Legal Ethics

Lawyer Who Argued He Was 'Grandfathered In' Under Old Ethics Rules Loses Contempt Appeal

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The courtroom argument escalated when a prosecutor suggested Tennessee lawyer Paul Whetstone was getting “his panties in a wad.”

It neared an end when Judge Ben Strand told Whetstone he was holding the Morristown, Tenn., lawyer in contempt of court. Whetstone replied to the judge, “You’re in contempt of law.” Last week, the Tennessee Court of Criminal Appeals upheld Whetstone’s conviction, the Knoxville News reports.

Whetstone had argued on appeal that the current Rules of Professional Conduct did not apply to him because he was licensed in 1990 and “grandfathered in” under the previous rules that talked of zealously representing clients. The Tennessee Court of Criminal Appeals disagreed.

“Even an attorney licensed in the days when Andrew Jackson served on this state’s supreme court would still be subject” to the newer rules adopted in 2003, the opinion said. And no matter which set of rules applied, “neither justifies the defendant’s angry, disruptive and disrespectful behavior.”

Whetstone’s problems began during the February 2010 hearing when he approached the bench after waiting three and a half hours for a preliminary hearing for his DUI client, according to the opinion. Whetstone complained about the wait and said the prosecutor had threatened to have his client arrested on an additional charge of felony evading arrest. “Is that something the court is going to allow?” Whetstone wanted to know. Strand replied that he did not make charging decisions.

The prosecutor, Charles Murphy, then joined the fray and said he was offering Whetstone a choice of having his client arrested that day on the evading count, then holding a preliminary hearing on all the charges, or being arrested later on the additional charge after a grand jury indictment.

Murphy also complained Whetstone was having a motion hearing without his participation. “And, Mr. Whetstone, I would appreciate being told a motion is coming up before the court before I’m advised that I’m in the middle of a motion hearing on something that Mr. Whetstone’s got his panties in a wad over—something he’s taking personally,” the prosecutor said.

“The attorney general, I’ll be glad to show him that I’m not wearing panties,” Whetstone replied.

Later, Whetstone continued to complain about the prosecutor’s offer. Here’s how it unfolded:

Whetstone: If she’s not been charged, how can I have a hearing on a case that’s not been charged? How do you do that, Judge? She has not been charged with evading.

Strand: Well, I guess we don’t have it then.

Whetstone: So she’ll be arrested for it, and then she’ll be held in jail until another day and I’ll have to come back and …

Strand: I guess you will. I guess that’s the choice you’re going to have to make right now, Mr. Whetstone.

Whetstone: I’m going to make that choice, Judge, and I’m going to the Court of the Judiciary on you over this.

Strand: You go right ahead, Mr. Whetstone.

Whetstone: I’m going. I’m going.

Strand: You know what, Mr. Whetstone?

Whetstone: What?

Strand: I’m going to report …

Whetstone: In [20] years I’ve never seen this happen.

Strand: Mr. Whetstone, I am going to report you to the …

Whetstone: Good.

Strand: Have a seat.

Whetstone: Good. I’m reporting you too.

[The judge repeatedly tells Whetstone to have a seat.]

Strand: I’m holding you in contempt of court.

Whetstone: You’re in contempt of the law.

Whetstone was also combative on appeal. He argued that his actions were justified to prevent his clients from suffering “at the collective hand of this freak amalgam that is aptly described as a prosecutorial-judicial tag team.” The appeals court said it was “neither persuaded nor amused by the defendant’s disrespectful description of the participants and proceedings.”

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