Moral Autonomy & Formal Opinion 140

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2 TBJ-Jan97-Moral The Lawyers Moral Autonomy & Formal Opinion 140 by Ernest F. Lidge III As I have stated elsewhere, 1 the Ethics Committee of the Board of Professional Responsibility does yoeman's work. I must, however, take issue with its recent opinion dealing with the conscience of appointed counsel, Formal Opinion 96-F I believe that Formal Opinion 140's answers to two of the inquiring lawyer's questions conflict with the Tennessee Code of Professional Responsibility (Tennessee Code) and also misapprehend the lawyer's role. In Formal Opinion 140, the inquiring lawyer regularly practiced before the Juvenile Court in a Tennessee county. The lawyer had been appointed to represent minors who desired to petition the court "for waivers of the parental consent requirement to obtain abortions, pursuant to T.C.A (b)." 3 Along with other inquiries, the lawyer asked if he could ethically decline the appointments. 4 The lawyer gave three reasons. The board was correct in rejecting the first rationale: "malpractice insurance reasons." Since I am not a constitutional law scholar, I will not discuss the board's rejection of the inquiring lawyer's second reason: a belief that the appointments violated his First Amendment free exercise rights. The board, however, incorrectly dealt with the third reason. The attorney asked whether he could ethically decline the appointments because he was a devout Catholic and could never advocate a position that would result in what he believed would be the loss of human life. The lawyer stated that his religious beliefs were so deep-seated that he feared they would "subject him to conflicting interests and impair his independent professional judgment in violation of DR 5-101(A)." 5 The board's short answer was correct. The board stated that the lawyer "should allow the juvenile court to determine... the propriety of his withdrawal after motion and hearing." 6 My quarrel is with the board's explanation and its skepticism about whether the attorney's religious and moral beliefs were proper grounds for seeking to be relieved from the appointment. The board cited EC 2-29, which states that appointed counsel should not attempt to be excused "except for compelling reasons." 7 The board noted that EC 2-29 also provides that: Compelling reasons do not include such factors as the repugnance of the subject 1 of 16 9/6/10 12:14 AM

3 TBJ-Jan97-Moral matter of the proceeding, the identity or position of a person involved in the case, the belief of the lawyer that the defendant in a criminal proceeding is guilty, or the belief of the lawyer regarding the merits of the civil case. 8 The board implied that the lawyer's deeply felt religious beliefs fell within this list of reasons that were not compelling. The board, however, did not cite the very next provision in the Tennessee Code, EC That provision applies to all decisions to represent a client, including decisions to accept court appointments. It states, in part: [A] lawyer should decline employment if the intensity of his personal feeling, as distinguished from a community attitude, may impair his effective representation of a prospective client. 9 Taken together, EC 2-29 and EC 2-30 evince dual concerns. First, lawyers have an obligation to help ensure that those whom society rejects have representation. Thus the community's repugnance toward a person or cause does not justify a lawyer's declination of an appointment. Second, all clients, including those served by appointed counsel, are entitled to effective, zealous representation. Thus if a lawyer's personal feelings are so strong that they may impair the representation, which is the precise situation presented by the lawyer in Tennessee Opinion 140, the lawyer should decline the representation. The drafters of the American Bar Association Model Rules of Professional Conduct (Model Rules) have made this explicit. The Tennessee Code is based on the ABA Model Code of Professional Responsibility and Tennessee has not yet adopted the Model Rules. Thus if the Model Rules conflict with the Tennessee Code, the latter prevails. However, in many cases, including this one, the Model Rules and the Tennessee Code are in accord. Model Rule 6.2 provides: A lawyer shall not seek to avoid appointment by a tribunal to represent a person except for good cause, such as: *** (c) the client or the cause is so repugnant to the lawyer as to be likely to impair the client-lawyer relationship or the lawyer's ability to represent the client. 10 Thus the inquiring lawyer in Formal Opinion 140 has a duty to decline the appointment. This is also mandated by DR 5-101(A) of the Tennessee Code, which bars representation if the 2 of 16 9/6/10 12:14 AM

