North Carolina State Bar v. Harris

• Decision Date: 04 April 2000
• Docket Number: No. COA99-580.,COA99-580.
• Citation: 527 S.E.2d 728,137 NC App. 207
• Parties: The NORTH CAROLINA STATE BAR, Plaintiff/Appellee, v. Douglas S. HARRIS, Attorney, Defendant.
• Court: North Carolina Court of Appeals

527 S.E.2d 728

137 NC App. 207

The NORTH CAROLINA STATE BAR, Plaintiff/Appellee, v. Douglas S. HARRIS, Attorney, Defendant.

No. COA99-580.

Court of Appeals of North Carolina.

April 4, 2000.

Fern Gunn Simeon, Raleigh, for the North Carolina State Bar.

Douglas S. Harris, Pro Se.

WYNN, Judge.

The North Carolina State Bar brought this action before the Hearing Committee of the Disciplinary Hearing Commission of the State Bar by a complaint alleging that the defendant, a licensed attorney, violated various Disciplinary Rules of the Code of Professional Responsibility while representing Brenda Capps in a personal injury action.

A hearing on this matter was held before the Hearing Committee on 8 and 9 October 1998 and 6 November 1998. The evidence showed that Capps discharged the defendant by letter dated 16 August 1996. Then she consulted with another attorney whom she hired later to represent her in the action. That attorney sent the defendant a letter dated 22 August 1996 requesting that he notify Allstate Insurance Company, the insurance carrier for the tortfeasor under Capps' claim, of his discharge.

On 23 August 1996, the defendant negotiated a settlement of Capps' claim with an adjuster of Allstate Insurance Company. Under the settlement agreement, the adjuster sent the defendant a check in amount of $12,000.00, issued to the defendant and Capps in full and final settlement of the claim. Along with the check, the defendant received a form releasing any further claims in the settled matter.

The defendant presented evidence that on 18 January 1997, Capps came to his office in Greensboro, North Carolina and signed the release form and a limited power of attorney authorizing him to sign her name to the settlement check. In fact, the defendant's secretary, a public notary, testified during the hearing that she had acknowledged Capps' signature on the release and power of attorney on that particular day. Also, the defendant testified that he wrote a check for $8,900.00 out of his operating account and gave Capps the check during her visit to his office.

The State Bar, however, presented evidence that on 18 January 1997 Capps was in Largo, Florida attending organ lessons in the morning; attending an organ concert in the afternoon; and dining out with friends in the evening. Further, the State Bar's audit revealed no evidence of a check clearing the defendant's operating account in the amount of $8,900.00 made payable to Capps.

Following the hearing, the Hearing Committee entered an order disbarring the defendant from the practice of law. From this order, he appeals.

The appellate courts' standard of review for attorney discipline cases is the "whole record test." See North Carolina State Bar v. Sheffield, 73 N.C.App. 349, 354, 326 S.E.2d 320, 323 (1985). Under that standard, this Court examines all competent evidence in the whole record on appeal to determine whether the agency decision is supported by substantial evidence. See In re Meads, 349 N.C. 656, 663, 509 S.E.2d 165, 170 (1998) (quoting Rector v. N.C. Sheriff's Educ. & Training Standards Comm'n, 103 N.C.App. 527, 532, 406 S.E.2d 613, 616 (1991)). Therefore, under the whole record test, the Hearing Committee's ruling should be affirmed if it is supported by substantial evidence which is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. See Retirement Villages, Inc. v. North Carolina Dep't of Human Resources, 124 N.C.App. 495, 498, 477 S.E.2d 697, 699 (1996); In re Meads, 349 N.C. at 663, 509 S.E.2d at 170.

I. DISCOVERY INFORMATION

The defendant challenges the Hearing Committee's order of discipline on the grounds that his due process rights were violated when he was denied access to necessary discovery information by: (A) the Hearing Committee and (B) the State Bar.

