NOTES TO DECISIONS

1. Constitutionality.

Board of law examiners was established to assist the judiciary and was part of the judicial branch of government subject to judicial and not legislative rule-making, therefore § 4-19-102 allowing licensing applicants to take an unlimited number of examinations is unconstitutional as applied to the bar examination and R.S.C. 37, § 7 (now Tenn. Sup. Ct. R. 7). Belmont v. Board of Law Examiners, 511 S.W.2d 461, 1974 Tenn. LEXIS 494 (Tenn. 1974).

Collateral References. 7 Am. Jur. 2d Attorneys at Law §§ 8, 9.

7 C.J.S. Attorney and Client §§ 5, 6.

Construction and effect of reciprocity provisions for admission to bar of attorney admitted to practice in another jurisdiction. 14 A.L.R.4th 7.

Law school, power of bar examiners as to approval or disapproval of. 87 A.L.R. 996.

Legislature's power respecting admission to bar. 144 A.L.R. 150.

Procedural due process requirements in proceedings involving applications for admission to bar. 2 A.L.R.3d 1266.

Propriety of attorney's resignation from bar in light of pending or potential disciplinary action. 54 A.L.R.4th 264.

State bar, compulsory membership in. 114 A.L.R. 165, 151 A.L.R. 617.

Attorney and client 6.

NOTES TO DECISIONS

1. Board's Power Derived from Court.

This section codified the supreme court's inherent constitutional authority to regulate the courts which included the licensing of attorneys, a function assisted by the board of law examiners which remains a judicial agency immune from legislative rule-making as attempted by § 4-19-102 permitting applicants to take unlimited number of bar examinations contrary to R.S.C. 37, § 7 (now Tenn. Sup. Ct. R. 7). Belmont v. Board of Law Examiners, 511 S.W.2d 461, 1974 Tenn. LEXIS 494 (Tenn. 1974).

2. Judicial Immunity.

The action of considering an application for admission to the bar, particularly when that duty is imposed upon the judiciary by constitution, is a judicial act, and when it is performed by a judge, he is entitled to absolute judicial immunity. Hampton v. Tennessee Bd. of Law Examiners, 770 S.W.2d 755, 1988 Tenn. App. LEXIS 739 (Tenn. Ct. App. 1988), cert. denied, 493 U.S. 975, 110 S. Ct. 498, 107 L. Ed. 2d 501, 1989 U.S. LEXIS 5642 (1989).

Collateral References. 7 Am. Jur. 2d Attorneys at Law § 8.

7 C.J.S. Attorney and Client § 10.

Criminal record as affecting applicant's moral character for purposes of admission to the bar. 88 A.L.R.3d 192.

Attorney and client 6.

NOTES TO DECISIONS

1. Basis for Court's Decision.

The certificate of the board is the thing upon which the supreme court must determine the right of the applicant to be admitted. In re Bowers, 137 Tenn. 193, 192 S.W. 919, 1916 Tenn. LEXIS 70 (1917); In re Bowers, 138 Tenn. 662, 200 S.W. 821, 1917 Tenn. LEXIS 73 (1918).

2. License by Private Act.

Public Acts 1933, ch. 180 purporting to permit an individual to practice law without having complied with the requirements of the general law was unconstitutional as in contravention of Tenn. Const. art. XI, § 8. Lineberger v. State, 174 Tenn. 538, 129 S.W.2d 198, 1938 Tenn. LEXIS 118 (1939).

3. Corporation.

A corporation may not lawfully engage in the practice of law. State v. Retail Credit Men's Ass'n, 163 Tenn. 450, 43 S.W.2d 918, 1931 Tenn. LEXIS 136 (1931).

4. Unethical Conduct as Bar to License.

A man of mature years, though of good general reputation, but who, as found by the board, has failed to conceive the nature of the duties of an attorney, and has no proper conception of the ethics of the profession, should not be licensed to practice law. In re Bowers, 138 Tenn. 662, 200 S.W. 821, 1917 Tenn. LEXIS 73 (1918).

5. Petition to Prevent Grant — Reference to Board.

Whether an applicant is a fit person to be admitted is a question determinable by the state board, and upon a petition to prevent the supreme court from issuing a license to an applicant upon the certificate of such board, based upon the ground that he had been engaged in the practice of soliciting suits, the supreme court will refer the matter to the board. In re Bowers, 137 Tenn. 189, 194 S.W. 1093, 1916 Tenn. LEXIS 69 (1917); In re Bowers, 138 Tenn. 662, 200 S.W. 821, 1917 Tenn. LEXIS 73 (1918).

6. Fraudulently Procured License.

License may be revoked when procured by fraud, as by fraudulently suppressing a previous disbarment of the applicant in another state. State Board of Law Examiners v. Williams, 116 Tenn. 51, 92 S.W. 521, 1905 Tenn. LEXIS 5 (1906).

Where the applicant presented a license to practice in another state, but did not inform the board that he had there been convicted of obtaining money under false pretenses and served a sentence therefor, and that he had been disbarred from practice in the state, though, in defense to the petition for the revocation of his license here, he claimed that when he applied for the license he had no knowledge of a proceeding disbarring him in the other state, such licensee had fraudulently withheld information which he was bound to disclose to the board, and his license was canceled. State Board of Law Examiners v. Shimer, 131 Tenn. 343, 174 S.W. 1142, 1914 Tenn. LEXIS 111 (1915).

7. Finality of Board's Action.

When the board refuses to make a certificate, or certifies that the applicant is an unfit person to be admitted to the practice of law, that ends the matter in the absence of an allegation and proof of fraud, corruption, or oppression upon the part of the board, and where the matters complained of are mere considerations of judgment or opinion upon the part of the board, the supreme court will not undertake to revise its action. In re Bowers, 138 Tenn. 662, 200 S.W. 821, 1917 Tenn. LEXIS 73 (1918).

8. Statute of Limitation.

It was not the intention that the statute of limitation of two years against fraud in the procurement of a license should begin to run until knowledge of the fraud had been brought home to the board petitioning for a revocation of the license. State Board of Law Examiners v. Shimer, 131 Tenn. 343, 174 S.W. 1142, 1914 Tenn. LEXIS 111 (1915).

9. Judicial Immunity.

The action of considering an application for admission to the bar, particularly when that duty is imposed upon the judiciary by constitution, is a judicial act, and when it is performed by a judge, he is entitled to absolute judicial immunity. Hampton v. Tennessee Bd. of Law Examiners, 770 S.W.2d 755, 1988 Tenn. App. LEXIS 739 (Tenn. Ct. App. 1988), cert. denied, 493 U.S. 975, 110 S. Ct. 498, 107 L. Ed. 2d 501, 1989 U.S. LEXIS 5642 (1989).

Collateral References. 7 C.J.S. Attorney and Client §§ 13, 14.

Court review of bar examiner's decision on applicant's examination. 39 A.L.R.3d 719.

Criminal record as affecting applicant's moral character for purposes of admission to the bar. 88 A.L.R.3d 192.

Failure to pay creditors as affecting applicant's moral character for purposes of admission to the bar. 108 A.L.R.5th 289.

Falsehoods, misrepresentations, impersonations, and other irresponsible conduct as bearing on requisite good moral character for admission to bar — Conduct related to admission to bar. 107 A.L.R.5th 167.

Good moral character of applicant as requisite for admission to bar. 88 A.L.R.3d 192.

Pardon as defense to disbarment of attorney. 59 A.L.R.3d 466.

Sexual conduct or orientation as ground for denial of admission to bar. 105 A.L.R.5th 217.

Attorney and client 9.

NOTES TO DECISIONS

1. Intent and Purpose of Statute.

The intent is to make the practice of law in any court a privilege. Gregory v. Memphis, 157 Tenn. 68, 6 S.W.2d 332, 1927 Tenn. LEXIS 50 (1928).

2. Courts — Lack of Power to Impose Conditions.

No court has the right or power to affix other conditions than those imposed by law upon which licensed attorneys shall appear and practice in the courts of this state. Champion v. State, 43 Tenn. 111, 1866 Tenn. LEXIS 23 (1866); Ingersoll v. Howard, 48 Tenn. 247, 1870 Tenn. LEXIS 45 (1870).

3. Practice in Municipal Courts Governed.

Statute regulating the admission to practice law is applicable to person practicing in a municipal court. Gregory v. Memphis, 157 Tenn. 68, 6 S.W.2d 332, 1927 Tenn. LEXIS 50 (1928).

4. Practice Without License Through Licensed Lawyer Prohibited.

No corporation nor an individual, bureau or partnership composed of individuals not licensed to practice law, may perform any of the functions of a lawyer, through a retained lawyer to represent it or them, and collect fees therefor. Grocers & Merchants' Bureau v. Gray, 6 Tenn. Civ. App. (6 Higgins) 87 (1915).

Contract of incorporated collection agency agreeing to furnish free legal advice regarding commercial matters was illegal and not enforceable. Grocers & Merchants' Bureau v. Gray, 6 Tenn. Civ. App. (6 Higgins) 87 (1915).

5. Corporations.

Under this provision, since a corporation cannot be licensed to practice law, an effort by a corporation to practice must be regarded as forbidden. State v. Retail Credit Men's Ass'n, 163 Tenn. 450, 43 S.W.2d 918, 1931 Tenn. LEXIS 136 (1931).

6. Injunction Against Practice Without License.

The fact that § 23-3-103 provides that the practice of law without a license is a misdemeanor does not deprive a court of chancery of the right to enjoin such unlawful practice since § 29-3-113 expressly provides for injunctive relief where a person engages in a profession, business or occupation requiring a license without holding such a license. Lamb v. Whitaker, 171 Tenn. 485, 105 S.W.2d 105, 1937 Tenn. LEXIS 128 (1937).

7. Taxation.

The practice of law is a privilege and is subject to taxation along with the exercise of any other privileges and occupations as determined by the legislature. Cox v. Huddleston, 914 S.W.2d 501, 1995 Tenn. App. LEXIS 297 (Tenn. Ct. App. 1995).

Collateral References. 7 Am. Jur. 2d Attorneys at Law § 2.

7 C.J.S. Attorney and Client §§ 11-14.

Effect of removal of member of bar from state. 160 A.L.R. 1372.

Failure to procure license or permit as affecting validity or enforceability of contract. 118 A.L.R. 652.

Malicious prosecution, lack of license to practice as affecting rule regarding advice of counsel in action for. 81 A.L.R. 516.

NOTES TO DECISIONS

1. Applicability.

T.C.A. § 23-1-109 is not applicable to corporations, even when the person undertaking to act for the corporation is an officer or shareholder. Old Hickory Eng'g & Mach. Co. v. Henry, 937 S.W.2d 782, 1996 Tenn. LEXIS 515 (Tenn. 1996); B & G Constr. v. Polk, 37 S.W.3d 462, 2000 Tenn. App. LEXIS 249 (Tenn. Ct. App. 2000), rehearing denied, B & G Constr., Inc. v. Polk, — S.W.3d —, 2000 Tenn. App. LEXIS 312 (Tenn. Ct. App. May 12, 2000).

2. Criminal Case — Hearing of Accused and Counsel.

In a criminal prosecution, accused may be heard both by himself and by his counsel. Grace v. Curley, 3 Tenn. App. 1, — S.W. —, 1926 Tenn. App. LEXIS 66 (Tenn. Ct. App. 1926).

3. Civil Case — Limiting Number and Time of Counsel.

In a civil action the trial court has a right to fix reasonable rules in the conduct of trials for the dispatch of business, and may in his sound discretion limit the number of counsel and the time to be heard; but where he abuses his discretion a party should object and except to the ruling and save his exception in a motion for a new trial. Grace v. Curley, 3 Tenn. App. 1, — S.W. —, 1926 Tenn. App. LEXIS 66 (Tenn. Ct. App. 1926).

In a divorce case, the trial court acted within its discretion in prohibiting a spouse from self-representation where the spouse physically attacked the other spouse's attorney. Wright v. Quillen, 909 S.W.2d 804, 1995 Tenn. App. LEXIS 195 (Tenn. Ct. App. 1995).

