Board of Professional Responsib. v. Love

• Decision Date: 12 May 2008
• Docket Number: No. M2007-00790-SC-R3-CV.,M2007-00790-SC-R3-CV.
• Citation: 256 S.W.3d 644
• Parties: BOARD OF PROFESSIONAL RESPONSIBILITY v. William Douglass LOVE.
• Court: Tennessee Supreme Court

256 S.W.3d 644

BOARD OF PROFESSIONAL RESPONSIBILITY v. William Douglass LOVE.

No. M2007-00790-SC-R3-CV.

Supreme Court of Tennessee, at Nashville.

May 12, 2008.

Gregory Robert Atwood, Nashville, Tennessee, for the appellant, William Douglass Love.

Sandy Garrett (oral argument) and Laura Chastain (brief), Nashville, Tennessee, for the appellee, Board of Professional Responsibility.

OPINION

CORNELIA A. CLARK, delivered the opinion of the court, in which WILLIAM M. BARKER, C.J., and JANICE M. HOLDER, GARY R. WADE and WILLIAM C. KOCH, JR. joined.

This is a direct appeal from a trial court's decision, which modified a hearing panel's judgment granting a suspended lawyer's Petition for Reinstatement of his law license contingent upon compliance with three conditions. In light of the change of the applicable standard of review on July 1, 2006, this case requires us to determine whether the trial court should have employed the standard in effect when the hearing panel rendered its decision or the standard in effect when the trial court heard and decided the case. It also requires us to address the circumstances under which a trial court is permitted to modify a hearing panel's decision. Because the trial court heard this case in August 2006, it should have adhered to the standard of review that became effective on July 1, 2006. This standard of review was not applied, and therefore, the trial court erred by modifying all but one of the hearing panel's reinstatement conditions. Accordingly, we reverse the trial court's judgment in part, affirm in part, and remand this case to the trial court for issuance of an order consistent with our holdings herein.

Factual and Procedural History

William D. Love ("Love") began practicing law in 1979 at thirty-six years of age. During his law career, Love worked in firm, partnership, and solo practitioner settings. In each of these settings, except for the early years of his career, Love limited his practice primarily to criminal law.

Both before and during his legal career, Love abused alcohol. Love first sought treatment for his abuse in 1990. At that time, Love spent eighteen days in a Veterans Administration hospital and another two-and-one-half years in an outpatient treatment program. Love's completion of the program, however, did not reduce his alcohol consumption; if anything, his drinking increased throughout the 1990s.

Disciplinary Proceedings

Love's excessive drinking compromised his ability to practice law competently. In August 1987, September 1990, and October 1990, Love received private informal admonitions for neglect of client matters and failing to communicate with clients. In April 1991, he received a public censure for neglect of a legal matter resulting in the dismissal of his client's case. In August 1994, Love received a private reprimand for accepting a client's entire attorney fee and then failing to file the client's divorce case for more than six months.

On June 27, 1995, new disciplinary charges were filed against Love. This time, three different grounds were alleged. First, after accepting $500 from a client, Love failed to file a suit on the client's behalf. Second, after failing to file the claim, Love sent a letter to the client informing her that he was holding the $500 in his escrow account to cover the bond costs. At the time the letter was written, however, Love did not have a trust account. Third, Love accepted money from another client for whom he failed to provide legal services. After a hearing panel was convened and a decision rendered on these charges in May 1996, this Court suspended Love's law license for thirty days, retroactive to May 3, 1996 ("Suspension I").¹ In addition to the suspension of Love's law license, we ordered Love to participate in an alcohol treatment program in conjunction with Nashville Lawyers Concerned for Lawyers, to complete an ethics course at an accredited law school, and to pay $4,280.00, the costs of his disciplinary proceedings.

In December 1996, we suspended Love's law license for failure to complete his continuing legal education ("CLE") requirements from the preceding year ("Suspension II").² On January 27, 1997, Love was disciplined again, this time for failing to represent two clients in their court matters. After a hearing panel was convened and the panel's decision rendered on October 22, 1997, this Court suspended Love's law license for one year.³ Additionally, we suspended Love's law license indefinitely until such time that he completed three conditions: (1) restitution of $100 to each of the two clients that Love failed to represent properly; (2) compliance with all prior orders of the Board of Professional Responsibility ("Board"), including the conditions set forth in the Suspension I order; and (3) the ability to demonstrate in a reinstatement proceeding that he possesses the psychological and psychiatric competence to engage in the practice of law. We also ordered Love to pay the Board $3,011.42, the costs of these disciplinary proceedings ("Suspension III").

