Ex parte Dozier

• Decision Date: 19 January 1953
• Docket Number: 1 Div. 455
• Citation: 77 So.2d 903,262 Ala. 197
• Parties: Ex parte M. F. DOZIER.
• Court: Alabama Supreme Court

Page 903

77 So.2d 903

262 Ala. 197

Ex parte M. F. DOZIER.

1 Div. 455.

Supreme Court of Alabama.

Jan. 19, 1953.

Rehearing Denied Feb. 24, 1955.

FOSTER, Justice.

This is a petition directed to this Court seeking to review a proceeding by the grievance committee of the State Bar before the board of commissioners of the State Bar to disbar petitioner from the practice of law in Alabama. The proceeding was begun on June 27, 1950 by filing charges in writing against petitioner. We shall hereafter refer to petitioner as defendant.

The proceeding has a legal status and the board of commissioners is vested by law with the duty to consider the findings or recommendations of the grievance committee and to hear and determine the complaint or charge. The investigation and charges made by the grievance committee are said to be similar to that of a grand jury. Section 33, Title 46, Code; Lewis v. Gerald, 236 Ala. 91, 181 So. 306. The board of commissioners is set up under authority of section 21, Title 46, Code. And by authority of section 25, Title 46, Code, the board of commissioners is authorized to appoint a grievance committee whose duties are there prescribed as construed in the case of Lewis v. Gerald, supra.

Charge No. 1 is based upon an acceptance by defendant of a fee of $1,000, alleged to have been paid him as an attorney on July 26, 1946 by Mrs. Edwards to represent her in breaking or setting aside a will which had been admitted to probate in Mobile County (the will being that of a deceased uncle Albert Ashenberger), and to conduct an investigation and make report to her in respect to the genuineness of the signature to the will; but that he willfully and deceitfully failed and refused to institute proceedings to break or cancel the same and to conduct and get reports as to the handwriting of testator, and refuses to refund the fee aforesaid. The will is alleged to have been probated March 10, 1937. Mrs. Edwards was the daughter of a sister of testator who was an heir and was living when testator died and when the will was probated.

Charge 2 relates to the same transaction. Charges 3 and 4 are not insisted on. Charges 5 and 6 relate to a transaction with Leona Williams, which is a matter of minor importance and would not be sufficient to support a conviction and disbarment.

The defendant pleaded the general issue, and the statute of limitations of three years. Section 24, Title 7, Code. That statute provides a limitation of three years for 'Proceedings in any court of this state to disbar any attorney, authorized to practice law in this state'.

The commission did not in terms hold that the charges were not barred by limitations, but by a resolution unanimously adopted, found and adjudged him guilty of the charges preferred and by a resolution adopted by eleven for and four against disbarred and excluded him from the practice of law in Alabama.

It is apparent that the board of commissioners as thus set up was acting under the judicial power of the State, as defined in section 139, Constitution. Ex parte Thompson, 228 Ala. 113(5), 125, 152 So. 229, 107 A.L.R. 671; State Tax Commission v. Bailey & Howard, 179 Ala. 620, 60 So. 913; State Tax Commission v. Stanley, 234 Ala. 66, 173 So. 609; Ex parte Homewood Dairy Products Co., 241 Ala. 470, 3 So.2d 58. It is therefore a court of this State as referred to in section 24, Title 7, Code, fixing a statute of limitations.

