The Tennessee Supreme Court is considering amendments to Tennessee Supreme Court Rule 7 which governs licensing and admission of attorneys in Tennessee. An Order soliciting comments on the proposed changes was entered on January 17, 2019; a copy of the Order can be found here. Comments must be submitted on or before Friday, February 15, 2019. Included with the Order are both a redline version of Rule 7 and a final version of the Rule, which incorporates all proposed changes.
The following is a list that highlights the proposed changes in order to offer a brief explanation of the changes in context:
Throughout the Rule, formatting and paragraph numbering have been changed to a consistent format for ease of citation.
Article II includes provisions related to education, including educational requirements and regulation of law schools. Article II been revised throughout to provide a process for waiver of the educational requirements and to recognize the ABA accreditation process while leaving some latitude with the Board, specifically:
- 2.01(c): Adds a process for seeking a waiver of the undergraduate degree requirement regarding the accreditation of the undergraduate school; rather than require the filing of a petition under 13.02, which would require a hearing, the Board proposes modifying the process to require an applicant to request a waiver and provide evidence of substantially equivalent education. The Board can make a determination on the basis of the request rather than requiring the applicant to appear at a hearing prior to the examination.
- 2.02: Changes the title of the section to remove the reference to approval of law schools which is section 2.03. Subparagraph (d) is revised to clarify that non-ABA law school graduates have other requirements without the circular reference to other educational requirements, which confused applicants. Other changes are stylistic and provide clarification of the requirements.
- 2.03: Changed title to TN Law Schools; overall changes reflect when the Board of Law Examiners has standing regarding law school oversight. There are two paths – one for schools seeking accreditation or with ABA accreditation and one for those schools not accredited by the ABA. Subparagraph (d) lists the functions of the Board; there is a provision for all schools located in TN and an additional provision for a school with state-approval only. Subparagraph (e) is an additional requirement for the state-approved school, requiring a self-study every 7 years. Subparagraph (e)(2) requires TN law schools to provide the Board copies of documents sent to the ABA.
- 2.05: Penalties of graduating from a substandard (unapproved) law school are defined.
- 2.06: The reference to comity was removed.
- 2.08 and 2.10: Clarified that costs of site evaluations/inspection and fact finders are paid by the law school, including consultant fees.
3.01: Changed title (no longer a traditional “form”) and clarified that this section applies to applications for admission by examination.
3.02: This is a new provision, moved from section 3.07(c). Titled, “Obligation to Amend,” the restated requirement covers more than additional information as referenced in (former) 3.07(c); the change clarifies that any changes to information reported or required to be reported requires the filing of an amendment.
3.04: Also new, this provision clarifies when an application for admission (exam, re-exam, transferred UBE score) “expires,” which is critical when dealing with state records requirements. The provision clarifies that an application closes upon the earlier of admission/issuance of a license; withdrawal of the application by the applicant (not withdrawal from an exam); denial of a license under Sec. 9.05 (by the Supreme Court); 30 days after entry of an order denying admission on character and fitness grounds (applicant may not re-apply sooner than three years after the order) or denial of eligibility of a UBE transfer applicant, absent a Writ of Cert; expiration of exam or UBE scores; inactivity (UBE) or 3 years after the last submitted application for exam or re-exam. The new provision includes the process for voluntarily withdrawing an application for admission. There is a corresponding new provision for comity applications, as well.
3.05(a)(3): The requirement that an applicant who was unsuccessful on the TN bar examination cannot seek admission by transfer UBE score is contrary to the concept and intent of the Uniform Bar Examination, which provides a portable score. A UBE score from another jurisdiction is similar to a re-examination score earned in Tennessee and Rule 7 does not have a time limit before re-examination.
3.05(b): Clarifies that a UBE score is valid for a maximum of 5 years and clarified that an applicant can use an otherwise expired UBE score (3 – 5 years) if licensed in another U.S. jurisdiction and has been engaged in the active practice of law; the current rule does not include the licensing requirement, which is needed to be engaged in the active practice of law.
4.05: Provisions regarding re-examination were expanded to clarify when a refund will issue and that the refund is the same as for anyone withdrawing from the examination if the Board denies that application for re-examination.
4.07(c): See section 3.05(b) changes regarding the absolute expiration of UBE score after 5 years.
5.01: Changed title to without examination rather than on motion to make consistent throughout rule
5.01(a): Removed “upon motion” as there isn’t one required or filed and added without examination.
