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The Legacies of Justices Drowota, Anderson and Birch In The Tennessee Supreme Court’s Impact On Professional Ethics1

Many significant benchmarks in the development of professional ethics in Tennessee have resulted from the stewardship and legacies of Justices Drowota, Anderson and Birch.

The first, and likely the most significant, development occurred in 1980, the year that Justice Drowota was elected to the Supreme Court. This is the year the Court empowered the Board of Professional Responsibility (Board) to issue ethics opinions.2 The concept of providing guidance to lawyers about ethical dilemmas came about due to the compounding increase of ethical complaints, which had been increasing at a rate of approximately 15 percent each year since the Board’s inception in 1976. The objective was to preemptively assist lawyers in identifying and resolving ethical issues and thereby avoid complaints being filed.

Other benchmarks in the 1980s, during Justice Drowota’s tenure, which had significant impacts on ethics and professionalism development were:

  • Providing for the immediate summary suspension of lawyers who had misappropriated trust funds, failed to respond to a disciplinary complaint, or posed a threat of irreparable public harm.3
  • Providing for lawyers to acquire 12 hours of annual Continuing Legal Education (CLE) credits.4
  • Creation of the Lawyers Fund for Client Protection.5

The decade of the 1990s brought Justices Anderson and Birch to service on the Supreme Court. During that period, in 1993, a significant benchmark in the development in professional ethics occurred with the requirement of three (3) hours of annual Ethics and Professionalism credits in addition to the twelve (12) hours of general CLE credits.6 This development spawned a new and heightened focus on ethics and professionalism.

In 1994, a significant development occurred when a program was implemented to detect and prevent trust account violations.7 This program, known as the overdraft notification program, was a proactive response to the problem of theft by a small, but significant, segment of the bar. The program requires that trust accounts be maintained only in financial institutions which agree to report overdrafts in trust accounts. More than 300 financial institutions are participating in this program.

A major development occurred in 1999 with implementation of the Tennessee Lawyers Assistance Program designed to protect the public from harm caused by impaired lawyers or judges, to assist impaired members of the legal profession to begin and continue recovery, and to educate the bench and bar to the causes and remedies for impairments.8 The legal profession currently contributes approximately $350,000 annually to support this program which arguably ranks in the top three (3) lawyer assistance programs nationwide.

Justice Birch served as the Supreme Court’s liaison to the Board for the past twelve (12) years, from 1993 to 2005, during which many of these and other significant benchmarks occurred, and we are indeed very grateful for his services during these fruitful years.

Some of the other important developments during the tenure of Justice Birch as liaison to the Board were:

  • Membership on the Board was expanded to include three (3) lay members, thereby expanding the Board’s perspective and outlook.9
  • The confidentiality rule was revisited and broadened to permit more openness and visibility about the actions of the Board.10
  • A diversion program was created to permit professionalism enhancement for lawyers who engaged in minor infractions.11
  • A consumer assistance program was implemented to mediate minor client- attorney misunderstandings, permitting their relationship to be restored and enhanced; and also to provide referrals to consumers to appropriate resources and programs (i.e., lawyer referral and fee dispute alternatives).
  • Implementation of a robust website that provides user-friendly resources to consumers and lawyers, including on-line ethics inquiries by lawyers.12

These and other progressive developments during Justice Birch’s service to the Board have resulted in a turning point in professional ethics in Tennessee, as evidenced in the following comparison and analysis of current data and statistics.

In 1980, during the initial year of implementation of the Board’s ethics opinion service, the Board issued 3 Formal Ethics Opinions and Disciplinary Counsel issued 49 Advisory Ethics Opinions. This proactive program to prevent ethical misconduct has resulted in 163 Formal Ethics Opinions and 837 Advisory Ethics Opinions. Disciplinary Counsel have responded to more than 54,500 hotline telephone inquiries from attorneys seeking ethical guidance.

The Board received 288 overdraft notices in 1995, the initial year of implementation of that program. Only 61 overdraft notices were received last year, a 78 percent decline from those reported in 1995, indicating that attorneys have become proficient in the appropriate maintenance of trust accounts.

In 1980, there were approximately 7,800 active attorneys at which time there were approximately 450 complaint files opened, a ratio of one (1) complaint for each seventeen (17) lawyers. Complaints per lawyer peaked in 1998 when approximately 1,700 complaint files were opened with an active lawyer population of 14,800, a ratio of one (1) complaint file for each 8.7 lawyers, nearly double the ratio of one (1) to seventeen (17) in 1980. This steady and significant increase in complaints was a major source of motivation for the proactive measures which have been identified.

