Board_Notes_Q1_2013.pdf (2013)

Original PDF Document

---

Download Official Record (Board_Notes_Q1_2013.pdf)

Go to Top

Alternative Accessible HTML

BOARD NOTES published by the
Tennessee Board of Professional Responsibility

First Quarter 2013

Inside:
Consumer Assistance
2
Program 10th Anniversary
Greeting from Lela Hollabaugh, Board Chair
3 TLAP’s Monitoring Program

It is my pleasure as Chair of the Board of Professional Responsibility
4 Professional Privilege Tax
to announce the resumption of publication of Board Notes, which
5 New Appointments will appear biannually. Our distribution will be by email and Board
Notes will be available on our website at www.tbpr.org. We
6 Disciplinary Actions
anticipate this publication will be both educational and informative
7 Formal Ethics Opinions to members of the bar and the public.

Proposed Amendments to
8
Tennessee Supreme Court
Rule 9

1
Consumer Assistance Program
Celebrates 10th Anniversary

In 2012, the Consumer clients, CAP also acts as an early handled by CAP involve criminal,
Assistance Program (CAP) of the warning system for attorneys, domestic, general civil and
Tennessee Board of Professional allowing them to correct problems personal injury law. In
Responsibility celebrated its 10th with their practice, their approximately 54,000 instances,
anniversary. CAP was created in communications with their clients, CAP provided general information
March of 2002 to help legal or their own conduct before any of to the consumer that the consumer
consumers who may have it breaches ethical standards. By had not received from their
questions about legal encouraging explanation and attorney. Approximately 35,000
representation or problems with communication between clients times, CAP mediated conflicts
their attorneys. CAP informally and attorneys at the early stages of between clients and attorneys
mediates these difficult situations client dissatisfaction, CAP hopes including fee disputes, the return
in a way that encourages to resolve client/attorney of the client’s file and
explanations and communication disagreements before they result in documentation, misunderstandings
between parties. CAP will not a disciplinary complaint. and difficulties between clients
take on cases in which an attorney Since its inception in and attorneys, and client’s requests
has been accused of serious ethical 2002, the Consumer Assistance for action on their cases. For more
violations but will instead refer Program has been directed by information about the Consumer
such cases to Disciplinary Counsel Beverly Phillips Sharpe. Prior to Assistance Program, please
for investigation. her assumption of this position in contact:
While CAP cannot and 2001, she was in private practice
does not provide legal advice or for 18 years in Knoxville,
Beverly P Sharpe, Esq.
lawyer recommendations, it does Tennessee. She maintained a
supply consumers with basic general civil practice with a Director, Consumer Assistance
information concerning attorneys concentration in personal injury, Program
and the legal system, acting, to domestic relations and bankruptcy. Board of Professional Responsibility
some degree, as a customer service Ms. Sharpe holds a Bachelors of the Supreme Court of Tennessee
office for the legal profession in Degree in music from the 10 Cadillac Drive, Suite 220
Tennessee. The program also University of North Texas and Brentwood TN 37027
recommends outside agencies and received her Doctorate of CAP@tbpr.org
resources for clients such as fee Jurisprudence from the University www.tbpr.org
dispute committees, lawyer of Tennessee. As Director of
referral services, and pro bono CAP, Ms. Sharpe has developed
entities. Many of the consumers and directed the program from its
of legal services who contact CAP beginnings in March, 2002,
are often confused about the legal casting a strong vision of
system or communications they consumer protection and
have had with their attorney. customer service for CAP.
CAP provides a place for these In its first ten years, CAP
consumers to ask simple has handled a total of 42,061 cases
questions. and has been involved in 99,452
As it strives to be an informal mediations or advising
efficient and effective program for actions. The majority of cases

2
requiring reporting to the appropriate disciplinary body, TLAP
TLAP’s Monitoring Program will offer monitoring services at the request of the employer or
law school. The agreement incorporates all the usual
By Laura McClendon, MA, CEAP
monitoring and testing provisions, however, the reporting
TLAP Executive designee also receives a copy of the monitoring agreement,
may request status reports, and will be notified if the
The Tennessee Lawyers Assistance Program is a free, participant becomes substantially noncompliant. If TLAP or
confidential assistance program providing consultations, the contract participant terminates the agreement, the reporting
referrals, interventions, and crisis counseling for lawyers, designee is notified. In cases of non-compliance or early
judges, bar applicants and law students. The Tennessee termination of the agreement, the employer or dean will
Lawyers Assistance Program ("TLAP") was established by decide what sanctions, if any, are appropriate, usually after
order of the Tennessee Supreme Court in 1999. The mission consultation with TLAP staff.
and general structure of TLAP are set forth in Rule 33 of the The third type of monitoring agreement requires
Tennessee Supreme Court Rules. mandatory reporting to disciplinary or licensing authority.
TLAP services address a range of health and personal The disciplinary or licensing authority, such as the Board of
issues, such as stress, burnout, anxiety, depression and other Law Examiners, Board of Professional Responsibility, or
mood disorders, anger management, trauma, grief, struggles Board of Judicial Conduct, may request TLAP to conduct an
with life balance, substance abuse, and behavioral addictions evaluation of a law student, attorney or judge. The request is
including eating disorders, gambling, and sex addiction. provided in writing from the disciplinary authority to both
TLAP’s work contributes to the protection of the public and TLAP and the referred attorney, and may also be by court
the improvement of the integrity and reputation of the legal order. If monitoring is recommended by TLAP, the
profession. Statistics support that assistance to an affected disciplinary or licensing authority is listed as the reporting
lawyer often prevents future ethical violations, thereby designee. The reporting designee must be notified if the
reducing the number of disciplinary actions. referred law student, attorney or judge becomes substantially
TLAP also provides evaluation and monitoring noncompliant with the terms of the agreement. If the
services for attorneys whose misconduct may be related to a reporting designee is the Board of Professional Responsibility,
substance abuse or psychological impairment. Monitoring TLAP is required to provide an affidavit of the facts of the
agreements are behavioral contracts that provide formal substantial noncompliance, and disciplinary counsel may
guidelines designed to ensure that the contract participant petition the Supreme Court to issue an order imposing a
maintains good mental health and abstinence from mind and temporary 4.3 suspension of the contract participant. Upon
mood altering substances. Monitoring agreements may conclusion of a proceeding of any licensing or disciplinary
require attendance in a 12-Step or other appropriate support authority, the monitoring agreement shall end, unless
group, therapy, psychiatric supervision, medication continued monitoring is required for a specified period of time
management, monthly reporting, drug testing, and peer following the conclusion of the proceeding.
assistance. Agreements may or may not have a reporting Monitoring agreements, although an important aspect
designee to whom reports of compliance or noncompliance are of the TLAP program, are only a small portion of TLAP
provided by TLAP. services. Roughly 22% of TLAP participants are currently
There are three types of TLAP monitoring under a monitoring agreement. Most TLAP clients receive
agreements. The first is a voluntary monitoring agreement confidential counseling and assistance without ever needing to
that is designed to assist individuals who desire structure and enter into a formal agreement.
accountability in their recovery process. There is no reporting A vast majority of calls to TLAP are in regards to a
designee listed in the agreement. The contract participant may colleague or family member who may have a problem. The
request letters of compliance from TLAP for the participant to goal of TLAP is to assist attorneys well before they enter into
provide to outside sources as he or she deems appropriate. the disciplinary process, or end up on the front page of the
These compliance reports may be helpful with divorce or paper. In order to reach this goal, it is important that
custody cases, employment issues, or any other situation in colleagues be willing to contact TLAP as soon as they see
which the participant desires to provide documented evidence warning signs of potential impairment issues. As a
of rehabilitation. compassionate member of a self-governing profession,
The second type of agreement, while also voluntary, everyone needs to stand ready to throw a life-line well before
requires TLAP to report to a non-disciplinary authority. In the situation becomes a headline.
certain situations, an attorney or law student’s impairment
may come to the attention of an employer or law school dean. If you or someone you know may require TLAP assistance,
If the conduct does not rise to the level of an ethical violation please call 1-877-424-TLAP.

