North Carolina: Trial Court Can Impose Disability Suspension

The North Carolina Court of Appeals upheld the inherent authority of a trial court to impose a disability suspension. 

The attorney had two matters scheduled in the same courthouse.

One involved responding to a summary judgment motion; the other was a custody dispute.

One of the judges suspected he was impaired. The two judges discussed the matter and decided that the summary judgment matter had priority.

The summary judgment judge continued the matter over the attorney’s denial that he was impaired.

Once in chambers, “[i]t became readily apparent to [Judge Shirley] that [Respondent] was impaired” because his pupils were dilated, his speech was slurred, and he did not have “a rational thought process.” When asked by Judge Shirley if he was on any medication or other mind-altering substances, Respondent admitted he took antidepressants, as he suffered from an anxiety disorder and depression, but adamantly denied he was impaired. Based on Respondent’s condition, Judge Shirley informed Respondent that he believed Respondent was impaired and unable to represent his client, and that he intended to continue the hearing to the following week.

The custody judge

Upon leaving Judge Shirley’s chambers, Respondent returned to Judge Dunston’s courtroom. Judge Dunston informed Respondent that she would not allow him to proceed with the custody hearing and asked Respondent if he would submit to an examination by a drug recognition expert (DRE). Respondent initially agreed to the DRE examination. However, when the DRE arrived, Respondent stated he was embarrassed and wanted to leave, and refused to submit to the DRE examination. Thereafter, Respondent left.

The rescheduled summary judgment hearing did not allay the judge’s concerns

Once in chambers, Judge Shirley expressed his concerns regarding Respondent’s behavior on 29 March 2018, which he believed amounted to contempt of court. Judge Shirley also informed Respondent that he believed Respondent was impaired on 6 April 2018 as well. Based on these concerns, Judge Shirley presented Respondent with a draft Motion to Show Cause for Contempt and told Respondent he would not file this Motion if Respondent would voluntarily seek evaluation and treatment through the Lawyer Assistance Program (LAP). As a further condition, Judge Shirley required Respondent sign a release allowing the LAP to report Respondent’s compliance status to Judge Shirley. Thereafter, Respondent agreed to Judge Shirley’s request and signed the release (LAP Agreement).

But

At 4:37 a.m. on 2 May 2018, Respondent sent an email to Kellie Myers revoking the LAP Agreement and declaring it “null and void,” contending he was initially coerced into signing the LAP Agreement. Respondent also sent an email to the Eastern Clinical Coordinator of the LAP revoking the LAP Agreement.

Practice pointer : Do not send a consequential email at 4:37 a.m. The same principle would apply to tweets.

As a result a contempt hearing was held

On 1 June 2018, a hearing on the Show Cause Order came on before Wake County Senior Resident Superior Court Judge Paul C. Ridgeway (Judge Ridgeway). Respondent attended this hearing and represented himself pro se. At the end of the day, Judge Ridgeway adjourned the hearing and notified Respondent that the hearing would resume on 6 June 2018. However, Respondent failed to appear on 6 June 2018 when the hearing resumed. At the conclusion of the 6 June 2018 hearing, Judge Ridgeway took the matter under advisement, and on 8 June 2018, Judge Ridgeway entered the Disability Order transferring Respondent to disability inactive status.

Thus this appeal.

The court here rejected his attacks on the fact-finding. In particular, it concluded that he had voluntarily signed the LAP agreement. 

As to subject matter jurisdiction

Although we have found no case addressing the trial court’s authority with regard to placing attorneys on disability inactive status, a trial court’s inherent authority to regulate attorneys before it must also include the authority to place an attorney on disability inactive status under appropriate circumstances. Just as our trial courts have the inherent authority to impose sanctions upon attorneys appearing before them, there is no question that a superior court, as part of its inherent power to manage its affairs, to see that justice is done, and to see that the administration of justice is accomplished as expeditiously as possible, has the authority to transfer an attorney to disability inactive status.

Conclusion

Respondent essentially argues these Conclusions are not supported by the Findings because (1) the Findings are not supported by competent evidence and (2) Respondent had provided a medical opinion to the Deputy Counsel for the State Bar, who had been appointed to prosecute this matter, on 5 June 2018 that Respondent was competent to practice law. With regard to the 5 June 2018 medical opinion, Respondent failed to appear at the 6 June 2018 hearing and did not present any evidence of this medical opinion throughout the two hearings. Because this 5 June 2018 medical opinion was not admitted, the trial court did not err by failing to consider this opinion.

As for Respondent’s remaining argument, we have already determined the Findings were supported by competent evidence, and we hold these Findings support the trial court’s Conclusions. Specifically, the Record shows all six of the State’s witnesses testified to believing Respondent was impaired on two separate occasions, 29 March 2018 and 6 April 2018. Both Judges Dunston and Shirley testified they believed it was in Respondent’s best interest, and the interest of the proper administration of justice, that he should be placed on disability inactive status until he has been evaluated and treated for his impaired condition. Therefore, we hold the trial court’s Conclusions of Law are supported by the Findings of Fact and the trial court did not abuse its discretion by placing Respondent on disability inactive status.

This decision reflects a significant recognition of a trial court’s inherent authority to impose a statewide prohibition on an attorney’s practice.

North Carolina lawyers be forewarned. 

The Bar’s procedures for a disability suspension are linked here. 

j) No suspension of an attorney’s license shall be allowed without notice and a hearing unless

(1) the State Bar files a petition with supporting affidavits, as provided in Rule .0606(a)-(c) above.

(2) the State Bar’s petition and supporting affidavits demonstrate by clear, cogent, and convincing evidence that immediate and irreparable harm, injury, loss, or damage will result to the public, to the lawyer who is the subject of the petition, or to the administration of justice before notice can be given and a hearing had on the petition.

(3) the State Bar’s petition specifically seeks the temporary emergency relief of suspending ex parte the attorney’s license for up to 10 days or until notice be given and a hearing held, whichever is shorter, and the State Bar’s petition requests the court to endorse an emergency order entered hereunder with the hour and date of its entry.

(4) the State Bar’s petition requests that the emergency suspension order expire by its own terms 10 days from the date of entry, unless, prior to the expiration of the initial 10-day period, the court agrees to extend the order for an additional 10-day period for good cause shown or the respondent attorney agrees to an extension of the suspension period.

I have no doubt that many jurisdictions (such as the District of Columbia) would not grant such power to a trial court. (Mike Frisch)