North Carolina Disbars Attorney For Refusing To Produce Documents To Disciplinary Counsel

In North Carolina State Bar v. Phillips, No. COA19-1093, the Court of Appeals of North Carolina affirmed a decision of the trial court to disbar an attorney who failed to comply with court orders requiring him to produce documents concerning his out-of-state clients.

The facts:

Respondent was licensed to practice law in North Carolina, but he advertised himself as available to provide legal services in any state. In January 2017, the North Carolina State Bar (the “State Bar”) Grievance Committee issued Respondent a Letter of Warning for, among other things, engaging in conduct constituting the unauthorized practice of law in another jurisdiction in violation of Rule 5.5 of the Rules of Professional Conduct. Respondent accepted the Letter of Warning.

In May 2017, the State Bar received a new allegation that Respondent was continuing to offer to provide legal services in other jurisdictions. The State Bar sent Respondent a Letter of Notice requiring his response to the allegations. The Letter of Notice requested information about out-of-state clients Respondent represented from 2012 to present. Respondent submitted a response to the Letter of Notice; however, he did not include information about his out-of-state clients. The State Bar modified its request to limit any identifying information from the requested information about out-of-state clients. Respondent submitted another response but still did not provide the requested information.

The Chair of the Grievance Committee issued a subpoena for the requested information, and Respondent moved to quash the subpoena. The President of the State Bar granted Respondent’s motion in part and denied it in part. The Chair of the Grievance Committee then issued a new subpoena to produce the requested information from Respondent modified to be consistent with the President’s order. Respondent moved to quash the second subpoena. A successor President of the State Bar denied Respondent’s motion and ordered him to comply by 16 February 2019.

The State Bar filed a petition on 17 May 2018 in Superior Court, Wake County to enforce the subpoena. The State Bar served Respondent with discovery requests. Respondent objected to the discovery requests and moved for a protective order. Respondent argued that because he had filed grievances against various State Bar counselors and employees after the grievance file was opened, the State Bar had a conflict of interest requiring it to engage outside counsel to investigate him or ask the court to enforce the subpoena. Accordingly, Respondent filed a separate “Motion in the Cause” seeking to require the State Bar to engage outside counsel.

The State Bar moved to compel Respondent to respond to its discovery requests. At a hearing on 5 February 2019, Respondent reiterated his claim that the State Bar had a conflict of interest and was required to engage in outside counsel. The trial court dismissed Respondent’s argument and ordered him to comply with the discovery requests. Throughout this process, the trial court found Respondent in contempt four times for defying its orders compelling him to provide discovery responses. The trial court found that Respondent’s refusal to comply with its orders warranted discipline and disbarred him.

Respondent appeals the following orders: the 12 February 2019 order granting the State Bar’s motion to compel and denying Respondent’s motion for Rule 26(c) protective order, motion to waive Local Rule 5.4, and motion in the cause; the 30 April 2019 order allowing Respondent to amend his pleadings and denying Respondent’s motion to stay pending appeal, motion for judgment on the pleadings, and motion for declaratory judgment; the 30 April 2019 order granting the State Bar’s motion to hold Respondent in civil contempt and denying Respondent’s motion to continue; the 15 May 2019 order granting the State Bar’s motion to hold Respondent in civil contempt; the 31 May 2019 order granting the State Bar’s motion to hold Respondent in civil contempt; and the 31 July 2019 order granting the State Bar’s motion to hold Respondent in civil contempt and the order for disbarment.

The trial court may impose discipline in a matter pending before the court. In re Burton, 257 N.C. 534, 543-44, 126 S.E.2d 581, 588 (1962). Court-imposed discipline is not limited to violations of the Rules of Professional Conduct. Id. “A proceeding against an attorney for alleged dishonest or unethical conduct may result in disbarment.” Id. Respondent has failed to cite a specific finding of fact or conclusion of law that is alleged error. Moreover, Respondent also presented no evidence concerning the discipline that should have been imposed. Indeed, Respondent repeatedly failed to comply with the court’s orders and has failed to show that the disbarment was not the result of a reasoned decision. Accordingly, the trial court did not err.

North Carolina has different procedures than Illinois, but the principle is the same: you must comply with a lawful order to produce documents in a disciplinary case.

Ed Clinton, Jr.

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