3
Professional Privilege Tax – Change in 2013
The Tennessee Department of Revenue has released the following notice regarding an electronic filing
mandate for all active licensees subject to the professional privilege tax (see below). The notice also
states that annual Professional Privilege Tax statements will not be mailed to active licensees in 2013.
The due date for the annual $400.00 Professional Privilege Tax is still June 1st.

STATE OF TENNESSEE
DEPARTMENT OF REVENUE
ANDREW JACKSON STATE OFFICE BUILDING
NASHVILLE, TENNESSEE 37242

New Electronic Filing Requirements for Professional Privilege Tax

All professional privilege tax returns filed on or after January 1, 2013, must be filed electronically.
Professional privilege tax returns can be filed electronically either by individuals, or by companies who
file and pay for multiple individuals.

The department will not be mailing taxpayers a Professional Privilege Tax Return for the $400 tax due
June 1, 2013.

For a step-by-step guide to electronically file an individual professional privilege tax return, please visit our website at
https://apps.tn.gov/privtx/.

If you are a company filing and paying for multiple individuals, please visit our website at
https://apps.tn.gov/privbatch/.

Public Chapter 657 (2012) authorizes the commissioner to require that any return, report, claim,
statement, application, or other document filed with the department, including any payment or
remittance that accompanies such document, be submitted electronically in a manner approved by the
commissioner beginning no sooner than ninety days after the commissioner has certified that a system
is in place for the electronic submission of such document or payment.

These new electronic filing requirements will permit us to process your return and payment more timely
and efficiently at a cost savings to the State. Should you have additional questions, feel free to contact
our Electronic Commerce Unit at (866) 368-6374 for in-state calls or (615) 253-0704 for local or out-of-
state calls.

Taxpayer Services Division

4
Supreme Court Names Sandy Garrett as Chief Disciplinary Counsel

On December 5, 2012, the Administrative Office of the Courts announced that Sandy Garrett, a
20-year veteran of the Tennessee Supreme Court’s Board of Professional Responsibility (BPR) was
named chief disciplinary counsel of the organization.

“Sandy’s record of service to the legal profession and the public through her work with the BPR
makes her uniquely qualified to step into this most important role,” said Chief Justice Gary R. Wade.

In her role as senior litigation counsel, Garrett was responsible for some of the more challenging
litigation cases in the office and provided training to BPR attorneys.

“I want to thank the Supreme Court for this exciting opportunity to serve the Board of
Professional Responsibility and the Court as the new chief disciplinary counsel,” Garrett said. “This is a
chance to continue to further my goals for the organization and continue to do what I love every day.”

One of Garrett’s goals is to ensure that the organization continues to address the concerns of all
parties involved in the disciplinary process for attorneys.

Garrett has served in various roles with the BPR since 1992. A graduate of the University of
Tennessee and Vanderbilt University School of Law, she is a member of the Tennessee Bar Association
and the National Organization of Bar Counsel.

Garrett was selected from a field of 21 applicants. Nancy Jones had served as the chief
disciplinary counsel before stepping down to serve as general counsel at the Tennessee Department of
Commerce and Insurance in September.

5
James A. Vick Appointed Deputy Chief Disciplinary Counsel – Investigation
Krisann Hodges Appointed Deputy Chief Disciplinary Counsel – Litigation

The Board of Professional Responsibility of the Supreme Court of Tennessee is pleased
to announce that Disciplinary Counsel James A. Vick has been appointed as Deputy Chief
Disciplinary Counsel of Investigation, and Disciplinary Counsel Krisann Hodges has been
appointed as Deputy Chief Disciplinary Counsel of Litigation.

Mr. Vick joined the Board as Disciplinary Counsel in 1996. Previously, Mr. Vick
prosecuted felony criminal cases in Louisville, Kentucky and practiced in the area of products
liability with the Nashville firm of Maddin, Miller & McCune. Mr. Vick will also continue to
serve as Ethics Counsel for the Board, responding to numerous attorney inquiries each week as
well as drafting Formal Ethics Opinions and traveling the state presenting Continuing Legal
Education programs to Tennessee attorneys.

Ms. Hodges joined the Board as Disciplinary Counsel in 2007 as a member of the
litigation section. Prior to that, Ms. Hodges served as Regional General Counsel for the
Department of Children’s Services. Her legal experience includes emphasis on general civil
litigation and administrative law. Ms. Hodges will continue to litigate disciplinary cases and
appeals for the Board.

James A. Vick Krisann Hodges
6
Disciplinary Actions
(September 2012 – December 2012)

Disbarments and Suspensions Disbarments and Suspensions

Thomas E. Cowan, Jr. (Carter County) Terry D. Dycus (Fayette County)

On November 19, 2012, the Supreme Mr. Dycus’ law license was
Court disbarred Mr. Cowan, thereby suspended by the Court on November 27,
affirming the decision of the Chancery Court 2012, for a period of one year with forty-five
of Carter County finding that Mr. Cowan (45) days active suspension and the
should be disbarred from the practice of law remainder served on probation. Mr. Dycus
for his misconduct. Mr. Cowan was was also ordered to perform ten (10) hours of
temporarily suspended on March 1, 2010, pro bono services and complete additional
after his plea of guilty to a serious crime, the continuing education and contact Tennessee
willful attempt to defeat or evade payment of Lawyers Assistance Program. While
taxes. working for the District Attorney’s office,
Mr. Dycus engaged in inappropriate
Bobby Dean Davis (Davidson County) conversations of a sexual nature with two
criminal defendants being prosecuted by his
Bobby Dean Davis was disbarred office. While Mr. Dycus was not the
from the practice of law by the Tennessee Assistant District Attorney on the defendants’
Supreme Court on November 20, 2012 after a cases, he was aware that they were both
Hearing Panel for the Board determined that represented by counsel and he did not have
Mr. Davis accepted fees and failed to permission to speak with either defendant.
perform any legal work for four clients. Mr. Mr. Dycus was found to have violated Rules
Davis’ failure to communicate with one of Professional Conduct 4.2 (communication
client resulted in a default judgment being with a person represented by counsel) and
entered against the client. Mr. Davis failed to 8.4(a) and (d) (misconduct).
respond to the Board’s Petition for Discipline
and did not appear for the final hearing. Mr. John Douglas Godbee (Hawkins County)
Davis’ conduct violated Rules of Professional
Conduct 1.1 (competence), 1.3 (diligence), On October 4, 2012, the Supreme
1.4 (communication), 1.5(a) (fees), 1.16(d) Court temporarily suspended the law license
(declining and terminating representation), of Mr. Godbee after a Hearing Panel of the
3.2 (expediting litigation), 8.1(b) (bar Board determined that Mr. Godbee posed a
admission and disciplinary matters), and threat of substantial harm to the public.
8.4(a) and (d) (misconduct).
7
Disbarments and Suspensions Disbarments and Suspensions

