News

West Tennessee Legal Services Seeking Volunteers for Obion County Clinic

The Pro Bono Project at West Tennessee Legal Services has scheduled a Free Legal Clinic on Oct. 5 from 10 a.m. to 2 p.m. at the Troy United Methodist Church. The clinic will be held in the church’s Activities Building located at 226 W. Westbrook St., Troy, Tennessee, 38260. All lawyers are invited to help at this counsel and advice-only clinic. To volunteer or for more information contact Ginny Brimm, 731-426-1308, or go online here.
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ABA Releases Opinion on Attorney Disaster Response

The American Bar Association Standing Committee on Ethics and Professional Responsibility released today an opinion that underscores the importance of ABA model rules for lawyers affected by disasters and provides specific guidance on their ethical responsibilities in the aftermath of hurricanes, floods, tornadoes and fires. The formal opinion notes that recent large-scale disasters, such as Hurricane Florence in the Carolinas, highlight the need for lawyers to understand that extreme weather events and other calamities have the potential to destroy property or cause the long-term loss of power. Lawyers, in turn, have an ethical obligation to implement reasonable measures to safeguard property and funds they hold for clients or third parties, prepare for business interruption and keep clients informed about how to contact them or their successor counsel.
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Pera on Podcast: Seek Help from Other Attorneys on Ethics Issues

Former TBA President Lucian Pera recently appeared on the American Bar Association podcast “Asked & Answered,” in which he discusses the importance of seeking the advice of colleagues on issues of ethics. “None of us — and this is not just lawyers — are really objective about our own matters,” Pera said. The Memphis attorney and current chair of the ABA Center for Professional Responsibility’s Coordinating Council said that when an attorney gets even the slightest notion that something could become a problem on a client matter, reach out and ask for help. 
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Pera Helps Lead ABA Effort to Modernize Rules on Lawyer Advertising

The ABA House of Delegates on Monday voted in favor of amending Rule 7 of ABA Model Rules of Professional Conduct, which addresses lawyer advertising, the ABA Journal reports. Lucian Pera told delegates that in the decades since the 1977 U.S. Supreme Court decision in Bates v. State Bar of Arizona allowed for lawyers to advertise their services, there’s been a “breathtaking variation in advertising rules” among states. He said the amendments were necessary to clarify and simplify these rules.
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Brian Benczkowski Confirmed to Lead the Justice Department’s Criminal Division

The Senate on Wednesday voted 51 to 48 to confirm President Trump’s nominee Brian Benczkowski to lead the Justice Department’s criminal division, amidst the objection of Democrats who expressed concern regarding his representation of a Russian bank and lack of prosecutorial experience, reports The Washington Post. Benczkowski once represented Alfa Bank — a Russian firm that was referenced in a dossier containing allegations about Trump, his advisers and their possible Russian connections — at the request of a partner in his firm, Kirkland & Ellis. Benczkowski told lawmakers he would recuse himself from any matters involving the bank for two years and would permanently step aside from any matters that touched on his work for the institution.

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Judge Tosses Kansas' Proof-of-Citizenship Voter Law, Rules that Attorney Must Take Extra CLE

A federal judge on Monday decided that Kansas cannot require people to prove their U.S. citizenship before they can vote, ruling the state's election law is unconstitutional, reports NPR. Chief District Judge Julie A. Robinson blasted Kansas Secretary of State Kris Kobach — who led President Trump's voter fraud commission — over disclosure violations, stating the violations “document a pattern and practice by [Kobach] of flaunting disclosure and discovery rules that are designed to prevent prejudice and surprise at trial.” Kobach was ordered by the judge to take continuing legal education classes on the rules of evidence or procedure in addition to any other CLE education required by his law license. Kobach is running for governor of Kansas, reportedly locked in a tight Republican primary race against the incumbent. You can read the full opinion here.

