News

Ethics Roadshow Sessions Available Online

If you missed the six-city tour of this year’s Ethics Roadshow, the videos are now available online. Use your TBA prepaid credits to reduce the cost or to register at no cost. This year’s program focuses on technology, artificial intelligence and other hot topics in the world of lawyer ethics.

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Police Chief: DA Spokesman Released Info on Rape Victim

Nashville Police Chief Steve Anderson publicly rebuked Ken Whitehouse, a spokesman in the district attorney’s office, on Monday, saying he committed an “unconscionable” act that was a “violation of trust and human dignity” when he released the name and personal information of a rape victim to the media. Anderson says that Whitehouse sent an incident report that included the names of the alleged victim and suspect to a local television station. The district attorney’s office said the information was mistakenly released. Whitehouse will retain his job, but Anderson says he has blocked him from further access to confidential police files, the Tennessean reports.

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ABA Opinion: Protect Confidentiality When Ending Representation

The American Bar Association (ABA) Standing Committee on Ethics and Professional Responsibility has issued Formal Opinion 476, which addresses confidentiality issues that arise when a lawyer moves to withdraw from a civil case because of a client’s failure to pay legal fees. The opinion recommends a process for the lawyer and the trial judge to follow and how much, if any, confidential client information should be disclosed in a motion to withdraw. The opinion notes that sticky situations can arise, and that “this requires cooperation between lawyers and judges.” Read more about the opinion.

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Online CLE Explores Trust Account Handbook

A two-hour online ethics CLE offers a tour of Tennessee Attorney’s Trust Account Handbook. The course covers best practices for day-to-day reconciliation, recordkeeping and how to avoid errors that often lead to ethical violations.

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Cope to Pay $200,000 Fine for Insider Trader

Former Rutherford County attorney Jim Cope will pay a $200,000 fine and serve two years on probation, the first nine months at home, after pleading guilty to insider trading as a Pinnacle bank director. U.S. District Court Judge Aleta Trauger handed down the sentence Friday, nearly quadrupling a fine of $55,000 Cope initially agreed to pay in a plea agreement with the U.S. attorney's office. At an earlier hearing, Trauger had said Cope should pay a greater fine given his net worth of $12 million and monthly income of $37,000. The Murfreesboro Post reports that Cope still faces potential penalties from the Securities and Exchange Commission, which has filed a civil complaint, and the Tennessee Board of Professional Responsibility, which is investigating his case.

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Ethics Roadshow Continues Next Week

The 2016 Ethics Roadshow continues next week with stops in Jackson, Chattanooga, Knoxville and Johnson City. Make plans to attend one of these programs. Memphis lawyer Brian Faughnan with Lewis Thomason is back for his 12th year. In honor of that milestone, this year’s tour will focus on the 12 most important developments impacting ethics and lawyering in 2016. Check out the full schedule of dates and locations on the TBA CLE website.

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ABA Issues Opinion on Fee Sharing Between Lawyers

The ABA Standing Committee on Ethics and Professional Responsibility has issued Formal Opinion 475, which details how a lawyer who receives a payment that should be shared with another lawyer should handle and distribute the money. Model Rule 1.5(e) allows lawyers who are not in the same firm to divide a fee under certain circumstances. The new opinion directs the receiving lawyer to deposit funds in a separate account and safeguard the funds. The opinion also calls for prompt delivery of the agreed-upon portion of the fee to the other lawyer, and, if requested, a full accounting of the funds. Read more from the ABA.

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Get Multiple Courses with TBA’s New '1Click CLE'

This month the TBA is launching a new way to purchase CLE courses. The 1Click series allows lawyers to sign up for multiple course with one click. Look for sets of programs in a variety of categories, including ethics programs and courses by practice area. Current offerings include two three-hour ethics series, an eight-hour general practice series and a five-hour tax law series.

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TBA President Urges Unity, Consensus Building in Profession

In the new Tennessee Bar Journal, President Jason Long discusses our divided country after the recent election, urging lawyers to be “united now more than ever in our commitment to the profession and its bedrock principles.” He writes that “we can provide that opportunity in a controlled and structured environment, operating within the framework of our democratic institutions. If there is an opportunity for consensus building and unity in today’s political climate, the legal profession can and should facilitate that.” Also in this issue, learn if you are protecting your clients’ electronic information enough, in the cover article by Trey Forgety. Brian Dobbs writes to help you understand the law of construction in Tennessee. Read the December issue.

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Court Adopts Amendments to Rules 7 and 9

The Tennessee Supreme Court today issued an order amending Rule 7, section 16.01, and Rule 9, section 30.3, which deal with reinstatement of a law license after a disciplinary or administrative suspension, disbarment or inactive status designation. The court notes that only one comment from the Tennessee Bar Association was filed. The court originally proposed the amendments in September.

