### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON June 12, 2001 Session STATE OF TENNESSEE v. ROY B. LIPFORD Interlocutory Appeal from the Criminal Court for Shelby County

No. 97-13369, 70 John P. Colton, Jr., Judge

No. W1999-01737-CCA-R9-CD - Filed July 27, 2001

The issues in t his interl ocutory appeal by the state, as we view them , are straigh tforward: (1) whether the Supreme Court of

Tennessee has th

e authority

by rule to prohibit a full-time municipal judge from representing a defendant or otherwise practicing law af ter 180 days from assuming judicial office; and (2)

if so, whether the Supreme Court of Tennessee intended exactly wha

t the rule says. We conclude that it

does and did. We further conclude that a violation of this Supreme Court Rule is prejudicial to the judicial process, and the issue is not waived by the failure of the opposing party to request disqualif ication at its first opportuni ty to do so. Acc ordingl y, we rever se the judgment of the trial court which

declinedto disqualify defendant's attorney , a sitting judge, from further participation in this case. Tenn. R. App. P. 9 Interlocutory Appeal by Permission; Judgment of the Criminal Court Reversed; Remanded
J OE G. R ILEY , J. , delivered the opinion of the court, in which N ORMA M C G EE O GLE , J., and C ORNELIA A. C LARK , S P
. J., joined. Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; William L. Gibbons, District Attorney General; and David B. Shapiro, Assistant District Attorney General, for the appellant, State of Tennessee. Tarik B. Sugarmon, Memphis, Tennessee, for the appellee, Roy B. Lipford.

OPINION PROCEDURAL BACKGROUND
The pertinent facts and procedural background are undisputed. The Grand J ury of Shelby Cou nty, Tennessee, indicted the defendant, Roy B. Lipford, on December 18, 1997, for theft over $10,000 and extortion. Tarik B. Sugarmon(hereinafter “Sugarmon”) was retained to represent the1 The tech nical reco rd does n ot contain any orders setting o r continuing trial dates; however, the trial court’s

order of Nov ember 5, 1999, which de clined t o disquali

fy defense couns

el, and t he transcr

ipt of t he hearing on

thi s motion indicate the case was c ontinue d beyo nd the 1 80 day s due to illne ss of the pro secuting a ttorney. -2- defendant. Sugarmon was subsequently appointed asa full-time judge of the Memphis City Court on October 7, 1998. The case wa s set for trial within 180 days of the date Sugarmon assumed judicial office; howeve

r, the case was continued due

to the illness

of t he p ros ecut ing a tto rney. 1 The case was reset for trial on July 13, 1999, well be yond 1 80 days from the date Sugarmon assumed judicial office.
On July 9, 1999, the state filed a motion to disqualify defense counse

l, citing Tenn. Sup . Ct. R. 10, Canon 4G which allows a judge to continue to practice law in an effort to wind up his or her practice but “in no event longer than 180 days after assuming office.” The trial court (1) noted that Tenn. Code Ann. § 17-1-105 al lowed a jud ge to conclude cases in which he or she w as previously employed prior to the judge’s election; (2) concluded that the 180-day rul e was not absolute and allowedfor the cons ideration of other fact ors; (3) no ted that Su garmon h ad represented the defendant since the inception of th e case in 1997; (

4) a ssumed Sugarmon had been paid to represent the defendant;(5) noted that the state at the time of the last trial setting had knowledge that Sugarmon had been appointed

to the bench, yet

made no objection based on the 180-day limitation; (6) found that unforeseen circumstances had prevented Sugarmon from concluding this case within the 180- day period; (7) found the defendant would be unduly prejudiced by an order of disqualification; (8) required that the state refer

to Sugarmon at trial as “Mr. Sugarmon” and not “Judge Sugarmon;” and (9) declined to disqualify Sugarmon from representation. The state sought an interlocutory appeal pursuant

to Tenn. R. App. P. 9, which was granted by the trial court and accepted by this court.

SUPREME COURT RULE 10 Tenn. Sup. Ct. R. 10, Ca

non 4G provides in p

ertinent part as f

ollows:
A newly elected o r appointed judge can practice lawonly in an effort to wind up his or her practi ce ceasing to

practice law as soon as reasonably

possible and in no e

vent longer tha n 180 days after assuming office. The Commentary to Canon 4G clarifies this limitation:

The only law practice al

lowable is that which is nec

essary to wind up a law practice. Accordingly, no new ca ses may be accepted. Th e 180-day br

ight line rule

in winding up a law

practic e does no t2 Defendant asserts that his co unsel is similar to a count y judge who, by statute, i s not precluded from practi cing law except in certain instan ces. See Tenn. Code Ann. § 16-16-106. However, the off

ice of count

y judge was effec tively abolished by con stitutional a mend me nt with suc h duties tran sferred to th e county executiv e. See Constit ution of Tenne ssee, Article V II, § 1. The co nstitution do es not vest a ny judicia l authority in the coun ty execu tive. Waters v. State ex rel., Sc hmutzer , 583 S.W.2d 756, 759-60 (Tenn. 1979). Probate and estat e administrati

on jurisdicti

on was transferred

to the Cha ncery C ourt. See Tenn. Code Ann. § 16-16-201. Tenn. Code Ann. § 16-16-106 ha s no applic ation to the case a t bar. -3-

prohibit the judge from receiving

fees after this deadline for services performed prior to the deadline. (Emphasis added). The Code of Judicial Conduct applies to all officers who perform judicial functions, which would include a municipal judge. See Tenn. Sup. Ct. R. 10, Code of Judicial Conduct, Application of the Code of Judicial C

onduct, Part A. Alth

ough a “continui

ng part-time

judge” may practice law in certain instances, a full-time judge is not exempt from the restrictions set forth in Canon 4G. Id

