TENNESSEE RULES OF PROFESSIONAL CONDUCT
RULE 1.7: CONFLICT OF INTEREST: CURRENT CLIENTS
(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.
COMMENT: Sexual Relations Between Lawyer and Client
[12] The relationship between lawyer and client is a fiduciary one in which the lawyer
occupies the highest position of trust and confidence. Because of this fiduciary duty to clients,
combining a professional relationship with any intimate personal relationship may raise concerns
about conflict of interest, impairment of the judgment of both lawyer and client, and preservation
of attorney-client privilege. These concerns may be particularly acute when a lawyer has a
sexual relationship with a client. Such a relationship may create a conflict of interest under
paragraph (a)(2) or violate other disciplinary rules, and it generally is imprudent even in the
absence of an actual violation of these Rules.
[12a] Especially when the client is an individual, the client’s dependence on the
lawyer’s knowledge of the law is likely to make the relationship between the lawyer and client
unequal. A sexual relationship between lawyer and client can involve unfair exploitation of the
lawyer’s fiduciary role and thereby violate the lawyer’s basic obligation not to use the trust of the
client to the client’s disadvantage. In addition, such a relationship presents a significant risk that
the lawyer’s emotional involvement will impair the lawyer’s independent professional judgment.
Moreover, a blurred line between the professional and personal relationships may make it
difficult to predict the extent to which communications will be protected by the attorney-client
privilege, because communications are protected by privilege only when they are imparted in the
context of the client-lawyer relationship. The client’s own emotional involvement may make it
impossible for the client to give informed consent to these risks.
[12b] Sexual relationships with the representative of an organizational client may not
present the same questions of inherent inequality as the relationship with an individual client.
Nonetheless, impairment of the lawyer’s independent professional judgment and protection of
the attorney-client privilege are still of concern, particularly if outside counsel has a sexual
relationship with a representative of the organization who supervises, directs, or regularly
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consults with an outside lawyer concerning the organization’s legal matters. An in-house
employee in an intimate personal relationship with outside counsel may not be able to assess and
waive any conflict of interest for the organization because of the employee’s personal
involvement, and another representative of the organization may be required to determine
whether to give informed consent to a waiver. The lawyer should consider not only the
disciplinary rules but also the organization’s personnel policies regarding sexual relationships
(for example, prohibiting such relationships between supervisors and subordinates).
RULE 1.2: SCOPE OF REPRESENTATION AND ALLOCATION OF AUTHORITY
BETWEEN CLIENT AND LAWYER
(b)
A lawyer’s representation of a client, including representation by appointment,
does not constitute an endorsement of the client’s political, economic, social, or moral views or
activities.
(d)
A lawyer shall not counsel a client to engage, or assist a client, in conduct that the
lawyer knows or reasonably should know is criminal or fraudulent, but a lawyer may discuss the
legal consequences of any proposed course of conduct with a client and may counsel or assist a
client to make a good faith effort to determine the validity, scope, meaning, or application of the
law.
RULE 4.1: TRUTHFULNESS IN STATEMENTS TO OTHERS
(b)
If, in the course of representing a client in a nonadjudicative matter, a lawyer
knows that the client intends to perpetrate a crime or fraud, the lawyer shall promptly advise the
client to refrain from doing so and shall discuss with the client the consequences of the client’s
conduct. If after such discussion, the lawyer knows that the client still intends to engage in the
wrongful conduct, the lawyer shall:
(1)
withdraw from the representation of the client in the matter; and
(2)
give notice of the withdrawal to any person who the lawyer knows is
aware of the lawyer’s representation of the client in the matter and whose financial or
property interests are likely to be injured by the client’s criminal or fraudulent conduct.
The lawyer shall also give notice to any such person of the lawyer’s disaffirmance of any
written statements, opinions, or other material prepared by the lawyer on behalf of the
client and which the lawyer reasonably believes may be used by the client in furtherance
of the crime or fraud.
RULE 1.5: FEES
(d)
A lawyer shall not enter into an arrangement for, charge, or collect:
(2)
a contingent fee for representing a defendant in a criminal case.
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RULE 1.8: CONFLICT OF INTEREST: CURRENT CLIENTS: SPECIFIC RULES
(c)
A lawyer shall not solicit any substantial gift from a client to the lawyer or a
person related to the lawyer, including a testamentary gift, or prepare on behalf of a client an
instrument giving the lawyer or a person related to the lawyer any substantial gift, unless the
lawyer or other recipient of the gift is related to the client. For purposes of this paragraph,
related persons include a spouse, child, grandchild, parent, grandparent or other relative or
individual with whom the lawyer or the client maintains a close, familial relationship.