John Douglas Godbee (Hawkins County) attempting to bill a client twice for the same
legal service, failing to act with reasonable
Mr. Godbee was disbarred by the diligence and promptness in representing a
Supreme Court on November 15, 2012, after client, failing to adequately communicate
Mr. Godbee entered a Conditional Guilty with a client, charging an unreasonable fee,
Plea in response to the Board’s Petition for and failing to respond to inquiries from the
Discipline alleging that Mr. Godbee, while Board. Mr. Hanzelik’s actions violated Rules
acting as assistant district attorney, solicited of Professional Conduct 1.5 (fees), 1.3
and/or received sexual favors from female (diligence), 1.4 (communication), 3.2
defendants in exchange for consideration on (expediting litigation) and 8.1 (disciplinary
their cases. Mr. Godbee’s actions violated matters.
Rules of Professional Conduct 4.2
(communication with a person represented by M. Josiah Hoover (Knox County)
counsel) and 8.4 (misconduct).
On November 16, 2012, the Tennessee
Fred T. Hanzelik (Hamilton County) Supreme Court entered a Judgment
disbarring Mr. Hoover, affirming the
On October 18, 2012, Mr. Hanzelik’s judgment of the Knox County Chancery
law license was suspended for one year with Court and a Hearing Panel for the Board
six months active suspension and the recommending Mr. Hoover’s disbarment
remaining six months to be served on after the Board filed a Petition for Discipline
probation. Mr. Hanzelik entered a against Mr. Hoover based on five complaints
Conditional Guilty Plea after the Board alleging negligence, filing frivolous
charged him with neglect of clients’ cases, litigation, incompetence, failure to
failure to act with reasonable diligence and communicate with clients, and failure to
promptness when representing clients, and comply with court orders and rules. The
failure to adequately communicate with Supreme Court found “on multiple occasions
clients. Mr. Hanzelik’s actions violate Rules Hoover knowingly failed to perform services
of Professional Conduct 1.3 (diligence), 1.4 for his clients and violated his professional
(communication), 3.2 (expediting litigation), duties, which caused serious or potential
3.4 (fairness to opposing party and counsel) serious injuries to his clients and the legal
and 8.4 (misconduct). system.”

Fred T. Hanzelik (Hamilton County) Samuel Franklin Lain (Anderson County)

On September 27, 2012, the Supreme Court Mr. Lain’s license to practice law was
affirmed the order of Hamilton County suspended by the Supreme Court on October
Chancery Court and the decision of a Hearing 17, 2012, retroactive to August 22, 2011, and
Panel of the Board imposing a forty-five day indefinitely thereafter until certain conditions
suspension for Mr. Hanzelik for have been met, including participation in the

8
Disbarments and Suspensions Disbarments and Suspensions

Samuel Franklin Lain (continued) David Garrett Mullins (Sullivan County)

Tennessee Lawyers Assistance Program. The On November 30, 2012, the Supreme
Court found Mr. Lain appeared in court in an Court suspended the law license of David
impaired condition and was unable to Garrett Mullins after a Hearing Panel of the
competently represent his clients, did not Board of Professional Responsibility entered
have necessary papers for a client whom he a Judgment finding Mr. Mullins had
was representing in an uncontested divorce, neglected client matters, failed to
allowed his client to prepare answers to communicate with clients, practiced law
interrogatories which were very prejudicial to while suspended, and accepted fees, then
the client, and wrote unprofessional and abandoned his clients’ cases. The Court
incompetent objections on the discovery ordered Mr. Mullins to pay $15,445 in
responses provided to the opposing party. restitution to former clients.
Mr. Lain appeared before court while his
license was suspended for failure to meet Anthony Bernard Norris (Shelby County)
registration requirements and CLE
requirements. Mr. Lain’s actions violated Mr. Norris’ license to practice law was
Rules of Professional Conduct 1.1 suspended by the Supreme Court for five (5)
(competence), 1.3 (diligence), 3.4(d) years on October 8, 2012. Mr. Norris’ law
(fairness to opposing party and counsel), 5.5 license was administratively suspended in
(unauthorized practice of law), and 8.4(a) and 1995 for failure to comply with his annual
(d) (misconduct). CLE obligations and he has been
continuously suspended since that time. In
Shannon A. Jones (Crockett County) 1998, Mr. Norris assisted in the formation of
the law firm, Bruce, Norris, & Bass, PLLC,
Mr. Jones’ license to practice law was but disassociated from the firm in 2001. In
suspended on October 18, 2012, for a period 2000, Mr. Norris began serving as vice
of three years. Mr. Jones was temporarily president and General Counsel for
suspended in December, 2011, based upon Worldwide Label and Packaging, LLC. Mr.
charges involving conspiracy to manufacture Norris publicly held himself out as General
and possess methamphetamine with the intent Counsel and engaged in the practice of law
to distribute, in violation of 21 U.S.C. § 846. while his license to practice law was
A Petition for Final Discipline was filed on suspended. Mr. Norris discontinued his role
January 10, 2012. In addition to the as General Counsel when he was elected
suspension of his law license, Mr. Jones was Chairman and appointed President of
ordered to remain compliant with the terms Worldwide Label and Packaging, LLC, on
and requirements of his Tennessee Lawyers January 23, 2012. Mr. Norris’ actions
Assistance Program monitoring agreement. violated Rules of Professional Conduct 5.5(a)
(unauthorized practice of law).

9
Disbarments and Suspensions Public Censures

James Franklin Taylor (Hawkins County) Stanley R. Barnett (continued)

On October 26, 2012, the Supreme The Court determined his actions
Court suspended Mr. Taylor’s law license violated Rules of Professional Conduct 1.1
based upon his plea of guilty to a serious (competence), 1.3 (diligence), 1.4
crime, felony theft, and ordered the Board to (communication), and 1.16 (terminating
institute formal proceedings to determine the representation).
extent of final discipline to be imposed as a
result of his conviction. James W. Clements (Hamilton County)

Gary Wayne Vandever (Wilson County) On November 5, 2012, the Supreme
Court publicly censured Mr. Clements for
On October 1, 2012, the Supreme violation of Rules of Professional Conduct
Court disbarred Mr. Vandever retroactive to 1.1 (competence), 1.3 (diligence), 1.4
his November 24, 2010, temporary (communication), and 8.4 (misconduct). Mr.
suspension. Mr. Vandever consented to Clements agreed to represent a client in a
disbarment because he could not successfully case of possible nursing home neglect but
defend himself on charges filed against him failed to communicate with his client in a
by the Board after he was convicted of three timely manner, failed to follow through with
(3) counts of theft of property over $60,000, appropriate medical experts, withheld
due to misappropriation of funds for his own information from the client and failed to take
use and benefit. Mr. Vandever’s actions reasonable steps to represent the client.
violated Rules of Professional Conduct
8.4(a), (b), (c) and (d) (misconduct). Michael Scott Collins (Sumner County)

Public Censures On November 13, 2012, Mr. Collins
was censured for entering into a
Stanley R. Barnett (Blount County) representation agreement with a client that
was vague, ambiguous, and without sufficient
On December 12, 2012, Mr. Blount clarity for the client to understand the scope
was censured for failure to timely file a of Mr. Collins’ representation. Mr. Collins
motion for a new trial after a client’s criminal also billed the client for work performed by a
conviction and then, after his client filed a paralegal without first obtaining the client’s
pro se Notice of Appeal, Mr. Barnett, without consent. These acts were in violation of Rule
consulting the client, filed an appellate brief 1.2 (scope of representation), 1.5 (fees), and
which raised issues that had been waived by 8.4 (misconduct).
his failure to file a timely appeal and failed to
address the issue of sufficiency of the
evidence.

