Board of Professional Responsibility of the Supreme Court of Tennessee

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BOARD NOTES
published by the

Tennessee Board of Professional Responsibility

First Quarter 2013

Inside:
2

Consumer Assistance
Program 10th Anniversary

3

TLAP’s Monitoring Program

4

Professional Privilege Tax

5

New Appointments

6

Disciplinary Actions

7

Formal Ethics Opinions

8

Proposed Amendments to

Greeting from Lela Hollabaugh, Board Chair
It is my pleasure as Chair of the Board of Professional Responsibility
to announce the resumption of publication of Board Notes, which
will appear biannually. Our distribution will be by email and Board
Notes will be available on our website at www.tbpr.org.

We

anticipate this publication will be both educational and informative
to members of the bar and the public.

Tennessee Supreme Court
Rule 9

1

Consumer Assistance Program
Celebrates 10th Anniversary
In 2012, the Consumer
Assistance Program (CAP) of the
Tennessee Board of Professional
Responsibility celebrated its 10th
anniversary. CAP was created in
March of 2002 to help legal
consumers who may have
questions
about
legal
representation or problems with
their attorneys. CAP informally
mediates these difficult situations
in a way that encourages
explanations and communication
between parties. CAP will not
take on cases in which an attorney
has been accused of serious ethical
violations but will instead refer
such cases to Disciplinary Counsel
for investigation.
While CAP cannot and
does not provide legal advice or
lawyer recommendations, it does
supply consumers with basic
information concerning attorneys
and the legal system, acting, to
some degree, as a customer service
office for the legal profession in
Tennessee.
The program also
recommends outside agencies and
resources for clients such as fee
dispute
committees,
lawyer
referral services, and pro bono
entities. Many of the consumers
of legal services who contact CAP
are often confused about the legal
system or communications they
have had with their attorney.
CAP provides a place for these
consumers
to
ask
simple
questions.
As it strives to be an
efficient and effective program for

clients, CAP also acts as an early
warning system for attorneys,
allowing them to correct problems
with
their
practice,
their
communications with their clients,
or their own conduct before any of
it breaches ethical standards. By
encouraging explanation and
communication between clients
and attorneys at the early stages of
client dissatisfaction, CAP hopes
to
resolve
client/attorney
disagreements before they result in
a disciplinary complaint.
Since its inception in
2002, the Consumer Assistance
Program has been directed by
Beverly Phillips Sharpe. Prior to
her assumption of this position in
2001, she was in private practice
for 18 years in Knoxville,
Tennessee.
She maintained a
general civil practice with a
concentration in personal injury,
domestic relations and bankruptcy.
Ms. Sharpe holds a Bachelors
Degree in music from the
University of North Texas and
received
her
Doctorate
of
Jurisprudence from the University
of Tennessee. As Director of
CAP, Ms. Sharpe has developed
and directed the program from its
beginnings in March, 2002,
casting a strong vision of

consumer
protection
and
customer service for CAP.
In its first ten years, CAP
has handled a total of 42,061 cases
and has been involved in 99,452
informal mediations or advising
actions. The majority of cases
2

handled by CAP involve criminal,
domestic, general civil and
personal injury law.
In
approximately 54,000 instances,
CAP provided general information
to the consumer that the consumer
had not received from their
attorney. Approximately 35,000
times, CAP mediated conflicts
between clients and attorneys
including fee disputes, the return
of
the
client’s
file
and
documentation, misunderstandings
and difficulties between clients
and attorneys, and client’s requests
for action on their cases. For more
information about the Consumer
Assistance
Program,
please
contact:

