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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 Attorney-supported Fund to Offer More Protection to Clients Hurt by Professional Dishonesty

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

A fund that all Tennessee attorneys financially support will now offer even more protection to those clients that may have suffered a financial loss as a result of the dishonest acts of any member of the profession.

“This fund is now supported entirely by Tennessee lawyers –all willing to take responsibility for the actions of the unscrupulous few,” said Supreme Court Chief Justice Gary Wade. “Fortunately, the number of claims has been few over the years and, in consequence, the fund has grown substantially.”

The Lawyers’ Fund for Client Protection was established more than three decades ago under Supreme Court Rule 25 to reimburse clients for financial losses caused by acts of conversion or theft during the attorney-client relationship. It is supported exclusively by annual fees paid by each licensed Tennessee attorney.

Based on the solid financial standing of the fund, Executive Director Judy Bond-McKissack and the fund’s governing board recommended changes in the rule designed to afford greater protections to the general public. The Supreme Court endorsed their proposal.

“The protection of client interests is an essential element in any system of lawyer regulation,” the Court order states.

The revision to the rule extends the definition of “lawyer” to include all attorneys who practice in Tennessee, regardless of the state granting licensure. Previously, the rule addressed only those attorneys licensed by the State of Tennessee.

Another significant change is to extend from one to three years the amount of time for a client to make a claim for reimbursement. The fund’s governing board pointed out that the small number of valid claims against individuals within the profession has made this extension possible.

The amendments, which are the first changes to the rule since 2009, will go into effect on October 1, 2013. Board members of the Lawyers’ Fund for Client Protection are appointed by the Supreme Court and serve without compensation.

Read the text of the new Supreme Court Rule 25 here.

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Press Releases

TN’s Veterans Treatment Court Sees First Graduates

Press release from the Tennessee Courts System; August 29, 2013:

Tennessee held its first ever Veterans Treatment Court graduations this week, as eight people completed the innovative program designed to help veterans and active service members.

The graduations took place in the Clarksville courtroom of Judge Kenneth Goble, Jr. and in Memphis in Judge Bill Anderson Jr.’s courtroom.

The intensive veterans treatment program offers resources to veterans and active service members that may include counseling, regular court appearances, substance use screening, and group therapy. The courts are designed to support justice-involved veterans who may be struggling with issues related to their service or the return to civilian life, sometimes even decades after their service.

The courts assemble a team of interdisciplinary support that sees each participant through the various stages of the program. The team members mentor those in the program to ensure they are provided the appropriate resources to be successful.

Read more coverage of the graduations here:

Clarksville Leaf Chronicle

Memphis Commercial Appeal (subscription required)

For more information about how the courts work, see this article published last year by the Clarksville Leaf Chronicle.

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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

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Press Releases

75th Anniversary of TN Supreme Court Building Celebrated

Press release from the Tennessee State Courts System; October 30, 2012: 

To celebrate the 75th anniversary of the building that houses the Tennessee Supreme Court, original handwritten versions of the three state constitutions will be on display for the public for the first time.

The display is part of a week-long celebration of the building and includes the opening of the Tennessee Judiciary Museum in a portion of the courthouse’s library at 10:00 a.m. on Wednesday, December 5th. Also, as part of the celebration, there will be a Judicial Family Reunion of all employees who’ve worked in the building that afternoon. The museum will be open to the public with the original constitutions on display December 6 – 8th and Monday, December 10th.

“The museum provides a great opportunity for the people of Tennessee to actually see the original founding documents of our state which established our three branches of government and our fundamental constitutional rights,” Tennessee Supreme Court Chief Justice Gary Wade said. “The museum also will tell the story of the Tennessee courts from the perspective of the judges, the lawyers and the litigants. I believe that it will be a treasure for the people of Tennessee for generations to come.”

The Tennessee Judiciary Museum is a project of the Tennessee Supreme Court Historical Society in cooperation with the Tennessee State Library and Archives and the Tennessee State Museum. In addition to the original Constitutions, there will be a diorama of a judge’s chambers as it would have been when the building opened in 1937, a display of artifacts and documents from the appeal of the Scopes Monkey Trial, and a display of court records from the early part of Tennessee’s judicial history from the 1820s involving a land dispute with Andrew Jackson.

