IN THE SUPREME COURT OF TENNESSEE

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IN RE PROPOSED TENNESSEE RULES
OF PROFESSIONAL CONDUCT

No. M2000-02416-SC-RL-RL

SUPPLEMENTAL MEMORANDUM IN SUPPORT OF
PETITION OF TENNESSEE BAR ASSOCIATION
THE ADOPTION OFFOR
PROPOSED RULES OF PROFESSIONAL CONDUCT

GAIL VAUGHN ASHWORTH
General Counsel, Tennessee Bar Association
Gideon & Wiseman
414 Union Street, Suite 1900
Nashville, Tennessee 37219-1782
(615) 254-0400

CHARLES J. GEARHISER
President, Tennessee Bar Association
Gearhiser Peters Lockaby & Tallant
320 McCallie Ave
Chattanooga, Tennessee 37402-2007
(423) 756-5171

ALLAN F. RAMSAUR
Executive Director, Tennessee Bar Association
Tennessee Bar Center
221 Fourth Ave. North, Suite 400
Nashville, Tennessee 37219
(615) 383-7421

LUCIAN T. PERA
Chair, Tennessee Bar Association Standing Committee
on Ethics and Professional Responsibility
Armstrong Allen, PLLC
Brinkley Plaza
80 Monroe Avenue, Suite 700
Memphis, Tennessee 38103-2467
(901) 524-4948

TABLE OF CONTENTS

I. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

II. The Committee’s Process Since the Filing of the Petition . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

III. The Documents Likely Needed by the Court to Review the Petition . . . . . . . . . . . . . . . . . . . 3

IV. Significant Revisions to the Proposed Rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

V. Particular Issues for Decision by the Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

VI. Response to Memphis Bar Association Comment Concerning Adoption
of Its Guidelines for Professional Courtesy and Conductas Disciplinary Rules. . . . . . . 7

VII. Other Rule Changes Possibly Necessitated by Adoption of Proposed Rules . . . . . . . . . . . . 9

VIII. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

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The Tennessee Bar Association (“TBA”) submits the following supplemental

memorandum in support of its Petition filed in this matter seeking the adoption of the Proposed

Tennessee Rules of Professional Conduct (“Proposed Rules”):

I. Introduction

Since the filing of the Petition in this matter and the Proposed Rules on October 9, 2000, the

TBA, through its Standing Committee on Ethics and Professional Responsibility (“Committee”),

has engaged in a process, sanctioned by this Court, of soliciting and encouraging comments on the

Proposed Rules from as many sources as possible, engaging in constructive dialogue with the

numerous commentators, and proposing revisions to its Proposed Rules to respond to these

comments and to otherwise improve the proposal. The proposal now filed with this memorandum

represents the fruits of this labor by the Committee and many others and, in the opinion of the

Committee and the TBA, represents a significant improvement over the Proposed Rules originally

filed with the Court.

II. The Committee’s Process Since the Filing of the Petition

For the last year, consistent with the November 28, 2000, Order of this Court, the TBA and

its Committee have widely distributed information concerning its Petition and the Proposed Rules,

distributing copies of the Petition and the Proposed Rules to every element of the organized bench

and bar, posting these materials on its website, making formal and informal presentations to the

bench, bar, and public, and answering formal and informal inquiries from many people and

organizations.

The comments received by the Court and the Committee were of a remarkably high quality

and raised a number of important policy questions, some of which had been previously considered

by the Committee, and some of which had not previously been considered by the Committee. The

Committee received comments in various formats and venues, including written comments,

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comments at seminars and other meetings, informal meetings, and one day-long Nashville meeting

in January 2001, attended by representatives of a number of groups, including several

representatives of each Tennessee U.S. Attorney, the Tennessee District Attorney Generals

Conference, and the Tennessee Association of Criminal Defense Counsel.

The written comments received comprised more than 290 pages. The commentators

included the following:

Lacy Adams
Attorney General of Tennessee
T. Maxfield Bahner
Board of Professional Responsibility of the Supreme Court of Tennessee
Professor Neil P. Cohen, University of Tennessee College of Law
Keith Downen
East Tennessee Victims’ Rights Task Force
Federal Bar Association – Nashville Chapter
Vickie E. Fox
Joe M. Goodman
Julie N. Jones
R. L. King
Knoxville Bar Association
Judge Robert A. Lanier, Shelby County Circuit Court
Joe E. Manuel
Memphis Bar Association
Nashville Bar Association
William A. Newcomb
Obion County Bar Association
Tennessee Association of Chiefs of Police
Tennessee Association of Criminal Defense Lawyers
Tennessee Commission on Continuing Legal Education and Specialization
Tennessee District Attorneys General Conference
Tennessee Trial Lawyers’ Association
Tennessee Victims’ Coalition Tennessee Trial Lawyers’ Association
United States Attorneys for Tennessee (Carl K. Kirkpatrick, Veronica F.
Coleman, and Quentin L. White)

(All of these comments have, for the convenience of the Court, been submitted as Exhibit D,

including a three-ring binder that organizes these comments according to the Proposed Rule to

which the comment was addressed.)

