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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.” 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 to attend the event.

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