FILED

December 21, 1998

Cecil W. Crowson

Appellate Court Clerk

IN THE SUPREME COURT OF TENNESSEE

AT NASHVILLE

JENNIFER O. WILSON ) FOR PUBLICATION

)

 Appellee ) FILED: DECEMBER 21, 1998

)

v. ) DAVIDSON COUNTY

)

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
2

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
1For 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. 

2Tenn. 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

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.
3372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963)

(requiring states to provide counsel to indigent defendants in noncapital proceedings).

4387 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).

5395 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).

6553 S.W.2d 337 (1977) (elaborating on Boykin’s requirements

for a plea colloquy before acceptance of an accused’s guilty plea).

4

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
5

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