Petition for Writ of Certiorari — Loring Edwin Justice, Petitioner v. Board of Professional Responsibility of the Supreme Court of Tennessee

Supreme Court briefDec 18, 2019

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No. _______

In the Supreme Court of the United States

_______________

LORING EDWIN JUSTICE,

Petitioner,

BOARD OF PROFESSIONAL RESPONSIBILITY

OF THE SUPREME COURT OF TENNESSEE,

Respondent.

______________________

On Petition for Writ of Certiorari to the Supreme

Court of Tennessee

______________

PETITION FOR WRIT OF CERTIORARI

______________

Linn Guerrero-Justice

Counsel of Record

200 Prosperity Place

Knoxville, Tennessee 37923

(865) 584-8620

linn@loringjustice.com

Counsel for Petitioner

QUESTIONS PRESENTED

1. Justice, relying on Spevack v. Klein and

McKune v. Lile, invoked his Fifth Amendment

right in a Tennessee disbarment proceeding.

Did Tennessee violate the self-incrimination

clause when it forced Justice to testify or suffer

adverse inferences costing him his Tennessee

law license?

2. Tennessee acknowledges this Court requires

attorney disciplinary proceedings to be quasicriminal but imposes civil law standards of proof

for disbarring an attorney (e.g., preponderance)

and administrative law standards for review on

appeal (e.g., affirming factual findings based on

a “scintilla or glimmer” of evidence). Tennessee’s

attorney disciplinary system also combines all

investigative and prosecutorial functions within

the Tennessee Supreme Court – going so far as

to allow the panel judging the accused attorney,

to prosecute the accused. Does the structure of

Tennessee’s disciplinary system violate the due

process clause and In re Murchison, 349 U.S.

133 (1955) and In re Ruffalo, 390 U.S. 544, 551

(1968)?

LIST OF PROCEEDINGS

Supreme Court of Tennessee

No. E2017-01334-SC-R3-BP

Board of Professional Responsibility, Appellee v.

Loring Edwin Justice, Appellant.

Date: July 2, 2019

_____________________

Chancery Court for Knox County, Tennessee

No. 184818-3

Board of Professional Responsibility, Plaintiff v.

Loring Edwin Justice, Defendant.

Date: May 31, 2017

_____________________

Disciplinary District II of the Board of Professional

Responsibility of the Supreme Court of Tennessee

No. 2013-2254-2-WM

In re: Loring Edwin Justice

BPR # 19446, Respondent

An Attorney Licensed to

Practice Law in Tennessee

(Knox County)

Date: March 9, 2015

iii

TABLE OF CONTENTS

QUESTIONS PRESENTED……………………………i

LIST OF PROCEEDINGS…………………………...…ii

TABLE OF CONTENTS…………………………….…iii

TABLE OF AUTHORITIES…………………………..vii

OPINIONS BELOW……………………………….…….1

JURISDICTION…………………………………….…....1

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED……………………………..2

STATEMENT OF THE CASE………………………….5

a. The Clerk and Master Lost the

Record and the Trial Court

Shredded It………………………………………13

REASONS FOR GRANTING THE PETITION……15

PENALIZING INVOCATION OF

THE FIFTH AMENDMENT……………..15

a. The Panel Violated

the Fifth Amendment

Privilege against

Self-Incrimination………………………19

1. “Quasi-Criminal” must mean

Something…………………………….21

2. “No Penalty” May

Be Imposed……………………………23

3. The Panel Denied Justice

the Ability to make

an Intelligent Constitutional

Choice………………………………….27

4. The Board Prejudiced

the Panel on Fifth

Amendment Issues………………….28

II.

WHAT’S CAUSING ALL THIS?................29

III.

ADMINISTRATIVE LAW…………………32

CONCLUSION………………………………………….38

APPENDIX

APPENDIX A

Opinion, in the Supreme Court of

Tennessee

(July 2, 2019)………………..App. 1

APPENDIX B

Order in the Chancery Court for

Knox County, Tennessee

(May 31, 2017)…………….App. 56

APPENDIX C

Order in the Chancery Court for

Knox County, Tennessee

(February 9, 2017)………..App. 80

APPENDIX D

Findings of Fact and Conclusions

of Law and Judgment of the

Hearing Panel

(March 9, 2015)…………App. 115

APPENDIX E

Order on Petition for Rehearing,

in the Supreme Court of

Tennessee

(July 22, 2019)………….App. 148

APPENDIX F

Tenn. Sup. Ct. R. 9 (2012),

Disciplinary

Enforcement……………App. 150

APPENDIX G

Tenn. Sup. Ct. R. 8 Rules of

Professional Conduct (Pertinent

Text)……………………….App. 224

vii

TABLE OF AUTHORITIES

CASES

Akers v. Prime Succession of Tennessee, Inc., 387

S.W.3d 495 (Tenn. 2012) ........................... 15, 16, 36

Allegheny Pittsburgh Coal Co. v. County Commission

of Webster County, West Virginia, 488 U.S. 336

(1989) ..................................................................... 31

Baxter v. Palmigiano, 425 U.S. 308 (1976) .............. 29

Burchfield v. Renfree, No. E2012-01582-COA-R3-CV

(Tenn. App. 2013) .................................................. 30

Cafeteria and Restaurant Workers Union, Local 473,

AFL-CIO v. McElroy, 367 U.S. 886 (1961) ........... 34

Caperton v. A. T. Massey Coal Co., Inc., 556 U.S. 868

(2009) ........................................................................ i

Chamberlain Mfg. Corp. v. Maremont Corp., 1995

WL 769782, (N.D. Ill. 1995) .............................. 9, 10

Cohen v. Hurley, 366 U. S. 117 (1961) ..................... 19

Dickerson v. United States, 530 U. S. 428 (2000) .... 25

Frost & Frost Trucking Co. v. Railroad Comm’n, 271

U.S. 583 (1926) ...................................................... 20

Garner v. United States, 424 U.S. 648 (1976) .......... 26

Garrity v. New Jersey, 385 U.S. 493 (1967) . 15, 23, 27

Goldberg v. Kelly, 397 U.S. 254 (1970)..................... 33

Greene v. McElroy, 360 U.S. 474 (1959) ................... 33

Griffin v. California, 380 U. S. 609 (1965)......... 22, 25

Hodges v. S.C. Toof, 833 S.W.2d 896 (Tenn. 1992).. 32

viii

Hughes v. Board of Prof’l Responsibility, 259 S.W.3d

631 (Tenn. 2008) .................................................... 35

Hyman v. Bd. of Prof’l Respon., No. E2012-02091-SCR3-BP (Mar. 31, 2014). ...................................... 18, 20

In re Gault, 387 U.S. 1 (1967) ................ 15, 21, 22, 33

In re Murchison, 349 U.S. 133 (1955) ..................... i, 37

In re Ruffalo, 390 U.S. 544 (1968) i, 15, 21, 22, 31, 32,

In re Snyder, 472 U.S. 634 (1985) ............................ 33

In The Matter Of Frazier, 1 Cal. Rptr. 676 (1991)... 20

Johnson v. Zerbst, 304 U.S. 458 (1938).............. 17, 28

Lefkowitz v. Cunningham, 431 U. S. 801 (1977) .... 24,

25, 27

Lefkowitz v. Turley, 414 U.S. 70 (1973) ................... 26

Malloy v. Hogan, 378 U.S. 1, 8 (1964).......... 23, 25, 27

McKune v. Lile, 536 U. S. 24 (2002) ................. Passim

Meehan v. Board of Prof’l Responsibility, No. M201801561-SC-R3-BP (Tenn. 2019) .............................. 30

Middlesex County Ethics Committee v. Garden State

Bar Ass’n, 457 U.S. 423 (1982).............................. 33

Minnesota v. Murphy, 465 U.S. 420 (1984).............. 26

Miranda v. Arizona, 384 U. S. 436 (1966) ......... 19, 25

Moncier v. Bd. Of Prof’l Respon., 406 S.W.3d 139 (Tenn.

2013) ..................................................... 20, 34, 35, 36

Ohio v. Reiner, 532 U.S. 17 (2001) ....................... 5, 12

Oklahoma ex rel. Oklahoma Bar Association v.

