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