Justice Denied

From the web page of the Tennessee Supreme Court

The Tennessee Supreme Court today upheld a decision of the Chancery Court of Knox County that disbarred Knoxville attorney Loring Edwin Justice.

The disbarment stems from Mr. Justice’s conduct in a federal personal injury lawsuit in which he represented the plaintiff. The federal district court imposed a discovery sanction against the corporate defendant and ordered it to pay the attorney’s fees and costs the plaintiff had incurred in locating and deposing a witness the corporate defendant failed to disclose. When Mr. Justice submitted an itemization of the fees and costs to the federal district court, he falsely claimed as his own work the work that a paralegal had performed. Mr. Justice also submitted a written declaration along with the itemization falsely claiming that he had kept contemporaneous time records on the case and attesting to the truth and accuracy of the itemization. Mr. Justice also requested in the itemization “grossly exaggerated and unreasonable” attorney’s fees of more than $103,000 for work beyond the scope of the federal district court’s order. Later, Mr. Justice testified falsely in a hearing before the federal district court by reaffirming the truth and accuracy of the itemization and the written declaration.

A Hearing Panel of the Board of Professional Responsibility determined that Mr. Justice had violated four provisions of the Tennessee Rules of Professional Conduct (“RPC”)—RPC 1.5(a) (Fees); RPC 3.3(a) (Candor Toward the Tribunal); RPC 3.4(b) (Fairness to Opposing Party and Counsel); and RPC 8.4(a) and (c) (Misconduct). After finding six aggravating and two mitigating factors, the Hearing Panel suspended Mr. Justice for one year and ordered him to obtain 12 additional hours of ethics continuing legal education.

On appeal, the Chancery Court affirmed the Hearing Panel’s findings of fact and conclusions of law, but modified the sanction to disbarment. The Chancery Court noted that the Hearing Panel had failed to consider the ABA Standard establishing the presumptive sanction for Mr. Justice’s conduct as disbarment. After considering the aggravating and mitigating factors, the Chancery Court concluded that no sanction less than disbarment was warranted. Mr. Justice appealed to the Tennessee Supreme Court.

In its decision today, the Supreme Court affirmed the Chancery Court’s decision in all respects, pointing out that Mr. Justice’s misconduct “evidenced his utter disregard for the fundamental obligation of lawyers to be truthful and honest officers of the court.” The Supreme Court agreed with the Chancery Court that the presumptive sanction of disbarment is appropriate because Mr. Justice’s conduct in falsely claiming the paralegal’s work as his own, submitting the false itemization and written declaration, and testifying falsely in federal court “strikes at the very heart of the legal profession.”

To read the unanimous opinion in Board of Professional Responsibility of the Supreme Court of Tennessee v. Loring Edwin Justice, authored by Justice Cornelia A. Clark, go to the opinions section of TNCourts.gov.

To Yale and Back (apologies to Audie Murphy)

Loring Edwin Justice grew up in Oak Ridge, Tennessee, obtained his undergraduate degree in 1995 from the University of Tennessee, and in 1998, graduated from Yale University School of Law. That same year he obtained his license to practice law in Tennessee, and from 1998-1999, Mr. Justice worked as a judicial law clerk for a judge of the United States Court of Appeals for the Sixth Circuit. After working the next year as an associate at a Nashville law firm, in 2000, Mr. Justice returned to East Tennessee and founded Loring Justice PLLC (“the law firm”), where he has practiced ever since.

From May to September 2009, Mr. Benjamin Kerschberg worked for the law firm. Mr. Justice and Mr. Kerschberg met while they were both students at Yale Law School. They remained friends after law school and both served as judicial clerks for the same federal circuit court judge. Mr. Kerschberg did not obtain his Tennessee law license, so he worked as a contract paralegal for the law firm, and he billed the law firm for his services by submitting invoices with narrative entries describing the tasks performed, the date the services were rendered, and the time he spent on the tasks, in quarter-hour increments.

During the time Mr. Kerschberg worked for the law firm, Mr. Justice represented Scotty Thomas in a personal injury lawsuit (“the Thomas case”) in the United States District Court for the Eastern District of Tennessee (“District Court”) against Lowe’s Home Centers (“Lowe’s”). Mr. Thomas alleged that, on June 21, 2005, while he was working for a merchandising company inside a Lowe’s store near Knoxville, a large stack of metal roofing sheets collapsed on top of him, causing very serious injuries, including brain damage. Lowe’s denied liability and also denied having any knowledge or records showing that the incident occurred or that the merchandising company was in the Lowe’s store on the date of the alleged incident.

Mr. Thomas recalled a female Lowe’s employee assisting him after the incident, however, so during discovery Mr. Justice repeatedly asked Lowe’s to identify this employee. Lowe’s failed to disclose this employee’s name, even though she was a human resources manager for Lowe’s, was onsite at the Lowe’s store the day the incident allegedly occurred, and made an appointment for Mr. Thomas at a health clinic the day of the incident. In July 2010, Mr. Justice learned her identity from a medical record he obtained by subpoena from the health clinic where Mr. Thomas was first treated for his injuries.

Sanctions were imposed against Lowe’s including reasonable attorneys fees

Questions were raised in the District Court about the Itemization, in part because several of the narrative entries purporting to describe Mr. Justice’s work were identical, or nearly identical, to entries in the invoices Mr. Kerschberg had submitted to Mr. Justice’s law firm from May to September 2009 describing Mr. Kerschberg’s work.

At a hearing in the District Court on February 17, 2012, Mr. Justice testified at length, as did several other witnesses. Upon considering the proof, the District Court suspended Mr. Justice from practicing law in the District Court for six months. Mr. Justice appealed his suspension, but the United States Court of Appeals for the Sixth Circuit affirmed, and the United States Supreme Court denied his petition for writ of certiorari.

Bar charges ensued and a hearing panel found misconduct

Both Mr. Justice and the Board appealed from the Hearing Panel’s decision. Mr. Justice raised many issues, but the Board argued only that the Hearing Panel erred by suspending rather than disbarring Mr. Justice. The trial court affirmed the Hearing Panel’s findings of fact but modified the sanction to disbarment.

Here the court rejected a host of alleged procedural and substantive violations of the lawyers rights.

Sanction

Recognizing that the sanction of disbarment is not to be imposed lightly, the trial court conscientiously and carefully analyzed the issues and ultimately concluded, as do we, that Mr. Justice’s conduct in claiming Mr. Kerschberg’s work as his own, in submitting the false Itemization and written declaration, and in testifying falsely in the District Court strikes at the very heart of the legal profession and merits the presumptive sanction of disbarment.

(Mike Frisch)