Can the Tennessee legislature force the Supreme Court to discipline lawyers, or make breaking the lawyer ethics rules a crime?

Plain-English summary

Senator Randy McNally asked the AG two related separation-of-powers questions about who controls the regulation of lawyers. The first question came in two parts: could the legislature pass a law requiring the Tennessee Supreme Court to establish guidelines for disciplining lawyers who default on student loans? Or, equivalently, could the legislature add lawyers to the broader 1999 statute that requires licensing authorities to suspend, deny, or revoke licenses for student-loan default? The second question, also in two parts, asked whether the legislature could criminalize specific lawyer conduct already addressed by the Tennessee Rules of Professional Conduct, like knowingly lying to a tribunal (Rule 3.3) or knowingly defaming someone in extrajudicial statements.

On Question 1, AG Cooper's answer was no. The Tennessee Supreme Court has constitutional supervisory power over the courts (Tenn. Const. art. VI, § 1), and that includes the "fundamental right to prescribe and administer rules pertaining to the licensing and admission of attorneys" (In re Petition of Burson). The legislature has a legitimate police-power interest in protecting the public, which means it can supplement or aid the Court's regulation. But it cannot directly conflict with or supersede the Court's regulatory authority. Forcing the Court to adopt particular discipline rules, or directly imposing license suspension on attorneys for defaulting on student loans, crosses that line. The opinion notes that the Court has since proposed an amendment to Supreme Court Rule 9 covering this conduct, which may moot the first question, but the constitutional analysis remains.

On Question 2, the answer is "it depends." The legislature has the constitutional power to define crimes (State v. Hale). A criminal statute is constitutional if it is "supplemental to and in aid of" the Court's regulation. So criminalizing knowingly false statements to a tribunal (Rule 3.3 conduct) might survive if framed as supplemental, as the Kentucky Supreme Court held in Chambers v. Stengel. But the Pennsylvania Supreme Court reached the opposite conclusion in Commonwealth v. Stern, holding that a "word for word restatement" of a Rule of Professional Conduct as a crime unconstitutionally usurped the court's supervisory authority. Tennessee courts could go either way. There is also a separate constitutional risk: criminal sanctions on lawyer conduct can chill effective assistance of counsel (U.S. Const. amend. VI; Tenn. Const. art. I, §§ 8, 9), interfering with criminal defendants' right to a complete defense (State v. Ostein; Pylant v. State).

The defamation-criminalization question is harder. There is no Tennessee Supreme Court rule directly addressing knowing extrajudicial defamation by a lawyer (Rules 3.6, 4.1, 8.4(c) come close but do not match exactly). A statute on this conduct might be characterized as supplementing Supreme Court rules (constitutional) or going beyond them (an unconstitutional encroachment).

Currency note

This opinion was issued in 2010. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

In particular, the Tennessee Supreme Court Rule 9 (lawyer discipline) and Rules of Professional Conduct have been amended multiple times since 2010. Anyone relying on the specific rule text discussed here should pull the current version from the Tennessee Supreme Court's website.

Common questions

Q: Why is regulating lawyers the Supreme Court's job and not the legislature's?
A: Because Tenn. Const. art. VI, § 1 vests the judicial supervisory power of the state in the Supreme Court, and the Tennessee Supreme Court has held that this includes the "fundamental right to prescribe and administer rules pertaining to the licensing and admission of attorneys." In re Petition of Burson (1994). The legislature has a legitimate police-power interest in protecting the public, but that interest cannot override the Court's primary authority.

Q: What does "supplemental to and in aid of" mean?
A: It is the test from Newton v. Cox (Tenn. 1994). A legislative enactment is constitutional if it works alongside the Supreme Court's rules, expanding or supporting them without contradicting them. It is unconstitutional if it directly conflicts with or totally abrogates the Court's authority.

