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06/12/2024
IN THE SUPREME COURT OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs June 1, 2023

LORING E. JUSTICE v. BOARD OF PROFESSIONAL RESPONSIBILITY

Direct Appeal from the Chancery Court for Knox County
No. 203310-2 Thomas J. Wright, Senior Judge
___________________________________

No. E2022-01105-SC-R3-BP
___________________________________

This is a direct appeal of a disciplinary proceeding involving a Knoxville attorney who
filed four motions containing pejorative statements about the trial judge in a child custody
case involving the attorney’s minor child. A hearing panel of the Board of Professional
Responsibility determined that the attorney violated multiple Rules of Professional
Conduct and imposed a three-year suspension as punishment. The attorney appealed to the
trial court. The trial court affirmed the hearing panel’s judgment in all respects with the
exception of the attorney’s punishment. The trial court held that the hearing panel erred in
imposing a suspension, and it increased the punishment to disbarment. The attorney
appealed to this Court. We affirm the judgment of the trial court on all issues with the
exception of the issue regarding the attorney’s punishment. We hold that the trial court
erred in increasing the punishment to disbarment, and we reinstate the three-year
suspension imposed by the hearing panel but modify it to take effect upon the filing of this
Opinion.

Tenn. Sup. Ct. R. 9, § 33.1(d); Judgment of the Chancery Court Affirmed in Part
and Reversed in Part

JEFFREY S. BIVINS, J., delivered the opinion of the Court, in which SHARON G. LEE, ROGER
A. PAGE, and SARAH K. CAMPBELL, JJ., joined. HOLLY KIRBY, C.J., filed a separate
opinion concurring in the judgment.

Linn M. Guerrero, Knoxville, Tennessee, for the appellant, Loring E. Justice.

James W. Milam, Brentwood, Tennessee, for the appellee, Board of Professional
Responsibility.
OPINION

I. Factual and Procedural Background

Loring Edwin Justice has been licensed to practice law in Tennessee since 1998.
On January 4, 2018, the Board of Professional Responsibility (“Board”) filed a petition for
discipline against Mr. Justice alleging that he violated the Rules of Professional Conduct
(“RPC”) during the course of a Roane County Juvenile Court custody case involving his
minor child and the minor child’s mother (“Plaintiff”). Mr. Justice represented himself
throughout the dispute with Brian Chadwick Rickman serving as co-counsel. The custody
case began in 2004 and was contested until 2007, when it went dormant for several years.
Nelson v. Justice, No. E2017-00895-COA-R3-CV, 2019 WL 337040, at *1 (Tenn. Ct. App.
Jan. 25, 2019). However, in 2013, the custody dispute resumed. Id. at *2-3. After at least
two judges recused themselves from the case, Judge Don Ash was designated to preside
over the matter. A trial was held on multiple days over two years, and, on April 11, 2017,
the trial court entered an order resolving the matter. Id. at *3, 10-11.

Following the resolution of the custody case, Judge Ash sent a letter to the Board to
make it aware of a number of insulting statements Mr. Justice and Mr. Rickman made
during the proceedings. Judge Ash attached a number of documents to his letter for the
Board’s review, including several motions filed by Mr. Justice and Mr. Rickman,
transcripts of court hearings, and court orders.

After an investigation, the Board filed a petition for discipline against Mr. Justice
on January 4, 2018, in which it alleged that Mr. Justice violated RPC 3.5(e),1 RPC
8.2(a)(1),2 and RPCs 8.4(a) and (d).3 The allegations in the petition arose out of four
motions filed by Mr. Justice that contained inflammatory statements about Judge Ash: a
Motion for Expanded Holiday Co-Parenting, a Motion to Strike Report of Dr. James
Murray, a motion for interlocutory appeal, and an Amended Motion to Recuse with
Motions for Disclosure and Other Motions Incorporated.

1
RPC 3.5(e) provides that “[a] lawyer shall not: . . . engage in conduct intended to disrupt a
tribunal.” Tenn. Sup. Ct. R. 8, RPC 3.5(e).
2
RPC 8.2(a)(1) provides that “[a] lawyer shall not make a statement that the lawyer knows to be
false or that is made with reckless disregard as to its truth or falsity concerning the qualifications or integrity
of . . . a judge.” Tenn. Sup. Ct. R. 8, RPC 8.2(a)(1).
3
RPCs 8.4(a) and (d) provide that “[i]t 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 . . . [and] (d) engage in conduct that is prejudicial to the administration of
justice.” Tenn. Sup. Ct. R. 8, RPC 8.4(a), (d).
-2-
The first motion, the Motion for Expanded Holiday Co-Parenting, included a
statement that “[t]he Court repeatedly is confused or pretends that the burden of proof is
on Defendant to show some change has occurred. The Court persistently articulates
differing and nebulous standards for Defendant to transcend and then changes them when
Defendant does.”

The second motion, the Motion to Strike Report of Dr. James Murray, contained the
following statements:

The appearance, perhaps not the reality, but the appearance is the Court is
deliberately stacking the record to assist its favored party, the Plaintiff.

The Court simply knows better than this as we all do and such an aberrant
decision is evidence the Court has profound disdain for Defendant such the
Court cannot see the best interests of [the minor child].

The third motion, the motion for interlocutory appeal, contained numerous insulting
and inflammatory statements:

Plaintiff is holding [the minor child] hostage for money, which is child abuse,
and the Court refuses to speak to this issue to any significant degree.

Further, rather than adopting the posture of a neutral Judge, the Court
attempts to hijack the presentation of Defendant’s case, and, as discussed
below, attempts to intimidate witnesses.

Will even the Court contend it has met the standard of “detachment” and
“aloofness” that are part of the American rule?

Respectfully, it is straight up bizarre to use Rule 403 in a bench trial, and this
is proof positive the Court has lost its way.

In these circumstances, it is not improper to describe this level of bizarreness
in a case involving child welfare as a farce.

In these circumstances, any Judge thinking properly would insist on greater
formality than normal, rather than chatting [Plaintiff] up about their mutual
friend, “Gerald,” among other things.

At this point, a reasonable outside observer would find an appearance of bias
or there would be grounds for disqualification for the appearance of a lack of
competence if the Court knows no better than this.
-3-
It would appear to a reasonable outside observer the Court is simply playing
a shell game with a child.

The Court yelled a denial at Dr. Brown of her recommendation [Plaintiff]
undergo individual psychotherapy to achieve [the minor child’s] best
interests.

This is such a loss of judgment a reasonable outside observer would find the
proceedings to have the appearance of corruption.

The Court’s demeanor is so hostile as to preclude a fair trial.

A Judge that ignores inappropriate touching of a witness while testifying is
a Judge who appears to be in the bag.

When a Court’s persistent demeanor is less in the nature of Learned Hand or
Oliver Wendell Holmes and more Yosemite Sam, particularly in a matter
involving child welfare, the Court cannot continue to preside and this Court
ought to allow interlocutory appeal to determine if the appellate court can
assist it is (sic) resolving this case.

Which of the three or four inconsistent stories the Court told about this is
true?

This has now been compounded because during the only hearing at which
Mr. Justice was not present, because he was going to get a cashier’s check
for $200,000.00 of the $400,000.00 he was to pay [Plaintiff] in hopes to have
a meaningful relationship with his son and to see him unsupervised, the Court
bizarrely went off the record and chatted up [Plaintiff].

It would be no burden on the Court to change venue but the Court stubbornly
refuses, fostering the appearance of corruption in a case in which we already
have documented judicial corruption (former Judge Austin), Judge Brewer’s
“conflict of interest” and an opiate infused witness, Dr. Nordquist.

It would appear to a reasonable outside observer that something is wrong
with the Court. These are not personal attacks on the Court but recordation
of the events of this bizarre proceeding necessary for interlocutory appeal.

-4-
In short, it is about appearances and here, in the words of the United States
Court of Appeals, the appearances regarding the integrity of this proceeding
are as pungent as “the force of a five-week old, unrefrigerated dead fish.”

The absurdity of this is palpable.

The Court appears as a bully who has “issues” with the defense or relative to
the Plaintiff and attempts to intimidate against zealous advocacy for [the
minor child’s] welfare.

Then, the Court rudely, abruptly, and disparagingly denied Defendant’s
motion regarding individual therapy for Plaintiff, as Dr. Brown testified it
would be beneficial and in the best interests of [the minor child].

However, the Court addressed her as one would address the Queen of
England if they were ambassador to the Court of St. James. This is bizarre
given her weirdly conflicting testimony and it is NOT THE ROLE OF A
COURT TO PLAY MASTER OF CEREMONIES. The Court has precious
little time for hearings and trial for [the minor child]; it creates an appearance
of impropriety and it wastes what time it will allow with overly effusive
speeches that do not help anything and hurt when contrasted with the
maltreatment of witnesses who furnish defense favorable information.

But, to this Court, with an opportunity for a soliloquy, Judge Humphrey is
the reincarnation of Louis Brandeis.

The appearance is Mr. Justice might be the better parent; but [Plaintiff] is in
with the “good old boys” and she got a very marginal Judge who was a buddy
of Judge Brewer to bless her contempt and this Court is unwilling to confront
the appearance of incompetence and corruption represented by Judge Brewer
and Judge Humphrey, and [Mr. Justice] and [the minor child] cannot be
reunited because [Mr. Justice] crossed a line: he made a fool out of Judge
Humphrey on the witness stand and Judges stick together; just read the
soliloquy.

The appearance is, particularly in light of the Judge’s “off the record”
discussion with [Plaintiff], that the Court is more interested in making the
Roane County courthouse crowd happy and receiving their daily smiles than
he is in caring for [the minor child’s] best interests.

Also, in another way, this soliloquy is problematic: to an outside observer it
would appear the Court may be using this as backdoor self-glorification or
-5-
for secondary gain. That is, given the situation is wholly impertinent to [the
minor child], and given the soliloquy, before a courtroom audience glorifies
the Court (took her to the shelter) [and] (his daughters helped her pick out
clothes), the appearance is the Court has a secondary gain from being
perceived as a “good man” by the Roane County courthouse gallery.

In so ruling, the Court articulated yet another, differing, nebulous and ever-
shifting standard as what must be proven to achieve the normalized,
unsupervised co-parenting schedule for [the minor child] and Defendant that
all expert proof indicates is needed in [the minor child’s] best interest.

Once again, the Court uses the ipso facto fallacy that is the province of
tyrants: it is so because I say it is so, without explanation.

An interlocutory appeal is justified because to all appearances the Court runs
from certain evidence as if it is the Black Plague.

WILL THE COURT PLEASE ADDRESS THIS CASE LAW? IF IT WILL
NOT, CAN THE COURT POSSIBLY CONTEND INTERLOCUTORY
APPEAL IS NOT JUSTIFIED?

