IN THE SUPREME COURT OF TENNESSEE

Assigned on Briefs March 31, 2021

IN RE: LORING EDWIN JUSTICE

Direct Appeal from the 

Board of Professional Responsibility Hearing Panel 

No. 2019-3040-2-JM-24

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No. E2020-01089-SC-R3-BP

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An attorney who had been disbarred was assessed costs associated with his disbarment

proceedings pursuant to pre-2014 Tennessee Supreme Court Rule 9, section 24.3. The 

attorney timely filed a petition seeking relief from costs, and a panel of the Board of 

Professional Responsibility conducted a hearing on the petition. The panel reduced the 

costs for 11.2 hours of disciplinary counsel time and otherwise denied the petition. The

attorney has appealed to this Court, as permitted by pre-2014 Rule 9, section 24.3. 

Having carefully and thoroughly considered the record and each of the issues raised, we 

affirm the panel’s decision.

Tenn. Sup. Ct. R. 9, § 24.3 (2013) Direct Appeal 

Decision of the Hearing Panel 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 Edwin Justice. 

Sandy Garrett and A. Russell Willis, Brentwood, Tennessee, for the appellee, Board of 

Professional Responsibility.

08/16/2021
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OPINION

I. Factual and Procedural Background

This case is before us on a request for relief from costs, stemming from a 

lawyer-disciplinary proceeding against Knoxville attorney Loring Edwin Justice. On 

September 25, 2013, the Board of Professional Responsibility (“Board”) filed a petition 

for discipline against Mr. Justice related to his conduct as an attorney in a federal 

personal injury lawsuit. A hearing panel of the Board determined that Mr. Justice had 

violated four provisions of the Tennessee Rules of Professional Conduct and sanctioned 

Mr. Justice with a one-year active suspension and twelve additional hours of ethics 

continuing legal education. The Board and Mr. Justice both appealed to the Chancery 

Court for Knox County, which affirmed the hearing panel’s findings of fact and 

conclusions of law, but modified the sanction to disbarment. Mr. Justice appealed to this 

Court, and we affirmed the Chancery Court in all respects. Bd. of Prof’l Resp. v. Justice, 

577 S.W.3d 908 (Tenn. 2019). The Board then assessed costs and expenses against Mr. 

Justice pursuant to pre-2014 Tennessee Supreme Court Rule 9, section 24.3. These costs 

and expenses were detailed in an August 22, 2019 invoice, and totaled $25,403.65.

On September 26, 2019, Mr. Justice filed a petition for relief from costs and 

objected to certain time entries and expenses listed in the August 22, 2019 invoice. Mr. 

Justice first argued that he should be relieved from all costs because the disciplinary 

proceedings were unconstitutional, asserting that the standard of proof used in the 

disciplinary proceedings was preponderance of the evidence rather than clear and 

convincing evidence, and that his Fifth Amendment privilege against self-incrimination 

was violated. Mr. Justice also argued that the time entries were inflated. In particular, he 

pointed to 29.78 hours for disciplinary counsel preparing its brief to this Court; 39.0 

hours for disciplinary counsel preparing for oral argument before this Court; 4.0 hours for 

disciplinary counsel preparing a response to Mr. Justice’s motion to continue; and 43.7 

hours for disciplinary counsel traveling to and attending various hearings in Knoxville, 

highlighting travel time entries for 6.5 hours. Mr. Justice also objected to certain 

expenses as unnecessary, including $115.41 in FedEx charges for delivery of documents 

and $1,259.35 for the court reporter to prepare the transcript of the disciplinary hearing. 

On November 18, 2019, Mr. Justice filed a written request to depose disciplinary counsel, 

propound interrogatories, and conduct discovery. 

On November 26, 2019, the Board filed a response in opposition to Mr. Justice’s 

request to conduct discovery and responded to Mr. Justice’s petition for relief from costs. 

The Board also subsequently submitted the affidavits of the two lawyers who had worked 

as disciplinary counsel on Mr. Justice’s case. Regarding Mr. Justice’s discovery requests, 

the Board pointed out that section 24.3 of pre-2014 Rule 9 did not authorize discovery. 