The Constitutions were written in 1796, 1834 and 1870 and provide a rare glimpse of the development of citizen rights and judicial history of Tennessee. After their one-week public display, they will be returned to a vault at the State Library and digital facsimiles will reside in the Supreme Court building.

“This is an unprecedented occasion for Tennesseans to see their state Constitutions on display. They have never been available for viewing like this,” said Assistant State Archivist Dr. Wayne Moore. “This exhibit provides the opportunity to scan the documents, so that they may be viewed by a wider audience even after the display is over.”

The Supreme Court building, located at Charlotte Avenue and 7th Street, just down the hill from the state Capitol, was designed by Marr and Holman and built by Rock City Construction. It took over 18 months to build and was completed in 1937 as part of the Works Project Administration.

Its 56,000 square feet houses offices for the Supreme Court as well as the Court of Appeals and the Criminal Court of Appeals for the Middle Section of Tennessee. One courtroom serves all three courts.

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Press Releases

Knoxville Attorney’s Reinstatement Reversed by State Supreme Court

Press release from the Tennessee Courts System; July 3, 2012:

Nashville, Tenn. – The Tennessee Supreme Court has reversed a lower court’s decision and reinstated a Tennessee Board of Professional Responsibility (TBPR) hearing panel’s ruling suspending a Knoxville attorney due to misconduct.

While working at the Knoxville law firm of Kennerly, Montgomery & Finley, William S. Lockett, Jr. received payments for legal services and failed to remit those payments to the firm as required by his employment agreement. Lockett pleaded guilty to theft and to willful failure to file income tax returns. After considering all aggravating and mitigating factors, a TBPR hearing panel found that Lockett should be suspended for four years and, if reinstated, should be supervised for one year.

Lockett appealed to the Chancery Court of Knox County. Following oral argument, the chancery court applied additional mitigating factors and reduced the suspension to two years.

In a unanimous opinion, the Tennessee Supreme Court reversed the chancery court’s decision, holding that the chancery court failed to base its discipline modification on any of the criteria set forth in Supreme Court Rule 9, section 1.3. The Court conducted its own review of the hearing panel’s decision and agreed that the four-year suspension was consistent with sanctions imposed on other attorneys for similar criminal conduct.

To read the William S. Lockett, Jr. v. Board of Professional Responsibility opinion authored by Justice Janice M. Holder, visit http://www.tncourts.gov/sites/default/files/lockettwsopn.pdf.

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Press Releases

TN Supreme Court Overturns Trial Court Decision in PTSD Claim

Press Release from the Supreme Court of Tennessee; June 7, 2012: 

Nashville, Tenn. – In a unanimous opinion, the Tennessee Supreme Court ruled that the statute of limitations on a workers’ compensation claim does not begin to run until an employee discovers or, in the exercise of reasonable diligence, should have discovered that he has a claim.

On June 23, 2008, Steven Ratliff was diagnosed with Post-Traumatic Stress Disorder (PTSD) caused by viewing bodies of two co-workers who died in separate workplace accidents earlier that year. Exactly one year after the diagnosis, Ratliff requested a benefit review conference. The employer, Gerdau Ameristeel, Inc., argued that the statute of limitations began to run from the date of the second accident and that the claim was barred. Ratliff contended that the statute of limitations did not begin to run until his diagnosis date. The trial court agreed with employer. However, the trial court determined that Ratliff could not have discovered his injury until his diagnosis and if the statute of limitations did not bar his claim, Ratliff was entitled to an award of 20 percent permanent partial disability.

Today, the Court reversed the trial court’s decision, holding that the statute of limitations began to run on the date of the accident but was tolled until Ratliff discovered his injury. The statute of limitations therefore does not bar Ratliff’s claim because the trial court found that Ratliff could not have discovered his injury prior to his diagnosis. The case is remanded for entry of a judgment awarding Ratliff permanent partial disability consistent with the trial court’s alternative findings.

To read the Gerdau Ameristeel, Inc. v. Steven Ratliff opinion authored by Justice Janice M. Holder, visit http://www.tncourts.gov/sites/default/files/gerdauopn.pdf.

