IN THE SUPREME COURT OF TENNESSEE

AT KNOXVILLE

May 31, 2019 Session Heard at Nashville

BOARD OF PROFESSIONAL RESPONSIBILITY OF THE SUPREME 

COURT OF TENNESSEE v. LORING EDWIN JUSTICE

Direct Appeal from the Chancery Court for Knox County

No. 189578-1, 189418-3 Robert E. Lee Davies, Senior Judge

___________________________________

No. E2017-01334-SC-R3-BP

___________________________________

This lawyer-disciplinary proceeding stems from a Knoxville attorney’s conduct in a 

federal personal injury lawsuit where the attorney 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 the plaintiff’s lawyer submitted 

an itemization of fees and costs to the federal district court, the lawyer falsely claimed as 

his own work the work that a paralegal had performed. The lawyer also submitted a 

written declaration along with the itemization falsely claiming that he had kept 

contemporaneous records of his time in the case and attesting to the truth and accuracy of 

the itemization. The lawyer 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, the lawyer 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 

(“Hearing Panel”) determined that the lawyer 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). The Hearing Panel found six aggravating and two 

mitigating factors and sanctioned the lawyer with a one-year active suspension and

twelve additional hours of ethics continuing legal education. The Board of Professional 

Responsibility (“Board”) and the lawyer appealed to the Chancery Court for Knox 

County. Tenn. Sup. Ct. R. 9, § 1.3. The trial court affirmed the Hearing Panel’s findings 

of fact and conclusions of law but modified the sanction to disbarment. The trial court

concluded that Standard 5.11 of the ABA Standards for Imposing Lawyer Sanctions 

(“ABA Standards”), which identifies disbarment as the presumptive sanction, applies and 

07/02/2019
- 2 -

that the aggravating and mitigating factors do not warrant a lesser sanction than

disbarment. The lawyer appealed, and after carefully reviewing the record and applicable 

authorities, we affirm the trial court’s judgment in all respects, including its modification 

of the sanction to disbarment.

Tenn. Sup. Ct. R. 9, § 1.3 (currently Tenn. Sup. Ct. R. 9, § 33.1(d)) Direct Appeal;

Judgment of the Trial Court Affirmed

CORNELIA A. CLARK, J., delivered the opinion of the Court, in which JEFFREY S. BIVINS,

C.J., and SHARON G. LEE, HOLLY KIRBY, and ROGER A. PAGE, JJ., joined.

Linn Guerrero, Knoxville, Tennessee, for the appellant, Loring E. Justice.

Gerald Morgan and William C. Moody, Nashville, Tennessee, for the appellee, Board of 

Professional Responsibility.

OPINION

I. Factual and Procedural Background

A. Hearing Panel Proof

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.
- 3 -

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. 

By this time, Mr. Justice had already moved for a default judgment based on 

Lowe’s discovery violations. The District Court held the motion in abeyance until 

December 1, 2010, and then referred it to a federal magistrate judge, who concluded that 

Lowe’s had failed to satisfy its discovery obligations and that “the Plaintiff should be 

compensated for the labor and costs incurred in finding [the witness], because these costs 

were necessitated by [Lowe’s] failure to properly investigate the allegations of this suit.” 

The magistrate judge also recommended that Lowe’s “be required to pay all reasonable 

fees and expenses incurred in locating and deposing [the witness], including attorneys’ 

fees, transcription costs, court reporter fees, and other costs” and that Mr. Justice be 

required “to file an affidavit and/or documentation evidencing the fees, expenses, and 

costs incurred.”

On March 15, 2011, the District Court adopted in part the magistrate judge’s 

recommendations.1 The District Court required Lowe’s to “pay Plaintiff [Mr. Thomas] 

all reasonable attorney’s fees and expenses incurred in locating and deposing [the 

witness], including attorney’s fees, transcription costs, court reporter fees, and other 

costs” and required Mr. Justice to provide the District Court by April 8, 2011,

“documentation evidencing the fees, expenses, and costs incurred, associated with the 

discovery of [the witness].” The District Court gave Lowe’s fourteen days thereafter “to 

 

1

The District Court did not accept the magistrate’s recommendation to bar Lowe’s from 

presenting evidence at the trial that would dispute Mr. Thomas’s version of how the accident occurred.
- 4 -

file objections to the reasonableness of the fees and costs requested,” after which the 

District Court would determine “the final amount of the monetary sanctions.” 

Mr. Justice submitted a preliminary itemization by the initial deadline but obtained 

an extension of time and submitted the final itemization and fee petition (“Itemization”)

to the District Court on April 22, 2011. The Itemization included 288 entries for work 

and expenses incurred from January 9, 2009 to April 8, 2011, listed 371.5 hours of work 

attributed to three lawyers and four assistants, and sought $106,302.00, which included 

more than $103,000 in attorney’s fees. Of the attorney hours, 325.5 were attributed to 

Mr. Justice and billed at the rate of $300 per hour. Only eleven hours were attributed to 

Mr. Kerschberg and billed at the rate of $90 per hour. Along with the Itemization, Mr. 

Justice submitted a written declaration attesting under penalty of perjury that he had 

maintained contemporaneous records of the work performed on the Thomas case and that 

the Itemization was true and correct.

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.

2

 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.

While the federal proceedings were pending, a lawyer with whom Mr. Kerschberg 

had discussed the matter reported it to the Board. At Mr. Justice’s request, the Board 

held its investigation in abeyance pending disposition of some of the federal proceedings. 

Eventually, the Board completed its investigation and filed a petition for discipline 

against Mr. Justice on September 25, 2013.3 The Board alleged that Mr. Justice had 

violated RPC 1.5(a) (Fees), RPC 3.3(a)(1) (Candor Toward the Tribunal), RPC 3.4(b) 

(Fairness to Opposing Party and Counsel), and RPC 8.4(a), (b), (c), and (d) (Misconduct).

 

2

The District Court never awarded any attorney’s fees and costs for Lowe’s discovery violation.

3

This Court revised Tennessee Supreme Court Rule 9 effective January 1, 2014. This 

disciplinary proceeding, however, was initiated prior to January 1, 2014, and it is therefore governed by 

the prior version of the rule. See Garland v. Board of Professional Responsibility, 536 S.W.3d 811, 816 

(Tenn. 2017). Any references herein are to the pre-2014 version of Rule 9.
- 5 -

The Hearing Panel convened from January 20-23, 2015. The Board presented no 

live witnesses. As for its claim that Mr. Justice violated RPC 1.5(a) by charging an 

unreasonable attorney fee, the Board presented the District Court’s order and Mr. 

Justice’s Itemization. The Board asserted that many of the entries in the Itemization were

for work completely unrelated to locating and deposing the witness, such as: (1) attending 

the Tennessee Rule of Civil Procedure 26(f) discovery conference; (2) preparing the 

initial written discovery; (3) preparing an amended complaint; (4) meeting with his client; 

(5) reading hotel reservations; (6) researching electronic filing rules; (7) talking with the 

clerk’s office about electronic filings; (8) practicing a motion argument in front of his 

paralegal; (9) locating an expert witness; and (10) workshopping the case at the American 

Association for Justice Deposition College.

The Board also introduced Mr. Kerschberg’s deposition upon written questions,

his 2009 invoices, and excerpts of his former testimony in the District Court to establish 

that Mr. Justice had claimed Mr. Kerschberg’s work as his own. In his deposition and in 

his testimony in the District Court, Mr. Kerschberg stated that he had personally 

performed the work described in his invoices, that Mr. Justice had paid the invoices

without question, and that he had no knowledge of Mr. Justice ever recording his own 

time on the Thomas case or on any other case. Mr. Kerschberg recognized the possibility 

that Mr. Justice could have done work on the Thomas case without his knowledge that 

was similar to his own, and he acknowledged using Mr. Justice’s notes on occasion to 

describe his own work in the narrative invoice entries. But Mr. Kerschberg consistently 

testified that the narrative invoice entries described his own work, not Mr. Justice’s work,

and maintained that, to his knowledge, Mr. Justice had never kept time on the Thomas

case or any other case.

The Board emphasized as well that seventeen Itemization entries were virtually 

identical to entries in Mr. Kerschberg’s invoices in terms of the dates, descriptions of the 

work, and time necessary to perform the tasks.

4

 A side-by-side comparison of the

Itemization and invoice entries appears below.

a. June 13, 2009

Kerschberg

1.25 Revision of Motion to Have Requests for Admission Deemed 

Admitted.

 

4 Mr. Kerschberg recorded his time in quarter hour increments and used the initials “LJ” or 

“Loring” to refer to Mr. Justice. Mr. Justice recorded his time in tenth of an hour increments.
- 6 -

Justice

1.2 Revision of Motion to Have Requests for Admission Deemed 

Admitted 

b. June 14, 2009

Kerschberg

2.25 Added Loring edits to Motion to Deem Requests for Admissions 

admitted. Added section about Letter to Clint Woodfin and Motion to 

Supplement. Researched electronic filing rules for the E.D. Tenn. 

