In re Stone ( 2020 )

IN THE SUPREME COURT OF NORTH CAROLINA
No. 242A19
28 February 2020
IN RE INQUIRY CONCERNING A JUDGE, NO. 18-069
MICHAEL A. STONE, Respondent
This matter is before the Court pursuant to N.C.G.S. §§ 7A-376 and -377 upon
a recommendation by the Judicial Standards Commission entered on 3 June 2019
that respondent Michael A. Stone, a Judge of the General Court of Justice, District
Court Division 16A,1 be censured for conduct in violation of Canons 1 and 2A of the
North Carolina Code of Judicial Conduct, and for conduct prejudicial to the
administration of justice that brings the judicial office into disrepute in violation of
N.C.G.S. § 7A-376(b). This matter was calendared for argument in the Supreme Court
on 8 January 2020 but was determined on the record without briefs or oral argument
pursuant to Rule 30(f) of the North Carolina Rules of Appellate Procedure and Rule
3 of the Rules for Supreme Court Review of Recommendations of the Judicial
Standards Commission.
No counsel for Judicial Standards Commission or respondent.
1 Respondent Michael A. Stone is now a Judge of the General Court of Justice, Superior Court Division 19.
IN RE STONE
Order of the Court
ORDER
The issue before the Court is whether Judge Michael A. Stone, respondent,
should be censured for violations of Canons 1, 2A, and 2B of the North Carolina Code
of Judicial Conduct amounting to conduct prejudicial to the administration of justice
that brings the judicial office into disrepute in violation of N.C.G.S. § 7A-376(b).
Respondent has not challenged the findings of fact made by the Judicial Standards
Commission (the Commission) or opposed the Commission’s recommendation that he
be censured by this Court.
On 24 October 2018, Commission Counsel filed a Statement of Charges against
respondent alleging that he had engaged in conduct inappropriate to his judicial office
by demonstrating a lack of respect for the office; by inappropriately using judicial
letterhead and invoking his judicial title to strongly challenge the jurisdiction of the
State Bar over his conduct while he was an attorney in private practice; and by
making a number of misleading and grossly negligent assertions regarding his
representation of a former client, bringing the judicial office into disrepute.
Respondent fully cooperated with the Commission’s inquiry into this matter. In the
Statement of Charges, Commission Counsel asserted that respondent’s actions
constituted conduct inappropriate to his judicial office and prejudicial to the
administration of justice that brings the judicial office into disrepute or otherwise
constituted grounds for disciplinary proceedings under Chapter 7A, Article 30 of the
North Carolina General Statutes.
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Order of the Court
Respondent filed his answer on 11 December 2018. On 30 April 2019,
Commission Counsel and respondent entered into a Stipulation and Agreement for
Stated Disposition (the Stipulation) containing joint evidentiary, factual, and
disciplinary stipulations as permitted by Commission Rule 22 that tended to support
a decision to censure respondent. The Stipulation was filed with the Commission on
30 April 2019. The Commission heard this matter on 10 May 2019 and entered its
recommendation on 3 June 2019, which contains the following stipulated findings of
fact:
7. On or about August 21, 2014, Respondent was
sworn in as a district court judge for Judicial District 16A,
including Anson, Hoke, Richmond, and Scotland Counties.
Prior to that time, Respondent was in private practice
primarily focused on criminal defense and Department of
Social Services work.
8. On or about May 2, 2017, a “Petition for
Resolution of Disputed Fee” was filed against Respondent
with the State Bar’s “Attorney Client Assistance Program”
by Dahndra Moore based upon Respondent’s
representation of Mr. Moore for several months in 2014
prior to Respondent’s appointment to the bench.
9. In his fee dispute petition, Mr. Moore alleged
that Respondent agreed to represent him in a criminal
matter for a total fee of $10,000, and that Mr. Moore paid
Respondent $5,000 when Respondent withdrew from the
representation to accept appointment as a judge. Mr.
Moore disputed that Respondent earned the $5,000 he paid
Respondent at the time of his withdrawal as counsel.
10. On or about May 8, 2017, Respondent
received a “Notification of Mandatory Fee Dispute
Resolution” from the State Bar’s Attorney Client
Assistance Program. The letter was addressed to “Judge
Michael A. Stone” but also noted “Attorney at Law” and
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was mailed to Respondent’s home address, not a
courthouse or business address.
