I have made reference in the past on this blog about the problems that can come from the fact that Tennessee is one of a very few states that still use the “preponderance of the evidence” standard in disciplinary proceedings against lawyers. Fewer than a dozen jurisdictions including Tennessee still use that standard. Around forty U.S. jurisdictions require proof of misconduct by the much higher “clear and convincing evidence” standard in order to discipline a lawyer.
I have long believed that, with the right case, an as-applied constitutional challenge to the standard could be successful in Tennessee. Personally, I would like to see Tennessee as a matter of public policy just come to the determination that joining the overwhelming majority of the states on this issue is simply the right thing to do. The difference in the standard of proof wouldn’t make much difference at all in many cases where conduct is egregious and easily proven. Where the different standard could really make a large amount of difference is upstream in disciplinary investigations well before formal proceedings are even initiated and would decrease the pressure on lawyers to agree to a resolution of their case with the imposition of a reprimand or a censure because of the fear that they could lose a contested case and potentially receive more severe punishment if a hearing panel ends up deciding that it was just slightly more likely that the accuser’s version of events was accurate.
I’ve never thought that a facial constitutional challenge would be a successful endeavor because the problem with the use of the standard is not that it defies due process in every case. Only an as-applied challenge was ever going to have a chance at success. And the right kind of fact pattern would be key.
We have something of a weird little cottage industry of lawyers who have their own track record of problems with past discipline and who have handled their own cases attempting to then trumpet themselves as lawyers for lawyers in disciplinary proceedings. As a result, what I have long worried about is that someone might pursue a constitutional challenge to the standard in the wrong kind of case and end up the first vehicle for the Court to address the issue. The risk of that sort of outcome is that the Court might find itself so strenuously justifying its system that any effort to win the day just on a public policy rationale would be lost. Unfortunately, just such an event occurred earlier this month as a Nashville lawyer represented by a lawyer with her own quite checkered disciplinary history appears to have done just that. And, as a bonus, did it in a fashion that the Court called “rambling and border[ing] on incomprehensible.” You can read the Court’s opinion here.
It’s really a bit mind blowing that any lawyer would think that this particular case was a good one to pursue that constitutional argument. The respondent was looking at a 6-month suspension but only 1 month of it as an active suspension, had previously been privately disciplined twice and publicly censured twice more for conduct similar to the most recent charges and, as even the Court pointed out in a footnote, the evidence of misconduct was more than sufficient to satisfy even the clear and convincing standard. It appears that neither the lawyer whose license was actually at stake, nor his first lawyer were off-the-mark enough to originally think that was an avenue worth exploring. But things changed once an additional lawyer was added to the team.
What is truly frustrating (in addition to why any lawyer would hire the lawyer who handled the defense of the case) is that the rambling, nearly incomprehensible argument did manage to cause the Court to pontificate about how the preponderance of the evidence standard strikes the right balance because of it how it serves to protect the public from lawyer misconduct.
The only silver lining to be found in this dingy, dark grayish cloud is this: although this ruling certainly forecloses any facial challenge to the standard as unconstitutional, it does not mean that a successful as-applied challenge cannot be brought in the right circumstances. It certainly doesn’t make the task any easier though.
Tomorrow, I’ll be doing the first of my four stops on the roadshow across Tennessee, starting at home sweet home, Memphis. If you are a lawyer in Memphis in need of dual credits, it isn’t too late to sign up and attend. And, if you can’t make Memphis, I’ll be doing it again in Nashville on Thursday.