Palmer, Matter of
| Decision Date | 16 March 1979 |
| Docket Number | No. 90,90 |
| Citation | 252 S.E.2d 784,296 N.C. 638 |
| Court | North Carolina Supreme Court |
| Parties | In the Matter of the suspension of the right to practice law of William Cornelius PALMER. |
McElwee, Hall & McElwee by William H. McElwee, III, North Wilkesboro, and Robert A. Melott, for appellee.
Harold D. Coley, Jr., Raleigh, amicus curiae, for The North Carolina State Bar.
The first question for our consideration is whether Judge Snepp's order is reviewable by the appellate division. We hold that it is.
In holding that this cause is not reviewable at the behest of the state, the Court of Appeals relied upon the decision of this Court in In re Stiers, 204 N.C. 48, 167 S.E. 382 (1933), a case involving suspension of an attorney's privilege to practice law. There, an attorney who had entered a plea of Nolo contendere in the United States District Court to a felony charge was suspended from practicing law in that court during a period of probation. On the basis of that action, the state, through the district solicitor, instituted disbarment proceedings in the superior court. The proceeding was dismissed when the trial judge determined that a plea of Nolo contendere was not equivalent to a confession of guilty of a felony. The state appealed. In holding that the proceeding was not appealable by the state, this Court held 204 N.C. 49-50, 167 S.E. 383.
Substantial change in the statutory law dealing with the discipline of attorneys dictates that the Court reach a result in the case Sub judice which is different from that reached in Stiers.
C.S. 205 (chapter 64 of the 1929 Session Laws), the authority upon which the proceeding in Stiers was brought, was derived from the Revisal of 1905, Section 211, which was in turn based upon Chapter 216, Section 4, of the Session Laws of 1870-71. In In the Matter of Ebbs, 150 N.C. 44, 63 S.E. 190 (1908), the Court had held that the Act of 1871 was a "disabling" statute which restricted the inherent power of the courts to discipline attorneys for the commission of crimes that had "no direct connection with their practical and immediate relation to the courts." When the appealability question was decided in Stiers, the Supreme Court was not concerned with the inherent power of the appellate court to review disciplinary proceedings against an attorney in lower courts. The court, instead, was attempting to ensure that a limited type of statutory disciplinary proceeding was conducted in accord with established principles governing the right to appeal.
C.S. 204 through C.S. 215, the disciplinary provisions considered and relied upon by the Court in Stiers, were expressly repealed by Chapter 210, Section 20, of the Session Laws of 1933. Chapter 210 (now G.S. 84-15, et seq.) also created the North Carolina State Bar as an agency of the state and granted to that agency considerable power in the licensing and disciplining of attorneys. Chapter 210 itself was modified by Chapter 51, Section 4, of the Session Laws of 1937, now G.S. 84-36, which provides that "(n)othing in this Article shall be construed as disabling or abridging the inherent powers of the court to deal with its attorneys." This final change had but one purpose to make clear to the bar and to the courts that the Legislature had removed the disabling effect of C.S. 205.
The effect of these several changes was considered by the court soon thereafter. In State v. Spivey, 213 N.C. 45, 47, 195 S.E. 1, 2-3 (1938), we find:
As was said in In the Matter of Ebbs, 150 N.C. 44, (63 S.E. 190) As was also said in Re Haywood, Ex parte, 66 N.C. 1, "The Act of 1871 takes from the Court the commonlaw power to purge the bar of unfit members, except in specified cases, and it fails to provide any other power to be used in its place." The Act of 1871, which became C.S. §§ 204 and 205, was repealed Eo nomine by section 20, chapter 210, Public Acts 1933, and thereby the restriction upon the inherent power of the courts to strike from the rolls the names of unworthy attorneys was removed.
While the Act of 1933, being an act to organize The North Carolina State Bar, provides a method and procedure for disbarment of attorneys, such method is not exclusive, and does not fetter the courts in the exercise of their inherent power to disbar unworthy attorneys. To remove any doubt as to the method of disbarment of attorneys provided therein being a restriction upon the courts, the Act of 1933 was amended by section 4, chapter 51, Public Laws 1937, by adding thereto section 18a, which reads: "Nothing contained in this act shall be construed as disabling or abridging the inherent powers of the court to deal with its attorneys."
As was said by the present Chief Justice in discussing a proceeding brought under the Act of 1933, In re West, 212 N.C. 189, 193 S.E. 134.
Accord, In Re Burton, 257 N.C. 534, 126 S.E.2d 581 (1962); In Re Northwestern Bonding Co., 16 N.C.App. 272, 192 S.E.2d 33, Appeal dismissed, 282 N.C. 426, 192 S.E.2d 837 (1972).
It appears that appellate review of statutory disciplinary proceedings is now available.
G.S. 84-28.1 (Ch. 582 1975 S.L.) provides for a disciplinary hearing commission of the State Bar. This commission, or any committee thereof, "is authorized to hold hearings in discipline, incapacity and disability matters, to make findings of fact and conclusions of law after such hearings, and to enter orders necessary to carry out the duties delegated to it by the council" of the State Bar.
On 21 June 1977 this Court, pursuant to authority granted by § 13(2) of Article IV of the State Constitution, amended Rule 19 of the Rules of Appellate Procedure, 287 N.C. 671, 727, in the following manner:
Rule 19, "PARTIES TO APPEAL FROM AGENCIES," is hereby amended by adding a new paragraph to read as follows:
Thus, it appears that under our statutory method of disciplining attorneys "any party", including the attorney in question and the State Bar, may appeal from a decision of the disciplinary hearing commission.
The remaining question is whether the proceedings under the judicial method of disciplining attorneys are also properly the subject of appellate review when the decision therein is in favor of the attorney. We believe that they should be and that the court has ample authority for reviewing such proceedings.
Prior to the adoption of the Act of 1871 the court had exercised its inherent power to discipline attorneys. In Ex Parte Biggs, 64 N.C. 202 (1869), Biggs, an attorney who also published a newspaper, printed an article written by him which unfavorably commented upon an action taken by a superior court judge. The judge, exercising his inherent power, ordered Biggs disbarred. Biggs petitioned the Supreme Court for a writ of Mandamus ordering the superior court judge to show cause why Biggs should not be reinstated as an attorney. Mandamus was refused. The court held that an attorney had no right to appeal from the judge's exercise of his inherent authority. It further held that Article IV, § 10, Const.1868, accorded the court power to issue remedial writs "necessary to give it a general supervision and control of the inferior courts." The court then concluded that Certiorari was the proper method for obtaining review of the judicial disbarment proceeding.
When attorneys are licensed to practice law in North Carolina, they are licensed to practice in all the state courts; therefore, the courts of the appellate division have an interest in the integrity and competency of those engaged in the practice of law in this state. Article IV, § 12, of our present constitution retains the provision granting the Supreme Court the power to issue remedial writs necessary to exercise supervision and control over the other courts. G.S. 7A-32(c) grants similar authority to the Court of Appeals necessary to supervise and control the proceedings of the courts of...
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