Greeneville lawyer Edward “Ed” Kershaw on Wednesday defended his conduct during a verbal exchange last year with General Sessions Court Judge Kenneth Bailey Jr. and in a social media posts alleging “unethical” behavior on the part of some local judges.
Kershaw appeared at the Greene County Courthouse for a Board of Professional Responsibility of the Supreme Court of Tennessee disciplinary hearing before a panel of three volunteer hearing committee members appointed by the Supreme Court.
Panel members are all attorneys practicing elsewhere in Tennessee. They were Chairman Steve Terry, whose practice is based in Morristown; James Dunn, district attorney general of the 4th Judicial District; and Richard E. Ladd Jr., whose practice is based in Bristol.
Appearing on behalf of the Board of Professional Responsibility was William Moody, disciplinary counsel for the Nashville-based board, which “assists the court in protecting the public from harm by unethical lawyers by administering the disciplinary process,” according to its mission statement.
The petition for discipline was filed April 2 by the board.
Kershaw, a Greeneville lawyer since 1994, is subject to possible disciplinary measures recommended by the hearing committee. Primary alleged misconduct occurred on Nov. 6, 2017, before Bailey in General Sessions Court.
Kershaw told the panel in retrospect he may have done some things differently, but denied any misconduct at the hearing.
The panel will issue a finding within 30 days of obtaining court transcripts of the confrontation with Bailey, which likely will be next week, Terry said.
All hearing panel recommendations go to the state Supreme Court for review and final action.
Kershaw has not been sanctioned by the board and continues to practice law.
CRIMINAL CONTEMPT APPEAL
In a separate matter, a Criminal Court judge in July upheld Bailey’s finding of criminal contempt in connection with the exchange of words last year with Kershaw.
Kershaw, who was fined $50, appealed Bailey’s finding on the basis of violation of due process, absence of willful conduct and an excessive fine.
Murfreesboro-based Senior Judge Don R. Ash, appointed by the Administrative Office of the Courts to review the case, ruled in favor of Bailey on the contempt charge appeal.
“This court agrees Mr. Kershaw stepped over the line of zealous representation and disrupted the proceedings with his disrespectful outburst. Beyond a reasonable doubt, he is guilty of direct criminal contempt,” Ash wrote in his ruling.
The ruling imposed a $50 fine and sentenced Kershaw to 10 days in jail, suspended after serving 24 hours. The July 11 judgment was held in abeyance for six months, and if Kershaw “maintains good and lawful behavior” during that time frame and attends, at his cost, a one-hour ethics seminar on civility, the matter will be dismissed and expunged.
ALLEGED ETHICS VIOLATIONS
At Wednesday’s hearing, a central question under review by the panel was if Kershaw’s alleged actions diminished the public’s respect for the judiciary branch.
Moody said in his closing argument to the panel that Kershaw’s statements before Bailey are “clear violations” of rules governing the conduct of lawyers that “willfully, purposely and maliciously misrepresent the judge” and ultimately are “prejudicial to the administration of justice.”
In November 2017, the board received two reports from Bailey alleging ethical misconduct by Kershaw.
The board also received a report from lawyer Elizabeth McClellan alleging ethical misconduct by Kershaw. McClellan represents a woman who testified last Nov. 6 in a preliminary hearing in General Sessions Court for a client represented by Kershaw.
On Nov. 15, 2017, the board received another report of alleged misconduct by Kershaw from judges in the 3rd Judicial District, including Thomas Wright, Alex Pearson, John F. Dugger Jr., Douglas Jenkins and Beth Boniface.
Kershaw’s client, Earl Gilliam, was charged in two separate cases with felony theft and misdemeanor assault. That hearing also involved a petition for an order of protection from the woman represented by McClellan.
The courtroom was full at the time of the exchange between Kershaw and Bailey, according to the petition for discipline. An audio recording of the hearing is attached to the petition as one of the exhibits.
