{ "id": 138305, "name": "THE DISCIPLINARY HEARING COMMISSION OF THE NORTH CAROLINA STATE BAR v. REGINALD FRAZIER", "name_abbreviation": "Disciplinary Hearing Commission v. Frazier", "decision_date": "2001-12-18", "docket_number": "No. 72PA01", "first_page": "555", "last_page": "559", "citations": [ { "type": "official", "cite": "354 N.C. 555" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "540 S.E.2d 758", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "opinion_index": -1 }, { "cite": "141 N.C. App. 514", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9441854 ], "year": 2000, "opinion_index": -1, "case_paths": [ "/nc-app/141/0514-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 84-28.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "pin_cites": [ { "page": "(b)" }, { "page": "(b)" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7\u00a7 84-28", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "542 S.E.2d 209", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "opinion_index": 0 }, { "cite": "351 N.C. 354", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1155776, 1155872, 1155810, 1155924, 1155901 ], "year": 2000, "opinion_index": 0, "case_paths": [ "/nc/351/0354-01", "/nc/351/0354-04", "/nc/351/0354-02", "/nc/351/0354-03", "/nc/351/0354-05" ] }, { "cite": "519 S.E.2d 525", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1999, "pin_cites": [ { "page": "529" } ], "opinion_index": 0 }, { "cite": "135 N.C. App. 43", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11238888 ], "weight": 2, "year": 1999, "pin_cites": [ { "page": "49" } ], "opinion_index": 0, "case_paths": [ "/nc-app/135/0043-01" ] }, { "cite": "540 S.E.2d 758", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "761", "parenthetical": "quoting Frazier v. Murray, 135 N.C. App. at 49, 519 S.E.2d at 529" } ], "opinion_index": 0 }, { "cite": "141 N.C. App. 514", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9441854 ], "year": 2000, "pin_cites": [ { "page": "518-19", "parenthetical": "quoting Frazier v. Murray, 135 N.C. App. at 49, 519 S.E.2d at 529" } ], "opinion_index": 0, "case_paths": [ "/nc-app/141/0514-01" ] } ], "analysis": { "cardinality": 485, "char_count": 11115, "ocr_confidence": 0.751, "pagerank": { "raw": 1.338319988389676e-07, "percentile": 0.6306213219380744 }, "sha256": "16104ee97763a81c9af97cc9f3f2561e58fba8e00a7c5c91915a8c81834c959b", "simhash": "1:282c93f16d2c24f6", "word_count": 1820 }, "last_updated": "2023-07-14T19:55:42.215284+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Justice EDMUNDS did not participate in the consideration or decision of this case." ], "parties": [ "THE DISCIPLINARY HEARING COMMISSION OF THE NORTH CAROLINA STATE BAR v. REGINALD FRAZIER" ], "opinions": [ { "text": "BUTTERFIELD, Justice.\nThe principle issue raised for review is whether the Disciplinary Hearing Commission of the North Carolina State Bar (DHC), plaintiff herein, may discipline a disbarred attorney who has allegedly engaged in the unauthorized or unlawful practice of law.\nDefendant was disbarred from the practice of law on 6 November 1989. Although defendant has challenged the order of disbarment on several occasions, he has not been reinstated to the practice of law. In 1994, the DHC received notice that defendant had been engaged in the unauthorized or unlawful practice of law. The DHC presented the information to the Craven County district attorney, with no action being taken by that office. The DHC then moved to have defendant held in criminal contempt for violation of the 6 November 1989 disbarment order. Following plaintiffs presentation of evidence, defendant moved to dismiss. In a order signed 18 February 1994, the trial court granted defendant\u2019s motion to dismiss. The DHC did not appeal this ruling. In August 1994, the DHC received new allegations that defendant was continuing to practice law and had placed an advertisement for legal services in the local newspaper. The DHC instituted a show cause proceeding. Defendant filed a series of motions in September, November, and December of 1994 alleging indigency, seeking appointment of counsel, attempting to discharge appointed counsel, seeking a continuance, and attempting to remove the contempt proceeding to federal court. Defendant did not appear at the DHC hearing on 19 December or 20 December 1994.\nOn 20 January 1995, the DHC issued a judgment of contempt finding defendant guilty of sixteen counts of contempt, sentencing him to consecutive sentences of thirty days in jail for each count, and imposing a fine of $200.00 for each count. Upon application of the DHC, the trial court issued an arrest warrant for defendant on 23 January 1995. Defendant was arrested and taken to the Craven County jail on 26 January 1995 with no hearing before any judicial official. In his petition for discretionary review, defendant explains that defendant was transported to the Wake County jail on 30 January 1995 and subsequently transferred to the North Carolina Department of Correction.