Rule 9. Disciplinary Enforcement

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Section 1. Preamble

The license to practice law in this State is a continuing proclamation by the Supreme Court of the State of Tennessee (hereinafter the “Court”) that the holder is fit to be entrusted with professional and judicial matters, and to aid in the administration of justice as an attorney and as an officer of the Court. It is the duty of every recipient of that privilege to act at all times, both professionally and personally, in conformity with the standards imposed upon members of the bar as conditions for the privilege to practice law.

Section 2. Definitions

Board:

The Board of Professional Responsibility of the Supreme Court of Tennessee.

Complainant:

A person who alleges misconduct by an attorney, including misconduct by Disciplinary Counsel and attorney members of the Board and members of the district committees.

Court:

The Supreme Court of Tennessee.

Declaration under Penalty of Perjury:

A declaration under penalty of perjury meeting the requirements of Tenn. R. Civ. P. 72.

Disciplinary Counsel:

The Chief Disciplinary Counsel selected by the Court and staff Disciplinary Counsel employed by the Chief Disciplinary Counsel, with the approval of the Board, pursuant to the provisions of this Rule.

District committees:

Committees of attorneys appointed by the Court pursuant to provisions of this Rule.

Hearing panels:

Panels of three district committee members selected by the Chair of the Board, or in the absence of the Chair selected by the Vice-Chair of the Board, to hear matters pursuant to provisions of this Rule.

Panel:

A panel of three members selected by the Chair of the Board, or, in the Chair’s absence, the Vice-Chair. At least two of the members of the panel shall be members of the Board, only one of whom may be a non-lawyer; and, one of the members of the panel may be a district committee member from the same disciplinary district as the respondent or petitioning attorney

to provisions of this Rule.

Panel:

Practice monitor:

An attorney licensed to practice law in the State of Tennessee designated by the Board to supervise an attorney as a condition of public discipline, probation or reinstatement pursuant to the provisions of this Rule.

Protocol memorandum:

A memorandum prepared by Disciplinary Counsel and provided to the Court pursuant to the provisions of this Rule which addresses the following: 1) The basis for the Petition for Discipline; 2) The proposed disposition; 3) The procedural history; 4) The prior history of discipline; and, 5) The reasons for the proposed discipline, including: a) application of the ABA Standards for Imposing Lawyer Sanctions; b) comparative Tennessee discipline in similar cases; and, c) aggravating and mitigating circumstances of the kind and character set forth in the ABA Standards for Imposing Lawyer Sanctions.

Retired:

For purposes of this Rule, an attorney is “retired” if the attorney is at least sixty-five years of age and is not actively engaged in the practice of law; or, the attorney is at least fifty years of age, is inactive with the Tennessee Commission on Continuing Legal Education and Specialization, and has not engaged in the practice of law for at least fifteen years.

RPC:

The Rules of Professional Conduct as adopted by Rule 8 of the Rules of the Tennessee Supreme Court.

Rule:

Rule 9 of the Rules of the Tennessee Supreme Court.

Section:

A section of Rule 9 of the Rules of the Tennessee Supreme Court

, is inactive with the Tennessee Commission on Continuing Legal Education and Specialization, and has not engaged in the practice of law for at least fifteen years.

RPC:

The Rules of Professional Conduct as adopted by Rule 8 of the Rules of the Tennessee Supreme Court.

Rule:

Rule 9 of the Rules of the Tennessee Supreme Court.

Section:

A section of Rule 9 of the Rules of the Tennessee Supreme Court.

Serious crime:

The term “serious crime” as used in Section 22 of this Rule shall include any felony and any other crime a necessary element of which, as determined by the statutory or common law definition of such crime, involves improper conduct as an attorney, interference with the administration of justice, false swearing, misrepresentation, fraud, willful failure to file income tax returns, willful tax evasion, deceit, bribery, extortion, misappropriation, theft, or an attempt or a conspiracy or solicitation of another to commit a “serious crime.”

Serve or service:

The method of serving pleadings or other papers as specified in Section 18 of this Rule or otherwise in the provisions of this Rule.

Section 3. Disciplinary Districts

Disciplinary jurisdiction in this State shall be divided into the following districts:

District I

-- the counties of Johnson, Carter, Cocke, Greene, Hancock, Grainger, Jefferson, Sullivan, Washington, Unicoi, Hawkins, Claiborne, Hamblen and Sevier.

District II --

the counties of Campbell, Anderson, Roane, Blount, Morgan, Union, Knox, Loudon and Scott.

District III

-- the counties of Polk, Hamilton, Sequatchie, Bledsoe, Meigs, Monroe, Bradley, Marion, Grundy, Rhea and McMinn.

District IV

-- the counties of White, Van Buren, Pickett, Putnam, Overton, Clay, Franklin, Moore, Bedford, Rutherford, Wilson, Trousdale, Warren, Fentress, Cumberland, Smith, Jackson, Coffee, Lincoln, Marshall, Cannon, DeKalb and Macon.

District V --

the county of Davidson

District III

-- the counties of Polk, Hamilton, Sequatchie, Bledsoe, Meigs, Monroe, Bradley, Marion, Grundy, Rhea and McMinn.

District IV

District V --

the county of Davidson.

District VI

-- the counties of Giles, Wayne, Lewis, Maury, Humphreys, Cheatham, Montgomery, Robertson, Lawrence, Perry, Hickman, Dickson, Houston, Stewart, Sumner and Williamson.

District VII

-- the counties of Henry, Carroll, Henderson, Hardeman, Hardin, Benton, Decatur, Chester, Fayette, McNairy and Madison.

District VIII

-- the counties of Weakley, Lake, Gibson, Haywood, Tipton, Obion, Dyer, Crockett and Lauderdale.

District IX

-- the county of Shelby.

Section 4. The Board of Professional Responsibility of the Supreme Court of Tennessee

4.1.

The Court shall appoint a twelve member Board to be known as “The Board of Professional Responsibility of the Supreme Court of Tennessee” (hereinafter the “Board”) which shall consist of:

(a) Three resident attorneys admitted to practice in this state and one public (non-attorney) member appointed for an initial term of three years; and

(b) Three resident attorneys admitted to practice in this state and one public member appointed for an initial term of two years; and

(c) Three resident attorneys admitted to practice in this state and one public member appointed for an initial term of one year.

Subsequent terms of all members shall be for three years. A member may serve a maximum of any remaining portion of a three-year term created by a vacancy filled by such member, plus two consecutive three-year terms. A member who has served the maximum term shall be eligible for re-appointment after the expiration of three years. Vacancies shall be filled by the Court. There shall be one attorney member from each disciplinary district

for three years. A member may serve a maximum of any remaining portion of a three-year term created by a vacancy filled by such member, plus two consecutive three-year terms. A member who has served the maximum term shall be eligible for re-appointment after the expiration of three years. Vacancies shall be filled by the Court. There shall be one attorney member from each disciplinary district. There shall be one public member from each of the three grand divisions of the state.

4.2.

The Court shall designate one member as Chair of the Board and another member as Vice-Chair.

4.3.

Seven members of the Board shall constitute a quorum. Unless otherwise permitted by this Rule, an affirmative vote of seven members of the Board shall be necessary to authorize any action. If time restraints are such that a regular or special meeting of the Board is impractical, Disciplinary Counsel shall circulate to the members of the Board in writing the reasons for the recommendation of a particular action supported by a factual report. Board members may communicate their vote for or against the recommendation by telephone, facsimile, regular mail, or electronic means. Any member of the Board may request that Disciplinary Counsel convene a telephone conference of the Board, whereupon such conference must be convened with at least a quorum so conferring.

4.4.

Members shall receive no compensation for their services but may be reimbursed for their travel and other expenses incidental to the performance of their duties in accordance with the schedule for judicial reimbursement promulgated by the Administrative Office of the Courts.

4.5.

The Board shall exercise the powers conferred upon it by this Rule, including the power:

t a quorum so conferring.

4.4.

4.5.

The Board shall exercise the powers conferred upon it by this Rule, including the power:

(a) To consider and investigate any alleged ground for discipline or alleged incapacity of any attorney called to its attention, or upon its own motion, and to take such action with respect thereto as shall be appropriate to effectuate the purposes of this Rule. The Board is authorized to investigate information from a source other than a signed written complaint if the Board deems the information sufficiently credible or verifiable through objective means.

(b) To adopt written internal operating procedures to ensure the efficient and timely resolution of complaints, investigations, and formal proceedings, which operating procedures shall be approved by the Court, and to monitor Disciplinary Counsel’s and the hearing panels’ continuing compliance with those operating procedures. The Board shall quarterly send to each Member of the Court and shall post on the Board’s website a report demonstrating substantial compliance with the operating procedures.

(c) The powers and duties set forth in this Section are not duties owed to or enforceable by a respondent or petitioning attorney by means of claim, or defense, or otherwise.

(d) To review, upon application by Disciplinary Counsel, a determination by the reviewing member of a district committee that a matter should be concluded by dismissal or by private informal admonition without the institution of formal charges.

(e) To privately reprimand, publicly censure or authorize the filing of formal charges against attorneys for misconduct.

f claim, or defense, or otherwise.

(e) To privately reprimand, publicly censure or authorize the filing of formal charges against attorneys for misconduct.

(f) To delegate to a committee of its members, or to the Chief Disciplinary Counsel, any administrative, non-adjudicatory function authorized by this Rule.

4.6.

A Board member shall not undertake or participate in any adjudicative function when doing so would violate either federal or Tennessee constitutional due process requirements for administrative adjudications.

See

Withrow v. Larkin

, 421 U.S. 35 (1975);

Moncier v. Board of Professional Responsibility

, 406 S.W.3d 139, 2013 WL 2285183 (Tenn. 2013). The procedures set out in Tenn. Sup. Ct. R. 10B are not applicable to motions to disqualify or for recusal in matters under this Rule.

Section 5. Ethics Opinions

5.1.

The Board shall be responsible for issuing ethics opinions from time to time. The Board may, in its discretion, accomplish this by dividing itself into three geographic ethics committees.

5.2.

In performing its responsibility under Section 5.1, the Board shall act under rules which the Board may from time to time promulgate, including rules relating to the procedures to be used in considering inquiries and expressing opinions, clarifying opinions or declining requests for opinions.

5.3.

In performing its responsibilities under Section 5.1, the Board shall exercise the powers and perform the ordinary and necessary duties usually carried out by ethics advisory bodies. The Board shall:

may from time to time promulgate, including rules relating to the procedures to be used in considering inquiries and expressing opinions, clarifying opinions or declining requests for opinions.

5.3.

In performing its responsibilities under Section 5.1, the Board shall exercise the powers and perform the ordinary and necessary duties usually carried out by ethics advisory bodies. The Board shall:

(a) By the concurrence of a majority of its members, or of the members of any committees established by the Board pursuant to Section 5.1, issue and distribute Formal Ethics Opinions on proper professional conduct, either on the Board’s own initiative or when requested to do so by a member of the bar or by an officer or a committee or any other state or local bar association, except that an opinion may not be issued in a matter that is known to the Board to be pending before a court or in a pending disciplinary proceeding;

(b) Periodically distribute its issued Formal Ethics Opinions to the legal profession in summary or complete form;

(c) On request, advise or otherwise help any state or local bar associations in their activities relating to the interpretation of the Rules of Professional Conduct;

(d) Recommend appropriate amendments to or clarification of the Rules of Professional Conduct, if it considers them advisable.

5.4.

(a) A Formal Ethics Opinion issued and distributed by the Board shall bind the Board and the person requesting the opinion and shall constitute a body of principles and objectives upon which members of the bar may rely for guidance in many specific situations.

(b) Requests for Formal Ethics Opinions shall be addressed to the Board in writing, shall state the factual situation in detail, shall be accompanied by a short brief or memorandum citing the Rules of Court or Professional Conduct involved and any other pertinent authorities, and shall contain a certification that the matters are not pending in any court or disciplinary proceeding.

fic situations.

(c) An advisory ethics opinion may be issued by Disciplinary Counsel when there is readily available precedent. The advisory opinion shall not be binding on the Board and shall offer no security to the person requesting it. All requests for advisory opinions, oral and written, and any response by Disciplinary Counsel shall be confidential and shall not be public records or open for public inspection except as subject to waiver by the requesting attorney or as otherwise provided in Section 32.

Section 6. District Committees

6.1.

The Court shall appoint one district committee within each disciplinary district. Each district committee shall consist of not fewer than five members of the bar of this state who maintain an office for the practice of law within that district or, if not actively engaged in the practice of law, reside within that district. Members of district committees may be recommended by the Board, or by the president or board of directors of any local bar associations in each district.

6.2.

Terms of members of each district committee shall be for three years, and such terms shall be staggered so that one third of the members rotate off the committee each year; provided that shorter terms may be designated where necessary to observe the above rotation practice. A member may serve a maximum of two consecutive three-year terms. Members whose terms have expired shall continue to serve with respect to any formal hearing commenced prior to the expiration of their terms until the conclusion of such hearing, regardless of whether their successors have been appointed

ded that shorter terms may be designated where necessary to observe the above rotation practice. A member may serve a maximum of two consecutive three-year terms. Members whose terms have expired shall continue to serve with respect to any formal hearing commenced prior to the expiration of their terms until the conclusion of such hearing, regardless of whether their successors have been appointed. A member who has served the maximum term may be reappointed after the expiration of one year.

6.3.

A member of the district committee acting as the reviewing member shall approve or modify recommendations by Disciplinary Counsel for dismissals and private informal admonitions. In no event may a member of the district committee acting as the reviewing member impose a sanction greater than private informal admonition. Nor may a district committee member acting as the reviewing member offer diversion except as provided in Section 13.4.

6.4.

Formal hearings upon charges of misconduct shall be conducted by a hearing panel consisting of three district committee members selected by the Chair of the Board, or in the absence of the Chair by the Vice-Chair of the Board, pursuant to Section 15.2. The hearing panel shall submit its findings and judgment to the Board. Each hearing panel shall elect its own Chair. The hearing panel shall act only with the concurrence of a majority of its members.

6.5.

A district committee member shall not take part in any matter in which a judge, similarly situated, would have to recuse himself or herself in accordance with Tenn. Sup. Ct. R. 10. However, the procedures set out in Tenn. Sup. Ct. R. 10B are not applicable to motions to disqualify or for recusal in matters under this Rule.

Section 7. Disciplinary Counsel

7.1.

The Court shall appoint an attorney admitted to practice in the State to serve as Chief Disciplinary Counsel, who shall serve at the pleasure of the Court

se himself or herself in accordance with Tenn. Sup. Ct. R. 10. However, the procedures set out in Tenn. Sup. Ct. R. 10B are not applicable to motions to disqualify or for recusal in matters under this Rule.

Section 7. Disciplinary Counsel

7.1.

