### IN THE SUPREME COURT OF TENNESSEE AT NASHVILLE October 4, 2000 Se ssion 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

F RANK F. D ROWOTA , III, J., concurring in part, dissenting

in part.

For the reasons discussed in the majority opinion, I agree with my colleag ues’ adoption of Formal Opinion 89-F-118 . Screening pro cedures, where

properly im

p lemented , are sufficien

t to
overcome the presumption of

shared confide

nces. Law fi

rms should be able t

o 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 ma tter.” In my view this ends the inquiry and requires reversa

l of the Court of Appeals. Since I find the majority’s adoption of the “appearance

of impropriety

” standard unnec

essary and

unwise, I res

pectfully d

issent.

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 proceduremeets ethical sta ndards, the majority imposes an additional level of review to determine whether the presumptionof shared confidences has been rebutted. This additional level of review necessarily

removes some of the certainty that scr eening is in

tended to provide to the legal
com mun ity. Indeed, screening is a procedure specificall y designed to rebut the presumption of shared confidences. To hold that screening, in effect, has been app lie d pr ope rly is to hold that this presumption has been rebutted, which, in turn, is to hold that the e t hical 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, lawy ers must not only determine how to design a prope r screening pr

ocedure, and ho

w to comply wi

th that procedure, butalso whether the

ir properly

-designed and p

roperly-a pplied screening

mechanism

is “enough” to avoid sanction. The rules have been made more complicated, without justification in my view.-2-

Second, the particular st

andard chosen to

implement this addit

ional le vel 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 reg

ulate lawye

rs; they tell

lawyerswhat they can and cannot do to avoid ethical sanction. A subjective standard that “evades easy definition,” as the majority sta

tes, necessarily

falls short of that level of clarity lawyers should expect of ethical rules, the violation of which has significant

consequences. T

he standard is

perhaps most imprecise in that its application is governed

by the “reasonable lay

person” test. As stated above, lawyers have employ ed 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 cert

ain when a lawy

er must also consid

er how a reasona

ble layper son wo uld assess the ethical dilemma. Determining what a reasonable person thinks about lawyersmoving from one firm to another is a difficult and unpredictable factual inquiry. I believe that even the most thoug

htful, careful,

and ethical lawy

ers will be unable

to reach firm judg

ments after conduct ing this i nquiry. 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 lawy

ers will have the same difficulty making evaluations under this standard. Wher

e clarity is required, the Court unf ort una tel y pro vid es t he b ench and bar w ith unc ert ain ty.

Fin all y, I wish to empha

size the majority ’s statement that a tto rney d isqualification based upon the appearance of impropriety is a “drastic reme dy” to be applied only in a “rar e case.” Since the screening procedure in this case was sufficient, and s ince the Waller firm adhered to that procedure, I thi nk t hat the maj ori ty to day g oe s beyond the bounds of its own cha

racterizations. Neverthele ss, I am confide nt that the majority

’s holding will be a

pplied sparingly

in future cases, giventhe unique circumstance s of this c ase. As the majori ty describe

s it: “This is not a ca

se in which a conflict resulted

from an attorney’s prior representation in a different, unr elated matter. Mr. Davis’s firm now stands as adversary agai nst the Black woods in the very litigation in which Mr. Davis once represented them and gained their confidences.” Given these f acts, 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