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NORTHERN DIVISION (KNOXVILLE, TENN)
Office of the Clerk:
SOUTHERN DIVISION (CHATTANOOGA, TENN)
Office of the Clerk:
WINCHESTER DIVISION (WINCHESTER, TENN)
Office of the Clerk:
LR1.1 Scope of the Rules
(b) Effective Date; Transitional Provision. These rules become effective on March 1, 1994, and shall govern all actions and proceedings pending on or commenced after they take effect, except to the extent, in the opinion of the judge to whom the case is assigned, their application in an action or proceeding pending on that date would not be feasible or would work an injustice.
(c) Scope of Rules; Construction. These rules supersede all previous rules promulgated by this court or any judge of this court and supplement the Federal Rules of Civil Procedure and the Federal Rules of Criminal Procedure and the Civil Justice Reform Act plan for the Eastern District of Tennessee, and shall be construed so as to be consistent with those rules and to promote the just, efficient, and economical determination of every action and proceeding. United States Code, Title 1, sections 1 to 5 shall, as far as applicable, govern the construction of these rules.
(d) Reference to Clerk. The term "clerk" as used herein refers to the Clerk of the Court, unless specifically stated otherwise.
When amendments to these rules are made, notice of the amendments shall be provided on the public bulletin board in each divisional office of the clerk for a reasonable period of time.
LR 3.1 Civil Cover Sheet
(b) Preparation of Subpoenas for Witnesses. The United States Marshal will not serve subpoenas for witnesses in civil cases unless required to do so by these rules, the Federal Rules of Civil Procedure Rule 45, or by order of the court. When an attorney delivers subpoenas for witnesses in civil cases to another individual for service, he or she should do so in accordance with the Federal Rules of Civil Procedure, at least seven (7) days, excluding Saturdays, Sundays, and holidays, prior to trial, and should advance any funds that may be required. If the foregoing requirements have not been complied with, no motion for continuance for failure of a witness to appear shall be granted except upon a showing of extenuating circumstances.
In criminal cases, the United States Attorney shall endeavor to deliver subpoenas for witnesses to the United States Marshal ten (10) days prior to trial.
Papers may NOT be filed by facsimile transmission except with permission of the court, in which case an original shall be promptly substituted.
LR7.1 Motion Practice
(a) Briefing Schedule. Unless the court notifies the parties to the contrary, briefing schedule for all motions shall be: (1) the opening brief and any accompanying affidavits or other supporting material shall be served and filed with the motion; (2) the answering brief and any accompanying affidavits or other material shall be served and filed no later than 10 days after the service of the opening brief, except that parties shall have 20 days in which to respond to dispositive motions; (3) any reply brief and accompanying material shall be served and filed no later than 5 days after the service of the answering brief. The above briefing schedule may be set aside if ordered by the court, or if within 10 days after the filing of a motion, a stipulated briefing schedule is approved by the court.
(b) Brief Format. Briefs shall include a concise statement of the factual and legal grounds which justify the ruling sought from the court. Briefs shall comply with the format requirements of Local Rule 5.1 and shall not exceed 25 pages in length unless otherwise ordered by the court. This page limitation shall also apply to all briefs filed in bankruptcy appeals, in accordance with Bankruptcy Rule 8010(c).
(c) Reply Briefs. Unless otherwise stated by the court, reply briefs are not necessary and are not required by the court. A reply brief shall not be used to reargue the points and authorities included in the opening brief, but shall directly reply to the points and authorities contained in the answering brief.
(d) Supplemental Briefs. No additional briefs, affidavits, or other papers in support of or in opposition to a motion shall be filed without prior approval of the court, except that a party may file a supplemental brief of no more than five (5) pages to call to the court's attention developments occurring after a party's final brief is filed. Any response to a supplemental brief shall be filed within five days after service of the supplemental brief and shall be limited to no more than five (5) pages.
In the Southern Division, (Chattanooga), all nondispositive motions will be placed upon a motion docket which shall be held every other Friday at 1:00 p.m. before the district judge or magistrate judge. Counsel and any unrepresented parties will be notified of the hearing date by the clerk. Counsel, by agreement, may request that a motion be placed on the docket on a particular date. However, scheduling will be at the discretion of the court. After notice to opposing counsel, any party may request that the hearing of a motion be continued from the date on which it is set to the next scheduled motion day. A continuance may be requested only once, and, if the request is allowed, it shall be the responsibility of counsel making the request to notify all other counsel or unrepresented parties. After a motion has been continued one time, counsel shall either submit an agreed order disposing of the motion, or appear at the hearing on the motion. Exceptions may be made for good cause. Counsel are encouraged to agree upon orders disposing of pending motions, when, in good faith, no opposition can be made. Agreed orders shall be submitted to the court on or before the Thursday preceding the motion day. Motions will generally be heard in the order of the date upon which the case was filed. This sequence may be altered at the discretion of the court. Prevailing counsel will be responsible for the preparation and submission of an order in conformance with the court's ruling. Other counsel should endeavor to agree on the form of this order. If no agreement can be reached within five (5) days after the court's ruling in open court, a proposed order shall be submitted to the clerk, and such proposed order shall state that it is being submitted under the five-day rule. Objections to the proposed order must be filed within five (5) days of its submission. If no objection is filed, the proposed order will be entered by the clerk. If an objection is filed, the court will determine the appropriate form of the order.
