The opinion
IN THE SUPREME COURT OF TENNESSEE
AT NASHVILLE
Assigned on Briefs June 3, 2003
CHARLES F. GALBREATH v. BOARD OF PROFESSIONAL
RESPONSIBILITY OF THE SUPREME COURT OF TENNESSEE
Appeal from the Circuit Court for Davidson County
No. 02C-10 James L. Weatherford, Senior Judge, by designation
No. M2002-02505-SC-R3-CV - Filed December 29, 2003
We have this case on direct appeal, pursuant to Tennessee Supreme Court Rule 9, section 1.3, from
the judgment of the circuit court approving the order of a hearing committee of the Board of
Professional Responsibility that suspended Charles F. Galbreath, the appellant, from the practice of
law for a thirty-day period. The circuit court essentially adopted the findings of fact and conclusions
of law entered by the hearing committee. Galbreath does not contest those factual findings but
argues that the sanction imposed is excessive. Upon review of the record and applicable authority,
we conclude that the thirty-day suspension is appropriate. Accordingly, we affirm the judgment of
the circuit court.
Tenn. Sup. Ct. R. 9, § 1.3; Judgment of the Circuit Court Affirmed
ADOLPHO A. BIRCH, JR., J., delivered the opinion of the court, in which FRANK F. DROWOTA , III,
C.J., JANICE M. HOLDER and WILLIAM M. BARKER, JJ., and BEN H. CANTRELL , SP .J., joined. E.
RILEY ANDERSON, J., not participating.
Charles Galbreath, Nashville, Tennessee, Pro Se.
James A. Vick, Nashville, Tennessee, for the appellee, Board of Professional Responsibility.
OPINION
I. Facts and Procedural History
On October 7, 1947, the Tennessee Board of Law Examiners licensed Charles F. Galbreath,
and he has been actively engaged in the legal profession from that date to the present. Before us are
two disciplinary complaints lodged against Galbreath by chancellors of the Chancery Court for
Davidson County. The first complaint, which was initiated by Chancellor Irvin H. Kilcrease, Jr., on
May 20, 1998, involved threatening letters sent by Galbreath to judges.1 The second complaint, filed
by Chancellor Ellen Hobbs Lyle on October 15, 1999, arose from an incident in which Galbreath,
in open court, referred to Lyle as “honey.”
Even though Galbreath does not contest the factual basis of either complaint, we think it
necessary to chronicle the facts of each and to summarize the findings of the hearing committee so
as to provide an appropriate context for our discussion.
A. The Kilcrease Complaint
Irvin H. Kilcrease, Jr., Chancellor, Chancery Court of Davidson County, presided in a case
filed against Galbreath and his wife for breach of contract; they filed an answer and counterclaim.2
Ruling that the counterclaim had no merit and should not proceed, Kilcrease entered an order
dismissing it with prejudice. As counsel of record, Galbreath sought reconsideration of the
dismissal.3 Subsequently, Kilcrease entered an additional order characterizing the counterclaim as
“frivolous” and in violation of Rule 11 of the Tennessee Rules of Civil Procedure.4 As a
consequence, Kilcrease awarded judgment against Galbreath and his wife for $2,500 in favor of the
counterdefendant. After unsuccessful attempts to persuade Kilcrease to vacate the Rule 11 sanction,
Galbreath sought Kilcrease’s recusal.
On December 23, 1996, Galbreath wrote a letter to Marietta Shipley, Judge of the Second
Circuit Court of Davidson County, praising her recusal from a case in which he had represented one
of the parties.5 He sent a copy of the letter to Kilcrease and to all other Davidson County trial judges
as well. Galbreath does not dispute the conclusion that this letter was intended to influence Kilcrease
to recuse himself from the contract case then before him.
1
Kilcrease’s complaint included an additional matter which surfaced in a letter that Galbreath sent to then Chief
Justice E. Riley Anderson. The hearing committee determined that this letter was in violation of Tennessee Supreme
Court Rule 8, Code of Professional Responsibility (2002). Although Chief Justice Anderson never made a direct
com plaint, the letter he received from Galbreath is part of the record, was considered by the hearing com mittee, and is
included in the committee’s findings of fact and conclusions of law.
2
At this time, Galbreath and his wife were represented by Gerald Burkett, Esq.
3
From this point forward, Galbreath represented himself and his wife.
4
The order from Kilcrease does not specify which section of Rule 11 of the Tennessee Rules of Civil Procedure
Galbreath violated.
