Lewis v. Gerald

• Decision Date: 12 May 1938
• Docket Number: 6 Div. 331.
• Citation: 236 Ala. 91,181 So. 306
• Parties: LEWIS v. GERALD ET AL.
• Court: Alabama Supreme Court

181 So. 306

236 Ala. 91

LEWIS v. GERALD ET AL.

6 Div. 331.

Supreme Court of Alabama

May 12, 1938

Appeal from Circuit Court, Jefferson County; C. B. Smith, Judge.

Petition by Oscar S. Lewis for a writ of mandamus to require Lawrence Gerald, as a member of the Board of Commissioners of the State Bar and chairman of the Grievance Committee of that Board, and others to permit petitioner to read and inspect certain papers relating to petitioner in an investigation and charge of unprofessional conduct. From a judgment sustaining a demurrer to the petition and dismissing the petition petitioner appeals.

Affirmed.

W. L Lee, of Dothan, Sollie & Sollie, of Ozark, and Powell &amp Powell, of Tuskegee, for appellant.

Lawrence F. Gerald, of Clanton, George R. Stuart, of Birmingham, and Rushton, Crenshaw & Rushton, of Montgomery, for appellees.

KNIGHT Justice.

The appellant filed his original petition in the Circuit Court of Jefferson County, Alabama, addressed to one of the Judges of said Court, praying for a writ of mandamus to require the respondents, Lawrence Gerald, as a member of the Board of Commissioners of the State Bar, and Chairman of the Grievance Committee of said Board, Douglas Arant, as a member of the Board of Commissioners, and as a member of the Grievance Committee, Harold M. Cook, as Secretary of the Board of Commissioners of the State Bar, and George R. Stewart, as Attorney for said Grievance Committee, to permit the petitioner, appellant here, to read and inspect certain papers and documents referred to in the petition, and also to permit petitioner to inspect and examine "all letters, writings, notes, memoranda, reports of investigators, affidavits and evidence of all kind and character relating to the undersigned (petitioner) in the investigation and charge of unprofessional conduct of the undersigned, and any information, complaint or charge on which the same is based."

It appears from the petition that the petitioner was, and still is, an attorney duly licensed and authorized to practice law in this state, and was, and still is, a member of the Alabama State Bar; that an investigation of his conduct as an attorney had been made by the Grievance Committee of the Board of Commissioners of the State Bar, and that this committee had preferred charges of professional misconduct against him, and that these charges stood for trial by Commissioners of the State Bar within 20 or 30 days.

It further appears that the Grievance Committee had taken evidence touching petitioner's conduct, and had in its possession letters, affidavits, reports of its agents, and other documents bearing upon petitioner's case, which, the petitioner averred, it was necessary that he should be allowed to examine and inspect in order to properly prepare his defense to the charges. It also appears that petitioner had, prior to the filing of his petition, made written demand upon the respondents to be allowed to inspect the evidence made the basis of the charges, including all letters, memoranda, complaints, affidavits, and reports then in the hands of the respondents. That request had been denied. The judge, to whom the petition was presented, directed rule nisi to issue to the respondents. This was done.

The respondents appeared and filed numerous grounds of demurrer to the petition. Some of the grounds take the point that the Grievance Committee and the State Bar were, in the matter of the investigation and trial of attorneys for professional misconduct, an arm of the court, and were, therefore, subject to control by this Court only, and that the circuit court was without power, therefore, to entertain the petition, or to grant the writ. Other grounds of demurrer take the point that the facts averred do not show any right in petitioner to the relief sought.

This Court has held, on an application made by this petitioner, that the circuit court did have the power and authority to issue writs of mandamus in proper cases, and on proper showing, to the Commissioners of the State Bar, and to the members thereof, as well as to the members of the Grievance Committee, and that this Court would not entertain an original petition filed in this Court, seeking the issuance of such a writ. Ex parte Lewis, 181 So. 306.

The real, and only, question here presented for determination is, does the petitioner make out a case entitling him to the relief he seeks?

It is earnestly insisted by appellant that the Grievance Committee, in making the investigation, as outlined in the petition, was functioning as a court; was acting under the statute and the rules of the court; and, this being true, its records were court records. That petitioner being interested therein is entitled to inspect the same. That such records cannot be secret. We are not in accord with this view. It is quite true that this Committee, when functioning, is acting under authority of the statute, and the rules of this Court, but this does not mean that when the Committee deems it proper to make an investigation of the conduct of an attorney that its acts and doing must be made public.

The ...