separate-opinion-e2022-01105-sc-r3-bp.pdf (2023)

Original PDF Document

---

Download Official Record (separate-opinion-e2022-01105-sc-r3-bp.pdf)

Go to Top

Alternative Accessible HTML

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
___________________________________

HOLLY KIRBY, C.J., concurring.

I agree with virtually all of the majority’s thorough and well-reasoned opinion, with
one exception: its determination that ABA Standards 6.21 and 7.1, which identify
disbarment as the presumptive sanction, do not apply to this case. As explained below, I
would hold that ABA Standards 6.21 and 7.1 apply, and consequently disbarment is the
presumptive sanction, because Mr. Justice engaged in the misconduct with intent to obtain
personal benefit. I nonetheless concur in the majority’s decision to impose a three-year
suspension, based on the comparative cases cited in the majority opinion.

Here, the hearing panel found that, in filing motions with the untoward comments
detailed in the majority opinion, Mr. Justice intended to interfere with the proceedings in
his personal child support and custody litigation, obtain a benefit through securing his
desired personal outcome in the proceeding, and deceive the court that would review the
matter on appeal. The hearing panel nevertheless applied ABA Standards that identify
suspension as the presumptive sanction.

On review, the trial court held that “[w]hen the attorney knowingly violates a court
order causing serious injury or potentially serious injury to a party or causing serious or
potentially serious interference with a legal proceeding with the intent to obtain a benefit
for himself, the presumptive sanction is disbarment under ABA Standard 6.21 rather than
suspension under 6.22.” Similarly, the trial court held that “when a lawyer knowingly
engages in conduct that is a violation of a duty owed as a professional and causes serious
or potentially serious injury to a client, the public, or the legal system with the intent to
obtain a benefit for himself, the presumptive discipline is disbarment under ABA Standard
7.1, rather than suspension under 7.2.” The trial court held that, because the hearing panel
found Mr. Justice’s offensive statements were made with intent to obtain a personal benefit,
it should have applied ABA Standards that establish disbarment as the presumptive
sanction. Considering the aggravating circumstances, the trial court held that Mr. Justice’s
sanction should be disbarment.

On appeal to this Court, the Board argues that the hearing panel abused its discretion
by failing to apply ABA Standards 6.21 and 7.1 that establish disbarment as the
presumptive sanction, based on the hearing panel’s finding that Mr. Justice acted with
intent to secure a personal benefit.1 After citing numerous cases involving attorneys acting
with intent to gain personal benefit, the majority declines to conclude that ABA Standards
6.21 and 7.1 apply to this case because “[u]nder the circumstances of this particular case,”
Mr. Justice did not act with intent to secure a personal benefit within the meaning of those
ABA Standards. It does not explain its reasoning for this conclusion, except to note that
these ABA Standards are not limited to conduct involving financial benefits to the attorney.

Respectfully, I would conclude that the record contains substantial and material
evidence to support the hearing panel’s factual finding that Mr. Justice intended to interfere
with his personal child support and custody proceeding and obtain a benefit by securing
his desired personal outcome in the proceeding. Based on this well-supported factual
finding, I would affirm the trial court’s holding that the hearing panel abused its discretion
in not applying ABA Standards that establish disbarment as the presumptive sanction.

Here, the purpose of Mr. Justice’s misconduct was to provoke Judge Ash into a
reaction that would force an interlocutory appeal or a recusal in Mr. Justice’s personal child
support and custody litigation. Mr. Justice was not getting the results he wanted from
Judge Ash, and he wanted a different judge in hopes of getting the visitation or custody he
sought with his child or getting his child support reduced or terminated. Obtaining a
desired result in any personal litigation is a personal benefit, and doing so in the context of
child support and custody litigation is one of the most personal kinds of benefit there can
be. It includes financial benefit, but also other personal benefit as to the parties’ child.

Lawyers are obliged to comply with our ethical standards in personal litigation
involving their own interests. See Harris v. Bd. of Pro. Resp. of Sup. Ct. of Tenn., 645
S.W.3d 125, 139–40 (Tenn. 2022) (attorney had “selfish motive” for not being truthful in
his personal child support proceedings, and hearing panel found disbarment was
presumptive sanction). I would hold that ABA Standards 6.21 and 7.1, which identify
disbarment as the presumptive sanction, are the applicable Standards in this case based on
the hearing panel’s finding that Mr. Justice acted with intent to secure a personal benefit.

