Long v. Bd. of Prof'l Responsibility of the Supreme Court of Tenn.
| Decision Date | 04 June 2014 |
| Docket Number | No. M2013–01042–SC–R3–BP.,M2013–01042–SC–R3–BP. |
| Citation | 435 S.W.3d 174 |
| Parties | Fletcher Whaley LONG v. BOARD OF PROFESSIONAL RESPONSIBILITY OF THE SUPREME COURT of Tennessee. |
| Court | Tennessee Supreme Court |
OPINION TEXT STARTS HERE
John Edward Herbison, Clarksville, Tennessee, for the appellant, Fletcher Whaley Long.
Krisann Hodges, Brentwood, Tennessee, for the appellee, Board of Professional Responsibility of the Supreme Court of Tennessee.
A Hearing Panel of the Board of Professional Responsibility determined that an attorney had violated multiple disciplinary rules and imposed a public censure. The attorney appealed, and the trial court affirmed the Hearing Panel's decision. On appeal to this Court, the attorney raises a number of issues, including a facial constitutional challenge to Tenn. Sup.Ct. R. 9. After reviewing the evidence and the applicable law, we reject the attorney's constitutional challenge to Tenn. Sup.Ct. R. 9, and we conclude that his other issues are without merit. We therefore affirm the judgment of the trial court.
On August 29, 2011, the Board of Professional Responsibility (“the Board”) filed a Petition for Discipline against Fletcher Whaley Long, who was licensed to practice law in Tennessee in 1997. The Board alleged that Mr. Long committed professional misconduct during his representation of Lawrence Earl Ralph. On May 22 and May 23, 2012, a hearing panel (“the Panel”), appointed by the Board pursuant to Tennessee Supreme Court Rule 9, section 8.2, heard evidence in the case. On May 30, 2012, the Panel issued its decision finding that Mr. Long had violated Tennessee Supreme Court Rule 8, RPCs 1.4(a), 1.15(a), 1.16(d)(5) and 8.4(a), and imposed a public censure.1
Pursuant to Tennessee Supreme Court Rule 9, section 1.3, Mr. Long appealed the Panel's decision to the Montgomery County Chancery Court (“the Trial Court”). On March 27, 2013, the Trial Court, based on the transcript and the record of the Panel's proceeding, affirmed the Panel's findings and recommendations. Mr. Long appeals the decision of the Trial Court.
The Supreme Court of Tennessee is the source of authority of the Board of Professional Responsibility and all its functions. Brown v. Bd. of Prof'l Responsibility, 29 S.W.3d 445, 449 (Tenn.2000). As a part of our duty to regulate the practice of law in Tennessee, we bear ultimate responsibility for enforcing the rules governing our profession. Doe v. Bd. of Prof'l Responsibility, 104 S.W.3d 465, 469–70 (Tenn.2003). We review judgments under our “inherent power [and] essential and fundamental right to ... administer [the] rules pertaining to the licensing ... of attorneys.” Hughes v. Bd. of Prof'l Responsibility, 259 S.W.3d 631, 640 (Tenn.2008) (citing In re Burson, 909 S.W.2d 768, 773 (Tenn.1995)).
When reviewing a hearing panel's judgment, a trial court must consider the transcript of the evidence before the hearing panel and its findings and judgment. Tenn. Sup.Ct. R. 9, § 1.3. On questions of fact, the trial court does not substitute its judgment for that of the hearing panel as to the weight of the evidence. Bd. of Prof'l Responsibility v. Allison, 284 S.W.3d 316, 323 (Tenn.2009) (citing Bd. of Prof'l Responsibility v. Love, 256 S.W.3d 644, 653 (Tenn.2008)). Any reversal or modification of a hearing panel's decision must be based on the reviewing court's finding that the hearing panel's decision was:
(1) in violation of constitutional or statutory provisions; (2) in excess of the panel's jurisdiction; (3) made upon unlawful procedure; (4) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion; or (5) unsupported by evidence which is both substantial and material in the light of the entire record.
Tenn. Sup.Ct. R. 9, § 1.3; Love, 256 S.W.3d at 653. Our standard of review on appeal is the same as that of the trial court. Hoover v. Bd. of Prof'l Responsibility, 395 S.W.3d 95, 103 (Tenn.2012).
We begin our review with a summary of the evidence presented to the Panel and reviewed by the Trial Court.
