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Posted by: Suzanne Craig Robertson on Nov 23, 2011

Journal Issue Date: Dec 2011

Journal Name: December 2011 - Vol. 47, No. 12

Nancy Jones Implements Big Changes for BPR

What’s new at the BPR? A major reorganization of its staff, ‘Birth-Month’ registration, and a reduction in time between complaint and discipline

“Return your clients’ phone calls.”

That’s the number-one piece of advice Nancy Jones has for you. If you don’t do that, you may be hearing from her. She is the chief disciplinary counsel of the Board of Professional Responsibility (BPR) of the Tennessee Supreme Court. Now in the middle of her fourth year in the difficult and often thankless position of disciplining Tennessee lawyers, Jones knows that failure to return a client call is the single most frequent complaint the BPR gets. For people involved in emotional or stressful situations such as a domestic dispute, she says, that failure often provides “the perfect storm for a complaint.”

Resolving these and other complaints in a fair and timely manner was one of the biggest challenges facing Jones when she moved into the position in May 2007. In making her appointment, she says the Supreme Court specifically asked her to address timeliness and consistency of discipline. A major reorganization has done just that.

When Jones arrived at the BPR, the system was “cradle to grave,” with one person handling everything on a particular case. Now, the system — with staff lawyers divided into investigative and litigation sections — is different and has resulted in fewer days a case is pending. Investigators now stay in the office and work through the file, while litigators travel the state to do formal disciplinary hearings.

In 2008 the average number of days a case was pending was 293. In 2011, the average is 146 days. “We cut the time in half,” Jones says.

The court was interested in speeding up the process, she says, because 53 percent of cases result in dismissal. “Even if you haven’t done anything wrong, every night when you lay your head on your pillow you wonder, ‘what if.’ Your livelihood is at stake. So we deal with it to conclusion as quickly as possible.”

To tackle the court’s concern with consistency, Jones also refocused the way the BPR staff deals with each disciplinary action. The staff now takes a broader view of each case, looking at prior discipline history as well as what discipline resulted in similar cases. 

“We now have layers of management oversight,” she says.

This is important because under the old system, Jones says, discipline was based on specific instances only. In looking at a lawyer’s entire history, now the staff might conclude that “the lawyer isn’t learning” if the same mistakes keep happening.

Before a case goes to litigation, Jones says, it now goes through the internal Charging Committee, which is made up of senior management and the lawyers from the litigation section of the office. They look at counsel’s recommendations for public disciplines.

“We want our litigators to review the facts so that everyone feels comfortable that charges should be levied,” she says. “I wouldn’t say it’s foolproof, but it’s an attempt to make sure people are being charged similarly for similar actions.”

The BPR has a staff of 30, with 11 lawyers in its 11,000-square-foot office in Brentwood, just outside of Nashville. The group moved from its long-time location on Nashville’s Kermit Drive in October 2010. Jones says the old office had no room for growth.

And security is important for the BPR. Even in a serene office park in the heart of upscale Brentwood, the board employs security measures, including a buzzer at its front door. “We have confidential information here,” Jones says. Staff members also face the possibility of visitors who are “very disgruntled.” People with complaints are often in trouble in their lives, she says. “Those people are in crisis and when their lawyer is not taking care of their case, they are distraught. They don’t understand that we don’t intercede.”

You Can Call the Ethics Counsel

Another change, authorized by the court in September 2009, has been in making one position devoted to answering ethical questions. Before, ethics calls were rotated among the staff attorneys. The American Bar Association Center for Professional Responsibility reports that many states have several people answering, and about five states have one person devoted to it.

In Tennessee, James A. Vick’s job is ethics counsel. He takes calls and emails from lawyers with ethics questions — about 2,500 to 3,000 a year, he says.

“Lawyers are calling in, trying to do the right thing and find out what they are supposed to do,” he says. Vick, a former prosecutor and civil litigator who has been with the BPR 15 years, says many of the calls he gets are about conflicts. [See chart on page 24.] “The questions are like ‘Can I take on this case when I have previously represented the adversary in some earlier matter?’ or ‘Can I represent two different people at the same time?’  Or, ‘Do I have an obligation to report another lawyer for something?’”

The answers, he says, are always different because they are fact-specific.

