Herbert S. Moncier v. Board of Professional Responsibility

IN THE SUPREME COURT OF TENNESSEE

AT KNOXVILLE

January 3, 2013 Session

HERBERT S. MONCIER v. BOARD OF PROFESSIONAL

RESPONSIBILITY

Direct Appeal from the Board of Professional Responsibility Panel

No. 2011-2058-2-NJ(24)

No. E2012-00340-SC-R3-BP - Filed May 24, 2013

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.

Tenn. Sup. Ct. R. 9, § 24.3 Direct Appeal; Judgment of the Board Panel Affirmed

C ORNELIA A. C LARK, J., delivered the opinion of the Court, in which G ARY R. W ADE, C.J.,

J ANICE M. H OLDER, W ILLIAM C. K OCH, J R., and S HARON G. L EE, JJ., joined.

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

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

OPINION

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

Additional and 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 supsension 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

1

Tennessee Rule of Appellate Procedure 27(a)(4) requires an appellant’s brief to include a section

listing “[a] statement of the issues presented for review[.]” Tenn. R. App. P. 27(a)(4). Mr. Moncier has

listed nine issues in this section of his brief but has raised countless other issues in the argument portion of

his brief. This opinion addresses only the nine issues Mr. Moncier has appropriately raised by listing them

in accordance with Rule 27(a)(4). See Hodge v. Craig, 382 S.W.3d 325, 335 (Tenn. 2012) (stating that

failing to list issues in accordance with Rule 27(a)(4) may result in waiver).

Mr. Moncier has also made numerous requests in the argument portion of his brief for this Court to

take judicial notice of records, briefs, or documents in other cases. Mr. Moncier’s requests do not conform

to the requirements of Tennessee Rule of Appellate Procedure 22, regarding motions. Additionally, we

decline to take judicial notice of any records not introduced as exhibits in the proceedings below. See Tenn.

R. Evid. 201(c); Tenn. R. App. P. 24(g).

-2-

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.2 See 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 Daniel v. Grimac, No. 1-386-06.3 The supplemental

petition alleged that Mr. Moncier’s conduct in Daniel 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.4 After 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

2

As a result of this same conduct, the federal courts of the Eastern District of Tennessee suspended

Mr. Moncier for seven years, with five years of active suspension and two years of probation. See In re

Moncier, 550 F. Supp.2d 768, 812-13 (E.D. Tenn. 2008), aff’d 329 F. App’x. 636, 637 (6th Cir. 2009).

3

Mr. Moncier appealed the state trial court’s finding of contempt in Daniel. The Court of Appeals

concluded that the imposition of summary contempt was inappropriate and remanded to the trial court for

further proceedings. See Daniel v. Grimac, 342 S.W.3d 511, 518-20 (Tenn. Ct. App. 2010).

4

Specifically, the Moncier I hearing panel found that: (1) Mr. Moncier had a conflict of interest in

his representation of Michael Vassar in the federal proceedings in violation of RPC 1.7; (2) Mr. Moncier

disobeyed the federal district court’s orders during the Vassar sentencing hearing and disrupted those

proceedings in violation of RPC 3.4(c) and 3.5(e); (3) Mr. Moncier violated the ruling of the trial court in

Daniel by improperly interjecting questions about an ordinance violation, in violation of RPC 3.4(c), 3.5(e),

and 8.4(a) and (d); and (4) Mr. Moncier intended to disrupt the proceedings in Daniel in violation of RPC

3.5(e) and 8.4(d).

5

The hearing panel found as aggravating factors: (1) Mr. Moncier’s selfish motive in representing

multiple criminal defendants and creating a conflict of interest with his representation of Michael Vassar;

(2) Mr. Moncier’s pattern of misconduct; (3) Mr. Moncier’s substantial experience in the law; and (4) Mr.

(continued...)

-3-

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

5

(...continued)

Moncier’s refusal to acknowledge the wrongfulness of his conduct. The hearing panel found as mitigating

factors: (1) Mr. Moncier’s lack of a prior disciplinary record; (2) Mr. Moncier’s full and free disclosure and

cooperative attitude; and (3) the lengthy suspension already imposed by the federal courts.

6

On May 2, 2011, Rule 9, section 1.3 was amended, and it now provides that “[a] petition under this

section shall be made under oath or on affirmation and shall state that it is the first application for the writ.”

7

The trial court found that the record lacked substantial material evidence to support the Moncier

I hearing panel’s finding that Mr. Moncier had a conflict of interest in his representation of Michael Vassar

in federal court. The trial court also reversed the hearing panel’s finding that Mr. Moncier improperly

interjected questions concerning an ordinance violation during the punitive damages phase of Daniel because

the supplemental petition had failed to clearly and specifically inform Mr. Moncier of that charge. See Tenn.

Sup. Ct. R. 9, § 8.2.

-4-

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.

-5-

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 follows:

The issue before the Court is simple: Mr. Moncier’s petition did

not comply with Tenn. Code Ann. § 27-8-106 [footnote

omitted]. This Court therefore never had jurisdiction[:] the

appeal was a nullity, and this Court’s ruling of September 8,

2010[,] was equally a nullity. Mr. Moncier has lost his

opportunity to appeal the [h]earing [p]anel’s decision.

The trial court rejected Mr. Moncier’s argument that Cawood should be applied

prospectively, pointing out that prospective application would be inconsistent with this

Court’s application of Cawood in Nebel v. Bd. of Prof’l Responsibility, No. M2010-00420-

SC-R3-BP, 2011 WL 197868, at *1 (Tenn. Jan. 21, 2011). The trial court also denied Mr.

Moncier’s request for re-entry of its prior order, describing this request as “an imaginative

attempt to sidestep the holdings in Cawood, supra, and Nebel, supra.” 9

Twelve days later, on March 2, 2011, the Moncier I hearing panel declined to take any

action on Mr. Moncier’s motion requesting re-entry of its January 13, 2010 judgment. Mr.

Moncier subsequently filed a petition in the Circuit Court for Knox County, seeking judicial

review of this panel decision.

While Mr. Moncier’s petition for judicial review was pending in the Knox County

trial court, the Board submitted to this Court on March 9, 2011, a protocol memorandum and

proposed order of enforcement against Mr. Moncier.10 Several exhibits were attached to the

8

The trial court “assume[d]” the motion was filed pursuant to Tennessee Rule of Civil Procedure

60.02(3) or 60.02(5), which provide, in relevant part, as follows:

On motion and upon such terms as are just, the court may relieve a party . . . from

a final judgment, order or proceeding for the following reasons: . . . (3) the

judgment is void; . . . (5) any other reason justifying relief from the operation of the

judgment.

9

Mr. Moncier initiated judicial proceedings in a variety of venues after the trial court granted the

Board’s Rule 60.02 motion. We refer to these separate judicial proceedings only as necessary to address the

issues Mr. Moncier raises in this appeal.

10

Where no appeal is “perfected” from the judgment of a hearing panel suspending an attorney for

any period of time in excess of three months, “the Board shall forward a copy of the judgment or settlement

(continued...)

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protocol memorandum, including: the original and supplemental petitions for discipline, the

judgment of the Moncier I hearing panel, and an eleven-page invoice itemizing costs totaling

$22,038.32. The invoice included billing charges for time spent by Disciplinary Counsel

from November 2006 to March 2011. The proposed order of enforcement incorporated the

findings and discipline set out in the January 13, 2010 judgment of the Moncier I hearing

panel and also included a provision assessing all of the itemized costs to Mr. Moncier.11

While the proposed order of enforcement was pending in this Court, Mr. Moncier

filed a notice of appeal to this Court from the Moncier I trial court’s February 18, 2011 order

granting the Board’s Rule 60.02 motion, vacating the September 8, 2010 order, and

dismissing Mr. Moncier’s case based on Cawood. Mr. Moncier’s appeal was assigned case

number E2011-00616-SC-R3-BP.

After filing this notice of appeal, Mr. Moncier turned his attention to the Board’s

proposed order of enforcement pending before this Court. On March 14, 2011, he filed a

motion for stay of enforcement of discipline pending the resolution of his appeal in case

number E2011-00616-SC-R3-BP and, alternatively, requested permission to respond to the

Board’s protocol memorandum and proposed order of enforcement. On March 29, 2011, the

Board filed a response in opposition to Mr. Moncier’s motion for stay.

On April 21, 2011, the Knox County Circuit Court dismissed Mr. Moncier’s petition

seeking judicial review of the Moncier I hearing panel’s refusal to vacate and re-enter its

January 10, 2010 judgment. Mr. Moncier filed a notice of appeal in this Court from the trial

court’s order, and this appeal was assigned case number E2011-01090-SC-R3-BP. Thus,

this Court had pending three separate cases involving the same hearing panel decision

suspending Mr. Moncier.

10

(...continued)

to the Supreme Court of Tennessee.” Tenn. Sup. Ct. R. 9, § 8.4.

The Court shall review the recommended punishment provided in such

judgment or settlement with a view to attaining uniformity of punishment

throughout the state and appropriateness of punishment under the

circumstances of each particular case. The Court may direct that the

transcript or record of any proceeding be prepared and filed with the Court

for its consideration. Id.

