In re Investigation of Law Solutions Chicago LLC, 012221 TNCIV, M2020-00411-COA-R3-CV

Docket Nº:M2020-00411-COA-R3-CV
Opinion Judge:THOMAS R. FRIERSON, II, JUDGE
Party Name:In re INVESTIGATION OF LAW SOLUTIONS CHICAGO LLC
Attorney:Wallace W. Dietz and Briana T. Sprick Schuster, Nashville, Tennessee, for the appellant, Deighan Law LLC, formerly known as Law Solutions Chicago LLC d/b/a UpRight Law. Herbert H. Slatery, III, Attorney General and Reporter; Andrée S. Blumstein, Solicitor General; Caroline Drinnon, Assistant Atto...
Judge Panel:Thomas R. Frierson, II, J., delivered the opinion of the court, in which John W. McClarty and Kristi M. Davis, JJ., joined.
Case Date:January 22, 2021
Court:Court of Appeals of Tennessee

In re INVESTIGATION OF LAW SOLUTIONS CHICAGO LLC

No. M2020-00411-COA-R3-CV

Court of Appeals of Tennessee, Nashville

January 22, 2021

Session November 12, 2020

Appeal from the Chancery Court for Davidson County No. 19-1210-IV Russell T. Perkins, Chancellor

The trial court granted the Tennessee Attorney General's petition seeking to compel the respondent corporation, Law Solutions Chicago LLC d/b/a UpRight Law ("UpRight"), to provide information regarding the identities of consumers who had paid for but allegedly not received UpRight's services. In so ruling, the trial court determined that the attorney general had established that UpRight's practices, if proven, would likely constitute violations of the Tennessee Consumer Protection Act. The trial court also determined that the information sought was not protected by the attorney-client privilege. UpRight has appealed. Discerning no reversible error, we affirm the trial court's ruling.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed; Case Remanded

Wallace W. Dietz and Briana T. Sprick Schuster, Nashville, Tennessee, for the appellant, Deighan Law LLC, formerly known as Law Solutions Chicago LLC d/b/a UpRight Law.

Herbert H. Slatery, III, Attorney General and Reporter; Andrée S. Blumstein, Solicitor General; Caroline Drinnon, Assistant Attorney General; and Travis Brown, Assistant Attorney General, for the appellee, Tennessee Attorney General and Reporter.

Thomas R. Frierson, II, J., delivered the opinion of the court, in which John W. McClarty and Kristi M. Davis, JJ., joined.

OPINION

THOMAS R. FRIERSON, II, JUDGE

I. Factual and Procedural Background

On October 9, 2019, Herbert H. Slatery, III, Tennessee Attorney General and Reporter ("the Attorney General"), filed a petition in the Davidson County Chancery Court ("trial court") requesting that the trial court order Upright to comply with a Request for Information ("RFI") issued pursuant to Tennessee Code Annotated § 47-18-106(a). As explained in the petition, the Attorney General had been investigating UpRight for alleged deceptive business practices under the Tennessee Consumer Protection Act ("TCPA") in connection with UpRight's "advertising and sale of debt relief and legal services to consumers" and had also been investigating UpRight's purported "unauthorized practice of law."

The Attorney General asserted that UpRight paired consumers in need of debt relief services with local bankruptcy attorneys. However, according to the Attorney General, UpRight did not always provide the services for which consumers had paid. The Attorney General sought, within the RFI, a list of Tennessee consumers, including names and addresses ("identifying information"), who had partially paid UpRight's fees but had received no services. The Attorney General also averred that UpRight refused to provide this information, which the Attorney General had deemed relevant to his investigation.

UpRight filed a response opposing the Attorney General's petition, asserting that it had already produced over 14, 000 pages of written documents in addition to searchable data files. UpRight asserted that the identifying information concerning clients who had not yet filed bankruptcy proceedings was protected by the attorney-client privilege and could not be disclosed by UpRight without the clients' consent. UpRight further asserted that it provided many other "bankruptcy services" to clients aside from the filing of a bankruptcy petition. In support, UpRight filed an affidavit from its associate general counsel attesting to the types of services that UpRight provided to its clients prior to the filing of a bankruptcy petition.

On December 4, 2019, the Attorney General filed a reply, claiming that the threshold requirements set forth in U.S. v. Morton Salt Co., 338 U.S. 632 (1950), had been met inasmuch as the RFI was within the Attorney General's authority to issue, was not too indefinite, and was reasonably relevant to the investigation. The Attorney General posited that UpRight had failed to rebut the validity of the RFI.

