Moncier v. Bd. of Prof'l Responsibility

• Decision Date: 24 May 2013
• Docket Number: No. E2012–00340–SC–R3–BP.,E2012–00340–SC–R3–BP.
• Parties: Herbert S. MONCIER v. BOARD OF PROFESSIONAL RESPONSIBILITY.
• Court: Tennessee Supreme Court

406 S.W.3d 139

Herbert S. MONCIER

v.BOARD OF PROFESSIONAL RESPONSIBILITY.

No. E2012–00340–SC–R3–BP.

Supreme Court of Tennessee, at Knoxville.

Jan. 3, 2013 Session.

May 24, 2013.

Herbert S. Moncier, Knoxville, Tennessee, pro se appellant.

Sandy Garrett, Nashville, Tennessee, for the appellee, Board of Professional Responsibility.

OPINION

CORNELIA A. CLARK, J., delivered the opinion of the Court, in which GARY R. WADE, C.J., JANICE M. HOLDER, WILLIAM C. KOCH, JR., and SHARON G. LEE, JJ., joined.

CORNELIA A. CLARK, J.

An attorney suspended from the practice of law for eleven months and twenty-nine days, with all but forty-five days of the suspension probated, was assessed costs associated with the proceedings that resulted in his suspension pursuant to Tennessee Supreme Court Rule 9, section 24.3. The attorney timely filed a petition seeking relief from costs, and a panel of the Board of Professional Responsibility convened and conducted a hearing on the petition. The panel denied the petition, and the attorney has appealed to this Court, as permitted by Rule 9, section 24.3. Having carefully and thoroughly considered the record and each of the nine issues raised, we affirm the panel's decision denying the petition for relief from costs.

Factual and Procedural Background

This case is before us on a post-disciplinary proceeding request for relief from costs. On June 1, 2011, this Court entered an Order of Enforcement suspending the law license of appellant, Herbert S. Moncier, for eleven months and twenty-nine days, with all but forty-five days of the suspension probated. We also ordered Mr. Moncier to have a practice monitor during the probationary period of his suspension, directed him to obtain twelve additional hours of continuing legal education courses in ethics, and assessed costs against him totaling $22,038.32. This assessment was based on Tennessee Supreme Court Rule 9, section 24.3, which requires attorneys suspended as a result of formal disciplinary proceedings to pay the costs of the proceedings but permits such attorneys to seek relief from the assessment by filing a petition with the Tennessee Board of Professional Responsibility (“Board”). Mr. Moncier petitioned for relief from costs on July 5, 2011. The petition was denied on January 12, 2012. Mr. Moncier then appealed as of right to this Court. Tenn. Sup.Ct. R. 9, § 24.3.

Mr. Moncier's position before this Court remains the same as it was before the panel hearing his petition. He alleges that the disciplinary proceedings resulting in his suspension deprived him of a multitude of constitutional, statutory, and rule-based rights; and that requiring him to pay the costs of such a flawed proceeding is fundamentally unfair. To provide context for the issues Mr. Moncier has raised, we begin with an overview of the twisted procedural road this matter has traveled before arriving back in this Court. ¹ Additionaland more specific information will be provided as necessary in the discussion of each issue, although we will not attempt to enumerate each and every pleading that has been filed in this and related proceedings over the past several years. For clarity, we will refer to the disciplinary proceedings that resulted in Mr. Moncier's suspension as Moncier I and to the proceedings on Mr. Moncier's petition for relief from costs as Moncier II.

Moncier I

Mr. Moncier was licensed to practice law in Tennessee in 1970. After investigation, a petition for discipline was filed against Mr. Moncier on July 30, 2008, alleging that his conduct while representing a client during a criminal sentencing hearing on November 17, 2006, before Judge J. Ronnie Greer of the United States District Court for the Eastern District of Tennessee, in the matter of United States v. Vassar, Case No. 2:05–CR–75, violated seven of Tennessee's Rules of Professional Conduct.²See Tenn. Sup.Ct. R. 8, RPC 1.1, 1.7, 3.1, 3.4, 3.5, 4.4, and 8.4. The petition for discipline and attached exhibits comprised approximately 1000 pages. On August 12, 2008, Mr. Moncier filed a response to the petition through counsel.

On September 28, 2009, a supplemental petition for discipline was filed based on the report of a Tennessee trial court judge, Judge Dale C. Workman, of a contempt finding against Mr. Moncier on June 12, 2009, for Mr. Moncier's conduct in the Circuit Court for Knox County during the proceedings in Daniels v. Grimac, No. 1–386–06.³ The supplemental petition alleged that Mr. Moncier's conduct in Daniels violated three Rules of Professional Conduct. Tenn. Sup.Ct. R. 8, RPC 3.4(c), 3.5(e), 8.4(a), (d). On November 20, 2009, Mr. Moncier, through counsel, filed a response to the supplemental petition.