11. When Respondent received notice of the fee
dispute in 2017, he did not recognize Mr. Moore’s name,
had no independent recollection of his representation of
Mr. Moore in 2014, and had no files or other documents
relating to the representation.
12. At some point thereafter, and to refresh his
recollection as to his representation of Mr. Moore,
Respondent contacted his former paralegal Sylvia Williams
to gain more information about the representation.
13. Ms. Williams reminded Respondent about the
circumstances of his representation of Mr. Moore and
informed Respondent that she was still in contact with
Nina McLaurin, who had made payments to Respondent on
Mr. Moore’s behalf during the representation. Based upon
the information provided to him by Ms. Williams,
Respondent asked Ms. Williams to contact Ms. McLaurin
to provide a statement to the State Bar indicating that she
personally paid for the legal work performed by
Respondent and that she was satisfied with the legal
representation he provided.
14. On or about June 19, 2017, the State Bar
received Respondent’s response to the fee dispute.
15. Respondent wrote his response to the State
Bar on official court letterhead despite the fact that it
addressed Respondent’s conduct in his private capacity
prior to taking the bench. Respondent’s letter also
immediately invoked his judicial title to strongly challenge
the jurisdiction of the State Bar over his conduct while he
was an attorney in private practice. Respondent closed the
letter by signing his name, and again invoking his judicial
title by including “District Court Judge – District 16A”
under his signature.
16. Respondent incorrectly believed it was
appropriate to use judicial letterhead and invoke his
judicial title in a personal matter because the fee dispute
notices from the State Bar were addressed to Respondent
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Order of the Court
as “Judge Michael A. Stone,” and he was responding to the
State Bar, a government agency.
17. In Respondent’s written response to the State
Bar, Respondent also made a number of assertions
regarding his representation of Mr. Moore. Respondent
acknowledges those assertions were either misleading or
made with reckless disregard for the truth because he did
not have independent recollection of the details of Mr.
Moore’s case or records to justify his assertions. Those
assertions include the following statements from his
response to the State Bar:
a. Respondent informed the State Bar that Mr.
Moore was not entitled to any part of the fees
paid because they were not paid by him, but
by family and friends. In support of this
statement, Respondent included a signed
statement purportedly from Ms. Nina
McLaurin, a friend of Mr. Moore’s, stating
that she made the majority of the payments
towards the legal fees and that she was “very
happy with Mr. Stone’s legal services”
because Respondent “really helped” Mr.
Moore. In fact, because Mr. Moore was in jail
and unable to make the payments in person,
Mr. Moore’s family and friends paid the fees
on his behalf with funds from Mr. Moore’s
bank account. In addition, the letter
Respondent submitted to the State Bar
purportedly from Ms. McLaurin was prepared
by Ms. Sylvia Williams, Respondent’s former
legal assistant. Ms. Williams prepared the
statement requested by Respondent, and then
forged Ms. McLaurin’s signature after being
unable to secure the statement from her.
Respondent was not aware of, nor responsible
for, the forgery.
b. Respondent also asserted to the State Bar
that he withdrew from representing Mr.
Moore because he had not been paid all of the
legal fees due to him. However, Respondent
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now acknowledges that he withdrew from Mr.
Moore’s case because he was appointed to the
bench and could no longer serve as counsel
regardless of Mr. Moore’s ability to pay.
c. Respondent informed the State Bar that he
was unable to produce a copy of his fee
agreement with Mr. Moore because he had
given it to the court-appointed attorney who
took over Mr. Moore’s representation after
Respondent withdrew, as was his practice as
he prepared to wind down his law office. Mr.
Moore’s new attorney stated that he never
received the fee agreement.
d. As part of the justification of the fees he
retained, Respondent asserted to the State
Bar that he earned his fees because he
“worked very hard in negotiating a plea
arrangement” that would have avoided a
lengthy prison sentence for Mr. Moore. While
there may have been serious discussions with
prosecutors about Mr. Moore’s case, there was
never a plea offer made by the District
Attorney’s office, which also has no
documentation of plea negotiations or plea
offers made during Respondent’s brief
representation of Mr. Moore.
