In re: Botros , 265 N.C. App. 422 ( 2019 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA18-1137
Filed: 21 May 2019
Wake County, No. 18 R 439
IN THE MATTER OF: TONY SAMI BOTROS, ATTORNEY.
Appeal by Respondent from Order entered 8 June 2018 by Judge Paul C.
Ridgeway in Wake County Superior Court. Heard in the Court of Appeals 28
February 2019.
North Carolina State Bar, by A. Root Edmonson, Deputy Counsel, for plaintiff-
appellee.
Tony S. Botros, respondent-appellant, pro se.
HAMPSON, Judge.
Factual and Procedural Background
Tony Sami Botros (Respondent) appeals from an Order (Disability Order)
transferring him to “disability inactive status.”1 The evidence presented at
Respondent’s hearing tends to show the following:
1 The North Carolina State Bar Rules define “disability inactive status” as a class of
membership in the North Carolina State Bar that “includes members who suffer from a mental or
physical condition which significantly impairs the professional judgment, performance, or competence
of an attorney, as determined by the courts, the council, or the Disciplinary Hearing Commission.” 27
N.C. Admin. Code 1A.0201(c)(2)(C) (2018).
IN RE BOTROS
Opinion of the Court
At all relevant times, Respondent, who was admitted to the North Carolina
Bar in 2013, was engaged in the practice of law and maintained an office in Wake
County. In March of 2018, Respondent was representing the plaintiff in a tort case
before Wake County Superior Court, and the defendant had filed a motion for
summary judgment with the court, which was scheduled to be heard the week of 26
March 2018. On 26 March 2018, Superior Court Coordinator, Lisa Tucker, notified
Respondent that the summary judgment motion would be heard at 12:00 p.m. on 29
March 2018 in courtroom 10-B of the Wake County Courthouse, with Superior Court
Judge A. Graham Shirley (Judge Shirley) presiding.
On the morning of 29 March 2018, Respondent also had an unrelated custody
hearing before Wake County District Court Judge Ashleigh P. Dunston (Judge
Dunston) in courtroom 2-A of the Wake County Courthouse. Respondent appeared
in Judge Dunston’s courtroom at approximately 9:40 a.m. When Respondent’s
opposing counsel sought to call a six-year-old girl to testify, Judge Dunston called
both Respondent and opposing counsel into chambers and suggested the parties
attempt to mediate a resolution. While in chambers, Judge Dunston began to suspect
Respondent might be impaired based on his slurred speech, dilated eyes, and
incoherent arguments.
As noon approached, Respondent and opposing counsel had not reached an
agreement regarding their clients’ custody dispute. As a result, Respondent failed to
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Opinion of the Court
appear in Judge Shirley’s courtroom for the hearing on the summary judgment
motion. Around this time, the clerk from Judge Dunston’s courtroom called the clerk
in Judge Shirley’s courtroom to notify Judge Shirley of Respondent’s whereabouts
and that Respondent was unsure which court, superior or district court, had priority.
Upon being notified of Respondent’s dilemma, Judge Shirley went to Judge Dunston’s
courtroom to discuss the matter.
When Judge Shirley arrived in Judge Dunston’s courtroom, Judge Dunston
informed Judge Shirley of her suspicions regarding Respondent’s potential
impairment. During their discussions, the two judges decided Judge Shirley had
priority and ordered Respondent to report to Judge Shirley’s courtroom to address
the summary judgment motion. Thereafter, Judge Shirley left Judge Dunston’s
chambers and rode the elevator back to his courtroom with Respondent.
Upon arriving in Judge Shirley’s courtroom, Respondent appeared distressed
and requested five minutes to “collect himself,” which Judge Shirley allowed. While
Respondent was away, Judge Shirley requested Lisa Tucker and Kellie Myers, who
was the Trial Court Administrator in Wake County, accompany him in chambers, as
Lisa Tucker had encountered Respondent on a previous occasion and could gauge
whether Respondent’s behavior was consistent with her previous interaction with
him. When Respondent returned to the courtroom, Judge Shirley requested both
Respondent and opposing counsel join him in chambers.
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IN RE BOTROS
Opinion of the Court
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. Respondent insisted Judge Shirley allow him to state on the record he was not
impaired and was ready to proceed with the hearing. However, Judge Shirley refused
Respondent’s calls to go on the record in order to save Respondent from publicly
damaging his reputation with his client. Thereafter, Respondent was allowed to
leave, and the summary judgment hearing was continued until 6 April 2018.
