Board of Professional Responsibility of The Supreme Court of Tennessee v. Loring Edwin Justice

07/02/2019
IN THE SUPREME COURT OF TENNESSEE
AT KNOXVILLE
May 31, 2019 Session Heard at Nashville
BOARD OF PROFESSIONAL RESPONSIBILITY OF THE SUPREME
COURT OF TENNESSEE v. LORING EDWIN JUSTICE
Direct Appeal from the Chancery Court for Knox County
No. 189578-1, 189418-3 Robert E. Lee Davies, Senior Judge
___________________________________
No. E2017-01334-SC-R3-BP
___________________________________
This lawyer-disciplinary proceeding stems from a Knoxville attorney’s conduct in a
federal personal injury lawsuit where the attorney represented the plaintiff. The federal
district court imposed a discovery sanction against the corporate defendant and ordered it
to pay the attorney’s fees and costs the plaintiff had incurred in locating and deposing a
witness the corporate defendant failed to disclose. When the plaintiff’s lawyer submitted
an itemization of fees and costs to the federal district court, the lawyer falsely claimed as
his own work the work that a paralegal had performed. The lawyer also submitted a
written declaration along with the itemization falsely claiming that he had kept
contemporaneous records of his time in the case and attesting to the truth and accuracy of
the itemization. The lawyer also requested in the itemization “grossly exaggerated and
unreasonable” attorney’s fees of more than $103,000 for work beyond the scope of the
federal district court’s order. Later, the lawyer testified falsely in a hearing before the
federal district court by reaffirming the truth and accuracy of the itemization and the
written declaration. A Hearing Panel of the Board of Professional Responsibility
(“Hearing Panel”) determined that the lawyer had violated four provisions of the
Tennessee Rules of Professional Conduct (“RPC”)—RPC 1.5(a) (Fees); RPC 3.3(a)
(Candor Toward the Tribunal); RPC 3.4(b) (Fairness to Opposing Party and Counsel);
and RPC 8.4(a) and (c) (Misconduct). The Hearing Panel found six aggravating and two
mitigating factors and sanctioned the lawyer with a one-year active suspension and
twelve additional hours of ethics continuing legal education. The Board of Professional
Responsibility (“Board”) and the lawyer appealed to the Chancery Court for Knox
County. Tenn. Sup. Ct. R. 9, § 1.3. The trial court affirmed the Hearing Panel’s findings
of fact and conclusions of law but modified the sanction to disbarment. The trial court
concluded that Standard 5.11 of the ABA Standards for Imposing Lawyer Sanctions
(“ABA Standards”), which identifies disbarment as the presumptive sanction, applies and
that the aggravating and mitigating factors do not warrant a lesser sanction than
disbarment. The lawyer appealed, and after carefully reviewing the record and applicable
authorities, we affirm the trial court’s judgment in all respects, including its modification
of the sanction to disbarment.
Tenn. Sup. Ct. R. 9, § 1.3 (currently Tenn. Sup. Ct. R. 9, § 33.1(d)) Direct Appeal;
Judgment of the Trial Court Affirmed
CORNELIA A. CLARK, J., delivered the opinion of the Court, in which JEFFREY S. BIVINS,
C.J., and SHARON G. LEE, HOLLY KIRBY, and ROGER A. PAGE, JJ., joined.
Linn Guerrero, Knoxville, Tennessee, for the appellant, Loring E. Justice.
Gerald Morgan and William C. Moody, Nashville, Tennessee, for the appellee, Board of
Professional Responsibility.
OPINION
I. Factual and Procedural Background
A. Hearing Panel Proof
Loring Edwin Justice grew up in Oak Ridge, Tennessee, obtained his
undergraduate degree in 1995 from the University of Tennessee, and in 1998, graduated
from Yale University School of Law. That same year he obtained his license to practice
law in Tennessee, and from 1998-1999, Mr. Justice worked as a judicial law clerk for a
judge of the United States Court of Appeals for the Sixth Circuit. After working the next
year as an associate at a Nashville law firm, in 2000, Mr. Justice returned to East
Tennessee and founded Loring Justice PLLC (“the law firm”), where he has practiced
ever since.
From May to September 2009, Mr. Benjamin Kerschberg worked for the law firm.
Mr. Justice and Mr. Kerschberg met while they were both students at Yale Law School.
They remained friends after law school and both served as judicial clerks for the same
federal circuit court judge. Mr. Kerschberg did not obtain his Tennessee law license, so
he worked as a contract paralegal for the law firm, and he billed the law firm for his
services by submitting invoices with narrative entries describing the tasks performed, the
date the services were rendered, and the time he spent on the tasks, in quarter-hour
increments.
-2-
During the time Mr. Kerschberg worked for the law firm, Mr. Justice represented
Scotty Thomas in a personal injury lawsuit (“the Thomas case”) in the United States
District Court for the Eastern District of Tennessee (“District Court”) against Lowe’s
Home Centers (“Lowe’s”). Mr. Thomas alleged that, on June 21, 2005, while he was
working for a merchandising company inside a Lowe’s store near Knoxville, a large stack
of metal roofing sheets collapsed on top of him, causing very serious injuries, including
brain damage. Lowe’s denied liability and also denied having any knowledge or records
showing that the incident occurred or that the merchandising company was in the Lowe’s
store on the date of the alleged incident.
Mr. Thomas recalled a female Lowe’s employee assisting him after the incident,
however, so during discovery Mr. Justice repeatedly asked Lowe’s to identify this
employee. Lowe’s failed to disclose this employee’s name, even though she was a
human resources manager for Lowe’s, was onsite at the Lowe’s store the day the incident
allegedly occurred, and made an appointment for Mr. Thomas at a health clinic the day of
the incident. In July 2010, Mr. Justice learned her identity from a medical record he
obtained by subpoena from the health clinic where Mr. Thomas was first treated for his
injuries.
By this time, Mr. Justice had already moved for a default judgment based on
Lowe’s discovery violations. The District Court held the motion in abeyance until
December 1, 2010, and then referred it to a federal magistrate judge, who concluded that
Lowe’s had failed to satisfy its discovery obligations and that “the Plaintiff should be
compensated for the labor and costs incurred in finding [the witness], because these costs
were necessitated by [Lowe’s] failure to properly investigate the allegations of this suit.”
The magistrate judge also recommended that Lowe’s “be required to pay all reasonable
fees and expenses incurred in locating and deposing [the witness], including attorneys’
fees, transcription costs, court reporter fees, and other costs” and that Mr. Justice be
required “to file an affidavit and/or documentation evidencing the fees, expenses, and
costs incurred.”
On March 15, 2011, the District Court adopted in part the magistrate judge’s
recommendations.1 The District Court required Lowe’s to “pay Plaintiff [Mr. Thomas]
all reasonable attorney’s fees and expenses incurred in locating and deposing [the
witness], including attorney’s fees, transcription costs, court reporter fees, and other
costs” and required Mr. Justice to provide the District Court by April 8, 2011,
“documentation evidencing the fees, expenses, and costs incurred, associated with the
discovery of [the witness].” The District Court gave Lowe’s fourteen days thereafter “to
1
The District Court did not accept the magistrate’s recommendation to bar Lowe’s from
presenting evidence at the trial that would dispute Mr. Thomas’s version of how the accident occurred.
-3-
file objections to the reasonableness of the fees and costs requested,” after which the
District Court would determine “the final amount of the monetary sanctions.”
Mr. Justice submitted a preliminary itemization by the initial deadline but obtained
an extension of time and submitted the final itemization and fee petition (“Itemization”)
to the District Court on April 22, 2011. The Itemization included 288 entries for work
and expenses incurred from January 9, 2009 to April 8, 2011, listed 371.5 hours of work
attributed to three lawyers and four assistants, and sought $106,302.00, which included
more than $103,000 in attorney’s fees. Of the attorney hours, 325.5 were attributed to
Mr. Justice and billed at the rate of $300 per hour. Only eleven hours were attributed to
Mr. Kerschberg and billed at the rate of $90 per hour. Along with the Itemization, Mr.
Justice submitted a written declaration attesting under penalty of perjury that he had
maintained contemporaneous records of the work performed on the Thomas case and that
the Itemization was true and correct.
Questions were raised in the District Court about the Itemization, in part because
several of the narrative entries purporting to describe Mr. Justice’s work were identical,
or nearly identical, to entries in the invoices Mr. Kerschberg had submitted to Mr.
Justice’s law firm from May to September 2009 describing Mr. Kerschberg’s work.
At a hearing in the District Court on February 17, 2012, Mr. Justice testified at
length, as did several other witnesses. Upon considering the proof, the District Court
suspended Mr. Justice from practicing law in the District Court for six months.2 Mr.
Justice appealed his suspension, but the United States Court of Appeals for the Sixth
Circuit affirmed, and the United States Supreme Court denied his petition for writ of
certiorari.
While the federal proceedings were pending, a lawyer with whom Mr. Kerschberg
had discussed the matter reported it to the Board. At Mr. Justice’s request, the Board
held its investigation in abeyance pending disposition of some of the federal proceedings.
