify the written fee agreement, and he testified that he
expected Mr. Long would deposit the $7500 into his trust account and draw it out at a rate
of $200 per hour. While driving back to Nashville, Mr. Long expressed concern to Ms.
Eatherly that he had not “g[otten] a piece of paper back,” but told her that “Mr. Ferrell would
lose it in a few days anyways.” Mr. Long did not deposit the $7500 fee into his trust account.
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Following Mr. Ralph’s release from jail, Mr. Long filed a motion for a new trial and
also agreed to represent Mr. Ralph in a second criminal case. For Mr. Ralph’s second
criminal case, Mr. Ferrell testified that he paid $5700 to attorney Greg Clayton2 and $300 to
Mr. Long. Mr. Long testified that he did not charge any additional fees to represent Mr.
Ralph in the second case. Mr. Clayton and Mr. Long tried Mr. Ralph’s case before a jury,
and Mr. Ralph was convicted. Following the conviction, Mr. Ralph and Mr. Ferrell met with
Mr. Long and Mr. Clayton and terminated their services. Mr. Ferrell asked Mr. Long to
provide an accounting of the attorney’s fees charged and to refund any fees that were
unearned. Mr. Long did not provide an accounting and did not refund any fees.3
IV. H EARING P ANEL’S R ULING
Based on these facts, the Panel found that Mr. Long violated RPC 1.4(a) because he
failed to provide an accounting of the fees that he had charged in connection with Mr.
Ralph’s representation; violated RPC 1.15(a) because he failed to deposit the $7500 fee into
his trust account; violated RPC 1.16(d)(5) because he failed to refund unearned fees; and
violated RPC 8.4(a) by failing to adhere to RPCs 1.4(a), 1.15(a), and 1.16(d)(5).4 The Panel
determined that a public censure was the appropriate sanction for Mr. Long’s misconduct.
2
At the time, Mr. Long and Mr. Clayton (who is now deceased) practiced together as an association of
attorneys.
3
Mr. Ferrell filed a civil suit against Mr. Long seeking a refund of the $7500 fee that he had paid Mr. Long
on his brother’s behalf. See Ferrell v. Long, No. M2008-02232-COA-R3-CV, 2009 WL 1362321 (Tenn. Ct.
App. May 14, 2009), perm. app. denied (Tenn. Nov. 23, 2009). The trial court dismissed Mr. Ferrell’s
lawsuit with prejudice on the ground that the statute of limitations had expired. Mr. Ferrell appealed the
dismissal, which the Court of Appeals affirmed. Id.
4
At the time of the alleged misconduct, these rules stated as follows:
RPC 1.4(a): “A lawyer shall keep a client reasonably informed about the status of a matter and comply with
reasonable requests for information within a reasonable time.”
RPC 1.15(a): “A lawyer shall hold property and funds of clients or third persons that are in a lawyer’s
possession in connection with a representation separate from the lawyer’s own property and funds.”
RPC 1.16(d)(5): “Upon termination of the representation of a client, a lawyer shall take steps to the extent
reasonably practicable to protect a client’s interests, including: . . . promptly refunding any advance payment
for fees that have not been earned.”
RPC 8.4(a): “It is professional misconduct for a lawyer to . . . violate or attempt to violate the Rules of
Professional Conduct[.]”
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V. I SSUES R AISED BY M R. L ONG
In this appeal, Mr. Long argues that: (1) the Panel’s decision was arbitrary or
capricious, or characterized by an abuse or clearly unwarranted exercise of discretion; (2) the
Panel’s decision was unsupported by substantial and material evidence in light of the entire
record; (3) the charges against Mr. Long are barred by the doctrine of laches; (4) the charges
against Mr. Long are barred by the doctrine of res judicata; and (5) Rule 9 is unconstitutional
and violates Mr. Long’s due process rights because it combines investigative, enforcement,
and adjudicative functions in the Board, creates a financial incentive for the Board to pursue
formal disciplinary proceedings, and gives rise to an institutional bias in favor of finding
guilt and imposing discipline. We have thoroughly considered Mr. Long’s arguments and
find that each lacks merit.
VI. A NALYSIS
A. Public Censure vs. Private Discipline
Mr. Long argues that the Panel acted arbitrarily or capriciously or upon an unlawful
procedure because the Panel should have issued a form of private discipline instead of a
public censure. Mr. Long notes that at the time of his alleged misconduct, Tennessee
Supreme Court Rule 9 permitted a hearing panel to impose a private reprimand. Disciplinary
Counsel agrees that the Panel could have considered a private reprimand but argues that Mr.
