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Reguli v. Board of Professional Responsibility of Supreme Court of Tennessee

Court of Appeals of Tennessee, Nashville

October 13, 2014

CONNIE REGULI, ET. AL.
v.
BOARD OF PROFESSIONAL RESPONSIBILITY OF THE SUPREME COURT OF TENNESSEE

Session Date September 17, 2014.

Appeal from the Chancery Court for Davidson County No. 131516III Hon. Ellen H. Lyle, Chancellor.

Janet L. Layman and James Daniel Richardson Roberts, Jr., Nashville, Tennessee, for the appellants, Connie Reguli and Nathan S. Moore.

Robert E. Cooper, Jr., Attorney General and Reporter, Joseph F. Whalen, Acting Solicitor General, and Talmage M. Watts, Senior Counsel, Tax Division, Nashville, Tennessee, for the appellee, Board of Professional Responsibility of the Supreme Court of Tennessee.

John W. McClarty, J., delivered the opinion of the Court, in which J. Steven Stafford, P.J., W.S., and Brandon O. Gibson, J., joined.

OPINION

JOHN W. McCLARTY, JUDGE.

I. BACKGROUND

Connie Reguli and Nathan S. Moore (collectively "Petitioners") are licensed attorneys in Tennessee and are the subjects of an ongoing disciplinary proceeding brought by the Board of Professional Responsibility of the Supreme Court of Tennessee ("the Board"). Petitioners initially filed a petition with the Board's Office of Disciplinary Counsel in which they sought an answer to 15 questions concerning the applicable rules of procedure and evidence and the process and organization of the Board. The Board refused to hear the action and returned the petition. Petitioners filed the present action against the Board in the trial court in which they again sought an answer to each of the following 15 questions:

A. Do the Tennessee Rules of Civil Procedure apply in Board Proceedings as authorized by Tenn. R. Sup. Ct. 9? If the answer is "some, but not all, " please establish which Rules do apply.
B. Do the Tennessee Rules of Evidence apply in Board Proceedings as authorized by Tenn. R. Sup. Ct. 9? If the answer is "some, but not all, " please establish which Rules do apply.
C. Are the Board of Professional Responsibility, Disciplinary Counsel, District Committee Members, and Hearing Panel Judges a "single source" which may communicate freely and confidentially within itself at all times? And if not, are those communications an ethical violation? If the communications are ethical violations, are the communications open records?
D. Pursuant to the American Bar Association ("ABA") standards, are damages or potential damages (as described under the ABA standard) a necessary element for suspension and/or disbarment of an attorney? If so, is the Respondent Attorney entitled to know in the petition what damages the Disciplinary Counsel intends to proffer? If not in the petition, at what point in the proceedings should Disciplinary Counsel be required to produce that evidence, and is the Respondent Attorney entitled to discovery regarding the same?
E. In actions against an attorney for discipline, a quasi-criminal proceeding, should the standard of proof be "clear and convincing" as applied in at least six other jurisdictions (Pennsylvania, Louisiana, Florida, New Jersey, Arizona and Washington D.C.) and as recommended by the ABA?
F. Has the Tennessee Supreme Court exceeded its authority in establishing absolute immunity for all participants in the disciplinary process, including Board Members, District Committee Members and Disciplinary Counsel? If not, under what authority can the Supreme Court create this privilege? Do Hearing Panel Members enjoy the same absolute immunity as other judges even when they ...

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