Beverly P Sharpe, Esq.
Director, Consumer Assistance
Program
Board of Professional Responsibility
of the Supreme Court of Tennessee
10 Cadillac Drive, Suite 220
Brentwood TN 37027
CAP@tbpr.org
www.tbpr.org

requiring reporting to the appropriate disciplinary body, TLAP
will offer monitoring services at the request of the employer or
law school. The agreement incorporates all the usual
monitoring and testing provisions, however, the reporting
designee also receives a copy of the monitoring agreement,
may request status reports, and will be notified if the
participant becomes substantially noncompliant. If TLAP or
the contract participant terminates the agreement, the reporting
designee is notified. In cases of non-compliance or early
termination of the agreement, the employer or dean will
decide what sanctions, if any, are appropriate, usually after
consultation with TLAP staff.
The third type of monitoring agreement requires
mandatory reporting to disciplinary or licensing authority.
The disciplinary or licensing authority, such as the Board of
Law Examiners, Board of Professional Responsibility, or
Board of Judicial Conduct, may request TLAP to conduct an
evaluation of a law student, attorney or judge. The request is
provided in writing from the disciplinary authority to both
TLAP and the referred attorney, and may also be by court
order.
If monitoring is recommended by TLAP, the
disciplinary or licensing authority is listed as the reporting
designee. The reporting designee must be notified if the
referred law student, attorney or judge becomes substantially
noncompliant with the terms of the agreement. If the
reporting designee is the Board of Professional Responsibility,
TLAP is required to provide an affidavit of the facts of the
substantial noncompliance, and disciplinary counsel may
petition the Supreme Court to issue an order imposing a
temporary 4.3 suspension of the contract participant. Upon
conclusion of a proceeding of any licensing or disciplinary
authority, the monitoring agreement shall end, unless
continued monitoring is required for a specified period of time
following the conclusion of the proceeding.
Monitoring agreements, although an important aspect
of the TLAP program, are only a small portion of TLAP
services. Roughly 22% of TLAP participants are currently
under a monitoring agreement. Most TLAP clients receive
confidential counseling and assistance without ever needing to
enter into a formal agreement.
A vast majority of calls to TLAP are in regards to a
colleague or family member who may have a problem. The
goal of TLAP is to assist attorneys well before they enter into
the disciplinary process, or end up on the front page of the
paper. In order to reach this goal, it is important that
colleagues be willing to contact TLAP as soon as they see
warning signs of potential impairment issues.
As a
compassionate member of a self-governing profession,
everyone needs to stand ready to throw a life-line well before
the situation becomes a headline.

TLAP’s Monitoring Program
By Laura McClendon, MA, CEAP
TLAP Executive
The Tennessee Lawyers Assistance Program is a free,
confidential assistance program providing consultations,
referrals, interventions, and crisis counseling for lawyers,
judges, bar applicants and law students.
The Tennessee
Lawyers Assistance Program ("TLAP") was established by
order of the Tennessee Supreme Court in 1999. The mission
and general structure of TLAP are set forth in Rule 33 of the
Tennessee Supreme Court Rules.
TLAP services address a range of health and personal
issues, such as stress, burnout, anxiety, depression and other
mood disorders, anger management, trauma, grief, struggles
with life balance, substance abuse, and behavioral addictions
including eating disorders, gambling, and sex addiction.
TLAP’s work contributes to the protection of the public and
the improvement of the integrity and reputation of the legal
profession. Statistics support that assistance to an affected
lawyer often prevents future ethical violations, thereby
reducing the number of disciplinary actions.
TLAP also provides evaluation and monitoring
services for attorneys whose misconduct may be related to a
substance abuse or psychological impairment. Monitoring
agreements are behavioral contracts that provide formal
guidelines designed to ensure that the contract participant
maintains good mental health and abstinence from mind and
mood altering substances.
Monitoring agreements may
require attendance in a 12-Step or other appropriate support
group, therapy, psychiatric supervision, medication
management, monthly reporting, drug testing, and peer
assistance. Agreements may or may not have a reporting
designee to whom reports of compliance or noncompliance are
provided by TLAP.
There are three types of TLAP monitoring
agreements. The first is a voluntary monitoring agreement
that is designed to assist individuals who desire structure and
accountability in their recovery process. There is no reporting
designee listed in the agreement. The contract participant may
request letters of compliance from TLAP for the participant to
provide to outside sources as he or she deems appropriate.
These compliance reports may be helpful with divorce or
custody cases, employment issues, or any other situation in
which the participant desires to provide documented evidence
of rehabilitation.
The second type of agreement, while also voluntary,
requires TLAP to report to a non-disciplinary authority. In
certain situations, an attorney or law student’s impairment
may come to the attention of an employer or law school dean.
If the conduct does not rise to the level of an ethical violation

