. Legal ethics

Two Tennessee updates that aren’t really just Tennessee updates.

Welcome to 2021 or, as some astute observers are calling it, 2020 goes to extra time.

In an effort to feel a marginal amount of normality, I wanted to weave together two topics that might ostensibly be treated only as updates relevant to Tennessee lawyers but that actually involve developments of as much, if not more, importance outside of my own state.

Sound fun? No? Well, what if I told you that they involve the world of prosecutors on one hand and the world of lawyer advertising on the other?

Sound fun? No? Well, we’re still doing it.

Some may recall that a couple of years ago now, the Tennessee Supreme Court issued an order vacating a Formal Ethics Opinion. It was, I believe, only the second time in history that occurred in Tennessee, and it involved a Formal Ethics Opinion the Board of Professional Responsibility had issued regarding the duties of a prosecutor under RPC 3.8(d). For those who want to fully refresh your recollection of the event, you can do so here.

For those in more of a hurry, the short version is that the Court rejected the BPR’s position and indicated that RPC 3.8(d) in Tennessee was, and is, more or less co-extensive with a prosecutor’s duties under the Brady line of U.S. Supreme Court precedent.

Recently, two other jurisdictions have cited (on back-to-back days) to Tennessee’s ruling in grappling with the issue, one favorably, one not so. In Indiana, on December 29, 2020, a trial level ruling in a disciplinary case has adopted the Tennessee approach in determining that a prosecutor should not be viewed as having violated Indiana’s RPC 3.8(d). In New York, on December 30, 2020, the Second Judicial Department of the Appellate Division of the Supreme Court of the State of New York has determined that a prosecutor should be suspended for 2 years for violating NY’s RPC 3.8(b) [NY’s (b) is the equivalent of (d) in Tennessee, Indiana, and elsewhere] over failing to disclosure exculpatory evidence. In that case, the Tennessee opinion is listed just in a string citation of countervailing authorities for the New York approach to the scope of the ethics rule. You can get to the New York opinion here.

Both the Indiana matter and the New York case are good reads, and it should likely come as no surprise that the story involved in the Indiana case presents a much more sympathetic character in terms of what happened than in the New York case. You can read the full Indiana decision at this link below.

On the topic of lawyer advertising, I previously shared with you the petition filed by the TBA seeking reform to Tennessee’s ethics rules related to lawyer advertising. Should you wish to refresh your memory on that, you can do so here.

Just this week, the state of Washington has adopted its own revisions to its advertising ethics rules that are even more progressive than the proposal made in Tennessee. You can go read the new Washington rule revisions though the link below.

In Tennessee, in a not at all surprising but still extremely disappointing development, the Board of Professional Responsibility has filed a comment that opposes most aspects of the TBA proposal. Despite the fact that most bar regulators openly admit that the only people who complain about lawyer advertising are other lawyers, our BPR has staked out a position for itself where it wants to continue the status quo and keep in place relatively pointless requirements. If you truly want to hear what the regulator in Tennessee is objecting to, you can get access to its publicly-filed comment here.


(P.S. If you think the Board is trying too hard to make things unnecessarily restrictive, the deadline for public comments does not pass until March 2021.)