Cooper ethics complaint case sent back to trial court

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An attorney who contends that the North Carolina State Bar should have referred an ethics complaint against Gov. Roy Cooper to an independent investigator will not be able to challenge the bar’s failure to do so in state court, the Court of Appeals has ruled.

But Raleigh lawyer Gene Boyce will be able to ask the Wake County Superior Court for a declaration that it has concurrent jurisdiction to resolve matters of attorney discipline and misconduct.

The long-running dispute between Boyce and Cooper dates back to a campaign ad from Cooper’s 2000 race for Attorney General against Boyce’s son, Dan. The Boyces filed a defamation suit against Cooper that was not resolved until 2014 with a settlement agreement under which Cooper admitted that he had made false statements about Dan Boyce in the ad and agreed to pay damages.

Gene Boyce reported the matter to the bar, alleging that Cooper violated the Rules of Professional Conduct by making false statements. After the bar declined to take public action in the matter, Boyce sued the bar, alleging that it had a conflict of interest because at the time Cooper was the Attorney General, and thus the bar’s attorney of record in litigation. He noted that in 2014 the bar asked the State Bar of Georgia to review a grievance against an attorney in Cooper’s office.

Boyce sought three types of relief: the declaration about concurrent jurisdiction, plus declarations that the bar should have referred the complaint against Cooper to an independent party and that the bar was obligated to refer to an appropriate forum Boyce’s complaints about the conduct of the bar’s own investigators in the matter. A Wake County Superior Court judge dismissed the suit in 2016, finding that Boyce lacked standing to bring the suit and that the complaint presented no viable case or controversy.

Who watches the watchmen?

On April 3, a unanimous Court of Appeals panel affirmed the dismissal of the latter two requests, but said that Boyce had standing to bring an action seeking interpretation of the statutes on concurrent jurisdiction for a court to discipline attorneys’ misconduct.

Judge Robert Hunter, writing for the court, noted that although the case presented a new issue for North Carolina’s courts, there were numerous cases from other states where an attorney had taken issue with a state bar’s failure to act on a disciplinary grievance and then sought relief from the courts. Every jurisdiction that has ever confronted the question has concluded that such suits do not allege an injury sufficient to confer standing, he said.

“After reporting the alleged attorney misconduct to the Bar, the complainant’s interest in the case going forward is the same as all other members of the public—to see a state agency protect the public from attorney misconduct by pursuing discipline for unethical behavior,” Hunter wrote.

The court said that its holding doesn’t mean that the bar and its officers and investigators are immune from consequences when they ignore a conflict of interest, but merely that those consequences would have to come either through executive branch agencies designed to police ethical misconduct, or through a process created by the legislature. But the mere fact state investigators have an ethical conflict doesn’t give members of the public standing to take the dispute to court.

“To hold otherwise, there would be no reason why similarly situated people—including, importantly, victims of crimes—could not bring suit when they believed those handling their case had a conflict of interest,” Hunter wrote. “This runs counter to the long-standing principle that when our government investigates and prosecutes wrongdoers, it does so to vindicate public interests, not private ones.”

Ad, infinitum

Conversely, the court said that state law does clearly provide for declaratory relief in the interpretation of state statutes. It noted that the statutes also make clear that the courts have jurisdiction under their inherent powers to provide for any relief needed to address professional misconduct arising out of litigation before the courts. Hunter said that Boyce was not asking the court to make a declaratory ruling about whether Cooper, who was not a party to the lawsuit, had committed misconduct, and the court was not addressing whether any had occurred.

The court also rejected the bar’s argument that the settlement of Boyce’s private claim would act as a bar to disciplinary action for ethical misconduct.

Boyce represented himself in the case. Boyce said that the first question, the one on which the appeals court reversed the trial court and remanded the case, was the crux of the case, and that he was pleased with the court’s ruling and did not plan to ask the Supreme Court to review the decision.

“The main issue they ruled on was the really the point of the case that related not only to me, but to all licensed persons who are regulated by the agencies that tell people how they make a living. It wasn’t just about me,” Boyce said. “I proceeded because there are 57 licensing agencies in North Carolina, and now the rule of law is that if a licensee is mistreated by the agency, the licensee can get a declaratory judgment ruling on the agency being required to follow certain ethical rules.”

Boyce said that it would now be up to the Wake County Superior Court to take action one way or the other on his report regarding Cooper.

David Johnson and Katherine Jean represented the bar. Jean said it would be inappropriate for the bar to comment publicly on the ruling.

The 23-page decision is Boyce v. North Carolina State Bar (Lawyers Weekly No. 011-113-18). The full text of the opinion is available online at nclawyersweekly.com.

Follow David Donovan on Twitter @NCLWDonovan