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A Primer on the Discipline of Attorneys in Tennessee
Need clarification? Now you can read about the disciplinary process online in this series adapted from Tenneessee Bar Journal articles that ran from September 2005 to November 2006. Writer Stacey Shrader outlines the details of disbarments, suspensions, censures, disability inactive status, admonitions, reprimands and reciprocal discipline. You can also find out how the Tennessee Legal Assistance Program works, what the disciplinary districts are, the BPR’s structure and process, what happens when an attorney is convicted of a crime, and more.
What is a public censure?
Disciplinary structure and process
The Board of Professional Responsibility
District committees & hearing panels
Attorneys convicted of a crime
Investigating and disciplining sitting judges
• • •
What is a public censure?
Rule 9, Section 4 of the Rules of the Supreme Court of the State of Tennessee identifies the types of disciplinary action that may be imposed on lawyers licensed in the state. One of the options available to the Board of Professional Responsibility is public censure.
A censure is a public form of discipline that declares the conduct of a lawyer improper but does not limit the right to practice law. Upon the filing of a complaint, a disciplinary counsel with the Board of Professional Responsibility reviews the case. The board may approve the censure, modify it or determine that the matter be dismissed or concluded by some other form of discipline. If the board approves the censure, the target of the disciplinary action may not appeal the decision. However, the individual may demand that a formal proceeding be instituted before a hearing committee within 20 days of the board’s decision. In the event of such demand, the censure shall be withdrawn, and the matter handled in the same manner as any other formal hearing before a hearing committee.
For more information about the rules governing disciplinary actions, see Rule 9 of the Rules of the Supreme Court of Tennessee.
• • •
What is a reprimand?
Rule 9, Section 4 of the Rules of the Supreme Court of the State of Tennessee identifies the types of disciplinary action that may be imposed on lawyers licensed in the state. One of the options available to the Board of Professional Responsibility is a reprimand.
Reprimand is a private form of discipline that declares the conduct of a lawyer improper but does not limit the right to practice law. Reprimands are not disclosed and remain confidential. Disciplinary cases that otherwise would be resolved by a reprimand also are eligible for diversion to practice and professionalism enhancement programs. This diversion process is used to address technical violations that caused no harm.
Upon the filing of a complaint, a disciplinary counsel with the Board of Professional Responsibility reviews the case. The board may modify the reprimand or determine that the matter be addressed by another form of discipline. If the board approves the reprimand, the chair notifies the lawyer of the decision. The board’s decision may not be appealed; however, the lawyer has 20 days to demand that a formal proceeding be instituted before a hearing committee. In the event of such demand, the reprimand is to be withdrawn and the matter handled in the same manner as any other formal hearing before a hearing committee. While individual cases are not reported publicly, the board does release the total number of reprimands. For fiscal year 2005, the board issued 25 reprimands.
For more information about the rules governing disciplinary actions, see Rule 9 of the Rules of the Supreme Court of Tennessee.
• • •
What is an admonition?
Rule 9, Section 4 of the Rules of the Supreme Court of the State of Tennessee identifies the types of disciplinary action that may be imposed on lawyers licensed in the state. One of the options available to the Board of Professional Responsibility is private informal admonition.
Admonition is a private informal form of discipline that declares the conduct of a lawyer improper but does not limit the right to practice law. Admonitions are not disclosed and remain confidential. Disciplinary cases that otherwise would be disposed of by admonition also are eligible for diversion to practice and professionalism enhancement programs. This diversion process is used to address technical violations that caused no harm.
Upon the filing of a complaint, a disciplinary counsel with the Board of Professional Responsibility reviews the case. If the disciplinary counsel recommends an informal admonition, the decision must be reviewed by the reviewing member of a hearing committee in the appropriate disciplinary district. The hearing committee member may modify the admonition, but disciplinary counsel is allowed to appeal that decision to the board. If the admonition is approved, the target of the disciplinary action receives a letter of admonition from the disciplinary counsel. The decision may not be appealed. However, the individual may demand that a formal proceeding be instituted before a hearing committee within 20 days of the board’s decision. In the event of such demand, the admonition shall be vacated and the matter handled in the same manner as any other formal hearing instituted before a hearing committee.
While individual cases are not reported publicly, the board does release the total number of admonitions. For fiscal year 2005, 74 admonitions were issued.
Some differences among the three lesser types of discipline are: censures are publicly reported, while reprimands and admonitions remain confidential. Censures are used to address behaviors and actions that violate the rules of professional conduct. Reprimands are used to address conduct that causes potential or actual injury to clients, the public or the legal system. Admonitions are used to address conduct that is improper but causes little or no potential or actual injury. Admonitions also may be used to address isolated incidents, while censures and reprimands are appropriate in cases where a pattern of misconduct exists. A disciplinary counsel’s recommendation to impose censure or reprimand is reviewed by the board and notification of the disciplinary action comes from the chair of the board. A recommendation to impose an admonition is reviewed by a hearing committee member and notification of the action comes from the disciplinary counsel. Finally, only in the case of admonition is the target of the action not responsible for reimbursing the board the costs associated with his or her disciplinary proceeding.
For more information about the rules governing disciplinary actions, see Rule 9 of the Rules of the Supreme Court of Tennessee.
• • •
What is probation?
Probation may be imposed on an attorney in place of suspension but should be used only in cases where there is little likelihood that the attorney will harm the public during the period of rehabilitation, and where conditions of probation -- which are to be stated in writing -- can be adequately supervised. The attorney placed on probation is responsible for all costs associated with probation, including paying for a probation monitor. In the event that any probation conditions are not met, the Board of Professional Responsibility may file a petition to revoke probation and impose suspension.
