# FILED
December 21, 1998 Cecil W. Crowson Appellate Cou rt 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 cou rt] order from prosecuting a contempt action for a violation of the order.” AlthoughI agree that the appointment of such an a ttor ney 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
co ntemp t, on the other hand, is an action brought to vindicate a2

court’s authority and to maintain the integrity of the court as an “organof 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 maybe imprisoned, the civil contemnor “carries the keys to his prisonin 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, 9 74 (1917) . The criminal contemnor does not carry the same keys. He or she faces
anunconditional sanction which is pun itive in nature. Black v. Blount , 938 S.W.2d at 398. Thus, this Court has previously recognized that “[w]hile criminal contempts may arise inthe course of private civil litigation, such proceedings, ‘in a very true
sense rai se an issu e between the public and the accused.’” Id. (quoting State exrel. Anderson v. Daugherty , 137 Tenn. at 127, 191 S.W. at 974).

Yet despite this “ issu e 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 becaus e it is the same as the State’s interest: to for c e 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 private1 For example, the private litigant may pursue crimi nal

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: Alawyer shall decline proffered employment if th e exercise of independent professional judgment in behalf of a client will be or is likelyto 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 inter ests 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 “di ffering interests” may lead to different choices in the exercise of the lawyer’s independent prof essional judgment. For example, while the State’s interests may mandate the
e xercise of greater restraint in the proceeding, the pri vat e litigant’s interests may mandate that the lawyer exercise little or
no restraint in th e proceeding. Because the different interests maycomp romise 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.3 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963)

(requiring states to provide counsel to indigent defendants in noncapital 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 canv a ss the accused’s knowledge and voluntariness in entering a guilty plea).

6 553 S.W.2d 337 (19 77) (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 t o r epresent the interests of a client is eth icallyquestionable. 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 Gideonv. Wainwright 3 was decid ed, when In re Gault 4 was decided, when Boykin v. Alabama 5 was decided, and when State v. Mackey 6 was decided. Admittedly, these cases concerned constitutional rights, but one lesson from them is that we survived nonetheless–-both jurisprudentiallyand econom icall y. 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) s t ates that a lawyer “shall decline” employment which maycompr omise the lawyer’s5

independent professional j udgmen t, 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 affirmthe Court of Appeals’s judgment reversing t he tri al 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