Tennessee transparency update

Recently I wrote a bit about the latest Formal Ethics Opinion adopted in Tennessee including a bit of additional content focused on the enactment of this opinion as the maiden voyage of the new process involving the seeking of public comment on the FEO in draft form. If you missed those, you might want to read the two links above first in order to get up to speed.

One looming question was whether the BPR was going to be making the public comments it received before adopting the opinion actually public.

I learned today that the Board has addressed that question formally by adding a mechanism for doing so as part of its process and has posted the comments that were received regarding this particular proposed FEO here.

Having had the chance to read them, it did turn out that the only public comment received that criticized the draft opinion was the letter prepared by my colleagues. They also appear to be the only lawyers focused on the defense of products cases who submitted public comments at all. Many of the eight other comments received appear to have been submitted by plaintiffs’ lawyers.

The comments make for interesting reading as it appears that a recurring theme contained therein is how the Board got the answer correct from a public policy perspective. Making public policy, of course, is not exactly the role of the Board when it comes to issuing formal ethics opinions. At least one of the comments manages to heighten the point with respect to the conflicts presented by the interest of the lawyer and the client in ways that are not exactly addressed in the FEO. Not many of the comments make any real effort to address how it would be that destruction of the product would amount to a restriction on the lawyer’s right to practice.

Nevertheless, it is still heartening to know that (1) the Board’s approach to this new policy will include making public comments available publicly; and (2) this was not a situation where the Board received a significant amount of negative feedback and moved forward despite that fact.

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