Because Mr. Moncier’s appeal was not “perfected,” review under section 8.4 was appropriate.

11

This matter was assigned appellate case number M2011-00595-SC-BPR-BP.

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On April 26, 2011, this Court denied Mr. Moncier’s request for a stay but granted him

permission to file a response to the protocol memorandum and proposed order of

enforcement. On May 9, 2011, Mr. Moncier filed a response in excess of fifty pages, not

including the attached exhibits. The response listed fifteen issues, none of which challenged

the Board’s proposal to assess all itemized costs to Mr. Moncier. In addition to his response,

on May 10, 2011, Mr. Moncier filed six motions seeking additional relief.12 On May 24,

2011, the Board responded to each of Mr. Moncier’s motions and also moved to dismiss Mr.

Moncier’s appeals in case numbers E2011-00616-SC-R3-BP and E2011-01090-SC-R3-BP.

This Court entered the Order of Enforcement on June 1, 2011, which incorporated the

punishment included in the Moncier I hearing panel judgment and assessed costs of

$22,038.32 against Mr. Moncier. The June 1, 2011 Order of Enforcement also denied Mr.

Moncier’s six motions. By separate orders also entered on June 1, 2011, we granted the

Board’s motions to dismiss Mr. Moncier’s separate appeals.

On June 9, 2011, Mr. Moncier filed in this Court a petition for rehearing of the June 1,

2011 Order of Enforcement and also alternatively requested removal of the practice monitor

requirement and limited relief from Tennessee Supreme Court Rule 9, sections 18.1 and 18.7.

12

Mr. Moncier’s motions were titled as follows:

(1) Motion For This Court To Assume Jurisdiction of

Respondent’s Appeal As of Right From Knox County Criminal

Court #96518 And To Consolidate That Appeal With This Case;

(2) Motion For Uniformity-of-Punishment Discovery and to

Supplement the Record;

(3) Motion To Consolidate Case E2011-00616-SC-R3-BP with this

Case;

(4) Motion to Dismiss or, in the Alternative For An Order for the

Parties to Prepare a Joint Record;

(5) Motion For This Court To Await Final Orders And Appeals As

of Right In Two Additional Cases Pending in Trial Courts So As

To Assume Jurisdiction And To Consolidate Those Appeals With

This Case; and

(6) Motion to Consolidate Case E2011-******-SC-R3-BP With

This Case.

-8-

Mr. Moncier also requested a stay pending resolution of his petition for rehearing and

pending federal review. Mr. Moncier’s petition for rehearing and request for a stay were

denied by a June 14, 2011 order. Shortly after this order was filed, the Appellate Court

Clerk’s Office received from Mr. Moncier a “supplement to petition to rehear.” By a

June 21, 2011 order, we dismissed the supplement and directed Chief Disciplinary Counsel

to close any new investigatory files that, according to Mr. Moncier, had been opened as a

result of Mr. Moncier’s having identified himself as an attorney when he submitted the

supplement. We described the June 21, 2011 order as marking “the conclusion” of Mr.

Moncier’s disciplinary proceedings.

Moncier II

Fourteen days later, on July 5, 2011, Mr. Moncier filed a petition for relief from the

costs assessed in the June 1, 2011 Order of Enforcement. Tenn. Sup. Ct. R. 9, § 24.3. The

petition did not allege any specific grounds in support of the requested relief. The Board

responded to the petition on July 19, 2011. On that same date, a panel of the Board,

consisting of three attorneys, was designated to hear the petition.

A hearing on the petition was initially scheduled for September 28, 2011, but was

continued until December 13, 2011, upon motion of the Board. On November 21, 2011, Mr.

Moncier filed a motion for summary judgment and/or declaratory judgment. On December

2, 2011, the Board submitted a response to the pleading. From December 7 to December 12,

2011, Mr. Moncier filed a series of motions, petitions, and applications, including: (1) a

motion for relief from costs by remedial and equitable relief; (2) a motion to disqualify panel

members; (3) a supplemental motion to disqualify panel members; (4) an appeal and motion

for review to the en banc Board from the rulings of the chair of the panel; (5) an application

to the Board for issuance and service of subpoenas ad testificatium and duces tecum for the

hearing; and (6) a motion asking the panel to take judicial notice of and make an exhibit to

the hearing the record from Moncier I. In addition, Mr. Moncier filed a pre-hearing

memorandum and a supplement to his petition, alleging various specific grounds in support

of his request for relief. The Board responded to each of Mr. Moncier’s pleadings.

At a day-long hearing before the Moncier II panel on December 13, 2011, Mr.

Moncier took the position that the disciplinary proceedings in Moncier I deprived him of a

multitude of constitutional, statutory, and rule-based rights and that requiring him to pay the

costs of the flawed proceedings would be fundamentally unfair. Mr. Moncier gave a lengthy

opening statement, which he later adopted as his testimony, enumerating the various specific

ways he believed the proceedings in Moncier I were unfair, illegal, or unconstitutional.

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Mr. Moncier candidly acknowledged having the means to pay the assessed costs, but

he also described the financial difficulties he had experienced as a result of the seven-year

federal suspension. Mr. Moncier did not challenge any particular cost as excessive,

unnecessary, or unreasonable, nor did he argue that the charges for Disciplinary Counsel’s

time were inflated. Mr. Moncier objected, however, to paying any costs incurred after

December 11, 2009.13 On that date, according to Mr. Moncier, Disciplinary Counsel and

staff of the Board interfered with his right to have an attorney of his own choosing by

opening an investigation of the attorney representing him before the Moncier I hearing panel

during the hearing. Mr. Moncier did not further explain how the existence of this

investigation prevented the attorney from representing him.

Twenty exhibits were introduced at the Moncier II hearing. Ten more, some of which

were collective, were filed after the hearing. The exhibits included documents Mr. Moncier

had previously filed with this Court, the Board, or the Moncier I hearing panel, as well as

documents filed in, or related to, the various lawsuits Mr. Moncier had initiated in federal

and state courts as a result of the proceedings in Moncier I.

Moncier also filed several additional motions after the hearing, including: (1) a

renewed motion to recuse panel members; (2) a supplemental motion to recuse panel

members and to abate the proceeding pending other proceedings; and (3) a second

supplemental motion to disqualify panel members. The Board responded to every motion.

On January 12, 2012, the Moncier II panel issued an order denying these motions and Mr.

Moncier’s petition, finding no basis to grant him relief from costs.

On February 10, 2012, Mr. Moncier filed in this Court a “petition for judicial review

pursuant to Tenn. R. Sup. Ct. Rule 9, §§ 24.3 and 1.3.” Three days later, Mr. Moncier filed

a “motion for this Court to determine the sufficiency of the affirmation” to his petition for

judicial review. In a February 28, 2012 order, this Court explained that Rule 9, section 1.3

affords an appeal as of right to this Court, which is governed by the Tennessee Rules of

Appellate Procedure, and that Mr. Moncier’s petition for judicial review satisfied the

requirements of Tennessee Rule of Appellate Procedure 4, concerning a notice of appeal.

By the same order, however, we cautioned Mr. Moncier against using “this appeal as a means

by which to retry his underlying disciplinary case, which was concluded by this Court’s

Order of Enforcement filed June 1, 2011.”

13

More than half of the costs, $12,955.49, were incurred after December 11, 2009.

-10-

Standard of Review

Mr. Moncier has appealed from the Moncier II panel’s decision pursuant to Rule 9,

section 1.3. See Tenn. Sup. Ct. R. 9, § 24.3. When reviewing a decision under Rule 9,

section 1.3, we apply the same standard of review as that applied by a trial court reviewing

a hearing panel’s decision. Bd. of Prof’l Responsibility v. Cowan, 388 S.W.3d 264, 267

(Tenn. 2012). We will reverse or modify the decision of the panel only if

the rights of the petitioner have been prejudiced because the

panel’s findings, inferences, conclusions or decisions are: (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. We review questions of law de novo but do not substitute our

judgment for that of the panel as to the weight of the evidence on questions of facts. Id.; see

also Cowan, 388 S.W.3d at 267.

Analysis

Assessment of Costs Under Rule 9, Section 24.3

The attorney disciplinary process is a costly endeavor. A large portion of the

registration fees paid by attorneys who strive each day to follow ethical guidelines is now

used to pay for the disciplinary mechanism necessary to police those attorneys who do not

comply with the Rules of Professional Conduct. Shifting the financial burden of formal

disciplinary proceedings to those directly responsible for the costs is equitable and “serves

the additional function of deterring other lawyers from engaging in unprofessional conduct.”

In re Shannon, 876 P.2d 548, 575 (Ariz. 1994). To fulfill these purposes, Tennessee

Supreme Court Rule 9, section 24.3 provides:

In the event that a judgment of . . . suspension . . . results

from formal proceedings, the Board shall assess against the

respondent the costs of the proceedings, including court

reporter’s expenses for appearances and transcription of all

hearings and depositions, the expenses of the hearing panel in

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the hearing of the cause, and the hourly charge of Disciplinary

Counsel in investigating and prosecuting the matter.