• • •
What is a suspension?
Orders imposing suspension are effective 10 days after issuance, except where the court finds that immediate suspension is necessary to protect the public. On the effective date of the suspension order, if not immediately, a lawyer may not undertake new legal matters and must cease representing current clients. A lawyer given temporary suspension, however, may continue representing current clients for 30 days. On the effective date of the order, the lawyer must cease using any indicia of lawyer, legal assistant or law clerk and may not maintain a presence where the practice of law is conducted.
The lawyer must notify all clients, co-counsel and opposing counsel of the suspension order, maintain records of the notification and make such records available to disciplinary counsel on request. The lawyer also must return to clients any papers or property to which they are entitled. Within 10 days of the order’s effective date, the lawyer must show compliance with the order and Supreme Court rules.
An attorney suspended for one year or more may not resume practice until reinstated by the Supreme Court. At the conclusion of the suspension period, such attorney must show by clear and convincing evidence that he has the moral qualifications, competency and learning required to practice law, and that resumption of his practice would not be detrimental to the integrity and standing of the bar or the administration of justice or be subversive to the public interest. An attorney suspended for less than one year with conditions may resume practice after the suspension period by showing compliance with those conditions. An attorney suspended for less than one year with no conditions may resume practice without reinstatement. A lawyer given a temporary suspension may petition the court for modification or dissolution of the order for good cause.
• • •
What is disbarment?
Black’s Law Dictionary defines disbarment as a special proceeding peculiar to itself that is neither a civil nor criminal action but a disciplinary proceeding resulting from the inherent power of the court over its officers. Disbarment terminates the individual’s status as a lawyer and, as such, is the harshest penalty available to the Board of Professional Conduct and the state Supreme Court when weighing the imposition of discipline on an attorney. Provisions governing disbarment in Tennessee are found throughout Supreme Court Rule 9. In this state, disbarment becomes effective 10 days after an order of the court.
Grounds for disbarment
In deciding whether to impose disbarment on an attorney, the board relies heavily on the American Bar Association’s Standards for Imposing Lawyer Sanctions. These guidelines spell out specific conduct for which various forms of discipline are generally appropriate. Disbarment is to be imposed for conduct stated below that causes injury or potential injury to a client or the legal process.
- Knowingly converting client property.
- Knowingly revealing information not lawfully permitted to be disclosed.
- Representing a client knowing that one’s own or another client’s interests are in conflict.
- Abandoning a practice, knowingly failing to perform services for a client or engaging in a pattern of neglect with respect to client matters.
- Lacking understanding of fundamental legal doctrines or procedures.
- Knowingly deceiving a client to benefit oneself or another.
- Engaging in, attempting to engage in, or soliciting another to engage in serious criminal conduct.
- Engaging in any intentional conduct involving dishonesty, fraud, deceit or misrepresentation that calls into question fitness to practice.
- Knowingly misusing a position of public trust to benefit oneself or another.
- Making a false statement, submitting a false document or improperly withholding information.
- Knowingly violating a court order or rule to benefit oneself or another.
- Tampering with a witness or making ex parte communication with a judge or juror.
- Intentionally violating the terms of a disciplinary order or continuing to be suspended for the same misconduct.
Disbarment by consent
In addition to having disbarment imposed by the Supreme Court at the conclusion of a disciplinary proceeding, an attorney who is the subject of misconduct allegations may volunteer to be disbarred at any point during the disciplinary process. To do so, he must sign an affidavit stating that he: (1) consents to disbarment; (2) is giving consent freely and voluntarily; (3) is not subject to coercion or duress; (4) is fully aware of the implications of consent; (5) acknowledges that the facts alleged in the disciplinary action are true; and (6) believes that no successful defense could be made if the conduct were prosecuted.
An affidavit of disbarment by consent is filed with the board, which then files a copy with the Supreme Court. The court in turn enters an order disbarring the attorney. The order becomes a matter of public record; however, the affidavit is not publicly disclosed or made available for use in any other proceeding except by order of the court.
Duties of a disbarred attorney
An attorney who is disbarred must comply with a number of requirements stipulated in Section 18 of Rule 9. Specifically, the lawyer must:
- Notify all clients, co-counsel and opposing counsel of the court’s action. Notification must be by registered or certified mail with return receipt requested.
- Maintain records of the notification and make them available to disciplinary counsel on request.
- Deliver to all clients any papers or other property to which they are entitled.
- Refund any fees, expenses or costs paid in advance that have not been earned or expended.
- File leave to withdraw from any court, agency or tribunal where litigation is pending.
- Not undertake any new legal matters, maintain a presence where the practice of law is conducted or use any indicia of lawyer, counselor at law, legal assistant, law clerk or similar title.
- File with the board an affidavit showing compliance with the provisions of the order and the requirements stated above; providing the names of all other jurisdictions where he is admitted to practice; and providing an address where future communication is to be directed.
- Reimburse the board for the costs of the proceeding.
The reinstatement process is governed by the provisions of Rule 9, Section 19.
Petition. A disbarred attorney may petition the court for reinstatement no earlier than five years after the effective date of disbarment. Petitions for reinstatement are filed with the board and referred to a hearing committee in the disciplinary district where the petitioner maintained an office at the time of disbarment. In addition to filing the petition, the attorney must make an advanced deposit in an amount determined by the board to cover anticipated costs of the reinstatement proceeding.
