Supreme Court Rejects Clarksville Lawyer’s Claim That Disciplinary Process Violates Constitution

June 4, 2014

The Tennessee Supreme Court unanimously affirmed the professional discipline of a public censure upon Clarksville-based attorney Fletcher Whaley Long and rejected his constitutional challenges to the Court’s disciplinary enforcement rule.

A hearing panel had determined that Mr. Long violated four provisions of the Tennessee Rules of Professional Conduct that arose over his failure to provide an accounting of his fees, deposit a retainer fee in his trust account, refund unearned fees, and adhere to disciplinary rules. The Montgomery County Chancery Court affirmed the hearing panel’s decision and the public censure for Mr. Long.

On appeal, Mr. Long challenged the constitutionality of Tennessee Supreme Court Rule 9, governing disciplinary enforcement of attorneys. Mr. Long contended in part that the Rule violated due process, because it combines investigative, enforcement, and adjudicative authority in the same agency, the Board of Professional Responsibility.

The Tennessee Supreme Court rejected Mr. Long’s constitutional challenges, including his due-process argument. Justice Sharon G. Lee explained in the opinion that the Board’s Office of Chief Disciplinary Counsel investigates allegations and institutes disciplinary proceedings if necessary. However, hearing panels composed of independent attorneys appointed by the Board then adjudicate the proceedings.

“Because the investigatory/enforcement responsibilities and the adjudicative responsibilities are functionally separate within the Board, Rule 9 does not violate due process principles,” wrote Justice Lee.

Read the opinion in Long v. Board of Professional Responsibility, authored by Justice Lee.