The respondent attorney may petition the Board for relief

from costs within thirty days of receipt of the final bill of costs

or on the termination of any action upon which the disciplinary

proceeding was based, whichever occurs last. In seeking relief,

the respondent attorney shall have the opportunity to appear and

be heard before the Board or a duly constituted panel thereof.

Having conducted such a hearing, the Board shall file an order

within thirty days; this order must include the basis for the

Board’s decision. An order reflecting the decision shall be

treated as a decree of the circuit or chancery court and, as such,

is appealable to the Tennessee Supreme Court under Rule 9, §

1.3, Rules of the Supreme Court. . . .

The hourly charges of Disciplinary Counsel on formal

proceedings filed on or after January 27, 1992, shall be assessed

at $30 per hour for investigative time incurred prior to the filing

of formal proceedings and $80 per hour in connection with

formal proceedings.

Payment of the costs assessed by the Board pursuant to this

rule shall be required as a condition precedent to reinstatement

of the respondent attorney.

Tenn. Sup. Ct. R. 9, § 24.3.

Rule 9, section 24.3 is quite specific as to the types of expenses that may be assessed

as costs and the hourly rate that may be charged for Disciplinary Counsel’s time. In contrast,

the rule does not limit the grounds an attorney may advance when seeking relief from a costs

assessment. Attorneys who seek relief from costs typically allege extreme financial hardship,

or argue that a partial reduction is warranted because not all of the alleged ethical violations

were proven, or challenge the necessity and/or reasonableness of particular costs. See, e.g.,

Lufkin v. Bd. of Prof’l Responsibility, 336 S.W.3d 223, 225 (Tenn. 2011) (seeking relief

from costs based on extreme financial hardship); Brown v. Bd. of Prof’l Responsibility, 29

S.W.3d 445, 448 (Tenn. 2000) (seeking relief from costs based on Disciplinary Counsel’s

failure to prevail on all of the alleged ethical violations and the fact that sixty percent of the

fees were paid to outside counsel engaged by the Board).

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Mr. Moncier’s appeal is not typical. Consistent with his performance throughout

these disciplinary proceedings, Mr. Moncier has distorted the simple, single issue at the heart

of this appeal—whether the costs assessed to a disciplined attorney should be waived or

reduced—into nine issues, with multiple subparts. Despite this Court’s admonition, Mr.

Moncier has used this appeal as a means for attempting to re-litigate Moncier I, which was

concluded by the June 1, 2011 Order of Enforcement. Mr. Moncier has not asserted the usual

grounds in support of his request for relief from costs. Indeed, Mr. Moncier has candidly

acknowledged having the means to pay the assessed costs, even though he has experienced

financial difficulties from the seven-year federal suspension. While he has not challenged

any particular cost as excessive, unnecessary, or unreasonable, he has argued that a partial

reduction of costs is warranted. This argument is based, however, on findings in the

September 8, 2010 trial court judgment in Moncier I, which was later set aside as a nullity.

Mr. Moncier argues that he should not be responsible for costs incurred after December 11,

2009, when the Board opened an investigation of the attorney representing him before the

Moncier I hearing panel. Finally, Mr. Moncier is alleging that relief from costs is appropriate

because the Moncier I disciplinary proceedings were fundamentally flawed and unfair in

numerous ways. Although Mr. Moncier raised many of these issues in Moncier I, we will

address them briefly—and finally—again for the benefit of the public and the bar.

Constitutional Challenges to Tennessee Supreme Court Rule 9, section 24.3

A. Void for Vagueness

Mr. Moncier argues that Rule 9, section 24.3 is unconstitutionally vague in violation

of article I, section 8 of the Tennessee Constitution and the Fourteenth Amendment of the

United States Constitution because it fails to define “relief” from costs and provides no

standards to guide this Court’s review of panel decisions. We disagree.

Laws that “regulate persons or entities must give fair notice of conduct that is

forbidden or required.” FCC v. Fox Television Stations, Inc., __ U.S. __, 132 S. Ct. 2307,

2317 (2012) (citing Connally v. Gen. Constr. Co., 269 U.S. 385, 391 (1926)). “[T]he root

of the vagueness doctrine is a rough idea of fairness.” Colten v. Kentucky, 407 U.S. 104,

110 (1972). A law is void for vagueness if it fails either to give a person of ordinary

intelligence a reasonable opportunity to know what conduct is prohibited or to provide

sufficient standards for enforcement. See City of Chicago v. Morales, 527 U.S. 41, 52

(1999); Grayned v. City of Rockford, 408 U.S. 104, 108-09 (1972); see also Phillips v. Bd.

of Regents, 863 S.W.2d 45, 48-50 (Tenn. 1993) (discussing the void-for-vagueness doctrine).

A law is not void for vagueness if an “‘ordinary person exercising ordinary common sense’

can sufficiently understand the law and comply with [it.]” Arnett v. Kennedy, 416 U.S. 134,

-13-

159 (1974) (quoting Civil Serv. Comm’n v. Nat’l Ass’n of Letter Carriers, 413 U.S. 548,

578-79 (1973)).

To support his vagueness argument, Mr. Moncier relies upon Giaccio v. Pennsylvania,

382 U.S. 399 (1966). Giaccio involved an 1860 Pennsylvania statute, which applied in all

misdemeanor criminal cases and required juries in all cases of acquittals to “determine . . .

whether the county, or the prosecutor, or the defendant shall pay the [court] costs.” Id. at

400-01. Acquitted defendants against whom costs were assessed were committed to jail until

the costs were paid. Id. at 401. Although the statute provided no standards, Pennsylvania’s

courts had interpreted it as allowing for the imposition of costs only if a jury found the

acquitted defendant’s conduct “reprehensible in some respect, improper, [or] outrageous to

morality and justice[.]” Id. at 404 (internal quotation marks omitted).

The United States Supreme Court in Giaccio declared the statute as written and as

interpreted by Pennsylvania’s courts void for vagueness because it failed to provide any

definite standards to govern a jury’s assessment of costs. Id. at 403-05. The Court

emphasized that the “loose and unlimiting terms” used by Pennsylvania’s courts to interpret

the statute that “imposed forfeitures, punishments or judgments for costs” failed “to measure

up to the requirements of the Due Process Clause.” Id. at 404.

Unlike the statute at issue in Giaccio, Rule 9, section 24.3 does not authorize the

standardless assessment of costs. Rather, it allows attorneys to seek relief from costs already

assessed pursuant to very specific standards. Mr. Moncier has failed to provide any authority

for the proposition that laws affording parties an avenue for seeking relief from costs must

define precisely the grounds for seeking relief to withstand a void-for-vagueness

constitutional challenge.

Notwithstanding Mr. Moncier’s failure to supply any authority supporting his

argument, we conclude that even if the void-for-vagueness doctrine is implicated in these

circumstances, Rule 9, section 24.3 suffers from none of the deficiencies of the statute in

Giaccio. Rather, Rule 9, section 24.3 allows for the assessment of costs only if formal

disciplinary proceedings have resulted in “a judgment of disbarment, suspension, public

censure, private reprimand, temporary suspension, disability inactive status, reinstatement,

or denial of reinstatement.” Tenn. Sup. Ct. R. 9, § 24.3. The Board has no discretion to

determine to whom costs should be assessed. The types of expenses for which costs may be

assessed are specifically enumerated to include “court reporter’s expenses for appearances

and transcription of all hearings and depositions, the expenses of the hearing panel in the

hearing of the cause, and the hourly charge of Disciplinary Counsel in investigating and

prosecuting the matter.” Id. The hourly rates at which Disciplinary Counsel’s time may be

charged are prescribed at “$30 per hour for investigative time incurred prior to the filing of

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formal proceedings and $80 per hour in connection with formal proceedings.” Id. Attorneys

are notified of their rights to petition for relief from costs and to appear and be heard on such

petitions, and petitions must be resolved by written decisions within thirty days of hearings.

Id. We are convinced that an “ordinary person exercising ordinary common sense” would

have no difficulty understanding Rule 9, section 24.3 and availing himself of the opportunity

it provides to seek relief from costs. Arnett, 416 U.S. at 159 (internal quotation marks

omitted). The lack of specificity regarding the grounds for relief actually inures to the

benefit of disciplined attorneys, like Mr. Moncier, who are not precluded from conceiving

of and advancing various atypical arguments in support of a request for relief from costs.

We also reject Mr. Moncier’s argument that Rule 9, section 24.3 fails to provide

standards for this Court’s review of a panel’s decision on a petition for relief from costs. As

already explained, an appeal from a panel’s decision is governed by Rule 9, section 1.3,

which provides specific standards to govern our review. Tenn. Sup. Ct. R. 9, § 1.3; Cowan,

388 S.W.3d at 267. Mr. Moncier’s arguments that Rule 9, section 24.3 is unconstitutionally

vague are without merit.

B. Lack of Notice and a Hearing

Mr. Moncier next argues that his state and federal due process rights were violated

because (1) he was not given notice that the costs of his disciplinary proceeding would be

assessed against him; and (2) he was not afforded a hearing before being assessed the costs.

