Download pdf - Ex Parte Alabama State Bar: Who Has Jurisdiction When ... · Ex Parte Alabama State Bar: Who Has Jurisdiction When Judges Act Unethically as Lawyers? I.Introduction "The framers of

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. LEGAL

PROF. 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).


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 Dubose until after "he is no longer serving as judge."26 Subsequently, the Alabama State Bar appealed to the Alabama Supreme Court to address the question of whether they retained jurisdiction over all disciplinary matters involving members of the state bar while they are practicing attomeys.27

A. Ruling

In a five-to-four decision, the Alabama Supreme Court held that the state bar was divested of its jurisdiction upon Dubose assuming office as a judge.28 The majority opinion examined the plain language of Alabama Rule of Disciplinary Procedure 1 ( a)(2): "Incumbent judges are not subject to the jurisdiction of the Disciplinary Commission or theDisciplinary Board of the Alabama State Bar."29 Based upon the plainlanguage of this rule, the Alabama State Bar was found to not have jurisdiction over Dubose. The disciplining of an incumbent judge for unethical or inappropriate conduct is limited to the judicial inquiry commission (the state JDO) by Alabama's constitution.30

22 Id.

23 Id.

24 Id.

25 Id. at 180.

26 Id. at 181.

27 Id. at 181-82.

2s Id.

29 ALA. R. DISC. P. l(a)(2). 30 ALA. CONST. art. VI§ 156 (1901); see also id. § 157 (stating the court of the

judiciary hears any complaints brought forth by the judicial inquiry commission).


In the court's decision, the majority deferred to the state constitution.31

The court cited In re Alonzo, a previous Alabama case in which the court deferred to the state constitution, because ofits "fundamental soundness, and [its being] essential to the maintenance of an independent judiciary."32 However, the outcome of Alonzo differed from the outcome ofDubose' s case. In Alonzo the state bar was allowed to hold proceedings against Jua.ge Alonzo that resulted in his disbarment.33 The majoritydistinguished Alonzo, noting that the state bar did not take disciplinary actions until after Judge Alonzo was impeached and therefore no longer a member of the judiciary.34 The court in Ex parte Alabama State Barpointed to Rule l(a)(3) as holding to Dubose's situation.35 This rulegrants the state bar jurisdiction over former judges but not incumbent judges.

B. Dissent

Justice Lyons authored a strong dissent immediately attacking the majority's position that the Alabama constitution prevents the state bar from disciplining incumbent judges for unethical actions occurring before they assumed office. 36 Justice Lyons pointed out that the judicial inquirycommission and court of the judiciary are limited to punishing or removing incumbent judges for: (1) violations of the Canons of Judicial Ethics, (2) misconduct while in office, (3) failure to perform judicial duties, or ( 4) becoming physically or mentally incapable to perform one's

31 Ex parte Ala. State Bar, 3 So. 3d at 181-82 ("[l]eaving the discipline of judges to the procedures prescribed in the constitution").

32 Id. (quoting In re Alonzo, 223 So. 2d 585, 590 (Ala. 1969)). 33 Alonzo, 223 So. 2d at 585. 34 Ex parte Ala. State Bar, 3 So. 3d at 183. 35 Id. Alabama Rules of Disciplinary Procedures state:

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.

ALA. R. DISC. P. l(a)(3). 36 Ex parte Ala. State Bar, 3 So. 3d at 183 (Lyons, J., dissenting).

2009] Ex PARTEALABAMA STATE BAR 193

duties.37 The dissent recognized that "[a]ll of these charges relate to

conduct occurring while holding judicial office. "38 Furthermore, there is not a provision within these sections of the Alabama constitution limiting the court of the judiciary and impeachment (by the state legislature) as the sole authorities for removing judges based upon their misconduct before assuming office. 39

Justice Lyons agreed with the majority's position that a judge can only be removed by constitutional means. However, Justice Lyons argued that the majority's citation of Alabama State Bar ex rel. Steiner v. Moore was faulty because Moore limits the state bar from attempting to discipline a judge for his actions as a judge. 40 Lyons stated, "because the [Alabama]Constitution nowhere proscribes any proceedings against an incumbent judge for conduct prior to taking office .. . it is inappropriate to limit the jurisdiction of the State Bar."41 The dissent continued to address the majority's usage of case law and noted that the Alabama Rules of Disciplinary Procedure l(a)(3) was a codification of Alonzo.42 Quoting Alonzo, Justice Lyons stated, "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."43

