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First Amendment won’t stop bar discipline

The First Amendment right to free speech does not immunize attorneys from disciplinary action for statements made outside of a courtroom setting, the North Carolina Court of Appeals has ruled.

The North Carolina State Bar properly exercised its discretion in suspending a Greenville attorney for five years due to a pattern of uncivil behavior, the court said.

The bar suspended David C. Sutton in November 2014. In its order the bar found, among other things, that Sutton engaged in highly unprofessional conduct at a number of dispositions, made false statements before a tribunal and showed disrespectful behavior before a court, posted a video to YouTube in which he accused a sheriff’s department investigator of committing a felony, and left a threatening and insulting voicemail for a detective investigating his client.

The order also found that Sutton had failed to show any remorse for his misconduct, stating that Sutton denied having done anything wrong and had pledged to “continue to conduct himself in the same manner if permitted to continue practicing law.”

Sutton sued the state bar, contending that the bar’s Disciplinary Hearing Commission “encroaches on the judiciary and violates separation of powers” principles and challenging the validity of certain findings of fact and conclusions of law made by the DHC. He also argued that the state’s Rules of Professional Conduct were unconstitutional to the extent that they punished him for engaging in speech protected by the First Amendment. The Court of Appeals panel unanimously rejected each of Sutton’s arguments.

Judge Mark Davis, writing for the panel, found Sutton’s constitutional arguments to be meritless, noting that the state’s Supreme Court has specifically held that the bar and the courts share concurrent jurisdiction over matters of attorney discipline. The court also found that, despite Sutton’s sweeping assertion that the entire disciplinary process “was biased and void of fairness,” Sutton failed to provide any substantive arguments or legal authority supporting this contention.

The court ruled that Sutton had also failed to make any specific arguments supporting his contention that his free speech rights had been infringed, and thus had abandoned the issue on appeal. Nevertheless, the court opted to directly address the line of argument.

“We take this opportunity to reject Defendant’s categorical assertion that the First Amendment provides attorneys with blanket immunity from facing disciplinary sanctions for violating the ethical rules applicable to lawyers in North Carolina simply because those violations involve some form of speech,” Davis wrote. “As a general proposition, the First Amendment does not immunize an attorney from being disciplined for violating the Rules of Professional conduct simply because the attorney employs ‘speech’ in committing the violations. As with all constitutional rights, the right to free speech is not absolute.”

The court also found that the DHC had drawn reasonable conclusions of facts and law in each of the seven separate matters that formed the basis for his suspension.

Sutton represented himself on appeal, as he did before the DHC. (The court also rejected Sutton’s argument that the DHC violated his right to counsel by requiring him to choose between representing himself or being represented by counsel.)

Sutton said that the reason why his appeal brief did not raise the First Amendment with specificity was that the DHC had denied his repeated requests for a hearing to adjudicate the issues, and so there was no record for the appeals court to review.

“I argued that everything I was alleged to have done happened outside of any courtroom. “There is no precedent for regulation of a lawyer’s speech outside of a courtroom and outside of a legal proceeding,” Sutton said. “I’ve never had a hearing on the First Amendment issues, not one, and I think that’s a problem. That should be frightening for lawyers.”

One of the seven allegations did involve Sutton’s conduct at a 2012 trial in Greene County Superior Court. Sutton said that he planned to petition the Supreme Court to review the appeals court’s ruling.

The 46-page decision is North Carolina State Bar v. Sutton (Lawyers Weekly No. 011-342-16). The full text of the opinion is available online at

Follow David Donovan on Twitter @NCLWDonovan


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