The board of commissioners contends that the limitation of section 24, Title 7, is an unconstitutional exercise of the legislative power infringing upon the judicial power. They cite the case of In re Tracy, 197 Minn. 35, 266 N.W. 88, 267 N.W. 142, which reached that conclusion in an elaborate argument, holding that the legislature has no power to legislate as to the qualifications for admission to the bar, or grounds for disbarment, because that would violate the constitutional inhibition stated above. There was in that state a statute of limitations on the institution of disbarment proceedings. There are many cases refusing to apply to disbarment proceedings the general statute of limitations. 45 A.L.R. 1111; 5 Am.Jur. 434; 6 Corpus Juris 601, section 61; 7 C.J.S., Attorney and Client, § 25, p. 766. Before the Tracy decision the Minnesota Supreme Court had not passed on the constitutionality of the act. It had held that the rule of continuing misconduct applied where the initial offense was the misappropriation of a client's funds. The charges in that case were as set forth in the head-note, that as an attorney he 'engaged in business of liquidating indebtedness of small debtors, for soliciting business, willfully assuming status wherein his personal interest was opposed to client's without advising client, deliberately making exploitation of rather than service to clients his professional objective, and conducting practice so as to subject legal profession to disrepute.' The court noted that there applies a well-settled principle 'that a court which is authorized to admit attorneys has inherent jurisdiction to suspend or disbar them. This inherent power of the court cannot be defeated by the legislative or executive department. The removal or disbarment of an attorney is a judicial act.' A great many cases are cited. It also cites cases to the contrary: In re Evans, 72 Okl. 215, 179 P. 922; In re Cooper, 22 N.Y. 67; In re Applicants for License to Practice Law, 143 N.C. 1, 55 S.E. 635, 10 L.R.A.,N.S., 288. The opinion divides cases in two classes: (1) those holding that it is competent within certain limits for the legislature to prescribe minimum qualifications for admission and grounds for disbarment and prescribe procedure as long as they do not interfere with the inherent power of the court ultimately to determine who shall practice before them. (This theory has been recognized in our cases.) (2) Others hold that it is incompetent for the legislative department to attempt in any way to regulate the admission and disbarment of attorneys. (We have not adopted that theory.) The Minnesota court then quoted from one of its opinions that no statute can control the judicial department in the performance of its duty to decide who shall enjoy the privilege of practicing law.

The cases of In re Cooper, supra, and In re Applicants for License to Practice Law, supra, have no reference to disbarment, but approve legislative power to prescribe the minimum requirements for admission. We recognize that theory. The case of In re Evans, 72 Okl. 216, 179 P. 922, cited in the Tracy case, supra, is directly in point. The Oklahoma statute, Comp.Laws 1909, § 267, provided: 'All actions for suspension or removal shall be brought within one year after the act charged was committed, and not thereafter.' After twelve months from date of the commission of the felony and from his conviction and affirmance, the disbarment proceeding was begun. It is said: 'If the statute is applicable this proceeding is barred.' It was claimed that this violated the inherent power of the court. It was answered that the inherent power cannot be defeated, but the exercise of it may be regulated within reasonable limits by statute. A former decision of that court was repudiated on that question. That is the only other case on the subject we find where a statute directly applies. See In re Cherry, 166 Minn. 448, 208 N.W. 197, 45 A.L.R. 1110 et seq.

In Ex parte Thompson, supra, we adhered to the principle of the inherent power of the Court, but approved the constitutionality of the legislative proceedings for disbarment by the board of commissioners and its review by this Court. We also held in effect that on such review we are exercising the inherent power of the Court. In the Thompson case, supra, we also referred to the statute of limitations, see 228 Ala. at page 125, 152 So. at page 239, where we said: 'Under the evidence, the proceedings were not barred by the statute of limitations.' We think the discussion in that opinion is opposed to the reasoning in the Tracy case, supra, but rather favors the Oklahoma opinion in In re Evans, supra.

We have never denied the right and power of the legislature to enact laws regulating any proceedings in this Court, even though they relate to matters in which the court is exercising its inherent power, so long as such legislation does not impair unduly an exercise of such powers. Broadway v. State, 257 Ala. 414, 60 So.2d 701; Ex parte Foshee, 246 Ala. 604, 21 So.2d 827. We are not willing to hold that section 24, Title 7, supra, is not an effective statute of limitations as to proceedings begun and conducted under section 33, Title 46, Code.

We now come to the question of fact in respect to that statute. In response to a letter from defendant, and on July 26, 1946, Mrs. Edwards wrote a letter to defendant in the form of a contract of employment of him by her in the following words:

'San Francisco, Calif.

July 26, 1946.

'M. F. Dozier,

Attorney at Law,

Mobile, Alabama.

'Dear Mr. Dozier:

'I hereby employ you to handle a case for me in the matter of the estate of Albert Ashenberger. If is understood I am to pay you One Thousand ($1,000.00) dollars, and an amount equal to 20% of all monies I recover in this estate in excess of $1,000.00. It being understood and being the meaning of this contract that no deductions are to be made from the amount recovered until I have been reimbursed $1000.00.

'I have heretofore paid you $750.00 of the sum of $1000.00 above mentioned, and I now enclose cashiers check of Crocker First National Bank of San Francisco for $250.00 payable to your order--in settlement of the balance of $1000.00 due you.

'Ada V. Edwards, Adm.'

This engaged his services for a cash fee of $1,000 then paid, and a contingent fee of twenty percent of recovery to handle a case for her in the matter of said estate. The will had been probated on March 10, 1937, more than eight years previously. Mrs. Edwards was a person not authorized...