The appearance of judicial misadministration and the bizarre, crawling,
years-long trial structure, coupled with the corruption of Judges Austin and
Humphrey (or possibly just significant incompetence by Judge Humphrey,
indistinguishable from active corruption) joined with the Court chatting up
[Plaintiff] off the record and attached to the fact the Court will not comment
on [Plaintiff] attempting to SELL UNSUPERVISED TIME WITH [THE
MINOR CHILD], is so grave it is a violation of [the minor child] and [Mr.
Justice’s] federal civil rights under color of state law.

Again, it does not create an appearance of objectivity when the Court runs
from certain issues as if they are the Ebola virus.

By suppressing this evidence, the Court has sanctioned child abuse in the
form of Plaintiff’s leveraging her near total control of [the minor child] to
hold him hostage for money.

Also, again, the appearance is of a pungent smell. On the evidence in this
brief, no party or lawyer can be intimidated by a Court into remaining silent
and accepting “gas lighting” or an “Emperor’s New Clothes” scenario.

-6-
The fourth motion, the Amended Motion to Recuse with Motions for Disclosure and
Other Motions Incorporated, contained the following statements:

Again, it does not create an appearance of objectivity when the Court runs
from certain issues as if they are the Ebola virus.

It is yet another false claim of dishonesty by the Court, demonstrating it is
inappropriate as a matter of appearance if not fact, for the Court to continue
hearing this case. The strong appearance is if the Court cared as much about
[the minor child’s] mother lying about attempting to sell time with him as the
Court does about falsely accusing Defendant and his counsel, [the minor
child] would be much better off. Further, it is evident or at least it would be
thought by an outside onlooker, caught in apparent lies about reading the
entirety of Dr. Nordquist’s deposition and on the amount of time Mr.
Rickman had spent examining Ms. Guerrero, the Court is embittered and
either consciously or unconsciously “creating” veracity issues about
Defendant and Defendant’s counsel, due to the ego injury the Court has
suffered by the apparent revelation by them of its own recurrent dishonesty .
...

For the Court to suggest, it might call [the minor child] as a witness here,
given the Court’s denied, but obvious, antipathy for his [f]ather, shows such
a loss of judgment by the trial court that it ought to recuse. [The minor child]
should not be sacrificed as a means in the Court’s efforts to assist [the minor
child’s] mother against his [f]ather. This is sick and abusive like the
deliberate ignorance of the human trafficking [the minor child’s] mother and
her attorneys have attempted to broker regarding [the minor child].

In addition to these four motions, the petition for discipline also contained hearing
transcripts and trial court orders from the child custody case showing that the trial court
ordered Mr. Justice and Mr. Rickman on multiple occasions to cease from making
inappropriate statements about the court but that they continued to do so. In particular, the
trial court entered an order on January 2, 2017, in which it instructed Mr. Justice and Mr.
Rickman to “refrain from their practice of making negative comments about the Court
personally in their pleadings.” Additionally, in an order denying Mr. Justice’s motion for
interlocutory appeal, the trial court noted that Mr. Justice and Mr. Rickman “escalated their
personal attacks” on the trial court despite “repeated requests to curb such behavior.”

Before a hearing on the petition for discipline was held, the parties filed a number
of pre-hearing motions with the hearing panel and the trial court. Three particular pre-
hearing matters that arose are important to note. The first was a discovery dispute involving
a set of five interrogatories that the Board served on Mr. Justice on July 18, 2018. The first
-7-
four interrogatories sought information regarding Mr. Justice’s level of involvement in the
preparation, editing, review, and approval of the motions containing inflammatory
statements that formed the basis of the petition for discipline. The fifth interrogatory asked
why Mr. Rickman was no longer associated with Mr. Justice’s law practice. Mr. Justice
objected to answering each of the interrogatories, claiming they were protected by the
attorney-client privilege and the work product doctrine. On September 28, 2018, the Board
filed a motion to compel responses to the interrogatories, which the hearing panel granted
through entry of an order on June 5, 2019. In the order, the hearing panel stated that if Mr.
Justice were to assert the attorney-client privilege or the privilege against self-incrimination
in his response, Mr. Justice would be required to “detail the necessary foundation for
assertion of either privilege.” In a scheduling order entered on September 1, 2020, the
hearing panel ordered Mr. Justice to produce responses to the interrogatories within
fourteen days.

On October 9, 2020, after it still had not received responses to the interrogatories,
the Board filed a motion for sanctions. In its motion, the Board asked that it be deemed
admitted that Mr. Justice “prepared, read, approved[,] and filed the offensive pleadings . .
. or, in the alternative, prohibit [Mr. Justice] from testifying or allowing others to testify or
submit any written documentary proof that [Mr. Justice] did not prepare, read, approve[,]
and file the offensive pleadings.” The hearing panel granted the motion for sanctions,
finding that “[n]o just cause existed” for Mr. Justice’s failure to comply with the June 5,
2019, and September 1, 2020 discovery orders. Accordingly, the panel deemed admitted
that Mr. Justice “prepared, read, and/or approved” the four motions containing
inflammatory statements upon which the petition for discipline was based.

The second pre-hearing matter of note was a motion for summary judgment that Mr.
Justice filed on November 13, 2018.4 In a December 17, 2018 filing, the Board asserted
that it should not have to respond to the motion for summary judgment until it obtained the
discovery it sought. Specifically, relying on Tennessee Rule of Civil Procedure 56.07,5 the
Board stated that it had not been able to take the deposition of Mr. Rickman or Mr. Justice

4
Prior to filing this motion for summary judgment, Mr. Justice filed a “Motion to Dismiss or
Alternatively Motion for Summary Judgment” on September 17, 2018. The hearing panel treated the
motion as a motion to dismiss, which it denied. In the order denying the motion, the hearing panel stated,
“To the extent that the motion is a motion for summary judgment, it is denied as not properly supported
and may be refiled at a later time.”
5
Tennessee Rule of Civil Procedure 56.07 provides:

Should it appear from the affidavits of a party opposing the motion that such party
cannot for reasons stated present by affidavit facts essential to justify the opposition, the
court may refuse the application for summary judgment or may order a continuance to
permit affidavits to be obtained or depositions to be taken or discovery to be had or may
make such other order as is just.
-8-
and that Mr. Justice had not answered its interrogatories. The Board did not submit an
affidavit to support its request for additional time to conduct discovery. In an order entered
on June 5, 2019, the hearing panel stated that the Board should have its discovery before
being required to respond to the motion. The hearing panel noted that the deadline for
discovery to be completed was September 20, 2019, and it set September 30, 2019, as the
Board’s deadline to respond to the motion for summary judgment. The Board filed a
second response to the motion for summary judgment on September 30, 2019. In its
response, the Board objected to Mr. Justice’s statement of undisputed facts and asserted
that many of Mr. Justice’s statements were legal conclusions rather than facts.

On April 29, 2020, the hearing panel denied Mr. Justice’s motion for summary
judgment. The hearing panel determined that the petition for discipline sufficiently alleged
facts that, taken as true, established violations of RPCs 3.5(e), 8.2(a), 8.4(a), and 8.4(d).
The panel concluded that Mr. Justice’s denial of responsibility for the inflammatory
statements forming the basis of the petition for discipline created a genuine issue of
material fact for determination, and Mr. Justice had not shown, as a matter of law, that
there was no dispute of fact on that issue.

The third pre-hearing matter was a dispute regarding the deposition of Judge Ash.
The parties filed several motions with the trial court and the hearing panel concerning
Judge Ash’s deposition, but we will only recount the details pertinent to this appeal. Mr.
Justice initially obtained a subpoena from the trial court for the deposition of Judge Ash.
After the Attorney General’s office objected to the deposition on behalf of Judge Ash, Mr.
Justice filed a motion to enforce the subpoena. At a September 17, 2020 hearing on the
motion, the parties reached an agreement that Judge Ash’s deposition would be taken for
proof and that no further appearance at a hearing or deposition would be required from
him. The trial court entered an order on October 29, 2020, noting that the motion to enforce
the subpoena had been resolved by agreement of the parties and that the court had “no
further participation concerning the deposition.”

Judge Ash’s deposition took place on October 22, 2020, with Mr. Justice
questioning him. At some point before the questioning concluded, due to hostility between
the parties concerning the questions that were being asked, Judge Ash left the deposition.

Mr. Justice filed a motion with the trial court asking it to hold Judge Ash in contempt
and to enforce its September 17, 2020 ruling. On December 21, 2020, the trial court held
a hearing on the motion, as well as various other motions concerning Judge Ash’s
deposition filed by Mr. Justice, the Board, and Judge Ash. During the hearing, the trial
court denied the motions, holding that it did not have jurisdiction over them because
Tennessee Supreme Court Rule 9, section 19 limited its jurisdiction to matters concerning
subpoenas. The trial court explained that there presently was no active subpoena, as Mr.
Justice’s initial subpoena had been replaced by the parties’ agreement regarding Judge
-9-
Ash’s deposition on September 17, 2020. With regard to Mr. Justice’s motion to enforce,
the trial court pointed out that it had not compelled Judge Ash to attend the deposition and
had only noted in its October 29, 2020 order, which was entered a week after the deposition
took place, that the parties had reached an agreement regarding Judge Ash’s deposition.
As such, there was nothing in the order that the court could enforce.

Mr. Justice then sought relief with the hearing panel, asking it to hold a hearing on
the motions he had filed in the trial court and to compel Judge Ash to continue his
deposition. The hearing panel denied Mr. Justice’s motions, holding that the motions were
not properly before it because they had been heard in the trial court, but the trial court had
not yet entered any order. The hearing panel also held that it could not “issue an order
compelling a deposition that it did not order.”

After approximately three years of extensive pre-hearing proceedings, a ZOOM
hearing on the Board’s petition for discipline took place on January 14, 2021. Mr. Justice
was represented by Linn Guerrero. The Board called one witness, Mr. Justice, but he did
not testify because he was not present and had not been subpoenaed. Mr. Justice did not
call any witnesses. A number of documents were introduced into evidence, including much
of the record of the child custody case.

On March 26, 2021, the hearing panel entered its findings of fact and conclusions
of law. As part of its findings of fact, the hearing panel determined that “[a] reasonable
attorney would not believe there was a factual basis for many of the statements made in the
four motions that Mr. Justice prepared, read[,] and/or approved.” The panel characterized
the language in the motions as “accusatory and designed to chastise the court.” The panel
found that the language was “intentionally chosen” and that Mr. Justice was “consciously
aware of the nature of the motions.” The motions “included statements and language with
no regard as to the truth or falsity concerning the integrity of Judge Ash” and “undermined
public confidence in the administration of justice.” The hearing panel found that a
“reasonable attorney would believe the statements filed in the four motions . . . were filed
for the improper purposes of harassment, delay[,] and to needlessly increase litigation costs
and that they constitute abusive and obstreperous conduct which was intended to disrupt
the proceeding . . . and influence the review of the appellate court.” Finally, the hearing
panel found that “Mr. Justice’s intentional acts of misconduct caused injury in disrupting
the proceeding, causing delay that resulted from time taken in the proceeding to address
the inappropriate statements in the motions, and undermining public confidence in the
administration of justice.”

