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Posted by: Letters of the Law on Apr 1, 2018

Journal Issue Date: Apr 2018

Journal Name: April 2018 - Vol. 54, No. 4

Former President Warns Against TBA Adopting ‘Political or Cultural Views’

For each of several years now, the American Bar Association has lost members. According to the ABA Journal, the ABA’s operating budget has decreased over the past five years from $116 million in 2014 to $96.1 million for this fiscal year, which has resulted in a series of staff cuts. The ABA’s operating deficit was $7.7 million for fiscal year 2017.

While there are doubtless a number of reasons for its decline in numbers, anecdotally, at least, one reason is the ABA’s virtually ceaseless endorsement of culturally and politically progressive policies, which lawyers of a more moderate or conservative bent do not wish to pay dues to support. A recent iteration of one of those policies is its proposal of Model Rule 8.4(g), making it a disciplinary matter for a lawyer to engage in “harassment” or “discrimination” on the basis of 11 protected characteristics. Critics note that the rule addresses an issue that is already adequately addressed by existing disciplinary rules, and deem the rule as establishing a speech code for lawyers, a speech code which protects every conceivable aspect of diversity except diversity of thought. 

During my years on the Tennessee Bar Association Board of Governors, I worked with lawyers from all over the state, each of whom was dedicated to the furtherance of our profession and service to the public. It came as no surprise to me that most of them were politically more liberal than I am. I found it refreshing to engage with them and I hope that they had the same experience with me. Even then, the ABA was declining, which to me constituted a warning to bar leadership everywhere. It was therefore a particular point of emphasis to me during my time in leadership for the TBA to avoid taking politically related stances, at least where a wide consensus of our membership could not be clearly ascertained. 

Now, the TBA has joined with the Board of Professional Responsibility to petition the Supreme Court to adopt a modified version of Rule 8.4(g). The debate over the need for the rule may be ascertained by reading the petition, President Lucian Pera’s March Tennessee Bar Journal column (“Ban Harrassment and Discrimination Now”), and the numerous comments filed with the Supreme Court, which at this writing are overwhelmingly in opposition.

Instead of further engaging in that debate, I write to caution my friend Lucian’s successors, and the present and future members of the Board of Governors, to in the future avoid the temptation to adopt in the name of the TBA positions that reflect political or cultural views that a substantial portion of our membership do not share. Indeed, Lucian’s March column reveals that the House of Delegates, which reflects the broader membership of the TBA in a way the Board of Governors simply does not, voted against the petition. Petitioning the Supreme Court to adopt Rule 8.4(g) is a regrettable step which could eventually lead the TBA to follow the ABA down the path of irrelevance to our profession.

— Sam D. Elliott, Chattanooga, TBA President, 2010-2011

How Is This Helping ‘Real Attorneys?’

Again, I write another screed in opposition to the pablum that is fed us by the Journal and its editorial staff.As I looked at last month’s (March 2018) edition, and the “new ways and manners” by which we should be practicing law, and, further, as I looked at how those attorneys who are the subjects of these articles are, most respectfully, former members of huge conglomerate law firms (and probably think that being a sole practitioner is only a game), I ask these questions, again, most respectfully, for which an answer seems never to be provided:

  1. How does this have ANY effect on us “courthouse square” attorneys (a Bill Haltom phrase) who do the grunt work for the TBA in 85 to 90 of Tennessee’s 95 counties, yet never get kudos from the TBA?
  2. How does this put money in the pockets of we “courthouse square” attorneys, who have seen our practice whittled away by (a) fiat of the General Assembly (remember workers’ compensation, tort reform, and, now, Dedmon will be overruled by legislative fiat, all by measures passed by the General Assembly between trips to parties put on for our legislators by the insurance lobby), (b) the mind-set created by constant pressure to help the so-called indigent at $40/50 hour in criminal cases, and (c) most respectfully, the do-it-yourself divorce and custody forms promulgated by our Supreme Court?

Again, how do the ideas set forth in last month’s Journal put money in to the pockets of real attorneys? Just wondering.

— Francis X. Santore Jr., Greeneville

‘This Is Not Sustainable’

Years ago when I was a child, my parents would take me to the Tennessee Bar Association annual meeting in June. At the annual meetings, it was not uncommon to look across the lobby and see private lawyers that had come to the event from Athens, Morristown, up and down the Sequatchie Valley, from Mountain City to Memphis, etc.

In the past 15 years, I have been the only private member of the bar to come to the Tennessee Bar Association Convention in the entire Twelfth Judicial District. I suppose we can ignore this fact. In my modest opinion, it portends a problem if not the future that affects the sustainability of the Tennessee Bar Association, but I would not want to appear an alarmist.

This month and every month, I read the Tennessee Bar Journal as I have done every month since I got out of law school in 1978. The Tennessee Bar Journal is absolutely obsessed with pro bono every month. I am not opposed to pro bono. I do pro bono. I encourage pro bono, but there is never a mention about the concerns of the private practice bar. I am not a wise man arriving from the country — my views are shared across the state.

On a regular basis, there are articles about the moral glory of “fill in the blank” forms that can be picked up at the Clerk’s office so people can get a divorce without even hiring an attorney. There is never a mention about the concerns of the private practice of law.

