Jennifer O. WILSON, Appellee, v. Larry Arnold WILSON, Appellant.
Supreme Court of Tennessee, at Nashville.
Dec. 21, 1998.
Rehearing Denied Jan. 19, 1999.
984 S.W.2d 898
Richardson and Baker, Clark Lee Shaw, Nashville, Tennessee, State of Tennessee, John Knox Walkup Attorney General & Reporter, Michael E. Moore, Solicitor General, Kathy Morante, Deputy Attorney General, Nashville, Tennessee, Family Law Section of the Memphis Bar Association, Joy Tanner Bomar, Memphis, Tennessee, Family Law Section of the Tennessee Bar Association, Larry Rice, Memphis, Tennessee, for amicus curiae.
OPINION
DROWOTA, J.
We granted this appeal to determine whether a private attorney representing the beneficiary of a court order in a civil case may prosecute a criminal contempt action alleging a violation of the order. After due consideration, we conclude that no constitutional principle nor ethical standard automatically disqualifies the private attorney for the beneficiary of the order from prosecuting a contempt action for a violation of the order. Accordingly, we reverse the judgment of the Court of Appeals which adopted an automatic rule of disqualification and remand this cause to the trial court for further proceedings consistent with this decision.
BACKGROUND
The plaintiff, Jennifer O. Wilson, filed suit for divorce against the defendant, Larry A. Wilson, in the Circuit Court of Davidson County. During the course of this litigation, certain restraining orders were issued by the court, and thereafter, the defendant filed a petition for contempt against the plaintiff alleging that she had violated an order of the trial court. The petition failed to specify whether civil or criminal sanctions were being sought.
The plaintiff responded by filing a counterclaim for contempt against the defendant, and a motion to disqualify the defendant‘s private counsel from prosecuting the contempt action. The trial court denied the motion to disqualify, but granted the plaintiff permission to seek an interlocutory appeal from the ruling. See
The defendant thereafter filed a second petition for contempt alleging a violation of an order of the trial court. This petition was accompanied by a notice of constitutional rights. The trial court issued an order to show cause. In response, the plaintiff again filed a motion to disqualify defendant‘s private counsel from prosecuting the criminal contempt action on the basis that counsel was simultaneously representing the defendant in the underlying divorce proceedings. The trial court again denied the motion but granted the plaintiff permission to seek an extraordinary appeal. See
The Court of Appeals granted and consolidated the interlocutory and extraordinary ap-
Thereafter, we granted the defendant‘s application for permission to appeal, and for the reasons that follow, now conclude that no constitutional principle nor ethical standard automatically precludes a private attorney representing the beneficiary of a court order from prosecuting a contempt action for an alleged violation of the order. Accordingly, we reverse the judgment of the Court of Appeals and remand to the trial court for further proceedings consistent with this decision.
ANALYSIS
A. Standard of Review
Recently, in Black v. Blount, 938 S.W.2d 394 (Tenn.1996), this Court held that trial courts have both the inherent authority to initiate contempt proceedings and the concomitant authority to appoint private attorneys to prosecute such contempt actions. Id. at 402-03. Unlike this case, however, the conduct in Black for which contempt proceedings had been instituted did not involve the alleged violation of a court order. Also unlike this case, the private attorney appointed by the trial court to prosecute the contempt proceeding in Black did not represent any of the litigants in the underlying action from which the contempt charges arose. Accordingly, in Black we did not address, and in fact expressly reserved for a case in which it was squarely presented, the question of whether a private attorney already representing the beneficiary of a court order in a civil case may prosecute a contempt action alleging a violation of that order. Id. at 402. It is that narrow question of law which now is squarely presented in this appeal.2 Since this is a question of law, our review is de novo upon the record before this Court with no presumption of correctness attaching to the decisions of the lower courts. Warren v. Estate of Kirk, 954 S.W.2d 722, 723 (Tenn. 1997); Bain v. Wells, 936 S.W.2d 618, 622 (Tenn.1997).
B. The Young Decision
Prior to 1987, the leading case on this issue was McCann v. New York Stock Exchange, 80 F.2d 211 (2nd Cir.1935), in which Judge Learned Hand commented that to prosecute an indirect criminal contempt, committed outside the presence of the court, “the judge may prefer to use the attorney of a party, who will indeed ordinarily be his only means of information.... There is no reason why he should not do so, and every reason why he should....” Id. at 214. In Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787, 107 S.Ct. 2124, 95 L.Ed.2d 740 (1987), however, the United States Supreme Court parted company with Judge Hand when it held that federal judges could no longer appoint a private lawyer representing the beneficiary of a court order to also prosecute a criminal contempt action alleging a violation of the order.
