I’ve written once before about the dynamics for disciplinary defense lawyers in trying to work through precedent based on limited information when a variety of disparate conduct by lawyers all results in the same level of discipline.
In that post, the variety of discipline was public censure. And you won’t be shocked to hear that public censure is the topic again. If July is any indication, 2023 is the summer of public censures in Tennessee. Between July 7 and July 26, seven different lawyers practicing in seven different Tennessee counties were hit with public censures.
My purpose today, though, isn’t to repeat myself from the earlier post or even to really try to formulate any notion that any of these don’t involve the right outcome being meted out. (Though I will mention simply for purposes of completeness that the prior post from last year was written in the middle of the summer as well.)
Instead, this “streak” of 7 public censures in July 2023 in my home state caught my attention because it involves at least one common theme that many disciplinary defense lawyers have been thinking is lurking out there now that we’ve come out the other side of the pandemic and because one of them involves conduct unrelated to the practice of law that appears to be a unique instance of discipline at least from the experience of my career.
Three of the public censures involved variations on a relatively consistent theme. Litigation matters where there were levels of delay in the process that might have been much worse than usual because they spanned the pandemic and the court closures and court delays that were pretty universal. But also, where there were layers of poor communication between the lawyer and the client. In one of the censures, the story was a bit different but the overall dynamic of the role that the weirdness of pandemic era life still seems likely to have played a role as a lawyer who also served active duty in the military convinced himself that he had filed to put his license into a military exempt status in March 2020 but hadn’t and then ignored notices that he needed to pay his registration fee on his license and got suspended in March 2021. He then proceeded to practice law for a year until March 2022 when he realized he was suspended. For that year of unauthorized practice, he now has been publicly censured.
Now I imagine there are even more instances of versions of those stories where unhappy clients have complained about pandemic era delays that end up being resolved by dismissals where the lawyers have not played any role in exacerbating the delay or have not truly dropped the ball on communication efforts, it does seem clear that this flavor of complaint is one that will continue to catch up to lawyers for some time to come.
The case that appears to be unique (at least in my experience) involves a lawyer who appears to have gotten on to the BPR’s radar screen for what sounds like a very minor instance of disconnect between attorney and client and that might not have ever resulted in even private discipline ended up being part of a public censure because, during the Board’s investigation, they learned that the lawyer used to have a You Tube channel that showed videos of the lawyer smoking marijuana while identifying herself as an attorney in those videos.
Now I could spend some time opining about the absurdity of Tennessee’s marijuana laws, but I won’t. Because no matter how absurd they are it is incredibly bad judgment to post videos of yourself smoking pot in a state that still criminalizes the practice if you are a lawyer. That is the part though that I mean when I say that the matter seems unique.
What is not unique and is worth spending some time on is this reminder to all of the Tennessee lawyers who might read this: the investigation stage of a disciplinary complaint is pound-for-pound the most important portion, and the one where having counsel representing you can be most valuable.
Lawyers facing a disciplinary investigation cannot take for granted that disciplinary counsel will simply limit themselves to asking questions or seeking information that is only directly related to what someone is focused on in their complaint about you. What you say on your behalf in your initial response to a disciplinary complaint (and what you tell your lawyer during the process of putting that response together so that they can know what landmines might be out there to try to keep from unearthing) can go a long way to making sure that the investigation does not expand in scope.