If you or someone you know may require TLAP assistance,
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-ofstate 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
Court disbarred Mr. Cowan, thereby
affirming the decision of the Chancery Court
of Carter County finding that Mr. Cowan
should be disbarred from the practice of law
for his misconduct.
Mr. Cowan was
temporarily suspended on March 1, 2010,
after his plea of guilty to a serious crime, the
willful attempt to defeat or evade payment of
taxes.

Mr. Dycus’ law license was
suspended by the Court on November 27,
2012, for a period of one year with forty-five
(45) days active suspension and the
remainder served on probation. Mr. Dycus
was also ordered to perform ten (10) hours of
pro bono services and complete additional
continuing education and contact Tennessee
Lawyers Assistance Program.
While
working for the District Attorney’s office,
Mr. Dycus engaged in inappropriate
conversations of a sexual nature with two
criminal defendants being prosecuted by his
office. While Mr. Dycus was not the
Assistant District Attorney on the defendants’
cases, he was aware that they were both
represented by counsel and he did not have
permission to speak with either defendant.
Mr. Dycus was found to have violated Rules
of Professional Conduct 4.2 (communication
with a person represented by counsel) and
8.4(a) and (d) (misconduct).

Bobby Dean Davis (Davidson County)
Bobby Dean Davis was disbarred
from the practice of law by the Tennessee
Supreme Court on November 20, 2012 after a
Hearing Panel for the Board determined that
Mr. Davis accepted fees and failed to
perform any legal work for four clients. Mr.
Davis’ failure to communicate with one
client resulted in a default judgment being
entered against the client. Mr. Davis failed to
respond to the Board’s Petition for Discipline
and did not appear for the final hearing. Mr.
Davis’ conduct violated Rules of Professional
Conduct 1.1 (competence), 1.3 (diligence),
1.4 (communication), 1.5(a) (fees), 1.16(d)
(declining and terminating representation),
3.2 (expediting litigation), 8.1(b) (bar
admission and disciplinary matters), and
8.4(a) and (d) (misconduct).

John Douglas Godbee (Hawkins County)
On October 4, 2012, the Supreme
Court temporarily suspended the law license
of Mr. Godbee after a Hearing Panel of the
Board determined that Mr. Godbee posed a
threat of substantial harm to the public.
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
diligence and promptness in representing a
client, failing to adequately communicate
with a client, charging an unreasonable fee,
and failing to respond to inquiries from the
Board. Mr. Hanzelik’s actions violated Rules
of Professional Conduct 1.5 (fees), 1.3
(diligence), 1.4 (communication), 3.2
(expediting litigation) and 8.1 (disciplinary
matters.

Mr. Godbee was disbarred by the
Supreme Court on November 15, 2012, after
Mr. Godbee entered a Conditional Guilty
Plea in response to the Board’s Petition for
Discipline alleging that Mr. Godbee, while
acting as assistant district attorney, solicited
and/or received sexual favors from female
defendants in exchange for consideration on
their cases. Mr. Godbee’s actions violated
Rules of Professional Conduct 4.2
(communication with a person represented by
counsel) and 8.4 (misconduct).

M. Josiah Hoover (Knox County)

On October 18, 2012, Mr. Hanzelik’s
law license was suspended for one year with
six months active suspension and the
remaining six months to be served on
probation.
Mr. Hanzelik entered a
Conditional Guilty Plea after the Board
charged him with neglect of clients’ cases,
failure to act with reasonable diligence and
promptness when representing clients, and
failure to adequately communicate with
clients. Mr. Hanzelik’s actions violate Rules
of Professional Conduct 1.3 (diligence), 1.4
(communication), 3.2 (expediting litigation),
3.4 (fairness to opposing party and counsel)
and 8.4 (misconduct).

