News

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.

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Court Expands Payments to Client Protection Fund

The Tennessee Supreme Court late Friday adopted an order requiring all attorneys who practice in the state – regardless of the state in which they are licensed – to pay into the Lawyers’ Fund for Client Protection. The fund, which was established three decades ago, reimburses individuals for financial losses suffered after entering into an attorney-client relationship. Previously, the rule applied only to those licensed by Tennessee. Also of note, the order extends from one to three years the amount of time a client has to make a claim. The court reports that these changes will go into effect Oct. 1. Read more from the AOC.

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Disciplinary Enforcement Rule Gets Overhaul

The Tennessee Supreme Court today issued its much-anticipated rewrite of Rule 9 on disciplinary enforcement. The overhaul is the first comprehensive reordering and revamp of the rule since the original rule was adopted in the 1970s. Many of the suggestions proffered by the TBA were adopted including new provisions that clarify a lawyer's obligations when the lawyer is no longer able to practice. Perhaps the most significant change urged by the TBA— a change to a standard of clear and convincing evidence to prove lawyer misconduct – was omitted. Read the rule here and watch TBA Today next week for more analysis of the court’s 64 page order, including new provisions for license revocation for student loan default.

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Ethics Opinion: Fees Sharing OK in Some Cases

Can a lawyer working in a jurisdiction that has adopted the ABA Model Rules of Professional Conduct share fees with lawyers who aren’t bound by the no-fee-sharing restriction? In some cases, the answer is yes, according to an ABA ethics opinion. “Where there is a single billing to a client in such situations,” Formal Opinion 464 says, “a lawyer subject to the Model Rules may divide a legal fee with a lawyer or law firm in the other jurisdiction, even if the other lawyer or law firm might eventually distribute some portion of the fee to a nonlawyer, provided that there is no interference with the lawyer’s independent professional judgment.” ABAJournal.com has more.

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TBA Comments on Student Loan Default Rule

The TBA today filed a comment with the Tennessee Supreme Court on a proposal to establish a show cause procedure to suspend lawyers who become seriously delinquent or in default in payment of their federally-insured student loan obligations. In it's comment, the TBA points out that it fought legislation to encourage the establishment of such sanctions for such unrelated activities. In the comment the TBA presses for more thorough due process protections if the court moves forward to adopting the rule.

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The King of Legal Advertising?

Lots of lawyers know Lucian Pera as an expert on the rights and wrongs of legal advertising, but the Memphis attorney was also singled out this week for his skills in marketing. In the ABA Journal piece “50 simple ways you can market your practice,” the author notes Pera’s practice of skipping the traditional holiday card at Christmas to send out cards celebrating Elvis’ birthday. "For a number of people I do business with, my connection to Memphis is important,” Pera says. “I want them to think about Memphis and think about me, and I don't want there to be more than a half second between those two thoughts.” The Adams and Reese attorney was also featured this week in a podcast on legal advertising ethics from The Life of the Law. Also joining that discussion was Nashville lawyer Matt Hardin of Rudy, Wood, Winstead, Williams & Hardin.

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Guardian Challenges Firm’s Fee Waiver Practice

A guardian ad litem appointed to protect the legal interests of an 80-year-old woman is challenging the fee arrangement her relatives signed with the Memphis law firm of Wilkes & McHugh. Although state law caps contingency fees at one-third of the recovery in medical malpractice cases, the firm had the woman’s relatives sign a waiver allowing a fee of up to 40 percent of any recovery, with an extra five percent allowed if the case was decided on appeal. The guardian, Robert Hutton, says he also wants to look into fee arrangements in 21 other medical malpractice cases the firm has filed since January 2009. The firm's lead attorney on the case did not return a telephone call from the Commercial Appeal, but said in court papers that he never intended to use contingency fee agreements to seek excessive fees.

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Discrimination Provisions Upheld

The Tennessee Supreme Court today denied a petition by the Board of Professional Responsibility which would have expanded the application of the prohibition on manifestations of invidivual bias and prejudice. In maintaining the current focus on the way in which the lawyer conduct impacts the administration of justice, the Court preserved the rule advocated and defended by the TBA. The Court noted that more than 300 pages of comments were received during the comment period and commented on the "scope and clarity” of the present rule. Download a copy of the court order. For a look at the TBA comments, click here

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Court Denies Advertising Rules Changes

A petition proposing several rules changes restricting lawyer advertising was denied today in a per curiam order issued by the Tennessee Supreme Court. In taking the action, the court said, "We have determined that the continued enforcement of the existing rules is preferable to any of the changes sought by the petitioners."

The petition, which was filed last spring, would have required that lawyers have a "bona fide" office in Tennessee, prohibited actors from portraying clients, banned commenting on results and imposed requirements for pre-submission of ads to the Board of Professional Responsibility.

The petition drew comments from a wide array of organizations and individuals including the Tennessee Bar Association, Knoxville Bar Association, two law school professors from the University of Tennessee, the Tennessee Association of Broadcasters, the Federal Trade Commission and others. TBA Ethics and Professionalism Committee Chair Brian Faughnan authored the TBA comment.

