New Code of Judicial Conduct Adopted, Praised as Model

Tennessee Bar Association’s proposal adopted

On Jan. 4 the Tennessee Supreme Court adopted the first comprehensive rewrite of the rules governing judicial conduct in more than 20 years. The rules changes, effective July 1, come as a result of a two-and-a-half-year process initiated by the Tennessee Bar Association, including a public comment period and hearing.

“The court has demonstrated it will do what is necessary to maintain public trust and confidence in our justice system,” said TBA President Danny Van Horn of Memphis. “The new rules offer a comprehensive, clear, workable way to ensure that judges are fair and impartial. They also do much to assure that campaign contributions and partisan politics play no role in Tennessee courts as they dispense justice.”

One of the major new emphases of the proposal as adopted by the court is giving better guidance on when a judge should recuse him or herself or be disqualified from hearing a matter. The rules not only address substantive standards for recusal, including the amount of support a judge or the judge’s opponent might receive during a campaign, but also establish a procedure for independent, expedited review of judges’ decisions on recusal and disqualification.

“The Tennessee Supreme Court should be applauded for taking this important step forward,” Justice at Stake Executive Director Bert Brandenburg said in a statement. “Tennessee’s new, forward-looking rules will help ensure public faith in the court system, and provide a model for the rest of the nation to follow.” Added Maria De Silva, research associate for the Brennan Center, “As spending on high court elections continues to skyrocket, judges and litigants need a clear way to address recusal questions related to campaign contributions. Tennessee’s new disqualification rules are a step in the right direction that will help shore up public confidence in the judiciary.”

Read more about the decision and download the order and a summary of the major changes to Rule 10 at www.tba.org/press-release/court-adopts-tbas-judicial-conduct-proposal.

Briefs

Disciplinary actions up; Jones says hard times to blame
In the last five years, the Tennessee Board of Professional Responsibility has nearly doubled the amount of disciplinary actions it has taken against lawyers for having overdrafts in trust accounts, up from 64 in fiscal year 2007-2008 to 127 violations last fiscal year. “Some lawyers, many of them sole practitioners who work on criminal or divorce cases, are having a hard time staying afloat because they aren’t getting enough business,” the BPR’s chief disciplinary counsel Nancy S. Jones told the Tennessean. “Many of them are dipping into their trust accounts ... just to pay toward their business expenses, and they are getting into trouble.”

Legal sector ends year with job losses, but more to hire in 2012
The legal industry ended 2011 on a sour note, losing 1,800 jobs in December, according to the Bureau of Labor Statistics’ employment report. The December losses obliterated the sector’s modest gains of the previous two months: 400 jobs in October and another 400 in November. But about one in three law firms and corporate counsel nationwide plan to add legal staff in the first quarter of 2012, according to the Robert Half Legal Hiring Index. The quarterly survey found that 31 percent of lawyers interviewed plan to add staff in the next quarter, while four percent plan to cut personnel. The net 27 percent increase is up three points from the previous quarter’s forecast. The survey also predicts that the practice areas expected to see the most growth in the next quarter are bankruptcy and foreclosure, litigation, and labor and employment law.

And speaking of bankruptcy as a hot practice area …
Fitch Ratings predicts that the number and size of corporate bankruptcies will double in 2012, after a relatively low number of bankruptcy filings in 2011. In related news, CNN Money reports that middle-market companies are the most likely to enter bankruptcy reorganization, with restaurant, retail and consumer products industries predicted to fare the worst.

Lincoln in battle with ABA over accreditation
In mid-December, Lincoln Memorial University’s Duncan School of Law in Knoxville was denied provisional approval by the American Bar Association (ABA). The school responded with a lawsuit in federal court, saying the ABA denied the school due process and violated federal antitrust laws. The school argued the denial was based, in part, on what it called the ABA’s desire to limit the number of law schools and the number of attorneys, and therefore the number of lawyers practicing across the country. The ABA answered the complaint, saying the school was not in “substantial compliance” with all of its Standards for Approval of Law Schools.

In early January, U.S. District Judge Thomas A. Varlan gave the ABA until Feb. 8 to respond to 126 allegations brought by the school.