4 TBJ-Jan97-Moral lawyer's professional judgment on the client's behalf "will be or reasonably may be affected" by the lawyer's "financial, business, property, or personal interests." 11 Certainly, a deeply-held religious belief that the client's proposed action involves the taking of human life constitutes a "personal" interest that could affect the representation. 12 Other provisions of the Tennessee Code are also relevant. Canon 7 demands that a lawyer represent a client zealously. 13 Disciplinary Rule 6-101(A)(1) requires that a lawyer act competently. 14 A lawyer, like the inquiring lawyer in Formal Opinion 140, who accepts a case in which his religious beliefs are so "compelling" that he "fears his own personal interests" will "impair his independent professional judgment" 15 will risk violating these provisions. In addition to quoting EC 2-29, Formal Opinion 140 cited four cases. Two of these cases 16 are relevant to the inquiring attorney's second rationale for declining the appointment - his belief that the appointments violated his First Amendment free exercise rights - and I will not discuss these cases. The other two cases the board cited were State v. Jones 17 and State v. Maddux. 18 In Jones, attorney Larry Banks had been held in contempt for refusing to obey a direct court order to accept an appointment. The attorney had relied on a board ethical opinion that had stated that a county attorney could not represent a criminal defendant prosecuted by the county officer. Since Banks' partner was the county attorney, Banks believed he could not represent the defendant. 19 The trial judge asked Banks if he could "give his best" in representing the defendant. 20 Banks said yes, but still declined to obey the court order to represent the defendant. The trial court held Banks in contempt, finding that the conflict would not "adversely affect Mr. Banks' ability to represent the defendant zealously, competently and to the best of his ability." 21 The Tennessee Supreme Court affirmed the contempt judgment. 22 The problem is that the facts in Jones are 180 degrees from the facts in Formal Opinion 140. The Jones trial judge asked Banks if he could give his best and Banks replied affirmatively. In Formal Opinion 140, if the judge were to ask the inquiring attorney if he could give his best, the honest answer would be "no," given the fact that the attorney's beliefs were so "compelling" that he feared his personal interests would "subject him to conflicting interests and impair his professional judgment." In Jones, the trial court specifically found that the conflict would not affect Banks' zeal. It is highly doubtful whether a court would make the same finding regarding the pro-life attorney's zeal to obtain an abortion for his client. While the Jones case does state, as noted by the board, that the lawyer questioning an appointment has the burden of proving that a conflict of interest exists, that is not the issue in Formal Opinion 140. The issue is whether the attorney could ethically question the appointment. While the board grudgingly suggested that the attorney move to withdraw, the opinion strongly implied that the attorney's reasons were not legitimate. The Jones case provides no support for that conclusion. 3 of 16 9/6/10 12:14 AM

5 TBJ-Jan97-Moral In State v. Maddux, 23 an attorney had received a contempt citation for seeking to be relieved of an appointment. The Tennessee Supreme Court reversed the contempt order because the attorney's conduct "had not yet become an unreasoning and contumacious refusal to abide by the rulings of the court." 24 In Formal Opinion 140, the board noted with approval the Maddux court's citation of EC 2-29 and the court's statement that it "would have scant sympathy for an attorney who sought to avoid representing a defendant merely because his cause was unpopular, or the crime of which he was accused, distasteful." 25 However, as discussed above, Formal Opinion 140's inquiring attorney was not resisting the appointment because of the client's unpopularity (EC 2-29), but because of strong feelings personal to the attorney (EC 2-30). In addition, the very next sentence of the Maddux opinion, not quoted in Formal Opinion 140, stated, "However, the record here shows, at worst, an earnest, if misconceived, effort on the part of the petitioner to convince the trial judge that this continued representation of the defendant was not in her best interests." 26 Thus the Maddux court distinguished the case in which an attorney is seeking to avoid an unpopular client (which is improper conduct) from the case in which the attorney properly seeks relief from an appointment to avoid harming the client. The facts of Formal Opinion 140 fall within the latter scenario. Finally, Formal Opinion 140 cited a prior ethical opinion, Formal Opinion 84-F-73 (Formal Opinion 73). Since this opinion is directly on point and actually supports the duty of Formal Opinion 140's inquiring attorney to seek relief from the appointment, a close examination of it is necessary. In Formal Opinion 73, the inquiring attorney had been appointed to represent a criminal defendant charged with first degree murder. The defendant told the attorney that he believed in reincarnation and therefore objected to any action or effort opposing the death penalty in event of a guilty verdict. If he were to be found guilty, the defendant objected to a life sentence and insisted on receiving the death penalty. The attorney, however, felt "a moral and ethical duty to fight for the life of the accused in opposition to the death penalty." 27 Formal Opinion 140, quoting the following language from Formal Opinion 73, stated that when a lawyer's moral and ethical beliefs conflicted with a client's, then:... [c]ounsel's moral beliefs and usually acceptable ethical standards and duties must yield to the moral beliefs and legal rights of the defendant... Counsel is ethically obligated to follow the law and to do nothing in opposition to the client's moral and legal choices... Counsel should move the court to withdraw during the portion of the trial where the conflict is manifested. In the event the court fails to grant such motions, the attorney should seek an immediate review by the appellate court of 16 9/6/10 12:14 AM

