         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                    July 17, 2002 Session

                    STATE OF TENNESSEE v. GREGORY KEY

                    Appeal from the Circuit Court for Rutherford County
                        No. F-50213    James K. Clayton, Jr., Judge



                   No. M2002-00154-CCA-R9-CD - Filed October 15, 2002


Defendant, Gregory Key, was indicted by the Rutherford County Grand Jury on two counts of
aggravated sexual battery. During a hearing on several pretrial motions, defense counsel, Darrell
Scarlett, advised the trial court of a joint business venture between himself and Detective Lawson,
an investigating officer in the case. The court entered an Order disqualifying Defendant’s attorney
from further representation, finding that the relationship constituted an appearance of impropriety.
Pursuant to Rule 9 of the Tennessee Rules of Appellate Procedure, Defendant appeals the trial
court’s disqualification of his attorney and argues that he waived any conflict or appearance of
impropriety after full disclosure.

     Tenn R. App. P. 9 Interlocutory Appeal; Judgment of the Circuit Court Affirmed.

THOMAS T. WOODA LL, J., delivered the opinion of the court, in which J. CURWOOD WITT and ALAN
E. GLENN, JJ., joined.

Darrell L. Scarlett, Murfreesboro, Tennessee, for the appellant, Gregory Key.

Paul G. Summers, Attorney General and Reporter; Kim R. Helper, Assistant Attorney General;
William C. Whitesell, Jr., District Attorney General; and John W. Price, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                            OPINION

                                       I. BACKGROUND

        After the commencement of this case, Wayne Lawson, the detective who investigated the
allegations against Defendant approached Defendant’s attorney regarding the possibility of opening
an indoor gun range. They formed a partnership to purchase land for the venture and were approved
for a bank loan in the amount of $650,000 to construct the range. Defendant’s attorney disclosed
the business relationship to Defendant and advised him that he could retain different counsel.
Defendant declined and testified at the hearing that he waived any conflict and that he desired his
attorney’s continued representation. Defendant’s attorney and Detective Lawson agreed not to allow
their business relations to affect Defendant’s case in any way, and defense counsel maintained that
they have kept their discussions of this case to a minimum, discussing only general matters. The trial
court, however, disqualified Defendant’s attorney, finding that the representation created an
appearance of impropriety in violation of Canon 9 of the Code of Professional Conduct.

                                            II. ANALYSIS

A.      Standard of Review

        A trial court’s ruling on the disqualification of counsel will be reversed only upon a showing
of an abuse of discretion. Clinard v. Blackwood, 46 S.W.3d 177, 182 (Tenn. 2001). A trial court
abuses its discretion whenever it “applie[s] an incorrect legal standard, or reache[s] a decision which
is against logic or reasoning that cause[s] an injustice to the party complaining.” State v. Shirley,
6 S.W.3d 243, 247 (Tenn. 1999).

        Pursuant to its inherent authority, the supreme court of Tennessee governs the ethical conduct
and discipline of Tennessee attorneys. The supreme court’s special interest in ensuring that the
ethical rules applicable to the legal profession are properly administered requires close scrutiny of
the lower courts’ interpretation and application of those rules. In Clinard, our supreme court
asserted its authority, stating, “‘to the extent this court has a special interest in administering the law
governing attorney ethical rules, a trial court’s discretion is limited.’” 46 S.W.3d at 182 (quoting
Cheves v. Williams, 993 P.2d 191, 205 (Utah 1999)).

B.      Applicable Ethical Rules

        The issue presented in this appeal requires consideration of two distinct rules of ethics,
Canons 5 and 9 of the Tennessee Code of Professional Responsibility. Disciplinary Rule 5-101(A)
requires a lawyer to refuse employment when the lawyer’s interests may impair his independent
professional judgment. Tenn. Sup. Ct. R. 8. Also, Ethical Consideration 9-6 of Canon 9 requires
that lawyers avoid even the appearance of impropriety. Id.

         First, Disciplinary Rule 5-101(A) prohibits a lawyer’s acceptance of employment where the
lawyer’s professional judgment may be compromised by the lawyer’s own financial interests except
where the client consents after full disclosure. Id. In the case at bar, the Defendant’s attorney shares
a financial interest with Detective Lawson, a principal witness in the prosecution’s case against
Defendant. At the hearing, defense counsel assured the court that his joint business venture would
not affect his zealous representation of his client or compromise his duties and loyalty to his client.
The state concedes in its brief that there has not been a violation of DR 5-101(A). Based on the
record, this Court agrees. As defense counsel pointed out to the trial court, the outcome of the case
is of no consequence to the success or failure of the business between the detective and defense
counsel. The trial court expressed its confidence that defense counsel’s professional judgment and
ability to competently defend his client will not be impaired. Furthermore, Defendant testified at the


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hearing that his attorney had informed him of the partnership between himself and Detective Lawson
and Defendant waived any conflicts.

