News

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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Scott County Judge Ends Use of Electronic Monitoring

Scott County General Sessions Court Judge James L. Cotton Jr. has stopped using electronic monitoring devices in the wake of a newspaper investigation into the practice, Knoxnews reports. Cotton said he ended the program and terminated the services of Howard Barnett, who had been providing the electronic monitoring devices. He said he had no financial stake in Barnett’s firm and used the service as an alternative to bonds and jail for the poor. He expressed regret for any misuse and said he “self-reported” the newspaper's findings to the Tennessee Board of Judicial Conduct.

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CLE SKI Set for Jan. 22-27 in Snowmass

Mark your calendar for the 32nd Annual TBA CLE SKI, being held Jan. 22-27, 2017, at the Stonebridge Inn in Snowmass, Colorado. Participants will be able to attend CLE sessions each morning and afternoon with plenty of time to hit the slopes in between programs. Topics will cover entertainment law, social security disability, updates on labor and employment law, ethics and a U.S. Supreme Court case review.

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Kingsport Lawyer Gets Probation for SSI Scheme

Kingsport attorney Everett Mechem, who was convicted earlier on 30 counts of fraud in connection to a Social Security payment scheme, has been sentenced to four years of probation, the Times Free Press reports. He also must pay $34,280 in restitution and a $3,300 fine, and perform 200 hours of community service. According to evidence presented at trial, Mechem, acting as the attorney and representative payee for his wife, schemed to defraud the government of nearly $37,000 in SSI payments for which she was not entitled. He previously was suspended from the practice of law by the Tennessee Supreme Court.

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Case to Continue Against Memphis Prosecutor

Disciplinary proceedings will continue against Shelby County Assistant District Attorney Stephen P. Jones on two charges he violated rules of professional conduct in the prosecution of Noura Jackson, according to an order released yesterday. The disciplinary hearing panel did grant summary judgment on a third charge involving fairness to the opposing party, the Commercial Appeal reports. The Board of Professional Responsibility accuses Jones of failing to provide a witness statement to the defense. Jones argues he made an inadvertent mistake and did not knowingly withhold the document. The panel will now conduct an investigation.

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Lawyer Calls ADA’s Oversight ‘Inadvertent Mistake’

Shelby County Assistant District Attorney Stephen P. Jones is facing misconduct charges before the Board of Professional Responsibility, with the board alleging that as co-counsel in the prosecution of Noura Jackson he failed to disclose to the defense a third statement from one of the prosecution witnesses. The board is also pursuing a separate proceeding alleging that lead counsel and District Attorney Amy Weirich improperly commented on Jackson’s right to remain silent. The Tennessee Supreme Court threw out Jackson’s murder conviction. After Jones did not agree to a public censure, the board filed a petition for discipline against him. Jones’ lawyer argued this week that Jones is entitled to summary judgment because the record demonstrates only an inadvertent mistake and no ethical misconduct, The Commercial Appeal reports.

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Ethics Opinion: Judges Must Hear Cases to Sign Orders

The chair of the Judicial Ethics Committee says that conduct rules do not allow judges to retroactively sign orders without hearing evidence, and that such practices could violate a person’s right to be heard in court and could appear to be an impropriety. Tennessee Court of Criminal Appeals Judge Alan Glenn issued the informal opinion in response to a request from Nashville General Sessions Judge Casey Moreland, who sought the guidance after news broke that General Sessions Judge Rachel Bell retroactively signed orders committing dozens of people to mental health institutions without hearing the cases herself. Glenn said he will not write a formal ethics opinion, which would require approval of the other judges on the committee, the Tennessean reports. He did not address the specific case involving Bell.

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Court Seeking Comments on Proposed Amendments

The Tennessee Supreme Court is considering 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 also is seeking comments on proposed amendments to Rule 19 that are designed to eliminate a potential conflict between Rule 7, section 5.01(g)(8) and Rule 19, which deals with pro hac vice appearances before Tennessee courts and agencies. Comments on both proposals are due by Oct. 10.

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Moreland Seeks Ethics Opinion on Bell’s Conduct

Nashville General Sessions Judge Casey Moreland has asked the Judicial Ethics Committee to weigh in on whether it is ethical for judges to sign orders in cases they do not hear. The move from the court's presiding judge comes after reports that Judge Rachel Bell signed orders committing 53 individuals to mental health facilities after their cases were heard by a substitute judge. Moreland took over as presiding judge from Bell this week. Asking for the ethics opinion was one of his first acts, the Tennessean reports.

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ABA Seeks Professional Responsibility Center Director

The American Bar Association is seeking a director for its Center for Professional Responsibility. Responsibilities include strategic planning, policy development, financial management and personnel administration. Candidates should have 15 years of professional legal experience with executive responsibilities, 10 years of legal experience in the field of professional responsibility or legal/judicial regulation, five years of experience leading an organization and supervising a team, and an active law degree.

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Court Square Series: Sept. 8 in Kingsport

The 2016 Court Square series is heading to Kingsport. On Sept. 8, the course will be presented at the Higher Education Center. Mark Fulks, Parke Morris and Donald J. Farinato will address ethics in legal writing, privilege law in Tennessee and the revised Uniform Fiduciary Access to Digital Assets Act.

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Court Seeks Comments on 2 Proposals, Sets Legal Aid Funding Ratios

The Tennessee Supreme Court today issued three orders. The first amends Rule 11 Section VI(a)(1), which sets out the amounts that the state’s four legal aid organizations receive from the Civil Legal Representation of Indigents Fund. The order, which will take effect Sept. 1, changes the percentage of funding each organization receives based on the percent of poverty in their service areas. The second order seeks comments by Sept. 19 on a proposal by the Board of Professional Responsibility and Tennessee Bar Foundation to amend Rules 8 and 43 to allow attorneys to deposit trust funds in federally insured credit unions. The third order seeks comments by Nov. 17 on a proposal by theTBA to amend Rule 8 to make a number of changes recommended by the ABA's Commission on Ethics 20/20.

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Nashville Lawyer Gets Jail Time, 10 Years Probation

Nashville personal injury lawyer John L. Lowery will stay in jail until late October and then serve 10 years on probation for stealing more than $330,000 from his clients, the Tennessean reports. Prosecutors also said Lowery settled nine cases without his clients’ knowledge or consent, signed their names to settlement checks without their permission, misappropriated settlement funds, and made them think their cases were progressing. In imposing the sentence, Criminal Court Judge Steve Dozier said Lowery’s “deceit strikes at the very heart of our legal system, a system wherein a lawyer should be a guiding light steering clients through the process in pursuit of justice rather than a dark force deceiving those who have rightfully placed in the lawyer their trust..."

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Fee-Sharing Opinion May Signal Bad News for Avvo

A South Carolina ethics opinion on fee-sharing highlights a potential obstacle for services like Avvo, which match lawyers willing to provide defined legal services with clients who pay a fee up front. The July 14 advisory opinion targets variable marketing fees, saying such arrangements amount to a “contingency advertising fee” rather than a “cost that can be assessed for reasonableness.” Such services might also violate rules that ban lawyers from sharing fees with non-lawyers or paying for a referral, the opinion suggests. The ABA Journal looks at the issue.

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