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
139-144
145-150
151-156
157-162
163-168
169-174
175-180
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217-222
223-228
229
prosecutors is "authorized by law" under existing Tennessee ethics rules and decisional law. See,
e.g., State v. Mosher, 755 S.W.2d 464 (Tenn. Crim. App.), appeal denied
(Tenn. 1988).
The Committee believes and intends that the adoption of the Proposed Rule would not
change the substance of the current Tennessee ethics rule or decisional law on this point.
Comment [3] in the Preliminary Draft prohibited communication with a corporate
employees whose “act or omission in the matter may be imputed to the organization for purposes
of civil or criminal liability or whose statement may constitute an admission on behalf of the
organization. These references have been deleted, so that the Comment will be consistent with the
“control group” test set forth in Formal Ethics Opinions 83-F-46, 46(a), and 46(b).
Made
1. In response to a Comment from the United States Attorneys, the Committee has added a
reference to “a court order” as a source of authorization by law for a communication with a
represented person.
2. The Board of Professional Responsibility has asked the Court to add a new Paragraph
(b) that restricts communications with government officials who are represented in their official
capacity by a government lawyer. The Committee does not support this proposal. The Committee
believes that there should be a uniform ethics rule applicable to all lawyers, and that the only
exception should be for communications authorized by law. As noted in Comment [6], the
Committee believes that the issue the Board would address by amending the ethics rule should be
resolved as a matter of other law, in particular by reference to the constitutional right to petition for
redress of grievances. Indeed, the Committee is concerned that the restrictions that the Board would
impose on direct communication with government officials might be inconsistent with the
constitutional right to petition.
3. The Board of Professional Responsibility has also asked the Court to modify Comment
[3] to specifically incorporate into the Comment the control group test articulated in Formal Ethics
Opinions 83-F-46(a) and 83-F-46(b). Apart from the inappropriateness of specifically citing
Formal Ethics Opinions in the Comment, the Committee believes that its formulation of the control
group test is consistent with the Formal Ethics Opinions, but also more precisely delineates the
agents or employees who are included. In addition to specifying members of the governing board,
officers, and managerial agents as management or administrative level employees, the Committee’s
draft also clarifies that the control group includes an agent or employee who supervises or directs
the organization’s lawyer concerning the matter, has authority to contractually obligate the
organization with respect to the matter, or otherwise participates substantially in the determination of
the organization’s position in the matter. This latter clarification is consistent with the formulation
of the control group test in the American Law Institute’s Restatement of the Law Governing
Lawyers.
4. The United States Attorneys have asked that the first sentence of Comment [7] be
incorporated into the Rule text. The Committee believes that it is both inappropriate and
unnecessary to include in the Rule text this particular example of a communication authorized by
law. The Rule makes it clear that a communication that otherwise would be prohibited without
consent of a represented person’s lawyer is permitted if the communication is authorized by other
law, and Comment [6] clearly explains that the communications about which the United States
were deleted. The Committee believes that Comment [6] makes the point with sufficient force that
modification of the rule text is not needed. The Tennessee District Attorneys General Conference
supports the formulation presented by the Committee.
5. The United States Attorneys have also asked to Court to delete the last sentence of
Comment[7] that states: “A represented person’s waiver of the constitutional right to counsel
does not exempt the prosecutor from the duty to comply with this Rule.”The Committee opposes
this proposal because, as indicated by Comment [1], Rule 4.2 is designed to protect not only the
rights of the represented person, but also to protect the proper functioning of the legal system. This
is why the protections of Rule 4.2, unlike the constitutional right to counsel,cannot be waived by
the client without the consent of the client’s lawyer. Unless the client discharges the lawyer, Rule
4.2 remains applicable and bars communication without the consent of the lawyer. The client’s
consent, as evidenced by the waiver of the right to counsel, is of no effect.
