                 IN THE SUPREME COURT OF TENNESSEE
                            AT KNOXVILLE
                                  May 9, 2012 Session

                  STATE OF TENNESSEE v. JAMES BEELER

              Appeal by permission from the Court of Criminal Appeals
                      Criminal Court for Washington County
                        No. 35635    Lynn W. Brown, Judge
                              ____________________

               No. E2010-00860-SC-R11-CD - Filed November 15, 2012
                              ____________________

We accepted this appeal to determine whether a lawyer’s potential violation of the ethical
rule governing communications with a person represented by another lawyer constitutes
criminal contempt pursuant to Tennessee Code Annotated section 29-9-102(1), (2).
Although a lawyer’s violation of an ethical rule may in some circumstances constitute
criminal contempt, the evidence in this case is insufficient to support the “willful
misbehavior” element of the offense of criminal contempt. Therefore, we reverse the
judgment of the Court of Criminal Appeals, and we vacate Mr. Beeler’s conviction.

   Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Criminal
            Appeals Reversed; Conviction Vacated; Charge Dismissed

C ORNELIA A. C LARK, J., delivered the opinion of the court, in which G ARY R. W ADE, C.J.,
J ANICE M. H OLDER, W ILLIAM C. K OCH, J R., and S HARON G. L EE, JJ., joined.

Larry R. Dillow and Katherine L. Tranum, Kingsport, Tennessee, for the appellant, James
Beeler.

Robert E. Cooper, Jr., Attorney General and Reporter; William E. Young, Solicitor General;
John H. Bledsoe, Senior Counsel; Anthony Wade Clark, District Attorney General; and Janet
Hardin, Assistant District Attorney General, for the appellee, State of Tennessee.
                                              OPINION

                              Factual and Procedural Background

        On November 4, 2009, James Beeler, an attorney licensed to practice in Tennessee,
represented Christina Thomas at a suppression hearing before the Washington County
Criminal Court. Mrs. Thomas’s husband and co-defendant, James Thomas, was represented
by another attorney, Todd Ross.1 As Mr. Ross was cross-examining the Thomases’ minor
daughter, the following incident precipitated a criminal contempt citation against Mr. Beeler.

        [MR. ROSS]:             And – and it’s your testimony that when – when they
                                came out of the house and got in the car the first thing
                                they did was get this needle out and – stick it in their
                                arms?

        [WITNESS]:              No. They wiped their hands off.

        [MR. ROSS]:             Okay. They wiped their hands off first and then did this?

        [WITNESS]:              Yes.

        THE COURT:              Could you tell what they were wiping off their hands?

        [WITNESS]:              Uhm – it – it – it was – I think it was blood. I couldn’t
                                tell.

        [MR. ROSS]:             And when you said, they, did – did you actually see both
                                of them wiping things off their hands?

        [WITNESS]:              Yes.

        [MR. ROSS]:             And what were they using to wipe it off with?

        [WITNESS]:              Like baby wipes or something.

        [MR. ROSS]:             Okay. And . . .


        1
          The record does not indicate what charges were pending against the Thomases. However, Mr.
Beeler’s brief to the Court of Criminal Appeals indicates that both Thomases were charged with “aggravated
assault, kidnapping, and various other offenses.”

                                                    2
      MR. BEELER:         (Whispering – indiscernible).

      [MR. ROSS]:         . . . how long – how long did you guys [sit] in the
                          driveway after they came and got in the car?

      THE COURT:          Mr. Beeler, it appears to the court that you are talking to
                          Mr. Ross’ client, and I don’t think you are allowed to do
                          that without his permission, and you’re doing it behind
                          his back. Have you given Mr. Beeler permission to talk
                          to your client?

      MR. ROSS:           No. No, Your Honor.

      THE COURT:          That appears to be a violation of your cod[e] – of the
                          Code of Ethical Conduct, Mr. Beeler.

      MR. BEELER:         I didn’t get any response from him, Your Honor.

      THE COURT:          Well, why are you talking to him if you don’t want a
                          response?

      MR. BEELER:         Err[or] of judgment, Your Honor.

      THE COURT:          The court reporter will type up this portion of the tape
                          and I shall report you to the Board of Professional
                          Responsibility. I expect better conduct than this from a
                          member of the Bar in this district, of course, you’re from
                          another district. If you come into this district I expect
                          you to be honest, above board and follow the rules. Do
                          you understand me?

      MR. BEELER:         Yes, sir.

      THE COURT:          Proceed.

       When the suppression hearing ended, the trial judge questioned Mr. Thomas under
oath as to the preceding incident:




                                           3
       THE COURT:           When Mr. Beeler was questioning the young witness,
                            [name omitted], Mr. Beeler spoke to you for a period of
                            time, is that correct?

       MR. THOMAS:          He was talking, yes, sir.

       THE COURT:           What was he telling you, or asking you?

       MR. THOMAS:          He was asking me a question, Your Honor.

       THE COURT:           What was the question that he asked you?

       MR. THOMAS:          He asked me did I go to the store during that time?

