TBA Law Blog

Posted by: Brian Faughnan on Jan 1, 2014

Journal Issue Date: Jan 2014

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

First, and perhaps most important of all, Section 29 of Rule 9 will now offer a comprehensive regime for appointing counsel (“receiver attorney”) to protect the interests of clients when a lawyer has died, disappeared, become disabled or incapacitated (the “affected attorney”).

  • Section 29.2 establishes the ground rules for when the appointment of a receiver attorney is appropriate, how proceedings to cause the appointment can be commenced, and the standard for determining whether a receiver attorney is needed.
  • Section 29.3 articulates duties owed by, and powers of, a receiver attorney including authorizing the receiver attorney to take control of and have signatory power over the affected attorney’s bank accounts.
  • Section 29.4 explains that although no attorney-client relationship is created between receiver attorney and the clients of the affected attorney, the attorney-client privilege applies to their communications and the receiver attorney is still governed by Tenn. Sup. Ct. R. 8, RPC 1.6 with respect to information regarding the representation of the clients by the affected attorney.
  • Sections 29.5 and 29.6 address the trial court’s ability to protect client files and records and the ability of the receiver attorney to be compensated for performance of the required duties.
  • Section 29.7 provides immunity to a receiver attorney for good faith conduct in the course of official duties, and Section 29.8 makes clear that, without permission from the trial court and the informed consent of the client, the receiver attorney cannot represent a client of the affected attorney.
  • Section 29.9 importantly provides recognition for attorneys to designate in advance for someone to essentially serve as a receiver attorney with all the duties and powers otherwise provided for in this rule.
  • Section 29.10 establishes that an order appointing a receiver attorney under this rule serves to toll statutes of limitation and other deadlines of the clients of the affected attorney for a 60-day period.

Section 5 maintains the ability of the Board of Professinal Responsibility to issue formal ethics opinions that will bind the board and bind any person who requested the opinion and also maintains the ability of disciplinary counsel to issue oral informal opinions to lawyers “when there is readily available precedent.” § 5.4.

Section 10.1 enshrines in the rules the “birth month” approach to submission of the required annual registration statement and payment of a lawyer’s $170 annual registration fee that the board implemented in the recent past.

Section 10.7 retains the perhaps-not-widely-known-of provisions in Rule 9 that require certain categories of lawyers whose licenses have been put in inactive status to still pay a registration fee to the BPR, albeit a reduced one of $85.

In 2014 and beyond, Rule 9 will contain in Section 37 a regime for bringing about the suspension of lawyers who are in default with respect to repayment of their student loans.

Rule 9 will also continue to contain provisions for the administrative suspension of lawyers who fail to pay their privilege taxes under Tennessee law (Section 26) or fail to pay their registration fee to the BPR (Section 10.6). The new Rule 9, however, more directly addresses the mechanics of how such suspensions work in terms of the reinstatement of lawyers once they comply with the obligation that triggered the suspension and now specifically address that if the lawyer does all that they can do within 30 days of their suspension — i.e. not only comply but cause a proposed Reinstatement Order to have been sent to the court — then their reinstatement is automatic even if there is some delay on the part of the court in entering any such of order of reinstatement. Lawyers who do not resolve their issues within those 30 days will have to comply with the provisions of Section 28 to provide notice to their clients, opposing counsel, etc. of the fact of their suspension.

Additionally, a few improvements to better clarify the role of the Tennessee Lawyers Assistance Program (and its autonomy from the board) and the fact that it offers a variety of types of monitoring agreements to lawyers can be found in Section 36.