6 TBJ-Jan97-Moral Formal Opinion 73 gave the right answer. When faced with a serious conflict between the attorney's moral and ethical beliefs and those of the client, the lawyer must attempt to withdraw. The board felt so strongly about the issue that it even required the attorney to seek appellate review if the court denied the request to withdraw. Language in Formal Opinion 73 that the board failed to quote in Formal Opinion 140 is even more telling. As quoted by the board in Formal Opinion 140, Formal Opinion 70 stated that, "Counsel is ethically obligated to follow the law and to do nothing in opposition to the client's moral and legal choices." 29 The sentence immediately before that sentence stated, however, that "Counsel is not ethically obligated to accept the moral and legal choices of the client and has no ethical obligation, in this instance, to advocate those choices on behalf of the client." 30 In other words, appointed counsel has a dilemma. On the one hand, the attorney should not have to advocate positions that he strongly opposes on moral grounds. On the other hand, the client is entitled to zealous advocacy of those positions. The only solution is counsel's withdrawal. Formal Opinion 73 also demonstrates why it is so important for an attorney faced with a serious conflict of this kind to respectfully resist a court appointment. Once an attorney is representing the client, there can be no holding back. The attorney cannot undermine the client's goals, no matter how repugnant they are to the attorney. Once the attorney has decided to take a client's case and the client's goals, while lawful, become repugnant, the lawyer's only recourse is either to continue representing the client zealously or to withdraw. While the board in Formal Opinion 140 is justly concerned about the provision of legal services to those who need them, it is doubtful that the juvenile court judge will have trouble finding an attorney who has different moral convictions regarding abortions. In addition, the juvenile client is entitled to a lawyer who can represent her zealously. The board should have answered the inquiring attorney's query in the following manner. If the attorney's religious and moral beliefs are strong enough to affect the representation, the attorney must seek to be relieved of the appointment. The attorney should respectfully indicate his reasons and his willingness to accept court appointments in other types of cases. If the court refuses his request, the attorney should seek appellate review of the order. If the court's order is upheld, then the attorney must comply. 31 It is conceivable, however, that an individual pro-life attorney might be able to put aside his personal feelings and zealously represent the juvenile client. Under these circumstances, it would be entirely proper under the Tennessee Code for the attorney to accept the appointment. Accepting the representation under these circumstances leads to another problem presented by Formal Opinion 140's inquiring attorney. The attorney asked whether appointed counsel should advise the minor either about alternatives to an abortion or about speaking to her parents regarding the decision. 32 Again, Formal Opinion 140's short answer was correct - the board stated that it depended on a case-by-case analysis. The remainder of the board's answer, however, strongly implied that 5 of 16 9/6/10 12:14 AM

7 TBJ-Jan97-Moral such advice would be improper: If the minor is truly mature and well-informed enough to go forward and make the decision on her own, then counsel's hesitation and advice for the client to consult with others could possibly implicate a lack of zealous representation under DR 7-101(A)(4)(a) and (c) (a lawyer shall not intentionally fail to seek the client's lawful objectives, or prejudice or damage his client during the course of the professional relationship). Counsel also has a duty of undivided loyalty to his client, and should not allow any other persons or entities to regulate, direct, compromise, control, or interfere with his professional judgment. [Citations omitted.] To the extent that counsel strongly recommends that his client discuss the potential abortion with her parents or with other individuals or entities which are known to oppose such a choice, compliance with Canon 5 is called into question. 33 There is a certain irony here. The inquiring attorney sought to withdraw because of a fear that the representation would involve an impermissible conflict between his personal moral beliefs and the client's objectives. Implicitly, the attorney also feared that he would lack the required zeal to carry out the client's objectives. Formal Opinion 140 strongly implied that these were not legitimate reasons for seeking to be excused from the appointment. However, the same opinion stated that following through on his desire to discuss alternatives to abortion or to suggest that the client confer with her parents may indicate an unethical lack of zeal or an impermissible conflict of interest. On the one hand, the attorney's moral beliefs are not of sufficient weight to justify declining the appointment. On the other hand, the beliefs are potentially so destructive of the representation that the attorney is discouraged from revealing them. In any event, discouraging the lawyer from giving moral counsel is not consistent with the Tennessee Code. Ethical Consideration 7-8 states that final decisions are in the client's hands, but in reaching those decisions: Advice of a lawyer to his client need not be confined to purely legal considerations. A lawyer should advise his client of the possible effect of each legal alternative. A lawyer should bring to bear upon this decision-making process the fullness of his experience as well as his objective viewpoint. In assisting his client to reach a proper decision, it is often desirable for a lawyer to point out those factors which may lead to a decision that is morally just as well as legally permissible. 34 The Tennessee Code also states that while an attorney should always act in the best interests of the client, if the action in the client's interests "seems to him to be unjust, he may ask his client for permission to forgo such actions." 35 In a similar vein, the ABA Model Rules 6 of 16 9/6/10 12:14 AM

