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.
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 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.
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
From May to September 2009, Mr. Benjamin Kerschberg worked for the law firm. Mr. Justice and Mr. Kerschberg met while they were both students at Yale Law School. They remained friends after law school and both served as judicial clerks for the same federal circuit court judge. Mr. Kerschberg did not obtain his Tennessee law license, so he worked as a contract paralegal for the law firm, and he billed the law firm for his services by submitting invoices with narrative entries describing the tasks performed, the date the services were rendered, and the time he spent on the tasks, in quarter-hour increments.
During the time Mr. Kerschberg worked for the law firm, Mr. Justice represented Scotty Thomas in a personal injury lawsuit ("the Thomas case") in the United States District Court for the Eastern District of Tennessee ("District Court") against Lowe's Home Centers ("Lowe's"). Mr. Thomas alleged that, on June 21, 2005, while he was working for a merchandising company inside a Lowe's store near Knoxville, a large stack of metal roofing sheets collapsed on top of him, causing very serious injuries, including brain damage. Lowe's denied liability and also denied having any knowledge or records showing that the incident occurred or that the merchandising company was in the Lowe's store on the date of the alleged incident.
Mr. Thomas recalled a female Lowe's employee assisting him after the incident, however, so during discovery Mr. Justice repeatedly asked Lowe's to identify this employee. Lowe's failed to disclose this employee's name, even though she was a human resources manager for Lowe's, was onsite at the Lowe's store the day the incident allegedly occurred, and made an appointment for Mr. Thomas at a health clinic the day of the incident. In July 2010, Mr. Justice learned her identity from a medical record he obtained by subpoena from the health clinic where Mr. Thomas was first treated for his injuries.
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.
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.
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.
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
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.
a. June 13, 2009
b. June 14, 2009
c. June 16, 2009
d. June 16, 2009
e. June 17, 2009
f. June 17, 2009
g. June 18, 2009
h. June 19, 2009
i. July 16, 2009
j. July 22, 2009
k. July 27, 2009
1. July 29, 2009
m. August 8, 2009
n. August 10, 2009
o. August 27, 2009
p. August 31, 2009
q. September 9, 2009
The Board additionally offered into evidence an April 11, 2011 email by which Mr. Justice transmitted the initial Itemization to Mr. Kerschberg for review.
The Board pointed out that the Itemization did not include a single entry for time Mr. Justice spent "reading" Mr. Kerschberg's work.
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
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 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 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 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 "
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);
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.
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:
II. Standard of Review
This Court recently reaffirmed the familiar standard of review that applies in lawyer-disciplinary appeals, stating:
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.
Finally, this Court's review of attorney disciplinary appeals is conducted in
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.
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:
Tenn. R. Evid. 106. This evidentiary rule:
Neil P. Cohen, Sarah Y. Sheppeard, and Donald F. Paine,
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:
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.
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 self-incrimination 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
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.
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.
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."
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
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.
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
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,
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
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.
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
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 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.
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
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.
ABA Standards, Theoretical Framework. The presumptive sanction in each case may be identified by considering:
As already noted, the Hearing Panel failed to consider the ABA Standards
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
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.
Mr. Justice argues that
In another recent case factually similar to this one,
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.
ABA Standard 6.11 provides: