BOARD OF PROFESSIONAL RESPONSIBILITY v. Larry Edward PARRISH

08/14/2018

IN THE SUPREME COURT OF TENNESSEE

AT JACKSON

April 4, 2018 Session

BOARD OF PROFESSIONAL RESPONSIBILITY v. LARRY EDWARD

PARRISH

Direct Appeal from the Circuit Court for Shelby County

No. CT-001608-16 Robert E. Lee Davies, Senior Judge

___________________________________

No. W2017-00889-SC-R3-BP

___________________________________

This is a direct appeal of a disciplinary proceeding involving a Memphis attorney who

filed motions to recuse containing pejorative statements about three appellate judges. A

hearing panel of the Board of Professional Responsibility found that the attorney had

violated multiple Rules of Professional Conduct and that his sanction should be a public

censure. The trial court agreed that the attorney was guilty of misconduct but modified

the hearing panel’s decision, determining that the appropriate sanction was a six-month

suspension, with thirty days served on active suspension and the remainder on probation.

We hold that the attorney’s pejorative statements in the motions to recuse were not

protected by the First Amendment and there was material and substantial evidence of

noncompliance with the Rules of Professional Conduct. In addition, we hold that the

hearing panel acted arbitrarily and capriciously in determining that the attorney should

receive a public censure rather than suspension. We affirm the judgment of the trial court.

Tenn. Sup. Ct. R. 9, § 1.3 (2013)

(currently Tenn. Sup. Ct. R. 9, § 33.1(d) (2017))

Judgment of the Circuit Court Affirmed

SHARON G. LEE, J., delivered the opinion of the Court, in which JEFFREY S. BIVINS, C.J.,

and CORNELIA A. CLARK and ROGER A. PAGE, JJ., joined. HOLLY KIRBY, J., not

participating.

Larry E. Parrish, Memphis, Tennessee, Pro Se.

Alan D. Johnson, Brentwood, Tennessee, for the appellee, Board of Professional

Responsibility.

OPINION

I.

This disciplinary action arises from pejorative statements made by attorney Larry

E. Parrish in motions to recuse three judges on the Tennessee Court of Appeals after an

adverse decision.

Mr. Parrish represented David Morrow and Judy Wright, the nephew and niece of

Helen Goza, regarding a trust Ms. Goza had established for her son, John Goza. Under

the terms of the trust, any assets remaining in the trust after the death of Mr. Goza were to

be disbursed to various charities. After Mr. Goza’s death, Mr. Parrish, on behalf of Mr.

Morrow and Ms. Wright, filed an action in the Shelby County Chancery Court seeking a

declaratory judgment that the trust was not valid and that they were entitled to the trust’s

remaining assets. The chancery court granted summary judgment, finding that the trust

was valid. The Court of Appeals affirmed. Morrow v. SunTrust Bank, No. W2010-01547-

COA-R3-CV, 2011 WL 334507 (Tenn. Ct. App. Jan. 31, 2011) (“Goza I”).

While the appeal in Goza I was pending, Mr. Morrow was appointed administrator

of the Estate of John Goza. Mr. Parrish, representing the Estate and Mr. Morrow as

administrator, filed a petition in probate court to require SunTrust Bank to turn over to

the Estate the assets of the trust based on the asserted invalidity of the trust. Soon after,

the Court of Appeals issued its ruling in Goza I, affirming the validity of the trust.

SunTrust Bank then asserted that the probate case was barred by res judicata. The probate

court denied the petition on that basis, and the Court of Appeals affirmed. In re Estate of

Goza, 397 S.W.3d 564 (Tenn. Ct. App. 2012) (“Goza II”).

Next, Mr. Parrish, as attorney for the Estate, sued SunTrust Bank in the Shelby

County Circuit Court. The circuit court dismissed that action, finding that the validity of

the trust was res judicata and that it lacked subject matter jurisdiction. The Court of

Appeals affirmed the circuit court in a memorandum opinion1 authored by Judge David

Farmer and joined by Judge Steven Stafford and (then)-Judge Holly Kirby. The Court of

Appeals also determined the appeal was frivolous and awarded SunTrust Bank its

attorney’s fees and costs. Goza v. Wells, No. W2012-01745-COA-R3-CV, 2013 WL

1

Rule 10 of the Rules of the Court of Appeals of Tennessee provides that the Court of Appeals

with the concurrence of all judges participating in the case, may affirm, reverse or modify

the actions of the trial court by memorandum opinion when a formal opinion would have

no precedential value. When a case is decided by memorandum opinion it shall be

designated “MEMORANDUM OPINION”, shall not be published, and shall not be cited

or relied on for any reason in any unrelated case.

-2-

4766544 (Tenn. Ct. App. Sept. 4, 2013) (“Goza III”). Mr. Parrish moved for a rehearing

and to recuse Judge Farmer. Mr. Parrish later filed motions to recuse Judges Stafford and

Kirby.2

The judges submitted the recusal motions to the Board of Professional

Responsibility (“the Board”).3 The motions include the following statements by Mr.

Parrish:

 Estate’s motion is grounded on Estate’s contention that Estate has

been denied access to indisputable organic law of Tennessee applied

to indisputable facts, and that access has been denied because of a

prejudicial and baseless bias, evidently the result of personal

sympathies/sensitivities of Judge Farmer.

 In contrast, if Estate shows that Judge Farmer (1) ruled the opposite

of what he knew undebatable law to be, (2) wrote as fact that which

he knew not to be fact to avoid the effect he knew would be

required, if he acknowledged what he knew to be fact, (3) ruled as if

ipse dixit was a holding and decision, (4) gave obiter dictum

preclusive effect, (5) used half-truths to fabricate justification for

judicial misconduct, (6) without the slightest justification, demeaned

counsel for Estate to create a scapegoat for his judicial misconduct,

(7) used the Memorandum Opinion as a vehicle to include

unnecessary obiter dictum as a means, practically speaking, to

prejudge case-dispositive issues pending in trial courts and, thereby,

usurp the role of the trial courts to adjudge the issue independently

and, finally, (8) awarded attorney’s fees against Estate based on

fabrication, Estate will have established that Judge Farmer is

serving, in this case, encumbered by a prejudice and bias against

Estate to manufacture an outcome against Estate, in the teeth of

indisputable organic law and indisputable fact that dictate the

opposite.

