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Attorney seeking reinstatement cannot claim indigence to escape fees

The Tennessee Supreme Court, in a May 7 decision, held that a state law that allows impoverished defendants to access the court system if they are unable to pay court fees does not apply to attorney reinstatement proceedings, as those proceedings are under the sole purview of the Court under the Tennessee Constitution.

(Brooks v. Board of Professional Responsibility)

The case stems from disciplinary proceedings begun in the late 1990s, when attorney Nathan Brooks, faced with potential discipline, entered into a settlement with the state’s Board of Professional Responsibility in which he admitted guilt on various disciplinary charges and accepted a two-year suspension of his license, along with restitution and costs totaling about $10,000.

In 2002, Brooks filed for reinstatement, but claimed that he was unable to pay the costs and restitution he had agreed to because he was now indigent. Based on that lack of payment, Brooks was denied a reinstatement hearing, but he appealed that decision, arguing that, by denying him even a hearing based on his failure to pay restitution, the state’s court system was denying him due process. The case went all the way up to the Tennessee Supreme Court, which rejected his claim.

In 2015, Brooks tried again. This time, he declined to pay an advanced cost deposit on his earlier financial penalties, required for reinstatement petitions under Tennessee Supreme Court rules, again claiming indigence. The board filed a motion seeking dismissal of Brooks’s application, noting that the reinstatement provisions do not provide for a waiver of the cost deposit due to indigence. A hearing panel dismissed the case.

Brooks appealed this latest rejection by the board, arguing that Tennessee statutory law allowed for the filing of civil actions without costs on a litigant’s claim of inability to pay. A trial court found in favor of the board, holding that Tennessee rules governing the filing of civil actions under a poverty claim do not apply to attorney reinstatement applications. Brooks appealed again, and the case again went up the Supreme Court of Tennessee.

Brooks’s argument on appeal was that both Tennessee statutes and the federal constitution require that he not be denied access to the court based on a lack of funds, and that such denial is also a violation of his rights to due process.

The court did not agree. Assessing the separation of powers under the Tennessee constitution, the justices determined that the Tennessee Supreme Court Rule requiring a cost deposit for reinstatement applicants was unaffected by the Tennessee statute which provides for the cost-free filing of civil actions by impoverished litigants. The court noted that the Tennessee Constitution places authority to create rules governing the reinstatement of attorneys with the Court.

“Mr. Brooks’s preferred application of [the law] would in effect have the General Assembly override a Supreme Court rule regulating the practice of law. This prospect would raise the spectre of violating our Constitution’s provisions on separation of powers,” wrote the justices in a unanimous decision. Rather than rule the statute unconstitutional, the court simply interpreted it not to apply to attorney disciplinary proceedings.

Regarding Brooks’s due process arguments, the court first noted that, under Tennessee law, the practice of law is a privilege, not a right, and its denial is subject to a very low level of review for substantive due process. As such, the justices held, the requirement of a cost deposit for attorney reinstatement applications does not violate due process.

“Having occasioned the suspension of his law license by admittedly engaging in serious misconduct involving multiple clients, Mr. Brooks is not denied procedural due process by requiring him to pay, in advance, a deposit on the costs of the reinstatement proceedings his misconduct necessitated.”