4. Pro Se Complaint.

Because a surviving spouse's pro se wrongful death complaint asserted claims on behalf of another individual and was not signed by a licensed attorney, the filing of that complaint was a nullity; the surviving spouse was not a licensed attorney and could not file a valid complaint that asserted claims on behalf of another individual without it being signed by a licensed attorney, and since the complaint was a nullity and had no legal effect, it did not operate to toll the statute of limitations. Beard v. Branson, — S.W.3d —, 2016 Tenn. App. LEXIS 233 (Tenn. Ct. App. Mar. 31, 2016), rehearing denied, — S.W.3d —, 2016 Tenn. App. LEXIS 287 (Tenn. Ct. App. Apr. 26, 2016), rev'd, 528 S.W.3d 487, 2017 Tenn. LEXIS 540 (Tenn. Aug. 30, 2017).

Collateral References. 7 C.J.S. Attorney and Client § 63.

Attorney and client 62.

NOTES TO DECISIONS

1. Constitutionality.

The principle of the organic law, Tenn. Const. art. I, § 21, which forbids the demand of any man's particular services, without just compensation, has no application to cases of counsel assigned for poor persons. House v. Whitis, 64 Tenn. 690, 1875 Tenn. LEXIS 159 (1875); State v. Henley, 98 Tenn. 665, 41 S.W. 352, 1897 Tenn. LEXIS 156 (1897).

2. Service Without Pay — Type of Cases.

The court has a right to command the services of counsel for persons unable to pay, in civil as well as criminal cases, for a lawyer takes his license burdened with these honorary obligations, and when commanded by court, he must perform these services, though he receive no compensation therefor. Wright v. State, 50 Tenn. 256, 1871 Tenn. LEXIS 89 (1871); House v. Whitis, 64 Tenn. 690, 1875 Tenn. LEXIS 159 (1875).

The fee of the guardian ad litem cannot be taxed as costs or otherwise against the successful opposite party, although the ward may be without funds to pay it. Attorneys are required to serve without compensation in such cases. Patton v. Dixon, 105 Tenn. 97, 58 S.W. 299, 1900 Tenn. LEXIS 57 (1900).

3. Compensation of Attorneys — Rights Generally.

The attorney claiming compensation must look to the party whom he serves and not to the county or state nor to the adverse party. House v. Whitis, 64 Tenn. 690, 1875 Tenn. LEXIS 159 (1875); State v. Henley, 98 Tenn. 665, 41 S.W. 352, 1897 Tenn. LEXIS 156 (1897).

4. —Guardians Ad Litem.

A guardian ad litem is entitled to compensation for his services in conducting the suit for his ward, and he is entitled to a lien for the same upon the property protected in the suit against his ward, whether it be realty or personalty. Kerbaugh v. Vance, 73 Tenn. 113, 1880 Tenn. LEXIS 92 (1880); Persons v. Young, 75 Tenn. 293, 1881 Tenn. LEXIS 117 (1881).

While the guardian ad litem is entitled to compensation for his services and to a lien therefor on property protected by his services, whether it be realty or personalty, the court, in all cases where it can be done, should preserve the corpus of the estate, if realty, and should have it rented out, and the rents applied to the payment of the fee. Persons v. Young, 75 Tenn. 293, 1881 Tenn. LEXIS 117 (1881).

5. Contract Between Attorney and Client — Rights Generally.

Generally, clients have the right to change attorneys at any time, and to substitute other counsel during the further progress of the litigation, which right does not preclude the discharged counsel from recovering compensation. Spofford v. Rose, 145 Tenn. 583, 237 S.W. 68, 1921 Tenn. LEXIS 96 (1922).

Nothing could justify the discharge of the attorney in the face of his contract, except the fact of disbarment, soliciting business or improper conduct of the suit instituted. No information concerning him, however plausible and misleading it might be, if not true, could excuse a breach of his contract of employment. Brownlow v. Payne, 2 Tenn. App. 154, — S.W. —, 1925 Tenn. App. LEXIS 98 (Tenn. Ct. App. 1925).

Collateral References. 7 Am. Jur. 2d Attorneys at Law §§ 6, 207.

7 C.J.S. Attorney and Client §§ 54, 161, 172.

Admissibility and effect of evidence of professional ethics rules in legal malpractice action. 50 A.L.R.5th 301.

Appointment of attorney for absentee under Soldiers' and Sailors' Civil Relief Act. 147 A.L.R. 1377, 148 A.L.R. 1388, 1395, 149 A.L.R. 1457, 1463, 150 A.L.R. 1428, 151 A.L.R. 1456, 1460, 152 A.L.R. 1452, 1457, 153 A.L.R. 1422, 1429, 154 A.L.R. 1448, 1455, 155 A.L.R. 1452, 1456, 156 A.L.R. 1450, 1455, 157 A.L.R. 1450, 1454, 158 A.L.R. 1450, 1456, 35 A.L.R. Fed. 649.

Appointment of counsel for indigent husband and wife in action for divorce or separation. 85 A.L.R.3d 983.

Attorney's liability, to one other than immediate client, for negligence in connection with legal duties. 61 A.L.R.4th 615.

Construction of state statutes providing for compensation of attorney for services under appointment by court in defending indigent accused. 18 A.L.R.3d 1074.

Indigent accused's right to choose particular counsel appointed to assist him. 66 A.L.R.3d 996.

Right of indigent parent to appointed counsel in proceeding for involuntary termination of parental rights. 80 A.L.R.3d 1141.

Validity and construction of agreement between attorney and client to arbitrate disputes arising between them. 26 A.L.R.5th 107.

What constitutes negligence sufficient to render attorney liable to person other than immediate client. 61 A.L.R.4th 464.

Attorney and client 23.

NOTES TO DECISIONS

1. Validity of Section.

The code section extending attorney's lien in certain cases in not invalid as unduly depriving the client of control of his action. Illinois Cent. R.R. v. Wells, 104 Tenn. 706, 59 S.W. 1041, 1900 Tenn. LEXIS 47 (1900); Tompkins v. Railroad, 110 Tenn. 157, 72 S.W. 116, 1902 Tenn. LEXIS 49, 100 Am. St. Rep. 795, 61 L.R.A. 340 (1902).

2. Jurisdiction to Grant Lien.

The lien may be granted either by a court of law or of equity. Roberts v. Vaughn, 142 Tenn. 361, 219 S.W. 1034, 1919 Tenn. LEXIS 65, 9 A.L.R. 1528 (1920).

The legislature evidently intended to except actions brought in a justice's court from this attorney's lien as it has been recognized in this jurisdiction from an early day that the court of a justice of the peace was not a court of record. Chrisman v. Metropolitan Life Ins. Co., 178 Tenn. 321, 157 S.W.2d 831, 1941 Tenn. LEXIS 62 (1942).

Where court of general sessions of Davidson County was created to take over the judicial powers and functions of the justices of the peace of that county and the jurisdiction conferred on that court was the same as that formerly exercised by the justices of the peace, such court was not a court of record within the contemplation of this section or § 23-2-103 so as to permit application of the provisions of such sections with reference to liens on the plaintiff's cause of action. Chrisman v. Metropolitan Life Ins. Co., 178 Tenn. 321, 157 S.W.2d 831, 1941 Tenn. LEXIS 62 (1942).

In a suit for breach of trust, the chancellor properly declared a lien on the recovery to secure the payment of solicitors' fees, where, under the decree, all the trust property was to be paid to the clerk and master, who was directed to pay the solicitors' fees allowed. Hail v. Nashville Trust Co., 31 Tenn. App. 39, 212 S.W.2d 51, 1948 Tenn. App. LEXIS 72 (Tenn. Ct. App. 1948).

3. Recital in Decree.

In order for a solicitor to have the benefit of his lien it is necessary that it should be set up in the decree in which the service was rendered as otherwise there would be no notice to the public or a subsequent purchaser. Chumbley v. Thomas, 184 Tenn. 258, 198 S.W.2d 551, 1947 Tenn. LEXIS 374 (1947), overruled in part, Schmitt v. Smith, 118 S.W.3d 348, 2003 Tenn. LEXIS 1019 (Tenn. 2003), overruled in part, Levy Wrecking Co. v. Centex Rodgers, Inc., — S.W.3d —, 2006 Tenn. App. LEXIS 657 (Tenn. Ct. App. Oct. 6, 2006); In re King, 47 B.R. 1, 1985 Bankr. LEXIS 6567 (Bankr. W.D. Tenn. 1984).

Where decree did not provide for lien on property awarded to client, attorney was not entitled to enforce lien against purchaser of such property even though such purchaser had been told of the existence of a lien at the time of the sale. Chumbley v. Thomas, 184 Tenn. 258, 198 S.W.2d 551, 1947 Tenn. LEXIS 374 (1947), overruled in part, Schmitt v. Smith, 118 S.W.3d 348, 2003 Tenn. LEXIS 1019 (Tenn. 2003), overruled in part, Levy Wrecking Co. v. Centex Rodgers, Inc., — S.W.3d —, 2006 Tenn. App. LEXIS 657 (Tenn. Ct. App. Oct. 6, 2006).

In order for an attorney who represents a client in divorce proceedings, which client subsequently declares bankruptcy, to have a lien on the alimony award which secures the attorney's right to payment for services, the divorce decree must mention the attorney's fees; otherwise the attorney is merely an unsecured creditor. In re King, 47 B.R. 1, 1985 Bankr. LEXIS 6567 (Bankr. W.D. Tenn. 1984).

4. Time of Attaching of Lien.

Until service of summons or some other notice of institution of suit, attorney of plaintiff could have no lien to assert against defendant. Mungovan v. Clay, 9 Tenn. App. 13, — S.W.2d —, 1928 Tenn. App. LEXIS 208 (Tenn. Ct. App. 1928).

By memorializing the plaintiffs' attorneys' lien in the final judgment, the trial court merely ensured that the lien would continue after entry of the judgment. Walsh v. BA, Inc., 37 S.W.3d 911, 2000 Tenn. App. LEXIS 264 (Tenn. Ct. App. 2000).

Trial court erred in finding that an intervenor's lien had priority over a law firm's attorney fee lien because, pursuant to T.C.A. § 23-2-102, the firm's lien related back to the commencement of the instant action when it filed the complaint on behalf of its client on February 10, 2003, and the intervenor perfected its judgment lien against the client in an unrelated suit on August 14, 2003. Levy Wrecking Co. v. Centex Rodgers, Inc., — S.W.3d —, 2006 Tenn. App. LEXIS 657 (Tenn. Ct. App. Oct. 6, 2006).

Attorney's lien provided in T.C.A. § 23-2-102 must be distinguished from the lien afforded to an attorney under T.C.A. § 23-2-103 employed subsequent to the commencement of the action, in which case the lien does not relate back to the commencement of the action. Levy Wrecking Co. v. Centex Rodgers, Inc., — S.W.3d —, 2006 Tenn. App. LEXIS 657 (Tenn. Ct. App. Oct. 6, 2006).

5. Notice.

So long as adequate notice of the lien is provided to the public and to future purchasers, the requirements of T.C.A. §§ 23-2-102 and 23-2-103 are satisfied. Chumbley v. Thomas, 184 Tenn. 258, 198 S.W.2d 551, 1947 Tenn. LEXIS 374 (Tenn. 1947) is overruled to the extent that it requires an attorney's lien to be noted in the final judgment. Schmitt v. Smith, 118 S.W.3d 348, 2003 Tenn. LEXIS 1019 (Tenn. 2003).

Trial court failed to ensure proper notice to the wife of the hearing at which it awarded the enhanced judgment lien on behalf of her former counsel because the record contained no proof of notice to the wife and neither the affidavit of attorney's fees or the addendum referenced by the attorney during the hearing; the attorney's motion for withdraw did not include a notice of hearing or a request for hearing, and the attorney presented no proof the wife received notice of the hearing date. McCarter v. McCarter, — S.W.3d —, 2016 Tenn. App. LEXIS 381 (Tenn. Ct. App. June 1, 2016).

