Ex Parte Alabama State Bar: Who Has Jurisdiction When ... Ex Parte Alabama State Bar: Who Has Jurisdiction

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Ex Parte Alabama State Bar:

Who Has Jurisdiction When

Judges Act Unethically as Lawyers?

I. Introduction

"The framers of the Constitution were so clear in the federalist papers

and elsewhere that they felt an independent judiciary was critical to the success of the nation."1 The independence of the judiciary of the fifty states comes under question when an incumbent judge commits an ethical violation leaving the state bar association and judicial discipline organization (JDO) to battle over jurisdiction. The question addressed in this survey is whether the state bar associations or judicial discipline organizations have jurisdiction over judges who are prosecuted for ethics violations they committed while attorneys.

This Comment begins its analysis by addressing the basic model and function of JDOs and the nature of their power over the discipline of judges. The tension between judicial independence and the removal or the disciplining of judges via the state bar is examined through the lens of Ex parte Alabama State Bar,2 a recent decision from the Alabama Supreme Court. Next, this Comment highlights examples from states in both the majority and minority and compares their positions regarding the jurisdictional question with the results of Alabama's holding in Ex parte Alabama State Bar.

This Comment does not examine whether courts or JDOs actually have the power to discipline or remove sitting judges.3 Instead, the author assumes that state legislatures have delegated some power to state courts and JDOs to prosecute and remove judges who commit ethical or criminal activities while on the bench. The focus of this Comment is the question of jurisdiction over sitting judges when they have committed ethical

1 Jeff Chu, Q & A with Sandra Day O'Connor, TIME, Sept. 28, 2006, http://www. time.com/time/nation/article/0,8599, 1540702,00.html.

2 3 So. 3d 178 (Ala. 2008). 3 See generally Removal or Discipline of State Judge for Neglect of, or Failure to

Perform, Judicial Duties, 87 A.LR.4th 727 (1991); Power of Court to Remove or Suspend Judge, 53 A.L.R.3d 882, 3045 (2009).

188 AMERICAN JOURNAL OF TRIAL ADVOCACY [Vol. 33:187

violations before they assumed the bench and while they were practicing law.4 At the conclusion, the author compares the opinions of the justices in Ex parte Alabama State Bar in an attempt to reconcile the competing jurisdictional claims between state bar associations and judicial discipline organizations.

II. Bar Associations and the Organization and

Function of Judicial Discipline Organizations

Bar associations have two forms. There are private bar associations

that may represent a geographic area, specialized field within the law,

or ethnicity.5 Private bar associations are generally voluntary organiza

tions. Many states have state bar associations with required membership

and are the disciplinary body over lawyers for a particular state. 6 Law

yers are subject to disciplinary actions taken by the state bar association

according to their state's ethics code.

In the alternative, there are judicial inquiry commissions, judicial

review boards, and judicial conduct organizations, whose purpose is to

serve as the JDO for incumbent judges within a state. The first JDO was

created by California in 1960, and shortly thereafter, the rest of the states followed. 7 The purpose of JDOs is to enforce ethics and discipline sitting

judges. 8 Before JDOs existed, the only manner in which a judge could

be disciplined was through impeachment by the state legislature, as provided for in the state constitution.

4 For a general and quick reference as to the wide range of removing judges, see American Judicature Society, Methods of Judicial Selection: Removal of Judges, http:// www.judicialselection.com/judicial_selection/methods/removal_ofjudges.c:fi:n?state=

(last visited Oct. 12, 2009). 5 See Magic City Bar, http://www.magiccitybar.org; Boston Bar Ass 'n, http://www.

bostonbar.org. 6 See Alabama State Bar, http://www.alabar.org; Oklahoma State Bar, http://www.

okbar.org. 7 Justin A. Barkley, Note, Judges Behaving Badly: The Disciplining of Judges by

the Alabama Court of the Judiciary, From Richard Emmet to Roy Moore, 29 J. LEGALPROF. 191 (2005).

sld.

