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 this interlocutory appeal by the state, as we view them, are straightforward: (1)

whether the Supreme Court of Tennessee has the authority by rule to prohibit a full-time municipal

judge from representing a defendant or otherwise practicing law after 180 days from assuming

judicial office; and (2) if so, whether the Supreme Court of Tennessee intended exactly what 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 disqualification at its first opportunity to do so. Accordingly, we reverse the

judgment of the trial court which declined to 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

JOE G. RILEY, J., delivered the opinion of the court, in which NORMA MCGEE OGLE, J., and

CORNELIA A. CLARK, SP. 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 Jury of Shelby

County, 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 the
1

The tech nical reco rd does n ot contain any orders setting o r continuing trial dates; however, the trial court’s

order of November 5, 1999, which declined to disqualify defense counsel, and the transcript of the hearing on this

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. 

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defendant. Sugarmon was subsequently appointed as a full-time judge of the Memphis City Court

on October 7, 1998. The case was set for trial within 180 days of the date Sugarmon assumed

judicial office; however, the case was continued due to the illness of the prosecuting attorney. 1 The

case was reset for trial on July 13, 1999, well beyond 180 days from the date Sugarmon assumed

judicial office. 

On July 9, 1999, the state filed a motion to disqualify defense counsel, 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 allowed a judge to conclude cases in which he or she was previously

employed prior to the judge’s election; (2) concluded that the 180-day rule was not absolute and

allowed for the consideration of other factors; (3) noted that Sugarmon had represented the defendant

since the inception of the case in 1997; (4) assumed 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, Canon 4G provides in pertinent part as follows:

A newly elected or appointed judge can practice law only in

an effort to wind up his or her practice ceasing to practice law as soon

as reasonably possible and in no event longer than 180 days after

assuming office. 

The Commentary to Canon 4G clarifies this limitation:

The only law practice allowable is that which is necessary to

wind up a law practice. Accordingly, no new cases may be accepted.

The 180-day bright line rule in winding up a law practice does not
2

Defendant asserts that his co unsel is similar to a county judge who, by statute, is not precluded from practicing

law except in certain instan ces. See Tenn. Code Ann. § 16-16-106. However, the office of county judge was effec tively

abolished by con stitutional amendment with suc h duties tran sferred to th e county executiv e. See Constitution 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., Schmutzer, 583 S.W.2d 756, 759-60 (Tenn. 1979). Probate and estate administration jurisdiction was

transferred to the Cha ncery Court. See Tenn. Code Ann. § 16-16-201. Tenn. Code Ann. § 16-16-106 has no application

to the case a t bar. 

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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 Conduct, Part A. Although a “continuing 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 AUTHORITY

A. Standard of Review

A trial court’s ruling on attorney disqualification will be reversed only upon a showing of an

abuse of discretion. State v. Culbreath, 30 S.W.3d 309, 312-13 (Tenn. 2000). There is an abuse of

discretion when the trial court applies an incorrect legal standard or reaches a decision 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 of Tennessee attorneys. “It is well settled that the

licensing and regulation of attorneys practicing law in courts of

Tennessee [are] squarely within the inherent authority of the judicial

branch of government.” Smith County Educ. Ass’n v. Anderson, 676

S.W.2d 328, 333 (Tenn. 1984). Pursuant to our inherent authority,

we govern the discipline of attorneys in this state, Swafford v. Harris,

967 S.W.2d 319, 321 (Tenn. 1998), and are responsible for

“prescribing and seeking to enforce and uphold the standards of

professional responsibility.” Petition of Tenn. Bar Ass’n, 539 S.W.2d

805, 810 (Tenn. 1976) (Harbison, J., concurring). Furthermore, this

Court has “original and exclusive jurisdiction to promulgate [our]

own Rules. [Our] rule making authority embraces the admission and
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supervision of members of the Bar of the State of Tennessee.” Id. at

807. 

As the above authorities suggest, this Court owes a special

obligation to ensure proper application of our rules and administration

of the legal profession. Our review of a lower court’s interpretation

of the ethical rules 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 (Tenn. 1974); Anderson, 676

S.W.2d at 333-34. Accordingly, we will closely scrutinize a trial

court’s disqualification of an attorney or that attorney’s firm for an

abuseof discretion arising from improper interpretation or application

of our rules. Accord Cheves v. Williams, 993 P.2d 191, 205 (Utah

1999) (“The proper standard of review for decisions relating to

disqualification is abuse of discretion. However, to the extent this

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 branch of government 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. § 17-1-105 authorizes

Sugarmon to continue representation beyond the 180-day limit. Tenn. Code Ann. § 17-1-105

provides as follows: 

No judge or chancellor shall 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 judge 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 precedence. To the extent that the statute may appear inconsistent or in conflict with Tenn.

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. 10, we should not lightly presume that the legislature intended to

usurp the role of the courts in exercising the judicial power of the state and should give all legislative

enactments a strong presumption of constitutionality. State v. Mallard, 40 S.W.3d 473, 483 (Tenn.
3

Sugarmon insists in his brief that on February 25, 1999, the trial date was continued until July 13, 1999, “even

after discussion and consideration of the 180 -day rule .” He furth er conten ds the state v oiced no objection to his

continued representation at that time. The transcript of the February 25th hearing is n ot in the reco rd befor e this court.

Neverth 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 . 

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2001). Therefore, in this case it is unnecessary to declare Tenn. Code Ann. § 17-1-105

unconstitutional. We simply conclude that Tenn. Sup. Ct. R. 10 provides restrictions in addition to

those set forth in the statute. 

INTERPRETATION OF CANON 4G

Having concluded that the Supreme Court of Tennessee has the authority to regulate the

extent to which a judge may practice law, we must examine Canon 4G in order to 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 present 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 authorizes the practice 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 our supreme court understandably recognized the practical difficulties 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 office.” 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.” Accordingly, we can only conclude

that the rule means 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 the right to seek the disqualification of defense counsel

since it did not request disqualification at an earlier date when 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 Professional Responsibility, DR 2-110(B)(2) (requiring “mandatory
4

The Supreme Court of Tennessee has established a Judicial Ethics Committee whose purpose is to render

opinions to requesting judges on proper profession al condu ct under th e Code of Judicial Conduc t. Tenn. Su p. Ct. R.

9, § 26.6. There is no indication that such an opinion was requested in this 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. 

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withdrawal” from employment if “[t]he lawyer knows or it is obvious that continued employment

will result in violation of a Disciplinary Rule”). In the context of this case, a violation of Code of

Judicial Conduct Canon 4G is a violation of a disciplinary rule. Defense counsel 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 addressed on appeal “to prevent prejudice to the judicial process”).

Accordingly, the failure of the state to seek disqualification at an earlier 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 that extend beyond the

180-day limitation. Additionally, DR 2-110(B)(2) contemplates “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 for

representation and had represented the defendant from the inception of the case is irrelevant to the

issue of disqualification. If Sugarmon was paid in advance for services rendered, he is required upon

his mandated withdrawal to “refund promptly any part of a fee paid in advance that has not been

earned.” DR 2-110(A)(3). However, Sugarmon may be reasonably compensated for services

rendered prior to the180-day deadline. Canon 4G Commentary (“The 180-day bright line rule does

not prohibit the judge from receiving fees after this 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 proceedings. 
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___________________________________ 

JOE G. RILEY, JUDGE