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North Carolina State Bar v. Dumont

Filed: January 12, 1982.

THE NORTH CAROLINA STATE BAR
v.
HARRY DUMONT, ATTORNEY



On review of a decision of the Court of Appeals reported at Carlton, Justice.

Carlton

I.

Plaintiff, The North Carolina State Bar (Bar), instituted this disciplinary action before a committee of the Disciplinary Hearing Commission (Commission)*fn1 by a complaint filed 18 September 1978. It alleged that defendant, an attorney practicing in Asheville since his admission to the Bar in 1947, counseled and procured the false testimony of deponents in a civil action in December of 1974. Such conduct, the complaint alleged, violated certain Disciplinary Rules of the Code of Professional Responsibility.

Defendant filed answer and various motions. He denied that he had suborned perjury and moved to dismiss on the ground that the Disciplinary Hearing Commission had no personal or subject matter jurisdiction since it was not in existence at the time of the alleged misconduct. He also moved to dismiss on other grounds including laches and the assertion that a hearing before the Commission would deny his right to trial by jury as guaranteed by Article I, § 25 of the North Carolina Constitution. The motions were denied by a hearing committee of the Commission on 12 February 1979.

Defendant appealed the denial of his motions to the Court of Appeals and, pursuant to G.S. 7A-31, petitioned this Court to hear his appeal prior to determination by the Court of Appeals. On 5 June 1979 we allowed the petition and issued a writ of certiorari ordering that the record be brought before this Court. However, on 6 November 1979, we dismissed the appeal on the ground that the order denying defendant's motions was interlocutory and the appeal premature and held that the writ of certiorari was improvidently issued. North Carolina State Bar v. DuMont, 298 N.C. 564, 259 S.E.2d 281 (1979).

A hearing was held before a committee of the Commission (Committee) during the week of 3 March 1980. Other unrelated charges against defendant were dismissed during the hearing, but the Committee also found that plaintiff had established the charge of procuring false testimony by the greater weight of the evidence and held defendant in violation of the disciplinary rules alleged in the complaint.*fn2 It was ordered that defendant's license to practice law in North Carolina be suspended for six months and that defendant not engage in any law-related employment during the suspension period. Defendant appealed to the Court of Appeals.

The Court of Appeals heard oral arguments on 6 April 1981. That court, with Judge Martin (Harry C.) writing and Chief Judge Morris and Judge Hill concurring, filed its opinion on 16 May 1981 and affirmed the order of the Disciplinary Hearing Committee. We allowed defendant's petition to review the Court of Appeals' decision on 9 July 1981.

The Court of Appeals' opinion is well written and contains a lengthy description of the facts giving rise to plaintiff's complaint against defendant. It is unnecessary to lengthen this opinion by repeating the detailed factual controversy leading to this appeal. For a complete account of the facts, see the Court of Appeals' opinion, 52 N.C. App. at 3-13, 277 S.E.2d at 829-34.

We summarize below the holdings of the Court of Appeals:

(1) Defendant first contended that the Commission never obtained jurisdiction over his person or over the subject matter of the proceeding. He contended that this proceeding should be controlled by G.S. 84-28 as it existed at the time of his alleged misconduct, prior to the extensive amendments to Chapter 84 of our General Statutes which became effective 1 July 1975. Law of June 13, 1975, ch. 582, s. 5, 1975 N.C. Sess. Laws 656 (1975) (hereinafter "1975 amendments"). The Court of Appeals disagreed and held that the Legislature intended that the 1975 amendments apply to disciplinary hearings commenced on or after 1 July 1975,

the effective date. The Court of Appeals also held that application of the procedures included in the 1975 amendments did not constitute an unconstitutional ex post facto application of the law and that, while the practice of law is a property right requiring due process of law before it may be impaired, the 1975 amendments themselves in no way interfered with or impaired defendant's right to practice law. We have carefully examined the Court of Appeals' opinion and the briefs and authorities on these points. We find the resolution of these issues and the reasoning and legal principles enunciated by the Court of Appeals to be altogether correct and adopt that portion of its opinion, section I, 52 N.C. App. at 14-16, 277 S.E.2d at 835-36, as our own.

