Disciplinary Transparency In Tennessee

The Tennessee Board on Professional Responsibility produces a seasonal Board Notes publication that contains a wealth of useful information on matters involving attorney ethics.

The report does an excellent job of providing the public with a sense of the efficiency of the disciplinary system in the Volunteer State. It also provides insight into the sanctions imposed for ethics lapses.

Note below the wide range of misconduct that can draw a censure.

Also note the large number of interim suspensions for great public harm, which is a useful measure of a system that takes misconduct seriously. 

Sanctions described in the most recent report include suspension for this conduct

On January 20, 2017, [an attorney] of Bristol, Tennessee, was suspended by the Tennessee Supreme Court from the practice of law. On December 9, 2016, the Tennessee Supreme Court issued a Show Cause Order, pursuant to Tennessee Supreme Court Rule 9, Section 37.4, ordering [the attorney] to show cause as to why her law license should not be suspended based on [her] default on a loan guaranteed or administered by Tennessee Student Assistance Corporation (TSAC). [The attorney]  failed to show cause as to why her law license should not be suspended and was suspended by Order of the Supreme Court of Tennessee. 

And among the censures

On March 21, 2017, John P. Fortuno of Cleveland, Tennessee, was Publicly Censured by order of the Tennessee Supreme Court. On August 22, 2016, the Board filed a Petition for Discipline against Mr. Fortuno, an assistant public defender, alleging that he committed ethical misconduct by exchanging a series of inappropriate text messages with a client he was appointed to represent creating a potential conflict of interest.

Mr. Fortuno entered into a conditional guilty plea admitting that his actions violated Rules of Professional Conduct 1.7(a)(2) (Conflicts of Interest) and 8.4(a) (Misconduct), and should be Publicly Censured for this violation.

A Public Censure is a rebuke and warning to the attorney, but it does not affect the attorney’s ability to practice law.

Another unusual situation that drew a censure

On February 7, 2017, John R. Hershberger of Memphis, Tennessee, was Publicly Censured by order of the Tennessee Supreme Court.

While representing a party in a case pending before the Tennessee Court of Appeals, Mr. Hershberger went to the home of a judge on the Court of Appeals in order to ask her a question pertaining to the case. The judge was not at home and Mr. Hershberger left without speaking with her. A Hearing Panel found that by attempting to engage in an ex parte communication with the judge, Mr. Hershberger violated Rule of Professional Conduct 8.4(a) (Misconduct) and should be Publicly Censured for this violation.

Mr. Hershberger appealed the decision to the Chancery Court for Shelby County, which affirmed the Hearing Panel’s decision.

The Chancery Court order is linked here. 

Public censure for this

On November 14, 2016, James Kirby, an attorney licensed to practice law in Tennessee, received a Public Censure from the Board of Professional Responsibility of the Tennessee Supreme Court.

While acting as Executive Director of the Tennessee District Attorneys General Conference, Mr. Kirby engaged in an act of misconduct in connection with the hiring and supervision of a part time prosecutor pro tem.

By this act, James Kirby has violated Rule of Professional Conduct 8.4(c) (misconduct), and is hereby Publicly Censured for this violation.

And this

On October 14, 2016, Robert Paul Starnes, an attorney licensed to practice law in Tennessee, received a Public Censure from the Board of Professional Responsibility of the Tennessee Supreme Court. Mr. Starnes repeatedly exposed himself to an employee at his law office. In April 2016, Mr. Starnes pleaded no contest to indecent exposure (Class B misdemeanor) for his conduct.

By these acts, Mr. Starnes is in violation of Rule 8.4 (b) (criminal conduct that reflects adversely on fitness to practice) of the Rules of Professional Conduct and is hereby publicly censured for this violation.

Kingsport Times News reported on the case. 

When transparency is more than a hollow phrase in attorney regulation, applause follows as night follows day. (Mike Frisch)