Loring E. Justice v. Board of Professional Responsibility

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.

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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

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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

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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

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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).

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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.”).

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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

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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.

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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)

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(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.

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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.

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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.

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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

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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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