Wilcox, 227 P.3d 642 (Ok. 2009). .......................... 20

Razatos v. Colorado Supreme Court, 746 F.2d 1429

(10th Cir. 1984) ...................................................... 33

Slochower v. Board of Education, 350 U. S. 551

(1956) ..................................................................... 23

Spevack v. Klein, 385 U. S. 511 (1967)............. Passim

State v. Russell, 610 P.2d 1122, 1129 (Kan.1980) .. 19,

Theard v. United States, 354 U.S. 276, 282-283

(1957) ..................................................................... 33

United States v. Lanier, 520 U.S. 259 (1997)........... 30

U.S. v. Ward, 448 U.S. 242, 255 (1980).................... 22

Uniformed Sanitation Men Assn., Inc. v.

Commissioner of Sanitation of City of New York,

392 U. S. 280 .................................................... 24, 26

Union Pac. R.R. Co. v. Pub. Serv. Commʼn, 248 U.S.

67, 70 (1918)........................................................... 27

United States v. Regan, 232 U.S. 37, 50 (1914) ....... 23

Withrow v. Larkin, 421 U.S. 35 (1975) .............. 35, 36

CONSTITUTION

U.S. Const. Amend V ........................................ Passim

U.S. Const. Amend XIV ...................... 2, 19, 20, 23, 31

STATUTES AND RULES

28 U.S.C. § 1257 .......................................................... 1

Tenn. Sup. Ct. R. 9, § 1.5 .......................................... 35

Tenn. Sup. Ct. R. 9, § 5.3 .......................................... 35

Tenn. Sup. Ct. R. 9, § 5.5(a)...................................... 34

Tenn. Sup. Ct. R. 9, § 5.5(b)...................................... 34

Tenn. Sup. Ct. R. 9, § 5.5(c) ...................................... 34

Tenn. Sup. Ct. R. 9, § 5.5(d) ..................................... 34

Tenn. Sup. Ct. R. 9, § 5.5(e) ...................................... 34

Tenn. Sup. Ct. R. 9, § 6.4 .......................................... 35

Tenn. Sup. Ct. R. 9, § 7.1 .......................................... 34

Tenn. Sup. Ct. R. 9, § 8.1 .......................................... 34

Tenn. Sup. Ct. R. 9, § 8.2 .......................................... 34

Tenn. Sup. Ct. R. 9, § 8.4(b)...................................... 11

Tenn. Sup. Ct. R. 9, § 24.3 ........................................ 35

OPINIONS BELOW

The Tennessee Supreme Court’s opinion is

reported at Board of Professional Responsibility of the

Supreme Court of Tennessee v. Loring Edwin Justice,

577 S.W.3d 908 (Tenn. 2019) (App. 1-55). The order on

rehearing was issued on July 22, 2019 (No. E201701334-SC-R3-BP) (App. 148-49).

The Chancery Court for Knox County,

Tennessee issued its order disbarring Mr. Justice on

February 2, 2017 (re-issued the order on February 9,

2017) (App. 80-114). The court issued its final order on

May 31, 2017 (No. 184818-3) (App. 56-79). These

orders are unreported.

The findings of fact and conclusions of law and

judgment in Disciplinary District II of the Board of

Professional Responsibility of the Supreme Court of

Tennessee, authored by a panel of lawyers appointed

by the Board of Professional Responsibility (“panel”),

were issued on March 9, 2015 (No. 2013-2254-2-WM)

(App. 115-47). This order is unreported.

JURISDICTION

The Supreme Court of Tennessee issued its

judgment on July 2, 2019 and denied rehearing on

July 22, 2019. On October 22, 2019, Justice Sotomayor

extended time to file a petition for writ of certiorari to

and including December 19, 2019. This Court has

jurisdiction under 28 U.S.C. § 1257.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Fifth Amendment, United States Constitution

No person shall be held to answer for a

capital, or otherwise infamous crime,

unless on a presentment or indictment of

a Grand Jury, except in cases arising in

the land or naval forces, or in the Militia,

when in actual service in time of War or

public danger; nor shall any person be

subject for the same offence to be twice

put in jeopardy of life or limb; nor shall

be compelled in any criminal case to be a

witness against himself, nor be deprived

of life, liberty, or property, without due

process of law; nor shall private property

be taken for public use, without just

compensation.

Fourteenth Amendment,

United States Constitution

Section 1.

All persons born or naturalized in the

United States, and subject to the

jurisdiction thereof, are citizens of the

United States and of the state wherein

they reside. No state shall make or

enforce any law which shall abridge the

privileges or immunities of citizens of the

United States; nor shall any state

deprive any person of life, liberty, or

property, without due process of law; nor

deny to any person within its jurisdiction

the equal protection of the laws.

Section 2.

Representatives shall be apportioned

among the several states according to

their respective numbers, counting the

whole number of persons in each state,

excluding Indians not taxed. But when

the right to vote at any election for the

choice of electors for President and Vice

President of the United States,

Representatives in Congress, the

executive and judicial officers of a state,

or the members of the legislature

thereof, is denied to any of the male

inhabitants of such state, being twentyone years of age, and citizens of the

United States, or in any way abridged,

except for participation in rebellion, or

other crime, the basis of representation

therein shall be reduced in the

proportion which the number of such

male citizens shall bear to the whole

number of male citizens twenty-one

years of age in such state.

Section 3.

No person shall be a Senator or

Representative in Congress, or elector of

President and Vice President, or hold

any office, civil or military, under the

United States, or under any state, who,

having previously taken an oath, as a

member of Congress, or as an officer of

the United States, or as a member of any

state legislature, or as an executive or

judicial officer of any state, to support

the Constitution of the United States,

shall have engaged in insurrection or

rebellion against the same, or given aid

or comfort to the enemies thereof. But

Congress may by a vote of two-thirds of

each House, remove such disability.

Section 4.

The validity of the public debt of the

United States, authorized by law,

including debts incurred for payment of

pensions and bounties for services in

suppressing insurrection or rebellion,

shall not be questioned. But neither the

United States nor any state shall assume

or pay any debt or obligation incurred in

aid of insurrection or rebellion against

the United States, or any claim for the

loss or emancipation of any slave; but all

such debts, obligations and claims shall

be held illegal and void.

Section 5.

The Congress shall have power to

enforce, by appropriate legislation, the

provisions of this article.

Tenn. Sup. Ct. R. 9 (2006)

Disciplinary Enforcement

See Appendix F.

Tenn. Sup. Ct. R. 8

Rules of Professional Conduct

See Appendix G.

STATEMENT OF THE CASE

Tennessee compelled Justice to testify by

deposition over his Fifth Amendment objection and

penalized Justice’s invocation of the selfincrimination clause, invoked as an innocent person

under Ohio v. Reiner, 532 U.S. 17 (2001), by

threatening to disbar him by adverse inferences if he

did not testify at trial. 1

Justice asserted his Fifth Amendment privilege

at the trial/panel level. The panel heard arguments

before the hearing on Justice’s Fifth Amendment

privilege. See Jan. 20, 2015 Tr. The panel ruled if

Justice invoked the self-incrimination clause he could

be disbarred or sanctioned via adverse inferences. At

hearing, the question became whether the Board of

Professional Responsibility of the Supreme Court of

Tennessee (“Tennessee” or “Board”) made a sufficient

case to secure adverse inferences under Tennessee’s

case law. The panel reserved ruling whether, given

the evidence, it would draw the adverse inferences it

was threatening Justice with if he invoked his Fifth

Amendment privilege, until after the proceedings

closed. Admin.IV 1182. Justice informed the panel

Spevack forbade threatening him with or imposing

adverse inferences for exercising his Fifth

Amendment rights and at a minimum, he ought to

know if the Board had presented sufficient evidence to

secure an adverse inference, before he chose to testify.

TR.28:24–29:10; TR.340:7–341:5; Jan. 20, 2015 Tr; see

also Justice’s Pet. for Certiorari 9-6-18 R.Supp.Vol.I 1

et seq. The panel stubbornly refused, in an undisputed

There is no dispute Justice could genuinely invoke the selfincrimination clause and had not waived it.

attempt to pressure Justice to testify. Id.

