     IN THE COURT OF APPEALS OF TENNESSEE
          MIDDLE SECTION AT NASHVILLE


                                                                 FILED
WILLIAM M. WOODSIDE,        )                                     Oct. 20, 1995
                            )
    Plaintiff/Appellant,    )                                  Cecil Crowson, Jr.
                                                                  Appellate Court Clerk
                            )
and                         )
                            )                Davidson Probate
BILLY E. and MARY AGNITA    )                No. 89D-95
WOODSIDE,                   )
                            )
    Plaintiffs,             )
                            )
                            )                Appeal No.
VS.                         )                01-A-01-9503-PB-00121
                            )
                            )
SUSAN E. WOODSIDE (GILLEY), )
                            )
    Defendant/Appellee.     )



              CONCURRING                        OPINION

      In 1987 the United States Supreme Court placed limits on the use of private
lawyers to prosecute criminal contempt cases in federal court. Young v. United
States ex rel. Vuitton et Fils, S.A., 481 U.S. 787, 107 S. Ct. 2124 (1987). This
appeal calls upon us to decide whether similar limitations should be placed on the
use of private lawyers to prosecute criminal contempt cases in state court. The
majority has declined to adopt the reasoning of the Young decision based on an
unduly narrow view of this court's responsibility. I cannot join the majority’s
opinion. Instead, I would find that the resolution of this important question must
await another day because the appellant has waived his right to raise the issue by
failing to make a timely demand for another prosecutor in the trial court.
                                               I.


       Susan Gilley and William Woodside were divorced in May 1989. The trial
court awarded custody of their two children to Mr. Woodside’s parents and
ordered both Ms. Gilley and Mr. Woodside to pay $50 per week in child support.
In May 1990, the trial court transferred custody of the two children to Ms. Gilley
and directed Mr. Woodside to pay her $118 in weekly child support.


       In March 1994 Ms. Gilley filed a petition seeking to increase the amount of
Mr. Woodside’s child support and to hold him in contempt for failing to pay child
support. She alleged that Mr. Woodside was $10,054 in arrears in his child
support payments and requested that he be incarcerated for six months pursuant
to Tenn. Code Ann. § 36-5-104(a) (1991).1 Mr. Woodside responded with his
own petition seeking to hold Ms. Gilley in contempt for interfering with his
visitation.


       The trial court heard the evidence with regard to both contempt petitions in
September 1994. Ms. Gilley’s lawyer presented the proof against Mr. Woodside
without objection. On October 11, 1994, the trial court filed an order finding that
Mr. Woodside was able to pay child support and that he was $10,054 in arrears in
his child support payments. Accordingly, the trial court found Mr. Woodside in
contempt and sentenced him to serve six months in the Metro Workhouse. In
addition to requiring Mr. Woodside to pay down the arrearage, the trial court also
increased his child support payments to $141 per week.


       Mr. Woodside retained a new lawyer who filed a motion for a new trial and
for post-conviction relief.2 In addition to challenging the competency of Mr.

       1
        Tenn. Code Ann. § 36-5-104(a) provides that “[a]ny person, ordered to provide child
support and maintenance for a minor child or children, who fails to comply with the order or
decree, may, in the discretion of the court, be punished by imprisonment in the county
workhouse or county jail for a period not to exceed six (6) months.”

       2
       Of course, the motion could not properly be for a new trial or for post-conviction relief.
The proper form of a request for post-trial relief following a bench trial would have been a
                                                                                  (continued...)


                                              -2-
Woodside’s trial lawyer, the motion asserted that the trial court had abused its
discretion by permitting Ms. Gilley’s lawyer to prosecute the criminal contempt
claim “contra to the United States Supreme Court directives contained in Young
v. U.S. . . ..” The trial court denied the motion, and Mr. Woodside perfected this
appeal solely to take issue with the trial court’s decision to permit Ms. Gilley’s
lawyer to prosecute the criminal contempt charges against him.


                                             II.


       I turn first to two analytical flaws in the majority’s opinion. The majority
has declined to consider whether the Young decision should be followed in
Tennessee because it is not “binding” on Tennessee courts and because
determining whether the Young decision should be followed is a “public policy”
matter that can only be determined by the Tennessee Supreme Court or the
General Assembly. This reasoning reflects an unduly narrow view of our
responsibility and is inconsistent with our other decisions.


                                            A.