18. Respondent’s response to the State Bar also
included a very detailed summary of the work and hours
Respondent claimed to have performed in Mr. Moore’s case,
including inter alia:
a. “5 separate meeting with the District
Attorney’s office discussing the case and
negotiating his case (6½ hours + minimum 6
hours travel time)”;
b. “Meeting with the District Attorney’s office
about discovery in the case and potential
evidentiary issues related to DNA of an
aborted fetus from an abortion and legal chain
of custody issues as to the evidence, DNA, and
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legality of evidence related to the tissue of
aborted fetus. (2 Hrs. + 2 Hrs travel)”;
c. “Legal Research and case law research
related to the unique and novel DNA evidence
issues in the case (5 Hrs)”; and
d. “Meeting with my private investigator to go
over his report regarding the alleged rape
victim and her family as well as travel to try
to interview the alleged rape victim and her
mother (6 hrs + 2 hours travel).”
19. Respondent knew or should have known that
the statements to the State Bar described in paragraph 18
above were misleading, or made with reckless disregard for
the truth. Respondent concedes that he based his
statements upon his review of the court file because he had
an insufficient recollection of the work and no records. The
following facts establish that the statements to the State
Bar were misleading:
a. Despite Respondent’s affirmative assertion to
the State Bar that he spent two hours of work
plus two hours of travel time to the DA’s office
to discuss DNA issues and evidence in the
case, and despite Respondent’s claims that he
worked very hard to negotiate a plea deal for
Mr. Moore, Respondent admits that he has no
specific recollection of the time spent or travel
time involved and the Assistant District
Attorney who prosecuted Mr. Moore and who
handled the DNA issues in Mr. Moore’s case
never discussed Mr. Moore’s charges, the
DNA issues, or any plea offer with
Respondent in person, by telephone, or via
email.
b. Despite Respondent’s affirmative assertion to
the State Bar that he performed five hours of
legal research, Respondent admits that he
only recalls this research because it involved
a unique DNA issue, and he does not have any
specific recollection or documentation of
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actual time spent doing the research, and did
not document any of his research about the
DNA issues in Mr. Moore’s case.
c. Despite Respondent’s affirmative assertion to
the State Bar that he spent six hours meeting
with his private investigator to go over the
investigator’s report, the investigator in fact
never produced a written investigative report
for Respondent’s review and does not recall
even being paid to do any work in Mr. Moore’s
case, which Respondent says was not unusual
in their working relationship.
20. On or about July 24, 2017, the Fee Dispute
Resolution Program notified Mr. Moore and Respondent
that the State Bar’s fee dispute facilitator concluded that
the parties were unable to reach a voluntary resolution of
the fee dispute and therefore the dispute was closed.
21. After the fee dispute was closed, the State Bar
received a letter from Ms. McLaurin, who had learned from
Mr. Moore that Respondent had given the State Bar a
letter allegedly provided by her. Ms. McLaurin informed
the State Bar that she had no knowledge of the statement
and that her signature was forged.
22. Based upon Ms. McLaurin’s forgery claim, the
State Bar opened a grievance against Respondent,
although Respondent asserts that the State Bar did not
formally notify him that he was under investigation or why
he was under investigation. During the State Bar’s
investigation, Respondent was interviewed by a State Bar
Investigator. During the interview, Respondent reiterated
all of the specific assertions as to time worked on Mr.
Moore’s case made in his June 7, 2017 response letter, and
further expressed anger and irritation at being subject to
an investigation by the State Bar for his conduct as an
attorney, particularly after Respondent believed the
matter to have already been concluded.
23. The State Bar Investigator did not reveal to
Respondent that Ms. McLaurin’s letter was forged.
Respondent remained unaware of the forgery until he
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received notice of the Commission’s formal investigation
into this matter.
24. While Respondent did not intentionally
attempt to deceive the State Bar, he acknowledges that his
assertions to the State Bar were willful, and that those
assertions were either misleading or made with reckless
disregard for the truth because he did not have any
independent recollection of the details of Mr. Moore’s case
or records to justify his assertions.
(Citations to pages of the Stipulation omitted.)
Based on these findings of fact, the Commission concluded as a matter of law
that:
1. Canon 1 of the Code of Judicial Conduct sets
forth the broad principle that “[a] judge should uphold the
integrity and independence of the judiciary.” To do so,
Canon 1 requires that a “judge should participate in
establishing, maintaining, and enforcing, and should
personally observe, appropriate standards of conduct to
ensure that the integrity and independence of the judiciary
shall be preserved.”
2. Canon 2 of the Code of Judicial Conduct
generally mandates that “[a] judge should avoid
impropriety in all the judge’s activities.” Canon 2A
specifies that “[a] judge should respect and comply with the
law and should conduct himself/herself at all times in a
manner that promotes public confidence in the integrity
and impartiality of the judiciary.” Canon 2B specifies that
a “judge should not lend the prestige of the judge’s office to
advance the private interest of others . . . .”