Eventually, the Board completed its investigation and filed a petition for discipline
against Mr. Justice on September 25, 2013.3 The Board alleged that Mr. Justice had
violated RPC 1.5(a) (Fees), RPC 3.3(a)(1) (Candor Toward the Tribunal), RPC 3.4(b)
(Fairness to Opposing Party and Counsel), and RPC 8.4(a), (b), (c), and (d) (Misconduct).
2
The District Court never awarded any attorney’s fees and costs for Lowe’s discovery violation.
3
This Court revised Tennessee Supreme Court Rule 9 effective January 1, 2014. This
disciplinary proceeding, however, was initiated prior to January 1, 2014, and it is therefore governed by
the prior version of the rule. See Garland v. Board of Professional Responsibility, 536 S.W.3d 811, 816
(Tenn. 2017). Any references herein are to the pre-2014 version of Rule 9.
-4-
The Hearing Panel convened from January 20-23, 2015. The Board presented no
live witnesses. As for its claim that Mr. Justice violated RPC 1.5(a) by charging an
unreasonable attorney fee, the Board presented the District Court’s order and Mr.
Justice’s Itemization. The Board asserted that many of the entries in the Itemization were
for work completely unrelated to locating and deposing the witness, such as: (1) attending
the Tennessee Rule of Civil Procedure 26(f) discovery conference; (2) preparing the
initial written discovery; (3) preparing an amended complaint; (4) meeting with his client;
(5) reading hotel reservations; (6) researching electronic filing rules; (7) talking with the
clerk’s office about electronic filings; (8) practicing a motion argument in front of his
paralegal; (9) locating an expert witness; and (10) workshopping the case at the American
Association for Justice Deposition College.
The Board also introduced Mr. Kerschberg’s deposition upon written questions,
his 2009 invoices, and excerpts of his former testimony in the District Court to establish
that Mr. Justice had claimed Mr. Kerschberg’s work as his own. In his deposition and in
his testimony in the District Court, Mr. Kerschberg stated that he had personally
performed the work described in his invoices, that Mr. Justice had paid the invoices
without question, and that he had no knowledge of Mr. Justice ever recording his own
time on the Thomas case or on any other case. Mr. Kerschberg recognized the possibility
that Mr. Justice could have done work on the Thomas case without his knowledge that
was similar to his own, and he acknowledged using Mr. Justice’s notes on occasion to
describe his own work in the narrative invoice entries. But Mr. Kerschberg consistently
testified that the narrative invoice entries described his own work, not Mr. Justice’s work,
and maintained that, to his knowledge, Mr. Justice had never kept time on the Thomas
case or any other case.
The Board emphasized as well that seventeen Itemization entries were virtually
identical to entries in Mr. Kerschberg’s invoices in terms of the dates, descriptions of the
work, and time necessary to perform the tasks.4 A side-by-side comparison of the
Itemization and invoice entries appears below.
a. June 13, 2009
Kerschberg
1.25 Revision of Motion to Have Requests for Admission Deemed
Admitted.
4
Mr. Kerschberg recorded his time in quarter hour increments and used the initials “LJ” or
“Loring” to refer to Mr. Justice. Mr. Justice recorded his time in tenth of an hour increments.
-5-
Justice
1.2 Revision of Motion to Have Requests for Admission Deemed
Admitted
b. June 14, 2009
Kerschberg
2.25 Added Loring edits to Motion to Deem Requests for Admissions
admitted. Added section about Letter to Clint Woodfin and Motion to
Supplement. Researched electronic filing rules for the E.D. Tenn.
Researched proper procedure for filing Amended Complaint (Local Rules;
Scheduling Order; FRCP).
Justice
2.2 Edits to Motion to Deem Requests for Admissions admitted. Added
section about Letter to Clint Woodfin and Motion to Supplement.
Researched electronic filing rules for the E.D. Tenn.
c. June 16, 2009
Kerschberg
2.5 All final preparations of Amended Complaint and Motion to Deem
Requests For Admissions Deemed Admitted. Preparation of all PDF
exhibits. Compilations of files. Filing with E.D. Tenn. via ECF. Hard
copies of everything for file.
Justice
2.5 All final preparations of Amended Complaint and Motion to Deem
Requests for Admissions Deemed Admitted. Preparation of all PDF
exhibits. Compilation of files. Filing with E.D. Tenn. via ECF. Hard
copies of everything for file.
d. June 16, 2009
Kerschberg
3.0 Edited Motion to Compel Discovery and Memorandum In Support
thereof prepared by Juliane Moore.
Justice
3.0 Preparation and editing of Motion to Compel Discovery and
Memorandum In Support partially prepared by legal assistant
-6-
e. June 17, 2009
Kerschberg
1.0 Talked to Angela Brush at district court to correct misunderstandings
re our filings. Second conversation with LJ about Consent Motion To
Amend with Clint Woodfin. Drafted Consent Motion for review by Clint
Woodfin.
Justice
1.0 Talked to Angela Brush at district court to correct misunderstandings
re our filings
f. June 17, 2009
Kerschberg
4.0 Continued to revise and rewrite Motion to Compel Discovery.
Justice
4.0 Continued to research, revise and rewrite Motion to Compel
Discovery
g. June 18, 2009
Kerschberg
4.5 Motion to Compel Discovery.
Justice
4.5 Continued research, revision and refinement of Motion to Compel
Discovery
h. June 19, 2009
Kerschberg
.5 Letter to Bob Davies regarding additional materials needed from
MSG.
Justice
.5 Letter to Bob Davies regarding additional materials needed from
MSG about the project
i. July 16, 2009
Kerschberg
.25 Reviewed Loring’s notes from meeting with Clint Woodfina [sic]
and calendared follow-up call to Cory re: Clint’s call.
-7-
Justice
.2 Reviewed notes from meeting with Clint Woodfin and calendared
follow-up call to Cory Kitchen re: Clint’s call
j. July 22, 2009
Kerschberg
5.0 Drafted and typed memo for trip to Alabama.
Justice
5.0 Drafted and typed memo for trip to Florence, Alabama to meet with
Plaintiff’s MSG co-workers. This memo summarized the liability issues in
the case and listed important questions to ask to try to understand whether it
was plausible Lowe’s could lack notice and to prove Lowe’s indeed had
notice and to gain physical descriptions of individuals of interest
k. July 27, 2009
Kerschberg
4.5 Reviewed all notes from our trip to Alabama and compiled Master
To-Do List for Loring and BG. Drafted Affidavits of Kitchen, Yeates, and
McBride. Online research re: Teresa Beavers (Lowe’s Manager).
Justice
4.5 Reviewed all notes from our trip to Alabama to meet with the MSG
witnesses and compiled Master To-Do List. Drafted Affidavits of Kitchen,
Yeates, and McBride. Online research re: Teresa Beavers (Lowe’s
Manager)5
l. July 29, 2009
Kerschberg
.25 Revisions of Affidavits of Kitchen, Yeates, and McBride.
Justice
.2 Revisions of Affidavits of Kitchen, Yeates, and McBride
5 The Board also introduced an entry from Mr. Justice’s preliminary Itemization in which Mr.
Justice referred to himself in the third person as “Loring.” This entry stated in relevant part, “Reviewed
all notes from our trip to Alabama to meet with the MSG witnesses and compiled Master To-Do List for
Loring and B. Griffith, summer clerk.” The Board alleged that this reference resulted from Mr. Justice
copying Mr. Kerschberg’s invoice. This third-person reference was omitted from Mr. Justice’s final
Itemization.
-8-
m. August 8, 2009
Kerschberg
4.0 Coordinated with Debi Dean to make sure that Randy, Bradley and
Corey will sign Affidavits and get them back to us notarized. Prepared
final versions with LJ edits. Two versions for Bradley and Cory—one with
and one without Teresa Beavers. Researched FRCP and EDTN Rules re:
timeliness of Notice of Filing with respect to Hearing Date. Drafted Notice
of Filing. Drafted Memorandum to accompany Notice of Filing for filing
with the court this week.
Justice
3.0 Coordinated with Debi Dean of Alabama Head Injury Foundation to
make sure that Randy, Bradley, and Corey will sign Affidavits and get them
back to us notarized. Reviewed legal assistant’s research of FRCP and
EDTN Rules re: timeliness of Notice of Filing with respect to Hearing
Date. Drafted Notice of Filing. Drafted Memorandum to accompany
Notice of Filing for filing with the court this week.
n. August 10, 2009
Kerschberg
.5 Coordination of all Affidavit signings, etc. with Debi Dean.
Justice
.5 Coordination of all Affidavit signings, etc. with Debi Dean
o. August 27, 2009
Kerschberg
5.0 Reviewed file and all FRCP related to discovery to look at options
and obligations for supplementation before the September 14 hearing, as
well as the possibility of fee shifting.
Justice
5.0 Reviewed file and all FRCP related to discovery to look at options
and obligations for supplementation before the September 14 hearing, as
well as the possibility of fee shifting and sanctions
p. August 31, 2009
Kerschberg
2.0 Prepared outline for Loring as to action plan before September 14
hearing. Researched Lowe’s Loss/Safety Prevention Manager. Drafted
proposed Interrogatory re: iinformation [sic] on who held that position at
-9-
the time of the accident. Revised and prepared cover letters to Clint
Woodfin and Clerk’s office.
