by Richard W. Millar, Jr.

“Grandfathered in” generally refers to an exemption in the application of new laws to old standing practices. The term reportedly originated in the late 19th Century when a number of southern states created new literacy voting restrictions which exempted those whose ancestors, or grandfathers, had the right to vote, so that the true thrust was to prevent voting by illiterate former slaves and their descendants.

Regardless of its source, the term has lived on and has become widely accepted in what we might call more benign applications. It has not, however, been generally thought of as an escape hatch from a lawyer’s ethical obligations.

That is, of course, until now.

A little over a year ago, one Paul Whetstone, a Tennessee lawyer, was in the General Sessions Court for Jefferson County waiting for a client’s preliminary hearing to be called. Mr. Whetstone’s client had been charged with driving under the influence and possession of marijuana and drug paraphernalia. In discussions with the prosecutor, he learned that the state was going to seek a grand jury indictment adding, a charge of evading arrest. This, I think is probably fair to say, upset Mr. Whetstone.

At approximately 4:30, Mr. Whetstone interrupted whatever else was going on and approached the Court complaining that he had been there since 1:00 waiting for a preliminary hearing and then asserted that the prosecutor was threatening to have his client arrested on a new charge and asked the Court if “that [is] something the Court is going to allow?” The Court explained that it had no control over what the state did or did not charge any defendant because that was within the prosecutor’s prerogative. Mr. Whetstone insisted that the prosecutor was threatening to arrest his client if they had a preliminary hearing. The prosecutor said that was a misrepresentation and that Mr. Whetstone’s client was entitled to go through with the preliminary hearing but that if he wanted a preliminary hearing on the evading arrest part, his client would have to be arrested.

Things deteriorated further when the prosecutor said: “And, Mr. Whetstone, I would appreciate being told a motion is coming up before the Court before I’m advised that I’m in a middle of a motion hearing on something that Mr. Whetstone’s got his panties in a wad over something he’s taking personally.”

“[Judge] ‘Gentlemen’—

“[Mr. Whetstone] ‘The attorney general, I’ll be glad to show him that I’m not wearing panties and I’ll be glad to—

“[The Court] ‘Mr. Whetstone’—

The colloquy continued its downward trajectory with the Court telling Mr. Whetstone that he would have to make the choice of whether to go forward with the preliminary hearing that day or come back later, to which Mr. Whetstone ultimately replied: “I’m going to make that choice, Judge, and I’m going to the Court of the Judiciary on you over this.”

Finally the Judge concluded that: “I have never seen an attorney be more disrespectful before the Court than what you have been. Even Herb Moncier could not come up to your conduct here today. So I would suggest that you get out of this courtroom before, essentially, I do put you in jail.”

Herb Moncier, it seems, is a man of, shall we say, local renown in Knoxville. (As my late father use to say, “If you can’t do anything else in life, at least you can serve as a bad example,” but I digress.)

What happened in the trial court, and my report is obviously truncated, is less remarkable than Mr. Whetstone’s position on appeal. Actually I should say appeals plural. Mr. Whetstone filed a petition for certiorari and supersedeas in the Jefferson County Circuit Court which entered an opinion sustaining the contempt charge. He then appealed the Circuit Court’s judgment to the Court of Criminal Appeals of Tennessee and, alas, suffered the same result.

His argument, and I swear I am not making this up, is that the then Rules of Professional Conduct did not apply to him because he was licensed in 1990, before their enactment, and that, therefore, he was ‘grandfathered in’ under the former, less stringent rules. The Court of Appeals noted that: “The Rules of Professional Conduct [enacted in 2003] are prospective and contain no ‘grandfather’ provision exempting an attorney from having to comply with them. Even an attorney licensed in the days when Andrew Jackson served on this state’s supreme court, would be subject to the Rules of Professional Conduct for that attorney’s actions occurring on or after March 1, 2003.”

It probably didn’t also help Mr. Whetstone when he argued that the trial judge had become “a mimicking doppelganger, moving in perfect unison with the ill-conceived gyrations of the prosecution,” and that “his client would have suffered ‘at the collective hand of this freak amalgam that is aptly described as a prosecutorial-judicial tag team.’” The Appellate Court was “neither persuaded nor amused by the Defendant’s disrespectful description of the participants and proceedings . . .”

In affirming the conviction for direct criminal contempt, the Court concluded that “the Defendant’s behavior essentially devolved into a temper tantrum that culminated in the Defendant’s threat to file a disciplinary complaint against [the Judge].”

That’s what happens when you get your ethics in a wad.

Mr. Millar is a member of the firm of Millar, Hodges & Bemis in Newport Beach.  He can be reached at millar@mhblaw.net.