(b) Time Limit for Response by Secretary of Health and Human Services Under Title II and XVI of Social Security Act. In all cases filed against the Health and Human Services Administration for benefits under the provisions of Titles II and XVI of the Social Security Act, as amended, 42 U.S.C. Section 401, et seq., the United States shall file its answer or other response within sixty (60) days.
(c) Extensions. Requests for additional time to complete any action required by subsection 9.1(c) of this rule will be granted only upon motion and only upon a showing of extraordinary circumstances which shall be set forth in a supporting affidavit from a responsible official of the Department of Health and Human Services detailing why such extension is deemed necessary.
(d) Cases Remanded to the Secretary of Health and Human Services. Whenever a social security case has been remanded by the court to the Secretary, the United States Attorney shall file a report informing the court of any further agency action. If the action on remand is a decision fully favorable to the plaintiff, the court shall then reopen the case and enter final judgment for the plaintiff. If issues in controversy remain, the Secretary shall file a supplemental transcript and the case shall be reopened for further proceedings on the merits.
(e) Remand pursuant to "Sentence Four." When a social security case is remanded by the court to the Secretary pursuant to "Sentence Four" of Rule 58 and later returned to the court for further action, the case shall not proceed as a reopened action but will be treated as a new action.
(b) Federal Prisoners. When a petition for the writ of habeas corpus is filed by a person in federal custody, a filing fee is not required. Every petition for habeas corpus relief by a federal prisoner must comply with the Rules Governing Section 2255 Proceedings In The United States District Courts. If a petition is filed in a form other than that set forth in the Federal Rules of Civil Procedure under 28 U.S.C. Section 2255 and is indefinite as to the judgment appealed from, its procedural history, the petitioner's exhaustion of remedies, the grounds for relief, or the facts supporting these grounds, the clerk shall promptly forward to the petitioner's counsel [or in the absence of counsel, to the petitioner] a copy of the above-described form with instructions that failure to complete and file the same within thirty (30) days, or within such time thereafter as the court may allow, may result in the dismissal of the petition.
(c) Reference to Magistrate Judge. Should an evidentiary hearing be required relative to a petition for the writ of habeas corpus, the court may refer the matter to a United States magistrate judge for a report and recommendation.
(b) Petitioner's Statement. Whenever such a case is filed in the district court, petitioner shall file with the petition a statement which certifies the existence of a sentence of death and the emergency nature of the proceedings, and which lists the proposed date of execution, any previous cases filed by petitioner in federal court, and any cases filed by petitioner which are pending in any other court. Petitioner may use Form 6CA-99 or the equivalent thereof for the statement. Appendix No.3 to these rules is the model form.
(c) Duty of District Court Clerk. The clerk of the district court shall immediately forward to the clerk of the court of appeals a copy of the statement filed by petitioner pursuant to E.D.TN. LR9.4(b) and shall immediately notify the clerk of the court of appeals by telephone upon issuance of a final order in the case. When the notice of appeal is filed, the clerk of the district court shall transmit the available records forthwith to the court of appeals.
(d) Motion for Stay. A petitioner who seeks a stay of execution shall attach to the petition a copy of each state court opinion and judgment involving the matter to be presented. The petition shall also state whether the same petitioner has previously sought relief arising out of the same matter from this court or from any other federal court. The reasons for denying relief given by any court that has considered the matter shall also be attached. If reasons for the ruling were not given in a written opinion, a copy of the relevant portions of the transcript may be supplied.
(e) Issuance of Certificate of Probable Cause. If a certificate of probable cause is issued in any such case, the court will grant a stay of execution to continue until such time as the court of appeals expressly acts with reference to it.
(f) Issues Not Raised or Exhausted in State Courts. If any issue is raised that was not raised or has not been fully exhausted in state court, the petition shall state the reasons why such action has not been taken.
(g) Second or Successive Petitions. A second or successive petition for habeas corpus relief may be dismissed if the court finds that it fails to allege new or different grounds for relief, if the failure of the petitioner to assert those grounds in a prior petition constitutes an abuse of the writ, or if the petition is frivolous and entirely without merit.
Rule 12.1 Extensions of Time to Respond
(b) The court may, in its discretion, require that a written, signed certificate be returned to the court verifying that counsel has communicated with his or her client and the client was made aware of the ramifications of the request for delay.
(c) Rule 16(b) Scheduling Conferences. These conferences may be conducted by a district judge, magistrate judge or designee of the court.
The proceedings will be electronically or stenographically recorded. No admissions made by a defendant or his or her attorney at the conference shall be used against the defendant unless the admissions are reduced to writing and signed by the defendant and his or her attorney.
Following the pretrial conference, an order will be prepared by the district judge, the magistrate judge or by counsel if so directed. If the order contains stipulations, it shall be signed by the defendant(s), defendant(s)' counsel, and the United States Attorney. When so signed, the order shall be binding on the parties at trial and shall be modified only to prevent manifest injustice.
LR23.1 Designation of "Class Action" in the Caption
LR26.1 Disclosures; Discovery Limitations and Commencement; Meeting of Parties.
(a) Required Disclosures.
