The Supreme Court of Tennessee recently confronted the issue of whether the state’s lawyer discipline system violated due process. See Long v. Board of Professional Responsibility, “Long contended that Rule 9 is unconstitutional and violates his due process rights because Rule 9 combines investigative, enforcement, and adjudicative authority in the same agency; creates a financial incentive for the Board to pursue formal disciplinary proceedings; and gives rise to an institutional bias in favor of finding guilt and imposing discipline.” The court said that “[b]ecause the investigatory/enforcement responsibilities and the adjudicative responsibilities are functionally separate within the Board, Rule 9 does not violate due process principles.”
The following discussion will be of interest to those who think the combination of attorney discipline functions is a violation of due process:
Appellate courts in other jurisdictions have squarely rejected claims that the combination of investigatory, enforcement, and adjudicative functions in a single attorney disciplinary agency (or judicial disciplinary agency) violates due process principles. See, e.g., In re Hanson, 532 P.2d 303, 306 (Alaska 1975) (stating that the “combination of judicial and investigative functions in the Commission [on Judicial Qualifications] did not violate petitioner’s due process rights under eigher [sic] the federal constitution or Alaska’s constitution”); People v. Varallo, 913 P.2d 1, 4 (Colo. 1996) (holding that “[t]he fact that the members of the grievance committee and the disciplinary counsel are appointed by the supreme court is not enough by itself to establish a per se violation of due process”); In re Zoarski, 632 A.2d 1114, 1121 (Conn. 1993) (holding that the combination of investigatory and adjudicatory functions in one judicial disciplinary agency does not violate due process); In re Baun, 232 N.W.2d 621, 623-24 (Mich. 1975) (holding that Michigan’s lawyer disciplinary proceedings do not violate due process, because the functions of investigation, prosecution, adjudication, and review are “functionally separate” and are handled by different individuals); Goldstein v. Comm’n on Practice of Supreme Court, 995 P.2d 923, 928 (Mont. 2000) (rejecting claim that Montana’s attorney disciplinary system violated due process principles because investigatory and enforcement authority were combined in one agency). But see Tweedy v. Okla. Bar Ass’n, 624 P.2d 1049, 1054-55 (Okla. 1981) (holding that the Oklahoma Supreme Court, under due process principles, could not order the investigation of an attorney disciplinary grievance but also noting that the Board of Governors of the state bar could review the matter).