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
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211-216
217-222
223-228
229
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)
Comparison To Current Tennessee Ethics Rules
Paragraph (a):DR 1-102(A) (1) and (2) provide that a lawyer shall not “[v]iolate a
Disciplinary Rule” or “[c]ircumvent a Disciplinary Rule through actions of another.”
Paragraph (b):DR 1-102(A)(3) provides that a lawyer shall not “[e]ngage in illegal
conduct involving moral turpitude.”
Paragraph (e): Paragraph (e) is similar to DR 9-101(C), but the proposed rule also prohibits
attempts to exert improper influence.
Paragraph (f):There is no direct counterpart to paragraph (f) in Rule 8. EC 7-34 states in
part that "[a] lawyer . . . is never justified in making a gift or a loan to a [judicial officer] except as
permitted by . . . the Code of Judicial Conduct."EC 9-1 stated that a lawyer "should promote
public confidence in our [legal] system and in the legal profession."
Paragraph (g):Paragraph (g) is a proposed modification of DR 1-102(7) that was added to
Rule 8 by the Supreme Court on October 9, 1997. In the interest of consistency in terminology, the
proposal prohibits lawyers from knowingly, rather than wilfully, refusing to comply with a court
order. Paragraph (g) also differs from DR1-1025(7) in that it exempts from the prohibition two
situations in which the lawyer’s refusal does not evidence disrespect for the court’s order.
Paragraph (a) is identical to ABA Model Rule 8.4(a).
Paragraph (c) is identical to ABA Model Rule 8.4(c).
Paragraph (e): Paragraph (e) is similar to BA Model Rule 8.4(e), but the Proposed Rule
also specifically prohibits attempts to exert improper influence.
The Committee added a new paragraph (g) and corresponding Comment [5] to reflect the
Supreme Court’s amendment of DR 1-102 to prohibit lawyers from wilfully disobeying court
orders in proceedings in which the lawyer is a party.
The Committee added Comment [2] alerting lawyers to the fact that biased or prejudiced
speech and conduct in connection with the representation of a client may constitute conduct
prejudicial to the administration of justice. A similar Comment was added to the ABA Model Rules
in 1998.
Made
1. The Committee added a new Comment [4] the first two sentences of which respond
to a concern of the Tennessee District Attorneys General Conference about a decision in Oregon
that interpreted Paragraph (c) as an absolute prohibition against deceitful or dishonest conduct to
which is there was no exception for prosecutors engaged in law enforcement investigations that
necessarily involved deceiving the suspects under investigation. See In re Gatti, 330 Ore. 517, 8
P.3d 966 (2000). Following the approach employed with respect to a prosecutorial
Rule 4.2, Comment [7], the Comment indicates that
prosecutors may be authorized by other law to engage in such investigative deceit.
2. The Committee added a new Comment [4], the last sentence of which, in conjunction with
a new Comment to Rule 4.4, implements the Committee’s recommendation that secret, but
otherwise lawful, recording of conversations or other conduct be permitted, reversing the holding in
Formal Ethics Opinions 81-F-14 and 81-F-14(a). The new sentence indicates that the secret
recording is not, by itself, deceitful or dishonest. As indicated in the Committee Notes to Rule 4.4,
the ABA Standing Committee on Ethics and Professional Responsibility has overruledthe ABA
Formal Ethics Opinion that was approved by the Board of Professional Responsibility in 1981.
SeeABA Formal Ethics Opinion 01-422 (Electronic Recording by Lawyers Without the
Knowledge of All Participants).
3. While in no way condoning discriminatory speech, the Memphis Bar Association has
recommended the deletion of Comment [2] because of a concern that it is too difficult to identify
what type of speech or conduct manifests bias or prejudice and, in addition whether such a
manifestation is prejudicial to the administration of justice. On the other hand, the Committee to
Implement the Recommendations of the Racial and Ethnic Fairness Commission and the Gender
Fairness Commission has recommended that Paragraph (d) be modified to specify that conduct
prejudicial to the administration of justice includes the knowing manifestation by a lawyer, by
words or conduct in the course of representing a client, of a bias or prejudice based on race, sex,
religion, national origin, disability, age, sexual orientation, or socio-economic status. After
consideration of these competing proposals, the Committee continues to believe that this important
issue is best addressed by way of a Comment in which biased speech is specifically mentioned as
conduct that may be, but is not by definition,prejudicial to the administration of justice. This
affords the Board of Professional Responsibility and this Court the leeway to impose discipline
when it can be constitutionally imposed because there is a substantial likelihood that the speech in
question will have a material prejudicial effect on the administration of justice. Of equal importance,
however, is that Comment [2] permits the Court to take into account all the circumstances in
determining, on a case-by-case basis, whether the manifestation of bias had such a prejudicial effect.
