IN THE SUPREME COURT OF TENNESSEE

AT NASHVILLE

October 4, 2000 Session

JOHN M. CLINARD, ET AL. v. ROGER BLACKWOOD, ET AL.

Appeal by Permission from the Court of Appeals, Middle Section

 Circuit Court for Robertson County

No. 8674 Walter C. Kurtz, Judge

No. M1998-00555-SC-R11-CV - Filed May 18, 2001

FRANK F. DROWOTA, III,J., concurring in part, dissenting in part.

For the reasons discussed in the majority opinion, I agree with my colleagues’ adoption of

Formal Opinion 89-F-118. Screening procedures, where properly implemented, are sufficient to

overcome the presumption of shared confidences. Law firms should be able to rely on screening to

avoid imputed disqualification. I also agree with the majority that “the Waller firm implemented a

long-adopted screening policy to prevent Mr. Davis and Ms. Nicholson from accessing or

communicating any information regarding the Clinard/Blackwood matter.” In my view this ends the

inquiry and requires reversal of the Court of Appeals. Since I find the majority’s adoption of the

“appearance of impropriety” standard unnecessary and unwise, I respectfully dissent.

The majority appears to take away with one hand what it gives with the other. This concerns

me for two reasons. First, having held that screening is valid, and having held that the Waller firm’s

procedure meets ethical standards, the majority imposes an additional level of review to determine

whether the presumption of shared confidences has been rebutted. This additional level of review

necessarily removes some of the certainty that screening is intended to provide to the legal

community. Indeed, screening is a procedure specifically designed to rebut the presumption of

shared confidences. To hold that screening, in effect, has been applied properly is to hold that this

presumption has been rebutted, which, in turn, is to hold that the ethical problem has been cured.

That is the clear, logical assumption that underlies screening, and it is the assumption that lawyers

in Tennessee have made and relied upon in adopting screening. The majority’s imposition of yet

another layer of review over screening procedures undercuts this reliance. Now, lawyers must not

only determine how to design a proper screening procedure, and how to comply with that procedure,

but also whether their properly-designed and properly-applied screening mechanism is “enough” to

avoid sanction. The rules have been made more complicated, without justification in my view.
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Second, the particular standard chosen to implement this additional level of review, the

appearance of impropriety standard, is too imprecise to carry the weight the majority gives it. The

purpose of disciplinary rules are to regulate lawyers; they tell lawyers what they can and cannot do

to avoid ethical sanction. A subjective standard that “evades easy definition,” as the majority states,

necessarily falls short of that level of clarity lawyers should expect of ethical rules, the violation of

which has significant consequences. The standard is perhaps most imprecise in that its application

is governed by the “reasonable layperson” test. As stated above, lawyers have employed screening

under the assumption that it is a clear and certain method of complying with the ethical rules. But

it can no longer be viewed as clear and certain when a lawyer must also consider how a reasonable

layperson would assess the ethical dilemma. Determining what a reasonable person thinks about

lawyers moving from one firm to another is a difficult and unpredictable factual inquiry. I believe

that even the most thoughtful, careful, and ethical lawyers will be unable to reach firm judgments

after conducting this inquiry. Indeed, as the majority concedes, judges “may fail to find an

appearance of impropriety where one would be found by a layperson.” I believe that lawyers will

have the same difficulty making evaluations under this standard. Where clarity is required, the Court

unfortunately provides the bench and bar with uncertainty.

Finally, I wish to emphasize the majority’s statement that attorney disqualification based

upon the appearance of impropriety is a “drastic remedy” to be applied only in a “rare case.” Since

the screening procedure in this case was sufficient, and since the Waller firm adhered to that

procedure, I think that the majority today goes beyond the bounds of its own characterizations.

Nevertheless, I am confident that the majority’s holding will be applied sparingly in future cases,

given the unique circumstances of this case. As the majority describes it: “This is not a case in

which a conflict resulted from an attorney’s prior representation in a different, unrelated matter. Mr.

Davis’s firm now stands as adversary against the Blackwoods in the very litigation in which Mr.

Davis once represented them and gained their confidences.” Given these facts, there is reason to

believe that the cases in which screening will be invalidated are indeed rare, and hopefully limited

to situations in which a lawyer “switches sides” in the same case. I find it unfortunate, however, that

the majority chooses to remedy an admittedly rare occurrence by adopting a holding that will lead

to unnecessary confusion.

 _______________________________ 

FRANK F. DROWOTA, III, JUSTICE