The Board also relied on Moncier v. Board of Professional Responsibility, 406 S.W.3d 
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139, 164-65 (Tenn. 2013), in which the Court affirmed a hearing panel’s decision to deny 

an attorney’s request for discovery.

As for Mr. Justice’s specific objections to the cost assessment, the Board 

explained that only two attorneys billed time on the case. One attorney worked on the 

matter for over five years and billed 264 hours. The other attorney began working for the 

Board in February 2019 and handled the case in this Court. The second attorney, who 

had to become familiar with the case before oral argument, billed a total of forty-one 

hours. The Board pointed out that the total attorney time billed for more than five years 

of litigation amounted to $22,077.00 of the costs, which was approximately $72.38 per 

hour, under the $80.00 per hour rate authorized by pre-2014 Rule 9, section 24.3. 

As for Mr. Justice’s objection to the travel time claimed, the Board explained that 

the time entries for 6.5 hours accounted for travel to and from Knoxville and for 

participating in hearings while in Knoxville. The Board argued that the travel was part of 

the prosecution of the matter and the claimed time was reasonable. 

As for Mr. Justice’s objections regarding expenses, the Board explained that it 

used FedEx because the documents were voluminous. With regard to Mr. Justice’s 

objection to the transcription costs, the Board emphasized that pre-2014 Rule 9, section 

24.3 specifically authorized the assessment of transcription costs. The Board posited that 

Mr. Justice’s objection to these costs was an attempt to relitigate his assertion, rejected by 

this Court, that the transcript filed on appeal had not been properly certified. 

On May 19, 2020, a Board of Professional Responsibility Hearing Panel (“Hearing 

Panel”) held a telephonic hearing on Mr. Justice’s request to conduct discovery. The next 

day, the Hearing Panel filed an order denying the request. In addition, the Hearing Panel 

granted Mr. Justice’s request for a continuance of the hearing on the petition for relief 

from costs, but it denied his request to subpoena and call witnesses, explaining that the 

hearing would proceed on the pleadings and the argument of counsel. 

On May 29, 2020, the Hearing Panel conducted the final hearing by 

teleconference. Through his attorney, Mr. Justice verbally raised several objections to 

the assessment of costs that were not raised in his petition. The Board verbally responded 

to some but not all of these objections and also commented that they were not raised in 

the petition. The Hearing Panel issued its written order on July 17, 2020. The Hearing 

Panel denied Mr. Justice’s petition for relief from costs and objections to costs assessed, 

except that the Hearing Panel reduced the attorney time the Board billed for a motion to 

compel a deposition from 5.2 hours to .5 hours, and eliminated 6.5 hours of attorney time 

the Board had billed for a hearing on December 21, 2016, because Mr. Justice had 

asserted a hearing was not held on that date. Mr. Justice timely appealed to this Court. 
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II. Standard of Review

Attorney discipline in Tennessee is governed by Tennessee Supreme Court Rule 9, 

which was revised effective January 1, 2014. Because the disciplinary proceedings 

against Mr. Justice were instituted before the effective date of the revisions, this appeal is 

governed by the pre-2014 version of Rule 9. Garland v. Bd. of Prof’l Resp., 536 S.W.3d 

811, 816 (Tenn. 2017); Bd. of Prof’l Resp. v. Reguli, 489 S.W.3d 408, 412 n.1 (Tenn. 

2015). Pre-2014 Tennessee Supreme Court Rule 9, section 24.3 provides in relevant part:

In the event that a judgment of disbarment, suspension, public censure, 

private reprimand, temporary suspension, disability inactive status, 

reinstatement, or denial of reinstatement results from formal proceedings, 

the Board shall assess against the respondent the costs of the proceedings, 

including court reporter’s expenses for appearances and transcription of all 

hearings and depositions, the expenses of the hearing panel in the hearing 

of the cause, and the hourly charge of Disciplinary Counsel in investigating 

and prosecuting the matter.

The respondent attorney may petition the Board for relief from costs within 

thirty days of receipt of the final bill of costs or on the termination of any 

action upon which the disciplinary proceeding was based, whichever occurs 

last. In seeking relief, the respondent attorney shall have the opportunity to

appear and be heard before the Board or a duly constituted panel thereof. 

