In Re Gilliland , 248 N.C. 517 ( 1958 )

103 S.E.2d 807 (1958) 248 N.C. 517

In the Matter of James D. GILLILAND, a practicing attorney of Warrenton, Warren County, North Carolina.

No. 383.

Supreme Court of North Carolina.

June 4, 1958.

Henry E. Fisher, Charlotte, William P. Mayo, Washington, and Edward L. Cannon, Raleigh, for complainant, appellee.

Robert S. Cahoon, Greensboro, and Carl E. Gaddy, Jr., Raleigh, for respondent, appellant.

BOBBITT, Justice.

At the hearing at November Special Civil Term, 1957, "It was admitted that no issues had been tendered by respondent and no request or demand made by him for trial by jury, before the Trial Committee or Council." So far as the record discloses, the question as to whether respondent was entitled to a jury trial was not raised until complainant made its said motion at said term.

This question is presented: Did respondent, by his failure to demand jury trial and tender issues incident to his appeals from the Trial Committee to the Council and from the Council to the superior court, waive or forfeit the statutory right to a jury trial expressly conferred by G.S. § 84-28?

As stated by Stacy, C. J.: "There are two methods by which an attorney may be disbarred: (1) The one judicial. (Citations) (2) The other legislative. (Citations)" In re West, 212 N.C. 189, 193 S.E. 134, 135. Here, as in the West case, the legislative method alone has been pursued. As stated by Stacy, C. J., in the West case: "The proceeding partakes of the nature of a civil action, rather than that of a criminal prosecution. (Citations)"

The statute now codified as G.S. § 84-28 is Sec. 11, Ch. 210, Public Laws of 1933, as amended by Sec. 3, Ch. 51, Public Laws of 1937.

In the 1933 Act, one provision of Section 11 stated, "upon appeal to the Judge of the Superior Court, the accused shall have the right to have his cause heard by a jury," but the last sentence of Section 11 provided, "In hearings before the Council (or committee) and in all appeals the procedure shall conform as near as may be to the procedure now provided by law for hearings upon the report of referees in references by consent." Referring to these provisions, Stacy, C. J., in In re Parker, 209 N.C. 693, 184 S.E. 532, 534, observed: "It is well settled that, in consent references, the parties waive the right to have any of the issues of fact passed upon by a jury." While noting that the validity of said Section 11 was challenged as denying a right to trial by jury in disbarment proceedings in violation of Article I, Sec. 19, Constitution of North Carolina, the reversal of the judgment of disbarment in the Parker case was put on other grounds.

The 1933 Act, as indicated, contained an express provision as to proceedings "in hearings before the Council (or committee and in all appeals * * *" (Our italics.) This was stricken by the 1937 Act, which, in respect of appeals, provided: "Upon such appeal to the Superior Court the accused attorney shall have the right to a trial by jury of the issues of fact arising on the pleadings, but such trial shall be only upon the written evidence taken before the trial committee or council."

True, the 1937 Act provided that the Council (or committee) "shall formulate rules of procedure governing the trial of any such person which shall conform as near as may be to the procedure now provided by law for hearings before referees in compulsory references." (Our italics.) Too, it provided that "such rules shall provide," inter alia, "for a complete record of the proceedings for purposes of appeal to the Superior Court." Obviously, without such record, there could be no trial in the superior court "upon the written evidence taken before the trial committee or council."

Considered in context, we think the provision for the formulation of rules of procedure refers to procedure incident to hearings before the Council (or committee), not to procedure incident to appeals from the Council (or committee) to the superior court. This provision appears in the same sentence that confers upon the Council (or committee) the jurisdiction to hear and determine the charges made and provides that the Council (or committee) "may invoke the processes of the court in any case in which they deem it desirable to do so." Moreover, the succeeding sentence, in addition to the requirement that a complete record of the proceedings be made, requires that the rules "shall provide for notice of the nature of the charges and an opportunity to be heard." All of these provisions refer clearly to procedure incident to proceedings and hearings before the Council (or committee).

Apparently, the Council so interpreted G.S. § 84-28 when it adopted the "Rules and Regulations of the North Carolina State Bar." 205 N.C. 854; 221 N.C. 581. Article IX thereof relates to "Discipline and Disbarment of Attorneys." Section 2 of Article IX, containing subsections (a) through (w), purports to set forth in detail the procedure in disbarment proceedings. No provision thereof purports to provide that a respondent's right to a jury trial is waived or forfeited if he fails to demand a jury trial and tender issues incident to his appeal from the Trial Committee to the Council or from the Council to the superior court. Nor is there any provision that the procedure in respect of appeals from the Council (or committee) to the superior court shall conform as near as may be to the procedure now provided by law for appeals in compulsory references.

