Cain v. Board of Com'rs of Alabama State Bar

345 So. 2d 1343, 1977 Ala. LEXIS 1874
CourtSupreme Court of Alabama
DecidedMay 6, 1977
StatusPublished
Cited by3 cases

This text of 345 So. 2d 1343 (Cain v. Board of Com'rs of Alabama State Bar) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cain v. Board of Com'rs of Alabama State Bar, 345 So. 2d 1343, 1977 Ala. LEXIS 1874 (Ala. 1977).

Opinion

345 So.2d 1343 (1977)

In the Matter of Kenneth R. CAIN
v.
The BOARD OF COMMISSIONERS OF the ALABAMA STATE BAR.

SC 2071.

Supreme Court of Alabama.

May 6, 1977.
Rehearing Denied June 3, 1977.

George E. Trawick, Ariton, for petitioner.

William H. Morrow, Jr., Montgomery, Gen. Counsel, for Board of Commissioners of the Alabama State Bar.

PER CURIAM.

Attorney Kenneth R. Cain petitions for review of a ruling of the Board of Commissioners of the Alabama State Bar finding him guilty of professional misconduct and suspending him from the practice of law for 18 months without automatic reinstatement. We affirm.

On December 5, 1975, the Grievance Committee of the Alabama State Bar filed 58 *1344 disciplinary charges against Cain. The Board, after studying the Grievance Committee's exhibits and the transcript of testimony taken before a specially appointed commissioner and hearing oral arguments by Cain and William H. Morrow, Jr., General Counsel for the Alabama State Bar, dismissed or found Cain not guilty of 39 of the charges and found him guilty of 19 charges.

Cain was found guilty of five violations each of Rules 27 and 33, Rules Governing the Conduct of Attorneys in Alabama,[1] for misappropriation of the funds of a client:

"No person heretofore or hereafter admitted to practice law in Alabama, shall
* * * * * *
"27. Misappropriate the funds of his client, either by failing to pay over money collected by him for his client, or by appropriating to his own use funds entrusted to his keeping, provided the circumstances attending the transaction are such as to satisfy the Board that the attorney acted in bad faith or with fraudulent purpose.
* * * * * *
"33. Be guilty of any deceit or wilful misconduct in his profession. * * *"

Cain was also found guilty of nine violations of DR 1-102(A)(4), Code of Professional Responsibility of the Alabama State Bar,[2] for false testimony before the Grievance Committee:

"(A) A lawyer shall not:
* * * * * *
(4) Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation, nor be guilty of wilful misconduct. * * *"

There follows a brief account of the acts upon which the action of the Board is predicated.

Cain formed the Mighty Tidy Company, an Alabama corporation. Although Cain sold his interest in Mighty Tidy to his law clerk shortly before the events in question, he continued, at all times pertinent to this inquiry, to dominate and control the company. He admitted in his testimony that Mighty Tidy was his alter ego.

As attorney for Audrey Brenda Walding in a divorce suit, Cain prepared a trust agreement dated February 27, 1973, naming himself as trustee for the minor children of Mrs. Walding and providing that Mr. Walding would pay to him as trustee $7,500. On or about March 2, 1973, Mr. Walding's attorneys delivered to Cain a check in the sum of $7,500, payable to him as trustee for the children. The divorce court incorporated the trust agreement into the final decree of divorce on March 13, 1973.

On March 16, Cain negotiated the check at the First National Bank of Birmingham, the payee bank, and received a cashier's check for $6,500 and $1,000 in cash.

On March 19, Cain negotiated the $6,500 cashier's check at the Enterprise Banking Company, Enterprise, Alabama, and received a cashier's check for $4,500 and $1,000 in cash. He deposited $1,000 to the checking account of Mighty Tidy.

On March 23, Cain negotiated the $4,500 cashier's check at the Enterprise Banking Company, $3,500 being deposited to the checking account of Mighty Tidy and $500 to the checking account of the Walding Trust and $500 being received in cash.

In 1974, an action for an accounting was filed against Cain by Mr. Walding. Cain claimed that he had invested the trust funds in accounts receivable of Mighty Tidy. The trial court found that the purported investments were improper and permitted the beneficiaries to surcharge Cain. The trial court also disallowed some of the payments which Cain had made to Mrs. Walding as not being for the benefit of the children. The Court of Civil Appeals affirmed the trial court's judgment, holding, inter alia, that Cain had violated his fiduciary duty by self-dealing. Walding v. Walding, 56 Ala.App. 181, 320 So.2d 687 (1975).

*1345 Before the Grievance Committee, Cain testified that he had discussed with Mrs. Walding the various ways in which the trust funds might be invested and that he had recommended the purchase of accounts receivable from Mighty Tidy because he could control the actions of Mighty Tidy's president and knew that he would do what was necessary to protect her interest.

The Board of Commissioners found Cain guilty of the following acts of misappropriation:

(1) depositing $1,000 on March 19, 1973, to the account of Mighty Tidy;
(2) depositing $3,500 on March 23, 1973, to the account of Mighty Tidy;
(3) receiving $1,000 in cash on March 16, 1973;
(4) receiving $1,000 in cash on March 19, 1973; and
(5) receiving $500 in cash on March 23, 1973.

Cain was also found guilty of falsely testifying to the following before the Grievance Committee:

(1) that $7,276.98 of the trust funds were used to purchase accounts receivable of Mighty Tidy;
(2) that the entire proceeds of the cashier's check for $4,500 were used to purchase accounts receivable of Mighty Tidy for the trust;
(3) that Mighty Tidy executed a group assignment of $4,500 of accounts receivable to the trust;
(4) that the entire proceeds of a cashier's check for $2,776.98 were used to purchase accounts receivable of Mighty Tidy for the trust;
(5) that Mighty Tidy executed a group assignment of $2,776.98 of accounts receivable to the trust.
(6) that none of the proceeds of the $7,500 check were received in cash, but all were converted into cashier's checks;
(7) that the entire proceeds of a cashier's check for $2,776.98 were delivered to Mighty Tidy and that none of the proceeds went through any bank account held by Cain individually or otherwise;
(8) that when the $7,500 check was negotiated no cash was received for any portion of it, but the entire proceeds were dealt with exclusively by certified checks; and
(9) that he never personally purchased any merchandise for Mighty Tidy and paid for it by cash, check, or otherwise.

Cain does not deny that he made the alleged statements, except for the last one, or that they were false, but claims that they were honest mistakes resulting from his poor recordkeeping and the great volume of cases he had been handling.

Cain's contentions before this Court may be summarized as follows:

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Related

In Re State of Ala.
1 So. 3d 1084 (Court of Criminal Appeals of Alabama, 2008)
Ex parte Garmon
641 So. 2d 257 (Supreme Court of Alabama, 1994)
Jackson v. Alabama State Bar
462 So. 2d 365 (Supreme Court of Alabama, 1985)

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Bluebook (online)
345 So. 2d 1343, 1977 Ala. LEXIS 1874, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cain-v-board-of-comrs-of-alabama-state-bar-ala-1977.