10
Public Censures Public Censures

Valerie Corder (Shelby County) Hugh Edward Garrett (continued)

On November 20, 2012, Valerie with his client, and failure to make
Corder was publicly censured by the reasonable steps to expedite litigation after
Tennessee Supreme Court. Ms. Corder abandoning a client’s case on appeal,
entered a Conditional Guilty Plea ignoring the requests of the Court of Criminal
acknowledging violation of Rules of Appeals to either file a brief or dismiss the
Professional Conduct 1.6 (terminating matter. Mr. Garrett’s actions violated Rules
representation) and 8.4 (misconduct). Ms. of Professional Conduct 1.1 (competence),
Corder did not promptly withdraw after her 1.3 (diligence), 1.4 (communication), 3.2
client testified falsely at a deposition. At a (expediting litigation), and 8.4 (d)
subsequent hearing, Ms. Corder did not rely (misconduct).
on the false testimony but did not correct the
deposition testimony because the hearing was Robin Jeffrey Gordon (Davidson County)
unexpectedly adjourned prior to its
completion. Ms. Corder did not subsequently Mr. Gordon was publicly censured by
withdraw from that client’s representation. the Supreme Court after he employed an
attorney with a non-active Illinois law
Jami Keith Ferrell (Shelby) license, not licensed in Tennessee, to work as
a paralegal in this office. The employee held
Mr. Ferrell failed to comply with the himself out to clients as an attorney, gave
swearing-in requirements of Tenn. Sup. Ct. R. detailed legal advice, issued receipts for his
6 in that he opened a law office in Tennessee services to clients noting his services as an
and launched a website promoting his legal attorney, and provided business cards
services prior to being sworn in on May 21, identifying himself as an attorney at law. Mr.
2009. On November 1, 2012 Mr. Ferrell Gordon billed clients for the time of the non-
received a public censure for his actions licensed attorney at an unreasonable rate and
which violated Rule of Professional Conduct failed to ensure that the employee’s conduct
5.5(a) (unauthorized practice of law) and was not unauthorized practice of law. Mr.
8.4(a) misconduct. Gordon’s actions violated Rules of
Professional Conduct 1.5 (fees) and 5.3
Hugh Edward Garrett (Davidson County) (responsibilities regarding non-lawyer
assistants).
Mr. Garrett was publicly censured for
failure to render competent representation,
failure to act with reasonable diligence,
failure to maintain reasonable communication

11
Public Censures Public Censures

Michael E. Latimore (Shelby County) William H. Thomas (Shelby County)

Mr. Latimore received a Public On October 4, 2012, Mr. Thomas was
Censure on October 29, 2012, for failure to publicly censured for failure to abide by an
communicate with his client, failure to order of the court requiring him to comply
diligently represent his client’s interests, with discovery requests in a civil proceeding
failure to inform his client that his license to in which Mr. Thomas was a party. Mr.
practice law had been suspended, and failure Thomas’ actions violated Rules of
to issue an appropriate refund. These acts Professional Conduct 8.4 (d) and (g)
were in violation of Rules of Professional (misconduct).
Conduct 1.3 (diligence), 1.4 (communication),
1.5 (fees), 1.16 (declining or terminating John M. Wolfe, Jr. (Hamilton County)
representation), 8.1 (bar admission and
disciplinary matters), 8.4 (misconduct). On October 22, 2012, Mr. Wolfe
received a public censure. Mr. Wolfe settled
Lynda W. Simmons (Overton County) a civil lawsuit without his client’s
permission, gave his client $500, telling the
At the request of her client’s daughter, client it was a payment from the defendant in
Ms. Simmons prepared a deed transferring her the civil suit. He entered an agreed order of
client’s real property to Ms. Simmons’ dismissal and failed to provide a copy of it to
husband. The client executed the deed, which the client for over a year. By his actions, Mr.
Ms. Simmons did not intend to record unless Wolfe violated Rules of Professional
the client was being improperly influenced. A Conduct 1.2 (scope of representation), 1.4
year later, Ms. Simmons recorded the deed. (communication) and 8.4 (misconduct).
At the request of the client, Ms. Simmons’
husband executed a deed returning the Reinstatements
property. Ms. Simmons also disclosed
confidential information about her client. Ms. Bradley H. Frakes (Davidson County)
Simmons received a public censure on
October 22, 2012, for violation of Rules of Bradley Frakes was reinstated by
Professional Conduct 1.6 (confidential Order of the Supreme Court entered
information) and 1.8 (conflict of interest). November 27, 2012 subject to conditions
which included restitution to a former client
C. Leann Smith (Davidson County) and a practice monitor. Mr. Frakes had been
suspended on November 21, 2011. Based on
Ms. Smith was censured on December the Hearing Panel’s recommendation, the
19, 2012, after being convicted of Driving Court found that Mr. Frakes has
Under the Influence, Second Offense, a demonstrated the moral qualifications,
violation of Rule of Professional Conduct competency and learning in the law required
8.4(b) (misconduct).

12
Reinstatements

Bradley H. Frakes (continued)

for the practice of law and that his resumption
of practice of law will not be detrimental to
the integrity or standing of the bar or
administration of justice, or subversive to the
public interest.

Disability Inactive Status Transfers

Gail Otsby Mathes (Shelby County)

The Tennessee Supreme Court ordered
that Ms. Mathes’ law license be transferred to
disability inactive status on October 18, 2012.

13
BOARD OF PROFESSIONAL RESPONSIBILITY
OF THE
SUPREME COURT OF TENNESSEE

FORMAL ETHICS OPINION 2012-F-91(c)

Inquiry is made concerning the ethical propriety of employment of lawyers
admitted to practice in other jurisdictions but not admitted to practice in
Tennessee.

This opinion amends and modifies Tennessee Formal Opinion (TFEO) 2002-F-91(b) adopted
December 31, 2002, which in turn amended TFEO 2002-F-91(a) adopted March 8, 2002, and
TFEO 1985-F-91 adopted April 29, 1985.

TFEO 1985-F-91 arose out of the increasing tendency of lawyers to move between jurisdictions
and the increasing specialization of the bar. Tennessee lawyers and law firms employ lawyers to
work in their firms in Tennessee who have not been admitted to the practice of law in Tennessee.
Even if such lawyers promptly apply for admission to practice law in Tennessee, because of the
delays inherent in the admissions process, there could be a period of months between the date of
their employment as a lawyer in Tennessee and the date of their admission to practice law in
Tennessee. The question presented was, in what practices may lawyers licensed to practice law
in another jurisdiction engage in Tennessee while awaiting admission to the practice of law in
Tennessee? Because of changes in Rules of Supreme Court of Tennessee (SCR) and Rules of
Professional Conduct (RPC), the answers to the questions provided in TFEO 2002-F-91(b) have
changed substantially.

