Brown v. BD. OF PROFESSIONAL RESPONSIBILITY

• Decision Date: 25 May 2000
• Citation: 29 S.W.3d 445
• Parties: Robert L. BROWN v. BOARD OF PROFESSIONAL RESPONSIBILITY OF THE SUPREME COURT OF TENNESSEE.
• Court: Tennessee Supreme Court

29 S.W.3d 445

Robert L. BROWN v. BOARD OF PROFESSIONAL RESPONSIBILITY OF THE SUPREME COURT OF TENNESSEE.

Supreme Court of Tennessee, at Knoxville.

May 2, 2000.

As Corrected May 25, 2000.

Shelby R. Grubbs, and William P. Eiselstein, Chattanooga, TN, for petitioner/appellant, Robert L. Brown.

Laura L. Chastain, Nashville, TN, for defendant/appellee, Board of Professional Responsibility of the Supreme Court of Tennessee.

OPINION

BIRCH, J., delivered the opinion of the court, in which ANDERSON, C.J., DROWOTA, BARKER, JJ., and BYERS, S.J., joined.

This appeal arises from the refusal of the Board of Professional Responsibility to reduce the costs it assessed against an attorney pursuant to formal disciplinary proceedings. After having been assessed costs under Rule 9, § 24.3, Rules of the Supreme Court, Robert L. Brown, the respondent attorney, tendered the full amount of the assessed costs together with a petition for their reduction to the Board of Professional Responsibility. The Board denied the petition. Brown then filed a petition for the writ of certiorari in the chancery court to review the decision of the Board. Finding that it lacked jurisdiction, the chancery court dismissed Brown's petition. Brown then appealed to the Court of Appeals. The Court of Appeals transferred the cause to this Court under Rule 17, Rules of Appellate Procedure. We accepted transfer to determine whether the Board's denial of relief from costs is reviewable, and if so, by whom. We hold that the Supreme Court has the inherent and exclusive jurisdiction to review judgments of the Board. Here, however, because the Board has failed to provide a reviewable record, we must vacate the Board's order denying Brown relief from the assessed costs. The cause is remanded to the Board for proceedings consistent with the amendment to Rule 9, § 24.3, Rules of the Supreme Court, amended April 28, 2000, and attached as an appendix to this opinion.

I

Rule 9, § 24.3,¹ Rules of the Supreme Court, essentially requires the Board of Professional Responsibility (Board) to assess against a respondent attorney upon whom sanctions are imposed all costs incurred as a result of formal disciplinary proceedings. Following such proceedings, and in accordance with the Rule, the Board assessed costs against Robert L. Brown, the respondent attorney in the case at bar, in the amount of $13,476.79.

Additionally, Rule 9, § 24.3 authorizes the Board to grant appropriate relief from the cost assessment. Accordingly, on July 10, 1998, Brown tendered to the Board the full amount of the assessed costs together with a petition for their reduction. By order entered September 17, 1998, the Board denied the petition. Brown then filed a petition for the writ of certiorari in the chancery court pursuant to Tenn.Code Ann. § 27-9-101² to review the decision of the Board denying him relief from costs. Finding that it lacked jurisdiction, the chancery court dismissed Brown's petition. Brown appealed to the Court of Appeals. The Court of Appeals, reasoning that appeals of disciplinary matters should properly be before the Supreme Court, transferred the cause to this Court as provided in Rule 17, Rules of Appellate Procedure.³

We accepted transfer to determine whether the Board's denial of relief from costs is reviewable and, if so, by whom. After full and careful consideration of the record and the authorities, we hold that the Supreme Court has the inherent and exclusive jurisdiction to review judgments of the Board. Here, however, because the Board has failed to provide a reviewable record, we must vacate the Board's order denying relief from the assessed costs. The cause is remanded to the Board for proceedings consistent with the amendment to Rule 9, § 24.3, Rules of the Supreme Court, amended April 28, 2000, attached as an appendix to this opinion.

II

The Board filed a petition for discipline against Brown alleging violations of several disciplinary rules occurring as a result of his conduct in a real estate transaction in which he was both a party and the closing attorney. The matter was referred to and considered by a Hearing Panel⁴ pursuant to Rule 9, § 8.1, et seq., and the panel concluded that Brown had violated DR1-102(A)(4)⁵ by engaging in misrepresentation.

Brown appealed the panel's judgment to the circuit court pursuant to Rule 9, § 1.3, Rules of the Supreme Court. Adopting most of the findings of the Hearing Panel, the circuit court accepted the panel's conclusion that Brown had commingled personal funds with trust or escrow funds in violation of DR9-102(A).⁶ The circuit court expressly rejected, however, the panel's conclusion that Brown had violated DR1-102(A)(4). The panel recommended public censure or reprimand as Brown's sanction; the circuit court imposed public censure. Subsequently, the Board assessed, pursuant to Rule 9, § 24.3, Rules of the Supreme Court, costs against Brown in the amount of $13,476.79. This assessment was included in an order of enforcement entered by this Court.