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.
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IN RE BOTROS
Opinion of the Court
On 6 April 2018, Respondent returned to Judge Shirley’s courtroom for the
hearing on the summary judgment motion. Respondent arrived at the hearing late,
and after approximately two-thirds of his argument, Respondent stopped and asked
Judge Shirley if he could pause to have a drink of water, which Judge Shirley allowed.
Thereafter, Respondent informed Judge Shirley that he was not on his “A-game” and
requested the court continue the matter, which Judge Shirley denied. At the
conclusion of the hearing, Judge Shirley took the matter under advisement and
requested Respondent accompany him back to chambers.
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).
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
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IN RE BOTROS
Opinion of the Court
coerced into signing the LAP Agreement. Respondent also sent an email to the
Eastern Clinical Coordinator of the LAP revoking the LAP Agreement.
After learning of Respondent’s revocation of the LAP Agreement, Judge Shirley
filed an Order to Show Cause (Show Cause Order), which was served on Respondent
on 15 May 2018. The Show Cause Order stated, in pertinent part:
YOU ARE HEREBY GIVEN NOTICE THAT . . . a hearing will
be held . . . to determine whether this Court shall impose
professional discipline or transfer your law license to disability
inactive status as a result of your recent conduct within the Tenth
Judicial District.
The Court initiates this action on its own motion, pursuant to
its inherent authority to regulate the conduct of officers of the
court. The information before the Court (as more specifically set
forth herein) raises the question of whether you have violated the
North Carolina Rules of Professional Conduct, or in the
alternative, whether you are presently suffering from a mental or
physical condition (which may include but is not limited to mental
illness and/or substance abuse) which significantly impairs your
professional judgment, performance, or competency as an
attorney.
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
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Opinion of the Court
Ridgeway entered the Disability Order transferring Respondent to disability inactive
status. On 9 July 2018, Respondent timely filed Notice of Appeal from the Disability
Order.
Issues
Respondent raises several arguments on appeal, and these arguments distill
into the following issues: (I) whether the trial court’s Findings of Fact are supported
by competent evidence; (II) whether the trial court had subject matter jurisdiction to
place Respondent on disability inactive status; (III) whether Respondent was afforded
the requisite due process, including proper notice of the proceedings; and (IV)
whether the trial court’s Findings and Conclusions supported placing Respondent on
disability inactive status.
Standard of Review
Respondent challenges numerous Findings of Fact and Conclusions of Law in
the trial court’s Disability Order. When reviewing an order of a trial court entered
pursuant to its inherent authority to regulate officers of the court, “[f]indings of fact
made by the trial judge are conclusive on appeal if supported by competent evidence,
even if . . . there is evidence to the contrary.” Sisk v. Transylvania Cmty. Hosp., Inc.,
364 N.C. 172, 179, 695 S.E.2d 429, 434 (2010) (alteration in original) (citations and
quotation marks omitted). Because acts of the trial court under its inherent authority
are discretionary in nature, when reviewing the trial court’s conclusions of law, “we
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Opinion of the Court
need determine only whether they are the result of a reasoned decision[.]” Id. at 180,
695 S.E.2d at 435 (citation omitted); see also In re Cranor, 247 N.C. App. 565, 573,
786 S.E.2d 379, 385 (2016) (“The proper standard of review for acts by the trial court
in the exercise of its inherent authority is abuse of discretion.” (citation omitted)). By
way of example, “[w]hen discretionary rulings are made under a misapprehension of
the law, this may constitute an abuse of discretion.” Gailey v. Triangle Billiards &
Blues Club, Inc., 179 N.C. App. 848, 851, 635 S.E.2d 482, 484 (2006) (citations
omitted).
Analysis
I. Findings of Fact
Respondent argues there is insufficient evidence to support 12 of the trial
court’s Findings. We disagree.
Respondent first challenges Finding 4, which states:
[Respondent] failed to appear at the appointed time on March 29,
2018 in Courtroom 10-B presided over by Judge A. Graham
Shirley (“Judge Shirley”). The Courtroom Clerk in Courtroom 10-
B received a call from the Courtroom Clerk in Courtroom 2-A and
indicated that [Respondent] was in that Courtroom and was
attempting to determine which court had priority despite
previously being told that he was expected in Courtroom 10-B at
12:00 p.m. Judge Shirley went to Courtroom 2-A to discuss this
matter with the presiding District Court Judge Ashleigh P.