Justice Lyons concluded his dissent with an endorsement of the ruling by the Supreme Court of Missouri inln re Mills.44 In Mills, the Missouri Supreme Court held that a judge "may not take refuge in a judicial office from discipline for prior misconduct" as a lawyer. 45 In addition to JusticeLyons, Justice Murdock authored a dissent adding his criticism of the

37 Id at 183. 38 Id

39 Id (quoting Sullivan v. States ex rel. Att'y Gen. of Ala., 472 So. 2d 970, 973 (Ala. 1985)) ("Neither of these Amendments[§§ 156-57] indicate they vest exclusive jurisdiction in these bodies to remove sitting judges from office.").

40 Id. (quoting Ala. State Bar ex rel. Steiner v. Moore, 213 So. 2d 404, 407 (Ala. 1968)) ("Here, the acts complained of were not by a judge in his alleged capacity as a lawyer but were judicial actions.").

41 Id. at 184. 42 Id. at 185. 43 Id ( quoting Alonzo, 223 So. 2d at 592). 44 Id at 184-85 (citing In re Mills, 539 S.W.2d 447, 449-50 (Mo. 1976)). 45 Id (quoting Mills, 539 S.W.2d at 449-50).


majority's opinion. He argued that the disbarment of Dubose would not result in the unconstitutional removal of a judge because the state bar does not have the power to remove a judge.46 However, because all judges are required to be licensed attorneys, the legislature or judicial inquiry committee may exercise their constitutional authority to remove the now unqualified judge from office.47 In other words, the state bar has the power to disbar a judge, but only the judicial inquiry commission ( or the JDO) or legislature may take action to remove a judge.

IV. Majority of States

Twenty-six states allow their state bar association to have jurisdiction over incumbent judges when the judges committed non-judicial acts such as misconduct involving moral turpitude or ethics violations as a lawyer. 48

These states are in agreement with the dissents in Ex parte Alabama State Bar.

A. Judges Are Subject to State Bar Jurisdiction

Justice Lyons relied on the Missouri Supreme Court's decision in Mills when making his point that unethical conduct committed as a lawyer and before a judge assumed the bench should be placed under the disciplinary jurisdiction of the Alabama State Bar.49 Mills involved an appeal of a disciplinary action taken by the Missouri State Bar against a sitting probate judge. 50 Before assuming office, the probate judge was involved in a real estate action with a veteran and committed self-dealing.51 The pro bate judge argued that the Missouri State Bar did not have jurisdiction over him as an incumbent judge.52 He maintained that the proper

46 Ex parte Ala. State Bar, 3 So. 3d at 186 (Murdock, J., dissenting).

41 Id. 48 See Appendix, infra. 49 Ex parte Ala. State Bar, 3 So. 3d at 184 (Lyons, J., dissenting) ( citing Mills, 539

S.W.2d at 449-50).

50 Mills, 539 S.W.2d at 448-49.

51 Id.52 Id. at 449.

2009] EXP ARTE ALABAMA STATE BAR 195

disciplinary board would be the commission on retirement, removal, and discipline (Missouri's JD0).53 The judge based his position on the fact that if the state bar decided to disbar him, it would erase a requirement of his office- that judges must be members of the bar.54 The probate judge echoed the proposition in Justice Murdock's dissent that disbarment would be an indirect method for the state bar to remove a judge in an unconstitutional manper. 55

The Mills court rejected the judge's proposition that he could not practice law as a judge, and therefore, could not be disciplined by the Missouri State Bar since its duties are to regulate the conduct of lawyers. 56

The court held that, although judges are restrained from practicing law as members of the bench, judges are still required to have law licenses and therefore are members of the bar.57 The fact that the state bar can indirectly remove the judge by disbarring him is an effect of, but not a direct abuse of power by, the state bar. 58 Furthermore, a judge "may not take refuge in a judicial office from discipline for prior misconduct."59

If the court were "[t]o permit the use of a judicial office as such a sanctuary[, it] would be a travesty upon justice."60

The probate judge also asserted his Sixth Amendment right to a jury trial and Fourteenth Amendment right to due process were violated by the "quasi-criminal" nature of disciplinary proceedings.61 However, the court held that neither right was violated because disciplinary proceedings are not criminal in nature. 62 The nature of disciplinary proceedings is an "inquiry by the court into the conduct of its officer for the protection of the public, the courts and the profession."63 Therefore, there are no constitutional rights to a trial by jury and due process in the disciplinary

S3 Id.