8 TBJ-Jan97-Moral state that, "In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client's situation." 36 In the previously-discussed Formal Opinion 73, the board stated: Counsel should fully inform the accused of his legal right to conduct a defense of his choice as guaranteed by the Constitution. The accused should be fully advised by counsel that his rights and interests are in conflict with counsel's moral beliefs and ethical responsibilities. In event the accused maintains his insistence on no actions or arguments on his behalf against the death penalty being imposed, then counsel should advise the accused that a motion to withdraw from those portions of the trial will be filed with the court. 37 Formal Opinion 73's statement that the accused should be "fully advised" of the conflict engendered by counsel's moral beliefs and the use of the phrase, "the accused maintains his insistence," imply that a moral dialogue should take place between client and lawyer. Thus if Formal Opinion 140's inquiring attorney chooses to accept the court appointment, he must take care not to dominate or force his views on the client and, as noted by the board, must keep everything gained in the relationship confidential. 38 It is, however, perfectly appropriate for the lawyer to confer about alternatives to abortion and to discuss the possibility of the juvenile client informing her parents. If, after the discussion, the client still desires to seek a waiver of the parental consent provision, the lawyer must zealously pursue these lawful objectives. Aside from the fact that it is not in accord with the aforementioned ethical provisions and Formal Opinion 73, the main problem with Formal Opinion 140 is its view of the lawyer's role. In essence, Formal Opinion 140 views the lawyer as an amoral automaton. The opinion discourages the lawyer from objecting to the representation of a client even when the lawyer believes that he will be called upon to do something that is morally repugnant to him. Instead, the lawyer must seek any objective of a client, so long as it is lawful. The lawyer is even discouraged from saying anything about the moral issues or about alternatives to the proposed actions. I reject this vision of the lawyer as hired gun. While the lawyer should not force his moral or religious views on the client, the lawyer has, and should have, moral autonomy. The lawyer should not abandon his life as a morally autonomous individual or his perception of himself as a creature responsible to God simply because a client has walked in the door. Encouraging lawyers to question laws they believe to be morally unjust is a necessary element to the maintenance of a free society. To be sure, when the lawyer contemplates the acceptance of a court appointment, the lawyer should consider the duty to uphold the administration of justice and to do his or her 7 of 16 9/6/10 12:14 AM

9 TBJ-Jan97-Moral part to ensure that needy people receive representation. However, the lawyer should also consider the client's right to zealous representation and should also ponder the moral ramifications of taking the case. The bar should strongly encourage attorneys to take all these factors into account. In Formal Opinion 140, the board cited EC 2-29's statement that a lawyer should not seek to be excused from a court appointment, except for "compelling" reasons. In Formal Opinion 73, the board apparently believed that appointed counsel's moral opposition to capital punishment was such a compelling reason. I agree. In Formal Opinion 140, the board apparently did not view as compelling appointed counsel's moral opposition to abortion. I disagree. Board of Professional Responsibility of the Supreme Court of Tennessee Formal Ethics Opinion 84-F-73 Inquiry is made as to the ethical obligations of court appointed counsel in a first degree murder case when the defendant insists that counsel take no actions in his behalf to mitigate or argue against the imposition of the death penalty. The defendant is charged with first degree murder. The evidence available to the prosecution constitutes a strong circumstantial case against the defendant. The defendant advises court appointed counsel that he believes in reincarnation and, consequently, that he objects to any efforts or actions in his behalf against the imposition of the death penalty in event of a guilty verdict. He objects to the imposition of a life sentence and insists on a death penalty verdict in event he is found guilty. The defendant has been adjudged competent to stand trial. The court appointed attorneys seek ethical guidance as to their responsibilities in the matter. It appears that the moral, ethical and constitutional law issues presented in this inquiry are interrelated and sometimes conflicting. The right to the effective assistance of counsel is embodied in the Sixth Amendment to the Constitution. 8 of 16 9/6/10 12:14 AM

10 TBJ-Jan97-Moral [Discussion of (and quotations from) various cases omitted.] The traditional role of defense counsel in the adversarial system is to mitigate both the guilt and punishment of the accused. Defense counsel, in this instance, feels a moral and ethical duty to fight for the life of the accused in opposition to the death penalty. It is clear that the moral beliefs and ethical standards of defense counsel, in this instance, are in conflict with the defendant's moral beliefs and legal rights. Counsel's moral beliefs and usually acceptable ethical standards and duties must yield to the moral beliefs and legal rights of the defendant. Counsel is not ethically required to accept the moral and legal choices of the client and has no ethical obligation, in this instance, to advocate those choices on behalf of the client. Counsel is ethically obligated to follow the law and to do nothing in opposition to the client's moral and legal choices. Counsel should fully inform the accused of his legal right to conduct a defense of his choice as guaranteed by the Constitution. The accused should be fully advised by counsel that his rights and interests are in conflict with counsel's moral beliefs and ethical responsibilities. In event the accused maintains his insistence on no actions or arguments on his behalf against the death penalty being imposed, then counsel should advise the accused that a motion to withdraw from those portions of the trial will be filed with the court. The consequences of this action should be fully explained to the accused. The court should be fully informed of the conflicts between counsel and the accused. Counsel should seek an adjudication that the accused is competent to represent himself during the voir dire examination of prospective jurors and the penalty stages of the trial or any other portion of the trial where the conflict is imminent. Counsel should move the court to withdraw from representation during the portion of the trial where the conflict is manifested. In the event the court fails to grant such motions, the attorney should seek an immediate review by the appellate court. This opinion is only intended to address the ethical obligations of counsel. This 13th day of June, Ethics Committee: Henry H. Hancock W. J. Flippin Edwin C. Townsend Approved and adopted by the board. 9 of 16 9/6/10 12:14 AM