       Prior to 1987, many federal courts followed Judge Learned Hand’s dicta
permitting trial courts to use a lawyer representing an interested party to prosecute
a criminal contempt charge arising out of the civil proceeding. McCann v. New
York Stock Exchange, 80 F.2d 211, 214 (2d Cir. 1935), cert. denied, 299 U.S. 603,
57 S. Ct. 233 (1936). The United States Supreme Court parted company with
Judge Hand in Young v. United States ex rel. Vuitton et Fils, S.A. when it held that
federal judges could no longer appoint a private lawyer representing an interested
party to prosecute a criminal contempt action.



       2
        (...continued)
motion to alter or amend the judgement pursuant to Tenn. R. Civ. P. 59.04. Since we construe
motions based on their substance, not on their title, Bemis Co. v. Hines, 585 S.W.2d 574, 576
(Tenn. 1979); Pickard v. Ferrell, 45 Tenn. App. 460, 471, 325 S.W.2d 288, 292-93 (1959), we
have elected to treat Mr. Woodside’s motion as a Tenn. R. Civ. P. 59.04 motion.




                                            -3-
       The Young Court did not establish a constitutional right to a public
prosecutor in criminal contempt proceedings. Green v. Green, 642 A.2d 1275,
1280-81 (D.C. 1994). While the justices unanimously preferred referring criminal
contempt proceedings to public prosecutors, Terri R. Braswell, Comment,
Criminal Procedure - Young v. United States ex rel. Vuitton et Fils S.A.: The
Right to a Disinterested Prosecutor in a Federal Criminal Contempt Proceeding
Arising from the Underlying Civil Litigation, 18 Mem. St. U.L. Rev. 143, 159
(1987), only four justices found that using private lawyers for interested parties
to prosecute criminal contempt cases was inconsistent with the Due Process
Clause of the Fourteenth Amendment.


       Rather than relying on constitutional grounds, the Young majority rested its
decision on the American Bar Association’s Model Code of Professional
Responsibility (1969, revised 1980).                 The Court pointed out that public
prosecutors represent the sovereign and that they have a responsibility to seek
justice, not merely to convict.3 Accordingly, the Court reasoned that lawyers
already representing an interested party would have an insurmountable conflict
of interest if they also undertook to represent the sovereign in a criminal contempt
case.4 The Court pointed out that
               The Government’s interest is in dispassionate
               assessment of the propriety of criminal charges for
               affronts to the Judiciary. The private party’s interest is
               in obtaining the benefits of the court’s order. While
               these concerns may sometimes be congruent, sometimes
               they may not. A prosecutor may be tempted to bring a
               tenuously supported prosecution if such a course
               promises financial or legal rewards for the private
               client. Conversely, a prosecutor may be tempted to
               abandon a meritorious prosecution if a settlement
               providing benefits to the private client is conditioned on
               a recommendation against criminal charges.


       3
        Young v. United States ex rel. Vuitton et Fils, S.A., 481 U.S. at 803, 107 S. Ct. at 2135,
quoting ABA Model Code of Professional Responsibility EC 7-13.
       4
        Young v. United States ex rel. Vuitton et Fils, S.A., 481 U.S. at 802-06, 107 S. Ct. at
2135-37, quoting ABA Model Code of Professional Responsibility, DR 5-105 and EC 5-14, 5-
15, and 9-6.



                                               -4-
Young v. United States ex rel. Vuitton et Fils, S.A., 481 U.S. at 805, 107 S. Ct. at
2136; see also United States v. Providence Journal Co., 485 U.S. 693, 696 n.3,
108 S. Ct. 1502, 1505 n.3 (1988).


      The United States Supreme Court was exercising its “supervisory power”
over lower federal courts when it decided the Young case. Young v. United States
ex rel. Vuitton et Fils, S.A., 481 U.S. at 790, 107 S. Ct. at 2128. Thus, as the
majority correctly points out, the Young decision is not “binding on the Courts of
Tennessee.” However, simply concluding that the decision is not “binding”
cannot end the inquiry. The United States Supreme Court relied heavily upon the
Model Code of Professional Responsibility. The Tennessee Supreme Court has
adopted the very same code, and it currently governs the conduct of all attorneys
in this state. See Tenn. S. Ct. R. 8.


      The Tennessee Supreme Court is the final arbiter of its own rules.
Accordingly, Tennessee’s courts must look first to the decisions of the Tennessee
Supreme Court for controlling interpretations of these rules. The Tennessee
Supreme Court has, however, recognized the value of uniform interpretations of
similar rules, State v. Jones, 598 S.W.2d 209, 219 (Tenn. 1980), and has held
repeatedly that we may look to other jurisdictions’ interpretations of similar rules
for helpful guidance in interpreting our own rules. Henderson v. Bush Bros. &
Co., 868 S.W.2d 236, 237 (Tenn. 1993); Byrd v. Hall, 847 S.W.2d 208, 211 n.2
(Tenn. 1993); Continental Casualty Co. v. Smith, 720 S.W.2d 48, 49 (Tenn. 1986).


