Appeals Court offers mixed news to Raleigh attorney in legal action involving Cooper
EDITOR’S NOTE: This story and its headline have been updated after CJ received comments from plaintiff Gene Boyce.
A Raleigh attorney will not be able to force the State Bar to seek an outside review of his professional misconduct complaint against Gov. Roy Cooper. A three-judge panel of the N.C. Court of Appeals reached that decision more than one year after hearing arguments in the case.
But attorney Gene Boyce argues that he won the case and that the State Bar lost. That’s because the judges overturned part of a trial court’s ruling against Boyce. The appellate ruling will allow Boyce to pursue his argument that the State Bar does not have sole jurisdiction over ethics and misconduct complaints involving N.C. lawyers.
“I’m very happy,” Boyce said in an email. “I won, not just for me and 22,000 lawyers, but for 57 state agencies. Even Hairdressers/Cosmetic Artists (69,772) and Nurses (140,241) and Realtors (59,336) and Doctors (41,007), etc., have the right of honest government rulings about workers’ conduct in how they make their living day to day.”
The appellate judges agreed that Boyce does not have standing to force the Bar to turn his complaint against Cooper over to another agency. Boyce had argued that the Bar had a conflict of interest since Cooper had served as the Bar’s attorney while working as state attorney general prior to the 2016 election.
The misconduct complaint arose from a longstanding legal fight between Boyce and Cooper resulting from the 2000 election for N.C. attorney general. Boyce had alleged that Cooper purposely maligned his reputation while campaigning against Boyce’s son in that election.
After 14 years of legal wrangling, Cooper apologized to Boyce. In connection with that fight, Boyce argued that the State Bar should discipline Cooper for violating two portions of the legal Rules of Professional Conduct.
Boyce argued in front of the three-judge appellate panel on Feb. 7, 2017. Judges issued their ruling nearly 14 months later.
The Appeals Court upheld most of a trial court ruling against Boyce and in favor of the State Bar. The one exception involved Boyce’s standing to seek a declaration that attorney discipline and misconduct matters could be addressed by forums other than State Bar proceedings. Appellate judges reversed the trial court’s ruling and agreed Boyce could pursue that matter.
In rejecting Boyce’s attempt to have the State Bar seek an outside alternative venue for his Cooper complaint, Judge Robert Hunter writes that he and his colleagues were forced to search for precedents in other states.
“We agree with the precedent from our sister states and hold the Plaintiff has not alleged a cognizable legal injury in this case,” according to Hunter’s opinion. “The State Bar disciplinary process is intended ‘to protect the public, the courts, and the legal profession.’ Under our State Bar’s disciplinary procedures, the complainant has no control over when, how, or whether the State Bar pursues his grievance.
“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 later amplifies his assessment that Boyce did not have legal standing to force the State Bar to proceed against Cooper. “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. 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. This, in turn, means those aggrieved by the alleged wrongdoing have no standing to ask the courts to intervene in government investigations or prosecutions.”
In a concurring opinion, Judge Richard Dietz lends support to Boyce’s argument about a possible conflict of interest in the case. “It is worth emphasizing that Boyce has alleged a credible conflict of interest in this case. At the time Boyce submitted his grievance and was awaiting an investigation by the State Bar, Cooper, then serving as our State’s Attorney General, was representing the Bar in perhaps the highest profile legal issue in State Bar history — a lawsuit by LegalZoom that threatened to upend the Bar’s core mission of licensing and regulating the practice of law in our State.”
“One does not need to be a lawyer (and certainly not a State Bar lawyer trained to investigate conflicts of interest) to recognize that the State Bar itself has a potential conflict of interest when it is asked to investigate a lawyer who is actively representing the Bar in high-profile litigation, and who may possess confidential information about the Bar and its handling of past attorney discipline investigations,” Dietz added.
Boyce says the ruling should prompt some questions. “Will Cooper and the State Bar seek appeal to [the] Supreme Court? I won’t.”