Tennessee Bar Ass'n v. Freemon

• Court: Court of Appeals of Tennessee
• Writing for the Court: McAMIS; COOPER; HOWARD; HOWARD
• Citation: 362 S.W.2d 828,50 Tenn.App. 567
• Decision Date: 09 June 1961
• Parties: TENNESSEE BAR ASSOCIATION v. Howard P. FREEMON.

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362 S.W.2d 828 50 Tenn.App. 567 TENNESSEE BAR ASSOCIATION
v.
Howard P. FREEMON. Court of Appeals of Tennessee, Middle Section. June 9, 1961.
Certiorari Denied by Supreme Court Dec. 8, 1961.

[50 Tenn.App. 568] Kenneth Harwell, Nashville, and Joseph A. Freemon, Lawrenceburg, for appellant Howard P. Freemon.

John H. Henderson, Franklin, W. J. Harbison, Jr., and John J. Hooker, Jr., Nashville, for appellee Tennessee Bar Ass'n.

Certain Members of Tennessee Bar Ass'n, practicing at Lawrenceburg, amici curiae.

McAMIS, Presiding Judge.

This action was instituted by the Tennessee Bar Association on July 7, 1959, seeking the permanent disbarment of defendant Howard P. Freemon for alleged misconduct growing out of what will be herein referred to as the Spinks divorce case and the Whitehead cases.

[50 Tenn.App. 569] It is charged that while representing the husband in the Spinks case defendant entrapped Mrs Spinks into committing an act of adultery and, while representing the plaintiffs in the Whitehead cases, made certain slanderous and defamatory remarks about opposing counsel in a petition to rehear.

The Chancellor found both charges sustained by the proof and on both grounds rendered a decree permanently disbarring defendant. Defendant has appealed and assigned errors. We consider first, as the principal ground urged for reversal, that the Chancellor erroneously considered, as evidence in this case, certain proof offered by Mrs. Spinks in the divorce suit.

Defendant was admitted to practice in 1941 and, for a number of years, has been practicing in Lawrenceburg as a member of the firm of Freemon & Freemon of

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which his father is the senior member. In 1955, the firm was employed by J. L. Spinks to bring a divorce action against his wife, a resident of Sheffield, Alabama, on the charge of desertion and wilful refusal to move with her husband to his home in Lawrence County, Tennessee. Mrs. Spinks filed an answer denying the charges of the bill.

After the answer of Mrs. Spinks was filed, defendant at the instance of his client, employed Herschel Copous, a former peace officer residing in Lawrenceburg, to go to Sheffield and place Mrs. Spinks under surveillance. About two weeks later, defendant, in company with Copous, went to Sheffield and parked near the home of Mrs. Spinks. Copous testified in the divorce suit that, while watching the home of Mrs. Spinks, he and defendant saw her leave in a car with a man and followed in defendant's [50 Tenn.App. 570] car a distance of about 100 miles to a point six miles out of Birmingham where Mrs. Spinks and the man entered, after dark, a room in Buckman Tourist Court and that he and defendant later entered the room and took pictures of them in an act of intercourse. Copous testified as a witness for defendant in this case. Defendant admits that he filed an amendment to the divorce bill charging Mrs. Spinks with adultery after taking pictures of her at the tourist court.

The answer of Mrs. Spinks to the amended bill alleges that on and after July 2, 1955, she was interviewed a number of times by a man who gave his name as Floyd Miller and who claimed to be demonstrating and selling aluminium cooking utensils; that in a short time Miller began making overtures of a romantic nature which, because of her age, she did not take seriously; that, finally, Miller asked her if she would like to work for his company and said she would take her to see his manager in Birmingham who, upon his recommendation, had agreed to give her a job if she would come to Birmingham and sign a contract; that, upon arriving at Birmingham, she was told by Miller that the manager lived at Buckman Motel; that when they went to the room where Miller told her the manager lived no one was there but upon Millers' insistence that the manager would soon be there she remained in the room where Miller later snatched off her clothing, threw her down on the bed and was attempting by force to have intercourse with her when defendant and Copous suddenly appeared in the room and began taking pictures.

As to the foregoing, the answer of Mrs. Spinks charges that her husband 'in confederation with two or more of his cohorts, and since the filing of the bill in this cause, [50 Tenn.App. 571] concocted one of the vilest and most infamous schemes of entrapment to ruin her character and create a ground for divorce in favor of complainant that consciousless minds could devise.' The answer does not expressly charge defendant herein with being connected with this scheme of entrapment. However, in her testimony in the divorce action Mrs. Spinks went into detail in charging defendant with being a prime actor in consummating it.