11 TBJ-Jan97-Moral Board of Professional Responsibility of the Supreme Court of Tennessee Formal Ethics Opinion 96-F-140 Inquiry is made as to several issues involving the ethical obligations of court-appointed counsel for minors who obtain abortions via judicial bypass of the parental consent for abortion provisions within T.C.A and The inquiring attorney routinely practices before the juvenile court in a particular county and said attorney has been appointed to represent minors who have elected to petition the Juvenile Court for waivers of the parental consent requirement to obtain abortions, pursuant to T.C.A (b) (ch. 458, Acts 1995, effective July 1, 1995). Several moral, ethical and constitutional law issues have been presented in the inquiry, and all of them are interrelated and sometimes conflicting. The specific components of the inquiry posed are as follows: (1) have court-appointed attorneys for minors committed ethical violations where the above bypass procedures are later declared unconstitutional, and where abortions have already been performed; (2) is the role of court-appointed counsel under this statutory scheme that of advocate for the child or guardian ad litem; (3) should the appointed counsel advise the minor seeking an abortion about alternatives and/or advise her to speak with her parents or legal guardian about the potential abortion; (4) what is the minimum age that a minor can seek permission for an abortion, and is the appointed attorney required to inform the court if the client is believed to be non compos mentis; (5) can the appointed attorney decline to accept the appointment for moral, religious or malpractice insurance reasons; and (6) is there a requirement that minors seeking abortions under the judicial bypass provisions set out above be Tennessee residents. [Discussion of the first and second questions omitted.] If the appointed attorney represents only the minor (as we believe), then counsel has a duty to "explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation." DR (A) (3). Whether informing the minor about alternatives to abortion and suggesting that she discuss the potential procedure with her parents or legal guardian is ethically appropriate may depend on a case-by-case analysis. If the minor is truly mature and well-informed enough to go forward and make the 10 of 16 9/6/10 12:14 AM

12 TBJ-Jan97-Moral decision on her own, then counsel's hesitation and advice for the client to consult with others could possibly implicate a lack of zealous representation under DR (A) (4) (a) and (c) (a lawyer shall not intentionally fail to seek the client's lawful objectives, or prejudice or damage his client during the course of the professional relationship). Counsel also has a duty of undivided loyalty to his client, and should not allow any other persons or entities to regulate, direct, compromise, control or interfere with his professional judgment. Tennessee Formal Ethics Opinions 83-F-52 and 85-F-100; EC 5-1. To the extent that counsel strongly recommends that his client discuss the potential abortion with her parents or with other individuals or entities which are known to oppose such a choice, compliance with Canon 5 is called into question. In the same light, counsel himself is prohibited from discussing confidences and secrets of the client with such entities by DR [Discussion of the fourth question omitted.] Counsel's fifth question is the most difficult to answer, given that legal and ethical issues are inextricably intertwined. Essentially, counsel asks whether he can ethically decline such appointments due to malpractice insurance reasons, and a deep-seated, sincere belief that appointments in such cases constitute state action violative of his free exercise of religion rights guaranteed by the First Amendment to the United States Constitution. DR (A) states that a lawyer should not attempt to exonerate himself from or limit his liability to his client for personal malpractice; thus, this reason does not appear to be a sufficient ground for declining such appointments. Counsel also alleges that he is a devout Catholic and cannot, under any circumstances, advocate a point of view ultimately resulting in what he considers to be the loss of human life. The religious beliefs are so compelling that counsel fears his own personal interests will subject him to conflicting interests and impair his independent professional judgment in violation of DR (A). In other words, counsel contends his status is akin to that of a conscientious objector, who is opposed to participation in abortion in any form. Although counsel's religious and moral beliefs are clearly fervently held, EC 2-29 exhorts appointed counsel to refrain from withdrawal where a person is unable to retain counsel, except for compelling reasons. Compelling reasons as contemplated by this EC do not include such factors as: É the repugnance of the subject matter of the proceeding, the identity or position of a person involved in the case, the belief of the lawyer that the defendant in a criminal proceeding is guilty, or the belief of the lawyer regarding the merits of the civil case. Several Tennessee cases addressing this issue from the perspective of contempt cast 11 of 16 9/6/10 12:14 AM

