Adopted by Tennessee Lawyers’ Fund for Client Protection on
November 9, 2020
Approved by the Tennessee Supreme Court on
November 23, 2020
TABLE OF CONTENTS
1. PAYMENT OF CLAIMS
1.1 Payment of Unearned Fee Claims
1.2 Payment of Investment Claims
1.3 Retention of Claims
1.4 Policy on Forgiveness of Restitution Balances
1.5 Policy on Fee Disputes
1.6 Payment Formula
2. RECORDS POLICY
2.3 Requesting Access to Public Records
2.4 Responding to Public Records Requests
3. ADMINISTRATIVE DISMISSALS
3.1 Tenn. Sup. Ct. R. 25 § 10.02
3.2 Claimant’s Right to Appeal an Administrative Dismissal
1. PAYMENT OF CLAIMS
1.1 Payment of Unearned Fee Claims: (Adopted October 10, 1997)
The Fund will generally reimburse clients for some or all of the fees they paid to an attorney if there has been either:
- A pattern of behavior evidencing the lawyer’s lack of any good faith intention to perform the services for which the client paid, or
- A clear disciplinary violation involving dishonest conduct in one matter resulting in discipline and the inability of the attorney to complete the matters undertaken for other clients.
In refunding fees, the Fund will generally refund the full amount paid to the lawyer less an amount determined to represent the value to the client of any work done. In the event of the employment or pro bono work of subsequent counsel, the refund will ordinarily be the amount paid for such representation. The Fund will not attempt to improve the “benefit of the bargain” for the client.
1.2 Payment of Investment Claims: (Adopted October 10, 1997)
When the “investment” would not have occurred “but for” an attorney-client relationship, then the Fund will consider reimbursement. However, these claims often require consideration of Section 14.01(a). This section authorizes the Fund to consider “The conduct, including negligence, if any, of the claimant which contributed to the loss.”
1.3 Retention of Claims: (Adopted December 8, 2014; revised April 2, 2018)
Claimants who file a claim with the Tennessee Lawyers’ Fund for Client Protection shall be required to file a written complaint with the Board of Professional Responsibility. Upon notice or response from the Board of Professional Responsibility that a claimant has not filed a complaint, the Tennessee Lawyers’ Fund for Client Protection shall send written notice to the claimant by certified mail, return receipt requested. The notice shall inform the claimant that 1) the Board of Professional Responsibility has notified the Fund that the claimant does not have a complaint on file 2) that their claim filed with the Fund will be held for a maximum of sixty (60) days from the date of the written notice from the Board of Professional Responsibility and 3) that if a complaint has not been filed with the Board of Professional Responsibility within sixty (60) days that their claim will be dismissed.
1.4 Policy on Forgiveness of Restitution Balances: (Adopted October 2, 2017)
Requests for forgiveness of restitution balances owed to the Fund shall be denied absent a showing of mitigating circumstances. Requests showing mitigating factors preventing the attorney from making restitution will be considered on a case by case basis.
1.5 Policy on Fee Disputes: (Adopted October 2, 2017)
When a claim is presented to the Board involving a possible fee dispute the Board shall consider the following matters in making a determination that the matter under consideration is a fee dispute:
Fee Dispute Considerations:
The client retained the services of an attorney. The attorney has billed for services. The bill for services remains unpaid or the client alleges that the fee paid was not earned and is entitled to a refund of fees paid.
The question for this Board is whether the facts substantiate that the claim is a theft, tantamount to a theft or a fee dispute. The TLFCP does not pay claims based in fee disputes. In order to determine if the claimant’s matter is based on a fee dispute consider the answers to the following questions:
- Was the attorney prevented from completing the representation because of a disciplinary or other suspension?
- Did the suspension take place prior to being retained on the matter? i.e. Did the attorney know s/he could not provide representation?
- Was the representation initiated in an interim between periods of suspension?
- Does the number of hours billed equal the actual amount of work done? Is a fee still owed? If yes, to either question, the client is liable for the fee and the matter is a fee dispute and not subject to reimbursement.
- Did the attorney do some work but not finish the representation? Consider:
- What was the attorney hired to do? Was that done?
- Is there a representation agreement? If no, does the lack of an agreement automatically create a fee dispute, non-enforceable attorney claim?
- Did the attorney do any work? If yes, did the attorney charge a reasonable fee? If yes, the fee is owed by the client.
- If the attorney did not do ANY work then the attorneys owes the fee to the client. If the attorney refuses payment, the claim is tantamount to theft and the claim is eligible for reimbursement.
- How much work was completed? Depositions, discovery, pleadings, motions? If any work was done does that fact take the claim outside of Rule 25?
- Was the attorney fired by the claimant for cause after some work had been done? Does the basis of the firing negate the attorney’s right to be paid for services?
- What was the attorney paid do to? Initial representation, appeal?
- Did the attorney bill/charge for work that was never done? If yes, is the attorney owed for services that were performed? If yes, then that amount of the claim is a fee dispute. The next question is whether the fact that a portion of the claim is based on a fee dispute negates the entire claim?
