TBA Law Blog


Posted by: Wade Davies on Nov 1, 2016

Journal Issue Date: Nov 2016

Journal Name: November 2016 - Vol. 52, No. 11

I am about to finish my second and final term as a member of the Board of Professional Responsibility.

When Justice Clark called six years ago, I didn’t know why she was calling. I remember exactly how the conversation went:

Justice Clark: This may be one of those calls you regret taking.
WD: Well, when you get a call from someone whose first name is ‘Justice,’ the answer is going to be ‘yes.’

That’s how I agreed to serve without knowing what I was agreeing to do. Frankly I was a bit surprised to be asked to join the board. I had just testified on behalf of a respondent attorney, and as a hearing panel member I’d voted not to disbar (but to suspend) an attorney who was in prison (I didn’t think the ABA standards called for disbarment). I’m not a big fan of judging my peers. But I’m thankful for the experience. Enjoyable isn’t the right word. Making decisions that could affect someone’s career is not enjoyable. Rather than enjoyable, I’d say it has been fascinating and rewarding. I’m happy to have brought what I think is a practical criminal-law based perspective to the board. I’ve also learned a lot about the practice of law, and I’ve learned a lot about how clients see us, especially when they don’t feel cared for.

Here are a few observations I’ve made that I hope are helpful, especially to criminal law practitioners, in no particular order.

1. There are a huge number of complaints against criminal defense lawyers. I think the last figures I saw indicated more than half of complaints the board gets are filed against criminal defense lawyers. Maybe this shouldn’t have surprised me, but most of the lawyers I see are diligent and caring. My experience is that criminal defense lawyers think about ethics and doing the right thing every day. The “ethical” issues that come up most often are not the ones you think about most, though. The board rarely deals with issues like client perjury. Most of the complaints deal with communication. You can be working diligently and doing a great job and still get a (valid) complaint from a client who doesn’t know how hard you are working. The vast majority of these situations are cleared up by increased communication, and many could have been avoided in the first place.
Being on the board has caused me to think even more about what it is like to be a criminal defendant and to entrust your future to a professional you may not have chosen. The unknown for the criminal defendant is one of the worst parts of going through the process. I’m not saying that defense counsel are to blame for not going to the jail to hold hands all the time when they may be getting paid $40 an hour with a cap.[1] But a little communication can go a long way. Keeping clients informed of developments and of strategy along the way is crucial. People in jail especially like getting legal mail. I recommend a practice of sending them a copy of all pleadings and all significant correspondence. Ignoring repeated contacts from a client is an easy way to get a complaint.

The board also does a good job of screening out the complaints that are based on a communication breakdown rather than misconduct. The Consumer Assistance Program is able to resolve most of the complaints from inmates before a disciplinary file is ever opened. Beverly Sharpe, the director of consumer assistance, has waded through thousands of these complaints and based on that experience has compiled some great advice for defense lawyers.[2] Read it.

2. Don’t lie. Again, the same thing we tell our clients. I realize it might be irritating even to hear this as advice, but not telling clients the truth comes up because sometimes as lawyers we don’t like to give clients bad news. The board sees cases surprisingly often where the line gets crossed between not delivering bad news promptly and affirmatively misleading clients about the status of a case. You just have to explain what is happening as it happens. Also, if a complaint is filed, don’t mislead disciplinary counsel when they are investigating a case. If you are dealing with them directly, remember that these are experienced lawyers who have seen a lot. They appreciate the fact that your practice does not have to be perfect. I think you will do much better if they understand that you are open and want to try to make sure you do things right.

3. Lawyers who represent themselves … If a complaint is filed against you, seriously consider getting a lawyer before you respond. I think a lot of people are embarrassed about getting a complaint and don’t want their peers to know so they don’t ask for help. Think about how you would advise a client to respond to an inquiry from the authorities. You would not tell them to represent themselves.

4. Disciplinary counsel have a very difficult job. I think I’m just recognizing how hard this job is. First, they have a large caseload. Maybe more importantly, they get hit from all sides. They have to deal with some complainants who do not understand the system and who are very emotional about their complaints. Many of those people are simply unhappy with being in the court system and will be unhappy with lawyers regardless of whether there has been a violation of the Rules of Professional Conduct. Additionally, disciplinary counsel spend a lot of time dealing directly with respondent attorneys. We lawyers tend not to take kindly when we feel attacked or even criticized. These are very contentious, often personalized issues. Then disciplinary counsel have to persuade hearing panels made up of lawyers who are sometimes difficult to persuade. Finally, they also have to answer to chief disciplinary counsel, and they have to justify their positions directly to the board.

