Attorney Gordon E. Boyce​​​​​​​ v. Gov Roy Cooper: Who Watches The Watchman? State Bar Does Not Have Exclusive Regulatory Authority In North Carolina

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Wow - what a great example of how abuse of the judicial system is perpetrated by those with the most knowledge - lawyers litigating lawyers. In this case it was finally settled after 14 YEARS if LITIGATION. That is just ridiculous.

Attorney Gordon E. Boyce v. Gov Roy Cooper: Who Watches The Watchman? State Bar Does Not Have Exclusive Regulatory Authority In North Carolina

The North Carolina Court of Appeals has affirmed and reversed in part a decision in litigation between a State Bar member and former Attorney General (now Governor) Roy Cooper. 

On 5 January 2016, Gordon E. Boyce (“Plaintiff”) filed a declaratory judgment action pursuant to N.C. Gen. Stat. § 1-254 et seq. seeking a “declaration of the right, status or other relations” between Plaintiff and the North Carolina State Bar (“Defendant”). The trial court dismissed Plaintiff’s request for declaratory judgment on two grounds: (1) Plaintiff lacks standing to bring this complaint under Rule 12(b)(1) of the North Carolina Rules of Civil Procedure, and therefore the court lacks subject matter jurisdiction; and (2) the complaint “presents no viable case or controversy” under Rule 12(b)(1) of the Rules of Civil Procedure. We reverse in part and affirm in part...

The claims came in the midst of the AG election

Here, Plaintiffs alleged Defendants published a false and fraudulent political television advertisement. Id. at 27, 568 S.E.2d at 896. Plaintiffs alleged Defendants’ advertisement defamed R. Daniel Boyce (“Dan Boyce”), the Republican nominee for the Office of Attorney General of North Carolina. Id. at 27, 568 S.E.2d at 896. Plaintiffs also alleged Defendants’ advertisement defamed the member attorneys of the Boyce & Isley law firm.

The parties have had a history of bad blood that spilled into litigation

Fortunately for all concerned, after fourteen years of litigation, the parties settled this [earlier] controversy. The current complaint for declaratory judgment alleges Defendant Cooper, as part of the settlement, admitted he made false assertions in the 2000 political advertisements. Plaintiff Gordon E. Boyce (“Plaintiff”), acting pursuant to Rule 8.3 of the North Carolina Rules of Professional Conduct, reported Cooper’s unethical statements to Defendant North Carolina State Bar (“State Bar”). Specifically Plaintiff alleged Cooper violated Rule 4.1 and Rule 8.4 of the Rules of Professional Conduct...

When the State Bar failed to take public action on his complaints, Plaintiff filed a declaratory judgment action in Wake County Superior Court asking for three declarations:

(a) That concurrent jurisdiction of several types exists as to resolution of attorney discipline and misconduct matters, and

(b) That Defendant The State Bar, by reason of its apparent Conflict of Interest has no right, jurisdiction or authority by recognition and knowledge of the clear conflict of interest and regarding the party and parties in question to ignore and appropriate Order of Referral, and

(c) That Defendant The State Bar is obligated by law, by the Rules of Professional Conduct as a matter of conscience and good faith to refer Plaintiff’s complaints and communications regarding the wrongful conduct of its own acting Counsel, Legal Representative to the Appropriate Forum and Jurisdiction for investigation, findings of fact and recommendations as to discipline, if any, as by law provided and so recognized, for cost[.]

The State Bar moved to dismiss and the motion was granted by the trial court.

Here, the Plaintiff has standing only on the first question.

On the merits

Our legislature, in creating the State Bar, required the Bar to be subject to the “inherent power” of the courts to regulate the legal profession. N.C. Gen. Stat. § 84- 36 (2016) provides, “Nothing contained in this Article shall be construed as disabling or abridging the inherent powers of the court to deal with its attorneys.”

Neither party contests Plaintiff is a member of the State Bar, by virtue of having earned a license to practice law and by virtue of paying annual dues to the State Bar. As a member of the State Bar, Plaintiff has the right to participate in its organization. Plaintiff also has a duty to comply with its Code of Professional Responsibility. Rule 8.2 of the Professional Code of Conduct mandates, “[a] lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, or other adjudicatory officer or of a candidate for election or appointment to judicial office.”

