Wilson v. Wilson

• Decision Date: 21 December 1998
• Citation: 984 S.W.2d 898
• Parties: Jennifer O. WILSON, Appellee, v. Larry Arnold WILSON, Appellant.
• Court: Tennessee Supreme Court

Page 898

984 S.W.2d 898

Jennifer O. WILSON, Appellee, v. Larry Arnold WILSON, Appellant.

Supreme Court of Tennessee, at Nashville.

Dec. 21, 1998.

Rehearing Denied Jan. 19, 1999.

Earl J. Porter, Jr., Nashville, Tennessee ,John J. Hollins, Sr., David L. Raybin, Hollins, Wagster & Yarbrough, P.C., Nashville, Tennessee, for appellant.

John Herbison, Nashville, Tennessee, for appellee.

Richardson and Baker, Clark Lee Shaw, Nashville, Tennessee, State of Tennessee, John Knox Walkup Attorney General & Reporter, Michael E. Moore, Solicitor General, Kathy Morante, Deputy Attorney General, Nashville, Tennessee, Family Law Section of the Memphis Bar Association, Joy Tanner Bomar, Memphis, Tennessee, Family Law Section of the Tennessee Bar Association, Larry Rice, Memphis, Tennessee, for amicus curiae.

O P I N I O N

DROWOTA, J.

We granted this appeal to determine whether a private attorney representing the beneficiary of a court order in a civil case may prosecute a criminal contempt action alleging a violation of the order. After due consideration, we conclude that no constitutional principle nor ethical standard automatically disqualifies the private attorney for the beneficiary of the order from prosecuting a contempt action for a violation of the order. Accordingly, we reverse the judgment of the Court of Appeals which adopted an automatic rule of disqualification and remand this cause to the trial court for further proceedings consistent with this decision.

BACKGROUND

The plaintiff, Jennifer O. Wilson, filed suit for divorce against the defendant, Larry A. Wilson, in the Circuit Court of Davidson County. During the course of this litigation, certain restraining orders were issued by the court, and thereafter, the defendant filed a petition for contempt against the plaintiff alleging that she had violated an order of the trial court. The petition failed to specify whether civil or criminal sanctions were being sought.

The plaintiff responded by filing a counterclaim for contempt against the defendant, and a motion to disqualify the defendant's private counsel from prosecuting the contempt action. The trial court denied the motion to disqualify, but granted the plaintiff permission to seek an interlocutory appeal from the ruling. See Tenn. R.App. P. 9

The defendant thereafter filed a second petition for contempt alleging a violation of an order of the trial court. This petition was accompanied by a notice of constitutional rights. The trial court issued an order to show cause. In response, the plaintiff again filed a motion to disqualify defendant's private counsel from prosecuting the criminal contempt action on the basis that counsel was simultaneously representing the defendant in the underlying divorce proceedings. The trial court again denied the motion but granted the plaintiff permission to seek an extraordinary appeal. See Tenn. R.App. P. 10.

The Court of Appeals granted and consolidated the interlocutory and extraordinary appeals. Relying upon a decision of the United States Supreme Court, ¹ the Court of Appeals reversed the trial court's denial of the motions to disqualify and held that "an appointment of an 'interested' special prosecutor in a criminal contempt proceeding is contrary to the ethical standards required of lawyers in the practice of law, as well as the high ethical standard required of the judicial process and is thereby prohibited."

Thereafter, we granted the defendant's application for permission to appeal, and for the reasons that follow, now conclude that no constitutional principle nor ethical standard automatically precludes a private attorney representing the beneficiary of a court order from prosecuting a contempt action for an alleged violation of the order. Accordingly, we reverse the judgment of the Court of Appeals and remand to the trial court for further proceedings consistent with this decision.

ANALYSIS

A. Standard of Review

Recently, in Black v. Blount, 938 S.W.2d 394 (Tenn.1996), this Court held that trial courts have both the inherent authority to initiate contempt proceedings and the concomitant authority to appoint private attorneys to prosecute such contempt actions. Id. at 402-03. Unlike this case, however, the conduct in Black for which contempt proceedings had been instituted did not involve the alleged violation of a court order. Also unlike this case, the private attorney appointed by the trial court to prosecute the contempt proceeding in Black did not represent any of the litigants in the underlying action from which the contempt charges arose. Accordingly, in Black we did not address, and in fact expressly reserved for a case in which it was squarely presented, the question of whether a private attorney already representing the beneficiary of a court order in a civil case may prosecute a contempt action alleging a violation of that order. Id. at 402. It is that narrow question of law which now is squarely presented in this appeal. ² Since this is a question of law, our review is de novo upon the record before this Court with no presumption of correctness attaching to the decisions of the lower courts. Warren v. Estate of Kirk, 954 S.W.2d 722, 723 (Tenn.1997); Bain v. Wells, 936 S.W.2d 618, 622 (Tenn.1997).