       THE COURT:           And Mr. Ross has already said that was without
                            permission of counsel. Very well. I need to get the court
                            clerk before I make findings regarding this. So, let’s take
                            a really short recess. I’ve taken more recesses, and it
                            takes me – it’s a hike to get back to my office now. So,
                            court is in recess. Although, before I recess – before I
                            recess, I will say to Mr. Thomas, thank you, sir.

       MR. THOMAS:          Yes, sir.

      After a recess, the trial court denied the Thomases’ motion to suppress before citing
Mr. Beeler for contempt of court:

              Mr. Beeler, the court is going to cite you with contempt of court. What
       you did in this court’s presence is something that I have never seen in my
       entire practice of law since 1977. Mr. Ross was at the lectern examining a
       witness and you leaned over and talked to his client. Our Rules of Professional
       Responsibility provide, Rule 4.2 of Rule 8, of the Tennessee Supreme Court
       says, and I quote, “in representing a client a lawyer shall not communicate
       about the subject of the representation with a person the lawyer knows to be
       represented by another lawyer in the matter, unless the lawyer has [the]
       consent of the other lawyer, or is authorized by law.” Mr. Ross has said he had
       given no permission for you to talk to Mr. Thomas. Therefore, the court cites
       you for contempt of court for two things, or two provisions, Tennessee Code
       Annotated 29-9-102. You are cited for contempt of court for willful
       misbehavior in the presence of the court so as to obstruct the administration of

                                              4
        justice. We cannot have lawyers going behind another lawyer’s back and
        talking to the client. The court’s been astounded with what I saw. Also,
        second reason for citing under the same statute, Part II, willful misbehavior of
        an officer of the court in an official transaction. . . .

       Having set his bond, advised him to obtain counsel, and scheduled a hearing, the trial
court declined to hear from Mr. Beeler at that time:

        MR. BEELER:             Your Honor, my intentions are to state that I did make
                                that comment. It was (indiscernible) . . .

        THE COURT:              I’m not having a hearing today. I’m setting it for hearing
                                for you to show cause why you should not be found in
                                contempt of court. Sheriff, take him to jail.

The record reflects that Mr. Beeler posted bond the same day.

        Mr. Beeler filed a motion to dismiss, which the trial court denied after a hearing on
March 1, 2010.2 Larry Dillow represented Mr. Beeler at the hearing and argued that Mr.
Beeler did not violate Rule of Professional Conduct 4.2 because Mr. Ross implicitly gave Mr.
Beeler permission to speak with his client. In response, the trial judge stated that “the
citation for contempt of court is not for violation of Rule 4.2. The citation for contempt is
for willful misbehavior in the presence of the court so as to obstruct the administration of
justice.” The following colloquy then occurred as to Mr. Beeler’s motion to dismiss:

        THE COURT:              Paragraph 10 alleges contempt may be a sanction for a
                                violation of Rule 4.2. That’s – that’s again, that’s not the
                                point. The citation it – it interferes with the complete
                                administration of justice for a lawyer to talk improperly
                                to another lawyer’s client without permission and behind
                                his back, literally and figuratively. That’s – it’s not what
                                the – the court is addressing, so . . .

        MR. DILLOW:             If Your Honor would, tell me specifically what willful
                                conduct we’re talking about. If it’s – if it’s a violation of


        2
         Prior to the filing of this motion, Mr. Beeler filed a motion and amended motion asking that the
hearing, originally set for December 18, 2009, be continued until after the Board of Professional
Responsibility acted on the complaint. Although no orders are included in the record, it is clear that the
hearing did not actually occur until March 1, 2010.

                                                    5
                                 the Code of Professional Conduct then it should initiate
                                 in the Supreme Court for jurisdiction.

        THE COURT:               Well, the disciplinary part can, but the contempt occurs
                                 in this court, this court, therefore, has jurisdiction. The
                                 willful conduct is talking to another lawyer’s client
                                 which it turned out to disrupt the proceedings entirely.
                                 So, actions that disrupt this court’s proceedings can be
                                 punished for contempt.

        After denying the motion to dismiss, the trial court heard Mr. Beeler’s proof as to why
he should not be held in contempt.3 Regarding Mr. Ross, Mr. Beeler testified: “To my
absolute knowledge and still to my knowledge I had full complete permission to talk to his
client about anything.” Asked by the court whether Mr. Ross had not been truthful in
denying that he had given Mr. Beeler permission to speak with this client, Mr. Beeler
answered: “I think Mr. Ross was caught by surprise and he meant as to that particular
question he hadn’t at that second given me permission. I do not think he in any way meaning
[sic] as an all encompassing statement of no because of everything that had transpired prior
to that time.” Mr. Beeler then explained what occurred on the morning of the contempt
incident:

                 The morning I arrived here at the courthouse at approximately 8:30. I
        was walking through the metal detectors and Mr. Ross and his client came up
        and started talking to me about the case. We [sat] down out in the hallway and
        we talked about it until court convened; had all opportunities that morning.
        We talked about it openly. Mr. Ross left me alone with his client talking on
        three or four occasions. He went to check on a case he had in civil court. He
        went to talk to another attorney about, I believe, a bankruptcy matter. He went
        to try that case he had in civil court, and then during the lunch hour while Your
        Honor was in recess we talked openly. He also talked with my client at all
        times that they were here. We had talked about everything about this case with
        no restrictions, no reservations of any kind or nature. And we had talked right
        up to the time court convened again . . . . So, Mr. Ross by his conduct had


        3
          The record indicates that the District Attorney General for Washington County declined to
prosecute the contempt charge. See Black v. Blount, 938 S.W.2d 394, 402 (Tenn. 1996) (district attorney
general has no duty to prosecute criminal contempt charge). In such a case, the trial court may appoint an
attorney to prosecute the charge. Id. (citing Tenn. R. Crim. P. 42(b)). The trial court did not appoint such
an attorney in this case for reasons that are unclear. The record also does not reflect why the Attorney
General agreed to defend against the appeal.

