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PROPOSED RULE 8.2
JUDICIAL AND LEGAL OFFICIALS
as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer or
public legal officer, or of a candidate for election or appointment to judicial or legal office.
Code of Judicial Conduct.
[1]Assessments by lawyers are relied on in evaluating the professional or personal fitness
of persons being considered for election or appointment to judicial office and to public legal offices,
such as attorney general, prosecuting attorney and public defender. Expressing honest and candid
opinions on such matters contributes to improving the administration of justice. Conversely, false
statements by a lawyer can unfairly undermine public confidence in the administration of justice.
[2]When a lawyer seeks judicial office, the lawyer should be bound by applicable
limitations on political activity.
[3] To maintain the fair and independent administration of justice, lawyers are encouraged to
continue traditional efforts to defend judges and courts unjustly criticized and to responsibly speak
out when necessary to prevent or rectify injustice or to promote needed improvements in the judicial
system.
See Rule 1.0(f)
COMMITTEE NOTES
Paragraph (a):DR 8-102(A) provides that a lawyer "shall not knowingly make false
statements of fact concerning the qualifications of a candidate for election or appointment to a
judicial office." DR 8-102(B) provided that a lawyer "shall not knowingly make false accusations
against a judge or other adjudicatory officer."The Proposed Rule also prohibits making a
statement with reckless disregard for its truth or falsity.
Paragraph (b) is substantively the same as DR 8-103.
Made
The Board of Professional Responsibility has asked the Court to prohibit lawyers from
making “fraudulent” as well as false statements about judges. The Committee disagrees with this
recommendation because it believes that political speech about public officials, including judges,
cannot constitutionally be banned unless it is false or made with reckless disregard as to the truth.
Given the uncertainties associated with the determination of when a statement is fraudulent, as
opposed to false, the Committee believes that the broader prohibition would have an
unconstitutional chilling effect on lawyer political speech. The Committee does not condone the
behavior of a lawyer who makes misleading statements about a judge, but believes that more speech,
rather than a broader ban on speech, is the proper remedy.
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)
DR 1-103(A) provides that "[a] lawyer possessing unprivileged knowledge of a violation of
[a Disciplinary Rule] shall report such knowledge to . . .tribunal or other authority empowered to
investigate or act upon such violation."The Proposed Rule only requires that a lawyer report
misconduct that raises a substantial question about the lawyer’s honesty, trustworthiness or fitness
to practice law. While DR 1-103(A) only requires reporting if the lawyer possesses unprivileged
information, Paragraph (b) of the Proposed Rule provides more generally that a lawyer is not
required to report information relating to a client’s representation that is protected by Rule 1.6. The
principle and basic effect is the same. There is no counterpart in the current Tennessee rule to the
exemption from the reporting requirement for lawyers who are members of a lawyer assistance
program, but such an exemption has been recognized by Formal Ethics opinions of the Board of
Professional Responsibility.
The Proposed Rule is identical to ABA Model Rule 8.3, except for the specific reference to
the Disciplinary Counsels of the Board of Professional Responsibility and the Court of the
Judiciary, and to lawyer assistance programs approved by the Supreme Court of Tennessee or the
Board of Professional Responsibility.
Made
The Board of Professional Responsibility has asked the Court to delete Paragraph (b) and
to modify Paragraph (a) so that a lawyer would only have to report a violation of the Rules of
Professional Conduct if the lawyer has “unprivileged” knowledge that another lawyer has
committed a “clear” violation. The Committee believes this change is both unnecessary and
undesirable. It is unnecessary because Paragraph (b) makes it clear that a lawyer has no duty to
reveal information relating to a representation that is protected by Rule 1.6. This has basically the
same effect as restricting the duty to report misconduct to situations in which a lawyer has
unprivileged information, because the phrase “unprivileged information” has been understood to
include both “confidences and secrets” under the Code and thus should be interpreted under the
Rules to include all information relating to a representation. Similarly, if it is not “clear” that a
rule has been violated, a lawyer cannot be said to “know” that the rule has been violated. The
Proposed Rules and is inconsistent with the Committee’s goal of promoting uniformity among
state ethics rules. Also, the deletion of Paragraph (b) would eliminate the exemption from the
reporting requirement for lawyers who are members of a lawyer assistance program. Although
such an exemption has been recognized in Formal Ethics Opinions, such an important matter needs
to be addressed in the Rules.
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