North Carolina State Bar v. Frazier , 62 N.C. App. 172 ( 1983 )

302 S.E.2d 648 (1983)

The NORTH CAROLINA STATE BAR
v.
Reginald L. FRAZIER.

No. 8210NCSB374.

Court of Appeals of North Carolina.

May 17, 1983.

David R. Johnson, Raleigh, for the North Carolina State Bar.

Bowen C. Tatum, Jr., Jacksonville, for defendant-appellant.

JOHNSON, Judge.

I

In his first assignment of error, defendant indirectly challenges the Committee's order by attacking the composition of the State Bar Hearing Commission. Specifically, he contends that the members of the Hearing Commission of the North Carolina State Bar are appointed in violation of the Separation of Powers clause in Article 1, Section 6 of the North Carolina Constitution which reads: "The legislative, executive, and supreme judicial powers of the State government shall be forever separate and distinct from each other."

Membership on the Hearing Commission is statutorily determined by G.S. 84-28.1. This statute provides for a total of fifteen members, ten of whom are required to be members of the State Bar, appointed by the Council of the State Bar. The five remaining members are to be non-lawyers; three of whom are to be appointed by the Governor, one by the Lieutenant Governor and one by the Speaker of the House of Representatives. Defendant challenges the appointment of Hearing Commission members by the Governor, the Lieutenant Governor and the Speaker of the House based on the Supreme Court decision in State ex rel. Wallace v. Bone and Barkalow v. Harrington, 304 N.C. 591, 286 S.E.2d 79 (1982). We find this case to be inapposite.

In Bone, the Supreme Court held that G.S. 143B-283(d), which required four legislators to serve on the Environmental Management Commission (EMC), violated the separation of powers principle of the North Carolina Constitution because the duties of the EMC are administrative or executive, rather than legislative, in nature. We recognize that the State Bar, like the EMC, does not perform a legislative function. Rather, the State Bar has certain regulatory powers, foremost of which is its power to discipline and regulate attorneys under G.S. 84-15 and 84-23. This is where the similarity between Bone and the present case ends. In Bone, legislators were required to serve on the EMC. There is no provision mandating the appointment of legislators to the State Bar Hearing Commission, and defendant has not shown that any members of the legislature actually serve on the Commission. Although the Governor, the Lieutenant Governor and the Speaker of the House make appointments to the Commission, we do not believe, and indeed defendant cites no cases to show, that this alone is sufficient to show a violation of the separation of powers principle. This assignment of error is overruled.

II

Next, defendant maintains that all six of the Hearing Commission's conclusions of law are "legally insufficient."

The appropriate standard for judicial review of a disciplinary hearing is the "whole record" test set out in the Administrative Procedure Act at G.S. 150A-51(5). Under the "whole record" test, the reviewing court is required to consider the evidence which supports the administrative findings and must also consider contradictory evidence. "Under the whole record test there must be substantial evidence to support the findings, conclusions and result. G.S. 150A-51(5). The evidence is substantial if, when considered as a whole, it is such that a reasonable person might accept [it] as adequate to support a conclusion." N.C. State Bar v. DuMont, 304 N.C. 627, 643, 286 S.E.2d 89, 98-99 (1982). Applying this test to the present case, we hold that the findings, conclusions and decision of the Disciplinary Hearing Committee are supported by substantial evidence.

Defendant contends that the Committee's Conclusions of Law 1 and 2 are legally insufficient because defendant had advised the District Court in a letter that he was required to be in Superior Court on 5 November 1979. We do not agree. Conclusion of Law 1, concerning defendant's failure to notify Vierheller of the 5 November hearing, is supported by uncontradicted evidence that Vierheller first learned of the 5 November court date from his wife. Vierheller thereafter had to contact defendant regarding this information. Conclusion of Law 2 is partially supported by uncontradicted evidence (1) that, upon contacting the defendant, Vierheller was told not appear; (2) that defendant filed a voluntary dismissal; and (3) that defendant did not appear. There remains, then, only the question of whether the defendant gave adequate notice to the court of his reasons for not attending. The only evidence that defendant gave such notice was Barbara Evans' testimony about a letter which she neither prepared nor delivered to the court. Obviously, the Hearing Committee did not find her testimony credible. The fact that the court on 5 November ruled on Mrs. Vierheller's counterclaim is evidence that the court did not receive adequate notice from defendant of his reasons for not attending. Under the "whole record" test, we cannot substitute our judgment for the Committee's in choosing between two reasonably conflicting views of the evidence. Boehm v. Board of Podiatry Examiners, 41 N.C.App. 567, 255 S.E.2d 328, cert. denied, 298 N.C. 294, 259 S.E.2d 298 (1979). There is clearly substantial evidence in the record to support the Committee's findings upon which Conclusions of Law 1 and 2 are based.

As to the Committee's Conclusion of Law 3, there is substantial evidence that defendant waited until 14 April 1980 to file a motion to vacate the order, signed 12 March 1980, and that he did not request a hearing on this motion until 27 May 1980. The committee made findings of fact reflecting this evidence, and these findings clearly support this conclusion of law.

