Board of Professional Responsibility of the Supreme Court of Tennessee Ethics Opinions
Free plain-English summaries of legal ethics opinions issued by the Board of Professional Responsibility of the Supreme Court of Tennessee, with full citations and source links on every page.
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What should a lawyer who is not competent in criminal matters do when a court appoints him to defend an indigent criminal defendant?
Formal Ethics Opinion 92-F-127 concluded that an attorney appointed to a criminal case who believes he is not competent to render reasonably effective assistance should fully explain his background an…
Must a lawyer in a bar-association mentoring or 'Colleagues' program report ethics violations learned through that program's confidential counseling?
Formal Ethics Opinion 91-F-126 concluded that lawyers participating in a local bar's Colleagues mentoring program are afforded a privilege not to disclose confidences and secrets learned through the p…
Can a state Attorney General seek and receive court-awarded attorney's fees at prevailing market rates rather than at the State's actual cost of providing the legal services?
Formal Ethics Opinion 91-F-125 concluded that the Tennessee Attorney General may request and receive awards of attorney's fees to the State based on prevailing market rates, not limited to a cost-base…
Is divorce mediation the practice of law, and can a lawyer co-mediate a divorce with a non-lawyer?
Formal Ethics Opinion 90-F-124, reconsidering and clarifying 83-F-39 and 85-F-98, concluded that divorce mediation is not the practice of law provided the mediator separates legal advice and services …
After litigation, could a private personal-injury lawyer network operate in Tennessee as a joint advertising cooperative rather than a barred referral service?
Formal Ethics Opinion 90-F-122(a) amended 90-F-122 after PITLA sued the Board (alleging First Amendment and antitrust violations) and the parties settled. Under the settlement, PITLA and its Tennessee…
When a government attorney provides Title IV-D child support enforcement services, does the attorney have an attorney-client relationship with the parent receiving those services, and can the same attorney later act against that parent?
The opinion concluded that attorneys employed in DHS's Title IV-D child support programs represent the State only; under T.C.A. Section 71-3-124 and the Board's prior Opinion 83-F-55, there is no atto…
Can lawyers participate in a for-profit lawyer referral service that is not operated or approved by a bar association?
Vacated. As originally issued, Formal Ethics Opinion 90-F-122 concluded that it is improper for lawyers to participate in the lawyer referral service promoted and operated by PITLA, U.S.A., Inc., a pr…
What recordkeeping system satisfies a Tennessee lawyer's basic trust accounting obligations?
The Board adopted, as guidance for Tennessee lawyers, portions of a published trust-accounting treatise describing four core records (a trust checkbook, a trust receipts book, a trust disbursements bo…
Could a Tennessee lawyer advertise using a phone number or address in a distant city without disclosing that the lawyer had no local office there?
Vacated. As originally issued, the opinion concluded that DR 2-101 was violated when a lawyer advertised in a city away from the lawyer's actual office, such as a Knoxville lawyer advertising in Chatt…
Are members of a bar association's fee arbitration committee excused from the duty to report ethical misconduct they learn about while serving on the committee?
The opinion concluded that fee arbitration committee members are excused from the Disciplinary Rule 1-103 duty to report ethical misconduct discovered during their service on a bar association fee arb…
Can effective screening procedures avoid imputed disqualification of an entire law firm when a lawyer, paralegal, or other staff member who worked on a matter at a former firm joins a firm now opposing that matter?
The opinion concluded that screening is a viable method to avoid imputed disqualification under DR 5-105(D), overruling the Board's prior categorical rejection of screening in Opinion 87-F-110. It ado…
Does the rule allowing a metropolitan bar association's referral service to charge a percentage fee also apply to a statewide trial lawyers association's referral service?
The opinion concluded that the financing rule approved in Opinion 88-F-115 extends to any lawyer referral service operated by a bar association representative of the general bar of its geographical ar…
Must a Tennessee criminal defense lawyer investigate the facts before filing a motion to suppress evidence?
The opinion concluded that criminal defense lawyers are not ethically required to investigate the facts underlying a motion to suppress before filing it. The Board reasoned that the duty to represent …
Must a Tennessee prosecutor notify a delinquent child-support obligor's attorney of record before filing a petition for contempt and attachment against the obligor?
The opinion concluded that filing a petition for contempt and attachment against a delinquent child support obligor under T.C.A. Section 36-5-101(b) is an appearance under DR 7-106(C)(5), so the prose…
Can a bar association's nonprofit lawyer referral service require participating lawyers to contribute a percentage of fees from referrals to help finance the service?