2

The motions to recuse Judge Kirby and Judge Stafford were substantially identical to the motion

to recuse Judge Farmer.

3

Rule of Professional Conduct 8.3(a) provides that “[a] lawyer who knows that another lawyer

has committed a violation of the Rules of Professional conduct that raises a substantial question as to that

lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects, shall inform the Disciplinary

Counsel of the Board of Professional Responsibility.” Tenn. Sup. Ct. R. 8, RPC 8.3(a) (2013).

-3-

 This is not about miscalling balls and strikes; this is about rigging

the game.

 Estate’s motion further is grounded [sic] how that Judge Farmer

adjudicated the appeal in the instant case so as to violate the rights of

Estate guaranteed by the Tennessee Constitution, Art. I, Section 17

(open courts), thereby, engaging in judicial misconduct which

requires Judge Farmer’s recusal. The same judicial misconduct

violates the procedural and substantive due process rights of Estate

and the heirs guaranteed by the United States Constitution, Fifth

Amendment and Fourteenth Amendment.

 There is absolutely no way under the sun for Estate to fail to prevail

in the instant appeal, except by judges deciding the appeal to turn a

deaf ear and blind eye to the clearest possible provisions of

§ 35-15-203.

 Judge Farmer has victimized Estate by saying of a statute, i.e.

Tennessee Code Annotated § 35-15-203, that it divests circuit court

of subject matter jurisdiction, even though a person minimally

literate in the English language could very easily read the statute and

know, without hesitation, that the statute does exactly the opposite.

 This is an aberrant misstatement of clear law known to Judge

Farmer. . . .

 Placing the subject erroneous ipse dixit in Judge Farmer’s

Memorandum Opinion, in practical effect, is a prejudgment designed

to prejudice Estate in cases not before Judge Farmer.

 Additionally, the erroneous ipse dixit in Judge Farmer’s

Memorandum Opinion is a setup, i.e., the point is to forewarn Estate

not to exercise its right to an appeal in the case where the erroneous

ipse dixit is dispositive and, if Estate exercises Estate’s right to

appeal, Judge Farmer is poised to punish Estate for not heeding

Judge Farmer’s forewarnings.

 Though it takes slightly more acumen than minimal literacy in the

English Language, any person trained in the law and minimally

versed in how the law treats ipse dixit and obiter dictum, at once, can

see that the court of appeals never before has “held” or “decided”

that the putative trust exists.

-4-

 The repeated statements in Judge Farmer’s Memorandum Opinion

that the court of appeals, twice before, “held” or “decided” that the

putative trust exists, for Judge Farmer, is a convenient and

illegitimately purposeful fabrication.

 In an effort to provide a façade of legitimacy to Judge Farmer’s

inclusion about the putative trust, Judge Farmer builds a construct on

the false presupposition that § 35-15-203 divests circuit court of

subject matter jurisdiction, if the putative trust exists.

 The illegitimate purpose for Judge Farmer injecting commentary

into Judge Farmer’s Memorandum Opinion on the subject of the

putative trust is to prejudge, erroneously, if (which is certain to

occur) the issue is presented to the court of appeals in the future.

 By use of a memorandum opinion, Judge Farmer insulates his

manipulation/rigging of the legal system from review by the

Tennessee Supreme Court, i.e., the Supreme Court, even moreso

[sic] than in the past, reiterates that it is not an error-correcting court.

Therefore, a memorandum opinion, which has zero effect on

Tennessee law, has zero chance of being reviewed by the Supreme

Court. Knowing this, Judge Farmer is confident that Judge Farmer’s

patent error and abuse of Judge Farmer’s judicial power will remain

effective to accomplish Judge Farmer’s illegitimate objectives.

 Judge Farmer has done a masterful job of covering up the fact that

Judge Farmer has stepped out of Judge Farmer’s role as an

even-handed Judge and into the role of adversary of the Estate,

willing to abuse the power of his judicial office to deny Estate’s

access to unexceptional organic law of Tennessee well-known to

Judge Farmer.

 Many authors, among them Alfred Lord Tennyson, have observed

that the half-truth is the most sinister of all deception. The point is

that sprinkling into deception particles of truth, misused and taken

out of context, makes it much harder to detect deception than a

straight out misstatement of objective fact. Judge Farmer has used

the half-truth in constructing Judge Farmer’s Memorandum Opinion.

Judge Farmer’s Memorandum Opinion is a patchwork of snippets of

truth glued together by adhesive design to close to Estate access to

controlling organic law.

-5-

 It is the contention of appellant, the Estate of John J. Goza, Deceased

(hereinafter “Estate”), as a litigant in the instant appeal and in related

proceedings, has been and continues to be denied access to the

benefit of the organic law of Tennessee by a demonstrated bias

and/or appearance of bias, seemingly anchored in Judge Farmer’s

personal sympathies/sensitivities that dictate an outcome

inconsistent with Tennessee’s organic law.

 Let it be clear that Estate finds no fault with Judge Farmer’s personal

sympathies/sensitivities. The fault Estate finds is in Judge Farmer

permitting his personal sympathies/sensitivities to prejudice him in

exercise of his undeviating duty to apply organic law, even if doing

so produces a judgment that offends Judge Farmer’s personal

sympathies/sensitivities.

 [T]he personal sympathies/sensitivities are visceral, i.e., based on

pure assumptions and presumptions without a scintilla of evidence

on which to base a finding of fact consistent with Judge Farmer’s

personal sympathies/sensitivities. Maybe Judge Farmer’s [sic]

excuses the lack of evidence with what reasonably would be

described as a “Come on now, you know and I know” approach

appropriate for common parlance and unknown to the legal system

and legal process.