- Did the attorney charge for unnecessary work? If no, then the fee charged is legitimate and does not meet the standard of theft. If yes, was there an element of dishonesty in the billing?
- Was the fee charged reasonable for the work undertaken? If no, then there was an overcharge by the attorney and the claimant is due a refund or credit against charges. Is the right to a refund of an unreasonable fee an act of theft or tantamount to theft?
- Did the attorney charge his attorney’s rate for work done by paralegals or junior associates? If yes, the client has been over charged and is due a refund or credit against charges. Is the right to a refund of an unreasonable fee and act of theft or tantamount to theft?
- Was there an element of dishonesty in the attorney’s billing conduct, i.e. would the police arrest for a theft or do nothing based on breach of contract??
- There was an element of criminality in the attorney’s action?
- Did the client receive what was contracted/paid for?
1.6 Payment Formula: (Adopted April 2, 2018)
All claims approved for payment shall be paid at a percentage of the claim at the discretion of the Board based on fund balance, current budget and other factors considered material by the Board.
2. RECORDS POLICY
- “Records Custodian” is the office, official, or employee lawfully responsible for the direct custody and care of a public record. Tenn. Code Ann. § 10-7-503(a)(1)(C). The records custodian is not necessarily the original preparer or receiver of the record.
- “Public Records” includes all documents, papers, letters, maps, books, photographs, microfilms, electronic data processing files and output, films, sound recordings, or other material, regardless of physical form or characteristics, made or received pursuant to law or ordinance or in connection with the transaction of official business by any governmental agency except for confidential records as set forth in Tenn. Sup. Ct. R. 9 §32. See Tenn. Code Ann. § 10-7-503(a)(1)(A).
- “Public Records Request Coordinator” is the individual or individuals, designated in this Policy who has, or have, the responsibility to ensure public records requests are routed to the appropriate records custodian and are fulfilled in accordance with the Tennessee Public Records Act (TPRA). Tenn. Code Ann. § 10-7-503(a)(1)(B). The Public Records Request Coordinator may also be a records custodian.
- “Requestor” is a person seeking access to a public record, whether it is for inspection or duplication.
- “Employee” is any person that is an employee of the Board of Professional Responsibility (the Board) that assists Tennessee Lawyers’ Fund for Client Protection (Lawyers’ Fund).
The following Policy for the Lawyers’ Fund is hereby adopted to provide economical and efficient access to public records as provided under the Tennessee Public Records Act, Tenn. Code Ann. §10-7-503 (a)(1)(B). This policy is available for inspection and duplication at Lawyers’ Fund and is posted online at tlfcp.tn.gov. The policy shall be reviewed as needed, but no less frequently than every two years.
2.3 Requesting Access to Public Records
1. Public record requests shall be made to the Public Record Request Coordinator (“PRRC”) or his/her designate in order to ensure public records requests are routed to the appropriate records custodian and fulfilled in a timely manner.
2. Requests for inspection may be made in person, by telephone, fax, email or other electronic means to the Tennessee Lawyers’ Fund for Client Protection, 10 Cadillac Drive, Suite 220, Brentwood, TN 37027. The PRRC shall, however, request a U.S. mail address or email address from the requestor in order to provide any written communication required under the TPRA.
3. Requests for copies may be made in person, by telephone, fax, email or other electronic means to the Tennessee Lawyers’ Fund for Client Protection, 10 Cadillac Drive, Suite 220, Brentwood, TN 37027. The PRRC shall, however, request a U.S. mail address or email address from the requestor in order to provide any communication required under the TPRA.
4. Unless there is an indication that the requestor is not a Tennessee citizen, proof of Tennessee citizenship by presentation of a valid Tennessee’s driver’s license is not required as a condition to inspect or receive copies of public records.
2.4. Responding to Public Records Requests
1. Public Records Request Coordinator
a. The PRRC shall review public records requests and make an initial determination of the following:
i. If the requestor is a Tennessee citizen;
ii. If the records requested are described with sufficient specificity to
identify them; and
iii. If the Lawyers’ Fund is the custodian of the requested records.
b. The PRRC shall acknowledge receipt of the request and take the following actions, if appropriate:
i. Deny the request on the basis that:
A. The requestor is not a Tennessee citizen;
B. The request lacks specificity and/or needs clarification;
C. The Board is not the custodian of the requested records; or
D. The requested records do not exist.
ii. Contact the requestor to see if the request can be narrowed and/or
iii. Forward the public records request to the appropriate records
custodian(s) at Lawyers’ Fund with notice of the date the request
was received and the deadline for when a response to the request is
iv. If requested records are in the custody of a different governmental
entity, and the PRRC knows the correct government entity, advise
the requestor of the correct governmental entity and PRRC for that
entity, if known.
c. The designated PRRC is:
i. Name or title: Ethics Counsel (on behalf of Lawyers’ Fund)
ii. Contact information: 10 Cadillac Drive, Suite 220, Brentwood, TN
2. Records Custodian
a. Upon receiving a public records request from the PRRC, if the requested records are practicably available and not exempt from disclosure, a records custodian shall promptly make the requested public records available pursuant to Tenn. Code Ann. § 10-7-503(a)(2)(B)(i). If the records custodian is uncertain that an applicable exemption applies, the custodian may consult with the PRRC or counsel.