5
The case was Willie Louise Ridley v. Correction Corporation of America, Davidson County Circuit No. 96C-
4434. After initially refusing to recuse herself, Shipley did recuse herself in that case after Galbreath filed a complaint
against her in the C ourt of the Jud iciary.
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On January 13, 1997, Galbreath wrote a letter to Kilcrease expressing concern that Kilcrease
had doubted Galbreath’s trustworthiness6 and asked, again, that Kilcrease recuse himself.
Additionally, Galbreath alluded to Shipley’s initial refusal to recuse herself and her change of mind
after Galbreath had filed a complaint against her in the Court of the Judiciary. Moreover, Galbreath
failed to deliver a copy of this letter to the lawyers representing the other parties in the case.
Kilcrease entered an order on January 22, 1997, granting the plaintiff’s motion for summary
judgment and ordering Galbreath to pay $5,450 as attorney’s fees to the plaintiff. Reacting to these
orders, Galbreath wrote a second letter to Kilcrease on February 12, 1997, in which he again stated
his perception that Kilcrease had branded Galbreath’s testimony as untruthful. This perception led
Galbreath to demand an explanation from Kilcrease, and he insisted that Kilcrease recuse himself
in all cases in which Galbreath was or would be involved. Refusing to recuse himself, Kilcrease
entered a final order dismissing the counterclaim in October 1997.
On December 19, 1997, Galbreath wrote a letter to then Chief Justice E. Riley Anderson and
sent copies to counsel for the Court of the Judiciary and to Kilcrease. In addition to requesting the
Chief Justice’s permission to bypass Kilcrease in any future suits he may file, Galbreath admonished
the Chief Justice and threatened him in the following specifics:
1. After chiding the Chief Justice for the Supreme Court’s failure to designate him to
preside in cases, Galbreath threatened to file a complaint in the Court of the Judiciary
against the Chief Justice should the Supreme Court continue to exclude him from
designation;
2. Galbreath threatened to publish his grievances against the Chief Justice on his radio
program7 should the Chief Justice fail to respond with a “fair approach” to the
demand; and
3. Galbreath attempted to pressure the Chief Justice to procure Kilcrease’s recusal.
On January 13, 1998, Kilcrease did recuse himself. Galbreath appealed Kilcrease’s judgment
regarding the counterclaim, summary judgment, and Rule 11 monetary sanctions. The Court of
Appeals affirmed Kilcrease’s judgment, and this Court denied Galbreath’s application for permission
to appeal. On remand, Chancellor Ellen Hobbs Lyle entered a final judgment on December 21,
1999, assessing attorney’s fees against Galbreath in the total amount of $9,413.28.
B. The Lyle Complaint
On October 4, 1999, during a regular court proceeding, Galbreath addressed Lyle as “honey.”
6
W e note here that Kilcrease never made a specific finding that Galbreath had testified untruthfully or falsely.
7
Galbreath was app arently the host of a local weekly call-in radio program in which he addressed legal topics.
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Lyle immediately recessed the proceedings. Upon their resumption, Galbreath apologized,
explaining that it was his custom to address “nice looking women” as “honey.”
C. The Complaint Proceedings
Both Kilcrease and Lyle initiated disciplinary complaints against Galbreath. The two
complaints were duly referred to a hearing committee of the Board of Professional Responsibility
(“Board”) for consideration. Pursuant to Supreme Court Rule 9, sections 6 and 8 (2002), the three-
member hearing committee conducted an evidentiary hearing during which Galbreath testified. At
the hearing, Galbreath admitted the conduct upon which the complaints were based; he sought,
however, to cast the conduct as benign and well-intended.
The hearing committee concluded that Galbreath’s conduct violated several disciplinary rules
of Tennessee Supreme Court Rule 8 (2002).8 Galbreath’s three threatening letters (two to Kilcrease
and one to Chief Justice Anderson) violated Disciplinary Rule (“DR”) 1-102(1), (5) and (6).9
Galbreath’s undignified and discourteous conduct toward Lyle violated DR 7-106(C)(6).10 Lastly,
Galbreath’s January 13, 1997, ex parte letter to Kilcrease violated DR 7-110(B)(2).11 In addition,
the hearing committee found the existence of several aggravating factors, including the following:
1. Galbreath has practiced law for over 50 years and is very experienced in the
practice of law;
8
The proceedings in this case are governed by the Co de of Professiona l Resp onsibility previously set forth in
Rule 8 of the Tennessee Supreme C ourt Rules (2002). The Co de was replaced on M arch 1, 2003, by the Rules of
Pro fessiona l Conduct.