Long has failed to demonstrate that the Panel acted arbitrarily or capriciously or upon an
unlawful procedure by imposing a public censure.
Mr. Long argued to the Panel that if any discipline was warranted, he should receive
a private sanction rather than a public one. He cites nothing in the record to indicate that the
Panel did not consider his argument. Additionally, although the Panel did not specifically
reference the applicable American Bar Association Standards for Imposing Lawyer Sanctions
(“ABA Standards”) in its written Order imposing a public censure, the Panel’s Order makes
clear that ABA Standards 4.13, 4.43, and 7.35 —each of which recommends a presumptive
5
ABA Standard 4.13: “Reprimand is generally appropriate when a lawyer is negligent in dealing with client
property and causes injury or potential injury to a client.”
ABA Standard 4.43: “Reprimand is generally appropriate when a lawyer is negligent and does not act with
reasonable diligence in representing a client, and causes injury or potential injury to a client.”
ABA Standard 7.3: “Reprimand is generally appropriate when a lawyer negligently engages in conduct that
is a violation of a duty owed to the profession, and causes injury or potential injury to a client, the public,
(continued...)
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penalty of a public censure—applied to Mr. Long’s misconduct. Accordingly, we conclude
that the Panel’s decision to impose a public censure was neither arbitrary nor capricious, nor
based on an unlawful procedure.
B. Substantial and Material Evidence
Mr. Long further argues that the Panel’s decision was not supported by substantial and
material evidence in light of the entire record. Specifically, Mr. Long contests the Panel’s
finding that his written fee agreement with Mr. Ferrell was not orally modified, and as a
result, he argues that the Panel erred in finding that he violated RPC 1.15(a). Additionally,
although Mr. Long admits that he violated RPC 1.4(a) by failing to provide an itemized bill
or accounting of the fees charged to Mr. Ferrell, Mr. Long contends that such failure was de
minimis because it “is certainly understandable that an attorney in a flat fee case may not
keep detailed time records.” Further, Mr. Long contests the Panel’s finding that he violated
RPC 1.16(d)(5) by failing to refund unearned fees to Mr. Ferrell, because he was entitled to
treat the $7500 fee as an earned flat fee.
Upon our review of the record, we hold that the Panel’s findings that Mr. Long
violated RPCs 1.15(a), 1.4(a) and 1.16(d)(5) are supported by substantial and material
evidence. Mr. Long and Mr. Ferrell gave conflicting testimony on the crucial issue
supporting each of these violations: whether the written fee agreement between Mr. Long and
Mr. Ferrell was subsequently modified by an oral agreement that permitted Mr. Long to treat
the $7500 fee as an earned fee. After considering the conflicting testimony, the Panel
accredited Mr. Ferrell’s version of events, and the Panel was within its discretion to do so.
Mr. Long essentially asks us to re-weigh the evidence and to substitute our judgment
for that of the Panel and the Trial Court. This we cannot do. A hearing panel “is uniquely
suited to make credibility determinations of witnesses.” Culp v. Bd. of Prof’l Responsibility,
407 S.W.3d 201, 208 (Tenn. 2013). Accordingly, we must defer to the Panel’s determination
that Mr. Long’s version of the events was not credible. In addition to Mr. Ferrell’s
testimony, the Panel’s finding that the written agreement was not orally modified is
supported by two reasonable inferences made by the Panel. First, the Panel found that Mr.
Long told Ms. Eatherly during their return trip to Nashville on May 20, 2003, that he should
have gotten the “paper” back from Mr. Ferrell, but that he was not unduly concerned because
Mr. Ferrell would “lose it in a few days anyways.” The Panel reasonably inferred that Mr.
Long’s statements reflected that Mr. Long did not believe that the agreement had been
modified. Second, the Panel found that Mr. Long’s testimony that he did not charge any
5
(...continued)
or the legal system.”
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additional fees to represent Mr. Ralph in his second case was not credible. The Panel
inferred that Mr. Long’s failure to charge any additional fees reflected his belief that the
original fee agreement had not been modified. This, too, was a reasonable inference which
we must accept on appeal. The evidence supports the Panel’s finding that the written fee
agreement between Mr. Ferrell and Mr. Long was not orally modified. Accordingly, there
is substantial and material evidence supporting the Panel’s finding that Mr. Long violated
RPCs 1.4(a), 1.15(a), 1.16(d)(5), and 8.4(a).
