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VOL. 124 | NO. 223 | Thursday, November 12, 2009


State Supreme Court Amends Rules

By Rebekah Hearn

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Tennessee Supreme Court’s Amendments and New Rules
These rules go into effect Jan. 1.
Court Rule 8, Rule of Professional Conduct (RPC) 6.1:
Amended to include a goal of 50 pro bono service hours a year for Tennessee
lawyers (approved by the court April 3).
Court Rule 7, Sec. 10.01(c):
Permits lawyers admitted in another U.S. jurisdiction and who are registered in Tennessee as in-house counsel to provide pro bono legal services in the state through an established nonprofit program, pro bono program or legal aid provider (approved by the court Oct. 23).
Court Rule 8, RPC 5.5:
Allows any lawyer admitted in another U.S. jurisdiction to provide pro bono legal services (approved by the court Oct. 23).
Court Rule 9, Sec. 20.11:
Requests that every Tennessee lawyer registering with the Board of Professional Responsibility submit an annual pro bono reporting statement listing the extent of the attorney’s pro bono services/activities during the previous calendar year (approved by the court Nov. 2).
Source: Tennessee Supreme Court
– Rebekah Hearn

The Tennessee Supreme Court in late October adopted new and amended rules for pro bono service, in-house legal work and cross-jurisdictional practice.

The court also formally adopted a new section to Tennessee Supreme Court Rule 9, which asks attorneys to file an annual pro bono statement with the court.

The Tennessee Bar Association, which proposed the pro bono rule changes, also asked for amendments to the multijurisdictional practice rule, which takes aspects from six different court rules and the Rules of Professional Conduct.

Those changes will put additional requirements on in-house counsel, but will allow them and lawyers licensed in other jurisdictions to perform pro bono work anywhere in disaster situations.

Moving forward with pro bono

On June 27, 2008, the Tennessee Bar Association filed a petition, “In Re: Pro Bono Service Rules Amendments,” with the state Supreme Court. Among these rules was a request Tennessee attorneys file annually with the court detailing their pro bono hours or donations to legal aid providers.

The Supreme Court filed an order April 3 referring the pro bono reporting issue to the TBA Access to Justice Commission for consideration, and on Aug. 6, the commission submitted to the court a draft proposing a new section, 20.11, to court Rule 9.

The new amendment requires every licensed Tennessee lawyer who files an annual registration statement with the state Board of Professional Responsibility to voluntarily provide his or her pro bono reporting statement, listing the lawyer’s pro bono services and activities during the previous calendar year.

Also, the court is requesting attorneys also disclose any voluntary financial contributions for pro bono clinics, but attorneys should not disclose the amounts of the contributions, according to the amendment.

In December 2008, the state Supreme Court adopted the TBA’s Pro Bono Service Rules Amendments, with the exception of the voluntary reporting rule. The reason behind delaying that decision was the court still was considering the TBA’s request to amend Rule of Professional Conduct 5.5, “Petition of the Tennessee Bar Association for the Adoption of Rules Governing the Multijurisdictional Practice of Law.”

The MJP amendments were filed Oct. 23 with the Clerk of the Court, allowing the Supreme Court to move forward in adopting a pro bono reporting rule.

“Annual hourly reporting of pro bono legal services and activities by attorneys will help capture helpful information about the types of pro bono work attorneys already do (and) the voluntary financial contributions attorneys already provide,” said TBA President Gail V. Ashworth of Gideon Wiseman PLC in Nashville.

Access to Justice Commissioner and TBA immediate past president George “Buck” Lewis of Baker, Donelson, Bearman, Caldwell & Berkowitz PC’s Memphis office said the reporting rule “serves as an annual reminder that (lawyers are) supposed to be doing pro bono under the ethics rules, and that the court is interested in them doing pro bono work,” Lewis said. “(The amendment) also allows us to collect information as to what … type of work lawyers are doing and also where it’s being done. So if we find there there’s a need for services in a particular jurisdiction, it will allow us to focus on that.”

Lawyers’ individual pro bono hours and any disclosed financial contributions will not be public record, but the BPR “may compile statistical data derived from the statements, which data shall not identify any particular lawyer,” according to the amendment.

Tennessee Supreme Court Chief Justice Janice Holder told The Daily News in an e-mail that the changes are designed to help Tennesseans during the recession and call attention to the need for legal help.

“We hope these recent rule changes shed some light on the need for pro bono legal services,” Holder said.

Other states have adopted mandatory or voluntary pro bono reporting rules, and Lewis and Memphis Area Legal Services Executive Director Harrison McIver said those rules have led to increased pro bono activities.

Inside in-house

The MJP amendments address a number of issues, many of which relate to in-house attorneys. Corporate lawyers’ ability to do pro bono work also is briefly addressed in the MJP amendment, as is out-of-state lawyers’ ability to help in areas hit by natural disasters, which is why the court delayed action on pro bono reporting until it had clarified rules regarding in-house and out-of-state attorneys’ abilities to perform pro bono work.

The original amendment offered by the TBA asked, among other things, for in-house counsel to freely practice on a pro vice, or one-time, basis at legal aid clinics offered by legitimate legal aid providers.

“The MJP rule was one that we needed to be working on for reasons that were unrelated to pro bono, but then (the Access to Justice Commission) decided to add this pro bono component on it so that lawyers who were working for corporations, even though they might not be able to go out and represent paying clients, would be able to go do pro bono work at the clinics and so forth,” said Lewis.

Previously, in-house lawyers were not allowed to do pro bono work unless they were licensed in Tennessee. A corporate attorney can take the Tennessee bar exam and become licensed in the state, allowing him or her to do the same pro bono work any licensed attorney can do.

However, in-house attorneys weren’t – and still aren’t – required to take the Tennessee bar exam to work for their companies, said TBA Executive Director Allen Ramsaur. The rule changes “clarify their status,” Ramsaur said.

One change requires in-house attorneys to register with the state within six months of beginning their employment.

“That rule sets up the registration process,” Ramsaur said. “It subjects the lawyers to all the disciplinary rules; they have to pay all the same fees; and they can practice for their company, but only in terms of counsel or advice.”

Once the in-house attorney is registered, he or she “can do pro bono, in addition to representing their client,” Ramsaur said. “That’s the pro bono link there.”

The MJP rules also make it easier for attorneys to help during natural disasters.

Part of the MJP amendment provides attorneys who are licensed in any jurisdiction – in good standing – the ability to offer legal relief in disaster-stricken areas.

McIver said the MJP rule is “a very important rule adoption.”

“All of us should recall the (Hurricane) Katrina and (Hurricane) Rita devastation on the Gulf Coast,” McIver said. “Lawyers from across the country, including from Tennessee, converged on the coast to lend assistance to families whose lives were torn apart. In response, the Mississippi and Louisiana Supreme Courts approved emergency rules that allowed out-of-state lawyers to practice law on a limited basis in order to assist those families.”

The “Katrina Rule,” as McIver termed it, will help Tennessee in the event of an earthquake or other disaster.

“This makes Tennessee disaster-ready, so to speak, for our neighboring lawyers to come in and help us,” Lewis said.

Ashworth touted the rule’s recent passage.

“The TBA has consistently supported and advocated for increasing the opportunities for corporate and in-house counsel to participate in pro bono work, disaster relief and other access to justice efforts,” Ashworth said.

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