Ex parte Huie, 6 Div. 195
| Citation | 278 Ala. 330,178 So.2d 156 |
| Decision Date | 12 August 1965 |
| Docket Number | 6 Div. 195 |
| Parties | Ex parte J. Robert HUIE, Attorney at Law. |
| Court | Supreme Court of Alabama |
Matt H. Murphy, Jr., Birmingham, for appellant.
Lawrence K. Andrews, General Counsel for Alabama State Bar.
Petitioner seeks review of an order of the circuit court holding petitioner in contempt because petitioner failed and refused to take the stand as a witness in a disbarment proceeding brought against petitioner by the 'Grievance Committee of the Alabama State Bar Association.'
The court ordered that petitioner be confined in jail until such time as he is 'willing to conform to the order of the Court and take the stand as a witness.' The court suspended the confinement and released petitioner on his own recognizance pending review.
We granted certiorari and the clerk has certified the record to us. It discloses that the Grievance Committee filed with the Board of Commissioners of the Alabama State Bar charges that petitioner has violated Rules 25 and 36 of Section A of the 'Rules Governing the Conduct of All Persons admitted to the Proactice of Law in the State of Alabama,' which rules recite as follows:
25
No person heretofore or hereafter admitted to practice law in Alabama shall
'(a) Knowingly or willfully make any false representations of fact to any judge, court, or jury to induce a favorable action or ruling by either;
'(b) file or prosecute or aid in the filing or prosecution of any suit, cross bill, or proceeding seeking a divorce in a court in Alabama as attorney or solicitor for a complainant or cross complainant therein or serve as referring or forwarding attorney for such complainant or cross complainant with knowledge or reasonable cause to believe that neither party to such suit, cross bill, or proceeding is at the time of the filing of the bill of complaint or cross bill of complaint therein, a bona fide resident of the State of Alabama;
'(c) while acting as attorney for either party in any suit for divorce in any court in Alabama represent to the court or conspire with any party, attorney, or person to represent to the court that either party to such suit is a bona fide resident of Alabama, knowing such representation to be false.' (272 Ala. XXI)
36
'No person licensed to practice law in the courts of the State of Alabama shall be guilty of any conduct unbecoming an attorney at law.' (239 Ala. XXV)
See: 242 Ala. XV.
The specifications are that petitioner violated said rules in certain divorce cases by making representations as to the residence of a party or parties to the suit.
The president of the Board of Commissioners appointed an examining commissioner to take testimony and ordered him to take the testimony of petitioner at a specified time and place. Notice of the hearing and subpoena duces tecum were served on petitioner. At the appointed time, petitioner refused to take the stand. The examining commissioner obtained attachment for petitioner from the circuit court, and, after hearing, the court made the order holding petitioner in contempt, which order we now review.
Petitioner filed before the Board of Commissioners motions to quash the notice and subpoena duces tecum.
Petitioner argues that the court erred in holding him in contempt for five reasons which we discuss, not, however, in the order in which they are presented in brief.
First, petitioner argues that '. . . by virtue of Title 46, Section 35, that only the board, and any committee appointed by it shall have power to summons and examine witnesses . . .,' that petitioner is a defendant, not a witness, and that neither the Grievance Committee nor a commissioner has power to compel attendance and have petitioner's testimony taken by a commissioner; citing Lewis v. Gerald, 236 Ala. 91, 181 So. 306.
§ 33, Title 46, Code 1940, provides that the board of commissioners shall establish rules governing procedure in cases of alleged misconduct of attorneys. The board has done this. Rule 12, of Section B, recites:
A copy of the President's order appointing the examining commissioner appears in the record and fixes the date for taking testimony of petitioner.
§ 35, Title 46, recites that 'the board, and any committee appointed by it for this purpose shall have power to summon and examine witnesses under oath and compel their attendance and the production of books . . .,' etc., and that 'Such summons or subpoena shall be issued under the hand of the secretary of the board or the chairman of any duly constituted subcommittee of the board, and shall have the force of a subpoena issued by a court of competent jurisdiction . . ..'
Rule 19, of Section B, recites:
'Witnesses may be summoned by the Board, its President, its Secretary, any Grievance Committee, any Chairman of a Grievance Committee, or by the Commissioner, their appearance and testimony required, the oath administered, depositions taken, and the production of books, papers and other documents required in all respects as provided by law.' (239 Ala. XXVIII)
Two papers were served on petitioner. One paper is entitled: 'NOTICE TO TAKE DEPOSITIONS' and is signed by counsel for the Alabama State Bar. It has not been pointed out to us where rule or statute provides that counsel may issue a subpoena, and, indeed, the notice does not expressly command petitioner to attend the hearing. It may well be that petitioner could not be held in contempt if this notice were the only process served on him.
The subpoena duces tecum is under the hand of:
'S/ John B. Scott
Secretary, Alabama State Bar'
We think common knowledge justifies us in taking notice that this is the hand of the secretary of the board of commissioners. § 24, Title 46, Code 1940. To comply with the letter of § 35, Title 46, the description should be: Secretary of the Board of Commissioners of the Alabama State Bar.
This paper commands the sheriff to summon petitioner to appear before the commissioner and there to testify.
It seems to us that the examining commissioner was appointed and the day set as required by Rule 12 of Section B, and that subpoena was issued as provided by § 35, Title 46, and Rule 19. We hold that the commissioner and authority to take testimony and that the process served on petitioner was sufficient to satisfy the statute and rule.
Authority of the examining commissioner and proper service of sufficient process being shown, it follows that the court did not err in holding petitioner in contempt for the reason that the examining commissioner did not have lawful power to compel petitioner's attendance and to take his testimony.
Petitioner relies on the following statement:
'We may say further that an attorney, whose conduct is under investigation by the Grievance Committee is not compelled to appear before such committee, but when he does so his appearance must be deemed and treated as voluntary.' Lewis v. Gerald, supra, 236 Ala. at page 94, 181 So. at page 309.
In Lewis v. Gerald, supra, the court held that an attorney, who had been investigated by the Grievance Committee, was not entitled to read and inspect the evidence which that committee had acquired relating to charges of unprofessional conduct on the part of the attorney. Whatever may be the force of the statement from Lewis v. Gerald quoted above, the statement does not apply to the instant case because the instant petitioner has not been summoned to appear before the Grievance Committee. He was summoned to appear before an examining commissioner who was appointed by the president of, and who is taking testimony for, the Board of Commissioners.
Petitioner's first reason to show error is not well taken.
Second, petitioner argues that neither the examining commissioner nor the Board of Commissioners of the State Bar are qualified to act against petitioner because they have not been sworn as all officers are required, by Section 279 of the Constitution of 1901, to be sworn.
Section 279 applies only to state officers. State ex rel. Wilkinson v. Lane, 181 Ala. 646, 62 So. 31. We do not think that either the examining commissioner or the Board of Commissioners are state officers in the constitutional sense, and, therefore, are of opinion that Section 279 has no application. These commissioners are officers of the State Bar, which is an association of attorneys. The members of the association are not state officers.
In Re W. Marvin Clifton, 115 Fla. 168, 173, 155 So. 324, 326.
We think it follows that the examining commissioner and the Board of Commissioners are not state officers, in the constitutional sense, and that § 279 does not apply to them.
Petitioner asserts that, because he had filed with the Board of...
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