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Press Releases

Senate Judiciary Approves Resolution Calling for Governor-appointed Supreme Court Justices

Press release from the Senate Republican Caucus; April 4, 2012:

(NASHVILLE, TN), April 4, 2012 — Members of the Senate Judiciary Committee gave approval to a major constitutional amendment resolution sponsored by State Senator Brian Kelsey (R-Germantown) to appoint state appellate judges in a manner similar to the federal model. U.S. Supreme Court justices, Courts of Appeals judges, and District Court judges are nominated by the President and confirmed by the United States Senate, as stated in the U.S. Constitution. Similarly, under Senate Joint Resolution 710, Tennessee’s Governor would appoint judges to the Supreme Court and state appellate courts, subject to confirmation by the General Assembly for eight year terms.

“Tennessee deserves and the Constitution demands a more open system for appointing judges,” said Sen. Kelsey. “This is a proposal that takes the best parts of the federal model and the Tennessee Plan that will give us quality judges who are responsive to the people.”

Tennessee’s Constitution requires that Supreme Court justices “shall be elected by the qualified voters of the state,” which concerns many lawmakers who believe the current system does not fully satisfy that mandate despite an Attorney General opinion to the contrary. Earlier this year, Lt. Governor Ron Ramsey, Governor Bill Haslam and House Speaker Beth Harwell also said legislative action is needed to ensure it is constitutionally correct.

Under the state’s current Tennessee Plan for selecting appellate judges, a 17-member Judicial Nominating Commission reviews applicants and sends the governor a panel of three nominees for consideration. The governor must then appoint one of the nominees or reject the panel and request a second panel. After being appointed through this process, the appellate judges must stand for approval by the voters after completion of their term, with the people deciding whether or not to “retain” or “replace” them.

Kelsey’s legislation would delete the Judicial Nominating Commission, giving the Governor full authority like the federal model to select the nominee he/she believes is best qualified to serve as judge. His resolution, however, would keep the current Tennessee Plan provision which gives voters an opportunity to retain or replace the judge through a statewide vote. Only state Supreme Court and appellate judges would be affected by the proposed changes. Trial court judges would continue to run in contested elections.

If approved by the General Assembly, the measure could be on the ballot as early as November 2014. Before proceeding to a vote by the people, the resolution must be approved by a simple majority of the legislature in 2012 after three readings and must receive a two-thirds majority of both chambers in the following legislative session.

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Press Releases

Senate Judiciary Approves Bill to Allow Attorney General Appointment by Governor

Press release from the Senate Republican Caucus; April 4, 2012:

(NASHVILLE, TN), April 4, 2012 — Legislation sponsored by Senate Judiciary Committee Chairman Mae Beavers (R-Mt. Juliet) that would allow Tennessee’s Governor to appoint the State Attorney General was approved by the Senate Judiciary Committee on Tuesday. Tennessee is the only state in the nation that allows the State Supreme Court to select the attorney general. The other states either call for popular election or the Attorney General is selected by either the popularly elected Governor or the state legislature.

“Tennessee is the only state in the nation in which the people have neither a direct nor indirect voice in the selection of their Attorney General,” said Senator Beavers. “When Tennessee’s Constitution was written calling for selection by the Supreme Court Justices, the court was popularly elected, meaning there was at least a minimal measure of accountability to the people. Under the Tennessee plan, the Supreme Court is no longer popularly elected, leaving Tennesseans with absolutely no accountability for this important office.”

“Not only does this system lack accountability to the people, such a role indicates an obvious conflict of interest between the Supreme Court and the Attorney General as he or she is responsible for cases at the appellate court level in Tennessee,” Beavers continued. “The Attorney General is required to present and argue cases before the very body, the state Supreme Court, which appointed that individual to office.”

Senate Joint Resolution 693 sponsored by Beavers would amend the state’s Constitution to allow the Governor to appoint the Attorney General for a four-year term subject to legislative confirmation. If a vacancy arises, the resolution calls for the state’s Solicitor General to serve until an appointment is made by the Governor. The legislation also requires the Attorney General be at least thirty years old, a licensed a attorney in Tennessee, a U.S. Citizen and a resident of the state for at least seven years preceding the appointment.

The resolution requires a simple majority by the 107th General Assembly currently in session and must receive two-thirds approval by the 108th, which will take office in 2013. If approved, the question would then go to voters in a statewide referendum in November 2014.

“The current system of selecting our state’s Attorney General defies the checks and balances that are needed for our justice system,” added Senator Beavers. “I am sure that this is a key reason that 96 percent of the rest of this nation have a better system for election or appointment.”

The bill now goes to the Senate Finance Committee before moving to the floor of the Senate for final consideration.