13 TBJ-Jan97-Moral serious doubt on whether such an argument would prevail. In State v. Jones, 726 S.W. 2d 515, (Tenn. 1987), the Supreme Court upheld a contempt citation against an attorney who refused to accept a court-ordered appointment based on his interpretation of a formal ethics opinion, even where counsel's refusal was not disrespectful, unreasoning or contumacious. Procedurally, the Supreme Court held that in order for an attorney to avoid contempt for refusal to obey an order of appointment perceived to be erroneous, it was necessary for counsel to seek dissolution of the order in the appellate courts. Id. at 517. The court went on to hold that a lawyer who questions the propriety of an appointment has the burden of making a showing that a conflict of interest exists and that trial judges must afford counsel a reasonable opportunity to develop an adequate record on that issue for appellate review purposes. Id. at On the contrary, in State v. Maddux, 571 S.W. 2d 819 (Tenn. 1978), the Supreme Court reversed counsel's summary contempt citation where counsel was merely seeking to be relieved of the appointment. Counsel's actions had not yet become an unreasoning and contumacious refusal to abide by the rulings of the court. Id. at 831. As to the reasons for seeking withdrawal, the Supreme Court reiterated that it would have scant sympathy for an attorney who sought to avoid representation merely because the defendant's cause was unpopular, or because the crime of which he was accused was distasteful, citing EC Id. Reported federal cases are similarly pessimistic on whether one's free exercise rights are unconstitutionally burdened under analogous facts. See Mozert v. Hawkins County Board of Education, 827 F. 2d 1058 (6th Cir. 1987), cert. denied 484 U.S. 1066, 108 S. Ct. 1029, 98 L. Ed. 2d 993 (1988) (requiring children to read from texts they found offensive to their religious beliefs did not burden students' rights to free exercise of religion). Cf. U.S. v. Greene, 892 F. 2d 453, 456 (6th Cir. 1989), cert. denied 495 U.S. 935, 110 S. Ct. 2179, 109 L. Ed. 2d 508 (1990) (in order to assert free exercise of religion as a defense to violation of a criminal statute, defendant must establish that his beliefs constitute a religion within the meaning of the First Amendment and that statutes in question do not serve a compelling governmental interest. Ultimately, counsel should allow the juvenile court to determine as a matter of law the propriety of his withdrawal after motion and hearing to develop an adequate record, pursuant to the Tennessee Supreme Court's Jones and Maddux decisions. Circumstances in which attorneys could face ethical sanctions can be easily envisioned such as where permission to withdraw from a tribunal is required under DR (A) (1), and attorneys do not obtain same. Tennessee Formal Ethics Opinion 84-F-73 is also instructive on this issue, although this opinion specifically addresses ethical obligations of counsel in first degree murder cases. The Board opined, though, in cases involving conflicts between the moral and ethical beliefs of counsel and those of his client that: É [c]ounsel's moral beliefs and usually acceptable ethical standards and duties must yield to the moral beliefs and legal rights of the defendant É 12 of 16 9/6/10 12:14 AM

14 TBJ-Jan97-Moral Counsel is ethically obligated to follow the law and to do nothing in opposition to the client's moral and legal choices É Counsel should move the court to withdraw during the portion of the trial where the conflict is manifested. In the event the court fails to grant such motions, the attorney should seek an immediate review by the appellate court. [Discussion of sixth question omitted.] This opinion is only intended to address the ethical obligations of counsel. This 13th day of June, Ethics Committee: Donna S. Massa, Chair Barbara J. Moss Larry D. Wilks Approved and adopted by the board. Notes 1. Ernest F. Lidge III, "Client Perjury in Tennessee: A Misguided Ethics Opinion, an Amended Rule, and a Call for Further Action by the Tennessee Supreme Court," 63 Tenn. L. Rev. 1, 3 (1995). 2. Tenn. Bd. of Prof. Resp., Formal Op. 96-F-140 (1996 ). 13 of 16 9/6/10 12:14 AM

15 TBJ-Jan97-Moral 3. Id. The constitutionality of the statute has been (and is being) litigated. See 21 Tennessee Attorneys Memo, 36-40, at (Sept. 2, 1996). 4. This was question number five in Formal Opinion Tenn. Bd. of Prof. Resp., Formal Op. 96-F-140 (1996). 6. Id. Earlier, the opinion had stated that the attorney had asked about the propriety of "declining" the appointment but, in any event, the answer should be the same - the attorney should respectfully inform the court of his dilemma. 7. Tennessee Code of Professional Responsibility, EC 2-29 (1995). 8. Id. 9. Tennessee Code of Professional Responsibility, EC 2-30 (1995). 10. Model Rules of Professional Conduct, Model Rule 6.2 (1983). 11. Tennessee Code of Professional Responsibility, DR (A) (1995). 12. While DR (A) provides that such conflicts of interest can be cured in some circumstances by client consent after full disclosure if the lawyer's feelings are strong enough, consent cannot cure the conflict here. See Charles W. Wolfram, Modern Legal Ethics 7.2.2, at 540 (1986) (the Model Code "asserts as a basic notion that client consent will not always cure a serious conflict of interest"); id , at 341 (under the Model Code, consent should "be relied upon only if it is objectively clear that the threat to the lawyer's independent judgment is minimal"). 13. Tennessee Code of Professional Responsibility, Canon 7 (1995). 14. Tennessee Code of Professional Responsibility, DR 6-101(A) (1) (1995). 15. Tenn. Bd. of Prof. Resp., Formal Op. 96-F-140 (1996). 16. United States v. Greene, 892 F.2d 453 (6th Cir. 1989), cert. denied, 495 U.S. 935 (1990); Mozert v. Hawkins County Board of Education, 827 F.2d 1058 (6th Cir. 1987), cert. denied, 484 U. S (1988) S.W. 2d 515 (Tenn. 1987) S.W.2d 819 (Tenn. 1978). 19. Jones, 726 S.W. 2d at Id. at Id. 14 of 16 9/6/10 12:14 AM

