News

ABA Issues Formal Ethics Opinion on Negotiating Plea Bargains for Misdemeanor Offenses

The American Bar Association has issued a formal ethics opinion regarding the obligations of prosecutors in negotiating plea bargains for misdemeanor offenses. The opinion addresses a prosecutor's obligations when negotiating with an unrepresented individual who is or may be entitled to counsel at the time the prosecutor initiates the plea bargaining process for a misdemeanor charge. The opinion also addresses a prosecutor’s duties when plea bargaining with an unrepresented accused on a misdemeanor charge irrespective of whether the accused has invoked the right to counsel. Read the full opinion here.
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5 New Job Postings on TBA’s Joblink

See who is hiring in Tennessee. Recent job postings this month offer opportunities in litigation, real estate, health law and more. See full listings or post positions in your firm on TBA’s Joblink.
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Supreme Court Adopts Changes to Rule 7

After opening the issue up to public comment earlier this year, the Tennessee Supreme Court has officially adopted amendments to Rule 7, which governs the admission and licensing of attorneys in the state. Changes include edits to the rules governing students attending non-American Bar Association accredited law schools, approval of law schools seeking ABA accreditation and more. The rule goes into effect immediately. The court received comments from deans, clinic directors and law school faculty members.
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Registration Now Open for TBA Convention in Nashville, June 12-15

The TBA's annual Convention returns to downtown Nashville this summer! Mark your calendars for June 12-15 and prepare for four days of CLE, networking, entertainment and more at the Renaissance Hotel, 611 Commerce Street. Registration is officially open, with early bird rates available until April 30.
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BPR Solicits Comment on New Formal Ethics Opinion

The Board of Professional Responsibility is now soliciting written comments regarding a new formal ethics opinion which concerns the ethical propriety of a settlement agreement in a products liability case, which contains as a material condition of the settlement that the subject vehicle alleged to be defective be destroyed within 180 days with certification to defendant's counsel of record of the destruction. The deadline for submitting written comments is April 10. Written comments may be emailed to LChastain@tbpr.org or mailed to: Board of Professional Responsibility of the Supreme Court of Tennessee, 10 Cadillac Drive, Suite 220, Brentwood, TN 37027
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TBA to Introduce Legal Document Generation

The TBA will soon launch a new subscription-based product for Tennessee lawyers — automated legal forms. The initiative will use HotDocs, a custom documentation generator that creates form templates and speeds up the preparation process based on client and case data. In order to provide this valuable resource to our members, we hope to obtain your comments and ideas on forms you deem beneficial for replication. With across-the-board participation, we can comprise a substantive, comprehensive database where subscribers will have access to forms submitted by all TBA sections. Please send suggestions and comments to TBA Membership Director Mindy Fulks.

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Proposed Rule Requires Additional Support for Ethics Complaints Against Elected Officials

A new policy proposed by Rep. Mathew Hill, R-Jonesborough, would require lawmakers to take an additional step when filing an ethical complaint, NPR reports. The prospective rule change makes it necessary to obtain signatures from at least two representatives — one with firsthand knowledge or evidence of the alleged violation — in order to file a complaint against another elected official. "If there’s not corroboration, if there’s not evidence that is presented, then we are working off hearsay, we are working off gossip," Hill said in a House meeting last Thursday. The rule, according to Hill, is modeled on a biblical requirement that allegations must be corroborated. 

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Join Us Today: LAW TECH

Today's the day! Discover the newest technology for your law practice and law office at this year's Law Tech Blast at the Tennessee Bar Center in Nashville!

The flexible open house format allows you to create your own schedule. You can attend CLE sessions, enter to win prizes, network with attendees, visit with sponsors and interact with speakers. Take as many or as few CLE hours as you need. Only those seeking to be awarded CLE Credit will be charged. The registration desk will be open all day, so you can come and go for the hours you need when it is convenient for you. Attendees can earn up to 6.5 hours of Dual CLE credit.

