### IN THE SUPREME COURT OF TENNESS EE AT NASHVILLE Assigned on

Briefs J une 3, 2003
CHARLES F. GALBREATH v. BOARD OF PROFESSIONAL RESPONSIBILITY OF THE SUPREME C OURT 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 Dec ember 29, 2003

We have this case on direct appeal, pursuant to Tennessee Supre me Court Rule 9, section 1.3, from the judgment of the circuit court approvi ng the order o f a hearing committee of the Boa rd of Professional Responsi bility that sus pended Charl es F. Galbreath, the appellant, from the practice of law for a thirty-day

period. The circuit

court essentially adopted the f

indings of fact and conclusions of law ente red by the he aring committee. Galbreath does not contest those fa ctual findings bu t argues that the sanction imposed is excessive. Upon rev iew of the record and appli cable

au th or it y, 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 ; Ju dgment of the Circuit Court Affirmed
A DOLPHO A. B IRCH , J R
. , J., delive red the opinion of the court, in which F RANK F. D ROWOT A , III, C.J., J ANICE M. H OLDER and W IL LI AM M. B ARKER , JJ., and B EN H. C AN TRELL , S P .J., joined. E. R IL EY A NDERSON , J., n ot par tici patin g. Charles Galbreath, Nashville, Tennessee, P ro Se. James A. Vick, Nashville, Tennessee, for the appellee, B oard of Professional Responsibility. OPINION I. Facts and Procedural History
On October 7, 1947, the Tennessee Board of Law Examin ers licensed Charles F. Galbreath, andhe has been actively

engaged in the

legal profession from that date to the present. B efore us are two disciplina

ry complain

ts lodged agains t Galbreath by cha ncellors of the Chancery Court for Davidson Co un ty. The firs t complain t, which w as initiat

ed by Chancellor I

rvin H. Kilcrease, Jr., on1 Kilcr ease’s complaint incl uded an add itional m atter wh ich surfa ced in a letter t hat Galbrea th sen t to t

hen Chief Jus ti ce E

. Ril ey Ande rson. The hear ing commit tee determined that

thi s l ett er was in v iol ati on of Tenne ss ee Su preme Court Rule 8, Code o f Professi onal Responsi bili ty ( 2002). Alth ough Chief Justi ce Anderson neve r made a direc t com plaint, the lett

er he received from Galbreath is part of the record, was considered by the hearin g com mittee, a nd is incl uded in the committ ee’s f indin gs of f

act and concl usions of law

.
2 At t his ti me, Gal breat

h and h is wif

e were repre sent ed by Ger ald Bur kett , Esq.

3 From this point f

orward, Galbr eath r epresent ed himsel f and hi s wif e.

4 The order from Kilcreas e does not s pecify which s ecti on of Rule 11 of the Tenness ee Rules of Civil Procedure Ga lbrea th violate d.

5 The case was Willi e Loui se Ri dley v. Cor rection Corporat ion of America , Dav ids on Cou nt y Ci rcu itNo. 96C4434. After ini tiall y refusi ng to recuse herself , Shipley did recuse hers elf i n that case af ter Galbreath fi led a complaint agains t her in the C ourt o f the Jud iciary. -2- May 20, 1998, involved threatening letters sent by Galbrea th to judg es. 1 The second complaint, filed by Chancellor Ellen Hobbs Ly le on Octo

ber 15, 1 999, aro se from an incident in which Galbreath, in open court, referred to L yle as “hone

y.”
Even though G alb reath does not contes t the factua l basis of e

ither co mplaint, w e think it necessary to chronicle the facts of each and to summarize the finding s 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 cas e filed against Galbreath and his wife for breach of co nt ra ct ; t he y filed an

