In Re Larry E. Parrish

03/08/2021
IN THE SUPREME COURT OF TENNESSEE
Assigned on Briefs February 24, 2021
IN RE LARRY E. PARRISH
Direct Appeal from the Board of Professional Responsibility Hearing Panel
No. 2018-2929-9-AJ-24
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No. W2020-00907-SC-R3-BP
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This Court suspended an attorney from practicing law for six months, with one month on
active suspension. The discipline resulted from a report of misconduct received by the
Tennessee Board of Professional Responsibility in 2013. In 2018, we reinstated the
attorney to the practice of law based on his eligibility for reinstatement and his compliance
with the order of discipline. Before being reinstated, the attorney agreed to a monthly
payment plan to satisfy the Board’s assessed costs from the disciplinary case. Soon after
he was reinstated, the attorney petitioned the Board to revoke the agreed costs. The attorney
argued he did not owe the costs because the Board improperly assessed costs under
Tennessee Supreme Court Rule 9 in effect when the 2013 disciplinary proceeding was
initiated instead of Rule 9 in effect when he was reinstated. A hearing panel found the
Board had properly assessed costs based on Rule 9 in effect when the disciplinary
proceeding began. The attorney appealed. We affirm. Based on this Court’s Order
promulgating revised Rule 9 and our subsequent decisions, the version of Rule 9 that was
in effect when the disciplinary case was initiated in 2013 governs the assessment of costs
regardless of when this Court reinstated the attorney to the practice of law. Thus, we hold
the Board followed the correct procedure in assessing costs. We order the attorney to pay
the costs assessed against him within forty-five days of the filing of this opinion. Failure
to timely pay the costs may serve as a ground for revocation of the attorney’s reinstatement
to practice law.
Tenn. Sup. Ct. R. 9, § 24.3 (2008) (current version at Tenn. Sup. Ct. R. 9, § 31.3)
Direct Appeal
Decision of the Hearing Panel Affirmed
SHARON G. LEE, J., delivered the opinion of the Court, in which JEFFREY S. BIVINS, C.J.,
and CORNELIA A. CLARK and ROGER A. PAGE, JJ., joined. HOLLY KIRBY, J., not
participating.
Larry E. Parrish, Memphis, Tennessee, Pro Se.
Sandy Garrett and A. Russell Willis, Brentwood, Tennessee, for the appellee, Board of
Professional Responsibility.
OPINION
I.
Effective January 1, 2014, this Court adopted extensive revisions to Tennessee
Supreme Court Rule 9, which governs attorney discipline. Rule 9, as revised, applies
prospectively to matters “filed with or initiated before the Board of Professional
Responsibility” on or after January 1, 2014.1 The primary issue here involves which version
of Rule 9 applies to the assessment of costs in a disciplinary case initiated in 2013 resulting
in a suspension from which the attorney was reinstated in 2018. This issue has arisen
because the procedure for assessing costs depends on which version of Rule 9 applies.2
Pre-2014 Rule 9, section 24.3 applies to the assessment of costs from a disciplinary case
filed or initiated before January 1, 2014, while 2014 Rule 9, section 31.3 governs the
procedure for assessing costs in cases filed or initiated on or after January 1, 2014.
In October 2013, the Board initiated disciplinary proceedings against Memphis
attorney Larry E. Parrish after three appellate judges reported that Mr. Parrish had made
pejorative statements about them in motions he filed in the Tennessee Court of Appeals.
Bd. of Pro. Resp. v. Parrish, 556 S.W.3d 153, 156, 162 n.7 (Tenn. 2018). The Board later
filed formal charges against Mr. Parrish. Id. at 160. A hearing panel found that Mr. Parrish
was guilty of misconduct and should be sanctioned with a public censure. Id. at 161. The
Shelby County Circuit Court affirmed the finding of misconduct, but determined that a
six-month suspension, with one month on active suspension, was the appropriate sanction.
Id. at 161–62. In 2018, this Court affirmed the judgment of the circuit court. Id. at 170.
