Watson v. Alabama State Bar

Full title: S. A. WATSON, Judge of Madison County Court, formerly Deputy Dist. Atty…

Court: Supreme Court of Alabama

Date published: Apr 10, 1975

311 So. 2d 311 (Ala. 1975)

311 So. 2d 311

Opinion

SC 868.

April 10, 1975.

Appeal from the Circuit Court, Montgomery County, William F. Thetford, J.

Jack Giles, Huntsville, for appellant.

A district attorney is not subject to discipline or disbarment as a result of charges preferred by the state bar during term in which the district attorney is holding office for acts performed in a judicial capacity or official duty nor can the Bar remove or discipline the district attorney where the constitution provides exclusive method of removal. Alabama State Bar ex rel. Steiner, its President v. Moore, 282 Ala. 562, 213 So.2d 404; Alabama State Bar ex rel. Steiner, its President, et al. v. Aderholt, 283 Ala. 436, 218 So.2d 149. The deputy district attorney must be admitted to practice law in the state of Alabama, and thereby a member of the Alabama Bar Association, to qualify for the position of deputy district attorney. Code of Alabama, Title 1, § 167; Report of Attorney General — 1934-1936, p. 457; Opinion of Justices, 279 Ala. 38, 181 So.2d 105 (1965). The constitutional method of removal of a public officer is the exclusive method of removal. Nolan v. State of Alabama, 118 Ala. 154, 24 So. 251. Such deputy district attorney of the Twenty-Third Judicial Circuit shall be invested with all the rights, powers, privileges, immunities, obligations and responsibilities of the district attorney. He, however, shall perform the duties of his office under the direction and control of the District Attorney. Title 13, § 125(87), Code of Alabama 1940, as Amended. The General Sessions Court Judge of Madison County must be licensed to practice law in the State of Alabama, and, thereby, a member of the Alabama Bar Association to qualify for the position of General Sessions Court Judge. Section 9(d), House Act No. 1178, 1973 Regular Sessions of the Alabama Legislature. A General Sessions Court Judge or a Circuit Court Judge of Madison County is not subject to discipline or disbarment as a result of charges preferred by the state bar where the Constitution provides the exclusive method of removal. Alabama State Bar ex rel. Steiner, its President v. Moore, 282 Ala. 562, 213 So.2d 404, supra; Alabama State Bar ex rel. Steiner, its President, et al. v. Aderholt, 283 Ala. 436, 218 So.2d 149, supra; In re Alonzo, 284 Ala. 183, 223 So.2d 585.

William H. Morrow, Jr., Montgomery, Gen. Counsel, Alabama State Bar, for appellees.

A deputy district attorney is not immune from all discipline for violations of the rules governing the conduct of attorneys in Alabama when he performs unethical acts in violation of the rules which are not done by virtue of his performance of his required official duties but are acts which any attorney in private practice is capable of performing. In re Alonzo, 284 Ala. 183, 223 So.2d 585; Alabama State Bar ex rel. Steiner v. Moore, 282 Ala. 562, 213 So.2d 404; Alabama State Bar ex rel. Steiner v. Aderholt, 283 Ala. 436, 218 So.2d 149. Assuming that a deputy district attorney is vested with the privileges and immunities of a district attorney, the board of commissioners of the Alabama state bar may discipline a deputy district attorney for a violation of the rules governing the conduct of attorneys in Alabama when the discipline will not disqualify the deputy district attorney from holding office or remove the deputy district attorney from office. In re Alonzo, 284 Ala. 183, 223 So.2d 585, supra; Alabama State Bar ex rel. Steiner v. Moore, 282 Ala. 562, 213 So.2d 404, supra; Alabama State Bar ex rel. Steiner v. Aderholt, 283 Ala. 436, 218 So.2d 149, supra.

William J. Baxley, Atty. Gen., and George W. Royer, Jr., Asst. Atty. Gen., for the State of Alabama, amicus curiae.

Because Article 7, Section 174, Alabama constitution (1901) prescribes the sole method of removal from office of a district attorney, any disciplinary action whatsoever by the state bar against a district attorney is preempted, whether mere censure or disbarment is sought and whether the conduct upon which the action is sought to be based is conduct by the district attorney in his "official" or "unofficial" capacity. Alabama State Bar ex rel. Steiner v. Moore, 282 Ala. 562, 213 So.2d 404 (1968); Alabama State Bar ex rel. Steiner v. Aderholt, 283 Ala. 436, 218 So.2d 149 (1969); Concurring opinion of Justice Bloodworth in In re Alonzo, 284 Ala. 183, 223 So.2d 585 (1969); Petition of Colorado Bar Ass'n, 137 Colo. 356, 325 P.2d 932.

John D. Whetstone, Montgomery, for the Ala. District Attys. Assn., amicus curiae.

SHORES, Justice.[fn*] [fn*] This case was originally assigned to another justice of this court, since retired. It has been reassigned to the writer, not a member of this court at time of submission, who has carefully listened to the tape recordings of oral argument. Code of Alabama, Title 13, § 7; Alonzo v. State ex rel. Booth, 283 Ala. 607, 219 So.2d 858.

This is a companion case to S.C. 867 — Simpson v. Alabama State Bar; Redden, President of the Board of Com'rs of the Alabama State Bar et al., 294 Ala. 52, 311 So.2d 307, this day decided, except that the appellant was a deputy district attorney at the time of the conduct complained of.

The holding in Simpson, supra, is controlling here, It is conceded by the Bar Association and appellant that there is no distinction, for purposes of this case, to be made between a district attorney and a deputy district attorney, who must devote his entire time to the discharge of the duties of his office, and who is prohibited from practicing law under the provisions of Title 13, § 229(12), Code. Such was the case with regard to appellant here.

The decree appealed from is reversed and one is here rendered in favor of appellant.

Reversed and rendered.

All the Justices concur.