C. Laches
In his third issue, Mr. Long argues that the disciplinary charges are barred by the
doctrine of laches. He asserts that his alleged misconduct occurred six years before the
Board started the disciplinary investigation and nine years before the Panel hearing. He
contends there was no valid reason for the delay. Under the defense of laches, “equity will
not intervene on behalf of one who has delayed unreasonably in pursuing his rights.” Dennis
Joslin Co. v. Johnson, 138 S.W.3d 197, 200 (Tenn. Ct. App. 2003). Laches, if applicable,
requires more than mere delay. It requires an unreasonable delay that prejudices the party
seeking to employ laches as a defense, and it depends on the facts and circumstances of each
individual case. See Jansen v. Clayton, 816 S.W.2d 49, 51 (Tenn. Ct. App. 1991) (explaining
that the equitable defense of laches “involves an inexcusably long delay coupled with injury
to the rights of another resulting from the delay”).
The doctrine of laches does not apply in our attorney disciplinary proceedings.6 The
Board is an agency of the Judicial Department of Tennessee, and “laches is not imputable to
the government[.]” State ex rel. Crist v. Bomar, 365 S.W.2d 295, 297-98 (Tenn.
6
A number of other jurisdictions have considered whether the equitable defense of laches applies in attorney
disciplinary cases. See, e.g., In re Tenenbaum, 918 A.2d 1109, 1114 (Del. 2007) (adopting the laches defense
in attorney disciplinary cases); In re Ponds, 888 A.2d 234, 240-44 (D.C. 2005) (discussing delay as a
mitigating factor in setting the appropriate sanction); In re Geisler, 614 N.E.2d 939, 940 (Ind. 1993)
(collecting cases and finding no occasion to determine whether laches applies in attorney disciplinary cases);
In re Matney, 740 P.2d 598, 605 (Kan. 1987) (applying laches in an attorney disciplinary case); Attorney
Grievance Comm’n of Md. v. Penn, 65 A.3d 125, 135 (Md. 2013) (rejecting laches defense in the absence
of showing of prejudice); In re Weinstein, 459 P.2d 548, 549 (Or. 1969) (finding no occasion to apply laches
in an attorney disciplinary case) (“Weinstein”); In re McCarty, 75 A.3d 589, 594 n.3 (Vt. 2013) (applying
laches but finding no prejudice); Comm. on Legal Ethics v. Pence, 240 S.E.2d 668, 672 (W. Va. 1977)
(observing that “[n]o court which has considered the laches question, as far as we can determine, has
dismissed a disciplinary proceeding against an attorney on the ground of laches”). See generally, Debra T.
Landis, Annotation, Attorneys at Law: Delay in Prosecution of Disciplinary Proceeding as Defense or
Mitigating Circumstance, 93 A.L.R. 3d 1057 (1979).
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1963).7 Moreover, the primary purpose of attorney disciplinary proceedings is to protect the
public from attorneys who do not comply with the Rules of Professional Responsibility. The
public’s interest is not well served by the dismissal of a disciplinary proceeding because of
a delay in prosecution. Weinstein, 459 P.2d at 549; see also Sneed v. Bd. of Prof’l
Responsibility, 301 S.W.3d 603, 618 (Tenn. 2010) (noting that the respondent’s “intentional
disregard of the ethical rules undermines the protection of the public and the preservation of
the public’s confidence in the legal system”); ABA Standards for Imposing Lawyer Sanctions
§ 1.1 (providing that the “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”). Because the doctrine of laches is inapplicable to attorney
disciplinary proceedings, Mr. Long’s assertion that his disciplinary charges are barred under
this doctrine is without merit.
D. Res Judicata
Next, Mr. Long argues that the charges against him are barred by the doctrine of res
judicata. Mr. Long contends that he previously agreed to a public censure on June 22, 2009,
in a separate case brought against him by the Board involving six different complaints of
misconduct. He further contends that the parties in that separate case were represented by
the same counsel. However, Mr. Long’s argument fails because the previous complaints that
the Board brought against him related to different clients and concerned different allegations
of misconduct.
