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Tennessee Attorney General Nixes Amendment to Ban Advertising by DUI Defense Attorneys

DUI defense attorneys in Tennessee no longer need to worry whether they can advertise their services, thanks to an opinion by the state’s attorney general, Robert Cooper.

Cooper’s opinion shelved Sen. Rosalind Kurita’s amendment, which sought to stop DUI defense attorneys from advertising their expertise.

The attorney general’s opinion – reported by the Nashville Post – stated, “The Tennessee Supreme Court has the inherent constitutional authority to regulate the courts and the attorneys who practice before them. Sen. Kurita’s amendment improperly attempts to exercise powers properly belonging to the Supreme Court.”

Cooper felt Kurita’s amendment challenged the First Amendment right of any DUI defense attorney who wanted to advertise his or her services. In part, his opinion stated, “DUI defendants have a substantial interest in learning as much as possible about the attorneys who will represent them.”

In response to the attorney general’s action, Kurita said simply, “I’ll have to find another way to curtail drunk driving.” In an August primary, she will oppose Tim Barnes, an attorney whose practice includes DUI defense.

In drafting her amendment, Kurita maintained the Tennessee Bar Association (TBA) does not officially certify expertise in DUI defense, so lawyers shouldn't be able to bill themselves as experts, according to the Tennessean Newspaper.

"The issue is misrepresenting that there is such a thing as specializing in DUI defense," she had said. “Prosecutors have a hard enough time convicting drunken drivers without lawyers advertising their expertise in the field and offering discounts to DUI defendants. Is this morally what we want, to allow people to have advertisements that say, ‘let me get you off your drunk-driving charge?’ I mean it’s like we’re saying that it’s OK.”

From the start, Senate Democratic Leader Jim Kyle argued Kurita's proposal would violate commercial free speech.

"What is so un-American about someone charged with a crime to be able to find an attorney who can represent them?" he told the Tennessean. "Is there any basis that we can constitutionally tell someone they can't advertise what they're doing, if what they're doing is legal?"

The Memphis attorney went on to say if lawyers abide by the ethical standards of the TBA, they should have the right to advertise their profession.

However, Kurita maintained the TBA does not “officially certify expertise in DUI defense, so lawyers shouldn't be able to bill themselves as experts.” She told the Tennessean, "The issue is misrepresenting there is such as thing as specializing in DUI defense."