Sanction Reduced

The Tennessee Supreme Court reduced an order of disbarment to a three-year suspension to run concurrently with a previous sanction for misconduct in his own child custody matter

This is a direct appeal of a disciplinary proceeding involving a Knoxville attorney who filed four motions containing pejorative statements about the trial judge in a child custody case involving the attorney’s minor child. A hearing panel of the Board of Professional Responsibility determined that the attorney violated multiple Rules of Professional Conduct and imposed a three-year suspension as punishment. The attorney appealed to the trial court. The trial court affirmed the hearing panel’s judgment in all respects with the exception of the attorney’s punishment. The trial court held that the hearing panel erred in imposing a suspension, and it increased the punishment to disbarment. The attorney appealed to this Court. We affirm the judgment of the trial court on all issues with the exception of the issue regarding the attorney’s punishment. We hold that the trial court erred in increasing the punishment to disbarment, and we reinstate the three-year suspension imposed by the hearing panel but modify it to take effect upon the filing of this Opinion.

The opinion recites the statements at issue

The hearing panel then considered applicable aggravating and mitigating factors to determine the appropriate discipline against Mr. Justice. The panel found that the following aggravating factors justified an increase in the degree of discipline to be imposed: (1) Mr. Justice’s prior disciplinary history—specifically, Mr. Justice’s disbarment from the practice of law on July 2, 2019, in a separate disciplinary matter; (2) a pattern of misconduct; (3) refusal to acknowledge the wrongful nature of his conduct; and (4) substantial experience in the practice of law. The panel did not find any applicable mitigating factors.

The hearing panel ultimately recommended that Mr. Justice be suspended from the practice of law for three years “from the date, if any, when he is reinstated to practice law, pursuant to [Tennessee Supreme Court Rule] 9, [section] 12.2

Respondent appealed

The trial court also found an aggravating circumstance not considered by the hearing panel—that Mr. Justice’s actions were dishonest and selfishly motivated. The trial court ultimately held that Mr. Justice’s sanction should be disbarment.

He then appealed to the Supreme Court, claiming First Amendment protection

In reviewing the statements Mr. Justice made that impugned Judge Ash’s integrity, it is clear that the statements went far beyond the bounds of what an objectively reasonable attorney would make. Even considering the nature of the statements and the context in which they were made, see Parrish, 556 S.W.3d at 165-66, there was no reasonable factual basis for making the statements.

For example, Mr. Justice made several statements implying that Judge Ash ignored alleged attempts by the Plaintiff to sell time with the minor child and hold the minor child hostage for ransom. These statements are a mischaracterization of a proposed settlement agreement in the child custody case that the parties advised the trial court they had reached. Under the terms of the proposed settlement agreement, which ultimately fell through, Mr. Justice would have paid $200,000 in child support and $200,000 for the Plaintiff’s attorney fees. Mr. Justice equates this agreement to the Plaintiff holding the minor child hostage for money and alleges that Judge Ash ignored this despicable behavior.

…In sum, after assessing Mr. Justice’s statements under the Gentile balancing test and the objective reasonable attorney standard, we hold that none of Mr. Justice’s statements were constitutionally protected.

Chief Judge Holly Kirby concurred

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

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

(Mike Frisch)