Many significant benchmarks in the development of professional ethics in Tennessee have
resulted from the stewardship and legacies of Justices Drowota, Anderson and
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
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
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)
"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
||Presented on April 10,2006 at the University of Tennessee, College of Law,
Tennessee Journal of Law and Policy, Second Annual Symposium.
||Tenn. Sup. Ct. R. 9 (26).
||Tenn. Sup. Ct. R. 9 (3.4).
||Tenn. Sup. Ct. R. 21.
||Tenn. Sup. Ct. R. 25.
||Tenn. Sup. Ct. R. 21 (3.01).
||Tenn. Sup. Ct. R. 9 (29).
||Tenn. Sup. Ct. R. 33.
||Tenn. Sup. Ct. R. 9 (5.1).
||Tenn. Sup. Ct. R. 9 (25).
||Tenn. Sup. Ct. R. 9 (30).
||The Tennessean, November 25, 2005, p. 1A
||The Tennessean, November 30, 2005, p. 10A