On November 16, 2012, the Tennessee
Supreme Court entered a Judgment
disbarring Mr. Hoover, affirming the
judgment of the Knox County Chancery
Court and a Hearing Panel for the Board
recommending Mr. Hoover’s disbarment
after the Board filed a Petition for Discipline
against Mr. Hoover based on five complaints
alleging
negligence,
filing
frivolous
litigation,
incompetence,
failure
to
communicate with clients, and failure to
comply with court orders and rules. The
Supreme Court found “on multiple occasions
Hoover knowingly failed to perform services
for his clients and violated his professional
duties, which caused serious or potential
serious injuries to his clients and the legal
system.”

Fred T. Hanzelik (Hamilton County)

Samuel Franklin Lain (Anderson County)

On September 27, 2012, the Supreme Court
affirmed the order of Hamilton County
Chancery Court and the decision of a Hearing
Panel of the Board imposing a forty-five day
suspension for Mr. Hanzelik for

Mr. Lain’s license to practice law was
suspended by the Supreme Court on October
17, 2012, retroactive to August 22, 2011, and
indefinitely thereafter until certain conditions
have been met, including participation in the

Fred T. Hanzelik (Hamilton County)

8

Disbarments and Suspensions

Disbarments and Suspensions

Samuel Franklin Lain (continued)

David Garrett Mullins (Sullivan County)

Tennessee Lawyers Assistance Program. The
Court found Mr. Lain appeared in court in an
impaired condition and was unable to
competently represent his clients, did not
have necessary papers for a client whom he
was representing in an uncontested divorce,
allowed his client to prepare answers to
interrogatories which were very prejudicial to
the client, and wrote unprofessional and
incompetent objections on the discovery
responses provided to the opposing party.
Mr. Lain appeared before court while his
license was suspended for failure to meet
registration
requirements
and
CLE
requirements. Mr. Lain’s actions violated
Rules of Professional Conduct 1.1
(competence), 1.3 (diligence), 3.4(d)
(fairness to opposing party and counsel), 5.5
(unauthorized practice of law), and 8.4(a) and
(d) (misconduct).

On November 30, 2012, the Supreme
Court suspended the law license of David
Garrett Mullins after a Hearing Panel of the
Board of Professional Responsibility entered
a Judgment finding Mr. Mullins had
neglected
client
matters,
failed
to
communicate with clients, practiced law
while suspended, and accepted fees, then
abandoned his clients’ cases. The Court
ordered Mr. Mullins to pay $15,445 in
restitution to former clients.
Anthony Bernard Norris (Shelby County)
Mr. Norris’ license to practice law was
suspended by the Supreme Court for five (5)
years on October 8, 2012. Mr. Norris’ law
license was administratively suspended in
1995 for failure to comply with his annual
CLE obligations and he has been
continuously suspended since that time. In
1998, Mr. Norris assisted in the formation of
the law firm, Bruce, Norris, & Bass, PLLC,
but disassociated from the firm in 2001. In
2000, Mr. Norris began serving as vice
president and General Counsel for
Worldwide Label and Packaging, LLC. Mr.
Norris publicly held himself out as General
Counsel and engaged in the practice of law
while his license to practice law was
suspended. Mr. Norris discontinued his role
as General Counsel when he was elected
Chairman and appointed President of
Worldwide Label and Packaging, LLC, on
January 23, 2012.
Mr. Norris’ actions
violated Rules of Professional Conduct 5.5(a)
(unauthorized practice of law).

Shannon A. Jones (Crockett County)
Mr. Jones’ license to practice law was
suspended on October 18, 2012, for a period
of three years. Mr. Jones was temporarily
suspended in December, 2011, based upon
charges involving conspiracy to manufacture
and possess methamphetamine with the intent
to distribute, in violation of 21 U.S.C. § 846.
A Petition for Final Discipline was filed on
January 10, 2012.
In addition to the
suspension of his law license, Mr. Jones was
ordered to remain compliant with the terms
and requirements of his Tennessee Lawyers
Assistance Program monitoring agreement.

