# FILED
March 20, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF APPEALS OF TENNESSEE WESTERN SECTION AT NASHVILLE

_____________________________________________________________________________ JENNIFER O. WILSON, Davidson Circuit No. 96D-1850 C.A. No. 01A01-9704-CV-00152 Plaintiff,

v. Hon. Muriel Robinson, Judge LARRY ARNOLD WILSON, Defendant. JOHN E. HERBISON, Nashville, Attorney for Plaintiff. EARL J. PORTER, JR., Na shville, Attorney f

or Defendant. REVERSED AND REMANDED Opinion Filed:

____________________________________________________________________________ TOMLIN, Sr. J. Jennif er O. Wilson (“plaintiff”) filed suit for divorce against Larry A. Wilson (“defendant” ) in the Circuit Court of Davidson County. During the course of this litigation, certain restraining orders were issued by the cou rt. Th ereafter, defendant filed a petition against plaintiff for contempt. The petition failedto specify whether civil or criminal sanctions were being sought. Plaintiff filed a c

ounterclaim for c

ontempt against de

fendant. P laintiff filed a motion to disqualify private counsel from prosecuting the petition fo r criminal contempt, noting that it was the same counsel who wa s representin g defendant in the divorce proceedings. The trial court den ied the motion to disqualify, granted defendant permission to seek an interlocutory ap peal of that ruling

and stayed proce

edings on the pendi

ng contemp

t petitions of both plaintiff and defendant. The defendant subsequently filed another petition for contempt, upon which a show cause

or de r was issued. Plaintiff once again filed a motion to disqualify private counsel from prosecuting the criminal contempt action. The trial court denied this motion and entered an order granting a Rule 10 T.R.A.P. extraordinary appeal. This court thereafter entered an order granting

a Rule 9 T.R.A.P. interlocutory appeal relative to the trial court’s initial order denying plaintiff’s motion to disqualify private counsel and shortly thereafter gra nted a Rule 10 T.R.A.P. extraordinary appeal from the trial court ’s denial of the plaintiff’s second motion to disqualify private counsel. The Rule 10 appeal was by ord er consolidated w

ith the previously g

ranted Rule2

9 appeal. The sole issue in this

consolidated appeal is whether or not a lawyer representing one party in a civil proceeding may be appointed and serve as the prosecutor of a petition for criminal contempt against the other

party, based upon conduct arising out of the civil proceeding. For the

reasons hereinafter sta

ted, we hold

that such an appointment of an “interested” special prosecutor in a criminal contempt

proceeding is

contrary to the ethical standards required of lawyers in the practiceof law, as well as the high ethical standard required of the judicial process and is thereby prohibited. Oth er

than the procedu

ral facts as set o

ut above, the unde

rlying facts in

this cas e pertaining to the divorce and the conduct of the

parties are re

ally not material to the consideration of this issue. Our scop

e of review is de novo with no presum ption o f correctness. City of Tullahoma v. Bedfo

rd County , 938 S.W.2d 408, 412 (Tenn. 1997). The propriety of

using private lawyers to prosecute criminal contempt cases has not been addressed as yet by our supre

me court. Howeve

r, it has been add

ressed in part recently by th e Middle Section of this cour

t in a case styled Woodside v. Woodside , No. 01-A-01-9503-PB00121, 1995 WL 623077 (Tenn. Ct. App. Oct. 25, 1995), perm. app. denied, concurring in resu lts only , Jan. 8, 1996. In addition, the use of private attorneys as special prosecutors to assist the District Attorney General in the prosecution of criminal defendants has been addressed twice in recent years by our brothers on

the Court of Crimin

al Appeals. T he first of these t wo cases is State v. Bennett , 798 S.W.2d 783 (Tenn. Crim. App. 1990), followed by State v. Eldridge , 951 S.W.2d 775 (Tenn. Crim. App. 1997). These three Tennessee cases, along with the well-written analyt i cal opinion from the U. S. Supreme Court styled 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), provide us with compelling persuasive authority why this court in this case should hold that henceforth private attorneys who represent

