SCHOOLED IN ETHICS By: Alex B. Long
Williford Gragg Distinguished Professor of Law University of Tennessee College of Law
OTHER WAYS OF DEALING WITH LAWYER MISCONDUCT Typically, when we learn that another lawyer has been disbarred, suspended, or otherwise disciplined, we assume that there had been a complaint to the Tennessee Board of Professional Responsibility about the lawyer’s violation of the rules of professional conduct, a formal investigation, and adjudication of the charges. But two of the biggest legal ethics stories of 2021 involved lawyers who were suspended from the practice of law outside of the normal professional discipline process. The two cases highlight some of the other tools that courts have at their disposal for dealing with lawyers who engage in misconduct. The first case involved David Traywick, a South Carolina lawyer who was suspended for six months after posting what the South Carolina Supreme Court described as “expressly incendiary” statements on Facebook. According to the court, Traywick’s posts “were intended to incite, and had the effect of inciting, gender and race-based conflict” online. The court suspended Traywick’s license for six months, not because he had been found to have violated any specific rule of professional conduct but because he had (1) engaged in conduct tending to bring the legal profession into disrepute and (2) violated the South Carolina Lawyer’s Oath.1 South Carolina’s Rules for Lawyer Disciplinary Enforcement list a host of grounds for professional discipline apart from violation of the rules of professional conduct, including the two grounds listed above. Other grounds include willfully violating a court order and being convicted of a crime of moral turpitude or a serious crime.2 Some other states take a similarly expansive approach. While Tennessee lawyers also take an oath as part of the admissions process, violation of that oath is not one of the grounds listed in the Tennessee Supreme Court’s Rules on Disciplinary Enforcement. Nor is engaging in conduct tending to bring the legal profession into disrepute (although the Tennessee Supreme Court has interpreted TRPC R. 8.4(d), which prohibits conduct prejudicial to the administration of justice, in a manner that closely resembles this standard3). But in addition to a violation of the rules of professional conduct, the rule does list willful refusal to comply with a court order and conviction of a serious crime as separate grounds for discipline. The term “serious crime” is defined to include any felony, theft, and willful tax evasion among others.4 It’s also worth noting that under the Court’s rule, a Tennessee attorney “who has entered a plea of nolo contendere or a plea of guilty to, or who has been found guilty” of a serious crime “shall within ten days of such plea or verdict provide adequate proof of the plea or verdict, including a copy thereof, to Disciplinary Counsel.”5 Thus, there is a self-reporting obligation on the part of a lawyer who has been found guilty of a serious crime. Once Disciplinary Counsel receives proof of the plea or verdict, it must then inform the Tennessee Supreme Court, which will immediately suspend the attorney in question pending the formal disciplinary process.6 A lawyer may also face interim suspension for conduct not amounting to a full-blown serious crime. The second major legal ethics case in 2021 involving a lawyer who was suspended from the practice of law without first having gone through the formal professional discipline
process involved former mayor Rudy Giuliani. In 2021, the Attorney Grievance Committee for the First Judicial Department of New York instituted disciplinary proceedings against Giuliani for making false and misleading statements to courts, lawmakers, and the public at large in his capacity as lawyer for former President Donald J. Trump and the Trump campaign in connection with Trump’s failed effort at reelection in 2020. After completing its investigation of Giuliani, the Committee moved to suspend Giuliani on an interim basis pending a formal hearing. In June 2021, the Appellate Division of the New York Supreme Court concluded that there was uncontroverted evidence that Giuliani had committed multiple rule violations, including violations of Rule 3.3(a) (candor toward the tribunal); 4.1 (false statements to third parties); and 8.4(c) (dishonesty, fraud, deceit, or misrepresentation). According to the court, interim suspension is “available only in situations where it is immediately necessary to protect the public from the respondent’s violation of the Rules.”7 The court concluded that Giuliani’s conduct met that standard. Tennessee employs a similar standard. Under the applicable Tennessee Supreme Court rule, temporary suspension is warranted upon petition of Disciplinary Counsel and supported by an affidavit or declaration showing that an attorney has misappropriated funds to the attorney’s own use, failed to respond to the Board or Disciplinary Counsel concerning a complaint of misconduct, has failed to substantially comply with a Tennessee Lawyer Assistance Program monitoring agreement requiring mandatory reporting to Disciplinary Counsel, “or otherwise poses a threat of substantial harm to the public.”8 While most recent temporary suspensions involve one of the specifically enumerated forms of misconduct, some attorneys have been temporarily suspended for engaging in conduct that more generally poses a threat of substantial harm to the public. In a 2019 case, for example, a Nashville lawyer was temporarily suspended for engaging in improper communication with an opposing lawyer’s client “by sending the client an email designed to intimidate the client” and for sending an email to opposing counsel that caused counsel to fear the safety of his family. (The lawyer had been disciplined for similar misconduct before.)9 Of course, courts have other tools at their disposal, such as the contempt power and sanctions under the rules of civil procedure, that allow them to completely bypass the BPR’s formal disciplinary process. Thus, lawyers should be mindful of the fact that ethical practice may include more than technical compliance with the Tennessee Rules of Professional Conduct and the avoidance of formal disciplinary charges through the BPR process. 1 2 3 4 5 6 7 8 9
In re Traywick, 860 S.E.2d 358 (S.C. 2021). South Carolina Appellate Court Rule 7(a). In re Sitton, 618 S.W.3d 288 (Tenn. 2021). Tennessee Supreme Court Rule 9, Disciplinary Enforcement, §§ 11 & 22. Id. § 22.1(b). Id. §§ 22.1(c)& 22.3. Matter of Giuliani, 146 N.Y.S.3d 266, 269 (N.Y. Sup. Ct. A.D. 2021). Tennessee Supreme Court Rule 9, Disciplinary Enforcement, § 12.3. https://docs.tbpr.org/manookian-2914-release-of-information-5.pdf
If you have an idea for Schooled in Ethics column, please contact Cathy Shuck at 541-8835. February 2022
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