9

Disbarments and Suspensions

Public Censures

James Franklin Taylor (Hawkins County)

Stanley R. Barnett (continued)

On October 26, 2012, the Supreme
Court suspended Mr. Taylor’s law license
based upon his plea of guilty to a serious
crime, felony theft, and ordered the Board to
institute formal proceedings to determine the
extent of final discipline to be imposed as a
result of his conviction.

The Court determined his actions
violated Rules of Professional Conduct 1.1
(competence),
1.3 (diligence), 1.4
(communication), and 1.16 (terminating
representation).

Gary Wayne Vandever (Wilson County)

On November 5, 2012, the Supreme
Court publicly censured Mr. Clements for
violation of Rules of Professional Conduct
1.1 (competence), 1.3 (diligence), 1.4
(communication), and 8.4 (misconduct). Mr.
Clements agreed to represent a client in a
case of possible nursing home neglect but
failed to communicate with his client in a
timely manner, failed to follow through with
appropriate medical experts, withheld
information from the client and failed to take
reasonable steps to represent the client.

James W. Clements (Hamilton County)

On October 1, 2012, the Supreme
Court disbarred Mr. Vandever retroactive to
his November 24, 2010, temporary
suspension. Mr. Vandever consented to
disbarment because he could not successfully
defend himself on charges filed against him
by the Board after he was convicted of three
(3) counts of theft of property over $60,000,
due to misappropriation of funds for his own
use and benefit. Mr. Vandever’s actions
violated Rules of Professional Conduct
8.4(a), (b), (c) and (d) (misconduct).

Michael Scott Collins (Sumner County)
On November 13, 2012, Mr. Collins
was censured for entering into a
representation agreement with a client that
was vague, ambiguous, and without sufficient
clarity for the client to understand the scope
of Mr. Collins’ representation. Mr. Collins
also billed the client for work performed by a
paralegal without first obtaining the client’s
consent. These acts were in violation of Rule
1.2 (scope of representation), 1.5 (fees), and
8.4 (misconduct).

Public Censures
Stanley R. Barnett (Blount County)
On December 12, 2012, Mr. Blount
was censured for failure to timely file a
motion for a new trial after a client’s criminal
conviction and then, after his client filed a
pro se Notice of Appeal, Mr. Barnett, without
consulting the client, filed an appellate brief
which raised issues that had been waived by
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
Corder was publicly censured by the
Tennessee Supreme Court.
Ms. Corder
entered
a
Conditional
Guilty
Plea
acknowledging violation of Rules of
Professional Conduct 1.6 (terminating
representation) and 8.4 (misconduct). Ms.
Corder did not promptly withdraw after her
client testified falsely at a deposition. At a
subsequent hearing, Ms. Corder did not rely
on the false testimony but did not correct the
deposition testimony because the hearing was
unexpectedly adjourned prior to its
completion. Ms. Corder did not subsequently
withdraw from that client’s representation.

with his client, and failure to make
reasonable steps to expedite litigation after
abandoning a client’s case on appeal,
ignoring the requests of the Court of Criminal
Appeals to either file a brief or dismiss the
matter. Mr. Garrett’s actions violated Rules
of Professional Conduct 1.1 (competence),
1.3 (diligence), 1.4 (communication), 3.2
(expediting litigation), and 8.4 (d)
(misconduct).
Robin Jeffrey Gordon (Davidson County)
Mr. Gordon was publicly censured by
the Supreme Court after he employed an
attorney with a non-active Illinois law
license, not licensed in Tennessee, to work as
a paralegal in this office. The employee held
himself out to clients as an attorney, gave
detailed legal advice, issued receipts for his
services to clients noting his services as an
attorney, and provided business cards
identifying himself as an attorney at law. Mr.
Gordon billed clients for the time of the nonlicensed attorney at an unreasonable rate and
failed to ensure that the employee’s conduct
was not unauthorized practice of law. Mr.
Gordon’s actions violated Rules of
Professional Conduct 1.5 (fees) and 5.3
(responsibilities
regarding
non-lawyer
assistants).