The panel threatened Justice with an adverse

inference that might well disbar him if he did not

testify. However, after informing the panel this was

Constitutional error, Justice also challenged the

Board’s proof and stated there was insufficient evidence

to find adverse inferences, under Tennessee’s adverse

inference case law, even though the panel had

threatened to unconstitutionally impose them,

generally. TR.341. Justice stated the panel could

potentially ameliorate its Constitutional violation by

removing the threat of adverse inferences it improperly

made, by determining under the evidence presented

the Board did not prove enough facts to secure the

improperly threatened adverse inferences it requested.

TR.341-42. That way, if Justice knew adverse inferences

were off the table, perhaps he could decide to testify

or not without being unconstitutionally afflicted with

a threatened penalty. The panel refused to ameliorate

its unconstitutional threat of adverse inferences,

thereby, also violating the Constitutional standards

for an intelligent decision on exercising the Fifth

Amendment right – another violation due to the

panel’s manipulative actions and separate from the

fact the prior threats of adverse inferences were

unconstitutional, barred by Spevack and McKune.

After raising these Constitutional violations

before the panel, Justice then raised the Fifth

Amendment violation as error before both the

certiorari court and the Tennessee Supreme Court.

App.37-39, n.18; 69-73; 92-98. The certiorari court

ruled Justice’s argument the panel violated the Fifth

Amendment privilege against self-incrimination was

“without merit.” App.98. The Tennessee Supreme

Court then, admittedly, refused to discuss the issue in

its opinion. App.39, n.18.

Justice is a Tennessee lawyer who represents

individuals, particularly those injured by nuclear

weapons operations and whistleblowers, and engages

in civil rights litigation against the local, state and

federal governments and often makes Constitutional

challenges to Tennessee legislation. Ex.5, p.7; Ex.22.

He graduated from the University of Tennessee, with

a 4.0 grade point average and was the top Graduate of

the College of Arts and Sciences, and Yale Law School.

Ex.25, p.45; Ex.22. While at Yale, he taught in an

inner-city school and worked in a Truancy Prevention

Court featured in The New York Times describing his

participation. He graduated in 1998 and served as

clerk on the United States Court of Appeals for the

Sixth Circuit. Id. Previous to these events, Justice

never had a blemish on his integrity and never

sanctioned for any ethics violation.

In June 2011, a lawyer’s report to the Board

suggested Justice committed ethical violations. The

attorney represented Justice's former contractor, Mr.

Kerschberg. Kerschberg conceded a diagnosis of

manic-depression after leaving Justice's employ and

was on a regimen of four psychotropic drugs: Lithium,

Lamictal, Klonopin and Prozac. His pharmacological

regimen was substantially increased from what it had

been 9 years earlier when he was institutionalized.

Kerschberg was the only witness called by Tennessee

and he testified only by deposition on written

questions.

The allegations claimed fraud concerning fees

due Justice’s client in Thomas v. Lowe’s Home

Centers, Inc. 2 (“Thomas”). Attorney fees and expenses

were awarded for discovery misconduct. Ex.18. The

underlying case involved catastrophic injuries to

Scotty Thomas (“Thomas”). On June 21, 2005, Thomas

was working in a Lowe’s, Inc. store for a contractor

when a bay of metal sheets collapsed on his head,

causing brain damage. Although Thomas was taken

for urgent care, Lowe’s not only denied liability, but

also Thomas’ presence in the store, knowledge or

records regarding this injury on its premises, and

knowledge of the mass remodeling on which Thomas

was working. TR.183:20-25. After a three-year

investigation, Justice found a former Lowe’s manager,

Mary Sonner, who confirmed her presence when the

incident occurred and swore Lowe’s lied. TR.184:1415; 360:23-361:2 An order awarding fees and costs for

discovery obstruction issued. Ex.18.

During his investigation in late 2008 to early

2009, after he became convinced sanctions would

occur, Justice kept a time record in Microsoft Word.

Ex.5, Feb. 17, 2012 TR.46:6-22; 95:18–96:2; Ex.6, Feb.

17, 2012 TR.40:8-19. Based on his experience and

private investigation, Justice expected sanctions

because he knew Lowe’s was deceiving. Justice’s

paralegal initially worked with the billing document,

and over time, Justice’s employees who worked on

Thomas had their time placed into the document.

TR.197:6-23. Essentially, the firm followed a master

document approach in which time records aggregated

into a single document.

From mid-April to September 2009, Justice

employed Kerschberg - a law school classmate and

No. 3:07-CV-372 (E.D. Tenn.).

friend who served with Justice as a fellow law clerk

for the same judge after Justice recommended him as a contractor. TR.342:25-43:7. Justice and Kerschberg

worked closely on Thomas, sharing a room within

Justice’s law office as their common workspace.

TR.373:13-16. Seven years prior, Kerschberg had

mental health issues after failing the South Carolina

bar examination. Ex.2, 6:1–9:1. While he was twice

institutionalized, by the time Justice hired him,

Kerschberg was five years past his treatment and

release and represented himself to be stable, but the

recession in 2009 caused him to lose his job. Justice

spoke with Kerschberg, felt bad Kerschberg had lost

his job, and hired Kerschberg as a contractor. TR.342:2543:7.

Kerschberg assisted Justice’s firm finding

permanent office space, and enhanced technology,

legal, and administrative assistance. Kerschberg’s

contract was terminated in September 2009 after

admittedly lying to Justice. Justice did not

meaningfully communicate with Kerschberg except as

necessary until near Thanksgiving 2010 when

Kerschberg called Justice and begged forgiveness. As

Kerschberg swore, Justice “graciously” gave it. Ex.6.

Justice sent the Thomas petition to Kerschberg for

review prior to filing to check Kerschberg’s work.

TR.519:4-8; 560:15–61:16 Kerschberg appeared to

review it without correction and communicated with

Justice by pleasant e-mails shortly before his lawyer

filed a complaint with Tennessee. Id.

In the petition, Justice followed the principles

in Chamberlain Mfg. Corp. v. Maremont Corp., 1995

WL 769782, (N.D. Ill. 1995), and related cases that

when a lawyer is working with an associate or legal

assistant (on non-exceptional tasks), only the time of

the highest billing professional is billed. 3 TR.220:924; 452:4–53:2; 475:25–76:21. When Justice and

Kerschberg worked together, or their work overlapped

(same thing at different times), absent exceptional

circumstances, only Justice’s time was billed. Id.

Following Chamberlain, Justice sought payment only

for his time or his associate’s when they overlapped

with a legal assistant, and he so instructed his staff.

TR.220:9-24; 452:4–53:2; 475:25–76:21. Justice

eliminated some of Kerschberg’s billing from his

request entirely as well, as he did with other members

of his staff and with his own in billing judgment.

TR.421:10-25. In a first submission of the draft

itemization exhibited to a motion for extension long

before any complaint, Justice informed the court he

was following such an approach. Ex.13, p.15.

Thomas’ case involving discovery misconduct, if

not obstruction, by Lowe’s, Inc. was stayed in June

2011 and remained stayed for a number of years,

pending the disciplinary complaint. On August 7,

2012, after a previous home invasion he survived,

Thomas was found dead in his home at 38. The cause

of death identified was heart failure (presumed).

Tennessee filed its Petition against Justice on

September 25, 2013 – three years after the alleged

conduct. Admin.Vol.I, Pet. for Discipline. A hearing

was held January 20-23, 2015, nearly five years ago.

Admin.Vol.I 0287. Tennessee alleged Justice committed

3 The Tennessee Supreme Court claimed Chamberlain is not a

ground-breaking case. App.26, n.7. This is irrelevant. Justice did

not claim it was. He just claimed he read it and cases citing it

and followed its conservative approach. TR.220:9-24; 452:4–53:2;

475:25–76:21.

fraud by falsely claiming Kerschberg’s entries as his

own. Id. Tennessee alleged Justice copied these entries

and did not work the time reflected. Id. The Board also

alleged Justice violated Rule of Professional Conduct

8.4(b), which provides “[i]t is professional misconduct

for a lawyer to: … commit a criminal act that reflects

adversely on the lawyer’s honesty, trustworthiness, or

fitness as a lawyer in other respects.” Admin.Vol.I Pet.

