Appeal by defendant from an order entered 10 January 2003 by
the North Carolina State Bar. Heard in the Court of Appeals 2
March 2004.
Deputy Counsel Thomas F. Moffitt and Dottie Miani for
plaintiff-appellee.
David H. Rogers, defendant-appellant, pro se.
HUNTER, Judge.
David H. Rogers (“defendant”) appeals from an order of the
Disciplinary Hearing Commission of the North Carolina State Bar
(“DHC”) filed 10 January 2003, suspending defendant's license to
practice law for three years. For the reasons stated herein, we
conclude there was no error in defendant's disciplinary hearing and
affirm the order of discipline.
On 25 July 2001, the North Carolina State Bar (“the State
Bar”) filed a complaint against defendant alleging the facts of the
“Flanagan Matter” set out below. Defendant filed his answer on 4
September 2001. Subsequently, on 6 June 2002, the State Bar filed an amended complaint, which in addition to the “Flanagan Matter,”
alleged the facts of the “Hayes Matter” also set out below.
Defendant does not assign error to the DHC's findings of fact
and they are, therefore, deemed binding on appeal. See Watson v.
Employment Security Comm., 111 N.C. App. 410, 412, 432 S.E.2d 399,
400 (1993). In summary, the DHC found the following as fact.
Defendant was admitted to the State Bar in 1979 and was engaged in
the practice of law in Raleigh, North Carolina. He was properly
served with process and received notice of the hearing. The
allegations against defendant involved two separate incidents.
The Hayes Matter
Defendant purchased a house next door to the Hayes residence
in 1971. Some time during that decade, defendant planted a birch
tree in a strip of grass between the two properties. In July 2000,
the Hayes hired a surveyor to mark the property line in order to
erect a fence and plant a hedgerow. The surveyor placed stakes
along the property line, which indicated that the birch tree was
actually planted on the Hayes' property. Defendant removed the
stakes and in September 2000 sent a letter to his neighbors stating
he had acquired the property around the birch tree by adverse
possession and that if the Hayes insisted on erecting the fence on
that property, he would file a civil lawsuit.
However, defendant, in July 2000, had recorded a deed
purporting to convey his interest in his property to his children.
At no time did Rogers inform the Hayes of this purported transfer.
When the Hayes, through counsel, challenged defendant's claim of
adverse possession, noting the deed to his children, defendantresponded that it was, in fact, his children who were claiming
adverse possession and that he was acting as their attorney. Not
only had defendant's children not made any claim of adverse
possession, they were unaware of the conveyance of the property to
them and had not authorized defendant to act as their attorney.
In the Hayes' subsequent quiet title action, after receiving
an answer from defendant's children denying they were making any
claim of adverse possession, the Hayes amended their complaint to
include defendant and properly served him with the summons and
complaint. Defendant, nevertheless, filed a motion to dismiss the
suit based upon insufficiency of process and service of process.
The trial court in that case denied defendant's motion and ordered
him sanctioned under Rule 11 of the Rules of Civil Procedure for
filing the motion to dismiss for improper purposes.
(See footnote 1)
Flanagan Matter
In October 1999, Yolanda Flanagan contacted defendant about
representing her regarding problems with a residential property
sales contract. Flanagan had contracted to sell real property to
a Michael Assad, in which the mortgage on the property was to be
left in Flanagan's name until closing, but paid by Assad. Assad
subsequently failed to make the required payments.
Flanagan told defendant that her primary objectives were
selling the property and being free and clear of it, and ensuring
the mortgage holder did not foreclose on the property. Defendantadvised Flanagan that Assad would never qualify for a mortgage and
that she should file a breach of contract action against him.
Assad did qualify for a mortgage and Assad's attorney scheduled a
closing to consummate the sale of the property. Defendant did not
respond to telephone calls or letters sent to him by Assad's
attorney about the closing. After receiving these letters and
phone calls, defendant sent a complaint to Flanagan for her
verification, without informing her that Assad had qualified for a
mortgage or that a closing date had been set.