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Delaware Bar Foundation Holding Nationwide Writing Contest for Law Students

For the third year running, the Delaware Bar Foundation will hold the Stargatt Legal Ethics Writing Competition. There are no Delaware residency requirements, so it is open to any ABA-accredited law school student or recent graduate. The topic must be ethics-related and the deadline is Sept. 15. The top submission will garner $3,000 for the author, with cash prizes available to second and third place as well. Find out more here.
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Legal Practice Tip: Prosecutor’s Ethical Duty to Disclose Broader than Brady

The Tennessee Board of Professional Responsibility issued an ethics opinion explaining that a prosecuting attorney’s ethical duty to disclose favorable information to the defense is broader than that required under federal constitutional law.“Tennessee Rule of Professional Conduct 3.8(d)" is a separate ethical obligation of prosecutors and was not meant to be coextensive with a prosecutor's legal disclosure obligations.  This ethical duty is separate from disclosure obligations imposed under the Constitution, statutes, procedural rules, court rules, or court orders. A prosecutor’s ethical duty to disclose information favorable to the defense is broader than and extends beyond Brady.  Once a prosecutor knows of evidence and information that tends to negate the guilt of the accused, or mitigates the offense, or falls within RPC 3.8( d)’s disclosure requirement, the prosecutor ordinarily must disclose it as soon as reasonably practicable.” Formal Ethics Opinion 2017-F-163.

Roger E. Nell is the District Public Defender at 19th Judicial District of Tennessee and current Chair-Elect of TBA's Criminal Justice Section.
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Risks of Protecting Electronic Information CLE

On May 15,
Chris Stiegemeyer is back at the Tennessee Bar Center on May 15 with a 3-hour ethics program. The prudent management of law firm data brings together not just a lawyer's ethical duties and malpractice risk management, but also your personal financial exposure. This seminar will help attendees learn to identify those risks and provide a roadmap for addressing them. 
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Former Skadden Associate Charged in Russia Probe Seeks Leniency

Alex van der Zwaan, the former Skadden, Arps, Slate, Meagher & Flom associate who pleaded guilty to lying in the Russia investigation earlier this year, told a Washington, D.C., judge that his cooperation and remorse justify a non-jail sentence, reports The National Law Journal.

Van der Zwan’s lawyer, Cooley partner William Schwartz, wrote in a sentencing memo to U.S. District Judge Amy Berman Jackson that the 33-year-old’s career is ruined, and that he has “been serving a sentence while stuck in limbo” in the United States. The memo states that while it did not excuse his conduct, van der Zwaan lied to investigators in a Nov. 3, 2017, meeting because he feared for his career, as Skadden lawyers represented him at that time.

“During the interview, Alex was keenly aware that he was not speaking only to the OSC,” the document said. “Alex was represented by Skadden lawyers, and anything he shared with the OSC would simultaneously be heard by Skadden. In his mind, his boss was listening to every word.” The memorandum continues: “Focused on preserving his career at Skadden, and fearful that truthful answers could lead to discovery of the recordings (and in particular, the discovery that he had recorded a Skadden partner), Alex made a terrible decision… The conduct that brings Alex before this court was inexcusable… And while his actions following his initial meeting with the OSC cannot absolve him from culpability, they are compelling mitigating factors in considering just punishment.”

In their own memo, lawyers for Mueller told the judge she should not rule out prison time, because of a “scarcity of mitigating factors and several aggravating circumstances.” They said van der Zwaan “is a person to whom every advantage in life has been given,” and that the government rightly expected “candor and uprightness” from him. “While there might eventually be additional professional consequences that befall a foreign lawyer who commits a United States felony, those consequences do not themselves obviate the need for his current sentence to reflect the seriousness of his crime, to promote respect for the law, or to provide adequate specific and general deterrence,” prosecutors wrote.

The filing also included pleas for a lenient sentencing from van der Zwaan’s wife, the daughter of a Russian oligarch who is expecting a baby in August, and his mother, whom the filing said he helps with errands and household tasks. Van der Zwaan faces up to six months in prison.

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Law Firms Often Keep Quiet After Resignations From Misconduct

"There are many reasons why the #MeToo moment hasn’t fully crested in Biglaw yet," Above the Law writes, "and a big one is that law firms know how to conduct internal investigations," which they do with maximum discretion. This story reports on recent resignations from law firms after allegations of misconduct, and why keeping it quiet is not always in everyone's best interest.