9
DR 1-102. Misconduct
(A) A lawyer shall not:
(1) Violate a Disciplinary Rule.
....
(5) Engage in conduct that is prejudicial to the administration of justice.
(6) Engage in any other conduct that adversely reflects on his fitness to practice law.
10
DR 7-106. Trial Conduct
(C) In appearing in a pro fessiona l capacity before a tribunal, a law yer shall no t:
....
(6) E ngage in und ignified o r disco urteous conduc t which is d egrad ing to a trib unal.
11
DR 7-11 0. Contact W ith Officials
(B) In an adversary proceeding, a lawyer shall not communicate, or cause another to communicate,
as to the merits of the cause with a judge or an official before whom the proceeding is pend ing,
except:
....
(2) In writing if the lawyer promptly delivers a copy of the writing to opposing counsel or
to the adverse party if that party is not represented by a lawyer.
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2. Galbreath has three prior disciplinary offenses;12
3. Galbreath has displayed an ongoing pattern of misconduct as evidenced by the
three threatening letters he wrote to sitting judges on separate occasions; and
4. Galbreath has refused to acknowledge the wrongful nature of his conduct.
The hearing committee found no mitigating factors and, accordingly, ordered that Galbreath’s
license be suspended for a period of thirty days.
Galbreath appealed the hearing committee’s order to the Circuit Court for Davidson County
pursuant to Tennessee Supreme Court Rule 9, section 1.3.13 The trial court adopted the hearing
committee’s findings of fact and conclusions of law.14 The trial court also approved the sanction
imposed by the hearing committee–the thirty-day suspension–and entered it as the judgment. As is
provided by Tennessee Supreme Court Rule 9, section 1.3, Galbreath appealed directly to this Court.
II. Standard of Review
Tennessee Supreme Court Rule 9, section 1.3 provides that a party may appeal the judgment
of the circuit or chancery court directly to the Supreme Court. When rendering a decision on the
appeal, the Supreme Court reviews the transcript of the record from the chancery or circuit court,
which includes the transcript of evidence before the hearing committee. Tenn. Sup. Ct. R. 9, § 1.3.
This Court’s review of the trial court’s decision is de novo, with a presumption that the trial court’s
findings are correct unless the preponderance of the evidence is otherwise. Sneed v. Bd. of Prof'l
Responsibility, 37 S.W.3d 886, 890 (Tenn. 2000).
12
Since 1947, Galbreath has been sanctioned by the Board several times. On Novem ber 13, 1980 , the Board
issued an informal admonition against Galbreath. On June 20, 1984 , the Board issued a public censure against Galbreath.
On March 2 4, 19 92, the Bo ard issued a p rivate reprimand against G albreath.
13
According to Tennessee Sup reme Court Rule 9, section 1.3 (2002):
The respondent or the Board may have a review of the judgment of a hearing committee in the manner
provided by T.C.A. [§ 27-9-101 et seq.], except as otherwise provided herein. The review shall be on the
transcript of the evidence before the hearing committee, its findings and judgment and upon such other proof
as either party may desire to introduce. The trial judge shall weigh the evidence and determine the facts by
the prep onderanc e of the p roof. Either p arty dissatisfied with the decree of the circuit or chancery court may
prosecute an appeal direct to the Supreme Court where the cause shall be heard upon the transcript of the
record from the circuit or chancery court, which shall include the transcript of evidence before the hearing
committee. Prior decisions of this Court holding that ap peal of discip linary proceedings must be taken to the
Court of Appeals because T.C.A. [§ 16-4-108] so requires are expressly overruled.
14
Kilcrease testified at the circuit court proceedings that he had construed Galbreath’s letters as containing
threats.
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III. Analysis
The crux of Galbreath’s appeal is his contention that the thirty-day suspension is excessive,
and he suggests that public censure15 would be a more appropriate sanction for two reasons. First,
he contends that his actions did not harm anyone; second, he asserts that the hearing committee
failed to apply the following mitigating factors: (1) he has already been sanctioned for his Rule 11
violation by the court in which the conduct took place; (2) he has a record of improving the judiciary
and practice of law; and (3) other attorneys have received less severe sanctions for more serious
offenses.
