577 S.W.3d 908
Tenn.2019Background
- Loring E. Justice, a Tennessee lawyer, filed a fee petition ("Itemization") in federal court after a discovery sanction against Lowe’s for failing to disclose a witness; the Itemization sought over $103,000 in attorney fees and included 288 entries covering work from 2009–2011.
- Seventeen Itemization entries were identical or nearly identical to invoices submitted earlier by Benjamin Kerschberg, a contract paralegal who billed the firm for those tasks; Kerschberg testified the invoices reflected his work, not Justice’s.
- Justice submitted a written declaration swearing he maintained contemporaneous time records and that the Itemization was true; he later testified in federal court reaffirming those statements.
- The federal district court found Justice had submitted false statements and suspended him from practicing in that court for six months; the Board of Professional Responsibility filed disciplinary charges in Tennessee alleging violations of RPC 1.5, 3.3, 3.4, and 8.4.
- A Hearing Panel found multiple violations, six aggravating factors, and two mitigating factors and imposed a one-year active suspension; the Chancery Court affirmed the findings but increased the sanction to disbarment under ABA Standard 5.11(b); the Tennessee Supreme Court affirmed disbarment.
Issues
| Issue | Plaintiff's Argument (Justice) | Defendant's Argument (Board) | Held |
|---|---|---|---|
| Whether Justice knowingly misrepresented time entries / claimed paralegal work as his own (violations of RPC 3.3, 3.4, 8.4) | Justice said he and Kerschberg did overlapping work, that contemporaneous time records existed (though not produced), and invoked a Chamberlain principle to justify billing at attorney rates for duplicative work | Board pointed to identical entries, Kerschberg’s invoices and testimony, and an email where Justice said he billed time for “reading” Kerschberg’s work | Substantial and material evidence supports the Panel’s finding Justice knowingly misrepresented entries; violations sustained |
| Whether the Itemization requested unreasonable fees (RPC 1.5) | Justice argued the District Court’s order authorized broad fees tied to extra work from Lowe’s discovery abuse and any award would be given to the client | Board argued many entries were unrelated to locating/deposing the witness and thus outside the court’s order; fees were grossly inflated | Hearing Panel and courts found many entries exceeded the order’s scope and the fee request was unreasonable; RPC 1.5 violation sustained |
| Admissibility and procedural rulings (e.g., exclusion of third‑party declaration, use of deposition on written questions) | Justice contended Rule 106 (completeness) and other procedures entitled him to introduce certain evidence and that he was prejudiced | Board maintained Rule 106 does not permit introducing writings of other witnesses and that deposition-by-written-questions was permissible and noticed | Panel/trial court did not abuse discretion; exclusions and use of deposition testimony were proper |
| Appropriate sanction (suspension v. disbarment) | Justice urged the lesser sanction imposed by the Hearing Panel and emphasized lack of prior discipline, delay, and claimed remorse/mitigation | Board argued the conduct—knowingly submitting false documents and testifying falsely—fits ABA Standard 5.11/6.11 where disbarment is presumptive given dishonesty and injury to the legal system | Trial court correctly applied ABA Standards, found aggravating factors outweigh mitigation, and disbarment was appropriate; Supreme Court affirmed |
Key Cases Cited
- Green v. Bd. of Prof'l Responsibility, 567 S.W.3d 700 (Tenn. 2019) (standard of review and disciplinary appeal framework)
- Daniel v. Bd. of Prof'l Responsibility, 549 S.W.3d 90 (Tenn. 2018) (use of ABA Standards as guideposts for sanctions)
- Maddux v. Bd. of Prof'l Responsibility, 409 S.W.3d 613 (Tenn. 2013) (precedent on sanction analysis)
- Sneed v. Bd. of Prof'l Responsibility, 301 S.W.3d 603 (Tenn. 2010) (Court is final arbiter of lawyer discipline and review standards)
- Culp v. Bd. of Prof'l Responsibility, 407 S.W.3d 201 (Tenn. 2013) (misconduct striking at heart of justice system warrants severe sanctions)
- Barry v. Bd. of Prof'l Responsibility, 545 S.W.3d 408 (Tenn. 2018) (trial court modification to disbarment where panel failed to address presumptive ABA standards)
- Hornbeck v. Bd. of Prof'l Responsibility, 545 S.W.3d 386 (Tenn. 2018) (disbarment for multiple serious ethical violations)
- Napolitano v. Bd. of Prof'l Responsibility, 535 S.W.3d 481 (Tenn. 2017) (comparison of false testimony cases and mitigation evidence)
- Dorantes v. State, 331 S.W.3d 370 (Tenn. 2011) (no distinction in probative value between circumstantial and direct evidence)
- City of Memphis v. Civil Serv. Comm'n of Memphis, 216 S.W.3d 311 (Tenn. 2007) (substantial and material evidence standard for administrative findings)