On September 21, 2018, Mr. Parrish petitioned for reinstatement, stating under oath
he would “pay, when a statement of the amount is delivered and justified by [the] Board of
Professional Responsibility, all outstanding costs owed to the Board of Professional
1 See Order Adopting Revised Rules Governing Disciplinary Enforcement with Respect to
Attorneys, In re Adoption of Amended Tenn. Sup. Ct. R. 9, Nos. M2012-01648-SC-RL2-RL,
M2009-02505-SC-RL2-RL (Tenn. Aug. 30, 2013).
2
We refer to Rule 9 in effect before January 1, 2014, as “pre-2014 Rule 9” and the revised Rule 9
in effect on or after January 1, 2014, as “2014 Rule 9.”
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Responsibility by respondent for prior disciplinary proceedings.” On October 1, 2018, the
Board assessed costs under pre-2014 Rule 9, section 24.3 for the 2013 disciplinary
proceeding and billed Mr. Parrish $10,305.06 in costs.3
Soon after receiving the cost bill, Mr. Parrish emailed the Board, challenging the
Board’s authority to assess costs under pre-2014 Rule 9, section 24.3. In response, the
Board’s Disciplinary Counsel informed Mr. Parrish:
Simply put, this office cannot send a reinstatement order to the Court
until you have either paid the costs or entered into a payment plan as I
previously told you. You can petition the Board for relief from costs as
provided in Section 24.3 (pre-2014). Finally, if you insist on not paying the
costs, and do not [p]etition the Board for relief, Section 30.4(c) (2014)
requires that I file an answer raising the failure to pay costs as an objection
and the petition for reinstatement will be converted to a section 30.4(d)
petition.
I would like to get this resolved so that I can send an order of
reinstatement to the Court promptly. Let me know what you want to do.
Mr. Parrish emailed Disciplinary Counsel, “I have no intention of not paying what is owed.
I would like to set up a payment plan. I will abide by the terms of the payment plan. I want
to pay tomorrow; so, I need to be in contact with who I need to be in contact with.”
(Emphasis added). Later in the email reply, Mr. Parrish stated, “Whether I choose to make
an issue by contesting is a decision I will make later depending on many factors, mostly
related to time availability.” Disciplinary Counsel responded, “I understand,” and provided
Mr. Parrish with contact information so he could arrange for a payment plan.
On October 3, 2018, Mr. Parrish agreed to a payment plan of $500 per month. The
next day, the Board acknowledged receipt of Mr. Parrish’s first $500 payment. The Board,
based on the agreed payment plan, filed a notice of submission advising this Court that Mr.
Parrish had satisfied the conditions of the order of discipline and was eligible for
reinstatement. On October 5, 2018, this Court reinstated Mr. Parrish to the practice of law,
effective October 7, 2018.
Less than a month later, Mr. Parrish filed a “Petition to Revoke Imposition of
Costs.” Mr. Parrish neither disputed the amount of costs nor alleged an inability to pay.
3
Under pre-2014 Rule 9, section 24.3, for disciplinary cases initiated on or after January 27, 1992,
the assessed hourly charges for Disciplinary Counsel were $30 for investigative time before formal charges
were filed and $80 for handling formal proceedings.
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Instead, Mr. Parrish argued the Board had “failed to comply with the controlling rules
prerequisite to issuance of a bill of cost.” A hearing panel was appointed to hear the
petition, and the Board moved for summary judgment.
The hearing panel granted the Board’s motion for summary judgment, ruling the
Board had properly assessed costs under pre-2014 Rule 9, section 24.3 for Mr. Parrish’s
2013 disciplinary proceeding. Mr. Parrish appealed to this Court under pre-2014 Rule 9,
section 24.3, which provides for a direct appeal of the Board’s decision on an assessment
of costs.4
II.
Regulating the practice of law in Tennessee is an inherent duty of this Court.
Walwyn v. Bd. of Pro. Resp., 481 S.W.3d 151, 162 (Tenn. 2015) (citing Bd. of Pro. Resp.
v. Cowan, 388 S.W.3d 264, 267 (Tenn. 2012)). Thus, we review the decision of a hearing
panel under our “inherent power and essential and fundamental right to administer the rules
pertaining to the licensing of attorneys.” Cody v. Bd. of Pro. Resp., 471 S.W.3d 420, 424
(Tenn. 2015) (quoting Skouteris v. Bd. of Pro. Resp., 430 S.W.3d 359, 362 (Tenn. 2014)).