                                                     6
       given me complete permission to talk with his client, and I had given him
       complete permission to talk with my client which he did do.

      Mr. Beeler further testified as to his interaction with Mr. Ross and Mr. Thomas in the
weeks preceding the suppression hearing:

       [MR. BEELER]:        I set up an appointment with Mr. Ross at his office a
                            couple of weeks or so before this happened. We had a
                            full complete meeting. We discussed that the defenses
                            were the same, that everything was the same, that the act
                            of one was the act of the other. We decided what
                            witnesses we were hoping to call. We’d talked about
                            dividing cross examination of witnesses, and argument of
                            motions. We agreed that we would work together fully
                            and cooperatively, and we never put any restrictions on
                            this except that we would not call the other person’s
                            client and have them come to our office, that was the
                            thing we agreed on. We agreed that we would not
                            initiate discussions unless both of us were there, or both
                            of us were aware of it, and that’s how the thing
                            happened.

       ....

       [MR. DILLOW]:        Did you and Mr. Ross and your client, and Mr. Ross’
                            client, did you all have any type of conflict between you
                            all and your joint preparation of your defenses?

       [MR. BEELER]:        No, none at all. As a matter of fact, Mr. Ross’ client had
                            tried to call my office on several occasions, and I refused
                            the call and referred him to Mr. Ross. He also did that on
                            [an] occasion or two when he was represented by Mr.
                            Crichton, [his] prior attorney. I also turned him away
                            and sent him to Mr. Crichton. They – he came to my
                            office one day with his wife. I told him I couldn’t talk to
                            him. I told him that I absolutely could not. I sent them
                            both away. And the bottom line, his wife’s explanation
                            was they didn’t know there was anything wrong with that
                            ‘cause Mr. Spurrell [her prior attorney] and Mr. Crichton
                            talked to them interchangeably whenever. But, I have

                                             7
                            not talked with them alone at any point in time. I did not
                            talk to him that day without the permission of Mr. Ross.

      The hearing was then continued until April 16, 2010, at which time Mr. Ross testified
on behalf of Mr. Beeler:

       [MR. DILLOW]:        Did you have any objections at that time, while Mr.
                            Beeler and your client were seated at counsel table, with
                            Mr. Beeler talking with your client?

       [MR. ROSS]:          From what I understand from my client, the question that
                            was asked of him was something that we had already
                            been discussing that day, and it was just an affirmation
                            that – of something that had already been talked about,
                            and that’s all he was asked. So, I mean, if Mr. Beeler
                            had asked me is it okay to ask him that question, I
                            certainly wouldn’t have minded because we had already
                            – we had already talked about that so . . .

       ....

       THE COURT:           Well, did you – did you give Mr. Beeler permission to
                            talk to your client during that proceeding?

       MR. ROSS:            I never specifically told him he had permission to talk to
                            my client. I mean, it just – it was never asked. We never
                            talked about that. That never came up, so specifically,
                            no, I guess not.

       ....

       THE COURT:           I asked, “Have you given Mr. Beeler permission to talk
                            to your client?” And your answer, “No, no, Your
                            Honor.” Is there anything that you want to change about
                            that?

       MR. ROSS:            No. That answer remains the same. I had not
                            specifically given him permission to talk to my client, but
                            I can certainly understand in the course of the case, you



                                             8
                             know, we had been here for four (4), five (5), six (6)
                             hours. I’m not sure what time it was.

       THE COURT:            One of those days.

       MR. ROSS:             And during that time several of those hours had probably
                             been spent out there on a bench or standing outside
                             talking. And, you know, for all that time we’re standing
                             there talking. And then during the course of her
                             testimony I guess she said something that sparked
                             something in his head, and he leaned over just to affirm
                             something [he] had been told earlier. I can certainly
                             understand how that could happen. You asked me did I
                             specifically give him permission to talk to him. No, I
                             didn’t. Did he ask him anything that he didn’t already
                             know the answer to? No.