Hearing. At the hearing, the attorney bears the burden of demonstrating by clear and convincing evidence that (1) he has the moral qualifications, competency and learning in law required to practice law and (2) resumption of the practice of law would not be detrimental to the integrity and standing of the bar or the administration of justice, and would not be subversive to the public interest. After concluding the hearing, the committee has 30 days to report its findings and decision to the board.
Reinstatement denied. If the hearing committee finds that the attorney is unfit to resume the practice of law, the petition is dismissed and the attorney must wait at least three years before again seeking reinstatement.
Reinstatement approved. If the hearing committee decides that the attorney should be reinstated, it may impose additional conditions such as requiring restitution to those harmed or re-passage of the bar exam. It then forwards its decision to the board.
BPR review. Upon receiving the hearing committee’s report, the board has 60 days to review the record and either appeal the decision or recommend its approval to the Supreme Court.
Supreme Court action. The court is given wide latitude to take the action it deems appropriate when presented with a reinstatement request. Without an order from the court, however, no attorney may return to the practice of law.
Appeals. If either party (the board or petitioner) is dissatisfied with the hearing committee’s decision, it may request judicial review. Appeals are to be made to the county court where the petitioner practiced law at the time of disbarment. The trial judge is to weigh the evidence and determine the facts by a preponderance of the proof. Either party dissatisfied with the decree of the circuit or chancery court may appeal directly to the Supreme Court.
• • •
What is disability inactive status?
Attorneys in Tennessee are placed on disability inactive status by the state Supreme Court for four primary reasons:
- being declared incompetent by a court;
- being involuntarily committed on the grounds of incompetence or disability;
- being detained or placed in a mental illness treatment center after a probable cause hearing; or
- being incapacitated from continuing practicing law by reason of mental infirmity, illness or addiction to drugs or intoxicants.
In addition, any lawyer – with no disciplinary proceeding or complaint pending – may ask to be transferred to disability inactive status.
Disability inactive status takes effect immediately and remains in effect until further order of the court. However, any attorney transferred to disability inactive status is entitled to petition the court once a year (or at shorter intervals if the court allows) for reinstatement to active status. To return to active status, the attorney must show by clear and convincing evidence that the disability has been removed and that he or she is fit to resume the practice of law. In reviewing the petition for reinstatement, the court may takesuch action it deems necessary to determine whether the disability has been removed. This includes requiring a medical examination of the attorney and/or requiring the attorney to disclose the names of doctors who have examined or treated the individual since taking disability inactive status.
If an attorney is party to a disciplinary proceeding, and in the course of that proceeding contends that a disability makes it impossible to provide an adequate defense, the court must immediately enter an order transferring the lawyer to disability inactive status. The lawyer remains in such status until a determination can made of his or her capacity to continue practicing law. The pending disciplinary proceeding is held in abeyance until the attorney is deemed competent to practice law or is reinstated to active status.
For each lawyer transferring to disability inactive status, the Board of Professional Responsibility publishes notice in the legal journals, newspapers and courts in counties where the attorney maintained an office. If the attorney has no partner, executor or other responsible party capable of conducting his or her affairs while on disability inactive status, the presiding judge in the judicial district in which the lawyer maintained a practice must appoint a third party to protect the interests of the disabled and his or her clients.
For more information about the rules governing disability inactive status, see Rule 9, Section 21 of the Rules of the Supreme Court of Tennessee.
• • •
What is reciprocal discipline?
Reciprocal discipline means that a lawyer who is subject to public discipline in one state may be disciplined for the same misconduct in other states where he or she is licensed. The requirement is premised on the concept that to allow a lawyer who has been suspended or disbarred in one jurisdiction to continue practicing in another exposes the public to unjustified harm and undermines confidence in the judicial system.
The guidelines governing reciprocal discipline in Tennessee are found in Rule 9, Section 17 of the Supreme Court Rules. Under these provisions, an attorney licensed in Tennessee who has been disciplined in another jurisdiction is required to promptly report that fact to the disciplinary counsel of the Board of Professional Responsibility. Courts in other jurisdictions also routinely report to the board any disciplinary actions imposed on Tennessee-licensed lawyers. Regardless of how disciplinary counsel initially is notified, counsel must obtain a certified copy of the disciplinary order and file a copy with the board and the Supreme Court.
Opportunity for challenge
The court must give the disciplined attorney notice of the out-of-state order and inform the attorney that he or she has 30 days to prove that identical discipline in Tennessee is unwarranted. A successful challenge to the imposition of reciprocal discipline must clearly show that one of the following three conditions exists:
- The procedure in the out-of-state jurisdiction was so lacking in notice or opportunity to be heard as to constitute a deprivation of due process.
- There was such a lack of proof establishing the misconduct that the Supreme Court is clearly convinced it cannot accept the conclusion.
- The misconduct warrants substantially different discipline in Tennessee.
Challenges may be made by the attorney or by disciplinary counsel of the board. In addition, the Supreme Court may find on the face of the record that identical discipline is not warranted. If the court determines (on its own or as the result of a challenge) that one of these elements exists, it is free to enter any other order it deems appropriate. If none of these elements are present, the court must impose identical discipline at the conclusion of the notice period. The only exception to this schedule is if the discipline imposed in the other jurisdiction has been stayed. In that case, the Tennessee court would defer reciprocal discipline until the stay expires.