6. Presumption of Notice.

In action to enforce lien, if the agent of insurance company settled claim with sufficient knowledge to put him on inquiry and to render his inaction unconscientious, the presumption of notice is conclusive. Mungovan v. Clay, 9 Tenn. App. 13, — S.W.2d —, 1928 Tenn. App. LEXIS 208 (Tenn. Ct. App. 1928).

7. Extent of Lien.

This statute, extending the lien of attorneys, has not the effect to render defendants liable for the fees of plaintiff's attorneys. The attorney's right in all cases is limited by the amount that his client recovers or receives upon verdict, or good faith compromise. Illinois Cent. R.R. v. Wells, 104 Tenn. 706, 59 S.W. 1041, 1900 Tenn. LEXIS 47 (1900).

In the absence of a contract therefor, a solicitor is not entitled to a lien for services to be declared on his client's land successfully defended by him against attack, but not recovered. Butler v. Givens, 137 Tenn. 438, 193 S.W. 1063, 1916 Tenn. LEXIS 88 (1917).

Except by express agreement, an attorney has a lien only for services in asserting some affirmative cause of action for his client by claim, or counterclaim, and cannot claim a lien, under this section, for services rendered in defeating the claim of client's adversary to a fund admittedly due client under an insurance policy, but a client may make a valid agreement to give his attorney a lien on a fund or decree in controversy, for services rendered. John Weis, Inc. v. Reed, 22 Tenn. App. 90, 118 S.W.2d 677, 1938 Tenn. App. LEXIS 9 (Tenn. Ct. App. 1938).

An attorney for defendant was not entitled to a lien. Chumbley v. Thomas, 184 Tenn. 258, 198 S.W.2d 551, 1947 Tenn. LEXIS 374 (1947), overruled in part, Schmitt v. Smith, 118 S.W.3d 348, 2003 Tenn. LEXIS 1019 (Tenn. 2003), overruled in part, Levy Wrecking Co. v. Centex Rodgers, Inc., — S.W.3d —, 2006 Tenn. App. LEXIS 657 (Tenn. Ct. App. Oct. 6, 2006).

Attorneys for the plaintiff in a divorce action where the attorneys' fees were apportioned between the plaintiff and the defendant do not have a lien on property which the plaintiff received as a result of the action for the portion of the attorneys' fees to be paid by the defendant. Palmer v. Palmer, 562 S.W.2d 833, 1977 Tenn. App. LEXIS 261 (Tenn. Ct. App. 1977).

An attorney's lien against either his client's cause of action or judgment is not the functional equivalent of an indebtedness owing to the attorney by the client's obligor. In re Hill, 26 B.R. 52, 1982 Bankr. LEXIS 5287 (Bankr. E.D. Tenn. 1982).

Expenses directly incurred by an attorney in the prosecution of his client's claim are entitled to lien status under this section where expenses are expressly provided for in the contract with the client. Peoples Nat'l Bank v. King, 697 S.W.2d 344, 1985 Tenn. LEXIS 554 (Tenn. 1985).

As long as the lawyer worked to secure the judgment for the client, a lien could attach to any proceeds flowing from the judgment. Starks v. Browning, 20 S.W.3d 645, 1999 Tenn. App. LEXIS 528 (Tenn. Ct. App. 1999).

While a “charging” lien serves to secure an attorney's fees, it does not function as an adjudication of the rights between the lawyer and the client. A charging lien is based on a lawyer's equitable right to have the fees and costs due for the lawyer's services in a particular action secured by the judgment or recovery in that action. Starks v. Browning, 20 S.W.3d 645, 1999 Tenn. App. LEXIS 528 (Tenn. Ct. App. 1999).

A notation on the final judgment memorializing plaintiffs' attorneys' lien did not constitute a judgment for attorney's fees, and more particularly, it did not constitute a judgment ordering the defendants to pay the plaintiffs' attorney's fees. Walsh v. BA, Inc., 37 S.W.3d 911, 2000 Tenn. App. LEXIS 264 (Tenn. Ct. App. 2000).

T.C.A. § 23-2-102 simply gives an attorney a lien pending the litigation on anything involved, i.e., land or money paid in court; the attorney may continue the lien after judgment by so providing in the order of judgment, but failure to do so results in the loss of the lien. In re Pass, 258 B.R. 170, 2001 Bankr. LEXIS 171 (Bankr. E.D. Tenn. 2001).

8. Minors and Persons Under Disability — Rights of Attorneys as to.

Attorneys who brought a suit for an insane person by his next friend have a lien upon the cause of action for their fees. Williams v. Gaither, 139 Tenn. 587, 202 S.W. 917, 1918 Tenn. LEXIS 9 (1918).

In a contest of a will by an infant, the circuit court properly declared a lien to secure fees of counsel, engaged by the infant's next friend, on that part of the estate secured to the infant by a compromise judgment. Roberts v. Vaughn, 142 Tenn. 361, 219 S.W. 1034, 1919 Tenn. LEXIS 65, 9 A.L.R. 1528 (1920).

The relationship of an attorney is antagonistic in the matter of determining amount of fee to be paid attorney of a minor, and a next friend may not bind minor in that regard. Nashville v. Williams, 169 Tenn. 38, 82 S.W.2d 541, 1935 Tenn. LEXIS 12 (1935).

In a case where an infant defendant is represented by a guardian ad litem, who employed an attorney to defend the infant, the amount of compensation of the attorney so employed is to be fixed by reference, and the supreme court has no jurisdiction to fix the attorney's fee. Nashville v. Williams, 169 Tenn. 38, 82 S.W.2d 541, 1935 Tenn. LEXIS 12 (1935).

9. Client's Power to Control Suit.

Where the plaintiff in a bill for divorce concludes to withdraw her complaint and to become reconciled to her husband, her attorney cannot prevent the dismissal of her suit, nor will he be permitted to become coplaintiff with her in the prosecution of her suit because, by attachment, he has impounded the property of the husband to secure her alimony. Payne v. Payne, 106 Tenn. 467, 61 S.W. 767, 1900 Tenn. LEXIS 183 (1901); Tompkins v. Railroad, 110 Tenn. 157, 72 S.W. 116, 1902 Tenn. LEXIS 49, 100 Am. St. Rep. 795, 61 L.R.A. 340 (1902).

Plaintiffs may prosecute, compromise, or dismiss their suits at will, where no property has been impounded by injunction, attachment, or other judicial process, giving their attorneys a lien thereon, and defendants, in case of such a compromise or dismissal, in the absence of fraud or collusion, would be liable only for the satisfaction of the lien of the attorneys attaching to the compromise sum adjudged or stipulated in the plaintiffs' favor. Tompkins v. Railroad, 110 Tenn. 157, 72 S.W. 116, 1902 Tenn. LEXIS 49, 100 Am. St. Rep. 795, 61 L.R.A. 340 (1902).

The attorney of record for the plaintiff in an action for personal injuries, who, under the terms of his contract of employment, is entitled to a percentage of the recovery by compromise or final judgment in lieu of fees for his services, cannot prevent the plaintiff's dismissal of the suit, nor is he entitled to prosecute the suit to a termination, but the plaintiff may dismiss his suit without the intervention and over the objection of his attorney. Tompkins v. Railroad, 110 Tenn. 157, 72 S.W. 116, 1902 Tenn. LEXIS 49, 100 Am. St. Rep. 795, 61 L.R.A. 340 (1902).

The statute set out in T.C.A. §§ 23-2-102 and 23-2-103 does not give a lien against the property of the defendant nor undertake to deprive complainant of control over his case, nor authorize continued prosecution by attorneys to effectuate a lien, even where they have a stipulated interest in the recovery. Wood v. Winslow, 1 Tenn. App. 582, — S.W. —, 1925 Tenn. App. LEXIS 78 (Tenn. Ct. App. 1925).

Where an attorney is employed to institute a suit on a contingent fee and renders legal services in connection with the contract of employment and the client without the consent of the attorney abandons the suit or makes a settlement thereof, nothing more appearing, the attorney is entitled to recover the reasonable value of the service rendered on a quantum meruit. Spears v. Polk, 17 Tenn. App. 556, 69 S.W.2d 239, 1933 Tenn. App. LEXIS 89 (Tenn. Ct. App. 1933).

10. Compromise of Suit — Lien and Enforcement.

Plaintiff's right of action is merged in his judgment when one is rendered, and in the compromise when one is made; and the amount specified in the one or in the other is the measure of the defendant's liability. The lien in favor of the plaintiff's attorney follows the transition without interruption, and simply attaches to that into which the right of action is merged. If a judicial recovery is obtained, the lien attaches to that; if a compromise agreement is made, the lien attaches to that; and in each case, the attorney's interest is such that it cannot be defeated or satisfied by a voluntary payment to his client without his consent. Illinois Cent. R.R. v. Wells, 104 Tenn. 706, 59 S.W. 1041, 1900 Tenn. LEXIS 47 (1900); Tompkins v. Railroad, 110 Tenn. 157, 72 S.W. 116, 1902 Tenn. LEXIS 49, 100 Am. St. Rep. 795, 61 L.R.A. 340 (1902); Sidoway v. Jones, 125 Tenn. 322, 143 S.W. 893, 1911 Tenn. LEXIS 29 (1912).

Where an action, in which plaintiff's attorney has a lien, is compromised and dismissed, without the consent of the attorney, upon the defendant's payment, or agreement to pay the plaintiff a fixed sum, the proper practice is to enter judgment for the compromise amount, to be satisfied by the payment of the fee of the plaintiff's attorney, when the amount of such fee shall be fixed by agreement or other appropriate legal proceedings. Illinois Cent. R.R. v. Wells, 104 Tenn. 706, 59 S.W. 1041, 1900 Tenn. LEXIS 47 (1900); Tompkins v. Railroad, 110 Tenn. 157, 72 S.W. 116, 1902 Tenn. LEXIS 49, 100 Am. St. Rep. 795, 61 L.R.A. 340 (1902).

Where defendant paid $75.00 to the plaintiff in compromise, but, upon the refusal of the plaintiff to allow any part of this sum to be appropriated to the payment of the fees of his attorneys, the defendant paid an additional sum of $75.00 into court under agreement for the benefit of the plaintiff's attorneys, not as a part of the compromise sum paid to plaintiff in satisfaction of his right of action, but as a recognition and provision for the legal rights of the plaintiff's attorneys, which they might have enforced, if it had not been voluntarily paid, such voluntary payment does not entitle plaintiff's attorneys to a lien enforceable against the defendant, on the theory that the suit was in fact compromised for $150. Sidoway v. Jones, 125 Tenn. 322, 143 S.W. 893, 1911 Tenn. LEXIS 29 (1912).

Attorney's claim for attorney's fees in the amount of $10,000 stemming from settlement of a lawsuit was secured because: (1) the attorney was a creditor of the debtor, having performed legal services on her behalf in prosecution of the lawsuit; (2) the settlement proceeds of the lawsuit were $30,000, and pursuant to his contract with the debtor, the attorney was entitled to a claim of one-third of that amount, or $10,000; and (3) on the date the debtor filed her bankruptcy case, while the trustee succeeded to the rights of the debtor in all property of her bankruptcy estate, including her interests in the lawsuit, under 11 U.S.C. § 541(a), the attorney held a valid attorney's lien under T.C.A. § 23-2-102 for one-third of any settlement proceeds plus reimbursement of expenses, notice of which was conferred upon both the debtor and the trustee via the contract. In re Orrick, — B.R. —, 2008 Bankr. LEXIS 4954 (Bankr. E.D. Tenn. Jan. 18, 2008).

11. Dismissal of Cause — Effect.

If attorneys, who filed a divorce bill for the wife, attaching the husband's property, had any lien at all for services upon the attached property after the wife's voluntary dismissal of her suit (which the court did not concede), such lien could not be enforced by petition filed in the original cause, without attachment of property, six months after final decree upon such voluntary dismissal, and after the term of court at which such final decree was rendered had passed. Payne v. Payne, 106 Tenn. 467, 61 S.W. 767, 1900 Tenn. LEXIS 183 (1901).