¶¶ 20-21. The Board never identified, either in its

Petition or in proof or argument, what crime it alleges

that Justice committed, nor did it identify or lay out

proof supporting the elements of any such unidentified

crime. The hearing panel concluded the Board

abandoned or did not prove this allegation. See

Admin.Vol.I Pet. for Discipline p. 6; see also

Admin.Vol.VI 1717-18. The Tennessee Supreme Court

later resurrected this allegation, to disbar Justice,

without noting the panel found against the Board on

it. App.25, n.12.

Justice was only charged with submitting

knowingly false time entries. Admin.Vol.I Pet. for

Discipline; TR.135:6-14. The Board did not describe

the evidence establishing the burden or show how,

even assuming an entry is incorrect, why it is

knowingly false instead of resulting from mistake or

misinformation from Kerschberg or any other staff

member. Kerschberg testified he copied Justice’s time

notes in Thomas in 2009 to create his own invoices,

explaining any language similarities between Kerschberg’s invoices and the itemization for fees. Ex.4. Even

had Kerschberg not so testified, Tennessee offered no

evidence, assuming an entry is incorrect, why Justice,

as opposed to someone else, is the author of the

mistake or wrongdoing. When the petition was

prepared, the firm had to put everyone’s billings

together and sort Sonner from non-Sonner. TR.200:12201:13. Initials were placed to the side and Justice

was the default. Exs.20-21; TR.360:14-18, 493:17–

494:4. Justice’s partner and staff, Rickman (attorney),

Vaughn (legal assistant), and Myers (legal assistant),

were tasked with attributing entries to various persons,

removing overlapping or duplicative billings, and

protecting work product information. TR.220–226:17;

Ex.31. The fact alternative “suspects” existed for any

alleged misdeed/error, like the staff tasked with

working on the entries, was never addressed at any

level. Admin.R.Vol.VI 1696 et seq.; R.Vol.III 293 et seq.

There was no evidence Justice was the

wrongdoer. Tennessee acknowledged its case is

“totally circumstantial,” and there is no direct

evidence of any wrongdoing by Justice. TR.132:22-24.

Tennessee had to force Justice to testify to prevail and

it did so by threatening to disbar or punish him via

adverse inferences if he did not.

Kerschberg testified he has no way of knowing

whether Justice did the work in “these entries,”

despite the fact his attorney filed a complaint. Ex.2.

Given Kerschberg’s testimony he copied from Justice’s

billing notes and can no longer dispute Justice

performed this work, and his refusal to appear live at

hearing, there was no meaningful case against

Justice. Ex.2, 14:20–15:2; Ex.4. Justice was advised to

and did take the Fifth Amendment’s self-incrimination

privilege as an innocent person under Ohio v. Reiner.

Tennessee would not let him do that and forced him

on the stand with unconstitutional compulsion.

Tennessee compelled Justice to testify by deposition

and at hearing over his objection. Ex. 1. TR.28:2 4–

29:4.

The Board advocated before the panel suspension

or disbarment, stating, “The Board submits that the

appropriate sanction is a disbarment or lengthy

suspension.” Admin.Vol.III 627. The panel issued its

findings and judgment (“judgment”) on March 9, 2015,

Admin.Vol.VI 1696, and imposed a penalty of a oneyear suspension. Admin.Vol.VI 1720. The Board filed

its petition for writ of certiorari on April 13, 2015

appealing the panel’s findings and seeking disbarment,

although the Board informed the panel a suspension

would be acceptable. Admin.Vol.III 627. The certiorari

court 4 to which the Board appealed signed its order

disbarring Justice on February 2, 2017, finding the

panel abused its discretion in not disbarring Justice,

although Tennessee informed the Panel a suspension

was an appropriate choice. R.Vol.III 302 et seq. After

post-hearing motions, Justice timely filed his Notice

of Appeal to the Tennessee Supreme Court. R.Vol.V

650.

a. The Clerk and Master Lost the Record and

the Trial Court Shredded It

On October 18, 2017, R.Vol.VI 759, Justice’s

counsel learned the record was missing from the

courthouse and had been mailed to the Judge’s office.

The record from the panel proceedings with the

transcript of the panel hearing is over 2,000 pages. On

October 20, 2017, Justice’s counsel received a phone

call from the clerk’s office informing the record, on file

in the Chancery Court, had been lost or destroyed

4 The Chancery Court for Knox County, Tennessee; Judge Robert

E. Lee Davies, Senior Judge presiding, handled the first level of

appeal from the panel’s decision.

[destruction 1]. The clerk’s office also informed the

Board’s practice is to send a copy of the record to

judges appointed to hear disciplinary cases on appeal,

and the copy of the record the Board sent to the court

was missing or destroyed [destruction II]. Since the

realization two copies of the record had gone missing

and/or been destroyed, the Board sent an additional,

alleged “certified copy” of the “record” to the clerk for

filing, however, there was no order approving the

“record” to be filed. 7-24-18 R.Supp.Vol.I 28-30. The

court ordered Justice’s counsel to examine the

“record” sent to the clerk’s office before a January 5,

2018 hearing. Justice’s counsel did in full. Justice

moved the court to disclose what happened to the

court’s copy of the record and transcript. On January

5, 2018, the court informed the official record was

shredded by the trial judge but denied an evidentiary

hearing on the fact the Chancery Court’s record was

also destroyed. R.Vol.VI 770-74. An explanation was

given only for one destruction of the file, not both. The

record was never properly re-created.

The court later clarified it shredded not only

the official record but the official transcripts of the

disciplinary hearing. These transcripts were never

authentically replaced. The Tennessee high court

refused to address whether the record and transcripts

were properly re-created. App.44-45, n.21.

REASONS FOR GRANTING THE PETITION

PENALIZING INVOCATION OF THE

FIFTH AMENDMENT

The opinion refuses to address Justice’s

arguments on the panel’s violation of his privilege

against self-incrimination and admits avoiding the

issue. App.39, n.18. The opinion concedes it will not

address all challenges Justice raised. App.33-34, n.16.

The opinion finds there is no unconstitutional

compulsion in threatening an attorney with disbarment

via adverse inferences if he invokes the selfincrimination clause. App.37-39. The notion

invocation of the self-incrimination clause can be so

penalized ignores the last 50 years of this Court’s

jurisprudence. Spevack v. Klein, 385 U.S. 511 (1967);

In re Gault, 387 U.S. 1 (1967); Garrity v. New Jersey,

385 U.S. 493 (1967); In re Ruffalo, 390 U.S. 544, 551

(1968); McKune v. Lile, 536 U.S. 24 (2002).

The opinion states, “The Hearing Panel

reserved its ruling on whether it would actually draw

an adverse inference based on Mr. Justice’s invocation

of the privilege at his prehearing deposition until after

the Board presented its proof so that it could

determine whether the requirements of Akers 5 had

5 Akers is Tennessee’s decision allowing adverse inferences when

the self-incrimination clause is invoked in a purely civil case.

Akers v. Prime Succession of Tennessee, Inc., 387 S.W.3d 495

(Tenn. 2012). Since adverse inferences are a prohibited

punishment that may not be imposed on one invoking the

privilege in a disbarment proceeding under Spevack and

progeny, this passage makes clear Tennessee acted

unconstitutionally.

been satisfied.” App.37-39. This is false. The panel did

not inform Justice of any such thing after the Board

presented its proof. Had the panel told Justice their

adverse inference decision on any refusal to testify at

hearing once the Board rested as the opinion suggests,

and as Justice repeatedly requested, he could have at

least made a knowing and intelligent decision. The

opinion states virtually the opposite of what

happened. The panel’s actions were a violation of

Justice’s constitutional rights as Justice had the right

to be free from any penalty for exercising the privilege

and under the knowing and intelligent waiver case

law, he had the right to know whether the panel

thought it could impose an adverse inference before he

invoked his Fifth Amendment privilege – both in

discovery and at hearing – but the panel refused to

inform him of whether it thought the Board had met

its burden under Akers to draw an adverse inference

once the Board rested.

Despite the inaccuracy of the Tennessee

Supreme Court’s recitation of events, the opinion

makes transparent the Tennessee Board and panel

ordered him to testify by deposition and threatened

him with adverse inferences to induce him to testify

at hearing over his Fifth Amendment objection.