Justice
2.0 Prepared outline as to action plan before September 14 hearing.
Researched Lowe’s Loss/Safety Prevention Manager. Drafted proposed
Interrogatory re: information on who held that position at the time of the
accident. Revised and prepared cover letters to Clint Woodfin and Clerk’s
office
q. September 9, 2009
Kerschberg
1.25 Reviewed our initial disclosures and discovery responses to see what
needs to be supplemented. Reviewed all supplemental materials provided
by Clint Woodfin. Detailed email to Loring reviewing thoughts on the
supplemental documents and possible RFPs. Google search for the two
other female managers mentioned by Clint Woodfin. Results in email to
LJ. Email to Mike Conley on Listserv re: obtaining the good information
he has re falling products litigation.
Justice
1.2 Detailed email to file and staff after reviewing supplemental
documents of defendant and possible RFPs. Google search for the two
other female managers mentioned by Clint Woodfin.
The Board additionally offered into evidence an April 11, 2011 email by which
Mr. Justice transmitted the initial Itemization to Mr. Kerschberg for review.6 This email
stated:
Thanks for the email Kersch. I billed a lot of time for my reading
your work rather than you doing it so you won’t have to testify if it
comes to that. Hope you are not mad about that. I really appreciate
you. Tell me what you think of this. What a war.
The Board pointed out that the Itemization did not include a single entry for time Mr.
Justice spent “reading” Mr. Kerschberg’s work.
6
The record does not support Mr. Justice’s assertion that this e-mail was marked for
identification but not received into evidence.
- 10 -
By agreement, the Board and Mr. Justice introduced excerpts of Mr. Justice’s
former testimony from the District Court hearing. The Board presented Mr. Justice’s
testimony denying that he had wrongly attributed Mr. Kerschberg’s work to himself in
the Itemization, reaffirming the accuracy of the Itemization, and maintaining that he had
contemporaneously recorded the time he spent working on the federal case. The Board
also introduced the written declaration Mr. Justice had submitted along with the
Itemization, in which he reaffirmed that he had performed the work claimed in the
Itemization, that he had contemporaneously recorded his time for the work claimed in the
Itemization, and that the Itemization was true and accurate—all claims that the Board
alleged were false.
When the Board closed its proof, Mr. Justice moved for involuntary dismissal, but
the Hearing Panel denied his motion. Mr. Justice then presented his proof, which
consisted of written exhibits, including excerpts of testimony given in the District Court
hearing, as well as the in-person testimony of Chad Rickman, an associate with Mr.
Justice’s law firm, and Mr. Justice’s own in-person testimony.
Mr. Rickman testified that the law firm is contingency-fee based, does not have a
billing system, and does not typically require employees and lawyers to record time. Mr.
Rickman did not work at the law firm when Mr. Kerschberg worked there and first
worked on the Thomas case in July 2010. But, Mr. Rickman recalled Mr. Justice
instructing all law firm employees and lawyers to record their time on the Thomas case.
Mr. Rickman had recorded his time either on handwritten notes or in emails. Clerical
staff used the notes and emails to enter his time into a Word document that included the
time of all law firm personnel on the Thomas case. As an example of his own time
records, Mr. Rickman produced an April 2011 email reporting his time. But this email
was sent after the District Court filed its order awarding the discovery sanction, and Mr.
Rickman could not produce any email or note predating the District Court’s order by
which he had reported time on the Thomas case.
As for the Word document containing all of the time records for personnel of the
law firm on the Thomas case, Mr. Rickman stated that it became the Itemization that Mr.
Justice filed in the District Court. But Mr. Rickman had not seen the Word document in
any format other than the Itemization, and he had first seen the Itemization only after the
District Court awarded the discovery sanction.
Mr. Rickman acknowledged that he had reviewed the Itemization before it was
filed to eliminate confidential work product and to ensure that the entries were
appropriate and not duplicative. But Mr. Rickman neither reviewed Mr. Kerschberg’s
invoices nor compared the Itemization to any other time records. As for the scope of the
Itemization, Mr. Rickman disagreed with the Board’s assertion that the Itemization
sought unreasonable fees by listing tasks that were beyond the scope of the District
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Court’s order. Mr. Rickman, like Mr. Justice, interpreted the District Court’s order as
awarding “all fees and expenses associated with all the extra work that had to be done
since the initial disclosure because of Lowe’s discovery abuse.” Mr. Rickman said that
he and Mr. Justice never really considered interpreting the District Court’s order
narrowly as authorizing only fees associated with finding and deposing the witness
because that interpretation “seemed pretty inconsistent with what the [magistrate judge]
and [the District Court] had said.” Mr. Rickman maintained that Mr. Justice had intended
to give any monetary sanction awarded to Mr. Thomas. Mr. Rickman believed that
federal law generally requires paying discovery sanctions to clients, and he interpreted
the District Court’s order as requiring Lowe’s to pay the sanction to Mr. Thomas.
In general, both in the District Court and before the Hearing Panel, Mr. Justice
testified consistently with Mr. Rickman. Mr. Justice agreed, for example, that ordinarily
neither he nor anyone else at the law firm records time. Mr. Justice said that the Thomas
case was the exception and that he began keeping contemporaneous time records on the
Thomas case and requiring all other law firm personnel to do so around the discovery
conference on December 10, 2008, because he believed Lowe’s blanket denials would
eventually result in a discovery sanction. Mr. Justice stated that he recorded his own time
either by personally entering it into the Word document or by giving clerical staff his
handwritten time records to enter into the Word document. But Mr. Justice was unable to
produce any handwritten note or email recording his own time on the Thomas case, and
he could not recall the name of the Word document. Like Mr. Rickman, Mr. Justice said
that all time records on the Thomas case were entered into the Word document. He
explained that the Word document was either emailed around the law office or saved to
portable drives and copied to various law firm computers for various personnel to enter
time. He testified that the Word document had been overwritten each time data was
entered and that earlier versions of the document had not been saved. According to Mr.
Justice, the Word document eventually became the Itemization that was filed in the
District Court.
Mr. Justice attempted to locate earlier versions of the Word document after
questions were raised about the Itemization in the District Court. He had instructed the
law firm’s in-house technology staff to search for earlier versions of it. He also engaged
an outside computer consultant to search the law firm’s computers for earlier versions of
the Word document. Eventually, four versions of the Word document were located, but
none predates the District Court’s order awarding the discovery sanction.
Mr. Justice opined that no earlier version of the Word document was located
because it was overwritten each time data was entered and because the law firm
computers used a “defragmenting” process. According to Mr. Justice, this process made
it difficult or impossible to recover earlier versions of Word documents. Mr. Justice said
that he had turned off this process after the Itemization was questioned in the District
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Court. Mr. Rickman corroborated Mr. Justice’s testimony on this point, saying that he
remembered Mr. Justice frantically going to each computer in the office to turn off the
defragmenting process.
Concerning the seventeen Itemization entries, Mr. Justice denied copying Mr.
Kerschberg’s invoices and again maintained, as he had in the District Court, that he had
personally performed the work described in the Itemization and that he had
contemporaneously recorded his time, meaning within seven-to-ten days of completing
the work. Mr. Justice offered various explanations for the similarities between his
Itemization entries and Mr. Kerschberg’s invoice entries. He posited that Mr. Kerschberg
may have copied his notes when creating the invoice entries, and, as support for this
theory, pointed to Mr. Kerschberg’s acknowledgment that he had occasionally used Mr.
Justice’s notes to create his own invoice entries. Mr. Justice speculated that law firm
personnel, including Mr. Rickman, may have mistakenly entered or incorrectly assigned
time when preparing the Itemization. Mr. Justice also implied that Mr. Kerschberg may
have gained unauthorized access to the firm’s computers and manipulated the
Itemization. To support this suggestion, Mr. Justice described Mr. Kerschberg’s father as
a nationally known computer expert and said that the law firm’s technology staff had
discovered oddities in the law firm’s computer system during the federal proceedings,
including the forwarding of emails from Mr. Kerschberg’s deactivated account to another
email address associated with Mr. Kerschberg.
Mr. Justice emphasized as well that, although he had not copied Mr. Kerschberg’s
invoice entries, doing so would not have been improper because he had actually
performed the tasks described in the Itemization entries. Mr. Justice reaffirmed the truth
and accuracy of the Itemization and his assertion that he and Mr. Kerschberg had
performed the same or similar work (including clerical tasks), on the same date, and for
exactly, or almost exactly, the same amount of time.
Mr. Justice agreed that the law firm had paid Mr. Kerschberg in 2009 without
questioning the charges or the entries describing his work. When asked by the Hearing
Panel to review Mr. Kerschberg’s invoices and point out errors, Mr. Justice identified
only typos and misnomers and nothing substantial. When asked the meaning of his April
11, 2011 email to Mr. Kerschberg stating that he had billed “a lot of time” for “reading”
Mr. Kerschberg’s work, Mr. Justice explained that this statement merely reflected the
“Chamberlain” principle that he had followed when preparing the Itemization. Mr.
