Ex parte Griffith
Decision Date | 12 August 1965 |
Docket Number | 6 Div. 194 |
Citation | 178 So.2d 169,278 Ala. 344 |
Parties | Ex parte John Ike GRIFFITH, Attorney at Law. |
Court | Alabama Supreme Court |
Matt H. Murphy, Jr., Birmingham, for petitioner.
Lawrence K. Andrews, General Counsel for Alabama State Bar.
On 10 July 1964, the Grievance Committee of the Alabama Bar Association filed charges against John Ike Griffith, a member of the Bar of this state. These charges allege unprofessional conduct against Griffith because of the activity and participation in obtaining a number of so-called 'quickie' divorces in several courts of this state. A list of such cases was filed as an exhibit to the charges.
On 15 January 1965, the original charges and exhibits were amended to include some 41 such divorce cases in Winston County Circuit Court (Haleyville Division) and 269 such divorce cases in Marion County Circuit Court.
Upon filing of a complaint (in this instance by the Grievance Committee of the Alabama State Bar) Rule B(12) of the Rules Governing the Conduct of Attorneys in Alabama, provides that the President shall make and cause to be filed with the Secretary an order fixing a date for the taking of evidence upon the complaint. It is further provided that the evidence may be taken by a Commissioner designated by the President.
On 25 January 1965, Frank J. Tipler, Jr., as President of the Board of Commissioners of the Alabama State Bar, appointed Timothy M. Conway as Commissioner to take testimony upon the charges and specifications, the appointment providing that said Commissioner should take the testimony of John Ike Griffith at the courthouse in Birmingham on 9 February 1965, at 10:00 A.M.
Notice of such hearing was served upon Griffith, and included in the notice was a subpoena duces tecum to Griffith to bring with him and produce:
'(1) All records in his possession pertaining to divorces obtained by him as forwarding attorney, or as solicitor, in the Law and Equity Court of Winston County, Double Springs, Alabama, (2) All files, records and correspondence in said cases; (3) All agreements in writing between complainants and respondents in said cases; (4) All checks and receipts representing payments of costs and/or attorney fees in said cases; (5) All records of fees received or forwarded in said cases; (6) All records of every nature or description pertaining to the divorce cases set forth on Exhibit A, as amended, and Exhibit C of the Complaint in the above styled matter, and (7) the office copy of a letter under date of July 3, 1963, to Mr. James A. Meceli, 370 Parsippany Boulevard, Boonton, New Jersey.'
The notice and subpoena duces tecum was signed by John B. Scott, Secretary of the Alabama State Bar. (See Rules Governing the Conduct of Attorneys in Alabama, Sec. B(19); Title 46, Sec. 35, Code of Alabama 1940.)
On 5 February 1965, Hon. Matt H. Murphy, Jr., as attorney for John Ike Griffith, filed with the Secretary of the Alabama State Bar a motion to quash service of the motion to take the deposition and a motion to quash the service of the subpoena duces tecum.
On the day set for the hearing Mr. Murphy appeared before Mr. Conway, the Commissioner, and again offered the motions to quash as above mentioned. Mr. Griffith was not present on advice of Mr. Murphy. Upon the motions being overruled, Mr. Murphy declined to permit his client to appear before the Commissioner.
Thereupon Mr. Conway, the Commissioner, petitioned the Hon. J. Edgar Bowron, Presiding Judge of the Tenth Judicial Circuit, for an order of attachment for the said Griffith, commanding him to appear instanter before the Commissioner and give testimony. Judge Bowron issued the attachment as prayed.
Service of the attachment was accepted, and the hearing before the Commissioner was resumed. Mr. Griffith was sworn, but again refused to take the stand as a witness. Several grounds were asserted as a basis of Mr. Griffith's action, among which it was asserted that should he testify there could possibly arise a breach of the attorney-client privilege on Mr. Griffith's part.
The matter was then again presented to Judge Bowron. Again a hearing and argument was had before Judge Bowron. Mr. Griffith was ordered by Judge Bowron to take the stand and again he refused, the record in this respect showing:
'* * * I respectfully decline to take the stand, and for the reason cite Title 46, Section 43, paragraph 4, wherein the Code of Alabama binds my hands to maintain inviolate the secrets of my clients, and that the charges that have been preferred against me by the Board are obvious and clear that the testimony desired to be adduced from the witness, or from myself, would violate the confidences and secrets of my clients, and for that reason I decline to take the stand and testify, and for the further reason that Title 46, Section 50, paragraph three, wherein it states that should I violate the secrets and the confidences of my client that I may be disbarred for doing so, and for the further reason that I have studied the charges against me, and I have consulted legal counsel and I have been advised by legal counsel that I am not required to take the stand and advised not to take the stand, and that I respectfully obey the counsel of my own lawyer in that respect, and I further cite as grounds for my refusal to take the stand the contents or the substance of Title 46, Section 35, and Title 46, Section 50, and, Your Honor, I beg to be excused from taking the stand.
The court thereupon entered a formal order adjudging Mr. Griffith in continuing contempt for failure to take the stand and ordered his confinement until such time as he is willing to conform to the order of the court. Sentence was suspended, and Mr. Griffith was released on his own recognizance until the order could be reviewed by this court.
At the threshold of our review, we are met with petitioner-appellant's argument that the proceedings before Commissioner Conway are null and void in that neither Mr. Conway, nor the members of the Board of Commissioners of the Alabama State Bar, nor the members of the Grievance Committee had taken the oath of office required by the provisions of Article 16, Section 279 of the Constitution of Alabama of 1901.
Section 279, supra, provides in pertinent part:
'All members of the legislature, and all officers, executive and judicial, before they enter upon the execution of the duties of their respective offices, shall take the following oath or affirmation:
The above provision applies only to state officers. State ex rel. Wilkinson et al. v. Lane, 181 Ala. 646, 62 So. 31. Members of the bar of Alabama are members of a private incorporated association. There is no statutory provision requiring any separate oath on their part before entering upon their duties as members of the bar of this state. They are not state officers. Every attorney practicing before the courts of this state is an officer of the court.
Further, by the provisions of Section 39, Title 46, Code of Alabama 1940, every attorney at law, before being permitted to practice, shall take the following oath:
'I do solemnly swear (or affirm) that I will demean myself as an attorney, according to the best of my learning and ability, and with all good fidelity, as well to the court as to the client; that I will use no falsehood or delay any person's cause for lucre or malice, and that I will support the constitution of the State of Alabama and of the United States, so long as I continue a citizen thereof, so help me God.'
This oath is in all material aspects the same as the oath required of state officers by Section 279 of our Constitution. This in itself would negative appellant's contention, even if, for the sake of argument, attorneys should be regarded as state officers, a status that cannot be logically accepted.
There is therefore no merit in this contention.
Counsel for appellant also argues that he had filed his motions to quash the complaint with Mr. Scott, Secretary of the Alabama State Bar, and this action placed the matter in the hands of Commissioners of the Alabama State Bar, and that a ruling by a quorum of the Commissioners was necessary for a proper ruling on the motions.
This argument overlooks that part of Section 33, Title 46, Code of Alabama 1940, providing that the Board of Commissioners of the Alabama State Bar may designate any person to take testimony under oath in any investigation of charges against an attorney, and further overlooks the provisions of Rule B(12) that evidence may be taken by a Commissioners designated by the President of the Commissioners of the State Bar.
These provisions do not contemplate that a quorum of the Commissioners of the State Bar...
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