June 7, 1995
The Honorable N. Leo Daughtry Chairman House Judiciary I Committee
N.C. House of Representatives Room 2301, State Legislative Building Raleigh, North Carolina 27601-1096
RE: Advisory Opinion; Constitutionality of S.B. 166 and Chapter 84 of the General Statutes
Dear Representative Daughtry:
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