Process for reinstatement
Unlike the imposition of discipline – which occurs automatically unless certain limited conditions are met – reinstatement to the practice of law in the original jurisdiction does not guarantee or automatically result in reinstatement in Tennessee. Once reciprocal discipline is imposed in this state, the attorney must follow Tennessee court rules governing reinstatement. Only after that process has been satisfactorily completed may the attorney again practice law in Tennessee.
• • •
What is the Tennessee Lawyers’ Assistance Program?
The Tennessee Lawyers Assistance Program (TLAP) is a confidential peer assistance program that is exempt from reporting illegal or unethical conduct. In fact, the only time TLAP communicates with any court, board or disciplinary body is when a client specifically requests its involvement and advocacy in addressing legal or disciplinary matters, or when the referral comes from a court, board or disciplinary agency, such as in the case of a probationary or provisional condition imposed by the Board of Professional Responsibility (BPR).
When imposing discipline on an attorney, the BPR may require an attorney to seek the assistance of TLAP, and engage in TLAP’s monitoring and advocacy program for purposes of peer support, structure and accountability.
TLAP is a free confidential assistance program that serves lawyers, judges, bar applicants and law students struggling with a variety of treatable illnesses or conditions, such as substance abuse, dependency, stress, anxiety, professional burnout, family dysfunction, depression, compulsive disorders (e.g., eating, spending, working, gambling or pornography), senility or physical handicaps. The program provides a range of services including, but not limited to, consultation, referral, intervention, peer support, monitoring and advocacy. In addition to referrals from the BPR, TLAP accepts referrals from courts, the Court of the Judiciary, the Board of Law Examiners, other disciplinary bodies, law firms and law schools. TLAP also welcomes self-referrals and referrals from concerned third parties such as family members, peers, partners, colleagues, friends and health care providers.
The Tennessee Supreme Court created TLAP in 1999 in response to a Tennessee Bar Association (TBA) petition calling for a statewide lawyer assistance program. Prior to that time, TBA and a number of local bars operated individual peer assistance programs. While these early programs received strong support from the legal community, they lacked adequate funding, staff and volunteers. Recognizing the limitations of a decentralized system, TBA petitioned the Supreme Court to establish a comprehensive program with the funding necessary to staff and serve the needs of the state’s legal profession.
The court responded by establishing a statewide peer assistance program, funding it with an annual dues assessment (currently set at $20 per lawyer) and appointing a commission and executive director to run day-to-day operations. Members of the TLAP Commission are appointed by the Supreme Court for three-year terms and may not serve more than two consecutive three-year terms. The commission’s chair, vice chair and secretary/treasurer also are appointed by the court.
TLAP was established by Rule 33 of the Rules of the Supreme Court of the State of Tennessee. That rule continues to govern its operations and sets out its official mission to provide “immediate and continuing help to lawyers, judges, bar applicants and law students who suffer from physical or mental disabilities that result from disease, disorder, trauma or age and that impair their ability to practice or serve.” In addition to its central mission of providing direct assistance, TLAP is responsible for educating the bench and bar membership on the causes of and remedies for such impairments, how problems can be recognized and how lawyers can interact appropriately with affected individuals. TLAP also helps plan and conduct interventions; monitors and documents compliance; and identifies aftercare services, peer support groups, private counselors and medical providers. Finally, under its charter, TLAP may operate a revolving loan fund to provide impaired lawyers low interest loans to maintain client obligations or defray the cost of treatment while working with the program. Funding for this service, however, must come from non-dues revenue such as grants, gifts or bequests. This service has never been funded, but the TLAP Commission is committed to finding ways to raise funds for this purpose.
All communications with TLAP are confidential, and members of TLAP are relieved of their duty to report ethical violations discovered as a result of their work. This means that any misconduct or ethical violation discovered or revealed during TLAP monitoring is not reported to any disciplinary board. Additionally, communications with TLAP are privileged by virtue of Tenn. Code Ann. Sec. 23-4-101, et seq.
The one exception to this strict client confidentiality is the case of a referral by a disciplinary agency such as the Board of Professional Responsibility, the Court of the Judiciary or the Board of Law Examiners. In such case, TLAP may provide progress reports or reports of non-compliance to the referring agency and reports may be used in any disciplinary proceeding or appeal related to the case.
TLAP currently has a full-time staff of three individuals: an executive director, an assistant director and a program coordinator. The service, therefore, relies heavily on peer volunteers who act as program sponsors; serve as liaisons to law schools, courts and bar organizations; assist in interventions; and provide peer support and compliance monitoring.
Since its inception seven years ago, TLAP has received more than 1,322 requests for services and referrals. To learn more visit the program’s Web site at http://www.tlap.org/.
• • •
More tools in the disciplinary toolbox
The following describes the conditions the Board of Professional Responsibility may recommend when asking the Tennessee Supreme Court to discipline or reinstate an attorney.
Impaired lawyer programs
Under Tennessee Supreme Court Rule 9, Section 28 bar associations and other approved entities may establish impaired lawyer programs to intervene when lawyers experience substance abuse, mental illness or other problems that affect professional conduct. Participation in one of the programs may be required as part of a disciplinary or reinstatement action. Like the Tennessee Lawyer Assistance Program (TLAP), these local programs offer confidential services and are exempt from reporting violations of professional conduct rules. Interestingly, the Supreme Court currently is considering a proposed rule change, requested by TLAP and the Board of Professional Responsibility, which would alter the role of these local programs. The proposed language would limit their involvement to peer assistance only, removing them from the monitoring of disciplined attorneys.