      The Tennessee Supreme Court has not addressed the propriety of using
private lawyers to prosecute criminal contempt cases under Tenn. S. Ct. R. 8.
Thus, when this issue is presented to us in a proper case, we should certainly look
not only to the Young decision but also to the decisions of other jurisdictions for
helpful guidance in determining whether Tenn. S. Ct. R. 8, DR 5-105 and EC 5-
14, 5-15, 7-13, and 9-6 prohibit private lawyers from prosecuting criminal
contempt cases arising out of a judgment in which their clients have an interest.


                                        B.

                                        -5-
       The Tennessee Supreme Court derives its power directly from the
Constitution of Tennessee. Clements v. Roberts, 144 Tenn. 152, 155, 231 S.W.
902, 902 (1921). It is the supreme judicial tribunal of the state, Barger v. Brock,
535 S.W.2d 337, 340 (Tenn. 1976), and it has the inherent power to promulgate
any rule governing the practice of law that is reasonably necessary to carry out its
constitutional prerogatives. Petition of Tennessee Bar Assoc., 532 S.W.2d 224,
227 (Tenn. 1975); In re Adoption of Rule of Court, 479 S.W.2d 225, 227 (Tenn.
1972); Cantor v. Brading, 494 S.W.2d 139, 143 (Tenn. Ct. App. 1973); Tenn.
Code Ann. § 16-3-503 (1994).


       Only the Tennessee Supreme Court has the authority to promulgate rules
governing the practice of law and the procedure to be followed in all courts of the
state. State v. Best, 614 S.W.2d 791, 793 (Tenn. 1981); Belmont v. Board of Law
Examiners, 511 S.W.2d 461, 464 (Tenn. 1974); Tenn. Code Ann. § 16-3-402
(1994). When the Court promulgates a rule, it has the force and effect of law. See
State v. Hodges, 815 S.W.2d 151, 155 (Tenn. 1991); Tennessee Dep’t of Human
Servs. v. Vaughn, 595 S.W.2d 62, 63 (Tenn. 1980); Crosslin v. Alsup, 594 S.W.2d
379, 380 (Tenn. 1980).


       The Tennessee Supreme Court was exercising its inherent judicial power
when it promulgated Tenn. S. Ct. R. 8 in 1981.5 Newton v. Cox, 878 S.W.2d 105,
111 (Tenn.), cert. denied ___ U.S. ___, 115 S. Ct. 1989 (1994). The Code of
Professional Conduct in Tenn. S. Ct. R. 8 provides the bench and bar with a guide
to a lawyer’s obligations to his or her client under various circumstances. Lazy
Seven Coal Sales, Inc. v. Hinds, 813 S.W.2d 400, 405 (Tenn. 1991); Wood v.
Parker, App. No. 01-A-01-9406-CH-00286, slip op. at 11, 20 T.A.M. 9-10 (Tenn.
Ct. App. Feb. 8, 1995), perm. app. denied (Tenn. May 30, 1995). The Code’s

       5
        The Tennessee Supreme Court first adopted the American Bar Association’s Canons of
Professional and Judicial Ethics when it promulgated Tenn. S. Ct. R. 38 in 1967. In re Rules of
the Supreme Court of Tennessee, Tennessee Decisions, 418-424 S.W.2d at XLIII (order effective
Dec. 4, 1967). The Court replaced the substance of Tenn. S. Ct. R. 38 with the American Bar
Association’s Code of Professional Responsibility in 1975. In re Rules of the Supreme Court
of Tennessee, 530-533 S.W.2d at XXVII (order effective Dec. 5, 1975). Tenn. S. Ct. R. 38
became Tenn. S. Ct. R. 8 when the Court revised its rules in 1981. In re Rules of the Supreme
Court of Tennessee, Tennessee Decisions, 609-614 S.W.2d at XXVII (order effective Jan. 28,
1981).


                                             -6-
disciplinary rules are mandatory, and the ethical considerations are aspirational
and represent the objectives toward which every lawyer should strive. Tenn. S.
Ct. R. 8, Preliminary Statement.