answer and coun terclaim. 2 Ruling t hat the co unterclaim had no merit and should not proceed, Kilcrease entered an order dismissing it with prejudice. As counsel of record, Galbrea th sought reconsideration of the dismissal. 3 Su bs eq ue nt ly, Kilcrease entered an additional order chara cterizing the counterclaim as “frivo lou s” and in violation of Rule 11 of the Tennessee Rules of Civil Procedure. 4 As a consequence, Kilcrea se awarded judgment aga inst Galbreath and his wife for $2,500 in favor of the counter defenda nt. After un success ful attem pts to persuad

e Kilcre ase to va

cate the Rule 11 sanction, Galbreath sought Kilcrease’s recusal.
On December 23, 1996, Galbreath w rote a le tter to Ma rie tta Shiple y, Judge of the Sec ond Circuit Court of Davidson County, praising he r rec usal from a case in which he had represented one of the part ies. 5 He sent

a copy of the

letter to Kilcrease and to all other Davidson County trial judges as well. Galbrea

th does not

dispute the conclu sion that th is letter w as intend

ed to influence Ki lcreas e to recuse himself from the c ontract case the n before him.6 We note her e t hat Kilcrease never made a s pecifi c fi nding t hat Ga lbrea th had testified un truthfully or fa lsely.

7 Ga lbrea th was app arently the host of a l ocal weekl y cal l-i n radio progr am in whi ch he address ed legal topics. -3- O n January

13, 1997, G albrea

th wrote a letter to Kilcrea se expres sing con cern tha t Kilcre ase haddoubted G albrea

th’s trust worthine ss 6 and a sked, again, that Kilcrease recuse himself. Ad di ti on al ly, Galbreath alluded to Shipley’ s initial refusa l to recu se herself and her change of mind after Galbreath had

filed a complaint against her in the Court of the Judiciary . Moreove r, Galbr eath failed to deliver a copy

of this letter to the lawyers representing the other parties in the ca se. Kilcrea se entered an order on January 22, 1997, gr

anting the plaintiff’s motion for summary judgment and orde ring Ga lbreath to pay $5,450 as attorne

y’s fees to th

e plaintif f. Reac ting to these orders, Galbrea

th wrote a second le tter toKilcrease on February 12, 1997, in which he again stated his perception that Kilcrease had branded Galbreath’s testimonyas untruthful. This perception led Galbrea th to demand an explanation from Kilcrease, and he insiste d that Kilc

rease r ecuse himself in all cases in which Galbreath was or would be involved. R efusing to recu se himself , Kilcre ase entered a final order dismissing the counter claim 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 Kilcre ase. In addition to requesting the Chief Justice’s permission to bypass Kilcrea se in any future suits he may file, Galbr

eath admonished the Chief Justice and

threate ned him in th

e following spec ifics:
1. After chiding the Chief Justice for

the Supre

me Court’ s failure

to desig nate

him to preside in cases , Galbre aththreatened to file a complaint in the Court of the Judiciary agai nst the Chief Justice shou

ld the Supr

eme Court continue to exclude h im fro m designa tio n; 2. Galbrea

th threatened to publish his grievances ag ainst the Chief Justice on h

is radio program

7 sh ould the Chief Justice fail to respond with a “ fair approach” to the demand; and
3. Galbrea

th attempt

ed to pre ssure the

Chief Justic e to procure Kilc rease’ s recusa

l.
On January 13, 1998, Kilcrea se did recuse himself. Galbreath appeal ed Kilcrease’s ju dgment rega rding th e counterclaim, summary judgment, and Rule 11 monetary sanctions. The Court of Appeals affirmed Kilcre ase’s judgment, and this Court denied Galbreath’s applica tion f or permissio

n to appeal. On remand, Chancellor Ellen Hobbs L yle entered a fina l judgment on December 21, 1999, assessing attorney ’s fees against Galbreath in the total amount of $9,413.28. B. The Ly

le Complaint
On October 4, 1 999, during a regular cour tprocee ding, Ga

lbreath address ed Ly

le as “honey.”8 The proce edings in this case are g overn ed by the Co de o f Pro fessiona l Resp onsib ility previo usly set forth in

Rule 8 of the Tennessee Supreme C ourt Rules (2002). The Co de was replaced on M arch 1 , 2003, by t he R ules of Pro fessiona l Con duc t.

