Academic journal article The University of Memphis Law Review

Professional Responsibility-Doe V. Doe: Free Speech Rights Violated by Requiring Confidentiality of Attorney Misconduct Allegations

Academic journal article The University of Memphis Law Review

Professional Responsibility-Doe V. Doe: Free Speech Rights Violated by Requiring Confidentiality of Attorney Misconduct Allegations

Article excerpt

On March 26, 2003, attorney Jane Doe (Respondent) responded to allegations against her by sending a letter to the Tennessee Board of Professional Responsibility's (Board) Chief Disciplinary Counsel (Counsel).1 She alleged that attorney John Doe (Petitioner) acted unethically.2 Respondent also sent the letter to two attorneys, a judge, and a trial court clerk.3

On May 13, 2003, Petitioner filed a petition for criminal contempt sanctions against Respondent in the Tennessee Supreme Court, alleging that Respondent violated Tennessee Supreme Court Rule 9, section 25.4 Respondent allegedly breached the confidentiality provision in Rule 9, which requires that attorney misconduct allegations be kept confidential, by sending the letter to non-parties of the pending disciplinary proceeding.5 Respondent did not deny that she violated the rules; however, she maintained that she did not do so willfully.6 In an amended response, Respondent also raised the defense that the confidentiality provision violated her right of free speech, which both the United States Constitution and the Tennessee Constitution recognize.7

Instead of conducting an evidentiary hearing on the alleged violation, the Tennessee Supreme Court first ordered both parties to submit briefs on the constitutionality of Rule 9, section 25.8 The court also granted leave for Richard Roe (Roe) to file a brief as amicus curiae9 on the provision's constitutionality.10 In addition, the court requested the State of Tennessee, through the Attorney General, to file a brief and participate in oral argument on the issue.11 Respondent, Petitioner, and Roe all asked the court to declare Rule 9, section 25 unconstitutional as violative of freedom of speech.12 The Attorney General asked the Court to uphold the constitutionality of Rule 9, section 25.13 The Tennessee Supreme Court held, unconstitutional.14 The confidentiality provision in Rule 9, section 25 of the Tennessee Supreme Court Rules violated free speech rights recognized by the United States Constitution's First Amendment and the Tennessee Constitution Article I, section 19. Doe v. Doe, 127 S.W.3d 728, 729 (Tenn. 2004).

Determining if speech regulation is content-based or contentneutral is the first step in analyzing if that regulation is constitutional under the First Amendment and comparable state constitutional rights.15 Such a determination will indicate which level of scrutiny should apply.16 Government regulation of speech that is content-based is presumed to be invalid as a violation of free speech rights and is subject to "the most exacting scrutiny."17 This strict scrutiny standard requires the state to show that the restriction serves a compelling governmental interest and that it is narrowly tailored to accomplish that end.18 Only if the state meets both prongs-the "end" part (i.e. compelling interest) and the "relationship" part (i.e. narrowly tailored)-will the restriction survive the strict scrutiny standard.19

Courts apply strict scrutiny to determine the constitutionality of different types of confidentiality provisions.20 Though the governmental interests for these provisions are usually "legitimate," they often are not "compelling" and thus do not justify a violation of First Amendment rights.21 States routinely advance variations of three interests in attempts to meet the strict scrutiny standard's "end" part.22 These interests include (1) prohibiting reputation damage resultant from unfounded complaints,23 (2) maintaining the public's confidence by preventing disclosure of unfounded claims, and (3) protecting the anonymity of claimants.24

The leading case on confidentiality provisions and First Amendment rights in misconduct allegation cases is Landmark Communications, Inc. v. Virginia.25 In Landmark, the Supreme Court held that the Virginia constitution and statutes26 requiring confidentiality of judicial misconduct proceedings were unconstitutional, but specifically limited application of the holding to third parties or non-participants in proceedings. …

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