TBA Law Blog

Posted by: Brian Faughnan on Jan 1, 2014

Journal Issue Date: Jan 2014

Journal Name: January 2014 - Vol. 50, No. 1

Effective Jan. 1, 2014, lawyers who end up having to seek to justify their conduct in the face of a disciplinary complaint (and lawyers who represent lawyers in such circumstances) will have to navigate a new, overhauled version of Tennessee Supreme Court Rule 9. The adoption of the new rule is the culmination of a year-long process initiated by the Tennessee Supreme Court when it distributed its initial proposal to revise Rule 9 on Aug. 8, 2012. The court received extensive public comment on that proposal and distributed a revised proposal for further public comment on April 18, 2013. Curiously, the Aug. 30, 2013, order adopting the new Rule 9, indicates that it will have prospective application only, so as to apply only to “matters filed with or initiated before the Board of Professional Responsibility” on or after Jan. 1, 2014. Given the sweeping nature of the revisions to Rule 9 (the prior version of the rule has been replaced entirely), it will be interesting to see how things play out with two different sets of rules and procedures in place for some period of time, particularly whether it is even feasible for the board to leave in place certain procedures acceptable in older, pending matters but not usable in new matters.

Although the court’s new Rule 9 will not satisfy all those with an interest in how the disciplinary process in Tennessee operates, everyone should be able to agree that the new Rule 9 is vastly improved in terms of organization, architecture and clarity. Among the structural improvements to Rule 9 is a new section defining terms used in the rule, including “respondent,” which will be used throughout the rest of this article to refer to a lawyer who is the subject of a disciplinary proceeding. § 2.

In my opinion, the revisions are best explained with reference to how a lawyer is likely to encounter them — the life cycle of a disciplinary complaint. Accordingly, this article will provide a guided tour of new Rule 9 in that context, noting where appropriate both the important changes from the current process and those areas where, for better or worse, the rules remain the same.

Some of you now may be saying to yourself, “I don’t plan ever to be a respondent; is there anything about Rule 9 I still need to know?” Setting aside the fact that no one ever really plans to be a respondent, there are a few important aspects of the new Rule 9 that do not arise in the context of disciplinary proceedings, but happen to be housed in Rule 9. For those of you who are only interested in those topics, you can turn your attention immediately over to the sidebar material titled “Other Notable Aspects of New Rule 9."

If you are still with me at this point, let’s start that guided tour:
Disciplinary proceedings have always been most likely to begin because of a complaint to the Board of Professional Responsibility by a lawyer’s client, former client or some other person who feels themselves aggrieved by the lawyer’s conduct. That will continue to be true in 2014 and beyond. However, despite public comment critical of limiting the broad immunity afforded to complainants and witnesses in disciplinary proceedings, new Rule 9 now strips immunity from complainants and witnesses if they provide “false” information in communications or testimony and they have “actual knowledge of the falsity.” § 17.

In terms of how (and about what exactly) someone complains to the board about a lawyer, new Rule 9 changes the landscape somewhat. For a complaint to be sufficient to trigger disciplinary counsel’s obligation to investigate, Section 15.1 now requires not only that the complaint be in writing, but also that it identify, and be signed by, the complaining party. This should mean the end of the use of anonymous complaints to bring about an investigation by disciplinary counsel. Importantly, in the event that a complaint received by disciplinary counsel is frivolous (or complains of conduct falling outside its jurisdiction) on its face, then disciplinary counsel can dismiss the complaint, and the rule does not require notice to the accused lawyer in such circumstances. New Rule 9 also removes one potential source of complaints against lawyers by deleting conduct in violation of the attorney’s oath of office from the section identifying conduct that is grounds for discipline. Compare § 11.1 with Section 3.2 of old Rule 9. Thus, for example, in 2014 a complaint against a lawyer that alleges only a violation of the oath of office should presumably result in an immediate dismissal and could come about without the accused lawyer even being aware of the developments.