TR.28:2 4–29:4; Admin.Vol.IV 1182. Tennessee

unconstitutionally compelled Justice’s testimony

twice: (1) when the Panel granted the Board’s motion

to compel his deposition; and (2) when the panel held

an adverse inference over his head, if he did not

testify, after he invoked the self-incrimination clause.

Admin.Vol.IV 1182.

The opinion does not mention Spevack v. Klein,

385 U.S. 511 (1967), and does not mention the Board

unconstitutionally commented to the panel on

Justice’s exercise of his privilege attempting to induce

prejudice. TR.387:23– 88:24. No one would know the

Board violated Justice’s constitutional rights in these

ways by reading the opinion as these issues are

ignored.

Justice was placed in a position he cannot be

Constitutionally placed as he was punished for

invoking a Constitutional right, compelled to testify at

a deposition, and was in no position to intelligently

exercise his Constitutional right given the opacity

about whether the panel would draw adverse

inferences. The panel ruled if Justice invoked the selfincrimination clause he could be disbarred or

sanctioned via adverse inferences. At hearing, the

question became whether the Board made a sufficient

case to secure adverse inferences under Tennessee’s

case law for imposing adverse inferences. Although

Justice requested the panel rule whether Spevack

allowed an adverse inference for exercising the

privilege, the panel reserved ruling whether it would

draw the adverse inferences it threatened Justice

with if Justice invoked his Fifth Amendment privilege

until after the proceedings closed. Admin.IV 1182.

The panel refused to remove the threatened adverse

inferences from over Justice’s head before he decided to

testify. Attorneys in lawyer disciplinary proceedings,

particularly ones seeking disbarment, may exercise

their right not to be a witness against themselves

without penalty. Spevack v. Klein, 385 U.S. 511

(1967). Any waiver of any important Constitutional

right must be “knowingly and intelligently” made.

Johnson v. Zerbst, 304 U.S. 458, 464-65 (1938).

The opinion dodges whether any penalty may

befall an attorney for invoking the Fifth Amendment

privilege, including a threat of an adverse inference.

This Court’s answer is “no.” The Tennessee Court

collapses the Spevack-McKune issue into the intelligent

waiver issue, to escape the fundamental question – is

a threatened adverse inference or penalty of any kind

unconstitutional when disbarment is at issue? This

Court has been clear no penalty, including the threat

of an adverse inference, may be applied in a state

lawyer disciplinary case for an attorney invoking the

privilege. Spevack v. Klein, 385 U.S. 511 (1967);

McKune v. Lile, 536 U.S. 24 (2002). The opinion

sidesteps the issue in a footnote. App.39, n.18. In the

same footnote, the opinion goes on to cite cases from

various jurisdictions before this Court’s clarifying,

“no penalty” decision in McKune v. Lile, 536 U.S. 24

(2002). In McKune, the Court reiterated the potential

loss of a professional license is so coercive, exercising

the right against “self incrimination” cannot be

punished in any way. McKune, 536 U.S. 24, 50 (2002).

The reason the Fifth Amendment applied in Spevack,

as if it were a criminal case, was because the State

sought disbarment and losing a livelihood is just as

coercive, if not more, than many criminal penalties.

McKune, 536 U.S. 24, 39 and 50 (2002). The Tennessee

Court’s avoidance of this jurisprudence by pretending

Spevack and McKune do not exist denies Justice due

process. Although Tennessee has recognized this Court

requires attorney disbarment proceedings be “quasicriminal,” 6 the phrase quasi-criminal never appears

in the opinion. App.1-55. The opinion extols a pre6 Hyman v. Bd. of Prof’l Respon., No. E2012-02091-SC-R3-BP (Mar.

31, 2014).

McKune Georgia case allowing adverse inferences

only because Georgia attorney discipline cases are

civil and not quasi-criminal. App.39, n.18. Tennessee

ignored this Court’s precedents on the selfincrimination clause and the quasi-criminal nature of

attorney-discipline proceedings.

a. The Panel Violated the Fifth

Amendment Privilege against SelfIncrimination

In Spevack, this Court forbade any penalty on

the lawyer for invoking the Fifth amendment

privilege against self-incrimination. The case involved

a state, not federal, disciplinary proceeding. The

Court held:

We conclude that Cohen v. Hurley should

be overruled, that the Self-Incrimination

Clause of the Fifth Amendment has been

absorbed in the Fourteenth, that it

extends its protection to lawyers as well

as to other individuals, and that it

should not be watered down by imposing

the dishonor of disbarment and the

deprivation of a livelihood as a price for

asserting it. Spevack at 514.

The Court cited Miranda stating, "In this

Court, the privilege has consistently been accorded a

liberal construction.” Spevack at 511. Other states get

this correct. The Kansas Supreme Court held the Fifth

Amendment “self-incrimination” privilege attaches in

full in lawyer disciplinary proceedings because of

Spevack in State v. Russell, 610 P.2d 1122, 1129

(Kan.1980). The Kansas Court found, given Spevack

extends to the States via the Fourteenth Amendment,

no State can legitimately deny a right in the federal

Constitution extended to the States, given the

Supremacy Clause. 7 In Frost & Frost Trucking Co. v.

Railroad Comm’n, 271 U.S. 583 (1926), this Court held

a State may not compel the surrender of a constitutional

right as a condition of a State privilege, making the

famous analogy of coercion imposing “no choice except

a choice between the rock and the whirlpool,” and

noting to allow any punishment for exercising a

Constitutional right is to surely allow the right to be

“manipulated out of existence.” Frost at 593-94. This

is exactly what Tennessee is doing, manipulating the

right away in disciplinary proceedings. Justice was

placed between the “rock and the whirlpool” and

coerced to testify at hearing by the panel, TR.340:7–

341:5, and he was compelled to give a pre-hearing

deposition. The panel coerced Justice to choose between

foregoing a Constitutional privilege or submitting to a

finding ultimately made by the panel, after the

proceedings, it could impose an adverse inference.

Admin.IV 1182; Admin.VI 1718. Though Tennessee

has followed this Court and held disciplinary

proceedings must be “quasi-criminal,” 8 even if it had

not, Spevack extends the self-incrimination clause to

state lawyer disciplinary proceedings. The panel, in

its judgment, asserted it could have drawn an adverse

7 In The Matter Of Frazier, 1 Cal. Rptr. 676 (1991), dealt with the

same issue and forbade an adverse inference or the threat of an

adverse inference in a disbarment proceeding. See also

Oklahoma ex rel. Oklahoma Bar Association v. Wilcox, 227 P.3d

642 (Ok. 2009).

8 Moncier v. Bd. Of Prof’l Respon., 406 S.W.3d 139, 155 (Tenn. 2013);

Hyman v. Bd. of Prof’l Respon., No. E2012-02091-SC-R3-BP (Tenn.

2014).

inference and punished or disbarred Justice just

because Justice invoked his privilege, had the threat

of those adverse inferences not forced him on the

stand and the Tennessee certiorari court and

Supreme Court affirmed the panel’s assertion it could

have drawn an adverse inference and disbarred

Justice had the threat of such inferences not forced

him to testify at hearing.

1. “Quasi-Criminal”

mean Something

must

Contrary to Tennessee’s assertion, a proceeding

cannot be both “quasi-criminal” and “civil” as different

standards of due process exist in each. Tennessee

claims when this Court held lawyer disciplinary cases

were “quasi-criminal,” In re Ruffalo, 390 U.S. 544, 551

(1968), it meant they were just civil. TR.VIII 119;

App.98. If the cases were to proceed purely under civil

standards, this Court well knows how to state this.