In support of the thirty-day suspension, the Board cites the presence of aggravating factors
noted above, the absence of mitigating factors, and the entire record. Thus, our task is to review the
record anew to determine whether the thirty-day suspension is supported by a preponderance of the
evidence.
Before addressing Galbreath’s contentions, perhaps a brief statement of the Supreme Court’s
authority in disciplinary proceedings will be contextually helpful. The Court maintains disciplinary
authority over attorneys admitted to practice law in the state of Tennessee. Tenn. Sup. Ct. R. 9, §
1.1 (2003). It is well settled that the Supreme Court has the “essential and fundamental right to
prescribe and administer rules pertaining to the licensing and admission of attorneys.” In re Burson,
909 S.W.2d 768, 773 (Tenn. 1995).
We now address Galbreath’s contention that the thirty-day suspension is excessive, and we
consider his assertion that his actions did not harm anyone. It is true, generally speaking, that the
disciplinary rules are indeed designed for the protection of clients and the public. But this
responsibility is not exclusive. There exists another duty, broader perhaps, that commands this Court
to preserve and defend the judicial process and those to whom its administration is entrusted. See
Tenn. Sup. Ct. R. 8, DR 1-102(A) (2002); see also American Bar Association, Standards for
Imposing Lawyer Sanctions 7 (1986). In this regard, we note that in the context of lawyer discipline,
the American Bar Association defines “injury” as “harm to a client, the public, the legal system or
the profession which results from a lawyer’s misconduct.” American Bar Association, Standards
for Imposing Lawyer Sanctions 7 (1986).
Galbreath, dissatisfied with Kilcrease’s rulings, began a calculated campaign, through threats
and intimidation, to force Kilcrease’s recusal. This effort included sending two threatening letters
15
Pub lic censure is an available sanction. Tenn. Sup. Ct. R. 9, § 4.4 (20 02). Acco rding to Sup reme Court Rule
9, section 8.1, the Board shall review the Disciplinary Counsel’s recommendation to censure an attorney publicly; the
respondent-attorney may not appeal the B oard’s de cision but may req uest a formal hearing. Id. It appears that the
Supreme Court only reviews the sanction of public censure if there is an appeal from the hearing committee’s decision
pursuant to Supreme Court Rule 9, section 1.3.
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to Kilcrease and a threatening letter to Chief Justice Anderson intended to exert pressure on
Kilcrease to recuse himself.16 Galbreath, in his manifold efforts to force a judicial officer away from
his official duty, clearly attempted to subvert the legal process to his will. In so doing, Galbreath has
inflicted grievous injury upon the judicial process and upon Kilcrease as a judicial officer. The
injury caused by this conduct alone justifies suspension.
The incident in which Galbreath referred to Lyle as “honey” underscores Galbreath’s lack
of respect for the judicial office and its processes. Such conduct alone justifies some type of
discipline.
Perhaps most egregious was Galbreath’s conduct toward the Chief Justice. In one chapter
of a continuing saga17 of Galbreath’s attempts to force Chief Justice Anderson to assign him judicial
duties, Galbreath suggested that if the Chief Justice did not assign him as requested, he would file
a complaint against the Chief Justice and discuss the matter during a radio talk show of which
Galbreath was the host. Galbreath’s use of threats and intimidation designed to force the Chief
Justice to perform a purely discretionary act evinces a persistent resolve to undermine and to bend
the justice system to his will. In so doing, he has inflicted grievous injury upon the judicial process
and upon the office of the Chief Justice. The injury caused by this conduct alone justifies
suspension.
Galbreath next argues that certain mitigating factors apply. Even though the hearing
committee rejected the mitigating factors suggested by Galbreath, we shall consider and discuss their
application. First, Galbreath contends that the sanction should be reduced because Kilcrease and
Lyle had already sanctioned him for his violation of Rule 11 of the Tennessee Rules of Civil
Procedure. As authority, he cites Patty v. Board of Professional Responsibility, 90 S.W.3d 641, 645
(Tenn. 2002), for the proposition that the Court should consider other monetary sanctions already
imposed by the lower courts and thereby reduce the Board’s sanctions. In Patty, the Board originally
recommended a one-year suspension, and upon review, the chancery court reduced it to sixty-days.
Id. On appeal, we increased it to four months because the attorney had already been sanctioned (in
the form of monetary damages) by the courts in which the conduct occurred. Id. at 645-46.
However, the Patty case is distinguishable from the case before us. Patty’s disciplinary violations
directly resulted from his filing of two frivolous lawsuits; therefore, the Court properly considered
monetary sanctions already imposed when determining additional sanctions such as suspension. Id.
