In Re Larry E. Parrish

03/08/2021

IN THE SUPREME COURT OF TENNESSEE

Assigned on Briefs February 24, 2021

IN RE LARRY E. PARRISH

Direct Appeal from the Board of Professional Responsibility Hearing Panel

No. 2018-2929-9-AJ-24

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No. W2020-00907-SC-R3-BP

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This Court suspended an attorney from practicing law for six months, with one month on

active suspension. The discipline resulted from a report of misconduct received by the

Tennessee Board of Professional Responsibility in 2013. In 2018, we reinstated the

attorney to the practice of law based on his eligibility for reinstatement and his compliance

with the order of discipline. Before being reinstated, the attorney agreed to a monthly

payment plan to satisfy the Board’s assessed costs from the disciplinary case. Soon after

he was reinstated, the attorney petitioned the Board to revoke the agreed costs. The attorney

argued he did not owe the costs because the Board improperly assessed costs under

Tennessee Supreme Court Rule 9 in effect when the 2013 disciplinary proceeding was

initiated instead of Rule 9 in effect when he was reinstated. A hearing panel found the

Board had properly assessed costs based on Rule 9 in effect when the disciplinary

proceeding began. The attorney appealed. We affirm. Based on this Court’s Order

promulgating revised Rule 9 and our subsequent decisions, the version of Rule 9 that was

in effect when the disciplinary case was initiated in 2013 governs the assessment of costs

regardless of when this Court reinstated the attorney to the practice of law. Thus, we hold

the Board followed the correct procedure in assessing costs. We order the attorney to pay

the costs assessed against him within forty-five days of the filing of this opinion. Failure

to timely pay the costs may serve as a ground for revocation of the attorney’s reinstatement

to practice law.

Tenn. Sup. Ct. R. 9, § 24.3 (2008) (current version at Tenn. Sup. Ct. R. 9, § 31.3)

Direct Appeal

Decision of the Hearing Panel Affirmed

SHARON G. LEE, J., delivered the opinion of the Court, in which JEFFREY S. BIVINS, C.J.,

and CORNELIA A. CLARK and ROGER A. PAGE, JJ., joined. HOLLY KIRBY, J., not

participating.

Larry E. Parrish, Memphis, Tennessee, Pro Se.

Sandy Garrett and A. Russell Willis, Brentwood, Tennessee, for the appellee, Board of

Professional Responsibility.

OPINION

I.

Effective January 1, 2014, this Court adopted extensive revisions to Tennessee

Supreme Court Rule 9, which governs attorney discipline. Rule 9, as revised, applies

prospectively to matters “filed with or initiated before the Board of Professional

Responsibility” on or after January 1, 2014.1 The primary issue here involves which version

of Rule 9 applies to the assessment of costs in a disciplinary case initiated in 2013 resulting

in a suspension from which the attorney was reinstated in 2018. This issue has arisen

because the procedure for assessing costs depends on which version of Rule 9 applies.2

Pre-2014 Rule 9, section 24.3 applies to the assessment of costs from a disciplinary case

filed or initiated before January 1, 2014, while 2014 Rule 9, section 31.3 governs the

procedure for assessing costs in cases filed or initiated on or after January 1, 2014.

In October 2013, the Board initiated disciplinary proceedings against Memphis

attorney Larry E. Parrish after three appellate judges reported that Mr. Parrish had made

pejorative statements about them in motions he filed in the Tennessee Court of Appeals.

Bd. of Pro. Resp. v. Parrish, 556 S.W.3d 153, 156, 162 n.7 (Tenn. 2018). The Board later

filed formal charges against Mr. Parrish. Id. at 160. A hearing panel found that Mr. Parrish

was guilty of misconduct and should be sanctioned with a public censure. Id. at 161. The

Shelby County Circuit Court affirmed the finding of misconduct, but determined that a

six-month suspension, with one month on active suspension, was the appropriate sanction.

Id. at 161–62. In 2018, this Court affirmed the judgment of the circuit court. Id. at 170.

