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VOL. 126 | NO. 122 | Thursday, June 23, 2011

Faughnan Acts as Lawyer’s Lawyer

By Bill Dries

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Brian Faughnan sees his law practice as a window to just about every other area of the law. The special counsel at Thomason Hendrix Harvey Johnson & Mitchell PLLC focuses his practice on ethics as well as first amendment law, media law and business litigation.


It is more than his work. Faughnan writes the column “Faughnan on Ethics” for Memphis Lawyer, the magazine of the Memphis Bar Association.

His most recent paper is as coauthor of “Professional Responsibility in Litigation,” which was published by the American Bar Association this year.

He chaired the Tennessee Bar Association ethics committee that recently recommended ethics rules changes to the Tennessee Supreme Court.

Faughnan credits attorney Lucien Pera at his former law firm, Adams and Reese LLP, with his interest in ethics, which began for him right out of law school.

He is a 1995 graduate of Rhodes College and earned his law degree from the University of Memphis Cecil C. Humphreys School of Law, graduating magna cum laude in 1998.

“There was stuff for me as a very young associate to get involved in,” he said. “It was a natural fit.

“What made me convinced that I did want to be a lawyer was that, from the best I could tell, it was one of the few fields that you never are allowed to stop learning.”

When the attorney represents other attorneys, even more opportunities open up.

“I find that to be a big honor to get to represent lawyers,” Faughnan said. “The fringe benefit for me is I get a heck of an education. I almost end up being a general practitioner by proxy because I’m always just one lawyer representation away from learning a little something about tax law, or immigration law or areas I otherwise wouldn’t practice in on a daily basis.”

That doesn’t mean there aren’t challenges, especially for his attorney clients who now communicate with clients on four platforms, including email and Twitter.

“What made me convinced that I did want to be a lawyer was that, from the best I could tell, it was one of the few fields that you never are allowed to stop learning.”

– Brian Faughnan, Special Counsel, Thomason Hendrix Harvey Johnson & Mitchell PLLC

“There is this creeping expectation from clients and others that things have to be immediately responded to and dealt with,” he said. “There’s not time to sort of take a deep breath, be deliberative and figure out what it is that you want to say. That leads to a lot of mistakes that lawyers might make that they wouldn’t make if they took a little more time.

“And the more platforms there are for communication the greater the risk of saying something you shouldn’t say or disclosing a confidence you shouldn’t disclose.”

The four platforms come with the traditional distinctions to be made between what is privileged and what is confidential. And the distinction, according to the strictest interpretation of ethics rules, has meant neither type of information can be discussed publicly – at least publicly by the attorney.

“The problem with the rule is it is drafted to make everything confidential at the starting point,” Faughnan said. “Even if something has been filed as a matter of public record, the way the rule is drafted unless you can get your client to consent that you need to talk about it to carry out your representation of a client, the rule starts from the premise that really lawyers ought to just not talk about their client’s business at all without their clients consent.”

As a practical matter, Faughnan said many time clients don’t care or don’t call their attorneys on such a violation.

“It’s a rule that is probably broken on a daily basis by a lot of really fine lawyers and the clients don’t care that that stuff is being talked about,” Faughnan said, noting the TBA tried to “pare back” the rule to some degree.

“The disciplinary authorities have no real interest in trying to discipline lawyers for talking about something that happened in open court and the hundred other people that are present are free to talk about it.”

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