Based on these findings of fact, the hearing panel concluded that Mr. Justice violated
RPCs 3.5(e), 8.2(a)(1), 8.4(a), and 8.4(d) as alleged in the Board’s petition.

- 10 -
The hearing panel then applied the American Bar Association Standards for
Imposing Lawyer Sanctions to determine the appropriate punishment for Mr. Justice’s
misconduct. The hearing panel determined that ABA Standards 6.12,6 6.22,7 and 7.28
applied and that a suspension would be the baseline sanction. See Standards for Imposing
Lawyer Sanctions §§ 6.12, 6.22, 7.2 (Am. Bar Ass’n, amended 1992). It explained that it
selected these Standards because “Mr. Justice knowingly violated the [trial court’s] order
on [January 2, 2017,] to cease from filing motions with derogatory language” by filing two
more motions with offensive statements. The hearing panel stated that, in filing these
motions, Mr. Justice “intended to interfere with the legal proceeding and obtain a benefit
through securing his desired personal outcome in the proceeding” and that Mr. Justice
intended to deceive the court that would review the matter on appeal. The hearing panel
also stated that Mr. Justice’s pejorative statements were “so prejudicial to the
administration of justice that they significantly undermine the integrity and public
confidence in the administration of justice.”

The hearing panel then considered applicable aggravating and mitigating factors to
determine the appropriate discipline against Mr. Justice. The panel found that the
following aggravating factors justified an increase in the degree of discipline to be
imposed: (1) Mr. Justice’s prior disciplinary history—specifically, Mr. Justice’s
disbarment from the practice of law on July 2, 2019, in a separate disciplinary matter; (2)
a pattern of misconduct; (3) refusal to acknowledge the wrongful nature of his conduct;
and (4) substantial experience in the practice of law. The panel did not find any applicable
mitigating factors.

The hearing panel ultimately recommended that Mr. Justice be suspended from the
practice of law for three years “from the date, if any, when he is reinstated to practice law,

6
ABA Standard 6.12 provides that

[s]uspension is generally appropriate when a lawyer knows that false statements or
documents are being submitted to the court or that material information is improperly being
withheld, and takes no remedial action, and causes injury or potential injury to a party to
the legal proceeding, or causes an adverse or potentially adverse effect on the legal
proceeding.
7
ABA Standard 6.22 provides that “[s]uspension is generally appropriate when a lawyer knows
that he or she is violating a court order or rule, and causes injury or potential injury to a client or a party, or
causes interference or potential interference with a legal proceeding.”
8
ABA Standard 7.2 provides that “[s]uspension is generally appropriate when a lawyer knowingly
engages in conduct that is a violation of a duty as a professional and causes injury or potential injury to a
client, the public, or the legal system.”

- 11 -
pursuant to [Tennessee Supreme Court Rule] 9, [section] 12.2.”9 The panel also concluded
that Mr. Justice should be required to complete six hours of continuing legal education
related to ethics for six consecutive years after the expiration of his suspension. Finally,
the panel assessed the costs of the disciplinary proceeding against Mr. Justice and required
that they be paid before he could be reinstated to the practice of law.

On September 27, 2021, Mr. Justice filed a petition for review pursuant to
Tennessee Supreme Court Rule 9, section 33.1(b) in which he challenged the panel’s
finding that he violated the RPCs. In addition, Mr. Justice made two procedural challenges
in his trial court brief: (1) he argued that his motion for summary judgment should have
been granted because the Board’s response to his motion, in which it requested additional
time to obtain discovery, was not supported by an affidavit as required by Tennessee Rule
of Civil Procedure 56.07; and (2) he argued that the hearing panel abused its discretion in
sanctioning him for his failure to answer the Board’s interrogatories. Although he did not
designate it as an issue in the “Questions Presented” section of his brief, Mr. Justice also
argued that he was prejudiced by Judge Ash’s and disciplinary counsel’s conduct during
and after Judge Ash’s deposition.

The trial court held a hearing on the petition on June 7, 2022. On July 15, 2022, the
trial court entered an order denying relief to Mr. Justice on the issues he raised.

With regard to Mr. Justice’s argument that his motion for summary judgment should
have been granted, the trial court determined that the Board should have supported its
request for additional time to respond to the motion for summary judgment with an
affidavit. However, the trial court held that the hearing panel did not abuse its discretion
in allowing the Board to have additional time to respond, as “the facts that would have been
alleged in . . . an affidavit [were] clearly apparent in the Administrative Record existing
before the Panel at the time it granted the Board’s request.”

Furthermore, the trial court held that even if the hearing panel’s granting of
additional time were an abuse of discretion, Mr. Justice would not have been entitled to
summary judgment because the motion merely repeated a legal conclusion—that the Board
could not prove its case. The trial court held that there was sufficient evidence in the record
to defeat Mr. Justice’s statement in his motion for summary judgment that there was no
evidence that he knew about, read, prepared, or approved the filings containing the
inflammatory statements. The trial court noted that the motion for summary judgment was
not supported by an affidavit from Mr. Justice attesting that he did not know about, read,
prepare, or approve the filings. In the absence of such an affidavit, Mr. Justice’s name,
9
Under the version of Tennessee Supreme Court Rule 9 that was in effect when Mr. Justice was
disbarred, attorneys that were disbarred could seek reinstatement after five years. See Tenn. Sup. Ct. R. 9,
§§ 30.2, 30.4 (2019). Under the current version of the rule, attorneys disbarred on or after July 1, 2020 are
ineligible for reinstatement. Tenn. Sup. Ct. R. 9, § 30.2.
- 12 -
address, telephone number, and Board of Professional Responsibility number, along with
his filing and advocating for the filings, constituted “certification that the filings were not
presented for any improper purpose, and that the factual contentions had evidentiary
support.” These also made Mr. Justice responsible for the pleadings filed under his name.
The trial court held that, at the summary judgment stage, “[i]t would [have] require[d]
actual averments that he did not read, prepare, approve, or know about the filings to require
the Board to come forward with any evidence, beyond the filings themselves[,] to show
[that Mr.] Justice was responsible for them.”

With regard to Mr. Justice’s argument about the propriety of the discovery sanction
imposed against him, the trial court noted that the panel gave Mr. Justice “multiple
opportunities to appropriately answer the Board’s interrogatories, which had been
outstanding for almost [two and a half] years, and which he had been ordered to answer
over a year earlier, and again over a month before the hearing on the motion for sanctions.”
The trial court also stated that Mr. Justice and his attorney “engaged in a pattern of
gamesmanship in an effort to avoid directly addressing his responsibility for the scandalous
and impertinent statements contained in his filings in the juvenile court.” The trial court
held that the panel was empowered to impose the sanction pursuant to Tennessee Rule of
Civil Procedure 37.02 and that “[a]ny lesser or other sanction would not be ‘just’ in regard
to [Mr. Justice’s] obstreperous and willful failure to answer the Board’s interrogatories.”
In addition, the trial court held that even if the imposition of the discovery sanction
constituted an abuse of discretion, that error was harmless.

The trial court affirmed the hearing panel’s finding that Mr. Justice violated RPCs
3.5(e), 8.2(a), and 8.4(a) and (d). In so ruling, the trial court relied on the disparaging
statements Mr. Justice made in the four pleadings he filed in the child custody case and
found that Mr. Justice, as attorney of record, was “responsible for all the statements.” The
trial court also relied on several other inflammatory statements Mr. Justice made in the
child custody case. These statements were made in the same motions containing the other
offensive statements, but they were not alleged as misconduct in the petition for discipline.

Turning to the discipline imposed by the hearing panel, the trial court concluded
that the hearing panel erred in applying the ABA Standards that established suspension as
the baseline sanction. The trial court held that, because the hearing panel found that Mr.
Justice made the offensive statements with the intent to obtain a personal benefit and
because Mr. Justice had been suspended previously for similar misconduct, the hearing

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panel should have applied ABA Standards 6.21,10 7.1,11 and 8.1,12 which establish
disbarment as the baseline sanction. The trial court also found an aggravating circumstance
not considered by the hearing panel—that Mr. Justice’s actions were dishonest and
selfishly motivated. The trial court ultimately held that Mr. Justice’s sanction should be
disbarment.13

Mr. Justice appealed to this Court pursuant to Tennessee Supreme Court Rule 9,
section 33.1(d) and raised the following issues:

(1) Whether the trial court erred in affirming the hearing panel’s decision of sanctions for
Mr. Justice’s failure to answer the Board’s interrogatories or comply with two orders
requiring him to answer the interrogatories.

(2) Whether the trial court erred in affirming the panel’s findings that Mr. Justice made
slanderous, disrespectful, and derogatory statements about Judge Ash, that the statements
were not objectively reasonable under the circumstances under this Court’s holding in
Board of Professional Responsibility v. Parrish, 556 S.W.3d 153 (Tenn. 2018), that the
statements were not protected by the First Amendment to the United States Constitution,
and that the statements constituted ethical misconduct.

10
ABA Standard 6.21 provides that “[d]isbarment is generally appropriate when a lawyer
knowingly violates a court order or rule with the intent to obtain a benefit for the lawyer or another, and
causes serious injury or potentially serious injury to a party or causes serious or potentially serious
interference with a legal proceeding.”
11
ABA Standard 7.1 provides that “[d]isbarment is generally appropriate when a lawyer knowingly
engages in conduct that is a violation of a duty owed as a professional with the intent to obtain a benefit for
the lawyer or another, and causes serious or potentially serious injury to a client, the public, or the legal
system.”
12
ABA Standard 8.1 provides:

Disbarment is generally appropriate when a lawyer:

(a) intentionally or knowingly violates the terms of a prior disciplinary order and such
violation causes injury or potential injury to a client, the public, the legal system, or the
profession; or

(b) has been suspended for the same or similar misconduct, and intentionally or knowingly
engages in further similar acts of misconduct that cause injury or potential injury to a client,
the public, the legal system, or the profession.
13
The trial court’s order did not address Mr. Justice’s argument concerning the deposition of Judge
Ash.
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(3) Whether the trial court erred in affirming the panel’s denial of Mr. Justice’s motion for
summary judgment.

(4) Whether the hearing panel abused its discretion and violated Tennessee Rule of Civil
Procedure 52 by not specifying which of Mr. Justice’s offensive statements the Board
relied upon in the petition for discipline were false.