Q: Could the legislature pass a law saying lawyers who don't pay child support lose their license?
A: Probably not in the form of a direct mandate. Under this opinion's reasoning, requiring the Supreme Court to discipline lawyers for specific conduct invades the Court's exclusive regulatory authority. The legislature could declare child-support default a basis for discipline, leaving discretion to the Court to act, and arguably get away with it as a "supplement." But forcing a particular sanction is the wrong move.

Q: What about making it a crime for a lawyer to lie under oath in court?
A: That is already a crime (perjury, Tenn. Code Ann. § 39-16-702 et seq.). The trickier question is criminalizing conduct beyond perjury that is regulated by Rule 3.3 of the Rules of Professional Conduct, like failing to disclose adverse legal authority. The Kentucky Supreme Court in Chambers v. Stengel allowed such a statute as supplementary; the Pennsylvania Supreme Court in Commonwealth v. Stern struck a similar one down. Tennessee precedent is not directly on point.

Q: How does effective assistance of counsel come in?
A: A statute that exposes lawyers to harsh criminal penalties for conduct in representing clients can chill zealous advocacy. If the chilling effect is severe enough, it can interfere with criminal defendants' Sixth Amendment right to effective counsel and present-a-complete-defense due process rights. State v. Ostein. The opinion flags this as a separate constitutional risk on top of the separation-of-powers concern.

Q: What about defamation by a lawyer in press conferences or public statements outside court?
A: There is no Supreme Court rule directly on point. Three rules touch on extrajudicial statements: Rule 3.6 (trial publicity), Rule 4.1 (truthfulness in statements to others), and Rule 8.4(c) (dishonesty/fraud). A criminal statute aligned with these rules might be supplementary; one going beyond them risks being struck down as encroachment.

Q: What's the practical takeaway for a legislator drafting a bill on lawyer conduct?
A: First, see if the Supreme Court has a rule. If yes, the safest move is to draft a statute that aids enforcement of that rule rather than restating or contradicting it. Second, avoid mandating particular sanctions; leave discretion to the Court. Third, calibrate criminal penalties carefully so they do not chill effective representation.

Q: What happened with the student-loan question?
A: The opinion notes that, after the request was filed but before the opinion issued, the Tennessee Supreme Court proposed an amendment to Supreme Court Rule 9 covering attorney discipline for student-loan default. If that amendment passed, the legislature's first question may be moot, since the Court would already be doing what the legislature wanted (without being told to do so).

Background and statutory framework

Tennessee's allocation of regulatory power over lawyers follows a familiar pattern: the courts hold the primary authority by virtue of constitutional supervisory power, and the legislature retains a residual police-power interest in protecting the public. The Tennessee Supreme Court's authority is grounded in Tenn. Const. art. VI, § 1 and reinforced by case law. Belmont v. Board of Law Examiners (Tenn. 1974) confirmed that the judicial supervisory power lies with the Supreme Court. In re Petition of Burson (Tenn. 1994) extended that to "rules pertaining to the licensing and admission of attorneys." Newton v. Cox (Tenn. 1994) provided the working test for legislative encroachment: a statute that supplements and aids the Court's regulation is constitutional; a statute that "directly conflicts with or totally abrogates" the Court's authority is not.

The 1999 Tennessee Public Acts Chapter 476 illustrates how the supplementary-or-conflicting line operates. That Act required licensing authorities to suspend, deny, or revoke any license for default on student-loan or service-conditional scholarship obligations. The Act could be applied to most professional licenses without separation-of-powers concern: a board licensing dentists, electricians, or hairdressers can be required by the legislature to act on student-loan defaults because those boards exist by statutory grace. Lawyer licenses are different. The Tennessee Supreme Court holds the licensing authority directly under the constitution. Adding lawyers to Chapter 476 would directly require the Court to take regulatory action that the Court has not chosen to take, which is the kind of conflict the Court has marked off-limits.