This appeal involves only questions of law, so we review the hearing panel’s findings de
novo with no presumption of correctness. Dunlap v. Bd. of Pro. Resp., 595 S.W.3d 593,
606–07 (Tenn. 2020) (citing Napolitano v. Bd. of Pro. Resp., 535 S.W.3d 481, 496 (Tenn.
2017)); Walwyn, 481 S.W.3d at 163.
Mr. Parrish challenges the assessment of costs from the 2013 proceeding and raises
two issues on appeal:
1) Whether 2014 Rule 9, section 30.4 governs an attorney’s 2018 reinstatement to the
practice of law following a thirty-day active suspension.
2) Whether 2014 Rule 9, section 31.3 governs an assessment of costs arising from a
disciplinary case initiated in 2013.
Reinstatement
Although Mr. Parrish asks this Court to rule on whether 2014 Rule 9, section 30.4
governs his reinstatement, there is no dispute about this issue. 2014 Rule 9, section 30.4
applies to attorney reinstatements on or after January 1, 2014, no matter when the
4
Under pre-2014 Rule 9, section 24.3, we consider the Board’s order on an attorney’s petition for
relief from costs assessed against him the same as a circuit or chancery court decree, and the order is
appealable to this Court. Tenn. Sup. Ct. R. 9, § 24.3 (2006) (amended 2014).
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attorney’s suspension occurred—“[r]einstatement other than [from administrative
suspension or inactive status] shall be pursuant to this Section, regardless of when or under
what procedure the suspension or disbarment occurred.” Tenn. Sup. Ct. R. 9, § 30.4(a)
(emphasis added).
Assessment of Costs
Mr. Parrish argues the Board erred by assessing him with costs from his 2013
disciplinary proceeding under pre-2014 Rule 9, section 24.3. Mr. Parrish urges this Court
to hold the Board is not entitled to costs because the Board failed to follow the assessment
procedure in 2014 Rule 9, section 31.3.
Under pre-2014 Rule 9, section 24.3, the Board assesses the costs from a
disciplinary proceeding and serves the cost bill on the attorney after entry of a judgment of
discipline. See Tenn. Sup. Ct. R. 9, § 24.3 (2006) (amended 2014). The attorney may then
petition the Board for relief from the costs within thirty days of receiving the bill or at the
end of the disciplinary proceeding, whichever occurs last. Id. The attorney may appear
before the Board, after which the Board or hearing panel files its decision. Id.5
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Reimbursement of Costs. In the event that a judgment of . . . suspension . . . 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 the hearing panel in the hearing of the cause, and
the hourly charge of Disciplinary Counsel in investigating and prosecuting the matter.
The respondent attorney may petition the Board for relief from costs within thirty
days of receipt of the final bill of costs or on the termination of any action upon which the
disciplinary proceeding was based, whichever occurs last. In seeking relief, the respondent
attorney shall have the opportunity to appear and be heard before the Board or a duly
constituted panel thereof. . . .
....
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.
Tenn. Sup. Ct. R. 9, § 24.3 (2006) (amended 2014).
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On January 1, 2014, the procedure for assessing costs changed when 2014 Rule 9,
section 31.3 replaced pre-2014 Rule 9, section 24.3. Under section 31.3, the Board’s
Disciplinary Counsel must apply for its costs with the appropriate tribunal (the hearing
panel, the trial court, or this Court) within fifteen days of the tribunal’s decision. See Tenn.
Sup. Ct. R. 9, § 31.3(a)–(c). The application must document the hours spent by Disciplinary
Counsel and the costs incurred. Id. The attorney may respond within fifteen days and must
prove the costs were unnecessary or unreasonable. Id. The tribunal then issues its judgment
on the application for assessment of costs. Id.6
This Court’s Order promulgating 2014 Rule 9 and our later rulings guide our
analysis of which version of Rule 9 applies. In our Order, we directed that 2014 Rule 9
would “have prospective application only.” See Order Adopting Revised Rules Governing
Disciplinary Enforcement with Respect to Attorneys, supra note 1, at 2 (“The revised Tenn.