      After hearing all the evidence, the trial court made the following findings of fact and
conclusions of law:

       This is a non-jury trial. The court has had an opportunity at the original
       proceeding on November the 4th to judge Mr. Ross’ credibility, again today,
       and also Mr. Beeler’s credibility, and they are in conflict. The court finds that
       Mr. Ross is credible, that when he was asked, . . . he’s cross-examining a
       young witness, a key prosecution witness against his client. Mr. Ross
       indicated very emphatically, no, that he had not given Mr. Beeler permission
       to talk to his client. . . . And then Mr. Beeler, which didn’t help his credibility,
       the court asked, “Well, why are you talking to him if you don’t want a
       response?” in that colloquy. And Mr. Beeler’s response is “Error of
       judgment.” And he would have been better served to have admitted and
       apologized, which he never did. And we’ve gone through the issues of
       whether or not this court is enforcing the rules of the Board of Professional
       Responsibility, particularly, “A lawyer shall not communicate about [the]
       subject [of the] representation with a person a lawyer knows to be represented
       by another lawyer unless the lawyer has the consent of the other lawyer or is
       authorized by law.” And Mr. Ross doesn’t back away from what he said
       before. He says he can understand, it’s something they talked about in the
       past, but that Mr. Beeler did not have permission. And the problem with this
       is under the circumstances with Mr. Ross cross-examining a key witness, the
       issue is whether this is willful misbehavior in the presence of the court so as

                                                9
       to obstruct the administration of justice or willful misbehavior of an officer of
       the court, which Mr. Beeler as an attorney is, in an official transaction. . . .
       And just because they may have talked about it before, in the scheme of things
       doesn’t change that. . . . In Mr. Beeler’s testimony he sort of hems and haws
       that, well, he had – doesn’t come around and say it this way. I’ve got that in
       my notes. He gave permission by his conduct was Mr. Beeler’s testimony, and
       that just doesn’t cut it. It just doesn’t cut it. . . .

The trial court sentenced Mr. Beeler to a fifty-dollar fine and a ten-day jail term that was
subsequently ordered to be served on probation. Mr. Beeler appealed his conviction, arguing
that the evidence does not support the “misbehavior” element of criminal contempt pursuant
to Tennessee Code Annotated section 29-9-102(1), (2) (2000).

        The Court of Criminal Appeals observed that the only judgment order in the record
does not specify which prong of the statute the trial court found Mr. Beeler to have violated.
State v. Beeler, No. E2010-00860-CCA-R3-CD, 2011 WL 5071920, at *5 (Tenn. Crim. App.
Oct. 26, 2011). Concluding from the record that the trial court primarily relied upon the first
ground—“willful misbehavior of any person in the presence of the court,” Tenn. Code Ann.
§ 29-9-102(1)—the Court of Criminal Appeals found the evidence sufficient and upheld the
conviction. Beeler, 2011 WL 5071920, at *5, *9. We granted Mr. Beeler permission to
appeal.

                                    Standard of Review

       A person charged with criminal contempt is presumed innocent, and guilt must be
proven beyond a reasonable doubt. Black v. Blount, 938 S.W.2d 394, 399 (Tenn. 1996);
Robinson v. Air Draulics Eng’g Co., 377 S.W.2d 908, 912 (Tenn. 1964). Once convicted,
however, the contemnor loses the presumption of innocence and bears the burden of
overcoming the presumption of guilt on appeal. Black, 938 S.W.2d at 399; Robinson, 377
S.W.2d at 912. Thus, appellate courts do not review the evidence in a light favorable to the
accused. Thigpen v. Thigpen, 874 S.W.2d 51, 53 (Tenn. Ct. App. 1993). A conviction will
be reversed for insufficient evidence only when the facts in the record, and any inferences
that may be drawn therefrom, are insufficient as a matter of law for a rational trier of fact to
find the accused guilty of the crime beyond a reasonable doubt. Black, 938 S.W.2d at 399;
Tenn. R. App. P. 13(e).




                                              10
                                                Analysis

                                                Contempt

       At common law, courts held vast and undefined power to punish attorneys for
contemptuous acts. Black, 938 S.W.2d at 397 (citing State v. Galloway, 45 Tenn. 326, 330
(1868); Ronald L. Goldfarb, The Contempt Power (1963)). Judge James H. Peck, a
Tennessee native,4 infamously abused this power by summarily disbarring an attorney for
publishing editorials critical of his opinions. Cammer v. United States, 350 U.S. 399, 406
(1956) (citing Joseph Stansbury, Report of the Trial of James H. Peck (1833)). In 1830, the
House impeached Judge Peck, who escaped conviction in the Senate by a single vote. Id.
To prevent future abuses, Congress enacted the Contempt Act of March 2, 1831, ch. 99, 4
Stat. 487 (current version at 18 U.S.C. § 401 (2006)). This statute codifies a “drastic
delimitation by Congress of the broad undefined power of the inferior federal courts.” Nye
v. United States, 313 U.S. 33, 45 (1941).

        In 1831, the Tennessee General Assembly enacted similar legislation to curb the
contempt power of state judges. Act of Dec. 19, 1831, ch. 19, 1831 Tenn. Pub. Acts 34; see
also State v. Gray, 46 S.W.3d 749, 750 n.1 (Tenn. Ct. App. 2000). We have long recognized
that the contempt power of Tennessee courts—though inherent and essential to the
administration of justice, Winfree v. State, 135 S.W.2d 454, 455 (Tenn. 1940)—has been
circumscribed by statute. Scott v. State, 71 S.W. 824, 825 (Tenn. 1902); see also Tenn. Code
Ann. § 16-1-103 (2009) (“For the effectual exercise of its powers, every court is vested with
the power to punish for contempt, as provided for in this code.” (emphasis added)). The
contempt statute, in relevant part, authorizes courts to punish “willful misbehavior” pursuant
to the contempt power:

        Scope of Power. The power of the several courts to issue attachments, and
        inflict punishments for contempts of court, shall not be construed to extend to
        any except the following cases:
        (1) The willful misbehavior of any person in the presence of the court, or so
        near thereto as to obstruct the administration of justice;
        (2) The willful misbehavior of any of the officers of such courts, in their
        official transactions;
        ....