a party that is a ben efic iary of a court order may not be appointed as special prosecutor in a contempt action alleging a violation of that order. We believe that it will be helpful to examine the two distinct approaches that characterize the way that various state and federal courts have analyzed and evaluated the issue of interested prosecutors.While the appr o aches are diff erent, the resul

ts reached in ea

ch approach and

some of the rationale

utilized therein are influential in deciding the case here under consideration. We have chosen to call them (1) the due process approach and (2) the ethical approac h.3 Following the due process approach, a court would hold that the appointment of a private attorney as special prosecutor in a criminal proceeding who has an interest in a case other than the interest of justice, would violate the Due Proce ss Clause of the Fourteenth Amendment to the United States Constitu

tion an d/or the Law of the Land Clause in Article I, section 8 of the TennesseeConstitution. This approach would assert that the appointment of a private prosecutor in a criminal proce

eding arising out of

a civil proceedi

ng where the app

ointed attorney a

lso represented

one of the civil liti

gants is a per se violation of the due process rights of the criminal defendant. A pivotal case in this

approach is State v. Bennett , 798 S.W.2d 783 (Tenn. Crim . App. 1990)

. The Benn ett

court held that T.C .A. § 8-7-401 (Supp . 1997), the Tenne ssee statute authorizing the appointment of special prosecu

tors, did not violate

eit her the Uni ted States Constitution or the Tennessee Constitution. While upholding the constitutionality of the statute, the Bennett

court went furthe

r and examined the

action of the spec

ial prosecuto

rs to determi

ne whether their actions as such resulted i n the deprivation o

f a constitutional r

ight of the defend

ant. Among the four areas the court looked at, it noted two areas

of conduct that ar

e relevant to the

case at bar: first, the spe

cial prosecutor

s therein did not re

present the famil

y of the victim in a civil ca se arising out of the occurrence which gave rise to criminal prosecution and second, the proceeding in Ben nett

was not a contempt proceeding which arose out of a civil prosecution. So a lthoug h neither scenario occurred in Bennett , the court expressed in dictathat either of these two scenarios would have been a

violation of due pr

ocess. The case of State v. Eldridge , 951 S.W.2d 7 75 ( Tenn. Crim. App. 1997), wherein the pivotal facts are quite similar to the facts of the case at bar, involved a criminal prosecution rather than a co ntempt proceedi ng arising out of a civil case. The defendant in Eldridge had been in dicted for attempted second degree murder. As permitted by the aforementioned statute, the victim’s private attorne

ys had been employ

ed as sp e cial prosecutors. Some seven months prior to the criminal trial, these same private attorneys filed a civil suit on behalf of the victim

against defendant,

seeking $1,000,000 in compensatory damages and $2,000,000 in punitive damages, for injuries arising from the same incident being prosecuted in the criminal case. With the exception of the rebuttal argument, which was made by the Assistant District Attorney General, the special prosecutors handled the entire prosecution.4 In an excellent opinion, Judge Joe Riley reviewed among other things how Tennessee and other jurisdictions handled private prosecutions of criminal matters. The court acknowledged the forceful impact

of the analysis of the conflicts inhere nt in the use of spec

ial prosecutors a

s set forth in Youn g v. United States , supra . The court reviewed the ethical dilemmas which arose out o f those co nflic ts of interest and c onsidered the due

process implicati

ons as well. While acknowledging Bennett

and its holding on the due process issue, the Eldridge court noted that an analysisof the activit

ies of the special prosecu tors in its case the

rein revealed a

due process violation had occurred, distinguishing Eldridge from Bennett . The Eldridge court concluded that defendant’s rights under both the U.S. and Tennessee Constitutions had been violated. T h e desirability

of following the du

e process approach grows stronger as the potential punishment for the crime being prosecuted by the interested special prosecutor grows more severe. The need for consti tutional safeguards such as the right to a jury trial, etc., increases in proportion to t h e jeopardy being placed upon the rights of a criminal defendant. Ther