Two of the “essential requirements of due process . . . are notice and an opportunity

to respond.” Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 546 (1985). “The

opportunity to present reasons, either in person or in writing, why proposed action should not

be taken is a fundamental due process requirement.” Id.; see also Heyne v. Metro. Nashville

Bd. of Public Educ., 380 S.W.3d 715, 732 (Tenn. 2012).

Mr. Moncier’s contention that he was denied notice and an opportunity to be heard

before costs were assessed against him is wholly without merit. First of all, the Tennessee

Rules of Professional Conduct, as well as the decisions of this Court applying them, provide

ample notice as to the types of misconduct that may result in the institution of formal

disciplinary proceedings. Tenn. Sup. Ct. R. 8. Similarly, Rule 9, section 24.3 itself notifies

lawyers that if formal disciplinary proceedings result in “a judgment of disbarment,

suspension, public censure, private reprimand, temporary suspension, disability inactive

status, reinstatement, or denial of reinstatement,” the lawyer subject to the judgment shall be

responsible for paying the costs of the proceeding. Tenn. Sup. Ct. R. 9, § 24.3; see also See

Walker v. Bd. of Prof’l Responsibility, 38 S.W.3d 540, 549-50 (Tenn. 2001) (“All attorneys

subject to discipline have the opportunity to read [section 24.3] carefully.”).

-15-

Mr. Moncier also received specific notice of the costs proposed to be assessed against

him when the Board filed its proposed order of enforcement, protocol memorandum, and

invoice with this Court on March 9, 2011. Paragraph 7 of the proposed order of enforcement

stated:

Pursuant to Supreme Court Rule 9, Section 24.3, [Mr. Moncier]

shall pay to the [Board] the expenses and costs of this matter in

the amount of $22,038.32, and in addition, shall pay to the Clerk

of this Court the costs incurred herein, within (90) days of the

entry of this Order, for all of which execution may issue if

necessary.

The eleven-page invoice attached to the Board’s protocol memorandum provided an

itemization of costs. Mr. Moncier requested and received permission to respond to the

Board’s proposed order of enforcement and protocol memorandum. Although Mr. Moncier

filed on May 9, 2011, a response in excess of fifty pages, which included fifteen issues, he

did not contest the Board’s proposed assessment of costs against him. The record

indisputably demonstrates that Mr. Moncier received notice and had an opportunity to be

heard in this Court before costs were assessed against him. Mr. Moncier’s failure to prehend

that opportunity does not amount to denial of due process.

Mr. Moncier has also received extensive post-assessment process. See Phillips, 863

S.W.2d at 50-51 (discussing the effect of post-deprivation process). Specifically, Mr.

Moncier has not been required to tender payment while prosecuting his petition for relief

from costs. He has appeared and presented proof in support of his petition at a day-long

hearing before the Moncier II panel. He has been permitted to assert broad, atypical grounds

in support of his petition. He has been allowed to file numerous pre-hearing and post-hearing

motions with the Moncier II panel. He has appealed from the decision of the Moncier II

panel to this Court, filed a lengthy opening brief addressing myriad issues, filed a reply brief,

and presented oral argument to this Court. It is difficult to conceive of what additional

process Mr. Moncier could possibly be entitled to receive.

Subject Matter Jurisdiction

A. Board’s Failure to Assess Costs

Rule 9, section 24.3 states that “the Board shall assess against the [attorney] the costs

of the proceedings[.]” Mr. Moncier argues that this language requires Disciplinary Counsel

to submit an application for costs and expenses to the Board and obtain the Board’s approval

of the request before asking this Court to include an assessment of costs against a disciplined

-16-

attorney in an order of enforcement. According to Mr. Moncier, Disciplinary Counsel did

not follow this process in Moncier I; thus, this Court lacked subject matter jurisdiction to

assess costs against him in the June 1, 2011 Order of Enforcement.

Mr. Moncier’s argument is not well-taken. As already explained, the text of Rule 9,

section 24.3 requires the assessment of costs against attorneys subject to a judgment resulting

from formal disciplinary proceedings, defines the types of costs that must be assessed, and

sets the hourly rate at which Disciplinary Counsel’s time may be assessed. Rule 9, section

24.3 neither mandates the two-step process Mr. Moncier proffers nor prescribes the

mechanism by which the Board must fulfill its responsibility to assess costs. In Moncier I,

the Board satisfied Rule 9, section 24.3 by preparing and submitting a proposed order of

enforcement and a detailed eleven-page invoice itemizing the costs included in the proposed

order. The invoice obviously was prepared before this Court entered the June 1, 2011 Order

of Enforcement. Nothing more is required. Mr. Moncier’s argument that this Court lacked

subject matter jurisdiction to include an assessment of costs in the June 1, 2011 Order of

Enforcement is without merit.

B. Pendency of Other Appeals

Mr. Moncier also contends that this Court lacked subject matter jurisdiction to enter

the June 1, 2011 Order of Enforcement because he had two other appeals pending in which

he challenged the actions of the Moncier I trial court and hearing panel.14 Had he been

allowed to pursue these other appeals, Mr. Moncier asserts, he would have prevailed and

would not now be responsible for costs.

Mr. Moncier previously raised this argument in this Court in his May 9, 2011 response

to the Board’s proposed order of enforcement and also in the various motions he filed prior

to entry of the June 1, 2011 Order of Enforcement. We rejected this argument then, and we

remain convinced that our disposition of this issue was correct. Throughout these

proceedings, Mr. Moncier has refused to recognize that “[t]he source of authority of the

Board of Professional Responsibility and its functions lies in the Supreme Court.” Maddux

v. Bd. of Prof’l Responsibility, 288 S.W.3d 340, 343-44 (Tenn. 2009). Our duty to regulate

the practice of law in this State includes “the ultimate disciplinary responsibility for

violations of the rules governing the legal profession.” Id.

Consistent with that duty, we reviewed the Moncier I hearing panel’s judgment in

accordance with Rule 9, section 8.4 before entering the June 1, 2011 Order of Enforcement.

14

Mr. Moncier’s appeals were Moncier v. Bd. of Prof’l Responsibility, No. E2011-01090-SC-R3-BP

and Moncier v. Bd. of Prof’l Resonsibility, No. E2011-00616-R3-BP.

-17-

The pendency of Mr. Moncier’s separate appeals challenging by indirect means the Moncier

I hearing panel’s judgment neither divested this Court of subject matter jurisdiction nor

diminished the inherent authority of this Court to regulate the practice of law. This issue is

without merit.

Unconstitutional Disciplinary Process

Mr. Moncier next argues that he should be relieved of costs because Tennessee’s civil

disciplinary proceedings do not include quasi-criminal constitutional protections mandated

by the United States Supreme Court and article I, sections 8 and 9 of the Tennessee

Constitution. Mr. Moncier alleges that granting him relief from costs on this basis is

appropriate because the “costs are fruits of unconstitutional acts” and of a “defective civil

structured disciplinary proceeding.”

As support for this argument, Mr. Moncier relies primarily upon In re Ruffalo, 390

U.S. 544 (1968), in which the United States Supreme Court considered whether an attorney

disbarred by the State of Ohio should also be disbarred from practicing in federal court. Id.

at 550. In resolving the issue, the United States Supreme Court considered whether the Ohio

disbarment process sufficiently afforded the attorney procedural due process. Id. The Court

described disbarment proceedings as “adversary proceedings of a quasi-criminal nature.” Id.

at 551 (citation omitted). The Court explained that “disbarment . . . is a punishment or

penalty imposed on a lawyer.” Id. at 550. Thus, the lawyer is “entitled to procedural due

process, which includes fair notice of the charge.” Id. Because the Ohio disciplinary process

failed to afford the lawyer notice that his conduct “would be considered a disbarment

offense” until after the lawyer and another witness had testified “at length on all the material

facts” pertaining to the disbarment offense, id. at 550-51, the Court concluded that the Ohio

proceeding failed to afford the lawyer due process. Id. at 552. The Court reversed the

judgment of the federal circuit court disbarring the lawyer from practicing in the federal

courts. Id. at 551-52.

Mr. Moncier focuses on the phrase “quasi-criminal nature” from In re Ruffalo and

interprets it as entitling attorneys in disciplinary proceedings to the same due process rights

afforded criminal defendants. This argument goes too far. As the Colorado Supreme Court

recognized, the due process rights of attorneys in disciplinary proceedings “do not extend so

far as to guarantee the full panoply of rights afforded to an accused in a criminal case.”

People v. Harfmann, 638 P.2d 745, 747 (Colo. 1981); see also In re Surrick, 338 F.3d 224,

233 (3d Cir. 2003) (“[A]lthough attorney disciplinary proceedings have consequences which

remove them from the ordinary run of civil cases, they are not criminal in nature.”

(alterations and internal quotation marks omitted)); In re Palmisano, 70 F.3d 483, 486 (7th

Cir. 1995) (noting that In re Ruffalo “does not require courts to employ the procedures of the

-18-

criminal law in disbarment matters”); In re Cordova-Gonzalez, 996 F.2d 1334, 1336 (1st Cir.