9 DR 1-102. Misconduct

(A) A lawyer sh all not:

(1) Violate a Disci plinar y Rule.

. . . . (5) Engage i n conduct t hat i s prejudi cial to th e adminis tration of j usti ce. (6) Engage i n any ot

her conduct

that adversel y ref

lect s on his fit

ness t o practi ce law.

10 DR 7-106. Trial Conduct (C) In app earing in a pro fessiona l capa city befo re a trib unal, a law yer shall no t:

. . . . (6) E ngag e in und ignified o r disco urteo us co nduc t which is d egrad ing to a trib unal.

11 DR 7-11 0. Co ntact W ith Officials

(B) In an adver sary proceeding, a lawy er shal l not communicate, or cause an other to communicate , as to th e merit s of t

he cause wi th a ju dge or an off icia l befor e whom the proce eding is pend in g, exce pt:

. . . .

(2) In wri tin g if

the l awyer promptl y deli vers a copy of th e writ ing t o opposing counse l or to the adverse party i f that party is not represented by a lawyer. -4- Ly le immediate

ly r ecesse d th e proceedings. Upon their resumption, Galbre ath apologized, explaining that it was his custom to address “nice looking women” as “honey .” C. Th e Comp laint Proce edings
Both Kilcr ease an d Lyle init iated disci plin ary compl aints aga inst Galbreath. The two complaints were duly refe rred to a hearing committee of the B oard of Professional Responsib ility (“Board”) for consideration. Pursuant to Supreme Court Rule 9, sections 6 and 8 (2002), the threemember hearing committee conducted an evidentiary he aring duringwhich Galbreath testified. At the hearing, Galbr

eath ad mitted the

conduct u

pon which

the compl aints wer

e based; he sought, however, to cast the conduct as benign a nd well-intended.
The he aring committee concluded that Galbre ath’s conduct violated several disciplinary rules of Tennessee Supreme Court Rule 8 (2002). 8 Galbrea th’s three threa

tening l etters (two to Kilcrea se andone to Chief Justice Anderson) violated Disciplinary Rule (“DR”) 1-10 2(1), (5) and (6). 9 Galbreath’s undignified and discourteous conduct toward Ly le violatedDR 7-106(C)(6). 10 Las tl y, Galbreath’s January 13, 1997, ex parte letter to Kilcrea se violated DR 7-110(B)(2). 11 In addition, the hearing committee found the existence of sev eral aggr avati ng facto rs, in cludi ng the f ollo wing:
1. Galbreath has practiced law for ove r 50 years and is very experienc ed in the practice of law;12 Since 1947, Galbrea th has been sanctioned by the Board several times. On Novem ber 13, 1980 , the Board

iss ued an informal admonition agains t Galbreath. On June 20, 1984 , the Board issued a public censure against Galbreath. On M arch 2 4, 19 92, the Bo ard issu ed a p rivate re prim and against G albre ath.

13 According to Tennessee Sup reme Court Rule 9, section 1.3 (2002):
The respondent

or the Board may h ave a revi ew of the judgment of a hear ing commit tee i n the mann er provided by T.C.A. [§ 27- 9-101 et seq .], ex cept as otherwise provided herein. The review shall be on the tra nscr ipt

of the evidence before the hearing committee, i ts fi ndings and judgment and upon such othe r proof as either party may desi re to i ntroduce. The tria l judge s hall weigh t he evidenc e and det ermi ne t he f acts by the prep ond eranc e of the p roo f. Either p arty dissa tisfied with the decr ee of th e circu it or chancery court may prosecute an appeal di rect t o the Supreme Court where the cause s hall be heard upon t he tra nscri pt of t he reco rd fro m the c ircuit or chancery court, whi ch shall i nclude the transcr ipt of evidence before the heari ng committe e. Pri or de cis ion s of th is Co urt hold ing that ap pea l of discip linary pr oce eding s must b e taken to the Court of Appeal s becau se T.C.A. [§ 16-4-108] so re quir es ar e expr essl y over rul ed.

