Judge McGuire came down pretty hard on a Florida attorney admitted pro hac vice (meaning “for this one particular occasion”) by another Superior Court Judge, in McCarthy v. Hampton, 2016NCBC 4. He revoked the lawyer’s admission and barred him from practicing law in North Carolina for the next two years.
What had this attorney done to warrant his expulsion from the North Carolina courts? Judge McGuire said that:
Attorney McCarthy has not only engaged in a course of conduct that does not meet the standard expected of attorneys practicing in North Carolina courts, but that conduct has also delayed this action, caused unnecessary additional expense, and has generally frustrated this Court’s efforts to resolve the dispute.
You might remember the McCarthy case from a post here in July, which involved the Plaintiff”s effort to squirm out a settlement reached during a mediation. Judge McGuire rejected those efforts, saying:
“[t]he fact that plaintiff later changed [his] mind does not render the settlement agreement unenforceable.” Order ¶29 (quoting Smith v. Young Moving & Storage, Inc., 167 N.C. App. 487, 494 (2004)).
He also said “that Plaintiff now seems dissatisfied with the agreement reached does not render the [agreement] unenforceable.” Order ¶30 (emphasis added).
If you want more specifics on what led to the revocation, last week’s ruling was prompted by actions by Plaintiff’s attorney which frustrated the conclusion of the settlement. Those included:
- Not telling Defendant’s counsel that the Plaintiff did not have the $155,000 necessary to fund his settlement obligation until five days after the due date for the payment had passed.
- Not informing the Court of his client’s inability to pay the $155,000 until the Court had set a hearing on a Motion to Show Cause why the Plaintiff should not be held in contempt for not making the payment.
- Refusing to participate in the appraisal process required by the Settlement Agreement mandating the valuation of real property owned by an LLC in which the parties shared an interest. That required a Motion by the Defendants, resulting in a further unpublished ruling directing the appraisal to proceed.
- “Misrepresenting and obfuscating” that his client had filed a bankruptcy petition. The attorney informed the Court that his client had filed for bankruptcy when the petition had not yet been filed.
You might be wondering whether Judge McGuire had the power to revoke McCarthy’s pro hac admission. The Order admitting the attorney to appear in the NC case was granted by another Superior Court Judge, before the case was designated to the Business Court.
That is not one Superior Court Judge overruling another, because G.S. §84-4.2 says that a pro hac admission can be “summarily revoked” by the Court in its discretion. The NC COA has ruled explicitly that a state court judge may withdraw the pro hac privileges granted by another judge. Smith v. Beaufort County Hospital Association, Inc., 540 S.E.2d 775 (N.C. App. 2000).
As for the two year ban on the attorney’s right to be admitted pro hac vice in North Carolina, it is likely to be far longer than that. The statute setting forth the requirements for a pro hac admission (G.S. §84-4.1) says that the applicant must disclose a record of “all that attorney’s disciplinary history.” Discipline is defined to include any “revocation of any pro hac vice admission.” §84-4.1(6). There is no time limit on the disclosure of a revocation, so any Superior court Judge considering granting pro hac admission by this attorney will likely be hesitant to do so given this decision.
If you’ve noticed that haven’t written about the first three 2016 Opinions from the Business Court before this one that I haven’t written about, you can attribute it to my not finding them interesting enough to write about plus a dose of laziness on my part.