efore, when a c

riminal offense carries potentially severe punishment, it is clear that the due process approach would be the more logical to follow. Accordingly, bo th Eldrid ge and Bennett involved the prosecution of a much more serious charge than that of criminal contempt in a civil proceeding. However, the utilization of the due process approach in criminal contempt proceedings is less desirable in the light of the quasi-cri mina l status of contempt in this state. See State v. Sammons , 656 S.W.2d 862, 867 (Tenn. Crim. App. 1982). The Sammons court distinguishe d this state’s criminal contempt offense fr om the “serious contempt” referred to by the United States Supreme Court in Bloom v. Illinois , 391 U.S. 194, 197, 88 S.Ct. 1477, 1479, 20 L.Ed.2d 522, 526 (1968). In the federal system, the punishment for criminal contempt is left to the discretion of the trial judge, who can levy f ines and orde r incarceration for well over one year. 18 U.S.C. § 401(3)(1966). Given the potential severity of the punishment for criminal contempt in the federal system, it is clear that the safeguards of the due process approach should apply. T he Sammons court noted that, c ontrary to the saf

eguards in the fe

deral sy stem, a defendant in a c rim inal contempt action in this state is not afforded a jury trial. Sammons , 656 S.W.2d a t 867. Furthermore, a criminal contempt proceeding is not even considered a criminal prosecution. Id. Because of its mino r nature, crimina

l co ntempt in Tennessee has a statutory maximum fin e of fif

ty ($50) dollars a

nd ten (10) days imp

risonment which ma

y be ordered in5

circumstances other than nonpayment of child support. T.C.A. § 29-9-103 (Supp. 1997). It could wellbe contended that the punishment for criminal contempt in this state has not been considered of such significanc

e or severity so a

s to war rant the safegua rds inherent in the

due process approach. To invoke either the U.S. or State Constitution in settling this issue strikes with more hammer than needed to drive thenail. The due process approach presents inherent complications which are better

avoided if a firm path around them may be found. We think it unwise and unnecessary to enter this quagmire, and adopt a course equally sound and effective. In our opinion, the adoption of the ethical approac h places our decision on firm legal grounds. The ethical approach involves our consideration of theethical standards that guide the conduct of both practicing attorneys and

judges. Utilizing this approach, our Code of Professional Responsi bility serves as a begin ning point for prohi

biting the appointme

nt of interested sp

ecia l prosecutors.The aforementioned case of Woodside v. Woodside , No. 01-A-01-9503-PB00121, 1995 WL 623077 (Tenn. Ct. App. Oct. 25, 1995), perm. app. denied, concurring in results only , Jan. 8, 1996, is the only c

ase emanating fr

om the civil

side that has dealt with this issue. In a postdivorce proceeding to increase and enforce child support, the trial court appointed the attorney for wife as special p

rosecut or to prosecute a

criminal contempt

action against hus

band, resulting in the court finding husband guilty of willful contempt, awarding wife a judgment fo r arrears in

child support and committing husband to the county workhouse for six months. The sole issue presented by husb and on appeal to the middle section of this court was wh ether the trial court ab

used its discretion

in allowing an inter

ested special pr

osecutor t o prosecute the criminal contempt pro ceeding, co ntending that it was in violation of the p

rinciple set forth in Young v. United States , supra. The Woodside court quoted extensively from Young

. The court concluded that it did not consider Young to be binding upon the courts of Tennessee, declaring that it would not be followed. The j udgment of the lower court was affirmed, but not in the usual sense. In a thorough and well-reasoned concurring opinion, Judg e William C. Koch, Jr. concurred in the result of the majority opinion, but only for the reason that the appellant waivedhis right to raise the issue before the appellate court by failing to timely make a demand for another prosecutor in the trial court