5.01(b): Clarified that a petition for waiver of diploma privilege is required only if applicant is not licensed by exam or UBE score in another jurisdiction, what must be included in the petition and that a hearing will be set.
5.01(e): Removes the provision regarding failure of a Tennessee bar exam provision within 5 years prior to the application for admission without examination as this is an admission type based on practice, not exam scores where applicants have to be admitted and in good standing in at least one other US jurisdiction and have practiced law 5 of the 7 years preceding the application for admission. Also, all applicants for a license in Tennessee must now complete the Tennessee Law Course (section 1.07).
5.01(f): Modifies the requirements to clearly state that two certificates or one with both statements are required: certification of admission to the highest court and certification that applicant is currently in good standing in the jurisdiction.
5.01(g): Incorporated the requirement to submit an application to register and made some stylistic changes for clarity.
5.03: This is a new provision that establishes when a comity application expires; see section 3.04 above.
6.02: Revised to remove committee size limits that will now be set by Board Policy and approved by the Court rather than through an amendment to Rule 7.
7.01(a): Added transferred UBE score as an admission method for foreign-educated applicants who otherwise meet eligibility requirements.
8.01: The title was changed to a unique name and the provision now includes all types of admission.
9.01, 9.04 and 9.05: Changes are stylistic and grammatical only.
10.01: Significant revisions have been proposed to the current rule which mostly follows the provision of the Model ABA In House Counsel rule.
- 10.01(a): Inasmuch as foreign legal consultants (FLC) are permitted to practice in Tennessee under T.C.A 23-2-206, the Board proposes to require those who wish to practice as FLC to comply with attorney admission, registration, and regulation requirements. An FLC will be limited to providing advice on foreign law and will not be eligible to provide pro bono services. Additionally, it is proposed that the provision regarding “registration within 180 days of the effective date of the this Rule” be removed as the model rule is stand-alone rule and not a sub-part of a larger rule; presently, every time Rule 7 is amended, In-House Counsel who have not timely registered have a new 180-day time period to register.
- 10.01(h): This new provision, not in the Model Rule, has been included to provide a “late registration” process that permits an In-House Counsel to register after 180 days upon payment of a late fee and completion of the registration process; other penalties for failure to timely register remain but this provides an option short of taking the bar examination for In House Counsel to come into compliance with Rule 7 and Rule 8 RPC 5.5(d). With this change, the Board recommended, and the Court approved, changes to the Fee Schedule reducing the MJP application fee to $600 and charging a $200 fee for late registration.
- 10.01(i): This subparagraph is amended to restrict the protection against charges of unauthorized practice of law (UPL) only to those who register timely.
- 10.01(j): Likewise, the revisions to this subparagraph clarify that any other type of application (comity, exam, transfer UBE score), even if within 180 days of commencing practice in Tennessee, will not provide protection from a UPL complaint for In-House Counsel not registered under 10.01 or for practice pending admission under 5.01(g).
- 10.01(k): An amnesty provision for FLC of 180 days from the date of adoption of the amendments, is included.
10.02: This section (and section 10.03) are updated to reflect current practices. Existing provisions have been modified to include new definitions from the Article II changes and the provision for approval of law school clinics has been moved from 10.03 to this section.
10.03: The Law Student Practice rule has been completely revised to include law student practice in approved law school clinics/clinical programs and Law Student Externs. All practice must be on behalf of a governmental unit or a nonprofit legal services organization. The new provisions include requirements for submitting certifications on standard forms promulgated by the Supreme Court. Also included is a provision regarding termination of eligibility to practice under 10.03.
10.04: Add legal education under section 2.02 to the current requirements.
12.10: This section was changed to reflect that salaries of assistant examiners may be recommended by the Board but are set by the Court.
12.11: Revised the confidentiality language to make clear that investigative records are not available to applicants and clarified when law enforcement/disciplinary counsel/other admission authorities my access confidential records.
13.01: Revisions to this provision incorporate current practices and provide more information regarding the show cause and hearing process. Changes clarify what actions require the Board to issue a show cause order and what actions of the Board do not require a show cause order. Further, the section was amended to provide that the hearing date/time will be set in the SCO.
13.02: The proposed amendment clarifies that an applicant may not petition for reconsideration for denial of eligibility due to an incomplete application at the application deadline
13.04: Changes are recommended to reorganize the provisions of this section to provide clarity.
13.06: It is recommended that the section be amended to provide for email notification of decisions of the Board.