1-6
7-12
13-18
19-24
25-30
31-36
37-42
43-48
49-54
55-60
61-66
67-72
73-78
79-84
85-90
91-96
97-102
103-108
109-114
115-120
121-126
127-132
133-138
139
1-6
7-12
13-18
19-24
25-30
31-36
37-42
43-48
49-54
55-60
61-66
67-72
73-78
79-84
85-90
91-96
97-102
103-108
109-114
115-120
121-126
127-132
133-138
139
PROPOSED RULE 8.3
REPORTING PROFESSIONAL MISCONDUCT
Professional Conduct that raises a substantial question as to that lawyer's honesty, trustworthiness
or fitness as a lawyer in other respects, shall inform the Disciplinary Counsel of the Board of
Professional Responsibility.
conduct that raises a substantial question as to the judge's fitness for office shall inform the
Disciplinary Counsel of the Court of the Judiciary.
information gained by a lawyer or judge while serving as a member of a lawyer assistance program
approved by the Supreme Court of Tennessee or by the Board of Professional Responsibility to the
extent that such information would be confidential if it were communicated subject to the attorney-
client privilege.
[1]Self-regulation of the legal profession requires that members of the profession initiate
disciplinary investigation when they know of a violation of the Rules of Professional Conduct.
Lawyers have a similar obligation with respect to judicial misconduct. An apparently isolated
violation may indicate a pattern of misconduct that only a disciplinary investigation can uncover.
Reporting a violation is especially important where the victim is unlikely to discover the offense.
[2] A report about misconduct is not required where it would involve violation of Rule 1.6.
However, a lawyer should encourage a client to consent to disclosure where prosecution would not
substantially prejudice the client's interests.
[3]If a lawyer were obliged to report every violation of the Rules, the failure to report any
violation would itself be a professional offense. Such a requirement existed in many jurisdictions
but proved to be unenforceable. This Rule limits the reporting obligation to those offenses that a
self-regulating profession must vigorously endeavor to prevent. A measure of judgment is,
therefore, required in complying with the provisions of this Rule. The term "substantial" refers to
the seriousness of the possible offense and not the quantum of evidence of which the lawyer is
aware. Similar considerations apply to the reporting of judicial misconduct.
[4] The duty to report professional misconduct does not apply to a lawyer retained to
represent a lawyer whose professional conduct is in question. Such a situation is governed by the
rules applicable to the client-lawyer relationship.
[5] Information about a lawyer's or judge's misconduct or fitness may be received by a
lawyer in the course of that lawyer's participation in an approved lawyers' or judges' assistance
program. In that circumstance, providing for the confidentiality of such information encourages
lawyers and judges to seek treatment through such program. Conversely, without such
confidentiality, lawyers and judges may hesitate to seek assistance from these programs, which may
then result in additional harm to their professional careers and additional injury to the welfare of
clients and the public. The Rule therefore exempts the lawyer from the reporting requirements of
paragraphs (a) and (b) with respect to information that would be privileged if the relationship
between the impaired lawyer or judge and the recipient of the information were that of a client and a
to comply with the Rule 8.3 reporting provisions to report misconduct if the impaired lawyer or
judge indicates an intent to engage in illegal activity, for example, the conversion of client funds to
his or her use.
See Rule 1.0(l)
MISCONDUCT
induce another to do so, or do so through the acts of another;
fitness as a lawyer in other respects;
attempt to, or state or imply an ability to influence a tribunal or a governmental agency
or official on grounds unrelated to the merits of, or the procedures governing, the matter
under consideration;
rules of judicial conduct or other law; or
lawyer is a party, unless the lawyer is unable to comply with the order or is seeking in good
faith to determine the validity, scope, meaning or application of the law upon which the order
is based.
[1]Many kinds of illegal conduct reflect adversely on fitness to practice law, such as
offenses involving fraud and the offense of willful failure to file an income tax return. However,
some kinds of offense carry no such implication. Traditionally, the distinction was drawn in terms
of offenses involving "moral turpitude."That concept can be construed to include offenses
concerning some matters of personal morality, such as adultery and comparable offenses, that have
no specific connection to fitness for the practice of law. Although a lawyer is personally
answerable to the entire criminal law, a lawyer should be professionally answerable only for
offenses that indicate lack of those characteristics relevant to law practice. Offenses involving
violence, dishonesty or breach of trust, or serious interference with the administration of justice are
in that category. Although under certain circumstances a single offense reflecting adversely on a
lawyer’s fitness to practice -- such as a minor assault -- may not be sufficiently serious to warrant
discipline, a pattern of repeated offenses, even ones of minor significance when considered
separately, can indicate indifference to legal obligation.
[2] A lawyer who, in the course of representing a client, knowingly manifests by words or
conduct, bias or prejudice based on race, sex, religion, national origin, disability, age, sexual
orientation, or socio-economic status, may violate paragraph (d) if such actions are prejudicial to the
administration of justice. Legitimate advocacy respecting the foregoing factors does not violate
paragraph (d).
[3] A lawyer may refuse to comply with an obligation imposed by law upon a good faith
belief that no valid obligation exists. The provisions of Rule 1.2(d) concerning a good faith
regulation of the practice of law.
[4] Paragraph [c] prohibits lawyers from engaging in conduct involving dishonesty, fraud,
deceit or misrepresentation. Such conduct reflects adversely on the lawyer’s fitness to practice law.