1993) (“Although attorney discipline proceedings have been called quasi-criminal, the due

process rights of an attorney in a disciplinary proceeding do not extend so far as to guarantee

the full panoply of rights afforded to an accused in a criminal case.” (citation and internal

quotation marks omitted)); Rosenthal v. Justices of the Supreme Court of Cal., 910 F.2d 561,

564 (9th Cir. 1990) (“A lawyer disciplinary proceeding is not a criminal proceeding. As a

result, normal protections afforded a criminal defendant do not apply.” (citations omitted)).

Read as a whole, In re Ruffalo stands for the proposition that a lawyer subject to

discipline is entitled to procedural due process, including notice and an opportunity to be

heard. In re Ruffalo, 390 U.S. at 550. Tennessee’s disciplinary process affords lawyers

notice and an opportunity to be heard, as well as other protections, including the right to have

counsel present, the opportunity to cross examine witnesses, and the right to present

evidence. Tenn. Sup. Ct. R. 9, §§ 8.1 to 8.4. Mr. Moncier availed himself of these

procedural protections in Moncier I, and his argument that relief from costs is appropriate

because Tennessee has an “unconstitutionally structured attorney civil disciplinary

proceeding” is without merit.

Alleged Constitutional Violations in Moncier I

Mr. Moncier alternatively argues that, even if the process in Tennessee is not

constitutionally infirm, the disciplinary proceedings in Moncier I violated several rights

guaranteed him by the First, Fifth, Sixth, and Fourteenth Amendments to the United States

Constitution and article I, sections 8 and 9 of the Tennessee Constitution, including:

(1) the right to pre-hearing notice of charges of misconduct;

(2) the right to a fair and impartial hearing panel;

(3) the right to compulsory process for documents from a person

Disciplinary Counsel called to testify;

(4) the right to confront and cross-examine witnesses;

(5) the right to counsel of his choice;

(6) the right to present a defense; and

(7) the right to access to public and/or judicial records.

Mr. Moncier raised many of these same issues in his May 9, 2011 response to the

Board’s proposed order of enforcement. We found no merit in these arguments then;

nonetheless, we have again carefully considered these issues in light of the record. We

remain convinced that these issues are without merit and do not entitle Mr. Moncier to relief

from costs. We need not again explicitly address each of these issues. However, we will

briefly address Mr. Moncier’s argument that Disciplinary Counsel and staff of the Board

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deprived him of counsel of his choosing on December 11, 2009, in the proceedings before

the Moncier I hearing panel, and that, as a result, he should be relieved from costs incurred

after that date.

As support for this argument, Mr. Moncier relies on the treatment of this issue in the

Moncier I trial court’s September 8, 2010 order, ultimately vacated as a nullity because Mr.

Moncier failed to file a sworn petition for writ of certiorari. The facts as recited in this order

indicate that the Moncier I hearing panel notified Mr. Ralph Harwell, the attorney

representing Mr. Moncier, of its belief that he may have violated the Tennessee Rules of

Professional Conduct, see Tenn. Sup. Ct. R. 8, by representing both a Vassar co-defendant

in the federal courts and Mr. Moncier during the disciplinary proceedings. The Moncier I

hearing panel expressed these concerns during the course of the hearing on Friday, December

11, 2009. The Moncier I hearing panel explained that Mr. Harwell’s conduct possibly

created a conflict of interest or deprived Mr. Moncier of Mr. Harwell’s testimony about the

Vassar complaint during the disciplinary proceedings.

When the hearing reconvened on Monday, December 14, 2009, Mr. Harwell read to

the Moncier I hearing panel an email he had received at 5:16 p.m. on Friday, December 11,

2009, from Rita Webb, executive secretary of the Board. The email was addressed to the

Moncier I hearing panel members advising that their concerns about Mr. Harwell’s possible

unethical conduct, expressed on the record during the December 11, 2009 hearing, had been

referred to the investigative section of the Board for handling in the ordinary course, pursuant

to Rule 9, section 8.1.15 The email further stated: “It is this office’s position that [the

Moncier I] hearing should proceed to conclusion on Monday, December 14.” Based on this

email, Mr. Harwell moved to continue the hearing and to withdraw from representing Mr.

Moncier. The Moncier I hearing panel denied both motions.

In its September 8, 2010 order, the trial court admonished the Board for

communicating its intent to investigate Mr. Harwell while he was actively engaged in

representing Mr. Moncier before the Moncier I hearing. Nevertheless, the trial court found

no prejudice resulting from the communication. The trial court described Mr. Harwell as a

veteran lawyer and discerned no change in his advocacy for Mr. Moncier after he received

notice of the investigation. The trial court also noted that no offer of proof had been made

to show that Mr. Harwell’s advocacy changed after he received the email.

15

Section 8.1 requires all complaints to be “submitted in writing[,]” but authorizes the Board “to

investigate information coming from a source other than a written complaint if the Board deems the

information sufficiently credible or verifiable through objective means.”

-20-

Mr. Moncier’s assertion that the trial court found he had been deprived of his right to

counsel of his choosing by the events of December 11, 2009, is simply inaccurate. Thus, Mr.

Moncier is not entitled to relief from costs on this basis.

Article X, Section 1 Oath Requirement

Mr. Moncier next asserts that the Moncier II panel lacked authority to adjudicate his

petition because the panel members failed to take an oath to support the United States and

Tennessee Constitutions. As support for this assertion, Mr. Moncier relies upon article X,

section 1 of the Tennessee Constitution, which states:

Every person who shall be chosen or appointed to any office of

trust or profit under this Constitution, or any law made in

pursuance thereof, shall, before entering the duties thereof, take

an oath to support the Constitution of this State, and of the

United States, and an oath of office.

Tenn. Const. art. X, § 1. Mr. Moncier has cited no authority for his argument that a Board

panel member occupies an “office of trust or profit” as that phrase is used in article X,

section 1. A decision of this Court construing the same phrase in the ouster law, see Tenn.

Code Ann. § 8-47-101 (2011), undercuts Mr. Moncier’s argument.

In State ex rel. Harris v. Buck, 138 Tenn. 112, 196 S.W. 142 (1917), this Court

concluded that a county engineer appointed by a county court was not holding “an office of

trust or profit” as that phrase is used in the ouster statute. We explained:

An office of trust or profit under the laws of Tennessee,

within the meaning of the Ouster Act, and under our present

Constitution, may be one created by the Constitution, or by an

act of the General Assembly of the state within its power under

the Constitution. The quarterly county court has no power to

create such an office, though power may be granted to it to fill

a county office after the same has been validly created by the

[L]egislature.

Id. at 117-18, 196 S.W. at 143. The Board was established by this Court, not created by the

Constitution or an act of the General Assembly. Applying Buck, we conclude that article X,

section 1 does not apply because Board panel members do not occupy “an office of trust or

profit,” within the meaning of the constitutional provision.

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Disqualification of Hearing Panel Members

Mr. Moncier next argues that the Moncier II panel erred by denying his motions for

recusal. He asks this Court to order a new hearing on his petition before either the Moncier

I hearing panel or disinterested district members.

In his brief to this Court, Mr. Moncier asserts that the Moncier II panel should have

granted his recusal motions because: (1) he had filed six lawsuits in state and federal courts

against the Board and its members alleging violations of his constitutional rights; (2) he had

filed complaints against former Chief Disciplinary Counsel Nancy Jones and current Chief

Disciplinary Counsel Sandy Garrett; (3) he had filed motions seeking to recover the

attorney’s fees and costs he had incurred in litigating Moncier I and other related litigation.

Mr. Moncier claims that because he became “embroiled” with the Board, the impartiality of

the Moncier II panel was called into question.

Mr. Moncier asserts that the Tennessee Code of Judicial Conduct in effect in

December 2011 applied to the Moncier II panel members and governed their decisions on

his motions for recusal. See Tenn. Sup. Ct. R. 10, Canon 5.16 Mr. Moncier has not cited any

Tennessee decision holding that the Code of Judicial Conduct applies to members of a Board

panel adjudicating a petition for relief from costs. We hold that it does not. The Code of

Judicial Conduct in effect at the time of the Moncier II hearing applied only to any “officer

of a judicial system”—lawyer or non-lawyer—who performed judicial functions.

The Board is an administrative entity, not a judicial system. As such, the Board

performs various functions. For example, the Board is authorized to investigate any

allegation of attorney misconduct or attorney incapacity. Tenn. Sup. Ct. R. 9, §§ 5.5(a), 8.1.17

16

Tennessee Supreme Court Rule 10 was amended effective July 1, 2012. Mr. Moncier relies upon

the following language from the version of Canon 5 in effect at the time of his December 2011 hearing:

Application of the Code of Judicial Conduct

A. Anyone, whether or not a lawyer, who is an officer of a judicial system

and who performs judicial functions, including an officer such as

magistrate, court commissioner, judicial commissioner, special master,

divorce referee, juvenile referee, or any other referee performing judicial

functions, is a judge within the meaning of this Code. All judges shall

comply with this Code except as provided below.

Tenn. Sup. Ct. R 10, Canon 5 (2011 version).

17

“All investigations, whether upon complaint or otherwise, shall be initiated and conducted by

(continued...)