The criminal-statute side of the analysis is more nuanced. The legislature's power to define crimes is broad (State v. Hale (Tenn. 1992)), but criminal statutes regulating the practice of law must be consistent with the Supreme Court's rules. Newton v. Cox. The opinion catalogues split out-of-state authority. Kentucky upheld a criminal statute prohibiting a lawyer from soliciting personal injury clients within a specified period after an accident, treating it as supplementary to the Kentucky Rules of Professional Conduct. Chambers v. Stengel (Ky. 2001), aff'd 256 F.3d 397 (6th Cir. 2001). Pennsylvania struck down a criminal statute that was a "word for word restatement" of a state Rule of Professional Conduct, finding it unconstitutional because it covered "the conduct of attorneys that is the subject of regulation by the Supreme Court." Commonwealth v. Stern (Pa. 1997).

The Tennessee Supreme Court has not directly resolved this question. The opinion is therefore cautious. A criminal statute that mirrors Rule 3.3(a) might be characterized as supplementing the rule (since it adds a criminal sanction the rule itself cannot impose) or as conflicting (since it punishes conduct the Court has chosen to address with discipline rather than criminal sanctions). The opinion notes the risk on both sides without resolving it.

The effective-assistance-of-counsel layer cuts independently. State v. Ostein (Tenn. 2009) and Pylant v. State (Tenn. 2008) describe defense counsel's duty to present all substantial defenses. A criminal statute that imposes severe sanctions on lawyer conduct in representing clients can produce a chilling effect, deterring lawyers from raising arguments or making statements they would otherwise make. If that chill becomes severe enough to interfere with the defendant's complete-defense rights, the statute itself may be unconstitutional under the Sixth and Fourteenth Amendments and Article I, §§ 8 and 9 of the Tennessee Constitution.

The defamation-criminalization question has no direct Court rule analog. Rule 3.3 (candor to tribunals) does not extend to extrajudicial statements. Rule 3.6 (trial publicity) restricts statements that may materially prejudice an adjudicative proceeding. Rule 4.1 prohibits false statements of material fact to third parties in the course of representation. Rule 8.4(c) prohibits dishonesty, fraud, deceit, or misrepresentation in conduct generally. None of these is a defamation rule per se. A criminal statute on lawyer defamation might thus look more like an addition than a duplication, but the Court could still characterize it as covering "conduct of attorneys that is the subject of regulation by the Supreme Court" under the Stern logic.

Citations and references

Statutes and constitutional provisions:

• Tenn. Const. art. II, §§ 1, 2 (separation of powers)
• Tenn. Const. art. VI, § 1 (judicial supervisory power)
• Tenn. Const. art. I, §§ 8, 9 (due process; right to counsel)
• U.S. Const. amend. VI; XIV
• 1999 Tennessee Public Acts, Chapter 476 (license suspension for student loan default)

Tennessee Supreme Court Rules and Rules of Professional Conduct:

• Tennessee Supreme Court Rule 9 (attorney discipline)
• TRCP 3.3(a) (candor to tribunal)
• TRCP 3.6(a) (trial publicity)
• TRCP 4.1(a) (truthfulness in statements to others)
• TRCP 8.4(c) (dishonesty, fraud, deceit, misrepresentation)

Cases:

