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
181-186
187-192
193-198
199-204
205-210
211-216
217-222
223-228
229
Office of Disciplinary Counsel.
Intermediary Organizations
business or activities refers its customers, members, or beneficiaries to lawyers or pays for
or otherwise provides legal services to the organization's customers, members or
beneficiaries in matters for which the organization does not bear ultimate responsibility.
which the lawyer is employed or which is owned or controlled by the lawyer, a law
firm with which the lawyer is associated, or a lawyer with whom the lawyer is
associated in a firm; or
organization by which the lawyer is employed; or
activities of an intermediary organization which the lawyer knows or should know is
not a qualified intermediary organization.
reasonably to ascertain that the intermediary organization with which he or she will
participate is a qualified intermediary organization. An intermediary organization is a
qualified intermediary organization if
practice of law; and
who are not employees of the organization, the organization permits the participation
of not less than four lawyers licensed to practice in Tennessee, each of whom
maintains an office in the geographical area served by the intermediary organization;
provided, however, that the organization may require such participating lawyers to
and experience; and
Rules; and
nature of its activities as a intermediary organization; and
Rules if
members, beneficiaries or customers about specific lawyers who are
cooperating with the intermediary organization; or
in need of legal services with respect to a particular matter; and
customers to lawyers upon a preliminary determination by the organization that the
client's claims or defenses have merit or economic value; and
whom the organization refers its members, beneficiaries or customers are properly
licensed and
competent to handle the matters referred to them; and
by participating lawyers to its members, beneficiaries or customers, or the means to
be used to accomplish those objectives, if such limitation would materially impair the
lawyer's ability to provide the client with the quality of representation that would be
provided to a client who had not been referred to the lawyer by the organization; and
the event that a lawyer to whom a matter is referred cannot undertake or continue the
representation in compliance with these rules; and
member, beneficiary, or customer of the intermediary organization
will establish an attorney-client relationship with the member, beneficiary or
customer and agrees that it will not interfere with the lawyer's representation of the
client, request or require that the lawyer reveal information protected by Rule 1.6, or
request or require that the lawyer take any other action prohibited by these rules; and
referred and promptly forwards a report of any such complaint to the Office of
Disciplinary Counsel; and
fromaccepting such referrals and, if it is organized for profit, does not permit its
lawyer-employees to represent clients in violation of paragraph (B)(2); and
and complied with all reporting requirements imposed by the Board for the purpose
of enabling lawyers to ascertain from materials on file with the Board whether the
organization is a qualified intermediary organization.
of a qualified intermediary organization that is not owned or controlled by the lawyer, a law
firm with which the lawyer is associated, or a lawyer with whom the lawyer is associated in a
firm as follows:
Rules 7.1 through 7.5; and
conform to the requirements of Rule 5.4(A) and the lawyer does not charge a client
who is referred to the lawyer a fee in excess of the fee that the client would have
been charged had there not been a referral; and
organization; and
consultation with the lawyer; and
charge a client referred to the lawyer by the organization a fee in excess of an
amount specified by the organization or to be determined in accordance with a
method prescribed by the organization; and
provide legal services to its members, beneficiaries or customers.
1. For there to be equal access to justice, there must be equal access to lawyers.
there to be equal access to lawyers, potential clients must be able to find lawyers and have the
economic resources needed to pay the lawyers a reasonable fee for their services. In effort to assist
prospective clients to find and be able to retain competent lawyers, lawyers and nonlawyers alike
have formed a variety of organizations designed to bring clients andlawyers together and to
provide a vehicle through which the lawyers can be fairly compensated and the clients can afford the
services they need. Some of these intermediary organizations operate as charities. Others operate
as businesses. Because they ultimately bear the liability of their insureds, liability insurance
companies which pay for or otherwise provide lawyers to defend their insureds are not intermediary
organizations within the meaning of this Rule.
2. This rule reflects a judgment that a lawyer should be permitted to participate in
activities of an intermediary organization to the extent specified in paragraph (D) so long as the
intermediary organization is not controlled by the lawyer (or the lawyer’s firm or a lawyer with
whom the lawyer is associated in a firm), is not engaged in the unauthorized practice of law, or fails
to meet the standards set forth in paragraph (C) for qualified intermediary organizations.
3. The qualifications set forth in paragraph (C) are intended to protect the clients
who are represented by lawyers to whom they have been referred or assigned by an
intermediary organization. It is the responsibility of each lawyer who would participate in
the activities of an intermediary organization to act reasonably to ascertain that the
organization meets the standards set forth in paragraph (C). Normally it will be sufficient
Professional Responsibility and to review the materials the organization has filed with the
Board in compliance with the Board’s reporting requirements. If, however, by virtue of his
or her participation in the activities of an intermediary organization, a lawyer comes to know
that the organization does not meet the standards set forth in paragraph (C), the lawyer shall
terminate his or her participation in the activities of the organization and should so advise
the Board of Professional Responsibility.