Although the submission of a complaint remains the most likely way for disciplinary proceedings to commence against a respondent, it is still not the only way. Rule 9 still provides disciplinary counsel with some authority to initiate an investigation even in the absence of a person submitting a sufficient complaint. For example, a media report could be sufficiently serious to justify disciplinary counsel opening an investigation file under Section 4.5(a). New Rule 9 also continues to permit disciplinary counsel to seek the immediate, but temporary, suspension of a lawyer when a lawyer has (1) misappropriated funds, (2) failed to respond to a disciplinary complaint, (3) failed to comply with a certain type of TLAP monitoring agreement; or (4) otherwise poses a threat of substantial harm to the public. § 12.3(a). In the past, such a suspension triggered the obligation of disciplinary counsel to file a formal petition for discipline against the lawyer thereafter to seek a final determination regarding appropriate discipline; new Rule 9 however leaves it to the respondent to file a petition to seek to have such temporary suspension dissolved or amended. § 12.3(d).

Finally, Rule 9 also continues to require certain swift disciplinary action in the form of immediate suspension against attorneys who have been convicted of any “serious crime,” a defined term that now includes convictions in jurisdictions outside of the state of Tennessee. § 2. New Rule 9 deletes one other circumstance that resulted in immediate, temporary suspension, by dropping the convoluted proceedings required under old Rule 9 regarding a lawyer held in contempt in a case in which they are a party and, instead, simply states that anytime a lawyer is found in contempt of a court order such conduct is grounds for discipline. Compare § 11.3 with Section 3.4 of old Rule 9.

Fundamental to understanding the mechanics of what happens in the disciplinary process in Tennessee is an understanding of the structure of the board itself. New Rule 9 retains and continues the internal structure of the Board of Professional Responsibility, its district committees, and its relationship with disciplinary counsel. The board continues to be comprised of 12 members who are appointed by the court, comprised of nine attorney members and three non-attorney members. §4.1. The state of Tennessee is divided into nine disciplinary districts (§ 3), and there must be one attorney board member from each district, while the three non-attorney members include one from each of Tennessee’s three Grand Divisions. Voting, quorum and other procedural requirements (including the ability to make decisions by telephone conference or even e-mail) with which the board must comply are set out in § 4.3. And although the court’s original proposal would have made clear that the members of the board, who receive no compensation for their service (§ 4.4), must comply with the disqualification/recusal requirements imposed upon judges by Tenn. Sup. Ct. R. 10, new Rule 9 as ultimately adopted by the court makes a curious decision to say only that members of the board should not be involved in adjudicative functions when doing so would violate “federal or Tennessee constitutional due process requirements for administrative adjudications” and states that the procedures for motions to disqualify set out in Tenn. Sup. Ct. R. 10B do not apply. § 4.6.

District committee members — those who review certain recommendations of disciplinary counsel and who, in groups of three, serve as members of hearing panels — continue to be required to be lawyers and, for each disciplinary district the committee must have at least five members. § 6.1. District committee members are appointed by the court based upon the recommendation of the board or by the leadership of local bar associations in each district. Id. District committee members, whether acting as an individual reviewing a recommendation by disciplinary counsel or serving as a hearing panel member, must also comply with Tenn. Sup. Ct. R. 10 on disqualification/recusal as if they were a judge; however, new Rule 9 provides that the mechanics for motions to disqualify under Tenn. Sup. Ct. R. 10B do not apply. § 6.5. New Rule 9 does impose term limits upon service as a District committee member but provides that a person can be reappointed as a member, even after having served the maximum of two consecutive three-year terms, if they spend one full year off of the District committee. § 6.2.

Chief disciplinary counsel continues to be appointed to the position by the court and to serve, at the court’s pleasure, as something of a combination of an independent prosecutor and in-house lawyer for the board itself. § 7.1. Section 7.2 of new Rule 9 provides for the powers possessed by chief disciplinary counsel alone; while § 7.3 enumerates the powers equally available to chief disciplinary counsel and any full-time staff disciplinary counsel employed by chief disciplinary counsel. Among those enumerated duties are both the power to investigate possible misconduct and the duty to present disciplinary proceedings. This is consistent with the two-staged/ two-tiered system contemplated by Rule 9 made up of informal but highly important (and confidential) investigative proceedings and formal, public disciplinary proceedings.