On February 14, 2020, the trial court entered a final order. The court determined that the Attorney General had the power to investigate a potential violation of the TCPA and that the person or entity being investigated could be required to "make available for examination all documentary material and information relevant to the subject matter of the investigation." See Tenn. Code Ann. § 47-18-106(a)(1) (Supp. 2019). As the court noted, although the statute further provided that the respondent could petition the Circuit or Chancery Courts of Davidson County for a protective order, UpRight had failed to seek such relief.

Moreover, as the trial court recognized, Tennessee Code Annotated § 47-18-106(d) provides in pertinent part: Any court of competent jurisdiction in this state, upon a showing by the attorney general that there are reasonable grounds to believe that this part is being, has been, or is about to be violated; that the persons who are committing, have committed, or are about to commit such acts or practices or who possess the relevant documentary material have left the state or are about to leave the state; and that such an order is necessary for the enforcement of this part, may order such persons to comply with subsection (a) whether the attorney general has made a prior request for information or not.

The court specifically found that UpRight's business practices alleged by the Attorney General's office, if proven, would likely violate the TCPA. The court further determined that the RFI did not appear to seek information that would violate the attorney-client privilege. The court therefore granted the petition and ordered UpRight to produce the information sought. UpRight timely appealed.

II. Issues Presented

UpRight presents the following issues for our review, which we have restated slightly: 1. Whether the trial court erred by determining that the client information sought by the Attorney General was not protected by attorney-client privilege.

2. Whether the trial court erred by declining to consider UpRight's duty to protect privileged client information.

3. Whether the trial court erred in determining that the information sought was relevant under the TCPA.

4. Whether the trial court erred by failing to consider the documents produced by UpRight when determining that the Attorney General had demonstrated a compelling need for the client information sought.

III. Standard of Review

We review a non-jury case de novo upon the record with a presumption of correctness as to the findings of fact unless the preponderance of the evidence is otherwise. See Tenn. R. App. P. 13(d); Bowden v. Ward, 27 S.W.3d 913, 916 (Tenn. 2000). "In order for the evidence to preponderate against the trial court's findings of fact, the evidence must support another finding of fact with greater convincing effect." Wood v. Starko, 197 S.W.3d 255, 257 (Tenn. Ct. App. 2006). We review questions of law, including those of statutory construction, de novo with no presumption of correctness. Bowden, 27 S.W.3d at 916 (citing Myint v. Allstate Ins. Co., 970 S.W.2d 920, 924 (Tenn. 1998)); see also In re Estate of Haskins, 224 S.W.3d 675, 678 (Tenn. Ct. App. 2006).

As our Supreme Court has elucidated, "[w]e review a trial court's rulings on the application of the attorney-client privilege under an abuse of discretion standard." Dialysis Clinic, Inc. v. Medley, 567 S.W.3d 314, 317-18 (Tenn. 2019). "A court abuses its discretion when it causes an injustice to the party challenging the decision by (1) applying an incorrect legal standard, (2) reaching an illogical or unreasonable decision, or (3) basing its decision on a clearly erroneous assessment of the evidence." Lee Med., Inc. v. Beecher, 312 S.W.3d 515, 524 (Tenn. 2010).

IV. Attorney-Client Privilege

UpRight asserts that the trial court abused its discretion by determining that the client information sought by the Attorney General was not protected by the attorney-client privilege and ordering its disclosure. By contrast, the Attorney General contends that the information sought-the identifying information concerning UpRight clients who paid fees but did not proceed to file a bankruptcy petition-is not protected by the privilege.

In Tennessee, the attorney-client privilege is codified at Tennessee Code Annotated § 23-3-105 (2009), which provides: No attorney, solicitor or counselor shall be permitted, in giving testimony against a client or person who consulted the attorney, solicitor or counselor professionally, to disclose any communication made to the attorney, solicitor or counselor as such by such person during the pendency of the suit, before or afterward, to the person's injury.

Concerning the purpose of the attorney-client privilege, our Supreme Court has explained: Sound public policy seems to have required the establishment of the rule that facts communicated by a client to his counsel are under the seal of confidence, and cannot be disclosed in proof. It is a rule of protection to the client, more than a privilege to the attorney. The latter is not allowed, if he would, to break this [s]eal of secrecy and confidence. It is supposed to be necessary to the administration of justice, and the prosecution and defence of rights, that the communications between client and their attorneys should be free and unembarrassed by any apprehensions of disclosure, or betrayal. The object of the rule is, that the professional intercourse between attorney and client should be protected by profound secrecy.

McMannus v. State, 39 Tenn. 213 (1858).

We note, however, that such privilege is not absolute. See...

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