54 Id.

55 Id.

56 Id.

57 Id. at 449-50.

58 Id. at 450.

59 Id.

60 Mills, 539 S.W.2d at 450.

61 Id.

62 Id.

63 Id.


system.64 The Missouri Supreme Court concluded the probate judge wasto be disbarred with leave to apply for reinstatement after one year.65

The Mississippi Supreme Court handled a similar case in Mississippi State Bar v. Nixon.66 There is a notable difference in the facts of this case. Nixon was a United States District Court judge unlike the state judge in Mills.67 The question of jurisdiction became a question of federalism and the relationship between the Mississippi State Bar and the federal judiciary. The Mississippi Supreme Court cited Rule 6(a) of the Mississippi Rules of Discipline in justifying the state bar's jurisdiction over Judge Nixon. 68 Rule 6( a) grants jurisdiction to the state bar over any member of the law who has been convicted of committing a felony in federal court.69 Nixon had been recently convicted for perjury before a federal grand jury.70

Nixon argued that he was protected from Mississippi's jurisdiction by Article I and III of the United States Constitution.71 The court disagreed and stated, "[w]e do not transgress upon federal turf when we limit our action to the license the State ofMississippi has issued Nixon. "72

The court followed the lead of Mills and found the fact that Nixon could not practice law as a federal judge to be irrelevant. 73 As a federal judge,Nixon retained his license to practice law in Mississippi; therefore, the state bar could discipline his actions.74 Finally, the Mississippi Supreme Court held that its disciplinary proceedings did not require a stay pending Nixon's appeal of his conviction.75 Nixon's license to practice law in Mississippi was therefore suspended. 76

64 Id. 65 Id. at 451. 66 494 So. 2d 1388 (Miss. 1986). 67 Nixon, 494 So. 2d at 1388. 68 Id. at 1389; Miss. R. DISC. 6(a) (2008). 69 Nixon, 494 So. 2d at 1389. 10 Id. at 1388. 71

Id. at 1389.

n Id. 73 Id. at 1389-90.

14 Id. 15 Id. at 1390-91 (citing MISS. R. DISC. 6(a) (2008)). 16 Id. at 1391.


An older case, which the Nixon court cited, Jenkins v. Oregon State Bar, addressed and sidestepped the constitutional question as to the possibility of removing a judge via disciplinary actions.77 Jenkins wasa state district court judge who, like Nixon, was convicted of committing a felony.78 The Oregon Supreme Court refuted Jenkins argument that hewas immune from disciplinary proceedings by the state bar once he was elected circuitjudge.79 That court held:

The Canons of Judicial Ethics are just as binding upon lawyers and judges as the Rules of Professional Conduct are binding upon lawyers and judges in cases falling within the purview of those rules.

In Oregon, a lawyer does not cease to be a lawyer when he is elected or appointed to a judicial office. A judge is required to pay his bar dues, and is entitled to all the rights and privileges of membership in the bar except the right to represent clients. As far as his duty to his profession is concerned, a judge is a lawyer whose labors are performed behind the bench instead of before it.80

The Oregon Supreme Court narrowed its opinion on whether the Canon of Judicial Ethics and Rules of Professional Conduct were binding and enforceable upon incumbent judges. 81 The court sidestepped theissue of judicial independence and whether the disbarring of a judge by the state bar conflicted with the state constitution. 82 Instead, the court declined to address the "speculative" issue because it was not an issue directly raised. 83 The court concluded the state bar has jurisdiction over

judges for the enforcement of the Rules of Professional Conduct.84 Theruling in Jenkins reaffirms Justice Murdock's point in his dissent. Namely, although the state bar cannot perform the act of removing a sitting judge, it can revoke his law license and thereby pave the way for the judge's removal by the state JDO or legislature.

77 405 P.2d 525 (Or. 1965). 78 Jenkins, 405 P.2d at 525-26. 79 Id at 527. 80 Id. at 528.s1 Id 82 Id 83 Id at 527. 84 Id at 528-29.