2009] Ex PARTE ALABAMA STATE BAR 189

The authority of JD Os varies; some JDOs simply make advisory opinions to the state supreme court for disciplinary action while other JDOs are the actual disciplinary body. Alabama has a judicial inquiry commission that investigates claims of ethics violations and then files a complaint before the court of the judiciary. The court of the judiciary hears the complaint and makes a decision, which can be appealed to the Alabama Supreme Court-as was the case in Ex parte Alabama State Bar. The composition as well as the authority of a JDO varies from state to state. 9

The Alabama Judicial Inquiry Commission and court of the judiciary both consist of nine members each. Four members are judges: one appellate judge appointed by the Alabama Supreme Court, two circuit judges appointed by the circuit judges association, and one district judge appointed by the lieutenant governor and subject to state senate confirmation. Two members are attorneys selected by the state bar. The last three members are from the general public but are selected differently by the judicial inquiry commission and court of the judiciary. The judicial inquiry commission has three public members appointed by the governor upon confirmation by the state senate. However, the court of the judiciary has two public members appointed by the governor and one public member appointed by the lieutenant governor with all three subject to state senate confirmation. 10

The decision in Ex parte Alabama State Bar presents the two differing opinions between the fifty states as to who has jurisdiction over a judge for unethical actions committed. Typically, the answer would be the JDO. However, in Ex parte Alabama State Bar, the judge committed unethical actions before he took the bench. The majority of states concur with the dissent in Ex parte Alabama State Bar and hold the state bar association as the appropriate agency to discipline judges when they violate the Rules of Professional Conduct. The minority of states have agreed with the ruling of the Alabama Supreme Court and found the state's JDO as the appropriate means of discipline for incumbent judges.

9 See American Judicature Society, Commission Membership, http://www.ajs.org/ ethics/pdfs/Commissionmembership.pdf(last visited Oct. 12, 2009) (JDO membership of the states); American Judicature Society, Judicial Ethics Advisory Committees by State, http://www.ajs.org/ethics/pdfs/ Advisorycommitteetable.pdf (last visited Oct. 12, 2009) (state-by-state authority, composition, and effect of JDO opinions).

10 ALA. CONST. 1901 amend. 581 (amending Amendment 328).

190 AMERICAN JOURNAL OF TRIAL ADVOCACY [Vol. 33:187

III. Ex parte Alabama State Bar

Stuart Craig Dubose practiced law in Washington County, Alabama in April 2003 when Cheryl Weaver asked him to draft a will for Joseph

J. Sullivan.11 Dubose never spoke with Sullivan regarding the will.12

Nevertheless; Sullivan signed the will on April 11, 2003, and died on April 29. 13 Subsequently, Dubose entered into a contract with Weaver to represent her and Sullivan's estate. The contract agreed Dubose would receive thirty-three percent from the proceeds of any settlement obtained before the filing of a will contest or forty percent if the filing occurred. 14

The will was contested by Sullivan's heirs on August 15, 2003, and Dubose discovered that the notary public was not actually present to witness the physician's signature declaring Sullivan competent.15 To remedy this flaw, Dubose removed the notary's signature to avoid losing the case. 16 After this case was settled, Weaver and Dubose disputed how to calculate Dubose' s payment from February 18, 2005, until a settlement was reached on October 2, 2006. 17 During the course of the dispute over Dubose's pay, an anonymous complaint was made on May 10, 2005, against Dubose to the Alabama State Bar. 18

The state bar disciplinary commission and Dubose quickly came to an agreement as to what disciplinary action should be taken. 19 However, the Supreme Court of Alabama rejected the proposed punishment and suspended Dubose from the practice of law for forty-five days.20 As a result, the state bar filed charges against Dubose for numerous ethical

violations on October 20, 2006.21

11 Ex parte Ala. State Bar, 3 So. 3d at 178.12 Id. 13

Id. 14 Id. 1s Id. 16 Id. 17 Id. at 179-80. 18 Id. at 180. 19 Id. 20 Id. 21 Ex

p

arte Al .a State Bar, 3 So. 3d at 180 (violations of A

LA. R. D

ISC. P. 1

.1, l.4(b), l.5(a), 1.7(a)-(b), l.8(c), 3.4(a)-(b), 8.4(a), (c), (d), (g)).

2009] EX PARTE ALABAMA STATE BAR 191

Dubose was elected in November 2006 to the position of circuit judge for Alabama's first judicial circuit and assumed office on January 15, 2007. 22 Shortly thereafter, Dubose moved for summary judgment against the ethics charges brought by the state bar. 23 Dubose argued jurisdiction was divested from the state bar upon his assumption of office as a judge.24

The disciplinary board disagreed and found the state bar has jurisdiction over violations of the Rules of Professional Conduct occurring before an attorney has assumed1udicial office. 25 Dubose appealed, and the board of appeals reversed and precluded the state bar from instituting any action against Du