News

ABA Releases Ethics Opinion on Client File Materials

The American Bar Association today issued a new Formal Ethics Opinion addressing what file materials belong to client under the ABA Model Rules. The scenario examined for context details a client teminating sevices of a long-time lawyer. The opinion addresses the ethical duties of a lawyer when responding to a former client’s request for papers and property in the lawyer’s possession that are related to the representation. Read the opinion here.

read more »

Map Illustrates Potential Risk of Judicial Corruption

Last month the U.S. Supreme Court issued its ruling in Williams-Yulee v. The Florida Bar, upholding a Florida law that bans judges and judicial candidates from personally soliciting campaign donations. At issue was public confidence in the judiciary, given that lawyers and potential litigants are more likely than average citizens to donate to judges' campaigns. The Institute for Southern Studies created a map showing whether each U.S. state holds judicial elections and, if so, whether the state bans solicitation of campaign contributions by judges and to what degree.

read more »

Outside Money Making Impact in Tennessee Policy, Politics

In a series on outside money in Tennessee politics, the Tennessee News Network reports focuses on the Tennessee chapter of Americans for Prosperity. Nearly two years ago the group, associated with conservative billionaire brothers Charles and David Koch, planted roots in the Volunteer State and hired what is now a staff of six. While Gov. Haslam says its influence is exaggerated when it comes to Insure Tennessee and other legislation, others, like political consultant Tom Ingram, disagree, and say the threat of such spending is especially problematic for Republican legislators, who dominate the General Assembly. Last year, the group reported spending $1.1 million in "lobby-related" expenses in Tennessee, including money used to try to defeat three state Supreme Court justices, then-Rep. Dennis Roach, R-Rutledge, Rep. Gloria Johnson, D-Knoxville, and Common Core education standards.

read more »

Rutherford DA to Investigate Alleged Misconduct in Sheriff's Office

The Rutherford County Ethics Committee has asked the District Attorney General's Office to launch an investigation into potential conflicts of interest and misconduct by Sheriff Robert Arnold, involving questionable contracts, purchases and vendor services at the county jail, the Murfreesboro Post reports. Committee members also asked the DA to determine possible conflicts of interest regarding Chief Deputy Administrator Joe Russell and Detective Maj. Bill Sharp.

read more »

NCSC Relaunches Judicial Ethics Clearinghouse

The National Center for State Courts (NCSC) has taken over the Center for Judicial Ethics (CJE) following the dissolution of the American Judicature Society. The CJE, a national clearinghouse for information on judicial ethics and discipline, has a new online presence at ncsc.org/cje. NCSC also will take over the hosting of the National College on Judicial Conduct and Ethics. This year's event will take place Oct. 28-30 in Chicago.

read more »

Court Adopts 30 Day Solicitation Ban in Divorce Matters

The Tennessee Supreme Court today adopted an amendment to the ethics rules that will ban written solicitation of potential divorce clients within 30 days of the filing of a divorce. Rule 8, the amendment to RPC 7.3, is effective May 1. The TBA filed a comment voicing strong objections to the proposal. The comment also cited serious reservations about the constitutionality of the ban.

read more »

Webinar Looks at Florida Case Involving Judicial Fundraising

Justice at Stake will host an educational webinar on Jan. 15 at 1 p.m. Eastern Time on the case of Williams-Yulee v. The Florida Bar, which looks at whether states may place restrictions on how judges and judicial candidates raise money. The case will be argued before the U.S. Supreme Court on Jan. 20. Register online for the presentation “Judging Under the Influence: Will the Supreme Court Protect Fair Courts?”

read more »

Proposals Aim to Curb Lobbyist Influence on State AGs

Proposals to limit lobbyists’ influence over state attorneys general are being advanced on a number of fronts after a New York Times series found that lobbyists have tried to stop investigations or persuade attorneys general to hire contingency lawyers to sue on behalf of the state. In response, an executive committee of the National Association of Attorneys General voted to ban corporate sponsorship at an annual event focusing on emerging legal issues. Other efforts include those by University of Minnesota law professor Richard Painter, who is proposing a model ethics rule barring attorneys general from discussing investigations or official matters at fundraising events. A number of states also are looking at new laws requiring attorneys general to disclose political contributions and refrain from lobbying for a period of time after leaving office.