b. If not practicable to promptly provide requested records because additional time is necessary to determine whether the requested records exist; to search for, retrieve, or otherwise gain access to records; to determine whether the records are subject to inspection; to redact records; or for other similar reasons, then the records custodian shall inform the PRRC, who shall, within seven (7) business days from the PRRC’s receipt of the request, send the requestor a Public Records Request Response pursuant to Tenn. Code Ann. § 10-7-503(a)(2)(B)(iii).
c. If a records custodian reasonably determines that production of records should be in installments, the records custodian shall inform the PRRC, who shall, within seven (7) business days from the PRRC’s receipt of the request, send the requestor a Public Records Request Response informing the requestor that the production of records will be in installments and that a records production schedule will be provided as expeditiously as practicable.
d. If a records custodian determines that a public records request should be denied because of an applicable exemption, the records custodian shall inform the PRRC, who shall, within seven (7) business days from the PRRC’s receipt of the request, deny the request in writing and include the basis for such denial, pursuant to Tenn. Code Ann. § 10-7-503(a)(2)(B)(ii).
e. If a records custodian discovers public records responsive to a records request were omitted in a production, the records custodian shall notify the PRRC, who shall contact the requestor concerning the omitted documents and produce those public records as quickly as practicable.
a. If a record contains confidential information or information that is not open for public inspection, the records custodian shall prepare a redacted copy prior to providing access.
b. Whenever a redacted record is provided, a records custodian should provide the requestor with the basis for redaction, which shall be general in nature and not disclose confidential information. A records custodian is otherwise not required to provide any sort of privilege log.
4. Inspection of Records
a. There shall be no charge for inspection of public records that are subject to inspection under the TPRA.
b. Inspection of records shall take place at the Tennessee Lawyers’ Fund for Client Protection located at 10 Cadillac Drive, Suite 220, Brentwood, TN 37027. The location for inspection of records within the Board shall be determined either by the PRRC or the appropriate records custodian.
c. Appointments for inspection of public records are required and may be scheduled by contacting the Board’s Ethics Counsel (on behalf of Lawyers’ Fund) at (615) 361-7500 Ext. 212.
5. Copies of Records
a. A records custodian shall promptly respond to a public record request for copies in the most economic and efficient manner practicable.
b. Copies will be available for pickup at Tennessee Lawyers’ Fund for Client Protection, 10 Cadillac Drive, Suite 220, Brentwood, TN 37027.
c. Upon payment for postage, copies will be mailed to the requestor’s home address by the United States Postal Service.
d. A requestor will not be allowed to make copies of records with any type of personal equipment, including but not limited to cell phones, portable scanners, or portable copy machines.
6. Fees and Procedures for Billing and Payment
a. Fees for labor and copies of public records shall not be used to hinder access to public records.
b. Prior to producing copies of records, records custodians shall provide requestors with an itemized estimate of the fees, including labor costs, to the extent possible.
c. Pursuant to Tenn. Code Ann. § 10-7-503(a)(7)(C)(i), upon a request for copies of records, Lawyers’ Fund shall assess fees for the copying and labor based on the most current version of the “Schedule of Reasonable Charges” issued by the Office of Open Records Counsel, available at:
d. A records custodian may waive or reduce fees if:
i. The fees total less than ten dollars ($10.00);
ii. The person requesting the copies is indigent pursuant to Federal
poverty guidelines and signs a sworn statement to that effect; or
iii. The person requesting the copies does so on behalf of a government
e. Payment is to be made by personal check, cashier’s check, or money order made payable to the State of Tennessee and delivered to Lawyers’ Fund.
f. Payment in advance is required for all requests for copies of records.
- Lawyers’ Fund will aggregate records requests when more than four(4) requests are received within a calendar month, either from a single individual or a group of individuals deemed working in concert and adopts the “Frequent and Multiple Request Policy” and any successor policy developed by the Office of Open Records Counsel.
- Such requests may be aggregated on any level whether by attorney, case, division, office or otherwise.
- The PRRC is responsible for making the determination that a group of individuals are working in concert. The PRRC must inform the individuals that they have been deemed to be working in concert and that they have the right to appeal the decision to the Office of Open Records Counsel.
3. ADMINISTRATIVE DISMISSALS
3.1 Tenn. Sup. Ct. R. 25, § 10.02
Pursuant to Tenn. Sup. Ct. R. 25, § 10.02, the Executive Director on behalf of the Lawyers’ Fund Board may administratively dismiss a claim without investigation that:
- Does not meet the jurisdictional requirements of Tenn. Sup. Ct. R. 25 or does not reflect an attorney’s “dishonest conduct” as defined in Tenn. Sup. Ct. R. 25, § 1.03.
3.2 Claimant’s Right to Appeal an Administrative Dismissal
A claimant may make a written request for Board review of the administrative dismissal.
4.1 Individuals filing claims with Tennessee Lawyers Fund for Client Protection must file a complaint with the Board of Professional Responsibility unless the lawyer has been permanently disbarred. Rule 25 §§9.04, 10.04 and 10.05.