 [T]he rights of heirs to receive their inheritance from a predeceased

ancestor has been part of the organic law of Tennessee,

uninterruptedly, since 1796 and part of Anglo-American

jurisprudence since time in memoriam [sic], the personal

sympathies/sensitivities of Judge Farmer to the contrary

notwithstanding.

 [F]or Judge Farmer to be influenced to ignore organic law by his

personal sympathies/sensitivities in order to manipulate an outcome

to deny the heirs of John J. Goza their inheritance and get the Cash

to charities is usurpation of the value judgment of the General

Assembly and violates separation of powers guaranteed by

Tennessee Constitution, Art. I, Section 17 (constraints on the

judiciary) and Art. VI.

 Judge Farmer knows the ropes as well as anybody. These

characteristics make Judge Farmer’s Memorandum Opinion in this

case stand out as uncharacteristic. Only the most simpleminded

-6-

person would conclude that, in this case, Judge Farmer made

inadvertent mistakes.

 To all of the undebatable propositions of law and fact, Judge Farmer

effectively turns a deaf ear fixated on making a result that satiates

Judge Farmer’s sympathies.

 Estate does not wish to create the impression that there is naiveté

which keeps Estate from reading between the lines of Judge

Farmer’s Memorandum Opinion; indeed, Estate perceives that Judge

Farmer intended the non-subtle message between the lines be

received and headed [sic] as a shot over the bow. The loud message

that bleeds through comes [sic] from between the lines is

unmistakable and threatening to Estate.

 In a nutshell, what rings clear, on reading Judge Farmer’s

Memorandum Opinion’s commentary, concerning what is tagged

Goza I and Goza II, is that Judge Farmer does not feel Estate’s case,

insofar as it seeks distribution of the residue of Mrs. Goza’s

revocable trust to John Goza’s heirs, is “right” or “just,” and Judge

Farmer does not intend, no matter what, ever to render a decision

that mandates what Judge Farmer feels is “wrong” or “unjust.”

 Added to this feeling, what rings true from what is on the lines of

Judge Farmer’s Memorandum Opinion is that, if Estate can prove

the fraud and the conversion by the individuals who are defendants

in the instant case, collecting damages from the individuals would

deplete neither the fee income to SunTrust or the amount to be

dribbled out, presumably, to charity, does not offend the [sic] Judge

Farmer’s feelings about what is “right” and “just.”

 What role does a judge’s oath, practically speaking, play in the

day-to-day functioning of a judge? Are there times when it is

permissible for judges to lay aside their oath to render a judgment

that, though not what the law dictates, is what the judge feels is the

“right” thing to do.

 From the outset, Estate makes it clear that Estate has no evidence,

has looked for no evidence and makes no accusation that Judge

Farmer has taken a bribe; this is completely out of the question. By

this, Estate means that there is no evidence that Judge Farmer, in

exchange for cash or any other thing of value, has agreed with

-7-

another person to do what Estate accuses Judge Farmer of having

done.

 Having said that, Estate takes note of the fact that money received by

a bribe-taking judge is not the harm such a bribe wreaks on the legal

system, on legal process and on the litigants who are victimized by a

bribe.

 The harm a bribe wreaks on the legal system and the litigant-victims

is what happens when a judge abandons his/her oath of office,

surrenders up the impartiality that is essential to a judge functioning

in an adjudicative role evenhandedly applying law to facts found

from evidence adduced according to rules of evidence.

 While Estate has sought no evidence and has no evidence that Judge

Farmer sold his oath and surrendered his impartiality in exchange for

money, Estate respectfully suggests that Judge Farmer, in order to

victimize Estate as a litigant, has abandoned the loyalty to his oath of

office, has surrendered his impartiality and has abused the power

entrusted to him by the judicial office he holds and has switched

from his role as a judge to become an adversary of Estate. This, in

Estate’s opinion, is official action of the kind referenced in Rule 8

(RPC), Preamble, section 5.

 Otherwise stated, although there is no evidence that Judge Farmer

received a bribe to do what he is doing, Judge Farmer is doing what

a bribe-taking judge would do to victimize a litigant who was

targeted by a bribe. To a litigant who is targeted, it is totally

immaterial what caused the judge to victimize the litigant.

Based on Mr. Parrish’s statements in the recusal motions, the Board filed a

Petition for Discipline against Mr. Parrish alleging violations of Rules of Professional

Conduct 3.5(e),4 8.2(a)(1),5 8.4(a), 8.4(c), and 8.4(d).6 In July 2015 after an evidentiary

4

“A lawyer shall not: . . . (e) engage in conduct intended to disrupt a tribunal.” Tenn. Sup. Ct. R.

8, RPC 3.5(e) (2013).

5

“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 . . . (1) a judge. . . .”

Tenn. Sup. Ct. R. 8, RPC 8.2(a)(1) (2013).

6

It is professional misconduct for a lawyer to:

-8-

hearing, a Board hearing panel issued a written decision finding that Mr. Parrish had

violated:

● Rule 3.5(e) by including statements in the motions to recuse that “constituted

abusive and obstreperous conduct intended to disrupt the Tennessee Court of

Appeals proceedings involving [Mr. Parrish’s] client”;

 Rule 8.2(a)(1) by making “statements about the integrity of Judges Farmer, Kirby

and Stafford that a reasonable attorney would believe were false” and making

those statements “with reckless disregard as to their truth or falsity”;

 Rule 8.4(d) by making statements in the motions to recuse that “were prejudicial

to the administration of justice”; and

 Rule 8.4(a) by violating Rules 3.5(e), 8.2(a)(1), and 8.4(d).

After a subsequent evidentiary hearing in January 2016, the hearing panel issued a

written decision stating that it “considered the applicable provisions of the ABA

Standards for Imposing Lawyer Sanctions,” and therefore had considered “the duty

violated; [Mr. Parrish’s] mental state, the injury caused by [Mr. Parrish’s] misconduct,

and the existence of aggravating and mitigating factors.” Without identifying which of

the ABA Standards for Imposing Lawyer Sanctions (“ABA Standards”) it had applied,

the hearing panel concluded that a public censure was the appropriate sanction for Mr.