Included in the Supreme Court of Tennessee’s “…inherent power is the essential and
fundamental right to prescribe and administer rules pertaining to the licensing and admission of
attorneys.” Petition of Burson, 909 S.W.2d. 768, 773, (Tenn. 1995); Sneed v. Board of
Professional Responsibility, 301 S.W.3d. 603, 612 (Tenn. 2010); Hughes v. Board of
Professional Responsibility, 259 S.W.3d 631, 640 (Tenn. 2008). The Court “…possesses not
only the inherent supervisory power to regulate the practice of law, but also the corollary power
to prevent the unauthorized practice of law.” Petition of Burson, supra, 909 S.W.2d. at 773. The
Supreme Court of Tennessee (Supreme Court) possesses the exclusive authority to regulate the
practice of law and define the unauthorized practice of law. Tennessee Environmental v.
Tennessee Water, 254. S.W.3d 398, 403 (Tenn. Ct. App. 2007)(perm. app. denied 2008). Except
as provided by the SCR, the practice of law in Tennessee by lawyers licensed in other
jurisdictions who are not licensed to practice law in Tennessee constitutes the unauthorized
practice of law.

14
SCR 7, Licensing of Attorneys, Section 1.01, prohibits any person from practicing law in
Tennessee unless in accordance with SCR 7, as follows:

License Required. No person shall engage in the 'practice of law' or the 'law
business' in Tennessee, except pursuant to the authority of this Court, as
evidenced by a license issued in accordance with this Rule, or in accordance with
the provisions of this Rule governing special or limited practice.1

Any person who has been admitted and licensed to practice law in other jurisdictions may seek
admission to practice law in Tennessee by comity without examination, pursuant to SCR 7, Art.
V, Persons Admitted in Other Jurisdictions Seeking Waiver of Examination. The Supreme Court
amended SCR 7, Sec. 5.01, effective January 24, 2011, by adding the following:

…The application for comity admission shall be submitted to the Board of Law
Examiners and approved prior to commencement of law business in Tennessee or
employment as a lawyer in Tennessee. . .

(Emphasis added).

Lawyers licensed to practice law in other jurisdictions may also seek admission to practice law in
Tennessee by examination, pursuant to SCR 7, Art. III, Application for Admission by
Examination. SCR 7, Sec. 10.04 permits law graduates seeking admission in Tennessee by
examination pursuant to SCR 7, Art. III, to engage in practice in Tennessee on a limited and
conditional basis while awaiting admission by examination.

By its terms, SCR 7, Sec. 10.04 is applicable to any Tennessee resident who has graduated from
an accredited or approved law school, whether admitted to practice law in another jurisdiction or
not. But Sec. 10.04(b) permits limited practice in Tennessee only for the period through the date
of announcement of the results of the second bar examination conducted after the individual
graduated from law school. SCR 7, Sec. 10.04(b) admonishes trial judges that limited practice
must accord strictly with the provisions of the rule and that no deviation would be permitted.2

1
Although SCR 7 does not provide definitions of “practice of law” and “law business,” the Supreme Court incorporated the
definitions of those terms provided in Tennessee Code Annotated 23-3-101 into SCR 7, Sec. 1.01. Petition of Burson, supra, 909
S.W. 2d at 776.

T.C.A. 23-3-101. Chapter definitions. – As used in this chapter, unless the context otherwise requires: (1) “Law business” means
the advising or counseling for valuable consideration of any person as to any secular law, the drawing or the procuring of or
assisting in the drawing for valuable consideration of any paper, document or instrument affecting or relating to secular rights,
the doing of any act for valuable consideration in a representative capacity, obtaining or tending to secure for any person any
property or property rights whatsoever, or the soliciting of clients directly or indirectly to provide such services; (3) “Practice of
law” means the appearance as an advocate in a representative capacity or the drawing of papers, pleading or documents or the
performance of any act in such capacity in connection with proceedings pending or prospective before any court, commissioner,
referee or any body, board, committee or commission constituted by law or having authority to settle controversies, or the
soliciting of clients directly or indirectly to provide such services.

2
The limited practice permitted by SCR7, Sec. 10.04 is more fully defined in TFEO 2002-F-91(b), which portion of the Opinion
remains in effect.

15
Prior to the January 24, 2011, amendment to SCR 7, Sec 5.01, the Supreme Court adopted SCR
8, RPC 5.5, Unauthorized Practice of Law; Multijurisdictional Practice of Law, on September
29, 2010, effective January 1, 2011. Consistent with SCR 7, Sec. 1.01, SCR 8, RPC 5.5(a)
prohibits a lawyer from engaging in the “…practice of law in a jurisdiction in violation of the
regulation of the legal profession in that jurisdiction, or assisting another in doing so.”

RPC 5.5(b) provides that “[a] lawyer who is not admitted to practice in this jurisdiction shall not:
(1) except as authorized by these Rules or other law, establish an office or other systemic and
continuous presence in this jurisdiction for the practice of law…” A lawyer who is not licensed
in Tennessee, but who resides, has an office or other systematic and continuous presence in
Tennessee or who is employed as a lawyer in Tennessee cannot provide legal services in
Tennessee on a temporary basis pursuant to RPC 5.5(c).

RPC 5.5(d) permits a lawyer who is not admitted to practice in Tennessee, but who is licensed to
practice in another jurisdiction, to provide legal services in Tennessee as follows, and to have
“an office or other systematic and continuous presence” in Tennessee. Cmt.[5][15].

(d) A lawyer admitted in another United States jurisdiction, and not disbarred
or suspended from practice in any jurisdiction, may provide legal services
in this jurisdiction that:
(1) are provided to the lawyer's employer or its organizational
affiliates and are not services for which the forum requires pro hac
vice admission; or
(2) are services that the lawyer is authorized to provide by federal law
or other law of this jurisdiction.

The amendment to SCR 7, Sec. 5.01, which prohibits a lawyer admitted in another jurisdiction
and seeking admission in Tennessee by comity from “…the commencement of law business in
Tennessee or employment as a lawyer in Tennessee…” until the application for comity is
approved was not intended to prohibit attorneys from providing legal services in Tennessee
pursuant to RPC 5.5(d).3

3
In construing rules of the Supreme Court of Tennessee, the rules of statutory construction apply. Keough v. State, 356 S.W.3d
366, 371 (Tenn. 2011); Doe v. Bd. Of Professional Responsibility, 104 S.W.3d 465, 469 (Tenn. 2003) (applying the rules of
statutory construction to Tennessee Supreme Court Rule 9); Board of Professional Responsibility v. Love, 256 S.W.3d 644, 651-
652 (Tenn. 2008) (applied rules of statutory construction to construe Tennessee Supreme Court Rule 9). In construing rules of
the Supreme Court the goal is to ascertain and give effect to the Court’s intent in adopting its rules. Thomas v. Oldfield, 279
S.W.3d 259, 261 (Tenn. 2009).

We assume that whenever the legislature enacts a provision, it is aware of other statutes relating to the same subject matter.
Wilson v. Johnson County, 879 S.W.2d 807, 810 (Tenn. 1994). Unless the newer statute expressly repeals or amends the old one,
the new provision is presumed to be in accord with the same policy embodied in the prior statutes; thus, “statutes ‘in pari materia’
– those relating to the same subject or having a common purpose – are to be construed together, and the construction of one such
statute, if doubtful, may be aided by considering the words and legislative intent indicated by the language of another statute.”
Id. at 809. If a conflict exists, specific statutory provisions will be given effect over conflicting general provisions. Arnwine v.
Union County Board Of Education, 120 S.W.3d 804, 809 (Tenn. 2003). Statutes on the same subject, although in apparent
conflict, are construed to be in harmony if reasonably possible. In re Akins, 87 S.W.3d 488, 493 (Tenn. 2002)

16
Pursuant to the provisions of SCR 7 discussed herein above, two categories into which non-
resident lawyers licensed to practice law in other jurisdictions who are applying for admission to
practice law in Tennessee4 fall are:

(1) Lawyers applying for admission in Tennessee by comity, pursuant to SCR 7, Art. V;

SCR 7, Art. V, Sec. 5.01 specifically prohibits lawyers who are applying for admission by
comity, from commencement of law business in Tennessee or employment as a lawyer in
Tennessee until the application for comity has been approved. Such lawyers may, however,
provide legal services in Tennessee as permitted by RPC 5.5(d).