Upon the receipt of a sufficient complaint to trigger its investigative obligations, disciplinary counsel must provide a copy of the written complaint submitted against the lawyer. The lawyer shall then have an opportunity (the typical letter from disciplinary counsel offers a period of 10 days) to provide a response to the complaint. Nothing about the revisions to Rule 9 changes this process from taking place in the way that it long has with the potential for multiple rounds of exchanges of letters with disciplinary counsel receiving the lawyer’s response and packaging it up and sending it to the complainant for a reply and vice versa. In order to insure, however, that disciplinary counsel does provide respondent with all such submissions from the complainant, new Rule 9 explicitly requires disciplinary counsel not only to provide the original written complaint against the lawyer but also any further supplemental submissions made by the complainant. § 15.1(a). That same section also requires disciplinary counsel to provide a respondent with a copy of any information which results in an investigation by disciplinary counsel in the absence of a written complaint.

Though a complainant may be what gets the proceedings started, new Rule 9 continues to provide that an investigation, once commenced, does not have to stop because a complainant changes his or her mind. § 20. Likewise, disciplinary proceedings still need not automatically be put on ice because the allegations made to the board are substantially similar to allegations pending in criminal or civil litigation. § 21. Rather, any request to stay disciplinary proceedings on that basis is left to be resolved by the board at its discretion based on a “good cause” standard. Id. In most circumstances, this means that, regardless of any other issues respondent may be dealing with, disciplinary counsel’s investigation continues until s/he is in position to conclude them. When that time comes, one of several things can happen as is explained in § 15.1(b).

First, disciplinary counsel might conclude that the complaint against the lawyer should simply be dismissed. To accomplish this, the disciplinary counsel must obtain approval of the recommendation for dismissal from one member of the district committee. §§ 6.3, 15.1(c). In the event that the reviewing disciplinary committee does not agree with disciplinary counsel’s recommendation, the member may attempt to “modify” such a recommendation but cannot seek to impose discipline greater than a private informal admonition and can only offer diversion if disciplinary counsel concurs with diversion. §§ 6.3. 15.1(c).

If approved, then the complaint is dismissed, the file is closed, and the fact of the complaint and the investigation remain confidential. The complainant is notified, however, that the complaint has been dismissed. A complainant unhappy with that outcome can appeal the dismissal, in writing, within 30 days of receiving the notice of same. § 15.4(f). That appeal goes to the board, where the dismissal can be approved, modified, disapproved, or the board can direct disciplinary counsel to investigate further.

Second, disciplinary counsel may decide to recommend imposition of the lowest form of discipline — a private informal admonition (PIA). Section 12.6 defines a PIA as a form of discipline appropriately imposed “when there is harm or risk of harm to the client, the public, the legal system or the profession, but the misconduct appears to be an isolated incident or is minor.” Interestingly, while the review process by the district committee member is the same as with a recommended dismissal and the complainant similarly will receive notice of the outcome, when a recommended PIA is approved the complainant has no right to appeal. §15.1(g). The respondent also has no right of appeal, but can demand a formal disciplinary proceeding be initiated and have the PIA vacated. § 15(e). Such a course of conduct for a respondent is risky, however. Once formal proceedings are initiated, the second, formal (and public) stage of disciplinary proceedings begins, and this means that, unless exonerated by the hearing panel, a public censure is the lowest form of discipline that can be meted out to the respondent.

Third, disciplinary counsel might conclude that the alleged conduct of the lawyer in question merits discipline greater than a PIA but should not result in the imposition of formal proceedings. If so, then disciplinary counsel’s options are to recommend imposition of a private reprimand or public censure against the lawyer. Section 12.5 defines a private reprimand as the form of discipline that should be imposed either when “there are several similar acts of minor misconduct with the same time frame, but relating to different matters” or the conduct is of the same nature as what is appropriately punished through a PIA but the respondent has previously received a PIA for the same conduct and is now repeating such misconduct. Section 12.4 explains the impact of a public censure (which as the name itself strongly hints involves being censured for your conduct in a public fashion), but does not undertake to define when it is appropriate.

