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Ethics Panel Looking to Ban ‘Bias or Prejudice’ Among TN Lawyer Ranks

Proposal of particular concern to prominent TN conservative activist

It sounds uncontroversial: The board of Tennessee attorneys that oversees ethics for that profession want to broaden the rules that govern lawyers’ behavior.

But the head of a prominent conservative group says that the proposed rule change is written so broadly that it could mean fines or suspension for attorneys who are activists in their community — or even if they take on the wrong client.

“It could curtail free speech, it could curtail religious speech,” said David Fowler, an attorney and head of the Family Action Council of Tennessee. “It’s political correctness run amok.”

The proposed rule — submitted by the Board of Professional Responsibility of the Supreme Court — broadens the ethics rules Tennessee lawyers would be subject to.

The new rule would make it professional misconduct for lawyers to “engage in conduct, in a professional capacity, manifesting bias or prejudice based on race, sex, religion, national origin, disability, age, sexual orientation, or socioeconomic status.” If the Board found an attorney guilty of such conduct, he or she could face censure, fines or even suspension.

The way Fowler reads the proposal, attorneys who advocate defending marriage as solely between a man and a woman, for example, or who take a side on issues such as the simmering debate on Vanderbilt University’s “all comers” policy open themselves up to punishment from the 12-member Board of Professional Responsibility.

Fowler, a former state Senator is well known at the capitol for his fundamentalist Christian activism. He’s waded into controversial issues such as the so-called ‘Don’t Say Gay‘ bill, which would force schools to tell parents if their children have talked to a teacher or counselor about gay sexual activity.

Lela Hollabaugh, an attorney with Bradley Arant Boult Cummings and the board’s chair, told TNReport that it’s not the board’s role to prohibit attorney’s political activity.

The rule, would, though “prohibit, while in their professional capacity as a lawyer, from manifesting bias or prejudice,” Hollabaugh said.

There are already some rules on the books that prohibit professional misconduct of attorneys, but Hollabaugh explained that, in addition to broadening those rules, it would also include work the attorneys so “in their professional capacity,” not just while representing clients.

“Our concern was that lawyers do things that reflect poorly upon the profession as a whole with conduct that might be deemed to be racist, sexist, ect,” she said. “Given the current language of the rule, we couldn’t necessarily take any disciplinary action… because it was conduct that occurred when the lawyer was not representing a client.”

The reason for the proposed rule change stems from a lawyer’s television commercial that ran on stations in East Tennessee, Hollabaugh said.

“The board received letters and phone calls from different people in East Tennessee who had seen a lawyer’s advertisements and thought they were very derogatory to a certain race of people,” she said. “The board became concerned that, in reality, there was no action that we could take.”

Hollabaugh declined to provide more information about those television commercials.

An interesting twist in the proposed rule: Lawyers could be punished for discriminating against those who are poor — but allows those same lawyers to not take a client’s case if they can’t pay the lawyer’s fee.

“We didn’t want somebody to say ‘you’re discriminating against me based upon socioeconomic status,’ meaning ‘I’m poor and I can’t pay you, therefore you’re discriminating against me,’” Hollabaugh said.

Comments on the proposed rule change must be received by April 1.

Trent Seibert can be reached at trent@tnreport.com, on Twitter (@trentseibert) or at 615-669-9501

1 reply on “Ethics Panel Looking to Ban ‘Bias or Prejudice’ Among TN Lawyer Ranks”

“Our concern was that lawyers do things that reflect poorly upon the
profession as a whole with conduct that might be deemed to be racist,
sexist, etc.,” she said.

The issue most poorly reflecting upon attorneys in Tennessee has been their cowardice to call into account the unconstitutional seating of TN Appellate Court Judges for fear of professional retaliation. It is a common disgrace.

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