The closing date was rescheduled, again without Flanagan being
informed and Flanagan returned the verified complaint to defendant,
who continued to insist that she pursue the breach of contract
action. The lawsuit was filed and events continued along the same
pattern: the closing would be rescheduled and defendant would fail
to inform Flanagan. Ultimately, Flanagan discovered from other
sources that a closing date had been set and that Assad had
qualified for a mortgage, but defendant dismissed those reports
advising Flanagan to proceed with the lawsuit. When Flanagan later
asked how the suit was proceeding, and defendant told her Assad had
not yet been served with the complaint, Flanagan insisted the
lawsuit be dropped and the sale consummated. Defendant replied
that he “didn't do closings.” Defendant terminated his
representation and demanded that Flanagan pay him $1,425.00 in
addition to the flat fee Flanagan had already paid. The DHC found
this would have resulted in defendant collecting twice for services
for which he had already been paid, and at an inflated hourly rate
of $180.00 per hour. Based on these findings, the DHC concluded that defendant's
conduct constituted grounds for discipline. The Commission further
found as aggravating factors: prior disciplinary offenses;
dishonest or selfish motive; a pattern of misconduct; multiple
offenses; submission of false evidence, false statements, or other
deceptive practice during the disciplinary process; refusal to
acknowledge the wrongful nature of the conduct; and, substantial
experience in the practice of law. The DHC found that the
remoteness of defendant's prior disciplinary offenses mitigated
that aggravating factor, but that the aggravating factors
substantially outweighed the one mitigating factor.
The issues presented by defendant on appeal to this Court are
whether (I) the DHC constitutes an illegal and improper tribunal in
violation of defendant's due process and equal protection rights;
(II) the DHC properly denied his motion for separate hearings;
(III) the DHC improperly joined for trial two separate complaints
filed more than ninety days apart; (IV) the DHC erred in allowing
evidence during the disciplinary phase of the hearing (A) of two
prior misdemeanor convictions, and (B) of a prior letter of warning
from the State Bar; (V) use of the aggravating factor that
defendant failed to acknowledge the wrongfulness of his actions
violates defendant's constitutional rights; (VI) the DHC erred in
awarding costs assessed against defendant; (VII) N.C. Gen. Stat. §
84-28(h), requiring appeal from DHC decisions directly to this
Court is facially unconstitutional as it denies defendant an appeal
to the state superior courts.
I.
[1] Defendant first contends that the composition of the DHC
results in a trial in front of a biased decision maker, as the
members of the DHC are “hand-picked” by the State Bar, the
plaintiffs in the case against him, denying defendant due process
of law. Instead, he maintains, he should have had a hearing before
an administrative law judge under the Administrative Procedures
Act, N.C. Gen. Stat. § 150B-1,
et seq. (2003) (“the APA”). We
conclude these contentions are without merit.
A license to practice law constitutes a property interest that
cannot be taken away without due process of law.
In re Lamm, 116
N.C. App. 382, 385, 448 S.E.2d 125, 128 (1994),
per curiam aff'd,
341 N.C. 196, 458 S.E.2d 921 (1995). “The fundamental premise of
procedural due process protection is notice and the opportunity to
be heard.”
Peace v. Employment Sec. Comm'n, 349 N.C. 315, 322, 507
S.E.2d 272, 278 (1998). Furthermore, “'[a] fair trial in a fair
tribunal is a basic requirement of due process.'”
Crump v. Bd. of
Education, 326 N.C. 603, 613, 392 S.E.2d 579, 584 (1990) (quoting
In re Murchinson, 349 U.S. 133, 136, 99 L. Ed. 942, 946 (1955)).
Defendant's contention that the DHC is “hand-picked” by the
State Bar is flawed. The DHC is actually selected by a combination
of the State Bar Council, the Governor, and the Legislature. At
the time of defendant's hearing, the State Bar Council, which is
the governing body of the State Bar,
see N.C. Gen. Stat. § 84-17
(2003), selected the ten lawyer members of the DHC, the Governor
selected three non-lawyer members and the Legislature selected twonon-lawyer members,
see N.C. Gen. Stat. § 84-28.1(a) (2001).
(See footnote 2)
The
Chair of the DHC then assigns DHC members to the individual hearing
committees, which hear complaints.
See 27 N.C.A.C. 1B.0108(a)(2)
(July 2003). Thus, the State Bar, itself, has no role in selecting
the DHC or the particular hearing committee chosen to hear
defendant's case. Furthermore, neither the DHC nor the particular
hearing committee receives any compensation from the State Bar.
