         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                                     June 12, 2001 Session

                   STATE OF TENNESSEE v. ROY B. LIPFORD

              Interlocutory Appeal from the Criminal Court for Shelby County
                        No. 97-13369, 70  John P. Colton, Jr., Judge



                     No. W1999-01737-CCA-R9-CD - Filed July 27, 2001


The issues in this interlocutory appeal by the state, as we view them, are straightforward: (1)
whether the Supreme Court of Tennessee has the authority by rule to prohibit a full-time municipal
judge from representing a defendant or otherwise practicing law after 180 days from assuming
judicial office; and (2) if so, whether the Supreme Court of Tennessee intended exactly what the rule
says. We conclude that it does and did. We further conclude that a violation of this Supreme Court
Rule is prejudicial to the judicial process, and the issue is not waived by the failure of the opposing
party to request disqualification at its first opportunity to do so. Accordingly, we reverse the
judgment of the trial court which declined to disqualify defendant's attorney, a sitting judge, from
further participation in this case.

 Tenn. R. App. P. 9 Interlocutory Appeal by Permission; Judgment of the Criminal Court
                                  Reversed; Remanded

JOE G. RILEY, J., delivered the opinion of the court, in which NORMA MCGEE OGLE , J., and
CORNELIA A. CLARK, SP . J., joined.

Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General;
William L. Gibbons, District Attorney General; and David B. Shapiro, Assistant District Attorney
General, for the appellant, State of Tennessee.

Tarik B. Sugarmon, Memphis, Tennessee, for the appellee, Roy B. Lipford.


                                             OPINION

                                PROCEDURAL BACKGROUND

       The pertinent facts and procedural background are undisputed. The Grand Jury of Shelby
County, Tennessee, indicted the defendant, Roy B. Lipford, on December 18, 1997, for theft over
$10,000 and extortion. Tarik B. Sugarmon (hereinafter “Sugarmon”) was retained to represent the
defendant. Sugarmon was subsequently appointed as a full-time judge of the Memphis City Court
on October 7, 1998. The case was set for trial within 180 days of the date Sugarmon assumed
judicial office; however, the case was continued due to the illness of the prosecuting attorney. 1 The
case was reset for trial on July 13, 1999, well beyond 180 days from the date Sugarmon assumed
judicial office.

        On July 9, 1999, the state filed a motion to disqualify defense counsel, citing Tenn. Sup. Ct.
R. 10, Canon 4G which allows a judge to continue to practice law in an effort to wind up his or her
practice but “in no event longer than 180 days after assuming office.” The trial court (1) noted that
Tenn. Code Ann. § 17-1-105 allowed a judge to conclude cases in which he or she was previously
employed prior to the judge’s election; (2) concluded that the 180-day rule was not absolute and
allowed for the consideration of other factors; (3) noted that Sugarmon had represented the defendant
since the inception of the case in 1997; (4) assumed Sugarmon had been paid to represent the
defendant; (5) noted that the state at the time of the last trial setting had knowledge that Sugarmon
had been appointed to the bench, yet made no objection based on the 180-day limitation; (6) found
that unforeseen circumstances had prevented Sugarmon from concluding this case within the 180-
day period; (7) found the defendant would be unduly prejudiced by an order of disqualification; (8)
required that the state refer to Sugarmon at trial as “Mr. Sugarmon” and not “Judge Sugarmon;” and
(9) declined to disqualify Sugarmon from representation.

        The state sought an interlocutory appeal pursuant to Tenn. R. App. P. 9, which was granted
by the trial court and accepted by this court.


                                         SUPREME COURT RULE 10

         Tenn. Sup. Ct. R. 10, Canon 4G provides in pertinent part as follows:

                          A newly elected or appointed judge can practice law only in
                  an effort to wind up his or her practice ceasing to practice law as soon
                  as reasonably possible and in no event longer than 180 days after
                  assuming office.

The Commentary to Canon 4G clarifies this limitation:

                         The only law practice allowable is that which is necessary to
                  wind up a law practice. Accordingly, no new cases may be accepted.
                  The 180-day bright line rule in winding up a law practice does not



         1
         The tech nical reco rd does n ot contain any orders setting o r continuing trial dates; however, the trial court’s
order of November 5, 1999, which declined to disqualify defense counsel, and the transcript of the hearing on this
motion indicate the case was c ontinue d beyo nd the 1 80 day s due to illne ss of the pro secuting a ttorney.

                                                           -2-
                   prohibit the judge from receiving fees after this deadline for services
                   performed prior to the deadline. (Emphasis added).

        The Code of Judicial Conduct applies to all officers who perform judicial functions, which
would include a municipal judge. See Tenn. Sup. Ct. R. 10, Code of Judicial Conduct, Application
of the Code of Judicial Conduct, Part A. Although a “continuing part-time judge” may practice law
in certain instances, a full-time judge is not exempt from the restrictions set forth in Canon 4G. Id.
at Part C.2


                                      SUPREME COURT AUTHORITY

A. Standard of Review

        A trial court’s ruling on attorney disqualification will be reversed only upon a showing of an
abuse of discretion. State v. Culbreath, 30 S.W.3d 309, 312-13 (Tenn. 2000). There is an abuse of
discretion when the trial court applies an incorrect legal standard or reaches a decision which is
against logic or reasoning that causes an injustice to the complaining party. State v. Shirley, 6
S.W.3d 243, 247 (Tenn. 1999).