5. TLAP is critical. This profession, especially criminal law, can put you through stressors that are hard to shake. I really think that many if not most of the cases we see at BPR arise when a lawyer becomes depressed, chemically dependent or overwhelmed. Although the Tennessee Lawyers Assistance Program (TLAP) can sometimes be a condition of discipline, remember that seeking TLAP assistance or referring someone else is confidential. The board and TLAP have a strong working relationship. Remember, too, that TLAP can provide assistance based on case-related stressors and issues such as grief and anxiety, in addition to substance abuse or diagnosable psychological issues.[3]

6. Take care of business. Criminal lawyers are often not the best businesspeople. We spend time taking care of other people and sometimes neglect ourselves. You can’t help anyone if you are out of business. Another huge percentage of cases we see arise from lawyers who get into financial trouble. Trust account violations are a big problem. There are good resources for trust account questions. The board’s website has a simple handbook for trust account issues. Also, the best way to avoid money problems with clients is to be very clear up front with a written fee agreement in every single case.

7. Process. For those used to protecting constitutional rights, any administrative system can seem suspect. I just want to touch on some of the protections built into the disciplinary system. I’ve been impressed by how much consideration goes into every case. Many applications of the Rules of Professional Conduct are not intuitive. The balance struck on the board between attorney and lay members as well as the buffer of the hearing panels strikes as fair a balance as I could imagine.

Most lawyers, and certainly members of the public, have no clue how much effort goes into a disciplinary proceeding. Disciplinary counsel are divided into investigation and litigation roles. The investigation lawyers spend as much time as they need conducting interviews, obtaining and reviewing documents, and analyzing the application of the facts to the RPC. Then, there is a charging committee meeting before the case is ever presented to the full board. Once an approach is agreed upon among disciplinary counsel, the case is submitted to the full board, usually at one of the quarterly meetings.

The members of the board come from different backgrounds and practices. That is key. I hope I’ve brought some small degree of practical experience on the criminal side during these last six years. You would be surprised at how much consideration the board members give to each case and to the proposed form of discipline. Disciplinary counsel would probably tell you we sometimes provide more input and direction than they need. It is important, though, to use the resources available from the varied backgrounds of the members of the board to make sure proposed discipline is appropriate.

If a petition for discipline is approved by the board, the case proceeds to the hearing stage before panel members. You would also be surprised how many times hearing panels disagree with the board. Once the hearing panel reaches its decision, in addition to potential appeals to Chancery and beyond, the Supreme Court has to approve the discipline. This is not a rubber stamp. The members of the court appear to look at discipline very carefully and on occasion decline to accept either a negotiated agreement or a hearing panel judgment.

This is not meant to be a procedural primer, but the process is designed to take arbitrariness out. There have been times when we’ve probably not gotten things right, and some of my friends have certainly let me know about those times, but the process is very sound.

Complainants whose complaints are dismissed also have the right to appeal, and every appeal is considered by a three-member panel of the board.

Finally, I appreciate the opportunity to serve on the board (but I’m happy to be retiring).

Notes

  1. See Rule 13, Section 2, Rules of the Tennessee Supreme Court.
  2. Beverly Sharpe, Criminal Law Practice: Practical Pointers to Avoid Complaints, Board Notes, Spring 2016, p. 5, http://www.tbpr.org/for-legal-professionals/board-notes-newsletter
  3. www.tlap.org; see also the Special Edition of Board Notes, July 2016, https://s3.amazonaws.com/bpr_website/pdf_downloads/pdfs/000/000/129/original/Special_Board_Notes_FINAL.pdf?1467314156.

Wade Davies WADE?DAVIES is the managing partner at Ritchie, Dillard, Davies & Johnson PC in Knoxville. He is a 1993 graduate of the University of Tennessee College of Law. The majority of his practice has always been devoted to criminal defense. Davies is a member of the Tennessee Bar Journal Editorial Board.