3. Respondent concedes that he violated these
provisions of the Code of Judicial Conduct.
4. Upon the Commission’s independent review
of the stipulated facts concerning Respondent’s conduct,
the Commission concludes that Respondent failed to
personally observe appropriate standards of conduct
necessary to ensure that the integrity of the judiciary is
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preserved, in violation of Canon 1 of the North Carolina
Code of Judicial Conduct, and failed to conduct himself in
a manner that promotes public confidence in the integrity
of the judiciary, in violation of Canon 2A of the North
Carolina Code of Judicial Conduct.
5. The Commission further concludes that the
facts establish that Respondent engaged in willful
misconduct in office and conduct prejudicial to the
administration of justice that brings the judicial office into
disrepute in violation of N.C. Gen. Stat. § 7A-376(b). See
also Code of Judicial Conduct, Preamble (“[a] violation of
this Code of Judicial Conduct may be deemed conduct
prejudicial to the administration of justice that brings the
judicial office into disrepute, or willful misconduct in office
. . .”).
6. The Supreme Court defined conduct
prejudicial to the administration of justice in In re Edens,
290 N.C. 299 (1976) and stated as follows:
Conduct prejudicial to the administration of
justice that brings the judicial office into
disrepute has been defined as “conduct which
a judge undertakes in good faith but which
nevertheless would appear to an objective
observer to be not only unjudicial conduct but
conduct prejudicial to the public esteem for
the judicial office.” Whether the conduct of a
judge may be so characterized “depends not so
much upon the judge’s motives but more on
the conduct itself, the results thereof, and the
impact such conduct might reasonably have
upon knowledgeable observers.”
Id. at 305-306 (internal citations omitted).
7. The Supreme Court has defined “willful
misconduct in office” as “improper and wrong conduct of a
judge acting in his official capacity done intentionally,
knowingly and, generally in bad faith. It is more than a
mere error of judgement or an act of negligence.” In re
Edens. 290 N.C. 299, 305 (1976). The Supreme Court has
also made clear, however, that “willful misconduct in office”
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is not limited to conduct undertaken during the discharge
of official duties. As stated in In re Martin, 302 N.C. 299(1981):
We do not agree, nor have we ever held, that
“willful misconduct in office” is limited to the
hours of the day when a judge is actually
presiding over court. A judicial official’s duty
to conduct himself in a manner befitting his
professional office does not end at the
courthouse door. Whether the conduct in
question can fairly be characterized as
“private” or “public” is not the inquiry; the
proper focus is on, among other things, the
nature and type of conduct, the frequency of
occurrences, the impact which knowledge of
the conduct would likely have on the
prevailing attitudes of the community, and
whether the judge acted knowingly or with a
reckless disregard for the high standards of
the judicial office.
Id. at 316 (internal citation omitted).
8. In the present case, Respondent made
detailed, affirmative and specific factual assertions to the
State Bar during its investigation that Respondent knew
were unsupported by any personal recollection or
documentation. Respondent also did so while invoking his
position as a sitting judge and on letterhead bearing the
imprimatur of the North Carolina Judicial Branch.
Respondent has also fully admitted that his factual
assertions to the State Bar were not only misleading and
grossly negligent, but that he knew or should have known
that such statements were made with reckless disregard
for the truth.
9. The Commission concludes that this course of
action amounts to willful misconduct in office and that
Respondent willfully engaged in misconduct prejudicial to
the administration of justice that brings the judicial office
into disrepute.
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10. Respondent also acknowledges that the
factual stipulations contained herein are sufficient to prove
by clear and convincing evidence that his actions constitute
willful misconduct in office and that he willfully engaged
in misconduct prejudicial to the administration of justice
that brings the judicial office into disrepute in violation of
N.C. Gen. Stat. § 7A-376.
(Brackets in original and citations to pages of the Stipulation omitted.)
Based on these findings of fact and conclusions of law, the Commission
recommended that this Court censure respondent. The Commission based this
recommendation on its earlier findings and conclusions, as well as the following
additional dispositional determinations:
1. The Supreme Court in In re Crutchfield, 289
N.C. 597 (1975) first addressed sanctions under the
Judicial Standards Act and stated that the purpose of
judicial discipline proceedings “is not primarily to punish
any individual but to maintain due and proper
administration of justice in our State’s courts, public
confidence in its judicial system, and the honor and
integrity of its judges.” Id. at 602.