\nDefendant petitioned for a writ of habeas corpus in the United States District Court for the Eastern District of North Carolina. After a hearing in November 1995, the district judge released defendant pending a final ruling in the habeas proceeding. On 21 November 1996, the district judge issued a writ of habeas corpus releasing defendant and directing the DHC to notify defendant of his appellate rights in the matter. In response to the federal court order, plaintiff informed defendant of his right of appeal to the Superior Court, Wake County. Defendant gave notice of appeal and asserted motions to dismiss. The trial court conducted a hearing and granted defendant\u2019s motions to dismiss the DHC contempt proceeding and declared the 20 January 1995 DHC order null and void. The DHC then appealed the trial court\u2019s ruling to the Court of Appeals.\nThe Court of Appeals examined two issues: (1) whether defendant was subject to the contempt power of the DHC even though he was disbarred, and (2) whether the DHC can lawfully exercise contempt power. The Court of Appeals held that both issues had been decided in the affirmative in Frazier v. Murray, 135 N.C. App. 43, 519 S.E.2d 525 (1999), appeal dismissed, 351 N.C. 354, 542 S.E.2d 209 (2000), and that the panel was bound by the Frazier holding. In concluding that defendant was subject to the contempt power of the DHC even though he was disbarred, the Court of Appeals stated that it was bound by the following from Frazier.\n\u201cThe Disciplinary Hearing Commission clearly had authority to discipline and disbar plaintiff. [N.C. Gen. Stat. \u00a7\u00a7 84-28, 84-28.1 (1995).] N.C. Gen. Stat. \u00a7 84-28.1(b) authorizes the Disciplinary Hearing Commission to \u2018hold hearings in discipline, incapacity and disability matters, to make findings of fact and conclusions of law after such hearings, and to enter orders necessary to carry out the duties delegated to it by the council.\u2019 [N.C. Gen. Stat. \u00a7 84-28.1(b).]\u201d\nDisciplinary Hearing Comm\u2019n v. Frazier, 141 N.C. App. 514, 518-19, 540 S.E.2d 758, 761 (2000) (quoting Frazier v. Murray, 135 N.C. App. at 49, 519 S.E.2d at 529). We reverse.\nDefendant comes before us on appeal as a disbarred attorney who has allegedly engaged in the unauthorized or unlawful practice of law. In this appeal, defendant does not challenge, nor does he admit, the allegations that he has engaged in the unauthorized or unlawful practice of law. Rather, defendant alleges that the Court of Appeals erred in holding that the DHC had the authority to discipline defendant and that the DHC had the power to hold defendant in criminal contempt. We agree.\nThe instant case illustrates the confusion that has surrounded the jurisdiction of the North Carolina State Bar over disbarred attorneys. The government of the North Carolina State Bar is vested in the Council, as set out in N.C.G.S. \u00a7 84-17. The Council is vested with the authority to regulate the professional conduct of attorneys. N.C.G.S. \u00a7 84-23 (1999). The authority of the North Carolina State Bar to disbar attorneys under N.C.G.S. \u00a7 84-28 is not at issue here. The thresh.old issue is whether the North Carolina State Bar retains jurisdiction over a disbarred attorney. We believe that there is no authority for the DHC\u2019s actions to discipline defendant and find him in criminal contempt.\nNeither N.C.G.S. \u00a7 84-28.1 nor the powers vested in the Council grant any authority to discipline disbarred attorneys. The DHC \u201cis authorized to hold hearings in discipline, incapacity and disability matters, to make findings of fact and conclusions of law after such hearings, and to enter orders necessary to carry out the duties delegated to it by the council.\u201d N.C.G.S. \u00a7 84-28.1(b) (1999). There is no authorization for the DHC to discipline a disbarred attorney for the unauthorized or unlawful practice of law. The purpose of the DHC is to discipline only those attorneys who are members of the North Carolina State Bar. By its own determination, the North Carolina State Bar has severed the ties that previously bound the disbarred attorney to the Bar. After disbarment, the disciplinary powers of the North Carolina State Bar over a disbarred attorney are extinguished. Upon disbarment of defendant, the DHC lacked any authority to discipline defendant or to find him in contempt.