PROPOSED RULE 4.3
DEALING WITH UNREPRESENTED PERSON
state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know
that the unrepresented person misunderstands the lawyer's role in the matter, the lawyer shall make
reasonable efforts to correct the misunderstanding. The lawyer shall not give legal advice to an
unrepresented person, other than the advice to secure counsel, if the lawyer knows or reasonably
should know that the interests of such a person are or have a reasonable possibility of being in
conflict with the interests of the client.
[1]An unrepresented person, particularly one not experienced in dealing with legal matters,
might assume that a lawyer is disinterested in loyalties or is a disinterested authority on the law even
when the lawyer represents a client. In order to avoid a misunderstanding, a lawyer will typically
need to identify the lawyer’s client and, where necessary, explain that the client has interests
opposed to those of the unrepresented person. For misunderstandings that sometimes arise when a
lawyer for an organization deals with an unrepresented constituent, see Rule 1.13(d).
[2]The Rule distinguishes between situations involving unrepresented persons whose
interests may be adverse to those of the lawyer’s client and those in which the person’s interests are
not in conflict with the client’s. In the former situation, the possibility that the lawyer will
compromise the unrepresented person’s interests is so great that the Rule prohibits the giving of
any advice, apart from the advice to obtain counsel. Whether a lawyer is giving impermissible advice
may depend on the experience and sophistication of the unrepresented person, as well as the setting
in which the behavior and comments occur. This Rule does not prohibit a lawyer from negotiating
the terms of a transaction or settling a dispute with an unrepresented person. So long as the lawyer
has explained that the lawyer represents an adverse party and is not representing the person, the
lawyer may inform the person of the terms on which the lawyer's client will enter into an agreement
or settle a matter, prepare documents that require the person's signature and explain the lawyer's
own view of the meaning of the document or the lawyer's view of the underlying legal obligations.
See Rule 1.0(f)
“Reasonable”See Rule 1.0(i)
“Reasonably Should Know”See Rule 1.0(k)
There is no counterpart in the Disciplinary Rules to the first two sentences. The prohibition
against rendering legal advice is identical to that currently contained in DR 7-104(A)(2).
The initial portion of proposed rule is identical to ABA Model Rule 4.3, but adds a
prohibition against rendering legal advice to the unrepresented person.
Made
The Committee concurs with the recommendation of the Board of Professional
Responsibility that the limitation against rendering advice to an unrepresented person be limited to
situations in which there is a conflict of interest between the lawyer’s client and the unrepresented
person. As revised, this Rule will be identical to Rule 4.3 as proposed to the ABA House of
Delegates by the Ethics 2000 Commission. In place of the Comment proposed by the Board,
however, the Committee recommends adoption of the new Comment to Rule 4.3 proposed by the
Ethics 2000 Commission. The Committee believes that the Ethics 2000 Comment provides more
useful guidance about the circumstances that affect the propriety of a lawyer providing legal advice
to an unrepresented person.
PROPOSED RULE 4.4
RESPECT FOR RIGHTS OF THIRD PERSONS
third person or knowingly use methods of obtaining evidence that violate the legal rights of
such a person; or
charge, for the purpose of obtaining an advantage in a civil matter.
Responsibility to a client requires a lawyer to subordinate the interests of others to those of
the client, but that responsibility does not imply that a lawyer may disregard the rights of third
persons. It is impractical to catalogue all such rights, but they include legal restrictions on methods
of obtaining evidence from third persons. For example, a lawyer may not secretly record a
conversation or the activities of another person if doing so would violate state or federal law
specifically prohibiting such recording. Otherwise, this Rule does not prohibit secret recording so
long as the lawyer has a substantial purpose other than to embarrass or burden the persons being
recorded. It would be a violation of Rule 4.1 or Rule 8.4(c), however, if the lawyer stated falsely or
affirmatively misled another to believe that a conversation or an activity was not being recorded. By
itself, however, secret taping does not violate either Rule 8.4(c) (prohibition against dishonest or
deceitful conduct) or Rule 8.4(d) (prohibition against conduct prejudicial to the administration of
justice.)