(2) Expert Testimony. Unless otherwise ordered by the court in a particular case, the requirements of FED.R.CIV.P.26(a)(2), relating to disclosure of expert testimony, do not apply in cases initially filed in, removed to, or transferred to this court before March 1, 1994.
(3) Pretrial Disclosures. Unless otherwise ordered by the court in a particular case, the requirements of FED.R.CIV.P.26(a)(3), relating to final pretrial disclosure, do not apply in cases set for trial before March 1, 1994.
(4) Filing. Unless otherwise ordered by the court in a particular case, disclosures under FED.R.CIV.P. 26(a)(3) shall be filed with the court promptly after being served, but disclosures under FED.R.CIV.P.26(a)(1) and (a)(2) of this rule shall be filed only when, and to the extent, ordered by the court or needed by a party in connection with a motion (or response thereto) or for use at a trial.
LR38.2 Continuances
Cases shall not be continued upon stipulation of counsel. Continuances will be granted only upon written motion with supporting affidavit and a showing of good cause.
Counsel shall give advance notice to the court of any anticipated questions of law or evidence which might delay the trial.
Counsel shall endeavor to have a sufficient number of witnesses present to avoid delay of trial. Counsel shall examine witnesses from the lectern unless leave to approach has been granted. When permission to approach a witness has been granted for the purpose of examination of the witness with regard to an exhibit, counsel shall resume examination from the lectern as soon as the examination with regard to the exhibit has been completed.
Except by leave of the court, not more than three (3) witnesses shall be called to impeach or sustain the character of any party or other witness in a case, or to give expert or value testimony as to any matter. If, upon written application, and for good cause shown, additional expert witnesses are allowed to testify, the costs of these witnesses shall in no event be taxed against the adverse party.
Exhibits should be marked in advance of trial and their admissibility stipulated whenever possible. Exhibits should be offered into evidence when they become relevant rather than at the conclusion of the evidence. Documents and other exhibits must be shown to opposing counsel prior to their use in court. Counsel shall provide photocopies of all exhibits to opposing counsel. Where practical, the court should be provided with copies also.
After the final determination of an action, counsel or parties shall have thirty (30) days within which to withdraw exhibits and depositions. In the event the exhibits and depositions are not withdrawn, the clerk shall, after notice to the parties, destroy or otherwise dispose of them.
Oversized exhibits may be used for demonstration purposes during trial, but an 8 1/2 x 11 copy shall be given to the courtroom deputy.
In jury cases, counsel shall confer with each other before offering a stipulation to the court for consideration.
No attorney, party, or representative of either may interrogate a juror after a verdict has been returned or the trial has been otherwise concluded, without prior permission of the court.
If a case is to be tried to a jury, counsel shall, unless otherwise ordered by the court, furnish the court with suggested charges to the jury. Each suggested charge shall be written on a separate sheet of paper and supported by citations of authority on novel questions of law. Counsel shall supply copies of suggested charges to opposing counsel.
In non-jury cases, counsel shall supply the court with suggested findings of fact and conclusions of law, supported by citations of authority, at least ten (10) days prior to the trial date unless otherwise ordered. Failure to comply with the time requirements of this rule may, in the discretion of the court, result in the dismissal of the plaintiff's action or the entry of default against the defendant. Counsel shall supply copies of suggested findings of fact and conclusions of law to opposing counsel.
LR54.1 Taxation of Costs
Guidelines on preparing Bills of Costs are available from the Clerk of Court offices in the Greeneville, Knoxville, and Chattanooga divisions.
LR67.3 Funds for Minors, Incompetents and the Incapacitated
(b) Each party may forward, at least four days, or earlier if the settlement judge directs, prior to the scheduled conference, an ex parte, confidential memorandum to the designated settlement judge. The parties are encouraged to include in that memorandum the following:
(d) The judicial officer conducting the settlement conference shall not discuss with the trial judge assigned in the case, or with anyone else other than settlement conference participants, anything regarding the settlement conference or the facts and arguments disclosed by the parties, except that the trial judge assigned to the case will be informed of any progress made toward settlement.
(e) The parties shall be prepared and shall participate in good faith (F.R.Civ.P.16(f)).
(f) The judicial officer participating in the settlement conference shall be a neutral mediator and facilitator and shall play absolutely no role in the adjudication of the case once he is designated as settlement judge. Where requested by any party, all communications between that party and counsel and the settlement judge will be kept strictly confidential.
(g) Counsel for each party shall prepare a brief oral summary (in the nature of what might be that party's final argument) to be given at the settlement conference in the presence of all participants.
(h) The settlement judge shall retain complete discretion regarding the format and the manner of carrying on the settlement conference. Participation by any party shall, at all times, remain voluntary.
(i) Settlement discussions are confidential as provided by Rule 408, Fed.R.Evid. This applies to written submissions requested by the settlement judge as well as statements made in connection with the settlement conference.
(2) the signed "Consent to Proceed Before a United States Magistrate Election of Appeal to District Judge, and Order of Reference."
(b) Appeals. If parties consenting to proceed before a magistrate judge elect to take any appeal in the case to the district judge, that election must be affirmatively indicated on the consent form by counsel for all parties. In the absence of such an election, appeal will be to the United States Court of Appeals for the Sixth Circuit.