Tenn. Code Ann. § 29-9-102.


        4
          Judge Peck served on the United States District Court for the District of Missouri from 1822 until
his death in 1836.

                                                    11
        Contempt is categorized as “direct” or “indirect,” depending on whether the
misbehavior occurred in the court’s presence. Black, 938 S.W.2d at 398. This classification
is important in criminal contempt cases because Tennessee Rule of Criminal Procedure 42
allows for a summary proceeding if the contemptuous conduct occurs before the court; but
if not, certain procedural protections must be observed, including notice, a hearing, and
recusal if the contempt charged involves disrespect to or criticism of the judge. Tenn. R.
Crim. P. 42. Courts must scrupulously adhere to these strictures because “summary
punishment departs, often dramatically, from traditional notions of due process that are the
hallmarks of criminal justice.” State v. Turner, 914 S.W.2d 951, 957 (Tenn. Crim. App.
1995).5

       Courts have also recognized two species of contempt—civil and criminal. State ex
rel. Anderson v. Daugherty, 191 S.W. 974, 974 (Tenn. 1917). Civil contempt is remedial in
character and usually employed to compel obedience to a court order. See, e.g., Konvalinka
v. Chattanooga-Hamilton Cnty. Hosp. Auth., 249 S.W.3d 346, 354 (Tenn. 2008). Criminal
contempt, by contrast, is “punitive in character,” Thigpen, 874 S.W.2d at 53, and is “intended
to preserve the power and vindicate the dignity and authority of the law, and the court as an
organ of society.” Black, 938 S.W.2d at 398. We have cautioned that criminal contempt
charges should be used sparingly. Robinson, 377 S.W.2d at 911-12 (“While the power to
punish for contempt may and should be used in an appropriate case, it should not be used
unless the case clearly calls for its exercise.”).

        With these principles in mind, we consider whether the evidence in this case supports
the trial court’s finding that Mr. Beeler engaged in “willful misbehavior” for purposes of
section 29-9-102(1), (2). Although the Court of Criminal Appeals found that the trial court
primarily relied upon the “willful misbehavior of any person in the presence of the court,”
Tenn. Code Ann. § 29-9-102(1), the record reflects that the trial court also premised the
conviction upon the “willful misbehavior of any of the officers of such courts,” Tenn. Code




        5
           Summary contempt is appropriate “when there is a need to ‘act swiftly and firmly to prevent
contumacious conduct from disrupting the orderly progress of a criminal trial.’” Turner, 914 S.W.2d at 956
(quoting United States v. Wilson, 421 U.S. 309, 319 (1975)). Unfortunately, our courts are occasionally
subjected to genuinely disruptive conduct. E.g., State v. Whetstone, No. E2010-02333-CCA-R3-CO, 2001
WL 5147795 (Tenn. Crim. App. June 28, 2011). In such cases, exercise of the summary contempt power
may be necessary to restore order, but Rule 42(a) presupposes that the observed conduct is contemptuous;
if the court has any doubt on this point, a summary proceeding is not the appropriate means for adjudicating
the matter. In this case, the trial court substantially complied with the notice and hearing requirements of
Rule 42(b) regarding indirect contempts.

                                                    12
Ann. § 29-9-102(2).6 Thus, we will consider both grounds. However, because “willful
misbehavior” is an element of criminal contempt under both subsections, we will focus on
whether the facts in the record, and any inferences that may be drawn therefrom, are
sufficient for a rational trier of fact to conclude beyond a reasonable doubt that Mr. Beeler
engaged in “willful misbehavior.” See Black, 938 S.W.2d at 399.

       The trial court premised the contempt charges and conviction on Mr. Beeler’s alleged
violation of Tennessee Supreme Court Rule 8, Rule of Professional Conduct 4.2:

        Rule 4.2. Communication with a Person Represented by Counsel. — In
        representing a client, a lawyer shall not communicate about the subject of the
        representation with a person the lawyer knows to be represented by another
        lawyer in the matter, unless the lawyer has the consent of the other lawyer or
        is authorized by law to do so.7

Mr. Beeler concedes that he communicated with a person he knew to be represented by
another lawyer, and he has not disputed that his communication pertained to the subject
matter of the representation; however, Mr. Beeler vigorously contends that he had the
effective consent of the other lawyer by virtue of their close cooperation in preparing a joint
defense. Mr. Beeler reasons that his entirely ethical conduct cannot constitute “willful
misbehavior” for purposes of contempt.