CLE TOPICS:
  • GDPR, Cloud and Technological Competency
  • The Bill and Phil Tech Show 2019: BEAT THE CLOCK
  • Best Practices: Information Security for Firms
  • Judicial Panel: Technology in the Courtroom
  • Know When to Hold 'Em
  • Digital Evidence – A Technical Life Raft for the Legal Mind
  • Make it Rain: Ethics Guidelines and Practice Essentials

ATTEND TO WIN: Attendees will have a chance to win prizes, including an iPad Pro. The tech prize drawing will be held at the 10:30 a.m. break. Must be present to win.

TAKE A LYFT: TBA has partnered with Lyft to offer attendees a discounted ride.

  • New to Lyft?: Get $5 off 2 rides at http://lyft.com/i/lawtech5 or download the app and enter code LAWTECH5
  • Already Have Lyft?: Save 10% off 2 rides to or from Law Tech Blast with code LAWTECH

THANK YOU TO OUR SPONSORS & EXHIBITORS:


 

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Give the Gift of TBA Membership

Give yourself (or a friend) the gift that keeps giving — one-year of unlimited access to professional development opportunities and a number of programs and services designed to help you become a better practitioner. Founded in 1881, the Tennessee Bar Association is dedicated to enhancing fellowship among members of the state's legal community. Oh, and did we mention some of the benefits? Earn three pre-paid credits to use on any live or online course featured in the 12-days of CLE. Join now!

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Faughnan Ethics Blog Named to ABA ‘Best-Of’ List

As a part of the American Bar Association’s “Web 100” best-of lists for 2018, Tennessee lawyer Brian Faughnan’s “Faughnan on Ethics” blog made the cut for “Best Law Blogs” of the year. Faughnan, who will again be presenting at the TBA's annual Ethics Roadshow CLE programming in six Tennessee cities, came in at number 15 of 35 recognized blogs.
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Court Grants Stay on Formal Ethics Opinion 2017-F-163

The Tennessee Supreme Court has granted a request to stay the effectiveness of Formal Ethics Opinion 2017-F-163, which deals with a prosecutor’s ethical duties to disclose information. The request for the stay came from the Tennessee District Attorneys General Conference. Earlier this month, the Board of Professional Responsibility had responded to the stay request saying that it anticipates voting on reconsideration of Formal Ethics Opinion 2017-F-163 at its Dec. 14 meeting, and will “hold in abeyance any recommended disposition by a Hearing Committee Member or the Board of any disciplinary complaint filed against a prosecutor wherein Formal Ethics Opinion 2017-F-163 is referenced in the complaint.”

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Ethics Roadshow 2018: Nashville

It’s back! The popular ethics program is coming to Nashville on Dec. 11. This year’s theme, Back to Basics: Sailing the Five Cs of Ethical Lawyering, offers a look into the significant developments in the world of lawyer’s during 2018 focused on the five “Cs” that make up the perfect recipe for ethical lawyering, no matter what law you practice: Competence, Confidentiality, (Avoiding) Conflicts, Communication and Candor. Don’t miss your chance to fulfill your ethics requirements; offering 3 dual credits. The Roadshow will also make stops in Chattanooga, Knoxville and Memphis.
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Basic Tech Checklist for Firms

Law firms attempting to stay competitive and state-of-the-art need to consistently evaluate their use of technology. In addition to staying competitive, technological competency is required. In 2017, the Tennessee Supreme Court amended Rule 8 of the Rules of Professional Responsibility to include this obligation. Above the Law presents a simple and straightforward tech checklist for law firms or lawyers seeking guidance in this area.   

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ABA Releases Opinion on Attorney Disaster Response

The American Bar Association Standing Committee on Ethics and Professional Responsibility released today an opinion that underscores the importance of ABA model rules for lawyers affected by disasters and provides specific guidance on their ethical responsibilities in the aftermath of hurricanes, floods, tornadoes and fires. The formal opinion notes that recent large-scale disasters, such as Hurricane Florence in the Carolinas, highlight the need for lawyers to understand that extreme weather events and other calamities have the potential to destroy property or cause the long-term loss of power. Lawyers, in turn, have an ethical obligation to implement reasonable measures to safeguard property and funds they hold for clients or third parties, prepare for business interruption and keep clients informed about how to contact them or their successor counsel.
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Pera on Podcast: Seek Help from Other Attorneys on Ethics Issues