The Court shall appoint an attorney admitted to practice in the State to serve as Chief Disciplinary Counsel, who shall serve at the pleasure of the Court. Following his or her appointment by the Court, the Chief Disciplinary Counsel shall report to the Board, which shall conduct performance evaluations of the Chief Disciplinary Counsel every two years and shall report such evaluations to the Court. Neither the Chief Disciplinary Counsel nor full-time staff Disciplinary Counsel shall engage in the private practice of law; however, the Board and the Court may agree to a reasonable period of transition after appointment.

7.2.

Chief Disciplinary Counsel shall have the power with the approval of the Board:

(a) To employ and supervise staff needed for the performance of Disciplinary Counsel’s functions.

(b) To perform any administrative, non-adjudicatory function authorized by this Rule and delegated by the Board.

7.3.

Disciplinary Counsel shall have the power:

(a) To investigate all matters involving possible misconduct.

(b) To dispose of all matters involving alleged misconduct by recommendation to the reviewing district committee member of either dismissal or private informal admonition; by recommendation to the Board of either private reprimand, public censure or the prosecution of formal charges before a hearing panel; or, by diversion in accordance with Section 13. Except in matters requiring dismissal because the complaint is frivolous and clearly unfounded on its face or falls outside the Board’s jurisdiction, no disposition shall be recommended or undertaken by Disciplinary Counsel until the accused attorney shall have been afforded the opportunity to state a position with respect to the allegations against the attorney.

on in accordance with Section 13. Except in matters requiring dismissal because the complaint is frivolous and clearly unfounded on its face or falls outside the Board’s jurisdiction, no disposition shall be recommended or undertaken by Disciplinary Counsel until the accused attorney shall have been afforded the opportunity to state a position with respect to the allegations against the attorney.

(d) To investigate and to present in a timely manner all proceedings with respect to petitions for reinstatement of suspended or disbarred attorneys or attorneys transferred to inactive status because of disability, or with respect to petitions for voluntary surrenders of law licenses.

(e) To file with the Court adequate proof of attorneys’ pleas of nolo contendere or pleas of guilty to, or verdicts of guilt of, crimes pursuant to Section 22.

(f) To maintain permanent records of all matters processed and the disposition thereof.

(g) To give advisory ethics opinions to members of the bar pursuant to Section 5.

(h) To implement the written internal operating procedures adopted by the Board and approved by the Court pursuant to Section 4.5(b), and to file reports with the Board on a quarterly basis demonstrating Disciplinary Counsel’s substantial compliance with the operating procedures.

Section 8. Jurisdiction

8.1.

Any attorney admitted to practice law in this State, including any formerly admitted attorney with respect to acts committed prior to surrender of a law license, suspension, disbarment, or transfer to inactive status, or with respect to acts subsequent thereto which amount to the practice of law or constitute a violation of this Rule or of the Rules of Professional Conduct, and any attorney specially admitted by a court of this State for a particular proceeding and any lawyer not admitted in this jurisdiction who practices law or renders or offers to render any legal services in this jurisdiction, is subject to the disciplinary jurisdiction of the

ereto which amount to the practice of law or constitute a violation of this Rule or of the Rules of Professional Conduct, and any attorney specially admitted by a court of this State for a particular proceeding and any lawyer not admitted in this jurisdiction who practices law or renders or offers to render any legal services in this jurisdiction, is subject to the disciplinary jurisdiction of the Court, the Board, panels, the district committees and hearing panels herein established, and the circuit and chancery courts of this State. In addition, attorneys not admitted or specially admitted to practice law in this State, attorneys who are suspended, and individuals who are disbarred or who have surrendered a law license, but who nevertheless engage in the practice of law in this State shall be subject to the imposition of civil remedies and criminal prosecution pursuant to Tenn. Code Ann. § 23-3-103. Disciplinary Counsel shall refer such attorneys or individual to the appropriate authorities for investigation and pursuit of civil remedies and/or criminal prosecution.

8.2.

Nothing herein contained shall be construed to deny to any court such powers as are necessary for that court to maintain control over proceedings conducted before it, such as the power of contempt, nor to prohibit any bar association from censuring, suspending or expelling its members from membership.

Section 9. Multijurisdictional Practice

9.1.

Any attorney practicing in this State under the authority of RPC 5.5(c) or (d) or otherwise subject to the Court’s disciplinary jurisdiction under RPC 8.5 is subject to the disciplinary jurisdiction prescribed in Section 8.1 of this Rule and the procedures for exercise of such jurisdiction prescribed in this Rule.

9.2.

The authorization for practice granted in RPC 5.5(c) or (d) may be terminated or suspended

y practicing in this State under the authority of RPC 5.5(c) or (d) or otherwise subject to the Court’s disciplinary jurisdiction under RPC 8.5 is subject to the disciplinary jurisdiction prescribed in Section 8.1 of this Rule and the procedures for exercise of such jurisdiction prescribed in this Rule.

9.2.

The authorization for practice granted in RPC 5.5(c) or (d) may be terminated or suspended. The grounds and processes for such termination shall be those provided in this Rule for disbarment; and the grounds and processes for such suspension shall be those provided in this Rule for suspension.

9.3.

If an attorney is practicing in this State under authority of RPC 5.5(c), or if an attorney is practicing in this State under authority of RPC 5.5(d) and does not maintain an office in this State:

(a) Hearing panel and panel proceedings may occur in any disciplinary district in which the conduct that forms the basis of the complaint against the attorney occurred;

(b) Circuit or chancery court proceedings for appeal pursuant to Section 33 of this Rule shall occur as specified in Section 33.1(a) of this Rule; and,

(c) The Board shall file in the Nashville office of the Clerk of the Supreme Court a Notice of Submission with an attached copy of an unappealed final trial court judgment disbarring or suspending the attorney for any period of time.

9.4.

The procedures and remedies for reciprocal discipline prescribed in Section 25 of this Rule shall apply to attorneys practicing in this State under authority of RPC 5.5(d)(1). Upon receipt of a certified copy of an order demonstrating that such an attorney has been disciplined in another jurisdiction, the Court shall employ the procedures prescribed in Sections 25.2 through 25.5.

9.5.

The information filing, fee payment and other requirements and regulations prescribed in Section 10 of this Rule shall apply to attorneys practicing in this State under authority of RPC 5.5(d)(1).

Section 10. Periodic Assessment of Attorneys

10.1

that such an attorney has been disciplined in another jurisdiction, the Court shall employ the procedures prescribed in Sections 25.2 through 25.5.

9.5.

The information filing, fee payment and other requirements and regulations prescribed in Section 10 of this Rule shall apply to attorneys practicing in this State under authority of RPC 5.5(d)(1).

Section 10. Periodic Assessment of Attorneys

10.1.

Every attorney admitted to practice before the Court, except those exempt under Section 10.3 (b) and (c), shall, on or before the first day of their birth month, file with the Board at its central office an annual registration statement, on a form prescribed by the Board, setting forth the attorney’s current residence, office, and email addresses, and such other information as the Board may direct. The attorney shall designate information by which the attorney may be contacted by clients and members of the public, including an email address, or a telephone number, or a physical or post office box address, which will be treated by the Board as public records. Other contact information of the attorney the Board may direct the attorney to provide, including the attorney's residence address, cellular telephone number, home telephone number, and personal non-government issued e-mail address are confidential and not public records. However, the nonpublic information may be used by this Court and its agencies in the course of business and may be available to Tennessee courts and licensed attorneys upon written request to the Board's registration department. In addition to such annual statement, every attorney shall file electronically with the Board through the Board's Attorney Portal as necessary a supplemental statement of any change in information previously submitted within thirty days of such change.

10.2.

(a) Every attorney admitted to practice before the Court, except those exempt under Section 10.3, shall pay to the Board on or before the first day of the attorney’s birth month an annual fee.

y shall file electronically with the Board through the Board's Attorney Portal as necessary a supplemental statement of any change in information previously submitted within thirty days of such change.

10.2.

(a) Every attorney admitted to practice before the Court, except those exempt under Section 10.3, shall pay to the Board on or before the first day of the attorney’s birth month an annual fee.

(b) All funds collected hereunder shall be deposited by the Board with the State Treasurer; all such funds, including earnings on investments and all interest and proceeds from said funds, if any, are deemed to be, and shall be designated as, funds belonging solely to the Board. Withdrawals from those funds shall be made by the Board only for the purpose of defraying the costs of disciplinary administration and enforcement of this Rule, and for such other related purposes as the Court may from time to time authorize or direct.

(c) The annual fee for each attorney shall be Two Hundred Seventy Dollars ($270), consisting of a Two Hundred Twenty-Five Dollar ($225) Board of Professional Responsibility annual registration fee, a Fifteen Dollar ($15) annual fee due under Tenn. Sup. Ct. R. 25, Section 2.01(a) (Tennessee Lawyers’ Fund for Client Protection), and a Thirty Dollar ($30) annual fee due under Tenn. Sup. Ct. R. 33.01C (Tennessee Lawyer Assistance Program), and shall be payable on or before the first day of the attorney’s birth month, and a like sum each year thereafter until otherwise ordered by the Court. If an attorney chooses to pay or submit annual registration by mail, rather than online, that attorney shall pay an additional $5 for processing.

rty Dollar ($30) annual fee due under Tenn. Sup. Ct. R. 33.01C (Tennessee Lawyer Assistance Program), and shall be payable on or before the first day of the attorney’s birth month, and a like sum each year thereafter until otherwise ordered by the Court. If an attorney chooses to pay or submit annual registration by mail, rather than online, that attorney shall pay an additional $5 for processing.

(d) In connection with the payment of the annual fee, every attorney shall have the opportunity to make a financial contribution to support access-to-justice programs. Funds raised through optional contributions will be distributed to access-to-justice programs which provide direct legal services to low income Tennesseans.

10.3.

Upon Application for status change pursuant to Section 10.7, there shall be exempted from the application of this rule:

(a) Attorneys who serve as a justice, judge, or magistrate judge of a court of the United States of America or who serve in any federal office in which the attorney is prohibited by federal law from engaging in the practice of law.

(b) Retired attorneys.

(d) Faculty members of Tennessee law schools who do not practice law.

(e) Attorneys not engaged in the practice of law in Tennessee. The term “the practice of law” shall be defined as any service rendered involving legal knowledge or legal advice, whether of representation, counsel, or advocacy, in or out of court, rendered in respect to the rights, duties, regulations, liabilities, or business relations of one requiring the services. It shall encompass all public and private positions in which the attorney may be called upon to examine the law or pass upon the legal effect of any act, document, or law.

10.4

egal knowledge or legal advice, whether of representation, counsel, or advocacy, in or out of court, rendered in respect to the rights, duties, regulations, liabilities, or business relations of one requiring the services. It shall encompass all public and private positions in which the attorney may be called upon to examine the law or pass upon the legal effect of any act, document, or law.

10.4.

Within thirty days of the completion of the required annual registration by an attorney in accordance with the provisions of Section 10.1, the Board, acting through Disciplinary Counsel, shall acknowledge receipt thereof, on a form prescribed by the Court in order to enable the attorney on request to demonstrate compliance with the requirements of Sections 10.1 and 10.2

10.5.

The Board shall monthly compile lists of attorneys who have failed to timely file the annual registration statement required by Section 10.1 or have failed to timely pay the annual registration fee required by Section 10.2. The Board shall send to each attorney listed thereon an Annual Registration Fee/Statement Delinquency Notice (the “Notice”). The Notice shall state that the attorney has failed to timely complete the annual registration statement required by Tenn. Sup. Ct. R. 9, Section 10.1, or has failed to timely pay the annual registration fee required by Tenn. Sup. Ct. R. 9, Section 10.2, and that the attorney’s license therefore is subject to suspension pursuant to Tenn. Sup. Ct. R. 9, Section 10.6. The Notice shall be sent to the attorney by a form of United States mail providing delivery confirmation, at the primary or preferred address shown in the attorney’s most recent registration statement filed pursuant to Section 10.1 or at the attorney’s last known address, and at the email address shown in the attorney’s most recent registration statement filed pursuant to Section 10.1.

10.6.

10.6. The Notice shall be sent to the attorney by a form of United States mail providing delivery confirmation, at the primary or preferred address shown in the attorney’s most recent registration statement filed pursuant to Section 10.1 or at the attorney’s last known address, and at the email address shown in the attorney’s most recent registration statement filed pursuant to Section 10.1.

10.6.

(a) Each attorney to whom a Notice is sent pursuant to Section 10.5 shall file with the Board within thirty days of the date of delivery of the Notice an affidavit or declaration under penalty of perjury with supporting documentation demonstrating that the attorney has paid the annual registration fee or has filed the annual registration statement, and has paid a delinquent compliance fee of One Hundred Dollars ($100.00) to defray the Board’s costs in issuing the Notice; or, alternatively, demonstrating that the Notice was sent to the attorney in error, the attorney having timely paid the annual registration fee or having timely filed the annual registration statement. For purposes of this provision, the date of mailing shall be deemed to be the postmark date.

rneys who were sent the Notice and who failed to respond; failed to demonstrate to the satisfaction of the Board that they had paid the delinquent annual registration fee or had filed the delinquent annual registration statement, and had paid the One Hundred Dollar ($100.00) delinquent compliance fee; or, failed to demonstrate to the satisfaction of the Board that the Notice had been sent in error. The proposed Suspension Order shall provide that the license to practice law of each attorney listed therein shall be suspended upon the Court’s filing of the Order and that the license of each attorney listed therein shall remain suspended until the attorney pays the delinquent annual registration fee or files the delinquent annual registration statement, and pays the One Hundred Dollar ($100.00) delinquent compliance fee and a separate reinstatement fee of Two Hundred Dollars ($200.00), and is reinstated pursuant to Subsection (d).

(c) Upon the Court’s review and approval of the proposed Suspension Order, the Court will file the Order summarily suspending the license to practice law of each attorney listed in the Order. The suspension shall be effective immediately and shall remain in effect until the attorney completes all delinquent registration requirements, pays the delinquent registration fees or files the delinquent registration statement, and pays the One Hundred Dollar ($100.00) delinquent compliance fee and the Two Hundred Dollar ($200.00) reinstatement fee, and until the attorney is reinstated pursuant to Subsection (d). An attorney who fails to resolve the suspension within thirty days of the Court’s filing of the Suspension Order shall comply with the requirements of Section 28.

or files the delinquent registration statement, and pays the One Hundred Dollar ($100.00) delinquent compliance fee and the Two Hundred Dollar ($200.00) reinstatement fee, and until the attorney is reinstated pursuant to Subsection (d). An attorney who fails to resolve the suspension within thirty days of the Court’s filing of the Suspension Order shall comply with the requirements of Section 28.

(d) Reinstatement following a suspension pursuant to Subsection (c) shall require an order of the Court but shall not require a reinstatement proceeding pursuant to Section 30.4, unless ordered by the Court.