Instead, by statute, the DHC members receive the same per diem and
travel expenses as authorized for members of State Commissions,
see
N.C. Gen. Stat. § 84-28.1(c), which are paid from the funds of the
State Treasury,
see N.C. Gen. Stat. § 138-5 (2003). Thus, we
reject defendant's argument that he has been deprived of a fair
tribunal in violation of due process by the selection process of
DHC members.
[2] We also reject defendant's contention that he should be
entitled to a hearing before an administrative law judge under the
APA.
(See footnote 3)
The APA is a statute of general applicability, and does not
apply where the Legislature has provided for a more specific
administrative procedure to govern a state agency.
See Empire
Power Co. v. N.C. Dept. of E.H.N.R., 337 N.C. 569, 586-87, 447S.E.2d 768, 778-79 (1994). The Legislature has expressly and
specifically given the State Bar Council and DHC the power to
regulate and handle disciplinary proceedings of the State Bar.
See
N.C. Gen. Stat. § 84-28 (2003) (powers of the State Bar Council to
discipline attorneys); N.C. Gen. Stat. § 84-28.1 (disciplinary
hearing commission powers). As such, defendant is not entitled to
application of the APA to his State Bar disciplinary proceeding in
this case.
II.
[3] Defendant next argues it was error for the DHC to deny his
motions seeking to sever the Hayes matter and the Flanagan matter
into separate hearings. Proceedings before a hearing committee are
governed “as nearly as practicable” by the North Carolina Rules of
Civil Procedure. 27 N.C.A.C. 1B.0114(n) (July 2003). The chair of
the hearing committee has the power to dispose of any non-
dispositive pretrial motions. Under Rule 42(b) of the North
Carolina Rules of Civil Procedure, a trial court may order separate
trials of claims in the furtherance of convenience or to avoid
prejudice.
See N.C. Gen. Stat. § 1A-1, Rule 42(b) (2003). The
decision to sever a trial is left to the sound discretion of the
trial court.
See Wallace v. Evans, 60 N.C. App. 145, 149, 298
S.E.2d 193, 196 (1982).
In this case, defendant contends that he was prejudiced by the
failure to sever the claims due to the “'spill-over' effect” of his
culpability in one case to the other. The DHC, however, expressly
concluded that it “made its findings and conclusions regarding the
second claim for relief involving Flanagan independent of itsfindings and conclusions regarding the first claim for relief
involving the Hayeses.” Defendant has not assigned error to this
conclusion. We therefore conclude there was no abuse of discretion
on the part of the DHC in denying defendant's severance motion.
III.
[4] Defendant also contends that the DHC erred in combining
two separate cases for trial that were filed more than ninety days
apart. The chairperson of the DHC has the authority to consolidate
two or more cases filed within ninety days of each other. 27
N.C.A.C. 1B.0108(a)(5). In this case, however, the chair of the
DHC did not consolidate two separate cases, instead the State Bar
filed an amended complaint in a single case to add a second claim
for relief and, therefore, 27 N.C.A.C. 1B.0108(a)(5) is
inapplicable.
IV.
Defendant next asserts that the trial court erred in the
dispositional phase of the hearing by not granting his motion
in
limine to exclude evidence of his twenty-year-old prior convictions
under Rule 609 of the Rules of Evidence and by considering a letter
of warning issued to defendant in 1998.
A.
[5] Rule 609 allows for evidence of a witness's prior
convictions to be used to attack the credibility of the witness.
See N.C. Gen. Stat. § 8C-1, Rule 609(a) (2003). With certain
limited exceptions, evidence of a conviction that is more than ten
years old may not be used to impeach the witness.
See N.C. Gen.
Stat. § 8C-1, Rule 609(b). In this case, defendant contends theintroduction into evidence of two misdemeanor convictions from
approximately twenty years earlier, as a result of which
defendant's law license was suspended, was error in violation of
Rule 609(b).
The evidence of defendant's prior convictions was, however,
not admitted as impeachment evidence, but rather as evidence of an
aggravating factor to defendant's misconduct in the present case.
The DHC hearing committee has the authority to consider aggravating
factors in imposing discipline, including the existence of prior
disciplinary offenses.
