1-6
7-12
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31-36
37-42
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55-60
61-66
67-72
73-78
79-84
85-90
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97-102
103-108
109-114
115-120
121-126
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133-138
139-144
145-150
151-156
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163-168
169-174
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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 corresponding provisions of state constitutions
Article I, Section 9, of the
Constitution of Tennessee. A person relying on such a provision in response to a question,
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.
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. A report should be made to the bar disciplinary agency unless some other agency, such as a
[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
between the impaired lawyer or judge and the recipient of the information were that of a client and a
lawyer. On the other hand, a lawyer who receives such information would nevertheless be required
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