16 TBJ-Jan97-Moral Id. at S.W.2d 819 (Tenn. 1978). 24. Id. at Id. at 821 (cited in Tenn. Bd. of Prof. Resp., Formal Op. 96-F-140 (1996)). 26. Id. 27. Tenn. Bd. of Prof. Resp., Formal Op. 84-F-73 (1984). 28. Id. (quoted in Tenn. Bd. of Prof. Resp., Formal Op. 96-F-140 (1996)). 29. Id. (quoted in Tenn. Bd. of Prof. Resp., Formal Op. 84-F-140 (1996)). 30. Id. (emphasis added). 31. Tennessee Code of Professional Responsibility, DR 7-106(A) (1995) states that a lawyer cannot disregard a tribunal's ruling, but may test the ruling's validity. If a court requires an attorney to engage in conduct that the attorney believes is morally wrong, the attorney may choose to engage in peaceful, respectful civil disobedience. A discussion of this issue is beyond the scope of this article. 32. This was question number three in Formal Opinion Tenn. Bd. of Prof. Resp., Formal Op. 96-F-140 (1996). 34. Tennessee Code of Professional Responsibility, EC 7-8 (1995). 35. Tennessee Code of Professional Responsibility, EC 7-9 (1995). 36. Model Rules of Professional Conduct, Rule 2.1 (1983). 37. Tenn. Bd. of Professional Responsibility, Formal Op. 84-F-73 (1993) (emphasis added). 38. Tennessee Code of Professional Responsibility, DR (1995). Tennessee Bar Journal January/February Vol. 33, No. 1 Ernest F. Lidge III is an associate professor of law at The University of Memphis Cecil C. Humphreys School of Law. He has been on the law faculty since He teaches professional responsibility, labor law and fair employment practices. He has published articles on professional responsibility in the Tennessee Law Review, the Arkansas Law Review and the Indiana Law Journal. He received his law and master's degrees from the University of Illinois and his bachelor's degree from Northern Illinois University. From 1984 to 1988, he practiced labor law in Chicago as an associate at Mayer, Brown & Platt. 15 of 16 9/6/10 12:14 AM

17 TBJ-Jan97-Moral Copyright 1998 Tennessee Bar Association 16 of 16 9/6/10 12:14 AM

18 TBJ-Jan97-Work When is your work "work product"? A lawyers guide to the work product discovery exemption by Henry D. Fincher The "work product" discovery exemption is invoked daily by litigators but remains one of the least explored areas of Tennessee Civil Procedure. Understanding current Tennessee law and analogous federal rulings on the subject helps the attorney who must walk the thin line between shielding his or her thoughts from the harsh light of discovery and getting sanctioned for unauthorized obstructionism. Tenn. R. Civ. P (3) codifies the work product privilege in Tennessee civil cases. 1 Generally, work product includes 1) any document, memorandum, recording or other tangible item, 2) prepared by a party, his attorney, surety, insurer or agent, 3) in anticipation of litigation. 2 Work product is exempted from discovery, as well as from disclosure under the Tennessee Public Records Act. 3 This general definition is pockmarked with exceptions. The reason for the exceptions is that the work product exemption occupies the murky area that separates attorney-client privilege from discoverable material. Academics have killed numerous trees arguing over whether the work-product exemption is or is not a privilege; 4 the United States Supreme Court struck a middle path in one case, referring to it as a "qualified privilege." 5 Such semantical squabbles do little to tell a litigator if she has to give something to her opponent. Despite the interpretive questions that abound in the outer limits of the work product exemption, there are a few hard and fast rules under current law that each Tennessee practitioner ought to have at his or her fingertips: The document must have been created in private and kept that way. In Memphis Pub. Co. v. City of Memphis, 6 the Court noted that a deposition could never constitute work product because it lacked the requisite "veil of confidentiality" implicit in the idea of work product. Though the Court did not give good directions on where the threshold amount of secrecy might be found, it is clear that some degree of privacy is required for something to qualify as work product under Tennessee law. The work product exemption applies to all cases handled by an attorney. The Tennessee Supreme Court has ruled that the work product exemption is not limited solely to materials prepared for the litigation in which the request for work product is 1 of 6 9/6/10 12:14 AM

19 TBJ-Jan97-Work filed. It protects other materials from disclosure, including those prepared in other cases that were never litigated. 7 An opposing party's statement is never your work product. Tenn. R. Civ. P (3) expressly states that upon request, a party shall be provided a copy of his or her statement to representatives of the opposing side. Under current discovery rules, no Tennessee attorney has a duty to provide an opposing party with a copy of his statement unless asked to do so by that party. Because of this discoverability, it is wise to avoid including any information that originated with the attorney, such as impressions as to the opposing party's credibility, appearance, or other thoughts which would give away her strategic considerations. If the court is drawn into the dispute, it will want to see the documents. Particularly in hard-fought litigation where both sides are testing the limits of unsanctionability, it is important to remember that no matter how confidential the material seems to be, the court can order an in camera inspection whenever it wants to do so. Tenn. R. Civ. P gives the court broad powers to sanction attorneys who obstruct discovery. An attorney asserting the work product exemption should review the file and have at her fingertips a good faith argument detailing how the documents in the file fit the work product exemption. Otherwise, she may find herself hit with sanctions or in an extreme case, have her client's case dismissed. Opinion Work Product Some commentators use the phrase "opinion work product" to refer to work product that consists of an attorney's "mental impressions, conclusions, opinions or legal theories." Tenn. R. Civ. P (3) expressly warns courts against disclosing such information, which creates a special category of work product that is "nearly absolutely privileged." 8 Thus, the critical element that establishes a document as "opinion work product" rather than mere work product is original or creative thought: the mere recordation of facts can constitute work product, but once an attorney, paralegal or other representative records her opinion about those facts' significance, the document moves closer to non-discoverability. Work Product Disputes The work product exemption's definitional malleability inevitably leads to good faith disputes over its boundaries. Tenn. R. Civ. P (3), mirroring the federal rule, details the showing to be made by the party seeking to overcome the work product exemption. Though the text of the rule is silent, its mechanism implicitly requires the party claiming the work product exemption to demonstrate that the requested documents fall within the work 2 of 6 9/6/10 12:14 AM

