Alabama State Bar v. Kaminski and Marshall; Kaminski and Marshall v. Alabama State Bar, [Ms. 1200073, 1200074, 1200083, 1200084, Feb. 25, 2022] __ So. 3d __ (Ala. 2022). In a plurality opinion (Sellers, J.; Wise, Mendheim, and Stewart, JJ., concur; Bryan, J., concurs in the result; Parker, C.J., and Bolin, Shaw, and Mitchell, JJ., dissent), the Court reverses a decision of Panel II of the Disciplinary Board of the Alabama State Bar (“the Board”), suspending Christopher Mark Kaminski and Amy Cauthen Marshall from the practice of law. The disciplinary proceeding resulted from the fact that over “a period of approximately eight months, Kaminski, while in office as a district-court judge, engaged in an undisclosed affair with Marshall, an attorney who routinely appeared before Kaminski.” Ms. *3.
While noting an order of the Board “will be affirmed unless it is not supported by clear and convincing evidence or misapplies the law to the facts,” the main opinion reiterates that
With regard to Bar disciplinary proceedings, this Court has two distinct roles: one stemming from our independent duties arising from rules authorizing appellate review of orders entered in disciplinary proceedings and one from our inherent authority to supervise the Bar. In Simpson v. Alabama State Bar, 294 Ala. 52, 56, 311 So. 2d 307, 309 (1975), this Court stated that the Board of Bar Commissioners, which appoints the members of the Board, see Rule 4, Ala. R. Disc. P., “was created in aid of this [C]ourt,” which “retains the power to ... inquire into the merits of any disciplinary proceeding, and to take any action it sees fit in such matters.” (Emphasis added.) Further, this Court “in any case of suspension or disbarment from practice ... may ... inquire into the merits of the case and take any action agreeable to its judgment.” § 34-3-43(a)(5), Ala. Code 1975.
Ms. *6 (some internal quotation marks omitted).
In support of its argument that suspension was too lenient a sanction, the Bar “assert[ed] that Kaminski and Marshall ‘repeatedly attempted to downplay’ and/or ‘minimize’ their conduct during the affair despite their acknowledgment that the misconduct occurred.” Ms. *17. The main opinion rejects this argument and observes that “Kaminski’s and Marshall’s guilty pleas and the entirety of their testimony suggests that they cooperated with the disciplinary process and candidly disclosed their views as to the unfolding of the affair.” Ms. **17-18.
In concluding suspension was too harsh, the main opinion cites undisputed character evidence and explains
At least with respect to the facts of this particular case, relying on the misconduct at issue to conclude that the good-character-and-reputation mitigating factor is not applicable seems illogical, because mitigating factors are supposed to mitigate the consequences of the misconduct. Obviously there can be situations in which the misconduct is sufficiently egregious that evidence of good character or reputation is simply outweighed or lacking in credibility, but that is not the case here, where there was a substantial amount of undisputed character evidence. The Board’s failure to apply this mitigating factor was clearly erroneous.
The main opinion concludes “[a]lthough the Court cannot condone an inappropriate relationship, even between consenting adults, the lack of tangible damage and the existence of compelling mitigating circumstances call for, at most, a public reprimand.” Ms. *24.
In his dissent joined by Justices Bolin and Mitchell, Justice Shaw “find[s] troubling the main opinion’s holdings as to the applicability of the mitigating factors contained in Standard 9.32(g) (“character or reputation”) and Standard 9.32(k) (“imposition of other penalties or discipline”) and the ultimate conclusion reached by the majority that no “tangible, concrete injury” resulted in these cases…. [N]either of those mitigating factors sways the balance away from suspension…” Ms. *28.