-22-

The Board is empowered to adopt and submit to this Court for approval “written guidelines

to ensure the efficient and timely resolution of complaints, investigations, and formal

proceedings.” Id.§ 5.5(b). The Board assigns district committee members “to conduct

disciplinary hearings and to review and approve or modify recommendations by Disciplinary

Counsel for dismissals or informal admonitions.” Id. § 5.5(c). The Board reviews, at

Disciplinary Counsel’s request, the determination of a reviewing district committee member

“that a matter should be concluded by dismissal or by private informal admonition without

the institution of formal charges.” Id. § 5.5(d). The Board may also privately reprimand

attorneys for misconduct. Id. § 5.5(e).

The Board receives regular reports from, and conducts regular performance

evaluations of, Chief Disciplinary Counsel. Id. § 7.1. Petitions initiating formal disciplinary

proceedings are filed with the Board. Id. § 8.2. Once a petition and answer are filed, the

Chair of the Board assigns a hearing panel to adjudicate the matter. Id. The Board reviews

Disciplinary Counsel’s recommendation to appeal from a hearing panel’s judgment. Id. §

5.3. The Board, or a panel of the Board, hears petitions for dissolution of temporary orders

of suspension, id. § 4.3, and petitions for relief from costs, id. § 24.3.

Unlike a judicial system, in which investigative, prosecutorial, and adjudicative

functions are separate, some overlapping of these functions is inherent in administrative

agencies, like the Board. See Withrow v. Larkin, 421 U.S. 35, 54-55 (1975) (discussing the

overlapping investigatory and adjudicatory functions administrative agencies may perform);

Heyne, 380 S.W.3d at 735 (discussing the overlapping functions performed by school boards

in Tennessee). The Board simply is not a judicial system; thus, a Board member is not an

officer of a judicial system. Mr. Moncier’s argument that the 2011 version of the Tennessee

Code of Judicial Conduct applied to the Moncier II panel members is without merit.

We recognize, of course, that nothing prevents us from applying the judicial

disqualification standards to Board members by way of Rule 9, even though the 2011 Code

of Judicial Conduct did not apply by its own terms to the Moncier II panel.18 Indeed, Rule

9 applies judicial disqualification standards to district committee members. Tenn. Sup. Ct.

R. 9, § 6.5 (stating that district committee members should not “take part in any matter in

17

(...continued)

Disciplinary Counsel.” Tenn. Sup. Ct. R. 9, § 8.1.

18

Tennessee’s version of the Uniform Administrative Procedures Act provides that “[a]n

administrative judge, hearing officer or agency member shall be subject to disqualification for bias,

prejudice, interest or any other cause provided in this chapter or for any cause for which a judge may be

disqualified.” Tenn. Code Ann. § 4-5-302(a) (2011).

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which a judge, similarly situated, would have to recuse himself or herself.”).19 At the time

of Mr. Moncier’s 2011 hearing and at the present time, Rule 9 does not apply judicial

disqualification standards to Board members.20

Furthermore, no constitutional principle mandates their application to administrative

adjudicators. See, e.g., Petrowski v. Norwich Free Acad., 506 A.2d 139, 142-43 (Conn.

1986) (“The applicable due process standards for disqualification of administrative

adjudicators do not rise to the heights of those prescribed for judicial disqualification.”); John

L. Gedid, ALJ Ethics: Conundrums, Dilemmas, and Paradoxes, 11 Widener J. Pub. L. 33, 53

(2002) (“Courts deciding due process claims have recognized that due process does not

require the same standard for Article III judges and ALJs because their status, role, and

functions are different. The avoidance of the appearance of bias standard is particularly

unsuitable in administrative proceedings.”). Indeed, as the Connecticut Supreme Court has

aptly explained, many practical considerations weigh against doing so.

The canons of judicial ethics go far toward cloistering those who

become judges, the ultimate arbiters of constitutional and

statutory rights, from all extraneous influences that could even

remotely be deemed to affect their decisions. Such a rarefied

atmosphere of impartiality cannot practically be achieved where

the persons acting as administrative adjudicators, whose

decisions are normally subject to judicial review, often have

other employment or associations in the community they serve.

It would be difficult to find competent people willing to serve,

commonly without recompense, upon the numerous boards and

commissions in this state if any connection with such agencies,

however remotely related to the matters they are called upon to

decide, were deemed to disqualify them. Neither the federal

courts nor this court require a standard so difficult to implement

as a prerequisite of due process of law for administrative

adjudication.

19

The American Bar Association’s Model Rules for Lawyer Disciplinary Enforcement call for

applying the judicial disqualification standards to both Board and hearing committee members. See Model

Rules of Disciplinary Enforcement Rules 2(E), 3(F) (2002) (stating that Board and hearing committee

members “shall refrain from taking part in any proceeding in which a judge, similarly situated, would be

required to abstain”).

20

The Moncier II panel actually applied the stricter judicial disqualification standards when

evaluating Mr. Moncier’s recusal motions.

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Petrowski, 506 A.2d at 143; see also V-1 Oil Co. v. Dep’t of Envtl. Quality, 939 P.2d 1192,

1200 (Utah 1997) (“The paralysis of basic governmental functions and the overwhelming

expense caused by imposition of an uncompromising judicial model of complete structured

independence of the adjudicator would have disastrous consequences for many essential

governmental programs and functions.”).

This does not mean, however, that a Board member is never subject to

disqualification. A basic requirement of due process is a fair trial before a fair tribunal, and

this principle applies to administrative adjudicators as well as to courts. Withrow, 421 U.S.

at 46-47; Gibson v. Berryhill, 411 U.S. 564, 579 (1973); Heyne, 380 S.W.3d at 734-35

(explaining that for an administrative hearing “to be ‘meaningful’ in the constitutional sense,

it must employ a decision-maker or decision-makers who are unbiased”); Cooper v.

Williamson Cnty. Bd. of Educ., 803 S.W.2d 200, 202 (Tenn. 1990) (“It is axiomatic that due

process requires the opportunity of the party charged to be heard at a meaningful time and

in a meaningful manner, before an impartial tribunal.”).

For purposes of constitutional due process, however, administrative adjudicators are

afforded a presumption of honesty and integrity. See Withrow, 421 U.S. at 47. This

presumption may be overcome by showing that an administrative adjudicator has a pecuniary

interest in the outcome of the proceeding, or has been the target of personal abuse or

criticism from the party before him, id., or has a conflict of interest, see Gibson, 411 U.S. at

578-79. This presumption may also be overcome by showing that the “probability of actual

bias” in a particular case on the part of the administrative decision-maker is “too high to be

constitutionally tolerable.” Withrow, 421 U.S. at 47. The burden of establishing a

disqualifying interest rests on the party seeking disqualification. Schweiker v. McClure, 456

U.S. 188, 196 (1982).

When an assertion of bias is premised solely on an administrative adjudicator’s

exercise of both investigative and adjudicative functions, the party making the contention

must show that, “under a realistic appraisal of psychological tendencies and human

weakness, conferring investigative and adjudicative powers on the same individuals poses

such a risk of actual bias or prejudgment that the practice must be forbidden if the guarantee

of due process is to be adequately implemented.” Withrow, 421 U.S. at 47. “[A]ny form of

function combination, occurring alone and without other exacerbating biasing influences, is

very unlikely to run afoul of procedural due process.” Martin v. Sizemore, 78 S.W.3d 249,

265 (Tenn. Ct. App. 2001). As the Court of Appeals explained in Martin:

A combination of prosecutorial and adjudicative functions is the most

problematic combination for procedural due process purposes. A prosecutor,

by definition, is a partisan advocate for a particular position or point of view.

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The role is inconsistent with the objectivity expected of administrative

decision-makers. Accordingly, to permit an advocate for one party to act as

the legal advisor for the decision-maker creates a substantial risk that the

advice given to the decision-maker will be skewed. However, the risk of bias

becomes intolerably high only when the prosecutor serves as the

decision-maker’s advisor in the same or a related proceeding.

78 S.W.3d at 265 (internal citations omitted); see also Heyne, 380 S.W.3d at 735 (holding

in a school disciplinary proceeding that a school official’s dual role of prosecutor and

decision-maker did not without more rise to the level of a violation of due process); see also

People v. Varallo, 913 P.2d 1, 5 (Colo. 1996) (collecting cases that apply this principle in the

attorney disciplinary context); Goldstein v. Comm. on Practice of the Supreme Court, 995

P.2d 923, 498-501 (Mont. 2000) (same); cf. Marshall v. Jerrico, Inc., 446 U.S. 238, 250

(1980) (“[T]he strict requirements of neutrality cannot be the same for administrative

prosecutors as for judges, whose duty it is to make the final decision and whose impartiality

serves as the ultimate guarantee of a fair and meaningful proceeding in our constitutional

regime.”). We shall therefore apply the foregoing principles to determine whether the

Moncier II panel abused its discretion or denied Mr. Moncier due process by denying his

recusal motions.

First, no member of the Moncier II panel, or any other Board member, had a pecuniary

interest in the outcome of Mr. Moncier’s petition for relief from costs. Board members are

not compensated for their services and receive only reimbursement “for their travel and other

expenses incidental to the performance of their duties.” Tenn. Sup. Ct. R. 9, § 5.4.

