Can Disciplinary Counsel interview a respondent attorney's spouse, secretary, or law partner about a misconduct complaint without the respondent's knowledge or consent?
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This page answers the general question as of 1982. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.
Currency note
This opinion was issued in 1982, before Tennessee's adoption of the 2003 Rules of Professional Conduct, which replaced the former Code of Professional Responsibility. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.
Plain-English summary
The Board was asked, under Section 26 of Rule 9 of the Rules of the Supreme Court, about the propriety of Disciplinary Counsel interviewing a respondent attorney's wife, secretary, clerk, investigator, employee, partner, associate, or member of a professional corporation, either before or after formal charges are filed, with or without a subpoena, and without the respondent's knowledge or consent, when a complaint has been filed against the respondent.
The opinion analyzed the question under DR 1-102(A)(4), which bars a lawyer from engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation. It held that once charges have been filed, notice to the respondent of who will be interviewed is not required, and the investigation may be conducted confidentially to the fullest extent that confidentiality can be maintained, but must be conducted with no deceit or misrepresentation. Investigating counsel owes the respondent's wife, secretary, partner, associate, and similar persons a high degree of candor during an interview; if an interview is held with a person holding a confidential relationship with the respondent, the investigator must reveal the thrust of the interrogation, and failing to do so would be deceitful or a misrepresentation in violation of the rule. The opinion also invoked EC 1-5 and related ethical considerations (EC 7-1, EC 9-2, EC 9-6) placing on attorneys, including Board counsel, the duty to maintain high standards of professional conduct, concluding that Board counsel are held to the highest standards of avoiding dishonesty, fraud, deceit, or misrepresentation in their professional conduct.
Common questions
Q: Can Disciplinary Counsel interview a respondent attorney's spouse or staff without telling the respondent?
A: Yes. The opinion holds "once charges have been filed against a Respondent attorney, notice would not be required to be given to such Respondent regarding the persons to be interviewed."
Q: What limits apply to how Disciplinary Counsel conducts that interview?
A: The interview must be candid, not deceptive. The opinion requires that "such investigation, while conducted within the realm of confidentiality, to the full extent that the same may be maintained, shall be conducted with no deceit or misrepresentation," and that when interviewing someone in a confidential relationship with the respondent, the investigator must "reveal the thrust of this interrogation," because failing to do so "would be deceitful or misrepresentative" and violate DR 1-102(A)(4).
Q: Are Board counsel held to a different standard than other attorneys?
A: They are held to the highest standard within the same rule. The opinion states "Counsel for the Board of Professional Responsibility of the Supreme Court in all of their professional conduct would be held to the highest standards" of avoiding "appearances of dishonesty, fraud, deceit or misrepresentation."
Background and rules framework
The opinion applied Disciplinary Rule 1-102(A)(4) of the Tennessee Code of Professional Responsibility (barring dishonesty, fraud, deceit, or misrepresentation), together with EC 1-5, EC 7-1, EC 9-2, and EC 9-6. The modern correlate is Model Rule 8.4 (misconduct), noted here as a navigational cross-reference rather than a rule the opinion itself applied.
Citations and references
Rules of Professional Conduct:
- DR 1-102(A)(4) and EC 1-5, EC 7-1, EC 9-2, EC 9-6, Tennessee Code of Professional Responsibility
- Model Rule 8.4 (misconduct), modern correlate
See also
Source
- Landing page: https://www.tbpr.org/ethic_opinions/82-f-29
Original opinion text
Reproduced from the official source for research purposes. The linked source is authoritative.
82-F-29 - Disciplinary counsel interviewing respondent's family
BOARD OF PROFESSIONAL RESPONSIBILITY OF THE SUPREME COURT OF TENNESSEE
FORMAL ETHICS OPINION 82-F-29
Pursuant to Section 26 of Rule 9 of the Rules of the Supreme Court, the Board has been asked for a Formal Opinion as to the propriety of Disciplinary Counsel interviewing Respondent's wife, secretary, clerk, investigator, employee, partner, associate, or member of a professional corporation, either before formal charges are filed, or after, with or without
a subpoena, without the knowledge and consent of the Respondent, when there has been a complaint filed against the Respondent attorney.
It appears to this Committee that the question raised falls within an interpretation of DR 1-102(A)(4) which states: "A lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation." Once charges have been filed against a Respondent attorney, notice would not be required to be given to such Respondent regarding the persons to be interviewed; however, such investigation, while conducted within the realm of confidentiality, to the full extent that the same may be maintained, shall be conducted with no deceit or misrepresentation. The investigating counsel does owe to the Respondent's wife, secretary, partner, associate, etc., a high degree of candor on an interview. If an investigatory interview was held with any such persons holding a confidential relationship with the Respondent attorney, it is incumbent upon such investigator to reveal the thrust of this interrogation, and failure so to do would be deceitful or misrepresentative, and in violation of Disciplinary Rule set forth above.
EC 1-5 places upon the attorney the onus of maintaining high standards of professional conduct and encouragement of fellow attorneys to do likewise. Further, such theme is recited throughout other ethical considerations, to wit: 7-1; 9-2; 9-6.
The Code of Professional Responsibility places upon the practicing attorney a higher degree of personal conduct and an avoidance of appearances of dishonesty, fraud, deceit or misrepresentation and, certainly, Counsel for the Board of Professional Responsibility of the Supreme Court in all of their professional conduct would be held to the highest standards in such regard.
This 18th day of June, 1982.
ETHICS COMMITTEE:
William R. Willis, Chairman
F. Evans Harvill
John R. Rucker, Senator
APPROVED AND ADOPTED BY THE BOARD
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