(1) An attorney suspended by the Court pursuant to Subsection (c) who wishes to be reinstated and who has remained suspended for one year or less before the filing of a petition for reinstatement shall file with the Board a petition for reinstatement of the attorney’s license to practice law demonstrating that the attorney has paid all delinquent annual registration fees or has filed the delinquent registration statement, and has paid the One Hundred Dollar ($100.00) delinquent compliance fee and the Two Hundred Dollar ($200.00) reinstatement fee; or, alternatively, demonstrating that the Suspension Order was entered in error as to the attorney. If the petition is satisfactory to the Board and if the attorney otherwise is eligible for reinstatement, the Board, or the Chief Disciplinary Counsel acting on its behalf, shall promptly submit to the Court a proposed Reinstatement Order. The proposed Reinstatement Order shall provide that the attorney’s reinstatement is effective as of the date of the attorney’s payment of all delinquent registration fees or the date of the attorney’s filing of the delinquent registration statement, and the attorney’s payment of the One Hundred Dollar ($100.00) delinquent compliance fee and the Two Hundred Dollar ($200.00) reinstatement fee; or, alternatively, as of the date of entry of the Suspension Order if that Order was entered in error

of the date of the attorney’s payment of all delinquent registration fees or the date of the attorney’s filing of the delinquent registration statement, and the attorney’s payment of the One Hundred Dollar ($100.00) delinquent compliance fee and the Two Hundred Dollar ($200.00) reinstatement fee; or, alternatively, as of the date of entry of the Suspension Order if that Order was entered in error. An attorney resolves a suspension within thirty days for purposes of Section 10.6(c) if a proposed Reinstatement Order has been submitted to the Court within thirty days of the Court’s filing of the Suspension Order.

($200.00) reinstatement fee; or, alternatively, demonstrating that the Suspension Order was entered in error as to the attorney. The petitioner shall serve a copy of the petition upon Disciplinary Counsel, who shall investigate the matter and file an answer to the petition within thirty days. The Court shall review the record and determine whether to grant or deny the petition for reinstatement. If the Court grants the petition, the Reinstatement Order shall provide that the attorney’s reinstatement is effective as of the date of the attorney’s payment of all delinquent registration fees or the date of the attorney’s filing of the delinquent registration statement, and the attorney’s payment of the One Hundred Dollar ($100.00) delinquent compliance fee and the Two Hundred Dollar ($200.00) reinstatement fee; or, alternatively, as of the date of entry of the Suspension Order if that Order was entered in error.

10.7.

(a) An attorney who claims an exemption under Section 10.3 (a), (b), (d), or (e) shall file with the Board an application to assume inactive status and discontinue the practice of law in this state. In support of the application, the attorney shall file an affidavit or declaration under penalty of perjury stating that the attorney is not delinquent in paying the privilege tax imposed on attorneys by Tenn. Code Ann. § 67-4-1702, is not delinquent in meeting any of the reporting requirements imposed by Rules 9, 21, and 43, is not delinquent in the payment of any fees imposed by those rules, and is not delinquent in meeting the continuing legal education requirements imposed by Rule 21. The Board shall approve the application if the attorney qualifies to assume inactive status under Section 10.3 and is not delinquent in meeting any of the obligations set out in the preceding sentence

imposed by Rules 9, 21, and 43, is not delinquent in the payment of any fees imposed by those rules, and is not delinquent in meeting the continuing legal education requirements imposed by Rule 21. The Board shall approve the application if the attorney qualifies to assume inactive status under Section 10.3 and is not delinquent in meeting any of the obligations set out in the preceding sentence. If it appears to the Board that the applicant is delinquent in meeting any of those obligations, the Board shall notify the applicant of the delinquency and shall deny the application unless, within ninety days after the date of the Board’s notice, the applicant demonstrates to the Board’s satisfaction that the delinquency has been resolved. Upon the date of the Board’s written approval of the application, the attorney shall no longer be eligible to practice law in Tennessee. The Board shall act promptly on applications to assume inactive status and shall notify the applicant in writing of the Board’s action. If the Board denies an application to assume inactive status, the applicant may request the Court’s administrative review by filing in the Nashville office of the Clerk of the Supreme Court a Petition for Review within thirty days of the Board’s denial. The Court’s review, if any, shall be conducted on the application, the supporting affidavit or declaration under penalty of perjury, and any other materials relied upon by the Board in reaching its decision.

the applicant may request the Court’s administrative review by filing in the Nashville office of the Clerk of the Supreme Court a Petition for Review within thirty days of the Board’s denial. The Court’s review, if any, shall be conducted on the application, the supporting affidavit or declaration under penalty of perjury, and any other materials relied upon by the Board in reaching its decision.

(b) An attorney who assumes inactive status under an exemption granted by Section 10.3(a), (d), or (e) shall pay to the Board, on or before the first day of the attorney’s birth month, an annual inactive-status fee in an amount equal to one half of the total annual fee set forth in Section 10.2(c) for each year the attorney remains inactive. Inactive attorneys who fail to timely pay the annual inactive fee and submit the registration form prescribed by the Board will be mailed a Delinquency Notice and will be subject to delinquent compliance fees and suspension as provided in Sections 10.5 and 10.6. If an attorney chooses to pay or submit annual registration by mail, rather than online, that attorney shall pay an additional $5 for processing.

(c) An attorney who assumes inactive status under the exemption granted by Section 10.3 (e) and who is licensed to practice law in another jurisdiction shall not be eligible to provide any legal services in Tennessee pursuant to Tenn. Sup. Ct. R. 8, RPC 5.5(c) or (d).

10.8.

(a) Upon the Board’s written approval of an application to assume inactive status, the attorney shall be removed from the roll of those classified as active until and unless the attorney requests and is granted reinstatement to the active rolls.

ice law in another jurisdiction shall not be eligible to provide any legal services in Tennessee pursuant to Tenn. Sup. Ct. R. 8, RPC 5.5(c) or (d).

10.8.

(b) Reinstatement following inactive status, other than reinstatement from disability inactive status pursuant to Section 27.7, which has continued for five years or less before the filing of a petition for reinstatement to active status shall not require an order of the Court or a reinstatement proceeding pursuant to Section 30.4. The attorney shall file with the Board a petition for reinstatement to active status. Reinstatement shall be granted unless the attorney is subject to an outstanding order of suspension or disbarment, upon the payment of any assessment in effect for the year the request is made and any arrears accumulated prior to transfer to inactive status.

(c) Reinstatement following inactive status, other than reinstatement from disability inactive status pursuant to Section 27.7, which has continued for more than five years before the filing of a petition for reinstatement to active status shall require an order of the Court but shall not require a reinstatement proceeding pursuant to Section 30.4, unless ordered by the Court. The attorney shall file with the Court a petition for reinstatement to active status. The petitioner shall serve a copy of the petition upon Disciplinary Counsel, who shall investigate the matter and file an answer to the petition within thirty days. The Court shall review the record and determine whether to grant or deny the petition for reinstatement

Section 30.4, unless ordered by the Court. The attorney shall file with the Court a petition for reinstatement to active status. The petitioner shall serve a copy of the petition upon Disciplinary Counsel, who shall investigate the matter and file an answer to the petition within thirty days. The Court shall review the record and determine whether to grant or deny the petition for reinstatement. If the Court grants the petition, the Reinstatement Order shall provide that the attorney’s reinstatement is effective as of the date of the attorney’s payment of any assessment in effect for the year the request is made and any arrears accumulated prior to transfer to inactive status.

10.9.

The courts of this State are charged with the responsibility of insuring that no disbarred, suspended, or inactive attorney be permitted to file any document, paper or pleading or otherwise practice therein.

10.10.

(a) Every attorney who is required by Section 10.1 to file an annual registration statement with the Board is requested to also file a pro bono reporting statement, reporting the extent of the attorney’s pro bono legal services and activities during the previous calendar year. The pro bono reporting statement shall be in substantially the format provided in Appendix A hereto, and shall be provided to the attorney by the Board with the attorney’s annual registration statement.

(b) In reporting the extent of the attorney’s pro bono legal services and activities, the attorney is requested to state whether or not the attorney made any voluntary financial contributions pursuant to RPC 6.1(c), but the attorney need not disclose the amount of any such contributions.

(d) The individual information provided by attorneys in the pro bono reporting statements filed pursuant to this Section shall be confidential and shall not be a public record, unless the attorney waives confidentiality on the reporting statement solely to be considered for recognition by the Tennessee Supreme Court for pro bono work the attorney completed in the previous calendar year. The Board shall not release any individual information contained in such statements, except as directed in writing by the Court or as required by law. The Board, however, may compile statistical data derived from the statements, which data shall not identify any individual attorney, and may release any such compilations to the public.

Section 11. Grounds for Discipline

11.1.

Acts or omissions by an attorney, individually or in concert with any other person or persons, which violate the Rules of Professional Conduct of the State of Tennessee, including acts prior to surrender of a law license, suspension, disbarment, or transfer to inactive status on other grounds, and acts subsequent to resignation, suspension, disbarment, or transfer to inactive status which acts amount to the practice of law, shall constitute misconduct and shall be grounds for discipline, whether or not the act or omission occurred in the course of an attorney-client relationship.

11.2.

Conviction of a serious crime as defined in Section 2 also shall be grounds for discipline pursuant to the procedures set forth in Section 22.

11.3.

Adjudication that a lawyer has willfully refused to comply with a court order also shall be grounds for discipline.

Section 12

grounds for discipline, whether or not the act or omission occurred in the course of an attorney-client relationship.

11.2.

Conviction of a serious crime as defined in Section 2 also shall be grounds for discipline pursuant to the procedures set forth in Section 22.

11.3.

Adjudication that a lawyer has willfully refused to comply with a court order also shall be grounds for discipline.

Section 12. Types of Discipline

The following are the types of discipline which may be imposed, with or without conditions, on the basis of the grounds for discipline set forth in Section 11.

12.1.

Disbarment.

Disbarment terminates the individual’s status as an attorney.

12.2

Suspension.

(a) Suspension generally is the removal of an attorney from the practice of law for a specified minimum period of time. Suspension may be for a fixed period of time, or for a fixed period of time and an indefinite period to be determined by the conditions proposed by the judgment. The imposition of a portion but not all of a suspension for a fixed period of time may be deferred in conjunction with a period of probation ordered pursuant to Section 14. A suspension order must result in some cessation of the practice of law for not less than thirty days.

(1) No attorney suspended under any Section of this Rule shall resume practice until reinstated by order of the Court.

(2) No suspension shall be ordered for a specific period less than thirty days or in excess of ten years.

(3) All suspensions regardless of duration shall be public and shall be subject to the provisions of Section 28, unless otherwise expressly provided in this Rule.

(b) No suspension shall be made retroactive, except that a suspension may be made retroactive to a date on which an attorney was temporarily suspended pursuant to Section 12.3 or Section 22 if the attorney was not subsequently reinstated from such temporary suspension.

12.3.

Temporary Suspension.

nd shall be subject to the provisions of Section 28, unless otherwise expressly provided in this Rule.

12.3.

Temporary Suspension.

(a) On petition of Disciplinary Counsel and supported by an affidavit or declaration under penalty of perjury demonstrating facts personally known to affiant showing that an attorney has misappropriated funds to the attorney’s own use, has 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 pursuant to Section 36.1, or otherwise poses a threat of substantial harm to the public, the Court may issue an order with such notice as the Court may prescribe imposing temporary conditions of probation on said attorney or temporarily suspending said attorney, or both.

(b) Any order of temporary suspension which restricts the attorney maintaining a trust account shall, when served on any bank maintaining an account against which said attorney may make withdrawals, serve as an injunction to prevent said bank from making further payment from such account or accounts on any obligation except in accordance with restrictions imposed by the Court.

d attorney, or both.

(c) Any order of temporary suspension issued under this Rule shall preclude the attorney from accepting any new cases, unless otherwise provided in the order. An order of temporary suspension shall not preclude the attorney from continuing to represent existing clients during the first thirty days after the effective date of the order of temporary suspension, unless otherwise provided in the order; however, any fees tendered to such attorney during such thirty day period shall be deposited in a trust fund from which withdrawals may be made only in accordance with restrictions imposed by the Court.

(d) The attorney may for good cause request dissolution or amendment of any such order of temporary suspension by filing in the Nashville office of the Clerk of the Supreme Court and serving on Disciplinary Counsel a Petition for Dissolution or Amendment. Such petition for dissolution shall be set for immediate hearing before the Board or a panel. The Board or panel shall hear such petition forthwith and file its report and recommendation to the Supreme Court with the utmost speed consistent with due process. There shall be no petition for rehearing. Upon receipt of the foregoing report, the Court may modify its order if appropriate or continue such provision of the order as may be appropriate until final disposition of all pending disciplinary charges against said attorney;

12.4. Public Censure.

Public censure is a form of public discipline which declares the conduct of the attorney improper, but does not limit the attorney’s privilege to practice law.

12.5.

Private Reprimand

t, the Court may modify its order if appropriate or continue such provision of the order as may be appropriate until final disposition of all pending disciplinary charges against said attorney;

12.4. Public Censure.

Public censure is a form of public discipline which declares the conduct of the attorney improper, but does not limit the attorney’s privilege to practice law.

12.5.

Private Reprimand.

Private reprimand is a form of non-public discipline which declares the conduct of the attorney improper, but does not limit the attorney’s privilege to practice law. A private reprimand may be imposed when there is harm or risk of harm to the client, the public, the legal system or the profession, and the respondent attorney has previously received a private informal admonition for the same misconduct and repeats the misconduct; or, when there are several similar acts of minor misconduct within the same time frame, but relating to different matters.

12.6.

Private Informal Admonition.

Private informal admonition is a form of non-public discipline which declares the conduct of the attorney improper, but does not limit the attorney’s privilege to practice law. Private informal admonition may be imposed when there is harm or risk of harm to the client, the public, the legal system or the profession, but the misconduct appears to be an isolated incident or is minor.

12.7.

Restitution.

Upon order of a hearing panel, panel or court, or upon stipulation of the parties, and in addition to any other type of discipline imposed, the respondent attorney may be required to make restitution to persons or entities financially injured as a result of the respondent attorney’s misconduct. In the event that a person or entity financially injured as a result of the respondent attorney’s misconduct has received any payment from or has a claim pending before the Tennessee Lawyers’ Fund for Client Protection, the order or stipulation shall provide that the Fund shall be reimbursed to the extent of such payment by the Fund.

12.8

njured as a result of the respondent attorney’s misconduct. In the event that a person or entity financially injured as a result of the respondent attorney’s misconduct has received any payment from or has a claim pending before the Tennessee Lawyers’ Fund for Client Protection, the order or stipulation shall provide that the Fund shall be reimbursed to the extent of such payment by the Fund.

12.8.