The woman on the stand became emotional while testifying about alleged abuse by the defendant. She was handed a box of tissues. Kershaw said, “Can I get some tissues too, because I have to cry as well,” according to the petition for discipline.
“Mr. Kershaw’s statement was made with sarcastic intent,” the petition states.
Kershaw asked the woman testifying that when the defendant “yanked you into the car, did the angels magically protect you from getting marks?”
The question prompted a response from Bailey.
“Mr. Kershaw, you are trying my patience today,” the judge said.
“That goes both ways,” Kershaw responded.
At that point, Bailey held Kershaw in criminal contempt, which resulted in the $50 fine.
The petition for discipline states that Kershaw placed an advertisement in The Greeneville Sun, published on Nov. 13, 2017, that outlined events at the Nov. 6 hearing and states that Bailey “yelled” at him in a manner “completely inappropriate in the courtroom.”
“Judge Bailey did not yell at Mr. Kershaw during the hearing,” the petition for discipline states, or refuse to allow him to ask relevant questions of the witness at the hearing, as is suggested in the advertisement.
The petition also includes Facebook posts made by Kershaw. One states, “Did you know that several judges in (Tennessee) are unethical. Especially in Greene County.”
Another post states, “Junior Judge Kenneth Bailey Jr. is in my opinion the most unethical judge in this state.”
In the petition for discipline filed in April, the Board of Professional Responsibility found Kershaw violated four rules of professional conduct: impartiality and decorum of the tribunal; respect for the rights of third persons; judicial and legal officials; and misconduct.
“The acts and omissions by Mr. Kershaw constitute ethical misconduct in violation of the relevant portions of (the) Rules of Professional Conduct,” according to the petition.
“The thing about the Kleenex and the retort to Judge Bailey are clear violations,” Moody said Wednesday during his closing argument.
Kershaw has no First Amendment rights to make the statements he did under the professional rules of conduct, Moody said.
Kershaw “doesn’t like these judges and he’s mad at these judges,” Moody said.
Kershaw spoke after Moody and disagreed with the interpretation of his actions.
He said “in hindsight,” he probably would not have taken out the ad alleging unethical behavior of specific judges “if I had it to do all over again,” or made the statement to Bailey in court.
Kershaw said Bailey’s statement to him in court last Nov. 6 stunned him.
“I really didn’t know how to respond. It shocks me,” he said.
While being questioned by the panel earlier on Wednesday, Kershaw defended his actions during the November hearing in General Sessions Court.
“In my personal opinion, he is the most unethical judge in the way he treats people,” Kershaw said. “Maybe we define ethics differently.”
Moody asked if Kershaw’s statement might make the public think Bailey or other judges were “unethical and corrupt.”
“I don’t know,” he answered.
Kershaw named several other East Tennessee judges he thought were unethical.
“Is every judge in Greene County under suspicion?” Moody asked.
“I don’t know, maybe,” Kershaw replied.
“I don’t think it is unethical to criticize a judge,” he said a few minutes later. “You have to show a certain degree of respect but it goes both ways … I believe all have an obligation to be civil. I didn’t want to say, ‘It goes both ways.’”
“As for what we consider evidence you stand by your petition?” Ladd asked.
“Yes,” Kershaw responded. Kershaw responded affirmatively when asked by Dunn if he thought his comments to Bailey “were permissible.”
“Yes, as protected by the U.S. Constitution,” he answered.
Terry asked Kershaw if it is fair to Greene County judges to potentially impact the public’s respect for them.
“My rinky-dink statements haven’t affected anything,” Kershaw said.
It was noted that Kershaw was never subject to any previous disciplinary matters over the course of his law career.
At its conclusion, panel members complimented Kershaw for his respectful demeanor during the hearing.
“Even if emotions were running high (Nov. 6) you’ve been a competent professional,” Ladd told him.
“You’ve acted very professionally and kept your emotions in check and it can only work in your favor,” Terry added.