“I get questions that you couldn’t lay awake at night and dream up,” Vick says. “There’s white and black and a whole lot of gray in the middle.”
And he doesn’t rush lawyers about it. “I give them all the time they need. They can hash it out with me until we get the correct answer,” he says.
“If I don’t know the answer, I’m going to try to find it. A few times there is just not a good answer, but sometimes you need to know that, too.”

If something has already happened, he will tell the lawyer if he or she should report it, but there’s one thing he won’t do, and that is give an opinion about what someone else has done.

“He won’t talk about another lawyer’s conduct — just yours,” Jones says.

“I will tell them what the applicable rule is, and they can plug it in and come to their own conclusion,” Vick says.

It’s the Economy

The BPR has seen an increase in trust account violations, which Jones believes is driven by the economy. “People are using trust account money to pay personal expenses, or lawyers are taking settlement proceeds and instead of giving it to the client, they pay it in lumps, doling it out over time.” Jones says the board will consider at its December meeting a new policy to address this increase in trust account violations.

Disbarments are also up, which Jones credits to lawyers who can’t make their business model work. Instead of closing down an office in the way the rules require, she says more are just abandoning their practices.

Registration Process To Have Major Transformation

Not only does the BPR handle disciplinary, but it also administers lawyer registration. This is the area in which all lawyers interact with the BPR every year. A change in that process that will be implemented, starting in 2012, is the “birth-month registration” for lawyers. In the past, all Tennessee lawyers have received their renewal forms at the same time, and they were due by March 1. Now, this new rolling registration will mean that lawyers will register on the first day of the month they were born. The first year will be prorated. The first batch, for those with January birthdays, was set to be mailed Nov. 15.

Jones sits up and smiles wide when this subject comes up, explaining the cost-savings and how the staff workload will be more evenly distributed.
“We only have three people doing registration for 20,000 lawyers. It took us over four months to process those payments,” she says, describing the number of postal mail bins that were delivered daily with triple stacks of envelopes in each.

“The math is interesting,” she says of the number of lawyers who will register per month. “It just so happens that there are between 1,800 and 1,900 lawyers born in each month, except February. Three people can deal with 1,900 checks much more easily.” Now they won’t need to hire temporary workers to process the annual glut, she points out, but their regular full-time staff can do it. Also, every month there will be a suspension order for those not complying, instead of one unwieldy one once a year. The board considered what other states do for registration, she says, like alphabetically and every-other-year, but then “figured out what was best for us.”

One thing that is making these changes possible is new technology. The board has spent “hundreds of thousands of dollars getting updated, secure and accurate technology,” she says. Two other innovations are the ability for lawyers to pay fees and to change their addresses online.

‘I Love This Job’

Nancy Jones’s career before the BPR was “evenly split,” she says, between being a federal prosecutor and a partner at large law firms. Graduating from Syracuse University College of Law in 1978, she then served as a federal prosecutor in the Northern District of New York, Western District of Oklahoma, and the Middle District of Tennessee. In 1993 she went to work at Waller, Landsden, Dortch & Davis, then moved to Bass, Berry and Sims in 2004.
Her area of expertise was complex white-collar fraud, and she especially “loved being in a courtroom,” she says, pointing out how now, though, so few cases go to trial. “Clients want certainty, not the Russian roulette of a jury, and that’s one of the motivators” of settlements.

“It had been seven years since I’d been in a courtroom,” and she questioned how she could continue to call herself a trial lawyer. “What partners do is train associates and review motions. I decided if I’m not going to be in a courtroom anymore I wanted to do something different.”

It was about that time in 2007 that two unrelated retirements were announced in Tennessee: Ashley T. Wiltshire was about to leave the Legal Aid Society of Middle Tennessee and the Cumberlands after 37 years, and Lance B. Bracy would retire from the Board of Professional Responsibility after 31 years.

Jones applied for both jobs. The interview for the BPR chief disciplinary counsel came up first, she says, and when she was offered the position, she jumped at it.

Citing the two goals the court set for her, she says this allowed her “the freedom to look at the whole organization from top to bottom.”

“I like that at this stage in my career I have the opportunity to give back,” she says. “It’s so challenging every day. I love doing this job.”

SUZANNE CRAIG ROBERTSON is editor of the Tennessee Bar Journal.