(c) Notice of Opportunity to Consent if Trial Date is Reset. In the event that a district judge cannot hold a civil trial on the date previously set for trial, the judge shall inform counsel of that fact as soon as possible. At the time counsel are informed that the district judge cannot hear the case on the date previously set, counsel also shall be informed as to their right to consent to trial before a magistrate judge and instructed to contact the office of the magistrate judge assigned to the case to ascertain possible dates on which the magistrate judge can hold the trial.
(b) Interlocutory Appeal. In those cases where an interlocutory appeal is taken within ten (10) days as provided in Rule 58(g)(2)(A) of the Federal Rules of Criminal Procedure, the statement specifying the decision or order from which the appeal is taken shall also set forth the reasons why the appealing party believes such decision or order is erroneous. An opposing party shall have ten (10) days within which to file a reply. The clerk shall then refer the appeal to a district judge, who may or may not require oral argument. The district judge may dismiss the appeal for lack of jurisdiction, or may affirm, modify, or reverse the magistrate judge's decision or order, or remand the case to the magistrate judge for further proceedings. Any appeal from a magistrate judge's order on a nondispositive motion in a felony criminal case shall be taken within ten (10) days of service of the order. Notice of appeal shall be filed with the clerk within the time indicated. A brief in support of the appeal shall be filed setting forth the reasons why the magistrate judge's order is clearly erroneous or contrary to law. The court will then reconsider the matter as set forth in 28 U.S.C. § 636(b)(1)(A).
(c) Appeal from Conviction or Sentence. In those cases where an appeal is taken within ten (10) days from a judgment of conviction or sentence as provided in Rule 58(g)(2)(B) of the Federal Rules of Criminal Procedure, the appealing party shall within ten (10) days of the filing of the notice of appeal file an assignment of errors and a brief and argument in support thereof. The opposing party shall have ten (10) days within which to file a reply brief. The clerk shall then refer the appeal to a district judge for decision. The district judge may or may not require oral argument and may affirm, or reverse and remand to the magistrate judge for a new trial, or reverse and dismiss the prosecution.
(d) Conviction Affirmed. In the event a district judge affirms a judgment of conviction, and the defendant does not file a notice of appeal to the Sixth Circuit Court of Appeals within ten (10) days of the entry of the order appealed from, the clerk shall return the case to the magistrate judge for the entry of an appropriate order putting into effect the judgment of conviction.
(e) Appointment of Counsel. As provided in subsections (b), (c) and (d) of 18 U.S.C. § 3006A, the magistrate judge or a district judge may appoint counsel to assist a defendant with an appeal to a district judge. No defendant is eligible for appointment of counsel if the charge is a petty offense and no sentence of imprisonment has been imposed by the magistrate judge or, in the case of an interlocutory appeal, if the magistrate judge has stated on the record that no sentence of imprisonment will be imposed in the event of conviction.
(f) Record on Appeal. If the appellant intends to rely on all or a portion of the transcript or sound recording of the proceeding before the magistrate judge, it shall be his or her responsibility to provide the district court with a transcript of the relevant evidence or to obtain permission from the district court, through the clerk, to use the sound recording in connection with his or her appeal. However, the provisions of Rule 58(g) of the Federal rules of Criminal Procedure shall apply if the appellant establishes his or her indigency. If the appellant files a portion of the transcript of the proceedings before the magistrate judge, the government may file any other portion of the transcript within the time allowed for its reply brief or may move the court for an order requiring the appellant to file the entire or designated portions of the transcript.
(g) Pro Se Defendant. The requirement for the content of the statement as provided in subsection (a) Federal Rules of Criminal Procedure 58(g) before United States Magistrate Judges, the requirement for the filing of briefs as provided in subsection (b) of this rule and the requirement for providing the record on appeal as provided in subsection (f) of this rule may be relaxed by the court in those cases where a defendant is proceeding pro se.
(h) Notice to Appellant and Appellee. In the case of a pro se appellant, immediately upon the filing of an appeal pursuant to Rule 58(g) of the Federal Rules of Criminal Procedure, the clerk shall mail a copy of the appellant's statement to the United States Attorney and shall forward a copy to the magistrate judge.
LR77.1 Legal Advice by Court Personnel
All court personnel are forbidden from interpreting any rules of procedure or giving any legal advice. Notice is hereby given to all persons that court personnel assume no responsibility for misinformation regarding applicable procedural rules, substantive law, or interpretation of the local rules of the court.
LR83.2(a) Public Statements by Attorneys Concerning Civil Proceedings
(2) Information Regarding Grand Jury Proceedings. With respect to a grand jury or other pending investigation of any criminal matter, a lawyer participating in the investigation shall refrain from making any extrajudicial statement, for dissemination by any means of public communication, that goes beyond the public record or that is not necessary to inform the public that the investigation is under way, to describe the general scope of the investigation, to obtain assistance in the apprehension of a suspect, to warn the public of any dangers, or otherwise to aid in the investigation.
