Preview:

THE DISCIPLINARY HEARING COMMISSION OF THE NORTH CAROLINA
STATE BAR v. REGINALD FRAZIER
No.  72PA01]
(Filed  18 December  2001)
Attorneys-discipline of disbarred attorney-authority of State Bar
The Disciplinary Hearing Commission of the North Carolina
State Bar did not have the authority to discipline a disbarred
attorney because the disciplinary powers of the DHC are
extinguished after disbarment.    The contempt powers of the DHC
were not examined in this case; however, it was noted that any
such powers should be exercised with the utmost prudence.    Under
N.C.G.S.  §  84-37(a), the State Bar may investigate charges or
complaints of unauthorized practice of law and seek an injunction
in Superior Court and, further, may bring allegations of
unauthorized practice to the attention of the district attorney,
whose duty under N.C.G.S.  §  84-7 is not to be ignored.
On discretionary review pursuant to N.C.G.S.  §  7A-31 of a
unanimous decision of the Court of Appeals,  141 N.C. App.  514,
540 S.E.2d  758  (2000), reversed and remanded an order entered
3 September  1999 by Jones  (Abraham Penn), J., in Superior Court,
Wake County.    Heard in the Supreme Court  11 September  2001.
Carolin Bakewell and A. Root Edmonson for plaintiff-
appellee.
Michaux & Michaux, P.A., by Eric C. Michaux, for defendant-
appellant.
BUTTERFIELD, Justice.
The principle issue raised for review is whether the
Disciplinary Hearing Commission of the North Carolina State Bar
(DHC), plaintiff herein, may discipline a disbarred attorney who
has allegedly engaged in the unauthorized or unlawful practice of
law.
Defendant was disbarred from the practice of law on
6 November  1989.    Although defendant has challenged the order of




disbarment on several occasions, he has not been reinstated to
the practice of law.    In  1994, the DHC received notice that
defendant had been engaged in the unauthorized or unlawful
practice of law.    The DHC presented the information to the Craven
County district attorney, with no action being taken by that
office.    The DHC then moved to have defendant held in criminal
contempt for violation of the  6 November  1989 disbarment order.
Following plaintiff’s presentation of evidence, defendant moved
to dismiss.    In a order signed  18 February  1994, the trial court
granted defendant’s motion to dismiss.    The DHC did not appeal
this ruling.    In August  1994, the DHC received new allegations
that defendant was continuing to practice law and had placed an
advertisement for legal services in the local newspaper.    The DHC
instituted a show cause proceeding.    Defendant filed a series of
motions in September, November, and December of  1994 alleging
indigency, seeking appointment of counsel, attempting to
discharge appointed counsel, seeking a continuance, and
attempting to remove the contempt proceeding to federal court.
Defendant did not appear at the DHC hearing on  19 December or
20 December  1994.
On  20 January  1995, the DHC issued a judgment of contempt
finding defendant guilty of sixteen counts of contempt,
sentencing him to consecutive sentences of thirty days in jail
for each count, and imposing a fine of  $200.00 for each count.
Upon application of the DHC, the trial court issued an arrest
warrant for defendant on  23 January  1995.    Defendant was arrested
and taken to the Craven County jail on  26 January  1995 with no




hearing before any judicial official.    In his petition for
discretionary review, defendant explains that defendant was
transported to the Wake County jail on  30 January  1995 and
subsequently transferred to the North Carolina Department of
Correction.
Defendant petitioned for a writ of habeas corpus in the
United States District Court for the Eastern District of North
Carolina.    After a hearing in November  1995, the district judge
released defendant pending a final ruling in the habeas
proceeding.    On  21 November  1996, the district judge issued a
writ of habeas corpus releasing defendant and directing the DHC
to notify defendant of his appellate rights in the matter.    In
response to the federal court order, plaintiff informed defendant
of his right of appeal to the Superior Court, Wake County.
Defendant gave notice of appeal and asserted motions to dismiss.
The trial court conducted a hearing and granted defendant’s
motions to dismiss the DHC contempt proceeding and declared the
20 January  1995 DHC order null and void.    The DHC then appealed
the trial court’s ruling to the Court of Appeals.
The Court of Appeals examined two issues:                              (1) whether
defendant was subject to the contempt power of the DHC even
though he was disbarred, and  (2) whether the DHC can lawfully
exercise contempt power.    The Court of Appeals held that both
issues had been decided in the affirmative in Frazier v. Murray,
135 N.C. App.  43,  519 S.E.2d  525  (1999), appeal dismissed,  351
N.C.  354,  542 S.E.2d  209  (2000), and that the panel was bound by
the Frazier holding.    In concluding that defendant was subject to




