Matter of Dale

247 S.E.2d 246 (1978)

37 N.C. App. 680

In the Matter of the Right to Practice Law of Wheeler DALE, Esq.

No. 7725SC664.

Court of Appeals of North Carolina.

August 29, 1978.

*248 Atty. Gen. Rufus L. Edmisten by Sp. Deputy Atty. Gen. John R. B. Matthis and Associate Atty. Gen. Acie L. Ward, Raleigh, for the State, appellee.

Simpson, Baker & Aycock by Dan R. Simpson and Samuel E. Aycock, Morganton, for respondent-appellant.

ERWIN, Judge.

The record shows this respondent did not take any action to perfect an appeal or seek judicial review for his client, who had been sentenced to death. Notice of appeal was given on 3 June 1976, and yet on 11 May 1977, the respondent had to be removed from the case because he had not perfected the appeal.

This Court held as follows in In the Matter of the Right to Practice Law of Harold Robinson, opinion filed 29 August 1978, N.C.App., 247 S.E.2d 241, 246 (1978):

"There is no question that a Superior court, as part of its inherent power to *249 manage its affairs, to see that justice is done, and to see that the administration of justice is accomplished as expeditiously as possible, has the authority to impose reasonable and appropriate sanctions upon errant lawyers practicing before it. Sanctions available include citations for contempt, censure, informing the North Carolina State Bar of the misconduct, imposition of costs, suspension for a limited time of the right to practice before the court, suspension for a limited time of the right to practice law in the State, and disbarment. See In re Burton, 257 N.C. 534, 126 S.E.2d 581 (1962); In re Hunoval, 294 N.C. ___, 247 S.E.2d 230 (1977); In re Bonding Co., 16 N.C.App. 272, 192 S.E.2d 33, cert. denied 282 N.C. 426, 192 S.E.2d 837 (1972); Colon v. U.S. Attorney for the District of Puerto Rico, 576 F.2d 1, CA 1, 1978; Annot. 96 A.L.R.2d 823. * * * * * * [R]espondent argues, and we agree, that upon the face of the charges it appears that Judge Snepp prejudged respondent's conduct before hearing any evidence. We do not believe that Judge Snepp had in fact prejudged respondent's conduct. We think the wording of the specifications was an effort by Judge Snepp to fully advise respondent of the seriousness of the inquiry. Nevertheless it was an unfortunate and inappropriate choice of words and we cannot permit this record to stand. . . . * * * * * * We think Judge Snepp's unfortunate and inappropriate choice of words came from the idea of necessity for specific allegations in a third party complaint, rather than from bias or prejudice. Nevertheless, we must render our opinion from the record before us. Having drafted his notice in the form of specific allegations of misconduct it was incumbent upon Judge Snepp to disqualify himself, as he was requested by respondent, and to refer the inquiry to another judge. To perform its high function in the best way our courts must not only do justice but they should give the appearance of doing justice. In our opinion Judge Snepp was in error when he refused to disqualify himself and his order must be vacated."

The language used in the specification in the case before us is almost identical to that used in In the Matter of the Right to Practice Law of: Harold Robinson, Esq., supra. There Judge Snepp's order was vacated as it must be here.

To provide for uniformity in these very similar cases, we adopt and follow In the Matter of the Right to Practice Law of: Harold Robinson, Esq., supra.

However, the vacating of Judge Snepp's order does not require dismissal of this proceeding nor does it require a remand for a new hearing. A new hearing would serve no useful purpose. The facts are not materially in dispute and respondent has been accorded full opportunity to present his evidence. We are here concerned with the inherent power of the court to discipline errant attorneys. The facts are before us just as if we had instituted this inquiry and had referred it to the Superior Court for hearing. Therefore, we will exercise our inherent power in this matter before us. The questions of mitigating circumstances and appropriate sanctions have been fully and zealously presented and argued in respondent's brief.

We therefore by this opinion notify respondent that we have before us the record as prepared and filed with us by respondent; that as soon as briefs have been filed, should respondent elect to do so, this matter will be further heard in this Court on the record and briefs; that this Court will consider what discipline, if any, should be imposed upon respondent for his conduct as disclosed by the record before us; that this cause is set for rehearing before this Court as follows: respondent has until and including 20 October 1978 to file his brief addressing the questions of whether this Court should exercise its inherent power to determine what discipline, if any, should be imposed upon respondent, and, if any, the extent thereof; and the State has until and *250 including 9 November 1978 to file its brief addressing the same questions.

The result is that the order appealed from is vacated and this cause is retained in this Court for further proceedings.

Order vacated.

Cause retained.

ARNOLD, J., concurs.

BRITT, J., concurs in the result.

BRITT, Judge, concurring:

I concur with the result reached in the opinion written by Judge Erwin. However, I question the part of the statement quoted from In the Matter of the Right to Practice Law of: Harold Robinson, Esq., to the effect that "as part of its inherent power to manage its affairs" a court now has the authority in imposing sanctions to suspend for a limited time the right to practice law in the State and to disbar an attorney.