• Belmont v. Board of Law Examiners, 511 S.W.2d 461 (Tenn. 1974), Tennessee Supreme Court
• In re Petition of Burson, 909 S.W.2d 768 (Tenn. 1994), Tennessee Supreme Court (Court's fundamental right to regulate attorneys)
• Newton v. Cox, 878 S.W.2d 105 (Tenn. 1994), Tennessee Supreme Court (supplemental-or-conflicting test)
• State v. Hale, 840 S.W.2d 307 (Tenn. 1992), Tennessee Supreme Court (legislature's criminal-defining power)
• State v. Jackson, 2009 WL 3321179 (Tenn. Crim. App. Oct. 14, 2009), Tennessee Court of Criminal Appeals
• Chambers v. Stengel, 37 S.W.3d 741 (Ky. 2001), Kentucky Supreme Court (criminal solicitation statute upheld)
• Chambers v. Stengel, 256 F.3d 397 (6th Cir. 2001), federal court of appeals
• Commonwealth v. Stern, 701 A.2d 568 (Pa. 1997), Pennsylvania Supreme Court (word-for-word restatement struck)
• State v. Ostein, 293 S.W.3d 519 (Tenn. 2009), Tennessee Supreme Court (complete-defense due process)
• California v. Trombetta, 467 U.S. 479 (1984), U.S. Supreme Court
• Pylant v. State, 263 S.W.3d 854 (Tenn. 2008), Tennessee Supreme Court (effective assistance of counsel)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2010/op10-024.pdf

Original opinion text

Separation of powers with regards to the regulation of the practice of law

QUESTIONS

1. Would an act requiring the Tennessee Supreme Court to establish guidelines regarding the consequences on attorney licenses for defaulting on a student loan violate Article II, Sections 1 and 2, or any other provision of the Tennessee Constitution? Similarly, would an act including attorneys within the license suspension, denial or revocation provisions of Chapter 476 of the 1999 Tennessee Public Acts violate Article II, Sections 1 and 2, or any other provision of the Tennessee Constitution?

2. Would Article II, Sections 1 and 2, or any other provision of the Tennessee Constitution be violated by legislation that made the prohibition of knowingly making false statements to a tribunal or failing to disclose pertinent information to a tribunal found in Rule 3.3 of the Tennessee Rules of Professional Conduct a criminal offense? Further, would legislation establishing a statutory criminal offense of knowing defamation by a lawyer in statements made relative to, but outside of, judicial proceedings in which the lawyer is professionally involved violate Article II, Sections 1 and 2, or any other provision of the Tennessee Constitution?

OPINIONS

1. Yes, an act requiring the Tennessee Supreme Court, which has primary authority to regulate the practice of law including the requirements for professional licenses, to establish such guidelines would be an unconstitutional violation of the separation of powers doctrine set forth in Article II, Sections 1 and 2. However, the question may prove moot because, since the submission of this opinion request, the Tennessee Supreme Court has proposed an amendment to Tennessee Supreme Court Rule 9 that sets forth guidelines for disciplinary action against attorneys who default on their student loans. Similarly, an act that requires the Supreme Court to suspend, deny or revoke the license of an attorney for a particular offense is unconstitutional. Legislation that directly conflicts with or diminishes the Tennessee Supreme Court's inherent constitutional authority to regulate the practice of law violates the separation of powers doctrine set forth in Article II, Sections 1 and 2, and is therefore unconstitutional.

2. It depends. The power to define what constitutes a criminal offense belongs to the Legislature, subject to constitutional limitations and safeguards. A criminal statute regarding the practice of law could be seen as a constitutional supplement or aid to the Supreme Court's regulation of the field. However, there is a risk that a criminal statute could be deemed to directly conflict with the Court's rule and thus unconstitutional since the punishment for such act occurring in the practice of law exceeds the range of punishment the Tennessee Supreme Court has established for the same conduct. Additionally, a statute criminalizing the conduct of attorneys could be unconstitutional if it is deemed to interfere with a defendant's constitutional right to effective assistance of counsel.

ANALYSIS

1. The judicial supervisory power of the State lies with the Tennessee Supreme Court. Tenn. Const. art. VI, §1; see also Belmont v. Board of Law Examiners, 511 S.W.2d 461, 463-64 (Tenn. 1974). That inherent, constitutional power includes the "fundamental right to prescribe and administer rules pertaining to the licensing and admission of attorneys." In re Petition of Burson, 909 S.W.2d 768, 773-74 (Tenn. 1994). There are areas in which both the judicial and the legislative branches have an interest and can therefore constitutionally exercise authority. Newton v. Cox, 878 S.W.2d 105, 111 (Tenn. 1994). Since the Legislature has an interest in protecting the public, the practice of law and regulation of attorneys is one such area. See id. However, this interest does not give the Legislature the power to supersede the Court's authority. If a statute supplements and aids the Supreme Court's regulation of the practice of law, it is constitutional. Id. However, when a "legislative enactment is in direct conflict with or totally abrogates the Court's authority with regard to the practice of law, the statute is unconstitutional." Id.