\nHaving determined that the DHC did not have authority over defendant, we need not examine the contempt powers of the DHC. However, we note that the future exercise of any contempt powers that the legislature may have vested in the DHC, absent clarifying amendment of the statutes, should be exercised with the utmost prudence.\nWhile the DHC does not have the authority to discipline a disbarred attorney or find a disbarred attorney in contempt, the DHC does have the means to help prevent the unauthorized or unlawful practice of law in this state. Under N.C.G.S. \u00a7 84-37, the North Carolina State Bar may investigate \u201cany charges or complaints of unauthorized or unlawful practice of law.\u201d N.C.G.S. \u00a7 84-37(a) (1999). The North Carolina State Bar, after its investigation may seek a temporary injunction to restrain a defendant from the unauthorized or unlawful practice of law. N.C.G.S. \u00a7 84-37(b). The North Carolina State Bar may also bring an action in its name for a final judgment in its favor that \u201cshall perpetually restrain the defendant or'defendants from the commission or continuance of the act or acts complained of.\u201d N.C.G.S. \u00a7 84-37(b). Such actions shall be brought in the \u201csuperior court of any county in which the acts constituting unauthorized or unlawful practice of law are alleged to have been committed or in which there appear reasonable grounds that they will be committed or in the county where the defendants in the action reside or in Wake County.\u201d N.C.G.S. \u00a7 84-37(c). If a defendant engages in the unauthorized or unlawful practice of law after a final judgment to perpetually restrain the defendant from the unauthorized or unlawful practice of law, contempt proceedings remain in the courts in accordance with the laws of this state.\nThe North Carolina State Bar, in addition to conducting an investigation and seeking injunctive relief, may bring allegations of the unauthorized or unlawful practice of law to the attention of a district attorney. N.C.G.S. \u00a7 84-7 provides:\nThe district attorney of any of the superior courts shall, upon the application of any member of the Bar, or of any bar association, of the State of North Carolina, bring such action in the name of the State as may be proper to enjoin any such person, corporation, or association of persons who it is alleged are violating the provisions of G.S. 84-4 to 84-8, and it shall be the duty of the district attorneys of this State to indict any person, corporation,, or association of persons upon the receipt of information of the violation of the provisions of G.S. 84-4 to 84-8.\nN.C.G.S. \u00a7 84-7(1999). This statute unambiguously states that the process of seeking criminal sanctions for the unlawful practice of law are under the exclusive control of district attorneys. The duty imposed on district attorneys by N.C.G.S. \u00a7 84-7 is not to be ignored.\nDefendant requests this Court to apply N.C. R. App. P. 2 and reconsider our dismissal of Frazier v. Murray, in which he failed to perfect his appeal. We decline to do so.\nFor the foregoing reasons, we conclude that the Court of Appeals erred in reversing the order of the Superior Court.\nREVERSED.\nJustice EDMUNDS did not participate in the consideration or decision of this case.", "type": "majority", "author": "BUTTERFIELD, Justice." } ], "attorneys": [ "Carotin Bakewell and A. Root Edmonson for plaintiff-appellee.", "Michaux & Michaux, RA., by Eric C. Michaux, for defendant-appellant." ], "corrections": "", "head_matter": "THE DISCIPLINARY HEARING COMMISSION OF THE NORTH CAROLINA STATE BAR v. REGINALD FRAZIER\nNo. 72PA01\n(Filed 18 December 2001)\nAttorneys-discipline of disbarred attorney-authority of State . Bar\nThe Disciplinary Hearing Commission of the North Carolina State Bar did not have the authority to discipline a disbarred attorney because the disciplinary powers of the DHC are extinguished after disbarment. The contempt powers of the DHC were not examined in this case; however, it was noted that any such powers should be exercised with the utmost prudence. Under N.C.G.S. \u00a7 84-37(a), the State Bar may investigate charges or complaints of unauthorized practice of law and seek an injunction in Superior Court and, further, may bring allegations of unauthorized practice to the attention of the district attorney, whose duty under N.C.G.S. \u00a7 84-7 is not to be ignored.\nOn discretionary review pursuant to N.C.G.S. \u00a7 7A-31 of a unanimous decision of the Court of Appeals, 141 N.C. App. 514, 540 S.E.2d 758 (2000), reversed and remanded an order entered 3 September 1999 by Jones (Abraham Penn), J., in Superior Court, Wake County. Heard in the Supreme Court 11 September 2001.\nCarotin Bakewell and A. Root Edmonson for plaintiff-appellee.\nMichaux & Michaux, RA., by Eric C. Michaux, for defendant-appellant." }, "file_name": "0555-01", "first_page_order": 589, "last_page_order": 593 }