State v. Jones

• Decision Date: 16 March 1987
• Citation: 726 S.W.2d 515,55 USLW 2582
• Parties: STATE of Tennessee, Appellee, v. Jesse JONES. In re Larry S. BANKS, Attorney, Appellant.
• Court: Tennessee Supreme Court

Page 515

726 S.W.2d 515

55 USLW 2582

STATE of Tennessee, Appellee, v. Jesse JONES In re Larry S. BANKS, Attorney, Appellant.

Supreme Court of Tennessee at Knoxville.

March 16, 1987.

Lyle Reid, Reid & Banks, P.A., Edward L. Hardister, Reid & Banks, P.A., Brownsville, for appellant.

Hal D. Hardin, General Counsel, Nashville, for Tennessee Bar Ass'n as amicus.

W.J. Michael Cody, Atty. Gen. & Reporter Ann Lacy Johns, Asst. Atty. Gen., Nashville, for appellee.

Lance B. Bracy, Chief Disciplinary Counsel, Nashville, for Board of Professional Responsibility.

OPINION

FONES, Justice.

The issue in this case is whether an attorney may refuse to accept a court ordered appointment as counsel for an indigent criminal on the ground that such representation would violate an ethics opinion issued by the Board of Professional Responsibility. ¹ The ethics opinion declared unequivocally that "county attorneys cannot represent criminal defendants prosecuted by the county officers." The county attorney was Larry Banks' law partner, and the ethics opinion expressly declared that partners and associates of the county attorney were disqualified.

The transcript of the entire proceeding in the trial court consists of a three page colloquy between the trial judge and Banks. ² Defendant Jones was indicted on 3 December 1984 for the offense of disorderly conduct and the colloquy took place on 12 December 1984. It is clear that at some date after 3 December and prior to the hearing on 12 December the trial judge had informed Banks that he would be appointed to represent defendant Jones. Banks' opening remarks reflect that he had been appointed, had looked over the file and had discussed it with the Attorney General. In open court Banks informed the trial judge that a deputy sheriff was listed on the indictment as a witness, that he was not sure whether the deputy would be a material witness or a technical witness, but that his understanding of the ethics opinion issued by the Board of Professional Responsibility was that he was precluded from representing Jones because his law partner was the county attorney. He therefore informed the court that he would have to decline the appointment. The trial court asked him if he had determined whether the deputy sheriff was anything more than a technical witness and informed Banks that the court understood that the only thing the deputy did was serve a warrant. Banks responded that that might be correct but that he understood the ethics opinion required that he decline "if there is even the appearance of a conflict." Banks gave an affirmative answer to the trial judge's question of whether he could give his best in representing defendant Jones but declined to obey the trial judge's direct order to represent defendant Jones.

The trial judge found as a fact that the conflict of interest upon which the ethics opinion was premised was not "sufficiently significant to prevent the appointment of Mr. Banks ... nor to adversely affect Mr. Banks' ability to represent the defendant zealously, competently and to the best of his ability." He found Banks in contempt, sentenced him to serve five days in the county jail, assessed a ten dollar fine and suspended the jail sentence upon payment of the fine and costs.

The Court of Criminal Appeals affirmed, one judge dissenting. Each member of the panel wrote an opinion. The lead opinion held that (1) "[t]he ethics opinion of the Board of Professional Responsibility, while persuasive, and binding on the Board of Professional Responsibility, did not have the force of law and was not binding on the courts"; (2) that there was nothing in the record to contradict the trial court's finding that Banks could ethically represent defendant Jones; and (3) that, to avoid contempt for refusal to obey an order of appointment by the court perceived to be erroneous, it was necessary to accept the appointment and seek dissolution of the order in the appellate courts.

The concurring opinion agreed with the lead opinion in every respect except one. The author of that opinion believed it unnecessary to examine the merits of the ethics opinion because of the rule of law that the trial court's order must be obeyed to avoid contempt, even though erroneous and reversible on appeal, provided the court has jurisdiction and the order is not otherwise void.

The dissenting judge was of the opinion that this case was similar to and controlled by State v. Maddux, 571 S.W.2d 819 (Tenn.1978). He also relied upon an unpublished order of this Court and an unpublished opinion of the intermediate court. His conclusion was that an attorney cannot be adjudged in contempt where he respectfully and in good faith relied upon an ethical ground for rejecting an appointment, even though the attorney be mistaken in his interpretation of the ethical considerations involved. His reliance upon Maddux for that conclusion was misplaced.

