In Re the Right to Practice Law of Robinson , 37 N.C. App. 671 ( 1978 )

247 S.E.2d 241 (1978) 37 N.C. App. 671

In the Matter of the Right to Practice Law of Harold ROBINSON, Esq.

No. 7725SC732.

Court of Appeals of North Carolina.

August 29, 1978.

Atty. Gen. Rufus L. Edmisten by Associate Atty. Gen. J. Chris Prather, Raleigh, for the State.

Smith, Moore, Smith, Schell & Hunter by James A. Medford, Greensboro, for respondent.

BROCK, Chief Judge.

In No. 74CR9136, State v. Berry, the respondent's client faced a prison sentence of seven to ten years, yet the record indicates that respondent took no action to perfect an appeal from 2 March 1976 until after the district attorney moved to dismiss the appeal on 21 February 1977. During that time respondent did not even seek an order for the trial transcript.

In No. 76CR3480, State v. Ray, the respondent's client faced a prison sentence of ten years, yet the record indicates that respondent failed to take any action beyond seeking one extension of time to serve the record on appeal.

In No. 76CR6955, State v. Hensley, the respondent's client faced life imprisonment, yet the record indicates that respondent took no action to perfect the appeal even though the trial transcript was in his possession.

In No. 76CR7000, State v. Carswell, the respondent's client faced a prison sentence of ten years, yet the record indicates that respondent took no action to perfect the appeal even though the trial transcript was in his possession.

In one of the four cases the record indicates that respondent took no action for more than a year and it cannot be surmised how much longer respondent may have delayed in all four cases had Judge Snepp not taken action to appoint other counsel to perfect the appeals.

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 impose reasonable and appropriate sanctions upon errant lawyers practicing before it. Sanctions available include citations for contempt, censure, informing the North Carolina State Bar of the misconduct, imposition of costs, suspension for a limited time of the right to practice before the court, suspension for a limited time of the right to practice law in the State, and disbarment. See In re Burton, 257 N.C. 534, 126 S.E.2d 581 (1962); In re Hunoval, 294 N.C. ___, 247 S.E.2d 230 (1977); In re Bonding Co., 16 N.C.App. 272, 192 S.E.2d 33, cert. denied 282 N.C. 426, 192 S.E.2d 837 (1972); Colon v. U. S. Attorney for the District of Puerto Rico, 576 F.2d 1, CA 1, 1978; Annot. 96 A.L.R. 2d 823.

Respondent's argument that only the North Carolina State Bar has the authority to discipline an attorney who is licensed to practice in North Carolina was clearly rejected by this Court in In re Bonding Co., supra, and is clearly without merit.

Likewise, respondent's argument that the Superior Court, Burke County was without jurisdiction to discipline him because notice of appeal had been given in the four cases in question is without merit. In the first place the mere giving of notices of appeal from the convictions in the four cases did not carry to the appellate division any question concerning the conduct of counsel, although it is true that either Court of the Appellate Division could have exercised its inherent power to deal with respondent had his defaults been brought to its attention. See In re Hunoval, supra. In the second place, it is incontrovertible that our courts have inherent authority to take disciplinary action against attorneys practicing therein, even in relation to matters not pending in the particular court exercising that authority. In re Burton, supra; In re Bonding Co., supra. In the third place, the records of the four cases were on file in Superior Court, Burke County and respondent was a resident of Burke County; therefore, that court was the most convenient and appropriate forum for the inquiry into respondent's conduct.

Respondent attacks the conduct of Judge Snepp in issuing the notice to respondent after having talked privately with the wife of one of the four defendants. It is perfectly understandable that one of the four defendants and his wife were concerned that no action had been taken to perfect his appeal. It is understandable that she would make inquiry of the highest judicial officer present in the county. It is appropriate that Judge Snepp would become concerned and investigate the records of his court. The other three cases must have been called to Judge Snepp's attention by someone, possibly someone in the Clerk's office, when Judge Snepp called for the records in the case in which the defendant's wife made inquiry. In any event, they came to Judge Snepp's attention in some manner and it was his duty to initiate an inquiry into all four cases.

