Dunlap v. Bd. of Prof'l Responsibility of the Supreme Court of Tenn.

• Citation: 595 S.W.3d 593
• Decision Date: 07 February 2020
• Docket Number: No. M2018-01919-SC-R3-BP,M2018-01919-SC-R3-BP
• Parties: James A. DUNLAP, Jr. v. BOARD OF PROFESSIONAL RESPONSIBILITY OF the SUPREME COURT OF TENNESSEE
• Court: Supreme Court of Tennessee

595 S.W.3d 593

James A. DUNLAP, Jr.

v.BOARD OF PROFESSIONAL RESPONSIBILITY OF the SUPREME COURT OF TENNESSEE

No. M2018-01919-SC-R3-BP

Supreme Court of Tennessee, AT NASHVILLE.

October 3, 2019 Session

FILED February 7, 2020

James A. Dunlap, Jr., Atlanta, Georgia, Pro Se.

Sandy Garrett and Jerry D. Morgan, Brentwood, Tennessee, for the appellee, Board of Professional Responsibility of the Supreme Court of Tennessee.

Sharon G. Lee, J., delivered the opinion of the Court, in which Jeffrey S. Bivins, C.J., and Cornelia A. Clark and Holly Kirby, JJ., joined. Roger A. Page, J., not participating.

OPINION

Sharon G. Lee, J.

A Board of Professional Responsibility hearing panel decided that an attorney should be suspended for one year for violating Tennessee Rules of Professional Conduct 3.3 (candor toward the tribunal), 3.5(a) (impartiality and decorum of the tribunal), 8.4(c) (conduct involving dishonesty, fraud, deceit, or misrepresentation), and 8.4(d) (conduct that is prejudicial to the administration of justice). The attorney appealed, and the trial court affirmed. After careful review, we affirm the judgment of the trial court.

I.Background and Disciplinary Action

In August 2013, James A. Dunlap, Jr., a Georgia lawyer, was admitted to practice pro hac vice on behalf of Tri-Cities Holdings, LLC, which proposed to operate an outpatient methadone clinic in Johnson City, Tennessee. To provide these health services, Tri-Cities Holdings had to obtain a Certificate of Need from the Tennessee Health Services and Development Agency (HSDA). See Tenn. Code Ann. § 68-11-1607(a)(4) (2013). In March 2013, Tri-Cities Holdings applied for the Certificate of Need and gave the required public notice, including notice to state, county, and local government officials in Johnson City.¹ Tri-Cities Holdings also had to obtain a license from the Tennessee Department of Mental Health and Substance Abuse Services (TMH).² TMH had to conduct an independent review of the application to ensure the accuracy and completeness of the information provided. See id. § 68-11-1608(a) (2013).

While its Certificate of Need application was pending, Tri-Cities Holdings filed the first of three federal lawsuits related to the proposed methadone clinic. In April 2013, Mr. Dunlap filed suit for Tri-Cities Holdings against the City of Johnson City, Tennessee,³ in the United States District Court for the Eastern District of Tennessee (Tri-Cities I). The lawsuit sought a declaratory judgment that the city’s zoning ordinance concerning methadone clinics violated the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq., and the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq. Tri-Cities Holdings LLC v. City of Johnson City , No. 2:13-CV-108, 2013 WL 2635337, at *2 (E.D. Tenn. June 12, 2013). Tri-Cities Holdings requested an injunction restraining Johnson City from withholding the necessary permits for operation of a methadone clinic. Id. On June 12, 2013, the federal court dismissed the action without prejudice, finding that Tri-Cities Holdings’ claims were not ripe for disposition while its Certificate of Need application was pending before HSDA. Id. at *6. Tri-Cities Holdings did not appeal this decision.

On June 26, 2013, HSDA denied Tri-Cities Holdings’ application for a Certificate of Need.⁴ According to a statement by an HSDA board member, the denial was based on a lack of need for the proposed services because other effective treatment options for opiate addiction were available in the area. TMH had also concluded that there was no need for the proposed services.

On July 2, 2013, Mr. Dunlap, on behalf of Tri-Cities Holdings, filed an administrative appeal of the denial of the Certificate of Need with the Tennessee Secretary of State Administrative Procedures Division. The appeal was assigned to Administrative Law Judge Kim Summers.

On July 8, 2013, Mr. Dunlap filed suit for Tri-Cities Holdings (Tri-Cities II) in the United States District Court for the Middle District of Tennessee naming HSDA and Johnson City as defendants. The complaint alleged that HSDA and Johnson City had invalid ordinances, statutes, and regulations; discriminated against disabled persons; and failed to provide a reasonable accommodation or modification in violation of the Rehabilitation Act of 1973 and the ADA. Tri-Cities Holdings asserted also that HSDA erred in denying the Certificate of Need application. Tri-Cities II was transferred to the United States District Court for the Eastern District of Tennessee. Tri-Cities Holdings LLC v. Tenn. Health Servs. & Dev. Agency , No. 3:13-0669, 2013 WL 6019374, at *1 (M.D. Tenn. Nov. 13, 2013) (Order).