And there is a duty to report in Rule 8.3.

As is clear from the statutes, the General Court of Justice in Wake County, in addition to the State Bar, had or has jurisdiction under its inherent powers to provide for any relief needed to address professional misconduct arising out of litigation before the courts. See Swenson v. Thibaut, 39 N.C. App. 77, 250 S.E.2d 279 (1978), cert. denied and appeal dismissed, 296 N.C. 740, 254 S.E.2d 182, 296 N.C. 740, 254 S.E.2d 183 (1979). We need not address whether Cooper has violated the Rules of Professional Conduct nor what, if any, discipline is appropriate, because he is not a party to this action and has not had a chance to defend himself against these charges of misconduct in a trial court.

The State Bar had pled the civil resolution as a bar to this action. The court rejected that position

Professional misconduct in a litigation cannot be dependent upon the outcome of a litigation. Inaction by the State Bar or the courts during the course of the litigation, as the concurrence points out, cannot bar or moot subsequent discipline for professional misconduct. A lawyer’s duty to the truth and his duty to advocate based upon the truth is central to our system of dispute resolution...

With regard to the Plaintiff’s second and third requests for declaratory relief, we agree with the trial court Plaintiff lacks standing to bring these claims. The injury for which Boyce seeks declaratory relief is the State Bar’s refusal to pursue disciplinary action against Cooper, allegedly due to the State Bar’s conflict of interest. We thus address whether that purported injury is one legally cognizable in court.

Unsurprisingly, Plaintiff is not the first attorney who has taken issue with a state bar’s failure to act on a disciplinary grievance and then sought relief from the courts. From our review of the precedent addressing this issue, every jurisdiction that has ever confronted it has concluded that the complainant has not alleged an injury sufficient to confer standing [citations omitted]...

We agree with the precedent from our sister states and hold the Plaintiff has not alleged a cognizable legal injury in this case. The State Bar disciplinary process is intended “to protect the public, the courts, and the legal profession.” N.C. State Bar v. Rogers, 164 N.C. App. 648, 656, 596 S.E.2d 337, 343 (2004). Under our State Bar’s disciplinary procedures, the complainant has no control over when, how, or whether the State Bar pursues his grievance. After reporting the alleged attorney misconduct to the Bar, the complainant’s interest in the case going forward is the same as all other members of the public—to see a state agency protect the public from attorney misconduct by pursuing discipline for unethical behavior. 27 N.C. Admin. Code 1B.0101 et seq.

This is not to propose the State Bar and its officers and investigators are immune from consequences when they ignore a conflict of interest. If those investigators act unethically in the performance of their obligations, they can—and should—face consequences either through executive branch agencies designed to police ethical misconduct, or through a process created by our General Assembly. The mere fact state investigators have an ethical conflict in the performance of their duties does not confer on members of the public the necessary legal standing to bring the dispute directly to court through the Declaratory Judgment Act. To hold otherwise, there would be no reason why similarly situated people—including, importantly, victims of crimes—could not bring suit when they believed those handling their case had a conflict of interest. This runs counter to the long-standing principle that when our government investigates and prosecutes wrongdoers, it does so to vindicate public interests, not private ones. See Linda R.S. v. Richard D., 410 U.S. 614, 619, 93 S. Ct. 1146, 1149, 35 L. Ed. 2d 536, 541 (1973). This, in turn, means those aggrieved by the alleged wrongdoing have no standing to ask the courts to intervene in government investigations or prosecutions.

With these principles in mind, we join our fellow courts in holding a complainant in a state bar disciplinary proceeding lacks standing to ask the courts to intervene in an ethics investigation on the ground the investigators are biased or have a conflict of interest.

We therefore affirm the decision of the trial court with regard to Plaintiff’s second and third claims for relief as set forth in his complaint and reverse the decision of the trial court with regard to Plaintiff’s first claim for relief and remand the matter to the trial court for further action consistent with this opinion.

Judge Dietz concurred

Who watches the watchmen? We have asked that question at least since the days of Greek and Roman philosophers. See Plato, Republic 376c-376d; Juvenal, Satires 6.347-48.