Justice said that, under this Chamberlain principle, which he purportedly derived from
Chamberlain Mfg. Corp. v. Maremont Corp., 92-C-0356, 1995 WL 769782, at 1 (N.D.
Ill. Dec. 29, 1995), any duplicative work he and Mr. Kerschberg performed could be
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billed at the higher attorney rate.7 By ascribing this meaning to the email, Mr. Justice
also implicitly answered the question of why the Itemization had not included any entries
for Mr. Justice “reading” Mr. Kerschberg’s work.
With respect to the Board’s assertion that the Itemization sought unreasonable fees
for tasks far exceeding the scope of the District Court’s order, Mr. Justice asserted that
the Lowe’s discovery violation had impacted the entire case, causing much more work
than otherwise would have been necessary. Mr. Justice maintained that the Itemization
had been conservative and had included only a portion of the time for the extra work
necessitated by Lowe’s discovery violation. As did Mr. Rickman, Mr. Justice interpreted
the District Court’s order as broader than its literal language and as encompassing fees
for any and all extra work stemming from Lowe’s discovery violation. Like Mr.
Rickman, Mr. Justice stated that federal law requires paying discovery sanctions to
clients, and as a result, Mr. Justice claimed that he had no financial incentive to inflate
the fees sought by the Itemization. Mr. Justice also claimed that even if he had not been
required to do so by federal law, he would have given the sanction to Mr. Thomas
because Mr. Thomas needed the money more than the law firm.
B. Hearing Panel’s Decision
At the conclusion of the proof, the Hearing Panel took the matter under
advisement and allowed the parties to submit post-hearing proposed findings of fact and
conclusions of law. The Hearing Panel issued its twenty-five-page written decision on
March 9, 2015. The Hearing Panel concluded that Mr. Justice had violated RPC 1.5(a)
(Fees);8 RPC 3.3(a) (Candor Toward the Tribunal);9 RPC 3.4(b) (Fairness to Opposing
Party and Counsel);10 and RPC 8.4(a) and (c) (Misconduct).11 Although the Board’s
7
As explained more fully herein, contrary to Mr. Justice’s argument, Chamberlain does not stand
for the proposition that an attorney can charge a higher rate when duplicating a paralegal’s work. 1995
WL 769782, at *9.
8
“A lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an
unreasonable amount for expenses.” Tenn. Sup. Ct. R. 8, RPC 1.5(a).
9
“A lawyer shall not knowingly make a false statement of fact or law to a tribunal . . . .” Tenn.
Sup. Ct. R. 8, RPC 3.3(a)(1).
10
“A lawyer shall not . . . falsify evidence [or] counsel or assist a witness to offer false or
misleading testimony . . . .” Tenn. Sup. Ct. R. 8, RPC 3.4(b).
11
“It is professional misconduct for a lawyer to (a) violate or attempt to violate the Rules of
Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another”
- 14 -
prehearing brief had listed ABA Standards 5.11 and 6.11,12 both of which identify
disbarment as the applicable presumptive sanction, the Hearing Panel failed to reference
any ABA Standard establishing a presumptive sanction. Rather the Hearing Panel
discussed aggravating and mitigating factors, found six aggravating and two mitigating
factors, and imposed a sanction of one-year active suspension and twelve additional
hours of ethics continuing legal education. The Hearing Panel found that:
(1) Mr. Kerschberg’s invoices described work he had done;
(2) Mr. Justice’s testimony that he had worked the time in the seventeen
matching entries was not credible, and Mr. Justice’s explanations for why
the entries were nearly identical were implausible;
(3) Mr. Justice’s April 11, 2011 email to Mr. Kerschberg was actually an
acknowledgment that Mr. Justice had claimed time on the Itemization for
himself for work Mr. Kerschberg had actually performed, and Mr. Justice’s
assertion that it merely advised of his use of the Chamberlain principle was
implausible;
(4) The credibility of Mr. Justice’s testimony concerning his work was “further
called into question by his demeanor on the witness stand” because Hearing
Panel questions were “often met with lengthy periods of silence prior to
or “(c) engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.” Tenn. Sup. Ct. R. 8,
RPC 8.4(a), (c).
12
ABA Standard 5.11 provides:
Disbarment is generally appropriate when:
a. a lawyer engages in serious criminal conduct a necessary element of which
incudes intentional interference with the administration of justice, false
swearing, misrepresentation, fraud, extortion, misappropriation, or theft . . .
or
b. a lawyer engages in any other intentional conduct involving dishonesty,
fraud, deceit, or misrepresentation that seriously adversely reflects on the
lawyer’s fitness to practice.
ABA Standard 6.11 provides:
Disbarment is generally appropriate when a lawyer, with the intent to deceive the
court, makes a false statement, submits a false document, or improperly
withholds material information, and causes serious or potentially serious injury to
a party, or causes a significant or potentially significant adverse effect on the
legal proceeding.
- 15 -
answering the question” and Mr. Justice’s answers to Hearing Panel
questions about the Itemization were “often evasive;”
(5) Regarding the seventeen nearly identical entries, Mr. Justice knew he was
representing to the District Court that he had performed work that actually
had been performed by another;
(6) By claiming to have performed work performed by Mr. Kerschberg, Mr.
Justice gave a false statement under oath;
(7) Mr. Justice knowingly testified falsely before the District Court by
testifying that he worked the time attributed to him in the Itemization and
by testifying that he kept a contemporaneous record of his time;
(8) By claiming in the Itemization to have performed work actually performed
by Mr. Kerschberg, Mr. Justice made a false statement of fact to a tribunal
in violation of RPC 3.3(a)(1) (Candor Toward the Tribunal);
(9) By testifying falsely before the District Court that he made no false
statements in the Itemization, personally worked the time attributed to him,
and kept a contemporaneous record of his time, Mr. Justice made false
statements of fact to a tribunal in violation of RPC 3.3(a)(1) (Candor
Toward the Tribunal);
(10) Numerous entries in the Itemization were unrelated to locating and
deposing [the witness] and exceeded the scope of the District Court’s order;
(11) By including numerous items that far exceeded the scope of the District
Court’s order, the fee petition requested an unreasonable fee in violation of
RPC 1.5(a);
(12) By adopting work as his own that was actually performed by Mr.
Kerschberg, Mr. Justice falsified evidence in violation of RPC 3.4(b)
(Fairness to Opposing Party and Counsel);
(13) By violating the foregoing ethical rules, Mr. Justice violated RPC 8.4(a)
and (c) (Misconduct);
(14) The proof established the following aggravating factors: (a) a dishonest or
selfish motive; (b) a pattern of misconduct; (c) multiple offenses; (d)
submission of false evidence; (e) false statements or other deceptive
practices during the disciplinary process; (f) refusal to acknowledge
- 16 -
wrongful nature of conduct; and (g) substantial experience in the practice of
law;[13]
(15) The proof established the following two mitigating factors—(a) absence of
a prior disciplinary record and (b) the imposition of other penalties or
sanctions (the six-month suspension from the practice of law by the District
Court);[14]
(16) The proper sanction, after weighing aggravating and mitigating factors, is a
one-year active suspension and twelve additional hours of continuing legal
education in ethics.
C. Trial Court Proceedings
Both Mr. Justice and the Board appealed from the Hearing Panel’s decision. Mr.
Justice raised many issues, but the Board argued only that the Hearing Panel erred by
suspending rather than disbarring Mr. Justice. The trial court affirmed the Hearing
Panel’s findings of fact but modified the sanction to disbarment. In doing so, the trial
court emphasized that the Hearing Panel had failed to begin its analysis with any ABA
Standard that identified the presumptive sanction for the factual circumstances. The trial
court determined that ABA Standard 5.11(b), which identifies disbarment as the
presumptive sanction, applies in these circumstances.15 After considering the aggravating
and mitigating factors, the trial court imposed the presumptive sanction, finding no basis
to impose a lesser sanction. In explaining its decision in an order filed February 2, 2017,
the trial court stated:
This Court is reluctant to impose the sanction of disbarment upon a
lawyer with no prior disciplinary offenses. The comments to ABA
Standard 5.11 state “in imposing final discipline in such cases, most courts
impose disbarment of lawyers who are convicted of serious felonies.”
However, the intentional deceit by [Mr.] Justice on the opposing party, [and
the federal judges], along with the refusal to acknowledge the wrongful
nature of his conduct and the total lack of remorse leaves this Court with no
alternative.
13
See ABA Standard 9.22.
14
See ABA Standard 9.32.
15
The trial court concluded that ABA Standard 6.11 does not apply in these circumstances,
although it also identifies disbarment as the presumptive sanction.
- 17 -
Mr. Justice then moved to alter or amend the judgment, challenging, among other
things, the trial court’s modification of the sanction to disbarment. In a fifteen-page order
filed May 31, 2017, the trial court addressed and rejected each of Mr. Justice’s claims.
With respect to the sanction, the trial court stated:
Although the Court believed the sanction of disbarment was justified
in this case, the Court acknowledges it was reluctant to impose such a
severe sanction on Mr. Justice. However, any lingering doubt as to the
disbarment of Mr. Justice has been obliterated by his motion to alter or
amend. [Mr.] Justice blames everyone and everything for his predicament,
other than his own misconduct.
