Alabama State Bar v. Dubose

3 So. 3d 178, 2008 Ala. LEXIS 52, 2008 WL 683639

• Court: Supreme Court of Alabama
• Decided: March 14, 2008
• Docket: 1061743
• Status: Published

Opinions

BOLIN, Justice.

The Alabama State Bar (“the State Bar”) petitions this Court for a writ of mandamus directing the Board of Disciplinary Appeals of the Alabama State Bar (“the Board of Appeals”) to enter an order reversing its decision finding that the Disciplinary Board of the Alabama State Bar (“the Disciplinary Board”) was divested of its jurisdiction to discipline Stuart Craig Dubose after Dubose assumed the bench as an incumbent circuit court judge for the First Judicial Circuit.

In April 2003 Cheryl Weaver asked Du-bose, then a practicing attorney, to prepare and draft a will for Joseph J. Sullivan. Sullivan, an elderly widower, lived in Washington County and had no immediate family living nearby. Weaver had been Sullivan’s caretaker for more than a decade, and when Sullivan became ill he eventually moved in with Weaver, who continued to care for him. Weaver informed Dubose that Sullivan was dying and that he wanted to leave his entire estate to her. Sullivan’s estate was substantial; it consisted of various bank accounts, stocks in various companies, and real property. Du-bose drafted a will naming Weaver as the executor and sole beneficiary of Sullivan’s estate. According to Dubose, Weaver also told him that she wanted him to be named in the will as the attorney for the estate. Dubose included in the will provisions naming himself as the successor personal representative as well as the attorney for the estate. Dubose stated that he explained to Weaver the proper procedure to effectuate the due execution of the will by Sullivan. He also prepared a certificate to be signed by Sullivan’s physician stating that Sullivan was competent and directed Weaver to have it signed. Dubose did not meet with or speak to Sullivan regarding the will or its provisions before preparing the will.

Sullivan signed the will on April 11, 2003; he died on April 29, 2003. On May 6, 2003, Weaver and Dubose, apparently in anticipation of an action by Sullivan’s heirs contesting the will, entered into a contingency contract whereby Dubose was employed to represent both Sullivan’s estate and Weaver. Sullivan’s estate and Weaver agreed to pay Dubose 33% from the proceeds of any settlement obtained before the filing of a will contest and 40% from the proceeds of any settlement obtained after the filing of any will contest. The agreement also provided that Sullivan’s estate and Weaver would pay the cost of any investigation that might be required.

On August 15, 2003, Sullivan’s heirs filed an action contesting his will. Dubose discovered during his representation of the estate and Weaver in the will contest that the notary public who notarized the physician’s signature was not actually present when Sullivan’s physician signed the certificate declaring that Sullivan was competent. Dubose deleted the notary’s signature from the certificate because he believed that if it was discovered that the notary did not actually witness the physician signing the certificate it would “blow the whole case out of the water.” However, Dubose subsequently deposed Sullivan’s physician and verified that the physician had signed the certificate and that Sullivan was indeed competent at that time. The parties to the will contest ultimately settled the action, and the case was dismissed on February 14, 2005.

On February 14, 2005, Weaver moved the court to appoint Dubose as a coexecutor of the estate. Weaver and Dubose also petitioned the court for the admission to probate of Sullivan’s will and for letters testamentary. The court granted the letters testamentary to Weaver and Dubose on that same date.

A dispute subsequently arose between Weaver and Dubose as to the fee due Dubose under the contingency contract. Dubose contended that he was entitled to 40% of the portion of the estate Sullivan received as part of the settlement, which was valued at approximately $2.5 million, including stock and land. Weaver contended that the stock and land were not to be included in calculating Dubose’s fee and that he was entitled to only 40% of the cash assets of her portion of the estate. On February 18, 2005, Dubose filed a claim against Weaver and the estate, seeking a fee for his services as personal representative and attorney for the estate.¹ Despite having filed a claim against Weaver and the estate, Dubose continued to represent Weaver and to serve as coexecutor of the estate. Dubose’s claim was eventually settled by the parties, and the trial court, on October 2, 2006, entered an order naming Dubose as the sole executor of Sullivan’s estate and awarding him fees for his service as personal representative and as attorney for the estate in the amounts of $127,630 and $969,992, respectively. The trial court granted letters testamentary to Dubose on that same date.

Before Dubose and Weaver settled Du-bose’s claim, an anonymous complaint was filed with the State Bar on May 10, 2005, alleging that Dubose had violated the Alabama Rules of Professional Conduct during his representation of Weaver and Sullivan’s estate. On September 19, 2006, Dubose waived the filing of formal charges and entered a guilty plea to violating Rules 1.1, 1.4(b), 1.7(b), 1.8(c), 8.4(a), and 8.4(g), Alabama Rules of Professional Conduct. On October 4, 2006, the State Bar’s Disciplinary Commission accepted Du-bose’s guilty plea and entered an order suspending him from the practice of law for 45 days. On October 19, 2006, this Court entered an order denying the Disciplinary Commission’s request to suspend Dubose from the practice of law for 45 days, concluding that the requested discipline was insufficient. The next day, the State Bar filed formal charges against Du-bose alleging violations of Rules 1.1, 1.4(b), 1.5(a), 1.7(a), 1.7(b), 1.8(c), 3.4(a), 3.4(b), 8.4(a), 8.4(c), 8.4(d), and 8.4(g), Alabama Rules of Professional Conduct.