Researched proper procedure for filing Amended Complaint (Local Rules; 

Scheduling Order; FRCP). 

Justice

2.2 Edits to Motion to Deem Requests for Admissions admitted. Added 

section about Letter to Clint Woodfin and Motion to Supplement. 

Researched electronic filing rules for the E.D. Tenn.

c. June 16, 2009

Kerschberg

2.5 All final preparations of Amended Complaint and Motion to Deem 

Requests For Admissions Deemed Admitted. Preparation of all PDF 

exhibits. Compilations of files. Filing with E.D. Tenn. via ECF. Hard 

copies of everything for file.

Justice

2.5 All final preparations of Amended Complaint and Motion to Deem 

Requests for Admissions Deemed Admitted. Preparation of all PDF 

exhibits. Compilation of files. Filing with E.D. Tenn. via ECF. Hard 

copies of everything for file.

d. June 16, 2009

Kerschberg

3.0 Edited Motion to Compel Discovery and Memorandum In Support 

thereof prepared by Juliane Moore.

Justice

3.0 Preparation and editing of Motion to Compel Discovery and 

Memorandum In Support partially prepared by legal assistant 
- 7 -

e. June 17, 2009

Kerschberg

1.0 Talked to Angela Brush at district court to correct misunderstandings 

re our filings. Second conversation with LJ about Consent Motion To 

Amend with Clint Woodfin. Drafted Consent Motion for review by Clint 

Woodfin.

Justice

1.0 Talked to Angela Brush at district court to correct misunderstandings 

re our filings 

f. June 17, 2009

Kerschberg

4.0 Continued to revise and rewrite Motion to Compel Discovery. 

Justice

4.0 Continued to research, revise and rewrite Motion to Compel 

Discovery

g. June 18, 2009

Kerschberg

4.5 Motion to Compel Discovery.

Justice

4.5 Continued research, revision and refinement of Motion to Compel 

Discovery

h. June 19, 2009

Kerschberg

.5 Letter to Bob Davies regarding additional materials needed from 

MSG. 

Justice

.5 Letter to Bob Davies regarding additional materials needed from 

MSG about the project

i. July 16, 2009

Kerschberg

.25 Reviewed Loring’s notes from meeting with Clint Woodfina [sic] 

and calendared follow-up call to Cory re: Clint’s call. 
- 8 -

Justice

.2 Reviewed notes from meeting with Clint Woodfin and calendared 

follow-up call to Cory Kitchen re: Clint’s call 

j. July 22, 2009

Kerschberg

5.0 Drafted and typed memo for trip to Alabama. 

Justice

5.0 Drafted and typed memo for trip to Florence, Alabama to meet with 

Plaintiff’s MSG co-workers. This memo summarized the liability issues in 

the case and listed important questions to ask to try to understand whether it 

was plausible Lowe’s could lack notice and to prove Lowe’s indeed had 

notice and to gain physical descriptions of individuals of interest

k. July 27, 2009

Kerschberg

4.5 Reviewed all notes from our trip to Alabama and compiled Master 

To-Do List for Loring and BG. Drafted Affidavits of Kitchen, Yeates, and 

McBride. Online research re: Teresa Beavers (Lowe’s Manager).

 

Justice

4.5 Reviewed all notes from our trip to Alabama to meet with the MSG 

witnesses and compiled Master To-Do List. Drafted Affidavits of Kitchen, 

Yeates, and McBride. Online research re: Teresa Beavers (Lowe’s 

Manager)5

l. July 29, 2009

Kerschberg

.25 Revisions of Affidavits of Kitchen, Yeates, and McBride. 

Justice

.2 Revisions of Affidavits of Kitchen, Yeates, and McBride 

 

5 The Board also introduced an entry from Mr. Justice’s preliminary Itemization in which Mr. 

Justice referred to himself in the third person as “Loring.” This entry stated in relevant part, “Reviewed 

all notes from our trip to Alabama to meet with the MSG witnesses and compiled Master To-Do List for 

Loring and B. Griffith, summer clerk.” The Board alleged that this reference resulted from Mr. Justice 

copying Mr. Kerschberg’s invoice. This third-person reference was omitted from Mr. Justice’s final 

Itemization.
- 9 -

m. August 8, 2009

Kerschberg

4.0 Coordinated with Debi Dean to make sure that Randy, Bradley and 

Corey will sign Affidavits and get them back to us notarized. Prepared 

final versions with LJ edits. Two versions for Bradley and Cory—one with 

and one without Teresa Beavers. Researched FRCP and EDTN Rules re: 

timeliness of Notice of Filing with respect to Hearing Date. Drafted Notice 

of Filing. Drafted Memorandum to accompany Notice of Filing for filing 

with the court this week. 

Justice

3.0 Coordinated with Debi Dean of Alabama Head Injury Foundation to 

make sure that Randy, Bradley, and Corey will sign Affidavits and get them 

back to us notarized. Reviewed legal assistant’s research of FRCP and 

EDTN Rules re: timeliness of Notice of Filing with respect to Hearing 

Date. Drafted Notice of Filing. Drafted Memorandum to accompany 

Notice of Filing for filing with the court this week.

n. August 10, 2009

Kerschberg

.5 Coordination of all Affidavit signings, etc. with Debi Dean. 

Justice

.5 Coordination of all Affidavit signings, etc. with Debi Dean 

o. August 27, 2009

Kerschberg

5.0 Reviewed file and all FRCP related to discovery to look at options 

and obligations for supplementation before the September 14 hearing, as 

well as the possibility of fee shifting.

Justice

5.0 Reviewed file and all FRCP related to discovery to look at options 

and obligations for supplementation before the September 14 hearing, as 

well as the possibility of fee shifting and sanctions

p. August 31, 2009

Kerschberg

2.0 Prepared outline for Loring as to action plan before September 14 

hearing. Researched Lowe’s Loss/Safety Prevention Manager. Drafted 

proposed Interrogatory re: iinformation [sic] on who held that position at 
- 10 -

the time of the accident. Revised and prepared cover letters to Clint 

Woodfin and Clerk’s office.

Justice

2.0 Prepared outline as to action plan before September 14 hearing. 

Researched Lowe’s Loss/Safety Prevention Manager. Drafted proposed 

Interrogatory re: information on who held that position at the time of the 

accident. Revised and prepared cover letters to Clint Woodfin and Clerk’s 

office

q. September 9, 2009

Kerschberg

1.25 Reviewed our initial disclosures and discovery responses to see what 

needs to be supplemented. Reviewed all supplemental materials provided 

by Clint Woodfin. Detailed email to Loring reviewing thoughts on the 

supplemental documents and possible RFPs. Google search for the two 

other female managers mentioned by Clint Woodfin. Results in email to 

LJ. Email to Mike Conley on Listserv re: obtaining the good information 

he has re falling products litigation.

Justice

1.2 Detailed email to file and staff after reviewing supplemental 

documents of defendant and possible RFPs. Google search for the two 

other female managers mentioned by Clint Woodfin.

The Board additionally offered into evidence an April 11, 2011 email by which 

Mr. Justice transmitted the initial Itemization to Mr. Kerschberg for review.6 This email 

stated:

Thanks for the email Kersch. I billed a lot of time for my reading 

your work rather than you doing it so you won’t have to testify if it 

comes to that. Hope you are not mad about that. I really appreciate 

you. Tell me what you think of this. What a war. 

The Board pointed out that the Itemization did not include a single entry for time Mr. 

Justice spent “reading” Mr. Kerschberg’s work. 

 

6

The record does not support Mr. Justice’s assertion that this e-mail was marked for 

identification but not received into evidence.
- 11 -

By agreement, the Board and Mr. Justice introduced excerpts of Mr. Justice’s 

former testimony from the District Court hearing. The Board presented Mr. Justice’s 

testimony denying that he had wrongly attributed Mr. Kerschberg’s work to himself in 

the Itemization, reaffirming the accuracy of the Itemization, and maintaining that he had 

contemporaneously recorded the time he spent working on the federal case. The Board 

also introduced the written declaration Mr. Justice had submitted along with the 

Itemization, in which he reaffirmed that he had performed the work claimed in the 

Itemization, that he had contemporaneously recorded his time for the work claimed in the 

Itemization, and that the Itemization was true and accurate—all claims that the Board 

alleged were false.

When the Board closed its proof, Mr. Justice moved for involuntary dismissal, but 

the Hearing Panel denied his motion. Mr. Justice then presented his proof, which 

consisted of written exhibits, including excerpts of testimony given in the District Court 

hearing, as well as the in-person testimony of Chad Rickman, an associate with Mr. 