Trial judges are commanded by statute to appoint counsel for indigent defendants in criminal cases, including cases in which defendants are charged with misdemeanors. See T.C.A. Sec. 40-14-102 et seq.

Vanvabry v. Staton, 88 Tenn. 334, 12 S.W. 786 (1890), is the landmark case in this jurisdiction for the principle that, even though the trial judge's order is erroneous and is reversed on appeal, an adjudication of contempt for failure to obey that order will be sustained. Staton, the Sheriff of Montgomery County, and his prisoner, Vanvabry, were present in the criminal court of that county at the hearing on Vanvabry's petition for the writ of habeas corpus. At the conclusion of the hearing the trial judge granted the writ and ordered the prisoner released. The District Attorney told the sheriff to hold the prisoner. The sheriff obeyed the District Attorney and returned Vanvabry to jail. For this he was adjudged in contempt, fined fifty dollars and sentenced to ten days in jail.

We quote relevant portions of the opinion written for the Court by Mr. Justice Lurton, who later served on the United States Supreme Court, as follows:

The order of his Honor, the Criminal Judge, releasing the prisoner, was erroneous as we have already decided; but it was not void, being made in a case within his jurisdiction. Until superseded or reversed or vacated by appeal, it was a valid order, which the Sheriff and all other persons were obliged to respect and obey.

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The willful refusal of an officer of a Court to obey any lawful order, rule, or command of the Court is by the statutes made a contempt of Court. Code, Sec. 4881. That the Sheriff intended no personal disrespect to the Court is altogether probable. He was guided by the opinion of the District Attorney, who doubtless was of opinion that the prayer for an appeal operated to vacate and annul the order discharging the prisoner. In this he was clearly in error. The order of discharge continued in force until superseded or reversed, and it was the clear duty of the Sheriff to obey and respect it while it continued in force and operation. To have obeyed it would probably have resulted in the escape of his prisoner. But for that no responsibility would have rested upon him. This would have been of insignificant importance compared to the just respect and obedience that every Court is entitled to demand and receive.

The Court having had jurisdiction, and the contempt being one committed in the presence of the Court, the judgment not being void, is not therefore reversible, and must be affirmed.

88 Tenn. at 351-352; 12 S.W. at 790-791.

Vanvabry has not been overruled or modified in the intervening years and we have no inclination to do so.

It is urged that State v. Maddux supra, controls the disposition of this case. The facts leading to the contempt citation imposed upon Byrd, the Bradley County lawyer cited for contempt in Maddux, were significantly different from those in the instant case. Byrd was appointed to represent a defendant in a child abuse case. He moved the court to be relieved principally upon the basis that he was prejudiced against child abuse and was convinced of defendant's guilt. The court denied the motion. Byrd moved the court to reconsider, and it was upon the hearing of that motion two weeks after the first motion that he was summarily adjudged to be in contempt. At that hearing the trial judge questioned Byrd about out-of-court statements that he had allegedly made to the affect that the court's appointment of him was politically motivated and that Byrd, a State Senator, had allegedly threatened to change the judicial district so that Bradley County would not be in the trial judge's district. The trial court's decree recited that Byrd had refused the appointment, that he had made public statements that the court was motivated by politics in appointing him and that as a State Senator he would rid Bradley County of the judge. However, upon examination of the record, this Court held that there was no material evidence to support the finding of the trial judge that Byrd had refused to accept the appointment. 571 S.W.2d at 821. We further held that refusal to accept the appointment was the only alleged act committed in the presence of the court and subject to summary punishment as direct contempt. The other acts upon which the trial judge relied, the public statements, were committed out of the presence of the court; and for those acts Byrd had not been accorded the due process mandated by law. In the course of pointing out that up to the time that Byrd was cited for contempt in open court, his acts would not support a finding of refusal to accept the appointment, this Court noted that, at worst, the record reflected that Byrd was trying to convince the trial judge that it was not in the best interest of the defendant, Maddux, that he represent her. The Court added, in that context, that Byrd's efforts were "presented forthrightly and respectfully, and had not yet become an unreasoning and...