(5) Whether the hearing panel erred and abused its discretion by declining to compel Judge
Ash to complete the proof deposition he gave by agreement of the parties.

(6) Whether the trial court erred in relying on statements not alleged in the petition for
discipline, making findings of fact the hearing panel did not make, finding that the
presumptive baseline sanction for Mr. Justice’s conduct under the ABA Standards was
disbarment rather than suspension, and concluding that the hearing panel abused its
discretion in imposing a three-year suspension as discipline rather than disbarment.

II. Standard of Review

As the “final arbiter of the professional conduct of all lawyers practicing in
Tennessee . . . and the source of authority of the Board and all its functions,” the Tennessee
Supreme Court is “tasked with the ultimate disciplinary responsibility for violations of the
ethical rules that govern the legal profession.” Bd. of Pro. Resp. v. Justice, 577 S.W.3d
908, 923 (Tenn. 2019) (first quotation); Waggoner v. Bd. of Pro. Resp., 673 S.W.3d 227,
235 (Tenn. 2023) (citations omitted) (second quotation). “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.” Justice, 577 S.W.3d at 923. The hearing panel’s decision may be appealed to
the chancery or circuit court by either party. Id. The trial court conducts its review upon
“the transcript of the evidence before the hearing panel and its findings and judgment.”
Tenn. Sup. Ct. R. 9, § 33.1(b).

Either party may appeal the trial court’s decision to this Court, which resolves the
appeal based “upon the transcript of the record from the circuit or chancery court, which
shall include the transcript of the evidence before the hearing panel.” Tenn. Sup. Ct. R. 9,
§ 33.1(d). In reviewing disciplinary judgments, we apply the same standard of review as
the trial court. Under that standard, we determine 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 abuse of discretion or clearly unwarranted

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exercise of discretion; or (5) unsupported by evidence which is both
substantial and material in light of the entire record.

Tenn. Sup. Ct. R. 9, § 33.1(b). To determine whether substantial and material evidence
supports a hearing panel’s decision, we evaluate “whether the evidence ‘furnishes a
reasonably sound factual basis for the decision being reviewed.’” Justice, 577 S.W.3d at
923 (quoting Sneed v. Bd. of Pro. Resp., 301 S.W.3d 603, 612 (Tenn. 2010)). “A
reasonably sound basis is less than a preponderance of the evidence but more than a
scintilla or glimmer.” Harris v. Bd. of Pro. Resp., 645 S.W.3d 125, 137 (Tenn. 2022)
(quoting Beier v. Bd. of Pro. Resp., 610 S.W.3d 425, 438 (Tenn. 2020)). A hearing panel’s
decision is arbitrary or capricious when it “is not based on any course of reasoning or
exercise of judgment, or . . . disregards the facts or circumstances of the case without some
basis that would lead a reasonable person to reach the same conclusion.” Parrish, 556
S.W.3d at 163 (quoting Hughes v. Bd. of Pro. Resp., 259 S.W.3d 631, 641 (Tenn. 2008)).
A hearing panel has abused its discretion if it “appl[ies] an incorrect legal standard or
reach[es] a decision that is against logic or reasoning that causes an injustice to the party
complaining.” Id. (alteration in original) (quoting Sallee v. Bd. of Pro. Resp., 469 S.W.3d
18, 42 (Tenn. 2015)).

We review questions of law de novo with no presumption of correctness. Harris,
645 S.W.3d at 136. However, we do not substitute our judgment for that of a hearing panel
with regard to the weight of the evidence on questions of fact. Id. We conduct our review
of disciplinary judgments “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.” Green v. Bd. of
Pro. Resp., 567 S.W.3d 700, 713 (Tenn. 2019).

III. Analysis

A. Discovery Sanction

Mr. Justice argues that the trial court erred in holding that the hearing panel did not
abuse its discretion when it sanctioned him for discovery violations pursuant to Tennessee
Rule of Civil Procedure 37.02(A) by deeming admitted the Board’s interrogatories that he
failed to answer. Mr. Justice asserts that the sanctions “essentially grant[ed] the Board a
default judgment” and violated his state and federal constitutional rights. In addition,
although he maintains that sanctions were not warranted, Mr. Justice argues that the
sanctions imposed did not “match the offense.” The Board asserts that the trial court
correctly held that the hearing panel did not abuse its discretion in imposing the sanctions,
as the hearing panel possessed the authority to do so pursuant to Tennessee Rule of Civil
Procedure 37.02(A), and Mr. Justice had failed to comply with two orders compelling him
to answer the interrogatories.
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Tennessee Rule of Civil Procedure 37.02 provides that trial courts may impose
sanctions “as are just” on a party that disobeys a court order compelling discovery.
Although “[t]he sanction . . . must fit the offense,” Boles v. Nat’l Dev. Co., 175 S.W.3d
226, 244 (Tenn. Ct. App. 2005), trial judges have “wide discretion” in determining the
sanction to be imposed. Mercer v. Vanderbilt Univ., Inc., 134 S.W.3d 121, 133 (Tenn.
2004). Because the Rules of Civil Procedure apply in disciplinary proceedings, see
Tennessee Supreme Court Rule 9, section 34.3(a), hearing panels have the same authority
as trial courts to impose sanctions of the discovery process. One sanction that a trial court
or hearing panel may impose is entry of “[a]n order that the matters regarding which the
order was made or any other designated facts shall be taken to be established for the
purposes of the action in accordance with the claim of the party obtaining the order.” Tenn.
R. Civ. Proc. 37.02(A).

In this case, the Board served five interrogatories on Mr. Justice on July 18, 2018.
Mr. Justice objected to the interrogatories based on the attorney-client privilege and the
work product doctrine. The Board moved to compel responses to the interrogatories, which
the hearing panel granted on June 5, 2019. In a scheduling order entered on September 1,
2020, the hearing panel again ordered Mr. Justice to respond to the interrogatories within
fourteen days. After receiving no responses from Mr. Justice, the Board filed a motion for
sanctions on October 9, 2020. The hearing panel granted the motion, finding that “[n]o
just cause” existed for Mr. Justice’s failure to comply with the discovery orders entered on
June 5, 2019, and September 1, 2020. The panel determined that the appropriate sanction
was “entry of an order that the facts into which inquiry was being made by the Board be
taken as established for the purposes of the action in accordance with the claim of the Board
under Tenn[essee] Rule [of] Civ[il] Pr[ocedure] 37.02(A).” Accordingly, the panel
deemed admitted that Mr. Justice “prepared, read, and/or approved” the four motions
containing inflammatory statements upon which the petition for discipline was based.

It is clear that the hearing panel possessed the authority to impose discovery
sanctions against Mr. Justice pursuant to Tennessee Rule of Civil Procedure 37.02 and that
it could impose the specific type of sanction it chose pursuant to Rule 37.02(A). Although
Mr. Justice argues that sanctions were not warranted and that they did not match the
offense, the record shows that Mr. Justice was given multiple opportunities to provide
appropriate responses to the Board’s interrogatories over the more than two years that the
interrogatories were outstanding. During that time, the hearing panel ordered Mr. Justice
on two separate occasions to appropriately respond to the interrogatories, and he failed to
do so. The hearing panel stated that “[n]o just cause existed” for Mr. Justice’s failure to
comply with those orders. Given the multiple opportunities Mr. Justice had to respond, his
failure to appropriately respond despite being ordered to do so twice, and the “wide
discretion” afforded the hearing panel in determining the appropriate discovery sanction,

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the hearing panel did not abuse its discretion in imposing the discovery sanction in this
case.

We disagree with Mr. Justice’s characterization of the discovery sanction as “case-
ending,” because even assuming the hearing panel erred in imposing the sanction, the error
is harmless. Mr. Justice’s name and Board of Professional Responsibility number appear
on each of the four motions that contained inflammatory statements, and the name of his
law firm appears on three of the four motions. Mr. Justice even personally argued the
Motion for Interlocutory Appeal, which contained the majority of the offensive statements,
and he did not disavow any of those statements. In addition, Mr. Justice signed the
declaration of the Motion to Recuse as required by Tennessee Supreme Court Rule 10B.
See Tenn. Sup. Ct. R. 10B, section 1.01 (“The motion [to recuse] shall be supported by an
affidavit under oath or a declaration under penalty of perjury on personal knowledge and
by other appropriate materials.”). In his declaration, he stated that assertions in the motion
to recuse were “true and correct to the best of [his] knowledge” and that the motion to
recuse was not being presented “for any improper purpose, such as to harass or to cause
unnecessary delay or needless increase in the cost of litigation.” Therefore, even
disregarding the discovery sanction imposed against Mr. Justice, substantial and material
evidence supports the hearing panel’s finding that Mr. Justice “prepared, read, and/or
approved” the four motions containing inflammatory statements upon which the petition
for discipline was based. In sum, we affirm the trial court’s ruling on this issue.

B. Derogatory Statements

Mr. Justice next argues that the trial court erred in affirming the hearing panel’s
findings that he made derogatory statements about Judge Ash in violation of RPCs 3.5(e),
8.2(a)(1), and 8.4(a) and (d). According to Mr. Justice, the statements were objectively
reasonable under the circumstances and protected by the First Amendment to the United
States Constitution. The Board responds that the trial court correctly affirmed the hearing
panel’s finding that Mr. Justice made the derogatory statements about Judge Ash and that
making the statements violated the RPCs.

i. First Amendment

The free speech clause of the First Amendment to the United States Constitution
provides that “Congress shall make no law . . . abridging the freedom of speech.” U.S.
Const. amend. I. However, an attorney’s First Amendment rights are not without limits in
the context of judicial proceedings. Bd. of Pro. Resp. v. Slavin, 145 S.W.3d 538, 549 &
n.9 (Tenn. 2004). The First Amendment rights of attorneys “are often subordinated to other
interests inherent in the judicial setting.” Id. at 549. “[I]n the courtroom itself, during a
judicial proceeding, whatever right to ‘free speech’ an attorney has is extremely
circumscribed.” Gentile v. State Bar of Nev., 501 U.S. 1030, 1071 (1991). While
- 18 -
“legitimate criticism of judicial officers is tolerable, ‘an attorney must follow the Rules of
Professional Conduct when so doing.’” Slavin, 145 S.W.3d at 549 (quoting Shortes v. Hill,
860 So.2d 1, 3 (Fla. Dist. Ct. App. 2003)); see also Parrish, 556 S.W.3d at 164 (stating that
this Court in a prior case intended to “limit an attorney’s criticisms of the judicial system
and its officers to those criticisms which are consistent in every way with the sweep and
the spirit of the Rules of Professional Conduct”).