         Furthermore, the Supreme Court of Tennessee has recently stated:

                           This Court, however, occupies a unique position to administer
                   the ethical conduct of Tennessee attorneys. “It is well settled that the
                   licensing and regulation of attorneys practicing law in courts of
                   Tennessee [are] squarely within the inherent authority of the judicial
                   branch of government.” Smith County Educ. Ass’n v. Anderson, 676
                   S.W.2d 328, 333 (Tenn. 1984). Pursuant to our inherent authority,
                   we govern the discipline of attorneys in this state, Swafford v. Harris,
                   967 S.W.2d 319, 321 (Tenn. 1998), and are responsible for
                   “prescribing and seeking to enforce and uphold the standards of
                   professional responsibility.” Petition of Tenn. Bar Ass’n, 539 S.W.2d
                   805, 810 (Tenn. 1976) (Harbison, J., concurring). Furthermore, this
                   Court has “original and exclusive jurisdiction to promulgate [our]
                   own Rules. [Our] rule making authority embraces the admission and



         2
           Defendant asserts that his co unsel is similar to a county judge who, by statute, is not precluded from practicing
law except in certain instan ces. See Tenn. Code Ann. § 16-16-106. However, the office of county judge was effec tively
abolished by con stitutional a m e n dm ent with suc h duties tran sferred to th e county executiv e. See Constitution of
Tenne ssee, Article V II, § 1. The co nstitution do es not vest a ny judicia l authority in the coun ty execu tive. Waters v.
State ex rel., Schmutzer, 583 S.W.2d 756, 759-60 (Tenn. 1979). Probate and estate administration jurisdiction was
transferred to the Cha ncery C ourt. See Tenn. Code Ann. § 16-16-201. Tenn. Code Ann. § 16-16-106 has no application
to the case a t bar.

                                                            -3-
                supervision of members of the Bar of the State of Tennessee.” Id. at
                807.

                        As the above authorities suggest, this Court owes a special
                obligation to ensure proper application of our rules and administration
                of the legal profession. Our review of a lower court’s interpretation
                of the ethical rules promulgated by this Court is plenary. See In re:
                Burson, 909 S.W.2d 768, 774 (Tenn. 1995); Belmont v. Bd. of Law
                Examiners, 511 S.W.2d 461, 462 (Tenn. 1974); Anderson, 676
                S.W.2d at 333-34. Accordingly, we will closely scrutinize a trial
                court’s disqualification of an attorney or that attorney’s firm for an
                abuse of discretion arising from improper interpretation or application
                of our rules. Accord Cheves v. Williams, 993 P.2d 191, 205 (Utah
                1999) (“The proper standard of review for decisions relating to
                disqualification is abuse of discretion. However, to the extent this
                court has a special interest in administering the law governing
                attorney ethical rules, a trial court’s discretion is limited.”).

Clinard v. Blackwood, ___ S.W.3d ___, ___, 2001 WL 530834, at *2 (Tenn. May 18, 2001).

B. Analysis

        Based upon these long established precedents, we conclude the Supreme Court of Tennessee
has the inherent authority over the judicial branch of government and properly promulgated Rule 10
to uphold the standards of judges and those who practice law before the courts of this state.

       We further reject defendant’s argument that Tenn. Code Ann. § 17-1-105 authorizes
Sugarmon to continue representation beyond the 180-day limit. Tenn. Code Ann. § 17-1-105
provides as follows:

                        No judge or chancellor shall practice law, or perform any of
                the functions of attorney or counsel, in any of the courts of this state,
                except in cases in which the judge or chancellor may have been
                employed as counsel previous to the judge’s or chancellor’s election.

Although this statute does not have a 180-day limitation, Tenn. Sup. Ct. R. 10 is more restrictive and
takes precedence. To the extent that the statute may appear inconsistent or in conflict with Tenn.
Sup. Ct. R. 10, the statute must yield to the inherent authority of the Supreme Court of Tennessee
to regulate the conduct of judges and those who practice law in the courts of this state. See generally
Clinard, ___ S.W.3d at ___, 2001 WL 530834, at *2. However, while the statute might be read as
conflicting with Tenn. Sup. Ct. R. 10, we should not lightly presume that the legislature intended to
usurp the role of the courts in exercising the judicial power of the state and should give all legislative
enactments a strong presumption of constitutionality. State v. Mallard, 40 S.W.3d 473, 483 (Tenn.


                                                   -4-
2001). Therefore, in this case it is unnecessary to declare Tenn. Code Ann. § 17-1-105
unconstitutional. We simply conclude that Tenn. Sup. Ct. R. 10 provides restrictions in addition to
those set forth in the statute.