the contempt power of the DHC even though he was disbarred, the
Court of Appeals stated that it was bound by the following from
Frazier:
“The Disciplinary Hearing Commission clearly had
authority to discipline and disbar plaintiff.                              [N.C.
Gen. Stat.  §§  84-28,  84-28.1  (1995).]    N.C. Gen. Stat.
§  84-28.1(b) authorizes the Disciplinary Hearing
Commission to  ‘hold hearings in discipline, incapacity
and disability matters, to make findings of fact and
conclusions of law after such hearings, and to enter
orders necessary to carry out the duties delegated to
it by the council.’                                                        [N.C. Gen. Stat.  §  84-28.1(b).]”
Disciplinary Hearing Comm’n v. Frazier,  141 N.C. App.  514,
518-19,  540 S.E.2d  758,  761  (2000)  (quoting Frazier v. Murray,
135 N.C. App. at  49,  519 S.E.2d at  529).    We reverse.
Defendant comes before us on appeal as a disbarred attorney
who has allegedly engaged in the unauthorized or unlawful
practice of law.    In this appeal, defendant does not challenge,
nor does he admit, the allegations that he has engaged in the
unauthorized or unlawful practice of law.    Rather, defendant
alleges that the Court of Appeals erred in holding that the DHC
had the authority to discipline defendant and that the DHC had
the power to hold defendant in criminal contempt.    We agree.
The instant case illustrates the confusion that has
surrounded the jurisdiction of the North Carolina State Bar over
disbarred attorneys.    The government of the North Carolina State
Bar is vested in the Council, as set out in N.C.G.S.  §  84-17.
The Council is vested with the authority to regulate the
professional conduct of attorneys.    N.C.G.S.  §  84-23  (1999).    The
authority of the North Carolina State Bar to disbar attorneys
under N.C.G.S.  §  84-28 is not at issue here.    The threshold issue




is whether the North Carolina State Bar retains jurisdiction over
a disbarred attorney.    We believe that there is no authority for
the DHC’s actions to discipline defendant and find him in
criminal contempt.
Neither N.C.G.S.  §  84-28.1 nor the powers vested in the
Council grant any authority to discipline disbarred attorneys.
The DHC  “is authorized to hold hearings in discipline, incapacity
and disability matters, to make findings of fact and conclusions
of law after such hearings, and to enter orders necessary to
carry out the duties delegated to it by the council.”    N.C.G.S.  §
84-28.1(b)  (1999).    There is no authorization for the DHC to
discipline a disbarred attorney for the unauthorized or unlawful
practice of law.    The purpose of the DHC is to discipline only
those attorneys who are members of the North Carolina State Bar.
By its own determination, the North Carolina State Bar has
severed the ties that previously bound the disbarred attorney to
the Bar.    After disbarment, the disciplinary powers of the North
Carolina State Bar over a disbarred attorney are extinguished.
Upon disbarment of defendant, the DHC lacked any authority to
discipline defendant or to find him in contempt.
Having determined that the DHC did not have authority over
defendant, we need not examine the contempt powers of the DHC.
However, we note that the future exercise of any contempt powers
that the legislature may have vested in the DHC, absent
clarifying amendment of the statutes, should be exercised with
the utmost prudence.
While the DHC does not have the authority to discipline a




disbarred attorney or find a disbarred attorney in contempt, the
DHC does have the means to help prevent the unauthorized or
unlawful practice of law in this state.    Under N.C.G.S.  §  84-37,
the North Carolina State Bar may investigate  “any charges or
complaints of unauthorized or unlawful practice of law.”
N.C.G.S.  §  84-37(a)  (1999).    The North Carolina State Bar, after
its investigation may seek a temporary injunction to restrain a
defendant from the unauthorized or unlawful practice of law.
N.C.G.S.  §  84-37(b).    The North Carolina State Bar may also bring
an action in its name for a final judgment in its favor that
“shall perpetually restrain the defendant or defendants from the
commission or continuance of the act or acts complained of.”
N.C.G.S.  §  84-37(b).    Such actions shall be brought in the
“superior court of any county in which the acts constituting
unauthorized or unlawful practice of law are alleged to have been
committed or in which there appear reasonable grounds that they
will be committed or in the county where the defendants in the
action reside or in Wake County.”    N.C.G.S.  §  84-37(c).    If a
defendant engages in the unauthorized or unlawful practice of law
after a final judgment to perpetually restrain the defendant from
the unauthorized or unlawful practice of law, contempt
proceedings remain in the courts in accordance with the laws of
this state.
The North Carolina State Bar, in addition to conducting an
investigation and seeking injunctive relief, may bring
allegations of the unauthorized or unlawful practice of law to
the attention of a district attorney.    N.C.G.S.  §  84-7 provides:




The district attorney of any of the superior
courts shall, upon the application of any member of the
Bar, or of any bar association, of the State of North
Carolina, bring such action in the name of the State as
may be proper to enjoin any such person, corporation,
or association of persons who it is alleged are
violating the provisions of G.S.  84-4 to  84-8, and it
shall be the duty of the district attorneys of this
State to indict any person, corporation, or association
of persons upon the receipt of information of the
violation of the provisions of G.S.  84-4 to  84-8.
N.C.G.S.  §  84-7(1999).    This statute unambiguously states that
the process of seeking criminal sanctions for the unlawful
practice of law are under the exclusive control of district
attorneys.    The duty imposed on district attorneys by N.C.G.S.  §
84-7 is not to be ignored.
Defendant requests this Court to apply N.C. R. App. P.  2 and
reconsider our dismissal of Frazier v. Murray, in which he failed
to perfect his appeal.    We decline to do so.
For the foregoing reasons, we conclude that the Court of
Appeals erred in reversing the order of the Superior Court.
REVERSED.
Justice EDMUNDS did not participate in the consideration or
decision of this case.

Download 72pa01-9.pdf

South Carolina Law