Appeal from the Disciplinary Board
Before Adams, Justice. Torbert, C.j., Maddox, Faulkner, Jones, Almon, Shores, Embry, and Beatty, JJ., concur.
The opinion of the court was delivered by: Adams
Alfred W. Goldthwaite, a Montgomery attorney, appealed from an adverse decision of Panel II of the Disciplinary Board of the Alabama State Bar, in which he was found guilty on two counts of an eleven-count complaint alleging various violations of the Alabama Code of Professional Responsibility. He was suspended from practicing law for ninety days by the Disciplinary Board. The first count on which Goldthwaite was found guilty alleged that he solicited employment in contravention of DR 2-103(A)(1). The other count on which he was found guilty alleged that he represented parties to a cause after having represented a party with an adverse interest in the same cause, and that he did so through the actions of another attorney and thereby attempted to circumvent a disciplinary rule. This latter count is founded on alleged violations of DR 5-101(C) and DR 1-102(A)(2), respectively.
Although Goldthwaite raises numerous issues, two issues and the questions posed thereby are dispositive of this appeal. The first is: Did Goldthwaite's act of suggesting his own employment to a layman violate DR 2-103(A)(1), or did it come within one of the exceptions provided in DR 2-105(A)(1), thereby bringing it outside the proscription of the former rule? The second issue is: When Goldthwaite changed sides and became a party contestant of the will after previously having been employed by the bank which was executor of the estate, did he violate the proscription against representing parties to a cause after previously representing an adverse interest and further, did he do so through the actions of another attorney and thereby attempt to circumvent a disciplinary rule? After careful consideration of the issues presented in the two counts on which Goldthwaite was convicted, we are unable to find that he violated any provisions of the applicable disciplinary rules. Accordingly, we reverse the decision of the disciplinary board. We will consider separately the two counts on which Goldthwaite was convicted.
I. The Charge of Solicitation: DR 2-103(A)(1) and DR 2-105(A)(1)
Goldthwaite was charged and convicted of soliciting his employment as attorney for Alabama National Bank of Montgomery in the Estate of William Pelzer Arrington. The charge stems from a conversation between Goldthwaite and Louie H. Moore, Chief Executive Officer and Chairman of the Board of the Alabama National Bank. Shortly before Arrington's death, Goldthwaite went to see Moore and informed him that Arrington was dying. Goldthwaite testified he advised Moore, "I don't know if there is a will whether the bank will be named executor... if you need an attorney I'm Billy's first cousin and bear me in mind." Testimony at the disciplinary hearing established that Goldthwaite and Arrington were also close friends and had been since just after the end of World War II. Additional testimony revealed the following facts. Arrington's material grandfather, who died in 1931, was William K. Pelzer, one of the founders of the Alabama National Bank and a majority stockholder in it. He also was a "big" stockholder in the Durr Drug Company. Archie Arrington was the father of William Pelzer Arrington, and was Goldthwaite's guardian. Goldthwaite was born and reared in the Goldthwaite-Arrington home in Montgomery. Archie Arrington totally supported Goldthwaite while he was growing up. Relatives of Goldthwaite and the Arringtons had a close and often interwoven relationship with the Alabama National Bank and the Durr Drug Company. Goldthwaite testified that he was the only male in his family who was not on the payroll of either one.
Louie H. Moore acknowledged at the disciplinary hearing that he and Goldthwaite were close friends and that he was a former attorney for the Alabama National Bank and a good customer of it. *fn1 Goldthwaite also testified to his close relationship with the Alabama National Bank. He explained that while he was Montgomery County Attorney he resisted an attempt to move the county's account away from the Alabama National Bank. Goldthwaite further related that he had sent clients to the bank and had chosen it for the purpose of closing business transactions and Farmers Home Administration loans. Goldthwaite recalled that when he was nine years old, the president of the Alabama National Bank showed him how to fill out a deposit slip. At the time of Goldthwaite's conversation with Moore, he was aware of the fact that the Montgomery law firm of Jones, Murray, Stewart and Yarbrough was employed by the Alabama National Bank on a regular retainer basis.
The starting point for our inquiry into whether Goldthwaite is guilty of solicitation begins with an examination of the relationship between DR 2-103(A)(1) and DR 2-105(A)(1). The rule against solicitation is contained in the provisions of DR 2-103. DR 2-103(A)(1) provides:
(1) Solicit his employment or professional employment or engagement of another whose partner he is, or from whose employment there is an expectation of profit or benefit, directly or indirectly, to himself.
Exceptions to the proscription against solicitation are contained in DR 2-105. DR 2-105(A)(1) provides:
(A) A lawyer who has given unsolicited advice to a layman that he should obtain counsel or take legal action shall not accept employment resulting from that advice, except that:
(1) A lawyer may accept employment by a close friend, relative, former client (if the advice is germane to the former employment), or one whom the ...