. at Part C. 2

SUPREME COURT AU THORITY A. Standard of Review
A trial court’s ruling on attorney disqualification will be reversed only upon a showing of an abuse of discretion. Statev. Culbreath , 30 S.W.3d 309, 312-13 (Tenn. 2000). There is an abuse of discretion when the trial court applies an inc orrect legal standard

or reaches a de

cision which is against logic or reasoning that causes an injustice to the complaining party

. State v. Shirley , 6 S.W.3d 243, 247 (Tenn. 1999). Furthermore, the Supreme Court of Tennessee has recently stated: This Court, however, occupies a unique position to administer the ethical conduct o

f Tennessee atto

rneys. “It is well settled that the licensing and regulation of attorneys practici ng law in courts of Tennessee [are] squarely

within the inherent authority of the judicial branchof government.” SmithCounty Educ. Ass’n v. Anderson , 676 S .W.2d 328, 333 (Tenn. 198 4). Pursuant to our

inherent authori

t y , we govern the discipline of attorneys i

n this state, Swafford v. Har ris , 967 S.W.2d 319, 321 (Tenn. 1998), and are responsible for “prescribing and s eeking to enforce and uphold the standards of professional responsib ility.” Peti tion of Tenn. Bar Ass’n , 539 S.W.2d 805, 810 (Tenn. 1976) (Harbison, J., concurring). Furthermore,this Courthas “original and exclusive jurisdictiont o promulgate [our] own Rules. [Our] rule making authority embraces the admission and-4- supervision of members of the Bar of the State of Tennessee.” Id . at 807.
As the above authorities suggest, this Court owes a spe cia l obligation to ensure pr oper applicatio n of our rules and administration of the legal profession. Our review of a lower court’s interpretation of the ethic al ru les promulgated by this Court is plenary. See In re: Burson , 909 S.W.2d 768, 774 (Tenn. 1995); Belmont v. Bd. of Law Examiners , 511 S.W.2d 461, 462 (T enn. 1974); Anderson , 676 S.W.2d at 333-34. Accordingly, we will closely scru tin ize a trial cour t’s disqualification o f an attorney

or that attorney

’s firm for a n abuse of discretion a

rising from improper interpretation or applicat io n of our rules. Accord Cheves v. Williams , 993 P.2d 191, 205 (Ut ah 1999) (“The proper standar d of rev iew for decisions relating to disqualification is abuse o f discretion. Howe ver, to the extent th

is court has a special interest in administering the law governing attorney ethical rules, a trial court’s discretion is limited.”). Clinard v. Blackwood , ___ S.W.3d ___, ___, 2001 WL 530834, at *2 (Tenn. May 18, 2001). B. Analysis Based upon these

long established

precedents,

we conclude the Supreme Court of Tennessee has the inherent authority over the judicial bran

ch of governme

nt and properly

promulgated Rule 10 to uphold the standards of judges and those who practice law before the courts of this state.
We further reject defendant’s argument that Tenn. Code Ann. § 17-1-10 5 autho rizes Sugarmon to continue represent ati on beyond the 180-day limit. Tenn. Code Ann. § 17-1-105 provides as follow

s: No judge or

chancellor shal

l practice law, or perform any of the functions of attorney

or counsel,in any of the courts of this state, except in cases in which the ju dge or chancellor may have been employed as counsel previous to the judge’s or chancellor’s election. Although this statute does not have a 180-day limitation, Tenn. Sup. Ct. R. 10 is more restrictive and takes pre cedence. To the extent that the statute may appear inconsistent or in conflict with Ten n . Sup. Ct. R. 10, the statute must yield to the inherent authority of the Supreme Court of Tennessee to regulate the

conduct of

judges and those who practice law in the courts of this state. See generally Clinard , ___ S.W.3d at ___, 2001 WL 530834, at *2. However, while the statute might be read as conflicting with Tenn. Sup. Ct. R. 1 0, we should not lightly presume that the legislature intended to usurp the role of the co

urts in exercising the judicial power of the state and should give all legislative enactments

a strong presumptionof constitutionality. State v. Mallard , 40 S.W.3d 473, 483 (Tenn.3 Sugarmon insist s in his brief t hat on Februar

y 25, 1999, the

trial date was cont

inued until

July 13, 1999,

“even after discussion and co nsideration of t he 180 -day rule .” He furth er conten ds the state v oiced no objection to his continued represent

ation at that t ime. The tra

nscript of the Februa

ry 25 thhearing is n ot in the reco rd befor e this court. N everth eless, we are com pelled to note that cou nsel’s awareness o f the 180-day rule at that time, failure to request withdra wal, and continue d represe ntation m akes the v iolation m ore egre gious rath er than less so

. -5- 2001). Therefore, in this case it is unnecessary to declare Te nn. Code Ann. § 17-1-10 5 unconstitutional. We simply concl ude that Tenn. Sup.