(2) Lawyers applying for admission in Tennessee by examination, pursuant to SCR 7, Art.
III, who are not eligible or not permitted to practice in Tennessee on a limited basis
pursuant to SCR 7, Sec. 10.04.5

Non-resident lawyers who are applying for admission by examination pursuant to SCR 7, Art.
III, but who are not permitted to practice in Tennessee on a limited basis pursuant to SCR 7, Sec.
10.04, cannot engage in the limited practices and court appearances permitted by SCR 7, Sec.
10.04(a)(b). SCR 7, Sec. 1.01 does not grant authority to lawyers in category (2) to practice law
in Tennessee to any greater extent or degree than lawyers in category (1) applying for admission
by comity. Therefore, lawyers who are applying for admission in Tennessee by examination,
who are not permitted to practice in Tennessee on a limited basis pursuant to SCR 7, Sec 10.04,
cannot commence law business in Tennessee or be employed as a lawyer in Tennessee until
admission by examination in Tennessee is approved. Such lawyers may, however, provide legal
services in Tennessee as permitted by RPC 5.5(d).

This 30th day of July, 2012.

ETHICS COMMITTEE:

Michael Callaway

William Bovender

Wade Davies

APPROVED AND ADOPTED BY THE BOARD

Shorts v. Bartholomew, 278 S.W.3d 268, 277 (Tenn. 2009). See also; Hayes v. Gibson County, 288 S.W.3d. 334, 337, 338
(Tenn. 2009); Brundage v. Cumberland County, 357 S.W.3d 361, 365 (Tenn. 2011).

4
Lawyers licensed in other jurisdictions who provide legal services in Tennessee as in house counsel pursuant to RPC 5.5(d)(1)
are required to be registered pursuant to SCR 7, Sec.10.01, as opposed to being admitted to the practice of law in Tennessee by
comity pursuant to SCR 7, Art. V, or by examination pursuant to SCR 7, Art. III.

5
Lawyers who reside in the state and apply for admission in Tennessee by examination pursuant to SCR 7, Art. III can be
permitted to practice in Tennessee on a limited and conditional basis pursuant to SCR 7, Sec. 10.04.

17
BOARD OF PROFESSIONAL RESPONSIBILITY
OF THE
SUPREME COURT OF TENNESSEE

FORMAL ETHICS OPINION 2012-F-155

Can district attorneys ethically comply with the requirements of T.C.A. 40-32-
101(a)?

A formal ethics opinion has been requested by a district attorney regarding T.C.A. 40-32-
101(g), enacted effective July 1, 2012. The statute provides the means by which a person
may obtain expungement of public records of conviction of an eligible criminal
offense. Section (g)(1) enumerates the criminal offenses eligible to be expunged, as well
as those excluded from consideration. Section (g)(2) provides the criteria for an offense
to be expunged, including: (A) having never been convicted of any other criminal
offense, including in federal and/or other states courts; (B) the lapse of five years since
the completion of the sentence imposed for the subject offense, and; (C) that all
requirements of the sentence have been fulfilled.

Section (g)(3) requires a person seeking expungement of a conviction to petition the court
in which the person was convicted; that upon filing, the clerk shall serve the petition on
the district attorney general; and that within 60 days “…the district attorney may submit
recommendations to the court and provide a copy of such recommendations to the
petitioner.” Section (g)(4) provides that both the petitioner and the district attorney may
file evidence with the court relating to the petition. Section (g)(5) requires the court to
consider all evidence and weigh the interest of the petitioner and the best interest of
justice and public safety. Section (g)(7) requires that by September 1, 2012, the district
attorneys general conference create a simple form to enable a lay person to petition the
court for expungement.

Section (g)(8) provides, in part, that “[t]he petition and proposed order shall be prepared
by the office of the district attorney general and given to the petitioner to be filed with the
clerk of the court…” Section (g)(10) provides that 40/45% of the $350 filing fee paid to
the clerk by the petitioner is to be paid to the district attorneys expungement fund.
Section (g)(11) establishes the fund “...to defray the expense incurred for the required
records search and preparation of the petition and proposed order…”. The sequence set
forth in the statute requires the district attorney to prepare the petition and order and give
same to the petitioner before the petitioner files the petition and order with the clerk and
pays the fee, part of which is for the records check. Whether the required records check
will be conducted and the results reported to the district attorney before the district
attorney prepares the petition and order and gives same to the petitioner for filling cannot
be determined.

18
Compliance by the office of the district attorney with T.C.A. 40-32-101(g) raises several
ethics issues and concerns. The resolution of those issues depends on whether the
preparation of the petition and order by the office of the district attorney as required by
the statute forms an attorney/client relationship between the district attorney and the
petitioner or are simply administrative functions which do not entail the formation of
such an attorney/client relationship. If an attorney/client relationship is formed between
the district attorney and the petitioner, duties provided in Supreme Court Rule 8, Rules of
Professional Conduct (RPC), including Competence, RPC 1.1,1 Diligence, RPC 1.3,2
Communication, RPC 1.4,3 Confidentiality, RPC 1.6,4 Conflicts of Interest, RPC 1.7,5

1
RPC 1.1provides:

A lawyer shall provide competent representation to a client. Competent representation requires the legal
knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.

2
RPC 1.3 provides:

A lawyer shall act with reasonable diligence and promptness in representing a client.

3
RPC 1.4 provides:

(a) A lawyer shall:

(1) promptly inform the client of any decision or circumstance with respect to which the client's
informed consent, as defined in RPC 1.0(e), is required by these Rules;

(2) reasonably consult with the client about the means by which the client's objectives are to be
accomplished;

(3) keep the client reasonably informed about the status of the matter;

(4) promptly comply with reasonable requests for information; and

(5) consult with the client about any relevant limitation on the lawyer's conduct when the lawyer knows
that the client expects assistance not permitted by the Rules of Professional Conduct or other law.

(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed
decisions regarding the representation.

4
RPC 1.6(a) provides:

(a) A lawyer shall not reveal information relating to the representation of a client unless:

(1) the client gives informed consent;
(2) the disclosure is impliedly authorized in order to carry out the representation; or
(3) the disclosure is permitted by paragraph (b) or required by paragraph (c).

Cmt. [3] to RPC 1.6 provides that “[t]he confidentiality rule, for example, applies not only to matters communicated in confidence by
the client but also to all communication relating to the representation, whatever its source.” There is no public records exception to
the confidentiality rule with respect to current clients.

5
RPC 1.7 (a)(b) provide:

(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a
concurrent conflict of interest. A concurrent conflict of interest exists if:

(1) the representation of one client will be directly adverse to another client; or
(2) there is a significant risk that the representation of one or more clients will be materially limited by
the lawyer's responsibilities to another client, a former client or a third person or by a personal
interest of the lawyer.

