In Re: Loring Justice v. , 525 F. App'x 291 ( 2013 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 13a0433n.06
No. 12-5849 FILED
Apr 30, 2013
UNITED STATES COURT OF APPEALS DEBORAH S. HUNT, Clerk
FOR THE SIXTH CIRCUIT
In re: LORING E. JUSTICE, )
)
Petitioner. )
)
) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR
) THE EASTERN DISTRICT OF
) TENNESSEE
)
)
)
Before: MARTIN, SUHRHEINRICH, COLE, Circuit Judges.
PER CURIAM. Loring E. Justice appeals the order of the United States District Court for
the Eastern District of Tennessee disciplining him for unethical conduct—specifically, for filing a
fee petition in which Justice claimed fees for work that he himself had not entirely done. After an
investigation, a pre-hearing conference, and a four-day evidentiary hearing, during which Justice
testified for most of the time, the Eastern District of Tennessee issued an opinion and order
suspending Justice from practice before that court, ordering him to forfeit part of any fee he might
recover in the underlying case, and requiring him to pay the court’s costs for the proceeding. In re
Justice, No. 1:11-mc-3, 2012 WL 2374677 at *1 (E.D. Tenn. June 22, 2012). The district court
found, by clear-and-convincing evidence, that Justice engaged in unethical conduct. Because, on this
record, we find that the district court did not abuse its discretion in either affording Justice the
No. 12-5849
In re Loring Justice
process due to him or in finding by clear-and-convincing evidence that Justice committed
misconduct, we AFFIRM.
Justice contracted with Mr. K. (so-called in the district court to protect his identity), his
former law-school classmate (though not a licensed attorney), to serve as a paralegal in a personal
injury case Justice was litigating in the District Court for the Eastern District of Tennessee on behalf
of an injured worker. Mr. K., working as an independent contractor, submitted to Justice bi-weekly
invoices containing narrative descriptions of the work Mr. K. had performed on the case.
During the personal injury case, Justice moved for sanctions for the defendant’s discovery
abuse. The judge granted the motion in part, holding that the plaintiff, Justice’s client, would be
awarded the attorneys’ fees and costs associated with the discovery of a witness. Justice ultimately,
after several extensions of time, submitted his fee petition, in which he claimed, under penalty of
perjury, that he had performed work entitling him to fees of $300 per hour; entitling his associates
to $250 per hour; and entitling his paralegals to $90 per hour. In total, Justice sought $106,302.00
in fees, of which $97,650.00 represented hours Justice claimed he personally worked.
After Justice submitted the fee petition, Mr. K. told an attorney (representing Mr. K. in an
unrelated matter) that Justice had claimed, in his fee petition, to have performed work that Mr. K.
actually had performed. The attorney reviewed the fee petition and Mr. K.’s invoices and brought
the matter to the district court’s attention. The district court then reviewed the allegations and
determined both that the matter would require further investigation and that he would be unable to
do so; therefore, pursuant to local rule, the district court appointed a local attorney, C. Celeste
-2-
No. 12-5849
In re Loring Justice
Creswell, to conduct an investigation into whether Justice represented in the fee petition that he had
done work which Mr. K. had in fact performed.
Pursuant to local rule, the district court issued a show cause order directing Justice to reply,
within twenty days, answering why disciplinary action should not be taken against him. The show
cause order stated that Justice, in submitting the fee petition to the court, was representing that the
petition was accurate and reflected work he had personally performed, except for that work attributed
to his associates. The show cause order alleged that Justice wrongly attributed to him the work that
Mr. K. actually performed, such that Justice “essentially transposed Mr. K[.]’s time entries onto his
fee petition, thereby intentionally and falsely claiming the work as his own.” Thus, the court added,
Justice “inflated the amount of the claim and stood to personally benefit financially.” By doing so,
through this “knowing submission of a false and inflated fee petition,” the court concluded that
Justice had “called into question his fitness to be a member of the bar of this court and has hindered
the due administration of justice.”
In response to the show cause order, Justice denied the allegations it contained, maintaining
that he had personally worked all the time represented in the fee petition. Justice denied that he had
intentionally or deliberately attributed Mr. K.’s work to him, and he denied that he had substantially
copied the time entries and descriptions of work contained in Mr. K.’s invoices rather than relying
on his own time records. Justice further denied that he had demonstrated incompetence and lack of
the necessary skill to practice before the district court, and he denied that, in submitting the fee
petition, he had committed a criminal act reflecting adversely on his honesty, trustworthiness, or
fitness as a lawyer. Justice denied that his conduct in connection with the submission of a fee
-3-
No. 12-5849
In re Loring Justice
petition in the personal injury case had violated any ethics rule. Justice also requested a hearing on
the allegations.
After the district court held a pre-hearing conference, he held the requested hearing over four
days. Justice was represented by counsel, and Creswell acted as the Court’s agent in examining
witnesses. During the hearing, the district court heard testimony from Justice and Mr. K., and also
received affidavits from witnesses on Justice’s behalf.
The district court based the disciplinary order on having found, by clear and convincing
evidence, that Justice knowingly submitted a false and inflated fee petition, thereby both violating
the Tennessee Rules of Professional Conduct and engaging in unethical conduct tending to bring the
district court or bar into disrepute. The district court also found, by clear and convincing evidence,
that Justice failed to demonstrate the degree of competence required of attorneys admitted to the bar
of the Eastern District of Tennessee for three reasons: first, because he failed to maintain a
contemporaneous time record when it became apparent that there might be a discovery sanction;
second, because he claimed in the fee petition time for which he did not have the support of a
contemporaneous time record; and third, because he did not disclose to the court that he did not have
a contemporaneous time record to support the claims in the fee petition. The district court explained
his factual findings and reasoning behind the order in a written opinion. The order suspended Justice
from practice before the Eastern District of Tennesse for six months, although it allowed him to
litigate his pending fee petition before the court, should the judge hearing the matter allow him to
do so. The order also compelled Justice to forfeit to the United States twenty-five percent of any
award he might receive from the pending fee petition, up to a maximum of $25,000. Further, the
-4-
No. 12-5849
In re Loring Justice
order required Justice to pay the United States all costs that the court incurred in investigating the
matter and holding the hearing. The order required Justice to pay directly to the local attorney any
work she incurred after June 1, 2012, as well as any work she would perform in an appeal if he were
not to prevail. The order also made Justice’s reinstatement to the bar of the Eastern District of
Tennessee contingent upon his paying for all costs incurred by the court in this matter, including the
twenty-five percent fine. Justice moved for a new trial (although the Federal Rules of Civil
Procedure do not apply to this kind of proceeding) and, on the next day, timely appealed, seeking
our review of the order, which the district court stayed.
Our review of the record in the present case compels us to conclude that the district court did
not abuse its discretion either in applying the law or in assessing the evidence. The district court
followed the disciplinary procedure outlined by local rule, which it had applied in previous cases.
See In re Moncier, 550 F.Supp.2d 768, 773 (E.D. Tenn. 2008), aff’d, 329 F. App’x 636, 637 (6th Cir.
2009). Therefore, we AFFIRM.
-5-