Whether disciplinary counsel recommends private reprimand or public censure, the review of the recommendation is made by the board itself, and if approved, the choice for the respondent is then the same — either accept the proposed discipline or demand that a formal proceeding against her be commenced. § 15.1(e). The board, of course, need not approve the recommendation and could insist that a lower form of discipline (even outright dismissal) be the outcome but could also direct disciplinary counsel to proceed with formal proceedings instead of resolving through the proposed discipline. The revisions to new Rule 9 solve a problem often articulated by disciplinary counsel that public censure could not be accompanied by any further forms of requirements (i.e., public censure plus) and makes clear that as to any form of public discipline, the parties can stipulate, or be ordered to have, accompanying conditions. § 12.8.

Because imposition of private reprimand or a public censure require the approval of the full board and not just one member of the district committee, a private reprimand or public censure that is imposed by the board, and agreed to by the respondent, is not something that the complainant has any ability to appeal. As to private reprimands, this point is made clear by Section 15.1(h), which also indicates that the complainant will be notified that the matter was resolved through a private reprimand but that the proceedings are confidential. As to a public censure, this outcome is apparent only by way of implication.

Another important distinction between disciplinary counsel recommending a private reprimand or a public censure at this stage of the proceedings involves other potentially available components of a proposed resolution.  While the potential for a TLAP monitoring agreement requiring reporting to the board is available either way, the possibility of diversion can only accompany private discipline while the imposition of a practice monitor can only be part of recommended public discipline.

New Rule 9 maintains diversion as a recognized concept, but it is limited only to circumstances where private, rather than public, discipline are deemed appropriate and also now provides that diversion is not something a complainant can appeal, but when a matter is handled through diversion, the complainant will receive notice that the complaint was resolved in a confidential manner. § 13.9. Section 13.1 also makes plain that entering into and complying with a TLAP monitoring agreement can be made a part of a diversion program. Whereas diversion is only available in connection with what would otherwise be private discipline, practice monitors — now enshrined in the rules as a defined concept in §2 and regulated thereby in § 12.9 — are only available for inclusion as a condition connected to public discipline.

Finally, disciplinary counsel could conclude at the end of the investigation that formal disciplinary proceedings should commence against the lawyer. If so, and if the disciplinary counsel’s recommendation for such a step is approved by the board, then the nature of the proceedings takes a much more public, and significantly more formal, turn. This more public, more formal turn of events can also come to pass (as set out above) because the board insists rather than approve a lesser recommendation of disciplinary counsel or because respondent so demands rather than agree to discipline as described above.

With respect to commencing formal proceedings, the new Rule 9 maintains the procedural approach in which the board files a petition, the respondent answers, and the proceedings then continue in a fashion similar to civil litigation, including the requirement of a pre-hearing conference — much akin to a Rule 16 conference in federal court — to be held by the hearing panel within 60 days of the filing of the petition or 30 days after the answer to the petition (if an extension of the time to answer was granted). § 15.2(f). Before such a conference can occur, however, there must be an assignment of the matter to a hearing panel. Despite suggestion being made that the rules should be revised to have a hearing panel assigned as soon as the board’ s petition is filed (for among other reasons allowing it to be the hearing panel that rules on motions requesting additional time to respond to a petition), the court has maintained its approach that the triggering event for assignment of a hearing panel is the service of the answer to the petition by the respondent. § 15.2(d).

Another revision on the topic of assignment of hearing panels not adopted by the court was one regarding the mechanics of the board’s operations and what information is communicated by the board to potential hearing panel members prior to appointment of the hearing panel. Despite being encouraged to limit any ex parte communications to potential hearing panel members to only the information that is necessary to allow for the running of an appropriate conflicts check to determine whether recusal would be needed, the court opted simply to bless ex parte communications between the board and such potential hearing panel members generally. § 15.2(e).