Dismissal of cause, by parties in accordance with agreement between them, did not preclude attorney's right to file petition to have court investigate and declare attorney's lien on property obtained by client in the compromise. The court would have no jurisdiction to determine the amount of fees, but only jurisdiction to declare a lien upon the recovery. Wood v. Winslow, 1 Tenn. App. 582, — S.W. —, 1925 Tenn. App. LEXIS 78 (Tenn. Ct. App. 1925).

12. Setoff and Recoupment — Relation to Lien.

Defendant's right of recoupment is superior to lien of complainant's solicitor, but setoff of separately based judgment is not. Mack v. Hugger Bros. Constr. Co., 10 Tenn. App. 402, — S.W.2d —, 1929 Tenn. App. LEXIS 47 (Tenn. Ct. App. 1929).

In a divorce action, a court properly concluded that an attorney's fee lien was lower in priority to the various off-sets against his client's judgment where the expenses arose out of the same lawsuit and were related to the same matter. Glassell v. Glassell, 152 S.W.3d 5, 2004 Tenn. App. LEXIS 366 (Tenn. Ct. App. 2004), rehearing denied, 152 S.W.3d 5, 2004 Tenn. App. LEXIS 901 (Tenn. ct. App. 2006), appeal denied, — S.W.3d —, 2004 Tenn. LEXIS 931 (Tenn. Nov. 8, 2004).

13. Separate Proceeding to Enforce Lien.

A separate proceeding to enforce an attorney's contractual right to a fee offers the client, now in the posture of a defendant, an opportunity to present defenses to the attorney's claim for a fee, including defenses that the attorney is not entitled to a fee because of professional negligence or some other basis. Starks v. Browning, 20 S.W.3d 645, 1999 Tenn. App. LEXIS 528 (Tenn. Ct. App. 1999).

One exception to the rule requiring an attorney to file a separate proceeding to collect an unpaid fee from a client applies to cases in which the money or property upon which the lien is to be enforced comes within the control of the court in the case in which the services were rendered; when the court is able to exert jurisdiction directly over the funds or property, the attorney need not resort to a separate suit to enforce the attorney's lien. Starks v. Browning, 20 S.W.3d 645, 1999 Tenn. App. LEXIS 528 (Tenn. Ct. App. 1999).

Although a client's former attorneys filed a proper attorney charging lien under T.C.A. § 23-2-102, the trial court lacked subject matter jurisdiction to award the attorney's fees as the case did not fall within the exception to the general rule that an attorney fee dispute had to be commenced in a separate lawsuit since the funds were not within the trial court's control during the underlying litigation; Tenn. R. Civ. P. 67.01 did not confer jurisdiction on the trial court to consider a post-trial dispute between the client and the attorneys, and the parties could not confer subject matter jurisdiction through a consent order. Castle v. David Dorris Logging, Inc., — S.W.3d —, 2013 Tenn. App. LEXIS 87 (Tenn. Ct. App. Feb. 11, 2013).

14. Construction With Other Statutes and Rules.

T.C.A. §§ 23-2-102 and 23-2-103 are mutually exclusive, as one applies to attorneys who begin a suit and the other applies to attorneys hired after a suit has already been brought. In re Pass, 258 B.R. 170, 2001 Bankr. LEXIS 171 (Bankr. E.D. Tenn. 2001).

15. Lien Properly Imposed.

Attorney's charging lien was properly imposed on a nephew's share as beneficiary of the nephew's improper transfer of a decedent's funds because: (1) the nephew at no time presented evidence to negate the representation agreement or the itemized charges presented by the attorney; (2) the attorney disputed the nephew's breach of fiduciary duty claim, based on the attorney's consent to the court holding the disputed funds; (3) the court acted within the court's authority to order the funds held without the nephew's consent; and (4) it was not error to find the fees were reasonable. Johnston v. Johnston, — S.W.3d —, 2014 Tenn. App. LEXIS 124 (Tenn. Ct. App. Mar. 6, 2014), appeal denied, — S.W.3d —, 2014 Tenn. LEXIS 506 (Tenn. June 20, 2014), cert. denied, 190 L. Ed. 2d 365, 135 S. Ct. 482, — U.S. —, 2014 U.S. LEXIS 7451 (U.S. 2014).

16. Lien Improperly Imposed.

Sanctions were warranted because there was no legal basis for filing a lien to secure the quantum meruit claim and thereby requiring the estate to seek a court order requiring appellant to release the lien as the quantum meruit claim appellant asserted was for services rendered in a life insurance proceeds matter that had nothing to do with the property she alleged was hers based on a quitclaim deed; the insurance matter was not a right of action to which an attorney's lien would apply; and, to the extent appellant sought payment for services rendered in representing the decedent, her mother, in the life insurance matter, she should have done so as a creditor of the estate. In re Estate of Lloyd, — S.W.3d —, 2020 Tenn. App. LEXIS 6 (Tenn. Ct. App. Jan. 8, 2020).

Collateral References. 7 Am. Jur. 2d Attorneys at Law §§ 272-307.

7 C.J.S. Attorney and Client §§ 207-210.

Affirmative duty of defendant to protect lien of plaintiff's attorney. 94 A.L.R. 695.

Alimony or child-support awards as subject to attorneys' liens. 49 A.L.R.5th 595.

Allowance of attorneys' fees in civil contempt proceedings. 43 A.L.R.3d 793.

Associate or assistant counsel engaged by attorney retained by client, right of, to lien. 90 A.L.R. 277.

Attorney's charging lien as including services rendered or disbursements made in other than the instant action or proceeding. 23 A.L.R.4th 336.

Attorney's charging lien upon continuing payments to which client becomes entitled as result of litigation. 99 A.L.R.2d 451.

Attorney's death, prior to final adjudication or settlement of case, as affecting compensation under contingent fee contract. 33 A.L.R.3d 1375.

Attorneys' fees incurred in litigation with third person as damages in action for breach of contract. 4 A.L.R.3d 270.

Attorney's recovery in quantum meruit for legal services rendered under a contract which is illegal or void as against public policy. 100 A.L.R.2d 1378.

Attorney's right to compensation as affected by disbarment or suspension before complete performance. 59 A.L.R.5th 693.

Conflict of laws as to attorneys' liens. 59 A.L.R.2d 564.

Contract, provision thereof, or stipulation waiving wife's right to counsel fees in event of divorce or separation action. 3 A.L.R.3d 716.

Decedent's estate, attorney's lien on. 50 A.L.R. 657.

Decedent's estate, or trust, attorney's right to lien in respect of client's share or interest in. 175 A.L.R. 1132.

Declaratory judgment as to attorney's lien. 12 A.L.R. 52, 19 A.L.R. 1124, 50 A.L.R. 42, 68 A.L.R. 110, 87 A.L.R. 1205, 114 A.L.R. 1361, 142 A.L.R. 8.

Divorce, right of complainant's attorney to oppose entry of final decree because of failure to pay his fee. 109 A.L.R. 1014, 174 A.L.R. 519.

Infant's liability for services rendered by attorney at law under contract with him. 13 A.L.R.3d 1251.

Insolvency, attorney as within statute giving lien or preference in event of, to servants, employees, laborers, etc. 54 A.L.R. 569, 111 A.L.R. 1453, 142 A.L.R. 362.

Judicial sale, attorney's lien on property purchased by client on sale under a judgment procured by attorney. 2 A.L.R. 483.

Limitation to quantum meruit recovery, where attorney employed under contingent-fee contract is discharged without cause. 56 A.L.R.5th 1.

Means of enforcing or making effective attorney's retaining lien. 111 A.L.R. 487.

Merits of client's cause of action or counterclaim as affecting attorney's lien or claim for his compensation against adverse party, in case of compromise without attorney's consent. 146 A.L.R. 67.

Necessity of introducing evidence to show reasonableness of attorneys' fees where promissory note provides for such fees. 18 A.L.R.3d 733.

Payment into court or to clerk of court as affecting rights, liability, and procedure in respect of lien of judgment creditor's attorney. 117 A.L.R. 983.

Personal liability of executor or administrator for fees of attorney employed by him for the benefit of the estate. 13 A.L.R.3d 518.

Property recovered for client, notice of claim to lien on. 93 A.L.R. 694.

Public property or fund, lien on. 2 A.L.R. 274, 24 A.L.R. 933.

Right of attorney admitted in one state to recover compensation for services rendered in another state where he was not admitted to the bar. 11 A.L.R.3d 907.

Right of attorney for holder of property insurance to fee out of insurer's share of recovery from tort-feasor. 2 A.L.R.3d 1441.

Right of court-appointed attorney to contract with his indigent client for fee. 43 A.L.R.3d 1426.

Rights and remedies of client as regards papers and documents on which attorney has retaining lien. 3 A.L.R.2d 148.

Solicitation, right of attorney to lien for services performed under contract procured by. 86 A.L.R. 517.

Statute relating to attorney's lien as affecting common law or equitable lien. 120 A.L.R. 1243.

Substitution by court of security for attorneys' lien. 33 A.L.R. 1296.

Sufficiency of notice to opposing party (or of serving or filing thereof) required to establish attorney's lien upon client's claim or cause of action. 85 A.L.R.2d 859.

Summary proceedings, enforcement of attorney's lien by. 93 A.L.R. 699.

Terms of attorney's contingent fee contract as creating equitable lien in his favor. 143 A.L.R. 204.

Time from which interest begins to run on fee or disbursements owed by client to attorney. 29 A.L.R.3d 824.

United States, contract giving attorney lien on claim against, for legal services, as assignment of the claim. 64 A.L.R. 611.

Validity and effect of contract for attorney's compensation made after inception of attorney-client relationship. 13 A.L.R.3d 701.

Attorney and client 190.

NOTES TO DECISIONS

1. Construction.

T.C.A. §§ 23-2-103 and 23-2-102 are mutually exclusive, as one applies to attorneys who begin a suit and the other applies to attorneys hired after a suit has already been brought. In re Pass, 258 B.R. 170, 2001 Bankr. LEXIS 171 (Bankr. E.D. Tenn. 2001).

So long as adequate notice of the lien is provided to the public and to future purchasers, the requirements of T.C.A. §§ 23-2-102 and 23-2-103 are satisfied. Chumbley v. Thomas, 184 Tenn. 258, 198 S.W.2d 551, 1947 Tenn. LEXIS 374 (Tenn. 1947) are overruled to the extent that it requires an attorney's lien to be noted in the final judgment. Schmitt v. Smith, 118 S.W.3d 348, 2003 Tenn. LEXIS 1019 (Tenn. 2003).

Second attorney who timely filed a notice of an attorney's lien in the court where his client's divorce action was pending did not lose his lien rights simply because the trial court judge did not mention the second attorney's lien in the final judgment. Schmitt v. Smith, 118 S.W.3d 348, 2003 Tenn. LEXIS 1019 (Tenn. 2003).

2. Setoff and Recoupment — Relation to Lien.

In a divorce action, a court properly concluded that an attorney's fee lien was lower in priority to the various off-sets against his client's judgment where the expenses arose out of the same lawsuit and were related to the same matter. Glassell v. Glassell, 152 S.W.3d 5, 2004 Tenn. App. LEXIS 366 (Tenn. Ct. App. 2004), rehearing denied, 152 S.W.3d 5, 2004 Tenn. App. LEXIS 901 (Tenn. ct. App. 2006), appeal denied, — S.W.3d —, 2004 Tenn. LEXIS 931 (Tenn. Nov. 8, 2004).

3. Time of Attaching of Lien.

Attorney's lien provided in T.C.A. § 23-2-102 must be distinguished from the lien afforded to an attorney under T.C.A. § 23-2-103 employed subsequent to the commencement of the action, in which case the lien does not relate back to the commencement of the action. Levy Wrecking Co. v. Centex Rodgers, Inc., — S.W.3d —, 2006 Tenn. App. LEXIS 657 (Tenn. Ct. App. Oct. 6, 2006).

4. Subject Matter Jurisdiction.

Trial court had subject matter jurisdiction to adjudicate a District of Columbia law firm's attorney's lien even though the firm's attorney never sought admission pro hac vice because the issue regarding the firm's compliance with the rules governing out-of-state attorneys went to the declaration of the lien; the firm's client, a wife involved in divorce litigation, agreed by contract to give the firm an enforceable charging lien, which was not contingent on pro hac vice admission. Coleman v. Coleman, — S.W.3d —, 2013 Tenn. App. LEXIS 617 (Tenn. Ct. App. Sept. 19, 2013).