An attorney being disciplined or seeking reinstatement also may be required to obtain a practice monitor. Practice monitors typically are licensed attorneys in the same city or firm as the disciplined lawyer. Monitors may be designated in three ways: by disciplinary counsel, by the hearing panel with jurisdiction over the case or by the attorney himself with the approval of disciplinary counsel. Regardless of how the individual is initially chosen, the Supreme Court must also approve the selection. The named monitor must agree to meet with the disciplined lawyer on a regular basis and report any substantial practice problems to the Board of Professional Responsibility. In some cases the court is very specific about the relationship between the attorney and the monitor. For example, in one case it required a face-to-face meeting between the two every two weeks. In another, it required the monitor to file monthly reports for one year, while in another it required quarterly reports for five years. In some cases, however, the court is silent on these elements, allowing the parties to determine the level of interaction.
Trust account monitor
In addition to practice monitors, disciplinary agencies also may require a trust account monitor. These monitors primarily provide financial guidance to disciplined attorneys, but in some cases are empowered to approve disbursements from trust accounts. Practice monitors may serve as trust account monitors or a second attorney may be identified to fill the role. In some unique cases, a disciplinary counsel at the Board of Professional Responsibility serves as the monitor.
Finally, an attorney being disciplined, seeking reinstatement or negotiating a plea agreement may be subjected to any number of conditions, including but not limited to:
Completing additional continuing legal education
Attending courses such as the Board of Professional Responsibility’s ethics workshop or the Tennessee Law Institute’s review program
- Making restitution to clients
- Paying the costs of the disciplinary proceeding
- Passing the Tennessee bar exam
- Serving a probationary period
- Completing community service hours
- Writing apologies to judges and clients
- Submitting essays on the infraction to state and local bar associations
• • •
The Board of Professional Responsibility
The Journal now turns its attention to a review of the disciplinary structure and process that governs the ethical behavior of attorneys in the state. Information is based on Rule 9 as amended by the Tennessee Supreme Court in 2006.
The Tennessee Supreme Court created the Board of Professional Responsibility (BPR) in 1976 to supervise the ethical conduct of attorneys in the state. In recent years, its functions have expanded to include a range of lawyer and consumer assistance services.
The BPR is comprised of nine lawyers and three non-lawyers who serve no more than two consecutive three-year terms. The Supreme Court designates the chair and vice chair of the board and fills any vacancies that occur. Each lawyer member of the board must reside in one of the state’s nine disciplinary districts and each public member must reside in one of the three grand divisions. Members of the board do not receive compensation for their services but are reimbursed for travel and other official expenses. The board’s staff consists of nine full-time disciplinary counsels and 10 support staff.
Disciplinary enforcement. The BPR is charged with investigating alleged unethical behavior brought to its attention or discovered on its own and taking action necessary to enforce state disciplinary rules. It is empowered to adopt written policies to guide the resolution of complaints, investigations and formal proceedings and to monitor compliance with those guidelines. The BPR also assigns attorneys to serve on committees within each of the state’s nine disciplinary districts who review, modify or approve recommendations to dismiss complaints or impose private informal admonitions on lawyers. It also reviews the work of district committees if the disciplinary counsel appeals their decision. Finally, the BPR itself reviews recommendations for private reprimands, public censures or formal charges. It may choose to modify or approve such recommendations, dismiss complaints or assign complaints to a district committee.
Ethics opinions. The BPR is responsible for issuing and publishing ethics opinions either on its own initiative or when requested to do so. The Supreme Court gave the board this responsibility in 1980 as a proactive way to prevent ethical misconduct. Formal opinions constitute principles that attorneys may rely on for professional guidance as they bind the BPR and the person requesting the opinion. Requests for formal ethics opinions are to be made in writing and may not address issues currently in litigation. The BPR also responds to informal inquires from attorneys seeking ethical guidance or interpretations of the Rules of Professional Conduct. However, advisory opinions issued verbally are not binding on the BPR or the court.
Professional enhancement. In 1997, the court implemented a professional enhancement program as an alternative to discipline for technical violations of ethics rules that do not cause harm. The BPR produces ethics seminars throughout the year that provide learning opportunities for lawyers in these situations.
Trust account overdraft notice. In 1995, the court implemented an overdraft notice program to address a serious problem of misappropriation of trust funds by a small but significant segment of the bar. Attorneys are now required to maintain trust accounts in financial institutions that agree to report negative balances to the board. More than 300 financial institutions participate in the program.
Registration of intermediary organizations. Intermediary organizations are groups such as lawyer-advertising cooperatives, lawyer referral services and prepaid legal service providers that refer customers to lawyers. Since 2004, they have been required to register annually with the BPR, disclosing their organizational structures, contractual forms, rates, marketing plans and financial statements.
Registration of pro hac vice attorneys. Lawyers licensed in other jurisdictions ordinarily are not permitted to practice in Tennessee courts without being admitted pro hac vice. In 2004, the Supreme Court amended the rule on pro hac vice admission to require attorneys to file their motion for admission with the board at the same time they file with the court. Additionally, pro hac vice attorneys, like Tennessee lawyers, are required to pay an annual fee to the board. The board maintains a list of attorneys admitted under this process on its Web site at www.tbpr.org.
Consumer Assistance Program (CAP). In 2002, the BPR established CAP as a way of resolving consumer concerns that do not reach the level of serious ethical violations. Under the program consumers may request informal mediations or referral to other entities such as fee dispute committees, lawyer-referral services and pro bono agencies. The BPR also offers a number of consumer resources on its Web site such as a guide to handling communication problems with attorneys, handling fee disputes and filing formal complaints when all other options prove unsatisfactory. According to the BPR, CAP handles an average of 21 new contacts from potential complainants each business day.