(3) Information Regarding Initiation of Prosecution. From the time of arrest, issuance of an arrest warrant or the filing of a complaint, information or indictment in any criminal matter until the commencement of trial or disposition without trial, no lawyer associated with the prosecution or defense shall release or authorize the release of any extrajudicial statement, for dissemination by any means of public communication, relating to that matter and concerning:
(b) the existence of or contents of any confession, admission, or statement given by the accused, or the refusal or failure of the accused to make any statement;
(c) the performance of any examinations or tests or the accused's refusal or failure to submit to an examination or test;
(d) the identity, testimony, or credibility of prospective witnesses, except that the lawyer may announce the identity of the victim if the announcement is not otherwise prohibited by law;
(e) the possibility of a plea of guilty to the offense charged or a lesser offense; or
(f) any opinion as to the accused's guilt or innocence or as to the merits of the case or the evidence in the case.
The foregoing shall not be construed to preclude the lawyer during this period, in the proper discharge of his or her official or professional obligations, from announcing the facts and circumstances of arrest (including time and place of arrest, resistance, pursuit, and use of weapons), the identity of the investigating and arresting officer or agency, and the length of the investigation; from making an announcement at the time of seizure of any physical evidence other than a confession, admission or statement, which is limited to a description of the evidence seized; from disclosing the nature, substance, or text of the charge, including a brief description of the offense charges; from quoting or referring without comment to public records of the court in the case; from announcing the scheduling or result of any stage in the judicial process; from requesting assistance in obtaining evidence; or from announcing without further comment that the accused denies the charges made against him or her.
(4) Information During the Trial. During the trial of any criminal matter, including the period of selection of the jury, no lawyer associated with the prosecution or defense shall give or authorize any extrajudicial statement or interview, relating to the trial or the parties or issues in the trial, which a reasonable person would expect to be disseminated by means of public communication, if there is a reasonable likelihood that such dissemination will interfere with a fair trial. A lawyer is permitted to quote from or refer without comment to public records of the court in the case.
(5) Information After Completion of a Trial and Prior to Imposition of Sentence. After the completion of a trial or disposition without trial of any criminal matter, and prior to the imposition of sentence, a lawyer associated with the prosecution or defense shall refrain from making or authorizing any extrajudicial statement for dissemination by any means of public communication if there is a reasonable likelihood that such dissemination will affect the imposition of sentence.
(6) Disclosure of Information by Courthouse Personnel. All court personnel, including, among others, marshals, deputy marshals, court clerks, bailiffs, and court reporters, are prohibited from disclosing to any person, without authorization by the court, information relating to a pending grand jury proceeding or criminal case that is not part of the public records of the court. The divulgence of information concerning grand jury proceedings, in camera arguments, and hearings held in chambers or otherwise outside the presence of the public is likewise forbidden.
In a widely publicized or sensational civil or criminal case, the court, on motion of either party or its own motion, may issue a special order governing such matters as extrajudicial statements by parties and witnesses likely to interfere with the rights of the parties or the rights of the accused to a fair trial by an impartial jury; the seating and conduct in the courtroom of spectators and news media representatives; the management and sequestration of jurors and witnesses; and any other matters which the court may deem appropriate for inclusion in such an order.
Nothing in this rule is intended (1) to preclude the formation or application of more restrictive rules relating to the release of information about juvenile or other offenders, (2) to preclude the holding of hearings or the lawful issuance of reports by legislative, administrative, or investigative bodies, or (3) to preclude any lawyer from replying to charges of misconduct that are publicly made against him.
No photographic, broadcasting, television, sound or recording equipment other than the recording equipment of the magistrate judges and the official court reporter, will be permitted on the floors of the courthouse occupied by the court, except as otherwise permitted by order of the judge before whom the particular case or proceeding is pending.
LR83.3 Courtroom Decorum
The following rules shall govern courtroom decorum:
(a) Representation. No attorney shall become an attorney of record in any case or proceeding in this court unless personally retained by the litigant or client, or associated by counsel personally retained by the litigant or client.
(b) Filing of Pleadings; Effect. The filing of any pleading shall, unless otherwise specified, constitute an appearance by the person who signed the pleading. Any such appearance shall include a current address, telephone number and Board of Professional Responsibility number. Counsel may file a formal notice of appearance, but it shall not be necessary to do so.
(c) Representation Pro Se After Appearance by Counsel. Whenever a party has appeared by attorney, that party may not thereafter appear or act in his or her own behalf in the action or proceeding, unless an order of substitution shall first have been made by the court, after notice by the party to the attorney and to the opposing party. However, the court may, in its discretion, hear a party in open court, notwithstanding the fact that the party is represented by an attorney.
(d) Substitution of Counsel. When an attorney dies, or is removed or suspended or ceases to act as attorney in any action or proceeding, the party for whom the attorney was acting must, before any further proceedings are had in the action on his or her behalf, obtain the services of another attorney or appear in person, unless the party is already represented by another attorney.
(e) No Withdrawal Without Leave of Court. No attorney shall withdraw from representation in any action or proceeding, either civil or criminal, except by leave of the court as prescribed in subsection 83.5(f) of this rule.
(f) Withdrawal as Attorney of Record. Any attorney who seeks to have his or her name removed as counsel of record shall file a written motion with the court disclosing that he or she has given written notice to the client of his or her intention to withdraw from the case, and attaching a copy of this notice. Notice to the client shall be given at least ten (10) days prior to the filing of the motion unless the court otherwise directs. Ordinarily, counsel will not be allowed to withdraw if this would delay the trial of the case.