II. Standard of Review
This Court recently reaffirmed the familiar standard of review that applies
in lawyer-disciplinary appeals, stating:
The Tennessee Supreme Court is the final arbiter of the professional
conduct of all lawyers practicing in Tennessee, Sneed v. Bd. of Prof’l
Responsibility, 301 S.W.3d 603, 612 (Tenn. 2010), and the source of
authority of the Board and all its functions, Long v. Bd. of Prof’l
Responsibility, 435 S.W.3d 174, 178 (Tenn. 2014) (citing Brown v. Bd. of
Prof’l Responsibility, 29 S.W.3d 445, 449 (Tenn. 2000)). Attorneys
charged with disciplinary violations have a right to an evidentiary hearing
before a hearing panel, which determines whether a violation has occurred
and, if so, the appropriate sanction for the violation. Bd. of Prof’l
Responsibility v. Daniel, 549 S.W.3d 90, 99 (Tenn. 2018) (citing Maddux
v. Bd. of Prof’l Responsibility, 409 S.W.3d 613, 621 (Tenn. 2013)). Either
party dissatisfied with the hearing panel’s decision may appeal to the circuit
or chancery court, where review is conducted upon “the transcript of the
evidence before the hearing panel and its findings and judgment.” Tenn.
Sup. Ct. R. 9, § 1.3 (currently § 33.1(d)). Either party dissatisfied with the
trial court’s decision may appeal directly to this Court, which will resolve
the appeal based “upon the transcript of the record from the circuit or
chancery court, which shall include the transcript of evidence before the
hearing panel.” Id. This Court applies the same standard of review as the
trial court, Daniel, 549 S.W.3d at 100, and determines whether the hearing
panel’s findings, inferences, conclusions, or decisions are:
(1) in violation of constitutional or statutory provisions; (2) in
excess of the panel’s jurisdiction; (3) made upon unlawful
procedure; (4) arbitrary or capricious or characterized by
- 18 -
abuse of discretion or clearly unwarranted exercise of
discretion; or (5) unsupported by evidence which is both
substantial and material in the light of the entire record.
Id. § 1.3 (currently 33.1(b)). In determining whether substantial and
material evidence supports a hearing panel’s decision, this Court evaluates
whether the evidence “furnishes a reasonably sound factual basis for the
decision being reviewed.” Sneed, 301 S.W.3d at 612 (quoting Threadgill v.
Bd. of Prof’l Responsibility, 299 S.W.3d 792, 807 (Tenn. 2009), overruled
on other grounds by Lockett v. Bd. of Prof’l Responsibility, 380 S.W.3d 19,
27–28 (Tenn. 2012)); see also Sallee v. Bd. of Prof’l Responsibility, 469
S.W.3d 18, 36 (Tenn. 2015).
We review questions of law de novo but do not substitute our
judgment for that of a hearing panel as to the weight of the evidence on
questions of fact. Daniel, 549 S.W.3d at 100 (citing Maddux, 409 S.W.3d
at 622); see also Tenn. Sup. Ct. R. 9, § 33.1(b) (2018) (stating that in
determining the substantiality of evidence, the court shall not substitute its
judgment for that of the hearing panel as to the weight of the evidence on
questions of fact).
Finally, this Court’s review of attorney disciplinary appeals is
conducted in light of our inherent power to promulgate and enforce
disciplinary rules and to ensure that these rules are enforced in a manner
that preserves both the integrity of the bar and the public trust in our system
of justice. See Hughes v. Bd. of Prof’l Responsibility, 259 S.W.3d 631,
647 (Tenn. 2008).
Green v. Bd. of Prof’l Responsibility of Supreme Court of Tennessee, 567 S.W.3d
700, 712–13 (Tenn. 2019) (footnote omitted). With these principles in mind, we
evaluate Mr. Justice’s claims.16
16
Mr. Justice lists seventeen issues in the appropriate section of his brief but also advances many
others in the argument portion of his brief. We decline to separately address each issue raised because
many have not been properly preserved and others are too outlandish to dignify with discussion. For
example, at oral argument, Mr. Justice argued through counsel that he should receive a new hearing
because the trial judge’s given name illustrates bias. Not only is this argument without merit, it is absurd.
- 19 -
III. Analysis
A. Rulings on the Admissibility of Evidence
Mr. Justice challenges the Hearing Panel’s rulings on certain evidence. As the
challenger, Mr. Justice bears the burden of establishing that the Hearing Panel abused its
discretion. Bd. of Prof’l Responsibility of Supreme Court of Tennessee v. Sheppard, 556
S.W.3d 139, 146 (Tenn. 2018). A hearing panel abuses its discretion by applying an
incorrect legal standard or reaching a decision that is against logic or reasoning and
which causes an injustice to the party complaining. Id. Under this deferential standard of
review, if reasonable minds can disagree about the propriety of a hearing panel’s
decision, this Court will uphold the ruling. Id.
Mr. Justice argues that the Hearing Panel erred by excluding the written
declaration of Yalkin Demirkaya, the independent computer consultant he engaged to
search the law firm’s computers for the Word document. Because the Board introduced
excerpts of Mr. Justice’s testimony from the District Court hearing, Mr. Justice claims
that the rule of completeness embodied in Tennessee Rule of Evidence 106 entitled him
to introduce Mr. Demirkaya’s written declaration, which was admitted into evidence in
the District Court hearing by agreement of the parties. The Board argues that Rule 106
does not entitle Mr. Justice to introduce a writing prepared by another person. The Board
is correct.
Tennessee Rule of Evidence 106 provides:
When a writing or recorded statement or part thereof is introduced by a
party, an adverse party may require the introduction at that time of any
other part or any other writing or recorded statement which ought in
fairness to be considered contemporaneously with it.
Tenn. R. Evid. 106. This evidentiary rule:
reflects a concern for fairness and is designed to let the jury assess related
information at the same time rather than piecemeal. This should help the
jury avoid being misled by hearing only partial information about a writing
or recorded statement. Moreover, it will assist the jury in assessing the
weight to be given to the written or recorded statement by permitting the
jury to consider at the same time other relevant writings and recordings.
Neil P. Cohen, Sarah Y. Sheppeard, and Donald F. Paine, Tennessee Law of Evidence §
1.06[2][a] (6th Ed. 2011 LexisNexis Matthew Bender) (footnotes omitted). Applied in
this case, Rule 106 means that when the Board introduced excerpts of Mr. Justice’s
- 20 -
testimony in the District Court, then Mr. Justice could have introduced any other parts of
his own testimony that “ought in fairness to be considered contemporaneously with it.”
Tenn. R. Evid. 106; see also State v. Keough, 18 S.W.3d 175, 182 (Tenn. 2000)
(explaining how Rule 106 applies in criminal cases). The Hearing Panel appropriately
allowed Mr. Justice to introduce other parts of his District Court testimony. Rule 106 did
not authorize Mr. Justice to introduce the testimony or proof other persons provided in
the District Court. The Hearing Panel thus did not abuse its discretion by excluding Mr.
Demirkaya’s written declaration.
Also without merit is Mr. Justice’s assertion that the Hearing Panel erred by
admitting Mr. Kerschberg’s testimony by written deposition. Tennessee Rule of Civil
Procedure 32.01 provides:
At the trial or upon the hearing of a motion or an interlocutory proceeding,
any part or all of a deposition, so far as admissible under the Tennessee
Rules of Evidence applied as though the witness were then present and
testifying, may be used against any party who was present or represented at
the taking of the deposition or who had reasonable notice thereof . . . .
Tenn. R. Civ. P. 32.01. Mr. Justice initiated Mr. Kerschberg’s deposition and obviously
had notice of it. Additionally, the record belies his assertion that the Hearing Panel and
trial court improperly limited his opportunity to impeach Mr. Kerschberg on grounds of
Mr. Kerschberg’s mental health. As the trial court pointed out, Mr. Justice failed to
proffer redirect questions after he was served with the Board’s cross-examination
questions, and this was the proper procedure for initiating redirect when a witness is
deposed upon written questions. See Tenn. R. Civ. P. 31.01 (describing the procedure for
depositions upon written questions and stating that “[w]ithin 10 days after being served
with cross questions, a party may serve redirect questions upon all other parties” and
“[w]ithin 10 days after being served with redirect questions, a party may serve recross
questions upon all other parties”). This issue is without merit.
B. Interference with Decision to Testify
Mr. Justice argues that the Hearing Panel deprived him of the ability to make an
intelligent choice about testifying when it delayed ruling on whether it could draw an
adverse inference from his invocation of his constitutional privilege against self-
incrimination in his prehearing deposition. This argument, too, is without merit.
On the first day of the hearing, January 20, 2015, the Hearing Panel ruled that
Akers v. Prime Succession of Tennessee, Inc., 387 S.W.3d 495 (Tenn. 2012) applies to
attorney-disciplinary proceedings. Under Akers, “the trier of fact may draw a negative
inference from a party’s invocation of the Fifth Amendment privilege in a civil case only
- 21 -
when there is independent evidence of the fact to which a party refuses to answer by
invoking his or her Fifth Amendment privilege.” Id. at 506–07. The Hearing Panel
reserved its ruling on whether it would actually draw an adverse inference based on Mr.