Young began as a trademark infringement action brought by Vuitton et Fils, S.A., (Vuitton), a manufacturer of expensive handbags, against several businesses which were manufacturing and selling inexpensive imitations of Vuitton‘s merchandise. In July of 1982, the parties settled the trademark infringement case. Under the settlement agreement, the defendants were required to pay damages and enjoined from using Vuitton‘s registered trademark. Suspecting that the defendants had violated the injunction, Vuit-
Over the next month, the special prosecutor compiled more than 100 audio and video tapes of meetings and wiretapped telephone conversations between the defendants and investigators. With that evidence, the special prosecutor requested and obtained an order from the district court directing the defendants to show cause why they should not be cited for contempt for either violating or aiding and abetting the violation of the injunction. The defendants filed motions opposing both the show cause order and the appointment of Vuitton‘s attorneys as special prosecutor. The defense motions were denied, and eventually two of the defendants entered guilty pleas to contempt. Several other defendants were tried and convicted of contempt. Id., 481 U.S. at 792, 107 S.Ct. at 2129.
Before the United States Supreme Court, the defendants advanced two primary arguments as grounds for reversal of their convictions. First, they contended that a district court lacks authority to appoint private counsel to prosecute a contempt action and that only the U.S. Attorney may initiate a criminal contempt prosecution. Id., 481 U.S. at 793, 107 S.Ct. at 2130. Alternatively, the defendants maintained that a district court may not appoint an attorney representing the beneficiary of a court order to prosecute a criminal contempt action alleging a violation of that order. Id., 481 U.S. at 802-14, 107 S.Ct. at 2135-38.
In rejecting the defendants’ first argument, the Court held that district courts have inherent power both to initiate contempt proceedings to punish disobedience to their orders and to appoint a private attorney to prosecute such contempt actions. Id., 481 U.S. at 793, 107 S.Ct. at 2130.3 The Court commented that this power to appoint should be exercised sparingly, and only after the public prosecutor has denied a district court‘s request to prosecute a contempt. Id., 481 U.S. at 801, 107 S.Ct. at 2133.
The Supreme Court, however, agreed with the defendants’ second argument and found that the district court erred by appointing an attorney who was representing the beneficiary of a court order to prosecute a criminal contempt for an alleged violation of the order. The Court first emphasized that private attorneys appointed to prosecute criminal contempt actions represent the interest of the United States in vindicating a court‘s authority. Id., 481 U.S. at 804, 107 S.Ct. at 2136. A private attorney prosecuting a criminal contempt, therefore, must assume the unique responsibility of a government prosecutor which is to pursue justice and guarantee that “guilt shall not escape nor innocence suffer.” Young, 481 U.S. at 802-03, 107 S.Ct. at 2135 (quoting Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314 (1935)).
While recognizing that a private party‘s interest in obtaining the benefits of a court order may sometimes coincide with the special prosecutor‘s pursuit of justice, the Court stressed that the two interests may also at times diverge. Young, 481 U.S. at 805, 107 S.Ct. at 2136. As examples of the possible
Between the private life of the citizen and the public glare of criminal accusation stands the prosecutor. That state official has the power to employ the full machinery of the state in scrutinizing any given individual. Even if a defendant is ultimately acquitted, forced immersion in criminal investigation and adjudication is a wrenching disruption of everyday life. For this reason, we must have assurance that those who would wield this power will be guided solely by their sense of public responsibility for the attainment of justice. A prosecutor of a contempt action who represents the private beneficiary of the court order allegedly violated cannot provide such assurance, for such an attorney is required by the very standards of the profession to serve two masters.
Id., 481 U.S. at 805, 107 S.Ct. at 2138.
The Young Court did not base its decision upon constitutional grounds but instead announced the rule of disqualification in its supervisory role over lower federal courts. Though we are not constitutionally bound to follow Young, the rationale for the decision was based largely upon the Model Code of Professional Responsibility which, as modified, currently governs the conduct of attorneys in Tennessee. See
C. Constitutional Principles
Although appellate courts ordinarily do not address constitutional issues if a case may be decided upon non-constitutional grounds, in this case a decision on the constitutional issue is necessary to fully determine the case and the rights of the parties. State v. Hall, 958 S.W.2d 679, 695 n. 15 (Tenn. 1997). This Court previously has opined that “[d]ue process ... calls for such procedural protections as the particular situation demands.” Phillips v. State Board of Regents, 863 S.W.2d 45, 50 (Tenn.1993) (quoting Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 1191, 14 L.Ed.2d 62 (1965)). In determining what procedural protections a particular situation demands, three factors must be considered: (1) the private interest at stake; (2) the risk of erroneous deprivation of the interest through the procedures used and the probable value, if any, of additional or substitute procedural safeguards; and finally, (3) the government‘s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. Phillips, 863 S.W.2d at 50; Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976). Though we have found no other judicial decision4 addressing the constitutional aspect of the issue in this appeal, in our view, application of the three-pronged balancing test clearly indicates that due process does not preclude allowing an attorney who represents the beneficiary of a
At stake is a contempt defendant‘s liberty or property interest. A defendant found guilty of general contempt in Tennessee may be punished by fine or by imprisonment, or both. However, any fine imposed may not exceed fifty dollars and any term of imprisonment may not exceed ten days.
of a rule which automatically disqualifies a litigant‘s private counsel from prosecuting a contempt action.