Having conducted such a hearing, the Board shall file an order within thirty 

days; this order must include the basis for the Board’s decision. An order 

reflecting the decision shall be treated as a decree of the circuit or chancery 

court and, as such, is appealable to the Tennessee Supreme Court under 

Rule 9, § 1.3, Rules of the Supreme Court. 

. . . .

The hourly charges of Disciplinary Counsel on formal proceedings filed on 

or after January 27, 1992, shall be assessed at $30 per hour for investigative 

time incurred prior to the filing of formal proceedings and $80 per hour in 

connection with formal proceedings.

Under pre-2014 Tennessee Supreme Court Rule 9, section 1.3, the decision of the 

Hearing Panel should be reversed or modified only if:

the rights of the petitioner have been prejudiced because the 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 abuse of discretion or clearly unwarranted exercise of 
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discretion; or (5) unsupported by evidence which is both substantial and 

material in the light of the entire record.

“We review questions of law de novo but do not substitute our judgment for that of the 

panel as to the weight of the evidence on questions of fact.” Moncier, 406 S.W.3d at 150 

(citing Bd. of Prof’l Resp. v. Cowan, 388 S.W.3d 264, 267 (Tenn. 2012)). 

III. Analysis

Mr. Justice raises six issues on appeal, which we consolidate and restate as 

follows:

1. Whether the Hearing Panel abused its discretion in denying 

Mr. Justice’s request for discovery and conducting the hearing on the 

pleadings filed and the arguments of counsel.

2. Whether the Hearing Panel abused its discretion in declining 

to consider arguments previously raised by Mr. Justice and rejected by this 

Court. See Justice, 577 S.W.3d 908.

3. Whether the findings and conclusions in the Hearing Panel’s 

order are supported by substantial and material evidence. 

A. Request for Discovery and Hearing Procedure

Mr. Justice asserts that the Hearing Panel erred by denying his request to conduct 

discovery. We review pretrial discovery decisions for abuse of discretion. Walwyn v. 

Bd. of Prof’l Resp., 481 S.W.3d 151, 165 (Tenn. 2015) (quoting West v. Schofield, 460 

S.W.3d 113, 120 (Tenn. 2015)). An abuse of discretion occurs when a lower tribunal 

applies an incorrect legal standard, reaches an illogical conclusion, bases its decision on a 

clearly erroneous assessment of the evidence, or employs reasoning that causes an 

injustice to the complaining party. Id.

The Hearing Panel did not abuse its discretion under Moncier when it denied Mr. 

Justice’s discovery request. See Moncier, 406 S.W.3d at 164-65. Mr. Justice sought 

permission to propound written discovery and depose disciplinary counsel to “determine 

the nature and reasonableness of the fees sought.” But Mr. Justice was already in 

possession of the invoice assessing costs consistent with section 24.3. He also had 

affidavits from disciplinary counsel responding to his specific objections. Moreover, the 

Hearing Panel’s denial of discovery did not preclude Mr. Justice from offering his own 
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affidavits to support any assertions that the charges were inappropriate or unreasonable. 

He simply did not provide any countervailing affidavits.

The Hearing Panel also did not deny Mr. Justice an opportunity to be heard at the 

hearing, as he claims, when it refused to allow him to subpoena and call witnesses at the 

hearing. The Hearing Panel simply determined that the hearing would be on the 

pleadings and the argument of counsel. Mr. Justice was heard through his attorney. 

Again, he did not request permission to submit affidavits or other written proof at the 

hearing, nor did he ask to make an offer of proof of any witnesses. Under the 

circumstances of this case, Mr. Justice has not shown that the Hearing Panel abused its 

discretion by denying discovery and hearing this matter on the pleadings and the 

arguments of counsel. 

B. Arguments Previously Raised on Appeal

Mr. Justice argues that he should be relieved from the Board’s assessment of fees 

and costs given three, distinct violations of his Fifth Amendment privilege against selfincrimination in the underlying disciplinary case. This argument is without merit.

In Mr. Justice’s appeal as of right, this Court concluded that the hearing panel had 

not deprived him of the opportunity to decide whether to waive his Fifth Amendment 

right against testifying. Justice, 577 S.W.3d at 925-26. We also declined to address Mr. 