        6
           Criminal contempt may also be premised upon “[t]he willful disobedience or resistance of any
[court] officers, party, juror, witness, or any other person, to any lawful writ, process, order, rule, decree, or
command of [the] courts.” Tenn. Code Ann. § 29-9-102(3). For purposes of this statute, we have held that
Tennessee Supreme Court Rule 9 is a standing order of this Court, the willful violation of which may
constitute criminal contempt. Doe v. Bd. of Prof’l Responsibility, 104 S.W.3d 465, 472 (Tenn. 2003).
However, we also held that any charge of contempt based upon Rule 9 must be filed in this Court because
trial courts lack jurisdiction to vindicate the orders of this Court. Id. at 474. Although the parties to this
appeal dispute the holding and applicability of Doe to Mr. Beeler’s alleged violation of a provision of
Tennessee Supreme Court Rule 8, the trial court clearly premised the contempt charge against Mr. Beeler
solely on the “misbehavior” subsections of the contempt statute. See Tenn. Code Ann. § 29-9-102(1), (2).
Accordingly, we need not discuss the third subsection or Doe in this opinion.
        7
         This version of Tennessee Supreme Court Rule 8, Rule of Professional Responsibility 4.2, effective
March 1, 2003, has been slightly revised, effective January 1, 2011: “In representing a client, a lawyer shall
not communicate about the subject of the representation with a person the lawyer knows to be represented
by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do
so by law or a court order.”


                                                       13
        The principle that not every ethical violation is criminal contempt of court can be
traced to Ex parte Robinson, 86 U.S. (19 Wall.) 505 (1873). In that case, the target of an
unserved grand jury subpoena promptly left town upon speaking with a lawyer. The judge
ordered the lawyer to show cause why he should not be punished for contempt. When the
lawyer declared, “I shall answer nothing,” the judge summarily disbarred him. The Court
noted that the Contempt Act of 1831 authorized courts to punish contempt with fines or
imprisonment, but “the power to disbar an attorney proceeds upon very different grounds.”
Id. at 512. This is not to say that unethical conduct and contemptuous misbehavior are
unrelated:

       While we acknowledge that a court’s power to discipline or disbar an attorney
       “‘proceeds upon very different grounds’ from those which support a court’s
       power to punish for contempt,” [citing Cammer, 350 U.S. at 408 n.7 (quoting
       Ex parte Robinson, 86 U.S. (19 Wall.) at 512)], we consider and apply ethical
       benchmarks when determining whether an attorney’s conduct is inappropriate
       to his role and thus constitutes contumacious misbehavior.

United States v. Thoreen, 653 F.2d 1332, 1340 (9th Cir. 1981). In Thoreen, the Ninth Circuit
chastised defense counsel for disguising a witness as his client and seating him at the defense
table—an overzealous tactic the court deemed unethical, but not necessarily contemptuous.
Id.

       State courts have also held that conduct is not contemptuous solely because an ethical
rule forbids it. State v. Long, 844 P.2d 381, 385 (Utah Ct. App. 1992) (“[A] criminal
contempt conviction requires more than an attorney’s violation of an ethical duty.”); People
v. Wolf, 514 N.E.2d 1218, 1220 (Ill. App. Ct. 1987) (“A violation of the Code [of
Professional Conduct] does not [per se] constitute a criminal offense.”). Reviewing cases,
the Long court held that “violation of an ethical duty will support a criminal contempt
conviction . . . only if the ethical impropriety also impinges upon the integrity of the court.”
844 P.2d at 385 (emphasis added).

        Tennessee also recognizes this distinction. As already noted, the criminal contempt
power is “intended to preserve the power and vindicate the dignity and authority of the law,
and the court as an organ of society.” Black, 938 S.W.2d at 398. On the other hand, the
Rules of Professional Conduct “are designed to provide guidance to lawyers and to provide
a structure for regulating conduct through disciplinary agencies.” Tenn. Sup. Ct. R. 8, ¶ 15.
The Board of Professional Responsibility is charged with investigating alleged grounds for
discipline and taking appropriate action. Tenn. Sup. Ct. R. 9, § 5.5. Although a court retains
“such powers as are necessary for that court to maintain control over proceedings conducted
before it, such as the power of contempt,” Tenn. Sup. Ct. R. 9, § 1.2, we have cautioned that

                                              14
this power should be used sparingly. Robinson, 377 S.W.2d at 911-12 (“While the power
to punish for contempt may and should be used in an appropriate case, it should not be used
unless the case clearly calls for its exercise.”). Cf. In re McCune, 717 P.2d 701, 709 (Utah
1986) (“The focus and purpose of the [ethical] rule and the [criminal contempt] statute are
different. They operate in separate spheres. There is, therefore, no conflict.”), abrogated on
other grounds by Monson v. Carver, 928 P.2d 1017, 1027 n.7 (Utah 1996). Thus, unethical
conduct may amount to criminal contempt, but only if the conduct also “embarrasses,
hinders, or obstructs a court in its administration of justice or derogates the court’s authority
or dignity, thereby bringing the administration of law into disrepute.” Black, 938 S.W.2d at
399.8

        In this case, Mr. Beeler argues that even if an ethical violation may be punished as
criminal contempt, the question he posed to Mr. Thomas was not unethical because Mr. Ross
had impliedly consented to such communications. Because the trial court premised the
contempt citation upon what it determined to be an ethical violation, Mr. Beeler reasons that
his entirely ethical behavior cannot support a conviction for criminal contempt under either
of the “willful misbehavior” grounds cited by the court. Again, we must consider whether
the facts in the record, and any inferences that may be drawn therefrom, are sufficient for a
rational trier of fact to conclude beyond a reasonable doubt that Mr. Beeler engaged in
“willful misbehavior.” See Black, 938 S.W.2d at 399.