198 AMERICAN JOURNAL OF TRJAL ADVOCACY [Vol. 33:187

B. Limitations to State Bar Jurisdiction

Not all of the states within the majority position allow the state bar association free leave to discipline judges for any activity that violates the state Rules of Professional Conduct. The supreme courts of several states limit their state bar association to having jurisdiction only over misconduct involving moral turpitude. 85 Specifically, Kentucky does not confer jurisdiction to its state bar unless the offensive conduct could be performed by any member of the bar. 86 The Kentucky Supreme Court refused to discipline a probate court judge for wrongfully barring lawyers from practicing in his court. 87 The court in In re Wehrman addressed thequestion of jurisdiction and reasoned that the Kentucky State Bar should not have discipline power over the probate judge because his action of barring other attorneys from practicing before his court was a judicial act. 88 In other words, the state bar could discipline judges but only when their misconduct was of a nature that any lawyer could commit versus simply an abuse of the public office a judge holds.89 The Kentucky Supreme Court's decision basically tossed the case into the realm of the Kentucky JDO's jurisdiction. However, this line ofreasoning does not prevent a sitting judge from having his law license revoked.

Oklahoma's JDO, the court of the judiciary, removed a district judge for his misconduct as a judge.90 The Oklahoma Supreme Court tooknotice that its constitution specifically states the court of the judiciary's ruling does not bar "any other proceeding, civil or criminal, authorized by law."91 This constitutional provision allows the state bar associationto discipline the former judge for acts committed while he was a judge. 92

However, the actions taken by the district judge were not found to rise to the level of criminal acts.93 The complaint was dismissed because tb.e

85 See Appendix, infra. 86 In re Wehrman, 327 S.W.2d 743 (Ky. 1959). 81

Id

88 Id

89 Id at 744.

90 State ex rel. Okla. Bar Ass'n v. Sullivan, 596 P.2d 864 (Okla. 1979). 91 OKLA. CONST. art. 7-A, § 4 (1966).

92 Sullivan, 596 P.2d at 865. 93

Id at 869.


state bar association failed to demonstrate actions rising to "moral turpitude of a fraudulent, criminal or dishonest nature. "94

Other examples of a state bar's limitation of jurisdiction over judges

can be found in the case of In re Watson, which resulted in the Supreme Court of Nevada limiting disciplinary action against judges "to the field of action outside of official duties."95 The Nevada Supreme Court explained it has no constitutional grant of power for removing judges, and it was hesitant to punish a judge who was recently reelected by the public in spite of known misconduct.96 Additionally, South Dakota sharesNevada's hesitation in disciplining judges unless there is some "extraordinary or unusual situation. "97 The anonymous filing of a bar complaint alleging judicial favors were being exchanged for compensation was dismissed.98 However, the South Dakota Supreme Court reaffirmed itspower to discipline judges when it stated: "[W]hether such power resides in this court is a very different question from whether it is expedient to exercise it."99

Justice Lyons' s and Justice Murdock's dissents in Ex parte Alabama State Bar agree with twenty-six other states in granting state bar associations jurisdiction over judges for non-judicial acts or acts committed before assuming the bench. 100 The position of the majority of statesreminds judges they are still members of the state bar regardless of the fact that they cannot practice law as a result of donning judicial robes. Justice Murdock's dissent raises the point that allowing the Alabama State Bar Association the jurisdiction to disbar a judge for actions taken while an attorney is not the same as giving the state bar the power to "take the further step of acting upon that development and ousting [Judge] Dubose from judicial office."101 Justice Murdock asserts that thisavoids any intrusion upon the state legislature's constitutional power to

94 Id. 95 In re Watson, 286 P.2d 254, 255-56 (Nev. 1955). 96 Watson, 286 P.2d at 255-56. 91 In re Gibbs, 214 N.W. 850, 853 (S.D. 1927). 98 Id.99 Id. 100 3 So. 3d 178, 184-86 (Ala. 2008). 101 Ex parte Ala. State Bar, 3 So. 3d at 186.


impeach. 102 The Utah Supreme Court ruled similarly in In re Burton

when it held that the grievance committee has jurisdiction over judicial misconduct but refrained from disbarring the judge because of impeachment hearings in the state legislature. 103 However, the minority of states agree with Justice Bolin's majority decision in Ex parte Alabama State Bar to give jurisdiction to the state JDO and prohibit the state bar from taking disciplinary action against incumbent judges. 104

V. Minority of States

A minority of states agree with Alabama's position of only granting the state bar association jurisdiction over lawyers. These states would rather have the state JDO enforce their respective Canons of Judicial Ethics. Alabama uses a two-tier JDO model in which the judicial inquirycommission investigates alleged misconduct, and the court of the judiciary prosecutes complaints. 105

