In Re Northwestern Bonding Co., Inc. , 16 N.C. App. 272 ( 1972 )

192 S.E.2d 33 (1972) 16 N.C. App. 272

In re NORTHWESTERN BONDING CO., INC., et al.

No. 7228SC572.

Court of Appeals of North Carolina.

October 25, 1972. Appeal Dismissed December 5, 1972.

Atty. Gen. Robert Morgan, by Asst. Atty. Gen. Millard R. Rich, Jr., for the State.

Uzzell & DuMont, by Harry DuMont, Asheville, for respondent appellant, Grover Cleveland Mooneyham.

Appeal Dismissed by Supreme Court December 5, 1972.

GRAHAM, Judge.

The order appealed from is interlocutory, and in our opinion, it is not subject to appeal before trial and final judgment. G.S. § 1-277; Rule 4, Rules of Practice in the Court of Appeals as amended 20 January 1971. We nevertheless elect to treat the appeal as a petition for certiorari, allow it and consider the questions raised on their merits.

Appellant contends the Superior Court has no subject matter jurisdiction. In support of this contention he argues that authority to discipline or disbar attorneys for conduct such as alleged in the complaint has been delegated exclusively to the North Carolina State Bar. This contention cannot be sustained.

It is true that by virtue of G.S. §§ 84-28 to 32, questions relating to the propriety and ethics of an attorney are ordinarily for the consideration of the North Carolina State Bar. In re Burton, 257 N. C. 534, 126 S.E.2d 581; McMichael v. Proctor, 243 N.C. 479, 91 S.E.2d 231. G.S. § 84-36 specifically provides, however, that the provisions of these statutes are not to be construed as disabling or abridging the inherent powers of a court to deal with its attorneys. Furthermore, it has been held repeatedly that in North Carolina there are two methods by which disciplinary action or disbarment may be imposed upon attorneys—statutory and judicial. In re Burton, supra; In re Gilliland, 248 N.C. 517, 103 S.E.2d 807; In re West, 212 N.C. 189, 193 S.E. 134; Committee on Grievances of Bar Association v. Strickland, 200 N.C. 630, 158 S.E. 110; In re Stiers, 204 N.C. 48, 167 S.E. 382. The judicial method is not dependent upon statutory authority. It arises because of a court's inherent authority to take disciplinary action against attorneys licensed before it; an authority which extends even to matters which are not pending in the particular court exercising the authority. This power is based upon the relationship of the attorney to the court and the authority which the court has over its own officers to prevent them from, or punish them for, acts of dishonesty or impropriety calculated to bring contempt upon the administration of justice. In re Burton, supra; State v. Spivey, 213 N.C. 45, 195 S.E. 1.

Appellant next challenges the sufficiency of the complaint, contending that the facts alleged therein do not charge him with any act which would subject him to discipline or disbarment. Misconduct of a serious nature is so manifest from the allegations in the complaint that this contention may be rejected without discussion.

Appellant's final contention is that the court erred in denying his motion for a jury trial. This raises a more difficult question. Appellant cites the case of State v. Parrish, 254 N.C. 301, 118 S.E.2d 786, for the proposition that a license to engage in the practice of law is a property right that cannot be taken away without due process of law. There can be no argument as to this principle. Ex parte Wall, 107 U.S. 265, 2 S. Ct. 569, 27 L. Ed. 552; In re Burton, supra; In re West, supra. The essential question, however, is whether "due process" in an action of this sort encompasses a right to a trial by jury. If the action were based on the statutory procedure, the answer would be "yes" because G.S. § 84-28 expressly grants a right to trial by jury, upon appeal from the council of the Bar, on the written evidence of the issues of fact arising on the pleadings. In re Gilliland, supra. The procedure employed here, however, is not statutory. It is judicial, and we find no statute which provides for a jury trial when the judicial method is employed to seek disciplinary action against an attorney practicing in this State.

While the question here involved has apparently never been precisely presented to our Supreme Court, in the case of In re Burton, supra, the court discussed at length the due process requirements of both the statutory and judicial methods. It is pointed out in that opinion that under the statutory method there must be a written complaint, notice to the accused, an opportunity to answer and to be represented by counsel, a hearing before a committee conducting proceedings in the nature of a reference, and a trial by jury unless waived. Under the judicial method, it is said that "where the attorney pleads guilty or is convicted in another court, or the conduct complained of is not related to litigation pending before the court investigating attorney's alleged misconduct, the procedure, to meet the test of due process, must be initiated by a sworn written complaint, and the court should issue a rule or order advising the attorney of the specific charges, directing him to show cause why disciplinary action should not be taken, and granting a reasonable time for answering and preparation of defense, and attorney should be given full opportunity to be heard and permitted to have counsel for his defense." In re Burton, supra, 257 N.C. at 544, 126 S.E.2d at 588-589. We think it is significant that, in outlining the due process elements of the judicial method, the court did not mention a right to trial by jury. On the other hand, it stated that "[w]here issues of fact are raised the court may appoint a committee to investigate and make report." In re Burton, supra at 544, 126 S.E.2d at 589. Several cases are cited where no jury trial was afforded and an investigative committee was utilized. Attorney General v. Gorson, 209 N.C. 320, 183 S.E. 392; Attorney General [Brummitt] v. Winburn, 206 N.C. 923, 175 S.E. 498; In re Stiers, supra; Committee on Grievances of Bar Association v. Strickland, supra.

