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Cody v. Board of Professional Responsibility of Supreme Court of Tennessee

Supreme Court of Tennessee, Nashville

July 27, 2015

HOMER L. CODY
v.
BOARD OF PROFESSIONAL RESPONSIBILITY OF THE SUPREME COURT OF TENNESSEE

Session Date: June 2, 2015

Direct Appeal from the Circuit Court for Shelby County No. CT00553413 Don R. Ash, Senior Judge

Homer L. Cody, Millington, Tennessee, pro se.

William C. Moody, Brentwood, Tennessee, for the appellee, Board of Professional Responsibility of the Supreme Court of Tennessee.

Sharon G. Lee, C.J., delivered the opinion of the Court, in which Cornelia A. Clark, Gary R. Wade, and Jeffrey S. Bivins, JJ., joined. Holly Kirby, J., not participating.

OPINION

SHARON G. LEE, CHIEF JUSTICE

I.

This disciplinary action involves Memphis attorney Homer L. Cody's continued representation of two clients with conflicting interests. On August 13, 2002, Memphis attorneys Allan J. Wade, Lori H. Patterson, and W. Michael Richards filed an action in the Shelby County Chancery Court on behalf of Pee Wee Wisdom Child Development Center, Inc. ("the Center") and Vivian Braxton, the Center's executive director, against Paul G. Summers in his official capacity as Attorney General and Reporter for the State of Tennessee. The complaint alleged that the Attorney General, based on his investigation, had indicated his intent to seek a judicial dissolution of the Center based on conflict of interest transactions between the Center and Ms. Braxton, the Center's failure to follow corporate formalities, and other transactions that the Attorney General believed constituted waste or misapplication of corporate assets. The complaint requested, among other things, that the Court declare the rights, status, and other legal relations of the Center and Ms. Braxton; determine that certain transactions between the Center and Ms. Braxton did not constitute a conflict of interest; declare that the failure of the Center's Board of Directors to meet and perform the functions required by law was not grounds for dissolution; determine that the Attorney General's allegations of misapplication of corporate assets by the Center were without merit; and oversee the dissolution of the Center if the Court determined that dissolution was required. By an agreed order entered on September 3, 2002, Robert Dinkelspiel was appointed Receiver for the Center.

On August 14, 2003, a grand jury indicted Ms. Braxton for two counts of theft of property over $60, 000 and two counts of tampering with evidence in connection with her management of the Center. On December 2, 2003, Ms. Braxton pled guilty to theft of property between $10, 000 and $60, 000 from the Center.

On November 15, 2004, Mr. Cody entered a notice of appearance for the Center and Ms. Braxton in the Chancery Court action against the Attorney General. On November 19, 2004, the Receiver sent a letter to Mr. Cody requesting that the notice of appearance be amended to reflect that Mr. Cody only represented Ms. Braxton. On February 1, 2005, Mr. Cody responded that he could represent both the Center and Ms. Braxton.

In an August 28, 2006 order, the Chancellor approved a report filed by the Receiver which determined that Ms. Braxton had failed to perform her fiduciary responsibilities as a director and an officer of the Center, had failed to ensure that the Center's resources were used to achieve its charitable purposes, and had failed to render an account of the assets and funds of the Center. The Chancellor awarded the Receiver a judgment for $296, 190.50 against Ms. Braxton. On September 26, 2006, Mr. Cody filed a notice of appeal on behalf of the Center and Ms. Braxton.

On January 31, 2007, while the case was before the Court of Appeals, the Receiver filed a motion in the Chancery Court to disqualify Mr. Cody from representing Ms. Braxton and the Center. In an order entered on June 22, 2007, the Chancellor denied the motion to disqualify Mr. Cody. Thereafter, the Receiver appealed the Chancellor's order denying his motion to disqualify. In a January 29, 2008 order, the Court of Appeals ruled that Mr. Cody was disqualified from representing either Ms. Braxton or the Center in the appeal or any other matters relating to the litigation. On November 13, 2009, Mr. Cody filed a subpoena in the Chancery Court action on behalf of the Center and Ms. Braxton directing the Receiver to appear and testify. The Receiver filed a motion to quash Mr. Cody's subpoena. On December 4, 2009, the Chancellor granted the motion and, referencing the Court of Appeals' ruling, held that Mr. Cody was disqualified from representing the Center or Ms. Braxton in any matter relating to the Chancery Court litigation. On March 31, 2010, Mr. Cody, on behalf of Ms. Braxton and the Center, filed a motion in the Chancery Court action to declare null and void, to set aside, and to vacate all orders entered in the case.

On June 23, 2010, the Receiver filed a motion for contempt in the Court of Appeals based on Mr. Cody's continued representation of Ms. Braxton. On August 27, 2010, the Court of Appeals ruled that Mr. Cody had a conflict of interest in his representation of Ms. Braxton and the Center and ordered Mr. Cody to refrain from representing or purporting to represent Ms. Braxton or the Center. The Court of Appeals directed the Clerk to advise the Board of Professional Responsibility of its ruling.

On February 3, 2011, the Board filed a petition for discipline against Mr. Cody, alleging violations of Tenn. Sup. Ct. R. 8, Rules of Professional Conduct[1] ("RPC") 1.7, [2]3.1, [3] and 8.4.[4] A Hearing Panel concluded that Mr. Cody had a conflict of interest by representing both the Center and Ms. Braxton and that his continued representation of those clients violated Tenn. Sup. Ct. R. 8, RPCs 1.7, 3.1, and 8.4. The Hearing Panel recommended a public censure. Mr. Cody did not appeal. On January 6, 2012, the Board approved the ...


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