Tennessee Supreme Court Justice Gary Wade has said he anticipated the Tennessee Board of Law Examiners will reconsider its approval for the school based on the denial. Wade said that although the board approved the school — allowing its graduates to sit for the Tennessee Bar Exam — that approval was conditioned on ABA accreditation.

TBA selects 17 for student leadership class
The Tennessee Bar Association’s Young Lawyers Division announced the 2012 class of its Diversity Leadership Institute — a six-month leadership and mentoring program for Tennessee law school students. Participants will learn leadership skills, work with an attorney mentor and participate in public service and legal education programs. The 17 selected are Christine Taylor and William Trumm from the Duncan School of Law; Rachel Kirby and Robin Nicholson from the Nashville School of Law; Spencer Bell, Amanda Floyd, Shalondra Grandberry, Joseph Kendrick, William O’Connor, William Terrell and Kenneth Walker from the University of Memphis School of Law; and Shalini Bhatia, Ricardo Cortez, Ryan Donaldson, Jessica Jackson, Austin Kupke and Amy Williams from the University of Tennessee College of Law.

iPhone app released for Pacer
Lawyers who want to search and view federal court records on their iPhones can use a new application developed by a recent law school graduate. The product — FedCtRecords — will cost $19.99 but is free for now while the designer works out minor kinks. According to the Wall Street Journal Law Blog, the app takes the “Pacer desktop experience and replicates it on the iPhone, with no major loss in translation.” There are a few negatives though — users can’t file documents from their phones, search all cases at once, or access bankruptcy files.

Tennessee Bar Association Leadership Conference
Lawyers Offering Hope

“I have worked on cases where I saved companies millions and millions of dollars,” Wendee Hilderbrand said in accepting the Tennessee Bar Association’s (TBA) Harris Gilbert Pro Bono Volunteer of the Year award. “But last year, I helped save a man’s life.” She told of the 2,500 hours of pro bono work she and her team at Bass, Berry & Sims did for then-death row inmate E.J. Harbison, which resulted in commutation to life in prison.

The award was one of three given at the Public Service Luncheon, part of the TBA’s Leadership Conference in Nashville, Jan. 13-15. Metro Nashville Public Defender Dawn Deaner was honored as the Ashley T. Wiltshire Public Service Attorney of the Year, and 3L University of Tennessee College of Law student Brittany Thomas was named Law Student Volunteer of the Year.

The winners inspired the many Tennessee lawyers who had come to honor them. Hilderbrand read a letter that Harbison had written to her early in her representation: “I can’t afford you, but I can’t afford not to have you on my case.”

Deaner spoke of the hopelessness that her clients must feel, which reminds her that “a large part of our jobs as public defenders and public service attorneys is to give our clients hope.” She said the award gives her hope, to know that the work she and others do is valued. “It’s a job I love to do,” she said.

Keynote speaker for the awards luncheon was Kevin Huffman, Tennessee's commissioner of education. Huffman, a lawyer who spent time during school volunteering at New York’s Rikers Island law library said he never met an inmate who was rich or educated. “Education is the social justice issue of our generation,” he said. “It is the root cause of all other social issues.”

The firm of Paine, Tarwater, and Bickers LLP was also honored, having been added to the list of firms that have adopted a pro bono policy.
The weekend conference also included meetings of the association’s Board of Governors, House of Delegates, Young Lawyers, Sections and Committees and more. Sessions included information about public education, legislation and new electronic tools for volunteer leaders to communicate with members. The Young Lawyers Division began the 2012 class of its Diversity Leadership Institute, a six-month leadership and mentoring program for Tennessee law school students.

The Larry Dean Wilks Member Services Center at the Tennessee Bar Center in Nashville was dedicated during the conference. Wilks, a former TBA president and Springfield lawyer, died Aug. 30, 2011. The Member Services Center provides office space, computer access and staff support for members who need a workspace while in downtown Nashville. The Tennessee Legal Community Foundation also unveiled a trophy to be presented to a member of the TBA Leadership Law class each year in memory of Wilks. Leadership Law is a program in its 9th year, which was spearheaded by Wilks, John Tarpley and Gail Vaughn Ashworth. Ashworth, one of 10 former TBA presidents in attendance, praised Wilks for his long-term support of the TBA, where he served in many capacities. “He was proud of the hats he wore,” she said, “and he wore many.”
— Suzanne Craig Robertson