Additional responsibilities. The BPR offers a searchable database of lawyers licensed and/or disciplined in Tennessee and posts press releases regarding recent disciplinary action on its Web site at www.tbpr.org. It also publishes Board Notes twice a year, informing readers of information affecting Tennessee’s legal profession. In addition, the board files annual reports with the Supreme Court documenting its work and highlighting ethical and disciplinary trends in the state. Finally, it is charged with recommending amendments to or clarifications of the Rules of Professional Conduct, as it deems advisable.
• • •
To assist the Supreme Court and the Board of Professional Responsibility in the execution of its disciplinary duties, the court created the position of chief disciplinary counsel. The chief disciplinary counsel is appointed by and serves at the pleasure of the court, and is subject to performance evaluations and monitoring by the board.
The chief disciplinary counsel is empowered to hire and supervise necessary staff. In addition to administrative staff, the chief disciplinary counsel employs so-called staff disciplinary counsels, who handle the majority of cases. All disciplinary counsels are immune from civil suit for conduct taken in the course of official duties. The board currently employs a chief disciplinary counsel, a deputy chief disciplinary counsel and six full-time disciplinary counsels.
All investigations of alleged unethical conduct are initiated and conducted by disciplinary counsel. Upon the conclusion of an investigation, disciplinary counsel may recommend dismissal of the case, diversion to a professional enhancement program, informal admonition, private reprimand, public censure or prosecution of formal charges.
To initiate a formal disciplinary proceeding before a hearing panel, disciplinary counsel files a petition with the board detailing the alleged misconduct. The lawyer facing disciplinary action is provided a copy of the petition and has 20 days to provide a response to disciplinary counsel. If a hearing on the matter is held, disciplinary counsel plays the role of prosecutor and must prove his case by a preponderance of the evidence. During such hearings, disciplinary counsel is empowered to administer oaths and affirmations and obtain subpoenas to compel the attendance of witnesses and the production of documents. If disciplinary counsel determines that formal charges are not necessary, he may recommend dismissal, diversion or an informal admonition. Such recommendations are reviewed and either approved or modified by one member of the district committee appointed to hear disciplinary cases in that jurisdiction. If counsel recommends a private reprimand or public censure, the decision is reviewed and either approved or modified by the board.
Disciplinary counsel also may petition the Supreme Court to immediately and temporarily suspend an attorney or impose temporary conditions of probation in cases involving misappropriation of funds, failure to respond to a complaint of misconduct, failure to comply with a Tennessee Lawyer Assistance Program contract or a threat of substantial harm to the public.
In addition to initiating and conducting disciplinary proceedings, disciplinary counsel also performs the following duties:
Advisory opinions. Disciplinary counsel is empowered to issue advisory ethics opinions when there is readily available precedent. These opinions are given orally and are not binding on the board or the requesting attorney.
Approval of diversion. Disciplinary counsel may be called on to approve the diversion of a lawyer from disciplinary proceedings to practice and professionalism enhancement programs.
Referrals to TLAP. Disciplinary counsel may refer to the Tennessee Lawyer Assistance Program (TLAP) any attorney he determines has failed to respond to a disciplinary complaint, has received three or more complaints within a year, has received a complaint that includes multiple failures to appear or respond, has pleaded impairment or disability as a defense to a complaint, has exhibited or engaged in behavior that warrants consultation, is seeking reinstatement where there is a question of impairment or disability, or is requesting TLAP assistance.
Reinstatement process. Reinstatement requests from attorneys who have been suspended, disbarred or transferred to disability inactive status are filed with disciplinary counsel. The counsel then evaluates the request and files appropriate pleadings with a district committee appointed to hear disciplinary cases in that jurisdiction. During reinstatement hearings, disciplinary counsel conducts cross-examination of witnesses.
Revocation of probation. Disciplinary counsel may petition the Supreme Court to revoke probation for an attorney who violates or fails to meet conditions imposed in lieu of discipline. Disciplinary counsel also is responsible for filing responses to any motions filed by the attorney in question during revocation hearings conducted by the district committee appointed to hear disciplinary cases in that jurisdiction.
Filings with the court. Disciplinary counsel is responsible for filing with the Supreme Court any certificates of conviction from other courts for attorneys convicted of crimes, copies of disciplinary orders from other jurisdictions and contempt orders from other courts.
Determinations of incapacity. Disciplinary counsel is charged with conducting proceedings to determine the incapacity of attorneys to appear before hearing panels, trial courts and the Supreme Court.
Verification of bank accounts. If disciplinary counsel has probable cause to believe that a lawyer’s bank account contains, should contain or has contained funds belonging to clients that have been improperly maintained, or that funds have not been properly handled, disciplinary counsel may request that the chair or vice chair of the board approve an investigation. If such an investigation is approved, disciplinary counsel is empowered to verify the accuracy and integrity of all bank accounts maintained by the lawyer.
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For purposes of disciplinary jurisdiction, the state of Tennessee is divided into nine districts. Disciplinary districts are drawn based on county lines, with some districts covering just one county and others encompassing up to 23. Districts are set by the state Supreme Court and identified in Rule 9, Section 2, as follows:
District I: Johnson, Carter, Cocke, Greene, Hancock, Grainger, Jefferson, Sullivan, Washington, Unicoi, Hawkins, Claiborne, Hamblen and Sevier.
District II: Campbell, Anderson, Roane, Blount, Morgan, Union, Knox, Loudon and Scott
District III: Polk, Hamilton, Sequatchie, Bledsoe, Meigs, Monroe, Bradley, Marion, Grundy, Rhea and McMinn.