Justice’s law firm, and Mr. Justice’s own in-person testimony.

Mr. Rickman testified that the law firm is contingency-fee based, does not have a 

billing system, and does not typically require employees and lawyers to record time. Mr. 

Rickman did not work at the law firm when Mr. Kerschberg worked there and first 

worked on the Thomas case in July 2010. But, Mr. Rickman recalled Mr. Justice 

instructing all law firm employees and lawyers to record their time on the Thomas case. 

Mr. Rickman had recorded his time either on handwritten notes or in emails. Clerical 

staff used the notes and emails to enter his time into a Word document that included the 

time of all law firm personnel on the Thomas case. As an example of his own time 

records, Mr. Rickman produced an April 2011 email reporting his time. But this email 

was sent after the District Court filed its order awarding the discovery sanction, and Mr. 

Rickman could not produce any email or note predating the District Court’s order by 

which he had reported time on the Thomas case. 

As for the Word document containing all of the time records for personnel of the 

law firm on the Thomas case, Mr. Rickman stated that it became the Itemization that Mr. 

Justice filed in the District Court. But Mr. Rickman had not seen the Word document in 

any format other than the Itemization, and he had first seen the Itemization only after the 

District Court awarded the discovery sanction.

Mr. Rickman acknowledged that he had reviewed the Itemization before it was 

filed to eliminate confidential work product and to ensure that the entries were 

appropriate and not duplicative. But Mr. Rickman neither reviewed Mr. Kerschberg’s 

invoices nor compared the Itemization to any other time records. As for the scope of the 

Itemization, Mr. Rickman disagreed with the Board’s assertion that the Itemization

sought unreasonable fees by listing tasks that were beyond the scope of the District 
- 12 -

Court’s order. Mr. Rickman, like Mr. Justice, interpreted the District Court’s order as 

awarding “all fees and expenses associated with all the extra work that had to be done 

since the initial disclosure because of Lowe’s discovery abuse.” Mr. Rickman said that 

he and Mr. Justice never really considered interpreting the District Court’s order

narrowly as authorizing only fees associated with finding and deposing the witness

because that interpretation “seemed pretty inconsistent with what the [magistrate judge]

and [the District Court] had said.” Mr. Rickman maintained that Mr. Justice had intended 

to give any monetary sanction awarded to Mr. Thomas. Mr. Rickman believed that 

federal law generally requires paying discovery sanctions to clients, and he interpreted 

the District Court’s order as requiring Lowe’s to pay the sanction to Mr. Thomas. 

In general, both in the District Court and before the Hearing Panel, Mr. Justice 

testified consistently with Mr. Rickman. Mr. Justice agreed, for example, that ordinarily

neither he nor anyone else at the law firm records time. Mr. Justice said that the Thomas 

case was the exception and that he began keeping contemporaneous time records on the 

Thomas case and requiring all other law firm personnel to do so around the discovery 

conference on December 10, 2008, because he believed Lowe’s blanket denials would 

eventually result in a discovery sanction. Mr. Justice stated that he recorded his own time 

either by personally entering it into the Word document or by giving clerical staff his 

handwritten time records to enter into the Word document. But Mr. Justice was unable to 

produce any handwritten note or email recording his own time on the Thomas case, and 

he could not recall the name of the Word document. Like Mr. Rickman, Mr. Justice said 

that all time records on the Thomas case were entered into the Word document. He 

explained that the Word document was either emailed around the law office or saved to

portable drives and copied to various law firm computers for various personnel to enter 

time. He testified that the Word document had been overwritten each time data was 

entered and that earlier versions of the document had not been saved. According to Mr. 

Justice, the Word document eventually became the Itemization that was filed in the 

District Court. 

Mr. Justice attempted to locate earlier versions of the Word document after 

questions were raised about the Itemization in the District Court. He had instructed the 

law firm’s in-house technology staff to search for earlier versions of it. He also engaged

an outside computer consultant to search the law firm’s computers for earlier versions of 

the Word document. Eventually, four versions of the Word document were located, but 

none predates the District Court’s order awarding the discovery sanction. 

Mr. Justice opined that no earlier version of the Word document was located

because it was overwritten each time data was entered and because the law firm 

computers used a “defragmenting” process. According to Mr. Justice, this process made 

it difficult or impossible to recover earlier versions of Word documents. Mr. Justice said 

that he had turned off this process after the Itemization was questioned in the District 
- 13 -

Court. Mr. Rickman corroborated Mr. Justice’s testimony on this point, saying that he

remembered Mr. Justice frantically going to each computer in the office to turn off the 

defragmenting process.

Concerning the seventeen Itemization entries, Mr. Justice denied copying Mr. 

Kerschberg’s invoices and again maintained, as he had in the District Court, that he had 

personally performed the work described in the Itemization and that he had 

contemporaneously recorded his time, meaning within seven-to-ten days of completing 

the work. Mr. Justice offered various explanations for the similarities between his

Itemization entries and Mr. Kerschberg’s invoice entries. He posited that Mr. Kerschberg 

may have copied his notes when creating the invoice entries, and, as support for this 

theory, pointed to Mr. Kerschberg’s acknowledgment that he had occasionally used Mr.

Justice’s notes to create his own invoice entries. Mr. Justice speculated that law firm 

personnel, including Mr. Rickman, may have mistakenly entered or incorrectly assigned 

time when preparing the Itemization. Mr. Justice also implied that Mr. Kerschberg may 

have gained unauthorized access to the firm’s computers and manipulated the 

Itemization. To support this suggestion, Mr. Justice described Mr. Kerschberg’s father as

a nationally known computer expert and said that the law firm’s technology staff had 

discovered oddities in the law firm’s computer system during the federal proceedings, 

including the forwarding of emails from Mr. Kerschberg’s deactivated account to another 

email address associated with Mr. Kerschberg.

Mr. Justice emphasized as well that, although he had not copied Mr. Kerschberg’s 

invoice entries, doing so would not have been improper because he had actually

performed the tasks described in the Itemization entries. Mr. Justice reaffirmed the truth 

and accuracy of the Itemization and his assertion that he and Mr. Kerschberg had 

performed the same or similar work (including clerical tasks), on the same date, and for

exactly, or almost exactly, the same amount of time.

Mr. Justice agreed that the law firm had paid Mr. Kerschberg in 2009 without 

questioning the charges or the entries describing his work. When asked by the Hearing 

Panel to review Mr. Kerschberg’s invoices and point out errors, Mr. Justice identified 

only typos and misnomers and nothing substantial. When asked the meaning of his April 

11, 2011 email to Mr. Kerschberg stating that he had billed “a lot of time” for “reading”

Mr. Kerschberg’s work, Mr. Justice explained that this statement merely reflected the 

“Chamberlain” principle that he had followed when preparing the Itemization. Mr. 

Justice said that, under this Chamberlain principle, which he purportedly derived from

Chamberlain Mfg. Corp. v. Maremont Corp., 92-C-0356, 1995 WL 769782, at 1 (N.D. 

Ill. Dec. 29, 1995), any duplicative work he and Mr. Kerschberg performed could be 
- 14 -

billed at the higher attorney rate.7 By ascribing this meaning to the email, Mr. Justice 

also implicitly answered the question of why the Itemization had not included any entries 

for Mr. Justice “reading” Mr. Kerschberg’s work. 

With respect to the Board’s assertion that the Itemization sought unreasonable fees 

for tasks far exceeding the scope of the District Court’s order, Mr. Justice asserted that 

the Lowe’s discovery violation had impacted the entire case, causing much more work 

than otherwise would have been necessary. Mr. Justice maintained that the Itemization 

had been conservative and had included only a portion of the time for the extra work 

necessitated by Lowe’s discovery violation. As did Mr. Rickman, Mr. Justice interpreted 

the District Court’s order as broader than its literal language and as encompassing fees 

for any and all extra work stemming from Lowe’s discovery violation. Like Mr. 

Rickman, Mr. Justice stated that federal law requires paying discovery sanctions to 

clients, and as a result, Mr. Justice claimed that he had no financial incentive to inflate 

the fees sought by the Itemization. Mr. Justice also claimed that even if he had not been 

required to do so by federal law, he would have given the sanction to Mr. Thomas

because Mr. Thomas needed the money more than the law firm. 

B. Hearing Panel’s Decision

At the conclusion of the proof, the Hearing Panel took the matter under 

advisement and allowed the parties to submit post-hearing proposed findings of fact and 

conclusions of law. The Hearing Panel issued its twenty-five-page written decision on 

March 9, 2015. The Hearing Panel concluded that Mr. Justice had violated RPC 1.5(a) 

(Fees);8 RPC 3.3(a) (Candor Toward the Tribunal);9 RPC 3.4(b) (Fairness to Opposing 

Party and Counsel);10 and RPC 8.4(a) and (c) (Misconduct).11 Although the Board’s 

 

7

As explained more fully herein, contrary to Mr. Justice’s argument, Chamberlain does not stand 

for the proposition that an attorney can charge a higher rate when duplicating a paralegal’s work. 1995 

WL 769782, at *9.