The first part of the request asks for an opinion on whether requiring the Supreme Court to establish guidelines regarding the consequences on attorney licenses for defaulting on student loans would violate Article II, Sections 1 and 2 or any other provision of the Tennessee Constitution. An act requiring the Court to establish such guidelines would be unconstitutional for the reasons stated above. Since the submission of this opinion request, the Supreme Court of Tennessee has proposed an amendment to Tennessee Supreme Court Rule 9 which, if passed, would establish such guidelines. Therefore, the first question in the request may be rendered moot.

The second part of the request hypothesizes an act that includes attorneys within the license suspension, denial or revocation provisions of Chapter 476 of the 1999 Tennessee Public Acts. Chapter 476 requires licensing authorities to suspend, deny or revoke the license of any person who has defaulted on a repayment or service obligation under student loan or service-conditional scholarship programs. 1999 Tenn. Pub. Acts 476. Therefore, the prospective act would require the Tennessee Supreme Court to take regulatory action against an attorney in certain circumstances.

The Legislature cannot usurp the Supreme Court's authority to regulate the practice of law by requiring it to discipline attorneys for certain behavior. Since the Supreme Court has not yet enacted a rule which disciplines attorneys for defaulting on a loan program, such act by the Legislature would be in direct conflict with the Supreme Court's authority and therefore unconstitutional. Even if the Supreme Court creates such a rule, the Legislature could only constitutionally pass an act which would aid or supplement that rule, not one which required the Supreme Court to take any action.

2. While the Supreme Court has the authority to regulate attorneys and the practice of law, "the power to define what shall constitute a criminal offense is committed to the discretion of the Legislature, subject to constitutional limitation and safeguards. . . ." See State v. Hale, 840 S.W.2d 307, 314 (Tenn. 1992); see also State v. Jackson, No. M2008-00636-CCA-R3-CD, 2009 WL 3321179, at *9 (Tenn. Crim. App. Oct. 14, 2009). Since the Supreme Court has the constitutional authority to regulate the practice of law, any criminal statute regarding such regulation must be consistent with the Supreme Court's rules. See Newton, 878 S.W.2d at 112.

Rule 3.3 of the Tennessee Rules of Professional Conduct specifically prohibits the behavior described by the part of the contemplated criminal statute. Under Rule 3.3(a), a lawyer shall not knowingly:
(1) make a false statement of fact or law to a tribunal; or
(2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or
(3) in an ex parte proceeding, fail to inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse.

TRCP 3.3(a) (2008).

Although there is no Supreme Court Rule which specifically addresses knowing defamation by a lawyer in statements made outside of judicial proceedings, there are three Rules that address extrajudicial statements. With regards to trial publicity, Rule 3.6(a) of the Tennessee Rules of Professional Conduct states:
(a) A lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding.

TRCP 3.6(a) (2008). Rule 4.1(a) addresses truthfulness and candor in statements to others:
(a) In the course of representing a client, a lawyer shall not knowingly make a false statement of material fact or law to a third person.

