Matthew R. Lyon Assistant Professor of Law Lincoln Memorial University – Duncan School of Law KBA Corporate Counsel Section Annual CLE Thursday, August 21, 2014 A Survey of Recent BPR Formal Ethics Opinions and Supreme Court Decisions

Database of Opinions Reviewed the following opinions that have been released over the past two years (since Sept 2012): Supreme Court BPR Opinions (10) 8 involve imposition of discipline; 2 other matters. BPR Formal Ethics Opinions (5) Those matters that reach the formal disciplinary hearing stage are those where a Petition for Discipline is filed (i.e., no reprimand or other private discipline). See Sup. Ct. R. 9, § 15. Thus, this does not include any matters where discipline was by consent with the lawyer. There were also 25 unappealed Hearing Panel decisions during this time period.

Hearing Panel’s Authority Under Sup. Ct. R. 9, § 15.4, if the Hearing Panel finds grounds for discipline after the hearing, it has the following disciplinary options available to it: disbarment; suspension (a portion but not all of which may be deferred in conjunction with a probationary period); public censure; and restitution. The following options are not available to the hearing panel after a Petition for Discipline is filed: temporary suspension; private reprimand; and private informal admonition (PIA).

BPR Appellate Process The process for the appeal of a Hearing Panel decision is set forth in Sup. Ct. R. 9, § 33. Either the attorney or the Board may appeal a decision of the Hearing Panel to the circuit or chancery court in the which the attorney’s office was located at the time the charges were filed. The circuit court’s standard of review of the Hearing Panel’s decision is highly deferential. Appeals of circuit court opinions may be made directly to the Supreme Court, which has adopted similarly deferential standard. See BPR v. Love, 256 S.W.3d 644, 653 (Tenn. 2008).

Formal Ethics Opinions 2014-F-158 & 2013-F-156: Both discuss the scope of attorney-client privilege and confidentiality. The opinions make clear that these are two separate and distinct principles. “The attorney-client privilege and its exceptions are governed by statute and common law.” “Confidentiality and its exceptions are governed by the Rules of Professional Conduct.” “Confidentiality is far broader than the attorney- client privilege.” It applies to all information related to the representation of the client, not only confidential communications with the client.

Formal Ethics Opinions (cont.) 2014-F-158: Considers whether an attorney who represented a testator can be forced by court order or subpoena to produce, prior to the testator’s death, a copy of his or her will. The question arose in the context of court- appointed guardians of individuals suffering from dementia who may have created wills with a lawyer’s assistance while they were of sound mind. A: Yes, but only after raising all non-frivolous arguments that the documents are protected by the attorney-client privilege and/or duty of confidentiality. See RPC 1.6(c)(2).

Formal Ethics Opinions (cont.) 2013-F-156: A defense attorney who is the subject of an ineffective assistance of counsel claim may make limited voluntary disclosures of information related to the former representation F-157: It is not a conflict of interest for a former GAL to represent adoptive parents in a subsequent adoption proceeding, so long as the adoption is in the child’s best interests (ideally, seek permission of the appointing judge) F-91(c): Clarifies that lawyers admitted to practice elsewhere and awaiting admission in Tenn., either by comity or by examination, may provide in- house legal services under RPC 5.5(d) (adopted 2011), though they may not commence a law practice here F-155: Addresses ethical obligations of district attorneys related to expungement.

Supreme Court Opinions Of the 10 Supreme Court opinions, 8 imposed discipline, while 2 involved other matters. Every single decision except one, Bailey v. BPR, affirmed the decision of the circuit court. Bailey, the most recent decision released just this week, was the only one in which the circuit court reversed the decision of the Hearing Panel. The case involved disruptive and disrespectful behavior toward the court by the plaintiff’s attorney during a med mal trial in Shelby County. The Hearing Panel imposed a 60-day suspension, which the circuit court reduced to a public censure. The Court reinstated the suspension.

Supreme Court Cases Imposing Discipline In the 8 cases imposing discipline, 3 resulted in disbarment, 4 suspension of varying length (45 days to 9 months), and 1 a public censure. The degree of punishment and length of suspension are governed not only by the type of disciplinary violations, but also by the ABA Standards for Imposing Lawyer Sanctions. See Tenn. Sup. Ct. R. 9, § 8.4. The level of deference on review means an appeal is unlikely to succeed, though it is notable that the only successful appeal was brought by the Board and resulted in imposition of a harsher sanction.

Other Supreme Court Cases Two other types of BPR cases were decided by the Supreme Court in the last two years. Culp v. BPR (2013): The Court upheld the Hearing Panel’s refusal to reinstate an attorney to the practice of law after a five-year suspension, which resulted from his pleading guilty to attempted extortion and serving a prison sentence. Applicable standard: Tenn. Sup. Ct. R. 9, § Moncier v. BPR (2013): The Court upheld the Hearing Panel’s denial of an attorney’s petition for relief from costs stemming from previous BPR proceedings, which resulted in his suspension. Applicable standard: Tenn. Sup. Ct. R. 9, § 24.3.