5. Notice.

Trial court failed to ensure proper notice to the wife of the hearing at which it awarded the enhanced judgment lien on behalf of her former counsel because the record contained no proof of notice to the wife and neither the affidavit of attorney's fees or the addendum referenced by the attorney during the hearing; the attorney's motion for withdraw did not include a notice of hearing or a request for hearing, and the attorney presented no proof the wife received notice of the hearing date. McCarter v. McCarter, — S.W.3d —, 2016 Tenn. App. LEXIS 381 (Tenn. Ct. App. June 1, 2016).

6. Lien Improperly Imposed.

Sanctions were warranted because there was no legal basis for filing a lien to secure the quantum meruit claim and thereby requiring the estate to seek a court order requiring appellant to release the lien as the quantum meruit claim appellant asserted was for services rendered in a life insurance proceeds matter that had nothing to do with the property she alleged was hers based on a quitclaim deed; the insurance matter was not a right of action to which an attorney's lien would apply; and, to the extent appellant sought payment for services rendered in representing the decedent, her mother, in the life insurance matter, she should have done so as a creditor of the estate. In re Estate of Lloyd, — S.W.3d —, 2020 Tenn. App. LEXIS 6 (Tenn. Ct. App. Jan. 8, 2020).

Collateral References. Attorney and client 190.

NOTES TO DECISIONS

1. Appeal and Bond by Attorney.

An absent party may appeal by his attorney, on giving the security required; and the attorney may execute the bond, and himself become surety, or he may procure others to become sureties on the appeal bond. Fine's Lessee v. Pitner, 1 Tenn. 299, 1808 Tenn. LEXIS 22 (1808); Foster v. Blount, 1 Tenn. 343, 1808 Tenn. LEXIS 43 (1808).

2. Cost Bond.

In the absence of any law to the contrary, it is not unethical for an attorney to execute a cost bond on behalf of his client. United States ex rel. Randolph v. Ross, 298 F. 64, 1924 U.S. App. LEXIS 2608, 33 A.L.R. 728 (6th Cir. Tenn. 1924).

Collateral References. 7 Am. Jur. 2d Attorneys at Law §§ 100, 117-128.

7 C.J.S. Attorney and Client § 79.

Account stated, attorney's authority to assent to. 2 A.L.R. 74.

Authority of attorney to compromise action — modern cases. 90 A.L.R.4th 326.

Authority of attorney to dismiss or otherwise terminate action. 56 A.L.R.2d 1290.

Authority of attorney to employ another attorney at expense of client. 90 A.L.R. 265.

Corporation, authority of general counsel to employ attorney for. 130 A.L.R. 913.

Deposit by attorney of client's money in his own name or account as rendering him liable for loss from failure of depository or depreciation of currency. 96 A.L.R. 798.

Disqualification of attorney, otherwise qualified, to take oath or acknowledgment from client. 21 A.L.R.3d 483.

Divorce or separation suit, right of attorney to continue, against wishes of his client. 92 A.L.R.2d 1009.

Duties, rights and remedies between attorney and client where attorney purchases property of client at or through tax, execution, or judicial sale. 20 A.L.R.2d 1280.

Instructions of client, attorney's liability for failure to follow. 56 A.L.R. 962.

Minor, liability of attorney for loss or waste of funds of. 62 A.L.R. 910.

Municipality, power of attorneys representing, to consent to judgment against it. 67 A.L.R. 1507.

Personal liability of attorney to one other than client for damages resulting from erroneous judicial action. 87 A.L.R. 174.

Receiver's right to employ attorney where he is himself an attorney. 64 A.L.R. 1541.

Remittitur by attorney from verdict or judgment in favor of infant as within his authority. 30 A.L.R. 1111.

Revocability of power to collect interest in estate. 7 A.L.R. 947.

Service of notice of motion to modify divorce decree in respect of alimony upon attorney who represented adverse party in the suit. 15 A.L.R. 627.

Service of process on attorney in action against foreign corporation doing business in state. 113 A.L.R. 120.

Statute of frauds, attorney of one party to contract as agent of other party to sign required memorandum. 47 A.L.R. 208.

Subagent, attorney's liability for acts or omissions of. 61 A.L.R. 282.

Unlawful purposes, agreement or understanding between attorney and client to use money for, as affecting their rights inter se. 20 A.L.R. 1476, 26 A.L.R. 98.

Written instrument, authority of attorney to bind client by extrinsic agreement to alter or vary terms of. 76 A.L.R. 1461.

Attorney and client 87-96.

NOTES TO DECISIONS

1. Improper Use of Subpoena.

It was prosecutorial misconduct for the district attorney general to obtain and serve a subpoena on a defense witness to obtain medical records which were returned to the district attorney general's office. State v. Schaaf, 727 S.W.2d 255, 1896 Tenn. Crim. App. LEXIS 2804, 1986 Tenn. Crim. App. LEXIS 2804 (Tenn. Crim. App. 1986).

NOTES TO DECISIONS

1. Constitutionality.

This section and §§ 23-3-103 and 23-3-104 were not violative of Tenn. Const. art. I, § 21 as depriving defendant alleged to be practicing law without a license of his property without just compensation therefor, since such sections did not prohibit defendant from practicing law but merely required that defendant comply with valid police rules and regulations relating thereto as prescribed by the legislature. Lamb v. Whitaker, 171 Tenn. 485, 105 S.W.2d 105, 1937 Tenn. LEXIS 128 (1937).

The body of Acts 1935, ch. 135 (now this section and §§ 23-3-103, 23-3-104) was not broader than its caption since the body dealt with only one subject, the practice of law, and that subject is adequately set forth in the title. Lamb v. Whitaker, 171 Tenn. 485, 105 S.W.2d 105, 1937 Tenn. LEXIS 128 (1937).

Where defendant assailed the classification of this section and §§ 23-3-103 and 23-3-104 relating to the practice of law but did not show the basis of his assertion that the act was arbitrary and unreasonable such contention failed since the burden is on the person attacking a law to show that such law rests on an unreasonable basis. Lamb v. Whitaker, 171 Tenn. 485, 105 S.W.2d 105, 1937 Tenn. LEXIS 128 (1937).

2. —Statute Applicable Only to Single Individual.

Public Acts 1933, ch. 180 purporting to permit an individual to practice law without having complied with the requirements of the general law was unconstitutional as in contravention of Tenn. Const. art. I, § 8. Lineberger v. State, 174 Tenn. 538, 129 S.W.2d 198, 1938 Tenn. LEXIS 118 (1939).

3. Purpose.

The purpose of this section was to prevent the public from being preyed upon by those who for a valuable consideration seek to perform services which require skill, training and character, without adequate qualifications. Haverty Furniture Co. v. Foust, 174 Tenn. 203, 124 S.W.2d 694, 1938 Tenn. LEXIS 81 (1939); Union City & Obion County Bar Ass'n v. Waddell, 30 Tenn. App. 263, 205 S.W.2d 573, 1947 Tenn. App. LEXIS 84 (Tenn. Ct. App. 1947).

Because a husband signed neither the notice of appeal from general sessions court to the trial court nor did he sign the notice of the appeal to the court of appeals, the wife was not entitled to sign pleadings or represent the husband in any way during the proceedings. US Bank Nat'l Ass'n v. Brooks, — S.W.3d —, 2016 Tenn. App. LEXIS 847 (Tenn. Ct. App. Nov. 4, 2016).

4. Effect of Statute.

Prior to the passage of this section and §§ 23-3-103 and 23-3-104, the state had no statute defining the “practice of law” and the “doing of law business.” Haverty Furniture Co. v. Foust, 174 Tenn. 203, 124 S.W.2d 694, 1938 Tenn. LEXIS 81 (1939).

5. Practice of Law or Doing Law Business.

Where credit manager of corporation filled in blanks of writ of replevin and received no valuable consideration therefor, it was held that such conduct was not the “law business,” since, in repeated and unmistakable language, it is provided that no act may be so classed unless done for “a valuable consideration.” Haverty Furniture Co. v. Foust, 174 Tenn. 203, 124 S.W.2d 694, 1938 Tenn. LEXIS 81 (1939).

Neither the credit manager of a corporation who filled in the blanks of a writ of replevin nor the corporation was engaged in the practice of law or doing law business as a result of such act by the credit manager. Haverty Furniture Co. v. Foust, 174 Tenn. 203, 124 S.W.2d 694, 1938 Tenn. LEXIS 81 (1939).

Where evidence showed that defendant had examined titles and rendered opinions thereon, and had drawn legal instruments, she was engaged in the illegal law business as defined in this section. Union City & Obion County Bar Ass'n v. Waddell, 30 Tenn. App. 263, 205 S.W.2d 573, 1947 Tenn. App. LEXIS 84 (Tenn. Ct. App. 1947).

Definitions of “law business” and “practice of law” must be read in conjunction with former Tenn. Sup. Ct. R. 8, EC 3-5 (now Tenn. Sup. Ct. R. 8, RPC 5.5); thus, the acts enumerated in the definitions, if performed by a non-attorney, constitute the unauthorized practice of law only if the doing of those acts requires the “professional judgment of a lawyer.” In re Burson, 909 S.W.2d 768, 1995 Tenn. LEXIS 509 (Tenn. 1995).

Receipt and review of notices may constitute the practice of law. In re Buck, 219 B.R. 996, 1998 Bankr. LEXIS 492 (Bankr. W.D. Tenn. 1998).

Whether the law firm was practicing law or collecting a debt when it sent the notice to Plaintiff, it was not engaged in trade or commerce, and the Tennessee Consumer Protection Act (TCPA) does not reach its activities. Wright v. Linebarger Googan Blair & Sampson, LLP, 782 F. Supp. 2d 593, 2011 U.S. Dist. LEXIS 29628 (W.D. Tenn. Mar. 22, 2011).

Attorney prepared a warranty deed that contained an erroneous statement and he also reviewed and signed a settlement statement, indicating that he would provide title insurance, which was not provided; the attorney and his firm were engaged in the practice of law, as defined in T.C.A. § 23-3-101, in preparing the erroneous documents used at appellees'  closing, and for purposes of T.C.A. § 47-18-104, the Tennessee Consumer Protection Act did not apply to the conduct of the attorney and his firm. Faerber v. Troutman & Troutman, P.C., — S.W.3d —, 2017 Tenn. App. LEXIS 413 (Tenn. Ct. App. June 22, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 758 (Tenn. Nov. 16, 2017).

Non-attorney engaged in the unauthorized practice of law because the non-attorney offered legal assistance to members of the public as the non-attorney advertised on social media websites that, for a fee, the non-attorney would prepare various legal documents for customers and that the non-attorney's work was reviewed by an attorney. The non-attorney's representations implied that the non-attorney had the requisite qualifications to decide which documents were to be used and could successfully draft these documents to suit customers'  legal needs. State v. Trotter, — S.W.3d —, 2019 Tenn. App. LEXIS 38 (Tenn. Ct. App. Jan. 28, 2019).

6. “Appearance as Advocate” — Meaning and Application.

The filling in the blanks in a skeleton writ of replevin by the credit manager of corporation did not amount to the “appearance as an advocate” within the meaning of this section. Haverty Furniture Co. v. Foust, 174 Tenn. 203, 124 S.W.2d 694, 1938 Tenn. LEXIS 81 (1939).

7. “Representative Capacity” — Meaning and Application.

The phrase “as an advocate in a representative capacity” implies a representation distinct from officer or other regular administrative corporate employee representation. Haverty Furniture Co. v. Foust, 174 Tenn. 203, 124 S.W.2d 694, 1938 Tenn. LEXIS 81 (1939).

The credit manager of a corporation who filled in the blanks in a writ of replevin for the corporation was not acting in “a representative capacity” within the meaning of this section where there was no evidence that it was the purpose of such manager to act for the corporation independently of his regular employment or other than as a detail of such employment and where there was nothing to show that it was the intention of the corporation to have or authorize him to act other than in the performance of a corporate act. Haverty Furniture Co. v. Foust, 174 Tenn. 203, 124 S.W.2d 694, 1938 Tenn. LEXIS 81 (1939).

