Tennessee Supreme Court Adopts Changes to Lawyer Ethics Rules

NASHVILLE, Oct. 1, 2010 — A new emphasis on the responsibility of prosecutors when they learn about wrongful convictions is just one of several changes in lawyer ethics rules adopted Wednesday by the Tennessee Supreme Court.

The new provision, advocated by the Tennessee Bar Association and joined in by the Tennessee District Attorneys General Conference, requires prosecutors who learn of "credible evidence" that a defendant has been wrongly convicted to investigate the situation in their district or if the conviction is in another jurisdiction, refer it to the prosecutor for that jurisdiction. In supporting this change, the District Attorneys General Conference commented, "These amendments will lead to a greater understanding of the unique role of prosecutors to seek the truth over and above winning a case."

"Lawyers, as members of a learned profession, have a responsibility to society to assist the courts in enforcement of the lawyer ethics rules by providing clear, definitive standards for lawyer conduct," TBA President Sam D. Elliott of Chattanooga said. "The adoption of these rules by the Tennessee Supreme Court is a culmination of a six-year effort by the Tennessee Bar Association to refine the rules to meet this goal. The court's adoption of the vast majority of the TBA proposals is a confirmation of the great work that our Ethics & Professional Responsibility Committee has done."

Other rules changes that will be significant to attorney-client relations include:

• Rules clarifying lawyers' handling of retainer and advance fees, expenses and non-refundable fees.
• A new rule defining the obligations of confidentiality and loyalty to prospective clients.
• A new provision related to the handling of inadvertently disclosed confidential material received by a lawyer. This change is especially important in the age of instant communications where an email or text message can have immediate repercussions. The new rule provides that the material remains confidential, that the lawyer disregard the communication and contact the sending party about how to dispose of the matter.
• Rules to clarify the duty of loyalty that lawyers owe the clients by refining the basic conflict of interest rule and clarifying its application in several circumstances. One such clarification of note is the new rule's treatment of explicit clarification that lawyers' personal relationships with clients involve issues about conflict of interest, impairment of judgment of both the lawyer and the client and the preservation of the attorney-client privilege.
• Rules concerning the proper response of a lawyer to illegal actions by an organizational client, and the creation of an additional exception to client confidentiality preventing client fraud linked to the use of a lawyer's services.

The TBA committee was chaired by Memphis lawyer Lucian Pera (901-524-5278) when the project started and is now chaired by Memphis lawyer Brian Faughnan (901-524-5280). The District Attorneys General Conference was represented during the oral argument by John Gill, who serves as special counsel to the Knoxville District Attorney General's Office (865-215-2515) and who serves as a member of the TBA committee.