Upon order of a hearing panel, panel or court, or upon stipulation of the respondent attorney and Disciplinary Counsel in matters which are or are not in formal proceedings, conditions consistent with the purpose of this Rule and with the Rules of Professional Conduct, including but not limited to the requirement of a practice monitor pursuant to the procedures set forth in Section 12.9 and completion of a practice and professionalism enhancement program, may be placed upon the imposition of any form of public discipline. If a respondent attorney fails to fully comply with the conditions placed upon the public discipline imposed, the Board may reopen its disciplinary file and conduct further proceedings under these Rules.

12.9. Practice Monitors.

(a) If a practice monitor is required as a condition of public discipline pursuant to Section 12.8, or as a condition of probation pursuant to Section 14, or as a condition of reinstatement pursuant to Section 30, the judgment or order of the hearing panel or panel and the Order of Enforcement, Order of Reinstatement, or other judgment or order of the reviewing court shall specify the duties and responsibilities of the practice monitor.

a condition of public discipline pursuant to Section 12.8, or as a condition of probation pursuant to Section 14, or as a condition of reinstatement pursuant to Section 30, the judgment or order of the hearing panel or panel and the Order of Enforcement, Order of Reinstatement, or other judgment or order of the reviewing court shall specify the duties and responsibilities of the practice monitor.

(b) The duties and responsibilities of a practice monitor may include, but shall not be limited to, supervision of the respondent or petitioning attorney’s compliance with any conditions of discipline, probation, or reinstatement; and, the respondent or petitioning attorney’s compliance with trust account rules, accounting procedures, office management procedures, and any other matters involving the respondent or petitioning attorney’s practice of law which the parties, by stipulation or agreement, or the hearing panel, panel or reviewing court determines to be appropriate and consistent with the violation(s) for which the respondent or petitioning attorney was disciplined. The practice monitor shall make periodic reports to Disciplinary Counsel at such times or intervals as may be prescribed by Disciplinary Counsel and also as deemed necessary or desirable by the practice monitor.

(c) The respondent or petitioning attorney shall, within fifteen days of the entry of the stipulation, judgment or order imposing the requirement of a practice monitor, provide to the Board a list of three proposed practice monitors, all of whom shall be attorneys licensed to practice law in this State and whose licenses are in good standing with the Board, and none of whom shall be engaged in the practice of law with the respondent or petitioning attorney, whether in a law firm of any form or structure or in an association of attorneys of any kind or form. The Board, in its sole discretion, shall designate a practice monitor from the list so provided, and the Board’s designation shall be final and not subject to appeal

good standing with the Board, and none of whom shall be engaged in the practice of law with the respondent or petitioning attorney, whether in a law firm of any form or structure or in an association of attorneys of any kind or form. The Board, in its sole discretion, shall designate a practice monitor from the list so provided, and the Board’s designation shall be final and not subject to appeal. In the event that the Board, in its sole discretion, determines that none of the respondent or petitioning attorney’s proposed practice monitors is acceptable, or the respondent or petitioning attorney fails to provide the required list, the Board shall designate a practice monitor, and the Board’s designation shall be final and not subject to appeal.

(d) The respondent or petitioning attorney shall be responsible for and shall pay a reasonable fee to the practice monitor, and, where applicable, the payment of such fee shall be a condition of reinstatement pursuant to Section 30. The practice monitor may make application to the Board Chair for an award of fees and shall file with the application an affidavit or a declaration under penalty of perjury and such other documentary evidence as the practice monitor deems appropriate documenting the hours expended and the fees incurred, and shall serve a copy of the same on the respondent or petitioning attorney. Such proof shall create a rebuttable presumption as to the necessity and reasonableness of the hours expended and the fees incurred. The respondent or petitioning attorney may within fifteen days after the practice monitor’s application submit to the Board Chair and serve on the practice monitor any response in opposition to the application for an award of fees. The burden shall be upon respondent or petitioning attorney to prove by a preponderance of the evidence that the hours expended or fees incurred by the practice monitor were unnecessary or unreasonable

orney may within fifteen days after the practice monitor’s application submit to the Board Chair and serve on the practice monitor any response in opposition to the application for an award of fees. The burden shall be upon respondent or petitioning attorney to prove by a preponderance of the evidence that the hours expended or fees incurred by the practice monitor were unnecessary or unreasonable. The practice monitor or the respondent or petitioning attorney may request a hearing before a panel, in which event the panel shall promptly schedule the same. The panel shall within fifteen days from the conclusion of such hearing submit to the Board its findings and judgment with respect to the practice monitor’s application for the award of fees. There shall be no petition for rehearing. The Board shall review the panel’s findings and judgment and shall either enter the panel’s judgment or modify the same and enter judgment as modified. In the event no hearing is requested, the Board shall within fifteen days from the date on which the respondent or petitioning attorney’s response is due or is submitted, whichever is earlier, enter a judgment with respect to the practice monitor’s application for the award of fees. There shall be no other or further relief with respect to an application for the award of practice monitor fees. Nothing herein shall prohibit the practice monitor from providing these services pro bono. A practice monitor who elects to provide services pro bono may include the hours providing such services on his or her annual pro bono reporting statement under the category of “hours providing legal services to improve the law, the legal system, or the legal profession.”

Section 13. Diversion of Disciplinary Cases

13.1. Authority of Board.

The Board is hereby authorized to establish practice and professionalism enhancement programs to which eligible disciplinary cases may be diverted as an alternative to disciplinary sanction

reporting statement under the category of “hours providing legal services to improve the law, the legal system, or the legal profession.”

Section 13. Diversion of Disciplinary Cases

13.1. Authority of Board.

The Board is hereby authorized to establish practice and professionalism enhancement programs to which eligible disciplinary cases may be diverted as an alternative to disciplinary sanction. Subject to Section 36.1(d), the Board is also authorized to require a respondent attorney to enter into a Tennessee Lawyer Assistance Program monitoring agreement requiring mandatory reporting to Disciplinary Counsel as a condition of diversion under this Section. Such monitoring agreement may, in the Board’s discretion, qualify as a practice and professionalism enhancement program or a part thereof.

13.2. Types of Disciplinary Cases Eligible for Diversion.

Disciplinary cases that otherwise would be disposed of by a private informal admonition or a private reprimand are eligible for diversion to practice and professionalism enhancement programs.

13.3. Limitation on Diversion.

A respondent attorney who has been the subject of a prior diversion within five years shall not be eligible for diversion.

13.4. Approval of Diversion.

The Board shall not offer a respondent attorney the opportunity to divert a disciplinary case to a practice and professionalism enhancement program unless the Board or a combination of Disciplinary Counsel and a district committee member concur.

13.5. Contents of Diversion Recommendation.

If a diversion recommendation is approved as provided in Section 13.4, the recommendation shall state the practice and professionalism enhancement program(s) to which the respondent attorney shall be diverted, shall state the general purpose for the diversion, and that the costs thereof shall be paid by the respondent attorney.

13.6. Service of Recommendation on and Review by Respondent

endation.

13.6. Service of Recommendation on and Review by Respondent.

If a diversion recommendation is approved as provided in Section 13.4, the recommendation shall be served on the respondent attorney who may accept or reject a diversion recommendation in the same manner as provided for in Section 15. The respondent attorney shall not have the right to reject any specific requirement of a practice and professionalism enhancement program.

13.7. Effect of Rejection of Recommendation by Respondent Attorney.

In the event that a respondent attorney rejects a diversion recommendation the matter shall be returned for further proceedings under this Rule.

13.8. Effect of Diversion.

(a) When the recommendation of diversion becomes final, the respondent attorney shall enter the practice and professionalism enhancement program(s) and complete the requirements thereof. Disciplinary Counsel shall provide the complainant notice that the complaint has been resolved by diversion and that the matter is confidential under Section 32. The complainant has no right to appeal a disposition by diversion under this Section.

sion becomes final, the respondent attorney shall enter the practice and professionalism enhancement program(s) and complete the requirements thereof. Disciplinary Counsel shall provide the complainant notice that the complaint has been resolved by diversion and that the matter is confidential under Section 32. The complainant has no right to appeal a disposition by diversion under this Section.

(b) Upon the respondent attorney’s successful completion of the practice and professionalism enhancement program(s), the Board shall terminate its investigation into the matter and its disciplinary files indicating the diversion shall be closed unless the diversion is ordered in addition to other discipline. Diversion into the practice and professionalism enhancement program shall not constitute a disciplinary sanction and shall remain confidential.

13.9. Effect of Failure to Complete the Practice and Professionalism Enhancement Program.

If a respondent attorney fails to fully complete all requirements of the practice and professionalism enhancement program(s) to which the respondent attorney was diverted, including the payment of costs thereof, the Board may reopen its disciplinary file and conduct further proceedings under this Rule. Failure to complete the practice and professionalism enhancement program shall be considered as a matter of aggravation when imposing a disciplinary sanction.

Section 14. Probation

14.1. Probation.

In the discretion of the hearing panel, panel or a reviewing court, the imposition of a suspension for a fixed period (Section 12.2) may be deferred in conjunction with a fixed period of probation. The conditions of probation shall be stated in writing in the judgment of the hearing panel, panel or court. Probation shall be used only in cases where there is little likelihood that the respondent attorney will harm the public during the period of rehabilitation and where the conditions of probation can be adequately supervised

may be deferred in conjunction with a fixed period of probation. The conditions of probation shall be stated in writing in the judgment of the hearing panel, panel or court. Probation shall be used only in cases where there is little likelihood that the respondent attorney will harm the public during the period of rehabilitation and where the conditions of probation can be adequately supervised. Subject to Section 36.1(d), the hearing panel, panel or reviewing court may require the respondent attorney to enter into a monitoring agreement with the Tennessee Lawyer Assistance Program requiring mandatory reporting to Disciplinary Counsel. The hearing panel, panel or reviewing court may require as a condition of probation the assignment of a practice monitor for the purposes and pursuant to the procedures set forth in Section 12.9 and the completion of a practice and professionalism enhancement program. The respondent attorney shall pay the costs associated with probation, including but not limited to a reasonable fee to the practice monitor.

14.2.

In the event the respondent attorney violates or otherwise fails to meet any condition of probation, Disciplinary Counsel is authorized to file a petition to revoke probation. Upon the filing of such a petition, the respondent attorney shall have the opportunity to appear and be heard before a panel. A record of such hearing shall be made in the same manner as for a disciplinary hearing under Section 15.2. The only issue in such a proceeding is whether probation is to be revoked; the original judgment imposing the fixed period of probation may not be reconsidered. Upon finding that revocation of probation is warranted, the panel shall order that the respondent attorney serve the previously deferred period of suspension. As an alternative to revocation, the panel may impose additional conditions on probation, including the requirement of a practice monitor to be appointed in accordance with the procedures set forth in Section 12.9

on may not be reconsidered. Upon finding that revocation of probation is warranted, the panel shall order that the respondent attorney serve the previously deferred period of suspension. As an alternative to revocation, the panel may impose additional conditions on probation, including the requirement of a practice monitor to be appointed in accordance with the procedures set forth in Section 12.9. Having conducted such a hearing, the panel shall file an order within thirty days; this order must include the basis for the panel’s decision. There shall be no petition for rehearing. An order reflecting the decision shall be treated as a decree of the circuit or chancery court and, as such, is appealable to the Court under Section 33.

14.3.

Probation shall terminate upon the expiration of the fixed period of probation, unless the conditions of probation have been violated or have not been met. Probation may be terminated earlier by the tribunal (hearing panel or court) which imposed the period of probation upon the filing of a motion and an affidavit or declaration under penalty of perjury by the respondent attorney showing compliance with all the conditions of probation and an affidavit or declaration under penalty of perjury by the practice monitor, if one is designated, stating that probation is no longer necessary and summarizing the basis for that statement. Disciplinary Counsel shall file a response to any such motion to terminate probation. The tribunal may conduct whatever hearings are necessary to decide the motion to terminate probation. There shall be no petition for rehearing. The tribunal’s ruling on the motion may be appealed pursuant to Section 33.

Section 15. Initiation, Investigation, and Hearing

15.1.

izing the basis for that statement. Disciplinary Counsel shall file a response to any such motion to terminate probation. The tribunal may conduct whatever hearings are necessary to decide the motion to terminate probation. There shall be no petition for rehearing. The tribunal’s ruling on the motion may be appealed pursuant to Section 33.

Section 15. Initiation, Investigation, and Hearing

15.1.

(a) All complaints must be submitted in writing, must contain the identity of the complainant, and must be signed by the complainant. The Board shall provide the respondent attorney with a complete copy of the original complaint and of any additional or supplemental written submissions provided by the complainant. In the event that the Board’s investigation is the result of information from a source other than a written complaint pursuant to Section 4.5(a), the Board shall notify the respondent attorney and provide a copy of such information.

(b) All investigations, whether upon complaint or otherwise, shall be initiated and conducted by Disciplinary Counsel. Upon the conclusion of an investigation, Disciplinary Counsel may recommend dismissal, private informal admonition, private reprimand, public censure or prosecution of formal charges before a hearing panel.

(c) If Disciplinary Counsel recommends disposition by dismissal or private informal admonition, the reviewing member of the district committee in the appropriate disciplinary district shall review the recommendation and may approve or modify it. In reviewing the recommended disposition, the reviewing member of the district committee shall consider the applicable provisions of the ABA Standards for Imposing Lawyer Sanctions. In no event may the reviewing member of the district committee impose a sanction greater than private informal admonition. Nor may the reviewing member of the district committee offer diversion except as provided in Section 13.4. Disciplinary Counsel may appeal to the Board the action of the reviewing member of the district committee

rovisions of the ABA Standards for Imposing Lawyer Sanctions. In no event may the reviewing member of the district committee impose a sanction greater than private informal admonition. Nor may the reviewing member of the district committee offer diversion except as provided in Section 13.4. Disciplinary Counsel may appeal to the Board the action of the reviewing member of the district committee.

(d) If Disciplinary Counsel recommends disposition by private reprimand or public censure, or recommends the prosecution of formal charges before a hearing panel, the Board shall review the recommendation and approve or modify it. In reviewing the recommended disposition, the Board shall consider the applicable provisions of the ABA Standards for Imposing Lawyer Sanctions. The Board may determine whether a matter should be concluded by dismissal or private informal admonition; may recommend a private reprimand or public censure; or, may direct that a formal proceeding be instituted.

(e) A respondent attorney shall not be entitled to appeal a private informal admonition approved by the reviewing member of the district committee or imposed by the Board; similarly, a respondent attorney may not appeal a recommended private reprimand or public censure by the Board. In either case, however, the respondent attorney may, within twenty days of notice thereof, demand as of right that a formal proceeding be instituted before a hearing panel in the appropriate disciplinary district. In the event of such demand, the private informal admonition shall be vacated or the recommended private reprimand or public censure shall be withdrawn, and the matter shall be disposed of in the same manner as any other formal hearing instituted before a hearing panel.

reof, demand as of right that a formal proceeding be instituted before a hearing panel in the appropriate disciplinary district. In the event of such demand, the private informal admonition shall be vacated or the recommended private reprimand or public censure shall be withdrawn, and the matter shall be disposed of in the same manner as any other formal hearing instituted before a hearing panel.

