Supreme Court Adopts Major Changes to Disciplinary Rules

The Tennessee Supreme Court on Friday (Aug. 30) 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.

However, the new rule did 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.

Among changes that take effect Jan. 1, 2014, are:

  • Adoption of a comprehensive set of rules and enumeration of obligations and protections for attorneys and clients alike to permit court-appointment (and even advanced designation) of “receiver attorneys” to step into the breach when a lawyer unexpectedly dies or becomes disabled;
  • Inclusion of recusal standards for hearing panel members tied directly to the Code of Judicial Conduct (Tenn. Sup. Ct. R. 10);
  • Inclusion of the concept of a “declaration in lieu of an affidavit” consistent with recently adopted Tenn. R. Civ. P. 72;
  • Removal of violations of the “attorney oath of office” as a basis for attorney discipline;
  • Clarification and express recognition of the variety of Tennessee Lawyers Assistance Program (TLAP) agreements available to lawyers;
  • Application of more consistent treatment of both types of private discipline (reprimand and informal admonition);
  • Prohibition against anonymous disciplinary complaints against attorneys;
  • Institutionalization of, and clarification regarding the role of practice monitors in disciplinary proceedings; and
  • Imposition of a suspension when an attorney has been determined to be in default on repayment of any federal family education loan, a student loan guaranteed or administered by the Tennessee Student Assistance Corporation, or any other state or federal educational loan or service-conditional scholarship program. The new rule also outlines the process for pursuing reinstatement.

In addition to the order making changes to Rule 9, the court also adopted an order making changes to Rules 21, 33 and 43. The court reported these changes were needed to make other rules consistent with the revised Rule 9.

Learn more about the new, amended Rule 9 at a CLE set for 12:30 p.m. on Nov. 15. 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, will provide a guided tour of what’s new, what’s unchanged and what may continue to be controversial going forward. Learn more or register here.