Office of Disciplinary Counsel ex rel. Board of Professional Responsibility of the Supreme Court v. Davis

696 S.W.2d 528, 1985 Tenn. LEXIS 543
CourtTennessee Supreme Court
DecidedAugust 26, 1985
StatusPublished
Cited by5 cases

This text of 696 S.W.2d 528 (Office of Disciplinary Counsel ex rel. Board of Professional Responsibility of the Supreme Court v. Davis) is published on Counsel Stack Legal Research, covering Tennessee Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Office of Disciplinary Counsel ex rel. Board of Professional Responsibility of the Supreme Court v. Davis, 696 S.W.2d 528, 1985 Tenn. LEXIS 543 (Tenn. 1985).

Opinion

OPINION

DROWOTA, Justice.

This is an appeal by Disciplinary Counsel from a judgment of the trial court that Appellee, Jack Davis, need not take the bar examination as a condition for reinstatement of his law license following disbarment. Disciplinary Counsel argues that Mr. Davis has not shown that he possesses the “competence and learning in law required for admission to practice law in this State_” Rule 9, Section 19.3, Rules of the Supreme Court. Disciplinary Counsel takes the position that reinstatement of Mr. Davis’ law license should be conditioned upon his successful completion of the Tennessee Bar Examination. Rule 9, Section 19.7.

The record reflects that disbarment proceedings were brought against the Appel-lee by the Nashville Bar Association prior to the adoption of Rule 9 of this Court. On August 31, 1973, the Chancellor found Mr. Davis guilty of: failing to prosecute two separate actions for divorce; furnishing to his clients copies of orders known to be forged, false, and void, and purporting to be orders granting his clients a divorce; failing to prosecute a negligence claim and allowing the statute of limitations to run; misrepresenting facts to his client and to the Grievance Committee of the Nashville Bar Association; and representing to a [529]*529client that criminal charges against him had been dismissed, knowing such representation to be false and failing to take the proper steps to represent his client. The Chancellor found the foregoing matters “to be serious offenses, and to be acts of unprofessional conduct, dishonesty, malpractice, and conduct which render him unfit to be a member of the Bar.” The Appellee was disbarred and his license to practice law suspended for ten years, with leave to seek reinstatement after five years.

On August 13, 1981, the Appellee applied for reinstatement by filing a petition with the Board and service upon Disciplinary Counsel.1 The Board referred the petition to a hearing committee, which heard proof on February 9, 1982.

At the reinstatement hearing, Mr. Davis testified that in 1971 he was employed by the Department of Human Services. He was asked to leave in February of 1973. He returned to work for the Department of Human Services in September of 1976. Mr. Davis received several promotions within the Department and presently holds the position of Assistant Director for Services for the Blind. In this capacity, he serves as director of the Tennessee Business Enterprises program. Mr. Davis himself is blind.

Mr. Davis stated that he started taking amphetamines in early 1968 and after a year and a half “I started making irrational decisions and bad judgment. And exhibiting, in my judgment, what most people would consider reprehensible behavior.” He stated that in the early part of 1972, people began to realize that he “wasn’t dependable ... wasn’t reliable. And as a consequence, they began to ask questions and register complaints.” He contended that drugs were his downfall and that he has been off drugs since 1974.

At the hearing friends, neighbors and business associates described Mr. Davis as dependable, reliable, extremely capable, patient, fair, honest and trustworthy. One witness described him as “a sober, hardworking, dedicated man ... A man of integrity” who had “straightened himself up.”

At this reinstatement hearing the Petitioner had “the burden of demonstrating by clear and convincing evidence that he has the moral qualifications, competency and learning in law required for admission to practice law in this State and that his 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.” Rule 9, Section 19.3.

The evidence before the Hearing Committee was clear and convincing that Mr. Davis has the moral qualifications to practice law. In closing argument before the Hearing Committee and before this Court, Disciplinary Counsel did not question Mr. Davis’ moral qualifications. It was Disciplinary Counsel’s position that the sole issue was one of competency and learning in the law, by virtue of the length of Mr. Davis’ absence from the practice of law.

The only relevant testimony, besides that of Petitioner himself, dealing with Mr. Davis’ present knowledge of the law and competency was that of the General Counsel for the Department of Human Services. He stated that Mr. Davis has worked in the area of blind services and he knows the federal law in this area, “so much so, when a legal question arises in that area, even though he is not employed as an attorney, I feel very comfortable in asking Jack, okay, Jack, what does the federal law say on it? And I never found him wrong.”

Mr. Davis, in response to questioning by the Hearing Committee chairman gave the following responses regarding his competency and learning in the law.

Q. ... do you feel comfortable with the evolutionary changes in the last eight years that you are academically, psychologically, educationally, in [530]*530a position where you could, as a matter of fact, should your mind change, practice law?
A. In some areas, I would feel competent. In some areas, I would not. Some areas, I am sure would necessitate some studying on my part, to be brought up to date on changes which have occurred, since I was active in practice, yes.
Q. Have you had the opportunity and made any effort, during the time you have been without a license, to keep up with reading Advance Sheets or Supreme Court Reports, or legal periodicals, in regard to the changes that have taken place?
A. To some degree, but not nearly to the degree that a person should, if he is going to be abreast of the changes.... there is no question that I will, if I went back into private practice, that there would be certain areas which would necessitate quite a lot of study, yes.

The Hearing Committee on March 4, 1982, filed its findings and decision. The Committee found that “the professional misconduct of the Petitioner which led to his disbarment and suspension was of a serious nature, the extent and degree of which the Petitioner now recognizes and candidly admits.” The Committee further found “that the witnesses giving proof before the panel expressed their deep confidence in the abilities and moral qualifications of the Petitioner and recommended highly his reinstatement.” The Committee concluded that Petitioner had demonstrated by clear and convincing evidence that “he has the moral qualifications, competency and learning in law required for his reinstatement.” The Committee recommended that Mr. Davis be “reinstated immediately” and further recommended, “but not as a condition precedent to his reinstatement, that Mr. Davis make immediate arrangements to attend and complete one of the comprehensive bar review courses.... ”

On April 1, 1982, Disciplinary Counsel, pursuant to Rule 9, Section 1.3, sought review in the trial court. No additional proof was introduced before the trial judge and his review was upon the transcript of the evidence before the Hearing Committee. The sole issue before the trial court was whether Mr. Davis should be required to take the bar examination as a condition of his reinstatement. On March 10, 1983, the trial court entered judgment finding that Mr. Davis should not be required to pass the State Bar Examination.

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Bluebook (online)
696 S.W.2d 528, 1985 Tenn. LEXIS 543, Counsel Stack Legal Research, https://law.counselstack.com/opinion/office-of-disciplinary-counsel-ex-rel-board-of-professional-responsibility-tenn-1985.