Parrish’s conduct.

The Board appealed by filing a Petition for Writ of Certiorari in the Shelby County

Circuit Court. Following a hearing, the trial court affirmed the hearing panel’s findings

that Mr. Parrish had violated Rules 3.5(e), 8.2(a)(1), 8.4(a), and 8.4(d). The trial court

also determined that although the hearing panel did not articulate the particular ABA

Standard(s) on which it had relied, ABA Standards section 6.0—Violations of Duty

Owed to the Legal System—applied.

Under section 6.0, ABA Standard 6.13 provides that “[r]eprimand is generally

appropriate when a lawyer is negligent either in determining whether statements or

(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;

....

(c) engage in conduct involving dishonesty, fraud, deceit, or misrepresentation;

(d) engage in conduct that is prejudicial to the administration of justice[.]

Tenn. Sup. Ct. R. 8, RPC 8.4 (2013).

-9-

documents are false . . . and . . . causes an adverse or potentially adverse effect on the

legal proceeding.” Under ABA Standard 6.12, “[s]uspension is generally appropriate

when a lawyer knows that false statements or documents are being submitted to the court

. . . and takes no remedial action, and . . . causes an adverse or potentially adverse effect

on the legal proceeding.”

After reviewing the record, the trial court found that ABA Standard 6.12

(suspension) applied because Mr. Parrish knew the statements in the motions to recuse

were false. The trial court also found that ABA Standard 6.32 applied because Mr.

Parrish’s statements were “prejudicial to the administration of justice and significantly

undermine[d] the integrity and public confidence in the administration of justice.” ABA

Standard 6.32 provides that “suspension is generally appropriate when a lawyer engages

in communication with an individual in the legal system when the lawyer knows that

such communication is improper, and . . . causes interference or potential interference

with the outcome of the legal proceeding.”

The trial court then identified the mitigating and aggravating factors that it

considered in determining the appropriate sanction for Mr. Parrish’s misconduct. The

trial court cited Mr. Parrish’s positive reputation in the community and the lack of prior

discipline as mitigating factors. As aggravating factors, the trial court considered Mr.

Parrish’s substantial experience in the practice of law and his refusal to acknowledge the

wrongful nature of his conduct.

Based on ABA Standards 6.12 and 6.32 and the mitigating and aggravating

factors, the trial court held that Mr. Parrish should be suspended for six months, with one

month to be served on active suspension and the remaining five months on probation. Mr.

Parrish appealed to this Court.

II.

The Supreme Court of Tennessee, as the source of authority for the Board of

Professional Responsibility and all of its functions, bears the ultimate responsibility for

enforcing the Rules of Professional Responsibility and the ultimate disciplinary

responsibility for violations of the ethical rules governing attorneys practicing in

Tennessee. Garland v. Bd. of Prof’l Responsibility, 536 S.W.3d 811, 816 (Tenn. 2017)

(citations omitted); Sneed v. Bd. of Prof’l Responsibility, 301 S.W.3d 603, 612 (Tenn.

2010) (citing Doe v. Bd. of Prof’l Responsibility, 104 S.W.3d 465, 469–70 (Tenn. 2005)).

This Court reviews judgments in disciplinary proceedings against attorneys “in light of

our ‘inherent power . . . [and] fundamental right to prescribe and administer rules

pertaining to the licensing and admission of attorneys.’” Bd. of Prof’l Responsibility v.

Allison, 284 S.W.3d 316, 321 (Tenn. 2009) (quoting In re Burson, 909 S.W.2d 768, 773

(Tenn. 1995)).

- 10 -

When reviewing a judgment in a disciplinary proceeding, this Court’s standard of

review is the same as that applied by the trial court. Long v. Bd. of Prof’l Responsibility,

435 S.W.3d 174, 178 (Tenn. 2014) (citing Hoover v. Bd. of Prof’l Responsibility, 395

S.W.3d 95, 103 (Tenn. 2012)). Just as the trial court did, we review the transcript of the

evidence presented before the hearing panel, as well as the hearing panel’s findings and

judgment. Garland, 536 S.W.3d at 816 (citing Tenn. Sup. Ct. R. 9, § 33.1(b)).7 The trial

court reviews questions of law de novo, but “shall not substitute its judgment for that of

the hearing panel as to the weight of the evidence on questions of fact.” Sallee v. Bd. of

Prof’l Responsibility, 469 S.W.3d 18, 36 (Tenn. 2015) (quoting Tenn. Sup. Ct. R. 9, § 1.3

(2010) and citing Bd. of Prof’l Responsibility v. Cowan, 388 S.W.3d 264, 267 (Tenn.

2012)). Like the trial court, we will reverse or modify the hearing panel’s decision only

when

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.

Long, 435 S.W.3d at 178 (quoting Tenn. Sup. Ct. R. 9, § 1.3 and citing Bd. of Prof’l

Responsibility v. Love, 256 S.W.3d 644, 653 (Tenn. 2008)). “In determining whether

substantial and material evidence supports the panel’s decision, the Court evaluates

whether the evidence ‘furnishes a reasonably sound factual basis for the decision being

reviewed.’” Sneed, 301 S.W.3d at 612 (quoting Threadgill v. Bd. of Prof’l Responsibility,

299 S.W.3d 792, 807 (Tenn. 2009)). A hearing panel’s decision is arbitrary and

capricious if 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.” Hughes v. Bd. of Prof’l Responsibility,

259 S.W.3d 631, 641 (Tenn. 2008) (quoting City of Memphis v. Civil Serv. Comm’n, 216

S.W.3d 311, 316 (Tenn. 2007)). A hearing panel abuses 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.” Sallee, 469 S.W.3d at 42 (quoting Eldridge

v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001)).

