Failure To Heed Censure For Current Client Conflict Leads To Suspension
A disciplinary case is reported on the web page of the Tennessee courts
The Tennessee Supreme Court has unanimously affirmed a 180-day suspension of Memphis attorney Homer L. Cody’s law license.
In 2011, the Board of Professional Responsibility filed a petition for discipline against Mr. Cody based on a complaint of misconduct. The petition alleged, among other things, that Mr. Cody failed to cease representation of two parties with conflicting interests. A hearing panel found that Mr. Cody did, in fact, have a conflict of interest and that his continued representation of both parties was a violation of the Rules of Professional Conduct. Initially the panel recommended that Mr. Cody be publicly censured for his violation; however, even after the panel’s recommendation, Mr. Cody continued to represent both clients. As a result of his continued representation, in August 2012, the Board of Professional Responsibility filed a second petition against Mr. Cody, and a hearing panel recommended that he be suspended from the practice of law for a period of 180 days.
Mr. Cody appealed to the Shelby County Circuit Court, which affirmed the hearing panel’s findings and conclusions of law. Mr. Cody then appealed to the Supreme Court, alleging a number of procedural, jurisdictional, and constitutional errors and claiming that the hearing panel acted arbitrarily in finding that he violated the Rules of Professional Conduct and in imposing a 180-day suspension.
The Supreme Court upheld the decisions of the hearing panel and the Shelby County Circuit Court. In an opinion authored by Chief Justice Sharon G. Lee, the Court addressed Mr. Cody’s claims, finding each to be without merit. The Court further found that the hearing panel did not act arbitrarily in finding that Mr. Cody failed to adhere to the duty required of attorneys under the Rules of Professional Conduct. Based on Mr. Cody’s multiple rule violations, prior disciplinary record, repeated inability to follow court orders, refusal to acknowledge his misconduct, and more than 30 years of experience as a licensed attorney, the Court found that a 180-day suspension from the practice of law was appropriate.
Read the opinion in Homer L. Cody v. Board of Professional Responsibility, authored by Chief Justice Lee.
The two clients were the Pee Wee Wisdom Child Development Center, Inc. (“the Center”) and Vivian Braxton, the Center’s executive director.
The conflict
On November 15, 2004, Mr. Cody began representing two clients with conflicting interests. When Mr. Cody entered his appearance in the Chancery Court action, Ms. Braxton had already pled guilty to theft of property from the Center. Thereafter, the Center’s Receiver was awarded a judgment against Ms. Braxton in an amount in excess of $296,000.
As to the post-censure charges
Mr. Cody filed a Racketeer Influenced and Corrupt Organizations Act (“RICO”) complaint in the federal district court on behalf of the Center and Ms. Braxton. In the RICO complaint, Mr. Cody sued the attorneys and judges who participated in the Chancery Court proceedings involving the Center and Ms. Braxton, characterizing these individuals as “judicial mobsters” who were “operating within the Tennessee judicial system and using the system to steal, embezzle, defraud, and to carry out other illegal activities.”
The court
On March 16, 2012, Mr. Cody was publicly censured for his representation of the Center and Ms. Braxton. At this point, Mr. Cody should have understood that he was ethically prohibited from representing Ms. Braxton and the Center because of their adverse interests. The public censure should have been the end of it. But it was not. Mr. Cody had not learned his lesson. Instead, he forged ahead by filing a motion in the Chancery Court for the two parties, ignoring the orders of the Chancery Court and the Court of Appeals, and the public censure. This precipitated a second petition for discipline. Undaunted, Mr. Cody persevered. He filed a federal court action for the Center and Ms. Braxton against the lawyers and judges involved in the original Chancery Court action, labeling them “judicial mobsters.” Not surprisingly, the Board filed a supplemental petition for discipline against Mr. Cody, which resulted in the Hearing Panel’s decision that Mr. Cody should be suspended for 180 days.
As to the attack on the system
After carefully reviewing the issues raised by Mr. Cody, the entire record, briefs filed by the parties, and all applicable authority, we find that none of Mr. Cody’s arguments have merit. Based on our standard of review, we hold that there was no violation of either constitutional or statutory provisions; the Hearing Panel did not act in excess of its jurisdiction; there was no unlawful procedure; the result reached was not arbitrary, capricious, or characterized by an abuse of discretion; and Mr. Cody’s suspension was fully supported by evidence which is both substantial and material in light of the entire record.
(Mike Frisch)