read more »

ABA Urges Court to Uphold Ban on Campaign Solicitation by Judicial Candidates

The ABA has filed an amicus brief urging the U.S. Supreme Court to uphold a Florida judicial conduct rule that bars judicial candidates from personally soliciting campaign funds. The issue in Williams-Yulee v. The Florida Bar is whether the state ban violates the First Amendment, the ABA Journal reports. The ABA argues that the ban on personal solicitations is narrowly tailored to promote the state’s compelling interest in a fair and impartial judiciary free from corruption and the appearance of corruption. The case is scheduled for argument on Jan. 20, according to a press release from the group.

read more »

ABA: Unethical for Prosecutors to Lend Letterheard to Debt Collectors

District attorneys should not contract out their letterhead to private debt collection companies, who then use that official letterhead to scare consumers into paying debts, according to a piece in the ABA Journal. The article says that ABA Formal Ethics Opinion 469 released today explains that this practice violates ABA Model Rules against lawyer conduct involving dishonesty or misrepresentation and aiding or assisting others in the unauthorized practice of law. The opinion says that the conduct involves misrepresentation because it conveys the impression that the prosecutor’s office has reviewed the facts of the individual debtor’s case and has concluded that a crime has been committed.

read more »

Rare Saturday CLE Offers Coffee, Cake and Ethics

Don't have time during the week to get your ethics hours? We have a solution for you! Grab a cup of coffee and join us at our ethics seminar tomorrow at 8:30 a.m. at the Tennessee Bar Center. This freshly brewed seminar provides you with three hours of ethics programming. Speakers will spill the beans on tips and processes to help you with your practice and make sure you meet all ethical obligations.  Visit TBA CLE for more information.

read more »

States Tackle Cloud Computing Rules

As states begin to adopt ethics rules requiring lawyers to be technologically competent and aware of the ethical implications of cloud computing, many practioners may be left wondering what it all means. The ABA Techshow presentation “Ethics 20/20, Security and Cloud Computing” walks users through recent rules changes, highlighting what state ethics authorities have ruled so far about lawyers' use of the cloud. The presentation explores what constitutes technological competence, and discusses how far a lawyer who stores data in the cloud must go to protect client confidences from inadvertent or unauthorized access or disclosure. The ABA Journal boils the presentation down to five key requirements.

read more »

Report: Special Interest Money Increasing in Judicial Elections

Spending by special interest groups continues to rise in judicial elections, accounting for 27 percent of all the money spent on the races in 2011 and 2012, according to a new report by a Justice at Stake partner organization. This is a sharp increase from the 16 percent seen in the 2003 and 2004 elections, which held the previous high in outside spending. The report has detailed information about judges who raised the most money and donors who gave the most, and it also identifies funding trends. As an example, the report says that during his campaign for chief justice of the Alabama Supreme Court in 2012, Roy Moore raised more out-of-state money than any other appeals court judge running in the country. Moore’s campaign took in $265,440 — or 41 percent of his total campaign contributions — from donors in 49 states, the District of Columbia, and Australia and Canada. Gavel Grab has more.

read more »

New Bill Would Upend State Judicial System

Legislation introduced this week by Senate Finance Committee Chair Randy McNally, R-Oak Ridge, would make sweeping changes to the way state courts are managed, judges are appointed and judicial discipline is administered, Gavel to Gavel reports. Specifically, the bill, SB 2322, would transfer the Administrative Office of the Courts (AOC) to the comptroller of the treasury; replace the Judicial Nominating Commission with a body chosen by the governor and legislative leaders that would suggest replacements for vacancies due to death or resignation; disband the Judicial Performance Evaluation Commission, forcing judges to stand for contested elections; and disband the Board of Judicial Conduct in favor of a new body comprised of appointees from the governor and legislative leaders. The bill also would make all AOC and Board of Professional Responsibility documents open to public inspection.