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Drafter of ABA Model Code Dies

John F. Sutton, former dean of the University of Texas Austin School of Law and drafter of the ABA’s Model Code of Professional Conduct, died Friday at age 95, the ABA Journal reports. A Texas native and 1941 graduate of the law school, Sutton served with the FBI as a special agent at the start of World War II and then served in Judge Advocate General’s Corps during the Korean War. From 1950-1957 he was in private practice and from 1957-2003 he served on the law school faculty at his alma mater, serving as dean from 1979-1984. From 1965-1970, Sutton was one of the original draftsmen of the ABA's Model Code of Professional Responsibility, which replaced the 1908 Canons of Ethics. Later, he consulted on the drafting of the association's Model Rules of Professional Conduct. Visitation and funeral services will be held Friday and Saturday in San Angelo. In lieu of flowers the family suggests donations be made to the First Presbyterian Church of San Angelo, the San Angelo Area Foundation or a charity of one's choice.

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Court Issues 2nd Proposal for Changes to Disciplinary Rules

The Tennessee Supreme Court yesterday issued an order seeking comments on proposed changes to Rule 9 amendments that it originally proposed on Aug. 8, 2012. The court reports that the new changes are based on comments, including extensive comments by the TBA, it received after proposing the 2012 amendments. Yesterday's order sets June 14 as the deadline for new comments and includes a redline version of the amendment showing changes the court has made to the 2012 version. The TBA Ethics and Professional Responsibility Committee will review and make recommendations on the latest revisions.

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Important Issues Still at Play in Legislature

A number of bills of interest to lawyers may see action before the end of the session. They include:

Lawyer Regulation -- A bill (SB 779/HB 635) to impose criminal sanctions on Board of Professional Responsibility panel members, staff, lawyers subject to discipline, and their counsel for certain procedural violations could see action in committees in both chambers. The TBA has resisted this unwelcome intrusion in the Supreme Court’s disciplinary process.

Tort -- Codification of comparative fault with limitations of joint and several liability in several types of cases that the courts have carved out by common law -- including products liability and cases with combined intentional and negligent actors -- still awaits House committee action (SB 56/HB 1099).

Collateral Source Rule -- The effort to limit the effect of the collateral source rule (SB 1184/HB 978) will be studied for now but could return next year.

Workers Compensation Overhaul -- The Workers Compensation overhaul (SB 200/HB 194) continues its march towards expected passage. According to the Associated Press, the plan is scheduled for a full Senate vote on Monday night with the House Finance Committee taking it up on Tuesday.

Conservatorship -- The work of the TBA’s Special Committee on Conservatorship Practice and Procedure has been adopted by the Senate (SB 555/HB 692) and should see action in the House Civil Justice Committee this week.

Trust Law -- A bill (SB 713/HB 873) to rewrite Tennessee trust law and a 52-page amendment debuted 10 days ago will see action in the House Civil Justice Committee.

Criminal -- The Senate Judiciary Committee will hear about legislation (SB 1362/HB 1293) permitting prosecution of an alleged repeat child abuser in any county where an act of of abuse allegedly occurred, and permitting evidence of all prior child abuse by declaring past offenses to be a "continuing offense.”

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Opposing Groups Weigh in on Lawyer Ads

The Tennessee Association for Justice is supporting a rules change pending before the state Supreme Court that would block lawyers’ television ads that dramatize their stories of success, saying such ads stretch the truth. The court is considering whether to ban the use of models and actors posing as clients in lawyer advertising. Others, however, oppose regulation by the court. The Nashville firm of Bart Durham Injury Law told the Nashville Business Journal that it plans to file a brief opposing the proposed rules, suggesting that the move to block ads like his might be “another different attempt at a grab for market share.”

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BPR Proposes Adding Discriminatory Conduct to Ethics Rules

The Board of Professional Responsibility has filed a petition with the Tennessee Supreme Court asking the court to amend Rule 8.4 of the Rules of Professional Responsibility to make it professional misconduct for a lawyer to engage, in a professional capacity, in conduct “manifesting bias or prejudice based on race, sex, religion, national origin, disability, age, sexual orientation, or socio-economic status.” Written comments on the proposed change should be submitted by April 1. Instructions for filing comments are in the court order attached to the petition.

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ABA House Adopts Range of Resolutions

The ABA House of Delegates approved a range of resolutions today at its winter meeting in Dallas, the ABA Journal reports. Proposals garnering support included those urging lawmakers to provide adequate funding for federal courts and the Legal Services Corp.; creating a new national entity to help public defenders dealing with excessive caseloads; providing guidance for an amicus brief in a case on the patenting of isolated human genes; giving foreign lawyers limited authority to serve as in-house counsel in the United States; encouraging lawyers to provide unbundled legal services; clarifying a model rule dealing with conflicts of interest in multi jurisdictional cases; and urging federal courts to instruct grand jury members that they are not bound to indict just because a conviction can be obtained. The body also approved a series of resolutions addressing human trafficking, a key issue for ABA President Laurel G. Bellows.