To assess whether Mr. Justice’s speech that was alleged to have violated RPCs
3.5(e) and 8.4(d) was constitutionally protected, this Court utilizes the balancing process
described in Gentile. 501 U.S. at 1050-51; see Manookian v. Bd. of Pro. Resp., 685 S.W.3d
744, 781-91 (Tenn. 2024) (applying the Gentile balancing process to determine whether
attorney could be disciplined for speech that violated the RPCs). Under this balancing
process, we “weigh[] the State’s interest in the regulation of a specialized profession
against [the] lawyer’s First Amendment interest in the kind of speech . . . at issue.” Gentile,
501 U.S. at 1073.

In determining Mr. Justice’s interest in the Gentile balancing process, we consider
the context and purpose of the speech. See Manookian, 685 S.W.3d at 783. The speech at
issue in this case consisted of inflammatory statements about Judge Ash that Mr. Justice
made in four motions he filed in the trial court during the court of child custody
proceedings.14 These statements, such as Mr. Justice’s likening Judge Ash’s demeanor to
that of Yosemite Sam and asserting that Judge Ash ran from evidence as if it were the
Ebola virus, can only be described as personal attacks that were meant to harass Judge Ash,
criticize his rulings, and disrupt the child custody proceedings. Thus, they served no
legitimate purpose. See id. at 783 (“[L]awyer speech that advances client interests, checks
governmental power, or advocates on matters of public concern is provided the utmost
protection under the First Amendment.”) (quoting Matter of Abrams, 488 P.3d 1043, 1051
(Colo. 2021)). We give no weight to Mr. Justice’s interest in this type of speech.

Conversely, the State’s interest in regulating speech that violates RPCs 3.5(e) and
8.4(d) weighs heavily. The statements Mr. Justice made in his pleadings are considered
in-court speech, the type of speech in which the State’s interest in regulating lawyers is at
its highest. See Parrish, 556 S.W.3d at 165; Slavin, 145 S.W.3d at 549. Further, the State
has a strong interest in protecting the administration of justice and the integrity of the legal
process. See Manookian, 685 S.W.3d at 785 (“A state’s interest in regulating attorney
speech is at its strongest when the regulation is necessary to preserve the integrity of the
justice system . . . .”) (quoting Matter of Abrams, 488 P.3d at 1051). When weighing this

14
We need not address Mr. Justice’s argument that there is no evidence he made the derogatory
statements about Judge Ash. We have already upheld the discovery sanction imposed by the hearing panel,
which deemed admitted that Mr. Justice “prepared, read, and/or approved” the four motions containing
inflammatory statements upon which the petition for discipline was based.

- 19 -
interest against Mr. Justice’s interest in harassing and criticizing Judge Ash in his
pleadings, the State’s interest overwhelmingly outweighs that of Mr. Justice.

In addition to making statements that were alleged to have violated RPCs 3.5(e) and
8.2(d), Mr. Justice also made a number of statements that impugned Judge Ash’s integrity
and were alleged to have violated RPC 8.2(a)(1). We apply a different standard to
determine whether these statements are protected by the First Amendment. To determine
whether in-court speech that violates RPC 8.2(a)(1) is constitutionally protected, we apply
the objective “reasonable attorney” standard adopted in Parrish. 556 S.W.3d at 165-66.
Under this standard, the court “assesses the statements in terms of ‘what the reasonable
attorney, considered in light of all his professional functions, would do in the same or
similar circumstances . . . [and] focus[ing] on whether the attorney had a reasonable factual
basis for making the statements, considering their nature and the context in which they
were made.’” Id. (alterations in original) (quoting Disciplinary Couns. v. Gardner, 793
N.E.2d 425, 431 (Ohio 2003)). “It is the reasonableness of the belief, not the state of mind
of the attorney, that is determinative.” Id. at 166 (quoting Matter of Holtzman, 577 N.E.2d
30, 34 (N.Y. 1991)).

In reviewing the statements Mr. Justice made that impugned Judge Ash’s integrity,
it is clear that the statements went far beyond the bounds of what an objectively reasonable
attorney would make. Even considering the nature of the statements and the context in
which they were made, see Parrish, 556 S.W.3d at 165-66, there was no reasonable factual
basis for making the statements.

For example, Mr. Justice made several statements implying that Judge Ash ignored
alleged attempts by the Plaintiff to sell time with the minor child and hold the minor child
hostage for ransom. These statements are a mischaracterization of a proposed settlement
agreement in the child custody case that the parties advised the trial court they had reached.
Under the terms of the proposed settlement agreement, which ultimately fell through, Mr.
Justice would have paid $200,000 in child support and $200,000 for the Plaintiff’s attorney
fees. Mr. Justice equates this agreement to the Plaintiff holding the minor child hostage
for money and alleges that Judge Ash ignored this despicable behavior.

Mr. Justice also made statements about Judge Ash engaging in ex parte
communications by “chatting up” the Plaintiff. See Tenn. Sup. Ct. R. 10, RJC 2.9(A) (“A
judge shall not initiate, permit, or consider ex parte communications, or consider other
communications made to the judge outside the presence of the parties or their lawyers,
concerning a pending or impending matter . . . .”). The exchange to which Mr. Justice’s
statements referred occurred after the parties had announced the case had settled and while
they were waiting for Mr. Justice to arrive. In that conversation, Judge Ash asked the
Plaintiff if she was the public defender and why she would want to be the public defender
since it is a difficult job. The Plaintiff indicated that the job was rewarding. She mentioned
- 20 -
that she was assisting with starting a drug court and that it was rewarding to see the success
of the participants. Judge Ash said the public defender in Murfreesboro had helped him
start a drug court, and the Plaintiff mentioned that Gerald, the public defender to whom
Judge Ash was referring, was working with her on an unspecified project. Judge Ash
reiterated his view that working as a public defender would be overwhelming, and the
Plaintiff’s attorney responded, “Kind of like a family law attorney?” This conversation
was brief, took place in the presence of Mr. Justice’s attorney, was not related to the child
custody proceedings, and occurred after the parties announced the case had settled. Thus,
it was not an improper ex parte communication.

Utilizing the objective reasonable attorney standard, the hearing panel found that a
reasonable attorney would not believe there was a factual basis for the statements Mr.
Justice made. For the aforementioned reasons, we agree.

In sum, after assessing Mr. Justice’s statements under the Gentile balancing test and
the objective reasonable attorney standard, we hold that none of Mr. Justice’s statements
were constitutionally protected. Accordingly, the trial court properly affirmed the hearing
panel on this issue.

ii. Substantial and Material Evidence

In determining whether substantial and material evidence supports a hearing panel’s
decision, we evaluate “whether the evidence ‘furnishes a reasonably sound factual basis
for the decision being reviewed.’” Justice, 577 S.W.3d at 923 (quoting Sneed, 301 S.W.3d
at 612). “A reasonably sound basis is less than a preponderance of the evidence but more
than a scintilla or glimmer.” Harris, 645 S.W.3d at 137 (quoting Beier, 610 S.W.3d at
438). As we will explain, the hearing panel’s findings on rule violations are all supported
by substantial and material evidence.

a. Statements About Integrity of a Judge

The hearing panel in this case found that Mr. Justice violated RPC 8.2(a)(1) by
making statements about the integrity of Judge Ash that he knew were false or that he made
with reckless disregard as to their truth or falsity. See Tenn. Sup. Ct. R. 8, RPC 8.2(a)(1)
(“A lawyer shall not make a statement that the lawyer knows to be false or that is made
with reckless disregard as to its truth or falsity concerning the qualifications or integrity of
. . . a judge.”). To support this finding, the hearing panel quoted several statements Mr.
Justice made that impugned the integrity of Judge Ash, including the statements that Judge
Ash appeared to be “in the bag” and was more interested in making the courthouse crowd
happy than caring for the interests of the minor child.

- 21 -
Substantial and material evidence supports the hearing panel’s finding that Mr.
Justice violated RPC 8.2(a)(1). As explained above, the evidence in the record shows that
the statements asserted or implied that Judge Ash ignored judicial corruption, disregarded
alleged attempts by the Plaintiff to sell time with the minor child, engaged in ex parte
communications with the Plaintiff, and cared more about whether the courthouse crowd
was happy than the interests of the minor child. These statements attacked Judge Ash’s
integrity, lacked any sort of factual basis, and were gross mischaracterizations of a
proposed settlement agreement between the parties and a brief conversation between Judge
Ash and the Plaintiff. The evidence in the record provides a “reasonably sound factual
basis” for the hearing panel’s finding that Mr. Justice violated RPC 8.2(a)(1). See Justice,
577 S.W.3d at 923. Thus, the trial court properly affirmed the hearing panel’s finding that
Mr. Justice violated RPC 8.2(a)(1).

b. Conduct Intended to Disrupt a Tribunal

The hearing panel found that a “reasonable attorney would believe the statements
filed in the four motions that Mr. Justice prepared, read, and/or approved were filed for the
improper purposes of harassment, delay[,] and to needlessly increase litigation costs and
that they constitute[d] abusive and obstreperous conduct which was intended to disrupt”
the child custody proceedings. The hearing panel found that Mr. Justice’s intentional acts
of misconduct disrupted the proceedings in the form of “delay that resulted from time taken
in the proceeding to address the inappropriate statements in the motions.” The hearing
panel ultimately determined that Mr. Justice’s conduct in “preparing, reading[,] and/or
approving the four motions was conduct intended to disrupt a tribunal” in violation of RPC
3.5(e). See Tenn. Sup. Ct. R. 8, RPC 3.5(e) (“A lawyer shall not: . . . engage in conduct
intended to disrupt a tribunal.”).

Comment 5 to RPC 3.5(e) explains that an attorney’s “function is to present
evidence and argument so that the cause may be decided according to law.” Tenn. Sup.
Ct. R. 8, RPC 3.5 cmt. 5. An attorney can “present the cause, protect the record for
subsequent review, and preserve professional integrity by patient firmness no less
effectively than by belligerence or theatrics.” Id. Even if an attorney disagrees with a
court’s ruling, “zealous representation of a client ‘never justifies the use of disrespectful,
unprofessional, or indecorous language to the court.’” Bailey v. Bd. of Pro. Resp., 441
S.W.3d 223, 234 (Tenn. 2014) (quoting In re Moncier, 550 F.Supp.2d 768, 807 (E.D. Tenn.
2008)).