(a) General Qualifications. It shall be required for admission to practice in this court that an applicant be currently admitted to practice in the highest court of a state, territory, or the District of Columbia, and that the applicant appear to the court to be of good moral and professional character.
(b) Application. Each applicant shall file with the clerk (1) an executed copy of the application approved by the court and furnished by the clerk containing (i) the applicant's personal statement and (ii) the statement of two sponsors (who must be members of the bar of this court and must personally know, but not be related to the applicant) endorsing the correctness of the applicant's statement, stating that the applicant possesses all the qualifications required for admission and affirming that the applicant is of good moral and professional character and (2) if admitted in a state other than Tennessee, the applicant shall also attach a certificate from the presiding judge, clerk, or other duly authorized official of the proper court evidencing the applicant's admission to practice there and current good standing. Each applicant shall pay an application fee to the clerk, which is NOT refundable.
(c) Processing of Applications. All applications for admission to practice in this court shall be transmitted by the clerk to a Standing Committee on Admissions, which review the qualifications of applicants and report to the court. Applicants so certified may be admitted on motion of a member of the federal bar in open court or in chambers. The clerk will provide a successful applicant with a certificate of admission.
(d) Reciprocity With Other Districts. Attorneys who are admitted to and entitled to practice in other district courts of the United States shall be permitted to practice specially in this district provided it is certified by the presiding judge or clerk of the proper court that they are members in good standing of the bar of the United States District Court of their residence and a copy of the certificate is attached to the first pleading filed.
(e) If a copy of the Certificate of Good Standing is not submitted with the first pleading, it MUST be submitted with the Motion to Appear pro hac vice.
(f) Oath. An attorney admitted to practice shall take and sign an oath or affirmation as prescribed by Rule 5 of the Supreme Court of the United States.
(g) Effect. This admission shall entitle an attorney to practice in this court while and so long as he or she remains entitled to practice in the courts of the state of Tennessee and is not barred from practice by an order of this court or any court of record.
(h) Special Admission for Certain Attorneys. Attorneys who are members in good standing of the bar of the highest court of a state or any other district court, and are employed by the United States Government in a professional capacity, may appear in particular cases without an application for admission. Attorneys for whom application is pending may appear on a Motion to Appear pro hac vice provided an affidavit proving pending application is attached.
(i) Hearings. At the discretion of the court, the court may order an appropriate hearing regarding any applicant for admission or reinstatement. Regarding applications for initial admission, the court will first submit the application to a committee composed of members of the Tennessee bar, not necessarily from a local bar association, and obtain their recommendation concerning the applicant. The court may schedule a hearing following the committee's recommendation. At the discretion of the court, the court may submit applications for reinstatement to a committee composed of members of the Tennessee bar and obtain their recommendation concerning the applicant.
Admission will be based (to the extent applicable) upon standards contained in the Code of Professional Responsibility and the Rules of the Supreme Court of Tennessee. However, this court will not be bound by any decision of the Tennessee courts, the Board of Professional Responsibility, or the committee, regarding an applicant for admission or reinstatement before this court.
The Code of Professional Conduct adopted by the Supreme Court of Tennessee is hereby adopted as rules of professional conduct insofar as they relate to matters within the jurisdiction of this court.
(a) Conduct Subject to Discipline. The court may impose discipline on any member of its bar who has violated the Code of Professional Conduct as adopted by the Supreme Court of Tennessee, or has engaged in unethical conduct tending to bring the court or the bar into disrepute. The court may also discipline any member who has been suspended or disbarred from the practice of law by the state in which he or she is a member, or by any court of record. Discipline which may be imposed includes disbarment, suspension, reprimand, or such other further disciplinary action as the court may deem appropriate and just. Nothing in this rule shall be construed as limiting in any way the exercise by the court of its inherent contempt power or its authority to impose other sanctions provided under federal law and the Federal Rules of Civil Procedure.
(b) Initiation of Disciplinary Proceedings. Formal disciplinary proceedings shall be initiated by the issuance of an order to show cause signed by the Chief Judge. An order to show cause may be issued by the Chief Judge on his or her own initiative or upon a complaint filed by any counsel of record or party to an action in this court. When such order is issued on the court's initiative, no separate complaint need be filed. All complaints relating to disciplinary matters under this rule shall be filed under seal with the clerk. All records pertaining to attorney disciplinary proceedings, except with respect to reinstatement proceedings, shall be confidential and kept under seal in the clerk's office unless otherwise ordered by the court.
(2) If following review it is determined that reasonable grounds exist for further investigation, the Chief Judge may order such investigation or may issue an order to show cause if the complaint appears to be meritorious. A copy of the order to show cause, the complaint, and accompanying documents shall be mailed to the member who is the subject of the complaint. The member shall also receive in the same mailing a copy of this rule and a written statement that the member shall have twenty days from the date of entry of the order to show cause in which to respond.
(3) Alternatively, the Chief Judge may refer the matter to a state disciplinary board for such action as it determines is appropriate.
(f) Conformity with State Discipline. When the respondent has been disbarred or suspended from the practice of law by a state in which the member practices, and the respondent admits the action complained of, or does not respond to the order to show cause, the Chief Judge may enter a final order of the court imposing similar discipline.