Lawyers employed by the North Carolina State Bar are the watchmen when it comes to allegations of attorney conflicts of interest. In this declaratory judgment action, Boyce seeks an answer to a simple question: when the lawyers at the State Bar have a conflict of interest, who watches them?

One answer, Boyce contends, lies in the concurrent jurisdiction of the court system to regulate lawyers. He argues that the statutes creating the State Bar reserved the inherent power of the courts to discipline lawyers. Thus, the courts retain the power to hear claims of attorney misconduct when the claimants have shown that the Bar has a potential conflict of interest. I agree with the majority that this particular declaratory judgment claim (but not the other claims asserted by Boyce) involves a justiciable legal controversy between these parties that the courts may answer through the Declaratory Judgment Act.

It is worth emphasizing that Boyce has alleged a credible conflict of interest in this case. At the time Boyce submitted his grievance  and was awaiting an investigation by the State Bar, Cooper, then serving as our State’s Attorney General, was representing the Bar in perhaps the highest profile legal issue in State Bar history—a lawsuit by LegalZoom that threatened to upend the Bar’s core mission of licensing and regulating the practice of law in our State. See LegalZoom.com, Inc. v. North Carolina State Bar, No. 11 CVS 15111 (N.C. Super. Ct. 2015).

Cooper appeared in that case as recently as October 2015, a time period that, according to Boyce, overlapped with the submission of his grievance. Moreover, during that same time period, Cooper and his staff routinely represented the State Bar or the Bar’s Disciplinary Hearing Commission. See, e.g., Peggs v. North Carolina State Bar, TA-25890 (N.C. Indus. Comm’n 2017); Harper v. North Carolina State Bar, TA-25285 (N.C. Indus. Comm’n 2016); Sutton v. North Carolina State Bar, No. 5:14- CV-243 (E.D.N.C. 2014).

One does not need to be a lawyer (and certainly not a State Bar lawyer trained to investigate conflicts of interest) to recognize that the State Bar itself has a potential conflict of interest when it is asked to investigate a lawyer who is actively representing the Bar in high-profile litigation, and who may possess confidential information about the Bar and its handling of past attorney discipline investigations.

Moreover, as the majority observes, before the General Assembly created the State Bar, the judicial branch handled lawyer discipline directly through its inherent authority to regulate the lawyers who appear before the courts. When the General Assembly created the State Bar, it emphasized in the enabling statutes that the Bar disciplinary process shall not be “construed as disabling or abridging the inherent powers of the court to deal with its attorneys.” N.C. Gen. Stat. § 84-36.

Indeed, the State Bar has conceded that the courts’ inherent authority to discipline lawyers—even for conduct not occurring in a pending court proceeding— survived the creation of the Bar’s disciplinary procedures. Several years ago, the Bar received a disciplinary complaint against one of Cooper’s employees at the Attorney General’s office. In re Hicks, 14 M 4670 (N.C. Super. Ct. Sept. 12, 2014). That employee had represented the State Bar and the Bar’s Disciplinary Hearing Commission in past legal proceedings. Id

Because of the potential conflict of interest, the Bar referred that matter to the State Bar of Georgia for investigation. Id. After the Georgia ethics investigators found probable cause to pursue discipline, the State Bar then referred the matter to Wake County Superior Court, which appointed a Wake County assistant district attorney to represent the State as “prosecuting counsel.” Id. The court’s order imposing discipline in that case expressly states that “[t]his matter is before the Court upon a referral from the North Carolina State Bar requesting that this court exercise its inherent authority and concurrent jurisdiction over a grievance.” Id.

In sum, there is a justiciable legal controversy concerning the scope of the concurrent jurisdiction of the court system over attorney disciplinary proceedings and the ability of complainants to bypass the State Bar process when they believe the Bar has a conflict of interest. Boyce has standing to seek declaratory relief on this issue from the trial court. I therefore concur in the decision to reverse the trial court’s dismissal of this claim for lack of standing and to remand for further proceedings.

The Charlotte Observer reported on the civil settlement. 

Our earlier post (and my decades-old connection to one of the plaintiffs) is linked here.

Source: Professional Legal Blog