Dunston (“Judge Dunston”).
In his brief, Respondent contends this Finding is unsupported because Judge Shirley
testified he came down to Judge Dunston’s courtroom before 12:00 p.m. However,
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Opinion of the Court
competent evidence was presented at the hearing showing Respondent did not appear
in Judge Shirley’s courtroom at the appointed time, 12:00 p.m. At the 1 June 2018
hearing, Judge Shirley testified “[a]t 12 o’clock, [Respondent] had not shown up.”
Further, Judge Shirley’s courtroom clerk testified Respondent was not in Judge
Shirley’s courtroom by 12:00 p.m. on 29 March 2018. Therefore, this Finding is
supported by competent evidence.
Respondent next challenges Findings 5 and 6, which state:
5. In the course of their conversation in Courtroom 2-A, Judge
Dunston informed Judge Shirley that she was of the opinion that
[Respondent] was impaired. She recounted that while
[Respondent] was in or around Courtroom 2-A, Judge Dunston
observed that [Respondent] spoke in a rambling and sometimes
ranting fashion, had slurred speech and dilated eyes, and that she
believed him to be under the influence of an impairing substance.
6. The Courtroom Clerk in Courtroom 2-A also formed the opinion
that [Respondent] was impaired. She observed that [Respondent]
initially appeared lethargic, and that he spoke with slurred
speech, was sweaty, and that he frequently wiped his face and
tugged at his collar. This same Clerk also encountered
[Respondent] outside of the courthouse during the lunch hour,
and [Respondent] was walking down stairs in a very unsteady
manner and needed to steady himself on the hand rails.
Respondent contends these Findings are not supported by competent evidence
because (1) Judge Dunston testified several times that she was unsure if Respondent
was impaired and (2) the Courtroom Clerk in 2-A, Christina Sollers, testified she
could not tell whether Respondent’s eyes were dilated.
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IN RE BOTROS
Opinion of the Court
First, Respondent mischaracterizes Judge Dunston’s testimony. Although
Judge Dunston did testify that on 29 March 2018 she initially “did not know for sure”
whether Respondent was impaired, her testimony throughout the 1 June 2018
hearing consistently shows she believed Respondent was impaired that day. Judge
Dunston testified, “I definitely thought something was wrong [with Respondent]. His
eyes did appear dilated; they -- you know, his words were slurred; he was rambling
about things that had nothing to do with what we were talking about[.]” Judge
Dunston also notified Judge Shirley of her suspicions regarding Respondent’s
impairment, and Judge Dunston also testified she thought “[Respondent] was
impaired on some type of pill or something.”
As for Finding 6, although Christina Sollers stated she could not tell whether
Respondent’s eyes were dilated, she consistently testified Respondent seemed
impaired on 29 March 2018. Sollers averred Respondent seemed impaired because
“he seemed a little lethargic . . . . He was very sporadic. He came to court late. He
slurred his words. He tugged on his collar a lot; wiped his face a lot.” In addition,
Sollers testified Respondent seemed sweaty and she observed Respondent needing to
steady himself as he walked down a flight of stairs at the courthouse. Therefore,
competent evidence supports the trial court’s Findings 5 and 6.
In addition, Respondent asserts Finding 7 is not supported by competent
evidence, which Finding states: “After speaking with Judge Dunston and upon
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Opinion of the Court
leaving Chambers for Courtroom 2-A, Judge Shirley witnessed [Respondent]
speaking with a Deputy of the Wake County Sheriff’s Office. Based upon
[Respondent’s] speech he continued to appear impaired and disoriented.” Respondent
contends because the Deputy did not testify, this Finding is unsupported. However,
Finding 7 relates to Judge Shirley’s impressions of Respondent during his
conversation with the Deputy, which Judge Shirley was competent to testify about
because he personally witnessed the conversation. Cf. Robbins v. Trading Post, Inc.,
251 N.C. 663, 666, 111 S.E.2d 884, 886 (1960) (“A witness is not competent to testify
to a fact beyond his personal knowledge or to base an opinion upon facts of which he
has no knowledge.” (citations omitted)). Therefore, the fact that the Deputy did not
testify is inconsequential to Finding 7.