Sup. Ct. R. 9 shall take effect on January 1, 2014, and shall have prospective application
only, applying to all matters filed with or initiated before the Board of Professional
Responsibility on or after that date.”). This means that 2014 Rule 9 would not be applied
retroactively to disciplinary cases filed or initiated before January 1, 2014.
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31.3. Reimbursement of Costs.
(a) In the event that a judgment of . . . suspension . . . results from formal proceedings,
Disciplinary Counsel shall within fifteen days from the hearing panel’s submission of such
judgment . . . make application to the hearing panel for the assessment against the . . .
[attorney] of the necessary and reasonable costs of the proceedings . . . . The application
shall be accompanied by an affidavit or declaration under penalty of perjury and such other
documentary evidence as Disciplinary Counsel deems appropriate documenting the hours
expended and the costs incurred by Disciplinary Counsel in investigating and prosecuting
the complaint or responding to the petition for reinstatement. Such proof shall create a
rebuttable presumption as to the necessity and reasonableness of the hours expended and
the costs incurred. The [attorney] may within fifteen days after Disciplinary Counsel’s
application submit to the hearing panel and serve on Disciplinary Counsel . . . any response
in opposition to the application for an assessment of costs. The burden shall be upon [the
attorney] to prove by a preponderance of the evidence that the hours expended or costs
incurred by Disciplinary Counsel were unnecessary or unreasonable. Disciplinary Counsel
or the [attorney] may request a hearing before the hearing panel . . . . The hearing panel
shall within fifteen days from the conclusion of such hearing, or in the event no hearing is
requested, within fifteen days from the date on which the [attorney’s] response is due or is
submitted, whichever is earlier, submit to the Board its findings and judgment with respect
to Disciplinary Counsel’s application for the assessment of costs.
Tenn. Sup. Ct. R. 9, § 31.3(a); see also Tenn. Sup. Ct. R. 9, §§ 31.3(b)–(c) (setting forth the procedure for
assessing costs in disciplinary matters appealed to the circuit or chancery court and to this Court).
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We have consistently held that 2014 Rule 9 applies only to disciplinary cases filed
or initiated on or after January 1, 2014. See, e.g., Bd. of Pro. Resp. v. Justice, 577 S.W.3d
908, 913 n.3 (Tenn. 2019) (“This Court revised Tennessee Supreme Court Rule 9 effective
January 1, 2014. This disciplinary proceeding, however, was initiated prior to January 1,
2014, and it is therefore governed by the prior version of the rule.”); Garland v. Bd. of Pro.
Resp., 536 S.W.3d 811, 816 (Tenn. 2017) (“Effective January 1, 2014, this Court adopted
substantial changes to Tennessee Supreme Court Rule 9, which governs disciplinary
proceedings. See Tenn. Sup. Ct. R. 9. Cases initiated before the effective date are governed
by the pre-2014 version of Rule 9.” (citing Cody, 471 S.W.3d at 424 n.9)); Bd. of Pro.
Resp. v. Reguli, 489 S.W.3d 408, 412 n.1 (Tenn. 2015) (“Because this case was initiated
before January 1, 2014, it is governed by the pre-2014 version of Tennessee Supreme Court
Rule 9.”); Bd. of Pro. Resp. v. Barry, 545 S.W.3d 408, 418 n.14 (Tenn. 2018) (“The hearing
panel applied the 2006 version of Tennessee Supreme Court Rule 9 because the matter was
initiated before January 1, 2014, when comprehensive changes to Rule 9 became
effective.”); Hornbeck v. Bd. of Pro. Resp., 545 S.W.3d 386, 392 n.12 (Tenn. 2018) (same);
Bailey v. Bd. of Pro. Resp., 441 S.W.3d 223, 231 n.13 (Tenn. 2014) (same); Mabry v. Bd.
of Pro. Resp., 458 S.W.3d 900, 902 n.1 (Tenn. 2014) (same); Walwyn, 481 S.W.3d at 153
n.1 (same). In 2018, this Court applied pre-2014 Rule 9 in reviewing Mr. Parrish’s
disciplinary case. Parrish, 556 S.W.3d at 162 n.7 (citing Garland, 536 S.W.3d at 816).7
Mr. Parrish did not challenge the application of pre-2014 Rule 9 in that proceeding.