7

Because this disciplinary action was initiated in October 2013, we apply the pre-2014 version of

Rule 9. See Garland, 536 S.W.3d at 816.

- 11 -

First Amendment

Mr. Parrish contends that the statements he made in the motions to recuse are

protected speech under the First Amendment of the United States Constitution and

Article 1, § 19 of the Tennessee Constitution. Both the hearing panel and the trial court

concluded that Mr. Parrish’s statements in the motions to recuse violated Rules of

Professional Conduct 3.5(e), 8(a), 8.2(a)(1), and 8.4(d) and are not entitled to

constitutional protection. We agree.

This Court has in past disciplinary proceedings distinguished between in-court and

out-of-court statements in determining whether the First Amendment protects an

attorney’s speech. In Board of Professional Responsibility v. Slavin, 145 S.W.3d 538

(Tenn. 2004), we held that pejorative statements made by an attorney in motions and

other pleadings filed in state and federal courts were not entitled to First Amendment

protection.

In Ramsey v. Board of Professional Responsibility, 771 S.W.2d 116, 121 (Tenn.

1989), the Court applied the subjective “actual malice” standard established by the

United States Supreme Court in New York Times Co. v. Sullivan, 376 U.S. 254, 279–80,

84 S.Ct. 710, 11 L.Ed.2d 686 (1964),8 to determine whether the attorney’s out-of-court

statements to the media were constitutionally protected. There, we held that an attorney’s

out-of-court statements to the media were protected by the First Amendment, explaining

that after a case has concluded, an attorney has the right to make statements that criticize

the court and the judiciary, “so long as the criticisms are made in good faith with no

intent . . . to willfully or maliciously misrepresent the persons and institutions or bring

them into disrepute.”

In Slavin, we explicitly distinguished Ramsey because the statements at issue in

Slavin were made during in-court judicial proceedings, and “[i]n the context of judicial

proceedings, an attorney’s First Amendment rights are not without limits.” Slavin, 145

S.W.3d 549 & n.9 (emphasis added). Notably, in Ramsey, we held that although the

attorney’s out-of-court comments to news media were protected by the First Amendment,

the attorney’s conduct during in-court judicial proceedings—refusing to obey the court’s

orders, slamming the courtroom door, and refusing to answer the judge’s questions—was

sanctionable because it was “prejudicial to the administration of justice.” Ramsey, 771

S.W.2d at 122–23.

8

In the context of a defamation action, the United States Supreme Court held in Sullivan that a

public official could not recover damages without proving that “the statement was made with ‘actual

malice’—that is, with knowledge that it was false or with reckless disregard of whether it was false or

not.” 376 U.S. 254, 279–80.

- 12 -

In Slavin, we noted that the United States Supreme Court has stated that “during a

judicial proceeding, whatever right to ‘free speech’ an attorney has is extremely

circumscribed.” 145 S.W.3d at 549 (quoting Gentile v. State Bar of Nev., 501 U.S. 1030,

1071, 111 S.Ct. 2720, 115 L.Ed.2d 888 (1991)). The distinction between in-court and

out-of-court speech is supported by the rationale that “[a]lthough litigants and lawyers do

not check their First Amendment rights at the courthouse door, those rights are often

subordinated to other interests inherent in the judicial setting.” Slavin, 145 S.W.3d at 549.

We also quoted with approval the observation made by the Supreme Court of Kentucky

that the statements at issue need not be false to constitute attorney misconduct because

“[t]here 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)).9

By our holding in Slavin that the attorney’s in-court speech was not entitled to

First Amendment protection, “we intend[ed] 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.” Id. at 550 (citing Fla. Bar

v. Ray, 797 So.2d 556, 560 (Fla. 2001)).10

This Court’s rulings in similar cases, including cases that were not analyzed in

terms of the First Amendment, are consistent with our holding in Slavin. In Farmer v.

Board of Professional Responsibility, 660 S.W.2d 490, 491 (Tenn. 1983), we affirmed

discipline for an attorney for “scurrilous and improper language” in briefs that he had

filed accusing the Court of Appeals of making intentionally false findings of fact and

calling the judges and opposing counsel liars. In affirming the sixty-day suspension

imposed by the hearing panel, we noted that the attorney had written the “briefs and other

documents in question and deliberately chose to use language and tactics which cannot be

tolerated in the legal profession.” Id. at 493. More recently, in Bailey v. Board of

Professional Responsibility, 441 S.W.3d 223 (Tenn. 2014), we affirmed a sixty-day

suspension where an attorney’s misconduct in court—repeatedly violating the court’s

orders and admonitions during a jury trial—resulted in a mistrial. We noted that “[e]ven

if an attorney believes that the court has issued an erroneous ruling, zealous

representation of a client ‘never justifies the use of disrespectful, unprofessional or

indecorous language to the court.’” Id. at 234 (quoting In re Moncier, 550 F. Supp. 2d

9

The attorney in Waller filed numerous “scandalous and bizarre” pleadings, including one stating

in its opening paragraph that the current judge was “much better than that lying incompetent ass-hole [sic]

[he] replaced if [the current judge] graduated from the eighth grade.” 929 S.W.2d at 181–82.

10

This case, like Slavin, is distinguishable from the situation in Ramsey, which involved

out-of-court speech. Whether an attorney’s out-of-court speech continues to be subject to an actual malice

standard in a disciplinary proceeding is not presently before the Court.

- 13 -

768, 807 (E.D. Tenn. 2008)). In Hancock v. Board of Professional Responsibility, 447

S.W.3d 844, 853 (Tenn. 2014), we found an attorney had violated Rule of Professional

Conduct 3.5 by stating in an e-mail to a judge that he was a “bully” and a “clown”

because “[t]he conduct need not occur inside a courtroom to be disruptive to a tribunal.”