. Judge Koch also vo iced the opinion tha

t the majority opinion reflected an “

unduly narrow vie

w of our responsib

ility and is inconsistent with our other decisions.” In an illuminating overview of Young , Koch noted that the majority in Young rested6

its decision on the American Bar Association’s Model Code of Profession

al Responsibility

(1969, revised1 9 80). He further noted that the Ten

nessee Supreme Co

urt had adopted th

e very same code, and that it currently governs the conduct of all attorneys in this state. See Tenn.S.Ct.R. 8. In Woodside , Judge Koch outlined the relative responsibility of the courts of this state, and

more explicitly the appellate court s, in exe rcising supervisory power over the trial courts. He stated:

The Tennessee State Supreme Court was exe rcisin g its inherent judicial power whe n it promulgated the Tenn.S.Ct.R. 8 in 1981. The Code of Professional Conduct in

Tenn.S.Ct.R. 8 provides the bench and bar with a guide to a lawyer’s obligations to his or herclient under various circumstances. The Code’s discip lina ry rules are mandatory, and the ethical considerations are aspirational and represent the objectives toward which every lawyer should strive. Tenn.S.Ct.R. 8, Preliminary Statement. Ev en though the Tennessee Supreme Court has the exclusive preroga tive t o promulgate

rules governing th

e practice of la

w, all the courts

have the power and duty to apply these

rules in appropri

atecircumstances.

The intermediate

appellate courts have frequently

based their deci

sions on the Code of Pr ofessi o nal Responsibility. Accordingly, this court has relied on portions of Tenn.S.Ct.R. 8 to resolve disputes.... Id. at **7 (Citations omitted).

Judge Koch concluded that inasmuch as Mr. Woodside and his lawyer were awa re f rom the outset of the trial

that the former Mr

s. Woodside’s lawyer would be prosecuting the criminal contempt charges agains

t him, and raised no obje

ction about this ar

rangement until

the trial was finished and the judgment rendered, that Mr. Woodside had waived his rightto take issue with the use of the former

Mrs. Woodside’s la

wyer to prosecut

e the criminal con

tempt case again

st him. While affirming the results of the trial court, Judge Koch concluded that rather than turn judicial backs to the rationale in Young he would leave the question of the propriety of using lawyers for interestedparties to prosecute criminal contempt cases for another day. We are of the opinion that that day has come. A closer and more thorough examination of Young witho ut que stion provides the justification for this court’s ruling. The basic facts in Young are not too dissimilar from the facts in the case under consideration. The suit in Young was brought by two d efendants,

who i n settling a suit against them a greed to the entr

y of a permanent i

njunction prohibit

ing t hem from infringing certain

trademarks of a leather goods manufacturer. Subsequently, the manufacturer’s7

attorneys submitted an affi davit as a result of which the district court found probable cause that these earlier d

efendants could

be in violation of the injunction. The court granted the request of manufacturer’s attorneys for their appointment as special counsel to represent the Government in the investigation and prose cution of a criminal contempt action against these two parties. The court of appeals affi

rmed, reje cting the contention that the ap pointment of manufacturer’s attorneys as special counsel violated their right to be prosecuted by an impartial prosecutor. The supreme court reversed, with themajority opinion basing the reversal on that court’s authority to super vise the operation of the courts in the federal system, relying upon the pro v isions of the Code of Professional Respon sibility, as promulgated by the American Bar Association, which had been adopted in 1982. Because of the relevance of the analysis by the Young majority, we quote at length from the majority opinion:

...contempt

power “has been uniformly held to be necessary to

the protection of the court from insults and oppressions while in the ordinary course of its duties, and to enable it to

enforce its judgm

ents and orders n

ecessary to

the due administration of law and the prote

ction of the rights

of suitors.” (emp

hasis in original) (citation omitted).

. . . . While a court has the authority to initiate a prosecution for criminal cont

empt, its exercise of that authority must be restrained by the principle that “only < [t]he least possible power adequate to the end proposed’ should be used in contempt

cases.” United States v. Wilson , 421 U.S. 309, 319, 95 S.Ct. 1802, 1808, 44 L.Ed.2d 186 (1975) (quoting Anderson v. Dunn , 6 Wheat., at 231).