Jami Keith Ferrell (Shelby)
Mr. Ferrell failed to comply with the
swearing-in requirements of Tenn. Sup. Ct. R.
6 in that he opened a law office in Tennessee
and launched a website promoting his legal
services prior to being sworn in on May 21,
2009. On November 1, 2012 Mr. Ferrell
received a public censure for his actions
which violated Rule of Professional Conduct
5.5(a) (unauthorized practice of law) and
8.4(a) misconduct.
Hugh Edward Garrett (Davidson County)
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
Censure on October 29, 2012, for failure to
communicate with his client, failure to
diligently represent his client’s interests,
failure to inform his client that his license to
practice law had been suspended, and failure
to issue an appropriate refund. These acts
were in violation of Rules of Professional
Conduct 1.3 (diligence), 1.4 (communication),
1.5 (fees), 1.16 (declining or terminating
representation), 8.1 (bar admission and
disciplinary matters), 8.4 (misconduct).

On October 4, 2012, Mr. Thomas was
publicly censured for failure to abide by an
order of the court requiring him to comply
with discovery requests in a civil proceeding
in which Mr. Thomas was a party. Mr.
Thomas’ actions violated Rules of
Professional Conduct 8.4 (d) and (g)
(misconduct).
John M. Wolfe, Jr. (Hamilton County)
On October 22, 2012, Mr. Wolfe
received a public censure. Mr. Wolfe settled
a civil lawsuit without his client’s
permission, gave his client $500, telling the
client it was a payment from the defendant in
the civil suit. He entered an agreed order of
dismissal and failed to provide a copy of it to
the client for over a year. By his actions, Mr.
Wolfe violated Rules of Professional
Conduct 1.2 (scope of representation), 1.4
(communication) and 8.4 (misconduct).

Lynda W. Simmons (Overton County)
At the request of her client’s daughter,
Ms. Simmons prepared a deed transferring her
client’s real property to Ms. Simmons’
husband. The client executed the deed, which
Ms. Simmons did not intend to record unless
the client was being improperly influenced. A
year later, Ms. Simmons recorded the deed.
At the request of the client, Ms. Simmons’
husband executed a deed returning the
property. Ms. Simmons also disclosed
confidential information about her client. Ms.
Simmons received a public censure on
October 22, 2012, for violation of Rules of
Professional Conduct 1.6 (confidential
information) and 1.8 (conflict of interest).

Reinstatements
Bradley H. Frakes (Davidson County)
Bradley Frakes was reinstated by
Order of the Supreme Court entered
November 27, 2012 subject to conditions
which included restitution to a former client
and a practice monitor. Mr. Frakes had been
suspended on November 21, 2011. Based on
the Hearing Panel’s recommendation, the
Court found that Mr. Frakes has
demonstrated the moral qualifications,
competency and learning in the law required

C. Leann Smith (Davidson County)
Ms. Smith was censured on December
19, 2012, after being convicted of Driving
Under the Influence, Second Offense, a
violation of Rule of Professional Conduct
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, 651652 (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 nonresident 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. 40-32101(a)?

A formal ethics opinion has been requested by a district attorney regarding T.C.A. 40-32101(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)

(b)

4

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.

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

RPC 1.6(a) provides:
(a)

A lawyer shall not reveal information relating to the representation of a client unless:
(1)
(2)
(3)

the client gives informed consent;
the disclosure is impliedly authorized in order to carry out the representation; or
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)
(2)
(3)
(4)
6

the lawyer reasonably believes that the lawyer will be able to provide competent and diligent
representation to each affected client;
the representation is not prohibited by law;
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
each affected client gives informed consent, confirmed in writing.

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

8

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.

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) 2002F-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. 40-32101(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)

(2)
12

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

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

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:

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:

5.

Not if no attorney/client relationship exists.

Yes, consistent with RPC 4.3.

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:

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:

8.

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

Yes, consistent with RPC 4.3.

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_appendixrule_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

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