COMMENT: Gifts to Lawyers
[6]
A lawyer may accept a gift from a client, if the transaction meets general
standards of fairness. For example, a simple gift such as a present given at a holiday or as a
token of appreciation is permitted. If a client offers the lawyer a more substantial gift, paragraph
(c) does not prohibit the lawyer from accepting it, although such a gift may be voidable by the
client under the doctrine of undue influence, which treats client gifts as presumptively
fraudulent. In any event, due to concerns about overreaching and imposition on clients, a lawyer
may not suggest that a substantial gift be made to the lawyer or for the lawyer’s benefit, except
where the lawyer is related to the client as set forth in paragraph (c). This Rule does not prohibit
a lawyer from soliciting a gift or financial contribution from a client to a civic or charitable
organization, so long as the lawyer or a person related to the lawyer does not receive any
personal benefit from the gift or contribution.
[7]
If effectuation of a substantial gift requires preparing a legal instrument, such as a
will or conveyance, the client should have the detached advice that another lawyer can provide.
The sole exception to this Rule is where the client is a relative of the donee.
RULE 1.8: CONFLICT OF INTEREST: CURRENT CLIENTS: SPECIFIC RULES
(d)
Prior to the conclusion of the representation of a client, a lawyer shall not make or
negotiate an agreement giving the lawyer literary or media rights to a portrayal or account based
in substantial part on information relating to the representation.
Literary Rights
[9]
An agreement by which a lawyer acquires literary or media rights concerning the
conduct of the representation creates a conflict between the interests of the client and the
personal interests of the lawyer. Measures suitable in the representation of the client may detract
from the publication value of an account of the representation. Paragraph (d) does not prohibit a
lawyer representing a client in a transaction concerning literary property from agreeing that the
lawyer’s fee shall consist of a share in ownership in the property, if the arrangement conforms to
RPC 1.5 and paragraphs (a) and (i) of this Rule.
RULE 1.9: DUTIES TO FORMER CLIENTS
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(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]
Paragraph (c) provides that information acquired by the lawyer in the course of
representing a client may not subsequently be revealed by the lawyer or used by the lawyer to the
disadvantage of the client. However, the fact that a lawyer has once served a client does not
preclude the lawyer from using or disclosing generally known information about that client when
later representing another client.
[8a] Whether information is generally known depends on all circumstances relevant in
obtaining the information. Information contained in books or records in public libraries,
public-record depositaries, such as government offices, or in publicly accessible electronic-data
storage is generally known if the particular information is obtainable through publicly available
indexes and similar methods of access. Information is not generally known when a person
interested in knowing the information could obtain it only by means of special knowledge or
substantial difficulty or expense. Special knowledge includes information about the whereabouts
or identity of a person or other source from which the information can be acquired, if those facts
are not themselves generally known. A lawyer may not, however, justify adverse use or
disclosure of client information simply because the information has become known to third
persons, if it is not otherwise generally known. Even if permitted to disclose information
relating to a former client’s representation, a lawyer should not do so unnecessarily.
RULE 3.3: CANDOR TOWARD THE TRIBUNAL
(a)
A lawyer shall not knowingly:
(1)
make a false statement of fact or law to a tribunal; or
(2)
fail to disclose to the tribunal legal authority in the controlling jurisdiction
known to the lawyer to be directly adverse to the position of the client and not disclosed
by opposing counsel
Misleading Legal Argument
[4]
Legal argument based on a knowingly false representation of law constitutes
dishonesty toward the tribunal. A lawyer is not required to make a disinterested exposition of
the law, but must recognize the existence of pertinent legal authorities. Furthermore, as stated in
paragraph (a)(2), an advocate has a duty to disclose directly adverse authority in the controlling
jurisdiction that has not been disclosed by the opposing party. The underlying concept is that
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legal argument is a discussion seeking to determine the legal premises properly applicable to the
case.
RULE 3.2: EXPEDITING LITIGATION
A lawyer shall make reasonable efforts to expedite litigation.