B. The Young

Decision

Prior to 1987, the leading case on this issue was McCann v. New York Stock Exchange, 80 F.2d 211 (2nd Cir.1935), in which Judge Learned Hand commented that to prosecute an indirect criminal contempt, committed outside the presence of the court, "the judge may prefer to use the attorney of a party, who will indeed ordinarily be his only means of information.... There is no reason why he should not do so, and every reason why he should...." Id. at 214. In 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), however, the United States Supreme Court parted company with Judge Hand when it held that federal judges could no longer appoint a private lawyer representing the beneficiary of a court order to also prosecute a criminal contempt action alleging a violation of the order.

Young began as a trademark infringement action brought by Vuitton et Fils, S.A., (Vuitton), a manufacturer of expensive handbags, against several businesses which were manufacturing and selling inexpensive imitations of Vuitton's merchandise. In July of 1982, the parties settled the trademark infringement case. Under the settlement agreement, the defendants were required to pay damages and enjoined from using Vuitton's registered trademark. Suspecting that the defendants had violated the injunction, Vuitton in early 1983 commissioned a private firm to conduct an undercover investigation. Upon discovering evidence of noncompliance, Vuitton's attorney asked the district court to appoint him and his colleagues as special counsel to prosecute a criminal contempt action for violation of the injunction. The district court found probable cause to believe that the defendants were violating the injunction and appointed Vuitton's attorney and his colleagues to represent the United States in continuing the investigation and in prosecuting the contempt action. Significantly, the appointment conferred upon Vuitton's attorneys all the powers ordinarily possessed by a government prosecutor, yet the United States Attorney's Office took no part in the prosecution of the case beyond wishing the special prosecutor "good luck." Id., 481 U.S. at 791-92, 107 S.Ct. at 2129.

Over the next month, the special prosecutor compiled more than 100 audio and video tapes of meetings and wiretapped telephone conversations between the defendants and investigators. With that evidence, the special prosecutor requested and obtained an order from the district court directing the defendants to show cause why they should not be cited for contempt for either violating or aiding and abetting the violation of the injunction. The defendants filed motions opposing both the show cause order and the appointment of Vuitton's attorneys as special prosecutor. The defense motions were denied, and eventually two of the defendants entered guilty pleas to contempt. Several other defendants were tried and convicted of contempt. Id., 481 U.S. at 792, 107 S.Ct. at 2129.

Before the United States Supreme Court, the defendants advanced two primary arguments as grounds for reversal of their convictions. First, they contended that a district court lacks authority to appoint private counsel to prosecute a contempt action and that only the U.S. Attorney may initiate a criminal contempt prosecution. Id., 481 U.S. at 793, 107 S.Ct. at 2130. Alternatively, the defendants maintained that a district court may not appoint an attorney representing the beneficiary of a court order to prosecute a criminal contempt action alleging a violation of that order. Id., 481 U.S. at 802-14, 107 S.Ct. at 2135-38.

In rejecting the defendants' first argument, the Court held that district courts have inherent power both to initiate contempt proceedings to punish disobedience to their orders and to appoint a private attorney to prosecute such contempt actions. Id., 481 U.S. at 793, 107 S.Ct. at 2130. ³ The Court commented that this power to appoint should be exercised sparingly, and only after the public prosecutor has denied a district court's request to prosecute a contempt. Id., 481 U.S. at 801, 107 S.Ct. at 2133.

The Supreme Court, however, agreed with the defendants' second argument and found that the district court erred by appointing an attorney who was representing the beneficiary of a court order to prosecute a criminal contempt for an alleged violation of the order. The Court first emphasized that private attorneys appointed to prosecute criminal contempt actions represent the interest of the United States in vindicating a court's authority. Id., 481 U.S. at 804, 107 S.Ct. at 2136. A private attorney prosecuting a criminal contempt, therefore, must assume the unique...