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February 23, 2004

Tennessee Loosens Its Discipline Gag Rule

Filed under: pre-06-2006 — David Giacalone @ 10:00 pm

The Tennessee Supreme Court has declared its own confidentiality rule in lawyer discipline matters an unconstitutional restriction on free speech.  In the matter of John Doe v. Jane Doe, the Court refused to hold in contempt the complaining attorney, who had sent copies of her complaint to two other attorneys, a judge and a law clerk. (AP/Tennessean, “Rules on complaints against lawyers lossened,” 02-21-04, via


According to the article in the Tennessean:

Light Bulb  The court proposed a new rule to replace the one it declared unconstitutional. It will receive comment from interested parties before adopting the new rule permanently. The new rule keeps most of the records of the Board of Professional Responsibility closed. But it would loosen restrictions on what participants in such cases can say publicly.

In protecting the bar from frivolous complaints, the court adopted the reasoning of a federal district court in Florida, which said in a similar case:

”The idea that the suppression of truthful criticism of lawyers would somehow enhance or protect the reputation of the bar is not persuasive. To the contrary, continuing the prohibitory effect of the rule after a grievance against an attorney is found to be meritorious is far more likely to engender suspicion than foster confidence.”

ethicalEsq has discussed similar discipline gag rules at length, here.  HALT’s Report Card on the Tennessee Disicipline system can be found here.

Postscript (02-27-04):  In a press release dated 2-26-04, HALT applauded this step by the Tenn. Supreme Court, and promised to submit testimony in May on amendments to the Court’s confidentiality rule.

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