Comment
[1]
Dilatory practices bring the administration of justice into disrepute. Although
there will be occasions when a lawyer may properly seek a postponement for personal
reasons, such as illness or a conflict with an important family engagement, it is not proper
for a lawyer to routinely fail to expedite litigation solely for the convenience of the
advocates. Nor will a failure to expedite be reasonable if done for the purpose of frustrating an
opposing party’s attempt to obtain rightful redress or repose. It is not a justification that similar
conduct is often tolerated by the bench and bar. The question is whether a competent lawyer
acting in good faith would regard the course of action as having some substantial purpose other
than delay. For purposes of this Rule, realizing financial or other benefit from otherwise
improper delay in litigation is not a legitimate interest of the client.
RULE 3.7: LAWYER AS WITNESS
(a)
A lawyer shall not act as an advocate at a trial in which the lawyer is likely to be a
necessary witness unless:
(1)
(2)
the case; or
(3)
the testimony relates to an uncontested issue;
the testimony relates to the nature and value of legal services rendered in
disqualification of the lawyer would work substantial hardship on the
client.
RULE 4.4: RESPECT FOR THE RIGHTS OF THIRD PERSONS
(a)
In representing a client, a lawyer shall not:
(1)
use means that have no substantial purpose other than to embarrass, delay,
or burden a third person or knowingly use methods of obtaining evidence that violate the
legal rights of such a person; or
(2)
threaten to present a criminal or lawyer disciplinary charge for the purpose
of obtaining an advantage in a civil matter.
RULE 5.2: RESPONSIBILITIES OF A SUBORDINATE LAWYER
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(a)
A lawyer is bound by the Rules of Professional Conduct notwithstanding that the
lawyer acted at the direction of another person.
(b)
A subordinate lawyer does not violate the Rules of Professional Conduct if that
lawyer acts in accordance with a supervisory lawyer’s reasonable resolution of an arguable
question of professional duty.
Comment
[1]
Although a lawyer is not relieved of responsibility for a violation by the fact that
the lawyer acted at the direction of a supervisor, that fact may be relevant in determining whether
a lawyer had the knowledge required to render conduct a violation of the Rules. For example, if
a subordinate filed a frivolous pleading at the direction of a supervisor, the subordinate would
not be guilty of a professional violation unless the subordinate knew of the document’s frivolous
character.
[2]
When lawyers in a supervisor-subordinate relationship encounter a matter
involving professional judgment as to ethical duty, the supervisor may assume responsibility for
making the judgment. Otherwise a consistent course of action or position could not be taken. If
the question can reasonably be answered only one way, the duty of both lawyers is clear, and
they are equally responsible for fulfilling it. However, if the question is reasonably arguable,
someone has to decide upon the course of action. That authority ordinarily reposes in the
subordinate lawyer’s supervisor, in another lawyer who has primary responsibility for the
representation, or in a lawyer who has authority to resolve such matters on behalf of the firm,
and a subordinate may be guided accordingly. For example, if a question arises whether the
interests of two clients conflict under RPC 1.7, the supervisor’s reasonable resolution of the
question should protect the subordinate professionally if the resolution is subsequently
challenged.
RULE 7.1: COMMUNICATIONS CONCERNING A LAWYER’S SERVICES
A lawyer shall not make a false or misleading communication about the lawyer or the
lawyer’s services. A communication is false or misleading if it contains a material
misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a
whole not materially misleading.
Comment
[1]
This Rule governs all communications about a lawyer’s services, including
advertising permitted by RPC 7.2 and solicitations directed to specific recipients permitted by
RPC 7.3. Whatever means are used to make known a lawyer’s services, statements about them
must be truthful.
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[5]
A lawyer may advertise the fact that a subjective characterization or description
has been conferred upon him or her by an organization as long as the organization has made
inquiry into the lawyer’s fitness and does not issue or confer such designations indiscriminately
or for a price.
RULE 7.4: COMMUNICATION OF FIELDS OF PRACTICE AND SPECIALIZATION
(b)
Except as permitted by paragraphs (c) and (d), a lawyer shall not state that the
lawyer is a specialist, specializes, or is certified or recognized as a specialist in a particular field
of law.
(c)
A lawyer admitted to engage in patent practice before the United States Patent
and Trademark Office may use the designation “Patent Attorney” or a substantially similar
designation.
(d)
A lawyer who has been certified as a specialist in a field of law by the Tennessee
Commission on Continuing Legal Education and Specialization may state that the lawyer “is
certified as a specialist in [field of law] by the Tennessee Commission on C.L.E. and
Specialization.” A lawyer so certified may also state that the lawyer is certified as a specialist in
that field of law by an organization recognized or accredited by the Tennessee Commission on
Continuing Legal Education and Specialization as complying with its requirements, provided the
statement is made in the following format: “[Lawyer] is certified as a specialist in [field of law]
by [organization]."
