# Petition of Tennessee Bar Ass'n

> Tennessee Supreme Court · June 1, 1976 · 539 S.W.2d 805

URL: https://www.frixlaw.com/law-library/cases/9674489

## Case

- **Full name:** Petition of TENNESSEE BAR ASSOCIATION for an Order Requiring Annual License Fee of All Practicing Attorneys for Disciplinary Purpose. Petition of CERTAIN LAWYERS FOR ORGANIZATION OF the STATE BAR
- **Court:** Tennessee Supreme Court
- **Decided:** June 1, 1976
- **Citations:** 539 S.W.2d 805; 1976 Tenn. LEXIS 574
- **Precedential status:** Published
- **Opinion:** Concurrence by Harbison
- **Judges:** Fones, Cooper, Henry, Brock, Harbison
- **Cited by:** 20 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9674489

## How later opinions describe it (automated extraction)

- stating that “no other Court in Tennessee has jurisdiction to review and change or void any Rule promulgated by this Court”

## Opinion text

HARBISON, Justice
(concurring).
I concur in the opinion prepared for the Court by Mr. Justice Fones. I think that a few additional comments about the actions which this Court has taken may be in order.
For many years the Supreme Court of Tennessee has adopted and prescribed professional standards governing the practice of law in this state. Insofar as I am aware, no member of the profession has heretofore challenged in any manner the authority of this Court so to do.
At 185 Tenn. 889 will be found the following order of the Court, included among the Rules of the Tennessee Supreme Court effective August 31, 1948:
*809 “The ethical standards relative to the practice of law, and the administration of the law in this Court shall be the Canons of Professional and Judicial Ethics of the American Bar Association now in force, and as hereinafter modified or supplemented.”
At least since 1903, this Court has had statutory power to appoint a Board of Law Examiners, T.C.A. § 29-101, and to “prescribe rules to regulate the admission of persons to practice law . . . .” T.C.A. § 29-103.
The practice of law is defined in great detail in T.C.A. § 29-302. Only persons duly licensed under the rules and regulations of this Court are entitled to engage therein, T.C.A. § 29-303, and these rules and regulations have for many years required the payment of a license fee.
By its Rule 40, appearing at 192 Tenn. 827 , this Court many years ago provided for the appointment of members of the Bar to investigate grievances or complaints against lawyers charged with misconduct. The Rule also provided for the appointment of counsel to institute disbarment proceedings. This Rule was later readopted as Rule 42, and by order dated July 19, 1965, which is copied verbatim in 1 T.C.A. at pages 176 et seq. (1975 Supp.), the Court, acting upon a petition of the Tennessee Bar Association, set up commissioners for the purpose of investigating complaints of unethical conduct and professional misconduct on the part of attorneys.
To implement enforcement of the standards of professional ethics and responsibility, the order of July 19, 1965 directly involved the Board of Governors of the Tennessee Bar Association and local bar associations, in the manner set out in detail in that Rule. The use of investigative committee reports under Rule 42 has received express sanction by the General Assembly. T.C.A. § 29-309.
In 1974 the Tennessee Bar Association reported to this Court, through its Board of Governors, and by a petition and brief duly filed, that the methods heretofore selected and utilized for the enforcement of the Canons of Ethics, now referred to as the Standards of Professional Responsibility, were no longer practicable or workable. The Tennessee Bar Association had neither the personnel nor the funds with which to make the voluntary system prescribed in Rule 42 effective or operable. Local bar associations continued to function reasonably well in the larger urban centers of the state. Smaller bar associations and unorganized Bars were simply unable to handle the investigation of grievances and the enforcement of standards of professional responsibility. The Tennessee Bar Association therefore requested this Court to revise Rule 42 and the 1965 order above referred to.
It was in response to this petition of the Tennessee Bar Association and upon information developed therefrom that the Court chose a different and alternative method of enforcing the standards of professional ethics and the investigation of grievances. This the Court felt it had to do in the interest of the public and also in the interest of the members of the profession itself.
Instead of relying upon the efforts of the Tennessee Bar Association and the voluntary services of individual lawyers and local bar associations, the Court chose a method by which the financing of grievance investigations and enforcement of professional standards would be shifted to the entire membership of the state’s legal profession and upon all persons holding a license to practice law in this state, with the exceptions set out in the new Rule 42 issued by the Court.
It is difficult to believe that this action on the part of the Tennessee Supreme Court can properly be called a usurpation of power or a violation of constitutional principles or of individual rights. The Court, under Rule 42, is dealing with professional men and is attempting to deal with them in a professional manner. It has called upon them, for the protection of the public and for the protection of the integrity of their own licenses to practice law, to bear, in the form of a very small annual fee, the cost of *810 establishing the office of Disciplinary Counsel and a staff to serve that office.
Neither the undersigned nor any other member of the Tennessee Supreme Court has now or has ever had any desire or intention to exercise unwarranted authority, or to interfere with the freedom or liberty of any individual or professional man. Both by statute and by inherent authority, however, this Court has long had and has exercised the role of prescribing and seeking to enforce and uphold the standards of professional responsibility in this State. The Court has chosen for this purpose a different method from that followed in the past for many years, but in doing so it is merely exercising one of the traditional powers which it holds, both by statute and of necessity from being the licensing and regulatory authority for the legal profession.
The Court has undertaken to extend to any member of the profession who questions its actions in any manner the right to file a petition, at any reasonable time, to ask the Court to reconsider or modify those actions. The Court has every intention of extending to any person desiring it a right of appeal to the United States Supreme Court, if he conceives that there is presented any issue which is properly reviewable in that Court.
The Court should not, however, and in my opinion can not, permit attacks to be made upon its rule making power in trial courts, nor can the members of the Supreme Court be required to appear at the bar of trial courts to defend rules made by them in their official capacities. In no sense is this Court or any of its members, “above the law”, but neither can it or its members be subjected to suits in the trial courts in the manner here attempted. Analogies to ordinary private or adversary litigation are fallacious, and attempts to apply the ordinary processes of civil litigation to the regulatory authority of this Court over the legal profession are inappropriate. Of course, if the Disciplinary Counsel or his staff are guilty of any misconduct in office, they may be required to answer in the courts in the regular way. Questions as to the authority of this Court to create the office or to promulgate Rule 42, however, must be addressed to this Court by proper petition, filed here.
I therefore concur in the opinion prepared by Mr. Justice Fones and hope that these few additional comments will serve to make more clear to the public and to the legal profession the action which has been taken by the Court and the reasons therefor.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9674489. Public record. Not legal advice.