Justice’s argument that the Fifth Amendment precluded the hearing panel from drawing 

an adverse inference from his invocation of his Fifth Amendment privilege against selfincrimination because the hearing panel had expressly not drawn such an adverse 

inference in deciding Mr. Justice’s case. Id. at 926 n.18.

Mr. Justice’s assertion that the Hearing Panel erred by not reconsidering these 

constitutional issues and setting aside the cost assessment is without merit. Pre-2014 

Rule 9, section 24.3 affords attorneys the opportunity to seek relief from the costs 

assessed for a disciplinary proceeding; it does not provide attorneys a second chance to 

relitigate issues decided against them in underlying disciplinary proceedings. Moreover, 

even if the limited scope of pre-2014 Rule 9, section 24.3 did not preclude 

reconsideration of these issues, Mr. Justice is collaterally estopped from relitigating them. 

To establish a claim of collateral estoppel, a party must establish:

(1) that the issue to be precluded is identical to an issue decided in an 

earlier proceeding, (2) that the issue to be precluded was actually raised, 

litigated, and decided on the merits in the earlier proceeding, (3) that the 

judgment in the earlier proceeding has become final, (4) that the party 

against whom collateral estoppel is asserted was a party or is in privity with 
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a party to the earlier proceeding, and (5) that the party against whom 

collateral estoppel is asserted had a full and fair opportunity in the earlier 

proceeding to contest the issue now sought to be precluded.

Mullins v. State, 294 S.W.3d 529, 535 (Tenn. 2009). Here, the constitutional issues Mr. 

Justice relies on to challenge the assessment of costs are identical to the constitutional 

issues he raised in his appeal as of right; the issues were actually litigated and decided 

against him; the judgment in his appeal as of right has become final; the same parties are 

involved here as in his appeal as of right; and Mr. Justice had a full and fair opportunity 

to litigate the issues in his disciplinary proceeding. Thus, Mr. Justice is collaterally 

estopped from relitigating these issues.

To the extent Mr. Justice claims that he should be allowed to relitigate issues 

because this Court did not expressly address all of them in his appeal as of right, he is 

mistaken. The Court rejected some of Mr. Justice’s arguments on the merits, rejected 

other arguments as not properly preserved for appeal or not relevant to the appeal because 

the claimed action did not actually occur, and rejected still other arguments as “too 

outlandish to dignify with discussion.” Justice, 577 S.W.3d at 924 n.16. This Court 

rejected all of his arguments, by one means or another.

Mr. Justice also suggests that we should address the constitutional arguments in 

this appeal because we addressed similar constitutional arguments in another section 24.3 

appeal. See Moncier, 406 S.W.3d 139. However, Mr. Moncier’s case was in a different 

posture than the present case. Specifically, Mr. Moncier attempted to appeal from the 

hearing panel decision to the trial court, but the trial court dismissed the appeal, applying 

a decision of this Court issued after Mr. Moncier filed his petition for writ of certiorari,

which meant that Mr. Moncier’s petition was defective. Moncier, 406 S.W.3d at 145-46. 

After the dismissal, the Board filed an order of enforcement with this Court incorporating 

the hearing panel’s judgment against Mr. Moncier and assessing costs against him 

according to an invoice submitted by disciplinary counsel. Mr. Moncier moved for relief 

from costs pursuant to pre-2014 Rule 9, section 24.3, and the panel denied relief. Mr. 

Moncier then appealed under section 24.3 and raised many of the issues that he would 

have raised had his appeal not been dismissed based on his defective certiorari petition. 

Although the Court had admonished Mr. Moncier in an unpublished order not to use his 

section 24.3 appeal to relitigate the underlying disciplinary proceeding, the Court 

exercised its discretion to address some of the issues Mr. Moncier raised “briefly—and 

finally—again for the benefit of the public and the bar.” Moncier, 406 S.W.3d at 151. 

Unlike Mr. Moncier, Mr. Justice properly perfected his appeal as of right, and this

Court has already addressed and rejected the issues he seeks to relitigate now as a bar to 

the assessment of costs. The Hearing Panel did not abuse its discretion by refusing to 
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reconsider these issues in a Section 24.3 proceeding, which is designed to determine only 

whether an attorney is entitled to relief from the costs assessed.