On September 21, 2018, Mr. Parrish petitioned for reinstatement, stating under oath

he would “pay, when a statement of the amount is delivered and justified by [the] Board of

Professional Responsibility, all outstanding costs owed to the Board of Professional

1 See Order Adopting Revised Rules Governing Disciplinary Enforcement with Respect to

Attorneys, In re Adoption of Amended Tenn. Sup. Ct. R. 9, Nos. M2012-01648-SC-RL2-RL,

M2009-02505-SC-RL2-RL (Tenn. Aug. 30, 2013).

2

We refer to Rule 9 in effect before January 1, 2014, as “pre-2014 Rule 9” and the revised Rule 9

in effect on or after January 1, 2014, as “2014 Rule 9.”

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Responsibility by respondent for prior disciplinary proceedings.” On October 1, 2018, the

Board assessed costs under pre-2014 Rule 9, section 24.3 for the 2013 disciplinary

proceeding and billed Mr. Parrish $10,305.06 in costs.3

Soon after receiving the cost bill, Mr. Parrish emailed the Board, challenging the

Board’s authority to assess costs under pre-2014 Rule 9, section 24.3. In response, the

Board’s Disciplinary Counsel informed Mr. Parrish:

Simply put, this office cannot send a reinstatement order to the Court

until you have either paid the costs or entered into a payment plan as I

previously told you. You can petition the Board for relief from costs as

provided in Section 24.3 (pre-2014). Finally, if you insist on not paying the

costs, and do not [p]etition the Board for relief, Section 30.4(c) (2014)

requires that I file an answer raising the failure to pay costs as an objection

and the petition for reinstatement will be converted to a section 30.4(d)

petition.

I would like to get this resolved so that I can send an order of

reinstatement to the Court promptly. Let me know what you want to do.

Mr. Parrish emailed Disciplinary Counsel, “I have no intention of not paying what is owed.

I would like to set up a payment plan. I will abide by the terms of the payment plan. I want

to pay tomorrow; so, I need to be in contact with who I need to be in contact with.”

(Emphasis added). Later in the email reply, Mr. Parrish stated, “Whether I choose to make

an issue by contesting is a decision I will make later depending on many factors, mostly

related to time availability.” Disciplinary Counsel responded, “I understand,” and provided

Mr. Parrish with contact information so he could arrange for a payment plan.

On October 3, 2018, Mr. Parrish agreed to a payment plan of $500 per month. The

next day, the Board acknowledged receipt of Mr. Parrish’s first $500 payment. The Board,

based on the agreed payment plan, filed a notice of submission advising this Court that Mr.

Parrish had satisfied the conditions of the order of discipline and was eligible for

reinstatement. On October 5, 2018, this Court reinstated Mr. Parrish to the practice of law,

effective October 7, 2018.

Less than a month later, Mr. Parrish filed a “Petition to Revoke Imposition of

Costs.” Mr. Parrish neither disputed the amount of costs nor alleged an inability to pay.

3

Under pre-2014 Rule 9, section 24.3, for disciplinary cases initiated on or after January 27, 1992,

the assessed hourly charges for Disciplinary Counsel were $30 for investigative time before formal charges

were filed and $80 for handling formal proceedings.

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Instead, Mr. Parrish argued the Board had “failed to comply with the controlling rules

prerequisite to issuance of a bill of cost.” A hearing panel was appointed to hear the

petition, and the Board moved for summary judgment.

The hearing panel granted the Board’s motion for summary judgment, ruling the

Board had properly assessed costs under pre-2014 Rule 9, section 24.3 for Mr. Parrish’s

2013 disciplinary proceeding. Mr. Parrish appealed to this Court under pre-2014 Rule 9,

section 24.3, which provides for a direct appeal of the Board’s decision on an assessment

of costs.4

II.

Regulating the practice of law in Tennessee is an inherent duty of this Court.