Second, the various lawsuits Mr. Moncier filed in federal and state courts against the

Board and Board members do not establish that the Moncier II panel, or other Board

members, were biased against him. Mr. Moncier has not alleged that these lawsuits involved

personal insults or personal criticism of Board members. Not even the stricter judicial

disqualification standards require recusal merely because a litigant dissatisfied with a judge

presiding over his or her lawsuit files a separate lawsuit against the judge. See Farm Credit

Bank of St. Paul v. Brakke, 512 N.W.2d 718, 720-21 (N.D. 1994) (collecting cases); see also

Robinson v. State, 719 S.E.2d 601, 617-18 (Ga. Ct. App. 2011) (holding that the trial judge

named by a criminal defendant as a defendant in a federal lawsuit did not err by refusing to

recuse himself from the criminal); Regnante v. Ind. Dept. of Revenue, 691 N.E.2d 1229,

1230-31 (Ind. Ct. App. 1998) (holding that a state trial judge named by a civil litigant as a

defendant in a federal lawsuit did not err by denying recusal motion); State v. Blankenship,

685 N.E.2d 831, 833 (Ohio. Ct. App. 1996) (holding that a state trial judge against whom a

post-conviction petitioner filed a disciplinary complaint did not err by denying the post-

conviction petitioner’s recusal motion); cf. Grievance Adm’r v. Fieger, 719 N.W.2d 123, 149

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(Mich. 2006) (finding that justices against whom federal lawsuits had been filed by an

attorney subjected to disciplinary proceedings were not enmeshed with the attorney to the

extent requiring recusal, even though the justices had sought sanctions against the attorney

in the federal proceedings). The Moncier II panel exhibited no hostility toward Mr. Moncier

during the proceedings on his petition for relief from costs and allowed him broad leeway

during the hearing, both as to the grounds he presented for relief and as to the presentation

of his testimony.

Third, the Board’s discussions with Disciplinary Counsel and its own lawyer about

the separate litigation involving Mr. Moncier establishes neither bias nor a constitutionally

intolerable potential for actual bias. These discussions pertained to separate litigation,

unrelated to Mr. Moncier’s petition for relief from costs. Cf. Martin, 78 S.W.3d at 265

(stating that “the risk of bias becomes intolerably high only when the prosecutor serves as

the decision-maker’s advisor in the same or a related proceeding” (emphasis added)). That

the Board denied Mr. Moncier’s separate request for reimbursement of the attorney’s fees

and costs he had incurred in Moncier I and voted to institute proceedings to revoke his

probation for failing to comply with the June 1, 2011 Order of Enforcement also does not

establish that the Moncier II panel was biased. These Board actions also were unrelated to

Mr. Moncier’s petition for relief from costs and again illustrate only that the Board is an

administrative entity which performs multiple, overlapping functions. As already explained,

the Board’s performance of these overlapping functions does not, without more, establish

bias or a constitutionally intolerable risk of actual bias.

Finally, the December 6, 2011 letter Mr. Moncier received from Board Chair Lela

Hollabaugh also does not establish bias. Ms. Hollabaugh was originally named as a member

of the Moncier II panel to hear the petition for relief from costs. However, a September 1,

2011 notice designated another Board member to serve in her place and stated that Ms.

Hollabaugh had a conflict of interest which prevented her continued service.21 The text of

Ms. Hollabaugh’s December 6, 2011 letter is reproduced below:

I am in receipt of your “motions” submitted to Ms. Webb

on December 2nd and 4th. For purposes of our

communications, “the Board” is defined as the 12 members of

21

In an affidavit attached to the Board’s response to Mr. Moncier’s September 26, 2011 motion to

disqualify the Moncier II panel, Ms. Hollabaugh stated that Mr. Moncier had requested that she recuse

herself from various matters in which he was involved. By a letter to Mr. Moncier dated August 31, 2011,

Ms. Hollabaugh agreed to “step aside” from the Moncier II hearing panel, even though she believed she could

fairly consider Mr. Moncier’s petition for relief from costs.

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the Board of Professional Responsibility appointed by the

Supreme Court.

As you have been advised in the past, you are welcome to

attend our administrative session that is open to the public, but

you will not be permitted to address the Board at our December

9th meeting. You will also not be permitted to “record” our

administrative session. The report and recommendation of

Magistrate Judge Shirley, that you seek to discuss with the

Board, has not been adopted by Judge Varlan and is not final.

Accordingly, the issue of the Board appointing a practice

monitor is not yet before us.

Your repeated requests that the Board not communicate

with Nancy Jones and Talmage Watts are groundless. You fail

to recognize that the Board is the entity authorized by the

Supreme Court, through its Chief Disciplinary Counsel, to

pursue charges of disciplinary violations. In this context, which

applies to all the matters currently pending that you are

personally involved, the Board is the adversary party. The

Board is not a hearing panel or a fact finder. The Board is not

sitting in the role of a judge or court. In this role, the Board will

continue to communicate with its lawyers and those

communications are privileged, as you have recognized.

(Emphasis added.) Even though Ms. Hollabaugh did not serve on the Moncier II panel, Mr.

Moncier touts her December 6, 201l letter as proof positive that the Moncier II panel, and all

members of the Board, were biased against him and considered him their adversary. We

disagree.

The letter must be read as a whole and “adversary” understood in context. The term

appears in a paragraph responding to Mr. Moncier’s “repeated requests” that the Board not

communicate privately with Chief Disciplinary Counsel and the attorney representing the

Board in the various state and federal lawsuits Mr. Moncier had filed against it. Ms.

Hollabaugh emphasized that, with respect to those proceedings, the Board was not sitting

as a hearing panel, a fact finder, or in the role of a court or judge, but as an “adversary party.”

She explained that the Board would continue to communicate with Chief Disciplinary

Counsel as necessary to perform its duties and with its own attorney as to matters in which

the Board is the “adversary party.” The letter reiterates the Board’s nature as an

administrative entity with various overlapping functions to perform. The letter does not refer

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to Mr. Moncier’s petition for relief from costs and does not establish that the Moncier II

panel was biased against Mr. Moncier.

Finally, Mr. Moncier’s suggestion that the Board should have assigned a panel of

three district members to hear his petition is without merit. Mr. Moncier failed to overcome

the presumption of honesty and integrity afforded administrative adjudicators and establish

any disqualifying interest. Additionally, the Board was not at liberty to ignore the text of

Rule 9, section 24.3 in favor of a procedure Mr. Moncier preferred.

We conclude that the Moncier II panel did not abuse its discretion or deprive Mr.

Moncier of due process by denying his recusal motions.

Discovery and Requests for Subpoenas

Prior to the December 13, 2011 hearing on his petition, Mr. Moncier served

Disciplinary Counsel with notices of depositions and asked for production of the following

documents at the depositions:

(1) The Board’s minutes and votes regarding assessment of Mr.

Moncier’s costs;

(2) The Board’s policies and procedures from September 2006

to the present;

(3) The Board’s authorization to file for review of the

[September 8, 2010] judgment of the trial court in Moncier I;

and

(4) The Board’s authorization to file for review of the hearing

panel’s judgment in Moncier I.

On September 20, 2011, the Board responded to the notices and moved for a

protective order,22 arguing that the requests were not relevant to Mr. Moncier’s petition for

relief from costs, not reasonably calculated to lead to admissible evidence, and outside the

scope of Rule 9, section 24. Mr. Moncier responded, stating his wish “to establish by

discovery that Disciplinary Counsel did not petition the Board to assess costs and the Board

never performed its duty to assess costs.” On September 22, 2011, the Moncier II panel

granted the Board’s motion for a protective order, explaining that Rule 9, section 24.3 does

not permit discovery in support of a petition for relief from costs and that Mr. Moncier’s

22

Mr. Moncier’s notices were not filed with the Board and do not appear in the record but are

referenced in other filed documents, including the Board’s response and motion.

-29-

stated purpose for discovery was unrelated to the issue raised by the petition and not

reasonably calculated to lead to admissible evidence.

Four days later, Mr. Moncier filed with the Board an application for issuance and

service of subpoenas ad testificatium and duces tecum, which, if issued, would have required

the testimony of Ms. Jones and Ms. Garrett, as well as the production of various documents,

including those requested in Mr. Moncier’s notice of depositions. On October 14, 2011, the

Moncier II panel denied the application, explaining that Mr. Moncier was seeking by the

subpoenas to retry Moncier I and continue “his litigious assault on the disciplinary system.”

Despite these rulings, at the December 13, 2011 hearing, Mr. Moncier attempted to call Ms.

Garrett as a witness. Ms. Garrett objected, and the Moncier II panel sustained the objection.

In this appeal, Mr. Moncier argues that the Moncier II panel arbitrarily denied his

discovery requests and attempt to call Ms. Garrett as a witness and erroneously allowed Ms.

Garrett to make an unsworn statement at the hearing. Specifically, Mr. Moncier alleges Ms.