District IV: White, Van Buren, Pickett, Putnam, Overton, Clay, Franklin, Moore, Bedford, Rutherford, Wilson, Trousdale, Warren, Fentress, Cumberland, Smith, Jackson, Coffee, Lincoln, Marshall, Cannon, DeKalb and Macon.
District V: Davidson.
District VI: Giles, Wayne, Lewis, Maury, Humphreys, Cheatham, Montgomery, Robertson, Lawrence, Perry, Hickman, Dickson, Houston, Stewart, Sumner and Williamson.
District VII: Henry, Carroll, Henderson, Hardeman, Hardin, Benton, Decatur, Chester, Fayette, McNairy and Madison.
District VIII: Weakley, Lake, Gibson, Haywood, Tipton, Obion, Dyer, Crockett and Lauderdale.
District IX: Shelby.
Next month read about district disciplinary committees and how they use hearing panels to evaluate complaints against attorneys.
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District committees & hearing panels
Overview of disciplinary district committees
Tennessee has nine disciplinary districts created by the state Supreme Court to conduct inquiries into allegations of improper conduct. Within each district, the Supreme Court appoints a committee to hear disciplinary cases. The Board of Professional Responsibility and local bar associations in each district may recommend to the court particular individuals they believe would serve well in that role. Rules governing district committees are found in Section 6 of Rule 9. Committees are to be comprised of no less than five and no more than 30 licensed attorneys who maintain a law practice in the district or reside in the district if they do not actively practice law. Committee members may serve two consecutive three-year terms but must take a year off before being reappointed a third time. Terms are staggered so that only a third of the members step down each year.
Overview of hearing panels
District committees conduct inquiries into charges of unethical conduct through the use of hearing panels. Panels are composed of three district committee members who are assigned to cases by the Board of Professional Responsibility on a rotating basis. Each panel elects a chair, holds appropriate hearings and within 15 days submits its findings and judgment to the board. The hearing panel can act only with the concurrence of a majority of its members. In determining the appropriate level of discipline, the hearing panel is to rely on the ABA Standards for Imposing Lawyer Sanctions. Appeals of hearing panel decisions are made to the circuit or chancery court in the county where the respondent practices law.
How these bodies function in the disciplinary process
Disciplinary counsel investigates allegations of ethical misconduct and is authorized by the rules of the Supreme Court to recommend a range of remedies, from dismissal of a case to the filing of formal charges. District committees and hearing panels play different roles at different times, depending on the recommended discipline.
Dismissal or informal admonition. If disciplinary counsel recommends dismissal of a case or imposition of an informal admonition, the decision is reviewed by one district committee member in the disciplinary district where the subject of the complaint practices law. This individual, known as the “reviewing member,” may approve or modify the recommendation. If disciplinary counsel or the individual bringing the complaint is dissatisfied with the reviewing member’s decision, an appeal may be made to the board. The board may approve, modify or disapprove the reviewing member’s decision or direct that the matter be investigated further. If the attorney who is the subject of the complaint (the respondent) is dissatisfied, he may request a formal proceeding before a hearing panel after 20 days.
Reprimand or censure. If, after investigating a complaint, disciplinary counsel recommends and the board approves a private reprimand or public censure that is not acceptable to the respondent, the proposed discipline is vacated and held in abeyance. Counsel then may ask the board for authority to bring formal charges before a hearing panel. The board may approve or disapprove that request. If the board approves the decision, a hearing panel is convened.
Formal charges. If disciplinary counsel recommends prosecution of formal charges before a hearing panel, the board reviews the decision and may approve or modify the recommendation. If the board approves the decision, a hearing panel is convened.
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Attorneys convicted of a crime
Rule 9, Section 14 of the Rules of the Supreme Court governs the disciplinary process employed when a Tennessee-licensed attorney is a defendant in a criminal case involving a “serious crime.” Section 14.2 defines a “serious crime” as any felony under the laws of Tennessee and any other crime that involves improper conduct as an attorney, interference with the administration of justice, false swearing, misrepresentation, fraud, willful failure to file income tax returns, deceit, bribery, extortion, misappropriation, theft, or solicitation of another to commit any of these crimes.
An attorney being prosecuted for a serious crime who enters a plea of no contest, enters a guilty plea, or is found guilty by a jury or trial court is immediately suspended from the practice of law. The Tennessee Supreme Court is empowered to act on its own when it learns of convictions. The suspension is imposed regardless of whether the attorney intends to appeal the conviction and remains in effect until all appeals have been exhausted. If a conviction is thrown out on final appeal, the attorney’s license to practice law is immediately reinstated.
Formal disciplinary hearing
In addition to suspending a convicted attorney, the Supreme Court refers the matter to the Board of Professional Responsibility, which is to initiate a formal proceeding before a hearing panel. However, unlike the suspension, which occurs immediately, the hearing is not to be conducted until all court appeals are concluded.
If a conviction is thrown out on final appeal, reinstatement by the court does not terminate a pending disciplinary proceeding. In this situation, the hearing panel and the board retain the right to determine what, if any, discipline is appropriate.
An attorney who is subject to discipline in Tennessee, but lives in or commits a crime in another state, is subject to the same process described above. However, in these cases, disciplinary counsel for the board bears the responsibility for ensuring that the Supreme Court obtains a certificate of conviction from the out-of-state jurisdiction.
