88-F-116 - Prosecutor filing petitions for contempt and attachment without notifying prior counsel




A state prosecutor inquires concerning the ethical propriety of filing petitions for contempt and attachment against individuals previously represented by counsel without first notifying the individuals' attorneys of record of the intent to do so.

The issue addressed in this inquiry arises from the practice of the state prosecutor filing petitions for contempt and attachment against individuals as a result of complaints by parents, or the Department of Human Services when the obligee parent and children are recipients of AFDC, who have not received the child support payments as ordered by the court. The petitions are filed pursuant to T.C.A. 36-5-101(b) which authorizes the Clerk of the Court to issue a summons, or in the discretion of the Court attachments of the obligor parents and setting a bond and date for appearance before the Court. The petitions are filed with the Clerk with no further appearance before the Court at that time. The Clerk presents the petitions to the Court for consideration of whether writs of attachment should issue pursuant to T.C.A. 36-5-101(b).

The question to be determined is whether the state prosecutor is in violation of Disciplinary Rule 7-106(C)(5) of the Code of Professional Responsibility which states:

DR 7-106 Trial Conduct.
(C) In appearing in his professional capacity before a tribunal, a lawyer shall not:

(5) Fail to comply with known local customs of courtesy or practice of the bar or a particular tribunal without giving to opposing counsel timely notice of his intent not to comply.

The local custom or practice of the bar in question is Standard No. 1 of the Standards of Professional Conduct, to-wit:

A lawyer should avoid taking action adverse to the interest of a litigant known to be represented without notice of adversary counsel sufficient to permit response.

The Tennessee Supreme Court in the case of Wright v. Roberts, 573 S.W.2d 468 (Tenn. 1978) suspended Wright from the practice of law for six months for taking a default judgment and final divorce decree without notice to opposing counsel and the court that the adverse party had previously filed a divorce action in another division. Wright also advised his client to violate a restraining order.

In the case of Patterson v. Rockwell International, 665 S.W.2d 96 (Tenn. 1984) the Tennessee Supreme Court in a discussion concerning "appearance" stated:

The Tennessee Rules of Civil Procedure do not define an appearance; we, therefore, turn to court decisions for guidance. It has been said that the filing of any pleading, making or resisting of any motion, filing of exceptions to a Master's report, taking of depositions to be read in a cause, making of any agreement with plaintiff or his attorney relative to any proceeding in a case, or any other act in the cause, between the filing of the complaint and rendention of the final decree, whereby pendency of the suit is recognized, expressly or by implication will, if these be record evidence of the fact, constitute a general and unlimited appearance, unless limited by express declaration or by necessary implication....

It is recognized that an appearance may be expressly made by formal written or oral declaration, or record entry, to the effect that the defendant appears, or it may be implied from some act done with the intention of appearing and submitting to the court's jurisdiction.

Filing of petitions for contempt and attachment by the state prosecutors against delinquent child support obligors pursuant to TCA 36-5-101(b) constitutes an appearance as contemplated in DR 7-106.

The state prosecutor is ethically obligated to certify that a copy of petitions for contempt and attachment filed pursuant to TCA 36-5-101(b) have been previously mailed to the attorney-of-record in the cause.

In the event the attorney-client relationship between the obligor and the attorney-of-record has been terminated then the ethical obligations of the attorney-of-record are fulfilled by the filing of a motion to be relieved and stricken as attorney-of-record.

The prosecutor having probable cause to believe that notice to the prior attorney-of-record will likely result in the defaulting obligor fleeing the jurisdiction may apply to the Court having jurisdiction of the matter for permission to file petitions for contempt and attachment without notice to the attorney-of-record.

This 15th day of December, 1988.


Michael E. Callaway
Kitty G. Grubb
Charles T. Herndon, III