Legal ethics

You get a censure, you get a censure, everybody gets a censure!?

This is a post that will largely only speak to other lawyers who handled the defense of disciplinary matters. It is also a post that admittedly will — based on limited available information both broadly and narrowly — lack appropriate insight at a granular level. What it is intended to do, however, is point out how difficult one aspect of disciplinary defense can be … advising clients about what is both the likeliest outcome of their matter if they are going to have to admit to violating an ethics rule (or two).

Now in any jurisdiction that uses the ABA Standards, you’ve got the ability to evaluate what the ABA Standards forecasts. In addition, you can do what you can to evaluate past cases in your state with similar facts and attempt to see how closely they may indicate the likeliest form of discipline.

In doing that, however, unless you have cases that give you the benefit of a full court opinion, you might be working in your jurisdiction from press releases and orders with limited information. Those materials often will be quite limited in telling you the dynamics of what was going on, such as whether the lawyer had previously ever received any discipline in the past or whether they were self-represented in the proceedings. That second detail, of course, shouldn’t in an ideal world make a difference on the outcome but we all can agree at this point that we are living in a place that is far from an ideal world. The first detail though can be vital and certainly must be factored in under the ABA Standards if applied.

Thus, the dynamics can be quite frustrating.

The core of today’s post is to offer as an analytical exercise the briefest of overviews of what that experience might look like operating in Tennessee using Tennessee discipline matters over just the last 60 days. Prior to that, though, one last piece of information that those who do disciplinary defense but not in Tennessee would probably find helpful: We do have a fairly standard variation of the tiered levels of discipline known throughout the country. Going from lowest to highest we have: (1) private information admonition; (2) private reprimand; (3) public censure; (4) 30 days of suspension; (5) suspensions longer than 30 days that can be as long as 10 years and portions of which (beyond the 30 days) can be probated rather than served actively; and (6) permanent disbarment.

Now disciplinary counsel, and disciplinary defense counsel alike, will tell you (or at least acknowledge) that there is a tension between the idea that each disciplinary case should turn on its own facts and be treated uniquely and the goal is to strive for like treatment of like offenses overall. The world of the public censure is perhaps the most striking example of how difficult it is to evaluate the balance of those two concepts.

In the last 60 days, seven different Tennessee lawyers have received public censures. The initially available information about the offenses resolved with that exact same form of punishment? Here you go:

  • (May 13, 2022) Got court appointed to handle a dependency and neglect juvenile matter 22 days before an adjudicatory hearing, did not return client messages and failed to speak to client until the day before the hearing, waited to seek a continuance until the day of the adjudicatory hearing and then when the other parties objected withdrew the continuance request.
  • (May 17, 2022) Filed a pleading in a court where they were not licensed, failed to properly supervise an associate who assisted with the pleading and a pro hac motion for the disciplined lawyer, and did not learn that the pro hac motion was denied and did not inform the client of the development.
  • (June 16, 2022) Neglected three of the client matters that the lawyer took with them when departing their prior law firm causing those clients to have to spend money to hire new counsel and the disciplined lawyer communicated falsely to disciplinary counsel during the investigation about the status of the matters.
  • (July 5, 2022) Committed a crime. Specifically, pled guilty to violating an Order of Protection and violated their conditions for bond.
  • (July 13, 2022) Represented two clients with a pretty significant potential conflict of interest in connection with the same murder case without getting a written agreement from either and without even discussing the conflict, had his daughter set up as having a power of attorney for the two clients without telling the clients, and accepted at least one payment for his legal services from his daughter as power of attorney.
  • (July 13, 2022) Took on a potential plaintiff in a car wreck case, informed defendant’s insurance company of representation and responded to one request for information from the insurance company, but then failed to respond to multiple other letters from the insurance company, failed to respond to communications from the client, did not tell the client about the letters, and failed to take any other action on the client’s case.
  • (July 14, 2022) Worked as an in-house counsel in a different state, Georgia, for seven years after letting their only law license (Tennessee) become administratively suspended.

Really broad spectrum of “stuff” all resulting in the same level of discipline, right?

Now, I know nothing about any of the individual circumstances (including nothing about any of the unavailable information that might help explain one versus another) but it certainly seems like some of these sound much more like the stuff or private discipline and, at least, one of them seems like the kind of thing that — if all of the other offenses are properly public censures might much more likely be expected to involve a short suspension.

And, for those particularly diligent readers who might be thinking, well what about prior public discipline, any of those folks have any of that? The equally unhelpful answer to that question is … yes. Three of the lawyers detailed above have prior public disciplinary history.

  • May 13, 2022 had a public censure 16 years ago, was suspended for 1 year (90 days active/9 months on probation) 11 years ago, and received another public censure 3 years ago.
  • May 17, 2022 had one prior public censure from 14 years ago and another prior public censure from 1988.
  • July 5, 2022 was temporarily suspended on an emergency basis 12 years ago, got that dissolved, and then again was temporarily suspended 11 years ago, and got that dissolved.

That really clears it all up, doesn’t it?