2. The Commission recommends censure rather
than a more severe sanction based on several
considerations. First, the actions identified by the
Commission as misconduct by Respondent appear to be
isolated and do not form any sort of recurring pattern of
misconduct. Second, Respondent has been cooperative with
the Commission’s investigation, voluntarily providing
information about the incident and reaching a resolution
through this Stipulation. Third, the Commission has
observed that Respondent not only fully and openly
admitted his error and expressed genuine remorse, but
that he fully understands the negative impact his actions
have had on the integrity and impartiality of the judiciary.
3. The Commission and Respondent
acknowledge the ultimate jurisdiction for the discipline of
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judges is vested in the North Carolina Supreme Court
pursuant to Chapter 7A, Article 30 of the North Carolina
General Statutes, which may either accept, reject, or
modify any disciplinary recommendation from the
Commission.
4. Pursuant to N.C. Gen. Stat. § 7A-377(a5),
which requires that at least five members of the
Commission concur in a recommendation of public
discipline to the Supreme Court, all seven Commission
members present at the hearing of this matter concur in
this recommendation to censure Respondent.
(Citations to pages of the Stipulation omitted.)
“The Supreme Court ‘acts as a court of original jurisdiction, rather than in its
typical capacity as an appellate court’ when reviewing a recommendation from the
Commission.” In re Hartsfield, 365 N.C. 418, 428, 722 S.E.2d 496, 503 (2012) (order)
(quoting In re Badgett, 362 N.C. 202, 207, 657 S.E.2d 346, 349 (2008) (order)). Neither
the Commission’s findings of fact nor its conclusions of law are binding on this Court,
but we may adopt them. Id. (citing In re Badgett, 362 N.C. at 206, 657 S.E.2d at 349).
If the Commission’s findings are adequately supported by clear and convincing
evidence, the Court must determine whether those findings support the
Commission’s conclusions of law. Id. at 429, 722 S.E.2d at 503.
The Commission found the stipulated facts to be supported by “clear, cogent
and convincing evidence.” Respondent entered into the Stipulation agreeing that
those facts and information would serve as the evidentiary and factual basis for the
Commission’s recommendation, and respondent does not contest the findings or
conclusions made by the Commission. We agree that the Commission’s findings are
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supported by clear, cogent, and convincing evidence, and we now adopt them as our
own. Furthermore, we agree with the Commission’s conclusions that respondent’s
conduct violates Canons 1, 2A, and 2B of the North Carolina Code of Judicial Conduct,
and is prejudicial to the administration of justice, thus bringing the judicial office into
disrepute in violation of N.C.G.S. § 7A-376.
This Court is not bound by the recommendations of the Commission. In re
Hartsfield, 365 N.C. at 429, 722 S.E.2d at 503. Rather, we may exercise our own
judgment in arriving at a disciplinary decision in light of respondent’s violations of
the North Carolina Code of Judicial Conduct. Id. Accordingly, “[w]e may adopt the
Commission’s recommendation, or we may impose a lesser or more severe sanction.”
Id. The Commission recommended that respondent be censured. Respondent does not
contest the Commission’s findings of fact or conclusions of law and voluntarily
entered into the Stipulation with the understanding that the Commission’s
recommendation would be censure.
We appreciate respondent’s cooperation and candor with the Commission
throughout these proceedings. Furthermore, we recognize respondent’s expressions
of remorse and his understanding of the negative impact that his actions have had
on the integrity and impartiality of the judiciary. Weighing the severity of
respondent’s misconduct against his candor and cooperation, we conclude that the
Commission’s recommended censure is appropriate.
Therefore, the Supreme Court of North Carolina orders that respondent
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Order of the Court
Michael A. Stone be CENSURED for conduct in violation of Canons 1, 2A, and 2B of
the North Carolina Code of Judicial Conduct, and for conduct prejudicial to the
administration of justice that brings the judicial office into disrepute in violation of
N.C.G.S. § 7A-376.
By order of the Court in Conference, this the 26th day of February, 2020.
s/Davis, J.
For the Court
WITNESS my hand and the seal of the Supreme Court of North Carolina, this
the 28th day of February, 2020.
AMY L. FUNDERBURK
Clerk of the Supreme Court
s/M.C. Hackney
Assistant Clerk
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