It is almost universally held that in the absence of a statute so providing, procedural due process does not require that an attorney have a jury trial in a disciplinary or disbarment proceeding. See 7 Am.Jur. 2d Attorneys at Law, § 63, and cases cited. Traditionally, only a small minority of states have provided for a jury trial in any type of disbarment proceeding. 14 N.C.L. Rev. 374; 45 Harv.L.Rev. 737; 11 Tex.L. Rev. 28. See also Ex parte Thompson, 228 Ala. 113, 152 So. 229, 107 A.L.R. 671, which extensively reviews the position of the various states with respect to affording jury trials in proceedings of this nature.

A disbarment proceeding is usually considered civil in nature rather than criminal. In re Gilliland, supra; In re West, supra. Appellant contends that Article 1, Section 25 of the North Carolina Constitution applies here as in other civil proceedings. This section provides: "Right of jury trial in civil cases. In all controversies at law respecting property, the ancient mode of trial by jury is one of the best securities of the rights of the people, and shall remain sacred and inviolable." However, the right to jury trial preserved under this section applies only in cases in which the prerogative existed at common law or by statute at the time the Constitution was adopted. In re Wallace's Estate, 267 N.C. 204, 147 S.E.2d 922; Belk's Department Store, Inc. v. Guilford County, 222 N.C. 441, 23 S.E.2d 897.

An attorney had no right at common law to trial by jury when called upon by a court to answer allegations of misconduct bearing upon his fitness as an officer of the court. Ex parte Wall, supra; Ex parte Thompson, supra; In re Carver, 224 Mass. 169, 112 N.E. 877 (1916). As stated in the case of Ex parte Wall, supra, "[i]t is a mistaken idea that due process of law requires a plenary suit and a trial by jury in all cases where property or personal rights are involved." In that case the Supreme Court of the United States refused a disbarred attorney's petition which sought to have the order of his disbarment vacated. The attorney, who had been convicted of no offense, was not afforded a trial by jury on the factual issues raised by a trial court's charge that he did "engage in and with an unlawful, tumultuous and riotous gathering, he advising and encouraging thereto, take from the jail . . . and hang by the neck until he was dead, one John. . . ." The Supreme Court reviewed extensively the procedures followed at common law and in the various states and concluded that "in the present case, due notice was given to the petitioner, and a trial and hearing were had before the court, in the manner in which proceedings against attorneys, when the question is whether they shall be struck off the roll, are always conducted."

We find no evidence that a right to trial by jury in a case of this nature existed by statute in this State at the time our Constitution was adopted. In 1871 a statute was enacted which provided: "That no person who shall have been duly licensed to practice law as an attorney, shall be debarred or deprived of his license and right so to practice law either permanently or temporarily, unless he shall have been convicted or in open court confessed himself guilty of some criminal offence, showing him to be unfit to be trusted in the discharge of the duties of his profession." Ch. 216, § 4, [1871], Public Laws of N. C. 336 at 337. This statute was subsequently held to take from the court the common law power to purge the bar of unfit members, except in the cases specified. See Ex parte McCown, 139 N.C. 95, 51 S.E. 957; In re Gorham, 129 N.C. 481, 40 S.E. 311; In re Oldham, 89 N.C. 23; Kane v. Haywood, 66 N.C. 1; Ex parte Schenck, 65 N.C. 353. The effect of the statute, as construed in these cases, was to deprive a court of the authority to disbar an attorney unless he was convicted by a jury or confessed in open court when charged in a bill of indictment. This statute was repealed in 1933. Before its repeal, the Supreme Court noted that the statute "was not intended to restrict the right to disbar in cases calling for disbarment which was not imposed under the power to punish for contempt. There has been some confusion in not distinguishing between disbarment for contempt, which was restricted by the statute and disbarment on account of the misconduct of counsel in matters affecting his fitness to be a member of the bar." McLean v. Johnson, 174 N.C. 345, 348, 93 S.E. 847, 848-849 (1917).

We conclude that this State has never had a statute which expressly conferred upon an attorney the right to a trial by jury in a judicial disciplining or disbarment proceeding. Since no such right existed at common law, or by statute at the time our Constitution was adopted, and is not now provided for by statute, we hold that appellant's motion for a trial by jury was properly denied.

Affirmed.

PARKER and VAUGHN, JJ., concur.