Even if an agent was “drawing papers,” under this section, he was not engaging in the practice of law, unless he was doing so in “a representative capacity.” Haverty Furniture Co. v. Foust, 174 Tenn. 203, 124 S.W.2d 694, 1938 Tenn. LEXIS 81 (1939).

Because a surviving spouse's pro se wrongful death complaint asserted claims on behalf of another individual and was not signed by a licensed attorney, the filing of that complaint was a nullity; the surviving spouse was not a licensed attorney and could not file a valid complaint that asserted claims on behalf of another individual without it being signed by a licensed attorney, and since the complaint was a nullity and had no legal effect, it did not operate to toll the statute of limitations. Beard v. Branson, — S.W.3d —, 2016 Tenn. App. LEXIS 233 (Tenn. Ct. App. Mar. 31, 2016), rehearing denied, — S.W.3d —, 2016 Tenn. App. LEXIS 287 (Tenn. Ct. App. Apr. 26, 2016), rev'd, 528 S.W.3d 487, 2017 Tenn. LEXIS 540 (Tenn. Aug. 30, 2017).

8. Collection Agency.

A collection agency, when authorized by its principal, may on behalf of its principal employ attorneys, agree upon the compensation to be paid, demand execution on judgments, and aid the officer in finding property from which payment could be enforced, since none of these acts involves the practice of law. State ex rel. District Attorney v. Lytton, 172 Tenn. 91, 110 S.W.2d 313, 1937 Tenn. LEXIS 55 (1937).

9. Agreement of Insurer to Defend Actions Against Insured.

A provision in an automobile liability policy that the insurer agreed to defend actions against the insured was not invalid as rendering insurer illegally engaged in the practice of law. Hardware Mut. Casualty Co. v. Higgason, 175 Tenn. 357, 134 S.W.2d 169, 1939 Tenn. LEXIS 49 (1939).

10. Enjoining Practice of Law Without License.

Under former § 23-3-202 authorizing attorneys to bring disbarment proceedings, attorneys are authorized to bring suit to enjoin one from practicing law without being licensed so to do. Lamb v. Whitaker, 171 Tenn. 485, 105 S.W.2d 105, 1937 Tenn. LEXIS 128 (1937).

The unauthorized practice of law may be enjoined as a public nuisance. Lineberger v. State, 174 Tenn. 538, 129 S.W.2d 198, 1938 Tenn. LEXIS 118 (1939).

A suit by the state on the relation of the attorney general and members of the Tennessee Bar acting on behalf of the Bar Association of Tennessee may be maintained to enjoin one from practicing law on the ground that he had not received a license. Lineberger v. State, 174 Tenn. 538, 129 S.W.2d 198, 1938 Tenn. LEXIS 118 (1939).

11. Activities of Title Companies.

Activities of title guaranty companies which were legitimately incidental to main or principal business of title insurance would not be adjudged to be unlawful practice of law and enjoined even though they constitute “practice of law” or doing of “law business.” Barr Ass'n of Tennessee v. Union Planters Title Guaranty Co., 46 Tenn. App. 100, 326 S.W.2d 767, 1959 Tenn. App. LEXIS 90 (Tenn. Ct. App. 1959).

In determining whether injunction should issue to prohibit title guaranty companies from engaging in activities alleged to constitute unlawful practice of law, the test was not whether the activities constituted unfair competition with lawyers, but whether they affected the rights and interests of the public in such a manner as to be contrary to the public policy of the state. Barr Ass'n of Tennessee v. Union Planters Title Guaranty Co., 46 Tenn. App. 100, 326 S.W.2d 767, 1959 Tenn. App. LEXIS 90 (Tenn. Ct. App. 1959).

Title insurance companies were not only entitled to ascertain condition of title as a condition precedent to the issuance of a title guaranty policy or a commitment for such policy and to employ staff lawyers or outside lawyers for such purpose but could, through their attorneys, draft or procure the execution of instruments necessary for the correction of defects in titles or the making of such titles insurable and could participate in escrow agreements legitimately incidental to their main or principal business. Barr Ass'n of Tennessee v. Union Planters Title Guaranty Co., 46 Tenn. App. 100, 326 S.W.2d 767, 1959 Tenn. App. LEXIS 90 (Tenn. Ct. App. 1959).

12. Proceedings in Bankruptcy.

A nonlawyer regularly employed by a corporate-creditor may appear on behalf of his or her employer at a 11 U.S.C. § 341(a) meeting of creditors held under the laws of congress relating to bankruptcy and question the debtors without engaging in the unauthorized practice of law. In re Kincaid, 146 B.R. 387, 1992 Bankr. LEXIS 2435 (Bankr. W.D. Tenn. 1992); In re Clemmons, 151 B.R. 860, 1993 Bankr. LEXIS 399 (Bankr. M.D. Tenn. 1993).

A bankruptcy petition preparer engaged in the unauthorized practice of law where she: (1) Provided “generic” explanations; and (2) Disseminated a customer packet, advising customers about exemptions and the availability of a supervising attorney. In re Rose, 314 B.R. 663, 2004 Bankr. LEXIS 1338 (Bankr. E.D. Tenn. 2004).

Collateral References.

Attorney's conviction in foreign or federal jurisdiction as ground for disciplinary action. 98 A.L.R.3d 357.

Drafting of Will or Other Estate-Planning Activities as Illegal or Unauthorized Practice of Law. 25 A.L.R.6th 323.

Handling, preparing, presenting, or trying workers'-compensation claims or cases as practice of law. 58 A.L.R.5th 449.

Matters constituting unauthorized practice of law in bankruptcy proceedings. 32 A.L.R.6th 531.

Narcotics conviction as crime of moral turpitude justifying disbarment or other disciplinary action against attorney. 99 A.L.R.3d 288.

Nature of legal services or law-related services which may be performed for others by disbarred or suspended attorney. 87 A.L.R.3d 279.

Representation of another before state public utilities or service commission as involving practice of law. 13 A.L.R.3d 812.

Sale of books or forms designed to enable laymen to achieve legal results without assistance of attorney as unauthorized practice of law. 71 A.L.R.3d 1000.

Validity of contract for sale of “good will” of law practice. 79 A.L.R.3d 1243.

NOTES TO DECISIONS

1. Clerk and Master as Party Litigant.

Where clerk and master signed bill as party litigant and not as attorney such fact although grounds for his removal was not grounds for dismissal of the suit. Walsh v. Rose, 29 Tenn. App. 78, 193 S.W.2d 118, 1945 Tenn. App. LEXIS 111 (Tenn. Ct. App. 1945).

Collateral References. 46 Am. Jur. 2d Judges § 34.

14 C.J.S. Clerks and Courts § 90; 48 C.J.S. Judges § 9.

Judicial office, what amounts to practice of law within constitutional or statutory provision making such practice a condition of eligibility to, or forbidding such practice by one holding a judicial position. 106 A.L.R. 508.

Propriety and permissibility of judge engaging in practice of law. 89 A.L.R.2d 886.

Attorney and client 14.

NOTES TO DECISIONS

1. Test of Qualifications to Practice Law.

There is but one test for adequate qualifications for the practice of law, which is defined in this section forbidding any person to engage in the practice of law or do law business unless such person shall have been duly licensed therefor. Union City & Obion County Bar Ass'n v. Waddell, 30 Tenn. App. 263, 205 S.W.2d 573, 1947 Tenn. App. LEXIS 84 (Tenn. Ct. App. 1947).

2. Effect of Section on Right to Injunction.

The fact that this section provides that the practice of law without a license is a misdemeanor does not deprive a court of chancery of the right to enjoin such unlawful practice since § 29-3-113 expressly provides for injunctive relief where a person engages in a profession, business or occupation requiring a license without holding such a license. Lamb v. Whitaker, 171 Tenn. 485, 105 S.W.2d 105, 1937 Tenn. LEXIS 128 (1937).

3. Proceedings in Bankruptcy.

The examination of a debtor at a meeting of creditors (held pursuant to 11 U.S.C. § 341) by a person who is not a lawyer is permitted under the bankruptcy code and does not constitute the unauthorized practice of law under Tennessee law. In re Clemmons, 151 B.R. 860, 1993 Bankr. LEXIS 399 (Bankr. M.D. Tenn. 1993).

Bankruptcy court had in personam jurisdiction under Fed. R. Bankr. P. 7004 to hear a Chapter 7 trustee's adversary proceeding alleging that a consultant who worked for an Illinois LLC engaged in the unauthorized practice of law, in violation of T.C.A. § 23-3-103, when he fielded a telephone call from a Tennessee debtor and answered questions the debtor asked about bankruptcy; the trustee had standing to pursue claims alleging that the consultant violated § 23-3-103 and committed negligence per se when he gave the debtor erroneous legal advice because the debtor was in the class of persons who were protected by § 23-3-103 and the trustee was a successor in interest under 11 U.S.C. §§ 323 and 704 to the debtor's causes of action. Farinash v. Upright Law, LLC (In re Elrod), — B.R. —, 2017 Bankr. LEXIS 3911 (Bankr. E.D. Tenn. Nov. 14, 2017).

4. Time Limitations.

Where a party delayed almost six years before commencing her claim based upon the alleged unauthorized practice of law, her claim that a law firm aided and abetted the unauthorized practice of law by an accounting firm, was time barred. Akins v. Edmondson, 207 S.W.3d 300, 2006 Tenn. App. LEXIS 397 (Tenn. Ct. App. 2006), appeal denied, Akins v. Edmonson, — S.W.3d —, 2006 Tenn. LEXIS 1038 (Tenn. 2006) .

5. Application.

Where a prisoner filed for divorce, his access to court was hampered by his incarceration, he accordingly executed a broadly worded power of attorney authorizing a friend from high school to act on his behalf, and the friend signed a request for service by publication on his behalf and provided a postal money order to pay for the costs of the publication; the trial court erred by finding that the prisoner's friend was engaging in the unauthorized practice of law as prohibited by T.C.A. § 23-3-103. Northcutt v. Northcutt, — S.W.3d —, 2007 Tenn. App. LEXIS 683 (Tenn. Ct. App. Nov. 8, 2007).

Although a parent may sue or defend on behalf of their minor child, a parent who is not “duly licensed” may not engage in the “practice of law” on behalf of their minor child. A claim asserted in a pleading by a person who is not entitled to practice law is a nullity. Vandergriff v. Parkridge E. Hosp., 482 S.W.3d 545, 2015 Tenn. App. LEXIS 671 (Tenn. Ct. App. Aug. 21, 2015), appeal denied, Vandergriff v. Parkridge East Hosp., — S.W.3d —, 2015 Tenn. LEXIS 1014 (Tenn. Dec. 11, 2015).

Because a surviving spouse's pro se wrongful death complaint asserted claims on behalf of another individual and was not signed by a licensed attorney, the filing of that complaint was a nullity; the surviving spouse was not a licensed attorney and could not file a valid complaint that asserted claims on behalf of another individual without it being signed by a licensed attorney, and since the complaint was a nullity and had no legal effect, it did not operate to toll the statute of limitations. Beard v. Branson, — S.W.3d —, 2016 Tenn. App. LEXIS 233 (Tenn. Ct. App. Mar. 31, 2016), rehearing denied, — S.W.3d —, 2016 Tenn. App. LEXIS 287 (Tenn. Ct. App. Apr. 26, 2016), rev'd, 528 S.W.3d 487, 2017 Tenn. LEXIS 540 (Tenn. Aug. 30, 2017).

Because a husband signed neither the notice of appeal from general sessions court to the trial court nor did he sign the notice of the appeal to the court of appeals, the wife was not entitled to sign pleadings or represent the husband in any way during the proceedings. US Bank Nat'l Ass'n v. Brooks, — S.W.3d —, 2016 Tenn. App. LEXIS 847 (Tenn. Ct. App. Nov. 4, 2016).

Collateral References. 7 Am. Jur. 2d Attorneys at Law § 90.