The Board assigned a hearing panel to adjudicate the petitions. See Tenn. Sup.Ct. R. 9, § 8.2. The Moncier I hearing panel conducted a multi-day hearing at which Mr. Moncier was represented by counsel. The hearing adjourned on December 14, 2009. On January 13, 2010, the Moncier I hearing panel issued a forty-four-page judgment finding that Mr. Moncier had violated multiple provisions of the Tennessee Rules of Professional Conduct.⁴After considering the aggravating and mitigating factors relevant to punishment, the Moncier I hearing panel imposed a suspension of eleven months and twenty-nine days, with forty-five days of active suspension and the remainder served on probation.⁵ The Moncier I hearing panel also directed Mr. Moncier to obtain an additional twelve hours of continuing legal education in ethics and to secure a practice monitor for the probationary period of his suspension.

On March 15, 2010, Mr. Moncier filed in the Circuit Court for Knox County a petition for writ of certiorari seeking judicial review of the Moncier I hearing panel decision pursuant to Tennessee Supreme Court Rule 9, section 1.3. At that time, section 1.3 provided, in relevant part, as follows: “The respondent-attorney ... or the Board may have a review of the judgment of a hearing panel in the manner provided by Tenn.Code Ann. § 27–9–101 et seq., except as otherwise provided herein.” ⁶

On September 8, 2010, the senior judge assigned to hear Mr. Moncier's appeal, see Tenn. Sup.Ct. R. 9, § 1.5, issued a thirty-eight-page memorandum opinion, which affirmed in part, reversed in part, and remanded the matter to the Moncier I hearing panel “for reconsideration of the imposed discipline in light of the dismissal of some of the charges.” ⁷ Mr. Moncier filed a motion to alter or amend, which the trial court denied on October 26, 2010. Neither the Board nor Mr. Moncier sought an appeal to this Court from the trial court's decision.

On December 20, 2010, before the Moncier I hearing panel issued an opinion on remand, this Court held, in another case, that Rule 9, section 1.3 designates the petition for writ of certiorari as the mechanism for seeking judicial review of hearing panel decisions and explained that a petition for writ of certiorari is not effective to confer subject matter jurisdiction upon a trial court unless the petition is “supported by oath or affirmation.” Bd. of Prof'l Responsibility v. Cawood, 330 S.W.3d 608, 609 (Tenn.2010). We dismissed the Board's appeal in Cawood because the petition for writ of certiorari the Board filed in the trial court was not supported by oath or affirmation and was, therefore, insufficient to confer jurisdiction on the trial court. Id. On December 30, 2010, the Board filed a petition for rehearing of the Cawood decision, arguing that the requirements generally applicable to petitions for writs of certiorari had not been applied to petitions seeking judicial review pursuant to Rule 9, section 1.3 before Cawood.

On January 7, 2011, while the Board's Cawood petition for rehearing was pending in this Court, and almost four months after his case had been remanded to the Moncier I hearing panel for reconsideration, Mr. Moncier returned to the Moncier I trial court and asked for permission to amend his petition for writ of certiorari to incorporate the “Tenn.Code Ann. § 27–8–106 Verification filed herewith.” The trial court denied Mr. Moncier's motion the same day it was filed. On January 31, 2011, this Court denied the Board's petition for rehearing of Cawood.

In early February 2011, the Board filed a Tennessee Rule of Civil Procedure 60.02 motion in the Moncier I trial court asking the trial court to vacate its September 8, 2010 judgment and dismiss Mr. Moncier's appeal for lack of subject matter jurisdiction. Relying on Cawood and Rule 9, section 1.3, the Board argued that, because Mr. Moncier's petition for writ of certiorari to the trial court was not supported by oath or affirmation, the trial court never acquired subject matter jurisdiction to review the Moncier I hearing panel decision.

Mr. Moncier responded to the Board's motion by filing with the Moncier I trial court his own Rule 60.02 motion, as well as a petition for declaratory judgment. Mr. Moncier asked the trial court to vacate its September 8 and October 26, 2010 orders and direct the Moncier I hearing panel to vacate and re-enter its January 13, 2010 judgment. These actions, Mr. Moncier asserted, would allow him to begin the judicial review process anew and provide him an opportunity to file a petition for writ of certiorari compliant with Rule 9, section 1.3 and Cawood.

On February 9, 2011, while the trial court considered the competing Rule 60.02 motions, Mr. Moncier filed a similar motion with the Moncier I hearing panel, asking it to withdraw and immediately re-enter its January 13, 2010 judgment. Mr. Moncier alleged that this action would begin anew his time for seeking judicial review and allow him an opportunity to file a petition for writ of certiorari compliant with Rule 9, section 1.3 and Cawood.

On February 18, 2011, the Moncier I trial court granted the Board's Rule 60.02 motion,⁸ vacated its September 8, 2010 judgment, and dismissed Mr. Moncier's appeal, explaining its decision as...