See also Ward v. Univ. of the South, 354 S.W.2d 246, 249 (Tenn. 1962) (stating that

although it is proper for an attorney to point out the court’s errors in a brief, it is not

acceptable for the attorney to “insert matters which are defamatory, scandalous,

impertinent and untrue” into a brief, and the court will not “tolerate, either orally or by

brief, . . . abuse of the . . . judge. . . .”).

In cases analyzed in terms of the First Amendment, courts in numerous other

jurisdictions, as well as the United States Supreme Court, have rejected the proposition

that the First Amendment provides absolute protection to attorney speech. Disciplinary

Counsel v. Gardner, 793 N.E.2d 425, 439 (Ohio 2003) (citing In re Sawyer, 360 U.S.

622, 646, 79 S.Ct. 1376, 3 L.Ed.2d 1473 (1959) (Stewart, J., concurring in result))

(“Thus, attorneys may not invoke the federal constitutional right of free speech to

immunize themselves from even-handed discipline for proven unethical conduct.”); In re

Shearin, 765 A.2d 930, 938 (Del. 2000) (ethical obligations imposed on attorneys qualify

their constitutional right to freedom of speech); In re Pyle, 156 P.3d 1231, 1243 (Kan.

2009) (holding that attorneys’ constitutional free speech rights are “tempered by their

obligations to the court and bar”); In re Disciplinary Action Against Graham, 453

N.W.2d 313, 321 (Minn. 1990) (First Amendment protection of attorney speech is not

absolute); Matter of Westfall, 808 S.W.2d 829, 835 (Mo. 1991) (the state may restrict a

lawyer’s constitutional rights where there is a threat to a significant state interest);

Lawyer Disciplinary Bd. v. Hall, 765 S.E.2d 187, 196 (W.Va. 2014) (First Amendment

protection of statements critical of judges is not absolute).

A majority of courts that have dealt with attorney speech in disciplinary

proceedings have not drawn a distinction between in-court and out-of-court statements in

considering the issue and have adopted an objective standard in determining whether

attorney speech is entitled to First Amendment protection. The Florida Bar v. Ray, 797

So.2d 556, 559–60 (Fla. 2001); In re Dixon, 994 N.E.2d 1129, 1136–37 (Ind. 2013);

Attorney Disciplinary Bd. v. Weaver, 750 N.W.2d 71, 81–82 (Iowa 2008); In re Cobb,

838 N.E.2d 1197, 1213 (Mass. 2005); Graham, 453 N.W.2d at 322–23; Mississippi Bar

v. Lumumba, 912 So.2d 871, 884 (Miss. 2005); Matter of Westfall, 808 S.W.2d 829, 837

(Mo. 1991); Gardner, 793 N.E.2d at 431–32; Hall, 765 S.E.2d at 197 (quoting Graham,

453 N.W.2d at 322). The Court of Appeals of New York pointed out in Matter of

Holtzman, 577 N.E.2d 30, 34 (N.Y. 1991), that the United States Supreme Court has

never extended the Sullivan standard to attorney discipline. The Holtzman court noted

that the application of the subjective “actual malice” standard of Sullivan to attorney

discipline “would immunize all accusations, however reckless or irresponsible, from

censure as long as the attorney uttering them did not actually entertain serious doubts

- 14 -

about their truth.” Id. The use of a different standard—the objective standard—is

supported by “the state’s interest in protecting the public, the administration of justice,

and the legal profession. . . .” Disciplinary Counsel v. Shimko, 983 N.E.2d 1300, 1305

(Ohio 2012) (citations omitted).

Under the objective 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.” Gardner, 793 N.E.2d at 431 (citations omitted). “It is

the reasonableness of the belief, not the state of mind of the attorney, that is

determinative.” Holtzman, 577 N.E.2d at 34.

In Gardner, the attorney had moved to reconsider, accusing the appellate court of

being dishonest and ignoring well-established law, claiming that it had “issued an opinion

so ‘result driven’ that ‘any fair-minded judge’ would have been ‘ashamed to attach

his/her name to it’ and that the panel did not give a ‘damn about how wrong,

disingenuous, and biased its opinion is.’” Gardner, 793 N.E.2d at 427. The Ohio

Supreme Court rejected the attorney’s claim that his statements were merely opinions and

thus immune from discipline as in the context of a defamation case. Instead, the Ohio

Supreme Court adopted the majority approach that the First Amendment does not protect

an attorney from discipline “for expressing an opinion, during court proceedings, that a

judge is corrupt when the attorney knows that the opinion has no factual basis or is

reckless in that regard.” Id. at 428–29. The Gardner court explained that a state’s

“compelling interest in preserving public confidence in the judiciary supports applying a

standard in disciplinary proceedings different from that in a defamation case.” Id. at 432.

The Massachusetts Supreme Court explained its rationale for adopting the

objective standard for attorney discipline cases as opposed to the subjective, or “actual

malice,” standard applied in defamation actions in terms of the differences in the societal

interest served by the two bodies of law. Cobb, 838 N.E.2d at 1213. While a defamation

action addresses a wrong directed against an individual, in a professional disciplinary

action, “the wrong is against society as a whole, the preservation of a fair, impartial

judicial system, and the system of justice as it has evolved for generations. . . .” Id.

Unwarranted statements criticizing judges only serve to weaken the public’s trust in the

judicial system. Id.

The court in Graham reasoned that the objective standard was appropriate in

attorney disciplinary cases because “[t]he standard applied must reflect that level of

competence, of sense of responsibility to the legal system, of understanding of legal

rights and of legal procedures to be used only for legitimate purposes and not to harass or

intimidate others, that is essential to the character of an attorney. . . .” 453 N.W.2d at 322.

- 15 -

Under the objective standard, the fact that the attorney’s feelings as expressed in his

statements were “genuine” did not negate the finding that he had acted with reckless

disregard as to the truth or falsity of his statements. Id. at 322–23.

We hold that the objective “reasonable attorney” standard is the appropriate

standard to apply in a disciplinary proceeding involving an attorney’s in-court speech.