See Rule 1.0(f)
“Substantial”See Rule 1.0(l)
Paragraph (a): There are several Disciplinary Rules which can be seen as specific
applications of the more general rule set forth in the Proposed Rule. DR 7-106(C)(2) provides that
a lawyer shall not "[a]sk any question that the lawyer has no reasonable basis to believe is relevant
to the case and that is intended to degrade a witness or other person." DR 7-102(A)(1) provides that
a lawyer shall not "take . . . action on behalf of the client when the lawyer knows or when it is
obvious that such action would serve merely to harass or maliciously injure another." DR 7-108(D)
provides that "[a]fter discharge of the jury . . . the lawyer shall not ask questions or make comments
to a member of that jury that are calculated merely to harass or embarrass the juror. . . ." DR
7-108(E) provides that a lawyer "shall not conduct . . . a vexatious or harassing investigation of
either a venireperson or a juror."
Paragraph (b): DR 7-105 provides that a lawyer “shall not present, participate in presenting,
or threaten to present criminal charges solely to obtain an advantage in a civil proceeding.”
Paragraph (a):Paragraph (a) is identical to ABA Model Rule 4.4 except that it only
prohibits lawyers from “knowingly” using methods of obtaining evidence that violate the legal
rights of a person.
Paragraph (b): There is no counterpart to Paragraph (b) in the Model Rules. Under the
Model Rules engaging in the conduct prohibited by the Proposed Rule would only be prohibited if
it amounted to extortion or the compounding of a crime. SeeABA Formal Ethics Opinion 92-363.
Paragraph (a):Although the opposite was suggested in the Committee Notes to the
Preliminary Draft, the Committee now takes the position that nothing in this Proposed Rule or
Proposed Rule 8.4 should be construed to invalidate the interpretation of provisions of the
Tennessee Code of Professional Responsibility stated in Tennessee Formal Ethics Opinions 81-F-
14 and 81-F-14(a) that surreptitious taping in civil matters violates DR 1-102(A)(4). The
Committee considered the substantive policy question of surreptitious taping seriously and at great
length and the Committee ultimately voted in support of the propriety of the current ban in civil
matters on surreptitious taping reflected in Tennessee Formal Ethics Opinions 81-F-14 and 81-F-
14(a).
Paragraph (b): The Committee dropped the prohibition against threatening to “file a
complaint or report with a tribunal or agency with power to impose penalties or sanctions.”The
committee decided it would be preferable to limit the specific prohibition in Paragraph (b) to threats
of criminal prosecution and to leave the propriety of other threats to be determined by reference to
Paragraph (a) (violate legal rights of another) or Rule 8.4 (shall not commit a crime, for example,
extortion or compounding an offense).
Made
The Board of Professional Responsibility requested that language be added to Rule 4.4
prohibiting surreptitious recording in civil cases. This would codify the opinions of the Board in
Formal Ethics Opinions 81-F-14 and 81-F-14(a). In these Opinions, the Board adopted the
substance of ABA Formal Ethics Opinion 337 (1974).
In considering the Board’s request, the Committee noted that recording is a useful means of
preserving evidence and countering false testimony. The recent trend of opinions has been to hold
that lawful secret recording, by itself, is not deceitful. Also, Rule 4.4 only prohibits the use of
methods of obtaining evidence that violate the legal rights of another. Moreover, very recently, the
ABA Standing Committee on Ethics and Professional Responsibility has withdrawn Formal Ethics
Opinion 337 and replaced it with a new opinion holding that lawful secret recording, by itself, does
not violate either Rules 4.4 or 8.4 (b)(prohibiting dishonest or deceitful conduct.)SeeABA Formal
Opinion 01-422 (2001). The Committee concurs with the reasoning of the ABA Standing
Committee and, therefore, has added language to the Comment indicating that Rule 4.4 does not by
itself preclude lawful secret recording. Language has also been included in a new Comment to Rule
8.4 indicating that by itself secret taping is neither deceitful nor dishonest.