Made
1. The Committee has modified Paragraph (b)(1)(iii) to replace the reference to “marketing
activities prohibited by Rules 7.1, 7.3(b) and 7.3(c)” with a reference to “marketing activities that
are false or misleading or otherwise prohibited by the Board of Professional Responsibility.”The
Committee concluded that some restrictions that are appropriate with respect to direct marketing by
a lawyer or law firm may not be appropriate when applied to the marketing activities of an
intermediary organization that not owned or controlled by the lawyer. Thus, the only specific
restriction mentioned in the Rule is the obvious prohibition against false or misleading marketing.
Beyond that, however, the Committee believes that the Court should delegate to the Board of
Professional Responsibility the authority to regulate the marketing activities intermediary
organizations. In anticipation that the Board would promulgate regulations governing the marketing
activities of registered intermediary organization, the Committee has revised the Rule to prohibit a
lawyer from accepting referrals or payment of fees from an intermediary organization if the lawyer
knows or reasonably should know the organization is engaging in prohibited marketing activities.
2. The Committee has modified Paragraph (b)(1)(iv) to refer more broadly to
“requirements,” rather than “reporting requirements.”Because the Committee anticipates that
registered intermediary organizations may be subject to requirements other than a reporting
requirement, the reference to reporting requirements was too narrow.
3. The Board of Professional Responsibility has recommended that the criteria for
intermediary organizations be included in Rule 7.6. The Committee disagrees because it believes
that the Rules of Professional Conduct should only include Rules governing the conduct of
lawyers. Indeed, the Committee’s primary objection to the current rule is that it attempts to use the
ethics rules to indirectly regulate the conduct of intermediary organizations.
4. The Committee believes that the registration requirements for intermediary organizations
should be in a separate rule that will be separately enforced by the Board of Professional
Responsibility or such other agency as the Court deems appropriate. While the Committee would
be honored to work with the Court, the Board of Professional Responsibility, or the Office of
Disciplinary Counsel to develop appropriate standards for intermediary organizations and establish
an effective registration and reporting system, our primary recommendation is that the Court should
separate the regulation of lawyer conduct from the regulation ofintermediary organizations. Thus,
we cannot support the Board’s recommendation that the standards for intermediary organizations
be added to Rule 7.6.
CHAPTER 8
MAINTAINING THE INTEGRITY OF THE PROFESSION
PROPOSED RULE 8.1
BAR ADMISSION AND DISCIPLINARY MATTERS
in connection with a disciplinary matter, shall not:
the person to have arisen in the matter, or knowingly fail to respond to a lawful demand for
information from an admissions or disciplinary authority, except that this Rule does not
require disclosure of information otherwise protected by Rule 1.6.
[1] The duty imposed by this Rule extends to persons seeking admission to the bar as well
as to lawyers. Hence, if a person makes a material false statement in connection with an application
for admission, it may be the basis for subsequent disciplinary action if the person is admitted, and
in any event may be relevant in a subsequent admission application. The duty imposed by this Rule
applies to a lawyer's own admission or discipline as well as that of others. Thus, it is a separate
professional offense for a lawyer to knowingly make a misrepresentation or omission in connection
with a disciplinary investigation of the lawyer's own conduct. This Rule also requires affirmative
clarification of any misunderstanding on the part of the admissions or disciplinary authority of
which the person involved becomes aware.
[2] This Rule is subject to the provisions of the Fifth Amendment to the United States
Constitution and Article I, Section 9, of the Constitution of Tennessee. A person relying on such a
provision in response to a question, however, should do so openly and not use the right of non-
disclosure as a justification for failure to comply with this Rule.
[3]A lawyer representing an applicant for admission to the bar, or representing a lawyer
who is the subject of a disciplinary inquiry or proceeding, is governed by the rules applicable to the
client-lawyer relationship.
See Rule 1.0(f)
“Material”See Rule 1.0(g)
DR 1-101(A) provides that a lawyer "is subject to discipline for making a materially false
statement in, or deliberately failing to disclose a material fact requested in connection with, an
application for admission to the bar."DR 1-101(B) provides that a lawyer "shall not further the
respect to character, education, or other relevant attribute."
The Committee deleted language in the Preliminary Draft that provided that the Rule 1.6
confidentiality obligation would only trump the Rule 8.1 disclosure obligation in circumstances in
which the information was related to the lawyer’s representation of a bar applicant or a lawyer
subject to the disciplinary proceeding. Now, Rule 1.6 trumps Rule 8.1 in all cases. The change
conforms the Proposed Rule to ABA Model Rule 8.1 and Proposed Rule 8.3.
Made
The Board of Professional has recommended that the Court add to Rule 8.1 the prohibition
in DR 1-101(B) against furthering the application for admission of the bar of another person
known by the lawyer to be unqualified in respect to character, education, or other relevant attributes.
The Committee opposes this recommendation because it forces each lawyer to make a decision that
should be made collectively by the Board of Law Examiners. The Committeebelieves that there are
simply too many situations in which one reasonable lawyer will conclude with certainty that an
applicant is unfit for admission and another equally reasonable lawyer will conclude with equal
certainty to the contrary. The Committee believes that the Board of Law Examiners can adequately
protect the public if the Rules require that a lawyer who recommends an applicant for admission be
truthful,respond completely and truthfully to inquiries from the Board, and take the initiative to
correct any misapprehension that the lawyer knows to have arisen about the applicant’s credentials.