D. Ethical Standards
We have also found no ethical standard which mandates adoption of an automatic rule of disqualification. While the Young decision is theoretically attractive, many practical differences between the federal judicial system and the courts of Tennessee exist which ameliorate the perceived conflict of interest identified in Young. For example, unlike the private attorneys appointed as special prosecutors in Young, private attorneys prosecuting criminal contempt actions in Tennessee are not ordinarily clothed with all the powers of a public prosecutor. Indeed, there is no hint in this appeal that the defendant‘s attorney has been given the powers of the public prosecutor in pursuing these contempt actions. Here, unlike Young, we simply are not dealing with a private attorney who has “the power to employ the full machinery of the state in scrutinizing any given individual.” Young, 481 U.S. at 805, 107 S.Ct. at 2138. The potential for abuse and overreaching about which the Young Court expressed concern therefore does not exist in Tennessee.
Furthermore, we do not believe that appointing a private attorney who represents the beneficiary of a court order to prosecute a contempt action for an alleged violation of that order creates the potential for conflict and the appearance of impropriety. Contempt of court is intended to vindicate a court‘s authority and to maintain the integrity of court orders. State v. Winningham, 958 S.W.2d 740 (Tenn.1997). In a contempt proceeding alleging a violation of a court order, therefore, the interest of the private litigant coincides with the interest of the court. The common goal is to force compliance with the court order. Although the motivational reasons may differ, the interest is the same. The private lawyer is ethically obligated to exercise his or her independent professional judgment to protect the common interest.
Additionally, in our view a litigant‘s private attorney is no less likely to seek justice and no more likely to be influenced by improper motives than a public prosecutor or a disinterested private attorney. We readily acknowledge that an attorney representing the beneficiary of a court order will zealously attempt to enforce compliance with the order if allowed to prosecute a contempt proceeding. There is, however, nothing improper about zealous prosecution. Even the Young Court recognized that in our adversary system, “prosecutors are necessarily permitted to be zealous in their enforcement of the law.” Young, 481 U.S. at 806, 107 S.Ct. at 2137. If a prosecutor is “honestly convinced of the defendant‘s guilt, the prosecutor is free, indeed obliged, to be deeply interested in urging that view by any fair means. True disinterest on the issue of such a defendant‘s guilt is the domain of the judge and the jury-not the prosecutor.” Wright v. United States, 732 F.2d 1048, 1056 (2nd Cir.1984). While prosecutors are expected to proceed with “eagerness and vigor” and are permitted to “strike hard blows,” they may not strike “foul ones.” Berger, 295 U.S. at 85, 55 S.Ct. at 633. The ethical rules governing the conduct of all attorneys in Tennessee should prevent a private attorney representing the beneficiary of a court order from becoming overzealous or from striking foul blows.
Furthermore, the procedural safeguards of
A criminal contempt ... shall be prosecuted on notice. The notice shall state the time and place of hearing, allowing a reasonable time for the preparation of the defense, and shall state the essential facts constituting the criminal contempt charged and describe it as such. The notice shall be given orally by the judge in open court in the presence of the defendant, or on application of the district attorney general or an attorney appointed by the court for that purpose, by an order to show cause or an order of arrest. The defendant is entitled to admission to bail as provided in these rules. If the contempt charged involves disrespect to or criticism of a judge, that judge is disqualified from presiding at the hearing except with the defendant‘s consent. Upon a verdict of finding of guilt the court shall enter an order fixing the punishment.
Accordingly, we hold that allowing an attorney for the beneficiary of a court order to prosecute a contempt proceeding alleging a violation of that order does not involve an inherent or potential conflict of interest sufficient to warrant adoption of an automatic rule of disqualification.9
CONCLUSION
For the reasons previously explained, we conclude that no constitutional principle nor ethical standard automatically disqualifies a private attorney representing the beneficiary of a court order from simultaneously prosecuting a contempt action which alleges a violation of the order. Accordingly, we reverse the judgment of the Court of Appeals which adopted an automatic rule of disqualification and remand this cause to the trial court for further proceedings consistent with this decision.
ANDERSON, C.J., HOLDER, BARKER, JJ., concur.
BIRCH, J., Separate Dissenting Opinion.
BIRCH, Justice, dissenting.
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
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 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
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
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
Notes
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).