(b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may
represent a client if:
19
1.8(b)6 and 1.9,7 Meritorious Claims and Contentions, RPC 3.1,8 and Candor Toward the
Tribunal, RPC 3.3,9 would be imposed upon the district attorney, even if the functions are
performed by non-lawyer staff.10

(1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent
representation to each affected client;
(2) the representation is not prohibited by law;
(3) the representation does not involve the assertion of a claim by one client against another client
represented by the lawyer in the same litigation or other proceeding before a tribunal; and
(4) each affected client gives informed consent, confirmed in writing.

6
RPC 1.8(b) provides:

(b) A lawyer shall not use information relating to representation of a client to the disadvantage of the client,
unless the client gives informed consent, except as permitted or required by these Rules.

7
RPC 1.9 (a)(c) provide:

(a) A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in
the same or a substantially related matter in which that person's interests are materially adverse to the
interests of the former client unless the former client gives informed consent, confirmed in writing.

(c) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly
represented a client in a matter shall not thereafter reveal information relating to the representation or use
such information to the disadvantage of the former client unless (1) the former client gives informed
consent, confirmed in writing, or (2) these Rules would permit or require the lawyer to do so with respect
to a client, or (3) the information has become generally known.

8
RPC 3.1 provides:

A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless after reasonable
inquiry the lawyer has a basis in law and fact for doing so that is not frivolous, which includes a good faith
argument for an extension, modification, or reversal of existing law. A lawyer for the defendant in a criminal
proceeding, or the respondent in a proceeding that could result in incarceration, may nevertheless so defend the
proceeding as to require that every element of the case be established.

9
RPC 3.3 (a)(1) prohibits a lawyer from making a false statement of fact or law to a tribunal, (b) prohibits offering evidence that the
lawyer knows to be false, (c) prohibits a lawyer from affirming the validity of any evidence of or otherwise using any evidence the
lawyers knows to be false, and (e)(f) require an attorney to withdraw from the representation of the client if the lawyer knows that the
client intends to perpetrate a crime or fraud upon the tribunal or otherwise commit an offense against the administration of justice.

10
RPC 5.3(a)(b)(c) provide:

With respect to a non lawyer employed or retained by or associated with a lawyer:

(a) a partner, and a lawyer who individually or together with other lawyers possesses comparable managerial
authority in a law firm, shall make reasonable efforts to ensure that the firm has in effect measures giving
reasonable assurance that the nonlawyer's conduct is compatible with the professional obligations of the
lawyer;

(b) a lawyer having direct supervisory authority over a nonlawyer shall make reasonable efforts to ensure that
the nonlawyer's conduct is compatible with the professional obligations of the lawyer; and

(c) a lawyer shall be responsible for conduct of a nonlawyer that would be a violation of the Rules of
Professional Conduct if engaged in by a lawyer if:

20
T.C.A. 8-7-103 provides the “Duties” of the district attorney. The client of the district
attorney is the state of Tennessee. See, Tennessee Formal Ethics Opinion (TFEO) 2002-
F-146 (a public prosecutor has as his client the state). “Tempered only by their impartial
search for justice, prosecutors are to keep the interest of the State as their preeminent
concern.” State v. White, 114 S.W. 3d 469, 477 (Tenn. 2003).

TFEO 2002-F-146 held that “the duties of a state prosecutor or assistant and such
lawyer’s duties as criminal defense counsel in a state court are clearly in conflict.” The
opinion quoted from an ABA Formal Opinion and states, in part:

A public prosecutor has as his client the state. It is obvious
therefore that he cannot appear for any defendant in cases
in which the state is an adverse party. The second
paragraph of Canon 6 provides in substance that a lawyer
cannot represent conflicting interests “except by express
consent of all concerned given after a full disclosure of the
facts.” In Opinion 16 it was held that the prosecutor could
not represent both the public and the defendant, and that a
law firm cannot serve two masters, because, “The positions
are inherently antagonistic and this would be so irrespective
of Canon 6. No question of consent can be involved as the
public is concerned and it cannot consent.”

This Board has expressly adopted the reasoning of the ABA as set forth
above in the past, and agrees with the ABA’s holding that the two
positions are so inherently antagonistic, there can be, no consent to, or
waiver of the conflict by the public. Even though the provision of Canon
6 of the old Canons of Professional Ethics are not identical to this state’s
Code of Professional Responsibility, similarly, there can be no consent to
such a conflict by the public in Tennessee.

Applying the former Code of Professional Responsibility, the Supreme Court referenced
TFEO 2002-F-146 in State v. White, supra, 114 S.W. 3d. 469 and stated in part:

This court has clarified that an actual conflict of interest includes any
circumstances in which an attorney cannot exercise his or her independent
professional judgment free of “compromising interests and loyalties.” See
Culbreath, 30 S.W.3d at 312-13; see also Tenn. R. Sup. Ct. 8, EC 5-1. In
the context of multiple employment, for example, an actual conflict arises
where an attorney’s continuance of such employment “would be likely to
involve the lawyer in representing differing interests.” Tenn. Sup. Ct. R.
8, DR 5-105(B). If a conflict exists, it may only be cured if “it is obvious

(1) the lawyer orders or, with knowledge of the specific conduct, ratifies the conduct involved; or

(2) the lawyer is a partner or has comparable managerial authority in the law firm in which the nonlawyer is
employed, or has direct supervisory authority over the nonlawyer, and knows of the nonlawyer's conduct at a
time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.

21
that the lawyer can adequately represent the interest of each [client] and if
each [client] consents to the representation after full disclosure of the
possible effect of such representation on the exercise of a lawyer’s
independent professional judgment on behalf of each.” Tenn. Sup. Ct. R.
8, DR 5-105(C).

Id. at 476-477.

. . . The Disciplinary Rules preventing conflicts of interests were
specifically designed to free the lawyer’s judgment from such
“compromising interests and loyalties.” Tenn. R. Sup. Ct. 8, EC 5-1; see
also Blackwood, 46 S.W.3d at 187; Culbreath, 30 S.W.3d at 312-13.

Id. at 478.

T.C.A. 40-12-10 (g)(3)(4)(5) create potentially adversarial and conflicting interest
between the duties to be performed by the district attorney for the petitioner on the one
hand and for the state on the other. If by preparing the petition and order as required by
the statute an attorney/client relationship is formed between the district attorney and the
petitioner, the district attorney will be faced in every instance with the potential for a
conflict of interest. RPC 1.7.5

In order for the office of the district attorney to prepare the petition and order, the
petitioner will necessarily provide information to the district attorney regarding the
subject conviction, when the sentence was completed, whether the petitioner has any
other convictions and other information required for preparation of the petition and
order. As stated above, the required records check may or may not be performed prior to
district attorney preparing the petition and order and giving same to the petitioner for
filing. If the district attorney determines that the criminal offense does not fall within
those eligible for expungement pursuant to section (g)(1) or if the petitioner does not
meet the requirements of section (g)(2), it would be the duty of the district attorney in his
representation of the state to oppose the petition for expungement filed by the petitioner.
If an attorney/client relationship was formed between the district attorney and the
petitioner, RPC 1.6(a)4 and RPC 1.8(b)6 would preclude the district attorney from using
information relating to the representation of the petitioner/client to the disadvantage of
the petitioner/client or to pursue an interest against the petitioner/client to recommend or
seek denial of the petition, as permitted by sections (g)(3)(4) and as the duties owed by
the district attorney to the state would require. If the information provided by the
petitioner/client and/or the required records check reflects that the petition lacks merit,
the district attorney would be precluded by the RPC 3.18 from preparing an unmeritorious
petition and order. RPC 3.3(a)(1),(b),(c)9 would preclude the district attorney from going
forward with the representation of the petitioner/client on the bases of information which
the district attorney knows to be false. If the representation by the district attorney ceased
and the petitioner went forward with the petition on the basis of false information, the
district attorney would be precluded by RPC 1.9(a)(c)7 from revealing or using
information relating to the former representation of the petitioner/client to the

22
disadvantage of the petitioner/former client in recommending or seeking to defeat the
petition.

