North Carolina State Bar v. Shuping

358 S.E.2d 534, 86 N.C. App. 496, 1987 N.C. App. LEXIS 2737
CourtCourt of Appeals of North Carolina
DecidedAugust 4, 1987
DocketNo. 8610NCSB563
StatusPublished
Cited by1 cases

This text of 358 S.E.2d 534 (North Carolina State Bar v. Shuping) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
North Carolina State Bar v. Shuping, 358 S.E.2d 534, 86 N.C. App. 496, 1987 N.C. App. LEXIS 2737 (N.C. Ct. App. 1987).

Opinion

COZORT, Judge.

In a complaint filed by the North Carolina State Bar, the defendant attorney was charged with violating five (5) Disciplinary Rules under the North Carolina State Bar Code of Professional Responsibility. After a hearing before a Hearing Committee of the Disciplinary Hearing Committee, the Hearing Committee found that the defendant had committed the acts as alleged in the complaint and concluded that the defendant’s acts constituted a violation of one (1) of the Disciplinary Rules cited in the complaint. In its Order of Discipline, the Hearing Committee issued a Public Censure. The State Bar appeals, alleging the Hearing Committee erred by failing to conclude that the other Disciplinary Rules cited in the complaint also had been violated. We agree in part with the State Bar’s contention, and we remand the case for further consideration by the Disciplinary Hearing Commission. Pertinent facts and procedural history follow.

This case arose out of an estate proceeding in Guilford County. The defendant, C. Leroy Shuping, Jr., a licensed attorney since 1947, was named co-executor for the Estate of Hubbard Harvey Longest on 6 March 1979. On 4 February 1983, the co-executor of the estate filed a petition to revoke defendant’s letters testamentary, alleging, inter alia, that defendant had advanced himself fees without the approval of the clerk of court as required by law, and had not timely filed required documents. On 16 January 1984, an order revoking the defendant’s letters testamentary was affirmed by Superior Court Judge Hal Hammer Walker, the defendant was removed as co-executor, and defendant was ordered to account to the co-executor for all the assets of the estate. On appeal the Court of Appeals affirmed in an opinion filed 7 May 1985. In re Estate of Longest, 74 N.C. App. 386, 328 S.E. 2d 804 (1985). In that opinion, this Court upheld the findings that defendant was late in filing accounts of the estate, id. at 392, 328 S.E. 2d at 808, and had “improperly advanced himself the sum of $32,950.00 from the estate.” Id. at 394, 328 S.E. 2d at 809.

On 26 August 1985 the North Carolina State Bar (hereinafter “plaintiff,”) filed a complaint against the defendant. The complaint alleged these pertinent facts:

4. On or about March 6, 1979, the Defendant received letters testamentary as co-executor of the estate of Hubbard [498]*498Harvey Longest from the Guilford County Clerk of Superior Court. The Defendant was the decedent’s attorney at the time of his death. The decedent’s sister, Virginia L. Burroughs, a resident of the State of Virginia, also received letters testamentary as co-executor.
5. Shortly after their appointment, the co-executors agreed that the Defendant would be solely responsible for preparing and filing the 90-day inventory, the annual and final accounts, and the various tax returns. The Defendant and Burroughs also agreed that the Defendant would be solely responsible for maintaining the estate’s books of account and checkbook.
6. On or about August 30, 1979, the Defendant filed the estate’s 90-day inventory approximately 53 days late. No extension of time for filing had been obtained.
7. On or about October 22, 1980, the Defendant filed the estate’s first annual account approximately 196 days late. Prior to filing the account, the Defendant received notices dated May 16, 1980, and September 18, 1980, from the Clerk of Superior Court that the annual account was overdue. The estate’s first annual account was not approved by the Clerk of Superior Court because no petition for or order allowing $3,750.00 in undifferentiated commissions and attorneys fees which had already been disbursed by the Defendant to himself was filed with the account. A copy of the first annual account is attached hereto, identified as Plaintiffs Exhibit #1, and incorporated by reference as if fully set forth herein.
8. The Defendant was sent notices from the Clerk of Superior Court on November 10, 1980, February 18, 1981, April 13, 1981, May 15, 1981, July 10, 1981, and August 28, 1981, soliciting the petition and order referred to in the preceding paragraph. The Defendant did not file a petition for allowance of his fees and commissions until January 3, 1983.
9. The Defendant was sent notices from the Office of the Clerk of Superior Court informing him that the estate’s second annual account was overdue on April 13, 1981, May 15, 1981, July 10, 1981, and August 28, 1981. On or about Sep[499]*499tember 17, 1981, the Assistant Clerk of Superior Court entered an order in the estate requiring the Defendant to file the account within twenty days of service. The Defendant was subsequently granted an extension to file the account until December 21, 1981.
10. On or about December 16, 1982, the Defendant filed the estate’s second annual account approximately two years and nine months late. A copy of the account is attached hereto, identified as Plaintiffs Exhibit #2, and incorporated by reference as if fully set forth herein.
11. The second annual account filed by the Defendant was not approved by the Clerk of Superior Court because it reflected payments of $8,600.00 in undifferentiated attorneys fees and commissions to the Defendant and was unsupported by a petition for and an order allowing such payments.
12. On or about December 16, 1982, the Defendant filed the estate’s third annual account approximately one year and nine months late. The third annual account was not approved by the Clerk of Superior Court because it reflected payments of $12,350 in undifferentiated attorneys fees and commissions to the Defendant and was unsupported by a petition for and or order allowing such payments. A copy of the account is attached hereto, identified as Plaintiffs Exhibit #3, and incorporated by reference as if fully set forth herein.
13. On or about March 7, 1983, the Defendant filed the estate’s fourth annual account. This account reflected payments of $8,250.00 in undifferentiated attorneys fees and commissions to the Defendant and was unsupported by an order allowing such payments. A copy of this account is attached hereto, identified as Plaintiffs Exhibit 4, and incorporated by reference as if fully set forth herein.
14. During his administration of the estate the Defendant paid to himself without the prior approval of the Clerk of Superior Court sums totalling $32,950.00 for his services as co-executor and attorney for the estate. Of that amount, the Defendant paid himself $29,200.00 after he had received notice from the Clerk’s office that his first annual account [500]*500would not be approved unless supported by an order allowing the fees and commissions he claimed.
15. On or about September 20, 1983, the Clerk of Superi- or Court, on motion of the co-executor Burroughs, revoked the letters testamentary of the Defendant pursuant to North Carolina General Statutes § 28A-9-l(a)(3) finding that the Defendant’s failure to file timely inventories and accounts, withdrawing fees and commissions without the approval of the Clerk of Superior Court, and failure to duly and timely respond to orders and notices from the Clerk of Superior Court constituted default or misconduct within the meaning of that statute. That order was affirmed by order of the Superior Court dated January 16, 1984.

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Bluebook (online)
358 S.E.2d 534, 86 N.C. App. 496, 1987 N.C. App. LEXIS 2737, Counsel Stack Legal Research, https://law.counselstack.com/opinion/north-carolina-state-bar-v-shuping-ncctapp-1987.