Finally, it would prohibit judges from extending filing deadlines in death penalty cases and assess fines on government-appointed lawyers who later are found to have provided ineffective counsel in capital cases. Use TBAImpact, TBA's new legislative tool, to see the status of the bill and let the General Assembly know how this proposal negatively impacts the administration of justice.

read more »

AOC Updates Commission, Board Rosters

The Tennessee Administrative Office of the Courts (AOC) has released revised rosters for the Advisory Commission on the Rules of Practice and Procedure and the Board of Professional Responsibility to update member contact information and to add a term limit imposed as a result of a recent rule change.

read more »

Sex Offender Seeks Admission to Kentucky Bar

Guy Padraic Hamilton-Smith graduated in the top third of his law school class at the University of Kentucky, but the state Supreme Court has blocked him from taking the bar exam because he is a registered sex offender. The court said the nature of the crime shows that Hamilton-Smith lacks the "requisite character and fitness" to be a lawyer, the Associated Press reports. But the court also rejected a move by the state licensing board to create a blanket rule barring admission of all registered sex offenders. Explaining that decision, the court said each applicant deserves the opportunity to make his or her case on an individualized basis. Hamilton-Smith says he plans to ask the court to reconsider his case. WRCB TV has the AP story.

read more »

AOC Makes Appointments for 2014

The Administrative Office of the Courts (AOC) recently released updated rosters for a variety of boards and commissions that fall under the jurisdiction of the Tennessee Supreme Court. New appointments will take effect Jan. 1, 2014. New members named to the Alternative Dispute Resolution Commission are Mary Ann Zaha and Virginia Story, who replace Glenna Ramer and Edward Silva. At the Board of Law Examiners, the court appointed Rhynette Hurd and Jeffrey Ward to replace Jimmie Carpenter Miller and Ricky Wilkins. New members named to the CLE Commission are Cynthia Hall and Sarah Creekmore Woodall, who replace Thomas Clifton Greenholtz and John Stanley Rogers. The court also named Ed Lancaster as chair. At the Board of Professional Responsibility, the court appointed Odell Horton to replace Clarence Halmon and named Russell Parkes as chair and Michael King as vice chair. New members named to the Tennessee Lawyers’ Fund For Client Protection are Rep. Vance Dennis, Jonathan Guthrie and Spencer Chinery, who replace Laura Keeton, Katherine Wilson Singleton and Mary Ann Zaha. Fund leaders include Chair Dawn Deaner, Vice Chair Marty McAfee and Secretary/Treasurer Kim Helper.

read more »

Ethics Roadshow on Eastern Swing

The TBA Ethics Roadshow heads east this week, making stops in Knoxville on Tuesday, Chattanooga on Wednesday, Cookville on Thursday and Johnson City on Friday. Ethics expert Brian Faughnan of Thomason, Hendrix, Harvey, Johnson & Mitchell PLLC this year talks about bad habits, struggles and misconstrued meanings – activities that have produced 50 ways that lawyers in Tennessee and elsewhere have lost their practice due to ethical violations. Don’t miss this engaging three-hour, dual credit CLE program.

read more »

BPR Issues Ethics Opinion on Guardian Ad Litem Roles

A formal ethics opinion released today by the Board of Professional Responsibility addresses the question of whether it is a conflict of interest for a lawyer who was appointed guardian ad litem to subsequently represent another interest in a matter regarding the child for whom the lawyer was appointed guardian ad litem. The opinion states in part that an attorney who was appointed guardian ad litem for a child may represent another party’s interest as long as it is consistent with the interests of the child and does not violate professional conduct rules. To insure that the subsequent representation of another interest is not inconsistent with the interest of the child, it would be advisable to secure consent or permission from the judge who had appointed the lawyer as GAL to represent the other party.

