In re the Suspension of the Right to Practice Law of Palmer

MORRIS, Judge. While it appears clearly that the facts found are supported by the evidence and the facts support the judgment, we are, nevertheless, met at the threshold with a question of due process. The record is barren of any notice of any kind to respondent that the court intended to hold a hearing to determine whether he should be disbarred. The General Assembly has provided a statutory method of disciplinary action or disbarment of attorneys. G.S. 84-23; G.S. 84-28, et seq. However, nothing contained in these statutes “ . . . shall be construed as disabling or abridging the inherent powers of the court to deal with its attorneys.” G.S. 84-36. Nevertheless, “ ... it is not after the manner of our courts, however, to deprive a lawyer, any more than anyone else, of his constitutional guaranties or to revoke his license without due process of law. (Citations omitted.)” In re West, 212 N.C. 189, 193, 193 S.E. 134, 136 (1937). [452] Indeed, our Supreme Court has said that the granting of a license to practice a profession is a right conferred by administrative act and the license is a property right. The deprivation of that right is “ a judicial act requiring due process.” In re Burton, 257 N.C. 534, 543, 126 S.E. 2d 581, 588 (1962). The general law with respect to judicial disbarment is succinctly stated in In re Burton, Id. at 544, 126 S.E. 2d at 588-89: “ . . . Where an attorney is on trial, charged with a criminal offense involving moral turpitude and amounting to a felony, and pleads guilty, or is convicted, or pleads nolo con-tendere with agreement that he will surrender his license, the court conducting the criminal trial has authority to disbar him summarily without further proceedings, and on appeal the Supreme Court may do likewise upon motion of the Attorney General. (Citations omitted.) But where the attorney pleads guilty or is convicted in another court, or the conduct complained of is not related to litigation pending before the court investigating attorney’s alleged misconduct, the procedure, to meet the test of due process, must be initiated by a sworn written complaint, and the court should issue a rule or order advising the attorney of the specific charges, directing him to show cause why disciplinary action should not be taken, and granting a reasonable time for answering and preparation of defense, an attorney should be given full opportunity to be heard and permitted to have counsel for his defense. Where issues of fact are raised the court may appoint a committee to investigate and make report. (Citations omitted.)” Here, respondent was not on trial for a criminal offense. The conduct complained of is clearly “related to litigation pending before the court investigating the attorney’s alleged misconduct.” While we do not say that respondent was entitled to a sworn written complaint and a show cause order granting him time to prepare his defense, we do hold that respondent was entitled to notice of the purpose of the hearing held and reasonable time to prepare his defense, if any he had. This is true in spite of the fact that it must have clearly appeared to respondent that the purpose of the court in requiring Edmisten to testify was to inquire further into respondent’s conduct and relationship with his client particularly in view of Oliver’s testimony during the trial and despite whether respondent knew that Edmisten had been granted immunity. Satisfaction of [453] the requirement of due process necessitated notice. Nor can we say that the court’s asking respondent if he wanted to say anything under oath afforded respondent the opportunity to be heard. See In re Ruffalo, 390 U.S. 544, 20 L.Ed. 2d 117, 88 S.Ct. 1222, reh. den., 391 U.S. 961, 20 L.Ed. 2d 874, 88 S.Ct. 1833 (1968). For the reasons stated, the judgment must be vacated and the matter remanded for hearing after notice. Vacated and remanded. Judges Vaughn and Martin concur.