Utilizing this objective standard,11 the hearing panel found that Mr. Parrish had made

statements in the motions to recuse about the integrity of the judges on the Court of

Appeals that a reasonable attorney would believe to be false, and that Mr. Parrish had

made those statements with reckless disregard as to their truth or falsity.

In sum, the in-court statements that Mr. Parrish made in the recusal motions were

not protected by the First Amendment.12 The hearing panel’s decision that these

statements violated Rules of Professional Conduct 3.5(e), 8.2(a), 8.4(c), and 8.4(d) is

supported by material and substantial evidence.

Appropriate Sanction

Next, we consider whether the appropriate sanction for Mr. Parrish’s misconduct

is a public censure as found by the hearing panel or suspension as determined by the trial

court. In determining the appropriate sanction in an attorney disciplinary matter, the ABA

Standards serve as guideposts, and they direct the court, in applying the Standards, 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?);

11

The hearing panel, in its order ruling on motions argued during the telephonic hearing of June

29, 2015, began its analysis by stating that the parties had agreed, both in their filings and in oral

argument, that in the context of a disciplinary proceeding, the objective standard set forth in Gardner

applies to evaluate an attorney’s statements about the judiciary. Mr. Parrish later claimed in post-hearing

filings with the hearing panel and in the trial court proceedings that he had not agreed that the objective

standard was correct. The record before this Court does not contain a transcript of the June 29, 2015

telephonic hearing. Although Mr. Parrish did not appeal the ruling of the hearing panel, the trial court

held that he had not waived the issue during the hearing before the panel because the Board

acknowledged the possibility that there might have been some misunderstanding there between the

parties.

12

Our resolution of the First Amendment claim also resolves Mr. Parrish’s claim under Article I,

§ 19 of the Tennessee Constitution.

- 16 -

(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?

Bailey, 441 S.W.3d at 232 (citing Bd. of Prof’l Responsibility v. Maddux, 409 S.W.3d

613, 624 (Tenn. 2013)).

The hearing panel found that the statements made by Mr. Parrish in the motions to

recuse “constituted abusive and obstreperous conduct intended to disrupt the Court of

Appeals proceedings involving [his] client,” and thus violated Rule 3.5(e). The hearing

panel also determined that a reasonable attorney would believe that the statements made

in the motions to recuse about the integrity of the judges were false, and so those

statements violated Rule 8.2(a)(1). The hearing panel also concluded that the statements

were prejudicial to the administration of justice, and thus violated Rule 8.4(d). Finally,

Mr. Parrish’s violations of Rules 3.5(e), 8.2(a)(1), and 8.4(d) violated Rule 8.4(a).

Although the hearing panel stated in its Final Order Imposing Sanction that it had

considered the applicable provisions of the ABA Standards, it did not identify which of

the ABA Standards it considered. The trial court affirmed the findings of fact made by

the hearing panel regarding the violations of the Rules of Professional Conduct. The trial

court then looked to ABA Standard 6.0 applicable to violation of duties owed to the legal

system to determine what level of sanction was warranted. “Generally speaking, ‘[t]he

ABA Standards suggest the appropriate baseline sanction, and aggravating and mitigating

factors may justify an increase or reduction in the degree of punishment to be imposed.’”

Bd. of Prof’l Responsibility v. Barry, 545 S.W.3d 408, 422 (Tenn. 2018) (quoting In re

Vogel, 482 S.W.3d 520, 534 (Tenn. 2016)).

Citing the definition of “knowledge” in the ABA Standards,13 the trial court found

evidence in Mr. Parrish’s testimony before the hearing panel and in the voluminous

pleadings that Mr. Parrish knew the statements in the motions to recuse were false. The

trial court then noted that the ABA Standards that recommend a reprimand are

conditioned upon a finding that the attorney was negligent, and that the hearing panel “at

the very least” had found Mr. Parrish to be “reckless” with regard to the truth or falsity of

the statements made in the motions to recuse. The trial court concurred with the finding

of the hearing panel that Mr. Parrish made false statements that the appellate judges had

“purposefully ignored binding law, purposefully fabricated facts, manipulated and rigged

13

The ABA Standards define “knowledge” as: “conscious awareness of the nature of attendant

circumstances of the conduct but without the conscious objective or purpose to accomplish a particular

result.” ABA Standards, Black Letter Law, Definitions.

- 17 -

the legal system, acted in a manner that indicated they had taken bribes, abused their

judicial power, surrendered their impartiality, and ruled against his clients due to personal

sympathies and bias.” The trial court found that there was no factual basis for such

statements and that the only “fact” Mr. Parrish had was that the Court of Appeals had

ruled against his client. Because the trial court determined that the pleadings and the

proof submitted to the hearing panel showed that Mr. Parrish acted knowingly, it found

that a suspension was appropriate under ABA Standards 6.12 and 6.32, applicable when a

lawyer knows that false statements are being submitted to the court and when a lawyer

engages in communication with an individual in the legal system that the lawyer knows

to be improper. The trial court further looked to the definition of “injury” in the ABA

Standards,14 and stated that “it goes without saying that statements of this nature by an

attorney which falsely accuse a judge of this type of misconduct are prejudicial to the

administration of justice and serve to significantly undermine the integrity and public

confidence in the administration of justice.”

The trial court next considered the applicable aggravating and mitigating factors

that it had identified–Mr. Parrish’s substantial experience in the practice of law and his

refusal to acknowledge the wrongful nature of his conduct as aggravating factors; the

absence of prior discipline and Mr. Parrish’s positive reputation in the community as

mitigating factors. After deciding that the aggravating factors outweighed the mitigating

factors, the trial court determined that a six-month suspension was the appropriate

sanction, with one month to be served on active suspension and the remaining five

months to be served on probation.