7 C.J.S. Attorney and Client §§ 16, 165.

Activities of law clerks as illegal practice of law. 13 A.L.R.3d 1137.

Automobile association, services incident to membership in, as practice of law. 106 A.L.R. 548, 111 A.L.R. 42, 125 A.L.R. 1173, 151 A.L.R. 781.

Claim adjusters as engaged in practice of law. 111 A.L.R. 44, 125 A.L.R. 1173, 151 A.L.R. 781.

Corporation, what amounts to practice of law by. 73 A.L.R. 1327, 105 A.L.R. 1364, 157 A.L.R. 282.

Drafting of Will or Other Estate-Planning Activities as Illegal or Unauthorized Practice of Law. 25 A.L.R.6th 323.

Drafting, or filling in blanks in printed forms, of instruments relating to land by real estate agents, brokers or managers as constituting practice of law. 53 A.L.R.2d 788.

Handling, preparing, presenting, or trying workers'-compensation claims or cases as practice of law. 58 A.L.R.5th 449.

“Heir-hunting” activities as practice of law by corporation. 171 A.L.R. 351.

Layman's assistance to party in divorce proceeding as unauthorized practice of law. 12 A.L.R.4th 656.

Liability of attorney for services rendered to him by one not admitted to bar as affected by fact that they amounted to practice of law by latter. 90 A.L.R. 288.

Maintenance of lawyer reference system by organization having no legal interest in proceedings. 11 A.L.R.3d 1206.

Matters constituting unauthorized practice of law in bankruptcy proceedings. 32 A.L.R.6th 531.

Nature of legal services or law-related services which may be performed for others by disbarred or suspended attorney. 87 A.L.R.3d 279.

Operations of collection agency as unauthorized practice of law. 27 A.L.R.3d 1152.

Practice of law, acting as ambulance chaser as. 151 A.L.R. 796.

Right of party-litigant to defend or counterclaim on ground that opposing party or his attorney is engaged in unauthorized practice of law. 7 A.L.R.4th 1146.

Sale of books or forms designed to enable layman to achieve legal results without assistance of attorney as unauthorized practice of law. 71 A.L.R.3d 1000.

Services in connection with tax matters as practice of law. 9 A.L.R.2d 797.

Title examination activities by lending institution, insurance company, or title and abstract company, as illegal practice of law. 85 A.L.R.2d 184.

Title or probate matters, services in, as practice of law. 111 A.L.R. 31, 125 A.L.R. 1173, 151 A.L.R. 781.

Trust company's acts as fiduciary as practice of law. 69 A.L.R.2d 404.

Unauthorized practice of law as contempt. 40 A.L.R.6th 463.

What activities of stock or securities broker constitute unauthorized practice of law. 34 A.L.R.3d 1305.

What constitutes “unauthorized practice of law” by out-of-state counsel. 83 A.L.R.5th 497.

What constitutes unauthorized practice of law by paralegal. 109 A.L.R.5th 275.

Unauthorized practice of law — Real estate closings. 119 A.L.R.5th 191.

Attorney and client 11.

NOTES TO DECISIONS

1. Courts Covered.

This provision applies to one licensed to practice before justices of the peace or county court. Scales v. Kelley, 70 Tenn. 706, 1879 Tenn. LEXIS 226 (1879).

2. Embodiment of Common Law.

This section embodies the common law principle. Johnson v. Patterson, 81 Tenn. 626, 1884 Tenn. LEXIS 81 (1884).

T.C.A. § 23-3-105 is an embodiment of the common law principles of the attorney client privilege. Royal Surplus Lines Ins. Co. v. Sofamor Danek Group, Inc., 190 F.R.D. 463, 1998 U.S. Dist. LEXIS 22616 (W.D. Tenn. 1998), aff'd, 190 F.R.D. 463, 1999 U.S. Dist. LEXIS 23632 (W.D. Tenn. 1999).

3. Requisites of Confidential Communications.

Communications between a client and his attorney are under the seal of confidence, and cannot be disclosed in proof. It is not necessary to the application of this rule that a suit should be pending or anticipated, nor that there should be a regular retainer, or the payment of a fee, but the communication must be in a professional character, in relation to some past act, or right or interest in existence. McMannus v. State, 39 Tenn. 213, 1858 Tenn. LEXIS 282 (1858).

This section does not apply to transactions between attorney and client where they have no element of confidence in them. The attorney is competent to testify about them. For instance, he may prove his client's handwriting, what money was collected by him, when paid over, and to whom paid. Johnson v. Patterson, 81 Tenn. 626, 1884 Tenn. LEXIS 81 (1884).

The privilege assumes, of course, that the communications are made with the intention of confidentiality, and the reason for prohibiting disclosure ceases when the client does not appear to have been desirous of secrecy. Hazlett v. Bryant, 192 Tenn. 251, 241 S.W.2d 121, 1951 Tenn. LEXIS 399 (1951).

There is no evidence of attempted perpetration of fraud found in the attorney-client discussions the defendant sought to have admitted into evidence and, therefore, the attorney-client privilege will bar the admission into evidence of such discussions. Galland—Henning Mfg. Co. v. Dempster Bros., Inc., 315 F. Supp. 68, 1970 U.S. Dist. LEXIS 13119 (E.D. Tenn. 1970).

The attorney-client privilege is not absolute, nor does it encompass all communications between the client and the attorney. For the privilege to apply, the client has the burden of showing that the communications were made in the confidence of the attorney-client relationship and with the intention of confidentiality. Bryan v. State, 848 S.W.2d 72, 1992 Tenn. Crim. App. LEXIS 679 (Tenn. Crim. App. 1992).

The requirements for the privilege to apply are: (1) The asserted holder of the privilege is or sought to become a client or is a member of the bar or the member's subordinate; (2) The communication relates to a fact of which the attorney was informed by the client without the presence of strangers, for the purpose of securing primarily either an opinion on law or legal services or assistance in some legal proceeding and not for the purpose of committing a crime or tort; and (3) The privilege has been claimed and not waived by the client. Royal Surplus Lines Ins. Co. v. Sofamor Danek Group, Inc., 190 F.R.D. 463, 1998 U.S. Dist. LEXIS 22616 (W.D. Tenn. 1998), aff'd, 190 F.R.D. 463, 1999 U.S. Dist. LEXIS 23632 (W.D. Tenn. 1999).

4. Extent of Privilege.

The attorney-client privilege rule does not apply to the identity of an attorney's client. State v. Bobo, 724 S.W.2d 760, 1981 Tenn. Crim. App. LEXIS 434 (Tenn. Crim. App. 1981).

Where a party was induced to make communications because he had retained the attorney to “aid in having the deed made to his wife in lieu of himself,” the retainer for this purpose was sufficient to seal the lips of the attorney as to any communications on the subject of the client's motives. Lockhard v. Brodie, 1 Tenn. Ch. 384 (1873).

The attorney-client privilege codified in this section does not exclude all communications between an attorney and his client. Humphreys, Hutcheson & Moseley v. Donovan, 568 F. Supp. 161, 1983 U.S. Dist. LEXIS 16081 (M.D. Tenn. 1983), aff'd, 755 F.2d 1211, 1985 U.S. App. LEXIS 29481 (6th Cir. Tenn. 1985).

Absent special circumstances, the attorney-client privilege does not prohibit disclosure of the fact or the existence of an attorney-client relationship or the dates that services were rendered. Nor does the privilege, absent special circumstances, foreclose disclosure of the amount of money paid by a client for services. Humphreys, Hutcheson & Moseley v. Donovan, 568 F. Supp. 161, 1983 U.S. Dist. LEXIS 16081 (M.D. Tenn. 1983), aff'd, 755 F.2d 1211, 1985 U.S. App. LEXIS 29481 (6th Cir. Tenn. 1985).

Where a textile company facing a union election had its corporate attorney speak to the employees prior to the election regarding the dangers of unionizing, the attorney-client privilege did not bar the attorney from disclosing and reporting the information required by the Labor Management Reporting and disclosure Act of 1959 (29 U.S.C. § 401 et seq.) from every person involved in labor persuader activities, because the attorney was not acting as an attorney when he engaged in those speeches but as a labor persuader. Humphreys, Hutcheson & Moseley v. Donovan, 568 F. Supp. 161, 1983 U.S. Dist. LEXIS 16081 (M.D. Tenn. 1983), aff'd, 755 F.2d 1211, 1985 U.S. App. LEXIS 29481 (6th Cir. Tenn. 1985).

The evidentiary privilege afforded by this section was waived by the passage of the Open Meetings Act (§§ 8-44-101 — 8-44-106); however, because of the attorney's ethical duty not to betray the confidences of his client, discussions between a public body and its attorney concerning pending litigation may be held in private and are not subject to the Open Meetings Act. Smith County Education Asso. v. Anderson, 676 S.W.2d 328, 1984 Tenn. LEXIS 936 (Tenn. 1984).

Affidavit that a former client claimed was unnecessarily prejudicial to him which stated that his previous attorney was the third of eight attorneys to represent the client during his divorce and that the client's adultery went unabated despite an attempt at reconciliation, did not constitute privileged communications between the client and his attorney because they were statements of fact that were already public record prior to the filing of the attorney's affidavit. Hartman v. Cunningham, 217 S.W.3d 408, 2006 Tenn. App. LEXIS 709 (Tenn. Ct. App. 2006), appeal denied, — S.W.3d —, 2007 Tenn. LEXIS 186 (Tenn. 2007).

Trial court had not erred in granting summary judgment to an attorney who was accused by his client in another proceeding of committing malpractice because the attorney had filed the affidavit in response to that accusation; even if the affidavit had contained privileged information, the communication was permissible pursuant to Tenn. Sup. Ct. R. Prof. Conduct 8, RPC 1.6(b) because the attorney reasonably believed that disclosure was necessary to defend against the allegations and T.C.A. § 23-3-105 did not provide the client a private right of action. Hartman v. Cunningham, 217 S.W.3d 408, 2006 Tenn. App. LEXIS 709 (Tenn. Ct. App. 2006), appeal denied, — S.W.3d —, 2007 Tenn. LEXIS 186 (Tenn. 2007).

Employer state’s documents relating to harassment investigations were protected from public disclosure under the Public Records Act, T.C.A. § 10-7-505, by the attorney-client privilege and the work product doctrine; the rule governing confidences established in Tenn. Sup. Ct. R. 8, RPC 1.6, makes no exceptions for governmental attorneys, and the fact that the documents may have been prepared for the purpose of policy compliance as well as in anticipation of litigation did not remove them from the privilege or the doctrine. The Tennessean v. Tenn. Dep't of Pers., — S.W.3d —, 2007 Tenn. App. LEXIS 267 (Tenn. Ct. App. Apr. 27, 2007).

Defendant's conviction for second-degree murder was proper because he did not have standing to assert the victim's privilege under T.C.A. § 23-3-105. State v. Scott, — S.W.3d —, 2011 Tenn. Crim. App. LEXIS 446 (Tenn. Crim. App. June 14, 2011), appeal denied, — S.W.3d —, 2011 Tenn. LEXIS 1018 (Tenn. Oct. 18, 2011).

In a protestor's civil rights action against the former Governor and Deputy Governor, alleging retaliation for the exercise of his First Amendment rights, the attorney client privilege applied to certain documents created by the Governor's legal counsel because the documents specifically related to the attorney's analysis of questions presented by the Governor, issues surrounding the protest at the Capitol, and reflected advice given to the Governor and his advisors in that regard. Davidson v. Bredesen, — S.W.3d —, 2013 Tenn. App. LEXIS 708 (Tenn. Ct. App. Oct. 29, 2013), appeal denied, — S.W.3d —, 2014 Tenn. LEXIS 226 (Tenn. Mar. 5, 2014).

5. —Communications in Presence of Others.

Conversations and communications between attorney and client which have taken place in the presence of third persons are not privileged. Hazlett v. Bryant, 192 Tenn. 251, 241 S.W.2d 121, 1951 Tenn. LEXIS 399 (1951); Van Kirk v. Board of Mayor & Aldermen, 668 S.W.2d 299, 1983 Tenn. App. LEXIS 717 (Tenn. Ct. App. 1983).