The term “quasi-criminal” has a long history in federal

law, and while it does not mean all or most rights of

criminal defendants apply, it has universally meant

the right against “self-incrimination” does. 9

A state cannot avoid Spevack by claiming its

disciplinary cases are civil or stating quasi-criminal

and civil are synonymous. This Court has been

explicit in state lawyer disciplinary proceedings the

privilege against self-incrimination applies, no matter

how the state describes their lawyer disciplinary

proceedings. Spevack, 385 U.S. 511 (1967). In re

Gault, 387 U.S. 1 (1967), extended the privilege

9 See, e.g., State v. Russell, 610 P.2d 1122, 1129 (Kan. 1980).

against self-incrimination to juvenile delinquency

cases though these proceedings are “civil” because the

interests of a juvenile are much like those of an adult

criminal defendant. In citing Gault, the Court in

Ruffalo at 551 (1968), held the same approach adopted

for juvenile delinquency is appropriate in lawyer

discipline. Considering the Court’s holdings in Gault

and Ruffalo, unlike civil cases where one must invoke

his or her Fifth Amendment privilege to each inquiry,

in criminal or quasi-criminal proceedings one may

invoke the Fifth Amendment privilege by choosing not

to take the witness stand. Griffin v. California, 380

U.S. 609, 613-15 (1965).

The phrase “quasi-criminal” is understood,

nearly universally, to encompass the privilege against

self-incrimination. In U.S. v. Ward, 448 U.S. 242, 255

(1980), after respondent discharged oil contaminating

a tributary, the United States assessed a civil penalty

under the Water Pollution Control Act. Respondent

sued, arguing the reporting requirements of the Act

violated the Fifth Amendment privilege. This Court

held Congress had not provided for sanctions so

punitive as to transform a civil remedy into a criminal

penalty and rejected the argument the penalty was

quasi-criminal, but made clear if the proceedings had

been designated quasi-criminal, the self-incrimination

clause would apply in full. This Court found that

quasi-criminal actions are not so grave as to “trigger

the protections of the Sixth Amendment, the Double

Jeopardy Clause of the Fifth Amendment, or the other

procedural guarantees normally associated with

criminal prosecutions” but such actions are “‘so far

criminal in [its] nature’ as to trigger the SelfIncrimination Clause of the Fifth Amendment.” Ward,

448 U.S. at 253-54. Ward could be forced to take the

stand because his proceeding did not involve sufficient

penalization to be termed “quasi-criminal,” but here it

is conceded, even by Tennessee, the proceeding is

required to be “quasi-criminal.” A determination a

proceeding is “quasi-criminal” always places a defendant

within the scope of the Fifth Amendment’s privilege

against compulsory self-incrimination. Id. at 253-54

(citing United States v. Regan, 232 U.S. 37, 50 (1914)).

That Tennessee obstinately ignores the Constitution

to disbar Justice shows irrational hostility to him and

insufficient loyalty to the Constitution.

2. “No Penalty” May Be

Imposed

In Malloy v. Hogan, 378 U.S. 1, 8 (1964), this

Court held:

The Fourteenth Amendment secures

against state invasion the same privilege

that the Fifth Amendment guarantees

against federal infringement—the right

of a person to remain silent unless he

chooses to speak in the unfettered

exercise of his own will, and to suffer no

penalty . . . for such silence.

Garrity v. New Jersey, 385 U.S. 493 (1967), holds:

We held in Slochower v. Board of

Education, 350 U. S. 551, that a public

school teacher could not be discharged

merely because he had invoked the Fifth

Amendment privilege against selfincrimination when questioned by a

congressional committee: ‘The privilege

against self-incrimination would be

reduced to a hollow mockery if its

exercise could be taken as equivalent

either to a confession of guilt or a

conclusive presumption of perjury. . . .

The privilege serves to protect the

innocent who otherwise might be

ensnared by ambiguous circumstances.’

Id., at 557-558. We conclude that

policemen, like teachers and lawyers, are

not relegated to a watered-down version

of constitutional rights. There are rights

of constitutional stature whose exercise

a State may not condition by the exaction

of a price.

In McKune v. Lile, 536 U.S. 24 (2002), this

Court explained:

The Court's so-called "penalty cases"

establish that the potential loss of one's

livelihood through, e. g., the loss of

employment, Uniformed Sanitation Men

Assn., Inc. v. Commissioner of Sanitation

of City of New York, 392 U. S. 280, and

the loss of the right to participate in

political associations and to hold public

office, Lefkowitz v. Cunningham, 431 U.

S. 801, are capable of coercing

incriminating testimony. Id.

This Court held the “threat of disbarment” is a

“powerful form of compulsion.” McKune, 536 U.S. 24,

40 (2002). As evidence of the impact of McKune, every

federal court disciplinary system, post-McKune,

allows the Fifth Amendment and prohibits the

imposition of adverse inferences for invoking the

Fifth. 10 In McKune, the Court determined the

potential loss of a professional license is so coercive,

the choice to exercise the right against “self

incrimination” cannot be punished in any way.

McKune at 50. The McKune Court went to great

lengths to make transparent the right to be free from

compelled testimony is far broader than a right to be

free from a direct order to testify:

Since Malloy, we have construed the text

to prohibit not only direct orders to

testify, but also indirect compulsion

effected by comments on a defendant’s

refusal to take the stand, Griffin v.

California, 380 U. S. 609, 613-614 (1965),

and we have recognized that compulsion

can be presumed from the circumstances

surrounding custodial interrogation, see

Dickerson v. United States, 530 U. S. 428,

435 (2000) ("[T]he coercion inherent in

custodial interrogation blurs the line

between voluntary and involuntary

statements, and thus heightens the risk

that an individual will not be `accorded

his privilege under the Fifth Amendment

... not to be compelled to incriminate

himself'") (quoting Miranda v. Arizona,

384 U. S. 436, 439 (1966)). Without

requiring the deprivation of any other

liberty interest, we have found prohibited

compulsion in the threatened loss of the

right to participate in political

e.g., Local Rule 83.7 for the District Court of the Eastern

District of Tennessee; see also, https://www.pacer.gov/psco/cgibin/links.pl. (same view in all other federal courts).

10See,

associations, Lefkowitz v. Cunningham,

431 U. S. 801 (1977), forfeiture of

government contracts, Lefkowitz v. Turley,

414 U.S., at 82, loss of employment,

Uniformed Sanitation Men Assn., Inc. v.

Commissioner of Sanitation of City of

New York, 392 U. S. 280 (1968), and

disbarment, Spevack v. Klein, 385 U. S.

511, 516 (1967).

As held in Spevack and McKune, when

disbarment is sought, the circumstances are so

coercive the self-incrimination clause applies as if the

case were criminal. The general rule is, "in the

ordinary case, if a witness under compulsion to testify

makes disclosures instead of claiming the privilege,

the government has not 'compelled' him to incriminate

himself." Garner v. United States, 424 U.S. 648, 654

(1976) (footnote omitted). An exception is applied

where "assertion of the privilege is penalized so as to

'foreclos[e] a free choice to remain silent, and ...

compe[l] ... incriminating testimony." Minnesota v.

Murphy, 465 U.S. 420, 434 (1984) (quoting Garner,

424 U.S. at 661) (alterations in original). In these

"penalty exception" cases, "the state not only

compelled an individual to appear and testify, but also

sought to induce him to forgo the Fifth Amendment

privilege by threatening to impose economic or other

sanctions 'capable of forcing the self-incrimination

which the Amendment forbids.'" Murphy, 465 U.S. at

434 (quoting Lefkowitz v. Cunningham, 431 U.S. 801,

806 (1977)). The question is: is the sanction so severe

as to coerce the “self-incrimination” the Amendment

forbids? This Court has said it is when disbarment is

sought. Tennessee obstinately pretends the penalty

exception cases do not exist.

In McKune, this Court reviewed the types of

penalties capable of “coercing incriminating

testimony” and found the threatened “loss of a

professional license” among them. McKune, 536 U.S.

at 50 (O'Connor, J., concurring). In Cunningham, the

Court "rejected the notion that citizens may be forced

to incriminate themselves because it serves a

governmental need," adding that the interests of the

state, even if compelling, do not "justify infringement

of Fifth Amendment rights." 431 U.S. at 808.

The privilege against self-incrimination applies

in civil as well as criminal proceedings. Malloy v.

Hogan, 378 U.S. 1, 11 (1964). It protects against the

use in prosecution of police officers of incriminating

statements that they made when given the choice “to

forfeit their jobs or to incriminate themselves,”

Garrity v. New Jersey, 385 U.S. 493, 497 (1967), and

the same is true when persons make the opposite

choice in those circumstances. Cf. id. at 498; Union

Pac. R.R. Co. v. Pub. Serv. Commʼn, 248 U.S. 67, 70

(1918).