8

“A lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an 

unreasonable amount for expenses.” Tenn. Sup. Ct. R. 8, RPC 1.5(a).

9

“A lawyer shall not knowingly make a false statement of fact or law to a tribunal . . . .” Tenn. 

Sup. Ct. R. 8, RPC 3.3(a)(1).

10 “A lawyer shall not . . . falsify evidence [or] counsel or assist a witness to offer false or 

misleading testimony . . . .” Tenn. Sup. Ct. R. 8, RPC 3.4(b).

11 “It is professional misconduct for a lawyer to (a) violate or attempt to violate the Rules of 

Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another” 
- 15 -

prehearing brief had listed ABA Standards 5.11 and 6.11,12 both of which identify 

disbarment as the applicable presumptive sanction, the Hearing Panel failed to reference 

any ABA Standard establishing a presumptive sanction. Rather the Hearing Panel 

discussed aggravating and mitigating factors, found six aggravating and two mitigating 

factors, and imposed a sanction of one-year active suspension and twelve additional 

hours of ethics continuing legal education. The Hearing Panel found that: 

(1) Mr. Kerschberg’s invoices described work he had done; 

(2) Mr. Justice’s testimony that he had worked the time in the seventeen 

matching entries was not credible, and Mr. Justice’s explanations for why 

the entries were nearly identical were implausible;

(3) Mr. Justice’s April 11, 2011 email to Mr. Kerschberg was actually an 

acknowledgment that Mr. Justice had claimed time on the Itemization for 

himself for work Mr. Kerschberg had actually performed, and Mr. Justice’s 

assertion that it merely advised of his use of the Chamberlain principle was 

implausible;

(4) The credibility of Mr. Justice’s testimony concerning his work was “further 

called into question by his demeanor on the witness stand” because Hearing

Panel questions were “often met with lengthy periods of silence prior to 

 

or “(c) engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.” Tenn. Sup. Ct. R. 8, 

RPC 8.4(a), (c).

12 ABA Standard 5.11 provides:

Disbarment is generally appropriate when:

a. a lawyer engages in serious criminal conduct a necessary element of which 

incudes intentional interference with the administration of justice, false 

swearing, misrepresentation, fraud, extortion, misappropriation, or theft . . . 

or

b. a lawyer engages in any other intentional conduct involving dishonesty, 

fraud, deceit, or misrepresentation that seriously adversely reflects on the 

lawyer’s fitness to practice. 

ABA Standard 6.11 provides:

Disbarment is generally appropriate when a lawyer, with the intent to deceive the 

court, makes a false statement, submits a false document, or improperly 

withholds material information, and causes serious or potentially serious injury to 

a party, or causes a significant or potentially significant adverse effect on the 

legal proceeding.
- 16 -

answering the question” and Mr. Justice’s answers to Hearing Panel 

questions about the Itemization were “often evasive;”

(5) Regarding the seventeen nearly identical entries, Mr. Justice knew he was 

representing to the District Court that he had performed work that actually 

had been performed by another;

(6) By claiming to have performed work performed by Mr. Kerschberg, Mr. 

Justice gave a false statement under oath; 

(7) Mr. Justice knowingly testified falsely before the District Court by 

testifying that he worked the time attributed to him in the Itemization and 

by testifying that he kept a contemporaneous record of his time;

(8) By claiming in the Itemization to have performed work actually performed 

by Mr. Kerschberg, Mr. Justice made a false statement of fact to a tribunal 

in violation of RPC 3.3(a)(1) (Candor Toward the Tribunal);

(9) By testifying falsely before the District Court that he made no false 

statements in the Itemization, personally worked the time attributed to him, 

and kept a contemporaneous record of his time, Mr. Justice made false 

statements of fact to a tribunal in violation of RPC 3.3(a)(1) (Candor 

Toward the Tribunal);

(10) Numerous entries in the Itemization were unrelated to locating and 

deposing [the witness] and exceeded the scope of the District Court’s order;

(11) By including numerous items that far exceeded the scope of the District 

Court’s order, the fee petition requested an unreasonable fee in violation of 

RPC 1.5(a);

(12) By adopting work as his own that was actually performed by Mr. 

Kerschberg, Mr. Justice falsified evidence in violation of RPC 3.4(b) 

(Fairness to Opposing Party and Counsel);

(13) By violating the foregoing ethical rules, Mr. Justice violated RPC 8.4(a) 

and (c) (Misconduct);

(14) The proof established the following aggravating factors: (a) a dishonest or 

selfish motive; (b) a pattern of misconduct; (c) multiple offenses; (d) 

submission of false evidence; (e) false statements or other deceptive 

practices during the disciplinary process; (f) refusal to acknowledge 
- 17 -

wrongful nature of conduct; and (g) substantial experience in the practice of 

law;[

13]

(15) The proof established the following two mitigating factors—(a) absence of 

a prior disciplinary record and (b) the imposition of other penalties or 

sanctions (the six-month suspension from the practice of law by the District 

Court);[

14]

(16) The proper sanction, after weighing aggravating and mitigating factors, is a 

one-year active suspension and twelve additional hours of continuing legal 

education in ethics. 

C. Trial Court Proceedings

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. In doing so, the trial 

court emphasized that the Hearing Panel had failed to begin its analysis with any ABA 

Standard that identified the presumptive sanction for the factual circumstances. The trial 

court determined that ABA Standard 5.11(b), which identifies disbarment as the 

presumptive sanction, applies in these circumstances.

15

 After considering the aggravating 

and mitigating factors, the trial court imposed the presumptive sanction, finding no basis 

to impose a lesser sanction. In explaining its decision in an order filed February 2, 2017, 

the trial court stated:

This Court is reluctant to impose the sanction of disbarment upon a 

lawyer with no prior disciplinary offenses. The comments to ABA 

Standard 5.11 state “in imposing final discipline in such cases, most courts 

impose disbarment of lawyers who are convicted of serious felonies.” 

However, the intentional deceit by [Mr.] Justice on the opposing party, [and 

the federal judges], along with the refusal to acknowledge the wrongful 

nature of his conduct and the total lack of remorse leaves this Court with no 

alternative.

 

13 See ABA Standard 9.22.

14 See ABA Standard 9.32.

15 The trial court concluded that ABA Standard 6.11 does not apply in these circumstances, 

although it also identifies disbarment as the presumptive sanction.
- 18 -

Mr. Justice then moved to alter or amend the judgment, challenging, among other 

things, the trial court’s modification of the sanction to disbarment. In a fifteen-page order 

filed May 31, 2017, the trial court addressed and rejected each of Mr. Justice’s claims. 

With respect to the sanction, the trial court stated: 

Although the Court believed the sanction of disbarment was justified 

in this case, the Court acknowledges it was reluctant to impose such a 

severe sanction on Mr. Justice. However, any lingering doubt as to the 

disbarment of Mr. Justice has been obliterated by his motion to alter or 

amend. [Mr.] Justice blames everyone and everything for his predicament, 

other than his own misconduct. 

II. Standard of Review

This Court recently reaffirmed the familiar standard of review that applies 

in lawyer-disciplinary appeals, stating:

The Tennessee Supreme Court is the final arbiter of the professional 

conduct of all lawyers practicing in Tennessee, Sneed v. Bd. of Prof’l 

Responsibility, 301 S.W.3d 603, 612 (Tenn. 2010), and the source of 

authority of the Board and all its functions, Long v. Bd. of Prof’l 

Responsibility, 435 S.W.3d 174, 178 (Tenn. 2014) (citing Brown v. Bd. of 

Prof’l Responsibility, 29 S.W.3d 445, 449 (Tenn. 2000)). Attorneys 

charged with disciplinary violations have a right to an evidentiary hearing 

before a hearing panel, which determines whether a violation has occurred 

and, if so, the appropriate sanction for the violation. Bd. of Prof’l 

Responsibility v. Daniel, 549 S.W.3d 90, 99 (Tenn. 2018) (citing Maddux 

v. Bd. of Prof’l Responsibility, 409 S.W.3d 613, 621 (Tenn. 2013)). Either 

party dissatisfied with the hearing panel’s decision may appeal to the circuit 

or chancery court, where review is conducted upon “the transcript of the 

evidence before the hearing panel and its findings and judgment.” Tenn. 

