In re Justice, E2020-01089-SC-R3-BP

CourtSupreme Court of Tennessee
Writing for the CourtCORNELIA A. CLARK, JUSTICE
Docket NumberE2020-01089-SC-R3-BP
Decision Date16 August 2021


No. E2020-01089-SC-R3-BP

Supreme Court of Tennessee

August 16, 2021

Assigned on Briefs March 31, 2021

Direct Appeal from the Board of Professional Responsibility Hearing Panel No. 2019-3040-2-JM-24

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

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.

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.



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 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.

II. Standard of Review

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

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