        Nevertheless, even where no actual conflict exists, the trial court must consider any
appearance of impropriety pursuant to Ethical Consideration 9-6 of Canon 9 of the Tennessee Code
of Professional Responsibility. Tenn. Sup. Ct. R. 8. Because the avoidance of the appearance of
impropriety is intended to preserve public confidence in our legal system, we must apply an objective
standard, which is that of a reasonable layperson. Clinard, 46 S.W.3d at 187-188. Where an
ordinary citizen with knowledge of the facts would perceive the representation as improper or “poses
a substantial risk of disservice to either the public interest or the interest of one of the clients,” an
appearance of impropriety exists. Id. at 187.

        The Clinard court recognized that the appearance of impropriety is an independent ground
upon which disqualification may be based. Id. Application of the standard is not limited to
situations like the one in Clinard, where a lawyer’s firm “switched teams” and opposed the lawyer’s
former clients in the same litigation. Id. at 186 (observing that ethical rules must be broad and
flexible and the appearance of impropriety may apply where more specific rules are ineffective). The
supreme court characterized the disqualification of a party’s attorney on that basis alone as a “drastic
remedy,” and warned that it be done only in those rare cases where “the taint of the appearance of
impropriety can be purged only by disqualification.” Id. at 187-88. We hold that this is such a case.
Here, the appearance of impropriety is sufficient to warrant disqualification and the trial court did
not abuse its discretion.

        Detective Lawson signed the affidavit in support of the arrest warrant, and the indictment
names Lawson as the prosecutor in the criminal case in which Defendant is charged with serious
felony offenses. After charges were brought against Defendant in this case, Detective Lawson and
Defendant’s counsel entered into a substantial business relationship as partners, including a joint
obligation on a $650,000 loan. Whether a jury should acquit Defendant or convict him as charged,
or should the charges be dismissed by nolle prosequi or Defendant be allowed to plead to lesser
included offenses and receive full probation, the circumstances in this case give rise to an appearance
of impropriety. Whatever the outcome, a reasonable layperson, knowing all the facts, certainly might
raise an eyebrow and question the effect the partnership had on the result. A legitimate lapse in
memory by the detective in his testimony, or an otherwise valid trial tactic, that in hindsight, is
determined to have been a mistake by counsel, would only fuel the public perception that the
Defendant or the State received less than a fair trial. Accordingly, we conclude that from the
perspective of a reasonable layperson, defense counsel’s representation under these circumstances
could create, to some degree, an appearance of impropriety.

C.      Waiver

        Defendant was given the opportunity to waive any conflict or appearance of impropriety on
the record. Defendant testified at the hearing that his attorney had explained to him the nature of the
business relationship and Defendant waived any conflict or appearance of impropriety and expressed


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his desire that his attorney continue to represent him. Trial courts, however, are afforded substantial
latitude in refusing to accept waivers of conflicts. The Supreme Court, in Wheat v. United States,
based this allowance to refuse waivers, at least in part, upon the federal courts’ independent interest
in ensuring compliance with ethical standards of conduct. Wheat, 486 U.S. 153, 162-63 (1988). Our
own supreme court shares the concerns of the federal courts, and therefore follows the Wheat Court’s
rationale. Burns v. State, C.C.A. No. W2000-02871-CCA-R9-PD, 2001 WL 912817 (Tenn. Crim.
App., Jackson, August 9, 2001).

                                        III. CONCLUSION

        We should note that our state supreme court has recently adopted a new set of rules
governing the conduct of attorneys. The new Rules of Professional Conduct will replace the existing
Code of Professional Conduct, effective March 1, 2003. The Model Rules of Professional Conduct,
promulgated by the American Bar Association, reject the appearance of impropriety standard. The
Clinard court noted that future revisions to the rules of ethics may yield different results. 46 S.W.3d
186 at n.7. Despite this, however, the Clinard holding remains binding precedent and under current
Tennessee law, this court must affirm the trial court’s disqualification of Defendant’s attorney based
on an appearance of impropriety.

                                                       ___________________________________
                                                       THOMAS T. WOODALL, JUDGE




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