Two ethics rule revisions on the way … one good, one not-so-much

After putting proposals out for public comment in 2014, the Tennessee Supreme Court in the span of a week in February 2015 ordered changes to Tennessee’s lawyer ethics rules that will each take effect on May 1, 2015.  For those lawyers who favor a robust view of lawyer speech rights, the two orders present a mixed bag.

First, on February 12, 2015, the Court adopted a revision to RPC 7.3(b)(3) that will extend the 30-day prohibition on targeted written solicitations that currently seek to protect victims of disasters and certain types of personal injury cases to apply in divorce and legal separation cases.  The Court adopted this amendment in the face of strong opposition from the Tennessee Bar Association.  The TBA filed a comment that articulated the serious First Amendment concerns but also pointed out that the existing 30-day prohibition seeks to protect the recipients of written solicitation letters whereas this change is not at all concerned with protection of the individual who would receive the solicitation letter.  Whether a family law practitioner will challenge this rule on First Amendment grounds remains to be seen.  You can find a copy of the Court’s order here.

Second, on February 19, 2015, the Court has clarified, via a revision to RPC 3.5(c), cmt. [4], that Tennessee lawyers remain permitted generally to ask questions of jurors after they have rendered their verdict and been discharged from service.  This clarification became necessary because revisions to our ethics rules in 2011 — designed to track the language of the ABA Model Rules on this point, created questions over whether trial courts could now routinely put post-verdict questioning of jurors off-limits through local rules or standing orders.  Recognizing, among other things, that post-discharge questioning of jurors can be the only viable way for lawyers to unearth juror misconduct, the Court added new language in Comment [4] reiterating that treatment of this issue should remain consistent with the approach articulated by a 1991 decision of the Tennessee Supreme Court.  A copy of this order can be found here.

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