In 1999, the cumulative effects of these proactive measures began to reflect a decrease in complaints, a trend which has continued and is continuing with few exceptions. Last year there were approximately 982 complaint files opened compared to 1,655 opened in 1998, representing a 40 percent decline in complaint files opened during the past seven (7) years. The cumulative effects of the disciplinary efforts of the Board, resulting in 155 disbarments, 281 suspensions, 436 public censures and 2,695 private reprimands or admonitions, from the 35,625 complaints filed since its inception have also been a major factor in the declining trend of complaints.

During 1999, the Supreme Court, in its supervisory role relating to the ethical conduct of lawyers, identified several issues or objectives for a performance audit of the activities of the Board. The May, 2000 report of the Comptroller of the Treasury, Division of State Audit, concluded that "... the operations of the Board of Professional Responsibility are efficient, effective and are achieving the results desired by the Tennessee Supreme Court."

Also during 1999, a nationwide survey of 56 disciplinary agencies conducted by the American Bar Association (ABA) revealed that Tennessee ranked 16th in public sanctions issued during that year, also ranking 22nd in complaints filed, 14th in lawyers formally charged, 12th in private sanctions, while ranking 27th in funding received.

In August 2003, the ABA Standing Committee on Professional Discipline issued its report on the Tennessee Lawyer Regulation System, in response to a request by the Supreme Court, identifying the Board’s strengths, structure, rules and resources. An Advisory Committee of 9 members was designated by the Supreme Court to review the recommendations of the ABA report. The Court’s Advisory Committee report, filed in June 2004, concluded that the "... current lawyer disciplinary system generally functions effectively and efficiently ... ."

Last Fall, a staff writer of The Tennessean began an inquiry of the operations of the Board as a major news item. After many weeks of inquiry, The Tennessean published its report, consisting of a front page headline and above-the-fold article in its November 25, 2005 publication. The article explained how complaints were filed, identified types of complaints and cited discipline data for the past seven (7) years, concluding:

"Since its inception in 1976, the Board of Professional Responsibility has fielded thousands of reports from disgruntled Tennessee clients complaining of everything from being unable to get their lawyers on the phone to over-billing, stealing money and poor legal performance."13

The following week, on November 30, 2005, the Editorial Board of The Tennessean published an editorial on the Tennessee lawyer discipline program, appearing on its Editorial page, with the caption, “Supreme Court has Effective Program to Investigate, Address Problems.” The editorial goes on to state, in part:

"... Tennesseans should appreciate the seriousness that the Tennessee Supreme Court gives to professionalism and ethics among lawyers. The state is better for it. The legal profession in Tennessee is much better for it.

The state Supreme Court’s Board of Professional Responsibility, which is composed of nine attorneys and three non-attorneys, supervises the ethical conduct of lawyers in Tennessee. Although the Board may be best known for receiving and investigating complaints against lawyers, it also works to foster greater understanding among lawyers about ethical obligations through its ethics hotline and its seminars. Additionally, it operates a consumer assistance program that offers suggestions on hiring an attorney and on fostering better communication between attorneys and clients.

... consumers need to know that their grievances will be heard and investigated. And lawyers need to know that frivolous complaints will not count against them." 14

In conclusion, Mr. Justice Drowota, Mr. Justice Anderson and Mr. Justice Birch, we are grateful for your significant efforts in bringing the state of legal ethics and professionalism in Tennessee to the forefront and within what is believed to be among the top five (5) lawyer regulation systems nationwide. We applaud your faithful stewardship.

1. Presented on April 10,2006 at the University of Tennessee, College of Law, Tennessee Journal of Law and Policy, Second Annual Symposium.
2. Tenn. Sup. Ct. R. 9 (26).
3. Tenn. Sup. Ct. R. 9 (3.4).
4. Tenn. Sup. Ct. R. 21.
5. Tenn. Sup. Ct. R. 25.
6. Tenn. Sup. Ct. R. 21 (3.01).
7. Tenn. Sup. Ct. R. 9 (29).
8. Tenn. Sup. Ct. R. 33.
9. Tenn. Sup. Ct. R. 9 (5.1).
10. Tenn. Sup. Ct. R. 9 (25).
11. Tenn. Sup. Ct. R. 9 (30).
13. The Tennessean, November 25, 2005, p. 1A
14. The Tennessean, November 30, 2005, p. 10A

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