The Committee's fourth conclusion of law is also supported by findings which are based on substantial, uncontradicted evidence. The Committee found that notice of appeal was filed on 15 July 1980, which was more than ten days after the 2 July 1980 order was entered. Notice of appeal is required to be filed within ten days of entry of judgment. See Rule 3, Rules of Appellate Procedure; G.S. 1-279. The Committee also found that defendant did not serve notice on opposing counsel and did nothing more to perfect the appeal. These findings are supported by the notice of appeal itself. Defendant attempts to explain the late filing of the notice of appeal by blaming it on an administrative oversight in the operation of his office. This is clearly no excuse for the failure to file notice of appeal in a timely manner.

In its Conclusion of Law 5, the Committee stated that defendant had failed to advise his client of the hearing scheduled for 8 September 1979 and failed to attend that hearing on his client's behalf. (The year 1979 was obviously a typographical error since the only 8 September hearing mentioned in the findings of fact was in 1980). This conclusion is based on the Committee's findings which are supported by the following substantial evidence: Vierheller testified that defendant was present at the 2 July 1980 hearing. The written order signed by the presiding judge on 25 August 1980, for 2 July 1980, provided that the clerk was to place the case on the 8 September 1980 calendar for review. On 27 August 1980, defendant was served by mail with a copy of this order. Finally, Vierheller's uncontradicted testimony shows that defendant never advised him of the 8 September hearing.

The last conclusion of law which defendant challenges concerns the release which Vierheller signed at defendant's request. Defendant admitted in his answer to the complaint that he requested the release on 19 September 1980. We have reviewed the language of the release and find that it is a clear attempt by defendant to exonerate himself from personal malpractice. This is forbidden by Disciplinary Rule 6-102(A).

We hold that the Committee's findings of fact are supported by substantial competent evidence and that those findings in turn support its conclusions of law. All of defendant's assignments of error to the Committee's conclusions of law are overruled.

III

Next, defendant argues that he was deprived of due process due to the cumulative effect of certain errors committed during the hearing. Although a fair hearing is a basic requirement of due process, see e.g. Re Murchison, 349 U.S. 133, 75 S. Ct. 623, 99 L. Ed. 942 (1955), we are unable to find any merit to defendant's argument.

Defendant first requests this Court to "impose rules of laches or equity" because there was an unexplained lapse of time between the formal grievance against defendant, dated 26 September 1980, and the filing of the complaint of the Grievance Committee on 15 April 1981. Defendant has failed to show that this lapse of time was, in fact, unreasonable or to show any prejudice caused thereby. Furthermore, defendant's allegations of delay have not been made the basis of any exception or specific assignment of error. Defendant has thus waived his right to appellate review of this argument. Rule 10(a), Rules of Appellate Procedure.

Defendant next contends that the powers and duties of the counsel for the State Bar, as set forth in State Bar Rules, Article IX, § 4(3) and § 7, are inconsistent with due process because they create an appearance of "collusion" between counsel, the Disciplinary Hearing Commission, and the Disciplinary Hearing Committee. Defendant has neither shown nor alleged any actual collusion. This assignment of error is overruled.

Defendant also complains that he was prejudiced by "[t]he denial of ... [his] efforts to inquire into the grievance committee's probable cause hearing ..." The record reveals that the materials presented to the Grievance Committee were, in fact, turned over to or made available to defendant. Furthermore, even if defendant had a due process right to appear before the Grievance Committee, which issue we do not decide here, the record fails to show that defendant made any request to personally appear before that Committee. No prejudicial error has been shown.

Next, defendant objects to certain rulings on motions made by the Chairman of the Hearing Committee. He maintains that these rulings were made without consultation, advice or consent from other committee members. There is no indication in the record that any of the members disagreed with or objected to these rulings. Again, defendant has failed to show prejudicial error.

Defendant further complains that the Chairman improperly interfered with his cross-examination of Robert Vierheller. We have reviewed the numerous exceptions cited by defendant in support of this argument and can find no prejudicial error.

Finally, defendant argues that the Hearing Committee should have called Judge Herbert O. Phillips, III and Mrs. Vierheller's attorney as witnesses for the Committee to explain the delay between the 5 November 1979 hearing and the 12 March 1980 date the order was actually signed. Defendant could have called these witnesses had he believed they had relevant testimony to present. This, he did not do. Defendant essentially concedes in his brief that there is no merit to his argument. We agree. This assignment of error is overruled.

IV

In his last argument, defendant contends his due process rights "were violated when he was not provided with full disclosure and discovery before the trial" as required by G.S. 84-30. G.S. 84-30 does not address the question of discovery in disciplinary proceedings; it simply provides for the issuance of process for the compulsory attendance of witnesses, the production of documents and representation by counsel. The State Bar Rules specifically state that discovery is available to all parties in accordance with the North Carolina Rules of Civil Procedure. State Bar Rules, Article IX, Section 14(7). Defendant, in fact, submitted Requests for Admission which the State Bar answered. The record reveals that defendant did not make a proper request for any other discovery. Inasmuch as defendant failed to take full advantage of the discovery procedures available to him, he cannot now complain that he was not provided full disclosure and discovery prior to the hearing. We find no merit to this argument.

For the foregoing reasons, the order appealed from is

Affirmed.

WELLS and HILL, JJ., concur.