On May 14, 2003, Mr. Ralph was incarcerated in the Warren County jail after being convicted of three misdemeanors and sentenced to serve time in jail. On May 19, 2003, Mr. Ralph's brother, David Ferrell, contacted Mr. Long and asked him to represent Mr. Ralph. On May 20, 2003, Mr. Long and his assistant, Theresa Eatherly, drove to McMinnville to meet Mr. Ferrell. Mr. Long and Mr. Ferrell met in front of the Warren County courthouse, where Mr. Ferrell paid Mr. Long $7500 in cash. Mr. Long handwrote a fee agreement, which stated only the following:
Deposit of 7,500
escrow account
Draw out as earned 200/hour
After Mr. Long and Mr. Ferrell signed the agreement, Mr. Long met with the trial judge and the assistant district attorney general. After the conference, the trial judge set an appeal bond for Mr. Ralph's release. Mr. Long left the courthouse and met Mr. Ferrell in the parking lot. Mr. Ferrell was pleased that Mr. Long had been successful in securing an appeal bond.
As to the status of Mr. Long's attorney fee, Mr. Long testified that he asked Mr. Ferrell if he agreed that Mr. Long had earned the $7500 fee and that Mr. Ferrell answered: “Yes, sir, I would agree with that.” Mr. Long further testified that Mr. Ferrell said it was “okay with him” if Mr. Long treated the $7500 as an earned fee. Mr. Ferrell denied that he ever agreed to modify the written fee agreement, and he testified that he expected Mr. Long would deposit the $7500 into his trust account and draw it out at a rate of $200 per hour. While driving back to Nashville, Mr. Long expressed concern to Ms. Eatherly that he had not “g[otten] a piece of paper back,” but told her that “Mr. Ferrell would lose it in a few days anyways.” Mr. Long did not deposit the $7500 fee into his trust account.
Following Mr. Ralph's release from jail, Mr. Long filed a motion for a new trial and also agreed to represent Mr. Ralph in a second criminal case. For Mr. Ralph's second criminal case, Mr. Ferrell testified that he paid $5700 to attorney Greg Clayton 2 and $300 to Mr. Long. Mr. Long testified that he did not charge any additional fees to represent Mr. Ralph in the second case. Mr. Clayton and Mr. Long tried Mr. Ralph's case before a jury, and Mr. Ralph was convicted. Following the conviction, Mr. Ralph and Mr. Ferrell met with Mr. Long and Mr. Clayton and terminated their services. Mr. Ferrell asked Mr. Long to provide an accounting of the attorney's fees charged and to refund any fees that were unearned. Mr. Long did not provide an accounting and did not refund any fees.3
Based on these facts, the Panel found that Mr. Long violated RPC 1.4(a) because he failed to provide an accounting of the fees that he had charged in connection with Mr. Ralph's representation; violated RPC 1.15(a) because he failed to deposit the $7500 fee into his trust account; violated RPC 1.16(d)(5) because he failed to refund unearned fees; and violated RPC 8.4(a) by failing to adhere to RPCs 1.4(a), 1.15(a), and 1.16(d)(5).4 The Panel determinedthat a public censure was the appropriate sanction for Mr. Long's misconduct.
In this appeal, Mr. Long argues that: (1) the Panel's decision was arbitrary or capricious, or characterized by an abuse or clearly unwarranted exercise of discretion; (2) the Panel's decision was unsupported by substantial and material evidence in light of the entire record; (3) the charges against Mr. Long are barred by the doctrine of laches; (4) the charges against Mr. Long are barred by the doctrine of res judicata; and (5) Rule 9 is unconstitutional and violates Mr. Long's due process rights because it combines investigative, enforcement, and adjudicative functions in the Board, creates a financial incentive for the Board to pursue formal disciplinary proceedings, and gives rise to an institutional bias in favor of finding guilt and imposing discipline. We have thoroughly considered Mr. Long's arguments and find that each lacks merit.
Mr. Long argues that the Panel acted arbitrarily or capriciously or upon an unlawful procedure because the Panel should have issued a form of private discipline instead of a public censure. Mr. Long notes that at the time of his alleged misconduct, Tennessee Supreme Court Rule 9 permitted a hearing panel to impose a private reprimand. Disciplinary Counsel agrees that the Panel could have considered a private reprimand but argues that Mr. Long has failed to demonstrate that the Panel acted arbitrarily or capriciously or upon an unlawful procedure by imposing a public censure.
Mr. Long argued to the Panel that if any discipline was warranted, he should receive a private sanction rather than a public one. He cites nothing in the record to indicate that the Panel did not consider his argument. Additionally, although the Panel did not specifically reference the applicable American Bar Association Standards for Imposing Lawyer Sanctions (“ABA Standards”) in its written Order imposing a public censure, the Panel's Order makes clear that ABA Standards 4.13, 4.43, and 7.3 5—each of which recommends a presumptive penalty of a public censure—applied to Mr. Long's misconduct. Accordingly, we conclude that the Panel's decision to impose a public censure was neither arbitrary nor capricious, nor based on an unlawful procedure.
Mr. Long further argues that the Panel's decision was not supported by substantial and material evidence in light of the entire record. Specifically, Mr. Long contests the Panel's finding that his written fee agreement with Mr. Ferrell was not orally modified, and as a result, he...
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