Board of Professional Resp. v. Slavin

• Decision Date: 27 August 2004
• Docket Number: No. M2003-00845-SC-R3-BP,M2003-00845-SC-R3-BP
• Parties: BOARD OF PROFESSIONAL RESPONSIBILITY OF THE SUPREME COURT OF TENNESSEE v. Edward A. SLAVIN, Jr.
• Court: Tennessee Supreme Court

145 S.W.3d 538

BOARD OF PROFESSIONAL RESPONSIBILITY OF THE SUPREME COURT OF TENNESSEE v. Edward A. SLAVIN, Jr.

No. M2003-00845-SC-R3-BP

Supreme Court of Tennessee, at Nashville.

February 11, 2004 Session.

August 27, 2004.

Appeal from the Chancery Court, Knox County, Richard E. Ladd, Chancellor.

Edward A. Slavin, Jr., St. Augustine, Florida, and David A. Stuart, Clinton, Tennessee, for the appellant, Edward A. Slavin, Jr.

Laura L. Chastain, Nashville, Tennessee, for the appellee, Board of Professional Responsibility.

Opinion

ADOLPHO A. BIRCH, JR., J., delivered the opinion of the court, in which FRANK F. DROWOTA, III, C.J., and E. RILEY ANDERSON and JANICE M. HOLDER, JJ., joined. WILLIAM M., BARKER, J., not participating.

We have this case on direct appeal pursuant to Tennessee Supreme Court Rule 9, section 1.3, from an order of the Chancery Court suspending Edward A. Slavin, Jr., Esq., from the practice of law for three years. Slavin appeals, raising the following issues: (1) whether Chancellor Richard E. Ladd erred in refusing to recuse himself; (2) whether Slavin's in-court speech is protected by the First Amendment; and (3) whether the sanctions imposed by the Chancellor are excessive.

Upon careful review of the record and applicable authority, we conclude that Chancellor Ladd did not abuse his discretion in refusing to recuse himself and that the speech at issue does not fall within the protective ambit of the First Amendment. After a thorough examination of the sanctions, we impose a two-year suspension. Slavin may, however, apply for reinstatement pursuant to Tennessee Supreme Court Rule 9, section 19.3, at the expiration of one year from date of this opinion.

I. Facts and Procedural History

Edward A. Slavin, Jr., Esq., ("Slavin") was licensed to practice law in Tennessee in 1987, and he has represented many "whistle-blower" clients before federal agencies. Three judicial officers lodged complaints against Slavin with the Board of Professional Responsibility ("BPR"). The complaints, as summarized, are as follows: Dale Workman ("Workman"), Chancellor for the Sixth Judicial District, alleged that Slavin filed a motion for a new trial and for recusal. In these pleadings, Workman stated that Slavin accused him of rushing his consideration of the case on a day when he appeared to be preoccupied, taking a two-hour lunch for personal business, unfairly restricting the amount of time for cross-examination of the defendant's witness, refusing to allow a rebuttal witness to be called, taking an inadequate amount of time for a rushed reading of portions of the record, mocking and trivializing the medical treatment provided to the plaintiff, showing bias and prejudice by making pejorative remarks about "press releases," and being rude. According to Workman, Slavin stated that Workman "is apparently a chain smoker, who's [sic] smoke filled chambers Mrs. Campbell and the parties' counsel were obliged to enter" causing Mrs. Campbell restricted breathing in court. According to Workman, Slavin also stated that "[t]he trial court's life-style choice and personal opinions should not be permitted to deny Ms. Campbell a fair trial."

Additionally, Curtis L. Collier ("Collier"), Judge of the United States District Court (Eastern District, Tennessee), complained to the BPR about Slavin's conduct and speech during the trial of Lockheed Martin Energy Systems, Inc. v. Slavin, 190 F.R.D. 449 (E.D.Tenn.1999). According to Collier, Lockheed Martin Energy Systems ("Lockheed") brought suit against Slavin to compel him to comply with a Department of Labor order to repay attorney's fees and expenses. In that case, Slavin filed a seventeen-page response "replete with unnecessary, baseless, irrelevant, and frivolous claims, defenses, and legal contentions." Lockheed's counsel, Wilson Horde, Esq., ("Horde") filed a petition for sanctions pursuant to Federal Rule of Civil Procedure 11. In response to the Rule 11 petition, Slavin repeated the substance of what he had included in his previous answer and "added more irrelevant allegations." As an attachment to the response, Slavin included a nine-page "declaration" from District Attorney General James Ramsey executed on April 27, 1994, in which Ramsey stated that he believed that his (Ramsey's) law license had been suspended by the Tennessee Supreme Court because of actions taken by Horde. Collier viewed this assertion as a further attack on Horde and Lockheed.