RULE 7.5: FIRM NAMES AND LETTERHEADS
(a)
A lawyer shall not use a firm name, letterhead, or other professional designation
that violates RPC 7.1. A trade name may be used by a lawyer in private practice if it does not
imply a connection with a government agency or with a public or charitable legal services
organization and is not otherwise in violation of RPC 7.1.
RULE 8.4: MISCONDUCT
It is professional misconduct for a lawyer to:
(e)
state or imply an ability to influence a tribunal or a governmental agency or
official on grounds unrelated to the merits of, or the procedures governing, the matter under
consideration;
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RULE 1.0: TERMINOLOGY
(f) "Knowingly," "known," or "knows" denotes actual awareness of the fact in question. A
person's knowledge may be inferred from circumstances.
RULE 1.4: COMMUNICATION
(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.
Comment
[4]
A lawyer’s regular communication with clients will minimize the occasions on
which a client will need to request information concerning the representation. When a client
makes a reasonable request for information, however, paragraph (a)(4) requires prompt
compliance with the request, or if a prompt response is not feasible, that the lawyer, or a member
of the lawyer’s staff, acknowledge receipt of the request and advise the client when a response
may be expected. Client communications, including telephone calls, should be promptly
returned or acknowledged.
RULE 3.5: IMPARTIALITY AND DECORUM OF THE TRIBUNAL
A lawyer shall not:
(a) seek to influence a judge, juror, prospective juror, or other official by means prohibited by
law;
(b) communicate ex parte with such a person during the proceeding unless authorized to do so
by law or court order;
(e) engage in conduct intended to disrupt a tribunal.
RULE 3.5: IMPARTIALITY AND DECORUM OF THE TRIBUNAL
A lawyer shall not:
(a)
seek to influence a judge, juror, prospective juror, or other official by means
prohibited by law;
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(b)
communicate ex parte with such a person during the proceeding unless authorized
to do so by law or court order;
(e)
engage in conduct intended to disrupt a tribunal
Comment
[2]
During a proceeding a lawyer may not communicate ex parte with persons serving
in an official capacity in the proceeding, such as judges, masters or jurors, unless authorized to
do so by law or court order. Unless such a communication is otherwise prohibited by law or
court order, paragraph (b) of this Rule would not prohibit a lawyer from communicating with a
judge on the merits of the cause in writing if the lawyer promptly delivers a copy of the writing
to opposing counsel and to parties who are not represented by counsel because that would not be
an ex parte communication.
[5]
The advocate’s function is to present evidence and argument so that the cause
may be decided according to law. Refraining from abusive or obstreperous conduct is a
corollary of the advocate’s right to speak on behalf of litigants. A lawyer may stand firm against
abuse by a judge, but should avoid reciprocation; the judge’s default is no justification for similar
dereliction by an advocate. An advocate can present the cause, protect the record for subsequent
review, and preserve professional integrity by patient firmness no less effectively than by
belligerence or theatrics.
RULE 5.3: RESPONSIBILITIES REGARDING NONLAWYER ASSISTANTS
With respect to a nonlawyer employed or retained by or associated with a 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:
(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.
RULE 8.1: BAR ADMISSION AND DISCIPLINARY MATTERS
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An applicant for admission to the bar, or a lawyer in connection with a bar admission
application or in connection with a disciplinary matter, shall not:
(a)
knowingly make a false statement of material fact; or
(b)
fail to disclose a fact necessary to correct a misapprehension known by the person
to have arisen in the matter, or knowingly fail to respond to a lawful demand for information
from an admissions or disciplinary authority, except that this Rule does not require disclosure of
information otherwise protected by RPC 1.6.
RULE 8.3: REPORTING PROFESSIONAL MISCONDUCT
(a)
A lawyer who knows that another lawyer has committed a violation of the Rules
of Professional Conduct that raises a substantial question as to that lawyer’s honesty,
trustworthiness, or fitness as a lawyer in other respects, shall inform the Disciplinary Counsel of
the Board of Professional Responsibility.
(c)
This Rule does not require disclosure of information otherwise protected by RPC
1.6 or information gained by a lawyer or judge while serving as a member of a lawyer assistance
program approved by the Supreme Court of Tennessee or by the Board of Professional
Responsibility.
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