      Even though the Tennessee Supreme Court has the exclusive prerogative
to promulgate rules governing the practice of law, all the courts have the power
and duty to apply these rules in appropriate circumstances. The intermediate
appellate courts have frequently based their decisions on the Code of Professional
Responsibility. Accordingly, this court has relied on portions of Tenn. S. Ct. R.
8 to resolve disputes involving: (1) attorneys’ fees, Ligon v. Ligon, 556 S.W.2d
763, 768 (Tenn. Ct. App. 1977); (2) attorneys’ obligations to their clients, State
v. Brown, 644 S.W.2d 418, 421 (Tenn. Crim. App. 1982); (3) attorneys’ appearing
as witnesses, Winrow v. State, 649 S.W.2d 18, 20 (Tenn. Crim. App. 1983); (4)
attorneys’ political endorsements, Taylor v. Nashville Banner Publishing Co., 573
S.W.2d 476, 489 (Tenn. Ct. App. 1978) (Todd, J., concurring), cert. denied, 441
U.S. 923, 99 S. Ct. 2032 (1979); (5) an attorney’s obligation to produce evidence,
In re Estate of Perlberg, 694 S.W.2d 304, 306 (Tenn. Ct. App. 1984); and (6) the
propriety of closing jury arguments, Scarbrough v. City of Lewisburg, 504 S.W.2d
377, 383-84 (Tenn. Ct. App. 1973).


       The majority’s professed reluctance to decide whether the rationale of the
Young case applies to practice in Tennessee’s courts is inconsistent with the
posture that this court has taken in other cases. When a proper case presents itself,
I would not hesitate to use the Code of Professional Responsibility to decide
whether trial courts may use private lawyers to prosecute criminal contempt cases
arising out of orders or judgments in which the attorneys’ clients have an interest.


                                          III.


       Lawyers must call prejudicial errors to the trial court’s attention in a timely
manner in order to be able to raise these errors on appeal. Unless an error affects
the trial court’s subject matter jurisdiction, the failure to raise an error in a timely
manner amounts to a waiver because appellate courts will not permit parties to

                                          -7-
silently preserve an error as an “ace in the hole” to be used in the event of an
adverse decision. Gotwald v. Gotwald, 768 S.W.2d 689, 694 (Tenn. Ct. App.
1988); Spain v. Connolly, 606 S.W.2d 540, 543-44 (Tenn. Ct. App. 1980).


      Some errors must be called to the trial court’s attention before trial. Thus,
objections to the competency of the trial judge are deemed waived if not raised
before trial. Dupuis v. Hand, 814 S.W.2d 340, 342 (Tenn. 1991); Grozier v.
Goodwin, 69 Tenn. 125, 128 (1878). Likewise, objections to the failure to provide
a jury when one has been requested are deemed waived if not asserted before the
trial begins. Burnette v. Pickel, 858 S.W.2d 319, 322 (Tenn. Ct. App. 1993).


      Similarly, lawyers have a duty to call errors committed during the course of
a trial to the trial court’s attention for timely correction. Thus, lawyers must make
timely objections to (1) the admissibility of evidence, Thompson v. Thompson, 749
S.W.2d 468, 470 (Tenn. Ct. App. 1988), (2) improper conduct of the trial judge,
Kirksey v. Overton Pub, Inc., 804 S.W.2d 68, 79 (Tenn. Ct. App. 1990), or (3)
improper comments of opposing counsel. Marress v. Carolina Direct Furniture,
Inc., 785 S.W.2d 121, 126 (Tenn. Ct. App. 1989); Havron v. Page, 25 Tenn. App.
367, 370, 157 S.W.2d 856, 858 (1942).


      It should have been obvious before the September 1994 trial began that the
trial court had not referred the criminal contempt case against Mr. Woodside to the
district attorney general or to another disinterested lawyer. Thus, from the very
outset of the trial, Mr. Woodside and his lawyer knew that Ms. Gilley’s lawyer
would be prosecuting the criminal contempt charges against him. Mr. Woodside
did not question the prosecutorial role of Ms. Gilley’s lawyer until the trial was
finished and the judgment rendered. The objection in Mr. Woodside’s motion for
new trial came too late. Permitting Mr. Woodside to assert this issue now, in
effect, permits him to play his “ace in the hole” and at the same time provides a
similar trump card to other similarly situated litigants.


      I would find that Mr. Woodside has waived his right to take issue with the
use of Ms. Gilley’s lawyer to prosecute the criminal contempt case against him

                                        -8-
because he did to raise the issue in a timely manner. Accordingly, I would affirm
the trial court’s decision but leave the question of the propriety of using lawyers
for interested parties to prosecute criminal contempt cases for another day.


                                       __________________________________
                                       WILLIAM C. KOCH, JR., JUDGE




                                       -9-