read more »

Rule 9 Changes Explained at CLE Friday

New disciplinary rules adopted by the Tennessee Supreme Court take effect Jan. 1. Don’t miss the opportunity to learn what the changes mean for you and your practice at a CLE this Friday in Nashville. Join Marisa Combs and Hugh Kendall, co-chairs of the TBA subcommittee that played a large role in putting together the “receiver attorney” provisions adopted by the court, and Brian S. Faughnan, chair of the TBA Ethics Committee, for a guided tour of what’s new, what’s unchanged and what may continue to be controversial going forward. The session starts at 12:30 p.m. and provides three dual hours of credit.

read more »

TCA: Attorney Not Entitled to BPR Communications

The Tennessee Court of Appeals has ruled that a Brentwood attorney cannot see state documents related to disciplinary proceedings against her, the Nashville Post reports. Family and divorce lawyer Connie Reguli had petitioned the Board of Professional Responsibility (BPR) for documents related to complaints filed against her in 2009 and 2010. Reguli had been granted access to the documents by Chancellor Ellen Lyle, but the BPR appealed the ruling. The appellate court reversed the decision saying the documents were not subject to a public records request because they were prepared after the disciplinary proceeding against Reguli began. Read more from the Nashville Post or download the opinion.

read more »

Get Details on New Disciplinary Rules

Don’t be caught unaware! New rules governing disciplinary enforcement of attorneys go into effect Jan.1. Learn how these new rules will impact your practice at a CLE on Nov. 15 in Nashville. The three-hour course offers dual credit and will cover issues such as a new ban on anonymous complaints against attorneys, new power for the courts to appoint receiver attorneys, new recusal standards for hearing panel members, and clarification about TLAP agreements, the role of practice monitors and the use of private discipline. Learn more or register now.

read more »

Prosecutor Defends Himself at Ethics Hearing

Paul Rush, assistant district attorney in the 10th Judicial District, defended himself yesterday against three ethics allegations brought by the Board of Professional Responsibility. The board contends that during a 2010 murder trial that resulted in a mistrial, Rush hid information that would have been helpful to the defense and questioned a witness about an issue he was ordered not to pursue. The board also alleges that he disobeyed the trial judge’s order to turn himself in for possible discipline after the case. Rush’s lawyer addressed each charge and summed up his client’s defense saying he made "good-faith" decisions and, if he made mistakes, they were not willful violations of ethics rules. The Times Free Press reports the hearing panel expects to issue a ruling in 10 days.

read more »

BPR Considers Action Against Assistant DA

The Board of Professional Responsibility will hear ethics charges this week against a prosecutor who triggered a mistrial against a triple-murder defendant. The case against Michael Younger crumbled when the presiding judge found that 10th Judicial District Assistant District Attorney Paul Rush withheld evidence from the defense and asked witnesses questions he had been told not to bring up. In July 2012, the board filed a petition charging Rush with ethical misconduct. Today and tomorrow, a panel of three attorneys will hear testimony and view evidence. The review takes place as other investigations are looking at activities in the 10th Judicial District and its DA, Steve Bebb. The Chattanooga Times Free Press reports.

read more »

Changes to Disciplinary Rule Detailed

The Tennessee Supreme Court on Friday adopted a comprehensive amendment overhauling the rules governing disciplinary enforcement for attorneys. As the TBA stated in its comment filed in February in response to the court’s original proposal, the changes represent “a vast improvement of the organization, architecture and clarity” of the disciplinary process. The new rule, however, does not adopt a number of provisions the TBA advocated. The court rejected the TBA’s call for use of the same heightened standard of proof (clear and convincing evidence) that is used by 40 other states as the requirement for disciplining attorneys, and it did not move to limit ex parte communications between the Board of Professional Responsibility and potential hearing panel members. Learn more about the amended Rule 9 here, and at a CLE set for Nov. 15 that will provide a guided tour of what’s new, what’s unchanged and what may continue to be controversial going forward.

read more »