Respondent next challenges Finding of Fact 9, which provides: “Immediately
upon appearing before Judge Shirley, [Respondent] requested five minutes to ‘collect’
himself. [Respondent] appeared somewhat distressed and disoriented.” Respondent
argues this Finding is unsupported by competent evidence because on cross-
examination Respondent played a recording of the 29 March 2018 hearing showing
Respondent requested to “have one -- one moment[,]” without saying it was to “collect”
himself. However, the trial court’s Finding that Respondent’s request for a moment
was to “collect” himself is a reasonable inference from Judge Shirley’s testimony. See
Thompson v. Carolina Cabinet Co., 223 N.C. App. 352, 358, 734 S.E.2d 125, 128
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Opinion of the Court
(2012) (“While plaintiff may not have used the precise words of the findings in his
testimony, the findings reasonably paraphrase plaintiff’s testimony or are inferences
reasonably drawn from that testimony.” (emphasis added)). In any event, this
Finding is not necessary to the trial court’s Conclusions of Law; therefore,
Respondent’s argument on this Finding is without merit. See In re Custody of Stancil,
10 N.C. App. 545, 549, 179 S.E.2d 844, 847 (1971) (“Immaterial findings of fact are to
be disregarded. . . . It is sufficient if enough material facts are found to support the
judgment.” (citations omitted)).
Respondent also contends Finding of Fact 10 is not supported by the evidence,
which Finding states:
When [Respondent] returned, Judge Shirley met with counsel in
Chambers. [Respondent’s] pupils were dilated, his speech was
slurred, and he did not appear to be able to speak in a coherent
manner. [Respondent] stated that he was taking antidepressant
medication and had been diagnosed with depression and social
anxiety disorder.
Respondent asserts this Finding is unsupported because three of the State’s
witnesses testified they could not tell whether Respondent’s pupils were dilated.
However, Judge Shirley testified “[Respondent’s] pupils were dilated.” Further,
Judge Dunston also testified Respondent’s “eyes did appear dilated[.]” This
constitutes competent evidence supporting Finding 10.
Respondent next challenges Finding of Fact 12, which reads:
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Opinion of the Court
The Courtroom Clerk in Judge Shirley’s courtroom[, Caitlyn
Beale,] also formed the opinion that [Respondent] was impaired
on March 29, 2018. She noted that he was jumpy, erratic,
sweating, not able to express coherent thoughts and that his eyes
were dilated. This same clerk had seen [Respondent] on March
26, 2018 at calendar call, and his appearance and actions on
March 29, 2018 were markedly different from his more normal
demeanor on March 26, 2018.
Respondent argues this Finding is unsupported because Caitlyn Beale “testified she
was unsure of whether Respondent was impaired, stated she could not tell if
Respondent’s eyes were dilated when he first presented, and stated that Respondent’s
matter was never argued and thus could make no judgment of whether Respondent
was able to express coherent thoughts.” However, the following testimony by Caitlyn
Beale supports Finding 12:
Q. And did you observe [Respondent] while he was in the
courtroom [on 29 March 2018]?
A. I did.
Q. Did he appear to you to be effective for his client?
A. No.
Q. What -- what did you witness that made you think he was
ineffective?
A. His behavior was very erratic. He seemed a little jumpy and
he was kind of sweaty or clammy and just not able to put a
coherent thought together.
Q. Did -- did he -- did his eyes appear to be dilated?
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IN RE BOTROS
Opinion of the Court
A. When he first came out, he was not close enough to see him
[sic], so I can’t really say for sure. But later, after we took a brief
recess, he did come up to my desk and they did appear to be
dilated.
Q. Did -- did he -- and did he appear to you to be impaired by
maybe a substance he was taking?
A. I mean I can’t say for sure, but he was not his normal self. I
had seen him at calendar call that Monday and that was not his
behavior on Monday.
Q. And was he able to articulate an argument on behalf of his
client?
A. We never even heard his matter, so no.
Q. So he -- why did you not hear his matter?
A. Judge Shirley pulled him in chambers and asked if he was okay
to proceed hearing the matter and I believe Judge Shirley didn’t
feel comfortable proceeding to hear it anyway, and so we decided
to continue it to the following week.