                                    INTERPRETATION OF CANON 4G

        Having concluded that the Supreme Court of Tennessee has the authority to regulate the
extent to which a judge may practice law, we must examine Canon 4G in order to ascertain its
meaning.

         The practice of law by full-time judges has long been prohibited in every jurisdiction in the
United States. See J. Shaman et al., Judicial Conduct and Ethics § 7.20 (3d ed. 2000).
Tennessee’s present Code of Judicial Conduct adopts the American Bar Association Model Code
of Judicial Conduct in most respects. The ABA Model Code Canon 4G, however, does not have an
express provision that authorizes the practice of law at any time after assuming judicial office. Id.
at § 7.22 (noting the ABA Model Code has no rule authorizing the completion of cases). However,
it is apparent that our supreme court understandably recognized the practical difficulties in winding
up a law practice and struck the appropriate balance by allowing the winding up of a law practice,
but “in no event longer than 180 days after assuming office.” Canon 4G.

        It is unnecessary to resort to detailed rules of interpretation in this case. The requirement that
a newly elected or appointed judge wind up a law practice “as soon as reasonably possible and in no
event longer than 180 days after assuming office” is unambiguous and absolute. The Commentary
specifically provides that the 180-day rule is a “bright line rule.” Accordingly, we can only conclude
that the rule means what it says. Thus, defense counsel was in clear violation of Canon 4G by
continuing his representation of the defendant beyond the 180-day limitation.


                                                        WAIVER

         Defendant contends the state waived the right to seek the disqualification of defense counsel
since it did not request disqualification at an earlier date when the case was set for trial.3 We reject
this argument as it fails to recognize the nature of an ethical violation. It is the obligation of counsel
to seek withdrawal, and the opposing party should not be forced to file a motion for disqualification.
See Tenn. Sup. Ct. R. 8, Code of Professional Responsibility, DR 2-110(B)(2) (requiring “mandatory



         3
          Sugarmon insists in his brief that on February 25, 1999, the trial date was continued until July 13, 1999, “even
after discussion and consideration of the 180 -day rule .” He furth er conten ds the state v oiced no objection to his
continued representation at that time. The transcript of the February 25 th hearing is n ot in the reco rd befor e this court.
Neverth eless, we are com pelled to note that cou nsel’s awareness o f the 180-day rule at that time, failure to request
withdra wal, and continue d represe ntation m akes the v iolation m ore egre gious rath er than less so .

                                                             -5-
withdrawal” from employment if “[t]he lawyer knows or it is obvious that continued employment
will result in violation of a Disciplinary Rule”). In the context of this case, a violation of Code of
Judicial Conduct Canon 4G is a violation of a disciplinary rule. Defense counsel in this case
apparently made no effort to withdraw in spite of his knowledge of the plain language of the rule.4

        We further conclude that to allow a sitting judge to participate in a trial or otherwise continue
to represent a defendant in blatant violation of Tenn. Sup. Ct. R. 10 would be inherently prejudicial
to the judicial process. See generally Tenn. R. App. P. 13(b) (providing that even issues not
presented for review may be addressed on appeal “to prevent prejudice to the judicial process”).
Accordingly, the failure of the state to seek disqualification at an earlier time in no way waives the
issue.


                                      PREJUDICE TO DEFENDANT

        Defendant asserts he will be prejudiced by the disqualification of defense counsel as the trial
court indeed found. Firstly, the record does not support a finding of prejudice. Furthermore, Canon
4G contemplates that withdrawal or disqualification will occur in all cases that extend beyond the
180-day limitation. Additionally, DR 2-110(B)(2) contemplates “mandatory withdrawal” in all cases
where continued representation would be a disciplinary violation. The sitting judge in this case is not
the only person who can represent the defendant. The fact that Sugarmon was presumably paid for
representation and had represented the defendant from the inception of the case is irrelevant to the
issue of disqualification. If Sugarmon was paid in advance for services rendered, he is required upon
his mandated withdrawal to “refund promptly any part of a fee paid in advance that has not been
earned.” DR 2-110(A)(3). However, Sugarmon may be reasonably compensated for services
rendered prior to the180-day deadline. Canon 4G Commentary (“The 180-day bright line rule does
not prohibit the judge from receiving fees after this deadline for services performed prior to the
deadline.”).


                                                  CONCLUSION

       The judgment of the trial court is reversed, and Tarik B. Sugarmon is disqualified from further
representation of the defendant. The case is remanded for further proceedings.




         4
           The Supreme Court of Tennessee has established a Judicial Ethics Committee whose purpose is to render
opinions to requesting judges on proper profession al condu ct under th e Code of Judicial C onduc t. Tenn. Su p. Ct. R.
9, § 26.6. There is no indication that such an opinion was requested in this case. Had such an opinion been requested
at the time th e case wa s set beyon d the 18 0-day lim itation, this app eal may have be en avoid ed.



                                                          -6-
      ___________________________________
      JOE G. RILEY, JUDGE




-7-