The doctrine of res judicata, or claim preclusion, bars a second suit between the same
parties or their privies on the same claim with respect to all issues which were, or could have
been, litigated in the former suit. Creech v. Addington, 281 S.W.3d 363, 376 (Tenn. 2009);
Richardson v. Tenn. Bd. of Dentistry, 913 S.W.2d 446, 459 (Tenn. 1995) (quoting Goeke v.
Woods, 777 S.W.2d 347, 349 (Tenn. 1989)). It is a “rule of rest,” Moulton v. Ford Motor
Co., 533 S.W.2d 295, 296 (Tenn. 1976), and it promotes finality in litigation, prevents
inconsistent or contradictory judgments, conserves judicial resources, and protects litigants
7
The Court of Appeals previously applied the doctrine of laches in Tennessee Bar Ass’n v. Berke, 344
S.W.2d 567, 571 (Tenn. Ct. App. 1960), but Berke is distinguishable because it was a statutory disciplinary
proceeding brought by the Tennessee Bar Association, before the establishment of the current disciplinary
system under Rule 9. Even had laches applied, the delay between the time of the misconduct and the
initiation of a disciplinary investigation in 2009 was not attributable to the Board. The Board learned about
Mr. Long’s possible misconduct when the Court of Appeals released its opinion in Ferrell v. Long, 2009 WL
1362321, on May 14, 2009. The Board’s Office of Disciplinary Counsel, acting on its own initiative, opened
an investigation into Mr. Long’s misconduct less than a week after the release of Ferrell v. Long. The delay
was not unreasonable, and Mr. Long failed to show any specific prejudice that resulted from the delay.
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from the cost and vexation of multiple lawsuits. In re Estate of Boote, 198 S.W.3d 699, 718
(Tenn. Ct. App. 2005); Sweatt v. Tenn. Dep’t of Corr., 88 S.W.3d 567, 570 (Tenn. Ct. App.
2002).
The party asserting a defense predicated on res judicata must demonstrate (1) that the
underlying judgment was rendered by a court of competent jurisdiction, (2) that the same
parties or their privies were involved in both suits, (3) that the same claim or cause of action
was asserted in both suits, and (4) that the underlying judgment was final and on the
merits. Lien v. Couch, 993 S.W.2d 53, 56 (Tenn. Ct. App. 1998); Lee v. Hall, 790 S.W.2d
293, 294 (Tenn. Ct. App. 1990). A trial court’s decision that a claim is barred by the doctrine
of res judicata involves a question of law which will be reviewed de novo on appeal without
a presumption of correctness. Jackson v. Smith, 387 S.W.3d 486, 491-92 (Tenn. 2012); In
re Estate of Boote, 198 S.W.3d at 719. The complaints against Mr. Long are not barred by
res judicata because there has been no earlier decision against Mr. Long on the same cause
of action. As the Panel correctly noted, “the previous disciplinary action against Mr. Long
related to wholly separate allegations of misconduct,” and it involved separate and distinct
facts. Accordingly, this argument is without merit.
E. Constitutional Challenge to Tenn. Sup. Ct. R. 9
Finally, Mr. Long argues that Rule 9 is unconstitutional and violates his due process
rights because Rule 9 combines investigative, enforcement, and adjudicative authority in the
same agency; creates a financial incentive for the Board to pursue formal disciplinary
proceedings; and gives rise to an institutional bias in favor of finding guilt and imposing
discipline. Before addressing Mr. Long’s constitutional challenges to Rule 9, we must
address two preliminary issues.
1. Applicability of Tenn. R. Civ. P. 24.04
The Panel declined to address Mr. Long’s constitutional challenge to Rule 9 on the
merits because Mr. Long had not given the Attorney General notice of his facial
constitutional challenge based on Tenn. R. Civ. P. 24.04. The Trial Court did not address the
Panel’s ruling that Mr. Long had waived his constitutional issues for failing to comply with
Tenn. R. Civ. P. 24.04. Instead, the Trial Court ruled that Mr. Long had “failed to
demonstrate that Tenn. Sup. Ct. R. 9 is unconstitutional in any respect.”
Rule 24.04 of the Rules of Civil Procedure provides:
When the validity of a statute . . . or an administrative rule . . . of this state is
drawn in question in any action to which the state or an officer or agency is not
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a party, the court shall require that notice be given the Attorney General,
specifying the pertinent statute, rule or regulation.