Garrett was allowed to testify that the costs assessment does not reflect the actual costs

incurred in Moncier I because she failed to include all the time she had spent investigating

one of the claims against Mr. Moncier. Mr. Moncier contends that the Moncier II panel

based its denial of his petition on Ms. Garrett’s unsworn statement, which, according to Mr.

Moncier, is unfair because he was not allowed to engage in discovery or call Ms. Garrett as

a witness.

After reviewing the transcript of Ms. Garrett’s statement, as well as the judgment of

the Moncier II panel, we discern no basis for concluding that the Moncier II panel abused its

discretion by denying Mr. Moncier’s discovery requests. Additionally, Ms. Garrett’s

statement was made during the course of argument; nothing suggests the Moncier II panel

viewed it as testimony. Contrary to Mr. Moncier’s assertion, the Moncier II panel’s denial

of his petition did not rest on Ms. Garrett’s statement.

Non-Constitutional Grounds for Relief from Costs

In his final issue, Mr. Moncier lists a number of “non-constitutional petitions” that he

s a ys e n t i t l e h i m t o r e l i e f f r o m c o s ts . 2 3 M ost of these “non-

23

The list includes the following claims:

(1) The chairperson of the Moncier II panel admitted that Rule 9 should be amended

to clarify the roles of Disciplinary Counsel and the Board;

(2) Disciplinary Counsel admitted that Mr. Moncier was provided only a civil

disciplinary proceeding and providing a quasi-criminal proceeding would require

(continued...)

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23

(...continued)

a rule change;

(3) The Board’s cost invoice includes charges for work on all ten charges, even

though the Board prevailed before the Moncier I hearing panel on only five charges,

two of which were reversed by the Moncier I trial court order later vacated based

on Cawood;

(4) Relief from costs is appropriate as an offset to the attorneys’ fees and costs Mr.

Moncier incurred successfully defending seven of the ten charges in Moncier I;

(5) After entry of the June 1, 2011 Order of Enforcement, Mr. Moncier successfully

defended against a petition to revoke his probation;

(6) The standardless provisions of Rule 9 fail to specify the conditions or define the

role of probation monitors;

(7) Disciplinary Counsel interfered with the independence and impartiality of the

Moncier I hearing panel;

(8) Disciplinary Counsel and the Board “should have abstained from taking

advantage of Cawood’s unforeseeable change in pleading requirements for judicial

review to strip [him] of a favorable judgment . . .;”

(9) Disciplinary Counsel opened an ethical investigation of Mr. Moncier’s attorney

during the Moncier I hearing and did not provide Mr. Moncier an opportunity to

obtain new counsel of choice who was not facing ethical charges or an

investigation;

(10) Mr. Moncier is “actually innocent” of the finding of the Moncier I hearing

panel that he had a conflict of interest in the Vassar matter;

(11) Mr. Moncier was “exonerated of all the accusations of United States District

Court Judge Greer except asking the question, “may I speak to my client;”

(12) Mr. Moncier has lost 70% of his income since the federal suspension on April

29, 2008, and has been required to borrow approximately $750,000 to maintain his

law practice;

(13) Mr. Moncier was found not guilty of the contempt charge in the Daniel matter;

(14) Mr. Moncier had no meaningful opportunity to be heard in Moncier II because

Rule 9, section 24.3 has no standards by which to determine whether relief is

appropriate;

(15) The Moncier II panel erred in holding “that Cawood had anything to do with

[Mr. Moncier’s] constitutional claim that [he] cannot be required to pay attorney’s

fees and costs for proceedings that were unconstitutional because of conduct of

Disciplinary Counsel and the Board;”

(16) The lack of standards by which to evaluate petitions for relief from costs

caused the Moncier II panel to “place too much emphasis upon the Order of

Enforcement;”

(17) The standardless discretion afforded the Moncier II panel to determine what

would and would not be relevant to a claim for relief from costs;

(18) The Board’s protocol memorandum in Moncier I did not request a monetary

judgment, other appeals were pending, the Board did not assess costs, and there was

no notice or opportunity to be heard before this Court assessed the costs;

(19) The Moncier II panel stated that “the expense of defending one’s self from

(continued...)

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constitutional petitions” have already been either explicitly or implicitly considered and

rejected herein. Nonetheless, we have carefully considered each and every one of these

“non-constitutional petitions” and again conclude that none entitles Mr. Moncier to relief

from costs.

The Moncier II panel provided the following clear and cogent explanation of why no

reduction of costs was warranted based on Mr. Moncier’s arguments that some of the alleged

disciplinary violations were not proven and that he was found actually innocent of the

conflict of interest charge.

The [Moncier II p]anel also does not find that the

difference in the number of charges sustained at different points

in the [Moncier I] proceeding to be of significance in evaluating

whether [Mr. Moncier] is entitled to relief from the costs

assessed. In [Moncier I] all of the charges arose from two

different complaints which will be referred to hereinafter for

simplicity as the Judge Greer and the Judge Workman matters.

Although there was a difference between the description of Mr.

Moncier’s alleged Tennessee Rules of Professional Conduct

(“RPC”) infractions found in the [p]etition for [d]iscipline

(Judge Greer’s report) and the [s]upplemental [p]etition for

[d]iscipline (Judge Workman’s report) and the findings of the

[Moncier I h]earing [p]anel, both as regard the salient facts and

the pertinent RPC sections, the [Moncier I h]earing [p]anel

found RPC violations in both the Greer and Workman matters.

There was little or nothing in the record before the [Moncier II

p]anel to suggest that the amount of time spent to prepare or to

23

(...continued)

disciplinary proceedings is not a basis for relief from costs”;

(20) The Moncier II panel rejected extreme financial hardship as a reason to grant

relief from costs;

(21) The Moncier II panel incorrectly observed that the payment of costs was a

condition of Mr. Moncier resuming the practice of law;

(22) The Moncier II panel improperly relied upon this Court’s June 1, 2011 Order

of Enforcement;

(23) Rule 9, section 24.3 is flawed because it requires an inferior body, such as the

Moncier II panel, to review a judgment of the Tennessee Supreme Court; and

(24) The Moncier II panel “was not authorized to create any of the foregoing

reasons to deny [him] standardless relief.”

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present either the Greer or the Workman matters had a direct

relationship to the number of RPC violations found to be

sustained by the [Moncier I h]earing [p]anel. Ms. Garrett

argued that nothing in the record provided a basis for separating

the time spent on one charge, or RPC violation, from another.

In this respect, Mr. Moncier’s [p]etition can be factually

distinguished from other petitions for Rule 24.3 relief where the

disciplinary action was brought based on several discrete

transactions for some of which the attorney was found not to

have violated any of the Rules of Professional Conduct. The

[p]anel rejects the suggestion that a strict pro rata reduction in

costs is appropriate based on a comparison between the number

of RPC violations initially made, and those found to be

sustained, without consideration of the specific facts and

whether the time spent is similarly divisible. The [p]anel further

rejects the suggestion that any such comparison should include

the reduction in RPC “Charges” initially found by Judge Kurtz

since that [September 8, 2010] [o]rder was held by him to be a

nullity. We would further note that Mr. Moncier made

numerous affirmative defenses to the charges brought against

him in his responses to the [p]etition for [d]iscipline and

[s]upplemental [p]etition for [d]iscipline [in Moncier I], which

responses are exhibits in this matter. Disciplinary Counsel had

to prepare to defend or rebut all of these defenses in addition to

proving the charges, regardless of the number of RPC violation

allegations ultimately sustained or found.

The [Moncier II p]anel specifically finds that the amounts

of time and the out[-]of[-]pocket costs recorded, upon which the

Supreme Court’s [June 1, 2011 o]rder was based, were fair and

reasonable in light of the complexity of the issues presented and

the multi-day length of the proceedings before the [Moncier I

h]earing [p]anel.

We can add little to this explanation, except to point out that the final costs assessed

against Mr. Moncier were incurred on March 7, 2011, two days before the Board submitted

its proposed order of enforcement to this Court. Since the commencement of these

proceedings, the Board has not amended its request to seek any additional costs incurred after

March 2011. Thus, Mr. Moncier has not been assessed the expenses and costs Disciplinary

Counsel incurred in obtaining the June 1, 2011 Order of Enforcement or in litigating the

-33-

multiple lawsuits, motions, petitions, and appeals Mr. Moncier filed in various venues after

the trial court granted the Board’s Rule 60.02 motion on February 18, 2011. Given the

litigation tidal wave Mr. Moncier has unleashed since that time, these unassessed costs and

expenses are likely substantial.

We affirm the Moncier II panel decision denying relief from costs based on Mr.

Moncier’s “non-constitutional” petitions.

Conclusion

Having reviewed the record and the nine issues raised, we conclude that the Moncier

II panel’s findings, inferences, conclusions and decisions were not (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 a

clearly unwarranted exercise of discretion; or (5) unsupported by evidence which is both

substantial and material in the light of the entire record. Accordingly, the judgment of the

Moncier II panel denying Mr. Moncier’s petition for relief from costs is affirmed. Costs of

this appeal are taxed to Mr. Moncier and his surety, for which execution may issue, if

necessary.

_________________________________

CORNELIA A. CLARK, JUSTICE

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