New Rule 9 contains a number of other improvements directed at the formal stage of the disciplinary process. New Rule 9 continues to provide reference generally to the applicability of both the Tennessee Rules of Civil Procedure and the Tennessee Rules of Evidence to formal disciplinary proceedings. § 34.3(a). Yet, with respect to the pursuit of discovery, disciplinary counsel has subpoena power from the beginning of the investigative process, while respondent obtains the ability to obtain issuance of subpoenas only after formal proceedings have commenced. § 19.1. The rules do provide though for the ability of a respondent to seek discovery even before formal proceedings are instituted, but only upon obtaining an order from the chair of the board. § 19.5. Section 34.3(b) expressly imposes stronger limits upon a respondent’s ability to take discovery from disciplinary counsel and from the board itself as an entity.

Other revisions that make new Rule 9 more consistent with the Tennessee Rules of Civil Procedure include changes to what must happen for a default judgment to go down against a respondent and clarifying disciplinary counsel’s ability to file an amended or supplemental petition (as well as the ability of the respondent to file an amended answer). §§ 15.2(a), (b). Similarly, consistent with Tenn. R. Civ. P. 72, new Rule 9 permits a sworn declaration to be offered whenever the rules otherwise would require an affidavit.

As was briefly mentioned above, once a formal petition for discipline has been filed, the possibility of the imposition of any private discipline is foreclosed, leaving only a range of potential outcomes (besides a hearing panel ruling in his or her favor) of public censure, suspension or disbarment as is made plain in Section 15.4(a). New Rule 9 continues to require the hearing panel to use the ABA Standards for Imposing Lawyer Sanctions as its guide in determining the appropriate type of discipline, if any. § 15.4(a). Although Rule 9 continues to afford the potential for imposition of a term of probation along with discipline in the form of a suspension, new Rule 9 makes clear that any order of suspension must require the lawyer to at least serve an active suspension of 30 days. § 12.2.

Upon conclusion of the hearing before the hearing panel, an exercise intended to work much like a bench trial in other forms of civil litigation, the panel is required not only to rule but to produce written findings and judgment. New Rule 9 extends the hearing panel’s deadline for issuing its ruling from 15 days after the hearing to 30 days. § 15.3(a). Rule 9 provides both a mechanism for the hearing panel to request more time from the chair of the board for issuing its ruling and makes clear that the hearing panel’s failure to comply with required deadlines will not provide a basis for respondent to seek to have the matter dismissed. § 15.3(a).

Despite being intended to look like a tribunal independent from the board itself, new Rule 9 fails to have the hearing panel directly transmit its ruling to the parties. Instead, a hearing panel is to provide its ruling to the executive secretary of the board and leaves it to the executive secretary to serve the ruling upon disciplinary counsel and the respondent. § 15.3(a).

Another way in which Rule 9 was quite purposely not revised by the court is worthy of mention at this point in talking about any ruling made by the hearing panel. The Tennessee Bar Association advocated in its public comment submitted to the court on Feb. 8, 2013, that Tennessee should drop the “preponderance of the evidence” standard it has employed for years in lawyer disciplinary proceedings and move to the standard used by an overwhelming majority of U.S. jurisdictions, “clear and convincing evidence.” In making that request, the TBA flagged the procedural due process concerns — implicating both Article I, § 8 of the Tennessee Constitution and the Fourteenth Amendment of the U.S. Constitution — of a system in which a lawyer’s license could be revoked on the basis of the lowest form of proof known to civil law. The TBA also reminded the court that judicial disciplinary proceedings in Tennessee do require proof by the heightened “clear and convincing evidence” standard. See In re Bell, 344 S.W.3d 304, 314 (Tenn. 2011) (citing Tenn. Code Ann. § 17-5-308(d)).