On July 25, 2013, Mr. Dunlap wrote to the Administrative Procedures Division requesting that HSDA, as an accommodation under the ADA, allow Tri-Cities Holdings to open a treatment center in Johnson City. Mr. Dunlap stated that he would be asking the federal court in Tri-Cities II to stay the administrative appeal.

On July 28, 2013, Mr. Dunlap wrote directly to Judge Summers requesting her to provide, under the ADA, a reasonable modification of all applicable state and local rules to allow Tri-Cities Holdings to locate its treatment center in Johnson City. Mr. Dunlap also requested a stay of the administrative appeal while Tri-Cities II was pending. He did not inform Judge Summers that the federal court had previously dismissed Tri-Cities I because of the ongoing Certificate of Need application. Counsel for HSDA opposed Mr. Dunlap’s request for a stay, asserting that Tri-Cities Holdings needed to exhaust its administrative remedies before Tri-Cities II was ripe for judicial review. Mr. Dunlap then sent another letter asking Judge Summers to stay the appeal, asserting that the administrative appeal claims were included as pendent claims in Tri-Cities II. Although Mr. Dunlap’s letter stated that he was attaching a copy of the Tri-Cities II complaint, he only attached a copy of the title and index pages of the complaint.

After a July 31, 2013 telephonic scheduling conference, Judge Summers entered an order stating that she would conduct a conference call on September 5, 2013, before setting the administrative appeal for hearing or ruling on Tri-Cities Holdings’ request for a stay of the appeal.

After the conference call on September 5, 2013, Judge Summers held the administrative appeal in abeyance and scheduled another conference call for November 5, 2013. The purpose of the November call was to discuss the status of the related federal case based on Judge Summers’ understanding that the federal case had not been resolved.

On November 5, 2013, Judge Summers held a third telephonic scheduling conference with counsel. After Mr. Dunlap advised her that the status of the federal case had not changed, Judge Summers again held the appeal in abeyance and scheduled another conference call for January 10, 2014.

Meanwhile in Tri-Cities II, Johnson City moved for a stay and dismissal. The bases of the motion for stay were that Tri-Cities II had been filed in the Middle District in defiance of the Eastern District’s dismissal of Tri-Cities I and that Tri-Cities Holdings had not obtained a Certificate of Need. Mr. Dunlap expressed disagreement with the ripeness ruling in Tri-Cities I and suggested that Tri-Cities II should proceed because the administrative appeal was on hold awaiting direction from the federal court. A magistrate judge from the Eastern District expressed concern that the administrative appeal had been stayed at Mr. Dunlap’s request. On December 10, 2013, the magistrate judge entered an order, finding that the filing of Tri-Cities II in the Middle District was "rather obvious judge-shopping" that showed "a contemptuous attitude toward" the court’s earlier decision. The magistrate judge stayed discovery, concluding that the district judge would not change his opinion in Tri-Cities I that Tri-Cities Holdings had to exhaust its administrative remedies before the federal court would hear the ADA claims in Tri-Cities II. He also held that the ruling of the court in Tri-Cities I was binding on Tri-Cities Holdings, thus it had to complete the administrative appeal. According to the magistrate judge, Mr. Dunlap’s efforts to obtain a stay in the administrative appeal contradicted Tri-Cities Holdings’ professed need for a quick resolution of its request for a Certificate of Need.

On January 8, 2014, Judge Summers emailed Mr. Dunlap and HSDA’s counsel to see if there were new developments in the case. Within minutes, Mr. Dunlap responded that there were no new developments and suggested that Judge Summers stay the appeal for another sixty days, despite the December 10, 2013 ruling in Tri-Cities II. HSDA’s counsel stated there had been new developments, and he would submit a filing to that effect. Based on these responses, Judge Summers did not have the January 10, 2014 conference call.

On March 7, 2014, HSDA’s counsel moved to set a hearing date for the administrative appeal and attached a copy of the magistrate judge’s December 10, 2013 order. On March 11, 2014, Mr. Dunlap responded by filing an "Objection to Motion to Set Hearing and Demand for Reasonable Modification under the ADA." He asserted that under federal law, Judge Summers had to issue the Certificate of Need without a hearing as a reasonable modification under the ADA. Mr. Dunlap stated that Judge Summers’ failure to issue the Certificate of Need would create a cause of action against her and the tribunal (that is, the Administrative Procedures Division of the Secretary of State). He added that Tri-Cities Holdings might request that the United States Department of Justice include Judge Summers and the tribunal in an ADA enforcement action. Mr. Dunlap declared that the administrative appeal amounted to a "scheme or artifice" to violate the ADA; that Tri-Cities Holdings’ opposing parties were trying to enlist Judge Summers to be their "fixer"; and that Judge Summers would risk "aiding and...