Where deceased signed deed in her hospital room in presence of her attorney, husband and niece, the attorney was entitled to testify concerning events in hospital room since there was no attempt at secrecy. Hazlett v. Bryant, 192 Tenn. 251, 241 S.W.2d 121, 1951 Tenn. LEXIS 399 (1951).

A statement made by a client in public is not privileged and his attorney may testify thereto. Van Kirk v. Board of Mayor & Aldermen, 668 S.W.2d 299, 1983 Tenn. App. LEXIS 717 (Tenn. Ct. App. 1983).

When the third party in whose presence such communication takes place is an agent of the client, the confidentiality is not destroyed. Royal Surplus Lines Ins. Co. v. Sofamor Danek Group, Inc., 190 F.R.D. 463, 1998 U.S. Dist. LEXIS 22616 (W.D. Tenn. 1998), aff'd, 190 F.R.D. 463, 1999 U.S. Dist. LEXIS 23632 (W.D. Tenn. 1999).

Trial court properly allowed defendant's trial counsel to testify during defendant's perjury trial because defendant waived the attorney-client privilege by voluntarily divulging during his prior sentencing hearing on murder charges that his attorney had advised him to lie that he had killed the victims in self-defense. State v. Buford, 216 S.W.3d 323, 2007 Tenn. LEXIS 315 (Tenn. 2007).

6. Joint Defense.

The joint defense privilege provides that the attorney client privilege may be extended to provide protection to confidential communications shared among persons with a common or similar interest in order to set up a common defense strategy. Royal Surplus Lines Ins. Co. v. Sofamor Danek Group, Inc., 190 F.R.D. 463, 1998 U.S. Dist. LEXIS 22616 (W.D. Tenn. 1998), aff'd, 190 F.R.D. 463, 1999 U.S. Dist. LEXIS 23632 (W.D. Tenn. 1999).

7. —Abstract Legal Questions.

The rule does not apply to abstract legal questions, because, in such cases, no facts are or need be disclosed, implicating the client, and there is nothing of a confidential character to conceal. McMannus v. State, 39 Tenn. 213, 1858 Tenn. LEXIS 282 (1858); Jackson v. State, 155 Tenn. 371, 293 S.W. 539, 1926 Tenn. LEXIS 56 (1927).

8. —Matters Distinct from Legal Matter.

Where client consulted attorney about a legal matter and made remarks about another matter, separate and distinct from and unconnected with such legal matter, those remarks were not privileged. Jackson v. State, 155 Tenn. 371, 293 S.W. 539, 1926 Tenn. LEXIS 56 (1927).

9. —Corporations.

Information pertaining to the identities of former officers and shareholders is outside the scope of confidential information ordinarily protected by a corporation's attorney-client privilege and is discoverable. In re Southern Industrial Banking Corp., 35 B.R. 643, 1983 B.R. LEXIS 4855 (Bankr. E.D. Tenn. 1983).

The involvement of an attorney in the commercial endeavors of a corporation does not per se vitiate the attorney-client privilege; however, the participation of general counsel in the business of a corporation likewise does not automatically cloak the business activity with the protection of the attorney-client privilege. In re Southern Industrial Banking Corp., 35 B.R. 643, 1983 B.R. LEXIS 4855 (Bankr. E.D. Tenn. 1983).

10. —Guilty Plea Knowingly Entered.

In a post-conviction hearing, where petitioner asserts that his guilty pleas were not voluntarily, knowingly and understandingly entered, the attorney-client privilege should be waived as to that issue; a client may not use his or her version of the events involving the attorney as a sword while raising the privilege as a shield to prevent the attorney from being used in responding to the attack. Bryan v. State, 848 S.W.2d 72, 1992 Tenn. Crim. App. LEXIS 679 (Tenn. Crim. App. 1992).

11. No Cause of Action Created.

This section does not embody a common law or statutory cause of action. Quarles v. Sutherland, 215 Tenn. 651, 389 S.W.2d 249, 1965 Tenn. LEXIS 640, 20 A.L.R.3d 1103 (1965).

12. Communication Not Privileged.

Communications that defendant had with the victim's best friend, an attorney, were not subject to the attorney-client privilege, because the attorney informed both defendant and the officers that she did not represent defendant and was at the crime scene as a friend. State v. Jackson, — S.W.3d —, 2012 Tenn. Crim. App. LEXIS 1003 (Tenn. Crim. App. Dec. 10, 2012), modified, 444 S.W.3d 554, 2014 Tenn. LEXIS 619 (Tenn. Aug. 22, 2014).

Because of an attorney's repeated statements to defendant that the attorney was not acting as defendant's attorney, but was present at the scene because of the attorney's friendship with the victim, the trial court's finding that the attorney could testify, as defendant had no reasonable belief or expectation that the attorney had assented to the formation of an attorney-client relationship, was not clearly erroneous. State v. Jackson, 444 S.W.3d 554, 2014 Tenn. LEXIS 619 (Tenn. Aug. 22, 2014).

Trial court did not err by allowing an inmate to testify because he and defendant did not have an attorney-client relationship, as the inmate was not an attorney and he did not tell defendant he was an attorney, and therefore their communications were not privileged. State v. Jones, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 282 (Tenn. Crim. App. Apr. 15, 2016), review denied and ordered not published, — S.W.3d —, 2016 Tenn. LEXIS 642 (Tenn. Sept. 22, 2016).

Counsel was not licensed to practice law prior to the filing of the suit, thereby establishing that her discussions with plaintiffs prior to her licensure were not subject to the attorney-client privilege; defendants intended to illicit testimony from counsel concerning the main issue at trial, namely when the construction defects were discovered, and the court upheld the disqualification of counsel. Diemoz v. Huneycutt, — S.W.3d —, 2020 Tenn. App. LEXIS 204 (Tenn. Ct. App. May 6, 2020).

Attorney-client privilege did not protect communications between the wife and her divorce attorney and a criminal defense attorney because the wife had not met her burden of proof to establish that the privilege applied to any specific communication at issue; the wife did not show which meeting or meetings her friend was present for and which she was not. Pagliara v. Pagliara, — S.W.3d —, 2020 Tenn. App. LEXIS 299 (Tenn. Ct. App. June 29, 2020).

13. Disciplinary Proceedings.

Trial court did not err in dismissing an attorney's petition under the Public Records Act because Tenn. Sup. Ct. R. 9 was within the meaning of the exception to public inspection of records in the Act, and it was a direction by the supreme court as to how complaints of ethical violations against lawyers were addressed; quarterly reports of disciplinary counsel were confidential under the work product doctrine and attorney client privilege. Moncier v. Bd. of Prof'l Responsibility of the Supreme Court of Tenn., — S.W.3d —, 2013 Tenn. App. LEXIS 380 (Tenn. Ct. App. June 6, 2013), appeal denied, — S.W.3d —, 2013 Tenn. LEXIS 915 (Tenn. Nov. 13, 2013).

14. Functional Equivalent Analysis.

Attorney-client privilege applies to communications between an entity's legal counsel and a third-party nonemployee of the entity if the nonemployee is the functional equivalent of the entity's employee and when the communications relate to the subject matter of legal counsel's representation of the entity and the communications were made with the intention that they would be kept confidential. Dialysis Clinic, Inc. v. Medley, — S.W.3d —, 2019 Tenn. LEXIS 17 (Tenn. Jan. 25, 2019).

Court may find that a third-party nonemployee is the functional equivalent of an employee after considering the following non-exclusive factors: whether the nonemployee performs a specific role on behalf of the entity, whether the nonemployee acts as a representative of the entity, whether the nonemployee possesses information no one else has, whether the nonemployee is authorized by the entity to communicate with its attorneys, and whether the nonemployee's communications with the entity's attorneys are treated as confidential. Dialysis Clinic, Inc. v. Medley, — S.W.3d —, 2019 Tenn. LEXIS 17 (Tenn. Jan. 25, 2019).

If a court determines that the nonemployee's communications qualify for the attorney-client privilege because the nonemployee is the functional equivalent of an employee, then the court should use the standard already in place in Tennessee to determine whether the privilege attaches. Dialysis Clinic, Inc. v. Medley, — S.W.3d —, 2019 Tenn. LEXIS 17 (Tenn. Jan. 25, 2019).

Property management company was the functional equivalent of an employee of the corporation, the communications related to the subject matter of counsel's representation of the corporation, and the communications were made with the intent that they would be kept confidential; the trial court properly found the documents in question were protected by the attorney-client privilege. Dialysis Clinic, Inc. v. Medley, — S.W.3d —, 2019 Tenn. LEXIS 17 (Tenn. Jan. 25, 2019).

Collateral References. 7 Am. Jur. 2d Attorneys at Law § 93.

7 C.J.S. Attorney and Client § 23.

Admissibility of testimony by an attorney as to unperformed compromise agreement. 26 A.L.R.2d 858.

Applicability of attorney-client privilege to communications relating to drafting of documents. 55 A.L.R.3d 1322.

Applicability of attorney-client privilege to communications with respect to contemplated tortious acts. 2 A.L.R.3d 861.

Applicability of attorney-client privilege to evidence or testimony in subsequent action between parties originally represented contemporaneously by same attorney, with reference to communication to or from one party. 4 A.L.R.4th 765.

Application of Attorney-Client Privilege to Electronic Documents. 26 A.L.R.6th 287.

Attorney-client privilege as affected by communications between several attorneys. 9 A.L.R.3d 1412, 1420.

Attorney-client privilege as affected by its assertion as to communications, or transmission of evidence, relating to crime already committed. 16 A.L.R.3d 1029.

Attorney-client privilege as applicable to communications between attorney and client's agent, employee, spouse, or relative. 139 A.L.R. 1250.

Attorney-client privilege as applied to communications in presence of two or more persons interested in subject matter to which the communications relate. 141 A.L.R. 553.

Construction and application of fiduciary duty exception to attorney-client privilege. 47 A.L.R.6th 255.

Determination of whether a communication is from a corporate client for purposes of the attorney-client privilege—modern cases. 26 A.L.R.5th 628.

Disclosure of name, identity, address, occupation, or business of client as violation of attorney-client privilege. 16 A.L.R.3d 1047.

Fraud, privilege of communication to attorney by client in attempt to establish false claim. 5 A.L.R. 977, 9 A.L.R. 1081.

Instruction which either affirms or denies jury's right to draw unfavorable inference against a party because he invokes privilege against testimony of attorney. 131 A.L.R. 705.

Libel and slander: Out-of-court communications between attorneys made preparatory to, or in the course or aftermath of, civil judicial proceedings as privileged. 36 A.L.R.3d 1328.

Master or principal, statement or report by servant or agent to, to be submitted to attorney for advice or for use in pending or threatened litigation, as a privileged communication. 146 A.L.R. 977.

Mutual wills, privilege as to communications to attorney employed to draw. 64 A.L.R. 184, 66 A.L.R.2d 1302, 75 A.L.R.4th 1144.

Nonjudicial proceeding or investigation, privilege as applicable in. 133 A.L.R. 732.

Privilege as to communications between lay representative in judicial or administrative proceedings and client. 31 A.L.R.4th 1226.

Privilege as to communications to attorney in connection with drawing of will. 64 A.L.R. 184, 66 A.L.R.2d 1302, 75 A.L.R.4th 1144.

Use in disbarment proceeding of testimony of attorney in criminal proceeding under grant of immunity. 62 A.L.R.3d 1145.

Waiver of attorney-client privilege by personal representative or heir of deceased client or by guardian of incompetent. 67 A.L.R.2d 1268.

Waiver of evidentiary privilege by inadvertent disclosure—state law. 51 A.L.R.5th 603.

What persons or entities may assert or waive corporation's attorney-client privilege — modern cases. 28 A.L.R.5th 1.

When statute of limitations begins to run against action to recover money paid by mistake. 79 A.L.R.3d 754.

Work product privilege as applying to material prepared for terminated litigation or for claim which did not result in litigation. 27 A.L.R.4th 568.

Wrongful or criminal character of contemplated acts or course of conduct as affecting attorney-client privilege. 125 A.L.R. 508.

Witnesses 197-206.