TRCP 4.1(a) (2008). Finally, under Rule 8.4(c), it is considered professional misconduct for an attorney to:
(c) engage in conduct involving dishonesty, fraud, deceit, or misrepresentation;

As previously discussed, a statute is constitutional if it is "supplemental to and in aid of" a Supreme Court regulation of the practice of law. See Newton, 878 S.W.2d at 112. Since the Tennessee Supreme Court has already declared that the conduct outlined in Rule 3.3(a) is prohibited, a statute making it a criminal offense for an attorney to knowingly making false statements to a tribunal could be viewed as a valid use of the Legislature's police powers and an enhancement to the underlying policy of the Supreme Court rule. See Chambers v. Stengel, 37 S.W.3d 741, 741-44 (Ky. 2001); upheld by Chambers v. Stengel, 256 F.3d 397, 402 (6th Cir. 2001). However, some jurisdictions have found that the Legislature overstepped its boundaries by imposing a criminal sanction for violations of a comparable Supreme Court rule. See Commonwealth v. Stern, 701 A.2d 568, 570-73 (Pa. 1997). In Commonwealth, the Pennsylvania Supreme Court noted a criminal statute, which was a "word for word restatement" of a rule in the Pennsylvania Rules of Professional Conduct, effectively criminalized "the conduct of attorneys that is the subject of regulation by the Supreme Court." Id. at 573. Since the Pennsylvania Supreme Court has the inherent authority to supervise the conduct of attorneys, the Court found that the criminal statute unconstitutionally infringed upon its authority. Id. The criminal statute in question attempts to further sanction an act already regulated by the Supreme Court. Therefore, it could be deemed to directly conflict with the Court's rule, making it unconstitutional.

Since the Supreme Court has not imposed a rule that directly contemplates "knowing defamation" by an attorney outside of a judicial proceeding, an act by the Legislature attempting to regulate the practice of law by criminalizing such attorney conduct may be unconstitutional. If the Legislature enacted a statute with language similar to the that found in Rules 3.6(a), 4.1(a) and 8.4(c) of the Tennessee Rules of Professional Conduct, the statute may be mere support to the Supreme Court rules and thus constitutional. See Newton, 878 S.W.2d at 112. However, a statute that goes beyond the Tennessee Rules of Professional Conduct may be an abrogation of the authority of the Supreme Court. Therefore, a criminal statute addressing conduct by attorneys could constitute a violation of Article II, Sections 1 and 2 of the Tennessee Constitution.

Concerns about the validity of the statute also arise if it interferes with a defendant's right to due process and effective assistance of counsel under the United States and Tennessee Constitutions. U.S. Const. amend VI & XIV; Tenn. Const. art I, §§ 8 & 9. "The Due Process Clause of the Fourteenth Amendment requires that criminal prosecutions 'comport with prevailing notions of fundamental fairness', and this standard of fairness requires that criminal defendants 'be afforded a meaningful opportunity to present a complete defense.'" State v. Ostein, 293 S.W.3d 519, 535-7 (Tenn. 2009), quoting California v. Trombetta, 467 U.S. 479, 485 (1984). Included in the presentation of a complete defense is the right to the effective assistance of counsel. See U.S. Const. amend. VI; Tenn. Const. art. I, § 9. See also Ostein, 293 S.W.3d at 537. Defense counsel must present all substantial defenses in order to be effective. Pylant v. State, 263 S.W.3d 854, 868-9 (Tenn 2008). The Tennessee Supreme Court has held that the "adversary system requires all defenses to be raised so that the government is put to its proof." Id. While there is no constitutional right for criminal defendants to knowingly present false evidence or knowingly make false statements, there is a risk that such a criminal statute could impose a punishment on the attorney so severe as to create a "chilling effect" and thereby interfere with the criminal defendant's constitutional right to the effective assistance of counsel. Therefore, a criminal statute may violate the United States and Tennessee Constitutions if it is found to obstruct a criminal defendant's right to present a complete defense by regulating the practice of law.

ROBERT E. COOPER, JR.
Attorney General and Reporter

BARRY TURNER
Deputy Attorney General

ANNE SIMMONS
Assistant Attorney General

Requested by:
The Honorable Randy McNally
State Senator
307 War Memorial Building
Nashville, TN 37243-0205