The opinion concluded that a nonprofit bar association's lawyer referral service may require participating lawyers to contribute up to ten percent of the net fee from a referral, so long as the contri…
Is it unethical for a Tennessee lawyer to make unsolicited contact with a non-client to seek employment, and must another lawyer who learns of it report it to the Board?
The opinion concluded that unsolicited contact by a lawyer with a non-client for the purpose of securing employment is unethical under DR 2-103(A), consistent with the historical prohibition on in-per…
Can a Tennessee lawyer accept employment from an insurer to represent an insured if the insurer imposes conditions limiting or directing the scope of pre-trial discovery?
The opinion concluded that a lawyer retained by an insurer to represent an insured may not accept the employment subject to conditions limiting or directing the scope and extent of the representation,…
Can a Tennessee prosecutor communicate with a criminal defendant the prosecutor knows is represented by counsel, even if the defendant requests the contact?
The opinion concluded that a prosecutor is ethically obligated to avoid all communication with a defendant known to be represented by counsel, without that counsel's knowledge and consent, under DR 7-…
When one assistant district attorney is disqualified from a case, must the entire District Attorney General's office be disqualified too?
The opinion concluded that vicarious disqualification of an entire District Attorney General's staff when one staff member is disqualified is not governed by a per se rule and must instead be decided …
What must a Tennessee lawyer do with settlement proceeds when a client objects to paying a third party, such as a medical provider, who claims a right to part of the funds?
The opinion concluded that a lawyer who has notice that a client's creditor holds a lien on or assignment of settlement funds the lawyer is holding is ethically obligated to segregate and retain the d…
Does the reporting-immunity for lawyer-assistance committee members extend to volunteer participants, and to similar programs run by other Tennessee bar associations?
Vacated. As originally issued, the opinion expanded Formal Ethics Opinion 83-F-48's reporting immunity beyond officially elected Nashville Bar Association Alcohol and Drug Abuse Committee members to a…
Could a law firm avoid disqualification by screening a paralegal who had performed substantive work on pending matters for the opposing party's former counsel?
Vacated; overruled in part by Opinion 89-F-118. As originally issued, the opinion concluded that screening and isolation procedures could not avoid an attorney's ethical disqualification when the atto…
After Tennessee courts rejected blanket per se rules for government-lawyer conflicts, how does the Board decide whether a governmental attorney or public official, or a law partner, has a disqualifying conflict?
The opinion vacated and set aside Formal Ethics Opinion 86-F-107's sweeping per se prohibitions on governmental attorneys, public officials, and their associates representing other clients, following …
Can a lawyer who served as substitute trustee at a non-judicial foreclosure sale, selling the property to the lender-client, later make an offer to buy that same property from the lender?
The opinion concluded that an attorney who acted as substitute trustee at a non-judicial foreclosure sale and sold the property to the lender-client may later offer to purchase that property from the …
Could a city alderman, city judge, city attorney, city prosecutor, or county sheriff's-department lawyer, or their law partners, represent private clients in courts or matters where officers of their governmental employer were witnesses?
Vacated; set aside the next year by Opinion 86-F-107(a). As originally issued, the opinion adopted strict per se prohibitions: lawyers serving as city alderman, city judge, city attorney, city court p…
Can a Tennessee lawyer withhold a client's file or documents to force payment of a disputed fee?
The opinion concluded that an attorney may assert a common-law attorney's lien on a client's documents to secure payment of legal fees, but only as a last resort, after seeking other reasonable means …
Did the U.S. Supreme Court's decision in Evans v. Jeff D. change Tennessee's ethics guidance on settlements that condition relief on a waiver of the plaintiff's attorney's fees?
No. The Board readopted its prior opinion's conclusion, in 85-F-96, that settlement negotiations including attorney's-fee provisions are not inherently improper if counsel fully advises the client, ad…
Could a Tennessee county commissioner who is also a lawyer represent criminal defendants prosecuted by the county's own law enforcement officers?
As originally issued, the opinion concluded that an attorney serving as an elected county commissioner could not represent criminal defendants prosecuted by county law enforcement officers, because th…
When is a lawyer's new representation adverse to a former client too closely related to the earlier representation to be ethical?
The opinion held that representing a party adverse to a former client is improper only if a substantial relationship exists between the former and present matters, determined by examining the scope an…
Could a Tennessee criminal defense lawyer secretly record a conversation with a witness or another party if one party to the conversation consented?
Vacated. As originally issued, the opinion rescinded Formal Ethics Opinion 81-F-14 (which had adopted ABA Formal Opinion 337's rule that secret recording is dishonest conduct under DR 1-102(A)(4)) to …
Can a law firm let a non-lawyer use the firm's mailing address and have firm staff answer a separate phone line listed in the non-lawyer's name?
