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Rel 01/09/2009

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SUPREME COURT OF ALABAMA
OCTOBER TERM, 2008-2009 _________________________ 1070661 _________________________ Alabama State Bar v. Jesse Derrell McBrayer Appeal from the Board of Disciplinary Appeals of the Alabama State Bar (No. 07-3) COBB, Chief Justice. The Alabama State Bar ("the Bar") appeals the decision of the Board of Disciplinary Appeals of the Alabama State Bar ("the Board") reversing the order of a panel of the

Disciplinary Board of the Alabama State Bar ("the panel")

1070661 disbarring Jesse Derrell McBrayer, a member of the Alabama State Bar, and remanding the case for a new hearing before the panel. We reverse and remand. I. On May Factual Background and Procedural History 26, 2005, the Bar issued of two sets of formal

charges against McBrayer.

One set

charges arose from

allegations that a client in a land-development purchase gave McBrayer $500,000 to be deposited in his trust account.

Approximately a month after the funds were deposited, the purchase fell through, and the client asked that the funds be returned to him. McBrayer eventually returned $235,000 to the The client contended that

client, but he kept $265,000.

McBrayer had converted the funds for personal use; McBrayer, however, contended that the $265,000 was his attorney fee, although there was no written agreement concerning McBrayer's attorney fee. The client eventually sued McBrayer in federal

court, seeking the return of the $265,000, and McBrayer agreed to the entry of a consent judgment. McBrayer had refinanced

his house before the consent judgment was entered; however, the mortgage company delayed recording the mortgage, and the client filed the consent judgment before the recording of the

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1070661 mortgage, thus giving the judgment priority. eventually paid. The judgment was

The client incurred $70,000 in attorney fees

in recouping the $265,000 retained by McBrayer. The other charges brought against McBrayer by the Bar involved a $100,000 loan another client had made to McBrayer. A promissory note and a guarantee agreement were executed, which stated that McBrayer would take out a home-equity line of credit on his residence and would repay the full amount plus 10 percent interest within 33 days. pay the loan on the due date. McBrayer failed to

The client asked McBrayer for

payment on numerous occasions; however, each time the client asked to be paid, McBrayer would have an excuse as to why he could not pay and promise to repay the loan within a few days or a few weeks. Seventeen months after the loan was made,

McBrayer wrote the client a check in the amount of $14,441.14, which represented interest on the loan. The client attempted

to deposit the check in his bank account, but the check was returned for insufficient funds. McBrayer told the client to

redeposit the check; instead, the client telephoned the bank on which McBrayer's check was drawn on numerous occasions, inquiring as to whether McBrayer had sufficient funds in his

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1070661 account to pay the check. Each time the client was told that

there were not sufficient funds in McBrayer's account to pay the check. The client then filed a complaint with the Bar,

and the Bar instructed McBrayer to give the client a cashier's check in the amount of $14,441.14. Instead, McBrayer wrote The client

the client another personal check for $14,441.14.

deposited the check, and it was also returned for insufficient funds. The client sued McBrayer, attempting to collect on the note, and obtained a default judgment against

promissory McBrayer.

The client has been unsuccessful in collecting on

the default judgment. On August 22, 2005, the hearing officer for the panel set a hearing for October 12, 2005, regarding the two complaints against McBrayer. On October 5, 2005, McBrayer filed a motion

to continue the hearing, claiming that he did not receive timely notice to prepare for the hearing and that "[a] trip concerning business, not law, and involving millions of

dollars was scheduled during and beyond the time period of the hearing on October 12, 2005[,] and cannot be changed."

McBrayer's motion was denied.

On October 10, 2005, McBrayer

filed a motion to reconsider the denial of his motion to

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1070661 continue; that motion was granted, and the hearing was

rescheduled for February 16, 2006. On February 15, 2006, McBrayer filed another motion to continue the hearing. had only recently that In his motion, McBrayer alleged that he counsel to represent of a him at the

found

hearing,

counsel

required

payment

significant

retainer that McBrayer would be unable to pay for 30 days, and that counsel who had agreed to represent him required a

continuance.

After the motion to continue was filed, the

attorney McBrayer had retained, James L. North, telephoned counsel for the Bar and asked for a continuance. the Bar agreed until to May the 24, continuance, 2006. As and the the new Counsel for hearing hearing was date

continued

approached, counsel for the Bar contacted North and learned that North was no longer representing McBrayer. counsel for the Bar, North stated that According to never

McBrayer

contacted North after the continuance was granted. The May 24, 2006, hearing was continued, apparently due to the hospitalization of the Bar's counsel. rescheduled for December 14, 2006. The hearing was

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1070661 On November 27, 2006, McBrayer filed another motion to continue the hearing. In support of his motion, McBrayer

argued that he had filed a petition for Chapter 11 bankruptcy on October 30, 2006, and that the bankruptcy court had

scheduled a motion hearing in the bankruptcy proceeding for December 14, 2006. The Bar opposed the motion to continue, On December 14, 2006, McBrayer In his motion, McBrayer

and the motion was denied.

filed yet another motion to continue.

alleged that he had had surgery on December 12, 2006, and that he was restricted from driving and was taking Lortab, a pain medication, which, he said, caused him to be unable to think clearly. However, on December 8, 2006, in the intervening

period between the denial of the first motion to continue and the filling of the second motion to continue, the hearing officer had continued the hearing due to his own illness. On February 21, 2007, the hearing officer rescheduled the hearing for June 20, 2007. On June 12, 2007, William J.

Baxley filed a motion for a continuance on McBrayer's behalf. In his motion, Baxley stated that he had recently been

retained by McBrayer, that he had a conflict with the June 20, 2007, hearing date because of litigation commitments, and that

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1070661 his representation being of McBrayer The was Bar contingent objected to upon a

continuance

granted.

Baxley's

motion, arguing that McBrayer had made numerous requests for continuances throughout the proceedings and that he had had adequate time in which to secure legal counsel and had failed to do so. On June 14, 2007, the hearing officer denied

Baxley's motion to continue.

On June 19, 2007, McBrayer filed

another motion to continue as well as a motion to reconsider Baxley's motion to continue. In both motions McBrayer argued

that he had a right to legal counsel at the hearing. The panel convened on June 20, 2007, and first heard arguments on McBrayer's motion to reconsider Baxley's motion and his own motion to continue. McBrayer argued to the panel

that his motions were premised on the fact that he did not have legal counsel him. and that he needed argued legal that counsel delay to in

represent

McBrayer

also

the

obtaining Baxley's services was due to problems getting funds for the retainer required by Baxley before he would agree to represent McBrayer. following statements: During the hearing, McBrayer made the

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1070661 "I have trouble hearing. I have hearing loss. Also, I'm a severe diabetic. It's related to my diabetes as well. ".... "I have my own medical issues I deal with all the time, and they do cause problems. And if I do have a surgery, it's not like a normal person who has surgery and that

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