It is noteworthy that said Rules and Regulations, not G.S. § 84-28, provide for successive hearings before a Trial Committee and the Council. They provide that the initial hearing shall be before a Trial Committee which shall file its report with the Council, to which the respondent may file exceptions; and that the Council shall consider said report and determine the matter "upon the record of the said hearing." Subsection (k), which so provides, also provides that "no testimony or evidence will be taken by the Council and none heard other than such as is contained in the record filed by the committee which conducted the hearings." Subsection (l) provides that the Council, at any time before entering its final judgment, may, upon respondent's motion, remand the cause to the Trial Committee to hear newly discovered evidence and then make further findings in the light of all the evidence.

Subsection (n) provides that "said respondent may appeal, as provided in chapter 210, Public Laws, 1933," from an adverse judgment of the Council, by giving notice thereof as provided. The only provisions relating to an appeal from the Council to the superior court implying procedural requirements to be met by respondent are set forth in Subsection (o), which provides: "The record on appeal to the Superior Court shall consist of the statement and notice and answer, if any, and the transcript of the evidence, and the findings of fact and recommendations of the committee, and the findings and conclusions of the Council thereon, as well as the exceptions, if any, filed to the report of said committee by the respondent, and the judgment of the Council thereon and the assignments of error therein, as contended for by the respondent."

"It is a general rule, since the right of trial by jury is highly favored, that waivers of the right are always strictly construed and are not to be lightly inferred or extended by implication, whether with respect to a civil or a criminal case. There can be no presumption of a waiver of trial by jury where such a trial is provided for by law. Thus, in the absence of an express agreement or consent, a waiver of the right to a jury trial will not be presumed or inferred. Indeed, every reasonable presumption should be made against its waiver." 31 Am.Jur., Jury, Sec. 44; 50 C.J.S. Juries § 110.

Consideration of the foregoing impels the conclusion, and we so hold, that neither G.S. § 84-28 nor the Rules and Regulations of the North Carolina State Bar contain any provision sufficient to deprive respondent of the right expressly conferred by G.S. § 84-28, upon appeal from the Council, to a trial by jury on the written evidence of the issues of fact arising on the pleadings.

Assignments of error, such as those directed to the competency of testimony, need not be considered. As to these, the judge presiding at the jury trial will make his rulings when the evidence is offered.

We deem it appropriate to consider now respondent's assignments of error to the refusal of the Council to allow respondent's motions to remand and recommit to the Trial Committee and to the refusal of the court to allow respondent's motion to remand to the Council with direction to recommit to the Trial Committee for consideration of evidence admitted and considered by the Council contrary to the provisions of said Subsection (k).

The matters set forth in the exhibits attached to respondent's motions were material as to Charge III(3). The evidence before the Trial Committee tended to show that the collection agency, allegedly controlled by respondent, was the highest bidder on August 7, 1954, when the receiver offered for sale at public auction the uncollected accounts receivable of Warrenton Grocery Company; that this sale was not confirmed until November 5, 1954; and that on October 30, 1954, prior to confirmation, the collection agency sold an interest in said accounts to one Wesson, a former salesman of the insolvent company, who had indicated to the receiver that he was considering making an increased bid for said accounts. This evidence tended to support the finding of the Trial Committee that respondent, while attorney for the receiver, and before confirmation of the sale to the collection agency, which he controlled, "did wilfully stifle any increased bid on the said accounts." Among the exhibits attached to respondent's motions was a copy of the court order in the receivership proceedings from which it appears that the sale to the collection agency was confirmed on October 2, 1954, and that the collection agency's transaction with Wesson was 28 days after the confirmation of sale.

The Council, on April 12, 1957, when it considered respondent's motions, deleted the specific finding that the receiver's sale was confirmed "on November 5, 1954"; and thereupon, except in this particular, the Council adopted the Trial Committee's findings of fact.

While the Council might well have remanded and recommitted the cause to the Trial Committee for its consideration of the exhibits attached to respondent's motions and for further findings of fact in the light of such evidence, in view of present decision as to respondent's right to jury trial we do not see that respondent is prejudiced by its failure to do so. Under the circumstances here disclosed, a remand and recommitment to the Council and thence to the Trial Committee would seem a circuitous, needless and futile course.

As the case now stands, the exhibits attached to respondent's motions, by order of the Council, are now a part of "the written evidence." Hence, respondent will have the full benefit thereof upon his trial by jury in the superior court. The jury trial will be upon "the written evidence" in the cause, not the findings of fact made by the Trial Committee and adopted by the Council.

Error in the order denying respondent's right to a jury trial requires that the judgment, based on the court's findings of fact, be vacated; and that the cause be remanded for trial by jury. It is so ordered.

Error and remanded.