I am certain many of you have forgotten but I did promise last year to offer more thoughts on potential regulatory reforms being considered by the Tennessee Supreme Court. Today is the day I make good on that promise.
If you are looking for a refresher, read here first.
Now that you are back, you know like I do that the Court’s request for comment covers seven questions. Today’s mission is explaining what I would like to see the Court do. Later, I’ll weigh in with what I predict will happen.
The first four questions the Court asks all relate to the law school experience and the bar examination.
The Court should not take any action with respect to law schools in Tennessee to change the arrangements in terms of ABA accreditation. The attack on the ABA’s role in accreditation is nothing more than right-wing politics run amok and part of a plan announced by The Heritage Foundation in July 2025. To directly answer one of its questions, the Court should conclude that there are no practicable alternatives on the question of accreditation of law schools in Tennessee.
The Court also asks if there is something less expensive than law school that would adequately prepare individuals to be lawyers in Tennessee. Law school is undoubtedly an absurdly expensive experience compared to what it cost back in the 1990s. But I do not think that trying to go to some apprenticeship or other approach to allow people to become lawyers without attending law school is a wise idea in 2026.
That does not mean that the Court should not take steps to alter the landscape for becoming licensed to practice law in Tennessee. While the Court’s fourth question does not directly address the idea of reconsidering the bar exam altogether, diploma privilege for graduates of Tennessee law schools is the alteration to the landscape that makes sense. I have frequently written about the fact that the bar examination is neither necessary nor a fair indicator of whether someone will or will not be able to competently practice law. Passing the bar examination is about being able to excel at a closed book test with a time limit restriction. As I wrote back in 2021:
Very, very little of the work of an attorney involves memorizing things and knowing answers off the top of one’s head. Success during a law school career spread out over three years is a much more reliable indicator of whether someone should be issued a law license.
I have always been good at standardized and timed tests. The fact that I also turned out to be a decent attorney is mostly a coincidence.
An add-on benefit of allowing for licensure via diploma privilege for graduates of Tennessee law schools would be to make the “value” of the sticker price for a three-year law school curriculum significantly higher in Tennessee than it currently is.
The Court has also included a question about whether it should make changes to the ability of lawyers licensed in other jurisdictions. An obvious thing that I would like to see the Court do is change the current requirement that a lawyer seeking comity admission in Tennessee must show that they have practiced law for five of the last seven years. Given the fact that comity applicants are already required to go through essentially the same character and fitness process as new admittees and also still have to take a Tennessee law course before they can receive their license, there is no actual consumer protection basis for imposing this “time in service” kind of requirement on lawyers who are already licensed in another state or D.C.
In my representation of lawyers over the years, I have also personally experienced this requirement serving as a barrier to licensure for very qualified lawyers who are not interested in having to take a bar examination to become licensed in Tennessee. Someone could have 30+ years of spotless law practice in another jurisdiction, but for any number of reasons have a gap in practice that would leave that person unable to satisfy the five out of the last seven years requirement on its face. A lawyer could have taken a few years off to spend time with their children before they are old enough to go to school or organized daycare or a lawyer could have taken a job in public service or elected office. Those are just two of the more obvious examples. While the current rule opens up the “possibility” that the Board of Law Examiners would find your other activities sufficient to satisfy this requirement, the fact that the Board of Law Examiners refuses to provide guidance in advance to lawyers about whether their application will be well received, this “possibility” is far too slender a reed for lawyers to feel comfortable moving to Tennessee to pursue.
While the Court’s fifth question only specifically inquired about whether it should make changes to the rules to make it easier for lawyers licensed in other jurisdictions to become licensed in Tennessee (comity admission), I also would like to see the Court take this opportunity to adopt a revised version of RPC 5.5 that is patterned after the version that APRL proposed during the year I served as its President. If you want more information about that change and the reasons for it, you can read about all of that here.
The Court’s sixth question regards whether to allow people without law licenses to perform some tasks that would otherwise be considered the unauthorized practice of law. Recognizing that reform in this area will also inevitably involve having to coordinate with the Legislature in our state, I would like to see the Court push for one version or another of the kinds of initiatives that have been established in other jurisdictions. That could include something like the limited licensure legal technicians (LLTs) [and other paraprofessional licensing endeavors] that have been implemented in places like Oregon and Washington or programs such as court navigators that have been pursued in New York. Likely the best path that the Tennessee Supreme Court could take, however, is to implement something modeled on what Alaska has done with its Community Justice Worker program.
Finally, the Court has also asked whether it should make any changes with respect to the ethical rules that prevent lawyers from sharing attorney fees with people who are not lawyers or that prevent people who are not lawyers from having ownership interests in law firms or both.
I would like to see the Court implement changes to the ethics rules in both respects.
The restrictions on fee sharing by lawyers with regular people bear very little relevance for clients other than the fact that they are detrimental to them in the end. Clients ultimately care about how much they are paying for the representation, not what lawyers do with the fees after they are paid. There have been examples of concepts in the not-too-distant past where companies have built platforms to match attorneys and clients on matters at price points agreeable to each. Those companies were forced out of business not because consumers and attorneys were not willing to use their product but because the ethics rules prohibiting fee sharing were wielded to prohibit lawyers from participating without putting their license at risk thereby driving those companies out of business. That outcome did not “protect” consumers of legal services at all.
I have written quite a bit in the past about the questionable genesis of the ethics rules prohibiting lawyer from working in a corporate form owned by people other than lawyers, as well as the questionable nature of the idea that such prohibitions are beneficial to consumers or necessary to make sure lawyers maintain their independent professional judgment.
There are law firms in existence today of such size that they are multi-billion dollar businesses. We also allow lawyers to put themselves at risk of outside economic pressure through debt, as they are free to take out lines of credit in amounts of whatever size their bank will allow. But we prohibit equity, and we claim the reason is that someone not a lawyer with an equity stake will be able to undermine how the lawyer represents clients and wields her independent professional judgment.
There are, of course, ways for the Court to create additional layers of protection through imposing direct, or indirect, requirements that anyone involved in the ownership of a law firm must agree to be bound by the same rules of professional conduct as are lawyer owners.
One thing I did not mention that has changed since my prior post linked back at the top, the deadline for public comment has been extended to April 30, 2026. So, if you want to send in a comment, there is still time and you can do so simply by emailing to appellatecourtclerk@tncourts.gov.
This post will be my comment.