In November 2006, Dubose was elected circuit judge for the First Judicial Circuit. He was sworn into office on December 22, 2006, and officially assumed the office of circuit judge on January 15, 2007. On February 8, 2007, Dubose moved the Disciplinary Board for a summary judgment on the complaint against him arguing, among other things, that the State Bar was divested of its jurisdiction to discipline him once he became an incumbent circuit judge. On February 13, 2007, the State Bar filed a response to Dubose’s motion for a summary judgment, arguing that it retained jurisdiction over Dubose for alleged violations of the Rules of Professional Conduct occurring while he was engaged in the private practice of law before he assumed the office of circuit judge. On February 22, 2007, a panel of the Disciplinary Board entered an order denying Du-bose’s motion for a summary judgment.

On March 1, 2007, Dubose moved the Disciplinary Board to reconsider its denial of his summary-judgment motion. Following a hearing, the Disciplinary Board, on March 13, 2007, entered an order finding that the State Bar did have jurisdiction over Dubose to proceed with disciplinary proceedings for the alleged violations of the Rules of Professional Conduct occurring before Dubose assumed the office of circuit judge. The Disciplinary Board certified the judgment as final pursuant to Rule 54(b), Ala. R. Civ. P. On March 19, 2007, Dubose appealed the decision of the Disciplinary Board to the Board of Appeals.

The Board of Appeals issued a show-cause order on July 25, 2007, noting that an order denying a motion for a summary judgment is inherently “non-final” and cannot be made final by Rule 54(b) certification. See Continental Cas. Co. v. South-Trust Bank, N.A., 933 So.2d 337 (Ala. 2006). The Board of Appeals further con-eluded that it had the discretion to treat the appeal as a petition for a writ of mandamus. F.L. Crane & Sons, Inc. v. Malouf Constr. Corp., 953 So.2d 366 (Ala.2006), and directed Dubose to answer why his appeal should not be treated as a petition for a writ of mandamus. After receiving responses from the parties, the Board of Appeals, on August 31, 2007, entered an order granting Dubose’s petition for the writ of mandamus and finding that the Disciplinary Board did not have jurisdiction to continue the disciplinary proceedings against Dubose once he became an incumbent circuit court judge. The Board of Appeals ordered that all disciplinary proceedings against Dubose be stayed until such time as he is no longer serving as judge. This petition followed.

Standard of Review

This Court has stated:

“ ‘[Mjandamus is a drastic and extraordinary writ that will be issued only when there is: (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.’ Ex parte Horton, 711 So.2d 979, 983 (Ala.1998). ‘Subject to certain narrow exceptions ..., the denial of a motion to dismiss or a motion for a summary judgment is not reviewable by petition for writ of mandamus.’ Ex parte Liberty Nat’l Life Ins. Co., 825 So.2d 758, 761 (Ala.2002) (citing Ex parte Jackson, 780 So.2d 681, 684 (Ala. 2000)). One of the exceptions is the denial of a motion grounded on a claim of lack of personal jurisdiction, Ex parte Sekeres, 646 So.2d 640 (Ala.1994), Ex parte Paid Maclean Land Servs., 613 So.2d 1284 (Ala.1993), and Ex parte Volkswagenwerk Aktiengesellschaft, 443 So.2d 880 (Ala.1983).” Ex parte Alloy Wheels Int'l Ltd., 882 So.2d 819, 821-22 (Ala.2003). “Questions of law are reviewed de novo.” Ex parte Terry, 957 So.2d 455, 457 (Ala.2006). Therefore, a petition for a writ of mandamus is the proper vehicle by which to review the State Bar’s claim that the Board of Appeals erred in determining that it was divested of its jurisdiction to discipline Dubose once he assumed office as an incumbent circuit judge, and our review will be de novo.

Discussion

The issue whether the Disciplinary Board has jurisdiction to discipline an incumbent judge for an alleged violation of the Rules of Professional Conduct while the incumbent judge was engaged in the private practice of law presents a question of first impression.

The State Bar acknowledges that Rule 1(a)(2), Ala. R. Disc. P., divests it of the jurisdiction to discipline an incumbent judge for misconduct occurring while the judge is in office. Rule 1(a)(2) provides: “Incumbent Judges. Incumbent judges are not subject to the jurisdiction of the Disciplinary Commission or the Disciplinary Board of the Alabama State Bar.” Indeed, the discipline of an incumbent judge for conduct occurring while in office is provided for by Art. VI, §§ 156 and 157, Ala. Const, of 1901. See also Alabama State Bar ex rel. Steiner v. Moore, 282 Ala. 562, 213 So.2d 404 (1968) (holding that the State Bar cannot discipline a judge during the term in which the judge is holding office for misconduct performed in a judicial capacity and that a judge can be disciplined only according to the exclusive method provided for in the constitution). Leaving the discipline of judges to the procedures prescribed in the constitution is of “fundamental soundness, and is essential to the maintenance of an independent judiciary.” In re Alonzo, 284 Ala. 183, 188, 223 So.2d 585, 590 (1969).

