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TN Supreme Court Adopts Changes to Attorney Discipline Rules

Press release from the Tennessee Courts System; August 30, 2013:

The Tennessee Supreme Court has adopted substantial changes to the rule that governs the discipline of attorneys in this state.

Supreme Court Rule 9 is one of nearly 60 rules that the Court enforces regarding everything from how court records are kept to rules of professional conduct. The changes to Rule 9 come about after more than two years of work that included input from attorneys and professional organizations from throughout the state.

The changes are so substantial that the Court is adopting a new 56-page rule in its entirety, rather than amending portions of the previous rule, which is the customary practice.

Some of the more notable changes to the rule include:

  • Reinstatement from all attorney suspensions, administrative and disciplinary, now requires an order of the Supreme Court.
  • A separate reinstatement fee is now imposed for reinstatement from an administrative suspension.
  • The rule contains comprehensive provisions regarding the appointment of a receiver attorney for attorneys who become unable to practice law.
  • The new rule clarifies procedures for the selection of and duties of practice monitors assigned as a condition of public discipline.
  • Procedures have been clarified for assessment of costs of any disciplinary proceedings to an attorney who has been the subject of the discipline.
  • The new rule spells out more clearly provisions regarding confidentiality of documents related to disciplinary proceedings.
  • The selection process for board members and recusal standards for both disciplinary hearing panel members and board members have been clarified in the new rule.
  • Also, Supreme Court Rule 9 references several other Supreme Court Rules, some of which will be amended to reflect the changes in Rule 9.

What the new rule does not change is grounds for attorney discipline and the forms of discipline that attorneys are subject to, such as private reprimand, public censure, suspension, and disbarment.

The rule regarding administration of discipline to attorneys was last revised in 2006. The new Supreme Court Rule 9 goes into effect January 1, 2014.

Click here to read a copy of the Court’s Order and the new Rule 9 in its entirety. The updated rule also includes an appendix that cross references the old rule to the revised provisions in the new rule.

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Press Releases

TN Supreme Court Affirms Disciplinary Costs Owed by Attorney

Press release from the Tennessee Courts System; May 24, 2013:

The Tennessee Supreme Court ruled today that Knoxville attorney Herbert S. Moncier must pay the costs incurred prosecuting the disciplinary proceeding that resulted in his one-year suspension from the practice of law in Tennessee.

On June 1, 2011, the Supreme Court assessed costs totaling $22,038.32 against Mr. Moncier. Afterward, Mr. Moncier petitioned for relief from costs, arguing that the disciplinary proceedings resulting in his suspension were unfair and unconstitutional.

A three-member panel of the Tennessee Board of Professional Responsibility (BPR) refused to grant him relief from costs. Mr. Moncier appealed to the Supreme Court, again arguing that he should not be required to pay costs because the disciplinary proceedings that resulted in his suspension were unfair and unconstitutional. Mr. Moncier also argued that the members of the BPR panel assigned to hear his petition for relief from costs were biased against him.

The Supreme Court addressed and rejected Mr. Moncier’s arguments and affirmed the BPR panel’s decision denying him relief from costs. Among other things, the Court concluded that Tennessee’s attorney-disciplinary procedure is consistent with the due process requirements of the Tennessee and United States constitutions and that disqualification standards applicable to judges do not apply to members of the Board of Professional Responsibility.

To read Herbert S. Moncier v. Board of Professional Responsibility Opinion, authored by Justice Cornelia A. Clark, visit the Opinions section.

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Liberty and Justice NewsTracker

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

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