Respondent's argument that Judge Snepp had no authority to act unless a written complaint had been filed is without merit. Respondent relies upon In re Burton, supra, and In re Bonding Co., supra, for this argument. In those two cases the judge was acting upon matters not disclosed by the records of his court. Here Judge Snepp was making inquiry into conduct disclosed by the records of his court.

Likewise, respondent's argument that it was improper for Judge Snepp to request the district attorney to present the evidence against respondent is without merit. Judge Snepp had the authority to designate the district attorney or any other licensed attorney to perform this function.

Respondent's argument that this action was taken during a session of court for the trial of criminal cases instead of a session for the trial of civil matters is without merit. Although disciplinary proceedings against an attorney are civil in nature, in this case the judge was exercising an inherent power of the court which is not dependent upon the type of session of court over which he was then presiding.

Respondent argues that Judge Snepp displayed animosity towards him during the hearing. The record before us does not support this argument. Judge Snepp fully permitted respondent to offer all motions, arguments, and evidence that respondent tendered.

We come now to a serious problem raised by respondent's appeal in this matter. That is the appearance of bias and prejudice in the specification of charges issued by Judge Snepp. Respondent argues, and we agree, that upon the face of the charges it appears that Judge Snepp prejudged respondent's conduct before hearing any evidence. We do not believe that Judge Snepp had in fact prejudged respondent's conduct. We think the wording of the specifications was an effort by Judge Snepp to fully advise respondent of the seriousness of the inquiry. Nevertheless it was an unfortunate and inappropriate choice of words and we cannot permit this record to stand. Specification No. 1, which will serve to demonstrate the language of the other three, reads as follows:

On 2 March 1976 you were appointed by the Superior Court to represent the defendant in State v. Harvey Berry, 74CR9136, in connection with his appeal from a conviction of involuntary manslaughter. You have negligently and willfully failed to perfect the appeal or to seek appellate review through other permissible means in violation of Disciplinary Rule 1-102(1)(5) and Disciplinary Rule 6-101(3) as set forth in the Code of Professional Responsibility.

It would have appeared without bias and prejudice for Judge Snepp to have used wording substantially as follows in the place of those emphasized above:

The records of this Court indicate that no action has been taken to perfect the appeal or otherwise seek appellate review. This inquiry is to hear evidence bearing upon why no action has been taken and to determine whether discipline should be imposed upon you by this Court.

We think Judge Snepp's unfortunate and inappropriate choice of words came from the idea of necessity for specific allegations in a third party complaint, rather than from bias or prejudice. Nevertheless, we must render our opinion from the record before us.

Having drafted his notice in the form of specific allegations of misconduct it was incumbent upon Judge Snepp to disqualify himself, as he was requested by respondent, and to refer the inquiry to another judge. To perform its high function in the best way our courts must not only do justice but they should give the appearance of doing justice. In our opinion Judge Snepp was in error when he refused to disqualify himself and his order must be vacated.

However, the vacating of Judge Snepp's order does not require dismissal of this proceeding nor does it require a remand for a new hearing. A new hearing would serve no useful purpose. The facts are not materially in dispute and respondent has been accorded full opportunity to present his evidence. We are here concerned with the inherent power of the court to discipline errant attorneys. The facts are before us as much so as if we had instituted this inquiry and had referred it to the Superior Court for hearing. Therefore, we will exercise our inherent power in this matter before us. The questions of mitigating circumstances and appropriate sanctions have been fully and zealously presented and argued in respondent's brief.

We therefore by this opinion notify respondent that we have before us the record as prepared and filed with us by respondent; that as soon as briefs have been filed, should respondent elect to do so, this matter will be further heard in this court on the record and briefs; that this court will consider what discipline, if any, should be imposed upon respondent for his conduct as disclosed by the record before us; that this cause is set for rehearing before this court as follows: respondent has until and including 20 October 1978 to file his brief addressing the questions of whether this court should exercise its inherent power to determine what discipline, if any, should be imposed upon respondent, and, if any, the extent thereof; and the State has until and including 9 November 1978 to file its brief addressing the same questions.

The result is that the order appealed from is vacated and this cause is retained in this court for further proceedings.

Order vacated.

Cause retained.

CLARK and WEBB, JJ., concur.