       Few of our precedents address the “willful misbehavior” grounds for criminal
contempt, e.g., Robinson, 377 S.W.2d at 911-13, and we have not defined the exact contours
of “willful misbehavior” for this purpose. As the United States Supreme Court has
recognized, “‘willfully’ is sometimes said to be ‘a word of many meanings’ whose
construction is often dependent on the context in which it appears.” Bryan v. United States,
524 U.S. 184, 191 (1998) (citing Spies v. United States, 317 U.S. 492, 497 (1943)).9 We

        8
          Even if unethical conduct does not rise to the level of criminal contempt, a judge still may have a
duty to report it to the Board of Professional Responsibility. See Tenn. Sup. Ct. R. 10, RJC 2.15(B) (“A
judge having knowledge that a lawyer has committed a violation of the Rules of Professional Conduct that
raises a substantial question regarding the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other
respects shall inform the appropriate authority.”); id. at 2.15(D) (“A judge who receives information
indicating a substantial likelihood that a lawyer has committed a violation of the Rules of Professional
Conduct shall take appropriate action.”). Appropriate action includes, but is not limited to, “communicating
directly with the lawyer who may have committed the violation, or reporting the suspected violation to the
appropriate authority or other agency or body.” Id. at cmt. 2.
        9
          As illustrated by the following exchange between Judge Learned Hand and Professor Herbert
Wechsler, the reporter for the Model Penal Code, some legal experts would prefer to eliminate “willfully”
from statutes defining criminal offenses:


                                                     15
have used the phrase “willful misconduct” interchangeably with “willful misbehavior.”
Black, 938 S.W.2d at 401. Additionally, in the contempt context, we recently reaffirmed that
“willful disobedience or resistance . . . to any lawful writ, process, order, rule, decree, or
command of [the] courts,” Tenn. Code Ann. § 29-9-102(3), entails an intentional violation
of a known duty for both civil and criminal contempt. See In re Sneed, 302 S.W.3d 825, 826
n.1 (Tenn. 2010) (published order) (criminal contempt for “willful” violation of court order,
Tenn. Code Ann. § 29-9-102(3)); Konvalinka, 249 S.W.3d at 357 (civil contempt for
“willful” violation of court order, Tenn. Code Ann. § 29-9-102(3)); cf. Mitchell v.
Fayetteville Pub. Utils., 368 S.W.3d 442, 449 (Tenn. 2012) (“[T]he willful misconduct
defense [in workers’ compensation cases] was intended to preclude recovery for intentional
violations of established rules or policies.”).

       The parties to this appeal do not dispute the meaning of “willful,” however, for
purposes of Tennessee Code Annotated section 29-9-102(1), (2). In particular, Mr. Beeler
avers that “willful” means “intentional,” as defined by statute. See Tenn. Code Ann. § 39-
11-302(a) (“‘Intentional’ refers to a person who acts intentionally with respect to the nature
of the conduct or to a result of the conduct when it is the person’s conscious objective or
desire to engage in the conduct or cause the result.”). While Mr. Beeler argues that it was
not his conscious objective or desire to engage in the conduct, we have little difficulty
concluding otherwise—the evidence plainly demonstrates that Mr. Beeler knew what he was
saying and to whom he was speaking. However, Mr. Beeler’s argument that his conduct,
even if “willful,” did not entail “misbehavior,” is convincing.

       We derive a statute’s meaning by considering it as a whole, CAO Holdings, Inc. v.
Trost, 333 S.W.3d 73, 86 (Tenn. 2010), “because words are known by the company they
keep.” State ex rel. Comm’r of Transp. v. Medicine Bird Black Bear White Eagle, 63
S.W.3d 734, 754-55 (Tenn. Ct. App. 2001) (citing Babbitt v. Sweet Home Chapter of Cmtys.
for a Great Oregon, 515 U.S. 687, 694 (1995)). In the contempt statutes at issue in this
appeal, the General Assembly chose to use “willful misbehavior”—not “willful behavior.”


       Judge Hand: [Willfully is] an awful word! It is one of the most troublesome words in a
       statute that I know. If I were to have the index purged, “wilful” would lead all the rest in
       spite of its being at the end of the alphabet.

       Professor Wechsler: I agree with you Judge Hand, and I promise you unequivocally that the
       word will never be used in the definition of any offense in the Code. But because it is such
       a dreadful word and so common in the regulatory statutes, it seemed to me useful to
       superimpose some norm of meaning on it.

American Law Institute, Model Penal Code § 2.20, at 249 n.47 (1985).


                                                   16
The evidence is simply insufficient to support the trial court’s finding that Mr. Beeler
engaged in “willful misbehavior.”