Walwyn v. Bd. of Pro. Resp., 481 S.W.3d 151, 162 (Tenn. 2015) (citing Bd. of Pro. Resp.

v. Cowan, 388 S.W.3d 264, 267 (Tenn. 2012)). Thus, we review the decision of a hearing

panel under our “inherent power and essential and fundamental right to administer the rules

pertaining to the licensing of attorneys.” Cody v. Bd. of Pro. Resp., 471 S.W.3d 420, 424

(Tenn. 2015) (quoting Skouteris v. Bd. of Pro. Resp., 430 S.W.3d 359, 362 (Tenn. 2014)).

This appeal involves only questions of law, so we review the hearing panel’s findings de

novo with no presumption of correctness. Dunlap v. Bd. of Pro. Resp., 595 S.W.3d 593,

606–07 (Tenn. 2020) (citing Napolitano v. Bd. of Pro. Resp., 535 S.W.3d 481, 496 (Tenn.

2017)); Walwyn, 481 S.W.3d at 163.

Mr. Parrish challenges the assessment of costs from the 2013 proceeding and raises

two issues on appeal:

1) Whether 2014 Rule 9, section 30.4 governs an attorney’s 2018 reinstatement to the

practice of law following a thirty-day active suspension.

2) Whether 2014 Rule 9, section 31.3 governs an assessment of costs arising from a

disciplinary case initiated in 2013.

Reinstatement

Although Mr. Parrish asks this Court to rule on whether 2014 Rule 9, section 30.4

governs his reinstatement, there is no dispute about this issue. 2014 Rule 9, section 30.4

applies to attorney reinstatements on or after January 1, 2014, no matter when the

4

Under pre-2014 Rule 9, section 24.3, we consider the Board’s order on an attorney’s petition for

relief from costs assessed against him the same as a circuit or chancery court decree, and the order is

appealable to this Court. Tenn. Sup. Ct. R. 9, § 24.3 (2006) (amended 2014).

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attorney’s suspension occurred—“[r]einstatement other than [from administrative

suspension or inactive status] shall be pursuant to this Section, regardless of when or under

what procedure the suspension or disbarment occurred.” Tenn. Sup. Ct. R. 9, § 30.4(a)

(emphasis added).

Assessment of Costs

Mr. Parrish argues the Board erred by assessing him with costs from his 2013

disciplinary proceeding under pre-2014 Rule 9, section 24.3. Mr. Parrish urges this Court

to hold the Board is not entitled to costs because the Board failed to follow the assessment

procedure in 2014 Rule 9, section 31.3.

Under pre-2014 Rule 9, section 24.3, the Board assesses the costs from a

disciplinary proceeding and serves the cost bill on the attorney after entry of a judgment of

discipline. See Tenn. Sup. Ct. R. 9, § 24.3 (2006) (amended 2014). The attorney may then

petition the Board for relief from the costs within thirty days of receiving the bill or at the

end of the disciplinary proceeding, whichever occurs last. Id. The attorney may appear

before the Board, after which the Board or hearing panel files its decision. Id.5

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Reimbursement of Costs. 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 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. . . .

....

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 (2006) (amended 2014).

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On January 1, 2014, the procedure for assessing costs changed when 2014 Rule 9,

section 31.3 replaced pre-2014 Rule 9, section 24.3. Under section 31.3, the Board’s

Disciplinary Counsel must apply for its costs with the appropriate tribunal (the hearing

panel, the trial court, or this Court) within fifteen days of the tribunal’s decision. See Tenn.

Sup. Ct. R. 9, § 31.3(a)–(c). The application must document the hours spent by Disciplinary

Counsel and the costs incurred. Id. The attorney may respond within fifteen days and must

prove the costs were unnecessary or unreasonable. Id. The tribunal then issues its judgment

on the application for assessment of costs. Id.6

This Court’s Order promulgating 2014 Rule 9 and our later rulings guide our

analysis of which version of Rule 9 applies. In our Order, we directed that 2014 Rule 9

would “have prospective application only.” See Order Adopting Revised Rules Governing

Disciplinary Enforcement with Respect to Attorneys, supra note 1, at 2 (“The revised Tenn.