A. State Bar Association Has Jurisdictionover Former Judges

Ex parte Alabama State Bar conferred jurisdiction to the state bar association over judges after they have left office. 106 Three other statesIllinois, Nebraska, and Tennessee-agree with Alabama. The function of the Illinois JDO, known as the Illinois Courts Commission, has been described as "one of fact finding. "10

7 Because the commission is not oneof the three branches of government, it does not possess the power to remove a judge or institute sanctions; but it can merely suggest appropriate disciplinary action. 108 Therefore, the state bar association was rele-

102 Id.

103 246 P. 188 (Utah 1926). 104 See Appendix, infra. 105 ALA. CONST. amend. 328 (1901); see also Barkley, supra note 7, at 191. 106 Ex parte Ala. State Bar, 3 So. 3d at 178. 107 People ex rel. Harrod v. Illinois Courts Comm'n, 372 N.E.2d 53, 66 (Ill. 1977). 108 Id. at 65-66.

2009] Ex PARTE ALABAMA STATE BAR 201

gated to handling attorney disciplinary actions only. The Supreme Court of Illinois, in In re McGarry, ruled that its state bar association did not have jurisdiction over judges. 109 The court revisited this decision and heldit applicable to the bar association only.110

Similar to these decisions, the Nebraska court held that "the Counsel for Discipline [Nebraska State Bar] may not initiate the discipline of a sitting judge."111 The court realized that, if it allowed the state bar toprosecute disciplinary actions against judges, "the independence of the judiciary would be compromised."112 The court thoroughly discussedNebraska's constitution and the separation of powers pro bl ems that would arise if the state bar could remove judges from the bench or disbar judicial candidates before an election.113 Ironically, the court justifiednot giving the state bar jurisdiction over judicial candidates or judges because they were not practicing law.114 The Nebraska Supreme Court'sreasoning followed the same logic of Justice Murdock's dissent but came to an opposite conclusion. 115

The Nebraska Supreme Court then turned its attention to the jurisdiction of its JDO. Based upon its interpretation of the Nebraska constitution, the court held the Nebraska JDO has jurisdiction over the qualification of judges Gudicial candidates) and sitting judges.116 Nebraska'sdecision follows the American Bar Association and its Model Rules for Judicial Disciplinary Enforcement.117

In Tennessee, the state bar was allowed to file an action against an impeached judge after he was removed from office.118 It was only becausethe judge had committed a crime of moral turpitude (bribery) the state

109 44 N.E.2d 7 (Ill. 1942). 110 Harrod, 372 N.E.2d at 53. 111 State ex rel. Nebraska Bar Ass'n v. Krepela, 610 N.W.2d 1, 5 (Neb. 2000). 112 Krepela, 610 N.W.2d at 6. 113

Id at 6-7. 114

Id. at 7. 115

Id at 8 (because members of the judiciary do not practice law, the counsel for discipline has no role in disciplining sitting judges).

116 Id

117 See MODELR. JUD. DISC. ENFORCE.§ 1, R. 2B(l) (1994). 118 Schoolfield v. Tennessee Bar Ass'n, 353 S.W.2d 401 (Tenn. 1962).

202 AMERlCAN JOURNAL OF TRIAL ADVOCACY [Vol. 33:187

bar was allowed to have jurisdiction over the former judge. 119 This rulingis what Justice Bolin had in mind when he interpreted the Alabama Rules of Disciplinary Procedure to grant jurisdiction back to the state bar once the judge has left office.120

·B. Judicial Discipline Organizations

Have Jurisdiction

The states holding JDOs as the agency with jurisdiction over judges do so in order to protect judicial independence. The Pennsylvania case of Office of Disciplinary Counsel v. Surrick expanded upon judicial independence by refusing to allow the state bar to investigate the actions of a member of the state's JD0.121 This begs the question, who watchesthe watchmen? 122 Ironically, the Pennsylvania Supreme Court wanted its JDO to be free from corruption, but it created the possibility for such an evil to arise. The Pennsylvania Supreme Court believed that, if the members of the JDO were not immune from the state bar's jurisdiction, the JDO would be influenced by judges under disciplinary investigation.123 In other words, judges under investigation could exert theirinfluence over the state bar disciplinary board and punish the members of the state JDO in order to prevent a judge's own removal.124 Such a

Id

119 Schoolfield, 353 S.W.2d at 405. 120 Ex parte Ala. State Bar, 3 So. 3d 178, 183 (Ala. 2008).

[T]he State Bar does not currently have the jurisdiction to discipline Dubose solong as he is serving as an incumbent judge; however, at such time whenDubose becomes a "former judge" and is no longer serving in a judicialcapacity, the State Bar would then regain jurisdiction to discipline Dubose forthose acts of misconduct that occurred before he became a judge.