However, the State Bar contends that it retains jurisdiction over all disciplinary matters involving any member of the State Bar for violations of the Alabama Rules of Professional Conduct that were committed while the member was engaged in the practice of law. See generally Rule 1(a)(1), Ala. R. Disc. P. It is a compelling argument, especially where, as here, the violations, the institution of disciplinary procedures, and a guilty plea by Dubose all occurred prior to Dubose’s taking office as a member of the judiciary. Implicit in the State Bar’s argument is the fact that even though Dubose may hold judicial office, he nevertheless remains on the roll of attorneys and must be a member of the bar in order to hold judicial office. See In re Alonzo, 284 Ala. at 189, 223 So.2d at 592 (“When one is admitted to the bar of this state and licensed to practice law by this court, he remains enrolled as an attorney from that time on unless his right to practice is destroyed by a judgment of suspension or disbarment. True, during the time an attorney may hold certain judicial offices, his right to practice is suspended. He yet remains on the roll of attorneys of this court, and must be a member of the bar to be qualified to hold certain judicial offices.”).² Specifically, the State Bar argues that its jurisdiction over Dubose attached on October 20, 2006, with the filing by the State Bar of formal charges alleging violations of the Rules of Professional Conduct while Dubose was engaged in the private practice of law and that it was not subsequently divested of that jurisdiction when he assumed the office of circuit judge. Reluctantly, we disagree.

In In re Alonzo, siupra, Alonzo had been elected to the office of circuit judge at the November 1966 general election. After being elected judge but before being sworn into office, Alonzo devised a scheme to extort money from a particular party that would be appearing in his court. Once on the bench, Alonzo forced the extortion by entering unfavorable judgments against the party being extorted. Alonzo’s scheme was discovered, and the State Bar brought disciplinary action against him. However, before the State Bar took disciplinary action against Alonzo, a judgment of impeachment was rendered against him, and he was removed from office.

This Court considered the issue whether the State Bar could proceed with disciplinary action against Alonzo. In holding that the State Bar could proceed with disciplinary action against Alonzo, the Court noted that the important constitutional issue of maintaining an independent judiciary was not an impediment to the State Bar’s bringing disciplinary action against Alonzo because he had been impeached and removed from office. In re Alonzo, supra. Further, this Court stated:

“Where, as here, a member of the bar holding judicial office commits fraudulent, corrupt, and immoral acts by originating an extortion plan prior to entering upon a judgeship, and executes that plan after assuming the powers of the judgeship, by actions that cannot by any stretch of the imagination, rationally be deemed judicial or official acts, and where such judge has been removed from office by due and legal impeachment proceedings prior to disciplinary action by the Bar Association, it would indeed be sadly anomalous to conclude that the Bar could not cleanse itself of such unfit member on any theory that judicial robes protected such conduct.”

284 Ala. at 190, 223 So.2d at 592.

This Court’s holding in Alonzo is embodied in Rule 1(a)(3), Ala. R. Disc. P., which, we conclude, controls the present situation. Rule 1(a)(3) provides:

“Former Judges. Former judges who have resumed their status as lawyers are subject to the jurisdiction of the Supreme Court of Alabama and the Disciplinary Commission and the Disciplinary Board of the Alabama State Bar for misconduct that occurred while they were judges, before they became judges, or after the resumption of the practice of law and that would have been grounds for lawyer discipline.”

(Emphasis added.) It is clear from the plain and unambiguous language of Rule 1(a)(3), Ala. R. Disc. P., that the State Bar does not currently have the jurisdiction to discipline Dubose so long as he is serving as an incumbent judge; however, at such time when Dubose becomes a “former judge” and is no longer serving in a judicial capacity, the State Bar would then regain jurisdiction to discipline Dubose for those acts of misconduct that occurred before he became a judge. Therefore, Du-bose is entitled to have the disciplinary proceedings initiated against him by the State Bar stayed until such time as he is no longer serving in his capacity as circuit judge.

Because the State Bar has failed to establish a clear legal right to the relief sought, we deny the petition for the writ of mandamus.

PETITION DENIED.

SEE, WOODALL, STUART, and PARKER, JJ., concur. COBB, C.J., and LYONS, SMITH, and MURDOCK, JJ., dissent.

1 . At some point that is not entirely clear from the record before this Court, the matter of Sullivan's estate was transferred from the Washington Circuit Court to the Mobile Circuit Court.

2 . Section 146, Ala. Const, of 1901 (Off.Re-comp.), provides that ''[¡Judges of the supreme court, courts of appeals, circuit court, and district court shall be licensed to practice law in this state ...."