The opinion held there was no impropriety in the arrangement because the non-lawyer would not be engaged in the unauthorized practice of law, so the firm's clerical accommodation (forwarding mail addr…
Can a Tennessee lawyer participate in a prepaid or group legal service plan?
The opinion held there is no impropriety in participating in open-panel prepaid legal service plans that let the consumer choose any attorney and that meet the ABA's interim standards adopted into thi…
Can a lawyer's client hire a non-testifying medical consulting firm on a contingent fee to help prepare the medical side of a malpractice case?
The opinion held there was no impropriety in the attorney continuing in the case where the client, not the lawyer, contracted separately and independently with the medical consulting firm on a conting…
When an insurer hires an attorney to defend an insured, can that attorney also represent the insurer's interests once a coverage dispute arises over tendering policy limits into court?
The opinion held that the insured, not the insurer, is the attorney's client, so the attorney may not represent or advise either the insured or the insurer once a conflict arises between them over cov…
Can a Tennessee law firm lease non-lawyer office staff, such as secretaries or bookkeepers, from a third-party staffing employer instead of hiring them directly?
The opinion held there is no impropriety in a law firm leasing non-lawyer staff personnel from a third-party lessor/employer, provided the firm exercises reasonable care to prevent the leased personne…
Can a Tennessee lawyer serve as a volunteer Peacemaker on a panel for a nonprofit Christian conciliation service without it being the unauthorized or improper practice of law?
The opinion held that the proposed Christian conciliation program does not constitute the practice of law because the volunteer lawyers on its panels give no legal advice and represent no party, so th…
Can a Tennessee lawyer direct the interest earned on a client trust account to a charity of the lawyer's own choosing?
No. The opinion held that a lawyer may not give trust-account interest to a charity the lawyer designates, but may voluntarily place client trust funds in an interest-bearing account under the amended…
Is it ethical for a settlement negotiation to include terms about the plaintiff's attorney's fees, including a defense offer conditioned on the lawyer waiving fees?
The opinion held that settlement negotiations including provisions for attorney's fees are not inherently improper and may be appropriate, provided plaintiff's counsel fully advises the client of ever…
Can a Tennessee law firm produce a brochure with lawyer biographies, photographs, and a firm logo for clients and prospective clients?
The opinion held there is no impropriety in producing and distributing a brochure describing the firm's practice areas, lawyer backgrounds, and photographs, including a firm logo using the firm's init…
Can an attorney let a paralegal or other non-lawyer employee answer the docket call in open court on the attorney's behalf?
No. The opinion held that answering a docket call on another's behalf is acting in a representative capacity before a tribunal, which Tennessee statute and the Board's prior opinion treat as the pract…
If a lawyer voluntarily withdraws from a case for a personal reason, such as a family connection to the opposing side, can another lawyer in the same firm take over the representation?
Yes. The opinion held that when a lawyer's withdrawal results from the lawyer's own discretionary, personal decision rather than from a Disciplinary Rule requiring withdrawal, the vicarious disqualifi…
Can a court-appointed defense lawyer accept the appointment when the lawyer also personally represents the county sheriff, and the sheriff's deputies will testify for the prosecution against the indigent defendant?
No. The opinion held it is unethical for the attorney to accept the court appointment to defend the criminal case while personally representing the sheriff in a related civil matter, because the deput…
What precautions must a Tennessee firm take when it employs a lawyer admitted elsewhere whose Tennessee admission application is still pending?
The opinion concluded that, while a foreign lawyer's admission application is pending before the Tennessee Board of Law Examiners, the lawyer must work only under the direct supervision of a licensed …
Can a plaintiff's lawyer interview a defendant hospital's nurses about the facts of a malpractice claim, and does the attorney-client privilege block it?
Yes; privilege does not block factual interviews. The opinion concluded that nurses employed by a hospital may be interviewed by the plaintiff's attorney without the hospital's lawyer's consent about …
If a lawyer cannot locate a client whose statute of limitations is about to run, must the lawyer still settle the claim, and what should the lawyer do with the settlement proceeds?
The opinion held the attorney is ethically obligated to pursue and settle the claim despite the inability to reach the client, may pay reasonable and necessary medical and legal obligations from the p…
Can a lawyer secretly listen, over a speakerphone or other device, to a conversation between the lawyer's own client and the adverse party, without the adverse party's knowledge or consent?
No. The opinion held that an attorney who listens in on a conversation between the client and the adverse party by speakerphone or any other indirect mechanical or electronic device, without the adver…
Does the same Anders withdrawal procedure apply when appointed counsel represents an indigent prisoner specifically in a civil case the lawyer believes is frivolous?