Ct. R. 10 provides re

strictions in additio

n to those set forth in the statute.

INTERPRETATION OF CANON 4G Having concluded that the Supreme Court of Tennessee has the aut hority to regulate the extent to which a judge may pr actice law, we must examine Canon 4G in order t

o ascertain its meaning. The practice of law by full-time judges has long been prohibited in every jurisdiction in the United States. See J . Shaman et al., Judicial Conduct and Ethics § 7.20 (3d ed. 2000). Tennessee ’s pr esent Code of Judicial Conduct adopts the American Bar Association Model Code of Judicial Conduct in most respects. The ABA Model Code Canon 4G, however, does not have an express provision that auth orizes the practic

e of law at any

time after assuming judicial office. Id

. at § 7.22 (noting the ABA Model Code has no rule authorizing the completion of cases). However, it is apparent that o

ur supreme court

understandably

recognized the

practical diffi

culties in winding up a law practice

and struck

the appropriate balance by allowing the winding up of a law practice, but “in no event longer than 180 days after assuming offic e.” Canon 4G.
It is unnecessary to resort to detailed rules of interpretation in this case. The requirement that a newly elected or appointed judge wind up a law practice “as soon as reasonably possible and in no event longer than

180 days after assuming

office” is unambiguous and absolute. The Commentary specifically

provides that the 180-day rule is a “bright line rule.” Accor dingly, we can only conc

lude that the rule me a ns what it says. Thus, defense counsel was in clear violation of Canon 4G by continuing his representation of the defendant beyond the 180-day limitation.

WAIVER
Defendant

contends the state waived t he right to seek t

he disqualificati

on of defense

counsel since it did not request dis qualification at a

n earlier date w

hen the case was

set for trial. 3 We reject this argument as it

fails to recognize the nature of an ethical violation. It is the obligation of counsel to seek withdrawal, and the opposing party should not be forced to file

a motion for disqualification. See Tenn. Sup. Ct. R. 8, Code of Pro fessio nal Responsibility, DR 2-110(B)(2) (requiring “mandatory4 The Supreme Court of Tennessee has establi shed a Judicial Et hics Committee whose purpose is to re nder opinions to requesting j udges on proper profession al condu ct under th e Code of Judicial C onduc t. Tenn. Su p. Ct. R. 9, § 26.6. There is no indic ation that such an opi nion was requested in thi s case. Had such an opinion been requested at the time th e case wa s set beyon d the 18 0-day lim itation, this app eal may have be en avoid ed.

-6- withdrawal” from employment if “[t]he lawyer knows or it is obvious that continued employment will result in violation of a Disciplinary Rule”). I

n the cont ext of this case, a violation of Code of Judicial Conduct Canon 4G is a v iolation of a discip linary rule . Defense couns el in this case apparently

made no effort to withdraw in spite of his knowledge of the plain language of the rule. 4
We further conclude that to allow a sitting judge to participate in a trial or otherwise continue to represent a

defendant

in blatant violation of Tenn. Sup. Ct. R. 10 would be inherently prejudicial to the judicial process. See generally Tenn. R. App . P. 13(b) (providing that even issues not presented for review may be ad

dr essed on appeal “to prevent prejudice to the judicial process”). Acco rdi ngly, the failure of the state to seek disqualification at anearlier time in no way waives the issue.

PREJUDICE TO DEFENDANT
Defendant

asserts he will be prejudiced by the disqualification of defense counsel as the trial court indeed found. Firstly, the record does not support a finding of prejudice. Furthermore, Canon 4G contemplates that withdrawal or disqualification will occur in all cases t hat extend beyond the 180-day limitation. Additiona

lly, DR 2-110(

B)(2) contempla

tes “mandatory

withdrawal”

in all cases where continued representation would be a disciplinary violation. The sitting judge in this case is not the only person who can represent the defendant. The fact that Sugarmon was presumably paid f or representationand had represented the defendant from the inception of t he case is irrelevant to the issue of disqualification. If Sugarmon was paid in advance for services rendered, he is required upon his mandated withd rawal to“refund promptly any part of a fee paid in advance that has not been earned.” DR 2-110(A)(3). However, S ugarmon ma y be reasonably compensa ted for services rendered prior to the180-day deadline. Canon 4G Commentary ( “The 180-day bright line rule does notprohibit the judge from receiving fees after t his deadline for services performed prior to the deadline.”).

CONCLUSION
The judgment of the trial court is reversed, and Tarik B. Sugarmon is disqualified from further representation of the defendant. The case is remanded for further proce edings.-7- ___________________________________ JOE G. RILEY, JUDGE