Because Brown has accepted the circuit court's sanction, we recite only the facts necessary to resolve the costs issue. Thirty days after the entry of this Court's order of enforcement, Brown tendered the $13,476.79 and petitioned the Board for a reduction of costs. The petition included the following grounds:

1. Of the eight separate acts alleged in the petition for discipline as violations of the disciplinary rules, disciplinary counsel succeeded in proving none (emphasis in original);

2. Of the seven disciplinary rules Brown was alleged to have violated, the Board prevailed on only one, though on different grounds than first alleged;

3. Brown is the successful party in the litigation; and

4. Of the $13,476.79 assessed against Brown, almost sixty percent comprises fees to outside counsel engaged by the Board.

The Board responded to Brown's petition by entry of an order on September 17, 1998, summarily denying relief.⁷

On November 23, 1998, Brown filed, under the provisions of Tenn.Code Ann. § 27-9-101, et seq., a petition in the chancery court seeking review of the Board's refusal to reduce the assessed costs. The circuit court, agreeing with the Board's contention that it (the court) lacked subject matter jurisdiction, dismissed the petition. Brown timely sought review in the Court of Appeals. The Court of Appeals, however, transferred the case to this Court pursuant to the provisions of Rule 17, Rules of Appellate Procedure.

III

It is well settled and indisputable that the Supreme Court has the "inherent supervisory power to regulate the practice of law ..." In re Burson, 909 S.W.2d 768, 773 (Tenn.1995). In exercise of that power, the Supreme Court has promulgated Rule 9, Rules of the Supreme Court, which addresses the discipline of lawyers and the enforcement thereof. In Rule 9, § 1.3, the Supreme Court has specifically designated the extent to which the right to review a judgment provided in Tenn. Code Ann. § 27-9-101 is to be applied in the disciplinary context. Section 1.3 provides only that "the respondent or the Board may have a review of the judgment of a hearing committee in the manner provided by T.C.A. § 27-901 et seq...." Tenn.Sup.Ct.R. 9, § 1.3 (emphasis added). Thus, application of Tenn.Code Ann. § 27-9-101 in the disciplinary context is limited to chancery court review of the judgment of a hearing panel.

Moreover, the Board, its authority, and all of its functions are derived from the Supreme Court. Fletcher v. Board of Professional Responsibility, 915 S.W.2d 448, 450 (Tenn.Ct.App.1995). As such, "the remainder of the judiciary are powerless to review action or inaction of the Board or its employees except as expressly authorized by the Supreme Court." Id. A lower court is only authorized to review a hearing committee's decision pursuant to Rule 9, § 1.3, Rules of the Supreme Court. Lower courts have not been granted the authority to review the Board's decision to assess the costs of the proceedings under Rule 9, § 24.3. Therefore, a trial court lacks authority to review the Board's decision regarding costs.

Even though Board decisions are not reviewable by the trial court, such decisions are, indeed, reviewable. The Board of Professional Responsibility is an agency of the Supreme Court. In re Youngblood, 895 S.W.2d 322, 325 (Tenn.1995). As such, the Supreme Court has jurisdiction to review the actions of the Board. Id. This jurisdiction is "grounded in the Court's inherent power to review the actions of its boards, commissions, and other agencies." Id.⁸ Under this inherent power, this Court has the exclusive authority to review the Board's assessment of costs under Rule 9,§ 24.3.

The Board insists that even if Brown had the right to Supreme Court review of the Board's decision regarding costs, he has waived it. Waiver, the Board asserts, is supported by the following: (1) the issues of sanctions and the resulting costs are inextricably bound together by Rule 9, § 24.3, and, therefore, had Brown been dissatisfied with the assessed costs, he should have appealed the entire matter; (2) even if Brown had the right to Supreme Court review, the appeal was not timely filed; and (3) Brown should have objected to the costs assessed before this Court entered the Enforcement Order.

Upon careful review of the record, we find the Board's contentions to be without support. In his appeal of the hearing panel's judgment to the circuit court, Brown raised the costs issue. Responding to Brown, the circuit court, in an order dated November 10, 1997, stated "the Motion of the petitioner as to the payment of costs in these proceedings is governed by Tennessee Supreme Court Rule 9, Section 24.3 and must be presented to the Board of Professional Responsibility."

Brown received similar instructions from Disciplinary Counsel. During the proceedings, the circuit court questioned Disciplinary Counsel about the expenses to be assessed against Brown. The...