Justice’s invocation of the privilege at his prehearing deposition until after the Board
presented its proof so that it could determine whether the requirements of Akers had been
satisfied.
As already noted, the Board did not call Mr. Justice as a witness at the hearing, but
it introduced excerpts of his former testimony in the District Court and also the transcript
of his deposition. Mr. Justice also introduced excerpts of his former testimony in the
District Court.17 When the Board closed its proof, Mr. Justice moved for an involuntary
dismissal, arguing that the Board had failed to prove its case. The Hearing Panel denied
this motion. Mr. Justice then asked for permission to delay the presentation of his proof
until the next day so that he would have the opportunity to decide overnight, after
consultation with his attorney, whether to testify in his own behalf. The Hearing Panel
granted this request. When the proceedings resumed the next day, Mr. Justice chose to
testify, although he asserted before doing so that the Hearing Panel had erred by ruling
that Akers applies to lawyer disciplinary proceedings. In its written ruling, the Hearing
Panel expressly declined to draw an adverse inference against Mr. Justice for his
invocation of the right against self-incrimination and explicitly based its decision on the
evidence presented at the hearing. The trial court affirmed the Hearing Panel’s decision.
As the foregoing recitation illustrates, the Hearing Panel ruled before the hearing
began on whether it could draw an adverse inference from Mr. Justice’s prehearing
invocation of his privilege against self-incrimination. After the Board presented its proof,
the Hearing Panel allowed Mr. Justice another evening to consult with his attorney and
decide whether he would testify. The Hearing Panel did not interfere with or hinder Mr.
Justice from intelligently deciding whether to testify.18
17
For reasons not clear from the record, Disciplinary Counsel apparently agreed not to argue that
Mr. Justice had implicitly waived his right to invoke the privilege against self-incrimination in the
disciplinary proceeding by testifying in the District Court.
18
Because the Hearing Panel expressly declined to draw an adverse inference from Mr. Justice’s
prehearing invocation of his privilege against self-incrimination, we need not address Mr. Justice’s
assertion that the Hearing Panel erred by ruling that an adverse inference may be drawn from an
attorney’s invocation of the privilege in a lawyer-disciplinary proceeding. See People v. Robnett, 859
P.2d 872, 875 (Colo. 1993) (“We need not resolve the question whether the fact finder in an attorney
disciplinary proceeding may draw a negative inference from an attorney-respondent’s invocation of the
Fifth Amendment privilege against self-incrimination, however, because there is no indication that the
hearing board below drew any such inference.”). We reserve decision on this issue of first impression for
another day. We note that courts in Georgia, New York, and Wisconsin have allowed an adverse
inference to be drawn in such circumstances in attorney-disciplinary cases. See In re Meier, 334 S.E.2d
- 22 -
C. Procedural Challenges
1. Questioning by the Hearing Panel
Mr. Justice argues that the Chair of the Hearing Panel erred by extensively
questioning him and Mr. Rickman. We disagree. As this Court has stated in another
attorney-disciplinary proceeding where the hearing panel chair questioned the attorney:
“The Tennessee Rules of Evidence apply to attorney disciplinary proceedings, Tenn.
Sup.Ct. R. 9, § 23.3, and Tennessee Rule of Evidence 614 allows the Panel to interrogate
witnesses.” Bd. of Prof’l Responsibility v. Reguli, 489 S.W.3d 408, 419 (Tenn. 2015).
2. Insufficient Findings and Conclusions
Mr. Justice argues that the Hearing Panel and the trial court failed to make
sufficient written findings of fact and conclusions of law. We disagree. Both the
Hearing Panel and the trial court rendered thorough written decisions setting out facts and
conclusions. Adjudicators are not required to address every issue that lacks merit. See
Hodge v. Provident Life & Accident. Ins. Co., 664 S.W.2d 297, 300 (Tenn. Ct. App.
1983) (stating that a trial court need not “treat separately each fact or question at issue so
long as [its] findings as a whole cover all relevant facts necessary to a determination of
the case”); Adkins v. Bluegrass Estates, Inc., 360 S.W.3d 404, 415 (Tenn. Ct. App. 2011)
(same).
3. Insufficient Fraud Allegation
We also reject Mr. Justice’s argument that the Board failed to plead fraud with
sufficient specificity. The Board’s petition for discipline clearly states which Rules of
Professional Conduct Mr. Justice allegedly violated and the facts alleged to constitute the
violations. Mr. Justice filed a response to the petition, but after doing so he moved to
dismiss the petition and in the alternative requested a more definite statement, citing
Tennessee Rule of Civil Procedure 12.05.19 Because he had filed a response, Rule 12.05
technically did not apply, but the Hearing Panel nonetheless granted his motion in part
and required the Board to identify the Itemization entries that it alleged were false. The
212, 213 (Ga. 1986); In re Snyder, 897 N.Y.S.2d 398, 399–400 (N.Y. App. Div. 2010); In re Muraskin,
731 N.Y.S 2d 458 (N.Y. App. Div. 2001); State v. Postorino, 193 N.W.2d 1, 3 (Wis. 1972).
19
Tennessee Rule of Civil Procedure 12.05 provides that “[i]f a pleading to which a responsive
pleading is permitted is so vague or ambiguous that a party cannot reasonably be required to frame a
responsive pleading, the party may move for a more definite statement before interposing a responsive
pleading.” Tenn. R. Civ. P. 12.05.
- 23 -
Board then identified the seventeen entries, quoted herein, that it alleged were copied
from Mr. Kerschberg’s invoices. Thus, contrary to Mr. Justice’s assertions, the Board
provided him with very specific notice of the allegations of fraud and the claims against
him. This issue is without merit.
4. Service of Process
Mr. Justice next argues that: (i) the Hearing Panel’s decision was not properly
served on him; (ii) he was not properly served with the Board’s petition for writ of
certiorari; and (iii) the summons with which he was served was defective.
Mr. Justice’s claim that he was not properly served with the Hearing Panel’s
decision is without merit. Tennessee Supreme Court Rule 9, section 8.3 provides that
“[t]he Board shall immediately serve a copy of the findings and judgment of the hearing
panel upon the respondent and the respondent’s counsel of record.” Tennessee Supreme
Court Rule 9, section 12.2 provides that “[s]ervice of any other papers or notices required
by these Rules shall, unless otherwise provided by these Rules, be made in accordance
with Rule 5.02, Tennessee Rules of Civil Procedure.” Tennessee Rule of Civil Procedure
5.02 says, in relevant part, that, “[w]henever . . . service is required . . . to be made on a
party represented by an attorney, the service shall be made upon the attorney unless
service upon the party is ordered by the court.” (Emphasis added.) Here, the Board
served Mr. Justice by mailing a copy of the Hearing Panel’s judgment to him in the care
of his attorney on March 9, 2015. The Board therefore complied fully with the
requirements of Tennessee Supreme Court Rule 9, sections 8.3 and 12.2 when it served
Mr. Justice’s attorney with a copy of the Hearing Panel’s judgment.
Mr. Justice’s claim that he was not properly served with the Board’s petition for
writ of certiorari also is without merit. The petition was mailed to the Clerk and Master
of the Chancery Court for Knox County on April 9, 2015, and filed on April 13, 2015.
Before mailing the petition, the Board contacted Mr. Justice’s attorney to inquire whether
he would accept service on Mr. Justice’s behalf. Mr. Justice’s attorney responded on
April 28, 2015, that he would not accept service. The Board then wrote the Clerk and
Master requesting issuance of a summons for service on Mr. Justice. This summons was
issued on April 30, 2015, only seventeen days after the filing of the Board’s petition for
writ of certiorari. This summons was served on May 5, 2015, but because someone other
than Mr. Justice had actually signed the summons, the Board requested issuance of an
alias summons. This alias summons was personally served on Mr. Justice by a private
process server on July 23, 2015. This chronology refutes Mr. Justice’s claim that the
Board intentionally delayed issuance of the summons and failed to properly serve him
with the petition for writ of certiorari.
- 24 -
Mr. Justice’s next claims that, because the alias summons incorrectly listed $4,000
as the personal exemption, the Board’s petition should be dismissed. In Sneed v. Board
of Professional Responsibility, 301 S.W.3d 603, 613 (Tenn. 2010), this Court held that
“[u]nder Tennessee Supreme Court Rule 9, section 1.3, the purported unlawful procedure
must have resulted in prejudice to the petitioner.” Here, as in Sneed, no prejudice has
been shown, so dismissal is not appropriate.20
D. Substantial and Material Evidence
Mr. Justice asserts that the Hearing Panel’s decision is not supported by
substantial and material evidence. In determining whether substantial and material
evidence supports the Hearing Panel’s decision, this Court “take[s] into account whatever
in the record fairly detracts” from the weight of the evidence, but this Court does “not
substitute its judgment for that of the [Hearing Panel] as to the weight of the evidence on
questions of fact.” Tenn. Sup. Ct. R. 9, § 1.3. Mr. Justice argues that the evidence
against him was entirely circumstantial, and as a result, does not rise to the level of
substantial and material evidence. He asserts that circumstantial evidence has less
probative value than direct evidence. Despite Mr. Justice’s protestations to the contrary,
in evaluating the evidence, we do not differentiate between direct and circumstantial
evidence. Tennessee law draws no distinction between the probative value of direct and
circumstantial evidence. See State v. Dorantes, 331 S.W.3d 370, 381 (Tenn. 2011)
(stating that a criminal conviction may be based solely on circumstantial evidence and
that the prosecution need not disprove alternative theories of guilt when relying on
circumstantial evidence alone); Hindman v. Doe, 241 S.W.3d 464, 468 (Tenn. Ct. App.
