Publisher's note: The author of this post is Don Carrington, who is Associate Publisher for the Carolina Journal, John Hood Publisher.
Raleigh attorney asks court to rule that State Bar has conflict of interest in handling complaint involving Cooper's 2000 campaign for attorney general
The 16-year legal battle between Raleigh attorney Gene Boyce and now-Gov. Roy Cooper continued Tuesday before the North Carolina Court of Appeals.
Boyce told a three-judge panel that it should overturn a Wake County judge's decision to dismiss his complaint against the North Carolina State Bar, the state agency that regulates attorneys. Boyce's complaint involves conduct that started in 2000 when Cooper first ran for attorney general. He also told the court the case is important because it may affect the relationship between other state occupational licensing agencies and the people they license.
Boyce filed his complaint in January 2016 and in May Superior Court Judge Donald Stephens ruled that Boyce did not have standing in the matter. Appearing on behalf of the State Bar, attorney David Johnson repeated the argument that Boyce did not have standing in the matter and said the court should dismiss Boyce's appeal.
The three-judge panel included Judges Wanda Bryant, Robert Hunter Jr., and Richard Dietz.
The dispute began in 2000
, when Cooper was the Democratic Party's nominee for attorney general and his main opponent was Republican Dan Boyce, Gene's son.
Cooper won that race and served as attorney general from 2001 until Jan. 1 of this year, when he took office as governor.
Boyce claims that during the 2000 campaign, Cooper knowingly made false statements in political ads that harmed the reputation of Boyce and his law partners. A trial court judge dismissed the lawsuit, but appellate courts ruled in Boyce's favor on several occasions, and in 2014
the matter was scheduled to go to trial
Raleigh attorney Gene Boyce, pictured outside the N.C. Court of Appeals building, has tangled with Roy Cooper in court since 2000. (CJ photo by Don Carrington)
The dispute appeared to be over in April 2014 when Cooper issued a written apology to Boyce for statements Cooper's political campaign made in the political ads. The parties signed an agreement ending the civil action, but Boyce's complaint says that Cooper's conduct is a separate issue to be addressed by the State Bar.
In his complaint, Boyce wants the court to force the State Bar to acknowledge his claims of Cooper's misconduct; declare that the State Bar has a conflict of interest in the matter, because Cooper was the lead attorney for the State Bar; and refer the dispute to an alternative agency for investigation, findings of fact, and discipline if appropriate.
"There has to be some way to get the bar to do its job. Is that what you are seeking?"
Dietz asked Boyce. Boyce said yes.
When asked by Hunter, Johnson said he agreed it was the State Bar's position that all attorneys, including the those who work in the attorney general's office, are subject to the bar's rules.
Boyce told Carolina Journal that he expects the panel to issue a ruling within the next couple of months.
Precedent involves attorney who worked for Cooper
Boyce's remarks to the panel and his legal brief in the appeal argue that a precedent set in 2014 applies to Cooper's situation. The State Bar was handling a complaint involving Faison Hicks, an attorney who worked for Cooper. Since Hicks previously had served as counsel for the State Bar, the State Bar referred the Hicks complaint for an independent review by the Ethics Counsel for the State Bar of Georgia for a probable cause determination.
In 2014 the State Bar became aware that on two occasions, Hicks signed forms stating he attended continuing legal education programs sponsored by the State Bar. Hicks claimed full credit for his attendance even though he had not attended enough hours to qualify for the credit he claimed.
Rule 8.4 of the N.C. State Bar provides in part that it is professional misconduct for a lawyer to "engage in conduct involving dishonesty, fraud, deceit, or misrepresentation."
Hicks acknowledged that he had not attended all the credit hours he claimed, even though he signed the attendance forms.
Instead of handling the discipline through the State Bar, the matter was referred to Wake County Superior Court Judge Donald Stephens.
"Attorney Hicks has no history of previous attorney misconduct resulting in disciplinary action and has admitted and expressed remorse for this misconduct. The court finds and concludes that attorney Hicks intentionally engaged in professional misconduct and that such was willful and did not result from mistake, inadvertence, or neglect. The court has considered all available sanctions and finds that a public reprimand should be issued in this matter. A public reprimand is a serious form of attorney discipline and is warranted for professional misconduct of this nature,"
By issuing a reprimand, Stephens added, "This sanction shall serve as a strong reminder of the high ethical standards of the legal profession."
Hicks is still employed by the N.C. Department of Justice.