Sup. Ct. R. 9 shall take effect on January 1, 2014, and shall have prospective application

only, applying to all matters filed with or initiated before the Board of Professional

Responsibility on or after that date.”). This means that 2014 Rule 9 would not be applied

retroactively to disciplinary cases filed or initiated before January 1, 2014.

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31.3. Reimbursement of Costs.

(a) In the event that a judgment of . . . suspension . . . results from formal proceedings,

Disciplinary Counsel shall within fifteen days from the hearing panel’s submission of such

judgment . . . make application to the hearing panel for the assessment against the . . .

[attorney] of the necessary and reasonable costs of the proceedings . . . . The application

shall be accompanied by an affidavit or declaration under penalty of perjury and such other

documentary evidence as Disciplinary Counsel deems appropriate documenting the hours

expended and the costs incurred by Disciplinary Counsel in investigating and prosecuting

the complaint or responding to the petition for reinstatement. Such proof shall create a

rebuttable presumption as to the necessity and reasonableness of the hours expended and

the costs incurred. The [attorney] may within fifteen days after Disciplinary Counsel’s

application submit to the hearing panel and serve on Disciplinary Counsel . . . any response

in opposition to the application for an assessment of costs. The burden shall be upon [the

attorney] to prove by a preponderance of the evidence that the hours expended or costs

incurred by Disciplinary Counsel were unnecessary or unreasonable. Disciplinary Counsel

or the [attorney] may request a hearing before the hearing panel . . . . The hearing panel

shall within fifteen days from the conclusion of such hearing, or in the event no hearing is

requested, within fifteen days from the date on which the [attorney’s] response is due or is

submitted, whichever is earlier, submit to the Board its findings and judgment with respect

to Disciplinary Counsel’s application for the assessment of costs.

Tenn. Sup. Ct. R. 9, § 31.3(a); see also Tenn. Sup. Ct. R. 9, §§ 31.3(b)–(c) (setting forth the procedure for

assessing costs in disciplinary matters appealed to the circuit or chancery court and to this Court).

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We have consistently held that 2014 Rule 9 applies only to disciplinary cases filed

or initiated on or after January 1, 2014. See, e.g., Bd. of Pro. Resp. v. Justice, 577 S.W.3d

908, 913 n.3 (Tenn. 2019) (“This Court revised Tennessee Supreme Court Rule 9 effective

January 1, 2014. This disciplinary proceeding, however, was initiated prior to January 1,

2014, and it is therefore governed by the prior version of the rule.”); Garland v. Bd. of Pro.

Resp., 536 S.W.3d 811, 816 (Tenn. 2017) (“Effective January 1, 2014, this Court adopted

substantial changes to Tennessee Supreme Court Rule 9, which governs disciplinary

proceedings. See Tenn. Sup. Ct. R. 9. Cases initiated before the effective date are governed

by the pre-2014 version of Rule 9.” (citing Cody, 471 S.W.3d at 424 n.9)); Bd. of Pro.

Resp. v. Reguli, 489 S.W.3d 408, 412 n.1 (Tenn. 2015) (“Because this case was initiated

before January 1, 2014, it is governed by the pre-2014 version of Tennessee Supreme Court

Rule 9.”); Bd. of Pro. Resp. v. Barry, 545 S.W.3d 408, 418 n.14 (Tenn. 2018) (“The hearing

panel applied the 2006 version of Tennessee Supreme Court Rule 9 because the matter was

initiated before January 1, 2014, when comprehensive changes to Rule 9 became

effective.”); Hornbeck v. Bd. of Pro. Resp., 545 S.W.3d 386, 392 n.12 (Tenn. 2018) (same);

Bailey v. Bd. of Pro. Resp., 441 S.W.3d 223, 231 n.13 (Tenn. 2014) (same); Mabry v. Bd.

of Pro. Resp., 458 S.W.3d 900, 902 n.1 (Tenn. 2014) (same); Walwyn, 481 S.W.3d at 153

n.1 (same). In 2018, this Court applied pre-2014 Rule 9 in reviewing Mr. Parrish’s

disciplinary case. Parrish, 556 S.W.3d at 162 n.7 (citing Garland, 536 S.W.3d at 816).7

Mr. Parrish did not challenge the application of pre-2014 Rule 9 in that proceeding.