Yes. The opinion confirmed, in the civil-case context specifically, that appointed counsel must act as an active advocate and not amicus curiae, must support the client's cause to the best of the lawy…
Can an attorney who takes default judgments on accounts referred by a collection agency be paid a flat hourly rate by the agency, with collected attorney's fees routed through the agency's trust account?
The opinion held there is no impropriety in the attorney maintaining an attorney-client relationship with the creditor through the collection agency acting as the creditor's agent, but the attorney mu…
Can a sitting Speaker of the State Senate and Lieutenant Governor, who is also a lawyer, represent private claimants suing the State for damages?
No. The opinion held that an attorney-public official may not breach the fiduciary duty owed as a public official by representing private interests adverse to the public body the official represents, …
Can a law firm sell paid subscriptions to nonclients for its monthly legal-developments newsletter, rather than just distributing it free to clients?
The opinion held there is no impropriety in a law firm selling subscriptions to a monthly publication of legal developments to non-clients, or in circulating a brochure describing the publication and …
Can defense counsel in a personal injury case interview the plaintiff's treating physician about the plaintiff's medical care without going through plaintiff's lawyer?
The opinion held there is no impropriety in defense counsel interviewing the plaintiff's non-defendant treating physician about the plaintiff's medical care and treatment, because the no-contact rule …
What must a court-appointed lawyer do for an indigent prisoner's case the lawyer personally believes is frivolous?
The opinion held the appointed attorney must act as an active advocate, not amicus curiae, and support the client's cause to the best of the attorney's ability; if, after conscientious examination, co…
What are a lawyer's ethical obligations under the Code of Professional Responsibility when the presiding judge in a case is the uncle of the lawyer's law partner?
The opinion held that Disciplinary Rule 1-102(A)(5) requires lawyers to comply with Canons 3(C)(1), 3(C)(1)(d)(iii), and 3(D) of the Code of Judicial Conduct, which govern when the judge must disquali…
Can a county attorney secretly draft a pro se petition and agreed order for a county official seeking salary increases for county employees, funded by the county budget the attorney also handles?
No. The opinion held it is improper for the county attorney to assist a county official in filing a pro se petition against the county executive, or to help prepare and execute an agreed pro se order …
Does a law firm using the phrase 'An Association of Attorneys' after its members' names need to add a further disclaimer like 'Not a Partnership'?
No. The opinion held that 'An Association of Attorneys' is by itself a proper way to identify the members of a non-partnership law firm and no additional disclaimer is required, vacating the contrary …
Can an attorney who takes default judgments on accounts referred by a collection agency be paid a flat hourly rate by the agency, with collected attorney's fees routed through the agency's trust account?
The opinion held that once a collection matter is referred to the attorney, the attorney must immediately establish a direct attorney-client relationship with the creditor, with the collection agency …
Can a parent corporation's in-house counsel perform legal work for affiliated subsidiaries and limited partnerships, with the parent billing those affiliates for the actual cost of the lawyer's time and overhead?
Yes, in each of the five reimbursement scenarios presented, including where the in-house lawyer's employer is also the managing general partner of the limited partnership being billed, provided in-hou…
Does an attorney advertising admiralty and Jones Act injury services, along with other workers' compensation matters, need the audible or visual disclaimer required for advertising a field of practice?
The opinion held that the audible and visual disclaimer of Disciplinary Rule 2-101(C) is required for any advertisement, including one covering Jones Act matters, where the attorney's practice is not …
Can an attorney send direct-mail letters to every homeowner facing foreclosure, and can an attorney mail CPAs asking them to refer tax clients?
The opinion held there is no impropriety in direct-mail advertising sent to every defaulting mortgagor whose home is advertised for foreclosure, though the specific letter's claim of experience to pro…
Can a Tennessee lawyer take a one-third contingency fee out of each periodic payment in a structured settlement, rather than all at once from the up-front cash?
Yes. The opinion held the attorney may take his contingency percentage from each periodic settlement payment as it is received, take the entire fee upfront capped at his percentage of the settlement's…
Browse Board of Professional Responsibility of the Supreme Court of Tennessee opinions by topic
Legal ethics opinions from the Board of Professional Responsibility of the Supreme Court of Tennessee interpret the rules of professional conduct for working lawyers, in response to inquiries from members and committees. They are not binding like court discipline decisions, but courts and discipline boards treat formal opinions as substantial guidance on how the rules apply. Every opinion above has a plain-English question and short answer, plus a link to the original source on the bar's site.