Goldthwaite v. Disciplinary Board of the Alabama State Bar

Citations: 408 So. 2d 504; 1982 Ala. LEXIS 2950Docket: 80-177

Court: Supreme Court of Alabama; January 7, 1982; Alabama; State Supreme Court

Lead Opinion SummaryLead Opinion Original

EnglishEspañolSimplified EnglishEspañol Fácil

Alfred W. Goldthwaite, a Montgomery attorney, appealed a decision from the Alabama State Bar's Disciplinary Board, which found him guilty of two counts from an eleven-count complaint regarding violations of the Alabama Code of Professional Responsibility. As a result, he was suspended from practicing law for ninety days. The first count accused him of soliciting employment in violation of DR 2-103(A)(1). The second count involved representing parties in a cause after previously representing an adverse interest, violating DR 5-101(C) and DR 1-102(A)(2), allegedly through the actions of another attorney to bypass disciplinary rules.

Goldthwaite raised multiple issues, but two were critical to the appeal: whether his solicitation of employment constituted a violation of DR 2-103(A)(1) or fell under exceptions in DR 2-105(A)(1), and whether his change in representation regarding a will after previously working for the bank executor violated the applicable rules. After reviewing the issues associated with both counts, the court found no violation of the disciplinary rules and reversed the Disciplinary Board's decision.

The solicitation charge arose from a conversation Goldthwaite had with Louie H. Moore, the Alabama National Bank's CEO, where he indicated his availability for legal representation regarding the estate of William Pelzer Arrington. Testimony revealed Goldthwaite's close personal and familial ties with Arrington and the bank, including his history of supporting the bank while serving as Montgomery County Attorney and encouraging clients to use the bank for transactions.

Goldthwaite, during a conversation with Moore, recalled learning to fill out a deposit slip at the age of nine from the president of the Alabama National Bank. He was aware that the law firm Jones, Murray, Stewart and Yarbrough regularly represented the Alabama National Bank. The inquiry into Goldthwaite's potential solicitation offense focuses on the interplay between DR 2-103(A)(1) and DR 2-105(A)(1). DR 2-103(A)(1) prohibits a lawyer from soliciting employment from individuals whose partners or employers might expect a benefit. DR 2-105(A)(1) outlines exceptions, allowing a lawyer to accept employment resulting from unsolicited advice given to close friends, relatives, or former clients under certain conditions.

Goldthwaite argues that DR 2-105(A)(1) modifies DR 2-103(A)(1), permitting attorneys to propose their services to close contacts without being deemed solicitors. In contrast, the Bar contends that such acceptance of employment is only permissible when the unsolicited advice aims to prevent serious harm. The court finds the Bar's interpretation unconvincing, agreeing with Goldthwaite that DR 2-105(A)(1) clearly creates exceptions to the solicitation ban. The court emphasizes that individuals in the specified categories are less vulnerable to unethical practices, as they are presumably familiar with the attorney's qualifications. The ruling concludes that the exceptions in DR 2-105(A)(1) modify DR 2-103(A)(1) and do not require extraordinary circumstances for an attorney to provide unsolicited advice and accept employment based on it, while still cautioning against unethical conduct.

DR 2-105(A)(1) permits an attorney to accept employment following unsolicited advice to individuals in specified categories. Goldthwaite's actions fell within this rule, as evidenced by his close friendship with Moore and the Alabama National Bank. Moore confirmed that he was not offended by Goldthwaite’s suggestion to the bank regarding employment as the attorney for Arrington’s estate, indicating a level of comfort and familiarity that mitigates concerns of solicitation. Goldthwaite's established relationship with the bank, including previous representation and personal connections, further justified his request for employment. Additionally, Goldthwaite's motivation to assist Arrington’s estate during a time of need could serve as an independent defense against solicitation charges.

Following Arrington's death, Goldthwaite was hired by the bank, which was named executor of the estate, and subsequently received a $10,000 fee. After discussions with attorney J. Paul Lowery, Goldthwaite changed his position from proponent to contestant in a will contest initiated by Arrington's heirs. He stated this realignment was due to his desire not to oppose his family members in the legal proceedings.

On January 19, 1978, Goldthwaite informed Alabama National Bank that he had joined a will contest and could no longer represent the estate. At a disciplinary hearing, he admitted that as an heir of Arrington, he stood to gain more from the estate than under Arrington's will, which was valued at several million dollars. The contestants hired Lowery as their attorney, but the court ultimately affirmed a summary judgment against them in Arrington v. Working Woman’s Home, 368 So.2d 851 (Ala.1979). Lowery later defended the contestants against a bank action for attorney's fees, which was unsuccessful. Goldthwaite did not participate in the contest until June 1978, when he provided an affidavit for Lowery's motion for summary judgment and contributed to the appellate brief for the appeal, which may have been prepared in his office.

The Bar accused Goldthwaite of violating DR 5-101(C), which prohibits a lawyer from representing a party after previously representing an opposing party in the same matter. The Bar also alleged that Goldthwaite attempted to bypass disciplinary rules by acting through Lowery, violating DR 1-102(A)(2). The "substantial relationship" test, established in Ex parte Taylor Coal Company, determines if an attorney may represent a party against a former client in related matters without disclosing confidences from the prior representation. This test emphasizes that the former client need only demonstrate a substantial relationship between the matters at issue, without delving into specifics. Exceptions to the rule exist, including scenarios involving multiple clients with the same attorney, waivers, or lack of public impropriety concerning the representation of interests hostile to a former client's.

An attorney may initiate a lawsuit against a former client regarding the same subject matter under specific circumstances. The "substantial relationship" test determines if an attorney's actions warrant disqualification from a case. In evaluating the Bar's complaint against Goldthwaite, it was noted that he did not act as an attorney of record in the will contest, had no employment contract, and did not advise or counsel the contestants. Testimony confirmed that he received no confidential information beneficial to the contestants and his actions did not impact the will contest outcome. Although Goldthwaite was charged for legal services, there was no evidence of an attorney-client relationship with the will contestants. The Bar's argument that Goldthwaite's involvement in the appellate brief constituted representation was undermined by the fact that he was an heir and beneficiary of the estate, thus justifying his actions to protect his interests. Even if he were deemed to have represented the contestants, his actions would fall under exceptions to the "substantial relationship" rule, indicating no impropriety. Consequently, Goldthwaite was not found guilty of violating disciplinary rules. The disciplinary board's judgment was reversed, concluding that neither Moore nor the Alabama National Bank initiated the disciplinary proceedings against Goldthwaite.