(f) If Disciplinary Counsel recommends disposition by dismissal, and if that recommended disposition is approved by the reviewing member of the district committee in the appropriate disciplinary district, Disciplinary Counsel shall provide the complainant notice of the disposition by dismissal. A complainant who is not satisfied with the disposition by dismissal of the matter may appeal in writing to the Board within thirty days of receipt of notice of the reviewing member’s approval of the recommended disposition. The Board, or a committee of no fewer than three of its members, may approve, modify or disapprove the disposition, or direct that the matter be investigated further. The complainant has no other or further right of appeal or review under this Rule or otherwise.

(g) If Disciplinary Counsel recommends disposition by private informal admonition, and if that recommended disposition is approved by the reviewing member of the district committee in the appropriate disciplinary district, Disciplinary Counsel shall provide the complainant notice that the complaint has been resolved by private informal admonition and that the matter is confidential under Section 32. The complainant has no right to appeal a disposition by private informal admonition under this Section.

disposition is approved by the reviewing member of the district committee in the appropriate disciplinary district, Disciplinary Counsel shall provide the complainant notice that the complaint has been resolved by private informal admonition and that the matter is confidential under Section 32. The complainant has no right to appeal a disposition by private informal admonition under this Section.

(h) If Disciplinary Counsel recommends disposition by private reprimand, and if that recommended disposition is approved by the Board, Disciplinary Counsel shall provide the complainant notice that the complaint has been resolved by private reprimand and that the matter is confidential under Section 32. The complainant has no right to appeal a disposition by private reprimand under this Section.

15.2.

(a) Formal disciplinary proceedings before a hearing panel shall be commenced by Disciplinary Counsel by filing with the Board a Petition for Discipline (hereinafter “Petition”) which shall be sufficiently clear and specific to inform the respondent attorney of the alleged misconduct. Disciplinary Counsel, as needed, may file Amended Petitions which arise out of the same facts and circumstances but which change, delete or augment the existing allegations. Disciplinary Counsel, as needed and with the approval of the Board, may file Supplemental Petitions which make new allegations and which bring new charges arising from a different complaint(s) not previously included in a Petition. No Petition, Amended Petition, or Supplemental Petition shall include allegations of any private discipline previously imposed against the respondent attorney.

tions. Disciplinary Counsel, as needed and with the approval of the Board, may file Supplemental Petitions which make new allegations and which bring new charges arising from a different complaint(s) not previously included in a Petition. No Petition, Amended Petition, or Supplemental Petition shall include allegations of any private discipline previously imposed against the respondent attorney.

(b) A copy of the Petition shall be served upon the respondent attorney pursuant to Section 18.1. The respondent attorney shall serve an answer upon Disciplinary Counsel pursuant to Section 18.2 and file the original with the Board within thirty days after the service of the Petition, unless such time is extended by the agreement of Disciplinary Counsel or by leave of the Chair of the Board. In the event the respondent attorney fails to answer, the charges shall be deemed admitted and Disciplinary Counsel may move the hearing panel assigned to hear the matter for entry of a Judgment of Default. Disciplinary Counsel shall serve a copy of any such motion on the respondent attorney pursuant to Section 18.2. Relief from a Judgment of Default for failure to serve an answer to the Petition within thirty days shall be determined by the hearing panel in the same manner such motions are determined by Rule 55.02 of the Tennessee Rules of Civil Procedure. Upon granting relief from a Judgment of Default, the hearing panel may extend the respondent attorney’s time to answer the Petition.

(c) A copy of any Amended Petition or Supplemental Petition shall be served on the respondent attorney pursuant to Section 18.2. The respondent attorney shall serve an answer on Disciplinary Counsel pursuant to Section 18.2 and file the original with the Board within fifteen days after service of the Amended Petition or Supplemental Petition, unless such time is extended by the agreement of Disciplinary Counsel or by leave of the hearing panel assigned to hear the matter.

n the respondent attorney pursuant to Section 18.2. The respondent attorney shall serve an answer on Disciplinary Counsel pursuant to Section 18.2 and file the original with the Board within fifteen days after service of the Amended Petition or Supplemental Petition, unless such time is extended by the agreement of Disciplinary Counsel or by leave of the hearing panel assigned to hear the matter.

(d) Following the service of the answer to the Petition, or upon failure to answer, the matter shall be assigned by the Chair of the Board to a hearing panel. The Chair of the Board, or in the absence of the Chair the Vice-Chair of the Board, shall select the hearing panel from the members of the district committee in the district in which the respondent practices law. The hearing panel shall be selected pursuant to written procedures approved by the Board. If there is an insufficient number of committee members in that district who are able to serve on the hearing panel, the Chair, or Vice -Chair, may appoint one or more members from the district committee of an adjoining district to serve on the panel.

(e) Ex parte communications between the Chair or the Vice-Chair of the Board, district committee members, and the Executive Secretary of the Board concerning the selection of hearing panels and for scheduling or other administrative purposes are permitted. A district committee member may advise the Executive Secretary of the Board if he or she is unable to serve on a hearing panel for any reason.

(f) A pre-hearing conference shall be held within sixty days of the filing date of any Petition commencing a formal proceeding, or within thirty days of the filing of the answer if an extension has been granted. The pre-hearing conference shall be conducted by the chair of the assigned hearing panel and at least one other member of the hearing panel. The pre-hearing conference may be conducted in person, by telephone, or by video conference. In the pre-hearing conference, the hearing panel shall schedule deadlines for discovery, the filing of motions, and the exchange of witness and exhibit lists, and it also shall set the hearing date. The hearing panel may discuss with and accept from the parties stipulations of fact and/or stipulations regarding the authenticity of documents and exhibits, may narrow the issues presented by the pleadings, and may address any other matter the hearing panel deems appropriate in the management of the proceeding, including but not limited to the resolution of any discovery disputes except as otherwise provided by Section 19. Subsequent pre-hearing conferences may be held in the discretion of the hearing panel, acting on its own initiative or upon motion of a party. Within five days of each pre-hearing conference, the chair of the hearing panel shall file an order reciting the actions taken by the hearing panel during the conference, including any deadlines imposed and the date set for the hearing. The order shall advise the respondent attorney that he/she is entitled to be represented by counsel, to cross-examine witnesses, and to present evidence in his/her own behalf.

ays of each pre-hearing conference, the chair of the hearing panel shall file an order reciting the actions taken by the hearing panel during the conference, including any deadlines imposed and the date set for the hearing. The order shall advise the respondent attorney that he/she is entitled to be represented by counsel, to cross-examine witnesses, and to present evidence in his/her own behalf.

(g) In a hearing panel’s hearing on the Petition, Disciplinary Counsel may submit evidence of prior discipline against the respondent attorney, including prior private discipline, as an aggravating circumstance. Such evidence may be introduced to the extent it is otherwise admissible under the Tennessee Rules of Evidence. Pursuant to Section 32.6, the respondent attorney may apply to the hearing panel for a protective order concerning the admission of evidence of prior private discipline.

(h) In hearings on formal charges of misconduct, Disciplinary Counsel must prove the case by a preponderance of the evidence.

15.3.

(a) In every case, the hearing panel shall submit its findings and judgment, in the form of a final decree of a trial court, to the Board within thirty days after the conclusion of the hearing. The hearing panel’s findings and judgment shall contain a notice that the findings and judgment may be appealed pursuant to Section 33. The Executive Secretary shall serve a copy of the hearing panel’s findings and judgment upon Disciplinary Counsel, the respondent attorney and the respondent attorney’s counsel of record pursuant to Section 18.2. The hearing panel may make a written request to the Chair for an extension of time within which to file its findings and judgment. In the event that the hearing panel does not submit its findings and judgment within thirty days or such other time as extended by the Chair, Disciplinary Counsel shall report the same to the Court which may take such action as it deems necessary to secure submission of the findings and judgment

written request to the Chair for an extension of time within which to file its findings and judgment. In the event that the hearing panel does not submit its findings and judgment within thirty days or such other time as extended by the Chair, Disciplinary Counsel shall report the same to the Court which may take such action as it deems necessary to secure submission of the findings and judgment. The failure of the hearing panel to meet this deadline, however, shall not be grounds for dismissal of the Petition.

(b) There shall be no petition for rehearing. Any appeal pursuant to Section 33 must be filed within sixty days of the entry of the hearing panel’s judgment. If the Board makes application to the hearing panel for the assessment of costs pursuant to Section 31, the making of such application shall extend the time for taking steps in the regular appellate process under Section 33.1(a) unless, upon application of the Board to the Court and for good cause shown, the Court orders otherwise.

15.4.

(a) If the hearing panel finds one or more grounds for discipline of the respondent attorney, the hearing panel’s judgment shall specify the type of discipline imposed: disbarment (Section 12.1), suspension (Section 12.2), or public censure (Section 12.4). In the discretion of the hearing panel, the imposition of a portion but not all of a suspension for a fixed period of time (Section 12.2) may be deferred in conjunction with a period of probation ordered pursuant to Section 14. In addition to imposing one of the foregoing types of discipline, the hearing panel may order restitution (Section 12.7). Temporary suspension (Section 12.3), private reprimand (Section 12.5), and private informal admonition (Section 12.6) are not types of discipline available to the hearing panel following the filing of a Petition for Discipline. In determining the appropriate type of discipline, the hearing panel shall consider the applicable provisions of the ABA Standards for Imposing Lawyer Sanctions.

n 12.7). Temporary suspension (Section 12.3), private reprimand (Section 12.5), and private informal admonition (Section 12.6) are not types of discipline available to the hearing panel following the filing of a Petition for Discipline. In determining the appropriate type of discipline, the hearing panel shall consider the applicable provisions of the ABA Standards for Imposing Lawyer Sanctions.

(b) If the judgment of the hearing panel is that the respondent attorney shall be disbarred or suspended for any period of time or shall receive a public censure, and no appeal is perfected within the time allowed, or if there is a settlement providing for a disbarment or suspension for any period of time or a public censure, at any stage of disciplinary proceedings, the Board shall file in the Nashville office of the Clerk of the Supreme Court a Notice of Submission with attached copies of the Petition, the judgment or settlement, the proposed Order of Enforcement, and a Protocol Memorandum as defined in Section 2. A copy of the proposed Order of Enforcement and the Protocol Memorandum shall be served upon the respondent attorney and the respondent attorney’s counsel of record pursuant to Section 18.2. In all cases except those in which the sanction imposed is by agreement, the respondent attorney shall have ten days from service of the foregoing within which to file with the Court and serve upon Disciplinary Counsel pursuant to Section 18.2 a response to the Protocol Memorandum. Such response shall be limited to contesting any alleged factual errors in the Protocol Memorandum. The Court shall review the recommended punishment provided in such judgment or settlement with a view to attaining uniformity of punishment throughout the State and appropriateness of punishment under the circumstances of each particular case. The Court may direct that the transcript or record of any proceeding be prepared and filed with the Court for its consideration.

the Protocol Memorandum. The Court shall review the recommended punishment provided in such judgment or settlement with a view to attaining uniformity of punishment throughout the State and appropriateness of punishment under the circumstances of each particular case. The Court may direct that the transcript or record of any proceeding be prepared and filed with the Court for its consideration.

(c) If the Court finds that the punishment imposed under subsection (b) appears to be inadequate or excessive, it shall issue an order advising the Board and the respondent attorney that it proposes to increase or to decrease the punishment. If the Court proposes to increase the punishment, the respondent attorney shall have twenty days from the date of the order to file a brief and request oral argument; if the Court proposes to decrease the punishment, the Board shall have twenty days from the date of the order within which to file a brief and request oral argument. Reply briefs shall be due within twenty days of the filing of the preceding brief. If a party requests oral argument, the Court may grant it. Upon termination of such proceedings as are requested, the Court may modify the judgment of the hearing panel or the settlement in such manner as it deems appropriate. There shall be no petition for rehearing.

(d) If the judgment of a hearing panel is appealed to the circuit or chancery court pursuant to Section 33 and the trial court enters a judgment disbarring or suspending the respondent attorney for any period of time or imposing a public censure, and no appeal is perfected within the time allowed, the Board shall file in the Nashville office of the Clerk of the Supreme Court a Notice of Submission with an attached copy of its judgment. The Court shall review the recommended punishment provided in such judgment with a view to attaining uniformity of punishment throughout the State and appropriateness of punishment under the circumstances of each particular case

cted within the time allowed, the Board shall file in the Nashville office of the Clerk of the Supreme Court a Notice of Submission with an attached copy of its judgment. The Court shall review the recommended punishment provided in such judgment with a view to attaining uniformity of punishment throughout the State and appropriateness of punishment under the circumstances of each particular case. The Court may direct that the transcript or record of any proceeding be prepared and filed with the Court for its consideration.

(e) If the Court finds that the punishment imposed under subsection (d) appears to be inadequate or excessive, it shall issue an order advising the Board and the respondent attorney that it proposes to increase or to decrease the punishment. If the Court proposes to increase the punishment, the respondent attorney shall have twenty days from the date of the order to file a brief and request oral argument; if the Court proposes to decrease the punishment, the Board shall have twenty days from the date of the order within which to file a brief and request oral argument. Reply briefs shall be due within twenty days of the filing of the preceding brief. If a party requests oral argument, the Court may grant it. Upon termination of such proceedings as are requested, the Court may modify the judgment of the trial court in such manner as it deems appropriate. There shall be no petition for rehearing.

Section 16. Complaints Against Board Members, District Committee Members, or Disciplinary Counsel

16.1.

(a) Complaints against Disciplinary Counsel or a district committee member alleging violations of the Rules of Professional Conduct shall be submitted directly to the Board.

(b) Disagreement with the official decision of Disciplinary Counsel, a hearing panel, or a district committee member, taken in the course and scope of his or her responsibilities, shall not be grounds for the filing of a disciplinary complaint.

inst Disciplinary Counsel or a district committee member alleging violations of the Rules of Professional Conduct shall be submitted directly to the Board.

(c) The investigation of complaints against Disciplinary Counsel submitted under Section 16.1 shall proceed in accordance with the procedures contained in Section 15, except that an attorney member of the Board appointed by the Chair shall conduct the investigation and the findings of such investigation shall be reviewed by a committee of no fewer than three members of the Board appointed by the Chair or Vice Chair. Provided, however, that the Board may request the Court to appoint a Special Disciplinary Counsel to conduct the investigation. Upon application to the Court, the Court may authorize the payment of reasonable fees to Special Disciplinary Counsel.