Thus, based on the clearly stated intent in our Order adopting revised Rule 9, 2014

Rule 9 applies to cases filed or initiated on or after January 1, 2014, and pre-2014 Rule 9

applies to cases filed or initiated before January 1, 2014. Thus, in assessing costs, the

operative date is when the case was filed or initiated—not when this Court granted

reinstatement. Therefore, we hold that the Board properly assessed costs arising from the

disciplinary case initiated against Mr. Parrish in 2013 under pre-2014 Rule 9, section 24.3.

Mr. Parrish asserts several arguments for his position that the Board should have

assessed costs under 2014 Rule 9, section 31.3. First, Mr. Parrish asserts that 2014 Rule 9,

section 31.3 governs the Board’s assessment of costs against him because 2014 Rule 9,

section 30.4 applied to his reinstatement. Under Mr. Parrish’s argument, the assessment

and payment of costs is part of the reinstatement procedure and not the disciplinary

7

Although the Board filed its formal petition for discipline against Mr. Parrish in November 2014,

the disciplinary proceedings against Mr. Parrish began when the motions containing his pejorative

statements were submitted to the Board in October 2013. Cf. Garland, 536 S.W.3d at 814–15 (applying

pre-2014 Rule 9 when the Board filed its formal petition for discipline in June 2014 based on a complaint

made to the Board in June 2013); Barry, 545 S.W.3d at 416–17 (applying pre-2014 Rule 9 when the Board

filed its formal petition for discipline in June 2014 based on a complaint made to the Board in May 2013).

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proceeding. However, under 2014 Rule 9, section 30.4, an attorney seeking reinstatement

has to show he has already paid the costs assessed against him. Payment of costs is not part

of the reinstatement procedure, but a condition precedent to beginning the reinstatement

procedure.8 Mr. Parrish also contends that because he has already been disciplined, the cost

assessment relates to reinstatement and not to the disciplinary matter. This logic is flawed.

As we have recognized, the “disciplinary process is a costly endeavor,” and “[s]hifting the

financial burden . . . to those directly responsible for the costs” is both fair and effective in

deterring misconduct. Moncier v. Bd. of Pro. Resp., 406 S.W.3d 139, 150 (Tenn. 2013). As

part of the disciplinary process, the cost assessment in a case initiated before January 1,

2014, is governed by pre-2014 Rule 9.

Second, Mr. Parrish claims that payment of the Board’s assessed costs cannot be a

condition of his reinstatement because this Court’s 2018 order imposing discipline did not

require it. He bases this argument on language in 2014 Rule 9, section 30.4 stating that in

a petition for reinstatement, the attorney must show that he “has satisfied all conditions set

forth in the order imposing discipline, including the payment of costs incurred by the Board

in the prosecution of the preceding disciplinary proceeding and any court costs assessed

against the attorney in any appeal from such proceeding.” Tenn. Sup. Ct. R. 9, § 30.4.

However, this language does not indicate that the order imposing discipline must include

an assessment of the Board’s costs. Mr. Parrish’s interpretation conflicts with sections

31.3(a)–(c) of 2014 Rule 9, which provide that disciplinary counsel for the Board must

apply for assessment of costs within fifteen days after entry of the judgment imposing

discipline. See Tenn. Sup. Ct. R. 9, §§ 31.3(a)–(c). Besides creating a conflict within the

rules, Mr. Parrish’s reading of section 30.4 contradicts the principle that payment of the

Board’s fees, whether assessed by the Board under pre-2014 Rule 9 or by the tribunal under

2014 Rule 9, is a condition precedent to petitioning for reinstatement.

8

Under 2014 Rule 9, section 30.4, an attorney seeking reinstatement:

shall file with the Board and serve upon Disciplinary Counsel promptly a petition for

reinstatement of the attorney’s license to practice law demonstrating that the petitioning

attorney has the moral qualifications, competency and learning in law required for

admission to practice law in this state, that the resumption of the practice of law within the

state will not be detrimental to the integrity and standing of the bar or the administration

of justice, or subversive to the public interest, and that the petitioning attorney has satisfied

all conditions set forth in the order imposing discipline, including the payment of costs

incurred by the Board in the prosecution of the preceding disciplinary proceeding and any

court costs assessed against the attorney in any appeal from such proceeding.