Mr. Justice’s conduct in filing motions containing pejorative statements about Judge
Ash is precisely the type of obstreperous conduct prohibited by RPC 3.5(e). Mr. Justice’s
reckless attacks against Judge Ash were unnecessary and served no purpose other than to
interfere with the orderly conduct of the child custody proceedings. Mr. Justice’s intent to
disrupt the proceedings is evident from his continued use of offensive statements in his
- 22 -
pleadings after Judge Ash ordered him to cease from doing so on multiple occasions.
Although Mr. Justice may have disagreed with Judge Ash’s rulings, that is not justification
for his use of disrespectful and unprofessional language. In sum, substantial and material
evidence supports the hearing panel’s finding that Mr. Justice violated RPC 3.5(e). The
trial court properly affirmed the hearing panel’s finding as to this violation.

c. Conduct Prejudicial to the Administration of Justice

The hearing panel found that Mr. Justice’s use of inappropriate statements in the
motions he filed “undermin[ed] public confidence in the administration of justice” in
violation RPC 8.4(d) and that his violations of RPCs 3.5(e), 8.2(a)(1), and 8.4(d) violated
RPC 8.4(a). See Tenn. Sup. Ct. R. 8, RPC 8.4(a), (d) (“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 . . . [and] (d) engage
in conduct that is prejudicial to the administration of justice.”).

An attorney’s speech is sanctionable “if it is highly likely to obstruct or prejudice
the administration of justice.” Slavin, 145 S.W.3d at 550. These narrow restrictions on
speech “are justified by the integral role that attorneys play in the judicial system, which
requires them to refrain from speech or conduct that may obstruct the fair administration
of justice.” Id. (quoting Gardner, 793 N.E.2d at 429).

In Parrish, this Court held that similar inappropriate and disparaging comments
about a judge constituted conduct prejudicial to the administration of justice. 556 S.W.3d
at 167. Substantial and material evidence supports the hearing panel’s conclusion that Mr.
Justice’s conduct in this case does as well. In addition, the evidence supporting the hearing
panel’s findings that Mr. Justice violated RPCs 3.5(e), 8.2(a)(1), and 8.4(d) supports the
hearing panel’s findings that Mr. Justice violated RPC 8.4(a). Thus, the trial court correctly
affirmed the hearing panel’s finding that Mr. Justice violated RPCs 8.4(a) and (d).

C. Motion for Summary Judgment

Mr. Justice next argues that the hearing panel erred when it denied his motion for
summary judgment after the Board failed to respond to his statement of undisputed material
facts and failed to comply with Tennessee Rule of Civil Procedure 56.07 by not submitting
an affidavit specifying why more time was needed to respond to the motion for summary
judgment. The Board responds that the trial court correctly affirmed the hearing panel’s
denial of Mr. Justice’s motion for summary judgment.

Summary judgment is appropriately granted when the “pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that the moving party is entitled
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to judgment as a matter of law.” Tenn. R. Civ. Proc. 56.04. When the moving party does
not bear the burden of proof at trial, it may satisfy its burden of production “by
affirmatively negating an essential element of the nonmoving party’s claim” or “by
demonstrating that the nonmoving party’s evidence at the summary judgment stage is
insufficient to establish the nonmoving party’s claim or defense.” Rye v. Women’s Care
Ctr. of Memphis, 477 S.W.3d 235, 264 (Tenn. 2015). The moving party must support its
motion with “a separate concise statement of material facts as to which the moving party
contends there is no genuine issue for trial.” Tenn. R. Civ. Proc. 56.03.

Once the moving party satisfies its burden, the nonmoving party must “set forth
specific facts showing that there is a genuine issue for trial.” Tenn. R. Civ. Proc. 56.06. If
the nonmoving party cannot present by affidavit facts essential to justify its opposition to
the motion for summary judgment, it may file an affidavit stating its reasons for not being
able to do so. Tenn. R. Civ. Proc. 56.07. If such an affidavit is filed, the court may deny
the motion for summary judgment or “may order a continuance to permit affidavits to be
obtained or depositions to be taken or discovery to be had or may make such other order
as is just.” Id.

In ruling on a motion for summary judgment, the trial court “must accept the
nonmoving party’s evidence as true[] and view both the evidence and all reasonable
inferences that can be drawn therefrom in the light most favorable to the nonmoving party.”
Tatham v. Bridgestone Ams. Holding, Inc., 473 S.W.3d 734, 751-52 (Tenn. 2015).
Appellate courts review a trial court’s decision on a motion for summary judgment de novo
with no presumption of correctness. Rye, 477 S.W.3d at 250.

In this case, Mr. Justice filed his motion for summary judgment on November 13,
2018. The Board responded on December 17, 2018, and claimed that it should not be
required to respond to the motion for summary judgment until it received the discovery it
sought. Specifically, the Board wished to take the depositions of Mr. Rickman and Mr.
Justice, and it had not received responses to its interrogatories from Mr. Justice. The Board
relied on Tennessee Rule of Civil Procedure 56.07 in requesting additional time to respond
to the motion. However, it did not submit an affidavit to support its request.

On September 30, 2019, the Board filed a second response to the motion for
summary judgment and a statement of undisputed facts. The Board objected to Mr.
Justice’s statement of undisputed facts and explained that many of the purported facts were
actually legal conclusions.

The hearing panel denied Mr. Justice’s motion for summary judgment on April 29,
2020. It determined that the petition for discipline sufficiently alleged facts that, taken as
true, established violations of RPCs 3.5(e), 8.2(a), and 8.4(a) and (d). The hearing panel
concluded that Mr. Justice’s denial of responsibility for the inflammatory statements
- 24 -
forming the basis of the petition for discipline created a genuine issue of material fact for
determination and that Mr. Justice had not shown that there was no dispute of fact on that
issue.

On appeal, Mr. Justice argued to the trial court that the hearing panel should have
granted his motion for summary judgment because the Board did not file an affidavit with
its December 17, 2018, response. The trial court agreed that the Board should have filed
an affidavit supporting its request for additional time to respond to the motion for summary
judgment. However, the trial court held that the hearing panel did not err when it denied
Mr. Justice’s motion for summary judgment. The trial court noted that the discovery the
Board wished to obtain sought information on matters relevant to the summary judgment
motion. The trial court also noted that a motion to compel a response to the Board’s
interrogatories was pending when Mr. Justice filed his motion for summary judgment. The
trial court explained that “the facts that would have been alleged in such an affidavit [were]
clearly apparent in the Administrative Record existing before the [hearing panel] at the
time it granted the Board’s request.” Additionally, the trial court determined that, even if
the hearing panel erred by granting the Board additional time to respond to the motion for
summary judgment, the error was harmless because evidence in the record before the
hearing panel refuted Mr. Justice’s assertion that there was no evidence that he knew about,
read, prepared, or approved the filings containing the inflammatory statements. Citing
examples of evidence refuting Mr. Justice’s assertion, the trial court pointed to the fact that
the signature blocks on the filings indicated that they were prepared by Mr. Justice, Mr.
Justice’s law firm, and his co-counsel. The trial court also noted that Mr. Justice was a
party in the child custody case and that he and his firm were counsel of record.

The trial court also pointed out that Mr. Justice did not submit an affidavit in support
of his motion for summary judgment in which he attested that he did not know about, read,
prepare, or approve the motions before they were filed. In the absence of such an affidavit,
the fact that Mr. Justice’s name, address, telephone number, and Board of Professional
Responsibility number were on the motions, along with Mr. Justice’s filing and advocating
for the motions, constituted “certification that the filings were not presented for any
improper purpose, and that the factual contentions had evidentiary support.” Because this
made Mr. Justice “responsible for the content of the filings made under his name,” Mr.
Justice needed to submit an affidavit stating that he did not read, prepare, approve, or know
about the filings in order to require the Board to produce evidence that Mr. Justice was
responsible for them. Accordingly, the trial court held that Mr. Justice’s motion for
summary judgment was properly denied.

We agree with the sound reasoning of the trial court on this issue. Indeed, the Board
should have filed an affidavit supporting its request for additional time to respond to the
motion for summary judgment, as Tennessee Rule of Civil Procedure 56.07 specifically
provides that if the non-moving party cannot present facts essential to justify its opposition
- 25 -
to the motion for summary judgment, its reasons should be apparent in an affidavit. Tenn.
R. Civ. Proc. 56.07. However, the hearing panel did not err when it granted the Board’s
request for additional time to respond to the motion for summary judgment, because, as the
trial court observed, the facts that would have been alleged in such an affidavit were
apparent from the administrative record before the hearing panel. Specifically, the Board
had filed a motion to compel responses to interrogatories that sought information pertinent
to the summary judgment motion. At the time the Board requested additional time to
respond to the summary judgment motion, the motion to compel was still pending.

In addition, even assuming the hearing panel erred in granting additional time to
respond, that error was harmless, because it was evident from the record before the hearing
panel that there was a dispute of material fact as to whether Mr. Justice was responsible for
the offensive statements at issue. The petition for discipline alleged that Mr. Justice made
statements in violation of RPCs 3.5(e), 8.2(a), and 8.4(a) and (d). Mr. Justice denied
responsibility for the statements and claimed that there was no evidence that he knew about,
read, prepared, or approved them prior to their being filed. However, the record before the
hearing panel contained sufficient evidence to refute Mr. Justice’s assertion. As the trial
court observed, the signature blocks on the pleadings in the child custody case indicated
that they were filed by Mr. Justice, his firm, and his co-counsel, and Mr. Justice was both
a party and counsel of record in that case. These facts sufficiently countered Mr. Justice’s
assertion that there was no evidence he knew about, read, prepared, or approved the
pleadings containing offensive statements. Accordingly, we affirm the trial court’s ruling
that the hearing panel did not err by denying Mr. Justice’s motion for summary judgment.

D. Tennessee Rule of Civil Procedure 52

Mr. Justice next argues that the hearing panel failed to make specific findings of
fact under Tennessee Rule of Civil Procedure 52.01 because it did not specify which of the
offensive statements at issue were false. As part of this argument, Mr. Justice contends
that the hearing panel’s judgment was not supported by the evidence because the Board
did not offer proof that the statements at issue were false.

Tennessee Rule of Civil Procedure 52.01 provides that, “[i]n all actions tried upon
the facts without a jury, the court shall find the facts specially and shall state separately its
conclusions of law and direct the entry of the appropriate judgment.” This mandate
“facilitates appellate review by affording a reviewing court a clear understanding of the
basis of a trial court’s decision.” In re Houston D., 660 S.W.3d 704, 721 (Tenn. Ct. App.
2022) (internal quotations omitted) (citing Gooding v. Gooding, 477 S.W.3d 774, 782
(Tenn. Ct. App. 2015)). Without findings of fact and conclusions of law, a reviewing court
is “left to wonder on what basis the court reached its ultimate decision.” Id. (internal
quotations omitted).

- 26 -
In this case, the hearing panel made extensive findings of fact regarding the
offensive statements Mr. Justice made in the child custody dispute. Within its findings of
fact, the hearing panel listed each of the offensive statements made by Mr. Justice and
found that “[a] reasonable attorney would not believe there was a factual basis for many of
the statements made in the four motions that Mr. Justice prepared, read[,] and/or approved.”
The hearing panel specifically pointed to statements alleging that Judge Ash “sanctioned
child abuse,” “[ran] from certain evidence as if it [were] the Black Plague,” “[was] more
interested in making the Roane County courthouse crowd happy and receiving their daily
smiles than he [was] in caring for [the minor child’s] bests interests,” and was “simply
playing a shell game with a child.” The findings of fact provided a clear understanding of
the basis for the hearing panel’s decision.

