Tennessee Rules of Professional Conduct Explained
In 2003, the Court of the Judiciary adopted the current iteration of the Rules of Professional Conduct, which was modeled on the Model Rules of Professional Conduct developed by the American Bar Association in 1969. The Tennessee Rules of Professional Conduct are applicable to all Tennessee lawyers in their practice of law. They are published in a separate volume with the Rules of the Supreme Court and constitute the ethical obligations of lawyers in Tennessee. By now, these rules are ingrained into legal practice in Tennessee. Most of the rule numbers are the same as in the ABA’s Model Rules that they follow. However , there have been modifications made in many of the rules.
The "preamble" to the Tennessee Rules of Professional Conduct contains introductory remarks providing fundamental guidance to the lawyer’s general responsibility. It is an important part of the rules and should be reviewed. The major portion of the rules is divided into six parts corresponding in number with their subject matter, each of which has a title: Client-Lawyer Relationship; Counselor, Advocate, Transactions with Persons Other than Clients, Law Firms and Associations, and Public Service. From that point, the rules and their comments have individual numbers, although the structure still closely follows the Model Rules. There is a portion of the rules reserved for future amendments, and a listing of the former code of Professional Responsibility, as well as the rules reserved for future amendments. There is a portion of the rules that applies to judicial clerks, which will be discussed in a subsequent section of this article.
History and Amendment Timeline
The historical development of the Tennessee Rules of Professional Conduct is a story rooted in evolution and amendments. The genesis of legal ethics rules traces back to the ABA Model Rules, drafted by the American Bar Association’s Standing Committee on Professional Ethics and adopted in 1969, which were, in turn, based on opinions likely produced before the Civil War. In 1986, the Tennessee Supreme Court, on its own motion, formed a task force to study the ABA Model Rules and incorporate Leader Panel recommendations on the previously existing Tennessee Code of Professional Responsibility ("Tennessee Code") into a new set of rules based on the Model Rules. On March 1, 1987, after public hearings and debate among lawyers, Dennis W. McBee, then President of the Tennessee Bar Association appointed a second task force, the Chair of which was Hon. William H. Inman, to review the 1987 draft and, after further input from the public and the bar, submit a final report and recommendation for approval by the Tennessee Supreme Court.
Since the 1987 adoption of the Rules, many changes have been made as well, with some imposing greater expectations of attorneys’ professional conduct and punishing perceived transgressions more severely. For example, on August 16, 1994, the Tennessee Supreme Court amended four rules to require lawyers to promptly pay any undisputed portion of a fee for an ongoing matter that is just and reasonable, based on services rendered, so as to avoid delay over payment. Tenn. Sup. Ct. R. 1.4, 1.5, 1.8 and 1.15. These amendments were supported by much anecdotal and survey data indicating that the public and the profession viewed promptness of payment for legal services under existing rules as being inconsistent with this goal.
Amendments passed on October 20, 1995, added Tennessee Rule 1.9(c) to prevent conflicts of interest when a lawyer had previously represented a client and, later, was representing a different client in the same or a related matter. In particular, the 1995 amendment prohibited such a lawyer from using information from the prior representation to the disadvantage of the prior client and from using such information otherwise, for the benefit of the second client, unless the prior client consented after full disclosure.
The current framework of the Rules of Professional Conduct reflects each of these prior amendments, along with others that can be marked on a timeline going forward from the adoption of the Rules in 1987.
Attorneys’ Obligations Under the Rules
The Tennessee Rules of Professional Conduct are based on the Model Rules of Professional Conduct promulgated by the American Bar Association, which serve as a guiding principle for the national standard of professional conduct for attorneys. The American Bar Association’s Model Rules are structured as rules with an accompanying set of comments that serve to provide guidance to the rules. The Tennessee Rules of Professional Conduct basically track the Model Rules with slight variances.
The Model Rules of Conduct are broken into 8 distinct sections: I. Client-Lawyer Relationship; II. Counselor; III. Advocate; IV. Transaction with Persons Other Than Clients; V. Law Firms and Associations; VI. Public Service; VII. Information About Legal Services; and VIII. Maintaining the Integrity of the Profession. Each section addresses both rule and commentary that an attorney must follow to maintain his or her ethical responsibilities. Rule 1.6, for example, addresses client confidentiality and the duty to maintain it, while Rule 8.4 addresses professional misconduct.
Pursuant to ABA Model Rule 1.2, an attorney is required to provide competent representation to each client, thereby requiring the legal knowledge, skill, thoroughness and preparation reasonably necessary for any representation. The attorney must also keep the client reasonably informed about the status of the matter and comply with reasonable requests for information. At the outset of the attorney-client relationship, the attorney must communicate the scope of the representation and the basis or rate of the fee to be charged to the client. It is also the responsibility of the attorney to promptly consult with the client if there is a limitation on the scope of the representation.
Comments 5 and 7 incorporate specific client expectations and obligations for the attorney. Comment 5 requires the attorney-client relationship to have reasonable expectations regarding the scope of the representation, with preparatory steps of identifying the issues involved in the potential representation. Comment 7 requires that the scope of the representation not be limited to legal services alone. Such additional services as coordinating services with third parties, engaging accountants, lobbyists, and public relations consultants can all be provided with the knowledge and agreement of the client.
Rule 1.6 establishes one of the most important duties of an attorney, the ethical duty of confidentiality. It prohibits a lawyer from revealing information relating to the representation of a client unless the client gives informed consent or the disclosure is impliedly authorized to advance the client’s interests. If the client asks the attorney to disclose the information, the attorney must secure the informed consent of the client or make the disclosure on their behalf.