Tenn. Sup. Ct. R. 9, § 30.4(c) (emphasis added).

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Third, Mr. Parrish argues that the 2014 Rule 9 reinstatement procedure requires the

use of the 2014 Rule 9 cost-assessment procedure because sections 30.4 and 31.3 of 2014

Rule 9 fit hand-in-glove. Mr. Parrish fails to explain why 2014 Rule 9, section 31.3 would

govern the assessment of costs in cases initiated before January 1, 2014, without any

language in section 31.3 making it apply “regardless of when or under what procedure the

suspension or disbarment occurred” as in section 30.4. He speculates that because neither

assessing costs nor reinstatement is punitive in nature, there is no barrier to applying

revisions to both of those rules retroactively. Mr. Parrish’s conclusion, however, does not

follow. What determines if the rule here applies retroactively is not whether the rule is

punitive in nature, but the language of this Court’s Order promulgating the rule and how

we have interpreted the Order. Mr. Parrish cites no authority for his argument. There is

none.

Finally, Mr. Parrish argues that pre-2014 Rule 9, section 24.3 “went out of existence

on January 1, 2014,” when 2014 Rule 9, section 31.3 went into effect. Mr. Parrish’s

argument has no merit. This Court’s Order promulgating 2014 Rule 9 and disciplinary

decisions since January 1, 2014, including the decision in Mr. Parrish’s case, make clear

that pre-2014 Rule 9 applies to disciplinary matters initiated before January 1, 2014. The

reinstatement provisions in section 30.4 of 2014 Rule 9 apply retroactively because the rule

requires it (“Reinstatement . . . shall be pursuant to this Section, regardless of when or

under what procedure the suspension or disbarment occurred.”). 2014 Rule 9, section 31

(assessment of costs) does not contain language similar to that in 2014 Rule 9, section 30.4

(reinstatement) that would make 2014 Rule 9, section 31 apply retroactively to pre-2014

cases. If this Court had intended for section 31 of 2014 Rule 9 to apply to the assessment

of costs in pre-2014 disciplinary proceedings, language to that effect would have been

included. Cf. Effler v. Purdue Pharma L.P., 614 S.W.3d 681, 689 (Tenn. 2020) (applying

the principle of expressio unius est exclusio alterius to “infer that if the Legislature had

intended to enact a certain provision missing from the statute, then the Legislature would

have included the provision” and that “the missing statutory provision is missing for a

reason—the Legislature never meant to include it”). Lack of such language in section 31

of 2014 Rule 9 shows that this Court did not intend for section 31 to apply retroactively to

the assessment of costs in cases initiated before January 1, 2014. Even though Mr. Parrish

insists that 2014 Rule 9 applies to the assessment of costs, he followed pre-2014 Rule 9,

section 24.3 when petitioning to revoke the Board’s bill of costs and in appealing the

hearing panel’s decision directly to this Court. Mr. Parrish’s past conduct conflicts with

the position he takes here.

CONCLUSION

After considering the record and all the issues raised by Mr. Parrish, we hold that

the Board properly assessed the costs of Mr. Parrish’s disciplinary proceeding under

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pre-2014 Rule 9, section 24.3. Thus, we affirm the decision of the hearing panel and order

Mr. Parrish to pay the costs owed to the Board within forty-five days of the filing of this

opinion. Mr. Parrish’s failure to do so may serve as a ground for revocation of his

reinstatement to practice law. We tax the costs of this appeal to Larry E. Parrish, for which

execution may issue if necessary.

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SHARON G. LEE, JUSTICE

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