Wilson v. Wilson ( 1998 )

IN THE SUPREME COURT OF TENNESSEE
AT NASHVILLE
JENNIFER O. WILSON ) FOR PUBLICATION
FILED
) December 21, 1998
Appellee ) FILED: DECEMBER 21, 1998
)
Cecil W. Crowson
v. ) DAVIDSON COUNTY
) Appellate Court Clerk
LARRY ARNOLD WILSON ) HON. MURIEL ROBINSON,
) JUDGE
Appellant )
) NO. 01-S-01-9807-CV-00130
DISSENT
The majority in this case holds that “no constitutional
principle nor ethical standard automatically disqualifies the
private attorney for the beneficiary of [a court] order from
prosecuting a contempt action for a violation of the order.”
Although I agree that the appointment of such an attorney as a
“private prosecutor” does not violate the contemnor’s due process
rights, I write separately to express my view that such appointment
does, indeed, create the potential for conflict and impart the
appearance of impropriety. Such potential and appearance mandate
a rule of automatic disqualification for ethical reasons. Applying
this rule to the record before us, I would affirm the judgment of
the Court of Appeals.
Contempt may be either civil or criminal in nature.
Civil contempt is an action brought to enforce private rights.
Black v. Blount, 938 S.W.2d 394, 398 (Tenn. 1996). Criminal
contempt, on the other hand, is an action brought to vindicate a
court’s authority and to maintain the integrity of the court as an
“organ of society.” Id.; see also State v. Winningham, 958 S.W.2d
740, 746 (Tenn. 1997). Because of these different objectives, the
civil and criminal contemnors are treated differently. While both
may be imprisoned, the civil contemnor “carries the keys to his
prison in his own pocket” and must be immediately released upon
compliance with the court’s orders. State ex rel. Anderson v.
Daugherty, 137 Tenn. 125, 127, 191 S.W. 974, 974 (1917). The
criminal contemnor does not carry the same keys. He or she faces
an unconditional sanction which is punitive in nature. Black v.
Blount, 938 S.W.2d at 398. Thus, this Court has previously
recognized that “[w]hile criminal contempts may arise in the course
of private civil litigation, such proceedings, ‘in a very true
sense raise an issue between the public and the accused.’” Id.
(quoting State ex rel. Anderson v. Daugherty, 137 Tenn. at 127, 191
S.W. at 974).
Yet despite this “issue between the public and the
accused,” the majority maintains that the interest of the private
litigant does not compromise the integrity of the judicial process
because it is the same as the State’s interest: to force
compliance with the court’s order. Were this simply a civil
contempt proceeding, I would agree. However, this is a criminal
proceeding where the State’s essential interest is (or should be)
to punish the accused for prior noncompliance. While the private
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litigant may endeavor to satisfy several different interests
including punishment, compliance would be paramount among them.1
Because the interests of the private litigant and the
State may not coincide, the “private prosecutor” may be forced to
represent “differing interests”2 in the criminal contempt
proceeding. These “differing interests” may lead to different
choices in the exercise of the lawyer’s independent professional
judgment. For example, while the State’s interests may mandate the
exercise of greater restraint in the proceeding, the private
litigant’s interests may mandate that the lawyer exercise little or
no restraint in the proceeding. Because the different interests
may compromise the exercise of the lawyer’s independent
professional judgment, the representation is an ethical violation
under Tenn. S. Ct. R. 8, DR 5-105(A). This potential conflict is
not ameliorated simply by saying that the lawyer is “ethically
obligated to exercise his or her independent professional judgment
to protect the common interest[s of the clients].” Because the
lawyer has both the State and the private litigant as clients, the
lawyer is thrust, in my opinion, into an ethical conundrum.
1
For example, the private litigant may pursue criminal
contempt for violation of a restraining order, not to punish the
accused, but to create a record for use in later civil proceedings
against the accused, or to “scare” the accused, or to obtain other
advantages from the contemnor’s incarceration or other sanction.
2
Tenn. S. Ct. R. 8, DR 5-105(A) states:
A lawyer shall decline proffered employment if the
exercise of independent professional judgment in behalf
of a client will be or is likely to be adversely affected
by the acceptance of the proffered employment, or if it
would be likely to involve the lawyer in representing
differing interests, except to the extent permitted under
DR 5-105(C).
3
The majority all but acknowledges (albeit obliquely) that
the use of “private” unsworn lawyers to represent the interests of
the State while simultaneously endeavoring to represent the
interests of a client is ethically questionable. They recognize
the remedy of disqualification, but describe it as economically
prohibitive. But this Court should not link justice to the
checkbook in so direct a manner.
It occurs to me that the same concerns were aired when
Gideon v. Wainwright3 was decided, when In re Gault4 was decided,
when Boykin v. Alabama5 was decided, and when State v. Mackey6 was
decided. Admittedly, these cases concerned constitutional rights,
but one lesson from them is that we survived nonetheless–-both
jurisprudentially and economically. Although economics is, of
course, a necessary consideration, all too often the remedy is
sacrificed on the altar of economics. Such is the case here. It
should not be.
Accordingly, because DR 5-105(A) states that a lawyer
“shall decline” employment which may compromise the lawyer’s
3
372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963)
(requiring states to provide counsel to indigent defendants in non-
capital proceedings).
4
387 U.S. 1, 87 S. Ct. 1428, 18 L. Ed. 2d 527 (1967)
(requiring states to provide due process rights of criminal trials
in juvenile proceedings).
5
395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969)
(requiring courts to canvass the accused’s knowledge and
voluntariness in entering a guilty plea).
6
553 S.W.2d 337 (1977) (elaborating on Boykin’s requirements
for a plea colloquy before acceptance of an accused’s guilty plea).
4
independent professional judgment, I would hold that the Code of
Professional Responsibility automatically disqualifies a private
litigant’s lawyer from acting as a prosecutor in a contempt action
resulting from the underlying civil litigation. Thus, I would
affirm the Court of Appeals’s judgment reversing the trial court
and holding that a litigant’s private counsel is disqualified from
acting as a prosecutor in a criminal contempt action.
______________________________
ADOLPHO A. BIRCH, JR., Justice
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