2007) (stating that “the law does not distinguish between the probative value of direct
evidence and the probative value of circumstantial evidence”). This Court determines
whether the evidence “furnishes a reasonably sound factual basis for the decision being
reviewed.” City of Memphis v. Civil Serv. Comm’n of Memphis, 216 S.W.3d 311, 317
(Tenn. 2007) (quoting Jackson Mobilphone Co., Inc. v. Tenn. Pub. Serv. Comm’n, 876
S.W.2d 106, 111 (Tenn. Ct. App. 1993)). We conclude, based on our review of the
20
As he did in the trial court, in his brief to this Court, Mr. Justice insinuates that he has been
targeted by the Board, the Hearing Panel, and the trial court for reasons outside this record. As an
example, Mr. Justice claims that the trial judge and the attorney for the Board engaged in inappropriate ex
parte communication during a chance encounter in a hotel lobby at approximately 8:45 a.m. on the
morning of the hearing before the trial judge. The record belies this claim and establishes that the trial
judge and the Board’s lawyer discussed only a scheduling matter, in particular, the time the hearing would
begin. The Board’s lawyer promptly notified Mr. Justice and his attorney of this chance meeting and
conversation and in their presence texted the trial judge the start time of the hearing. The trial court and
the Board’s conversation about scheduling did not constitute inappropriate ex parte communication. See
Tenn. Sup. Ct. R. 10, RJC 2.9(A)(1).
- 25 -
record on appeal, that the evidence, as already recounted herein, furnishes an eminently
sound factual basis for the Hearing Panel’s decision.21
The proof in the record on appeal establishes that the Itemization included
seventeen entries purporting to describe Mr. Justice’s work on the Thomas case that were
either identical or nearly identical to entries on Mr. Kerschberg’s invoices that described
Mr. Kerschberg’s work on the Thomas case. In his preliminary itemization, Mr. Justice
referred to himself in the third person, which the Board asserted illustrated that he had
copied Mr. Kerschberg’s invoices. Mr. Kerschberg testified that the invoices described
his work on the Thomas case, not Mr. Justice’s work, and that, to his knowledge, Mr.
Justice “did not ever document his work on the Thomas case or any other case.” The
record establishes that Mr. Justice paid Mr. Kerschberg for the time claimed on the
invoices without question more than a year before he submitted the Itemization. The
record contains Mr. Justice’s April 11, 2011 email stating that Mr. Justice had billed a lot
of time for “reading” Mr. Kerschberg’s work. Yet, the Itemization did not include any
entry for Mr. Justice “reading” Mr. Kerschberg’s work. Mr. Justice testified that this
email was simply a reference to the Chamberlain principle that allowed him to charge the
higher attorney rate for work that both he and Mr. Kerschberg’s performed, but the
problem with this claim is twofold. The email does not mention Chamberlain, and
Chamberlain actually does not support that proposition. Chamberlain, 1995 WL 769782,
at *9. Indeed, the Chamberlain opinion commends the “judicious” use of paralegals and
other such resources as a way to “lower overall fees.” Id. Other decisions citing
Chamberlain also do not interpret the opinion as Mr. Justice does. One of those opinions
actually makes the opposite point by stating that, when an attorney does a paralegal’s
work, his fee should be reduced to a paralegal’s rate because the work is nonlegal in
nature. J.H. v. Bd. of Educ. of Pikeland Coummunity [sic] Unit Sch. Dist. #10, No. 13-
21
The questions Mr. Justice has continued to raise in his brief about the completeness and
accuracy of the record on appeal are without merit. This Court remanded the matter to the trial court in
accordance with Tennessee Rule of Appellate Procedure 24(e), which provides that “[a]ny differences
regarding whether the record accurately discloses what occurred in the trial court shall be submitted to
and settled by the trial court regardless of whether the record has been transmitted to the appellate court.”
The trial court held a hearing and acknowledged that he had shredded the record, believing it to be a
courtesy copy. The trial court reviewed the replacement copy that was provided, resolved the disputes
concerning its accuracy and authenticity, certified the record for appeal, and denied Mr. Justice’s
subsequent attempts to raise new issues. “Absent extraordinary circumstances, the determination of the
trial court is conclusive.” Tenn. R. App. P. 24(e). Mr. Justice has failed to establish extraordinary
circumstances.
- 26 -
CV-3388, 2014 WL 1716564, at *3 (C.D. Ill. May 1, 2014).22 Thus, the record supports
the Hearing Panel’s interpretation of the email as a confirmation that Mr. Justice claimed
Mr. Kerschberg’s work as his own. The Hearing Panel found that Mr. Justice gave only
implausible explanations for why the Itemization entries were identical or nearly identical
to Mr. Kerschberg’s invoice entries. The Hearing Panel did not believe Mr. Justice’s
testimony that he had performed the same administrative tasks, on the same date, and for
the same amount of time as work Mr. Kerschberg had done and been compensated for
more than a year before the Itemization was submitted. This Court does not second-
guess the Hearing Panel’s credibility findings.
Furthermore, no other proof in the record on appeal casts doubt on the Hearing
Panel’s credibility findings. For example, even though Mr. Justice testified that neither
he nor anyone else at the law firm ordinarily records time, he failed to keep a single
document showing that he had in this one unusual circumstance contemporaneously
recorded his time on the Thomas case. Although Mr. Rickman produced an email by
which he had reported his time, this email was dated after the District Court’s order
awarding the sanction. Nor could Mr. Justice locate a version of the Word document
containing all the time records that predated the District Court’s order awarding the
sanction. He also could not recall the name of the Word document.
Mr. Justice asserts that the Hearing Panel’s decision lacks substantial and material
evidentiary support because Mr. Kerschberg recanted his original allegations of
misconduct. This assertion is simply incorrect. While Mr. Kerschberg acknowledged
occasionally using Mr. Justice’s handwritten comments to create some of the narratives
for his invoices, he unequivocally and consistently testified that these narrative entries
described his own work not Mr. Justice’s. Mr. Kerschberg recognized the possibility that
Mr. Justice could have done work similar to his own on the Thomas case without Mr.
Kerschber’s knowledge, but Mr. Kerschberg reiterated that, “When I created these
invoices, however, I was documenting only my own work. As far as I know, Loring
Justice did not ever document his work on the Thomas case, or any other case.”
(Emphasis added).
We also disagree with Mr. Justice’s assertion that the Hearing Panel and the trial
court ignored and “manipulated” his testimony and that of Mr. Rickman. The Hearing
Panel considered the testimony in context and noted that Mr. Rickman had not worked
for the law firm when Mr. Kerschberg worked there; did not know what Mr. Justice did
22
Nor is Chamberlain a landmark case as Mr. Justice has implied. Chamberlain is an
unreported federal district court decision from the Seventh Circuit applying Illinois law, and according to
Westlaw, it has only been cited in twenty-five cases: twenty-three times by Illinois federal courts, once by
a Minnesota federal court, and once by the Tennessee federal court ordering Mr. Justice’s suspension.
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or did not do before he began working at the law firm; did not compare the Itemization to
Mr. Kerschberg’s invoices; and did not see the Word document until after the District
Court awarded the discovery sanction. The record fully supports the Hearing Panel’s
findings and the trial court’s conclusion that Mr. Rickman “was in no position to
determine the accuracy of [Mr.] Justice’s entries.”
The Hearing Panel considered but rejected Mr. Rickman’s and Mr. Justice’s broad
interpretation of the District Court’s order, concluding that it was inconsistent with the
clear text of the order. The Hearing Panel also considered but rejected Mr. Justice’s and
Mr. Rickman’s testimony that they intended to give the attorney’s fees to Mr. Thomas
and described this testimony as “unbelievable” and as “post-conduct rationale.” The
Hearing Panel and the trial court neither ignored nor manipulated Mr. Rickman’s and Mr.
Justice’s testimony.
Mr. Justice argues that the Hearing Panel’s decision that he violated RPC 1.5(a),
which provides that “[a] lawyer shall not make an agreement for, charge, or collect an
unreasonable fee or an unreasonable amount for expenses” is not supported by substantial
and material evidence. Specifically, Mr. Justice asserts that he did not charge an
unreasonable fee because the sanction would have been paid to his client not the firm and
because he never received any fee after the proceedings began in the District Court. The
Hearing Panel disbelieved Mr. Justice’s testimony that any fee collected would have been
given to Mr. Thomas. As already noted, this Court does not second-guess the Hearing
Panel’s credibility determinations.