3. The

Panel

Denied

Justice the Ability to

make

Intelligent

Constitutional Choice

Justice could not intelligently choose whether

to assert his Constitutional right without being fully

informed of the consequences – potential imposition of

adverse inferences resulting in disbarment. The panel

held generally it could draw adverse inferences,

despite Spevack before the hearing began. After

Tennessee rested, before Justice testified, Justice

asked the panel to determine whether Tennessee had

met its evidentiary burden to be entitled to adverse

inferences, before he chose to testify, so he could make

an intelligent, Constitutional choice. The panel

refused and left potential disbarment or other

sanction, by adverse inferences, hanging over

Justice’s head at the time he had to decide to testify.

TR.341-42. Justice also informed the panel, under the

Constitution, it should review this Court’s case law

and revisit whether Spevack allowed an adverse

inference for exercising his Fifth Amendment rights,

before he chose to testify, however, the panel refused,

and reserved ruling whether it would draw the

adverse inference it threatened, until after Justice

testified or not. TR.28:24–29:10; TR.340:7–341:5; Jan.

20, 2015 Tr; see also Justice’s Pet. for Certiorari 9-618 R.Supp.Vol.I 1 et seq. Justice was placed in a

position he cannot be Constitutionally placed as he

was in no position to intelligently exercise or waive his

Constitutional right because the panel did not tell him

whether it was in position to draw an adverse

inference until after he testified, rendering the

proceeding constitutionally moribund due to the Fifth

Amendment violation. Any waiver of a Constitutional

right must be “knowingly and intelligently” made.

Johnson v. Zerbst, 304 U.S. 458, 464-65 (1938). If any

State actor interferes with a knowing and intelligent

waiver, the right is not waived and the Constitutional

provision is violated. Id.

4. The Board Prejudiced

the Panel on Fifth

Amendment Issues

The Tennessee high court did not mention the

outrageous attempt to prejudice the panel.

Commenting on exercising the Fifth Amendment

right requires reversal. Invoking the Fifth Amendment

privilege in quasi-criminal proceedings will not result

in an adverse inference against the accused and any

attempt to penalize or prejudice results in a mistrial.

Baxter v. Palmigiano, 425 U.S. 308, 318 (1976). Yet,

even after Justice’s counsel pointed to this authority,

the Board did so anyway, repeatedly, informing the

panel it should be biased against Justice for invoking

the self-incrimination clause. TR.387:23–388:24. The

panel then unconstitutionally forced Justice to abandon

his decision not to testify by threatening loss of his

license by adverse inferences.

II.

What’s Causing All This?

Tennessee avoided Justice’s Spevack-McKune

argument and never mentioned those two cases in its

obfuscating opinion; oddly claimed civil and quasicriminal are synonymous; made no mention of the fact

its Board directly attempted to arouse prejudice in the

panel and certiorari court because Justice invoked the

Fifth Amendment and held adverse inferences may be

used in a disbarment case when a lawyer invokes the

self-incrimination clause. Respectfully, it seems difficult

to believe Tennessee missed the impropriety of all

these things given the transparency of this Court’s

extensive “penalty exception” jurisprudence and the

fact all federal appellate courts understand this

Court’s jurisprudence in accord with Justice’s

understanding.

Tennessee has an unfortunate history of looking

the other way on judicial misconduct and retaliating

against whistleblowers. United States v. Lanier, 520

U.S. 259 (1997). Before Tennessee’s Board proffered

charges against him, Justice reported ex parte

communications between opposing counsel and the

trial judge during a medical negligence jury trial.

After the same trial, he reported off the record, ex

parte communications between the presiding judge

and the jury, when he learned of them. Opposing

counsel and the judge admitted these facts and they

lead to appellate reversal of the underlying jury

verdict and remand for re-trial. Burchfield v. Renfree,

No. E2012-01582-COA-R3-CV (Tenn. App. 2013).

However, Tennessee’s Board of Professional

Responsibility and Board of Judicial Conduct refused

to take any action of any kind against the judge and

lawyer involved and Justice filed suit on behalf of his

clients for arbitrariness by the state lawyer disciplinary

and judicial conduct boards for ignoring the deplorable

conduct that victimized his clients.

Below, Justice pointed out if one looks at the

results of Tennessee lawyer disciplinary decisions, it

would be inconsistent with uniformity of discipline to

disbar Justice, even setting aside the Fifth

Amendment violation and assuming he committed the

misconduct Tennessee failed to prove. Justice pointed

out the panel could not possibly have abused its

discretion in suspending him because the Board

informed the panel a suspension would be appropriate.

Nonetheless, Tennessee not only disbarred Justice but

promptly removed uniformity of discipline as a

consideration in lawyer discipline cases. Meehan v.

Board of Prof’l Responsibility, No. M2018-01561-SCR3-BP (Tenn. 2019). Tennessee now reserves the right

to treat similarly situated lawyers differently and

disbar one arbitrarily even when it does not disbar

another for more egregious conduct. Even lawyers are

entitled to equal protection. Although Tennessee has

removed uniformity of discipline as a factor so they

may arbitrarily discipline, that cannot change the

right to equal justice under law and that the due

process and equal protection provisions of the Fifth

and Fourteenth Amendments require a state to at

least endeavor to equally treat those similarly situated.

Allegheny Pittsburgh Coal Co. v. County Commission

of Webster County, West Virginia, 488 U.S. 336 (1989).

The disciplinary process must not be

weaponized to target or disproportionately punish

lawyers. This Court’s jurisprudence reflects active

push-back when states use the disciplinary process to

target lawyers and ride roughshod over the

Constitution in so doing. In Re Ruffalo, 390 U.S. 544

(1968) suggests an attorney was deprived of due

process when prosecuted by the chair of the local bar

who often represented the type of clients the accused

sued. This is exactly what happened below. 11 Ruffalo

arose in the context of railroad work and the Court,

repeatedly interjected the terms “railroad,” “railroad

man” and “railroading” – both in a literal and

seemingly figurative way, highlighting the lack of due

process and respect for the Constitution in the

underlying Ohio proceeding. In Re Ruffalo, 390 U.S.

544 (1968).

11 The panel chair, Michael King, is an asbestos defense lawyer

and Justice is an asbestos victims’ lawyer.

III.

Administrative Law

While acknowledging in passing this Court has

required it to administer disciplinary proceedings

under quasi-criminal standards, Tennessee combines

all functions within the Tennessee Supreme Court

and maintains its disciplinary system under

administrative law standards without even reaching

the level of civil law process. Judicial review of panel

and lower court decisions by Tennessee’s high court is

done under administrative law -- a substantial and

material evidence standard. The standard allows the

Tennessee Supreme Court to affirm a panel finding

even if review shows the panel judgment and/or the

Board’s case is not supported by a preponderance of

the evidence. App.30-33. A Tennessee certiorari court

or the Tennessee Supreme Court may affirm disbarment

or other sanction by a panel if the Board has proven

its case more than a “scintilla or glimmer,” even if that

is less than a preponderance. Id. This happened here.

App.43-49. The use of administrative law standards of

“scintilla” review in a quasi-criminal matter offends

the Constitution. Oddly, if Justice were not disbarred

but subjected to $500.00 in punitive damages, Tennessee

would require more than the preponderance standard

used at the panel level and require more than

“scintilla” standard review on appeal. Punitive damages

must be proven by clear and convincing evidence.

Hodges v. S.C. Toof, 833 S.W.2d 896 (Tenn. 1992). An

administrative law standard cannot be used in a

quasi-criminal case and neither can a preponderance

standard. Because Tennessee does so, its disciplinary

system is unconstitutional under Ruffalo and progeny.

This Court has repeatedly held the preponderance

standard and surely administrative law standards

(“scintilla”) are insufficient in quasi-criminal

disciplinary cases; yet, Tennessee persists in using

them. Disciplinary proceedings are “adversary

proceedings of a quasi-criminal nature.” Ruffalo, 390

U.S. 544, 550 (1968). “Noncriminal [disciplinary

proceedings] bear close relationship to proceedings

criminal in nature.” Middlesex County Ethics Committee

v. Garden State Bar Ass’n, 457 U.S. 423, 432 (1982);

In re Gault, 387 U.S. 1, 30 (1967). An attorney is

entitled to meaningful appellate review of discipline

given its “quasi criminal” impact. In re Snyder, 472

U.S. 634, 646 (1985). By using the “scintilla” standard

for appellate review of disbarments, Tennessee violates

Snyder and the Constitution. The Tenth Circuit held

attorney discipline cases are judicial, not

administrative. 12 This Court strongly suggested, if not

held, the same. 13 Beyond Middlesex, Theard v. United

States, 354 U.S. 276, 282-283 (1957) recognized

disciplinary proceedings are “very serious business.”