14 Kilcrease tes ti fi ed atthe cir cuit court proc eeding s that he had construed Galbreath’s letter s as containi ng threats. -5- 2. Galbrea

th has thr ee prior disciplina

ry offense s; 12
3. Galbreath has displayed an ongoing pattern of misconduct as e videnced by the three threatening letters he wrote to sitting judges on separate occasions; and
4. Galbrea

th has refused to a

cknowle dge the

wrongf ul nature of his conduct. The hearing committee found no mitigating factors and, accor dingly, orde

red that Galbreath’s license be suspended for a

period of thirty day s. Galbrea th appealed the hea

ring co mmittee’sorder to

the Circu it Court for Davidson

County pursuant to Tennessee Supreme Court Rule 9, section 1.3. 13 The trial court adopted t he hearing committee’s findings of fa ct and conclusions of law. 14 The trial court also approved the sanction imposed by the hear

ing committee–the thirty- day suspension–and entere d it as the j udgmen t. As is providedby Tennessee

Supreme Court Rule 9, section 1.3, Galbrea th appea led dire ctly

to this Court.

II . Standard of Review
TennesseeSupreme Court Rule 9, section 1.3 provides that a party may appea

l the judgment of the circuit or chancery

co urt dire ctly to the Supreme Court. When rende ring a decision on the appeal, the Supreme Cour t review s the tran script of the rec ord 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 findi ngs are correct unless the pr eponderance of the evidence is otherwise. Sneed v. Bd. of Pro f'l Responsib ility , 37 S.W.3d 886, 890 (Tenn. 2000)

.15 Pub lic censu re is an a vai lab le san cti on. Tenn. Sup. Ct. R. 9, § 4 .4 (20 02) . Acco rding to Sup reme Co urt Ru le

9, section 8.1, t

he Board shall revi ew the Disciplinary Counsel’s recommendation to censure an attorney publi cly; t he respondent- attor ney may not ap peal the B oard’s de cision but may req uest a formal heari ng. Id. It appears that t he Supr eme Court onl y revi ews th e sanct ion of publ ic cens ure if there is an appeal fr om the hear ing commit tee’ s deci sion pursu ant to Supr eme Court Rule 9, s ecti on 1.3. -6-

II I. An aly sis
The crux of Ga

lbreath ’s appea

l is his contention that the thirty-day suspension is excessive, andhe suggests that public censure 15 would be a more app ropriate sanction for two r easons. F irst, he contends that

his actions did not harmanyone; second, he asserts that the hearing c ommittee failedto apply the following mitig ating 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 andpractic e of law; and (3) other atto rney s have received l ess se ver e sanctions for more serious offenses. In support of the thirty -day suspension, the Board cites thepresence of agg ravating factors noted above, the absence of mitigating f actors, and the entire record. Thus, our task is to revie w the record anew to determine whether

the thirty-day

suspension is supported by a preponde rance of the evidence.
Before addressing Galbreath’s contentions, perha ps a brief statement of the Supreme Court’s authority in di scipl inary pro ceedin gs will be contextually helpful. The Court maintains disciplinary authority over att orney s admitted

to pract ice law in the state of Tennessee. Tenn. Sup. Ct. R. 9, § 1.1 (2003). I

t is well se

ttled that the Supre

me Court ha s the “es se ntial an d fundame ntal rig ht to prescribeandadminister rules pertaining to the licensing and admission of attorne ys.” In re Burson , 909 S.W.2d 768, 773 (Tenn. 1995).