C. Assessment of Costs

Finally, Mr. Justice argues that the Hearing Panel erred by failing to reduce the 

Board’s assessment of fees and costs and by enforcing the Board’s assessment of costs 

against him. As set forth above, the Hearing Panel’s decision will be affirmed if it is 

supported by evidence that is both substantial and material in the light of the entire 

record. We have previously explained the substantial and material evidence standard as 

follows:

In applying the substantial and material evidence test, it is our duty to 

determine whether the decision is supported by such relevant evidence as a 

rational mind might accept to support a rational conclusion. We look at 

whether the record contains a reasonably sound factual basis for the hearing 

panel’s decision. A reasonably sound basis is less than a preponderance of 

the evidence but more than a scintilla or glimmer. 

Beier v. Bd. of Prof’l Resp., 610 S.W.3d 425, 438 (Tenn. 2020) (citations and internal 

quotation marks omitted).

As discussed above, the Hearing Panel decided this matter on the pleadings and on 

the arguments of counsel. The pleadings included the Board’s invoice, Mr. Justice’s 

petition and request for discovery, the Board’s response, and affidavits from disciplinary 

counsel, which addressed Mr. Justice’s specific objections to the invoice. Mr. Justice 

failed to offer any countervailing affidavits to establish that the time or expenses assessed 

pursuant to the hourly rates and provisions of pre-2014 Rule 9, section 24.3 were 

unreasonable or unnecessary. Nevertheless, the Hearing Panel did reduce the costs for 

11.2 hours of disciplinary counsel time, and the Board has not appealed the Hearing

Panel’s reduction of those costs. 

Mr. Justice argues, as he did below, that pre-2014 Rule 9, section 24.3 does not 

authorize disciplinary counsel to charge for travel time. He points out that travel time is 

not allowed as a discretionary cost under Tennessee Rule of Civil Procedure 54.04. The 

Hearing Panel disagreed and concluded that charges for travel time are reasonable and 

necessary and, in the words of pre-2014 Rule 9, section 24.3, part of the “costs of the 

proceeding” and appropriate as “the hourly charge of Disciplinary Counsel in 

investigating and prosecuting the matter.” Of course, the broad language of pre-2014 

Rule 9, section 24.3, not Tennessee Rule of Civil Procedure 54.04, governs the allowable 
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costs in disciplinary proceedings. The Hearing Panel’s decision is consistent with the 

broad language of pre-2014 Rule 9, section 24.3.

Mr. Justice also argues, as he did below, that the FedEx expenses were 

unnecessary and should be disallowed. However, the Board explained that it used FedEx, 

rather than regular mail, because of the voluminous documents in this case. The Hearing 

Panel accepted this explanation and determined the costs were reasonable and necessary. 

Moreover, Mr. Justice failed to offer any proof that the expense would have been less had 

the Board used the United States Postal Service. 

Mr. Justice’s objections to the transcription costs are also without merit, as 

pre-2014 Rule 9, section 24.3 expressly authorizes those costs. Mr. Justice’s argument 

seems to stem from an inability to accept that the transcript, which the trial court 

destroyed believing it to be a courtesy copy, was recreated and properly certified. The 

Board only charged Mr. Justice once for the cost of the transcript. 

In sum, the Hearing Panel clearly explained its decisions on each of Mr. Justice’s 

objections, and Mr. Justice’s arguments on appeal do not call into question the rationality 

of the Hearing Panel’s decision. Having reviewed the record before us, we conclude that 

the Hearing Panel’s decision is supported by substantial and material evidence. 

IV. Conclusion

Having reviewed the record and the issues raised, we conclude that the Hearing 

Panel’s findings, inferences, conclusions and decisions were not (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 abuse of 

discretion or a clearly unwarranted exercise of discretion; or (5) unsupported by evidence 

which is both substantial and material in the light of the entire record. Accordingly, the 

judgment of the Hearing Panel on Mr. Justice’s petition for relief from costs is affirmed. 

The costs of this appeal are taxed to Mr. Justice, for which execution may issue if 

necessary.

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 CORNELIA A. CLARK, JUSTICE