121 555 A.2d 883 (Pa. 1989). 122 DECIMUS JUNIS JUVENAL, THE SATIRES OF JUVENAL 78 (Rolfe Humphries trans.,

Indiana Univ. Press 1958). 123 Surrick, 555 A.2d at 886. 124 Id; see generally Robin Foret, Judicial Discipline-Attorney Disciplinary Board

Review of Judicial Inquiry and Review Board Members-Office ofDisciplinary Counsel V. Surrick, 63 TEMP. L. REV. 411 (1990).


concern ignores the proverbial blank check of power granted to the JDO. Following the Pennsylvania Supreme Court's logic would make members of the state JDO "untouchables" and does not resolve the question as to whom the JDO would answer upon allegations of unethical behavior.

Pennsylvania is not alone in its discussion regarding the issue of a state

JDO' s independence. The Maine Supreme Judicial Court struggled over constitutional implications of judicial independence and the jurisdiction of its JDO in In re Benoit. 125 The Supreme Court of Maine held itslegislature is prevented by Maine's constitution from influencingjudges via the "power of the purse."126 If Maine's state legislature is preventedfrom exercisingjudicial discipline, is Maine's JDO authorized to do so? The relevant provision of the Maine state constitution prevents legislative punishment of judicial officers but does not prevent the court from fining judges for misconduct. 127 The Maine Supreme Judicial Court concludedby finding the JDO could exercise disciplinary action against judges because "[it saw] no conflict between judicial independence and judicial accountability."128

As the originator of the JDO, California's model-which takes the side of the minority-warrants examination.129 According to the Californiastate constitution, the JDO may only remove a judge for: (1) "willful misconduct in office"; (2) "conduct prejudicial to the administration of justice that brings the judicial office into disrepute"; (3) "persistent failure . or inability to perform the judge's duties"; and ( 4) "habitual intemperance in the use of intoxicants or drugs."130 An example of California's decision regardingjurisdiction over the discipline of sittingjudges is provided in Doan v. Commission on Judicial Performance. 131 The municipal judgeinvolved in Doan was sanctioned on numerous occasions. 132 She faced

125 487 A.2d 1158 (Me. 1985). 126 Benoit, 487 A.2d at 1173. 121 Id 128 Id ( quoting In re Ross, 428, A.2d 858, 861 (Me. 1981 )). 129 Doan v. Comm'n on Judicial Performance, 902 P.2d 272 (Cal. 1995).

13° CAL. CONST. art. VI,§ 18.131 902 P.2d 272 (Cal. 1995).132 Doan, 902 P.2d 272.


seven counts of misconduct. 133 The court concluded the only appropriate remedy was removal of Doan from her position as municipal judge. 134

Doan was decided relatively easily because California outlined the duties and actions of its JDO without any ambiguous language, 135 thuspreventing a conflict of jurisdiction between the California State Bar Associ�tion and JDO. In addition, California's constitution prevents any speculation by the courts as to whether the judiciary is "stepping on the toes" of the state legislature and its power to impeach judges. This harkens back to the majority opinion in Ex parte Alabama State Bar where the majority rested on the plain language of the statute.136 However, the Doan decision does not specifically address Justice Murdock's point regarding whether the state bar has the power to revoke a judge's law license and give leave to either the state JDO or legislature to remove the judge if either body so desired.

C. Discipline of Incumbent JudgesThrough Impeachment

This Comment demonstrates how several state supreme courts have pondered the possibility of judges being indirectly removed from office when the state bar association favors disbarment through the revocation of the judge's law license. Currently, Colorado is the only state to rule directly on the question of whether a state bar has jurisdiction to remove a sitting judge through disbarment. This position is illustrated in In re Colorado Bar Association, where that state bar filed a complaint against a sitting judge through the bar's grievance committee.137

The Colorado Supreme Court asserted its right to discipline the lawyers admitted to practice before it. 138 If a lawyer commits a "violationoflaw, [which] involves moral turpitude or dishonorable conduct[,] ...