Thus, based on the clearly stated intent in our Order adopting revised Rule 9, 2014
Rule 9 applies to cases filed or initiated on or after January 1, 2014, and pre-2014 Rule 9
applies to cases filed or initiated before January 1, 2014. Thus, in assessing costs, the
operative date is when the case was filed or initiated—not when this Court granted
reinstatement. Therefore, we hold that the Board properly assessed costs arising from the
disciplinary case initiated against Mr. Parrish in 2013 under pre-2014 Rule 9, section 24.3.
Mr. Parrish asserts several arguments for his position that the Board should have
assessed costs under 2014 Rule 9, section 31.3. First, Mr. Parrish asserts that 2014 Rule 9,
section 31.3 governs the Board’s assessment of costs against him because 2014 Rule 9,
section 30.4 applied to his reinstatement. Under Mr. Parrish’s argument, the assessment
and payment of costs is part of the reinstatement procedure and not the disciplinary
7
Although the Board filed its formal petition for discipline against Mr. Parrish in November 2014,
the disciplinary proceedings against Mr. Parrish began when the motions containing his pejorative
statements were submitted to the Board in October 2013. Cf. Garland, 536 S.W.3d at 814–15 (applying
pre-2014 Rule 9 when the Board filed its formal petition for discipline in June 2014 based on a complaint
made to the Board in June 2013); Barry, 545 S.W.3d at 416–17 (applying pre-2014 Rule 9 when the Board
filed its formal petition for discipline in June 2014 based on a complaint made to the Board in May 2013).
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proceeding. However, under 2014 Rule 9, section 30.4, an attorney seeking reinstatement
has to show he has already paid the costs assessed against him. Payment of costs is not part
of the reinstatement procedure, but a condition precedent to beginning the reinstatement
procedure.8 Mr. Parrish also contends that because he has already been disciplined, the cost
assessment relates to reinstatement and not to the disciplinary matter. This logic is flawed.
As we have recognized, the “disciplinary process is a costly endeavor,” and “[s]hifting the
financial burden . . . to those directly responsible for the costs” is both fair and effective in
deterring misconduct. Moncier v. Bd. of Pro. Resp., 406 S.W.3d 139, 150 (Tenn. 2013). As
part of the disciplinary process, the cost assessment in a case initiated before January 1,
2014, is governed by pre-2014 Rule 9.
Second, Mr. Parrish claims that payment of the Board’s assessed costs cannot be a
condition of his reinstatement because this Court’s 2018 order imposing discipline did not
require it. He bases this argument on language in 2014 Rule 9, section 30.4 stating that in
a petition for reinstatement, the attorney must show that he “has satisfied all conditions set
forth in the order imposing discipline, including the payment of costs incurred by the Board
in the prosecution of the preceding disciplinary proceeding and any court costs assessed
against the attorney in any appeal from such proceeding.” Tenn. Sup. Ct. R. 9, § 30.4.
However, this language does not indicate that the order imposing discipline must include
an assessment of the Board’s costs. Mr. Parrish’s interpretation conflicts with sections
31.3(a)–(c) of 2014 Rule 9, which provide that disciplinary counsel for the Board must
apply for assessment of costs within fifteen days after entry of the judgment imposing
discipline. See Tenn. Sup. Ct. R. 9, §§ 31.3(a)–(c). Besides creating a conflict within the
rules, Mr. Parrish’s reading of section 30.4 contradicts the principle that payment of the
Board’s fees, whether assessed by the Board under pre-2014 Rule 9 or by the tribunal under
2014 Rule 9, is a condition precedent to petitioning for reinstatement.
8
Under 2014 Rule 9, section 30.4, an attorney seeking reinstatement:
shall file with the Board and serve upon Disciplinary Counsel promptly a petition for
reinstatement of the attorney’s license to practice law demonstrating that the petitioning
attorney has the moral qualifications, competency and learning in law required for
admission to practice law in this state, that the resumption of the practice of law within the
state will not be detrimental to the integrity and standing of the bar or the administration
of justice, or subversive to the public interest, and that the petitioning attorney has satisfied
all conditions set forth in the order imposing discipline, including the payment of costs
incurred by the Board in the prosecution of the preceding disciplinary proceeding and any
court costs assessed against the attorney in any appeal from such proceeding.