An attorney who is the subject of a pending prosecution may at any time consent to disbarment by signing an affidavit stating that he is giving consent freely and voluntarily, is not subject to coercion or duress, is fully aware of the implications of consent, acknowledges that the alleged facts are true and believes that no successful defense can be made. The affidavit is filed with the board, which then files a copy with the Supreme Court. The court in turn enters an order disbarring the attorney. The order becomes a matter of public record, however, the affidavit is not publicly disclosed or made available for use in any other proceeding except by order of the court.
Crimes other than serious crimes
If the Supreme Court receives a certificate of conviction for a crime that does not rise to the level of a serious crime, the court is to refer the matter to the board. The board then may take whatever action it deems appropriate. For minor offenses, however, the court in its discretion may decide not to refer the matter to the board. In these cases, no discipline is imposed.
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Investigating and disciplining sitting judges
Code of Judicial Conduct
Rule 10 of the Rules of the Supreme Court embodies the Tennessee Code of Judicial Conduct, which establishes standards for the ethical conduct of judges. The code applies to anyone who is an officer of a judicial system and who performs judicial functions, whether or not the person is a lawyer. Covered individuals include magistrates, court commissioners, judicial commissioners, special masters, divorce referees, juvenile referees or any other referee performing judicial functions. Some exceptions are made for retired judges, pro tempore judges and part-time judges.
The code is intended to provide a structure for regulating conduct through the state disciplinary agencies and not as a basis for civil liability or criminal prosecution. It consists of broad statements called “canons,” as well as defined terminology and commentary to help discern the meaning of the canons. The code’s five canons are as follows:
Canon 1: A judge shall uphold the integrity and independence of the judiciary.
Canon 2: A judge shall avoid impropriety and the appearance of impropriety.
Canon 3: A judge shall perform the duties of judicial office impartially and diligently.
Canon 4: A judge shall conduct extra-judicial activities so as to minimize the risk of conflict with judicial obligations.
Canon 5: A judge or judicial candidate shall refrain from inappropriate political activity.
Judicial Ethics Committee
The Supreme Court created the Judicial Ethics Committee in 1988 to provide ethical guidance to judges in the state. Its role and structure are detailed in Supreme Court Rule 10A, which stipulates that the committee is to consist of five members (one appellate judge, one trial judge from each grand division and one general sessions judge) who are appointed by the Supreme Court. Each member serves a term of four years without compensation. The committee’s primary function is to issue formal ethics opinions on proper professional conduct when requested to do so by judges. Opinions, which must be approved by a majority of the committee, constitute a body of principles and objectives that judges can rely on for guidance.
Court of the Judiciary
The Court of the Judiciary is the state disciplinary body responsible for investigating complaints against judges. The court is composed of 16 members who are appointed as follows:
- any combination of three judges from the Court of Appeals and Court of Criminal Appeals appointed by the Supreme Court;
- one trial judge from each grand division appointed by the Supreme Court;
- one practicing attorney from each grand division appointed by the Tennessee Bar Association;
- three public members, one of whom is appointed by the speaker of the Senate, one by the Speaker of the House of Representatives and one by the governor;
- one general sessions or juvenile court judge from each grand division appointed by the Supreme Court;
- and one municipal court judge appointed by the Supreme Court.
The members of the court select from among themselves a presiding judge. Each member serves without compensation for a term of four years and is eligible for reappointment to one additional term. The court is authorized to hire a disciplinary counsel and other staff as necessary.
Disciplinary Counsel. Disciplinary counsel for the court receives and screens complaints against judges. Complaints must be made in writing and be notarized. After receiving a complaint, disciplinary counsel refers the matter to an investigative panel of the court. Counsel continues to assist in preliminary and full investigations, keeps complainants informed on the status of the case, and when necessary, files and prosecutes formal charges.
Investigative Panel. Investigative panels are appointed by the presiding judge and composed of three court members. Panels conduct an initial review of the complaint and either authorize a full investigation or dismiss the matter. If a full investigation is ordered, the matter is returned to disciplinary counsel for an investigation and recommendation. The counsel’s report is then reviewed by the investigative panel, which may approve, modify or disapprove the recommendation. If the panel believes there is probable cause that a judge has committed a judicial offense, it has three options: it may direct disciplinary counsel to file formal charges, propose that the judge consent to private admonition or propose that the judge consent to a deferred disciplinary agreement, which requires remedial activity such as continuing legal education.
Hearing Panel. If formal charges are filed, the proceeding moves to a hearing panel of the court. The hearing panel is comprised of all members of the court except for those members who served on the investigative panel. The presiding judge rules on the admission or exclusion of evidence; however, his decisions may be appealed to the full court. Following a trial, the hearing panel may impose sanctions or dismiss the case.
Available Sanctions. The following sanctions are available to the court upon completion of a trial: suspension with pay, limitations on the performance of judicial duties, private letters of reprimand, private censures, deferred disciplinary agreements, public letters of reprimand, public censures or recommendations for removal from office. If the court recommends removal from office, the recommendation is transmitted to the legislature for potential impeachment proceedings. The court may also refer judicial misconduct to the Board of Professional Responsibility for an evaluation of whether the judge’s law license should be suspended or revoked. Upon the imposition of discipline, an aggrieved judge may appeal the court’s judgment to the Supreme Court within 30 days. Within 15 days after all briefs are filed, the Supreme Court is to hear oral arguments in the case and issue a written opinion within 30 days. Its judgments are final.
For more information on the Court of Judiciary and disciplinary proceedings against judges, see Tenn. Code Ann. Sections 17-5-201 through 17-5-314.