The Court sustained the charge of entrapment and on that ground among others dismissed the bill for divorce. The decree contains no finding that defendant, as attorney for Spinks, knowingly participated in the scheme of entrapment but he admits in this case that he actively participated in watching Mrs. Spinks at her home, and that he followed her to the tourist court and took pictures of her against her will in a most degrading and humiliating position. He says he did not testify in the divorce case on advice of his father who continued to represent Mr. Spinks. Complainant insists, we think with good reason, however, that the circumstances demanded that defendant clear his professional name even if it became necessary to withdraw from the case. The important question, however, is whether defendant was aware that Mrs. Spinks had been entrapped.

Under the holding of the Court that the finding of entrapment in the divorce suit

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is not binding on defendant as res judicata, the ultimate question is the correctness of the holding of the Chancellor that the testimony of Copous and Mrs. Spinks in the divorce case is admissible as substantive evidence against defendant in this disbarment proceeding. Complainant offered no other evidence and defendant and Copous both testified positively that there was no conspiracy of entrapment. In addition Earl [50 Tenn.App. 572] Hollis who was identified by Mrs. Spinks in her testimony in the divorce suit as the man who represented himself as 'Miller' positively denied any part in the transaction. It results that if the only testimony offered by complainant is held incompetent the findings as to the Spinks case can not be sustained. We come then to that crucial and decisive question.

To sustain the action of the Chancellor in admitting the testimony of Mrs. Spinks as evidence in this case the Bar Association relies most strongly upon the leading case of Re Santosuosso, 318 Mass. 489, 62 N.E.2d 105, 161 A.L.R. 892. That case involved an inquiry into the professional conduct of Attorney Santosuosso. As to the opinion points out, it was not a truly adversary proceeding but an information asking not for disbarment or other disciplinary action but rather for such action as the court might deem proper. But, we think, a more acute distinction lies in the fact that the evidence admitted was contained in the transcript of evidence in a case to which Santosuosso was a party, in which he appeared in person and by counsel and cross examined the witnesses against him and in which there was an ajudication of misconduct personal to him from which he could, if he chose, appeal.

The Association also relies upon State ex rel. Neb. State Bar. Ass'n. v. Gudmundsen, 145 Neb. 324, 16 N.W.2d 474; Werner v. State Bar, 24 Cal.2d 611, 150 P.2d 892; Re Lacy, 234 Mo.App. 71, 112 S.W.2d 594.

In the Gudmundsen case, after pointing out that there had been some doubt as to the admission of evidence in a disbarment proceeding of evidence heard in a former case, the Court summarized its holding by saying:

[50 Tenn.App. 573] 'It is thought, however, that this question should no longer remain in doubt. It is therefore the holding of this court that the finding in a civil action that an attorney at law has been guilty of conduct justifying disbarment is not conclusive on the same question when presented for determination in an action for disbarment; that notwithstanding the finding in the civil action the culpability of the attorney must be established in the disbarment action by a clear preponderance of the evidence. For this purpose the evidence taken at the trial of the civil action and all other competent evidence is admissible.' (Italics ours.)

It thus appears that there was a finding in the former case that the attorney had been guilty of conduct justifying the disbarment. There was no such finding in the present case.

In the Werner case, supra, the evidence admitted in the disbarment case was taken in a criminal proceeding against the attorney charging him with the theft for which disbarment was sought. The court ruled such evidence competent on the reasoning that, in reality, the parties were the same since in the former proceeding the attorney was prosecuted in the name of the people and the disbarment case against him was presented by the State Bar acting as an arm of the court and also representing the people of the state. In that case, as in the Santosuosso case, supra, the attorney was a party to the former proceeding so that his rights of cross examination and appeal were fully preserved and protected.

In Re Lacy, supra, also involved the question of the admissibility of testimony in a previous criminal proceeding against the attorney whose disbarment was [50 Tenn.App. 574] sought for the same alleged misconduct as that involved in the criminal case against him.

In only one case which has come to our attention has the testimony in a former proceeding

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to which the attorney was not a party and in which he acted only as attorney for one of the parties been admitted in a subsequent disbarment proceeding against the attorney. In the case of Re Durant, 80 Conn. 140, 67 A. 497, 10 Ann.Cas. 539, it was held that where a...