By its terms, Rule 24.04 applies “in any action to which the state or an officer or
agency is not a party.” As a self-sustaining entity established by this Court, the Board is a
state agency. See Tenn. Code Ann. § 8-23-207 (2011) (providing in part that “any
self-sustaining board, commission or agency created by the supreme court of Tennessee shall
be deemed a state agency and all employees of such boards, commissions or agencies shall
be deemed state employees and entitled to the same rights and benefits enjoyed by other state
employees”). The Board, through the Office of Chief Disciplinary Counsel, was the
petitioner in the disciplinary proceeding. Because the Board is a state agency and a party in
attorney disciplinary proceedings brought under Rule 9, Rule 24.04 is inapplicable in such
proceedings. Thus, the Panel erred in ruling that Mr. Long was required to give notice to the
Attorney General of his facial constitutional challenge to Rule 9. However, for the
jurisdictional reason discussed below, that error is immaterial.
2. Jurisdiction to Consider Facial Challenges to Court Rules
Under Tennessee law, only the Tennessee Supreme Court may determine the facial
validity of its rules. Barger v. Brock, 535 S.W.2d 337, 342 (Tenn. 1976); see also Petition
of Tenn. Bar Ass’n, 539 S.W.2d 805, 807 (Tenn. 1976) (stating that “no other Court in
Tennessee has jurisdiction to review and change or void any Rule promulgated by this
Court”). Mr. Long asserted before the Panel and the Trial Court that Rule 9 was
unconstitutional on its face. However, under Barger and Petition of Tennessee Bar Ass’n,
neither the Panel nor the Trial Court had jurisdiction to decide Mr. Long’s facial
constitutional challenge.8
8
To be clear, we are faced here with a facial challenge to a rule promulgated by the Supreme Court, over
which trial courts (and, by inference, hearing panels) have no jurisdiction. As a general rule, however,
Tennessee law permits administrative agencies to rule on as-applied constitutional challenges raised in
hearings before those agencies. Richardson, 913 S.W.2d at 455 (stating that “administrative agencies have
no authority to determine the facial constitutionality of a statute. They are authorized, however, to determine
the constitutionality of the application of statutes or rules and of the procedures employed”). Richardson
pertains to agencies governed by the Uniform Administrative Procedures Act, Tenn. Code Ann. §§ 4-5-101
to -404 (2011 & Supp. 2013), which does not apply to attorney disciplinary proceedings under Rule 9. The
standard of review in Rule 9 allows a trial court to reverse or modify a hearing panel’s decision “if the rights
of the petitioner have been prejudiced because the panel’s findings, inferences, conclusions or decisions are:
(1) in violation of constitutional or statutory provisions. . . .” Tenn. Sup. Ct. R. 9, § 1.3. The question of
whether hearing panels may rule on as-applied challenges is not before us in this case, and we therefore do
not decide that issue.
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There are two ways to challenge the facial validity of Supreme Court rules. The first
is to file a petition directly with this Court. As the Court stated in Barger:
When any individual deems any Rule of Court to be objectionable from any
standpoint, it is his [or her] privilege to petition the Court for its elimination
or modification. Indeed, it is the duty of the solicitors at the Bar of this Court
to make suggestions and recommendations on the orderly administration of the
appellate judicial process.
Barger, 535 S.W.2d at 342. The Court treated the pleadings in Barger as constituting a
motion to vacate or modify Rule 42 and addressed the facial challenge to the rule. Id.
The second way to raise a facial constitutional challenge is to assert it in an appeal to
this Court. See, e.g., Moncier v. Bd. of Prof’l Responsibility, 406 S.W.3d 139, 151-53 (Tenn.
2013) (addressing a void-for-vagueness challenge to Rule 9, § 24.3, among other issues
raised in the appeal of a hearing panel’s decision on a petition for relief from costs); cf.
Richardson, 913 S.W.2d at 456-57 (discussing the procedure for raising facial constitutional
challenges in proceedings governed by the Administrative Procedures Act).
Mr. Long pursued this second method by raising his facial constitutional challenge to
Rule 9 as one of a number of issues before the Panel. We, therefore, will address Mr. Long’s
constitutional challenge to Rule 9, even though the Panel and the Trial Court lacked the
authority to rule on the issue below.
3. Constitutional Challenges
Mr. Long asserts three separate arguments in his constitutional challenge to Rule
9. He contends that Rule 9 is unconstitutional and violates his due process rights because:
(1) it combines investigative, enforcement, and adjudicatory authority in the same judicial
agency; (2) it creates a financial incentive for the Board to pursue formal disciplinary
proceedings; and (3) it gives rise to an institutional bias in favor of finding guilt and
imposing discipline, because the Board derives income from costs only in the event that there
is a finding of misconduct. We will address each of these issues in turn.
