Update – Caveat requestor is where we will stay in TN.

I’ve previously written about a pending rule revision in Tennessee that the BPR initiated and to which the TBA responded here.  Last week the Tennessee Supreme Court entered this order and adopted essentially the language that the BPR was seeking and did not incorporate the suggestions the TBA made that would have actually provided the protection that the rule proposal was supposedly seeking.

So, effective as of October 6, 2015, the language of the rule governing the issuance of informal ethics opinions by disciplinary counsel to lawyers in response to oral or written requests will read as follows:

(c)  An advisory ethics opinion may be issued by Disciplinary Counsel when there is readily available precedent.  The advisory opinion shall not be binding on the Board and shall offer no security to the person requesting it.  All requests for advisory opinions, oral and written, and any response by Disciplinary Counsel shall be confidential and shall not be public records or open for public inspection except as subject to waiver by the requesting attorney or as otherwise provided in Section 32.

Whether this has accomplished anything of any value, in my opinion, remains to be seen, but I am doubtful.

If the concern and problem was only a public records law issue, then the Court’s ruling has fixed that situation.  If the concern though, as the BPR’s own filings in support of the revision indicated was in the mix, was that lawyers seeking guidance in the form of informal ethics opinions from disciplinary counsel may be at risk of not complying with RPC 1.6(b)(4) (the exception to the confidentiality rule that permits lawyers to disclose client confidential information to get advice on their own obligations under the rules) because the communication is not one that is protected as privileged when it is made, then this revision really does nothing to address that concern.  Comment [9] to our RPC 1.6(b)(4) still indicates that disclosure can only be made if the disclosing lawyer makes sure it will be protected as attorney-client privilege.  For lawyers like me, who need lawyers to be willing to pay to retain private counsel in order to make sure that the advice that they receive complies with the rules, the fact that the Court didn’t go down the path offered by the TBA is, selfishly, a good outcome.  But, for lawyers who opt to seek out free advice from disciplinary counsel, it means that they really need to be careful and see if they cannot manage to seek and obtain the advice without getting into much detail beyond generalities or, at least, find a way to use pseudonyms for the folks involved to avoid disclosing any RPC 1.6 information.

But what is really the most disappointing development is that, to the extent this rule proposal opened up an opportunity for the BPR to openly embrace, or for our Court to require, the BPR to leave the advice-giving function to its Ethics Officer and not other disciplinary counsel who also pursue investigations or litigate disciplinary cases, that opportunity was spurned.  And that means that lawyers posing requests to disciplinary counsel under Rule 9, Section 5.4(c) really do need to be wary because there doesn’t seem to me to be any protection in the rule, as revised, against the information disclosed by the lawyer in seeking the informal opinion to be freely disseminated among disciplinary counsel at the BPR and using such information against that lawyer in a subsequent disciplinary proceeding (including one that could be sparked by the very inquiry itself).

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