Sup. Ct. R. 9, § 1.3 (currently § 33.1(d)). Either party dissatisfied with the 

trial court’s decision may appeal directly to this Court, which will resolve 

the appeal based “upon the transcript of the record from the circuit or 

chancery court, which shall include the transcript of evidence before the 

hearing panel.” Id. This Court applies the same standard of review as the 

trial court, Daniel, 549 S.W.3d at 100, and determines whether the hearing 

panel’s findings, inferences, conclusions, or decisions are:

(1) in violation of constitutional or statutory provisions; (2) in 

excess of the panel’s jurisdiction; (3) made upon unlawful 

procedure; (4) arbitrary or capricious or characterized by 
- 19 -

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.

Id. § 1.3 (currently 33.1(b)). In determining whether substantial and 

material evidence supports a hearing panel’s decision, this 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), overruled 

on other grounds by Lockett v. Bd. of Prof’l Responsibility, 380 S.W.3d 19, 

27–28 (Tenn. 2012)); see also Sallee v. Bd. of Prof’l Responsibility, 469 

S.W.3d 18, 36 (Tenn. 2015).

We review questions of law de novo but do not substitute our 

judgment for that of a hearing panel as to the weight of the evidence on 

questions of fact. Daniel, 549 S.W.3d at 100 (citing Maddux, 409 S.W.3d 

at 622); see also Tenn. Sup. Ct. R. 9, § 33.1(b) (2018) (stating that in 

determining the substantiality of evidence, the court shall not substitute its 

judgment for that of the hearing panel as to the weight of the evidence on 

questions of fact).

Finally, this Court’s review of attorney disciplinary appeals is 

conducted in light of our inherent power to promulgate and enforce 

disciplinary rules and to ensure that these rules are enforced in a manner 

that preserves both the integrity of the bar and the public trust in our system 

of justice. See Hughes v. Bd. of Prof’l Responsibility, 259 S.W.3d 631, 

647 (Tenn. 2008).

Green v. Bd. of Prof’l Responsibility of Supreme Court of Tennessee, 567 S.W.3d 

700, 712–13 (Tenn. 2019) (footnote omitted). With these principles in mind, we 

evaluate Mr. Justice’s claims.16

 

16 Mr. Justice lists seventeen issues in the appropriate section of his brief but also advances many 

others in the argument portion of his brief. We decline to separately address each issue raised because 

many have not been properly preserved and others are too outlandish to dignify with discussion. For 

example, at oral argument, Mr. Justice argued through counsel that he should receive a new hearing 

because the trial judge’s given name illustrates bias. Not only is this argument without merit, it is absurd.
- 20 -

III. Analysis

A. Rulings on the Admissibility of Evidence

Mr. Justice challenges the Hearing Panel’s rulings on certain evidence. As the 

challenger, Mr. Justice bears the burden of establishing that the Hearing Panel abused its 

discretion. Bd. of Prof’l Responsibility of Supreme Court of Tennessee v. Sheppard, 556 

S.W.3d 139, 146 (Tenn. 2018). A hearing panel abuses its discretion by applying an 

incorrect legal standard or reaching a decision that is against logic or reasoning and 

which causes an injustice to the party complaining. Id. Under this deferential standard of 

review, if reasonable minds can disagree about the propriety of a hearing panel’s 

decision, this Court will uphold the ruling. Id.

Mr. Justice argues that the Hearing Panel erred by excluding the written 

declaration of Yalkin Demirkaya, the independent computer consultant he engaged to 

search the law firm’s computers for the Word document. Because the Board introduced 

excerpts of Mr. Justice’s testimony from the District Court hearing, Mr. Justice claims 

that the rule of completeness embodied in Tennessee Rule of Evidence 106 entitled him 

to introduce Mr. Demirkaya’s written declaration, which was admitted into evidence in 

the District Court hearing by agreement of the parties. The Board argues that Rule 106 

does not entitle Mr. Justice to introduce a writing prepared by another person. The Board 

is correct. 

Tennessee Rule of Evidence 106 provides: 

When a writing or recorded statement or part thereof is introduced by a 

party, an adverse party may require the introduction at that time of any 

other part or any other writing or recorded statement which ought in 

fairness to be considered contemporaneously with it.

 Tenn. R. Evid. 106. This evidentiary rule:

reflects a concern for fairness and is designed to let the jury assess related 

information at the same time rather than piecemeal. This should help the 

jury avoid being misled by hearing only partial information about a writing 

or recorded statement. Moreover, it will assist the jury in assessing the 

weight to be given to the written or recorded statement by permitting the 

jury to consider at the same time other relevant writings and recordings.

Neil P. Cohen, Sarah Y. Sheppeard, and Donald F. Paine, Tennessee Law of Evidence § 

1.06[2][a] (6th Ed. 2011 LexisNexis Matthew Bender) (footnotes omitted). Applied in 

this case, Rule 106 means that when the Board introduced excerpts of Mr. Justice’s 
- 21 -

testimony in the District Court, then Mr. Justice could have introduced any other parts of 

his own testimony that “ought in fairness to be considered contemporaneously with it.” 

Tenn. R. Evid. 106; see also State v. Keough, 18 S.W.3d 175, 182 (Tenn. 2000) 

(explaining how Rule 106 applies in criminal cases). The Hearing Panel appropriately 

allowed Mr. Justice to introduce other parts of his District Court testimony. Rule 106 did 

not authorize Mr. Justice to introduce the testimony or proof other persons provided in 

the District Court. The Hearing Panel thus did not abuse its discretion by excluding Mr. 

Demirkaya’s written declaration.

Also without merit is Mr. Justice’s assertion that the Hearing Panel erred by

admitting Mr. Kerschberg’s testimony by written deposition. Tennessee Rule of Civil 

Procedure 32.01 provides:

At the trial or upon the hearing of a motion or an interlocutory proceeding, 

any part or all of a deposition, so far as admissible under the Tennessee 

Rules of Evidence applied as though the witness were then present and 

testifying, may be used against any party who was present or represented at 

the taking of the deposition or who had reasonable notice thereof . . . . 

Tenn. R. Civ. P. 32.01. Mr. Justice initiated Mr. Kerschberg’s deposition and obviously 

had notice of it. Additionally, the record belies his assertion that the Hearing Panel and 

trial court improperly limited his opportunity to impeach Mr. Kerschberg on grounds of 

Mr. Kerschberg’s mental health. As the trial court pointed out, Mr. Justice failed to 

proffer redirect questions after he was served with the Board’s cross-examination 

questions, and this was the proper procedure for initiating redirect when a witness is 

deposed upon written questions. See Tenn. R. Civ. P. 31.01 (describing the procedure for 

depositions upon written questions and stating that “[w]ithin 10 days after being served 

with cross questions, a party may serve redirect questions upon all other parties” and 

“[w]ithin 10 days after being served with redirect questions, a party may serve recross 

questions upon all other parties”). This issue is without merit.

B. Interference with Decision to Testify

Mr. Justice argues that the Hearing Panel deprived him of the ability to make an 

intelligent choice about testifying when it delayed ruling on whether it could draw an 

adverse inference from his invocation of his constitutional privilege against selfincrimination in his prehearing deposition. This argument, too, is without merit. 

On the first day of the hearing, January 20, 2015, the Hearing Panel ruled that 

Akers v. Prime Succession of Tennessee, Inc., 387 S.W.3d 495 (Tenn. 2012) applies to 

attorney-disciplinary proceedings. Under Akers, “the trier of fact may draw a negative 

inference from a party’s invocation of the Fifth Amendment privilege in a civil case only 
- 22 -

when there is independent evidence of the fact to which a party refuses to answer by 

invoking his or her Fifth Amendment privilege.” Id. at 506–07. 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 had been 

satisfied. 

As already noted, the Board did not call Mr. Justice as a witness at the hearing, but 

it introduced excerpts of his former testimony in the District Court and also the transcript 

of his deposition. Mr. Justice also introduced excerpts of his former testimony in the 

District Court.17 When the Board closed its proof, Mr. Justice moved for an involuntary 

dismissal, arguing that the Board had failed to prove its case. The Hearing Panel denied 

this motion. Mr. Justice then asked for permission to delay the presentation of his proof 

until the next day so that he would have the opportunity to decide overnight, after 

consultation with his attorney, whether to testify in his own behalf. The Hearing Panel 

granted this request. When the proceedings resumed the next day, Mr. Justice chose to 

testify, although he asserted before doing so that the Hearing Panel had erred by ruling 

that Akers applies to lawyer disciplinary proceedings. In its written ruling, the Hearing 

Panel expressly declined to draw an adverse inference against Mr. Justice for his 

invocation of the right against self-incrimination and explicitly based its decision on the 

evidence presented at the hearing. The trial court affirmed the Hearing Panel’s decision. 

As the foregoing recitation illustrates, the Hearing Panel ruled before the hearing 

began on whether it could draw an adverse inference from Mr. Justice’s prehearing 

invocation of his privilege against self-incrimination. After the Board presented its proof, 

the Hearing Panel allowed Mr. Justice another evening to consult with his attorney and 

decide whether he would testify. The Hearing Panel did not interfere with or hinder Mr. 