First, Mr. Long argues that Rule 9 is unconstitutional because it combines
investigative, enforcement, and adjudicative functions in the Board. Pointing to general due
process principles, Mr. Long argues that due process means “fundamental fairness and
substantial justice,” State v. White, 362 S.W.3d 559, 566 (Tenn. 2012), and that in a
disciplinary proceeding, an attorney “is entitled to procedural due process.” In re Ruffalo,
390 U.S. 544, 550 (1968). Mr. Long submits that the combining of investigative,
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enforcement, and adjudicative functions within the Board inherently denies him the right to
a fair trial before an impartial tribunal. This, Mr. Long contends, is a structural constitutional
error, requiring automatic reversal.
Although Mr. Long cites a number of cases setting out general due process principles,
he cites no case holding that a particular jurisdiction’s attorney disciplinary system is
unconstitutional on the ground that investigatory, enforcement, and adjudicative functions
are combined in a single agency. Our own research indicates that Mr. Long’s argument is
without merit.
We previously addressed the combination of investigatory, enforcement, and
adjudicative functions in the context of school disciplinary proceedings in Heyne v. Metro.
Nashville Board of Public Education, 380 S.W.3d 715, 735 (Tenn. 2012), and found that the
merging of these functions comports with due process. As we explained:
Due process does not require all the structural safeguards in administrative and
civil adjudicatory proceedings that we have come to expect in criminal
proceedings. Accordingly, while the separation of investigative, prosecutorial,
and adjudicative functions is a hallmark of criminal proceedings, due process
does not require the strict adherence to separation of functions in civil matters.
[Thus], some combination of overlapping of functions in an administrative
proceeding is not inconsistent with fundamental fairness.
Id. (citations omitted).
We also have addressed this issue, albeit tangentially, in an attorney disciplinary
proceeding. In Moncier, we considered whether members of a hearing panel should have
recused themselves on the ground of alleged bias due to the combination of investigative and
adjudicative functions in the Board. As we wrote:
When an assertion of bias is premised solely on an administrative adjudicator’s
exercise of both investigative and adjudicative functions, the party making the
contention must show that, under a realistic appraisal of psychological
tendencies and human weakness, conferring investigative and adjudicative
powers on the same individuals poses such a risk of actual bias or prejudgment
that the practice must be forbidden if the guarantee of due process is to be
adequately implemented. Any form of function combination, occurring alone
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and without other exacerbating biasing influences, is very unlikely to run afoul
of procedural due process.
Moncier, 406 S.W.3d at 161 (citations and internal quotation marks omitted).
We find the principles from Heyne and Moncier persuasive. Attorney disciplinary
proceedings are not criminal proceedings, and to prove a risk of bias that would give rise to
a due process violation, a litigant must point to more than a simple combination of functions
within the Board.
Appellate courts in other jurisdictions have squarely rejected claims that the
combination of investigatory, enforcement, and adjudicative functions in a single attorney
disciplinary agency (or judicial disciplinary agency) violates due process principles. See,
e.g., In re Hanson, 532 P.2d 303, 306 (Alaska 1975) (stating that the “combination of judicial
and investigative functions in the Commission [on Judicial Qualifications] did not violate
petitioner’s due process rights under eigher [sic] the federal constitution or Alaska’s
constitution”); People v. Varallo, 913 P.2d 1, 4 (Colo. 1996) (holding that “[t]he fact that the
members of the grievance committee and the disciplinary counsel are appointed by the
supreme court is not enough by itself to establish a per se violation of due process”); In re
Zoarski, 632 A.2d 1114, 1121 (Conn. 1993) (holding that the combination of investigatory
and adjudicatory functions in one judicial disciplinary agency does not violate due process);
In re Baun, 232 N.W.2d 621, 623-24 (Mich. 1975) (holding that Michigan’s lawyer
disciplinary proceedings do not violate due process, because the functions of investigation,
prosecution, adjudication, and review are “functionally separate” and are handled by different
individuals); Goldstein v. Comm’n on Practice of Supreme Court, 995 P.2d 923, 928 (Mont.