. . . . This distinctive rol

e of the prosecu

tor is expressed i

n Ethical Consideration (EC) 7-13 of Canon 7 of the Am er ican Bar Association (ABA) Model Code of Professional Responsibi lity (1982): “The responsibility of a public prosecutor differs from that of the usual advocate; h is duty is to seek justi

ce, not merely to convict.”

. . . . Private attorneys appoint

ed to prosecute a

criminal contempt action represent the Unite d Stat es, not the party th at is the benefic

iary of the court

order allegedly violated.

. . . The prosecutor i s appointed solely t

o pursue the public

interest in vindication of the court’s authority. A private attorney appointed t o prosecute a crimi nal co ntempt therefore certainly should b

e as disintereste

d as a public prosecutor who undertakes such a prosecution. (footnote omitted). If a Justice Depar

tment attorn ey pursued a contempt prosecution for violation of an injunction benefiting any client of that attorney invo

lved in the underly

ing civil8 litigation, that attorney would be opento a charge of committing a felonyunder § 208(a). Furthermore, suc h conduct w ould violate the ABA eth ical provisions, since the attorney could not discharge the obligation of un

divided loyalty to

both clients where both have a direct interes

t. The Governmen

t’s interest is in dispassionate a ssessment of the propriety of criminal charges for affronts to the Judiciary. The private par ty’s interest is in obtainin g the benefits of the court’s order. While these concerns sometimes may be congruent, sometimes they may not. A prosecutor may

be te mpted to b ring a tenuously sup ported prosecuti

on if such a course promises financial or legal rewards for the pr ivate client. Conversely, a prosecutor may be tempted to abandon a meritorious prosecution if a settlement providing benefits to the private client is conditioned on a recommendation a

gainst criminal ch

arges. Regardless

of whether the appointment of private counse

l in this case resulte

d in any prosecutorial impropriety (an issue on which we express no opini on) , that appointment

illustrates the potentialfor private interest to influence the discharge of public duty. (Emphasis in original) (footnote omitted).

. . . . A prosecutor

exercises consi

derable discre

tion in matters such as the determination of which persons should be targets of investigation, what methods of investigation should be used, what information w ill be sought as evide

nce, which perso

ns should be charged with what offenses, which person s should be utilized a s witnesses, whether to enter into plea bargains and the terms on which they will be established, andwhether any individuals should be granted immunity. These decisions, critical to the conduct of a prosecution, are all made outside the supervision of

the court. The requirement of a

disin terested prose cutor is consistent with our recognition that prosecutors may not necessarily be held to as stringent a standard of disinterest as judges. “In an adversa

ry system, [prosecu tors] are necessarily permitted to be zealous in their

enforcement of the law,” Marshall v. Jerrico, Inc. , 446 U.S. 238, 248, 100 S.Ct. 1610, 1616, 64 L.Ed.2d 182 (1980).

. . . . In a case where a prosecutor represents an interested party, however, the ethics of the legal profession require that an interest other thanthe Government’s be taken into account. Given this inheren t confl ict in roles, there is no need to specu

late whether the prosecutor w ill be subject to ext

raneous influenc

e. (emphasis i n original) (footnote omitted).

. . . . Between the priva

te life of the citiz

en and the public

glare of criminal accusation stands the prosecutor. Thatstate official ha s the power to emplo

y the full machinery of the state in scrutinizing any given individual. E ven 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 w ho would wield this power will be guided solely by their sense of public responsibility for

the attainment of j ustice. A prosec uto rof 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 p

rofession to serv

e two masters.