(d) The investigation of complaints against district committee members shall be conducted by Disciplinary Counsel in accordance with the procedures contained in Section 15. The findings of such investigation shall be reviewed by a committee of no fewer than three members of the Board appointed by the Chair or Vice Chair. Provided, however, that the Board may request the Court to appoint a Special Disciplinary Counsel to conduct the investigation. Upon application to the Court, the Court may authorize the payment of reasonable fees to Special Disciplinary Counsel.

16.2.

(a) Complaints against attorney members of the Board alleging violations of the Rules of Professional Conduct shall be submitted directly to the Chief Justice of the Court.

e Board may request the Court to appoint a Special Disciplinary Counsel to conduct the investigation. Upon application to the Court, the Court may authorize the payment of reasonable fees to Special Disciplinary Counsel.

16.2.

(a) Complaints against attorney members of the Board alleging violations of the Rules of Professional Conduct shall be submitted directly to the Chief Justice of the Court.

(b) Disagreement with the official decision of the Board or a member, taken in the course and scope of his or her responsibilities, shall not be grounds for the filing of a disciplinary complaint.

16.3.

The investigation of complaints submitted under Section 16.2 against attorney members of the Board shall proceed in accordance with the procedures contained in Section 15, with the following modifications:

(a) A Special Disciplinary Counsel, whom the Chief Justice shall appoint by order entered under seal, shall take the place and perform all of the functions of Disciplinary Counsel set forth in Section 15.1, including all investigations, whether upon complaint or otherwise. Upon conclusion of an investigation, Special Disciplinary Counsel may recommend dismissal, private informal admonition of the attorney concerned, or a private reprimand, public censure, or prosecution of formal charges before a special hearing panel.

(b) One member of the Court, whom the Chief Justice shall designate, shall take the place and perform all of the functions of the Board in all investigations and proceedings governed by this Section, including the review of recommendations of dismissal or private informal admonition, or a private reprimand, public censure or prosecution of formal charges, pursuant to Section 15.1. The member so designated shall not participate with the Court in any subsequent proceedings in the same case.

perform all of the functions of the Board in all investigations and proceedings governed by this Section, including the review of recommendations of dismissal or private informal admonition, or a private reprimand, public censure or prosecution of formal charges, pursuant to Section 15.1. The member so designated shall not participate with the Court in any subsequent proceedings in the same case.

(1) If Special Disciplinary Counsel’s recommendation is dismissal, it shall be reviewed by the designated member of the Court (“Reviewing Justice”), who may approve or modify it. If the recommendation is approved by the Reviewing Justice, notice of the disposition by dismissal shall be provided by Special Disciplinary Counsel to the complainant. A complainant who is not satisfied with the disposition by dismissal of the matter may appeal in writing to the Chief Justice within thirty days of receipt of notice of the Reviewing Justice’s approval of the recommended disposition. The Court may approve, modify, or disapprove the disposition, or direct that the matter be investigated further. If the Court approves the recommended disposition of dismissal, the Court shall enter an appropriate order under seal.

(2) If Special Disciplinary Counsel’s recommendation is private informal admonition, it shall be reviewed by the Reviewing Justice, who may approve or modify it. If the recommendation is approved by the Reviewing Justice, notice shall be provided by Special Disciplinary Counsel to the complainant that the complaint has been resolved by private informal admonition and that the matter is confidential under Section 32. The complainant has no right to appeal a disposition by private informal admonition under this Section.

stice, who may approve or modify it. If the recommendation is approved by the Reviewing Justice, notice shall be provided by Special Disciplinary Counsel to the complainant that the complaint has been resolved by private informal admonition and that the matter is confidential under Section 32. The complainant has no right to appeal a disposition by private informal admonition under this Section.

(3) If the recommended disposition is private reprimand, public censure, or prosecution of formal charges before a special hearing panel, the Reviewing Justice shall review the recommendation and shall approve, disapprove, or modify it. The Reviewing Justice may determine whether a matter should be concluded by dismissal or private informal admonition; may approve or impose a private reprimand or public censure; or may direct that a formal proceeding be instituted before a special hearing panel.

(4) If Special Disciplinary Counsel’s recommendation is private reprimand, and if the recommendation is approved by the Reviewing Justice, notice shall be provided by Special Disciplinary Counsel to the complainant that the complaint has been resolved by private reprimand and that the matter is confidential under Section 32. The complainant has no right to appeal a disposition by private reprimand under this Section.

(5) The respondent attorney shall not be entitled to appeal a private informal admonition approved by the Reviewing Justice; similarly, the respondent attorney may not appeal a private reprimand or public censure approved or imposed by the Reviewing Justice. In either case, however, the respondent attorney may, within twenty days of notice thereof, demand as of right that a formal proceeding be instituted before a special hearing panel. In the event of such demand, the private informal admonition shall be vacated or the recommended private reprimand or public censure shall be withdrawn, and the matter shall be disposed of in the same manner as any other formal hearing instituted before a hearing panel.

within twenty days of notice thereof, demand as of right that a formal proceeding be instituted before a special hearing panel. In the event of such demand, the private informal admonition shall be vacated or the recommended private reprimand or public censure shall be withdrawn, and the matter shall be disposed of in the same manner as any other formal hearing instituted before a hearing panel.

(c) If the recommendation, as approved or modified by the Reviewing Justice, includes the institution of formal proceedings before a hearing panel, or if the respondent attorney demands in writing to the Chief Justice such formal proceedings as of right, then the Chief Justice shall at that time appoint three persons to act as a special hearing panel. The special hearing panel shall take the place and perform all of the functions of the hearing panel as provided in Sections 6 and 15. The Special Disciplinary Counsel shall continue to perform the functions of Disciplinary Counsel and shall proceed in accordance with the provisions of this Rule governing formal proceedings.

(d) There shall be no petition for rehearing. The respondent attorney or Special Disciplinary Counsel may appeal the judgment of the special hearing panel as provided in Section 33.

Section 17. Immunity

Members of the Board, district committee members, Disciplinary Counsel, staff, and practice monitors shall be immune from civil suit for any conduct in the course of their official duties. Complainants and witnesses shall be immune from civil suit with respect to any communications to the Board, district committee members, Disciplinary Counsel or staff relating to attorney misconduct or disability or any testimony in the proceedings regarding the same, unless the information which the complainant or witness provides in such communication or such testimony is false and the complainant or witness had actual knowledge of the falsity

civil suit with respect to any communications to the Board, district committee members, Disciplinary Counsel or staff relating to attorney misconduct or disability or any testimony in the proceedings regarding the same, unless the information which the complainant or witness provides in such communication or such testimony is false and the complainant or witness had actual knowledge of the falsity. The immunity granted in this Section shall not be construed to limit any other form of immunity available to any covered person.

Section 18. Service

18.1.

The Petition in any disciplinary proceeding shall be served on the respondent attorney by personal service by any person authorized to do so pursuant to the Tennessee Rules of Civil Procedure, or by any form of United States mail providing delivery confirmation, at the primary or preferred address shown in the most recent registration statement filed by the respondent attorney pursuant to Section 10.1 or at the respondent attorney’s other last known address. If such service is not successfully completed, the Board shall undertake additional reasonable steps to obtain service, including but not limited to, personal service or service by mail at such alternative addresses as the Board may identify, or service by email at the email address shown in the most recent registration statement filed by the respondent attorney pursuant to Section 10.1 or such other email address as the Board may identify.

18.2.

Service of any other papers or notices required by this Rule shall, unless otherwise provided by this Rule, be made in accordance with Rule 5.02 of the Tennessee Rules of Civil Procedure.

Section 19. Subpoena Power, Witnesses and Pre-trial Proceedings

19.1

registration statement filed by the respondent attorney pursuant to Section 10.1 or such other email address as the Board may identify.

18.2.

Service of any other papers or notices required by this Rule shall, unless otherwise provided by this Rule, be made in accordance with Rule 5.02 of the Tennessee Rules of Civil Procedure.

Section 19. Subpoena Power, Witnesses and Pre-trial Proceedings

19.1.

Any member of a hearing panel in matters before it, and Disciplinary Counsel in matters under investigation or in formal proceedings, may administer oaths and affirmations and may obtain from the circuit or chancery court having jurisdiction subpoenas to compel the attendance of witnesses and the production of pertinent books, papers and documents. A respondent attorney may, similarly, obtain subpoenas to compel the attendance of witnesses and the production of pertinent books, papers and documents before a hearing panel after formal disciplinary proceedings are instituted.

19.2.

Subpoenas issued prior to formal proceedings shall clearly indicate on their face that the subpoenas are issued in connection with a confidential investigation under this Rule and that it may be regarded as contempt of the Court or grounds for discipline under this Rule for a person subpoenaed to in any way breach the confidentiality of the investigation. The scope of the confidentiality of the investigation shall be governed by Section 32. It shall not be regarded as a breach of confidentiality for a person subpoenaed to consult with an attorney.

19.3.

The circuit or chancery court in which the attendance or production is required may, upon proper application, enforce the attendance and testimony of any witness and the production of any documents so subpoenaed. Subpoena and witness fees and mileage shall be the same as in the courts of this State.

19.4

ded as a breach of confidentiality for a person subpoenaed to consult with an attorney.

19.3.

19.4.

Any attack on the validity or scope of a subpoena so issued, and any application for a protective order with respect to a subpoena so issued, shall be filed in and heard and determined by the court in which enforcement of the subpoena is being sought.

19.5.

Discovery proceedings by the respondent attorney, prior to institution of proceedings for a formal hearing, may be had upon the order of the Chair of the Board for good cause shown.

19.6.

With the approval of the hearing panel, testimony may be taken by deposition or by interrogatories if the witness is not subject to service or subpoena or is unable to attend or testify at the hearing because of age, illness, infirmity, or incarceration. A complete record of the testimony so taken shall be made and preserved, but need not be transcribed unless needed for appeal pursuant to Section 33.

19.7.

The subpoena and deposition procedures shall be subject to the protective requirements of confidentiality provided in Section 32.

Section 20. Refusal of Complainant to Proceed, Compromise, etc.

Neither unwillingness nor neglect of the complainant to sign a complaint or to prosecute a charge, nor settlement or compromise between the complainant and the attorney or restitution by the attorney, shall, in itself, justify abatement of the processing of any complaint.

Section 21

rements of confidentiality provided in Section 32.

Section 20. Refusal of Complainant to Proceed, Compromise, etc.

Section 21. Matters Involving Related Pending Civil or Criminal Litigation

Processing of disciplinary complaints shall not be deferred or abated because of substantial similarity to the material allegations made in other pending criminal or civil litigation or because the substance of the complaint relates to the respondent attorney’s alleged conduct in pending litigation, unless authorized by the Board, in its discretion, for good cause shown.

Section 22. Attorneys Convicted Or Acknowledging Guilt of Crimes

22.1. Notice.

(a) The clerk of any court in this state in which an attorney enters a plea of nolo contendere or a plea of guilty to, or is found guilty by verdict of the jury or of the trial court sitting without a jury of, a crime shall within ten days of the plea or verdict transmit a copy thereof to the Court and to Disciplinary Counsel.

(b) Any attorney subject to the disciplinary jurisdiction of this Court who has entered a plea of nolo contendere or a plea of guilty to, or who has been found guilty by verdict of the jury or of the trial court sitting without a jury of, any serious crime, as defined in Section 2, shall within ten days of such plea or verdict provide adequate proof of the plea or verdict, including a copy thereof, to Disciplinary Counsel.

o the disciplinary jurisdiction of this Court who has entered a plea of nolo contendere or a plea of guilty to, or who has been found guilty by verdict of the jury or of the trial court sitting without a jury of, any serious crime, as defined in Section 2, shall within ten days of such plea or verdict provide adequate proof of the plea or verdict, including a copy thereof, to Disciplinary Counsel.

(c) Upon receiving notice from an attorney pursuant to Section 22.1(b) with respect to any serious crime, as defined in Section 2, or upon otherwise being advised that an attorney subject to the disciplinary jurisdiction of the Court has entered a plea of nolo contendere or a plea of guilty to, or has been found guilty by verdict of the jury or of the trial court sitting without a jury of, any crime, Disciplinary Counsel shall obtain adequate proof of the plea or verdict, including a copy thereof, and shall file the same with a Notice of Submission in the Nashville office of the Clerk of the Supreme Court.

22.2. Acts Not Constituting Serious Crime.

Upon receipt of adequate proof and copies of the judgment, plea of nolo contendere or guilty plea with respect to any crime not constituting a serious crime, as defined in Section 2, the Court shall refer the matter to the Board for whatever action the Board may deem warranted, including the institution of an investigation by Disciplinary Counsel, or a formal proceeding before a hearing panel, provided, however, that the Court may in its discretion make no reference with respect to convictions for minor offenses.

22.3. Serious Crime.

a serious crime, as defined in Section 2, the Court shall refer the matter to the Board for whatever action the Board may deem warranted, including the institution of an investigation by Disciplinary Counsel, or a formal proceeding before a hearing panel, provided, however, that the Court may in its discretion make no reference with respect to convictions for minor offenses.

22.3. Serious Crime.

(a) Upon the filing with the Court of the Notice of Submission with attached adequate proof and copies demonstrating that an attorney who is a defendant in a criminal case involving a serious crime, as defined in Section 2 , has entered a plea of nolo contendere or a plea of guilty or has been found guilty by verdict of the jury, or the trial court sitting without a jury, the Court shall enter an order immediately suspending the attorney. Such suspension shall take place regardless of the pendency of a motion for new trial or other action in the trial court and regardless of the pendency of an appeal. Such suspension shall remain in effect pending final disposition of a disciplinary proceeding to be commenced upon such finding of guilt.

(b) An attorney suspended under the provisions of Subsection (a) will be reinstated immediately upon the filing of an affidavit or declaration under penalty of perjury with supporting documentation demonstrating that the underlying conviction of a serious crime has been reversed, but the reinstatement will not terminate any formal proceeding then pending against the attorney, the disposition of which shall be determined by the hearing panel and the Board on the basis of the available evidence.

on the filing of an affidavit or declaration under penalty of perjury with supporting documentation demonstrating that the underlying conviction of a serious crime has been reversed, but the reinstatement will not terminate any formal proceeding then pending against the attorney, the disposition of which shall be determined by the hearing panel and the Board on the basis of the available evidence.

(c) Upon the receipt of adequate proof and copies of a judgment, plea of nolo contendere or guilty plea with respect to a serious crime, as defined in Section 2, the Court shall, in addition to suspending the attorney in accordance with the provisions of Section 22.3(a), also refer the matter to the Board for the institution of a formal proceeding before a hearing panel in which the sole issue to be determined shall be the extent of the final discipline to be imposed, provided that a disciplinary proceeding so instituted will not be brought to hearing until all appeals from the conviction are concluded.

22.4.

An order summarily suspending an attorney from the practice of law pursuant to Section 22.3(a) shall constitute a suspension of the attorney for the purpose of Section 28.

