Friday follow up: undo the good and just leave the bad.

So, not quite six weeks ago, I wrote about a development from Tennessee that was something of a mixed bag.

Our Board of Professional Responsibility put out a proposed Formal Ethics Opinion for public comment that, in my opinion, was not a good opinion fraught with quite a number of significant flaws. (If you missed that post, you can check it out here.)

The substance of the draft was the bad part of the bag. But, for the first time under a new policy, the Board actually put a draft opinion out publicly for comment prior to formally adopting it. That, of course, was the good stuff in the bag.

Presumably, the Board’s rationale for putting the draft FEO out for comment was to give itself an opportunity to receive feedback before making a final decision about whether to issue the opinion as-is or at all or in some revised form. As the prior post indicated, the deadline for the submission of public comments was April 10.

Cut to earlier this week on April 23. That was the date that the Board put out the Spring 2019 edition of Board Notes. It is a semi-annual publication which is a collection of a lot of things, including reports on discipline, statistics about the handling and processing of cases, articles about rule changes or other items of interest, and occasionally formal ethics opinions that have been adopted since the prior issue of Board Notes.

But while Board Notes is a valuable resource, it is something that most folks only receive by way of an email and that a significant number of people pay no attention to whatsoever. (So, in a lot of ways, it is like this blog, except for the receiving it by email part.)

Without any fanfare or explanation, Formal Ethics Opinion 2019-F-167 was included in Board Notes. That was how Tennessee lawyers had the chance to first learn that the draft FEO put out for public comment had now been adopted. (Actually, if you received but have deleted the email, or if as is pretty statistically likely you are not a Tennessee lawyer, you can always go here at the Board’s website to read issues of Board Notes.)

If you are a diligent reader of all of the links, you will see that Formal Ethics Opinion 2019-F-167 has been adopted without change from its draft form.

Now, perhaps the Board received overwhelmingly positive feedback from the bar on the draft opinion and so felt confident that it got it right. Or maybe it received very little feedback about the draft opinion and decided it probably got it right and no one really cared either way.

At this point, it is impossible to know because there is nowhere on the BPR website or anywhere else that the bar (or the public) can go to presently to see what public comments were received about the opinion.

I happen to know that the Board received at least one comment – a negative one – and that it came from lawyers who actually do focus their practice on defending products liability cases because they shared a copy of the comment they sent in with me. The substance of their concerns made me feel a lot better about the thoughts I shared because they were able to more cogently point out the nature of the evidence that actually does matter in a products liability case. (They also happened to be lawyers who practice in other offices of my law firm, which I mention for the purposes of transparency.)

Perhaps, ultimately, the Board will make the comments received on the draft FEO publicly available somewhere. I hope so. Otherwise, if there won’t be transparency in terms of the bar’s reaction to proposed opinions, then there really isn’t much positive about even putting them out for comment in the first place.

In fact, there is real institutional downside for the Board in leaving members of the bar wondering whether the Board does not actually care about evaluating the feedback it receives on its proposed opinions.

If the Board isn’t going to make the comments it receives available for the bar to read, then it likely should not go to the trouble of putting drafts out for comment in the first place.

If the Board simply intends to plow forward with draft opinions regardless of perceived flaws, then it definitely should just scrap the whole endeavor.

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