BOPR - [Board Notes - Winter 2005]

(The Rule that Regulates Attorney Disciplinary Procedures)

1.	Effective July 1, 2006.
2.	Changes in Appeal. Previously de novo and the ability to submit any new evidence for any reason.
	A.	Can now submit evidence only if relevant to irregularities in hearing panel.
	B.	New burden of proof. Reversal is possible only under the following reasons:
		1.	Hearing Panel decision violates Constitution or Statutes.
		2.	Hearing Panel decision rendered using unlawful procedure.
		3.	Hearing Panel decision in excess of hearing panel jurisdiction.
		4.	Hearing Panel decision is arbitrary or capricious or characterized by abuse of discretion or unwarranted exercise of discretion.A
		5.	Hearing Panel decision is unsupported by evidence which is both substantial and material in light of the entire record.
		6.	Appellate court cannot substitute its judgment for that of the hearing panel as to the weight of the evidence on question of facts.
		7.	The Hearing Panel or Trial Court may stay the Hearing Panel’s decision pending judicial review.
3.	Restitution — a hearing panel may now order restitution.
4.	The Board is required to adopt written guidelines to insure efficient and timely resolution of disciplinary matters and to quarterly report to the Court as to the substantial compliance with the guidelines. Disciplinary Counsel shall report monthly as to timeliness of investigations.
5.	Chief Disciplinary Counsel is appointed by the Supreme Court and serves at the pleasure of the Supreme Court.
6.	Complainant’s Appeal — Complainants who are not satisfied with the disposition may appeal in writing within 30 days to the Board. The Board may approve, modify, or disapprove the disposition. It may also direct that the matter be investigated further.
7.	The Burden of Proof in disciplinary hearings is by preponderance of the evidence.
8.	The Tennessee Rules of Evidence applies to Disciplinary Hearings.
9.	Protective Orders — Prior to filing a petition, the Board may enter a protective order. After the filing of a petition, only the hearing panel may enter a protective order.
10.	Probation.
	A.	Authorizes the hearing panel or court to suspend a law license.
	B.	The terms must be in writing and “shall only take place where there is “little likelihood that the respondent will harm the public during the period of rehabilitation and where the conditions of probation can be adequately supervised.”
	C.	A probation monitor must be appointed.
	D.	The person on probation must pay the costs as well as a “reasonable fee” to the monitor.
	E.	If the person on probation violates the terms, Disciplinary Counsel may file a petition to revoke probation. The petition to revoke is conducted “in the same manner” as a disciplinary hearing. The only issue is whether to revoke probation. The original judgment may not be reconsidered.
	F.	Probation may be terminated early by the hearing panel or court upon the filing of a motion and an affidavit showing compliance with the terms and an affidavit by the monitor that probation is no longer necessary. A hearing may be held upon the petition for early termination.
11.	Pre-Hearing Conferences are required within 60 days of the filing date of the petition.
	A.	The conference must involve the Hearing Panel Chair and one other member of the panel.
	B.	The conference may be by telephone or video conference.
	C.	Deadlines for discovery and a trial date must be set.
	D.	The Panel may discuss stipulations of facts.
12.	Reinstatements — Requires Disciplinary Counsel to instigate and file a responsive pleading to reinstatement petitions, as well as other pleadings.
13.	Investigation.
	A.	The respondent attorney must be given a complete copy of the original complaint.
	B.	Investigations need no longer to be approved by the Board Chair.
14.	Deferral of Disciplinary Proceedings — in addition to the fact that a disciplinary proceeding shall not be deferred because of similarity of complaint with ongoing criminal or civil litigation, a matter cannot be deferred when the complaint relates to respondent’s conduct in pending litigation.
15.	Disability.
	A.	When Disciplinary Counsel petitions for a transfer to disability inactive status, any petition filed by disciplinary Counsel shall be suspended pending the determination of the attorney’s incapacity.
	B.	The provision that the Court may appoint counsel for an incapacitated attorney is removed.
	C.	When in a disciplinary proceeding, the Respondent contends that he/she is suffering from a disability that makes it impossible for him/her to respond or to defend against the complaint, the Court shall immediately transfer the attorney to disability inactive status and take whatever other action is needed to determine the Respondent’s capacity.
16.	Tennessee Lawyer’s Assistance Program.
	A.	The Board, Disciplinary Counsel and/or hearing committee may refer a lawyer to TLAP when:
		1.	An attorney fails to respond to a disciplinary complaint.
		2.	An attorney has received three or more complaints within 12 months.
		3.	A complaint against an attorney alleges multiple failures to appear or to respond or to take any other action in compliance with established rules or time guidelines.
		4.	An attorney has plead impairment or disability as a defense to a complaint.
		5.	An attorney has exhibited behavior that warrants consultation and if recommendation, further evaluation and treatment.
		6.	An attorney is seeking readmission or reinstatement where there is a question of either prior or present impairment or disability.
		7.	An attorney is requesting TLAP involvement.
	B.	The Executive Director of TLAP shall review a referral. If the Director feels it warranted, a Monitoring/Advocacy Agreement will be sought. If TLAP assistance is not warranted, the Executive Director shall report that to the Board with no further elaboration.
	C.	The Board shall provide written notification to TLAP that its assistance has been sought or recommended. The notice shall be given prior to a hearing date and a TLAP representative may attend the hearing.
	D.	The Board will provide written notification to TLAP concerning any proposed order to the Supreme Court requesting TLAP participation. TLAP may decline involvement. In such case, the Board shall not submit a proposed order which includes TLAP participation.
	E.	TLAP shall notify the Board as to any referred attorney who fails to establish contact with TLAP or enter into a recommended agreement.
	F.	TLAP shall provide to the Board a copy of written agreements concerning referred attorneys. The agreement shall provide for reports to the Board of non-compliance.
	G.	Upon request TLAP shall provide the Board with a status report concerning attorneys and the Board may seek recommendations from TLAP.
17.	The diversion provisions do not preclude a hearing panel from referring attorneys as a part of the sanction to a practice and professionalism enhancement program.