Is North Carolina's attorney discipline statute (Chapter 84) an unconstitutional delegation of judicial power, and can an NC attorney be disciplined here based on discipline in another state?

Plain-English summary

The chairman of a North Carolina House committee asked whether Chapter 84, assuming adoption of S.B. 166, improperly delegated legislative power or violated separation of powers by depriving courts of authority over lawyers appearing before them. The AG answered no to both questions. The opinion says the state's appellate courts had repeatedly upheld challenged Chapter 84 provisions against delegation objections. It characterizes the changes in S.B. 166 as technical.

On judicial authority, the AG explained that North Carolina has statutory and judicial methods of attorney discipline. The opinion says Chapter 84 does not take away a court's inherent authority to discipline an attorney appearing before it. It quotes Swenson v. Thibaut for the point that court discipline does not exclude similar State Bar action.

The requester also asked about G.S. § 84-28(e), which was separate from S.B. 166. That subsection subjects a North Carolina attorney disciplined in another jurisdiction to the same discipline here, provided the other jurisdiction's discipline does not exceed the limits in subsection (c) and the attorney was not deprived of due process there. The AG noted that North Carolina appellate courts had not reviewed subsection (e), but expected them to approve it in light of similar provisions upheld elsewhere. Thus the opinion supports the possibility of reciprocal discipline, subject to the statutory conditions. It does not reject it.

Currency note

This opinion was issued in 1995 and evaluates Chapter 84 as S.B. 166 proposed to amend it. Check the current statute and discipline rules before applying it to a present proceeding.

Background and statutory framework

The opinion identifies two constitutional objections to Chapter 84: delegation of legislative power and interference with the judiciary's authority. It rejects both. It then separately considers § 84-28(e). The text quotes that provision's two conditions: the out-of-jurisdiction sanction must stay within subsection (c)'s limits, and the attorney must not have been deprived of due process in the other jurisdiction. The opinion cites reciprocal-discipline decisions from several states but does not prescribe a complete procedure for a North Carolina case.

Common questions

Does Chapter 84 displace courts' power to discipline lawyers appearing before them?

The AG said no. Courts' inherent disciplinary authority remains alongside the State Bar's statutory authority.

Can discipline in another jurisdiction lead to discipline in North Carolina?

The AG expected § 84-28(e) to be upheld. Its quoted text provides for the same discipline here if the other jurisdiction's sanction is within subsection (c)'s limits and the attorney received due process there.

Had North Carolina appellate courts decided the validity of § 84-28(e) when the opinion was issued?

No. The opinion expressly says they had not reviewed that subsection. Its conclusion is the AG's prediction based on decisions from other jurisdictions.

Citations

• G.S. § 84-28(e) (reciprocal discipline)
• In re Wilson, 288 N.C. 1, appeal dismissed, 423 U.S. 976 (1975)
• Bowens v. Board of Law Examiners, 57 N.C. App. 78 (1982)
• In re North Western Bonding Company, 16 N.C. App. 272, cert. denied, 282 N.C. 426 (1972)
• Swenson v. Thibaut, 39 N.C. App. 77, cert. denied, 296 N.C. 740 (1979)
• Beard v. N.C. State Bar, 320 N.C. 126 (1987)

Source

• Landing page: https://ncdoj.gov/opinions/constitutionality-attorneys-and-the-practice-of-law/

Original opinion text

You request our opinion on S.B. 166, the fourth edition, which was adopted May 31, 1995. This bill amends Chapter 84 of the General Statutes, which is the Chapter dealing with attorneys and the practice of law.

We first address your two general questions, and in doing so assume that all of S.B. 166 is enacted into law. (1) "Does Chapter 84 as a whole constitute an impermissible delegation of legislative power?" And, (2) "Does Chapter 84 in its entirety represent a violation of the requirement of separation of powers and a violation of Article IV, Section 1 of the North Carolina Constitution because it deprives the judicial department of the power to supervise attorneys who practice before it?"

