The Tennessean has an article today about a disciplinary complaint filed by the Tennessee Association of Criminal Defense Lawyers against a General Sessions judge in Nashville. (General Sessions court in Tennessee is our small claims court, on the civil side, and on the criminal side of things tends to be a misdemeanor court.) TACDL says that it is unprecedented for its organization to have done something like this against a sitting judge, and I have no reason to doubt that’s true. You can read TACDL’s letter submitting the complaint here. This is a fascinating story, and TACDL does a good job in the complaint in laying out the judicial ethics rules that appear to be implicated. You can read the source material for more details about the contents of the email communication from the judge to the prosecutors that prompted the complaint, but I’d like to use this as an opportunity to make two points about Tennessee’s ethics rules and when they can actually require a lawyer to file a disciplinary complaint.
First, far too many lawyers who may remember that RPC 8.3(a) requires a lawyer in certain situations to file a complaint about another lawyer forget that our RPC 8.3(b) actually imposes a requirement for lawyers to have to file a disciplinary complaint in some circumstances against a judge. RPC 8.3(b) imposes that requirement if the lawyer “knows that a judge has committed a violation of applicable rules of judicial conduct that raises a substantial question as to the judge’s fitness for office.”
Second, much more frequently overlooked even than the existence of RPC 8.3(b) is the impact of RPC 8.3(c) and Comment [2] on any such obligation of a lawyer. Much more frequently overlooked even than the existence of RPC 8.3(b) is the meaning and impact of RPC 8.3(c) and Comment [2]. What makes this TACDL complaint really catch my attention is that the situation that led to this complaint is one of the few in which the exception to mandatory reporting provided by RPC 8.3(c) wouldn’t come into play.
RPC 8.3(c) and Comment [2] work together to explain that if a lawyer would have to disclose RPC 1.6 confidential information in order to make the disciplinary complaint, then the lawyer is not ethically required to do under RPC 8.3(a) or (b). Because Tennessee’s RPC 1.6, like so many others, makes all information related to the representation of a client confidential, the exception built into RPC 8.3(c) can nearly always be used to swallow the rest of the rule’s requirement for reporting. Comment [2] does exhort lawyers to “encourage a client to consent to disclosure where prosecution [of the disciplinary complaint] would not substantially prejudice the client’s interests” but the rule does not have any teeth in the event a lawyer decides not to encourage their client to do so.
Most of the time for lawyers, their only knowledge of an ethics offense by a judge (and for that matter of another lawyer) will come about in connection with representing a particular client. As such, a lawyer trying to decide if they have an ethical obligation to file a complaint will almost always be a situation in which the lawyer would have to disclose some information about the representation of that client to make the report and, thus, can sidestep any ethical obligation to do so if they do not get their client’s consent.
But here the existence of this email sent by the judge appears to have been learned by other lawyers not in connection with representing a particular client but learning about it through media reports. Thus, while the complaint itself does not say so, this is one of those rare instances in which a strong argument could be made that the lawyers for TACDL who signed off on the making of this complaint could actually be considered to have been ethically required to do so or risk committing their own violation of RPC 8.3(b). That, more than anything, is what makes the situation truly unusual.