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Speech restrictions eased in complaints against lawyers

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Speech restrictions eased in complaints against lawyers

  • A confidentiality rule forbidding anyone from publicly disclosing complaints filed against lawyers was declared unconstitutional in Tennessee, giving the public the ability to know when a complaint has been filed.

March 2, 2004 — The Tennessee Supreme Court last month ruled that a confidentiality requirement in attorney misconduct proceedings violates the First Amendment.

By holding that the confidentiality rule was unconstitutional, the court said participants of attorney misconduct hearings can now speak freely about the filing of complaints.

In the case of two lawyers identified as John Doe v. Jane Doe, Jane sent a letter to two other attorneys, a judge and a trial court clerk in response to disciplinary complaints made against her by John. She further wrote about unethical conduct by John.

John responded by filing a petition for criminal contempt sanctions against Jane last May, alleging that she violated a court rule restricting public discussion of a complaint brought before the Tennessee Board of Professional Responsibility. The rule made all records and proceedings, which begin with the filing of a complaint, confidential.

“All participants in the proceedings shall conduct themselves so as to maintain the confidentiality of the proceeding,” the rule stated.

Jane contended that the confidentiality requirement violated her constitutional right to free speech, prompting the court to review its own rule. On Feb. 19, the high court held that the provision was in violation of the U.S. and Tennessee constitutions.

“The basic principles of free speech are rights that cannot be impaired in the absence of some compelling state interests,” said Douglas M. Fisher, Jane’s attorney, who later noted that he “can’t remember” the basis of the disciplinary complaint against his client.

The court recognized that the confidentiality requirement was implemented to protect the reputations of lawyers and judges from media scrutiny, but did not find those interests compelling enough to supercede the freedom of speech.

In addressing the interest of protecting a person’s reputation, the court cited a U.S. Supreme Court decision that overturned a Virginia confidentiality provision. “Our prior cases have firmly established . . . that injury to official reputation is an insufficient reason ‘for repressing speech that would otherwise be free.’ The remaining interest sought to be protected, the institutional reputation of the courts, is entitled to no greater weight in the constitutional scales,” the nation’s high court held.

The Tennessee Supreme Court has proposed an amendment to replace the rule, and asked for input from interested parties before declaring the amended rule permanent. The proposed rule keeps all formal proceedings confidential until a decision is made, but allows the parties involved in the case to publicly disclose and discuss that a complaint has been filed, Fisher said.

(John Doe v. Jane Doe; Counsel: Douglas M. Fisher, Howell & Fisher, Nashville, Tenn.) MG

© 2004 The Reporters Committee for Freedom of the Press

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