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ABA Ethics Opinion Stresses Duty of Confidentiality While Blogging

A new American Bar Association ethics opinion stresses the importance of confidentiality lawyers must maintain when they engage in public commentary, including online on blogs and social media, the ABA Journal reports. The opinion cites the ABA Model Rules of Professional Conduct, specifically Rule 1.6(a), which provides: “A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).” The opinion explains that this duty of confidentiality applies even if the information about the client’s representation is found in a court record or other public record.
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TBA Gears Up for 2018 Mock Trial Tournament

The Tennessee Bar Association will host the upcoming Tennessee High School Mock Trial Tournament on March 23 and 24 in Nashville. The Mock Trial is a two-day, single-elimination bracket-style competition where 16 high schools face-off against each other in the Davidson County Courthouse. Each team is scored on their trial preparation and skills. 

We need TBA volunteers to help be bailiffs and jurors (scorers) for the event. After signing up, we will send you a Volunteer Memo with all the information you need for competition including; parking, hotel, downtown map, courthouse rules, and reimbursement information. Come be a part of the Young Lawyers Divisions’ March Madness! Feel free to contact YLD Director Stephanie Vonnahme with any questions.

To volunteer for this event, click here.

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Don't Forget: Winter CLE Blast Tomorrow!

Need CLE hours fast? We can help! The annual Winter CLE Blast is less than a day away. With this program, you can complete up to 11 hours of Dual CLE credit on your own time. Our registration desk will be open from 7 a.m. to 6:45 p.m. on Feb. 21, providing you the flexibility to create your own schedule and take as many or as few hours as you need. Payment will be determined at checkout depending on the number of hours you attend. 

Highlights

  • Flexible to your schedule
  • Up to 11 Hours of CLE
  • Ethics Credits
  • Compliance CLE
  • Live Credit Hours

When: Feb. 21, registration begins at 7 a.m., CST

Where: Tennessee Bar Center, 221 4th Ave N., Nashville, TN 37219

 

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Michigan Judge Tells Convicted Killer 'I Hope You Die in Prison'

A Michigan judge became incensed during a sentencing hearing and told the defendant "I hope you die in prison." Judge John McBain was ruling in the case of 31-year-old Camia Gamet, when the defendant appeared to mock the victim's grieving family by rolling her eyes, causing the judge to lose his temper.
 
Gamet was convicted in March of fatally stabbing her boyfriend, Marcel Hill. According to WNEM in Lansing, McBain called it one of the worst cases he has ever seen. He told Gamet that she "gutted [Hill] like a fish.' 'If this was a death penalty state, you'd be getting the chair," said the judge.
 
McBain also threatened to tape Gamet's mouth shut, saying, "You're going to shut your mouth or I'm going to have some duct tape put on it." Gamet was sentenced to life in prison without the possibility of parole.
 
This is not the first time the acrimonious adjudicator has made news for his candid outbursts. McBain once tackled and subdued a man who resisted being taken into custody and has been repeatedly accused of partiality and hostility in his courtroom.
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New Edition of Ethics Rule Book Now Available From TBA

The 2018 edition of the Tennessee Rules of Professional Conduct is now available from the Tennessee Bar Association. Thanks to the efforts of the TBA's Standing Committee on Ethics and Professional Responsibility, this new edition includes all amendments as of and through Oct. 31, 2017. It is available for purchase in a spiral-bound format for $30 or free in PDF format or in Word document format.

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Valet, Warm Scones and Ethics

Get three hours of ethics credit at the TBA’s Ethics Roadshow CLE in Nashville on Dec. 7. Valet parking is included at the Hilton Hotel Downtown. Warm scones, fresh fruit, stuffed biscuits and coffee are on the breakfast menu. Register before Sunday to avoid the late fee. Come hungry!