We conclude that the hearing panel acted arbitrarily and capriciously in finding

that a public censure was warranted. Mr. Parrish made the statements in the recusal

motion knowingly, not negligently. Therefore, ABA Standard 6.12 applies, not ABA

Standard 6.13. Under ABA Standard 6.12, the presumptive sanction is suspension, not a

reprimand. The hearing panel offered no explanation as to why it did not apply ABA

Standard 6.12 and no reason is apparent from the record. See Barry, 545 S.W.3d at 425

(finding that the hearing panel’s decision to impose suspension instead of the

presumptive sanction of disbarment under the ABA Standards, in the absence of

mitigating factors, was arbitrary or capricious). The hearing panel’s decision “seems at

odds with the factual findings and assessment . . . of the level of intent and culpability

found by the hearing panel.” Id.

Mr. Parrish argues that a public censure rather than suspension is warranted, not

based on the ABA Standards or any precedent in prior cases, but because a suspension

would be an unconstitutional suppression of his right to free speech on the subject of

14

The ABA Standards define “injury” as: “harm to a client, the public, the legal system, or the

profession which results from a lawyer’s misconduct.” ABA Standards, Black Letter Law, Definitions.

- 18 -

judicial reform. The Board contends that the suspension imposed by the trial court is

appropriate under the ABA Standards. To determine the appropriate sanction, it is helpful

to consider sanctions we have imposed in cases with similar facts. “This Court

‘evaluate[s] each instance of attorney discipline in light of its particular facts and

circumstances,’ even as it ‘consider[s] the sanctions that have been imposed in prior cases

that present similar circumstances so as to maintain consistency and uniformity in

disciplinary proceedings.’” Bailey, 441 S.W.3d at 236 (quoting Bd. of Prof’l

Responsibility v. Maddux, 148 S.W.3d 37, 40 (Tenn. 2004)). See also Napolitano v. Bd.

of Prof’l Responsibility, 535 S.W.2d 481, 502 (Tenn. 2017) (quoting Bd. of Prof’l

Responsibility v. Reguli, 489 S.W.3d 408, 424 (Tenn. 2015)) (“When reviewing

disciplinary sanctions, this Court reviews comparable cases to ensure consistency in

discipline.”).

In Bailey, the attorney received a sixty-day suspension for misconduct in court–

repeatedly violating the court’s orders–resulting in a mistrial. 441 S.W.3d at 237. The

attorney in Farmer received a sixty-day suspension for statements in an appellate brief

calling judges on the Court of Appeals and another attorney liars. 660 S.W.2d at 491. In

Slavin, we imposed a two-year suspension for pejorative statements made in motions and

other pleadings filed in state and federal courts. 145 S.W.3d at 551. In Ramsey, we

affirmed an attorney’s suspension for six months, with forty-five days on active

suspension and the remaining 135 days on probation for his in-court behavior of

slamming courtroom doors, refusing to obey court orders, and refusing to answer

questions from the judge. 771 S.W.2d at 123.

Sanctions imposed in similar cases in other jurisdictions are also instructive. In

Gardner, the Ohio Supreme Court imposed a six-month suspension for the attorney’s

comments in a motion accusing the court of being “dishonest and ignoring

well-established law” and “so ‘result-driven’ that ‘any fair-minded judge’ would have

been ashamed to attach his/her name” to the opinion. 793 N.E.2d at 433. The attorney in

Waller was suspended for six months for comments made in a pleading filed with the

trial court calling the previous judge in the case a “lying incompetent ass-hole [sic]” and

stating that the new judge would be much better than the previous one if he graduated

from the eighth grade. 929 S.W.2d at 181, 183.

Like the attorney in Slavin, Mr. Parrish made in-court statements impugning the

integrity of the judges, albeit without the repeated misconduct present in Slavin. Like the

attorney in Farmer, Mr. Parrish “deliberately chose to use language and tactics which

cannot be tolerated in the legal profession.” 660 S.W.2d at 493. And, like the attorney in

Gardner, Mr. Parrish accused the Court of Appeals judges of being dishonest and

ignoring established law, skewing and ignoring the facts, and violating their oaths to

decide cases fairly and impartially. 793 N.E.2d at 427.

- 19 -

Although Mr. Parrish claims that his statements were justified by his steadfast

belief in judicial reform, attorneys who cross the line from tolerable criticism to

unacceptable speech “may not avoid punishment by claiming that their misconduct

served the greater good or the interest of their clients, as such exceptions would

overwhelm the rules.” Bailey, 441 S.W.3d at 237 (quoting Slavin, 145 S.W.3d at 551).

Mr. Parrish’s argument in that regard is much like the defense raised by John J. Hooker

who was disciplined for filing “frivolous lawsuits using the most baseless invectives.” In

re Hooker, 340 S.W.3d 389, 392 (Tenn. 2011). According to the trial court, Mr. Hooker

considered himself a “constitutional warrior for the people” and believed that his lawsuits

could not be frivolous for that reason. We noted that Mr. Hooker completely missed the

point—the disciplinary proceeding concerned only the question of whether the attorney

in fulfilling his perceived role as “constitutional warrior” was subject to the Rules of

Professional Conduct. Id. at 393.

Likewise, Mr. Parrish’s attempt to justify his conduct by claiming that he is on a

crusade for judicial reform misses the point. This case is not about Mr. Parish’s beliefs in

judicial reform. Rather, this case involves Mr. Parrish’s in-court derogatory statements

about the integrity of three appellate court judges in violation of the Rules of Professional

Conduct.

III.

We hold that Mr. Parrish’s pejorative statements in the motions to recuse were not

protected by the First Amendment. The hearing panel’s decision that Mr. Parrish violated

Rules of Professional Conduct 3.5(e), 8.2(a)(1), 8.4(a), and 8.4(d) is supported by

material and substantial evidence. The hearing panel, however, acted arbitrarily and

capriciously in determining that the appropriate sanction for Mr. Parrish’s misconduct

was a public censure rather than suspension. Thus, we affirm the judgment of the trial

court imposing a six-month suspension, with one month served on active suspension and

the remaining five months on probation. We tax the costs of this appeal to Larry E.

Parrish, for which execution may issue if necessary.

_________________________________

SHARON G. LEE, JUSTICE

- 20 -