Rule Changes Advance Access to Justice

Access to Justice issues have received increased attention in Tennessee over the last five years. Just one of the many ways that the state has made tangible modifications is found in the current version of Tennessee Rule of Professional Conduct (TRPC) 6.1, which encourages attorneys to render at least 50 hours of pro bono service each year.[1] The Tennessee Bar Association and the Tennessee Supreme Court, among other groups, have taken steps that are aimed at creating more opportunities for — as well as removing barriers from — pro bono legal service.

Establishing the ATJ Commission

Perhaps one of the most significant actions taken by the court was the April  2009 creation of the Access to Justice Commission, which is charged with (1) promoting pro bono work, (2) advocating for changes in laws, rules and policies to increase access to justice, (3) educating the public and (4) increasing resources.[2]

Pro Bono Policies & Pillar Model

The rule changes that have been adopted over the past few years have served to remove some of the most significant obstacles to lawyers taking on pro bono service. Implementation of these changes have also created a unique opportunity to greatly expand the pool of resources available to provide free and low-cost legal assistance to individuals in need. Advocates for increased access to justice also recognize the crucial role that law firms and organizations with legal departments throughout the state can play in increasing the overall provision of pro bono legal assistance.

One way that law firms and legal departments can enhance their commitment to access to justice is by adopting formal policies encouraging their employees to perform pro bono service.[3] To date, the TBA has recognized 50 firms that have adopted such policies.[4] Moreover, the Pillar Law Firm model encourages firms to lead the charge on tackling specific areas of need and/or specific populations in need of legal assistance by providing pro bono services to address those areas of law or populations where they may have expertise.[5] Several firms in Nashville have committed to this Pillar Law Firm model and in the past nine months, the TBA and the Access to Justice Commission held meetings in Memphis and Knoxville to encourage firms in those cities to become Pillar Firms as well. This initiative from individual lawyers, law firms and legal departments is indispensable to the assurance that all residents of Tennessee will have access to justice.

Limited Scope Representation Rules

One of the most recent rule changes that makes taking on pro bono cases less complicated is the court’s 2012 clarification of notice and related issues in situations when an attorney is providing temporary and limited-scope representation to an otherwise self-represented party. By amending TRCP Rules 5.02 and 11.01, the court made it easier for attorneys to handle the most critical or complicated aspects of cases on a limited basis. Such arrangements were already allowed in Tennessee, but formalizing guidelines for “limited-scope representation” helps encourage this type of legal assistance.

Limited-Scope Conflicts Rules

In 2009, the Tennessee Supreme Court adopted a rule that made it easier for attorneys to provide advice at legal walk-in clinics and related short-term, limited legal services at programs sponsored by a nonprofit organization or court (such as a Legal Aid walk-in clinic). In these situations, the attorney is subject to TRPC 1.7 and 1.9 (conflicts of interests involving current clients and duties owed to former clients) only if the attorney knows that representation of the client involves a conflict of interest, and is subject to TRPC 1.10 (imputation of conflicts) only if the attorney knows that another attorney in his or her firm is disqualified from the matter.[6] TRPC 1.7, 1.9, and 1.10 are triggered if the attorney extends the scope of legal representation of the client to an on-going basis.[7] This rule provides comfort to lawyers who desire to provide legal services at walk-in clinics and similar venues and who are conscientious about their ethical duty to avoid conflicts.

IOLTA

Consistent with the encouragement to provide financial support to legal services organizations serving those of limited means, the Tennessee Supreme Court made participation in the Interest On Lawyers Trust Accounts (IOLTA) program mandatory effective January  2010.[8] The Tennessee Supreme Court has also required financial institutions to provide favorable rates to IOLTA accounts and required attorneys to report compliance with obligations concerning IOLTA accounts.[9]

CLE Credits

In 2009, the court adopted a rule providing that the Continuing Legal Education Commission may award one hour of ethics credit for every five hours of pro bono legal representation an attorney provides through court appointment, a bar association program, or through a legal services organization.[10] In spring of 2012, the court amended TSCR 21 again to exempt these credits from the per-hour fee that the rule would otherwise have applied.[11]

Emeritus Rule

In September 2010, upon the recommendation of the Access to Justice Commission, the Supreme Court established the Pro Bono Emeritus Program, which allows retired attorneys and others who no longer maintain their law license to provide free legal services to persons of limited means through legal services organizations.[12]

Partnering for Progress

The Tennessee Supreme Court and its Access to Justice Commission, and the Tennessee Bar Association, have led the way in prioritizing access to justice and pro bono service as every attorney’s obligation and in facilitating and encouraging the provision of these services, especially to persons of limited means. This leadership is envied by other states.

We need more and more lawyers to be willing to fulfill their professional and ethical duties by making pro bono a priority no matter what their practice setting may be.  

Notes

  1. Tennessee Rule of Professional Conduct (TRPC) 6.1.
  2. Tennessee Supreme Court Rule (TSCR) 50.
  3. TRPC 6.1, Cmt. 11 (“Law firms should act reasonably to enable and encourage all lawyers in the firm to provide the pro bono legal services called for by this Rule”).
  4. http://www.tba.org/resource/tennessee-law-firms-adopt-pro-bono-policies
  5. See e.g.: http://www.tba.org/news/firms-invited-to-learn-about-pillar-law-firm-pro...
  6. TRPC 6.5.
  7. TRPC 6.5, Cmt. 5.
  8. TRPC 1.15(b).
  9. TSCR 43.
  10. TSCR 21, 4.07(c).
  11. TSCR 21, 4.07(c).
  12. TSCR 50A.

Tennessee Bar Association Access to Justice Chair ALEXANDRA MACKAY, committee member JOHN T. BLANKENSHIP and TBA Access to Justice Coordinator LIZ TODARO contributed to this article.