Rule and Comment, the Committee generally describes the comments received concerning the

Proposed Rule, the Committee’s response to these comments, and any changes made to the

Proposed Rule and Comment.3

As Exhibit B reflects, the following Proposed Rules contain substantive changes:

Scope, Paragraph 4
Rule 1.0(b), (h)
Rule 1.1, Comment [3]
Rule 1.5(a)
Rule 1.6(b)(3) and Comment [17]
Rule 1.7, Comments [15], [18], [20], and [22]
Rule 1.8(i)
Rule 1.10(a) and Comments [6] and [7]
Rule 1.14, Comments [6] and [7]
Rule 1.15(a)(1), (c)
Rule 2.2(b) and Comments [1], [2], [4], [5], [7]
Rule 2.4(e)(2) and Comments [9], [12], and [13]
Rule 3.3
Rule 3.4(f), (g)
Rule 3.8(d), (f)(4), (g) and Comments [1] and [5]
Rule 3.9
Rule 4.1(b), (c) and Comments [3], [4] and [5]
Rule 4.2, Comment [6]
Rule 4.3 and Comments [1] and [2]
Rule 4.4, Comment
Rule 5.1(a), (c)(2)(i) and Comments [1] and [3]
Rule 5.3(a), (c)(2)
Rule 5.5(b)(1)
Rule 6.1, Comment [11]
Rule 7.1(c), (d) and Comment [1]
Rule 7.3(a), (b) and Comment [2]
Rule 7.5, Comment [1]
Rule 7.6(b)
Rule 8.4, Comments [4] and [6]
Transition Rule, Sections (b), (c)

V. Particular Issues for Decision by the Court

Over the course of the last six years, and particularly over the last year, the Committee has

3Though these changes are not redlined, the Committee has also updated the first two
portions of the Committee Notes following each Proposed Rule and Comment, which compare the
Proposed Rule to existing Tennessee ethics rules and to the ABA Model Rules of Professional
Conduct, to reflect changes made in the Proposed Rules.

5

engaged in an intense substantive conversation with virtually every organized segment of

Tennessee’s bench, bar, and public concerning the substantive rules that do, or should, govern

lawyer ethics in Tennessee.

While this Court is, of course, the final arbiter concerning which of the many issues

presented by the TBA’s Petition merit its closest scrutiny, the Committee respectfully submits that

there are a quite limited number of significant issues on which the bench, bar and public of

Tennessee may not have reached complete consensus concerning these Proposed Rules and on

which this Court should most closely focus its attention. The Committee believes that these issues

are as follows:

Rule 1.6(b) – permitted disclosure of confidential information
Rule 1.10(c) – screening of laterally-moving lawyers
Rule 2.4(e)(2) – role of ADR neutrals in drafting settlement agreements
Rule 3.2 – duty to expedite litigation
Rule 3.3 – candor to tribunal
Rule 3.6(c) – extrajudicial speech in response to prior prejudicial publicity
Rules 4.4 and 8.4 – surreptitious taping
Rule 7.4 – disclaimers of lack of certification of specialization
Rule 7.5 – trade names
Rule 7.6 – intermediary or lawyer-referral organizations
Rule 8.3 – scope of lawyer duty to report lawyer misconduct
Rule 8.4 – authority of prosecutors to engage in investigatory conduct involving
deceit; biased speech or conduct

VI. Response to Memphis Bar Association Comment Concerning Adoption
of Its Guidelines for Professional Courtesy and Conductas Disciplinary Rules

In response to this Court’s call for comments, the Memphis Bar Association submitted a

number of thoughtful comments on particular Proposed Rules and Comments, each of which was

considered by the Committee and the Committee’s response to which is reflected in the attachments

to this Memorandum. The Memphis Bar also proposed, as a part of its comments,that this Court

enact as disciplinary rules (and presumably as part of the Proposed Rules) the Memphis Bar’s

Guidelines for Professional Courtesy and Conduct. Because the format of the Committee’s

submission does not easily allow a response not addressing a particular Proposed Rule, the

Committee will offer its response here.

6

Specifically, the Committee considered this proposal carefully and respectfully opposes this

suggestion. The Committee understands and heartily supports the Memphis Bar’s leadership

efforts in creating and promoting its Guidelines for Professional Courtesy and Conduct, which

doubtless have had a salutary effect on the attitudes of the bench and bar in the Memphis

community. The Committee believes, however, that enacting this body of Guidelinesas

disciplinary rules, for which lawyers may be disciplined or even lose their law license, would be

most inadvisable.