See 27 N.C.A.C. 1B.0114(w)(1)(A). The
State Bar was not introducing evidence that defendant's law license
was judicially suspended as a result of two misdemeanor convictions
to impeach his credibility, but rather as evidence of a factor in
aggravation to be considered by the hearing committee in setting
defendant's discipline. Thus, Rule 609 is inapplicable, and the
evidence of defendant's prior convictions and suspension of his law
license was admissible as evidence of an aggravating factor.
B.
[6] Defendant contends that the DHC should not have been
allowed to consider a letter of warning issued to him on 25 July
1998. The complaint in this case was filed 25 July 2001.
Defendant contends that admission of this letter violated the DHC's
rule that a letter of warning may only be disclosed to the
committee if the letter was issued within three years of the
present complaint. Defendant specifically argues that as three
years is the equivalent of 1,095 days, because the intervening year
2000 was a leap year, 1,096 days had actually passed between theissuance of the letter of warning and the filing of the complaint.
We reject this argument. It is apparent from the record that the
complaint in this case was filed three years to the day after the
issuance of the letter of warning. Thus, the letter of warning was
properly considered in determining disciplinary sanctions against
defendant.
Defendant alternatively argues that even if the letter of
warning was properly admitted as evidence of an aggravating factor
in the claim contained in the original 25 July 2001 complaint, it
should not be considered as an aggravating factor in the Hayes
matter, which was the additional claim alleged in the amended
complaint filed by the State Bar on 6 June 2002. Defendant,
however, did not raise this argument below, and has therefore
waived it on appeal.
See N.C.R. App. P. 10(b)(1).
V.
[7] Defendant also contends that the aggravating factor that
he refused to acknowledge the wrongful nature of his conduct is
unconstitutional because it punishes him for exercising his right
to a trial. We disagree.
Initially, we note that the stated purpose of the imposition
of sanctions on attorneys found guilty of misconduct is not
punitive, but rather to protect the public, the courts, and the
legal profession.
See 27 N.C.A.C. 1B.0101 (July 2003).
Consideration of a defendant's remorse and recognition of his
wrongful conduct is highly relevant in determining the sanction
that should be imposed to best protect the public, the courts, and
the legal profession from continued misconduct. Furthermore, nothing in the rules of the DHC indicates that
this aggravating factor has as its purpose to punish a defendant
for exercising his right to a hearing. To the contrary, the rules
of the DHC presume that only following the establishment of
misconduct, does the committee consider evidence both in
aggravation and mitigation, including failure to acknowledge the
wrongfulness of the conduct or remorse.
See 27 N.C.A.C.
1B.0114(w). Thus, after being found guilty of misconduct, a
defendant still has the opportunity to acknowledge that his conduct
was indeed wrongful. Moreover, defendant in this case has failed
to make any showing in the record that the use of the aggravating
factor was unconstitutionally applied to him by the committee.
VI.
[8] Next defendant asserts it was error to assess deposition
expenses as costs against him. We disagree. A trial court has
discretion to assess necessary deposition expenses as costs.
See
Alsup v. Pitman, 98 N.C. App. 389, 390-91, 390 S.E.2d 750, 751
(1990). In this case, we discern no such abuse of discretion.
See
Lewis v. Setty, 140 N.C. App. 536, 540, 537 S.E.2d 505, 507-08
(2000).
VII.
[9] Defendant finally contests the facial constitutionality of
N.C. Gen. Stat. § 84-28(h) providing for direct appeal from DHC
determinations to this Court. Defendant argues this is in
violation of the procedures under the APA, and therefore deprives
him of due process by bypassing review by a superior court judge as
required under the APA. As we have already noted, however, theprovisions of the APA are generally inapplicable to the procedure
of a DHC hearing and subsequent appeals because the Legislature has
provided for a specific procedure to be followed rather than the
general mandates of the APA. Moreover, “'[n]o appeal lies from an
order or decision of an administrative agency of the State or from
judgments of special statutory tribunals whose proceedings are not
according to the course of the common law, unless the right is
granted by statute.'”
Empire Power Co., 337 N.C. at 586, 447
S.E.2d at 778 (quoting
In re Assessment of Sales Tax, 259 N.C. 589,
592, 131 S.E.2d 441, 444 (1963)). Thus, defendant has no right of
appeal from the DHC decision, except to this Court pursuant to the
express provision of N.C. Gen. Stat. § 84-28(h).
Affirmed.
Judges WYNN and TYSON concur.
Footnote: 1