1. Attorneys_disbarment_subsequent collateral attack
Plaintiff's 2003 complaint challenging his 1998 disbarment was a collateral attack upon
a final judgment and was properly dismissed.
2. Attorneys_disbarment_State Bar_court of competent jurisdiction_collateral attack
Plaintiff's 2003 challenge to his 1998 disbarment was properly dismissed even though
plaintiff argued that the State Bar is not a court of competent jurisdiction and that he should be
allowed to seek relief on his constitutional arguments in superior court. The North Carolina
State Bar had authority to discipline plaintiff for his violations of the Rules of Professional
Conduct and plaintiff had a right of appeal to the Court of Appeals, of which he did not avail
himself. His claims are a collateral attack upon a final judgment properly entered.
3. Attorneys_disbarment_subsequent case not retroactive
Even assuming plaintiff's 2003 challenge to his 1998 disbarment is factually similar to
N.C. State Bar v. Talford, 356 N.C. 626, nothing in that opinion indicates that it is retroactive.
Irving Joyner for plaintiff-appellant.
Deputy Counsel A. Root Edmonson for defendant-appellee.
HUNTER, Judge.
Theaoseus T. Clayton, Jr. (“plaintiff”) appeals the dismissal
of his complaint against the North Carolina State Bar pursuant to
N.C.R. Civ. P. 12(b)(1). Plaintiff also contends the trial court
erroneously denied his motion for a restraining order. After
careful review, we conclude the trial court properly dismissed
plaintiff's complaint. Plaintiff became licensed to practice law in North Carolina in
February 1987, however, in February 1998, plaintiff was disbarred.
The Disciplinary Hearing Commission of the North Carolina State Bar
found and concluded plaintiff had violated several rules of
professional conduct regarding the handling of client funds and a
trust account, and had failed to adequately supervise an employee
that had embezzled client funds. Plaintiff did not appeal his
disbarment.
On 5 August 2003, plaintiff filed a complaint against the
North Carolina State Bar. In the complaint, plaintiff alleged the
disciplinary hearing committee's decision was contrary to the
decision by our Supreme Court in N.C. State Bar v. Talford, 356
N.C. 626, 576 S.E.2d 305 (2003), which was decided five years after
plaintiff was disbarred. In the complaint, plaintiff alleged the
decision to disbar plaintiff was illegal, arbitrary, capricious,
and deprived him of Due Process Protections guaranteed under the
United States and North Carolina Constitutions. Plaintiff also
alleged the disciplinary hearing committee failed to find that the
sanction of disbarment was the only one available to correct the
plaintiff's conduct, to protect his clients, the legal profession,
or the public. Plaintiff also filed simultaneously with the
complaint a motion for a temporary restraining order and
preliminary injunction. The motion was denied on 14 August 2003.
The North Carolina State Bar moved to dismiss pursuant to
N.C.R. Civ. P. 12(b)(1) on the grounds that the trial court lacked
subject matter jurisdiction. The trial court granted the motion to
dismiss on 24 March 2004. Plaintiff appeals. [1] Plaintiff first contends the trial court had subject
matter jurisdiction over this action, and therefore the trial court
erroneously dismissed his complaint. Specifically, plaintiff
contends the superior court has subject matter jurisdiction to hear
declaratory judgment actions that present constitutional issues and
seek injunctive relief. Pursuant to N.C. Gen. Stat. § 7A-245, the
superior court is the proper division in which civil actions
seeking declaratory or injunctive relief or the enforcement of
constitutional rights should be filed. However, in this case, the
issue is not whether the superior court can hear this type of
lawsuit, the issue is whether plaintiff is permitted to bring this
claim on the particular facts of this case.
Plaintiff's civil complaint is a collateral attack upon the
order of discipline imposed against plaintiff in 1998. “'A
collateral attack is one in which a plaintiff is not entitled to
the relief demanded in the complaint unless the judgment in another
action is adjudicated invalid.'” Thrasher v. Thrasher, 4 N.C. App.