Justice from intelligently deciding whether to testify.18

 

17 For reasons not clear from the record, Disciplinary Counsel apparently agreed not to argue that 

Mr. Justice had implicitly waived his right to invoke the privilege against self-incrimination in the 

disciplinary proceeding by testifying in the District Court. 

18 Because the Hearing Panel expressly declined to draw an adverse inference from Mr. Justice’s 

prehearing invocation of his privilege against self-incrimination, we need not address Mr. Justice’s 

assertion that the Hearing Panel erred by ruling that an adverse inference may be drawn from an 

attorney’s invocation of the privilege in a lawyer-disciplinary proceeding. See People v. Robnett, 859 

P.2d 872, 875 (Colo. 1993) (“We need not resolve the question whether the fact finder in an attorney 

disciplinary proceeding may draw a negative inference from an attorney-respondent’s invocation of the 

Fifth Amendment privilege against self-incrimination, however, because there is no indication that the 

hearing board below drew any such inference.”). We reserve decision on this issue of first impression for 

another day. We note that courts in Georgia, New York, and Wisconsin have allowed an adverse 

inference to be drawn in such circumstances in attorney-disciplinary cases. See In re Meier, 334 S.E.2d 
- 23 -

C. Procedural Challenges

1. Questioning by the Hearing Panel

Mr. Justice argues that the Chair of the Hearing Panel erred by extensively 

questioning him and Mr. Rickman. We disagree. As this Court has stated in another 

attorney-disciplinary proceeding where the hearing panel chair questioned the attorney: 

“The Tennessee Rules of Evidence apply to attorney disciplinary proceedings, Tenn. 

Sup.Ct. R. 9, § 23.3, and Tennessee Rule of Evidence 614 allows the Panel to interrogate

witnesses.” Bd. of Prof’l Responsibility v. Reguli, 489 S.W.3d 408, 419 (Tenn. 2015). 

2. Insufficient Findings and Conclusions

Mr. Justice argues that the Hearing Panel and the trial court failed to make 

sufficient written findings of fact and conclusions of law. We disagree. Both the 

Hearing Panel and the trial court rendered thorough written decisions setting out facts and 

conclusions. Adjudicators are not required to address every issue that lacks merit. See

Hodge v. Provident Life & Accident. Ins. Co., 664 S.W.2d 297, 300 (Tenn. Ct. App. 

1983) (stating that a trial court need not “treat separately each fact or question at issue so 

long as [its] findings as a whole cover all relevant facts necessary to a determination of 

the case”); Adkins v. Bluegrass Estates, Inc., 360 S.W.3d 404, 415 (Tenn. Ct. App. 2011) 

(same).

3. Insufficient Fraud Allegation

We also reject Mr. Justice’s argument that the Board failed to plead fraud with 

sufficient specificity. The Board’s petition for discipline clearly states which Rules of 

Professional Conduct Mr. Justice allegedly violated and the facts alleged to constitute the 

violations. Mr. Justice filed a response to the petition, but after doing so he moved to 

dismiss the petition and in the alternative requested a more definite statement, citing 

Tennessee Rule of Civil Procedure 12.05.19 Because he had filed a response, Rule 12.05 

technically did not apply, but the Hearing Panel nonetheless granted his motion in part 

and required the Board to identify the Itemization entries that it alleged were false. The 

 

212, 213 (Ga. 1986); In re Snyder, 897 N.Y.S.2d 398, 399–400 (N.Y. App. Div. 2010); In re Muraskin, 

731 N.Y.S 2d 458 (N.Y. App. Div. 2001); State v. Postorino, 193 N.W.2d 1, 3 (Wis. 1972). 

19 Tennessee Rule of Civil Procedure 12.05 provides that “[i]f a pleading to which a responsive 

pleading is permitted is so vague or ambiguous that a party cannot reasonably be required to frame a 

responsive pleading, the party may move for a more definite statement before interposing a responsive 

pleading.” Tenn. R. Civ. P. 12.05.
- 24 -

Board then identified the seventeen entries, quoted herein, that it alleged were copied 

from Mr. Kerschberg’s invoices. Thus, contrary to Mr. Justice’s assertions, the Board 

provided him with very specific notice of the allegations of fraud and the claims against 

him. This issue is without merit.

4. Service of Process

Mr. Justice next argues that: (i) the Hearing Panel’s decision was not properly 

served on him; (ii) he was not properly served with the Board’s petition for writ of 

certiorari; and (iii) the summons with which he was served was defective. 

Mr. Justice’s claim that he was not properly served with the Hearing Panel’s 

decision is without merit. Tennessee Supreme Court Rule 9, section 8.3 provides that 

“[t]he Board shall immediately serve a copy of the findings and judgment of the hearing 

panel upon the respondent and the respondent’s counsel of record.” Tennessee Supreme 

Court Rule 9, section 12.2 provides that “[s]ervice of any other papers or notices required 

by these Rules shall, unless otherwise provided by these Rules, be made in accordance 

with Rule 5.02, Tennessee Rules of Civil Procedure.” Tennessee Rule of Civil Procedure 

5.02 says, in relevant part, that, “[w]henever . . . service is required . . . to be made on a 

party represented by an attorney, the service shall be made upon the attorney unless 

service upon the party is ordered by the court.” (Emphasis added.) Here, the Board 

served Mr. Justice by mailing a copy of the Hearing Panel’s judgment to him in the care 

of his attorney on March 9, 2015. The Board therefore complied fully with the 

requirements of Tennessee Supreme Court Rule 9, sections 8.3 and 12.2 when it served

Mr. Justice’s attorney with a copy of the Hearing Panel’s judgment. 

Mr. Justice’s claim that he was not properly served with the Board’s petition for 

writ of certiorari also is without merit. The petition was mailed to the Clerk and Master 

of the Chancery Court for Knox County on April 9, 2015, and filed on April 13, 2015. 

Before mailing the petition, the Board contacted Mr. Justice’s attorney to inquire whether 

he would accept service on Mr. Justice’s behalf. Mr. Justice’s attorney responded on 

April 28, 2015, that he would not accept service. The Board then wrote the Clerk and 

Master requesting issuance of a summons for service on Mr. Justice. This summons was 

issued on April 30, 2015, only seventeen days after the filing of the Board’s petition for 

writ of certiorari. This summons was served on May 5, 2015, but because someone other 

than Mr. Justice had actually signed the summons, the Board requested issuance of an 

alias summons. This alias summons was personally served on Mr. Justice by a private 

process server on July 23, 2015. This chronology refutes Mr. Justice’s claim that the 

Board intentionally delayed issuance of the summons and failed to properly serve him 

with the petition for writ of certiorari.
- 25 -

Mr. Justice’s next claims that, because the alias summons incorrectly listed $4,000 

as the personal exemption, the Board’s petition should be dismissed. In Sneed v. Board 

of Professional Responsibility, 301 S.W.3d 603, 613 (Tenn. 2010), this Court held that 

“[u]nder Tennessee Supreme Court Rule 9, section 1.3, the purported unlawful procedure 

must have resulted in prejudice to the petitioner.” Here, as in Sneed, no prejudice has 

been shown, so dismissal is not appropriate.20

D. Substantial and Material Evidence

Mr. Justice asserts that the Hearing Panel’s decision is not supported by 

substantial and material evidence. In determining whether substantial and material 

evidence supports the Hearing Panel’s decision, this Court “take[s] into account whatever 

in the record fairly detracts” from the weight of the evidence, but this Court does “not 

substitute its judgment for that of the [Hearing Panel] as to the weight of the evidence on 

questions of fact.” Tenn. Sup. Ct. R. 9, § 1.3. Mr. Justice argues that the evidence 

against him was entirely circumstantial, and as a result, does not rise to the level of 

substantial and material evidence. He asserts that circumstantial evidence has less 

probative value than direct evidence. Despite Mr. Justice’s protestations to the contrary, 

in evaluating the evidence, we do not differentiate between direct and circumstantial 

evidence. Tennessee law draws no distinction between the probative value of direct and 

circumstantial evidence. See State v. Dorantes, 331 S.W.3d 370, 381 (Tenn. 2011) 

(stating that a criminal conviction may be based solely on circumstantial evidence and 

that the prosecution need not disprove alternative theories of guilt when relying on 

circumstantial evidence alone); Hindman v. Doe, 241 S.W.3d 464, 468 (Tenn. Ct. App. 

