On February 16, 2004, the Tennessee Supreme Court reaffirmed legal consumers' right to free speech by striking down one of its own rules regulating the attorney discipline system. The state's so-called "gag rule" prohibited consumers from speaking publicly-even to family or friends-about an official complaint against a lawyer until a recommendation for public discipline was filed. The Court's decision in John Doe v. Jane Doe stands to shed light on what was considered once of the most closed and secretive discipline systems in the nation.

Tennessee now joins several other states, including Florida, New Hampshire and West Virginia, which have abandoned gag rules in the interest in protecting free speech. HALT Associate Counsel Suzanne Mishkin noted that a more open system helps to restore public confidence in a system that was previously shrouded in mystery. "When a disciplinary body demands that complainants seal their lips after they file a grievance, the public, often rightfully, perceives that the system has something to hide," explained Mishkin. "As United States Supreme Court Justice Louis Brandeis once observed, sunshine is the best disinfectant. We're very pleased the Tennessee Supreme Court has embraced this important principle."

HALT applauds the Tennessee Supreme Court's decision, but cautions that the disciplinary body must take additional measures to ensure a fair system that effectively weeds out unethical attorneys. Mishkin noted, for example, that current disciplinary rules prohibit lay persons from serving on hearing panels. And according to the ABA's most recent survey, three out of every four instances of lawyer discipline in Tennessee is dispensed behind closed doors and is omitted from an attorney's public record.

"We hope that the Supreme Court takes this opportunity to begin a long overdue process of crafting a system that investigates promptly, encourages nonlawyer participation and publicly sanctions lawyers whose misconduct victimizes vulnerable consumers," stated HALT Associate Counsel Suzanne Mishkin. "If Tennessee is serious about protecting legal consumers and holding unscrupulous and incompetent attorneys accountable, the Court's decision should be merely an important first step to reform the state's disciplinary system."

The Tennessee Supreme Court has called for comments on amending the confidentiality rules in May, and HALT intends to submit comments. Stay tuned!