Holley v. Burroughs Wellcome Co.

289 S.E.2d 393 (1982)

Dianne HOLLEY, Individually and as Guardian of the Estate of Ervin Lee Holley, Incompetent v. BURROUGHS WELLCOME CO., A North Carolina Corporation, and Ayerst Laboratories, A Division of American Home Products Corporation.

No. 8114SC694.

Court of Appeals of North Carolina.

March 16, 1982.

*396 Sanford, Adams, McCullough & Beard by Robert W. Spearman, Raleigh, for plaintiff-appellant.

Teague, Campbell, Conely & Dennis by Richard B. Conely, Raleigh, for defendant-appellee.

Narron, O'Hale and Woodruff, P. A. by Gordon C. Woodruff, Smithfield, on behalf of the North Carolina Academy of Trial Lawyers, amicus curiae.

WELLS, Judge.

The statutory provisions under which lawyers not licensed in North Carolina may be admitted to practice pro hac vice in North Carolina are found in G.S. 84-4.1, as follows:

§ 84-4.1. Limited practice of out-of-state attorneys. Any attorney regularly admitted to practice in the courts of record of another state and in good standing therein, having been retained as attorney for any party to a legal proceeding, civil or criminal, pending in the General Court of Justice of North Carolina, or the North Carolina Utilities Commission or the North Carolina Industrial Commission may, on motion, be admitted to practice in the General Court of Justice or North Carolina Utilities Commission or the North Carolina Industrial Commission for the sole purpose of appearing for his client in said litigation, but only upon compliance with the following conditions precedent: (1) He shall set forth in his motion his full name, post-office address and status as a practicing attorney in such other state. (2) He shall attach to his motion a statement, signed by his client, in which the client sets forth his post-office address and declares that he has retained the attorney to represent him in such proceeding. (3) He shall attach to his motion a statement that unless permitted to withdraw sooner by order of the court, he will continue to represent his client in such proceeding until the final determination *397 thereof, and that with reference to all matters incident to such proceeding, he agrees that he shall be subject to the orders and amenable to the disciplinary action and the civil jurisdiction of the General Court of Justice and the North Carolina State Bar in all respects as if he were a regularly admitted and licensed member of the Bar of North Carolina in good standing. (4) He shall attach to his motion a statement to the effect that the state in which he is regularly admitted to practice grants like privileges to members of the Bar of North Carolina in good standing. (5) He shall attach to his motion a statement to the effect that he has associated and has personally appearing with him in such proceeding an attorney who is a resident of this State and is duly and legally admitted to practice in the General Court of Justice of North Carolina, upon whom service may be had in all matters connected with such legal proceedings, or any disciplinary matter, with the same effect as if personally made on such foreign attorney within this State. (6) Compliance with the foregoing requirements shall not deprive the court of the discretionary power to allow or reject the application.

Judge Bailey found Moore's affidavit to be non-conforming in two respects. We agree that Moore's affidavit is not accompanied by the statement from his client, plaintiff in this action, as required under Subsection (2) of the statute. Such a statement is clearly required, and this requirement cannot be met by substituting the statement of North Carolina counsel. The statement must be signed by the client.

We do not agree that Moore's affidavit failed to meet the requirements of subsection (1) of the statute. We hold that a declaration by an applicant that he is a member in good standing of the Bar of another state and is duly licensed and admitted to practice in that state is sufficient to meet the requirements of subsection (1).

Judge Bailey's order is tainted by a more fundamental error. He found that Moore's affidavit did not meet the requirements of the statute, yet he denied Moore's application in the exercise of his discretion. In In re Smith, 301 N.C. 621 at 631, 632, 272 S.E.2d 834 at 841 (1980), our Supreme Court made it abundantly clear that unless and until a G.S. 84-4.1 application meets the requirements of the statute, the court's discretionary power is not invoked:

The discretionary power of the court expressed in G.S. 84-4.1(6) arises "only upon compliance with the ... conditions precedent" contained in G.S. 84-4.1(1-5). Those conditions must first be met. Then and only then does the court have "discretionary power to allow or reject the application." . . . . . Unless and until subsections (1) through (5) are complied with, the court has no discretion whatever.

Plaintiff has a fundamental right to select counsel who will represent her; Hagins v. Redevelopment Comm., 275 N.C. 90, 165 S.E.2d 490 (1968), and plaintiff should be allowed every reasonable opportunity to exercise that right.

Had Judge Bailey ruled as a matter of law that Moore's application failed to meet the requirements of the statute, plaintiff could have requested leave to amend and correct the deficiencies found by Judge Bailey. Judge Bailey having erroneously exercised his discretion in the matter, we are persuaded that the interests of justice require that his order be vacated and the matter remanded for further proceedings consistent with this opinion.

Vacated and Remanded.

HILL and BECTON, JJ., concur.