16
W e note that while filing a motion to recuse is within Galbreath’s rights, his use of threats and intimidation
is not.
17
Galbreath has filed a t least three lawsuits in federal court against current and former chief justices of the
Tennessee Suprem e Court for their alleged failure to appo int Galbreath to sit as a retired judge. Each of these suits has
been dismissed. See Tenn. ex rel. Galbreath v. Drowo ta, No. 3:02-0 330 (M .D. T enn. Ja n. 14, 200 3); Galbreath v.
Anderson, et al., No. 3:00 -033 7 (M .D. T enn. M ay 22, 200 1); Galbreath v. Birch, et al., No. 3:96-1154,1997 WL
103 882 2 (M .D. T enn. Ju ly 24, 1997 ), aff’d, 162 F.3d 1 161 (table), 1998 W L 5527 52 (6 th Cir. 19 98).
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at 644. In contrast, Galbreath’s disciplinary violations are only tangentially related to his initial Rule
11 violation. Galbreath is being disciplined for his threatening letters sent to two judges, his
inappropriate comment to a judge during a hearing, and an ex parte communication.18 He is not
being disciplined for a Rule 11 violation. Therefore, any fee or fine Galbreath was ordered to pay
because of his Rule 11 violation has no bearing on the sanction imposed in this case.
Next, Galbreath offers in mitigation his “record of improving the judiciary and practice of
law.” Indeed, as a lawyer, public defender, legislator, and judge, Galbreath has done much to
advance the administration of justice. His contributions include the sponsorship and support of
innovative legislation which created the Court of Criminal Appeals,19 provided the mechanism by
which accused persons could waive jury trial,20 ensured that indigent accused persons receive a trial
transcript without costs,21 and guaranteed the right of an arrestee to make a telephone call before
being “booked.”22 Galbreath, however, has also been disciplined on three prior occasions.23
Therefore, on balance, his contributions to the improvement of justice are diminished by his prior
disciplinary sanctions.
Galbreath also suggests that his long years of practice should mitigate the sanction imposed.
As noted below, the hearing committee found this very factor to be an aggravator. Obviously, long
years of practice without discipline would tend to mitigate. On the other hand, long years of practice
with several disciplinary sanctions would tend to have the opposite effect. In any event, this factor
is not significant in mitigation.
The last mitigating factor Galbreath offers is his bare assertion that “other cases involving
more serious offenses with prior admonitions that injured others merited less severe sanction than
suspension.” Galbreath has not cited us to any case and we have found none in support of this
assertion.
Finally, in determining the appropriate sanction, we have considered the following
aggravating factors found by the hearing committee and adopted by the trial court: (1) Galbreath’s
18
Galbreath sent an ex pa rte letter to Kilcrease which the hearing committee and the circuit court found violated
Tennessee Suprem e Court Rule 8, DR 7 -110(B)(2). Galbreath does not dispute this finding.
19
1967 T enn. Pub. Acts ch. 226, § 1 (codified as Tenn. Code A nn. § 16-5-101 (200 3)).
20
Tenn. Cod e Ann. § 40-2504 (repealed) (codified and amended as T enn. R. Crim. P. 23 (2003)).
21
1965 T enn. Pub. Acts ch. 221, § 12 (codified as Tenn. Cod e Ann. § 40-14-312 (2003)).
22
1965 T enn. Pub. Acts ch. 298, § 1 (codified as Tenn. Code A nn. § 40-7-106 (200 3)).
23
See supra note 12.
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three prior disciplinary offenses; (2) Galbreath’s substantial experience in the practice of law; and
(3) Galbreath’s refusal to acknowledge the wrongful nature of his conduct, which the hearing
committee considered to be the most egregious aggravating factor. We conclude that the record
supports the presence of these aggravating factors and the absence of any significant mitigating
factors.
IV. Conclusion
A thorough consideration of Galbreath’s conduct together with the attendant aggravating and
mitigating factors offered convinces this Court that the thirty-day suspension of Galbreath’s privilege
to practice law is appropriate. Accordingly, the judgment of the circuit court is affirmed. The
suspension shall begin pursuant to Supreme Court Rule 9, section 18, and Galbreath shall fully
comply with all applicable provisions thereunder. Costs are taxed against the appellant for which
execution shall issue, if necessary.
_______________________________
ADOLPHO A. BIRCH, JR., JUSTICE
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