22.5.

An attorney suspended pursuant to Section 22.3(a) shall receive credit for any period of suspension served pursuant to Section 22.3(a) that preceded the commencement of the term of incarceration. Notwithstanding the provisions of Section 12.2, any suspension or disbarment ordered pursuant to Section 22.3(c) shall be served consecutive to any period of incarceration imposed upon the attorney as a result of the attorney’s conviction in the underlying criminal case.

22.6.

A certified copy of the judgment, plea of nolo contendere or guilty plea, or an affidavit or declaration under penalty of perjury with other adequate proof of a conviction of an attorney for any crime, shall be conclusive evidence of the commission of that crime in any disciplinary proceeding instituted against the attorney based upon the conviction.

22.7

ion in the underlying criminal case.

22.6.

22.7.

Judicial diversion pursuant to Tenn. Code Ann. § 40-35-313, including dismissal and discharge of the criminal proceedings and expungement from the official records pursuant to Tenn. Code Ann. § 40-35-313(b), shall not foreclose the initiation, investigation or prosecution of disciplinary action on the basis of the conduct constituting the diverted criminal offense(s). An attorney receiving judicial diversion shall not be subject to Immediate Summary Suspension pursuant to Section 22.3(a). The Board shall evaluate the facts and circumstances of each such case and proceed pursuant to Section 15 of this Rule.

Section 23. Disbarment by Consent of Attorneys Under Disciplinary Investigation or Prosecution

23.1.

An attorney who is the subject of an investigation into, or a pending proceeding involving, allegations of misconduct may consent to disbarment, by delivering to the Board an affidavit or declaration under penalty of perjury stating that such attorney desires to consent to disbarment and that:

(a) The attorney’s consent to disbarment is freely and voluntarily rendered; the attorney is not being subjected to coercion or duress; the attorney is fully aware of the implications of submitting consent;

(b) The attorney is aware that there is a presently pending investigation into, or proceeding involving, allegations that there exist grounds for discipline the nature of which the attorney shall specifically set forth;

jected to coercion or duress; the attorney is fully aware of the implications of submitting consent;

(d) The attorney consents because the attorney knows that if charges were predicated upon the matters under investigation, or if the proceeding were prosecuted, no successful defense could be made.

23.2.

Upon receipt of the required affidavit or declaration under penalty of perjury, the Board shall file under seal in the Nashville office of the Clerk of the Supreme Court a Notice of Submission with an attached copy of the declaration and the Court shall enter an order disbarring the attorney on consent.

23.3.

The order disbarring the attorney on consent shall be a matter of public record. However, the affidavit or declaration under penalty of perjury required under Section 23.1 shall not be publicly disclosed or made available for use in any other proceeding except upon order of the Court.

Section 24. Discipline by Consent

24.1.

An attorney against whom formal charges have been served may at any stage of the proceedings before the Board, hearing panel or trial court, thereafter tender a conditional guilty plea to the petition or to a particular count thereof in exchange for a stated form of punishment. Such a tendered plea shall be submitted to Disciplinary Counsel and approved or rejected by the Board upon recommendation of the hearing panel if the matter has been assigned for hearing, or shall be approved or rejected by the trial court if an appeal has been filed pursuant to Section 33; subject, however, in either event, to final approval or rejection by the Court if the stated form of punishment includes disbarment, suspension or public censure

ry Counsel and approved or rejected by the Board upon recommendation of the hearing panel if the matter has been assigned for hearing, or shall be approved or rejected by the trial court if an appeal has been filed pursuant to Section 33; subject, however, in either event, to final approval or rejection by the Court if the stated form of punishment includes disbarment, suspension or public censure. In conjunction with the Court’s review as set forth herein, the Board shall file in the Nashville office of the Clerk of the Supreme Court and shall serve on the respondent attorney and his/her counsel of record pursuant to Section 18.2 a Notice of Submission with an attached copy of the proposed Order of Enforcement and a Protocol Memorandum as defined in Section 2. The respondent attorney shall not be permitted to file a response to the Protocol Memorandum required under this Section.

24.2.

A continuance in a hearing panel proceeding, or before a trial court, on the basis of such a tender shall be granted only with the concurrence of Disciplinary Counsel. Approval of such a tendered plea by the Board or trial court and, if required, by the Court shall divest the hearing panel or trial court of further jurisdiction. The final order of discipline shall be predicated upon the petition and an approved tendered conditional guilty plea.

Section 25. Reciprocal Discipline

25.1.

al order of discipline shall be predicated upon the petition and an approved tendered conditional guilty plea.

Section 25. Reciprocal Discipline

25.1.

Upon being subjected to professional disciplinary action in another jurisdiction while subject to the disciplinary jurisdiction of this Court pursuant to Section 8.1, an attorney shall promptly inform Disciplinary Counsel of such action in writing. Upon being informed that an attorney subject to disciplinary jurisdiction pursuant to Section 8.1 has been subjected to discipline in another jurisdiction while subject to disciplinary jurisdiction pursuant to Section 8.1, Disciplinary Counsel shall obtain a certified copy of such disciplinary order and file the same with the Board and shall file in the Nashville office of the Clerk of the Supreme Court a Notice of Submission with an attached copy of such disciplinary order.

25.2.

Upon receipt of a certified copy of an order pursuant to Section 25.1, the Court shall forthwith serve upon the attorney in accordance with Section 18.1 a notice containing:

(a) A copy of the order from the other jurisdiction; and

(b) An order directing that the attorney inform the Court, within thirty days from service of the notice, of any claim by the attorney predicated upon the grounds set forth in Section 25.4 that the imposition of the identical discipline in this State would be unwarranted and the reasons therefor.

25.3.

In the event the discipline imposed in the other jurisdiction has been stayed there, any reciprocal discipline imposed in this State shall be deferred until such stay expires. However, Disciplinary Counsel, in his or her discretion, may initiate and conduct an independent investigation of the attorney pursuant to Section 15.

25.4

e in this State would be unwarranted and the reasons therefor.

25.3.

25.4.

Upon the expiration of thirty days from service of the notice issued pursuant to Section of 25.2, the Court shall impose the identical discipline unless Disciplinary Counsel or the attorney demonstrates, or the Court finds, that upon the face of the record upon which the discipline is predicated it clearly appears:

(a) That the procedure was so lacking in notice or opportunity to be heard as to constitute a deprivation of due process; or

(b) That there was such an infirmity of proof establishing the misconduct as to give rise to the clear conviction that the Court could not, consistent with its duty, accept as final the conclusion on that subject; or

Where the Court determines that any of said elements exist, the Court shall enter such other order as it deems appropriate.

25.5.

In all other respects, a final adjudication in another jurisdiction that an attorney subject to disciplinary jurisdiction pursuant to Section 8.1 has been guilty of misconduct while subject to disciplinary jurisdiction pursuant to Section 8.1 shall establish conclusively the misconduct for purposes of a disciplinary proceeding in this State.

Section 26. Attorneys Failing to Comply with Tenn. Code Ann. §§ 67-4-1701 - 1710 (Privilege Tax Applicable to Persons Licensed to Practice Law)

26.1.

eeding in this State.

Section 26. Attorneys Failing to Comply with Tenn. Code Ann. §§ 67-4-1701 - 1710 (Privilege Tax Applicable to Persons Licensed to Practice Law)

26.1.

Tenn. Code Ann. § 67-4-1702 levies a tax on the privilege of engaging in certain vocations, professions, businesses and occupations, including “persons licensed as attorneys by the supreme court of Tennessee.” Tenn. Code Ann. § 67-4-1704 provides that failure to pay the privilege tax can result in suspension or revocation of “any license or registration by the appropriate licensing board” and goes on to state that “the supreme court of Tennessee is encouraged to establish guidelines to suspend the license of an attorney who fails to comply with the requirements of this part.” The Court hereby establishes the following procedures to promote compliance with Tenn. Code Ann. §§ 67-4-1701 - 1710, as those Sections apply to attorneys licensed by the Court.

26.2.

The Court designates the Chief Disciplinary Counsel of the Board as the official to whom the Department of Revenue shall monthly send a list of attorneys licensed by the Court who have failed, for ninety (90) days or more from the due date, to pay the privilege tax imposed by Tenn. Code Ann. § 67-4-1702.

26.3.

Upon receipt of the list of attorneys transmitted by the Department of Revenue, the Chief Disciplinary Counsel shall send each attorney listed thereon a Privilege Tax Delinquency Notice (the “Notice”), stating that the Department of Revenue has informed the Chief Disciplinary Counsel that the attorney has failed, for ninety (90) days or more from the due date, to pay the privilege tax imposed by Tenn. Code Ann. § 67-4-1702 and that the attorney’s license is therefore subject to suspension

ciplinary Counsel shall send each attorney listed thereon a Privilege Tax Delinquency Notice (the “Notice”), stating that the Department of Revenue has informed the Chief Disciplinary Counsel that the attorney has failed, for ninety (90) days or more from the due date, to pay the privilege tax imposed by Tenn. Code Ann. § 67-4-1702 and that the attorney’s license is therefore subject to suspension. The Notice shall be sent to the attorney by a form of United States mail providing delivery confirmation, at the primary or preferred address shown in the attorney’s most recent registration statement filed pursuant to Section 10.1 or at the attorney’s last known address, and at the email address shown in the attorney’s most recent registration statement filed pursuant to Section 10.1.

26.4.

(a) Each attorney to whom a Notice is sent pursuant to Section 26.3 shall file with the Board within thirty days of the date of mailing of the Notice an affidavit or declaration under penalty of perjury supported by documentary evidence showing that the attorney has paid the delinquent privilege taxes and any interest and penalties assessed by the Department of Revenue, and has paid to the Board a delinquent compliance fee of One Hundred Dollars ($100.00) to defray the Board’s costs in issuing the Notice; or, alternatively, demonstrating that the Notice was sent to the attorney in error, the attorney having timely paid the privilege taxes. For purposes of this provision, the date of mailing shall be deemed to be the postmark date.

ed by the Department of Revenue, and has paid to the Board a delinquent compliance fee of One Hundred Dollars ($100.00) to defray the Board’s costs in issuing the Notice; or, alternatively, demonstrating that the Notice was sent to the attorney in error, the attorney having timely paid the privilege taxes. For purposes of this provision, the date of mailing shall be deemed to be the postmark date.

(b) Upon the expiration of thirty days from the date of the Notice pursuant to Subsection (a) hereof, the Chief Disciplinary Counsel shall submit to the Court a proposed Suspension Order. The proposed Suspension Order shall list all attorneys who were sent the Notice and who failed to respond; failed to demonstrate to the satisfaction of the Chief Disciplinary Counsel that they had paid the delinquent privilege taxes and any interest and penalties, and had failed to pay to the Board a delinquent compliance fee of One Hundred Dollars ($100.00) to defray the Board’s costs in issuing the Notice; or, failed to demonstrate to the satisfaction of the Chief Disciplinary Counsel that the Notice had been sent in error. The proposed Suspension Order shall provide that the license to practice law of each attorney listed therein shall be suspended upon the Court’s filing of the Order and that the license of each attorney listed therein shall remain suspended until the attorney pays the delinquent privilege taxes and any interest and penalties, and pays to the Board the One Hundred Dollar ($100.00) delinquent compliance fee and a separate reinstatement fee of Two Hundred Dollars ($200.00), and is reinstated pursuant to Subsection (d).

ended upon the Court’s filing of the Order and that the license of each attorney listed therein shall remain suspended until the attorney pays the delinquent privilege taxes and any interest and penalties, and pays to the Board the One Hundred Dollar ($100.00) delinquent compliance fee and a separate reinstatement fee of Two Hundred Dollars ($200.00), and is reinstated pursuant to Subsection (d).

(c) Upon the Court’s review and approval of the proposed Suspension Order, the Court will file the Order summarily suspending the license to practice law of each attorney listed in the Order. The suspension shall be effective immediately and shall remain in effect until the attorney pays the delinquent privilege taxes and any interest and penalties, and pays to the Board the One Hundred Dollar ($100.00) delinquent compliance fee and the Two Hundred Dollar ($200.00) reinstatement fee, and until the attorney is reinstated pursuant to Subsection (d). An attorney who fails to resolve the suspension within thirty days of the Court’s filing of the Suspension Order shall comply with the requirements of Section 28.

reinstatement of the attorney’s license to practice law demonstrating that the attorney has paid all delinquent privilege taxes and any interest and penalties, and has paid to the Board the One Hundred Dollar ($100.00) delinquent compliance fee and the Two Hundred Dollar ($200.00) reinstatement fee; or, alternatively, demonstrating that the Suspension Order was entered in error as to the attorney. If the petition is satisfactory to the Chief Disciplinary Counsel and if the attorney otherwise is eligible for reinstatement, the Chief Disciplinary Counsel shall promptly submit to the Court a proposed Reinstatement Order. The proposed Reinstatement Order shall provide that the attorney’s reinstatement is effective as of the date of the attorney’s payment of all delinquent privilege taxes and any interest and penalties, and the attorney’s payment to the Board of the One Hundred Dollar ($100.00) delinquent compliance fee and the Two Hundred Dollar ($200.00) reinstatement fee; or, alternatively, as of the date of entry of the Suspension Order if that Order was entered in error. If the petition for reinstatement is denied by the Chief Disciplinary Counsel, the attorney seeking reinstatement may appeal to the Board within fifteen days of notice of the denial. The Board, or a committee of no fewer than three of its members, shall review the documentation provided by the attorney and approve or reverse the determination of the Chief Disciplinary Counsel. There shall be no petition for rehearing. An attorney resolves a suspension within thirty days for purposes of Section 26.4 if a proposed Reinstatement Order has been submitted to the Court within thirty days of the Court’s filing of the Suspension Order.

s members, shall review the documentation provided by the attorney and approve or reverse the determination of the Chief Disciplinary Counsel. There shall be no petition for rehearing. An attorney resolves a suspension within thirty days for purposes of Section 26.4 if a proposed Reinstatement Order has been submitted to the Court within thirty days of the Court’s filing of the Suspension Order.

(2) An attorney suspended by the Court pursuant to Subsection (c) who wishes to be reinstated and who has remained suspended for more than one year before the filing of a petition for reinstatement shall file with the Court a petition for reinstatement of the attorney’s license to practice law demonstrating that the attorney has paid all delinquent privilege taxes and any interest and penalties, and has paid the One Hundred Dollar ($100.00) delinquent compliance fee and the Two Hundred Dollar ($200.00) reinstatement fee; or, alternatively, demonstrating that the Suspension Order was entered in error as to the attorney. The petitioner shall serve a copy of the petition upon Disciplinary Counsel, who shall investigate the matter and file an answer to the petition within thirty days. The Court shall review the record and determine whether to grant or deny the petition for reinstatement. If the Court grants the petition, the Reinstatement Order shall provide that the attorney’s reinstatement is effective as of the date of the attorney’s payment of all delinquent privilege taxes and any interest and penalties, and the attorney’s payment of the One Hundred Dollar ($100.00) delinquent compliance fee and the Two Hundred Dollar ($200.00) reinstatement fee; or, alternatively, as of the date of entry of the Suspension Order if that Order was entered in error.