133 /d. at281-95. 134 Id. at 296-97. 135 See CAL. CONST. art. VI,§ 18. 136 3 So. 3d 178, 183 (Ala. 2008). 137 325 P.2d 932, 933-34 (Colo. 1958).

138 Colorado Bar Ass 'n, 325 P.2d at 937.


full responsibility rests with the court."139 Therefore, the supreme courtretains jurisdiction to discipline judges. However, the court also held that neither the state bar association nor the court's jurisdiction extended to

issues of judicial misconduct. 140 Even if a judge readily admits his acts as a judge rose to the level of judicial misconduct, jurisdiction will not be granted to the court or the state bar.141 The Colorado Supreme Court concluded, "[t]he constitution fixes the remedy at impeachment."142

This solution of relying upon impeachment as the sole method of punishment for judicial misconduct insulates judges from unethical complaints unless the state legislature is willing to conduct a lengthy impeachment hearing and trial. This separation of judicial misconduct from moral turpitude or ethical violations is wise on Colorado's part because it effectively preserves the independence of the judiciary.

D. American Bar Association Model Rule

The American Bar Association has created the Model Rules for Lawyer Disciplinary Enforcement. 143 These rules set forth the American Bar Association's recommendations for governing and enforcing ethics amongst members of the bar across the United States. Rule 6 of the Model Rules governs jurisdictional issues:

A former judge who has resumed the status of a lawyer is subject to the jurisdiction of the board not only for conduct as a lawyer but also for misconduct that occurred while the lawyer was a judge and would have been grounds for lawyer discipline, provided that the misconduct was not the subject of a judicial disciplinary proceeding as to which there has been a final determination by the court. Misconduct by a judge that is not finally adjudicated before the judge leaves office falls within the jurisdiction of the lawyer disciplinary agency.

. . . . Incumbent judges shall not be subject to the jurisdiction of the agency; however, if an incumbent judge is to be removed from office in the course of a judicial discipline or disability proceeding, the court shall first

139 Id.140 Id141 Id142 Id143 See MOD. RULES LAW. DISPL. ENFORCE. (2002).


afford the board and the respondent an opportunity to submit a recommendation whether lawyer discipline should be imposed, and if so, the extent thereof. 144

The American Bar Association's Model Rules follow the trend in the minority of states, including Alabama. The reasoning for this position is included in the Commentary to Rule 6, which clafiries that JD Os solely maintain jurisdiction over judges for ethical violations occurring before, during, and even after the judge has served the bench. 145 The commentaryalso states that actions initiated by the state bar before the lawyer becomes a judge transfers to the state's JD0.146 If the JDO removes thejudge from office, the state bar is given jurisdiction to establish appropriate disciplinary action. 147 In addition, the JDO will retain jurisdictionover a former judge if an action is brought against him for violation of the state's Code of Judicial Conduct for acts taken when he was a judge.148

VI. Conclusion

Currently, Alabama has a loophole in its system allowing incumbent judges to remain untouchable by the JDO and state bar for misconduct committed prior to assuming the bench.149 A slight majority of twentysix states disagree with Alabama and allow their respective state bar associations the ability to prosecute disciplinary actions against judges for prior acts of misconduct or acts of moral turpitude while in office.150

Meanwhile, a close minority of twenty states agree with Alabama's stance giving their state JDO jurisdiction over disciplinary actions against incumbent judges and limiting the state bar association's jurisdiction to practicing attorneys. 151

144 Id. R. 6.145

MOD. RULES LAW. DISPL. ENFORCE. R. 6 cmt. (2002). 146 Id.141 Id.14s Id.149 See Ex parte Ala. State Bar, 3 So. 3d 178 (Ala. 2008). 150 See Appendix, infra. 151 See Appendix, infra.


This loophole has not been corrected as of the time this article was written. Justice Murdock's dissent creates a viable option of allowing state bar associations to revoke a judge's law license-a requirement to sit as a judge-while allowing only the state JDO or legislature to actually act upon removing the now unqualified judge. This measure would preserve judicial independence while ensuring a judge could not don the judicial robe as a cloak to hide from punishment for unethical acts as a lawyer. As Justice Lyons urged, Rule 1 of the Alabama Rules of Disciplinary Procedure should be amended immediately "to protect the public from judges who were unethical lawyers and relieve this Court of further embarrassment from the absurd consequences of its own rules."152

152 Ex parte Ala. State Bar, 3 So. 3d at 183.

Andrew E. Brashier