2007) (stating that “the law does not distinguish between the probative value of direct 

evidence and the probative value of circumstantial evidence”). This Court determines 

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

reviewed.” City of Memphis v. Civil Serv. Comm’n of Memphis, 216 S.W.3d 311, 317 

(Tenn. 2007) (quoting Jackson Mobilphone Co., Inc. v. Tenn. Pub. Serv. Comm’n, 876 

S.W.2d 106, 111 (Tenn. Ct. App. 1993)). We conclude, based on our review of the 

 

20 As he did in the trial court, in his brief to this Court, Mr. Justice insinuates that he has been 

targeted by the Board, the Hearing Panel, and the trial court for reasons outside this record. As an 

example, Mr. Justice claims that the trial judge and the attorney for the Board engaged in inappropriate ex 

parte communication during a chance encounter in a hotel lobby at approximately 8:45 a.m. on the 

morning of the hearing before the trial judge. The record belies this claim and establishes that the trial 

judge and the Board’s lawyer discussed only a scheduling matter, in particular, the time the hearing would 

begin. The Board’s lawyer promptly notified Mr. Justice and his attorney of this chance meeting and 

conversation and in their presence texted the trial judge the start time of the hearing. The trial court and 

the Board’s conversation about scheduling did not constitute inappropriate ex parte communication. See

Tenn. Sup. Ct. R. 10, RJC 2.9(A)(1).
- 26 -

record on appeal, that the evidence, as already recounted herein, furnishes an eminently 

sound factual basis for the Hearing Panel’s decision.21

The proof in the record on appeal establishes that the Itemization included 

seventeen entries purporting to describe Mr. Justice’s work on the Thomas case that were 

either identical or nearly identical to entries on Mr. Kerschberg’s invoices that described 

Mr. Kerschberg’s work on the Thomas case. In his preliminary itemization, Mr. Justice 

referred to himself in the third person, which the Board asserted illustrated that he had 

copied Mr. Kerschberg’s invoices. Mr. Kerschberg testified that the invoices described 

his work on the Thomas case, not Mr. Justice’s work, and that, to his knowledge, Mr. 

Justice “did not ever document his work on the Thomas case or any other case.” The 

record establishes that Mr. Justice paid Mr. Kerschberg for the time claimed on the 

invoices without question more than a year before he submitted the Itemization. The 

record contains Mr. Justice’s April 11, 2011 email stating that Mr. Justice had billed a lot 

of time for “reading” Mr. Kerschberg’s work. Yet, the Itemization did not include any 

entry for Mr. Justice “reading” Mr. Kerschberg’s work. Mr. Justice testified that this 

email was simply a reference to the Chamberlain principle that allowed him to charge the 

higher attorney rate for work that both he and Mr. Kerschberg’s performed, but the 

problem with this claim is twofold. The email does not mention Chamberlain, and 

Chamberlain actually does not support that proposition. Chamberlain, 1995 WL 769782, 

at *9. Indeed, the Chamberlain opinion commends the “judicious” use of paralegals and 

other such resources as a way to “lower overall fees.” Id. Other decisions citing 

Chamberlain also do not interpret the opinion as Mr. Justice does. One of those opinions 

actually makes the opposite point by stating that, when an attorney does a paralegal’s 

work, his fee should be reduced to a paralegal’s rate because the work is nonlegal in 

nature. J.H. v. Bd. of Educ. of Pikeland Coummunity [sic] Unit Sch. Dist. #10, No. 13-

 

21 The questions Mr. Justice has continued to raise in his brief about the completeness and 

accuracy of the record on appeal are without merit. This Court remanded the matter to the trial court in 

accordance with Tennessee Rule of Appellate Procedure 24(e), which provides that “[a]ny differences 

regarding whether the record accurately discloses what occurred in the trial court shall be submitted to 

and settled by the trial court regardless of whether the record has been transmitted to the appellate court.” 

The trial court held a hearing and acknowledged that he had shredded the record, believing it to be a

courtesy copy. The trial court reviewed the replacement copy that was provided, resolved the disputes 

concerning its accuracy and authenticity, certified the record for appeal, and denied Mr. Justice’s 

subsequent attempts to raise new issues. “Absent extraordinary circumstances, the determination of the 

trial court is conclusive.” Tenn. R. App. P. 24(e). Mr. Justice has failed to establish extraordinary 

circumstances.
- 27 -

CV-3388, 2014 WL 1716564, at *3 (C.D. Ill. May 1, 2014).22 Thus, the record supports 

the Hearing Panel’s interpretation of the email as a confirmation that Mr. Justice claimed 

Mr. Kerschberg’s work as his own. The Hearing Panel found that Mr. Justice gave only 

implausible explanations for why the Itemization entries were identical or nearly identical 

to Mr. Kerschberg’s invoice entries. The Hearing Panel did not believe Mr. Justice’s 

testimony that he had performed the same administrative tasks, on the same date, and for 

the same amount of time as work Mr. Kerschberg had done and been compensated for 

more than a year before the Itemization was submitted. This Court does not secondguess the Hearing Panel’s credibility findings.

Furthermore, no other proof in the record on appeal casts doubt on the Hearing 

Panel’s credibility findings. For example, even though Mr. Justice testified that neither 

he nor anyone else at the law firm ordinarily records time, he failed to keep a single 

document showing that he had in this one unusual circumstance contemporaneously 

recorded his time on the Thomas case. Although Mr. Rickman produced an email by 

which he had reported his time, this email was dated after the District Court’s order 

awarding the sanction. Nor could Mr. Justice locate a version of the Word document 

containing all the time records that predated the District Court’s order awarding the 

sanction. He also could not recall the name of the Word document.

Mr. Justice asserts that the Hearing Panel’s decision lacks substantial and material 

evidentiary support because Mr. Kerschberg recanted his original allegations of 

misconduct. This assertion is simply incorrect. While Mr. Kerschberg acknowledged 

occasionally using Mr. Justice’s handwritten comments to create some of the narratives 

for his invoices, he unequivocally and consistently testified that these narrative entries 

described his own work not Mr. Justice’s. Mr. Kerschberg recognized the possibility that 

Mr. Justice could have done work similar to his own on the Thomas case without Mr. 

Kerschber’s knowledge, but Mr. Kerschberg reiterated that, “When I created these 

invoices, however, I was documenting only my own work. As far as I know, Loring 

Justice did not ever document his work on the Thomas case, or any other case.” 

(Emphasis added).

We also disagree with Mr. Justice’s assertion that the Hearing Panel and the trial 

court ignored and “manipulated” his testimony and that of Mr. Rickman. The Hearing 

Panel considered the testimony in context and noted that Mr. Rickman had not worked 

for the law firm when Mr. Kerschberg worked there; did not know what Mr. Justice did 

 

22 Nor is Chamberlain a landmark case as Mr. Justice has implied. Chamberlain is an 

unreported federal district court decision from the Seventh Circuit applying Illinois law, and according to 

Westlaw, it has only been cited in twenty-five cases: twenty-three times by Illinois federal courts, once by 

a Minnesota federal court, and once by the Tennessee federal court ordering Mr. Justice’s suspension. 
- 28 -

or did not do before he began working at the law firm; did not compare the Itemization to 

Mr. Kerschberg’s invoices; and did not see the Word document until after the District 

Court awarded the discovery sanction. The record fully supports the Hearing Panel’s 

findings and the trial court’s conclusion that Mr. Rickman “was in no position to 

determine the accuracy of [Mr.] Justice’s entries.” 

The Hearing Panel considered but rejected Mr. Rickman’s and Mr. Justice’s broad 

interpretation of the District Court’s order, concluding that it was inconsistent with the 

clear text of the order. The Hearing Panel also considered but rejected Mr. Justice’s and 

Mr. Rickman’s testimony that they intended to give the attorney’s fees to Mr. Thomas 

and described this testimony as “unbelievable” and as “post-conduct rationale.” The 

Hearing Panel and the trial court neither ignored nor manipulated Mr. Rickman’s and Mr. 

Justice’s testimony.

Mr. Justice argues that the Hearing Panel’s decision that he violated RPC 1.5(a), 

which provides that “[a] lawyer shall not make an agreement for, charge, or collect an 

unreasonable fee or an unreasonable amount for expenses” is not supported by substantial 

and material evidence. Specifically, Mr. Justice asserts that he did not charge an 

unreasonable fee because the sanction would have been paid to his client not the firm and 

because he never received any fee after the proceedings began in the District Court. The 

Hearing Panel disbelieved Mr. Justice’s testimony that any fee collected would have been 

given to Mr. Thomas. As already noted, this Court does not second-guess the Hearing 

Panel’s credibility determinations.