Regardless of whether the comment raised an issue that had been previously considered by

the Committee or one that had not previously been considered by the Committee, each issue was

considered afresh by the Committee. Over a period of several months, the Committee met as a

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group with, or had its representatives meet with, commentators, and frequently these meetings

resulted in additional or substitute language in the Proposed Rule or Comment at issue. The

Committee also met a number of times, in person and by conference call, to consider the comments

and possible revisions to the Proposed Rules and Comments.

Through this process, the Committee made changes to a number or Proposed Rules and

Comments, see infraat 5-6, and these resulting changes have been filed contemporaneously with

this memorandum.

III. The Documents Likely Needed By the Court to Review the Petition

The Committee has prepared this filing with a view toward making its proposal and its

process as easily comprehensible as possible, and with a view toward reducing the number of

documents likely to be needed by the Court to reach its decisions in this matter. The TBA believes

that the documents filed with this Supplemental Memorandum are the primary documents that will

be necessary to decision on this petition by this Court.

The attachments to this supplemental memorandum are as follows:1

Exhibit A

Proposed Tennessee Rules of Professional Conduct

This document contains the proposed black-letter Rules and Comments in
the form the TBA proposes for actual adoption by this Court.
Should the Court choose to grant the TBA’s Petition, the TBA
recommends that this document be enacted to replace current Rule
8 of the Rules of the Supreme Court of Tennessee.

Exhibit B

Revised Committee Draft of Proposed Tennessee Rules of Professional
Conduct

In addition to the proposed black-letter Rules and Comments, this
document includes the Standards Committee’s notes concerning
each Proposed Rule. Thus, after each individual Proposed Rule
and Comment, the Committee has provided short sections: (1)
comparing the Proposed Rule to Tennessee’s current ethics rules;
(2) comparing the proposal to the relevant ABA Model Rule; (3)

1Also accompanying this petition will be electronic versions of this supplemental memo
and Exhibits A and B for use by the Court.

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comparing the Proposed Rule filed with the Petition in October
2000 to the Preliminary Draft issued by the Committee for
discussion purposes in November 1997; and (4) describing the
comments received by the Court and the TBA after the filing of the
Petition, offering the Committee’s response to these comments, and
describing any changes made by the Committee to the Proposed
Rule and Comment since the filing of the Petition.

Exhibit C

“Redlined” Version of Revised Committee Draft of Proposed Tennessee
Rules of Professional Conduct

This document is identical to Exhibit B, except that changes to the black-
letter Proposed Rules and Comments made since the filing of the
Petition are shown in “redlined” version, so that the Court can
easily identify any changes made to the version of the Proposed
Rules and Comments filed with the Petition. Changes made in the
Committee Notes to the Proposed Rules are not redlined.

Exhibit D

Comments Received by the Court and the Committee

These documents include all the written comments received by the Court or
by the Committee concerning its proposal since the filing of the
Petition in October 2000. These comments are included in the form
they were submitted and are also organized topically by the
particular Proposed Rule to which they pertain.

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Exhibit E

Petition and Memorandum in Support of Petition of Tennessee Bar
Association for the Adoption of Proposed Rules of Professional
Conduct

This is the original Petition and supporting memorandum filed in this
matter (but without any attachments), which contains much
narrative background materials concerning this matter.

IV. Significant Revisions to the Proposed Rules

In the Revised Committee Draft of Proposed Tennessee Rules of Professional Conduct,

filed as Exhibit B accompanying this memorandum, the Committee has indicated, by redlining the

language of each Proposed Rule and Comment, all changes made in the proposal since the filing of

the Petition. In a new, final section of the Committee Notes section that follows each Proposed

2Filed with the original Petition were copies of the Preliminary Draft Report of the
Committee (issued by the Standards Committee for public comment in November 1997 and
published in the February 17, 1998, edition of West’s Tennessee Decisions) and all comments
received by the Committee concerning its Proposed Rules prior to the filing of the Petition.

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