Having established that

the same Code of Pr

ofessional Respon

sibilityrelied upon by the1

Tennessee has a reported case where the private prosecutor allege dly used the threat of criminal contempt charges to attempt to coerce a civil settlement. See State v. Eldridge , 951 S.W.2d 775, 783 (Tenn. Crim. App. 1997). 9 Young court governs the pra ctic e of law in this state, we are of the opinion that the conflicts of interest and temptations, as outlined in Young , that are faced by an interested prosecutor, are not

so remote as to belie

ve that they are u

nlikely to occur in

this state if the pr

acti ce of appointing interestedspecial prosecutors continues. This case is an appropriate one to render such an opinion, inasmuch as we approach the issue prospectively, for the defendant in this case has filed not one, buttwo pe titi ons seeking to have the interested special prosecutor removed and a disinterested special prosecutor appointed. As a further consid

eration, in deali

ng with the iss

ue of ap pointing interested special prosecutors we s

hould also recognize the existence and effect of judicial canons that govern the conduct of judges. We perceive that for at least two reasonsthe judicial cano ns are relevant

to this issue. First of all, judges must “strive to enhance and maintain confidence in our legal system,” Tenn.S.Ct.R. 10, Preamble, and secondly, becau

se the appointing judge has the resp onsibility to “act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” Tenn.S.Ct.R. 10, Canon 2. At the heart of the issue of whether an interested prosecutor should be appointed is the fact that all appointments are controlled by the t rial judge. Therefor

e, if public confi

dence is underminedby the appointment o f a special prose

cutor with conflic

ting inte rests , the judge is under an ethical obliga

tion to refrain

from making such a

n appointment. This w

ould be true even if the judge conside

red the attorney

to be able to prope

rly handle the competing interests. As the Young court stated, “the appointment of counsel for an interested party to bring the cont em pt prosecution in this

case at a minimum created opportunities for conflicts to arise, and created at least the appearance of impropriety.” Young , 481 U.S. at 806, (emphasis in origin al) 1 (footnote omitted). The appoi ntment of an interested special prosecutor presents the public with the appearance of impropriety. As such, we deem the appointment as contrary to the appearance of integrity and impartiality which the judiciary must strive to maintain. The primary interest served by the appointment of opposing counsel as special prosecutor is that of judicial economy. Because the other attorney is already familiar with the f acts of the case10

andthe con duct on which the contempt charge is based, the proceedings do not have to be suspendeduntil an outside attorney is “brought up to speed” on the case. Again, the language from Young is helpful:

The potential for misconduct that is created by the app ointment of an interested prosecutor

is not outweighed by the fact that counsel for the benefi ciary of t he court order may often b

e most familiar with

the allegedly con

tumacious conduc

t. That familiarity may be p ut to use in assisting a disinterested p rosecutor in pursuing the contempt action, but cannot justify permitting counsel for the private party to be in control of the prosecution. Id. at n.17 (emphasis in original).

The interest of judicial economy should not be placed above the interest of judicial integr i ty. Other jurisdictions have take n a sim ilar stance against the appointment of interested special prosecutors for ethical reasons. See Department of Soc. Serv. v. Montero , 758 P.2d 690, 693 (Haw. Ct. App. 1988), Stateex rel. Koppers v. International Union of Oil, Chem. & Atomic Workers , 298 S.E.2d 827, 830 (W. Va. 1982). We are aware of only two twen tieth centur y cases holding unequivocally

that a private prosecutor who also represents plaintiffs in a civil action arising out of the same proceeding presents no inherent due process or ethical problems. Hopkins v. State , 429 So.2d 1146, 1154 (

Ala. Crim. App. 1983 ); Marcisz v. Marc isz , 357 N.E.2d 477 (Ill. 1976). In sum, we hold that counsel for a party that is the beneficiary of a court order may not be appointedas prosecutor in a criminal contempt

action alleging a

violatio n of that order. The judgmentof the trial court below denying plaintiff’s pe ti tion to disqualify pr ivate counsel is reversed. This cause is remanded to the trial court for further

proceedings not incons istent with this opinion. Costs in th is cause on appea

l are taxed to defendant for which execution may issue if necessary.

_________________________ ________________ TOMLIN, SR. J.

________________________________________11 CRAWFORD, P.J. W.S. (C ONCURS )

________________________________________ FARMER, J. (C ONCURS )