Section 27. Proceedings Where an Attorney Is Declared to Be Incompetent or Is Alleged to Be Incapacitated

27.1

e taxes and any interest and penalties, and the attorney’s payment of the One Hundred Dollar ($100.00) delinquent compliance fee and the Two Hundred Dollar ($200.00) reinstatement fee; or, alternatively, as of the date of entry of the Suspension Order if that Order was entered in error.

Section 27. Proceedings Where an Attorney Is Declared to Be Incompetent or Is Alleged to Be Incapacitated

27.1.

Where an attorney has been judicially declared incompetent or involuntarily committed on the grounds of incompetency or disability or detained or placed in the custody of a center for the treatment of mental illness after a probable cause hearing pursuant to the procedures set forth in Tenn. Code Ann. § 33-6-103, the Court, upon proper proof of the fact, shall enter an order transferring such attorney to disability inactive status effective immediately for an indefinite period until further order of the Court. A copy of such order shall be served upon the attorney, the attorney’s guardian, and/or the director of the institution to which the attorney had been committed in such manner as the Court may direct.

27.2.

Whenever during the course of an investigation pursuant to Section 15.1 or formal proceedings pursuant to Section 15.2, Disciplinary Counsel obtains information calling into question the mental or physical health of the respondent attorney that raises a substantial concern regarding the respondent attorney’s capacity to continue the practice of law or to respond to or defend against a complaint, Disciplinary Counsel should request the respondent attorney to agree voluntarily to submit to an evaluation by the Tennessee Lawyer Assistance Program or an examination by a qualified medical or mental health expert to determine respondent attorney’s capacity and report the results of the examination to Disciplinary Counsel and to the respondent attorney and the respondent attorney’s counsel

aint, Disciplinary Counsel should request the respondent attorney to agree voluntarily to submit to an evaluation by the Tennessee Lawyer Assistance Program or an examination by a qualified medical or mental health expert to determine respondent attorney’s capacity and report the results of the examination to Disciplinary Counsel and to the respondent attorney and the respondent attorney’s counsel. In the event the respondent attorney declines to submit to such evaluation or examination and reporting, Disciplinary Counsel should file a petition with the Court for an order requiring the respondent attorney to submit to an evaluation by the Tennessee Lawyer Assistance Program or an examination by a qualified medical or mental health expert as the Court shall designate, the results of either of which shall be reported to Disciplinary Counsel, the Court, and the respondent attorney and the respondent attorney’s counsel. Failure to comply with an order issued under this Subsection may serve as the basis for temporary suspension pursuant to Section 12.3.

27.3.

The Board may petition the Court to determine whether an attorney is incapacitated from continuing the practice of law by reason of mental infirmity or illness or because of addiction to drugs or intoxicants, and an attorney, with no disciplinary proceeding or complaint pending, may petition to be transferred to disability inactive status. If such a petition is filed, the Court may take or direct such action as it deems necessary or proper to determine whether the attorney is so incapacitated, including the examination of the attorney by such qualified medical or mental health experts as the Court shall designate or assignment to a hearing panel for a formal hearing to determine the issue of capacity. If the Board petitions the Court, the burden of proof shall be upon the Board and shall be by a preponderance of the evidence

proper to determine whether the attorney is so incapacitated, including the examination of the attorney by such qualified medical or mental health experts as the Court shall designate or assignment to a hearing panel for a formal hearing to determine the issue of capacity. If the Board petitions the Court, the burden of proof shall be upon the Board and shall be by a preponderance of the evidence. If, upon due consideration of the matter, the Court concludes that the attorney is incapacitated from continuing to practice law, it shall enter an order transferring the attorney to disability inactive status on the ground of such disability for an indefinite period and until the further order of the Court. If the Board files a petition pursuant to this Section while a disciplinary proceeding is pending against the respondent attorney, the disciplinary proceeding shall be suspended pending the determination as to the attorney’s alleged incapacity.

27.4.

(a) If, during the course of a disciplinary investigation or proceeding involving an attorney who presently is not suspended or disbarred, the respondent attorney contends that he/she is suffering from a disability by reason of mental or physical infirmity or illness, or because of addiction to drugs or intoxicants, which disability makes it impossible for the respondent attorney to respond to or defend against the complaint, such contention shall place at issue the respondent attorney’s capacity to continue to practice law. Disciplinary Counsel, the respondent attorney or the attorney for the respondent attorney shall file in the Nashville office of the Clerk of the Supreme Court a Notice advising the Court of such contention within ten days of learning of the contention, if the Court has not been otherwise notified. The Court thereupon may enter an order immediately transferring the respondent attorney to disability inactive status for an indefinite period and until the further order of the Court

ttorney shall file in the Nashville office of the Clerk of the Supreme Court a Notice advising the Court of such contention within ten days of learning of the contention, if the Court has not been otherwise notified. The Court thereupon may enter an order immediately transferring the respondent attorney to disability inactive status for an indefinite period and until the further order of the Court. The Court may take or direct such action as it deems necessary or proper to make a determination as to the respondent attorney’s capacity to continue to practice law and to respond to or defend against the complaint, including the examination of the respondent attorney by such qualified medical or mental health experts as the Court shall designate or the referral of the matter to a hearing panel for a formal hearing to determine the respondent attorney’s capacity to continue to practice law and to respond to or defend against the complaint. In any such proceeding, the burden of proof shall rest upon the respondent attorney and shall be by a preponderance of the evidence.

(b) If, during the course of a disciplinary investigation or proceeding involving an attorney who is suspended or disbarred, the respondent attorney contends that he/she is suffering from a disability by reason of mental or physical infirmity or illness, or because of addiction to drugs or intoxicants, which disability makes it impossible for the respondent attorney to respond to or defend against the complaint, such contention shall place at issue the respondent attorney’s capacity to continue to the disciplinary proceedings. Disciplinary Counsel, the respondent attorney or the attorney for the respondent attorney shall file in the Nashville office of the Clerk of the Supreme Court a Notice advising the Courtof such contention within ten days of learning of the contention, if the Court has not been otherwise notified

on shall place at issue the respondent attorney’s capacity to continue to the disciplinary proceedings. Disciplinary Counsel, the respondent attorney or the attorney for the respondent attorney shall file in the Nashville office of the Clerk of the Supreme Court a Notice advising the Courtof such contention within ten days of learning of the contention, if the Court has not been otherwise notified. The Court may take or direct such action as it deems necessary or proper to make a determination as to the respondent attorney’s capacity to respond to or defend against the complaint, including the examination of the respondent attorney by such qualified medical or mental health experts as the Court shall designate or the referral of the matter to a hearing panel for a formal hearing to determine the respondent attorney’s capacity to continue to practice law and to respond to or defend against the complaint. In any such proceeding, the burden of proof shall rest upon the respondent attorney and shall be by a preponderance of the evidence.

(c) If the Court or hearing panel determines that the respondent attorney is incapacitated from responding to or defending against the complaint, the Court or hearing panel shall take such action as it deems proper and advisable, including a direction for the suspension of the disciplinary proceeding against the respondent attorney.

(d) If the investigation of complaints or disciplinary proceedings has been suspended pursuant to this Section, the Board may petition the Court to require the disabled attorney to provide competent evidence from qualified medical or mental health experts that his or her condition continues to be such that the disabled attorney is not capable of responding to pending disciplinary complaints, or to submit to an examination by such independent qualified medical or mental health experts as the Court shall designate in order to determine whether the condition continues to be such that the disabled attorney is not capable of responding to pending complaints or

s or her condition continues to be such that the disabled attorney is not capable of responding to pending disciplinary complaints, or to submit to an examination by such independent qualified medical or mental health experts as the Court shall designate in order to determine whether the condition continues to be such that the disabled attorney is not capable of responding to pending complaints or defending against disciplinary proceedings. The results of such examination shall be reported to the Disciplinary Counsel, the Court and the attorney and the attorney’s counsel. In the event such experts determine that the attorney has recovered from the disability to the point that the attorney is capable of defending against allegations of misconduct, the Board may petition the Court for an order permitting the disciplinary proceedings to be reactivated. If the Board files such a petition, the burden of proof shall rest upon the Board and shall be by a preponderance of the evidence. Should the Court permit the disciplinary proceedings to proceed, the cost of the independent medical or mental health examinations shall be charged to the respondent attorney.

27.5.

The Board shall cause a notice of transfer to disability inactive status to be published pursuant to Section 28.11.

27.6.

Whenever an attorney has been transferred to disability inactive status pursuant to either Section 27.1 or Section 27.3; or, whenever the Board, pursuant to Section 27.2, petitions the Court to determine that an attorney is disabled or incapacitated from continuing the practice of law, the Board shall request such action under the provisions of Section 29 as may be indicated in order to protect the interests of the disabled or allegedly disabled attorney and the attorney’s clients.

27.7.

ection 27.1 or Section 27.3; or, whenever the Board, pursuant to Section 27.2, petitions the Court to determine that an attorney is disabled or incapacitated from continuing the practice of law, the Board shall request such action under the provisions of Section 29 as may be indicated in order to protect the interests of the disabled or allegedly disabled attorney and the attorney’s clients.

27.7.

(a) No attorney transferred to disability inactive status pursuant to Section 27 may resume active status until reinstated by order of the Court. Any attorney transferred to disability inactive status pursuant to Section 27 shall be entitled to petition for reinstatement to active status after the disability is removed. The petition for reinstatement shall be filed with the Court in the form adopted by the Board. The petitioner shall serve a copy of the petition upon Disciplinary Counsel, who shall investigate the matter and file an answer to the petition within thirty days. The answer shall include a recommendation as to whether the petition should be granted without a hearing or referred to a hearing panel for a hearing.

(b) Upon the filing of a petition for reinstatement pursuant to Section 27, the Court may take or direct such action as it deems necessary or proper to a determination of whether the attorney’s disability has been removed, including a direction for an examination of the attorney by such qualified medical or mental health experts as the Court shall designate and the furnishing of such expert’s report to the Board, the Court, and the attorney and the attorney’s counsel. In its discretion, the Court may direct that the expense of such an examination shall be paid by the attorney, and that the attorney establish proof of competence and learning in law, which proof may include certification by the Board of Law Examiners of the successful completion of an examination for admission to practice

port to the Board, the Court, and the attorney and the attorney’s counsel. In its discretion, the Court may direct that the expense of such an examination shall be paid by the attorney, and that the attorney establish proof of competence and learning in law, which proof may include certification by the Board of Law Examiners of the successful completion of an examination for admission to practice. The Court also may refer the petition to a hearing panel for a hearing in which the petitioner shall have the burden of proof. The hearing shall be governed by Section 30.4. The petition shall be granted upon a showing by clear and convincing evidence that the attorney’s disability has been removed and the attorney is fit to resume the practice of law.

(c) Pending disciplinary complaints against the attorney, whether filed before or after the attorney’s transfer to disability inactive status, must be resolved before the effective date of any reinstatement. Provided, however, that the Court may order reinstatement pending the completion of any conditional disciplinary action (e.g., probation or restitution) imposed upon the attorney or the final completion of the terms of any agreement executed by the attorney and the Tennessee Lawyer Assistance Program.

27.8.

Where an attorney has been transferred to disability inactive status by an order in accordance with Section 27.1 and, thereafter, in proceedings duly taken, the attorney has been judicially declared to be competent, this Court may dispense with further evidence that the attorney’s disability has been removed and may direct the attorney’s reinstatement to active status upon such terms as the Court deems proper and advisable.

27.9.

ect the attorney’s reinstatement to active status upon such terms as the Court deems proper and advisable.

27.9.

The filing of a petition for reinstatement to active status by an attorney transferred to disability inactive status because of disability shall be deemed to constitute a waiver of any doctor-patient privilege with respect to any treatment of the attorney during the period of disability. The attorney shall be required to disclose the name of every psychiatrist, psychologist, physician and hospital or other institution by whom or in which the attorney has been examined or treated since the transfer to disability inactive status, and shall furnish to the Court written consent to each to divulge such information and records as requested by court appointed medical experts.

Section 28. Notice to Clients, Adverse Parties, and Other Counsel

28.1. Effective Date of Order.

Orders imposing disbarment, suspension, transfers to disability inactive status, or temporary suspension are effective upon entry.

28.2. Recipients of Notice; Contents.

By no later than ten days after the effective date of the order, the respondent attorney shall notify or cause to be notified by registered or certified mail, return receipt requested:

(a) all clients being represented in pending matters;

(b) all co-counsel in pending matters; and

of the order of the Court and that the attorney is therefore disqualified to act as attorney after the effective date of the order except as permitted by Section 12.3(c). The notice to be given to the attorney(s) for an adverse party, or, in the absence of opposing counsel, the adverse parties, shall state the last known address of the client of the respondent attorney. The notice shall inform the recipient of the effective date of the suspension and the effect it will have on the attorney’s representation of the client in the applicable matter.

28.3. Special Notice

notice to be given to the attorney(s) for an adverse party, or, in the absence of opposing counsel, the adverse parties, shall state the last known address of the client of the respondent attorney. The notice shall inform the recipient of the effective date of the suspension and the effect it will have on the attorney’s representation of the client in the applicable matter.

28.3. Special Notice.

The Court may direct the issuance of notice to such financial institutions or others as may be necessary to protect the interests of clients or other members of the public.

28.4. Duty to Maintain Records.

The respondent attorney shall keep and maintain records of the steps taken to accomplish the requirements of Sections 28.1 and 28.2 and shall make those records available to Disciplinary Counsel on request.

28.5. Return of Client Property.

The respondent attorney shall deliver to all clients any papers or other property to which they are entitled and shall notify them and any counsel representing them of a suitable time and place where the papers and other property may be obtained, calling attention to any urgency for obtaining the papers or other property.

28.6. Refund of Fees.

By no later than fifteen days after the effective date of the order, the respondent attorney shall refund any part of any fees, expenses, or costs paid in advance that has not been earned or expended, unless the order directs otherwise.

28.7. Withdrawal from Representation.

The respondent attorney shall within twenty days after the effective date of the order file in the court, agency or tribunal in which the proceeding is pending a motion for leave to withdraw or a motion or agreed order to substitute and shall serve a copy of the motion or agreed order on opposing counsel or the adverse party, if unrepresented, in the proceeding.

28.8. New Representation Prohibited.

The respondent attorney shall not undertake any new legal matters on or after the effective date of the order

or tribunal in which the proceeding is pending a motion for leave to withdraw or a motion or agreed order to substitute and shall serve a

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