Answering question (1), Chapter 84 is not an impermissible delegation of legislative power. The primary purpose of Chapter 84 is to establish qualifications to practice law in North Carolina. Chapter 84 includes four Articles and thirty-eight Sections. A discussion of each section is unnecessary. Suffice it to say that both the North Carolina Court of Appeals and the Supreme Court of North Carolina have on numerous occasions addressed whether particular sections of Chapter 84 are impermissible delegations of legislative power. Both the North Carolina Court of Appeals and the Supreme Court of North Carolina have time and time again upheld the provisions of Chapter 84 against attacks that they were impermissible delegations of legislative power. See, In re Wilson, 288 N.C. 1, appeal dismissed, 423 U.S. 976 (1975); and Bowens v. Board of Law Examiners, 57 N.C. App. 78 (1982).

The changes that S.B. 166 makes to Chapter 84 are technical in nature and do not in any way suggest an unlawful delegation of legislative power. However, later on we will address this again concerning a specific section of Chapter 84 raised by you.

Answering question (2), S.B. 166 does not violate Article I, Section 6 (the separation of powers provision) or Article IV, Section 1 (the judicial power provision) of the North Carolina Constitution.

There is nothing in Chapter 84 that takes away from the courts the authority to discipline attorneys appearing before the court. In North Carolina there are two methods by which disciplinary action may be imposed upon licensed attorneys. One is statutory, the other judicial. In re North Western Bonding Company, 16 N.C. App. 272, cert. denied, 282 N.C. 426 (1972). The power to discipline licensed attorneys is inherent in the courts and is coequal and coextensive with the statutory grant of powers to the North Carolina State Bar. "[W]hile the interests of the two entities (the courts and the North Carolina State Bar) having disciplinary jurisdiction may, and often do, overlap, they are not always identical and as the interests sought to be protected by the court's inherent power are distinct from those of the North Carolina State Bar, the action of a court in disciplining or disqualifying an attorney practicing before it is not in derogation or to the exclusion of similar action by the Bar." Swenson v. Thibaut, 39 N.C. App. 77, 109, cert. denied, 296 N.C. 740, (1979). Since Chapter 84 does not in any way infringe upon the inherent authority of the judicial branch to discipline attorneys who appear before the courts, it does not violate the separation of powers provision of our State Constitution or Article IV, Section 1. Beard v. N.C. State Bar, 320 N.C. 126 (1987).

There is one other part of Chapter 84 which does not directly involve S.B. 166 about which you request our advice. G.S. § 84-28(e) provides that "any attorney admitted to practice law in this State who is disciplined in another jurisdiction shall be subject to the same discipline in this state: provided, that the discipline imposed in the other jurisdiction does not exceed that provided for in subsection (c) above and that the attorney was not deprived of due process in the other jurisdiction." Although this particular subsection (e) has never been reviewed by any of our appellate courts, similar provisions in other jurisdictions have consistently been approved by the courts of those jurisdictions. We see no reason why our appellate courts would not do likewise.

In The Committee on Legal Ethics the Battistelli, 405 S.E.2d 242, 246 (W.Va. 1991), the West Virginia Supreme Court imposed a public reprimand and a fine upon an attorney pursuant to West Virginia's reciprocal discipline rule, based upon an order of the Fourth Circuit Court of Appeals which fined the attorney for making certain misstatements. According to the West Virginia Supreme Court, "the federal court's disciplinary adjudication conclusively establishes the respondent's misconduct" for purposes of the state's disciplinary proceeding. Id. Similarly, in People v. Hartman, 744 P.2d 482, 484 (Colo. 1987), the Colorado Supreme Court entered an order of reciprocal discipline suspending an attorney from the practice of law for six months, following the attorney's suspension from practice before the U.S. Tax Court for filing frivolous pleadings. See also, Attorney Grievance Commission of Maryland v. Miller, 310 Md. 163, 428 A.2d 481, 485-6 (1987) (refusing to enter reciprocal discipline order based on particular court of appeals order, but recognizing that some federal disciplinary orders would be basis for discipline). Moreover, there is substantial authority which holds that one state may impose discipline based upon an order of discipline in another state. This practice appears to have been uniformly upheld by the courts pursuant to notions of comity, res judicata and/or the full faith and credit clause of the Constitution. See, Florida Bar v. Wilkes, 179 So.2d 193, 195 (1965) (and cases cited therein); Annot., 81 A.L.R.3d 1281 (1977).

In conclusion, we believe that Chapter 84, as amended by S.B. 166, would be held constitutional.

Should you have any questions, please contact us.

Andrew A. Vanore, Jr., Chief Deputy Attorney General