1
The Board also argues the hearing panel abused its discretion by failing to consider ABA Standard
8.1, based on Mr. Justice’s ethical misconduct in a previous case. I agree with the majority that ABA
Standard 8.1 does not apply.

-2-
“Under the ABA Standards, barring unusual circumstances, once the correct
presumptive sanction is determined, that sanction generally applies unless ‘aggravating or
mitigating factors . . . indicate a greater or lesser sanction is appropriate.’” Manookian v.
Bd. of Pro. Resp. of Sup. Ct. of Tenn., 685 S.W.3d 744, 808 (Tenn. 2024) (quoting In re
Sitton, 618 S.W.3d 288, 299 (Tenn. 2021)). In this case, changing the presumptive sanction
to disbarment increases the likelihood that disbarment is the ultimate outcome.

Here, the hearing panel found several aggravating factors and no mitigating factors.
In addition, the aggravating factors are quite substantial. One aggravating factor is his
refusal to acknowledge the wrongful nature of his conduct; here, Mr. Justice’s refusal to
acknowledge the wrongful nature of his baseless accusations against a sitting judge is
flagrant. Another is prior disciplinary history; Mr. Justice’s prior disciplinary history is
disbarment. These factors point toward disbarment as the appropriate sanction.

These circumstances would likely lead a hearing panel or trial court to disbar Mr.
Justice, as “neither BPR hearing panels nor reviewing trial courts are authorized to base a
recommended sanction on a review of sanctions imposed in comparative cases.” Beier v.
Bd. of Pro. Resp. of Sup. Ct., 610 S.W.3d 425, 436–37 (Tenn. 2020). That is left for this
Court to do, as part of its “ultimate responsibility for enforcing the rules governing our
profession.” Id. at 437 (quoting Mabry v. Bd. of Pro. Resp. of Sup. Ct., 458 S.W.3d 900,
903 (Tenn. 2014)).

Even where disbarment is the presumptive sanction, this Court may, after review of
comparative cases, determine that a lesser sanction is more appropriate. In Beier, for
example, from our review of comparative cases as part of the uniformity analysis, the Court
observed that “disbarment is typically reserved for cases that involve a pattern of
misconduct or even more serious rule violations than those committed by Mr. Beier.” Id.
at 449. The Court concluded that Mr. Beier’s misconduct could “fairly be compared” to
cases in which a substantial suspension was imposed. Id. In light of those cases, the Court
imposed a two-year suspension, even though disbarment was a presumptive sanction. Id.

In its opinion, the majority engages in a similar review of comparable cases. In
discussing them, the majority observes: “In reviewing Tennessee cases that presented
similar circumstances, it is evident that the typical punishment is a suspension.” It cites
cases from other jurisdictions for the same proposition. It concludes: “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.”

-3-
Even though I would apply ABA Standards that identify disbarment as the
presumptive sanction, and even though Mr. Justice has several aggravating factors and no
mitigating factors, I agree with the majority’s conclusion. As in Beier, based on the
comparative cases cited by the majority, I agree with the majority’s decision to impose a
suspension in this case.

In sum, I disagree with the majority’s reasoning and conclusion on whether Mr.
Justice engaged in the misconduct with intent to secure a personal benefit and with the
majority’s holding that ABA Standards identifying disbarment as the presumptive sanction
do not apply. Nonetheless, based on the comparative cases cited by the majority, I concur
in its decision to impose a three-year suspension on Mr. Justice as the sanction for the
misconduct in this case. Therefore, I concur in the decision of the majority with slightly
different reasoning.

_________________________________
HOLLY KIRBY, CHIEF JUSTICE

-4-

Go to Top

Assistance Request

Request Accessibility Assistance

Name

Email

Phone

What do you need help with?

The HTML version is missing content

The HTML version contains errors

The reading order is incorrect or confusing

I need help understanding the content

I need a different alternative format

Other

Preferred format

Additional details

Urgency Urgent Soon Not urgent

Go to Top