        The trial court relied heavily on its initial colloquy with Mr. Ross: “Have you given
Mr. Beeler permission to talk to your client? No. No, Your Honor.” We are mindful that
the trial court found the testimony of Mr. Ross credible and in conflict with that of Mr.
Beeler. We will not reweigh the evidence, but much of the testimony offered at the
subsequent contempt hearing is simply not in conflict. Mr. Ross testified that he and Mr.
Beeler had closely cooperated on the defense of their clients, which included several hours
of joint discussion on the morning of the suppression hearing. Indeed, Mr. Ross testified that
although he had not explicitly given Mr. Beeler permission to speak with his client at the
moment he posed the question, both attorneys had spoken openly with each other’s clients
about the case—including the subject matter of the question—just hours before the hearing.
Moreover, Mr. Ross testified that he would have permitted Mr. Beeler to ask his client the
question had Mr. Beeler sought his permission. Finally, Mr. Ross testified that he understood
how Mr. Beeler could have believed express permission was unnecessary, because Mr.
Beeler spoke with Mr. Thomas about the case for several hours that morning—both in and
out of the presence of Mr. Ross—without objection.

        Likewise, Mr. Beeler testified that he and Mr. Ross spoke openly together and with
their clients about their defense for several hours on the morning of the hearing. Mr. Beeler
also testified that he and Mr. Ross had agreed to cooperate weeks earlier and that they had
placed no restrictions on communicating with each other’s client, except that neither attorney
would meet with the other’s client in his office without the other attorney. Moreover, Mr.
Beeler testified that he honored this agreement by sending away Mrs. Thomas—his own
client—when she came to his office with Mr. Thomas. The trial court continued to rely
heavily on Mr. Ross’s original answer to the first question asked of him during the
suppression hearing, but Mr. Ross qualified and clarified that first answer in his subsequent
testimony. Furthermore, the record does not demonstrate that Mr. Beeler’s conduct
embarrassed, hindered, or obstructed the trial court in the administration of justice, nor that
it derogated the trial court’s authority or dignity. See Black, 938 S.W.2d at 399.

       Although we do not review the evidence in a light favorable to the accused, we
nevertheless conclude that the evidence in the record is insufficient to support the trial court’s
determination that Mr. Beeler engaged in “misbehavior,” for purposes of Tennessee Code
Annotated section 29-9-102(1), (2). Accordingly, we reverse the judgment of the Court of
Criminal Appeals and vacate Mr. Beeler’s conviction.




                                               17
                                         Recusal of Trial Judge

        In both the Court of Criminal Appeals and before this Court, Mr. Beeler has asserted
that the trial judge sua sponte should have recused himself from conducting the contempt
hearing. The Court of Criminal Appeals rejected this argument because Mr. Beeler neither
requested recusal of the trial judge, nor raised any objection at the hearing.10 Beeler, 2011
WL 5071920, at *8. Having found the evidence insufficient to support Mr. Beeler’s
conviction, we need not address this issue.11

                                                Conclusion

       Although a lawyer’s violation of an ethical rule may in some circumstances amount
to criminal contempt, on the record before us, Mr. Beeler’s potential violation of the ethical
rule governing communications with a person represented by another lawyer does not
constitute criminal contempt pursuant to Tennessee Code Annotated section 29-9-102(1), (2)
because the evidence of “willful misbehavior” is insufficient to support his conviction
beyond a reasonable doubt. Therefore, we reverse the Court of Criminal Appeals, and we
vacate Mr. Beeler’s conviction. Costs of this appeal are taxed to the State.




                                                   __________________________________
                                                   CORNELIA A. CLARK, JUSTICE




        10
            Issues involving recusal have always been held to rest soundly within the discretion of the judge
whose recusal is sought. Bd. of Prof’l Responsibility v. Slavin, 145 S.W.3d 538, 546 (Tenn. 2004). “The
failure to seek recusal in a timely manner may result in the waiver of any complaint concerning the judge’s
impartiality.” Bean v. Bailey, 280 S.W.3d 798, 803 (Tenn. 2009); see also Black, 938 S.W.2d at 401 (recusal
not required where the contempt charge “does not, on its face, involve disrespect or criticism of the trial
judge.” (citing Tenn. R. Crim. P. 42(b)(4) (“When the contempt charged involves disrespect to or criticism
of a judge, that judge is disqualified from presiding at the hearing, except with the defendant’s consent.”))).
        11
           Effective July 1, 2012, a motion for recusal, where not otherwise required by law, must be made
in writing and granted or denied in writing, Tenn. Sup. Ct. R. 10B, § 1.01 (“Any party seeking
disqualification, recusal, or a determination of constitutional or statutory incompetence of a judge of a court
of record, shall do so by a timely filed written motion.”), and Tennessee Supreme Court Rule 10, Rule of
Judicial Conduct 2.11(D) now provides: “Upon the making of a motion seeking disqualification, recusal, or
a determination of constitutional or statutory incompetence, a judge shall act promptly by written order and
either grant or deny the motion. If the motion is denied, the judge shall state in writing the grounds upon
which he or she denies the motion.”

                                                      18