Former TBA President Lucian Pera recently appeared on the American Bar Association podcast “Asked & Answered,” in which he discusses the importance of seeking the advice of colleagues on issues of ethics. “None of us — and this is not just lawyers — are really objective about our own matters,” Pera said. The Memphis attorney and current chair of the ABA Center for Professional Responsibility’s Coordinating Council said that when an attorney gets even the slightest notion that something could become a problem on a client matter, reach out and ask for help. 
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Pera Helps Lead ABA Effort to Modernize Rules on Lawyer Advertising

The ABA House of Delegates on Monday voted in favor of amending Rule 7 of ABA Model Rules of Professional Conduct, which addresses lawyer advertising, the ABA Journal reports. Lucian Pera told delegates that in the decades since the 1977 U.S. Supreme Court decision in Bates v. State Bar of Arizona allowed for lawyers to advertise their services, there’s been a “breathtaking variation in advertising rules” among states. He said the amendments were necessary to clarify and simplify these rules.
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Brian Benczkowski Confirmed to Lead the Justice Department’s Criminal Division

The Senate on Wednesday voted 51 to 48 to confirm President Trump’s nominee Brian Benczkowski to lead the Justice Department’s criminal division, amidst the objection of Democrats who expressed concern regarding his representation of a Russian bank and lack of prosecutorial experience, reports The Washington Post. Benczkowski once represented Alfa Bank — a Russian firm that was referenced in a dossier containing allegations about Trump, his advisers and their possible Russian connections — at the request of a partner in his firm, Kirkland & Ellis. Benczkowski told lawmakers he would recuse himself from any matters involving the bank for two years and would permanently step aside from any matters that touched on his work for the institution.

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Judge Tosses Kansas' Proof-of-Citizenship Voter Law, Rules that Attorney Must Take Extra CLE

A federal judge on Monday decided that Kansas cannot require people to prove their U.S. citizenship before they can vote, ruling the state's election law is unconstitutional, reports NPR. Chief District Judge Julie A. Robinson blasted Kansas Secretary of State Kris Kobach — who led President Trump's voter fraud commission — over disclosure violations, stating the violations “document a pattern and practice by [Kobach] of flaunting disclosure and discovery rules that are designed to prevent prejudice and surprise at trial.” Kobach was ordered by the judge to take continuing legal education classes on the rules of evidence or procedure in addition to any other CLE education required by his law license. Kobach is running for governor of Kansas, reportedly locked in a tight Republican primary race against the incumbent. You can read the full opinion here.

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Delaware Bar Foundation Holding Nationwide Writing Contest for Law Students

For the third year running, the Delaware Bar Foundation will hold the Stargatt Legal Ethics Writing Competition. There are no Delaware residency requirements, so it is open to any ABA-accredited law school student or recent graduate. The topic must be ethics-related and the deadline is Sept. 15. The top submission will garner $3,000 for the author, with cash prizes available to second and third place as well. Find out more here.
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Legal Practice Tip: Prosecutor’s Ethical Duty to Disclose Broader than Brady

The Tennessee Board of Professional Responsibility issued an ethics opinion explaining that a prosecuting attorney’s ethical duty to disclose favorable information to the defense is broader than that required under federal constitutional law.“Tennessee Rule of Professional Conduct 3.8(d)" is a separate ethical obligation of prosecutors and was not meant to be coextensive with a prosecutor's legal disclosure obligations.  This ethical duty is separate from disclosure obligations imposed under the Constitution, statutes, procedural rules, court rules, or court orders. A prosecutor’s ethical duty to disclose information favorable to the defense is broader than and extends beyond Brady.  Once a prosecutor knows of evidence and information that tends to negate the guilt of the accused, or mitigates the offense, or falls within RPC 3.8( d)’s disclosure requirement, the prosecutor ordinarily must disclose it as soon as reasonably practicable.” Formal Ethics Opinion 2017-F-163.