Finally, on November 23, 1998, this Court entered an order suspending Love's law license for a three and one-half year period, retroactive to June 30, 1997, for theft ("Suspension IV"). The suspension resulted from a Conditional Guilty Plea entered into with the Board, in which Love admitted that from June 1995 to July 1996, while serving as conservator of his mother's affairs, he misappropriated more than $13,000.00 from the estate to pay his own car payments and money owed to a former wife. When the theft was brought to the attention of the District Attorney General, Love agreed to the filing of an information in the Davidson County Criminal Court. Love subsequently entered a conditional plea of guilty and was placed on judicial diversion for theft of over $10,000.00, a Class C felony.⁴ See Tenn.Code Ann. § 40-35-313 (1996). Under the plea's terms, Love was ordered to pay the estate⁵ restitution of $7,000.00, with the balance to be taken from his inheritance, and to report to a probation officer every month for up to six years. Love complied with the first term by receiving $18,983.05 less than the other heirs under the estate distribution, but he failed to report to his probation officer for more than three months during his probationary period. Subsequently, his judicial diversion was terminated and his conditional guilty plea was changed to a standard guilty plea. Thus, Love was convicted of a felony.

In addition to Love's three and one-half year suspension in this case, we suspended Love for an additional indefinite period until he met six conditions: (1) completion of an ethics course at a law school approved by the Tennessee Board of Law Examiners; (2) satisfactory completion of an alcohol treatment program approved by the Board; (3) demonstration of sobriety at the time of any reinstatement petition; (4) full compliance with all court restitution orders; (5) full restitution to the victims whether they have court judgments or not; and (6) payment to the Board for the proceeding costs in the amount of $1,752.65.

Reinstatement Proceedings

On July 28, 2005, Love filed a Petition for Reinstatement pursuant to Tennessee Supreme Court Rule 9, section 19.3.⁶ The Board appointed a hearing panel ("Panel") to review the petition's merits. See Tenn. Sup.Ct. R. 9, § 19.3. A hearing was held on February 17, 2006. The Panel found that Love had completed all but one of the requirements from Suspensions I, III, and IV necessary to be reinstated and had carried his burden of demonstrating:

by clear and convincing evidence that [he] has the moral qualifications, competency and learning in law required for admission to practice law in this state and 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.

Id.

Specifically, the Panel found, with regard to Suspension I, that Love successfully completed an alcohol treatment program with the Tennessee Lawyers Assistance Program ("TLAP") and successfully completed an ethics course at the Nashville School of Law. As for Suspension III, the Panel found that Love made restitution to the two clients in the amount of $100.00 each and demonstrated, through his and others' testimony and the psychological report submitted by John W. Fite, Ph.D, that Love possesses the psychological and psychiatric competence necessary to engage in the practice of law. With regard to Suspension IV, the Panel found that Love had: (1) successfully completed an ethics course at an accredited law school; (2) participated, and continues to participate, in an alcohol treatment program with TLAP; (3) demonstrated, through his testimony, his wife's testimony, his former wife's testimony, and the testimony of Robert Albury Jr., Executive Director of TLAP, that he had been sober for more than three years; and (4) made full restitution to all victims and was in compliance with all restitution orders.

The Panel further concluded that Love's acts, which led to his multiple suspensions, were the direct result of his substance abuse problem, that Love is committed to his sobriety, and that, therefore, Love is unlikely to commit these acts in the future. Moreover, the Panel determined that Love demonstrated that he had the moral qualifications necessary to practice law, and, even though Love had "been absent from practice for seven years, [he] plainly demonstrated his competence and learning of the law required to practice law in this State." The Panel based this decision on Love's testimony, the testimony of other members of the Bar,⁷ and the fact that as of the date of the hearing, Love was in compliance with all necessary CLE requirements. The Panel also determined that Love's readmission to practice would not be "detrimental to the integrity and standing of the bar or the...