Tenn. Sup. Ct. R. 9, § 30.4(c) (emphasis added).
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Third, Mr. Parrish argues that the 2014 Rule 9 reinstatement procedure requires the
use of the 2014 Rule 9 cost-assessment procedure because sections 30.4 and 31.3 of 2014
Rule 9 fit hand-in-glove. Mr. Parrish fails to explain why 2014 Rule 9, section 31.3 would
govern the assessment of costs in cases initiated before January 1, 2014, without any
language in section 31.3 making it apply “regardless of when or under what procedure the
suspension or disbarment occurred” as in section 30.4. He speculates that because neither
assessing costs nor reinstatement is punitive in nature, there is no barrier to applying
revisions to both of those rules retroactively. Mr. Parrish’s conclusion, however, does not
follow. What determines if the rule here applies retroactively is not whether the rule is
punitive in nature, but the language of this Court’s Order promulgating the rule and how
we have interpreted the Order. Mr. Parrish cites no authority for his argument. There is
none.
Finally, Mr. Parrish argues that pre-2014 Rule 9, section 24.3 “went out of existence
on January 1, 2014,” when 2014 Rule 9, section 31.3 went into effect. Mr. Parrish’s
argument has no merit. This Court’s Order promulgating 2014 Rule 9 and disciplinary
decisions since January 1, 2014, including the decision in Mr. Parrish’s case, make clear
that pre-2014 Rule 9 applies to disciplinary matters initiated before January 1, 2014. The
reinstatement provisions in section 30.4 of 2014 Rule 9 apply retroactively because the rule
requires it (“Reinstatement . . . shall be pursuant to this Section, regardless of when or
under what procedure the suspension or disbarment occurred.”). 2014 Rule 9, section 31
(assessment of costs) does not contain language similar to that in 2014 Rule 9, section 30.4
(reinstatement) that would make 2014 Rule 9, section 31 apply retroactively to pre-2014
cases. If this Court had intended for section 31 of 2014 Rule 9 to apply to the assessment
of costs in pre-2014 disciplinary proceedings, language to that effect would have been
included. Cf. Effler v. Purdue Pharma L.P., 614 S.W.3d 681, 689 (Tenn. 2020) (applying
the principle of expressio unius est exclusio alterius to “infer that if the Legislature had
intended to enact a certain provision missing from the statute, then the Legislature would
have included the provision” and that “the missing statutory provision is missing for a
reason—the Legislature never meant to include it”). Lack of such language in section 31
of 2014 Rule 9 shows that this Court did not intend for section 31 to apply retroactively to
the assessment of costs in cases initiated before January 1, 2014. Even though Mr. Parrish
insists that 2014 Rule 9 applies to the assessment of costs, he followed pre-2014 Rule 9,
section 24.3 when petitioning to revoke the Board’s bill of costs and in appealing the
hearing panel’s decision directly to this Court. Mr. Parrish’s past conduct conflicts with
the position he takes here.
CONCLUSION
After considering the record and all the issues raised by Mr. Parrish, we hold that
the Board properly assessed the costs of Mr. Parrish’s disciplinary proceeding under
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pre-2014 Rule 9, section 24.3. Thus, we affirm the decision of the hearing panel and order
Mr. Parrish to pay the costs owed to the Board within forty-five days of the filing of this
opinion. Mr. Parrish’s failure to do so may serve as a ground for revocation of his
reinstatement to practice law. We tax the costs of this appeal to Larry E. Parrish, for which
execution may issue if necessary.
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SHARON G. LEE, JUSTICE
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