First and most important, these Guidelineswere written largely as aspirational guidance for

lawyers, in an effort to maintain a level of professionalism and civility properly cherished by the

bench and bar. Indeed, a significant number of the Guidelinesare specifically not written as

mandatory rules, but with aspirational, “A lawyer should . . . ,” language.4Thus, a significant

portion of the individual Guidelinesmerely restate general principles that are much more

specifically addressed (and properly so) in the existing Disciplinary Rules and in the Proposed

Rules.5

Further, because of the aspirational nature of their origin, the Guidelineshave not been

drafted with the precision or clarity that would be required for rules that are to be used to decide

whether a lawyer should be disciplined or lose her license to practice law. Moreover, they often

simply do not provide the level of guidance necessary to allow conscientious lawyers to conform

4For example, GuidelineII.2. provides that “[a] lawyer should consult opposing counsel
in an effort to resolve matters by agreement before filing motions or requesting hearings.”Thus,
this particular Guidelinecould not practically be enforced as a disciplinary rule. To the extent that
the point would be to change “should” to “shall,” this would effectively work a change in the
rules of procedure, which should be done through another method.

5CompareGuidelinesI.4(a) (“A lawyer should do all that is necessary to ensure that
clients, the public, and other lawyers respect the judicial system. To this end, a lawyer should:(a)
never knowingly misstate the fact or law, regardless of any pressure to do so....” ), I.9. (“A lawyer
should never deceive the court or another lawyer.”), withDR 7-102(A)(5); Proposed Rules
3.3(a)(1), 4.1(a), 8.4(c).

7

their conduct to a disciplinary rule.6

Thus, the TBA respectfully opposes this suggestion by the Memphis Bar Association.

VII. Other Rule Changes Possibly Necessitated by Adoption of Proposed Rules

As the Court is doubtless aware, because the ethics rules are integrally related to other rules,

the adoption of the TBA’s Proposed Rules will likely necessitate amendments to several other rules

of this Court.

While there may be other rules implicated by the changes the TBA proposes, the TBA is

aware of two that will likely require attention by this Court and other appropriate adjunct bodies or

organizations. First, in Proposed Rule 1.15, the TBA proposes the adoption of an ethics rule

governing lawyer handling of the property of clients and others, including the requirement of the

use of trust accounts. The TBA concluded, however, that the rules governing Tennessee’s Interest

on Lawyers’ Trust Accounts ("IOLTA") program, which currently reside in the Disciplinary Rules,

would more properly be located in another rule. Thus, should Proposed Rule 1.15 be adopted,

these rules would have to be revised and relocated in another Supreme Court Rule. The Tennessee

Bar Foundation is aware of the implications of the adoption of Proposed Rule 1.15, and the TBA

understands that the Foundation will address the Court on this issue at the appropriate time.

Second, should this Court adopt Proposed Rule 2.4, which addresses lawyers serving as

dispute resolution neutrals, both under Tennessee Supreme Court Rule 31 and otherwise, there

would be slightly differing standards in Rule 2.4 and Rule 31, which the Committee believes should

be harmonized. The TBA understands that this Court’s Alternative Dispute Resolution

Commission is aware of this implication of the adoption of Proposed 2.4.

In addition, if this Court adopts Proposed Rule 7.6 concerning intermediary organizations, it

will be necessary for this Court to either itself adopt, or delegate to the Board of Professional

6

See, e.g., GuidelineI.16. (“A lawyer should always be punctual.”).

8

Responsibility the authority to adopt, implementing regulations regulating such organizations.

VIII. Conclusion

Based on this memorandum, its earlier memorandum, and the extensive supporting materials

submitted in this matter, the TBA respectfully urges this Court to move with expedition to consider

and adopt and enact the Proposed Tennessee Rules of Professional Conduct.

__________________________________________
GAIL VAUGHN ASHWORTH
General Counsel, Tennessee Bar Association
Gideon & Wiseman
414 Union Street, Suite 1900
Nashville, Tennessee 37219-1782
(615) 254-0400
B.P.R. No. 10656

__________________________________________
CHARLES J. GEARHISER
President, Tennessee Bar Association
Gearhiser Peters Lockaby & Tallant
320 McCallie Ave
Chattanooga, Tennessee 37402-2007
(423) 756-5171
B.P.R. No. 1817

__________________________________________
ALLAN F. RAMSAUR
Executive Director, Tennessee Bar Association
Tennessee Bar Center
221 Fourth Ave. North, Suite 400
Nashville, Tennessee 37205
(615) 383-7421
B.P.R. No. 5764

__________________________________________

9

LUCIAN T. PERA
Chair, Tennessee Bar Association
Standing Committee on Ethics
and Professional Responsibility
Armstrong Allen, PLLC
Brinkley Plaza
80 Monroe Avenue, Suite 700
Memphis, Tennessee 38103-2467
(901) 524-4948
B.P.R. No. 11641

CERTIFICATE OF SERVICE

The undersigned certifies that a true and correct copy of the foregoing will be served, within
7 days of the filing of this document, upon the individuals and organizations identified in Exhibit F
to the petition by regular U.S. Mail, postage prepaid.

_________________________________________
LUCIAN T. PERA

K:\LTP\Bar\CteReport\TBARPCSuppPet.wpd

10