“Very serious business” is resolved under formal

procedure, not preponderance standards, much less

administrative concepts designed for less weighty

matters. Tennessee ignores Goldberg v. Kelly, 397

U.S. 254 (1970), holding when considering due

process, courts should be mindful “the extent to which

procedural due process must be afforded the recipient

is influenced by the extent to which he may be

‘condemned to suffer grievous loss.’” Id. at 262. There

is no question of grievous loss in disbarment. When

facts are critical or a stigma is risked, due process

dramatically heightens. Greene v. McElroy, 360 U.S.

12 Razatos v. Colorado Supreme Court, 746 F.2d 1429, 1435 (10th

Cir. 1984).

13 Middlesex County Ethics Committee v. Garden State Bar Ass'n,

457 U.S. 423, 433-34 (1982).

474, 496-97 (1959); Cafeteria and Restaurant Workers

Union, Local 473, AFL-CIO v. McElroy, 367 U.S. 886,

898 (1961).

Tennessee’s Board is an administrative entity,

not a judicial system. Moncier v. Bd. Of Prof’l Respon.,

406 S.W.3d 139, 155 (Tenn. 2013). It is an organ of the

Tennessee Supreme Court with its members

appointed by the Tennessee Supreme Court. App.161.

The Tennessee Supreme Court, not the Board,

appoints the Chief Disciplinary Counsel of the Board.

The Board is authorized to investigate any allegation

of attorney misconduct or incapacity. Tenn. Sup. Ct. R.

9, §§ 5.5(a), 8.1 (App.158-59; 162-64). The Board is

empowered to adopt and submit to the Tennessee

Supreme Court for approval "written guidelines to

ensure the efficient and timely resolution of

complaints, investigations, and formal proceedings."

Id. at § 5.5(b) (App.159). The Board assigns district

committee members "to conduct disciplinary hearings

and

review

and

approve

modify

recommendations by Disciplinary Counsel for

dismissals or informal admonitions." Id. at § 5.5(c).

The Board reviews, at Disciplinary Counsel's request,

the determination of a reviewing district committee

member "that a matter should be concluded by

dismissal or by private informal admonition without

the institution of formal charges." Id. at § 5.5(d)

(App.159). The Board may also privately reprimand

attorneys for misconduct. Id. § 5.5(e) (App.159). The

Board receives regular reports from Chief Disciplinary

Counsel. Id. at § 7.1 (App.161). Petitions initiating

formal disciplinary proceedings are filed with the

Board. Id. § 8.2 (App.163-66). Once a petition and

answer are filed, the Chair of the Board assigns the

hearing panel to adjudicate the matter. Id. The Board

reviews Disciplinary Counsel's recommendation to

appeal from a hearing panel's judgment. Id. § 5.3

(App.157-58). The Board, or a panel of the Board,

hears petitions for relief from costs. Id. § 24.3

(App.202-03). The Tennessee Supreme Court thus

controls all the functions of the Board. See generally

App.150-223. The panel members who try the attorney

are not chosen at random but appointed by the Board

which also prosecutes the case. Id. at § 6.4 (App.160).

Tennessee admits its Board has overlapping

investigative,

prosecutorial,

and

adjudicative

functions but claims some overlapping “is inherent in

administrative agencies” and acceptable under

Withrow v. Larkin, 421 U.S. 35 (1975). Moncier v.

Board of Prof’l Responsibility, 406 S.W.3d 139, 159

(Tenn. 2013).

To make matters worse, the certiorari judges

who preside over appeals from the panel level are

“Special Judges” not elected or appointed by the

Governor, as is the normal process, but instead

specially appointed by the Tennessee Supreme Court

to carry out special responsibilities and assignments

for it and who can be removed by it. Id. at § 1.5

(App.152). So, if one is the accused in a disciplinary

case in Tennessee, he or she is facing a Board,

appointed and maintained by the Tennessee Supreme

Court; a panel of lawyers appointed by the Tennessee

Supreme Court Board and those lawyers all hold their

licensure at the arbitrary pleasure of the Tennessee

Supreme Court because Tennessee has determined

holding a law license is a privilege and not a right and

this right/privilege distinction allows a law license to

be taken under administrative procedures. Hughes v.

Board of Prof’l Responsibility, 259 S.W.3d 631 (Tenn.

2008); App.31-34. Everyone but the defending lawyer

– from the Board to the panel to the certiorari judge is

in the first degree of relationship to the Tennessee

Supreme Court. So, to complain of grievous error or

unconstitutional action or misconduct or ignorance

of the Constitution on behalf of the Board, the panel

or a certiorari judge is to risk being heard to say by

the Tennessee Supreme Court -- you appointed

incompetent folks or designed a bad system. This is not

Constitutional.

Tennessee has found its panel and certiorari

judges in the disciplinary context are “administrative

adjudicators” and the normal judicial standards do

not apply to them. Moncier, 406 S.W.3d 139, 159-60.

If the Board of the Tennessee Supreme Court prevails,

the accused attorney must pay costs and attorney’s

fees, but those fees are lost to the State and taxpayers

if the attorney prevails. Id. at 150-51. Tennessee’s

system is not "constitutionally tolerable." Withrow at 47.

Tennessee allows its panel members to function

as prosecutors. Tennessee imposes no limits on panel

questioning of the accused lawyer, even though panel

members are to be impartial decision-makers in

theory, despite the system of combined functions in

which they act. Justice’s panel was chaired by an

asbestos defense lawyer, although Justice is an

asbestos victim’s lawyer. 14

Disciplinary counsel finished questioning Justice

within an hour. Then, the panel kept Justice on the

stand for several hours with its chair cross-examining

him with an extraordinary amount of questions which

lasted most of the last day and required 156 pages of

Michael King is an asbestos defense lawyer in Knoxville,

Tennessee.

transcript. The panel chairman admitted to asking “a

lot” of questions. TR.558:17-18. The extensive and

lengthy questioning by the panel chair biased the

decision-making process by his stepping outside the role

of judge and stepping into the role of prosecutor. A

reasonable person, after the panel chair’s improper,

extensive questioning of Justice lasting most of the last

day of the proceeding, would question the panel’s

impartiality, and at least wonder whether the panel

sought to engineer a result, and the Tennessee court

allowed it to get away with this, holding that a panel

member, even in a system of combined functions, may

interrogate to an unlimited extent and add the

prosecutorial role to the judging role. App.39-40. It is not

proper for asbestos defense lawyers to prosecute

asbestos victim’s lawyers or vice versa. The panel denied

Justice due process by taking on a prosecutorial role, In

re Murchison, 349 U.S. 133 (1955), particularly in a

system of profoundly combined functions that denies the

Fifth Amendment to the accused and imposes

preponderance and administrative law standards of

proof and for appellate review. In Murchison, a judge

served as a “one-man grand jury” and investigated a

crime. Later, the same judge found two witnesses guilty

of contempt and sentenced them. This Court held their

trial and conviction before the same judge violated due

process holding, “Fair trials are too important a part of

our free society to let prosecuting judges be trial judges

of the charges they prefer.” Id. The American system

rejects merging judge and prosecutor as inherently

unfair. We should not allow by the back door what the

founding fathers closed at the front.

This is considering all things: Tennessee will

not follow Spevack and allow an attorney to exercise

the self-incrimination clause without penalty;

Tennessee has a tremendous combination of functions

and uses a preponderance standard at the panel level,

where it also allows unlimited discretion of judges

(panel members) to prosecute the charges they are

judging and there is no meaningful appellate review

because that review is conducted under an

administrative law “scintilla” standard.

CONCLUSION

Justice asks the petition for certiorari be

granted and the Tennessee decision vacated.

Respectfully submitted,