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Court Tackles Vehicular Homicides, Malpractice, Liquor Store Fees

The Tennessee Supreme Court has agreed to hear four East Tennessee cases, including a Claiborne County vehicular homicide case in which a lower appellate court set the admittedly guilty driver free. Another vehicular homicide case looks at whether a police officer should have sought a warrant before seeking a hospital blood draw from the defendant. The third case looks at whether a legal malpractice claim should have been dismissed for being filed too long after the alleged wrongdoing. And the fourth case explores whether the city of Morristown overcharged liquor stores with fees totaling a half-million dollars. Knoxnews reviews each case.

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Report: Nashville Prosecutor Withheld Evidence in Murder Case

Kathy Morante, director of the Nashville police division that investigates officer conduct, has been reprimanded for misconduct in her prior job as an assistant district attorney general in Nashville. The Tennessean reports that while prosecuting a 16-year-old on a murder charge, Morante failed to provide to the defense a TBI report showing a key witness for the state had been arrested in another matter with the murder weapon in question. The conviction and 19-year prison term of Terry L. Reed Jr. was vacated by a judge last year. Morante says she shared the report but could not provide proof of the action. She joined the police department in 2013 after serving 14 years as a prosecutor. She reportedly was issued a private reprimand by the Board of Professional Responsibility in October.

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Ethics Roadshow Starts Next Week

The 2016 Ethics Roadshow kicks off next week with stops in Memphis on Dec. 6 and in Nashville on Dec. 7. Make plans to join attend one of these two cities or any of the other four cities on this year’s tour. Memphis lawyer Brian Faughnan with Lewis Thomason is back for his 12th year. In honor of that milestone, this year’s tour will focus on the 12 most important developments impacting ethics and lawyering in 2016. Here's a full schedule of dates and locations.

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California Considers Banning Sex Between Lawyers, Clients

The nation’s largest state bar association is overhauling ethics rules for attorneys for the first time in 30 years, and some lawyers are unhappy about a proposal that would open them up to discipline for having sex with clients, the Associated Press reports. State rules currently bar attorneys from coercing a client into sex or demanding sex in exchange for legal representation, but an all-out ban would be new. Opponents argue such a ban is an unjustified invasion of privacy. Supporters of the ban say the relationship between a lawyer and client is inherently unequal, so any sexual relationship is potentially coercive. Model rules proposed by the American Bar Association call for a complete ban as well. News Channel 5 has the AP story.

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Weirich Responds to BPR Charges

Shelby County District Attorney General Amy Weirich responded to the Board of Professional Responsibility (BPR) on Friday over charges brought in connection with the Noura Jackson murder case. Weirich said she never saw nor knew about a key witness statement in the case because the Memphis Police Department “failed to deliver” it to her, Memphis Flyer reports. The BPR has alleged that Weirich either had actual knowledge of the witness statement and hid it from defense attorneys, or she was negligent in failing to fully familiarize herself with the case.

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Make Plans for December’s Ethics Roadshow

Make plans now to attend this year's Ethics Roadshow at one of six cities. The tour starts Dec. 6 and runs through Dec. 12 with stops planned in Memphis, Nashville, Jackson, Chattanooga, Knoxville and Johnson City. Memphis lawyer Brian Faughnan with Lewis Thomason is back for another round. This year, he will focus on the 12 most important developments impacting ethics and lawyering in 2016. Find a city near you.

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AG's Office Clarifies Testimony to 6th Circuit Court of Appeals

Tennessee Attorney General Herbert H. Slatery III released a statement about a letter his office sent to the U.S. Sixth Circuit Court of Appeals in the matter of Andrew Thomas v. Bruce Westbrooks, a death penalty case. The letter from Assistant Attorney General Michael M. Stall seeks to clarify his testimony before the court this month about a $750 payment made to a witness in a federal case involving Andrew Thomas, which occured three years prior to the state case. The letter and today's statement emphasizes that “the payment … was made by the federal government without the knowledge of or involvement by District Attorney General Amy Weirich” and “there has been no finding whatsoever that state prosecutors in this case had actual knowledge of the payment at the time of the state trial.” Read the letter or this explanation from the AG's office.

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TBJ Columns Cover History, the BPR and What Not to Tweet

The Tennessee Bar Journal this month includes regular columns by Russell Fowler, Wade Davies and Bill Haltom. In "History’s Verdict," Fowler writes about Will Thomas, a lawyer who was embraced by and relentlessly defended the Cherokees in the 1800s. Davies, who is wrapping up his term on the Board of Professional Responsibility, details in his column "Crime & Punishment" some of the ways lawyers get into hot water -- and the relatively easy steps to take to stay out of trouble. In "But Seriously, Folks!" Haltom looks at the series of events that unfolded after University of Tennessee law professor Glenn Reynolds tweeted just three words: “Run them down.” Nick McCall reviews the book Almighty: Courage, Resistance and Existential Peril in the Nuclear Age. Read the November issue.