In some circumstances, however, prosecutors are authorized by law to use, or to direct investigative
agents to use, investigative techniques that might be regarded as deceitful. This Rule doe not
prohibit such conduct. Also, secret recording of a conversation or the actions of another for the
purpose of obtaining or preserving evidence does not, by itself, constitute conduct involving deceit
or dishonesty. See Rule 4.4.
[5]Lawyers holding public office assume legal responsibilities going beyond those of
other citizens. A lawyer's abuse of public office can suggest an inability to fulfill the professional
role of attorney. The same is true of abuse of positions of private trust such as trustee, executor,
administrator, guardian, agent and officer, director or manager of a corporation or other
organization.
[6]Paragraph (f) precludes a lawyer from assisting a judge or judicial officer in conduct
that is a violation of the rules ofjudicial conduct. A lawyer cannot, for example, make a gift,
bequest, favor,or loan to a judge, or a member’s of the judge’s family who resides in the judge’s
household, unless the judge would be permitted to accept, or acquiesce in the acceptance of such a
gift, favor bequest or loan in accordance with Canon 4, Section D(5) of Tennessee Supreme Court
Rule 10 (Code of Judicial Conduct).
[7] In both their professional and personal activities, lawyers have special obligations to
demonstrate respect for the law and legal institutions. Normally, a lawyer who knowingly fails to
obey a court order demonstrates a disrespect for the law that is prejudicial to the administration of
justice. Failure to comply with a court order is not a disciplinary offense, however, when it does not
evidence disrespect for the law either because the lawyer is unable to comply with the order or the
lawyer is seeking in good faith to determine the validity, scope, meaning or application of the law
upon which the order is based.
See Rule 1.0(e)
“Knowingly”See Rule 1.0(f)
“Tribunal”See Rule 1.0(m)
PROPOSED RULE 8.5
DISCIPLINARY AUTHORITY; CHOICE OF LAW
authority of the the Supreme Court of Tennessee regardless of where the lawyer’s conduct occurs.
A lawyer who engages in misconduct may be subject to the disciplinary authority of both the
Supreme Court of Tennessee and the disciplinary authority of another jurisdiction where the lawyer
is admitted to practice for the same conduct.
the rules of professional conduct to be applied shall be as follows:
admitted to practice (either generally or for purposes of that proceeding), the rules to be
applied shall be the rules of the jurisdiction in which the court sits, unless the rules of the
court provide otherwise; and
be the Tennessee Rules of Professional Conduct; and
rules to be applied shall be the rules of the admitting jurisdiction in which the lawyer
principally practices; provided, however, that if particular conduct clearly has its
predominant effect in another jurisdiction in which the lawyer is licensed to practice,
the rules of that jurisdiction shall be applied to that conduct.
COMMENT
Disciplinary Authority
[2] A lawyer may be potentially subject to more than one set of rules of professional
conduct which impose different obligations. The lawyer may be licensed to practice in more than
one jurisdiction with differing rules, or may be admitted to practice before a particular court with
rules that differ from those of the jurisdiction or jurisdictions in which the lawyer is licensed to
practice. In the past, decisions have not developed clear or consistent guidance as to which rules
apply in such circumstances.
[3]Paragraph (b) seeks to resolve such potential conflicts. Its premise is that minimizing
conflicts between rules, as well as uncertainty about which rules are applicable, is in the best interest
of both clients and the profession (as well as the bodies having authority to regulate the profession).
Accordingly, it takes the approach of (i) providing that any particular conduct of an attorney shall be
subject to only one set of rules or professional conduct, and (ii) making the determination of which
set of rules applies to particular conduct as straightforward as possible, consistent with recognition
of appropriate regulatory interests of relevant jurisdictions.
[4]Paragraph (b) provides that as to a lawyer's conduct relating to a proceeding in a court
before which the lawyer is admitted to practice (either generally or pro hac vice), the lawyer shall be
subject only to the rules of professional conduct of that court. As to all other conduct, paragraph
(b) provides that a lawyer licensed to practice only in Tennessee shall be subject to Tennessee Rules
of Professional Conduct, and that a lawyer licensed in multiple jurisdictions shall be subject only to
the rules of the jurisdiction where he or she (as an individual, not his or her firm) principally
practices, but with one exception:if particular conduct clearly has its predominant effect in another
admitting jurisdiction, then only the rules of that jurisdiction shall apply. The intention is for the
latter exception to be a narrow one. It would be appropriately applied, for example, to a situation in
which a lawyer admitted in, and principally practicing in, State A, but also admitted in State B,
handled an acquisition by a company whose headquarters and operations were in State B of
another, similar such company. The exception would not appropriately be applied, on the other
hand, if the lawyer handled an acquisition by a company whose headquarters and operations were in
State A of a company whose headquarters and main operations were in State A, but which also had
some operations in State B.
[5]If two admitting jurisdictions were to proceed against a lawyer for the same conduct,
they should, applying this rule, identify the same governing ethics rules. They should take all
appropriate steps to see that they do apply the same rule to the same conduct, and in all events
should avoid proceeding against a lawyer on the basis of two inconsistent rules.
[6] The choice of law provision is not intended to apply to transnational practice. Choice of
law in this context should be the subject of agreements between jurisdictions or of appropriate
international law.