(g) Judicial Officer. Upon filing of the response, the Chief Judge may appoint a judge or other judicial officer from within the Eastern District of Tennessee to investigate the allegations of the complaint and the response. The judicial officer shall review all sealed documents related to the disciplinary charges, conduct hearings if necessary, and issue a written recommendation.
(h) Hearings on Disciplinary Charges. A disciplinary hearing shall be held only when the member under investigation has requested such a hearing in a timely response and the judge or the judicial officer has determined that such a hearing is necessary for the proper disposition of the charges.
(2) Conduct of the Hearing. The hearing shall be conducted by the judicial officer, who shall have the authority to resolve all disputes on matters of procedure and evidence which arise during the course of the hearing. All witnesses shall testify under penalty of perjury. Such hearings, at the discretion of the judicial officer, shall be confidential and shall be recorded. The record of the hearing shall be kept on file in the clerk's office, under seal.
(3) Rights of the Complainant and the Respondent. During the hearing, the respondent shall be entitled to be represented by counsel, to present witnesses and other evidence, and to confront and cross-examine any adverse witnesses. The judicial officer may permit the complainant to participate in the proceedings through counsel.
(4) Burden of Proof. The respondent's violation of the Code of Professional Conduct or rule or orders of the court shall be proven by clear and convincing evidence. A certified copy of a final order of disbarment or judgment of conviction for a criminal offense, entered in any state or federal court, shall be considered clear and convincing evidence.
(5) Failure to Appear. The failure of the respondent to appear at the hearing shall itself be grounds for discipline under Subsection (a) of this rule.
(2) Exceptions to the Recommendation. The respondent shall have ten days from the date of service of the recommendation in which to file with the clerk a written response to the recommendation. The response shall not exceed twenty-five typewritten pages and shall state concisely any inaccuracies, errors or omissions which warrant a disposition other than that recommended.
(k) Reinstatement. Reinstatement shall be had only upon a petition by the disciplined member. A former member who has been suspended or disbarred from the practice of law by this court because of suspension or disbarment in another court of record may, upon reinstatement to the other court, file a petition for reinstatement to this court. Each petitioner shall pay an application fee to the clerk which is not refundable. The petition shall be filed with the clerk and shall contain a concise statement of the circumstances of the disciplinary proceedings, the discipline imposed, and the grounds that justify reinstatement. The petition shall be signed by the petitioner under penalty of perjury stating that he or she has read the petition and that the factual allegations contained therein are correct to the best of the petitioner's knowledge. The petitioner has the burden of proving by clear and convincing evidence that he or she has the requisite good moral character, ethical standards, professional competence, and learning in the law necessary to serve as an officer of the court and to be readmitted to the practice of law.
(2) Reinstatement of disbarred or indefinitely suspended lawyers shall not be automatic. Reinstatement of these disciplined members shall be had only upon a petition for good cause shown. Upon the filing of such a petition, the court shall review it to determine whether there is clear and convincing evidence that the petitioner meets the qualifications for reinstatement. The court in its discretion may order such investigation as it deems necessary and may order that a public hearing be conducted regarding any petition.
(3) If a petition is denied after an investigation or hearing, the court may assess the costs of the proceedings against the petitioner.
(4) No petitions for reinstatement under this rule shall be filed within one year following an adverse determination upon a prior petition filed by the same petitioner.
(b) Disclosure of Report. Not less than thirty-five (35) days prior to the date set for sentencing, the probation officer shall disclose the presentence investigation report to the defendant and to counsel for the defendant and the government. Disclosure to defense counsel shall constitute disclosure to the defendant.
(c) Objections to Report. Within fourteen (14) days after receiving the presentence report, counsel shall communicate to the probation officer any objections they may have as to any material information, sentencing classification, sentencing guideline ranges, and policy statements contained in or omitted from the report. Such communication must be in writing and shall be entitled "Objections of (Defendant) (Government) to Presentence Report." The party filing such a statement with the probation officer shall provide a copy to all other parties. Each objection to a factual determination shall be supported by an affidavit in support thereof.
(d) Revisions. After receiving counsel's objections, the probation officer shall conduct any further investigation and make any revisions to the presentence report that may be necessary. The probation officer may require counsel for both parties to meet with the officer to discuss unresolved factual and legal issues.
(e) Summary of Objections. Not later than seven (7) days prior to the date of the sentencing hearing, the probation officer shall submit the presentence report to the sentencing judge. The report shall be accompanied by an addendum setting forth any objections counsel may have made that have not been resolved, together with the officer's comments thereon. The probation officer shall certify that the contents of the report, including any revisions thereof, have been disclosed to the defendant and the government, that the content of the addendum has been communicated to counsel, and that the addendum fairly states any remaining objections.
(f) New Objections; Resolving Disputes. Except with regard to any objections made under Subdivision 27.3 that have not been resolved, the report of presentence investigation may be accepted by the court as accurate. In resolving disputed issues of fact, the court may consider any reliable information presented by the probation officer, the defendant, or the government.
(g) Modifying Deadlines. The times set forth in this rule may be modified by the court for good cause shown, except that the fourteen (14) day period set forth in Subsection 83.9(c) may be diminished only with the consent of the defendant and the government.