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Supreme Court Soliciting Comments on Proposed Changes to Rule 8

The Tennessee Board of Professional Responsibility and the TBA last week filed a petition asking the Supreme Court to amend Rule 8, RPC 8.4 of the Rules of the Tennessee Supreme Court by adopting a new RPC 8.4(g). The court is now soliciting written comments from the bench, the bar and the public. The deadline for submissions is March 21, 2018. Written comments may be emailed or mailed to James M. Hivner, Clerk, Re: Tenn. Sup. Ct. R. 9, section 32 Tennessee Appellate Courts, 100 Supreme Court Building, 401 7th Avenue North, Nashville, Tennessee 37219-1407. Read the proposed amendments here.
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Joint Petition Filed by TBA, Board of Professional Responsibility

The Tennessee Bar Association and the Board of Professional Responsibility filed an unusual joint petition today asking the Tennessee Supreme Court to adopt a new ethics rule prohibiting discrimination and harassment by lawyers in conduct related to the practice of law. The petition seeks an amendment to Supreme Court Rule 8 to add a new subsection (g) to RPC 8.4 and explanatory comment paragraphs. The proposed amendment is patterned after a recently-adopted ABA Model Rule 8.4(g), but the proposal adds language more clearly protecting the First Amendment rights of lawyers, among other things. The Tennessee Supreme Court is expected to issue an order soliciting comments on the petition soon.

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BPR Issues Ethics Opinion on Interstate Law Firm Using Trade Name

The Board of Professional Responsibility has issued a formal ethics opinion regarding the opening and operation of a proposed interstate law firm between Tennessee and Florida, using a trade name, SETCO law. The opinion deals with the growth, development and diversity of the legal profession, which has spawned a proliferation of new ways of conducting the practice, taking lawyers far beyond the sole practitioner and single office law firm models of an earlier era.
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ABA Issues Guidance on Electronic Transmission of Client Info

The American Bar Association’s Standing Committee on Ethics and Professional Responsibility has issued an opinion with guidance for lawyers on enhancing confidentiality for transferring sensitive client information electronically. The guidance recommends lawyers be trained in technology and information security and encourages attorneys to take a proactive role in ensuring communications are protected, among other edicts. The new opinion adds to one issued in 1999 that discusses protecting the confidentiality of encrypted email. Read the full opinion here.

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AG Files Suit Against Law Firm Targeting Grieving Families

Attorney General Herbert Slatery has filed a lawsuit against the Witherspoon Law Group in Texas, attorney Nuru Witherspoon and two investigators for unlawfully soliciting victims of the Chattanooga school bus crash. The AG’s office received reports that through investigators, the firm contacted victim’s families as they made funeral arrangements, despite state law prohibiting attorneys from solicitation within 30 days of a tragedy. The suit alleges that the investigators, Alphonso McClendon and Glen Smith, presented themselves as attorneys and pressured families to sign contracts.
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ABA Discrimination Model Rule Draws Fire in Montana

The recently passed ABA Model Rule 84(g) dealing with discrimination has been condemned by the Montana state legislature, which says it is a violation of Montanans’ First Amendment rights, the ABA Journal reports. The model rule — which makes it a violation of professional responsibility to discriminate or harass on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law — was passed by the ABA House of at its 2016 Annual Meeting. The Montana Supreme Court adopted it later that year.

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Learn the Neuroscience of Decision-Making at the TBA Convention

At the TBA Convention in Kingsport, a special joint Bench/Bar CLE will examine the role neuroscience plays in our decision-making skills and judgment. The session will include exercises, tools and specific strategies for increasing impartiality and integrity in decision-making. The course will identify ways to increase fairness guided by science. The convention will be June 14-17 at the MeadowView Marriott Resort.
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Tennessee Supreme Court Amends Rule 8

The Tennessee Supreme Court has amended Rule 8 of the Rules of Professional Responsibility following a Tennessee Bar Association request in July 2016. The Knoxville Bar Association and the Board of Professional Responsibility both provided comments on the proposal. The new amendments provide new language in regards to technology and contracting with other lawyers; updates to confidentiality of information and detection of conflicts of interest; and more.

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