(2) The Court of Appeals held that defendant was not deprived of due process of law by virtue of the elimination by the 1975 amendments of the right to trial by jury in attorney disciplinary matters. The court reasoned that due process does not require that a jury trial be afforded an attorney for disciplinary or disbarment procedures and held that the procedural safeguards provided by the 1975 amendments were sufficient to satisfy due process requirements.

It appears to us that the result reached on this issue is altogether correct. We approve of the reasoning employed by the Court of Appeals and the legal principles enunciated by it and adopt this portion of the Court of Appeals' opinion, section II, 52 N.C. App. at 16, 277 S.E.2d at 836.

The Court of Appeals also held that, even if defendant were entitled to a jury trial, he waived it by failing to request a jury trial within the time limits set by Rule 38 of the N.C. Rules of Civil Procedure. In light of our disposition of defendant's claim that he has a constitutional right to be tried by a jury it is unnecessary to address the waiver issue and we express no opinion on this portion of section II of the Court of Appeals' opinion, 52 N.C. App. at 17, 277 S.E.2d at 836-37.

(3) Defendant contended before the Court of Appeals, as he does here, that he did not receive a fair and impartial hearing. He argued that the disciplinary action was barred by laches, that the several charges against him should not have been consolidated for hearing, that several evidentiary errors were committed at the hearing, and that the Commission erred in limiting the number of

character witnesses he could present. We agree with the Court of Appeals that there was no error on these points and adopt that portion of its opinion, section III, 52 N.C. App. at 17-23, 277 S.E.2d at 837-40, as our own.

(4) Defendant also challenged the standard of proof employed by the Commission at his hearing. He contended that the Commission erred in using the "greater weight of the evidence" rule and that it should have used the "clear, cogent and convincing" test in determining whether plaintiff had satisfied its burden of proof.

The Court of Appeals rejected this argument. It noted that the State Bar in its rules had adopted the standard of the greater weight of the evidence, State Bar Rules Article IX, sec. 14(18),*fn3 and concluded that it should not interfere with a standard which the General Assembly empowered the State Bar, by its Council, to adopt. See G.S. § 84-23 (1981).

We agree with the Court of Appeals that due process does not require the higher burden and that the courts should not meddle in matters left to the State Bar by our Legislature. As to this question we adopt the Court of Appeals' opinion, section IV, 52 N.C. App. at 23-24, 277 S.E.2d at 840-41, as our own.

(5) Before the Court of Appeals, the defendant argued that Article 4 of the Administrative Procedure Act (APA), G.S. § 150A-43 to -52 (1978), governs review of his appeal from the Disciplinary Hearing Commission and, accordingly, that the proper standard of review of the Commission's findings was the "whole record" test of G.S. 150A-51(5) and not the "any competent evidence" standard urged by the Bar. The Court of Appeals did not reach the question whether the APA governs judicial review of decisions of the Disciplinary Hearing Commission because it found the evidence supporting the findings of the Commission sufficient under either test. While we agree with the Court of Appeals that the evidence is sufficient under either the "whole record" or "any competent evidence" test, we think it necessary to decide which standard is appropriate for review of this appeal. We address this question below.

(6) The Bar assigned error to the disciplinary measure imposed by the Commission and argued to the Court of Appeals that it had authority to impose more severe measures. The Court of Appeals rejected this contention, holding that the statute providing for judicial review, G.S. 84-28(h), does not give a reviewing court the authority to modify or change the discipline properly imposed by the Commission. We agree with the reasoning of the Court of Appeals and adopt its discussion of this issue, 52 N.C. App. at 25-26, 277 S.E.2d at 841-42, as our own.

II.

While holding that due process of law does not require that an attorney is entitled to a jury trial in a statutory disciplinary or disbarment proceeding, the Court of Appeals did not consider whether a jury trial in such a proceeding is guaranteed attorneys by the ...


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