Additionally, we note that courts in other states have held that a lawyer may
“charge” an unreasonable fee without actually collecting it. For example, in Iowa
Supreme Court Board of Professional Ethics & Conduct v. Hoffman, 572 N.W.2d 904,
907 (Iowa 1997), the Iowa Supreme Court considered whether a lawyer had violated an
ethical rule that prohibited lawyers “from entering into an agreement for, charging, or
collecting an illegal or clearly excessive fee.” The lawyer in Hoffman argued that his
actions in filing the fee application with an Iowa administrative worker’s compensation
judge did not violate the disciplinary rule “because he never actually received the amount
requested.” Id. The Iowa Supreme Court rejected this argument, stating that the lawyer’s
actions in seeking the fee “fit within the legal definition of charge: ‘to create a claim
against property; to assess; to demand.’” Id. at 908 (quoting Black’s Law Dictionary 232
(6th ed.1990)); see also Comm. on Prof’l Ethics & Conduct v. Zimmerman, 465 N.W.2d
288, 291–92 (Iowa 1991) (stating that a lawyer’s application for excessive and
duplicative fees violated a disciplinary rule prohibiting lawyers from charging an
excessive fee).
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Having carefully and fully considered the record on appeal, we conclude that
ample substantial and material evidence supports the Hearing Panel’s findings of fact,
which the trial court adopted.
E. Appropriateness of the Sanction
To assess the appropriateness of the disciplinary sanction in a given case, this
Court begins with the ABA Standards. See Tenn. Sup. Ct. R. 9, § 8.4 (currently §
15.4); Daniel, 549 S.W.3d at 100. The ABA Standards are “guideposts” rather than rigid
rules for determining appropriate and consistent sanctions for attorney misconduct. Id.
(quoting Maddux III, 409 S.W.3d at 624).
[T]he standards are not designed to propose a specific sanction for
each of the myriad of fact patterns in cases of lawyer misconduct. Rather,
the standards provide a theoretical framework to guide the courts in
imposing sanctions. The ultimate sanction imposed will depend on the
presence of any aggravating or mitigating factors in that particular
situation. The standards thus . . . are guidelines which give courts the
flexibility to select the appropriate sanction in each particular case of
lawyer misconduct.
ABA Standards, Theoretical Framework. The presumptive sanction in each case may be
identified by considering:
(1) the ethical duty the lawyer violated—whether to a client, the public, the
legal system, or duties as a professional; (2) the lawyer’s mental state; and
(3) the extent of the actual or potential injury caused by the lawyer’s
misconduct.” Next, any aggravating or mitigating circumstances must be
considered in determining whether to increase or decrease the presumptive
sanction in a particular case.
Daniel, 549 S.W.2d at 100 (citations omitted).
As already noted, the Hearing Panel failed to consider the ABA Standards
identifying the presumptive sanction. The trial court concluded ABA Standard 5.11(b)
applies in these circumstances, and it provides:
Disbarment is generally appropriate when . . . a lawyer engages in any other
intentional conduct involving dishonesty, fraud, deceit, or
misrepresentation that seriously adversely reflects on the lawyer’s fitness to
practice.
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In light of the Hearing Panel’s findings that Mr. Justice gave a false statement under oath,
knowingly testified falsely in the District Court, and sought an unreasonable fee in the
Itemization, we conclude that the trial court correctly identified ABA Standard 5.11(b) as
establishing the presumptive sanction. The trial court also correctly concluded that the
substantial and material evidence supports the Hearing Panel’s findings of the six
aggravating factors—a dishonest or selfish motive, a pattern of misconduct, multiple
offenses, submission of false evidence, false statements during the disciplinary process,
refusal to acknowledge wrongful nature of conduct, and substantial experience in the
practice of law—and the two mitigating factors of the District Court’s prior six-month
suspension for the same conduct and Mr. Justice’s lack of a prior disciplinary record.
Mr. Justice asserts that the trial court also should have considered as a mitigating
factor the delay in this matter, pointing out that the alleged misconduct occurred in 2011
and the hearing was not held until 2015. While this argument is appealing in theory, in
fact it is not persuasive because most of this delay is attributable to Mr. Justice’s request
that the Board hold its investigation in abeyance pending the disposition of the federal
proceedings. So, we cannot say that the Hearing Panel and the trial court erred by
declining to consider delay as a mitigating factor.
We also disagree with Mr. Justice that his good record and lack of ethical
violations in the ensuing years should be viewed as mitigating factors. Lawyers are
professionally obligated to comply with the Rules of Professional Conduct, and
compliance is the norm and expectation. It does not mitigate a lawyer’s previous failure
to fulfill his professional obligation.
Mr. Justice also asserts that the Hearing Panel did not err by imposing a sanction
less severe than the presumptive sanction of disbarment because in Daniel, this Court
changed “controlling legal authority” and held that it is not error for a hearing panel to
consider sanctions less than the presumptive sanction. 549 S.W.3d at 102. Although Mr.
Justice is correct as to the holding of Daniel, his characterization of the decision as a
change in controlling legal authority is not correct. Daniel simply applied prior decisions
of this Court that had described the ABA Standards as “‘guideposts.’” Daniel, 549
S.W.3d at 100 (quoting Maddux III, 409 S.W.3d at 624). More importantly, Daniel is
factually distinct from this case. Here, the Hearing Panel did not consider and reject the
presumptive sanction of disbarment. It simply failed to consider any ABA Standard
identifying presumptive sanctions.
We agree with the Board that the trial court’s modification of the sanction was
appropriate, considering the Hearing Panel’s lack of analysis of the presumptive sanction
under the ABA Standards, the imbalance of aggravating and mitigating factors, and the
nature of Mr. Justice’s misconduct, which evidenced his utter disregard for the
fundamental obligation of lawyers to be truthful and honest officers of the court. Culp v.
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Bd. of Prof’l Responsibility, 407 S.W.3d 201, 211 (Tenn. 2013) (denying reinstatement
to an attorney convicted of extortion and stating that the attorney had engaged in
“egregious conduct,” conduct striking “at the heart of our system of justice” and
“threatening the very core of a legal system based on probity and honor”); Murphy v. Bd.
of Prof’l Responsibility, 924 S.W.2d 643, 647 (Tenn. 1996) (finding that the conduct of
lying to a grand jury and trying to convince another witness to lie to the grand jury
“strikes at the very heart and soul of the judicial system and without question would have
a detrimental impact on the integrity and standing of the bar, the administration of justice
and the public interest”). Recognizing that the sanction of disbarment is not to be
imposed lightly, the trial court conscientiously and carefully analyzed the issues and
ultimately concluded, as do we, that Mr. Justice’s conduct in claiming Mr. Kerschberg’s
work as his own, in submitting the false Itemization and written declaration, and in
testifying falsely in the District Court strikes at the very heart of the legal profession and
merits the presumptive sanction of disbarment.
Mr. Justice argues that Napolitano v. Bd. of Prof’l Responsibility, 535 S.W.3d 481
(Tenn. 2017) illustrates that disbarment is too harsh a punishment here. In Napolitano,
the hearing panel found that the attorney had committed trust account violations and lied
under oath when answering discovery deposition questions in a lawsuit over a fee dispute
with a client. Id. at 503. The hearing panel suspended the attorney for five years but
ordered only one year of active suspension. Id. at 494. This case bears some factual
resemblance to Napolitano, but it is distinct in at least two important respects. First, this
Court found that the record in Napolitano did not support a finding that the attorney gave
false testimony “with the intent to deceive a court.” Id. at 503. Additionally, unlike Mr.
Justice, Mr. Napolitano called a number of lawyers and judges to testify to his good
professional and personal character. Id. at 487–89. Each attorney disciplinary appeal is
evaluated “in light of its particular facts and circumstances.” Maddux, 148 S.W.3d at 40.
In another recent case factually similar to this one, Board of Prof’l Responsibility
v. Barry, 545 S.W.3d 408 (Tenn. 2018), this Court upheld the trial court’s modification of
the sanction to disbarment. In Barry, the hearing panel imposed an eighteen-month
suspension, with sixty days active suspension. Id. at 411–412. The trial court modified
the sanction to disbarment, and this Court affirmed. Id. at 412 In Barry, as here, the
hearing panel had failed to consider the ABA Standards regarding presumptive sanctions.
Id. at 420. In Barry, as here, the hearing panel found that the attorney’s misconduct was
“knowing.” Id. at 425. The trial court’s decision modifying the sanction in this case
from suspension to disbarment is consistent with Barry. See also Hornbeck v. Bd. of
Prof’l Responsibility, 545 S.W.3d 386, 387 (Tenn. 2018) (disbarring an attorney based
upon multiple acts of professional misconduct, “including knowing conversion of client
funds with substantial injury to clients, submitting false testimony, falsifying documents
in court proceedings, engaging in the unauthorized practice of law, violating Supreme
Court orders, and defrauding clients”).
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IV. Conclusion
For the reasons stated herein, we affirm the judgment of the trial court in all
respects, including its modification of the sanction from suspension to disbarment. Costs
of this appeal are taxed to Loring Edwin Justice for which execution may issue if
necessary.
_________________________________
CORNELIA A. CLARK, JUSTICE
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