Roger E. Nell is the District Public Defender at 19th Judicial District of Tennessee and current Chair-Elect of TBA's Criminal Justice Section.
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Risks of Protecting Electronic Information CLE

On May 15,
Chris Stiegemeyer is back at the Tennessee Bar Center on May 15 with a 3-hour ethics program. The prudent management of law firm data brings together not just a lawyer's ethical duties and malpractice risk management, but also your personal financial exposure. This seminar will help attendees learn to identify those risks and provide a roadmap for addressing them. 
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Former Skadden Associate Charged in Russia Probe Seeks Leniency

Alex van der Zwaan, the former Skadden, Arps, Slate, Meagher & Flom associate who pleaded guilty to lying in the Russia investigation earlier this year, told a Washington, D.C., judge that his cooperation and remorse justify a non-jail sentence, reports The National Law Journal.

Van der Zwan’s lawyer, Cooley partner William Schwartz, wrote in a sentencing memo to U.S. District Judge Amy Berman Jackson that the 33-year-old’s career is ruined, and that he has “been serving a sentence while stuck in limbo” in the United States. The memo states that while it did not excuse his conduct, van der Zwaan lied to investigators in a Nov. 3, 2017, meeting because he feared for his career, as Skadden lawyers represented him at that time.

“During the interview, Alex was keenly aware that he was not speaking only to the OSC,” the document said. “Alex was represented by Skadden lawyers, and anything he shared with the OSC would simultaneously be heard by Skadden. In his mind, his boss was listening to every word.” The memorandum continues: “Focused on preserving his career at Skadden, and fearful that truthful answers could lead to discovery of the recordings (and in particular, the discovery that he had recorded a Skadden partner), Alex made a terrible decision… The conduct that brings Alex before this court was inexcusable… And while his actions following his initial meeting with the OSC cannot absolve him from culpability, they are compelling mitigating factors in considering just punishment.”

In their own memo, lawyers for Mueller told the judge she should not rule out prison time, because of a “scarcity of mitigating factors and several aggravating circumstances.” They said van der Zwaan “is a person to whom every advantage in life has been given,” and that the government rightly expected “candor and uprightness” from him. “While there might eventually be additional professional consequences that befall a foreign lawyer who commits a United States felony, those consequences do not themselves obviate the need for his current sentence to reflect the seriousness of his crime, to promote respect for the law, or to provide adequate specific and general deterrence,” prosecutors wrote.

The filing also included pleas for a lenient sentencing from van der Zwaan’s wife, the daughter of a Russian oligarch who is expecting a baby in August, and his mother, whom the filing said he helps with errands and household tasks. Van der Zwaan faces up to six months in prison.

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Law Firms Often Keep Quiet After Resignations From Misconduct

"There are many reasons why the #MeToo moment hasn’t fully crested in Biglaw yet," Above the Law writes, "and a big one is that law firms know how to conduct internal investigations," which they do with maximum discretion. This story reports on recent resignations from law firms after allegations of misconduct, and why keeping it quiet is not always in everyone's best interest.

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ABA Ethics Opinion Stresses Duty of Confidentiality While Blogging

A new American Bar Association ethics opinion stresses the importance of confidentiality lawyers must maintain when they engage in public commentary, including online on blogs and social media, the ABA Journal reports. The opinion cites the ABA Model Rules of Professional Conduct, specifically Rule 1.6(a), which provides: “A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).” The opinion explains that this duty of confidentiality applies even if the information about the client’s representation is found in a court record or other public record.
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TBA Gears Up for 2018 Mock Trial Tournament

The Tennessee Bar Association will host the upcoming Tennessee High School Mock Trial Tournament on March 23 and 24 in Nashville. The Mock Trial is a two-day, single-elimination bracket-style competition where 16 high schools face-off against each other in the Davidson County Courthouse. Each team is scored on their trial preparation and skills. 

We need TBA volunteers to help be bailiffs and jurors (scorers) for the event. After signing up, we will send you a Volunteer Memo with all the information you need for competition including; parking, hotel, downtown map, courthouse rules, and reimbursement information. Come be a part of the Young Lawyers Divisions’ March Madness! Feel free to contact YLD Director Stephanie Vonnahme with any questions.

To volunteer for this event, click here.

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