Rule 9 Chart

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Section 17

I have concerns about the breadth of the immunity given under section 17.1. This is the first sentence:

Members of the Board, district committee members,
Disciplinary Counsel and staff shall be immune from civil
suit for any conduct in the course of their official duties.

So for instance if a board member has an accident on the way to the board meeting, which is his fault, he's got immunity from civil suit?

My notes from Saturday's meeting

Here is my list of what was agreed to:

In the definitions section, we do want to tweak the definition of "complainant" to say "misconduct by" after the word "including" and as to the definition of "hearing panels" we want that corrected to say "selected by the Chair of the Board"

Generally, we want to raise for the Court whether it makes sense to actually go to trouble of defining "rule" and "section" or if that might raise more problems than it solves. [It'd be really nice to have a volunteer willing to flyspeck the proposed Rule 9 to see if they did it 100% correctly in that regard. . .)

We flagged the fact for later discussion that it is not clear how the addition of the power for the Board to publicly censure in Section 4.5(e) works and whether the mechanics are sufficiently covered in later sections.

In Section 4.6, it was agreed that the TBA would want to be laudatory toward the Court's decision to specifically tie recusal to the Rule 10 standard since the TBA was so active in changing that standard recently . . .

In that same Section 4.6, we agreed it should be corrected to be singular to singular rather than plural to singular as to "A Board member" rather than Board members . . .

We agreed that Section 5.4(e) should read "clarifying opinions" rather than classifying

We also decided a singular to singular fix was needed for Section 6.5

As to Section 7.2(a), we agreed that "counsel" should be replaced with the defined term "Disciplinary Counsel"

We concluded that Section 7.3(c) should actually read "To present in a timely manner all disciplinary proceedings before hearing panels, the Board, trial courts, and the Court and all proceedings to determine incapacity of attorneys before hearing panels, trial courts, and the Court."

As to Section 8.1, in addition to taking far too long to remember that part of what was moved from the current version of that section has been rehoused in the preamble, we agreed that we like the second sentence of that section (other than the fact that the "or" should be "nor") but that we think it is otherwise not something that improves upon current Section 1.1. We agreed that if the Court was trying to refer to "surrender of law license" it should say that instead of "resignation" since there is no such concept recognized in the TN rules as resignation from the bar. We agreed that the message the TBA ought to communicate to the Court is that, without knowing what it is that they are trying to get at but think is not currently something over which they have jurisdiction, we cannot give any good insight of what would be better language to accomplish the intent.

It was agreed that Section 9.3(a) should permit a choice of where to bring the matter because it could occur in multiple distircts so that it should read "Hearing panel proceedings may occur in any disciplinary district in which . . ."

We decided we wanted Section 10.3 to say "office email address"

For Section 10.6(a) we believe the increase really isn't about defraying costs and should suggest that the Court delete the words "to defray the Board's costs in issuing the Notice"; we also discussed the need to try to flag for the Court both that it may not be necessary to require an affidavit but that there really should be some real certainty about the paper record so that if an order goes down on the front end, there should be an order cleaning up the record and that some thought should be given to such orders perhaps being nunc pro tunc to clean up issues in the interim. (We also, as to references to affidavits throughout, believe the Court should expand to permit declarations instead.)

We agreed that as to Section 10.7 and 10.8, the TBA should flag the federalism concerns for the Court to consider.

As to Section 11.1 we agreed that again, the resignation reference needed to be fixed, and we also agreed that the TBA should ask the Court to drop the stuff about the oath for a variety of reasons that run from the fact that the oath has changed and including perhaps even First Amendment issues arising from the content of the oath that some TN lawyers were required to take over the years.

We agreed that we needed to flag for the COurt's attention concerns over Section 12.2(a)(4) - the majority opinion was that we didn't understand why the Court would want to reduce such flexibility in terms of a suspension with all time suspended/probated and to flag for the Court that if it really is trying to address something of concern that there ought to be something in the rule addressing what the minimum amount of active suspension could be (i.e. could there just be 1 day that is active?)

As to Section 12.8, we thought for consistency it should be given a heading, perhaps "Conditions" - we also talked about the need to be a bit clearer that "the parties" who can stipulate are the "respondent and Disciplinary Counsel"

As to Section 12.9, we decided it was appropriate to raise for the Court the notion that it and not the BPR be the one with ultimate discretion to pick/assign the practice monitor if the BPR rejects all 3 practice monitors proposed by the respondent.