Respondent next challenges Finding 13, which provides:
After leaving Courtroom 10-[B] on March 29, 2018 [Respondent]
returned to Courtroom 2-A. There, Judge Dunston informed him
that based upon her observations and Judge Shirley’s
observations, she was not going to allow [Respondent] to proceed.
[Respondent] told Judge Dunston that he was not taking
anything other than prescribed medications and that he was not
“high.” Judge Dunston asked whether he would submit to an
examination by a Drug Recognition Expert (DRE) and
[Respondent] answered he would. However, when the DRE
arrived, [Respondent] stated that he did not want to submit to an
examination and just wanted to leave.
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Opinion of the Court
Respondent contends this Finding is not supported by the evidence because
Judge Dunston testified she was unsure if Respondent was impaired and admitted
she released Respondent prior to a DRE arriving. However, the following testimony
regarding what Judge Dunston told Respondent upon returning to her courtroom
supports this Finding:
So [Respondent and opposing counsel] came up and
approached the bench. And I basically told [Respondent] as nicely
as I could that based upon what I believed as far as him being
impaired, also the fact of what I had learned from Judge Shirley
and also that [Judge] Shirley had already determined that he was
not what I believed competent to proceed that day, which is why
he continued the case, that at that point I said, okay, well, I don’t
-- I also don’t believe -- if a superior court judge has done this, I -
- I definitely can’t have you practice in my court immediately after
that. And I don’t think that you should. And I had some
questions this morning, but now I’m confirmed in that.
And he basically told me that he had a social disorder, social -
- some -- some type of disorder, that he was taking medication for
that, that he’s not on anything other than his prescribed
medication. He -- he said that he was not -- that he was not high.
....
And I asked him at the bench, I said, will you submit to a drug
recognition expert? I have one coming and if, you know, they
determine that there’s nothing wrong, I mean then that’s -- then
it is what it is.
And he told me he would. He said, yes, I will because I’m not
-- there’s nothing wrong with me, blah, blah, blah. And I said,
Okay.
....
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IN RE BOTROS
Opinion of the Court
[After approximately 20 minutes,] DRE had arrived. And so
when the DRE got there, [Respondent] did not submit to his
testing and said that he just wanted to leave and that he was
embarrassed and that he was not going to submit to the DRE.
And then that was the last time I saw him when he walked out of
the courtroom.
Although Respondent contends Judge Dunston’s testimony contradicted the
above exchange (without citing where in the transcript this occurred), we hold the
above exchange supports Finding 13. See Sisk, 364 N.C. at 179, 695 S.E.2d at 434
(“[F]indings of fact made by the trial judge are conclusive on appeal if supported by
competent evidence, even if . . . there is evidence to the contrary.” (alterations in
original) (emphasis added) (citation and quotation marks omitted)).
Respondent next challenges Finding of Fact 17, which states:
In Chambers, Judge Shirley advised [Respondent] that Judge
Shirley was concerned with his conduct on March 29, 2018 and
that his conduct on April 6, 2018 did nothing to alleviate those
concerns. Judge Shirley informed [Respondent] that the Court
believed that his conduct on March 29, 2018 amounted to
Contempt of Court and a violation of the Rules of Professional
Conduct and that the Court had prepared a Motion to Show
Cause, which he showed to [Respondent]. Judge Shirley further
informed [Respondent] that first and foremost he was concerned
for [Respondent’s] well-being. Judge Shirley explained that he
was prepared to issue and file the Motion to Show Cause but
would hold off on signing any order if [Respondent] would
voluntarily present himself to the Lawyer’s Assistance Program
(LAP) for an evaluation and follow any recommended treatment.
As a further condition of not proceeding with the Motion to Show
Cause, Judge Shirley indicated that he would only defer entering
the Motion to Show Cause if [Respondent] executed a release that
would allow LAP to provide the following information to the
Court: (a) whether [Respondent] made contact with LAP; (b) the
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Opinion of the Court
status of [Respondent’s] participation with LAP, including
whether or not he was compliant with the clinical
recommendations of the LAP; (c) a copy of any LAP Recovery
Contract entered into by [Respondent]; and (d) the status of
[Respondent’s] LAP Recovery Contract.
