Ex Parte Case
| Decision Date | 14 October 2005 |
| Docket Number | 1041387. |
| Citation | 925 So.2d 956 |
| Parties | Ex parte Basil Timothy CASE. (In re Basil Timothy Case v. Alabama State Bar). |
| Court | Alabama Supreme Court |
William J. Baxley and Joel E. Dillard of Baxley, Dillard, Dauphin, McKnight & Barclift, Birmingham, for petitioner.
J. Anthony McLain, gen. counsel, Alabama State Bar, for respondent.
Basil Timothy Case filed a petition for a writ of mandamus requesting that this Court direct the Alabama State Bar to set aside a restraining order entered against him suspending him, on an interim basis, from practicing law or to dissolve that order pursuant to Rule 20, Ala. R. Disc. P. Case was suspended pursuant to the Alabama Rules of Disciplinary Procedure, which allow for an ex parte interim suspension, that is, an order of suspension entered without either notice to the affected lawyer or an opportunity to be heard.
Rule 20(a), Ala. R. Disc. P., states:
On September 27, 2004, the Bar petitioned the Disciplinary Commission to enter an order of interim suspension for Case based on 10 pending complaints against him and his history of discipline with the Bar. The Disciplinary Commission entered an order on September 27 temporarily suspending Case from the practice of law and restraining him from maintaining an attorney trust account. Case learned about the suspension when the Bar's Office of General Counsel faxed him a copy of the order on the afternoon of September 27. On September 28, the Lauderdale Circuit Court appointed a trustee to inventory Case's files, manage his trust and fiduciary accounts, and protect the interests of his clients. Case filed a petition that same day with the Disciplinary Commission to dissolve the order of interim suspension. On September 30, the trustee notified Case's clients of his suspension.
Case maintains that his petition to dissolve the order of interim suspension was a "triggering event" that should have resulted in a hearing on the merits of his interim suspension within seven days of his filing the petition, pursuant to Rule 20(d), Ala. R. Disc. P.1 The Bar contends in its response that during negotiations between Case and the Bar, Case and the attorney then representing him waived his right to such a hearing, but Case denies that he ever did so. No evidence of any waiver is before this Court. Case states that the Bar's general counsel also failed to file formal charges against him within 28 days after the date of his interim suspension. Rule 20(c)(5), Ala. R. Disc. P., provides that if formal charges are not filed within 28 days, an interim suspension must be terminated. Case's suspension, however, remained in force.
On April 8, 2005, new counsel representing Case filed a second petition for dissolution or termination of his interim suspension. The Disciplinary Commission conducted an evidentiary hearing that began on April 18, 2005. During the hearing, the Bar sought to introduce evidence concerning additional complaints it said it had received against Case after the September 27 order of interim suspension was entered. The hearing was continued for the hearing officer to determine the admissibility of the evidence of the additional complaints. On April 26, 2005, the hearing officer entered an order limiting the scope of evidence to be presented when the hearing resumed on May 2 to only those grievances that were the basis of the September 27 petition for interim suspension. That same day, April 26, the Bar filed a new petition seeking an order of interim suspension for Case that was based on the additional complaints against Case received after September 27. On April 27, 2005, the Disciplinary Commission entered a second ex parte order temporarily suspending Case from the practice of law and restraining him from maintaining an attorney trust account. Also on April 27, the Bar filed a motion to dismiss or dissolve the September 27 order of interim suspension because it had been superseded by the April 27 order; that motion was granted.
On May 6, 2005, Case petitioned the Montgomery Circuit Court for declaratory and injunctive relief. In his petition to this Court, he says he presented evidence to the court indicating his ongoing and substantial efforts to correct the effects of his alleged negligence that resulted in the complaints. Judge Charles Price issued a temporary restraining order ("TRO") on May 6 prohibiting the enforcement of the Bar's April 27 order or of any other order that "seeks to or purports to suspend, limit, prevent, or hinder [Case] from engaging in the practice of law." The Bar states in its response to Case's petition for the writ of mandamus that the TRO was entered without notice to the Bar and without allowing the Bar an opportunity to appear and be heard. The case was ultimately assigned to Judge Truman M. Hobbs.
On May 10, the Bar filed a petition for a writ of mandamus with this Court challenging Case's petition in the circuit court on the ground that the Bar has exclusive jurisdiction in matters of lawyer discipline. On May 16, the TRO entered by Judge Price expired as a matter of law. This Court ordered the parties to mediate, but mediation efforts were not successful. On May 25, the Bar filed formal charges against Case in 50 cases, alleging numerous violations of the Alabama Rules of Professional Conduct. On June 2, Judge Hobbs held a hearing during which he informed the parties that he had concluded that the circuit court did not have jurisdiction to hear matters involving lawyer discipline. He entered an order on June 3 dismissing Case's petition. Shortly after Judge Hobbs entered that order, this Court granted the Bar's motion to dismiss its mandamus petition.
Case appealed the dismissal of his petition for injunctive relief and applied for a stay of enforcement of the Bar's April 27 order. This Court denied the motion for a stay, noting that our order denying the stay did not preclude mandamus review by this Court. Case's appeal remains pending. Case then filed the mandamus petition currently before us. He requests that we direct the Bar to set aside its April 27 order of interim suspension pending further orders of this Court, or, alternatively, that we exercise supervisory jurisdiction over proceedings before the Bar and dissolve the order. The Bar filed a motion to dismiss and a memorandum brief in response to Case's mandamus petition, together with several exhibits.
"Mandamus is an extraordinary remedy and requires a showing that there is: `(1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.'"
Ex parte Gates, 675 So.2d 371, 374 (Ala. 1996) (quoting Ex parte Edgar, 543 So.2d 682, 684 (Ala.1989)). "A writ of mandamus will issue only in situations where other relief is unavailable or is inadequate, and it cannot be used as a substitute for appeal." Ex parte Empire Fire & Marine Ins. Co., 720 So.2d 893, 894 (Ala.1998) (citing Ex parte Drill Parts & Serv. Co., 590 So.2d 252 (Ala.1991)).
Case argues that in depriving him of his law practice, in which he had a property right, without notice and an opportunity to be heard the Bar denied him the due-process rights guaranteed by the Alabama and United States Constitutions. Although the Bar relied upon Rule 20(a), Ala. R. Disc. P., in temporarily suspending him, Case insists that when this Court adopted the Alabama Rules of Disciplinary Procedure, we did not, and indeed could not, suspend operation of §§ 10 and 13 of the Alabama Constitution of 1901 or the Due Process Clause of the Fourteenth Amendment to the United States Constitution. The two orders of interim suspension obtained by the Bar have resulted in a complete loss of his law practice for over a year, Case says, and he did not receive notice of the suspension proceedings or have an opportunity to be heard before the initial suspension was imposed.
The Bar argues that Case has deliberately bypassed the remedies and process afforded him under the Alabama Rules of Disciplinary Procedure, which the Bar maintains were established by this Court as a comprehensive procedural framework that provides due process to the lawyer and adequately protects the public, the profession, and the administration of justice, and, therefore, it argues, he cannot meet the requirements necessary to obtain the extraordinary remedy of a writ of mandamus. The Bar insists that Case has not properly invoked the jurisdiction of the Disciplinary Board by filing a request for dissolution of the April 27, 2005, order of interim suspension, and, thus, it says, he does not have a clear legal right to the relief sought and the Disciplinary Board does not have an imperative duty to act. See Rule 20(d), Ala. R. Disc. P.2
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