RPC l.7 (a)(1)(2)5 precludes the district attorney from accepting representation of the
petitioner because the representation of the petitioner and the state with respect to
expungement would be directly adverse or there is a significant risk that the
representation of one client would be substantially limited by the districts attorney’s
representation of the other. One client’s interest would necessarily be compromised by
the interest of the other. The conflict of interest could not be waived because the district
attorney could not provide competent and diligent representation to both the petitioner
and the state of Tennessee, as required by RPC 1.7(b)(1)5 for waiver. See also, TFEO
2002-F-146 herein above.

In order for the district attorney to perform the functions required by T.C.A. 40-32-
101(g), the district attorney must avoid forming an attorney/client relationship with the
petitioner11 and, thereby, avoid the conflict of interest and other duties which would be
imposed by the Rules of Professional Conduct. The district attorney should advise the
petitioner that the district attorney represents the state in the matter and clarify the district
attorney’s role in the matter that by preparing the petition and order the district attorney
does not represent the petitioner.12 The district attorney should obtain an
acknowledgement from the petitioner that the petitioner does not become a client of the
district attorney by the district attorney performing the functions required by the statute
and that none of the duties imposed upon an attorney/client relationship by the Rules of
Professional Conduct, including confidentiality and conflicts of interest, attach as a
consequence of performing the functions required by the statute. This acknowledgement
could be included in the form required by section (g)(7) and petition for expungement
prepared by the office of the district attorney general.10

The district attorney should request information from the petitioner only to the extent
necessary to prepare the petition for expungement and resulting order and should not give

11
The Restatement of the Law, The Law Governing Lawyers (2000) §14 provides:

A relationship of client and lawyer arises when:

(1) a person manifests to a lawyer the person’s intent that the lawyer provide legal services for the person; and either

(a) the lawyer manifests to the person consent to do so; or

(b) the lawyer fails to manifest lack of consent to do so, and the lawyer knows or reasonably should know that the
person reasonably relies on the lawyer to provide the services; or

(2) a tribunal with power to do so appoints the lawyer to provide the services.

12
RPC 4.3 provides:

In dealing on behalf of a client with a person show is not represented by counsel, a lawyer shall not state or
imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the
unrepresented person misunderstands the lawyer’s role in the matter, the lawyer shall make reasonable efforts to
correct the misunderstanding. The lawyer shall not give legal advice to an unrepresented person, other than the
advice to secure counsel, if the lawyer knows or reasonably should know that the interest of such a person are,
or have a reasonable possibility of being, in conflict with the interest of the client.
23
legal advice to the petitioner regarding the petition.12 The district attorney could advise
the petitioner that they can seek the advice of other counsel.12 Section (g)(3) requires that
a copy of the recommendation to the court be provided to the petitioner. It would be
acceptable to advise the petitioner that given information provided to and collected by the
district attorney, that it does not appear that the petition meets the requirements for
expungement.

The request for formal ethics opinion posed the following questions, which are answered
as follows:

1. Can the District Attorney General or members of their staff prepare
petitions to expunge criminal records on behalf of criminal
defendants?

ANSWER: Yes, but only if the district attorney advises the
petitioner that the district attorney represents the state and does not
represent the petitioner and advises the petitioner that they may
seek the advice of independent counsel, consistent with this
opinion.

2. Can the District Attorney General or members of their staff prepare
petitions to expunge criminal records on behalf of criminal
defendants knowing that the District Attorney General will
potentially oppose the petition?

ANSWER: Yes, but only if the district attorney does not know
that information contained in the petition and order prepared by the
district attorney is false, consistent with this opinion.

3. Does the District Attorney have an ethical obligation to tell a
defendant that his petition does not qualify for expungement?

ANSWER: Not if no attorney/client relationship exists.

4. Does the District Attorney have an ethical obligation to tell the
defendant that we will be representing the State and filing a
pleading to dismiss the petition?

ANSWER: Yes, consistent with RPC 4.3.

5. Does the District Attorney who prepares a petition on behalf of a
criminal defendant become an advocate for that defendant as to the
petition?

ANSWER: No, consistent with this opinion.

24
6. Can the District Attorney General ethically prepare a petition for
submission to a court when the District Attorney General knows
that the petition does not qualify for expungement.

ANSWER: The district attorney cannot assist the petitioner in
preparation of fraudulent petition.

7. Should the District Attorney General advise a criminal defendant
seeking to have a petition prepared by the District Attorney
General to seek advice from independent counsel?

ANSWER: Yes, consistent with RPC 4.3.

8. What if any conflict of interest exists for the District Attorney
General when he or she knows that a criminal defendant will have
to pay the $350 filing fee and that the District Attorney’s
Conference will receive forty-five percent of the fee but it is
virtually guaranteed that the petition will be denied and the
defendant will gain nothing from the expenditure of these funds?

ANSWER: None if prepared consistent with this opinion.

This 21st day of September, 2012.

ETHICS COMMITTEE:

Russ Parkes

Susan McGannon

Francis Guess

APPROVED AND ADOPTED BY THE BOARD

25
The Tennessee Supreme Court Proposes Amendments
to Tennessee Supreme Court Rule 9
On August 8, 2012, the Supreme Court filed an Order proposing substantial revisions to
Tennessee Supreme Court Rule 9, which sets out the rules governing the disciplinary
enforcement of Tennessee attorneys. The proposed Supreme Court Rule 9 may be
viewed in its entirety at http://www.tncourts.gov/sites/default/files/order_and_appendix-
rule_9_amendment-comments-8-8-12.pdf. The deadline for written comments to the
Supreme Court’s proposed Rule 9 is February 8, 2013.

26

Go to Top

Document Meta Data

Primary Meta Data for PDF File

Key	Value
Author	Butterfield, Kayleigh (Std Univ - butterfike)
Creator	Microsoft® Office Word 2007
ModifyDate	Friday, January 18, 2013 8:50 AM -06:00
PageCount	26
PDFVersion	1.5

Additional Meta Data for PDF File

Key	Value
CreateDate	Friday, January 18, 2013 8:50 AM -06:00
FileName	Board_Notes_Q1_2013.pdf
FileSize	467 kB
FileType	PDF
FileTypeExtension	pdf
Language	en-US
Linearized	No
MIMEType	application/pdf
Producer	Microsoft® Office Word 2007
SourceFile	Board_Notes_Q1_2013.pdf
TaggedPDF	Yes

Go to Top

Assistance Request

Request Accessibility Assistance

Name

Email

Phone

What do you need help with?

The HTML version is missing content

The HTML version contains errors

The reading order is incorrect or confusing

I need help understanding the content

I need a different alternative format

Other

Preferred format

Additional details

Urgency Urgent Soon Not urgent

Go to Top