Ex Parte EJM

829 So. 2d 105, 2001 WL 1021589
Procedural entryThis page is a short order in Ex Parte EJM. Read the opinion of the Court — 2001 Ala. LEXIS 325
Supreme Court of Alabama·Decided September 7, 2001·No. 1990510·Published

Opinion

829 So.2d 105 (2001)

Ex parte E.J.M. and Capouano, Smith, Warren & Klinner, P.C.
(Re Montgomery County, Grand Jury, Grand Jury Subpoena Duces Tecum No. 99-109).

1990510.

Supreme Court of Alabama.

September 7, 2001.
Rehearing Denied December 7, 2001.

*106 J. Mark White and William M. Bowen, Jr., of White, Dunn & Booker, Birmingham, for petitioners.

Bill Pryor, atty. gen.; and George A. Martin, Jr., John Gibbs, and Miles M. Hart, asst. attys. gen., for respondent.

James L. Sumner, Jr., director/deputy atty. gen., and Hugh R. Evans III, asst. director/gen. counsel, amicus curiae Alabama Ethics Commission.

JOHNSTONE, Justice.

E.J.M. and Capouano, Smith, Warren & Klinner, P.C., petition this Court for a writ of mandamus directing the Court of Criminal Appeals to direct the trial judge to quash Montgomery County grand jury subpoena duces tecum no. 99-109. We grant the petition and issue the writ.

On May 7, 1999, the foreperson of the Montgomery County Grand Jury issued an instanter subpoena duces tecum no. 99-109 to the "Managing Partner" of the Capouano, Smith, Warren & Klinner law firm ("the Law Firm"). The subpoena directed the "Managing Partner" to produce to "Bill Long, investigator, office of the Attorney General, State of Alabama" various documents relating to the relationship between the Law Firm and E.J.M., a lawyer and a former director of the Ethics Commission, and relating to the representation of certain clients by E.J.M. or by the Law Firm or by E.J.M. in association with the Law Firm.

On May 10, 1999, E.J.M. and the Law Firm moved to quash the grand jury subpoena duces tecum on various grounds. Following a telephone conference with the parties and the General Counsel of the Alabama State Bar Association, the trial court asked the General Counsel of the Bar Association to provide the court with opinions of the Disciplinary Commission and of the Office of the General Counsel regarding Rule 1.6, Alabama Rules of Professional Conduct. By letter dated May 13, 1999, the General Counsel provided the trial court with the requested opinions. Thereafter, the Attorney General filed a brief in opposition to the motion to quash. Following a hearing on the motion to quash, the trial court directed the parties to brief the following issue:

"If a complaint for a violation of the Alabama State Ethics Law is initiated by the Ethics Commission (as opposed to some other identifiable and verified source), must the Attorney General comply with the provisions of § 36-25-4(c), Ala.Code 1975, before initiating criminal prosecution by the presentation of the case to a grand jury?"

The parties filed briefs addressing the specified issue. Following the submission of proposed orders by the parties, the trial court entered an order granting in part and denying in part the motion to quash and modifying the grand jury subpoena duces tecum.

*107 E.J.M. and the Law Firm petitioned the Court of Criminal Appeals for a writ of mandamus directing the trial court to quash the subpoena duces tecum. On December 3, 1999, the Court of Criminal Appeals granted in part and denied in part the petition for a writ of mandamus, modified the subpoena duces tecum, but left it in effect for the production of some materials sought.

"`A writ of mandamus is an extraordinary remedy that requires the showing of: (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty on the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) the properly invoked jurisdiction of the court.'" Ex parte State Farm Mut. Auto. Ins. Co., 761 So.2d 1000, 1002 (Ala. 2000) (quoting Ex parte McNaughton, 728 So.2d 592, 594 (Ala.1998)).

E.J.M. and the Law Firm assert: (1) that neither the trial court nor the Court of Criminal Appeals has the authority to "`reform' or `modify' a grand jury subpoena"; (2) that the Court of Criminal Appeals does not have the authority to change the wording of a grand jury subpoena; (3) that the grand jury subpoena is void because it directed a return of the subpoenaed materials outside of the presence of the grand jury to an investigator with the Attorney General's office; (4) that the grand jury subpoena "is indiscriminate and overbroad," and contrary to Rule 1.6, Ala. R. Prof. Cond.; and (5) that "[t]he Ethics Commission improperly referred the complaint to the Attorney General in disregard of certain procedural safeguards." We find the issue whether "[t]he Ethics Commission improperly referred the complaint to the Attorney General in disregard of certain procedural safeguards" to be dispositive.

Within the course of an investigation of a certain person, the Ethics Commission acquired information that caused it to believe that E.J.M. had violated the Ethics Act in his representation of that person and possibly other clients before the Ethics Commission. Without any complaint filed by anyone outside the Ethics Commission, the Ethics Commission itself initiated a complaint against E.J.M.; and, instead of following the mandate of § 36-25-4(c), Ala.Code 1975, to refer the complaint to a three-judge panel for hearing, the Ethics Commission "asked the Attorney General to handle the ... matter." June 28, 1999, Letter from Attorney General to the trial judge, p. 1. The Attorney General then convened a grand jury to investigate whether there was probable cause to believe that E.J.M. had, in fact, violated the Ethics Act; and that grand jury issued the subpoena duces tecum now being challenged.

E.J.M. and the Law Firm contend that the Ethics Commission violated the Ethics Act by referring the matter to the Attorney General without heeding the prerequisites and restrictions of § 36-25-4(c), which prescribes the way for the Ethics Commission to investigate or to initiate a complaint:

"(c) The commission shall not take any investigatory action on a telephonic or written complaint against a respondent so long as the complainant remains anonymous. Investigatory action on a complaint from an identifiable source shall not be initiated until the true identity of the source has been ascertained and written verification of such ascertainment is in the commission's files. The complaint may only be filed by a person who has or persons who have actual knowledge of the allegations contained in the complaint. A complainant may not file a complaint for another person or persons in order to circumvent *108 this subsection. Prior to commencing any investigation, the commission shall: (1) receive a written and signed complaint which sets forth in detail the specific charges against a respondent, and the factual allegations which support the charges and (2) the director shall conduct a preliminary inquiry in order to make an initial determination that reasonable cause exists to conduct an investigation. If the director determines reasonable cause does not exist, the charges shall be dismissed, but such action must be reported to the commission. The commission shall be entitled to authorize an investigation upon a unanimous written consent of all five (5) commission members, upon an express finding that probable cause exists that a violation or violations of this chapter have occurred. A complaint may be initiated by the unanimous vote of the commission, provided, however, that the commission shall not conduct the hearing, but rather the hearing shall be conducted by three (3) active or retired judges, who shall be appointed by the Chief Justice of th

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Ex parte E.J.M.
829 So. 2d 105 (Supreme Court of Alabama, 2001)