2000) (rejecting claim that Montana’s attorney disciplinary system violated due process
principles because investigatory and enforcement authority were combined in one
agency). But see Tweedy v. Okla. Bar Ass’n, 624 P.2d 1049, 1054-55 (Okla. 1981) (holding
that the Oklahoma Supreme Court, under due process principles, could not order the
reinvestigation of an attorney disciplinary grievance but also noting that the Board of
Governors of the state bar could review the matter).
In Tennessee’s attorney disciplinary system, the investigatory, enforcement, and
adjudicative functions fall under the purview of the Board. Importantly, however, those
separate functions are performed by different groups of individuals within the Board. The
Board’s Office of Chief Disciplinary Counsel investigates allegations of misconduct by
Tennessee attorneys and then, when warranted, initiates formal disciplinary
proceedings. Those proceedings are then adjudicated by hearing panels whose members are
independent attorneys appointed by the Board.
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Because the investigatory/enforcement responsibilities and the adjudicative
responsibilities are functionally separate within the Board, Rule 9 does not violate due
process principles. As the Colorado Supreme Court observed in upholding its attorney
disciplinary structure, “[t]he contention that the combination of investigative and adjudicative
functions necessarily creates an unconstitutional risk of bias . . . must overcome a
presumption of honesty and integrity in those serving as adjudicators,” and “[n]othing in the
structure of the disciplinary rules, the grievance committee, or the Office of Disciplinary
Counsel overcomes this presumption.” Varallo, 913 P.2d at 4-5 (citation and internal
quotation marks omitted). The court further observed that it ultimately held the power of
review over these adjudicators, further reducing the risk of bias. Id. at 5.
This reasoning applies directly to the circumstances in Tennessee. Under Tennessee’s
system, the investigation/enforcement function is separate from the adjudicative function,
and “the ultimate power of review is held by this court.” Id. Consistent with Varallo,
Withrow, and the other cases cited above, we hold that Rule 9 is not facially unconstitutional
on the ground that it combines investigatory, enforcement, and adjudicative functions in the
Board.
Mr. Long’s two other constitutional arguments are related, and we therefore address
them together. Mr. Long asserts that Rule 9, Section 24 creates a financial incentive for the
Board to initiate formal disciplinary proceedings. He also contends that the Rule results in
an “institutional bias” in favor of finding the respondent guilty of misconduct and imposing
a disciplinary sanction.
Rule 9, Section 24 provides, in pertinent part:
24.1. Expenses. The salaries of Disciplinary Counsel and staff, their
expenses, administrative costs, and the expenses of the members of the Board
and of members of the district committees shall be paid by the Board out of the
funds collected under the provisions of Rule 9.
....
24.3. Reimbursement of Costs. In the event that a judgment of
disbarment, suspension, public censure, private reprimand, temporary
suspension, disability inactive status, reinstatement, or denial of reinstatement
results from formal proceedings, the Board shall assess against the respondent
the costs of the proceedings, including court reporter’s expenses for
appearances and transcription of all hearings and depositions, the expenses of
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the hearing panel in the hearing of the cause, and the hourly charge of
Disciplinary Counsel in investigating and prosecuting the matter.
....
The hourly charges of Disciplinary Counsel on formal
proceedings . . . filed on or after January 27,1992, shall be assessed at $30 per
hour for investigative time incurred prior to the filing of formal proceedings
and $80 per hour in connection with formal proceedings.
Payment of the costs assessed by the Board pursuant to this rule shall
be required as a condition precedent to reinstatement of the respondent
attorney.
Mr. Long contends that, as a result of Section 24, the Board has a financial incentive
to initiate formal proceedings against Tennessee attorneys simply to derive income from the
costs assessed under Section 24.3. Mr. Long argues that this offends due process. Connally
v. Georgia, 429 U.S. 245 (1977); In re Dender, 571 S.W.2d 491 (Tenn. 1978).
In response, the Board asserts that the cases relied upon by Mr. Long are not
analogous to a disciplinary proceeding. For example, the Board observes that Connally v.
Georgia involved a justice of the peace who received a fee for issuing a search warrant but
collected no fee for denying a search warrant. Because the justice of the peace did not
receive a salary and was compensated only when he issued search warrants, the United States
Supreme Court held that “the issuance of the search warrant by the justice of the peace . . .
effected a violation of the protections afforded [Mr. Connally] by the Fourth and Fourteenth
Amendments of the United States Constitution.” Connally, 429 U.S. at 251. Similarly, based
on analogous facts to Connally, we held in In re Dender that “the issuance of a state’s
warrant by a non-salaried justice of the peace does not satisfy the requirements of a neutral
and detached magistrate and is violative of the Fourteenth Amendment to the Constitution
of the United States and Article 1, Section 8 of the Constitution of Tennessee.” In re
Dender, 571 S.W.2d at 492.