Collier included in his complaint that on the date of the scheduled Rule 11 hearing in the Lockheed case, Slavin requested a continuance. Then, on the date of the rescheduled hearing, Slavin failed to appear. Slavin's attorney offered no tenable explanation for Slavin's absence. The court found that "[i]t was faced with not just an attorney who has filed baseless, frivolous and unprofessional pleadings and responses to motions, but an attorney who has done so repeatedly, flagrantly, and in a manner which reflects a callous disregard for the proper and efficient functioning of the Court and also reflects a sense of disrespect for the authority of a judicial system and the obligations of the legal community." Also, the court ordered Slavin to provide additional information—an order with which Slavin did not comply. The court stated, "Thus, it appears even in the face of very serious sanctions and a direct order from the Court, Mr. Slavin continues to demonstrate a lack of respect for the Court and its authority."

The complaint of John M. Vittone ("Vittone"), Administrative Law Judge for the United States Department of Labor, alleged that Slavin had been unprofessional in appearances before the court and had used the peer review process to harass the judges. He stated that several judges had invoked their authority to permanently prevent Slavin from representing clients in cases in which they preside. Vittone cited instances in which Slavin asserted that the Administrative Review Board ("ARB")¹ decision in a matter "ranks with the Dred Scott decision among the injustices in American History" and is a "disgrace to the human race." He also stated that Slavin left voicemail messages calling opposing counsel a "red neck peckerwood" and describing counsel collectively as "Nazis." Vittone claimed that Slavin's activities went beyond criticism of the judiciary and were "transparent attempts to use the legal process to harass and/or punish judges who issued adverse rulings."

The above complaints provided the basis for a petition filed by the BPR against Slavin on August 4, 2000. On May 22, 2001, the BPR filed a "Supplemental Petition for Discipline" based on the complaint of Rudolf L. Jansen ("Jansen"), an Administrative Law Judge for the United States Department of Labor. According to the complaint, Jansen issued a recommended decision and order granting summary judgment in a matter in which Slavin had represented two persons. On March 16, 1999, Slavin appealed to the ARB, and his pleading contained comments which Jansen found to be offensive. Those comments included: referring to Jansen as "[p]etty, barbarous and cruel"; "Recommended Decision is a stench in the nostrils of the Nation"; "Shows complete contempt for First Amendment Values"; "Jansen... is no better than Respondents—he is a retaliator"; and "Disgraces his judicial office." In its decision, the ARB noted that Slavin "has again engaged in personal and vitriolic attacks on a Department of Labor Administrative Law Judge." Slavin then requested that the Inspector General investigate Jansen's conduct in the case.

On August 30, 2001, the BPR filed a "Second Supplemental Petition for Discipline." This petition was based on complaints made by four clients Slavin had represented in a suit against their employer, the U.S. Department of Energy. The clients alleged that Slavin had been unprepared and had hindered their cases by failing to provide effective assistance of counsel. In addition, they alleged that Slavin had been antagonistic toward the judge in their case to the extent that the judge had barred him from appearing in cases before her. Moreover, they charged that Slavin filed an appeal for one client even though he had been instructed not to, had given false information to a judge about a client's health, had failed to return documents as requested, and had refused to follow the clients' directions regarding settlement.

The second supplemental petition included also the complaint of Debra Thompson, Esq., ("Thompson"), who stated that Slavin had made disparaging comments about her. She alleged that Slavin had called her a "harridan"² in the presence of her client and the court reporter. Thompson also alleged that Slavin had called her "condescending, hierarchical, uncivil, unkind, and uncooperative."

A hearing pursuant to Tennessee Supreme Court Rule 9, section 8, was conducted on February 12, 2002. The Hearing Committee sustained the complaint of Collier alleging that Slavin had failed to follow orders of the court as violations of Tennessee Supreme Court Rule 8, Disciplinary Rule³ ("DR") 1-102(A)(1), DR 1-102(A)(5), DR 7-102(A)(8), DR 7-106(A), and DR 7-106(C)(6) (2002). Regarding DR 7-106(C)(6), the Hearing Committee found that Slavin, "by ignoring the Orders of Judge Collier engaged in undignified and discourteous conduct which is degrading to a tribunal."

The Hearing Committee also sustained allegations that Slavin had made false statements regarding a client's illness, had made false statements during a deposition with regard to a client's identity as an investigator, and had failed to communicate with clients and return their records. Consequently, Slavin was found to have violated DR 1-102(A)(1), DR 1-102(A)(4), DR 1-102(A)(5), DR 7-101(A)(2), and DR 7-102(A)(8). The Hearing Committee, however, dismissed the charge under DR 7-106(C)(6) because Slavin's expressions were protected by the right to free speech.

The Hearing Committee dismissed the complaints...