Day On Torts : Tennessee Injury Lawyer & Attorney : John Day : Personal Injury, Accidents : Serving Memphis, Nashville, Knoxville

The Board of Commissioers on Grievances and Discipline of The Supreme Court of Ohio has released an opinion of the issue of whether, during settlement of a matter, it is ethical for a lawyer to propose, demand, and or agree to personally satisfy any and all claims by third persons as to settlement funds. 

Here is the Syllabus of the Opinion 2011-1: 

It is improper for a plaintiff’s lawyer to personally agree, as a condition of settlement, to indemnify the opposing party from any and all claims by third persons to the settlement funds. Such agreements are not authorized by Prof. Cond. Rule 1.15(d) and violate Prof. Cond. Rules 1.8(e) and 1.7(a)(2). Further, it is improper for a lawyer to propose or require, as a condition of settlement, that a plaintiff’s lawyer make a personal agreement to indemnify the opposing party from any and all claims by third persons to the settlement funds. Such conduct violates Prof. Cond. Rule 8.4(a). The Board recommends that this advisory opinion be prospective in application.

The Opinion cites a recent opinion out of Tennessee:

In Tennessee, an ethics committee noted that “[r]equiring a plaintiff’s lawyer to enter agreements posed in the inquiry, particularly requiring that the attorney indemnify and/or hold harmless any party being released or subrogation interest holder from medical expenses or liens, creates a conflict between the interests of the plaintiff’s attorney and those of their client.”  Tennessee SupCt, Board of Professional Responsibility, Op. 2010-F-154 (2010). The committee advised that “an attorney cannot ethically agree to such agreements and/or clauses.”  The committee cited Rules 1.7(b), 2.1, 1.2 and 1.8(e). Id.

Similar opinions from other states are also cited.

This is a real problem for the plaintiff's bar and it nice to see it addressed by the various disciplinary boards.

Thanks to my wife Joy, a member of the Ohio (and Tennessee and Michigan and Kentucky) bars for directing my attention to this opinion.

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Rule 5 of the Tennessee Rules of Civil Procedure was amended to permit papers to be served on attorneys of parties via electronic mail.   Here the language added to Rule 5 to accomplish that result:

(2)(a) Service upon any attorney may also be made by sending him or her the document in Adobe PDF format to the attorney's email address, which shall be promptly furnished on request. The sender shall include language in the subject line designed to alert the recipient that a document is being served under this rule. On the date that a document served under this rule is electronically sent to an attorney, the sender shall send by mail, facsimile or hand-delivery a certificate that advises that a document has been transmitted electronically. The certificate shall state the caption of the action; the trial court file number; the title of the transmitted document; the number of pages of the transmitted document (including all exhibits thereto); the sender's name, address, telephone number and electronic mail address; the electronic mail address of each recipient; and the date and time of the transmission. The certificate shall also include words to this effect: "If you did not receive this document, please contact the sender immediately to receive an electronic or physical copy of this document." The certificate shall be sent to all counsel of record.

(b) An attorney who sends a document to another attorney electronically and who is notified that it was not received must promptly furnish a copy of the document to the attorney who did not receive it.

(c) A document transmitted electronically shall be treated as a document that was mailed for purposes of computation of time under Rule 6.

(d) For good cause shown, an attorney may obtain a court order prohibiting service of documents on that attorney by electronic mail and requiring that all documents be served under subsection (1).

To be sure, the method of serving papers electronically is more cumbersome that the method used under the Federal Rules of Civil Procedure.  However, the Rules Commission was concerned that many lawyers did not have confidence in service by email and thus adopted a "belt and suspenders approach" that required the contemporaneous mailing of a notice of service.

I suspect that the mailed-notice requirement will be dissolved in five years or less.

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The Tennessee Supreme Court has asked for public comment on proposed changes to the rules of procedure and evidence.  The Order asking for public comment can be viewed here.  

I serve on the Court's Advisory Commission on the Rules of Practice and Procedure and I am happy to report that the Court has accepted (at least for purposes of public comment) each of the rule changes proposed by the Commission.  

Significant proposed changes to the rules of civil procedure  include changes to clarify Rule 3 and 4 concerning the need to serve a summons and complaint promptly after filing of the complaint and issuance of the summons, Rule 5 concerning the electronic service of pleadings, motions and other documents, and Rule 26 concerning the discovery of insurance policy limits.  The most significant change to the rules of evidence is new Rule 502 concerning the inadvertent waiver of the privilege.

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 The Tennessee Supreme Court has published a proposed re-draft of Rule 27, the rule which addresses the process of judical evaluation.  Set forth below is my letter to the Court that addresses one phrase in the proposed rule.  NOTE:  this letter was written in my individual capacity and not as Chair of the Tennessee Judical Performance Evaluation Commission.

I have read the draft of revised Supreme Court Rule 27 and offer one comment for consideration by the Court.  I respectfully request that the Court remove the phrase “In the face of society's increasing litigiousness...” from the beginning of Section 1.03.  This statement is in essence of finding of fact that is unwarranted given what we know about our civil justice system in Tennessee.

Court filings in civil court of almost every type have decreased in Tennessee over the last three years.   According to the 2007-08 Annual Statistics Report, total Circuit Court filings in 2005-2006 were 65,039; in 2007-08 they were 62,204. Total Chancery Court filings in 2005-06 were 64,808; in 2007-08 they were 63,256.  The number of civil appeals and applications to the Court of Appeals in 2005-06 were 880; in 2007-08 they were 867.   Rule 9, 10, and 11 applications to the Supreme Court were 936 in number in 2005-06.  In 2007-08 there were a total of 843 of those applications.  The data for 2008-09 is not yet publically available.

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