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FTC Weighs in on Lawyer's Advertising Proposal

The Federal Trade Commission (FTC) is urging the Tennessee Supreme Court to reject new restrictions on attorney advertising, calling the proposed rules unnecessarily broad and not in the best interest of consumers, the Blog of Legal Times reports. Among the changes being proposed by Nashville lawyer Matthew Hardin, is a ban on the use of actors, well-known spokespeople and certain background sounds. Also on the table is a rule that would limit the images in ads to just a few legal icons such as the scales of justice or courthouses. Finally, the proposal requires ads be pre-screened by the Board of Professional Responsibility. Hardin says the changes are needed because current “advertisements rely on outrageous, misleading and deceptive advertising techniques.” Comments on the proposed rules are due March 11. Read the comments submitted thus far, including comments by the TBA.

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BPR Reinstitutes Newsletter, Releases First Issue of 2013

The Board of Professional Responsibility today announced the return of Board Notes – a semi-annual publication of the board offering information to Tennessee attorneys and judges – and released the First Quarter 2013 issue. The board will email the publication to attorneys and judges as well as post each issue on its website. Sign up here to receive Board Notes by email. See past issues here.

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Reception to Honor New BPR Chief Counsel

The Memphis Bar Association and Tennessee Lawyers Assistance Program (TLAP) will host a reception honoring Sandy Garrett, the new chief disciplinary counsel for the Board of Professional Responsibility, on Jan. 30 from 4:30 to 6 p.m. at Burch Porter & Johnson, 130 N. Court Ave., Memphis 38103. Please RSVP to Mary at (901) 271-0660 or mlynes@memphisbar.org to attend the event.

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Memphis Lawyer Vows to Challenge Suspension

Veteran Memphis lawyer R. Sadler Bailey plans to appeal a disciplinary panel decision that he be suspended for 60 days for showing "disrespect and sarcasm" in comments made to Circuit Court Judge Karen Williams during a medical malpractice trial in 2008. He also is criticizing release of the opinion, which he says should have been kept private until his appeal is heard. He said it was proof of "a conspiracy and vendetta to humiliate and embarrass me," The Commercial Appeal reports.

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Hey, It's Not the End of the World

If you missed TBA ethics guru Brian Faughnan at this year's TBA Ethics Roadshow, you can turn back the pages on your Mayan calendar and learn from his “end of the world” hypotheticals in the online video version of the program. Learn more or sign up now.

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Court Names Chief Disciplinary Counsel

The Tennessee Supreme Court today named Sandy Garret as chief disciplinary counsel for the Board of Professional Responsibility. “Sandy’s record of service to the legal profession and the public through her work with the BPR makes her uniquely qualified to step into this most important role,” said Chief Justice Gary R. Wade. Selected from a field of 21 applicants, Garrett has served in various roles with the BPR since 1992. A graduate of the University of Tennessee and Vanderbilt University School of Law, she is a member of the Tennessee Bar Association and the National Organization of Bar Counsel.

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Shelby Commissioner Files Ethics Complaint Against Outside Counsel

Shelby County Commissioner Terry Roland filed a memorandum of complaint with the Board of Professional Responsibility against a Baker Donelson attorney who he said lied about drafting a letter for another commissioner and that redacted entries in a billings state covers that up. The firm was hired by the commission to handle its lawsuit to block the creation of suburban municipal school districts. Representatives from the Board of Professional responsibility would not comment on a specific complaint, The Memphis Commercial Appeal reports.

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Former Knoxville Lawyer Convicted of Tax Evasion

Former Knoxville lawyer John Threadgill, 69, was convicted of income tax evasion in federal court last week. A jury returned the verdict after a five-day trial. Threadgill now faces up to five years in prison and up to $250,000 in fines. He will be sentenced on March 14, 2013. Several months ago, Threadgill was disbarred and ordered to pay $24,578 in restitution to four former clients. Read more in Knox News

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Court Overturns Contempt Charge Against Attorney

The Tennessee Supreme Court ruled in a unanimous decision today that a judge may not properly charge an attorney with contempt of court when the behavior neither disrupts the proceedings nor disparages the court, even if the judge believes the attorney behaved unethically. The ruling came after a judge convicted attorney James Beeler of criminal contempt of court for speaking to his client's husband who was being represented by another attorney during trial. The judge stated Beeler broke the ethical rule that forbids attorneys from speaking with a person represented by another attorney about the subject matter of that representation without permission. The Court reversed and vacated Beeler's convicton. Download the full court opinion.

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Memphis Lawyer Surrenders License

Longtime Memphis attorney Mark Saripkin, 60, surrendered his law license following an investigation into allegations that he waived fees for a teenage client in exchange for oral sex, the Commercial Appeal reports. Saripkin, who has not been charged with a crime, allegedly began a relationship with his client when she was 17 and facing charges in Shelby County Juvenile Court. It continued when she was charged with child sex trafficking in federal court last year, the newspaper says.

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