Respondent asserts this Finding is not supported because the “release” was never
introduced or admitted into evidence. However, Judge Shirley had personal
knowledge of the release and was competent to testify to its contents. Cf. Robbins,
251 N.C. at 666, 111 S.E.2d at 886 (citations omitted). Regarding the release, Judge
Shirley testified as follows:
So [Respondent] came back into chambers. I had him take a
seat. And I told [Respondent], I said, [Respondent], I said, I am
very concerned about what happened in my court in 10B last
week. And to be honest, your conduct -- and again, I reiterated, I
told him I believed he was impaired -- your conduct to me amount
to contempt of court. And as a judge, that is something that I
could not let pass and I was going to have to do something about
it.
I told him that my primary concern was his well-being and the
well-being of his clients. And I showed him an order I had
prepared on a Motion to Show Cause. At that point in time it’s a
Motion to Show Cause why he shouldn’t be held in contempt of
court and/or why he shouldn’t be disciplined or have his -- be
placed on an inactive status because of either a substance abuse
problem or mental health problem. And I told him I was prepared
to enter that order that day, but what I would do is I would defer
entering that order on the -- on the following conditions: That he
voluntarily present himself to LAP. And I disclosed what that
was; that he get an evaluation. That if after the evaluation they
recommended any treatment, that he’d follow that treatment
protocol and whatever contract he had with LAP; and finally that
-- so I could ensure that he was in compliance with whatever LAP
was asking him to do, I asked him -- I told him he’d be -- have to
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Opinion of the Court
sign a consent form. And that if he did those things, I would --
and told him what the consent form was for. And -- and told him
that if he did those things, I would not file and make a public
record.
....
I -- I would not make a public. That, you know, you wouldn’t
have a public record with the -- the Motion to -- to Show Cause.
He readily agreed. In fact, his reaction was almost one of
relief. He signed the consent order -- or he signed the consent
allowing me to monitor him. I told -- I gave him, I believe, until
5 o’clock on Monday to -- to make telephonic communication with
LAP. I then informed the folks from LAP they should be
expecting a call.
This testimony constitutes competent evidence to support Finding 17.
Respondent next challenges Findings 19 and 20, which state as follows:
19. [Respondent] indicated that he wanted to voluntarily present
himself to LAP and he thereafter executed the release.
20. As a result of the April 6, 2018 hearing, the Court ultimately
granted the Defendant’s Motion for Summary Judgment. In
addition to the Court concluding that the evidence did not show
intentional or reckless conduct, [Respondent] failed to present
any evidence in the form required by Rule 56(e) of the North
Carolina Rules of Civil Procedure concerning any severe
emotional distress suffered by Plaintiff. In defense of this lack of
evidence [Respondent] complained to the Court that his client’s
deposition had not even been taken.
Respondent asserts these two Findings are not supported by competent evidence
because the execution of the release was not voluntary. We first note Finding 20 is
immaterial to the trial court’s Conclusions of Law; therefore, we do not address this
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Opinion of the Court
Finding. See In re Custody of Stancil, 10 N.C. App. at 549, 179 S.E.2d at 847
(“Immaterial findings of fact are to be disregarded.” (citation omitted)).
As for Respondent’s contention that the execution of the release was not
voluntary, Respondent did not present any evidence at the 6 June 2018 hearing, as
Respondent did not attend the hearing on this date. As the above testimony in
support of Finding 17 shows, Judge Shirley testified Respondent “readily agreed” to
sign the release. Further, Kellie Myers, who witnessed Respondent sign the release,
testified Respondent did not object or complain about signing the release. Therefore,
Finding 19 is supported by competent evidence.
Lastly, Respondent challenges Finding 23, which states: “After the hearing in
this matter was concluded on June 6, 2018, [Respondent] sent communications to the
Court regarding this matter. Because these communications were not offered as
evidence or argument during the hearing in this matter, the communications have
not been reviewed or considered by the Court.”
Respondent contends this Finding is “not supported by the evidence as the
Prosecutor represented to the trial court that Respondent had emailed him a medical
opinion on 5 June 2018.” However, we fail to see how this assertion renders the
Finding erroneous. Finding 23 simply indicates the trial court did not consider any
post-hearing submissions by Respondent in reaching its decision. Given Respondent
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did not testify and Respondent’s 5 June 2018 email was not received into evidence,
this Finding is not erroneous.