A. The Hearing Committee

The defendant first contends that the Hearing Committee erred in denying his motion to compel discovery of the reports and witness interview notes of the State Bar's investigator because that evidence was not protected under the attorney-work product privilege. We disagree. In Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947), the United States Supreme Court held that oral and written statements of witnesses obtained or prepared by an adverse party's counsel in the course of preparation for possible litigation are not discoverable without a showing of necessity. In effect, the Hickman Court recognized the attorney-work product rule which is "a qualified privilege for witness statements prepared at the request of the attorney and an almost absolute privilege for attorney notes taken during a witness interview." In re PCB, 167 Vt. 379, 708 A.2d 568 (1998); see also Hickman, 329 U.S. at 495,67 S.Ct. at 385,91 L.Ed. at 451. Also, under the attorney-work product rule, the mental impressions, conclusions, opinions and legal theories of an attorney are absolutely protected from discovery regardless of any showing of need. See Hickman, 329 U.S. at 495,67 S.Ct. at 385,91 L.Ed. at 451.

Indeed, the North Carolina Rules of Civil Procedure provide for the attorney-work product privilege by stating that

a party may obtain discovery of documents and tangible things otherwise discoverable under subsection (b)(1) of this rule and prepared in anticipation of litigation or for trial by or for another party or by or for that other party's consultant, surety, indemnitor, insurer, or agent only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of his case and that he is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the court may not permit disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation in which the material sought or work product of the attorney or attorneys of record in the particular action.

N.C. Gen.Stat. § 1A-1, Rule 26(b)(3) (1990).

Although our courts have applied the attorney-work product rule in many different contexts, the question of its applicability in the context of an attorney discipline case is a matter of first impression for our Courts. See Willis v. Duke Power Co., 291 N.C. 19, 229 S.E.2d 191 (1976) (holding that any materials prepared in anticipation for any litigation by a party from whom discovery is sought are protected under the rule of civil procedure governing the scope of discovery); Hall v. Cumberland County Hospital, 121 N.C.App. 425, 466 S.E.2d 317 (1996) (holding that the trial court erred reversibly by releasing certain documents to plaintiffs without addressing defendants' claims that those documents were privileged).

We are, however, aware of a recent decision of the Vermont Supreme Court, which addressed the question presently before this Court—whether a bar investigator's reports and witness interview notes are protected under the attorney-work product rule. In re PCB, 708 A.2d at 568. In that case, the Vermont Supreme Court determined that witness statements and notes taken by the bar counsel or bar investigator are privileged and not discoverable absent a showing of substantial need and undue hardship and a finding of good cause by the Professional Conduct Board. See id.

As in In re PCB, the discovery information requested in the case at bar includes notes and witness statements taken by the State Bar's investigator. And, the investigator in the case at bar is a representative or agent of the State Bar. See N.C. Gen.Stat. § 84-31 (1995) (stating that "the North Carolina State Bar ... may authorize counsel to employ assistant counsel, investigators ... in such numbers as it deems necessary...."). Since we are persuaded by the reasoning in In re PCB, we hold that the notes and reports in this case were not discoverable until there was a showing by the defendant that he had a "substantial need of the materials in preparation of his case and that he was unable without undue hardship to obtain the substantial equivalent." N.C.G.S. § 1A-1, Rule 26(b)(3).

Assuming for the sake of argument that the defendant in this case has shown a substantial need of the materials in preparation of his case, he has failed to show that he was unable to obtain the substantial equivalent without undue hardship. In fact, he failed to exercise his right to depose the witnesses who were the subject of the investigator's notes and reports which would have given him the substantial equivalent of the requested information. Since he failed to make the appropriate showing under our attorney-work product rule, the investigator's notes and reports were privileged and not discoverable by the defendant.

Because the investigator's notes and reports were privileged, the Hearing Committee was not required to examine the evidence before ruling on the defendant's motion to compel. See State v. Hardy, 293 N.C. 105, 235 S.E.2d 828 (1977) (holding that a judge must order in camera inspection when a specific request is made at trial for disclosure of evidence which is in the State's possession and which is obviously relevant, competent and not privileged). Therefore, the Hearing Committee acted properly in denying the defendant's motion to compel.

B. The State Bar

The defendant next contends that the State Bar erred in: (1) allowing its counsel to answer defendant's interrogatory questions and (2) concealing certain requested evidence.

We find meritless the defendant's contentions that it was improper for the State Bar's counsel to answer the interrogatory questions. Under Rule 33 of our North Carolina Rules of Civil Procedure, governing a party's interrogatories,

[a]ny party may serve upon any other party written interrogatories to be answered by the party served or, if the party served is a public or private

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