North Carolina: Attorney Sanctioned for Filing Motions

Link for opinion: http://www.lexisnexis.com.proxy.msbcollege.edu/hottopics/lnacademic/


In In re Small, 689 S.E.2d 482, (2009 N.C.), the Cabarrus County Superior Court ordered Attorney, Benjamin Small to pay $500 fine as sanction for filing motions that were in violation of court rules, found to be vexatious and without merit and were filed for improper purpose of harassing the district attorney. Small argued he was deprived of due process rights when he wasn’t provided with adequate advance notice that sanctions could be imposed.
The State's Response to Motion to Recuse alleged that "defense counsel is merely being vindictive by filing this frivolous Motion since this will not agree to the counteroffer and defense counsel is therefore acting unprofessionally, unethically and not in the best interest of his client." The State also alleged that "defense counsel has become too personally involved in this case to the extent that all reasonableness and professionalism has been skewed."
After alleging that Small had violated Rules 3.3(a)(1), 4.1(1), and 8.4 of the Rules of Professional Conduct, the State requested, among other things, that: (1) "defense counsel be removed from the court-appointed list until such time as this Court finds that defense counsel can conduct himself in a professional, objective and rationale manner in representing his clients" and (2) "defense counsel be sanctioned for blatant violations of [Rules of Professional Conduct] 3.3(1), 4.1(1) and 8.4."
Court conclude that Small had notice that sanctions may be imposed for filing defendant's Motions to Recuse and Continue, had notice of the grounds upon which those sanctions were imposed against him, and had an opportunity to address those grounds throughout the entire hearing on defendant's motions.