You be the judge: avoiding attorney discipline by taking the bench: Ex parte Alabama State Bar.

• Author: Houston, April V.

INTRODUCTION

"Lawyers admitted to practice law in [Alabama] ... are subject to the exclusive disciplinary jurisdiction of the Disciplinary Commission and the Disciplinary Board of the Alabama State Bar. ..." (1) In Ex parte Alabama State Bar, the Alabama Supreme Court held that the Alabama State Bar lacks jurisdiction to discipline an attorney who assumed the bench as a circuit court judge even though disciplinary procedures began prior to the attorney's taking office. (2) In so holding, the Alabama Supreme Court resolved an issue of first impression--whether the Alabama State Bar Disciplinary Board has jurisdiction to discipline a judge for an alleged violation of the Rules of Professional Conduct that occurred while the judge was engaged in the private practice of law. (3)

The holding in Ala. State Bar raises four significant questions. First, the decision raises the question of whether a single act, winning a judicial office, can divest jurisdiction once it has attached. (4) Second, the decision raises the question of whether judicial immunity should extend to misconduct performed prior to taking the bench. (5) Third, the decision raises an issue of whether it would be contrary to the Alabama Constitution to remove a judge from the roll of licensed attorneys for misconduct committed before taking judicial office. (6) Finally, the decision raises an issue of whether an attorney should be allowed to serve as a judge when he has not complied with the Alabama Rules of Professional Conduct. (7)

The holding in Ala. State Bar is incorrect because the court misapplied precedent and misconstrued Rules l(a)(2) and l(a)(3) of the Alabama Rules of Disciplinary Procedure. Once the Alabama State Bar has instituted disciplinary proceedings against an attorney, it should be allowed to continue that process even if the attorney is subsequently elected judge. Public policy demands that merely becoming a circuit court judge should not shield the official from discipline for prior attorney misconduct.

The first section of this Note discusses general information about the Alabama State Bar, including a specific discussion of the Alabama Rules of Professional Conduct and the Alabama Rules of Disciplinary Procedure. The first section also examines Sections 156 and 157 of the Alabama Constitution and its creation of the Judicial Inquiry Commission and the Court of the Judiciary. The second section recites the facts and procedural posture of the case, as well as the court's holding and reasoning. The third section analyzes the case and includes: (1) an examination of whether a single act, winning a judicial office, divests jurisdiction that attaches to an individual; (2) an analysis of whether judicial immunity should extend beyond the bench; (3) a discussion of whether removing a judge from the roll of licensed attorneys for misconduct, committed while still an attorney, is contrary to the Alabama Constitution; and (4) an analysis of whether an attorney who has not complied with the Alabama Rules of Professional Conduct should be allowed to serve as a judge. The final section of this Note is a summary of the issues and the conclusion.

BACKGROUND INFORMATION

1. Alabama State Bar

   "The mandated function of the Alabama State Bar is to exercise general control over the conduct of all attorneys...." (8) The Alabama State Bar requires that all individuals obtain a license in order to practice law within the state. (9) Founded in 1878, the Alabama State Bar began as an association of forty attorneys. (10) The Alabama State Bar adopted a code of ethics for practicing attorneys in 1887. (11) The code was the first of its kind in the United States and later became a model for the American Bar Association's Model Rules of Professional Conduct and Model Code of Professional Responsibility. (12)

   In 1923, the Alabama legislature gave the State Bar the administrative authority to regulate the practice of law in Alabama. (13) It is the only agency responsible for licensing and regulating the practice of law in the state. (14) The legislature also gave the State Bar the power to enforce rules of ethics and discipline for its members. (15) It is the State Bar's responsibility to review and recommend amendments to the Alabama Rules of Professional Conduct and the Rules of Disciplinary Procedures. (16) However, this responsibility is subject to the authority of the Alabama Supreme Court, which must approve any amendments to these rules. (17)

   1. Alabama Rules of Professional Conduct

      An attorney should show respect for the legal system. (18) "[An attorney's] conduct should conform to the requirements of the law, both in professional service to clients and in [the attorney's] business and personal affairs." (19) The Alabama Rules of Professional Conduct prescribe the code of ethics that outline how attorneys are to conduct themselves as public citizens, with their clients, and while in court. (20)