20 TBJ-Jan97-Work product exemption. Specifically, the party asserting privilege must demonstrate, presumably by a preponderance of the evidence, that an opposing party has requested discovery of material that fits the general definition of work product detailed earlier in this article. Once the party asserting privilege has demonstrated a prima facie case of work product, the burden falls upon the requesting party to establish that he has substantial need of the information and that he has no reasonable alternative to obtain the information. "Substantial need" has not been adequately defined in either Tennessee or analogous federal opinions. Wright & Miller vaguely suggest that it is something "more than relevancy." 9 Regardless of such linguistic difficulties, the party desiring access to the material must demonstrate his anticipation that it will help her case. The information must be otherwise unavailable to satisfy the "no reasonable alternative" part of the Rule 26.02(3) test. Conceptually, this requirement poses a catch-22: the requesting party has to know what is in the document without having ever seen it. Practically, because of the implicit showing made by the party claiming exemption, the general subject matter of the document has been revealed before the requesting party must make her showing. Thus, the party requesting access to material otherwise subject to the work product exemption has practical access to the general subject matter of the document that enables her to muster the facts necessary to make her showing. For example, the statement of a non-party witness to an accident may be at issue. If the witness is available, no showing of unavailability can be made and the party will have to go out and take the witness's statement on his own time. On the other hand, if that witness has died, left the country or gone insane, there is probably no other way to get the statement. Accordingly, the party requesting access to work product must explore other avenues of getting the information, and must document these explorations so he will be able to make his showing when it comes time to do so. Without this documentation, even if it is simply an affidavit from the attorney detailing with some specificity his attempts to locate the information, there is little chance of overcoming the presumption of exemption. What Happens If You Lose? Like other discovery rulings, there is no immediate right to appeal an adverse decision resolving a work product dispute. It is an interlocutory ruling, and while procedural "safety valves" exist to expedite appeal in certain extraordinary cases, 10 they are not likely to succeed. Accordingly, losing at this point becomes primarily a matter of damage control. For the attorney seeking access to information, that means finding another avenue to obtain the information or crafting new legal theories upon which to base her client's case. For the attorney denied an exemption claim, the next level of protection is to prevent unwitting disclosure of opinion work product and unnecessary dissemination of the 3 of 6 9/6/10 12:14 AM

21 TBJ-Jan97-Work remaining information. Accordingly, the first step is to use the rule that instructs the court to prevent disclosure of opinion work product. The losing party should file copies from which all opinion work product has been excised alongside a motion to excise all such material. Given most courts' notorious impatience with discovery disputes, a facially fair excision will probably be approved. This precaution also lets you, and not the court, decide what opinions and theories ought to be excluded. Furthermore, it saves the court precious time, which normally will be appreciated. At the same time, care should be taken against striking material that cannot fairly be described as opinion work product. Testing a court's patience after losing a discovery motion is a good way to get sanctioned. The second step is to make a formal request for a protective order under Tenn. R. Civ. P The order should be used to prevent dissemination of the information outside the confines of the case at hand. This could be quite important if other litigation is pending, and it preserves the essential "veil of confidentiality" for future cases where a different court may be more sympathetic to a work product claim. Affirmative Use of the Work Product Exemption Although it is not prudent in all cases, the work product exemption can be used proactively to conceal the strategy of your case and to prevent an opponent's "free-loading" off your research and case preparation. Including legal theories and opinions is the midst of factual research serves two useful and ethical purposes. First, it bolsters a future claim that a particular document is opinion work product, and therefore not discoverable, rather than "mere" factual work product. This helps keep an attorney's work private and forces her opponent to make his own case. Second, including legal theories and opinions that arise in the course of factual investigation helps preserve what may be a fleeting thought. Such flashes of insight could prove important later in litigation, particularly if new evidence helps resurrect a previously discarded idea. There is one major exception to this reservation: do not do this with an opposing party's statement. Those are expressly excluded from the work-product protections of Tenn R. Civ. P (3). Conclusion Work product is frequently encountered by courts and attorneys, but it seldom receives the consideration it deserves. Your work product costs your client money and costs you a good deal of time and experience. By knowing the conceptual and practical boundaries of the work product exemption, you can prevent your opponent from borrowing from your initiative and using it against your client. 4 of 6 9/6/10 12:14 AM