I’m really, truly not trying to fall into the habit of only managing one post a week. As proof, here’s a post about a Tennessee lawyer who couldn’t/wouldn’t follow the rules.
It is a fascinating case study for at least two reasons. One is that discipline for conflicts of interest is, all things considered, relatively rare and, yet, this lawyer’s failure to recognize and avoid a conflict of interest has now led to disbarment. Second is that it really wasn’t the conflict of interest that got punished with disbarment it was the lawyer’s violation of another rule I’ve mentioned before: The First Rule of Holes. “When you are in one, stop digging.”
When you violate that rule, you end up in a hole from which you cannot climb out. That is the end of the story for Homer Cody.
Cody has now been disbarred by the Tennessee Supreme Court in an opinion released earlier this week. How did he get there? Well, here’s the short version: he took on a representation that created a conflict from day one and then, despite the imposition of escalating discipline, refused to comply with court orders saying that he had to withdraw from the representation and then kept representing the clients involved even while suspended.
The slightly longer version? Well, here goes:
A lawsuit was filed all the way back in 2002 that sought judicial dissolution of a childcare entity and its executive director over alleged self-dealing transactions between the executive director and the entity. In 2003, that executive director was indicted by a grand jury, and then pled guilty to, two counts of theft from the childcare entity. Near the end of 2004, Cody entered an appearance in the civil lawsuit as an attorney representing both the childcare entity and its executive director. Joint clients with an obvious conflict between their interests. That case ended in a ruling that the executive director had failed in her fiduciary duties to the childcare entity and a judgment entered against her in favor of the receiver – overseeing the entity now in dissolution – for almost $300,000. Cody filed a notice of appeal from that ruling again as an attorney for both the entity and the executive director. Who continued to be two clients with glaringly obvious conflicts between them.
In 2007, counsel for the receiver moved to disqualify Cody and, ultimately, in 2008, our state’s Court of Appeals, ruled that Cody was disqualified from representing either of the clients. Cody, however, continued to undertake actions representing both clients, a contempt action was pursued, and another Court of Appeals ruling was issued emphasizing that Cody had a conflict and was to refrain from representing the entity or the executive director and sent its ruling to our Board of Professional Responsibility. The BPR filed a petition for discipline in 2011 and that proceeding ended in a public censure being issued against Cody in March 2012.
Despite that fact, Cody (shovel in hand) continued to file pleadings in court as an attorney for both clients. This resulted in a second disciplinary petition. In response to that second disciplinary petition, Cody filed a RICO case in federal court, as attorney for the same two clients, claiming that pretty much everyone involved in the court proceedings against his clients were using the Tennessee judicial system “to steal, embezzle, defraud, and to carry out other illegal activities.” The pending disciplinary case was amended to bring more charges over the representation in the new federal court case. That disciplinary case resulted in the imposition of an 180-day suspension of Cody’s license in 2015.
I’m guessing at this point, Dear Reader, you can guess what happens next (if for no other reason than that I sort of told you a few paragraphs up in the short version). During his 180-day suspension, Cody drafted appellate briefs for the same clients, after their RICO case had been dismissed, and had them sign and file them as if he was not involved. That resulted in a new disciplinary proceeding and culminated in a new one-year suspension in 2016. Thereafter, Cody prepared three more appellate briefs for those clients — including a petition for cert with the U.S. Supreme Court (!) during his one-year suspension and, in 2017, was hit with a new two-year suspension. During the one-year suspension but before the two-year suspension began, Cody went back to the state level trial court where it all started and filed an “Open Refusal to Obey Judicial Orders,” along with one or two other filings (including a challenge to the receiver’s fees and expenses), and then, during the two-year suspension period, he filed a “Motion for Determination of Proper Venue.”
Those acts resulted in Cody being found in criminal contempt and actually sentenced to 30 days in jail earlier this year. Those acts also brought about yet another disciplinary proceeding against him, which he defended by denying the legitimacy of the orders of the Court suspending him, and that resulted in August 2018 in an order disbarring him from the practice of law.
All in all, his saga is a remarkable story that demonstrates at least three things:
(1) you can dig a pretty deep hole over the course of 14 years;
(2) there has to have been something else going on to explain the public meltdown that this lawyer managed to have after apparently practicing for more than 25 years without receiving any public discipline; and
(3) the BPR can truly be dedicated to the concept of incremental discipline when it wants to be as it is almost as hard to believe that Cody was given 180, 1-year, and then 2-year suspensions in these circumstances before ever being disbarred as it is to believe that he kept going out and getting new shovels.