      Due to the nature of practicing law, attorneys encounter conflicting responsibilities. (21) "[D]ifficult ethical problems arise from conflict between [an attorney's] responsibilities to clients, to the legal system and to the [attorney's] own interest in remaining an upright person while earning a satisfactory living." (22) The Alabama Rules of Professional Conduct prescribe terms for resolving these conflicts. (23) For example, an attorney should not represent a client if representation of that client will adversely affect the relationship with another client. (24) Nor should an attorney prepare an instrument giving the attorney or someone closely related a substantial gift from a client. (25) The Rules assist attorneys in making the proper decisions when conflicts occur. (26) Once these difficult issues of professional responsibility arise, they must be "resolved through the exercise of sensitive professional and moral judgment guided by the basic principles underlying the Rules." (27)

      State Bar Associations draft professional codes for several reasons. (28) First, professional codes serve as an educational guide to instruct members on acceptable conduct. (29) Second, professional codes provide "prescriptive rules that are sanctioned in formal or informal ways, such as by peer disapproval ... or, as with attorneys, by suspension from the legal privilege of practicing the regulated profession." (30) Finally, ethical codes serve as a deterrent to unethical behavior. (31)

      The legal profession is largely self-governing with the ultimate authority vested in the courts. (32) "Self-regulation ... helps maintain the legal profession's independence from government domination." (33) With this self-regulation come special responsibilities. (34) For example, the profession has a duty to assure that they conceive the Rules with the public interest in mind. (35) In addition, every attorney must adhere to the Rules of Professional Conduct. (36) When attorneys neglect these responsibilities, it compromises the autonomy of the legal profession and the public interest that it serves. (37)

      "Compliance with the Rules [of Professional Conduct] ... depends primarily upon understanding and voluntary compliance, secondarily upon reinforcement by peer and public opinion, and finally, when necessary, upon enforcement through disciplinary proceedings." (38) When applied properly, the Rules of Professional Conduct serve to define the lawyer's relationship to the legal system. (39) Failure to abide by the rules is a basis for invoking the disciplinary procedures. (40) The specific facts, circumstances, and the attorney's conduct determine whether discipline will be imposed and the severity of any sanction. (41)

   2. Alabama Rules of Disciplinary Procedure

      The Alabama Supreme Court has the inherent responsibility to supervise the conduct of lawyers. (42) In furtherance of that responsibility, the court promulgates the Alabama Rules of Disciplinary Procedure. (43) The purpose of attorney disciplinary proceedings is to preserve the appropriate standards of professional conduct. (44) These proceedings serve to protect the public interest and administration of justice from attorneys who, by their conduct, have demonstrated that they are unable to appropriately discharge their professional duties. (45) As conditions for the privilege to practice, it is the responsibility of all attorneys to conduct themselves in compliance with the standards imposed upon them. (46)

      The Alabama State Bar may discipline attorneys for violations of professional conduct contained in the Alabama Rules of Professional Conduct. (47) The Alabama State Bar may also discipline attorneys for violations of the Alabama Rules of Disciplinary Procedure or for failure to comply with an order of the Disciplinary Commission or Disciplinary Board. (48) The General Counsel or a local grievance committee may initiate a disciplinary proceeding. (49) The Disciplinary Board specifically has the power and duty to investigate any alleged ground for discipline of an attorney that comes to its attention. (50) The Board of Disciplinary Appeals has the "powers of appellate review of decisions of the Disciplinary Commission and the Disciplinary Board." (51)

2. Alabama Constitution

   The Alabama Constitution created the Judicial Inquiry Commission and the Court of the Judiciary to investigate and discipline judges. (52) Article VI of the Alabama Constitution outlines the judicial department and vests the judicial power of the state exclusively in a unified judicial system. (53) The constitution defines the jurisdiction of each court and outlines the election of judges, their qualifications, prohibited activities, and grounds for disqualification. (54) The Alabama Supreme Court has the power to make and promulgate rules governing the administration, practice, and procedure in all of the state's courts. (55)

   1. Judicial Inquiry Commission

      The Alabama Constitution created the Judicial Inquiry Commission and gave it the authority to...