(h) Limits of Disclosure. Nothing in this rule requires the disclosure of any portions of the presentence report that are not disclosable under Rule 32 of the Federal Rules of Criminal Procedure.
(i) When Disclosure is Effected. The presentence report shall be deemed to have been disclosed (1) when a copy of the report is physically delivered, (2) one day after the report's availability for inspection is orally communicated, or (3) three (3) days after a copy of the report or notice of its availability is mailed.
(j) Copies of Reports. The United States Probation Office shall provide the defendant and the defendant's counsel with one (1) copy of the presentence report except for any information that may remain confidential under Rule 32(c) (3) of the Federal Rules of Criminal Procedure. If any portion of the report provided would, in the opinion of the United States Probation Office, pose a danger to persons housed in a local detention facility, the United States Probation Office shall so advise the district judge before releasing the presentence report.
(2) You shall not leave the judicial district or other specified geographic area without the permission of the court or probation officer;
(3) You shall report to the probation officer as directed by the court or probation officer and shall submit a truthful and complete written report within the first five (5) days of each month;
(4) You shall answer truthfully all inquiries by the probation officer and follow the instructions of the probation officer;
(5) You shall support your dependents and meet other family responsibilities;
(6) You shall work regularly at a lawful occupation unless excused by the probation officer for schooling, training, or other acceptable reasons;
(7) You shall notify the probation officer within seventy-two (72) hours of any change in residence or employment;
(8) You shall refrain from excessive use of alcohol and shall not purchase, possess, use, distribute, or administer any narcotic or other controlled substance, or any paraphernalia related to such substances, except as prescribed by a physician;
(9) You shall not frequent places where controlled substances are illegally sold, used, distributed, or administered, or other places specified by the court;
(10) You shall not associate with any persons engaged in criminal activity and shall not associate with any person convicted of a felony unless granted permission to do so by the probation officer;
(11) You shall permit a probation officer to visit at any time at home or elsewhere and shall permit confiscation of any contraband observed in plain view by the probation officer;
(12) You shall notify the probation officer within seventy-two (72) hours of being arrested or questioned by a law enforcement officer;
(13) You shall not enter into any agreement to act as an informer or a special agent of a law enforcement agency without the permission of the court;
(14) As directed by the probation officer, you shall notify third parties of risks that may be occasioned by your criminal record or personal history of characteristics and shall permit the probation officer to make such notification and to confirm your compliance with such notification requirement.
Pursuant to 18 U.S.C. §§ 3142(c)(1)(B)(xi) and Rule 46(d) of the Federal Rules of Criminal Procedure, the following procedures shall govern the making of bonds by real property in this district:
2. The clerk or the clerk's deputy shall be named as the trustee in the deed of trust and the United States of America shall be named as beneficiary of the trust.
3. The deed of trust shall contain, inter alia, a recitation of the amount of money bail which it secures and a statement in boldface type as follows: "THIS INSTRUMENT IS EXECUTED FOR THE PURPOSES OF SECURING AND MAKING CERTAIN THE PAYMENT OF SAID BOND AND ANY AND ALL RENEWALS OR INCREASES THEREOF."
4. The deed of trust will not be released automatically upon any exoneration of the obligors. The clerk is authorized to execute a release on behalf of the court after proper application to him is made and he is satisfied that the obligor(s) should be released from further obligation. Application shall be made by way of a proposed agreed order or written stipulation signed by defendant's attorney, or defendant if pro se, and the cognizant assistant United States Attorney.
5. Every surety attempting to make a property bond shall justify by affidavit completed on the reverse side of the appearance bond form (AO98)2 and setting forth in that affidavit the following:
(b) Who the owner(s) of the property is(are);
(c) All encumbrances or debts, if any, against that property whether of record or not which are not set forth in the aforementioned deed of trust or stating that there are none;
(d) The number and amount of other bonds and undertakings for bail entered into by the surety and remaining undischarged or stating that there are none if there are none;
(e) A statement of the surety's opinion of the present market value of the real property and a statement of the surety's net worth (this may be stated in the form: "at least $ ");
(f) A statement as follows: "This instrument and the associated deed of trust are executed for the purpose of securing the bond set forth on the first page of this form."
7. The aforementioned appearance bond form (AO98) shall be signed on the front page by the defendant and, in addition, by any person(s) signing as sureties. Their addresses shall be printed legibly or typed. It shall be completed on the reverse page as indicated in paragraph 5 above.
8. The surety shall also present the judicial officer with sufficient written evidence of the present fair market value of the real property, e.g., by a statement from the county's tax assessor regarding the value of the property for tax purposes or an appraisal from a competent, independent appraiser.
9. In addition to a recorded deed of trust in the form stated above, an executed appearance bond (AO98) in the form stated above and written evidence of the value of the property, the judicial officer shall also be presented with a title letter from a licensed attorney setting forth the results of that attorney's examination of the record title.
10. No bond shall be approved unless the surety thereon appears to be qualified. The judicial officer may choose to waive one or more of the requirements of this provision in appropriate cases (e.g., small property bonds).
NOTE: The rules are numbered to conform with the Uniform Numbering System for Local Rules approved by the United States Judicial Conference. In some instances, there are no local rules that pertain to the Uniform Numbering System and those numbers have been omitted.