The duty of confidentiality is not absolute though, and under certain circumstances, disclosure of the information is permitted. The attorney may reveal, subject to reasonable efforts to prevent access or disclosure in a manner that would compromise the confidentiality of the information:
• the client consents to the disclosure;
• the disclosure is impliedly authorized to carry out the representation;
• the disclosure is permitted by the rules of professional conduct or other law;
• the disclosure will mitigate or prevent substantial harm to the financial interests or property of the client or another person and if the disclosure consists of information in the lawyer’s knowledge and reasonable belief is necessary for the lawyer to make the disclosure;
• the disclosure establishes a defense to a criminal charge or civil claim against a lawyer based upon conduct in which the client was involved;
• the disclosure is necessary to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyers based on conduct in which the client was involved; or
• other circumstances as provided for in Rule 1.6.
Disciplinary Measures and Enforcement Protocols
Enforcement of the Tennessee Rules of Professional Conduct is the responsibility of the Tennessee Board of Professional Responsibility (BPR), which was created by the Supreme Court of Tennessee to assist in the Court’s responsibility to regulate the practice of law in Tennessee. In its capacity as guardian of the public and the courts, the BPR administers the licensing and discipline system for Tennessee attorneys.
The BPR, composed of a diverse group of lawyers and non-lawyers, is authorized to determine the eligibility of applicants for bar admission and to investigate complaints of ethical violations against lawyers practicing in Tennessee. When the BPR receives a complaint, the staff or competent authority investigates the complaint and evaluates the circumstances surrounding the complaint. The staff then summarizes the complaint, accompanied by the file of the respondent lawyer, and submits the same to an Inquiry Commission. The charging of formal disciplinary action can only be authorized by the Supreme Court of Tennessee upon the affirmative vote of at least eight members of an eleven-member panel of the Board of Professional Responsibility Disciplinary Counsel. Various disciplinary sanctions are authorized, ranging from reprimand to disbarment.
Implications for Practice in Tennessee
The Tennessee Rules of Professional Conduct impact everyday practice in many ways. The most obvious is the enforcement through the ethics complaint process that acts as a backstop to ensuring that a lawyer’s conduct meets professional standards as mandated by the profession itself. The Rules certainly do not regulate all of the conduct that a lawyer might undertake. For example, if a lawyer is harshly rude or offensive to a client, the Rules may not provide an adequate remedy to the affected client. However, when a lawyer’s conduct diminishes the integrity of the legal profession in a way that violates the Rules, they are subject to disciplinary action.
The ethical rules apply to any lawyer/state government employee who provides "legal advice" in the course of serving on boards , commissions, or otherwise representing the "public" interest. A very common example of this scenario would be a lawyer representing a public hospital board or the city school board. Most governmental bodies have very limited funding and because of that, for many years have used volunteer board members to set policy and provide oversight. In many cases, those volunteers are not lawyers, and the board members can rely on a volunteer lawyer to provide advice consistent with the Tennessee Rules of Professional Conduct. It is important if you serve in this capacity as a volunteer, to be aware of the Rules and comply. Otherwise, you may expose the governmental entity you are working with to liability.
Recent Revisions and Pending Changes
Over the last few years there have been several amendments to the Tennessee Rules of Professional Conduct. As recently as April 2017, there were two major amendments to Rule 1.7, the conflict of interest rule. The first change, to 1.7(b), makes it more difficult for attorneys with conflicts of interest to face disqualification motions, because it allows that firm to continue to represent both clients, assuming their interests are not directly adverse to one another (i.e., adversarial litigation), as long as it gets consent from both clients. This amendment has updated the rule to reflect recent case law in Tennessee and other states. Interestingly, in 1.7(c), the recently-amended rule places some restrictions on a lawyer’s ability to represent a client who has an adverse interest to the firm’s other clients. The previous version of the rule allowed this under limited circumstances, provided the conflict was fully disclosed and consented to by the affected clients. Under the new amended version, the consent must encompass all affected clients.
Another significant change to Rule 1.7 concerns former clients. Previously, Rule 1.9 did not discuss the extent to which a lawyer was forbidden from acting adversely to a former client’s interests. While not expressly mentioned in the rule, Tennessee case law in this area required the former client to be a regular consumer of the other client’s services before being considered "adverse" for conflict purposes. That language has now been more fully integrated into Rule 1.9. Also in April 2017, Rule 1.4 was amended to require that a lawyer who is holding funds in trust for more than half a year where the amount is more than $2,500 must report to the Board of Professional Responsibility on an annual basis as to the amount of funds in trust and the disposition of such funds. This change did not previously appear in the comments to the rule and came as a surprise to many practicing attorneys. As the legal landscape continues to evolve, attorneys can expect changes to continue in this area. New areas of litigation abound, including non-compete agreements and marijuana, and with them come new standards of conduct. While these occurrences may not directly implicate the Rules of Professional Conduct, it is safe to say that as more areas of law develop, so too will relevant rules governing how those areas are litigated and practiced. How changing societal norms and behaviors will impact future trends in the law remains unknown, but certainly something that an attorney must consider as his or her practice grows and develops.
Additional Resources
As a resource for our readers, the Lawyer Blog is linking the full text of the Tennessee Rules of Professional Conduct, which exist as Rule 8 of the Tennessee Supreme Court Rules.
Readers may access the rules at this website for the Tennessee Supreme Court. For those readers who are interested in obtaining the newest spine-bound publication of the rules, please check local bookstores that carry Tennessee legal materials. The rules even may be found in legal reference sections of public libraries.
Additionally , lawyers seeking ongoing and new education on these rules may find seminars offered on the subject of ethics. The Tennessee Bar Association, the Nashville Bar Association, local and specialty bar associations, as well as many other legal organizations throughout the state regularly offer such seminars. The biggest source of continuing legal education on ethics may even be found in the listings of programs by state and local chapters of the National Business Institute for legal professional development in Tennessee.