Moreover, the Board was not required to offer proof that the offensive statements
Mr. Justice made were false, because abusive and derogatory language directed toward the
court need not be proven false in order to constitute ethical misconduct. Parrish, 556
S.W.3d at 164. In another disciplinary action involving an attorney who made pejorative
in-court statements about a judge, we quoted with approval the following observation made
by the Supreme Court of Kentucky: “Respondent appears to believe that truth . . . is a
defense to the charge against him. In this respect he has totally missed the point. There
can never be a justification for a lawyer to use such scurrilous language with respect to a
judge in pleadings or in open court.” Slavin, 145 S.W.3d at 549 (quoting Ky. Bar Ass’n v.
Waller, 929 S.W.2d 181, 183 (Ky. 1996)). Accordingly, Mr. Justice is not entitled to relief
on this issue.

E. Deposition of Judge Ash

Mr. Justice argues that he was prejudiced by Judge Ash ending his proof deposition
before Mr. Justice finished his questioning and by disciplinary counsel’s conduct during
the deposition. The Board responds that Mr. Justice waived these issues by not raising
them in the trial court. In the alternative, the Board argues that it was within the discretion
of the hearing panel to refuse to order Judge Ash to appear for another deposition.

We first address the Board’s argument that Mr. Justice waived these issues. As the
Board correctly states, a party may not raise an issue on appeal that it did not raise in the
trial court. Jackson v. Burrell, 602 S.W.3d 340, 344 (Tenn. 2020). Further, “an issue may
be deemed waived when it is argued in the brief but is not designated as an issue in
accordance with [Tennessee Rule of Appellate Procedure] 27(a)(4).” Hodge v. Craig, 382
S.W.3d 325, 335 (Tenn. 2012); see Tenn. R. App. P. 27(a)(4) (providing that an appellant’s
brief must contain a “statement of the issues presented for review”); Childress v. Union
Realty Co., 97 S.W.3d 573, 578 (Tenn. Ct. App. 2002) (“We consider an issue waived
where it is argued in the brief but not designated as an issue.”).

- 27 -
In this case, Mr. Justice argued the issues concerning Judge Ash’s deposition in his
trial court brief. However, Mr. Justice did not properly raise these issues, as he did not list
them in the “Questions Presented” section of his brief. As a result, Mr. Justice has waived
these issues.

F. Trial Court’s Findings and Modification of Sanction

Mr. Justice’s final argument is that the trial court erred in increasing the sanction
imposed against him from a three-year suspension to disbarment. As part of this argument,
Mr. Justice contends that the trial court erred in relying on statements not alleged in the
petition for discipline and making findings of fact that the hearing panel did not make. The
Board counters that the trial court correctly enhanced Mr. Justice’s sanction to disbarment
because the hearing panel acted arbitrarily and capriciously in applying ABA Standards
6.12, 6.22, and 7.2, which call for suspension as the presumptive baseline sanction.

Tennessee Supreme Court Rule 9, section 33.1(b) provides the parameters of the
trial court’s authority in disciplinary appeals. Under the rule, the trial court

may reverse or modify the decision [of the hearing panel] if the rights of the
party filing the Petition for Review have been prejudiced because the hearing
panel’s findings, inferences, conclusions or decisions are: (1) in violation of
constitutional or statutory provisions; (2) in excess of the hearing panel’s
jurisdiction; (3) made upon unlawful procedure; (4) arbitrary or capricious
or characterized by 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.

Tenn. Sup. Ct. R. 9, § 33.1(b). Rule 33.1(b) makes it clear that the hearing panel’s decision
may only be modified or reversed if “the rights of the party filing the Petition for Review”
were prejudiced by the hearing panel’s decision.

In this case, Mr. Justice was the only party that filed a petition for review. Thus,
under Rule 9, section 33.1(b), the trial court could only modify or reverse the judgment if
Mr. Justice’s rights were prejudiced by the hearing panel’s decision. In reviewing the
punishment imposed by the hearing panel, the trial court determined that the hearing panel
erred in applying ABA Standards 6.12, 6.22, and 7.2, which call for suspension as the
presumptive baseline sanction, and it modified Mr. Justice’s punishment from a three-year
suspension to disbarment. This increase in punishment makes it clear that the trial court
did not find that Mr. Justice’s rights had been prejudiced by the hearing panel’s decision.
Had the trial court found that Mr. Justice’s rights were prejudiced by the hearing panel’s
decision regarding his punishment, the trial court certainly could have modified the
suspension to a lesser punishment. But, because the Board did not file its own petition for
- 28 -
review, the trial court could not increase the punishment. See Parrish, 556 S.W.3d at 161,
170 (affirming trial court’s increase of punishment imposed by hearing panel after Board
appealed hearing panel decision). Accordingly, based on Rule 9, section 33.1(d), the trial
court erred in increasing Mr. Justice’s punishment to disbarment.15

G. Review Under Inherent Authority

Although Rule 9, section 33.1(b) limits the trial court’s authority in attorney
disciplinary actions, this Court reviews all disciplinary judgments under our inherent
authority in the Tennessee Constitution. In re Sitton, 618 S.W.3d 288, 294 (Tenn. 2021);
In re Vogel, 482 S.W.3d 520, 530 (Tenn. 2016); see Green, 567 S.W.3d at 713 (stating that
we review disciplinary judgments “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”). In determining
the appropriate sanction, “it is helpful to consider sanctions we have imposed in cases with
similar facts.” Parrish, 556 S.W.3d at 169. We evaluate attorney disciplinary matters in
light of their particular facts and circumstances, even as we “consider the sanctions that
have been imposed in prior cases that present similar circumstances so as to maintain
consistency and uniformity in disciplinary proceedings.” Bd. of Pro. Resp. v. Maddux,
148 S.W.3d 37, 40 (Tenn. 2004).

Before comparing the punishment in this case to those in prior cases with similar
facts, we first consider the appropriateness of the punishment under the circumstances of
this case. Courts look to the ABA Standards in determining the appropriate punishment in
attorney disciplinary matters. Vogel, 482 S.W.3d at 533. The ABA Standards “serve as
‘guideposts’ for determining the appropriate punishment rather than ‘rigid rules that dictate
a particular outcome.’” Id. (quoting Hyman v. Bd. of Pro. Resp., 437 S.W.3d 435, 447
(Tenn. 2014)). The ABA Standards direct the court to consider:

(1) What ethical duty did the lawyer violate? (A duty to the client, the public,
the legal system, or the profession?);

(2) What was the lawyer’s mental state? (Did the lawyer act intentionally,
knowingly, or negligently?);

(3) What was the extent of the actual or potential injury caused by the
lawyer’s misconduct? (Was there a serious or potentially serious injury); and

(4) Are there any aggravating or mitigating circumstances?

15
Given our holding on this issue, we need not address Mr. Justice’s argument that the trial court
relied on statements not alleged in the petition for discipline as the basis for increasing his punishment.
- 29 -
Bailey, 441 S.W.3d at 232.

The hearing panel in this case determined that, based on its findings of fact and Mr.
Justice’s misconduct, suspension was the appropriate baseline sanction. In reaching this
conclusion, the hearing panel applied the following ABA Standards:

ABA Standard 6.12: “Suspension is generally appropriate when a lawyer
knows that false statements or documents are being submitted to the court or
that material information is improperly being withheld and takes no remedial
action, and causes injury or potential injury to a party to the legal proceeding,
or causes an adverse or potentially adverse effect on the legal proceeding.”

ABA Standard 6.22: “Suspension is generally appropriate when a lawyer
knows that he or she is violating a court order or rule, and causes injury or
potential injury to a client or a party, or causes interference or potential
interference with a legal proceeding.”

ABA Standard 7.2: “Suspension is generally appropriate when a lawyer
knowingly engages in conduct that is a violation of a duty as a professional
and causes injury or potential injury to a client, the public, or the legal
system.”

In explaining its decision to apply these Standards, the hearing panel noted that Mr.
Justice knowingly violated the trial court’s January 2, 2017 order to cease from filing
motions with derogatory language by filing two more motions with offensive statements.
The hearing panel added that, in filing these motions, Mr. Justice “intended to interfere
with the legal proceeding and obtain a benefit through securing his desired personal
outcome in the proceeding” and that Mr. Justice intended to deceive the court that would
review the matter on appeal. The hearing panel also stated that Mr. Justice’s pejorative
statements were “so prejudicial to the administration of justice that they significantly
undermine the integrity and public confidence in the administration of justice.”

The Board argues that the hearing panel abused its discretion by failing to consider
ABA Standards 6.21, 7.1, and 8.1, which establish disbarment as the applicable baseline
sanction, based on the hearing panel’s finding that Mr. Justice acted with intent to secure a
personal benefit and Mr. Justice’s ethical misconduct in a previous case. In reviewing
other cases involving attorneys acting with intent to secure a personal benefit, it appears
that the benefits at issue often consist of benefits that are financial in nature. See Skouteris
v. Bd. of Pro. Resp., 430 S.W.3d 359, 366, 370-71 (Tenn. 2014) (applying ABA Standards
requiring intent to obtain a benefit in a case where attorney converted funds in his trust
account for his personal benefit); Matter of Crawford, 893 S.E.2d 39, 48 (Ga. 2023)
- 30 -
(finding that a former judge’s misuse of court registry funds constituted a benefit under
ABA Standard 6.21); Matter of Lain, 857 S.E.2d 668, 670-76 (Ga. 2021) (citing ABA
Standard 6.21 as grounds for disbarment based on attorney’s collection of unreasonable
fees, failure to refund unearned fees, filing of motion containing false information in hopes
of obtaining a supersedeas, and a number other actions warranting sanctions); Matter of
Disciplinary Proc. Against Jensen, 430 P.3d 262, 271 (Wash. 2018), as amended (Jan. 7,
2019) (citing ABA Standard 6.21 as grounds for disbarment when an attorney violated a
court order “to obtain a financial benefit for himself, even going so far as to demand a
secret payoff”); People v. Ward, 470 P.3d 1053, 1065-66 (Colo. 2017) (citing ABA
Standards 6.21 and 7.1 as grounds for disbarment of attorney that misled clients and failed
to refund fees after she began representation she knew she could not complete due to an
impending suspension); Matter of Harrington, 385 P.3d 905, 915, 918 (Kan. 2016) (finding
ABA Standard 7.1 applicable where attorney converted client funds for his personal use);
People v. Ra’shadd, 110 P.3d 388, 393 (Colo. 2005) (finding that disbarment was
appropriate baseline sanction under ABA Standard 6.21 based on attorney’s twice violating
court orders when he failed to account for converted funds and failed to pay child support);
see also In re Roose, 69 P.3d 43, 47 (Colo. 2003), as modified on denial of reh’g (May 12,
2003) (finding an attorney’s intentional departure from the courtroom during trial did not
constitute “the kind of benefit contemplated” by ABA Standard 6.21 even if it “could be
seen as a deliberate attempt to force an additional hearing”). However, the language of
ABA Standards 6.21 and 7.1 does not necessarily foreclose the possibility of a personal
benefit involving something other than financial gain. See In re Sniadecki, 924 N.E.2d
109, 115-19 (Ind. 2010) (disbarring attorney after he knowingly violated court order or rule
with intent to obtain a benefit when he filed false documents with the Supreme Court,
committed perjury and forgery, and attempted to bribe a witness); In re Rice, 260 P.3d
1020, 1032 (Alaska 2011) (finding that attorney intended to obtain benefit of delaying and
impeding disciplinary investigation as contemplated by ABA Standard 6.21 by failing to
respond to subpoena). Under the circumstances of this particular case, however, we decline
to conclude that ABA Standards 6.21 and 7.1 apply to this case.16