Nevertheless, the court refused to change its proposed course and Section 15.2(g) of new Rule 9 still indicates that disciplinary counsel need only prove that a lawyer violated an ethical rule by a preponderance of the evidence. Likewise, and potentially serving only to continue to exacerbate the risk of constitutional challenge, the court also left in place the requirement that a lawyer seeking reinstatement has to satisfy the higher clear and convincing evidence standard. While one has to be skeptical about whether this iteration of the Tennessee Supreme Court — having passed over the opportunity to change this standard with full awareness of the constitutional dimensions — will entertain any challenge to the constitutionality of this standard of proof, lawyers will likely continue to be placed in the position of having to include such constitutional challenges in response to formal disciplinary proceedings — proceedings that the United States Supreme Court itself has described as “quasi-criminal” in nature. See In Re Ruffalo, 390 U.S. 544, modified on other grounds, 392 U.S. 919 (1968).

New Rule 9 explicitly prohibits any effort by the respondent or disciplinary counsel to seek any petition for rehearing. 15.3(b). Instead, the party not satisfied with the outcome must file any appeal within 60 days of the entry of the judgment of the hearing panel. § 33.1(a).

As has long been the case, appeals from the ruling of the hearing panel go to the Circuit or Chancery Court, and an out-of-town trial judge is to be appointed by the chief justice of the court. § 33.2. Such appeals are limited to the contents of the record created before the hearing panel and are governed by a limited review similar to many other administrative proceedings using, for example, the “substantial and material” evidence standard. § 33.1(b). Both the hearing panel and the trial court are afforded the power and discretion to stay the effect of their rulings pending appeal. § 33.3. The trial court is also given the authority to stay the ruling of the hearing panel even if the hearing panel does not. § 33.3(a). Any appeal from the ruling of the trial court is lodged with the Tennessee Supreme Court. § 33.1(d).

At any stage of the proceedings, including even as early as when disciplinary counsel is still engaged in investigating the matter and has not yet filed a formal petition for discipline, Rule 9 continues to permit the respondent lawyer to simply consent to disbarment. § 23.1. Although obviously any order of disbarment resulting therefrom is a public document, Rule 9 continues to afford confidential treatment to the affidavit or sworn declaration of the respondent lawyer. § 23.3. Section 24 also continues to encourage the concept of discipline by consent even for results involving lesser punishment than disbarment through the tender by the respondent of a conditional guilty plea but only after formal charges have been filed against the lawyer. Ultimately, any such discipline by consent is subject to approval by the Tennessee Supreme Court after review of a proposed Order of Enforcement and a Protocol Memorandum required to be submitted to the court. The Protocol Memorandum has long been something created and submitted to the court, but it is now enshrined in the rule and its contents and purpose (including specifically disclosure of what is considered by the board to be “comparative Tennessee discipline in similar cases”) defined. § 2. Unfortunately, however, the court has opted to specifically prohibit respondent from submitting any response to a Protocol Memorandum submitted by the board. § 24.1.

Reinstatement proceedings under new Rule 9 are governed as set out in Section 30 and are largely unchanged with respect to substance. The most noteworthy change is that instead of simply being able to automatically resume practice at the end of the period of suspension, a lawyer who has been suspended for less than one year cannot resume practice under new Rule 9 without first filing a petition for reinstatement and obtaining an order of reinstatement from the court. § 30.4(c). Further underlining the potential problem with the court’s refusal to adopt a clear and convincing evidence standard for the imposition of discipline, an attorney seeking reinstatement after being disbarred or receiving a disciplinary suspension must demonstrate their entitlement to reinstatement by clear and convincing evidence. § 30.4.

Brian Faughnan BRIAN S. FAUGHNAN practices with the Memphis law firm of Thomason Hendrix Harvey Johnson & Mitchell PLLC. In addition to the area of lawyer ethics and professional responsibility, his practice is focused on commercial litigation, appellate litigation and media law. He is a frequent author and speaker on ethics and professional responsibility issues, writes “Faughnan on Ethics,” a column for Memphis Lawyer magazine, and is a co-author of the book Professional Responsibility in Litigation published by the ABA. Faughnan is the chair of the TBA’s Standing Committee on Ethics and Professional Responsibility and serves as West Tennessee Governor on the TBA Board of Governors. Contact Brian at FaughnanB@thomasonlaw.com.