II. Subject Matter Jurisdiction
Respondent challenges the trial court’s Conclusion 1, which states: “This Court
has personal and subject matter jurisdiction.” Respondent contends this Conclusion
is erroneous because the Show Cause Order was in violation of several subsections of
Chapter 5A of our General Statutes, which relate to criminal contempt, thereby
depriving the trial court of subject matter jurisdiction and rendering the Disability
Order null and void. However, this action was not a criminal contempt proceeding;
rather, the Show Cause Order and Disability Order stem from the trial court’s
inherent authority to regulate the conduct of attorneys appearing before it. Thus,
Chapter 5A is inapplicable to this case.
The courts of this State have inherent authority to regulate the conduct of
attorneys practicing in this State:
Attorneys are answerable to the summary jurisdiction of the
court for any dereliction of duty except mere negligence or
mismanagement. A court may enforce honorable conduct on the
part of its attorneys and compel them to act honestly toward their
clients by means of fine, imprisonment or disbarment. The power
is based upon the relationship of the attorney to the court and the
authority which the court has over its own officers to prevent
them from, or punish them for, committing acts of dishonesty or
impropriety calculated to bring contempt upon the
administration of justice.
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Opinion of the Court
In re Burton, 257 N.C. 534, 542-43, 126 S.E.2d 581, 587-88 (1962) (citation and
quotation marks omitted).
The inherent powers of the judicial branch are those powers that are “essential
to the existence of the court and the orderly and efficient exercise of the
administration of justice.” Beard v. N.C. State Bar, 320 N.C. 126, 129, 357 S.E.2d
694, 696 (1987); see also Couch v. Private Diagnostic Clinic, 146 N.C. App. 658, 665,
554 S.E.2d 356, 362 (2001) (“All courts are vested with inherent authority to do all
things that are reasonably necessary for the proper administration of justice.”
(citations and quotation marks omitted)). Our Supreme Court has noted that this
inherent authority encompasses not only the “power but also the duty to discipline
attorneys, who are officers of the court, for unprofessional conduct.” In re Hunoval,
294 N.C. 740, 744, 247 S.E.2d 230, 233 (1977) (citation omitted).2 Further, this Court
has stated, “[t]here 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 impose
reasonable and appropriate sanctions upon errant lawyers practicing before it.” In
re Robinson, 37 N.C. App. 671, 676, 247 S.E.2d 241, 244 (1978).
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
2 Indeed, in In re Hunoval, the Supreme Court was exercising its own inherent authority by
entering an order of discipline against an attorney practicing before it. See id.
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authority to regulate attorneys before it must also include the authority to place an
attorney on disability inactive status under appropriate circumstances.3 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. See id. at 676-77, 247
S.E.2d at 244-45 (recognizing a court’s inherent authority to impose reasonable and
appropriate sanctions upon lawyers practicing before it); see also In re Beasley, 151
N.C. App. 569, 571-73, 566 S.E.2d 125, 127-28 (2002) (upholding a trial court’s order,
entered pursuant to its inherent authority, suspending an attorney’s license for
substance abuse issues).4
Here, the Show Cause Order states Respondent was to show cause why, inter
alia, he should not be placed on disability inactive status. The Show Cause Order
further provides the trial court “initiat[ed] this action on its own motion, pursuant to
its inherent authority to regulate the conduct of officers of the court.” In the
3 We also find support for this conclusion in the definition of “disability inactive status” found
in the North Carolina State Bar Rules, which defines this class as “members who suffer from a mental
or physical condition which significantly impairs the professional judgment, performance, or
competence of an attorney, as determined by the courts . . . .” See 27 N.C. Admin. Code 1A.0201(c)(2)(C)
(emphasis added). This definition assumes a trial court has the necessary authority to transfer an
attorney practicing before it to disability inactive status.
4 Indeed, all of the judges’ efforts below were clear attempts to take proactive remedial steps
in order to avoid formal discipline and provide assistance to Respondent.
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Opinion of the Court
Disability Order, the trial court explicitly found that Respondent was impaired and
pursuant to its inherent authority, ordered Respondent be placed on disability
inactive status. Because the trial court at all times was acting pursuant to its
inherent authority to regulate officers of the court, the trial court had subject matter
jurisdiction to enter its Disability Order.