534, 540, 167 S.E.2d 549, 553 (1969) (citation omitted). “A
collateral attack on a judicial proceeding is 'an attempt to avoid,
defeat, or evade it, or deny its force and effect, in some
incidental proceeding not provided by law for the express purpose
of attacking it.'” Regional Acceptance Corp. v. Old Republic
Surety Co., 156 N.C. App. 680, 682, 577 S.E.2d 391, 392 (2003)
(citation omitted). “North Carolina does not allow collateral
attacks on judgments.” Id. As plaintiff did not appeal the
February 1998 order of discipline which ordered his disbarment, it
became a final order not subject to collateral attack. See CBPResources, Inc. v. Mountaire Farms of N.C., Inc., 134 N.C. App.
169, 171, 517 S.E.2d 151, 154 (1999) (citation omitted) (stating
“'[a] final judgment is one which disposes of the cause as to all
the parties, leaving nothing to be judicially determined between
them in the trial court'”).
[2] Plaintiff also argues he should be allowed to seek
declaratory and injunctive relief on his constitutional arguments
in superior court because the North Carolina State Bar is not a
court of competent jurisdiction. Plaintiff's argument obscures the
fact that he is not allowed to present his claims in superior court
because his claims are a collateral attack upon a final judgment
properly entered by the North Carolina State Bar. Under N.C. Gen.
Stat. § 84-28(a) (2003), “[a]ny attorney admitted to practice law
in this State is subject to the disciplinary jurisdiction of the
[Council of the North Carolina State Bar] under such rules and
procedures as the Council shall adopt . . . .” If an attorney is
disciplined, “[t]here shall be an appeal of right from any final
order imposing admonition, reprimand, censure, suspension, stayed
suspension, or disbarment upon an attorney . . . to the North
Carolina Court of Appeals.” N.C. Gen. Stat. § 84-28(h). Thus, the
North Carolina State Bar had authority to discipline plaintiff for
his violations of the Rules of Professional Conduct, and plaintiff
had a right of appeal to this Court, of which he did not avail
himself.
[3] Essentially, plaintiff seeks review of his disbarment in
light of our Supreme Court's 2003 opinion in N.C. State Bar v.
Talford, 356 N.C. 626, 576 S.E.2d 305. In Talford, the SupremeCourt of North Carolina held that “in order to impose a more severe
sanction under [N.C. Gen. Stat. § 84-28(c)]--censure, suspension,
or disbarment--an attorney's misconduct must include attending
circumstances that demonstrate: (1) a risk of significant
potential harm, and (2) that the chosen sanction is necessary in
order to protect the public.” Id. at 641, 576 S.E.2d at 315. In
Talford, because the disciplinary hearing committee's order
“fail[ed] to provide either pertinent findings of fact or
conclusions of law that address[ed] the statutory factors affecting
its choice of discipline, its sanction-related findings and
conclusions [could not] serve as adequate support for its decision
to disbar [the] defendant.” Id. at 642, 576 S.E.2d at 315. The
discipline-related findings of fact and conclusions of law must
“address . . . why the sanction of disbarment is required in order
to provide protection of the public.” Id. at 641, 576 S.E.2d at
315.
Plaintiff argues the situation in Talford is similar to his
case. In Talford, our Supreme Court indicated the
pertinent facts [were] (1) defendant was
investigated by the DHC for allegedly
mismanaging his client trust accounts; (2) the
DHC, after conducting a hearing, found that
the evidence presented showed that defendant
had indeed mismanaged those accounts by
“fail[ing] to maintain proper trust records,”
“fail[ing] to preserve funds in a fiduciary
capacity,” failing to make timely deposits and
dispersals of client funds, and “commingl[ing]
client and personal funds”; and (3) there was
no evidence presented that demonstrated or
even intimated that any client or creditor of
defendant had suffered economic losses as a
consequence of defendant's recalcitrant
bookkeeping practices.
Id. at 635, 576 S.E.2d at 311. Even assuming plaintiff's case is
factually similar to Talford, nothing in the Talford opinion
indicates it is retroactive to cases finalized prior to the
decision in Talford.
Accordingly, we conclude the trial court properly dismissed
plaintiff's complaint against the North Carolina State Bar. As we
have concluded plaintiff's lawsuit was properly dismissed, we do
not reach his remaining issue.
Affirmed.
Judges CALABRIA and JACKSON concur.
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