In recent years, I have talked to young lawyers about joining the Tennessee Bar Association and accompanying me to events. I might as well be asking these young lawyers to join me on a trip to Mars. Why would young lawyers want to support an organization that has no concern for the private practice of law but cooks up forms so people do not need an attorney and requiring mandatory pro bono?

I attended a Tennessee Bar Association meeting in Nashville and high on the agenda was mandatory pro bono and/or mandatory reporting. I point out if mandatory pro bono were mandated the judges, senior bar, law professors, district attorneys, public defenders, corporate lawyers, out-of-state lawyers, etc. (just to mention a few) would all be exempt. The only lawyers mandated would be the private bar.

Speaking of the private practice of law and “fill in the blank” forms, in my experience when child support and a pension are involved and the woman does not have an attorney she gets shafted every time. I mean every time, but I would never be so politically incorrect as to question “no need for a private attorney.”

On a regular basis, the Tennessee Bar Journal talks about indigent defense. For the past two years, we have had a distinguished group cavalcading across the state on an “informational tour.” We read about the hourly rate of appointed counsel on a regular basis. I cannot speak for every member of the legislature, but I do not know anyone that opposes raising the rates. Simply stated, the indigent pay rate has not been brought to vote. In my opinion, the problem is the personal/private agenda of the Tennessee Bar Association and/or the Tennessee Supreme Court. There is absolutely no concern for the private practice of law.

I have gone to bar meetings and been told nobody wants to make the Supreme Court mad. Four years ago, the Tennessee Supreme Court was in imminent peril. I gently point out that it was not legal services, the access to justice commission, the Public Defender’s conference, corporate pro bono or any pro bono organization that came to the Supreme Court’s rescue. When the Tennessee Supreme Court was in peril, it was the private bar that came to their rescue and saved them. I might also point out that four years ago if the Tennessee Supreme Court had been removed, there would have been a “down ballot” called the Tennessee Court of Appeals, not to mention trial judges across the state that would have also been removed resulting in a serious problem, not to mention utter unpredictability with Tennessee Jurisprudence, but I don’t want to appear politically incorrect or offend anyone.

In the past year, I have had two young lawyers in my office in Jasper bemoan the fact that they are awash in debt with student loans and are absolutely miserable practicing law. I am saddened. The Tennessee Supreme Court and the Tennessee Bar Association are bent on giving the practice of law away with no concern for young lawyers or the private bar.

If one considers the great events or issues this country has ever faced, unquestionably the private bar has been present every time. I am unapologetically proud to be a private attorney who can express his views and point out the obvious.

I will always have affection for the Tennessee Bar Association, but in my considered opinion what is happening is not sustainable. The Tennessee Bar Associaion, the Appellate Courts and the legislature are making a big mistake. Giving away the practice of law will ultimately destroy, the Tennessee Bar Association. My views are shared across the state.

— H. Graham Swafford Jr., Jasper

P.S. For political correctness and academic integrity, I point out I do pro bono, I encourage pro bono for those eligible, and I did not vote for Trump.

Response to Mr. Swafford:

In January, the Tennessee Bar Journal (TBJ) dedicated an entire journal to the issue of access to justice. It has been the practice of TBJ to devote one of the 12 journals published each year to this important topic. Our emphasis on the importance of providing access to the legal system is not intended to convey lack of concern for the issues affecting so many of our members in private practice.

Serving a membership of approximately 13,000 lawyers, the Tennessee Bar Association (TBA) provides a crucial platform for issues affecting all of our members. In fact, the leadership of TBA, including our Board of Governors, House of Delegates and Young Lawyers Division is comprised of individuals from across the state who practice in small and large firms, state and local government, the judiciary, corporations and educational institutions, among others.

TBA appreciates the concerns raised in this letter to the editor calling into question our commitment to the private sector, and we agree that we constantly need to evaluate whether or not TBA is accessible and relevant to our membership. We want and need more young lawyers interested in TBA and understand that the future of the association will require articulating the value of state bar membership to individuals in both private and public service.

Some concern has been raised that TBA is too focused on pro bono work to the exclusion of others. While TBA supports the use of forms, created by the Tennessee Supreme Court’s Access to Justice Commission, providing assistance to low-income people in need of legal help; it does not create or approve those forms. The effort to promote ease of access to forms for otherwise unrepresented/self-represented litigants is supported by TBA because of the gaps in legal services for so many in our state who do not have access to legal representation. Further, the TBA (and the greater access to justice community in Tennessee) has never proposed or supported mandatory pro bono service. The TBA is on record as supporting reporting of voluntary pro bono service, and advocating for an “opt out” option for those who do not wish to report their service. (Here is a link to the TBA comment: www.tba.org/sites/default/files/tba_comment_rule9_020215.pdf.) Providing a spotlight on issues affecting the state’s indigent population in no way diminishes the importance of the private bar, especially given the large voice that the private bar has in TBA leadership.

As the new Executive Director of the TBA and someone who worked in private practice for 16 years, I am aware of the challenges that so many of our members and nonmembers face in their daily practices. I appreciate the frank discussion in the letter to the editor. TBA’s tent is big enough for all of us and I hope that the letter and my response promote a necessary dialogue that provides TBA with the feedback to evolve and improve our messaging so that all members feel supported by TBA’s objectives “to foster legal education, maintain the honor and dignity of the profession of law, to cultivate professional ethics, to encourage social interchange among members, and to promote improvements in the law and the modes of its administration.”

— Joycelyn Stevenson, Tennessee Bar Association Executive Director