We now address Galbreath’s contention that the th

irty -day suspensio n is excessive, and we consider his asser tion that hi s actionsdid not har m any one. I

t is true, generally s peakin g, that the disciplinary

rules are indeed designed for the protection o f cl ients and the public . But this responsi bility is not e xclus ive. The

re exists a nother du ty, broader

perhaps , that com

mands this Court to preser ve and de fend the judicial p rocess a nd 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 ImposingLawy

er Sanctions 7 (1986). In this rega rd, we note that in the context of lawyer disc ipline, the AmericanBar Association defines “injury ” as “harm to a client, the public, the legal system or the profession wh ich resu lt s from a lawye r’s misconduct.” American Bar Associa tion, Standards for Imposing L

awyer Sanctions 7 (1986).

Galbre ath, dissatisfied with Kilcrease’s rulings, bega n a calculated campaign, throu gh threat s andintimidation, to force Kilcrease’s recusal. This effort included sending two threatening letters16 W e note t hat while fi li ng a motion t o recu se i s wi thi n Galbr eath ’s rig hts , hi s us e of t hreat s and i nti midation is not.

17 Ga lbrea th has filed a t least three l awsuits i n federal court agains t current and f ormer chief justi ces of the Tennessee Suprem e Cou rt for their alleged failure to appo int Galbrea th to sit as a reti red judge . Each of these suit s has been dismiss ed. See Te nn. ex rel. Ga lbrea th v. D rowo ta , No

. 3 :02-0 330 (M .D. T enn. Ja n. 14 , 200 3); Galbreath v. Ande rson, et al. , No . 3:00 -033 7 (M .D. T enn. M ay 22 , 200 1); Ga lbrea th v. B irch, et al. , No. 3: 96-1154, 1997 WL 103 882 2 (M .D. T enn. Ju ly 24, 1 997 ), aff ’d, 162 F.3d 1 161 (table), 1998 W L 5527 52 (6 th Cir. 19 98)

. -7- to Kilcrease and a threatening letter to Chief Ju stice Anderson intended to exert pressure on Kilcrea se to recuse himself. 16 Galbreath, in his manifold efforts to force a judicial officer away f rom his offic ial du ty, clearl y attempt ed to s ubver t the l egal pro cess t o his will . In so do ing, Galbrea th has inflicted grievo

us injury upon the ju dicia

l proces s and upon Kilcrease as a judicial officer . The injury caused by

this conduct alone justifies suspension.

The incident in which G albreat h referred to L yle as “hone

y” undersc ores Galbreath’s lack of respec t for the j udicial o ffice a nd its proc esses. Such cond uct alone justifies some type of discipline.
Perhaps most egregious was Galbreath’s conduct toward the Chief Justice. In one chapter of a cont inui ng saga 17 of Galbreath’s attempts to force Chief Justice Anderson to assign him judicial duties, Galbreath suggested that if the Chief Justice did not assig n him as reque sted, he w ould file a complaint against the Chief Justice and discus s the matter during a radio talk show of which Ga lbreath was the host. Galbreath’s use of threats and intimidation designed to force the Chief Justice to perform a purely discretionary a

ct evinces a persistent

resolve to undermine and to bend the justice system to his will. I n so doing, he has inflicted grievous injury upon the judicial p

rocess andupon the office of t he C hief Justice. The injury caused by this conduct alone justifies suspension.

Galbrea th next argues that c ertain mitig ating f acto rs apply. Even thoug h the hearing committee rejected the mitig ating f actors s u g gested

by G albrea

th, we sha ll conside r and disc uss their application. First, Galbre ath cont ends that the sanction should be reduced because Kilcr ease and Ly le had already

sanctioned him for his violation of Rule 11 of the Tennessee R ules of Civil Procedure. As authority , he cite s Patty v. Boar d of Profe ssional Re sponsibilit y , 90 S.W.3d 641, 645 (Tenn. 2002), fo

r the pro position tha

t the Court should con sider other monet ary sanction s a lready imposed by th e lo wer cou rts and th ere by re duc e th e Bo ard ’s s anc ti ons . In Patty , the Boa rd orig inally recommended