Unlike the respective justices of the peace in Connally and In re Dender, the members
of the Hearing Panel receive no compensation, other than reimbursement for travel expenses,
for sitting as the adjudicatory body in a disciplinary matter. For that reason, we reject Mr.
Long’s claim that Rule 9 is unconstitutional under Connally and In re Dender.
Mr. Long’s institutional-bias argument is based on Ward v. Village of Monroeville,
409 U.S. 57 (1972) and In re Ross, 656 P.2d 832 (Nev. 1983). In Ward, the mayor of
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Monroeville, Ohio, sat as a judge in cases of ordinance violations and certain traffic
offenses. The mayor also “account[ed] annually to the council respecting village finances,”
and “[a] major part of village income [was] derived from the fines, forfeitures, costs, and fees
imposed by him in his mayor’s court.” Ward, 409 U.S. at 58. After the mayor convicted Mr.
Ward of two traffic offenses and fined him fifty dollars for each offense, Mr. Ward appealed,
ultimately to the United States Supreme Court. Addressing Mr. Ward’s contention that the
mayor was not a detached and neutral magistrate because of his responsibility for the
village’s finances, the Supreme Court wrote:
the test is whether the mayor’s situation is one “which would offer a possible
temptation to the average man as a judge to forget the burden of proof required
to convict the defendant, or which might lead him not to hold the balance nice,
clear, and true between the state and the accused . . . .” Plainly that “possible
temptation” may also exist when the mayor’s executive responsibilities for
village finances may make him partisan to maintain the high level of
contribution from the mayor’s court. This, too, is a “situation in which an
official perforce occupies two practically and seriously inconsistent positions,
one partisan and the other judicial, (and) necessarily involves a lack of due
process of law in the trial of defendants charged with crimes before him.”
Id. at 60 (quoting Tumey v. Ohio, 273 U.S. 510, 532, 534 (1927)) (citations omitted).
The circumstances in the pending case are not analogous to the situation in Ward. The
members of a hearing panel have no responsibility for the budget or the finances of the
Board. Ward is therefore inapplicable.
Mr. Long also cites In re Ross in support of his institutional-bias argument. That case
involved a formal disciplinary proceeding against three attorneys conducted by the Board of
Governors of the State Bar of Nevada. In re Ross, 656 P.2d at 834. After the Board of
Governors decided to discipline two of the attorneys for being untruthful during the
disciplinary process, one of the attorneys challenged the validity of the process on appeal to
the Nevada Supreme Court. Id. at 835. The attorney asserted that adjudication of the
disciplinary hearing by the Board of Governors—the same body primarily responsible for the
finances of the Bar—violated his due process right to an impartial tribunal since “the Board
could only recoup its considerable expenses [for] the proceedings if charges of misconduct
were sustained.” Id.
The Nevada Supreme Court observed that the Board of Governors had primary
responsibility for the Bar Association’s finances and that the assessment sought against the
two attorneys “was equal to nearly 20% of the State Bar’s total revenue, and would more
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than have defrayed its yearly deficit.” Id. at 836. The court concluded that this procedure
of grouping adjudicatory duties and financial responsibilities within the same individuals and
conditioning recovery of substantial costs only upon a finding of misconduct violated the due
process rights of the accused. Id. at 840.
In re Ross is inapposite to Mr. Long’s case. As discussed, the investigative,
enforcement, and adjudicative functions of the Board are separate functions performed by
different groups of people. Moreover, the Panel that adjudicated the disciplinary charges
against Mr. Long is not “the body with primary responsibility for the finances of the
[Board].” Id. at 836. Therefore, Mr. Long’s reliance on In re Ross to support his
institutional-bias argument is misplaced.
For the foregoing reasons, Mr. Long’s argument that Rule 9 is unconstitutional is
without merit.
VII. C ONCLUSION
For the reasons stated above, the judgment of the Chancery Court is affirmed. The
costs of this appeal are assessed to Fletcher W. Long and his surety, for which execution may
issue if necessary.
_________________________________
SHARON G. LEE, JUSTICE
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