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Court to Hear 5 Cases in Jackson This Week

The Tennessee Supreme Court will hear oral arguments in five cases when it meets this week in Jackson. The Nov. 2 docket involves (1) a death penalty appeal that looks at whether statements to police and witnesses should have been excluded; (2) a case testing whether a trial court has jurisdiction to hear a motion for the return of property after a judgment has finalized; (3) a case testing whether a repairman’s lien may be enforced in any way other than by attachment of the lien to the subject property; (4) a disciplinary matter that looks at whether a trial court’s affirmation of a BPR recommendation imposing a suspension, fine and community service was appropriate; and (5) a workers’ compensation case involving the death of an employee who overdosed on oxycodone he was prescribed for his workplace injury. Read more about these cases and get details on the court's schedule.

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Report: More Ethics Charges Filed Against Weirich

The Board of Professional Responsibility has filed additional disciplinary charges against Shelby County District Attorney General Amy Weirich in the prosecution of Noura Jackson, the Commercial Appeal reports. The charges filed Friday relate to a statement by a witness that was not turned over to the defense until after Jackson’s trial. Weirich was the lead prosecutor in the 2009 trial of Jackson, who was convicted of killing her mother. However, the conviction was “reversed and remanded by the Tennessee Supreme Court based, in part, on the failure of the prosecution to provide exculpatory evidence to the defense,” the BPR argues in the filing. The paper has several filings in the case.

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Board Reprimands Judge Anderson

The Board of Judicial Conduct issued a public reprimand on Oct. 26 for Shelby County General Sessions Judge Bill Anderson Jr. after he intervened in the bond-setting process for an acquaintance. When Anderson discovered that an acquaintance had been arrested and placed in the Bartlett jail, he made several calls to the jail and then went there in person to inquire about the bond. While there, he discovered that bond had not yet been set. Citing his position, Anderson directed the jail employee to release the individual on his own recognizance. The employee declined to do so. Anderson later spoke with the Barlett judge, who had since set bond at $10,000. Anderson questioned the judge’s actions, claiming he had already released the individual. The board found that Anderson violated Canon 1, 2 and 3 of the Code of Judicial Conduct.

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ABA Releases Latest Data on Malpractice Claims

The ABA Standing Committee on Lawyers’ Professional Liability has issued its latest in a series of studies on the state of legal malpractice claims in the United States and Canada. “Profile of Legal Malpractice Claims” has tracked legal malpractice trends for 30 years. This one-of-a-kind data analysis provides attorneys and insurance analysts an in-depth look at current trends as well as comparisons to historical data. The committee chair said this year’s report shows a reduction in real estate claims (which likely stemmed from the economic crisis) but a growth in estate, trust and probate claims, which she attributes to rising numbers of retiring baby boomers.

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Judge Sammons Wins Dismissal of 2 Charges

Campbell County General Sessions Court Judge Amanda Sammons may have lied under oath and abused her authority in a contempt case, but she did not commit the crime of which she is accused, Senior Judge Paul G. Summers ruled today. Summers dismissed two of the four counts filed against Sammons after hearing arguments from her defense that she had the authority to issue a contempt petition even if others did not ask her to do so as she claimed. That means she will not face charges for the petition she filed against Campbell County attorney Kristie Anderson. The two remaining charges relate to her handling of the case of Krista Leigh Smith, who alleges that Sammons caused her spend almost 48 hours in jail for a crime for which she was not accused. The Knoxnews has more on the story.

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Ethics Opinion Addresses Settlement Agreements that Require Release of Work Product

The Board of Professional Responsibility recently issued Formal Ethics Opinion F-161 regarding the ethical propriety of a settlement agreement that requires the release of lawyer work product. To the extent settlement provisions require attorneys to turn over documents protected by the lawyer work product doctrine, the provisions may be prohibited by Tennessee Rule of Professional Conduct 5.6(b). That is, a lawyer may not propose or agree to a settlement agreement that requires a lawyer to turn over any work product materials as part of the settlement if that action will restrict the representation of other clients.

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October TBJ: Alimony, Pro Bono and Fred Gray

Even when income changes dramatically at retirement, alimony in futuro does not change without asking the court for a modification. This may be a shock to your clients, but Memphis lawyer Miles Mason Sr. explains it in this new Tennessee Bar Journal. October is “Celebrate Pro Bono Month” and Chattanooga lawyer Russell Fowler looks at President James A. Garfield’s good example as a lawyer doing pro bono. The Journal also highlights civil rights icon Fred D. Gray upon the opening of an institute named in his honor. TBA President Jason Long examines the core values and principles that define us as lawyers and the profession. Read the October issue.

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