Additionally, we note that courts in other states have held that a lawyer may 

“charge” an unreasonable fee without actually collecting it. For example, in Iowa 

Supreme Court Board of Professional Ethics & Conduct v. Hoffman, 572 N.W.2d 904, 

907 (Iowa 1997), the Iowa Supreme Court considered whether a lawyer had violated an 

ethical rule that prohibited lawyers “from entering into an agreement for, charging, or 

collecting an illegal or clearly excessive fee.” The lawyer in Hoffman argued that his 

actions in filing the fee application with an Iowa administrative worker’s compensation 

judge did not violate the disciplinary rule “because he never actually received the amount 

requested.” Id. The Iowa Supreme Court rejected this argument, stating that the lawyer’s 

actions in seeking the fee “fit within the legal definition of charge: ‘to create a claim 

against property; to assess; to demand.’” Id. at 908 (quoting Black’s Law Dictionary 232 

(6th ed.1990)); see also Comm. on Prof’l Ethics & Conduct v. Zimmerman, 465 N.W.2d 

288, 291–92 (Iowa 1991) (stating that a lawyer’s application for excessive and 

duplicative fees violated a disciplinary rule prohibiting lawyers from charging an 

excessive fee). 
- 29 -

Having carefully and fully considered the record on appeal, we conclude that 

ample substantial and material evidence supports the Hearing Panel’s findings of fact, 

which the trial court adopted. 

E. Appropriateness of the Sanction

To assess the appropriateness of the disciplinary sanction in a given case, this 

Court begins with the ABA Standards. See Tenn. Sup. Ct. R. 9, § 8.4 (currently § 

15.4); Daniel, 549 S.W.3d at 100. The ABA Standards are “guideposts” rather than rigid 

rules for determining appropriate and consistent sanctions for attorney misconduct. Id.

(quoting Maddux III, 409 S.W.3d at 624). 

[T]he standards are not designed to propose a specific sanction for 

each of the myriad of fact patterns in cases of lawyer misconduct. Rather, 

the standards provide a theoretical framework to guide the courts in 

imposing sanctions. The ultimate sanction imposed will depend on the 

presence of any aggravating or mitigating factors in that particular 

situation. The standards thus . . . are guidelines which give courts the 

flexibility to select the appropriate sanction in each particular case of 

lawyer misconduct. 

ABA Standards, Theoretical Framework. The presumptive sanction in each case may be 

identified by considering: 

(1) the ethical duty the lawyer violated—whether to a client, the public, the 

legal system, or duties as a professional; (2) the lawyer’s mental state; and 

(3) the extent of the actual or potential injury caused by the lawyer’s 

misconduct.” Next, any aggravating or mitigating circumstances must be 

considered in determining whether to increase or decrease the presumptive 

sanction in a particular case. 

Daniel, 549 S.W.2d at 100 (citations omitted).

As already noted, the Hearing Panel failed to consider the ABA Standards 

identifying the presumptive sanction. The trial court concluded ABA Standard 5.11(b) 

applies in these circumstances, and it provides:

Disbarment is generally appropriate when . . . a lawyer engages in any other 

intentional conduct involving dishonesty, fraud, deceit, or 

misrepresentation that seriously adversely reflects on the lawyer’s fitness to 

practice. 
- 30 -

In light of the Hearing Panel’s findings that Mr. Justice gave a false statement under oath, 

knowingly testified falsely in the District Court, and sought an unreasonable fee in the 

Itemization, we conclude that the trial court correctly identified ABA Standard 5.11(b) as 

establishing the presumptive sanction. The trial court also correctly concluded that the 

substantial and material evidence supports the Hearing Panel’s findings of the six 

aggravating factors—a dishonest or selfish motive, a pattern of misconduct, multiple 

offenses, submission of false evidence, false statements during the disciplinary process, 

refusal to acknowledge wrongful nature of conduct, and substantial experience in the 

practice of law—and the two mitigating factors of the District Court’s prior six-month 

suspension for the same conduct and Mr. Justice’s lack of a prior disciplinary record. 

Mr. Justice asserts that the trial court also should have considered as a mitigating 

factor the delay in this matter, pointing out that the alleged misconduct occurred in 2011 

and the hearing was not held until 2015. While this argument is appealing in theory, in 

fact it is not persuasive because most of this delay is attributable to Mr. Justice’s request 

that the Board hold its investigation in abeyance pending the disposition of the federal 

proceedings. So, we cannot say that the Hearing Panel and the trial court erred by 

declining to consider delay as a mitigating factor.

We also disagree with Mr. Justice that his good record and lack of ethical 

violations in the ensuing years should be viewed as mitigating factors. Lawyers are 

professionally obligated to comply with the Rules of Professional Conduct, and 

compliance is the norm and expectation. It does not mitigate a lawyer’s previous failure 

to fulfill his professional obligation.

Mr. Justice also asserts that the Hearing Panel did not err by imposing a sanction 

less severe than the presumptive sanction of disbarment because in Daniel, this Court 

changed “controlling legal authority” and held that it is not error for a hearing panel to 

consider sanctions less than the presumptive sanction. 549 S.W.3d at 102. Although Mr. 

Justice is correct as to the holding of Daniel, his characterization of the decision as a 

change in controlling legal authority is not correct. Daniel simply applied prior decisions 

of this Court that had described the ABA Standards as “‘guideposts.’” Daniel, 549 

S.W.3d at 100 (quoting Maddux III, 409 S.W.3d at 624). More importantly, Daniel is 

factually distinct from this case. Here, the Hearing Panel did not consider and reject the 

presumptive sanction of disbarment. It simply failed to consider any ABA Standard 

identifying presumptive sanctions. 

We agree with the Board that the trial court’s modification of the sanction was 

appropriate, considering the Hearing Panel’s lack of analysis of the presumptive sanction 

under the ABA Standards, the imbalance of aggravating and mitigating factors, and the 

nature of Mr. Justice’s misconduct, which evidenced his utter disregard for the

fundamental obligation of lawyers to be truthful and honest officers of the court. Culp v. 
- 31 -

Bd. of Prof’l Responsibility, 407 S.W.3d 201, 211 (Tenn. 2013) (denying reinstatement 

to an attorney convicted of extortion and stating that the attorney had engaged in 

“egregious conduct,” conduct striking “at the heart of our system of justice” and 

“threatening the very core of a legal system based on probity and honor”); Murphy v. Bd. 

of Prof’l Responsibility, 924 S.W.2d 643, 647 (Tenn. 1996) (finding that the conduct of 

lying to a grand jury and trying to convince another witness to lie to the grand jury 

“strikes at the very heart and soul of the judicial system and without question would have 

a detrimental impact on the integrity and standing of the bar, the administration of justice 

and the public interest”). 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.

Mr. Justice argues that Napolitano v. Bd. of Prof’l Responsibility, 535 S.W.3d 481 

(Tenn. 2017) illustrates that disbarment is too harsh a punishment here. In Napolitano, 

the hearing panel found that the attorney had committed trust account violations and lied 

under oath when answering discovery deposition questions in a lawsuit over a fee dispute 

with a client. Id. at 503. The hearing panel suspended the attorney for five years but 

ordered only one year of active suspension. Id. at 494. This case bears some factual 

resemblance to Napolitano, but it is distinct in at least two important respects. First, this 

Court found that the record in Napolitano did not support a finding that the attorney gave 

false testimony “with the intent to deceive a court.” Id. at 503. Additionally, unlike Mr. 

Justice, Mr. Napolitano called a number of lawyers and judges to testify to his good 

professional and personal character. Id. at 487–89. Each attorney disciplinary appeal is 

evaluated “in light of its particular facts and circumstances.” Maddux, 148 S.W.3d at 40.

In another recent case factually similar to this one, Board of Prof’l Responsibility 

v. Barry, 545 S.W.3d 408 (Tenn. 2018), this Court upheld the trial court’s modification of 

the sanction to disbarment. In Barry, the hearing panel imposed an eighteen-month 

suspension, with sixty days active suspension. Id. at 411–412. The trial court modified 

the sanction to disbarment, and this Court affirmed. Id. at 412 In Barry, as here, the 

hearing panel had failed to consider the ABA Standards regarding presumptive sanctions. 

Id. at 420. In Barry, as here, the hearing panel found that the attorney’s misconduct was 

“knowing.” Id. at 425. The trial court’s decision modifying the sanction in this case 

from suspension to disbarment is consistent with Barry. See also Hornbeck v. Bd. of 

Prof’l Responsibility, 545 S.W.3d 386, 387 (Tenn. 2018) (disbarring an attorney based 

upon multiple acts of professional misconduct, “including knowing conversion of client 

funds with substantial injury to clients, submitting false testimony, falsifying documents 

in court proceedings, engaging in the unauthorized practice of law, violating Supreme 

Court orders, and defrauding clients”). 
- 32 -

IV. Conclusion

For the reasons stated herein, we affirm the judgment of the trial court in all 

respects, including its modification of the sanction from suspension to disbarment. Costs 

of this appeal are taxed to Loring Edwin Justice for which execution may issue if 

necessary.

_________________________________

CORNELIA A. CLARK, JUSTICE