Can a local bar association conduct a poll rating judicial candidates and let member attorneys vote anonymously, without violating Tennessee's signed-political-material statute?

Currency note

This opinion was issued in 1982, before Tennessee's adoption of the 2003 Rules of Professional Conduct, which replaced the former Code of Professional Responsibility. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Plain-English summary

A local bar association asked about the propriety of conducting a bar poll, prompted by a suggestion that attorneys who anonymously signed the ballots were violating T.C.A. 2-19-120, which requires written or printed political circulars, advertisements, or other statements about a candidate for public office to be signed by the writer or, if issued by a committee or association, by the names of its principal officers.

The opinion observed that the Code of Professional Responsibility, particularly EC 8-6, encourages bar polls, and that if the statute prohibited the activity, DR 1-102 would likewise prohibit it. It concluded the statute does not apply here: the clause requiring signature "with the names of the principal officers" when a statement purports to be issued by a committee or association shows the legislature contemplated and permitted bar polls, reported under the names of the sponsoring association's officers. The opinion rejected the suggestion that the anonymous individual votes, rather than the poll itself, violate the statute, reasoning that the Tennessee Supreme Court in State v. Acey read the statute as concerned with individuals who anonymously publish or distribute campaign literature, and a bar poll vote is neither campaign literature nor a statement about a candidate but part of a collective consensus. The opinion further reasoned that if the statute did reach anonymous individual votes, it would be overbroad and violate free-speech protections, noting Acey had upheld the statute as narrower than the ordinance struck down in Talley v. California.

The opinion concluded that the Code encourages bar polls and the statute does not prohibit them: the poll itself may be reported under the names of the association's officers, while individual votes may remain anonymous, because the statute's target is anonymous campaign literature, not anonymous votes. One committee member dissented.

Common questions

Q: Can bar association members vote anonymously in a poll rating judicial candidates?

A: Yes. The opinion holds "the individual votes may be made anonymously as it is clearly the intention of the statute to prohibit anonymous literature, not votes."

Q: Does the bar poll itself need to be signed or attributed?

A: Yes, to the sponsoring association. The statute's clause covering statements "issued by any committee, organization or other similar associations" requires those to "be signed with the names of the principal officers of such association," which the opinion reads as permitting bar polls reported under the officers' names.

Q: Does the Code of Professional Responsibility favor or disfavor bar polls?

A: It favors them. The opinion states "the Code of Professional Responsibility encourages this activity," citing EC 8-6.

Background and rules framework

The opinion applied Disciplinary Rule 1-102 of the Tennessee Code of Professional Responsibility (which would have barred the conduct only if the underlying statute prohibited it) and Ethical Consideration 8-6, together with T.C.A. 2-19-120, Tennessee's signed-political-material statute. The modern correlate is Model Rule 8.4 (misconduct), noted here as a navigational cross-reference rather than a rule the opinion itself applied.

Citations and references

Rules of Professional Conduct:

• DR 1-102 and EC 8-6, Tennessee Code of Professional Responsibility
• Model Rule 8.4 (misconduct), modern correlate

Statutes:

• T.C.A. 2-19-120 (signed political circulars or advertisements)

Cases:

• State v. Acey (Tenn. Sup. Ct., Jackson, May 17, 1982), upholding T.C.A. 2-19-120 as narrower than the ordinance struck down in Talley
• Talley v. California, 362 U.S. 60 (1960), striking down an anonymous-literature ordinance as overbroad

See also

• WI Ethics Op. I-1-73: What Activities May a Lawyer Ethically Engage in When Campaigning for Judges?

Source

• Landing page: https://www.tbpr.org/ethic_opinions/82-f-33

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

82-F-33 - Constitutionality of Bar Polls

BOARD OF PROFESSIONAL RESPONSIBILITY OF THE SUPREME COURT OF TENNESSEE

FORMAL ETHICS OPINION 82-F-33

An inquiry has been made by a local bar association concerning the propriety of conducting a bar poll.

It is suggested that the attorneys who anonymously sign the ballots are in violation of T.C.A. Section 2-19-120.

2-19-120. Political circulars or advertisements to be signed. All written or printed circulars, advertisements or other statements with reference to any person who is a candidate for any public office in this state shall be signed by the writer thereof, or, if the same purport to be issued by any committee, organization or other similar associations, the same shall be signed with the names of the principal officers of such association. Any person or persons violating this section shall be guilty of a misdemeanor.

(Acts 1972 (Adj. S.). Ch. 740, Sec. 1; T.C.A. 2-1920.)

It is clear that the Code of Professional Responsibility encourages this activity. See particularly EC 8-6.

However, if the above statute prohibits this activity, then DR 1-102 would likewise prohibit it.

It appears that this statute does not apply to the situation at issue here. The clause, "if the same purport to be issued by any committee, organization or other similar associations, the same shall be signed with the names of the principal officers of such associations," should be noted. This clearly indicates the legislative intent that bar polls are permissible. It is suggested that it is the anonymous individual votes, and not the poll, that is in violation of the statute. This interpretation is in error.

As recognized by the Supreme Court, the statute is concerned with "individuals who anonymously publish or distribute campaign literature," State v. Acey, S.W. 2d, (Supreme Court at Jackson, May 17, 1982). A bar poll vote is not campaign literature nor a statement about a candidate. The statute prohibits an individual's position; however, a bar poll is not an individual position, but a consensus.

To hold that T.C.A. Section 2-19-120 prohibits these anonymous votes would be to declare that any time an individual mentions that he is voting for a candidate in writing, he must sign that statement. Acey, while finding the statute constitutional would, however, refute this position. The Supreme Court in Acey stated that the instant statute is not as broad as the ordinance prohibited by the U. S. Supreme Court in Talley v. California, 362 U.S. 60, 80 S.Ct. 536, 4 LED 2d 559 (1960), and, therefore, the Tennessee statute is constitutional. If this statute prohibits anonymous individual votes, it is overbroad and violates the constitutional protection of free speech.

In conclusion, the Code encourages the bar polls, and the statute does not prohibit them. The statute allows the polls to be reported under the names of the officers. The individual votes may be made anonymously as it is clearly the intention of the statute to prohibit anonymous literature, not votes.

This 18th day of October, 1982.

ETHICS COMMITTEE:

Jack C. Raulston

DISSENTING:

John T. Henniss

APPROVED AND ADOPTED BY THE BOARD