III. Due Process
Respondent next challenges Conclusion 3, which reads: “[Respondent] received
appropriate notice of these proceedings.” Respondent alleges this Conclusion is
erroneous because it “is not supported by evidence nor does it follow from the Findings
of Fact[,]” and because Judge Shirley violated N.C. Gen. Stat. § 5A-13(a), which deals
with notice procedures when deferring proceedings for direct criminal contempt.
As already discussed, Judge Shirley’s Show Cause Order was issued pursuant
to the trial court’s inherent authority and was not a criminal contempt proceeding.
Therefore, N.C. Gen. Stat. § 5A-13(a) is inapplicable. Further, the Record shows
Respondent was served with the Show Cause Order at least 17 days prior to the 1
June 2018 hearing, and at this hearing, Respondent appeared and did not object to
service of the Show Cause Order. See, e.g., In re Howell, 161 N.C. App. 650, 655-56,
589 S.E.2d 157, 160 (2003) (explaining a general appearance and failure to object by
a party in an action can waive defense of insufficiency of service of process).
Therefore, Conclusion 3 is supported by the Findings.
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Opinion of the Court
In a similar vein, Respondent also alleges the trial court violated his due
process rights by failing to give him notice. See In re Burton, 257 N.C. at 543, 126
S.E.2d at 588 (“A license to engage in business or practice a profession is a property
right which cannot be taken away without due process of law.” (citation and quotation
marks omitted)).
We conclude Respondent was given due notice of the proceedings. See, e.g., id.
Here, Respondent first learned Judge Shirley intended to file the Show Cause Order
on 6 April 2018. Pursuant to the LAP Agreement, Judge Shirley waited to file the
Show Cause Order as long as Respondent participated in the LAP. However, when
Respondent revoked the LAP Agreement on 2 May 2018, Judge Shirley resorted to
filing the Show Cause Order, as he had explicitly informed Respondent he would do
if Respondent failed to comply with the LAP Agreement. Respondent was personally
served with the Show Cause Order on 15 May 2018. The Show Cause Order detailed
the allegations against Respondent and ordered Respondent to attend a hearing to
determine “whether [Respondent is] presently suffering from a mental or physical
condition (which may include but is not limited to mental illness and/or substance
abuse) which significantly impairs [Respondent’s] professional judgment,
performance, or competency as an attorney.” Prior to the hearing on 1 June 2018,
Respondent hired counsel to represent him at this hearing; however, Respondent
allowed counsel to withdraw on the day of the hearing. In addition, the hearing on
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Opinion of the Court
Judge Shirley’s Show Cause Order was presided over by Judge Ridgeway, who had
had no previous involvement with Respondent or the events leading up to the Show
Cause Order. At the hearing on 1 June 2018, Respondent represented himself, cross-
examined the State’s witnesses, and presented evidence. Respondent, however, failed
to attend the second day of the hearing on 6 June 2018. Based on these facts, we
conclude Respondent was provided due process.
IV. Disability Inactive Status
Lastly, Respondent challenges Conclusions 4 through 7, which state as follows:
4. [Respondent’s] conduct, as set out in the Findings of Fact above,
demonstrates that [Respondent] suffers from a mental or physical
condition that materially impairs his performance, judgment or
competence as an attorney.
5. Due to [Respondent’s] inability to effectively handle his clients’
matters, and the delays caused by his appearances in court in an
impaired condition, his continuing to practice law poses a threat
of significant potential harm to his clients, to the public, to the
profession, and to the administration of justice.
6. It is in the best interest of [Respondent’s] clients, the public,
the profession and the administration of justice that [Respondent]
should be placed on disability inactive status until [Respondent]
has been evaluated and treated for his impaired condition.
7. It is in the best interest of [Respondent], his clients, the public,
the profession and the administration of justice for [Respondent]
to undergo, under the supervision of the Lawyers Assistance
Program (“LAP”) or some other qualified provider approved by
this Court, a substance abuse evaluation, a psychiatric evaluation
and a fitness to practice evaluation, and to follow all treatment
recommendations found to be appropriate, prior to returning to
active practice.
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Opinion of the Court
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.
Conclusion
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Opinion of the Court
Accordingly, based on the foregoing reasons, we affirm the trial court’s
Disability Order.
AFFIRMED.
Judges ZACHARY and BERGER concur.
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