a one-ye ar suspension, and uponreview, the chancery court reduced it

to sixty -day s. Id. On appea

l, we incr eased it to four mo nths beca

use the attorney ha

d already been sanctioned (in the form of monetary

damages) by

the courts in which the conduct oc curred. Id. at 645-46. However, the Patty

case is d istinguis hable

from the case before us. Patty’s disciplinary violations directly resulted from

his filing of two fr ivolous la wsuits; therefore, the

Court properly consider

ed monetary sanctions already

imposed when determining additional sanctions such as suspension. Id.18 Ga lbrea th sent an ex pa rte letter to Kilcrease which t

he hearing committ ee and the circui t court found vi olated Tennessee Suprem e Court Rule 8, DR 7 -110(B)(2). Galbreath does not dispute this fi nding.

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

. -8- at 644. In contrast, Galbrea

th’s disciplinary violations are only tangentially

related to his initia

l Rule 11 violation. G albrea

th is b eing dis ciplined

for his thr

eatening lette

rs sent to t

wo judge s, his inapprop riate comment to a judge during a hear ing, and an ex parte

communication. 1 8 He i s not being disciplined for a Rule 11 violation. Therefore, a ny 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 l awyer, publi c defender, leg islator, a nd judge , Galbre ath has do ne much to advancethe administration of justice. His contributions include the spons o rship and support of innovative legislation which created the Court o f Criminal Appeals , 19 provided the mechanism by which accuse d personscould wa ive jury trial, 20 ensured that indigent accused persons re ceive a trial transcript without co sts, 21 and guaranteed the rig ht of an arre stee to make a telephone call before being “ booked.” 22 Galbrea th, howev er, has a

lso been d

iscipline d on three

prior oc casio ns. 2 3 Theref ore, on b alance , his contributions to the improvement of justice are diminished by his prior disciplina ry sanction s.

Galbrea th also suggests that his long y ears of practice should mitigate the sanction imposed. As noted below, the hearingco mm it te e fou nd th is ve ry f ac to r t o b e a n a ggr av at or . O bv io us ly, long yearsof practice without discipline would tend to mitigate. On the other hand, long years of practice withsevera

l disciplin ary

sanction s would tend to have t he opposit

e effect. In a

ny event, this factor is not significant in mitigation.

The last mitigating factor Galbreath off ers is his bare assertion that “other cases involving more serious offenses with prior admonitions that injured others me

rited les s severe sanction than suspension.” Galbrea th has not cited us to any ca se and we have found none in support of this assertion.

Fi na ll y, in determ ining the appropriate sanction, we have considered the following aggravating

factors found

by t he hear ing comm ittee and adopted by the trial c ourt: (1) Galbreath’s-9-

three pr ior discip linary

offense s; (2) Ga

lbreath ’s substa

ntial exper

ience in the practiceof law; and (3) Gal breath’s refusal to acknowledg e the wrongful nature of his conduct, which the hea rin g committee consider

ed to be th

e most eg regiou s agg

ravatin g fact

or. We con

clude tha t t he record supports the pres ence of

these ag grava

ting fa ctors and the abse

nce of a ny s i gnific ant mi tigating factors.

IV. Conclusion

A tho rough consideration of Galbreath’s c onduct together with the attendant agg ravating and mitigating fac tors offered convinces this C ourt t hat th e thir ty-day suspe nsio n of Gal breath ’s pri vilege t o practic e law is a

ppropria te. Acc ordingl

y, t he judg ment of the

circuit c ourt is affirmed. Th e suspension shall begin pursuant to Supreme Court Rule 9, section 18, and Galb reath sh all fully comply with all applicable provisions thereunder. Costs are taxed against the appellant for which ex ec ut io n s ha ll is su e, if

ne ce ss ar y.

_______________________________ ADOL PHO A. BI

RCH, JR., JUSTI

CE