This is important because it affords the Court the flexibility to construe the rule so that its
application will be consistent with the First Amendment of the United States Constitution and
Article I, Section 19, of the Tennessee Constitution. Given such a flexible approach, the Committee
believes that it is unnecessary to specify in the Comment that a trial judge’s finding that peremptory
challenges were exercised on a discriminatory basis is not, by itself, conduct prejudicial to the
administration of justice.
4. The Board of Professional Responsibility has requested the addition of a new paragraph
to Rule 3.5 that would prohibit lawyers from making loans to judges or members of their family.
The Committee believes that the Board’s proposal is both under-inclusive (in that it only prohibits
loans, and not gifts, bequests and valuable favors) and over-inclusive (in that it prohibits loans in
circumstances in which a judge would be permitted to accept the loan by the Code of Judicial
Conduct). The Committee also believes that any rules restricting lawyers making loans to judges
ought to conform to the rules governing acceptance of such loans by judges. The Committee,
however,agreeswith the Board of Professional Responsibility that lawyers should be specifically
alerted to the likely impropriety of making a loans to a judge before whom the lawyer is appearing
or likely to appear. Thus, the Committee recommends that a Comment be added to Rule 8.4 that
specifically mentions making a loan to a judge as an example of conduct that might assist a judge in
a violation of the Code of Judicial Conduct.
5. The Board of Professional Responsibility has recommended that Paragraph (b) be
subdivided into two separate paragraphs. The first would make it misconduct for a lawyer to
commit any felony. The second would make it misconduct for a lawyer to commit a misdemeanor
that reflects adversely on the lawyer’s fitness to practice law. The Committee persists in its view
that lawyers should only be subject to discipline for the commission of criminal acts, whether
characterized as felony or misdemeanor, that reflect adversely on their fitness to practice law. Just
as there are felonies that would not involve “moral turpitude” under DR 1-102(A)(3), the
Committee believes that the inadvertent commission of a strict liability felony or the commission of
a felony premised on negligent conduct may not reflect adversely on the lawyer’s fitness to practice
law. The Committee believes that disciplinary authorities can and should be required to
differentiate, on a case-by-case basis, between those felonies that reflect adversely on a lawyer’s
fitness to practice law and those that do not.
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
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.
The Committee deleted proposed Paragraph (B)(2)(iii) and Comment [6] that read as
follows:
if lawyers who are licensed in different jurisdictions are jointly
representing a client in a matter, the rules to be applied to each lawyer with respect to
his or her conduct in connection with the representation shall be the rules applicable
to the lawyer who is licensed to practice law in the jurisdiction in which the conduct
occurs, provided, however, that if the conduct clearly has its predominant effect in
another jurisdiction in which one of the lawyers is licensed to practice, the rules of
that jurisdiction shall be applied.
It is increasingly common for lawyers to be part of a “team” of
lawyers who work together to represent a client. The team may consist of lawyers
who are associated together in a firm, but a client may also be served by a team of
lawyers who are not associated with each other in a firm. When all the lawyers on
such a team are licensed in the same jurisdiction, or in an identically matched set of
jurisdictions, an application of Paragraphs (B)(2)(i) and (ii) would enable the
lawyers on the team to identify a single jurisdiction whose rules of professional
conduct would be applicable to all lawyers on the team. Where, however, there is
not complete identity of licensure, an application of Paragraphs (B)(2)(i) and (ii)
could lead to a determination that different rules of professional conduct were
applicable to different members of the team. The lawyers might then find themselves
in the unenviable position in which one lawyer on the team was prohibited from
doing something that another lawyer on the team was required to do. One state, for
example, might prohibit its lawyers from revealing client fraud while another state
might require such disclosure. Paragraph (B)(2)(c) represents a judgment that it is
undesirable for lawyers who are jointly representing a client as part of a team to have
conflicting or inconsistent professional responsibilities. It permits the team to act as
an unit in accordance with a single set of professional rules -- the rules applicable to
the lawyer licensed in the jurisdiction in which the conduct either occurs or has its
predominant effect.
Because the choice of disciplinary law is a relatively new issue and one in which uniformity
among the various jurisdictions is particularly important, the Committee concluded that it would
unwise to depart from the ABA Model Rule and try to resolve at this time the choice of disciplinary
rule to be applied when lawyers who are licensed in different jurisdictions are jointly representing a
single client in a multi-state business transaction.
Made