In addition, ABA Standard 8.1 does not apply in this case. That Standard requires
the misconduct at issue to be the same or similar to the prior misconduct. See ABA
Standard 8.1. In Mr. Justice’s previous case, in which he was disbarred from the practice
of law, the hearing panel found that Mr. Justice violated multiple RPCs when he knowingly
testified falsely in a federal court case, falsified evidence, and charged an unreasonable
attorney fee. Justice, 577 S.W.3d at 921-22, 932. In the present case, Mr. Justice filed
motions containing statements known to be false or made with reckless disregard as to their
truth or falsity concerning the integrity of Judge Ash and engaged in conduct intended to
disrupt the child custody case. Although this presents a close question, we conclude that

16
In reaching this conclusion, we expressly do not limit the potential application of ABA Standards
6.21 and 7.1 to conduct involving financial benefits to the attorney.
- 31 -
Mr. Justice’s misconduct in the prior case is not sufficiently similar to his misconduct in
the present case to warrant consideration of ABA Standard 8.1.

Upon our review of the record and the hearing panel’s findings, we hold that the
hearing panel did not abuse its discretion in applying ABA Standards 6.12, 6.22, and 7.2,
nor did it select them arbitrarily or capriciously. The evidence in the record shows that Mr.
Justice knew that false statements were being submitted to the court in his pleadings and
that he took no remedial action. Further, Mr. Justice knew he was violating the trial court’s
order to cease from making offensive and pejorative statements. It is also clear from the
record that Mr. Justice’s conduct caused injury to the Plaintiff in the child custody dispute.
Mr. Justice’s statements had to be addressed by the trial court on several occasions, which
needlessly delayed and interfered with the legal proceedings. Finally, it is evident from the
record that Mr. Justice’s conduct caused injury or potential injury to the legal system by
undermining its integrity and impairing the public’s confidence in it. Therefore, the
hearing panel correctly established suspension as the appropriate baseline sanction.

The hearing panel then considered potential aggravating and mitigating factors that
would justify an increase or decrease in the baseline sanction. The ABA Standards suggest
a number of aggravating and mitigating circumstances, although the list is “illustrative
rather than exclusive.” Lockett v. Bd. of Pro. Resp., 380 S.W.3d 19, 28 (Tenn. 2012). The
hearing panel determined that four aggravating factors existed justifying an increase in the
degree of discipline to be imposed on Mr. Justice: (1) a prior disciplinary offense; (2) a
pattern of misconduct; (3) refusal to acknowledge the wrongful nature of his conduct; and
(4) substantial experience in the practice of law.

Substantial and material evidence supports these findings. The record indicates that
Mr. Justice was licensed to practice law in Tennessee in 1998. It also shows that Mr.
Justice continued to make derogatory statements in his pleadings despite being told by the
trial court to cease from doing so on multiple occasions. The record makes it abundantly
clear that Mr. Justice has not acknowledged the wrongful nature of his conduct. Finally,
as previously stated, the record shows that Mr. Justice was disbarred in a separate
disciplinary matter in 2019.

Based on its application of the ABA Standards and the four aggravating factors, the
hearing panel concluded that Mr. Justice “should be suspended from the practice of law for
three (3) years from the date, if any, when he is reinstated to practice law.” Under our
Supreme Court Rules, an attorney’s suspension must be more than thirty days but less than
ten years. Tenn. Sup. Ct. R. 9, § 12.2(a)(2). ABA Standard 2.3 provides that suspensions
should fall between six months and three years. With four aggravating factors justifying
an increase in Mr. Justice’s discipline and no mitigating factors, a three-year suspension
appears to be an appropriate punishment for Mr. Justice’s misconduct.

- 32 -
We now consider the three-year suspension in light of sanctions that have been
imposed in prior cases that presented similar circumstances. Maddux, 148 S.W.3d at 40.
We do this to “maintain consistency and uniformity in disciplinary proceedings.” Id. For
purposes of our analysis, cases presenting similar circumstances are cases in which an
attorney has made pejorative statements about a judge in court filings or in open court.

In reviewing Tennessee cases that presented similar circumstances, it is evident that
the typical punishment is a suspension. See, e.g., Parrish, 556 S.W.3d at 170 (six-month
suspension for making pejorative statements in motions to recuse); Slavin, 145 S.W.3d at
551 (two-year suspension for making in-court statements that impugned the integrity of the
trial court); Farmer v. Bd. of Pro. Resp., 660 S.W.2d 490, 491-93 (Tenn. 1983) (sixty-day
suspension for attorney’s use of “scurrilous and improper language” about appellate court
judges and opposing counsel in briefs he filed).

Cases from other jurisdictions involving similar facts are also instructive. Like the
cases from Tennessee, a suspension is typically imposed when an attorney makes
pejorative statements about a judge in court filings or open court. See, e.g., Waller, 929
S.W.2d at 183 (six-month suspension for use of offensive language about trial judge in
written memorandum filed with the court); Gardner, 793 N.E.2d at 433 (six-month
suspension for making statements in a motion that questioned the integrity of the appellate
court); Cleveland Metro. Bar Ass’n v. Morton, 185 N.E.3d 65, 74 (Ohio 2021) (one-year
suspension for making statements in a court pleading accusing the appellate courts of
denying his appeal based on political motives); Lawyer Disciplinary Bd. v. Hall, 765
S.E.2d 187, 201 (W. Va. 2014) (three-month suspension for derogatory statements about
administrative law judge in a petition for review); In re Madison, 282 S.W.3d 350, 362
(Mo. 2009) (six-month suspension for making in-court and out-of-court statements that
suggested lack of integrity of judges); Matter of Vincenti, 458 A.2d 1268, 1273-76 (N.J.
1983) (one-year suspension for “calculated pattern of irresponsible, abusive[,] and
obnoxious behavior both in and outside of the courtroom” directed towards the judge,
opposing counsel, and others).

The Parrish case is particularly instructive due to its similarities with the present
case. 556 S.W.3d at 155. In Parrish, the Board initiated disciplinary proceedings against
attorney Larry Parrish after Mr. Parrish filed motions to recuse containing numerous
pejorative statements about three appellate judges. Id. A hearing panel concluded that Mr.
Parrish violated the same four RPCs as Mr. Justice violated in this case, and it determined
that Mr. Parrish should receive a public censure as punishment. Id. at 161. After the Board
appealed the decision to the trial court, the trial court increased Mr. Parrish’s punishment
to a six-month suspension based on the hearing panel’s failure to articulate the ABA
Standards on which it had relied. Id. at 161-62. This Court affirmed the judgment of the
trial court. Id. at 170.

- 33 -
At first blush, given that Mr. Parrish received a six-month suspension for violating
the same RPCs as Mr. Justice, it would appear that a three-year suspension is too harsh for
Mr. Justice’s misconduct. However, though the misconduct was similar, Mr. Justice’s
misconduct warrants a greater degree of discipline. In Parrish, the hearing panel found two
aggravating factors applicable—Mr. Parrish’s substantial experience in the practice of law
and his refusal to acknowledge the wrongful nature of his conduct. Id. at 168. However,
the panel also found that two mitigating factors applied—Mr. Parrish’s lack of disciplinary
history and his positive reputation in the community. Id. In the present case, the hearing
panel found that four aggravating factors and zero mitigating factors applied. Notably, one
of the four aggravating factors was Mr. Justice’s prior disciplinary history. Mr. Justice was
disbarred in 2019 for giving a false statement under oath, testifying falsely during a federal
district court hearing, and seeking an unreasonable attorney fee. Justice, 577 S.W.3d at
932-33. Thus, although Mr. Parrish and Mr. Justice violated the same RPCs, the
circumstances of Mr. Justice’s case warrant greater discipline.

In sum, after reviewing the facts of Mr. Justice’s case in light of other cases
presenting similar circumstances, we hold that the three-year suspension imposed by the
hearing panel is appropriate.

However, before concluding, we must address one particular aspect of the
suspension imposed by the hearing panel. The hearing panel imposed a three-year
suspension against Mr. Justice that would begin “from the date, if any, when he is reinstated
to practice law . . .” The hearing panel erred in delaying the effective date of Mr. Justice’s
suspension. Tennessee Supreme Court Rule 9, section 28.1 provides that orders imposing
suspensions “are effective upon entry,” and no other provision in Tennessee Supreme Court
Rule 9 permits the hearing panel to delay the effective date of a suspension. Further,
Tennessee Supreme Court Rule 9, section 12.2 requires suspensions imposed against
attorneys to “result in some cessation of the practice of law for not less than thirty days.”
The suspension imposed by the hearing panel in this case does not guarantee that Mr.
Justice would be suspended for at least thirty days, as the suspension is contingent on Mr.
Justice’s being reinstated from the disbarment imposed against him in his prior disciplinary
matter. Therefore, we modify the punishment imposed by the hearing panel to a three-year
suspension that shall begin immediately upon the entry of this Opinion.

CONCLUSION

We affirm the judgment of the trial court on all issues with the exception of the issue
regarding Mr. Justice’s punishment. We reverse the trial court’s judgment on that issue
and reinstate the three-year suspension imposed by the hearing panel. However, the three-
year suspension shall begin immediately upon the entry of this Opinion. Mr. Justice shall
also obtain the additional continuing legal education hours and pay the costs ordered by

- 34 -
the hearing panel. Costs of this appeal are taxed to Mr. Justice, for which execution may
issue if necessary.

_________________________________
JEFFREY S. BIVINS, JUSTICE

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