- A probable cause determination must be made after the State Bar hearing.
- Defendant Nifong has the due process right to defend himself against the charges brought by the State Bar, as a regulatory agency, and against the charges subject to an inquiry by the superior court at separate points in time, and not simultaneously.
A reading of the statute helps to better understand the Appellate Court's decision and demonstrates clearly that Judge Hudson, in deciding to wait to evaluate whether the charges, if true, merit removal, and whether probable cause to believe them true exists, ignored the statutory directive to, within thirty days, review the affidavit and perform the "two-pronged" analysis required by law.
“Upon filing of an affidavit seeking removal of a district attorney, the superior court is required to perform a two-prong analysis. First, the court must determine whether “the charges if true constitute grounds for suspension” of the district attorney. Second, the court must also find “probable cause for believing that the charges are true.” If the court finds both of these things exist, then a hearing is to be held upon the charges, upon due notice to the district attorney.”
"A proceeding to suspend or remove a district attorney is commenced by filing with the clerk of superior court of the county where the district attorney resides a sworn affidavit charging the district attorney with one or more grounds for removal. The clerk shall immediately bring the matter to the attention of the senior regular resident superior court judge for the district or set of districts as defined in G.S. 7A‑41.1(a) in which the county is located who shall within 30 days either review and act on the charges or refer them for review and action within 30 days to another superior court judge residing in or regularly holding the courts of that district or set of districts. If the superior court judge upon review finds that the charges if true constitute grounds for suspension, and finds probable cause for believing that the charges are true, he may enter an order suspending the district attorney from performing the duties of his office until a final determination of the charges on the merits. During the suspension the salary of the district attorney continues. If the superior court judge finds that the charges if true do not constitute grounds for suspension or finds that no probable cause exists for believing that the charges are true, he shall dismiss the proceeding." [emphasis added]
“Parallel proceedings involve simultaneous or successive investigations and/or litigation of separate criminal and civil actions by different government agencies arising out of the same set of facts.” [emphasis added]
“Perhaps there was a time when the term “parallel proceedings” was not part of the vocabulary of in-house counsel and private practitioners. If that were ever true, it is certainly not the case today. Parallel proceedings, and the challenges they give rise to, in terms of legal issues and strategic choices, have become commonplace.
“As a general rule, parallel proceedings is a term that refers to two different circumstances. The first involves two actions, one civil and one criminal, both brought by the government, either concurrently or successively, in which the allegations of unlawful conduct arise out of the same set of facts. The second involves two actions, again arising out of the same facts or transactions, and again concurrent or successive, one of which is brought by the government as a criminal prosecution or enforcement action, while the other is brought as a civil action by a private plaintiff.”
“Does the government have the power to conduct parallel civil and criminal proceedings, or should it be required to make a choice as to how to respond to perceived unlawful conduct? The Supreme Court supplied the answer to this question in United States v. Kordel, 379 U.S. 1 (1970), in which it stated that “[I]t would stultify enforcement of federal law to require a government agency invariably to choose either to forgo recommendation of a criminal prosecution once it seeks civil relief, or to defer civil proceedings pending the ultimate outcome of a criminal trial.”
“It is standard practice for different government agencies to investigate the same set of circumstances. Such parallel proceedings typically involve a civil or administrative entity, like the Internal Revenue Service or the Securities and Exchange Commission, and a criminal authority, like the U.S. attorney’s office. Parallel proceedings are not necessarily separate proceedings — they often involve significant cooperation and coordination among government agencies. These investigations may be simultaneous or sequential and they can result in potential sanctions ranging from administrative orders (disbarment, disgorgement, etc.) to imprisonment.”
“5-13.1 DEFINITION OF PARALLEL PROCEEDINGS.“Parallel proceedings are defined as situations where both criminal and civil investigations/cases are in progress at the same time. An example would be where a trustee is conducting an adversary proceeding to recover property in a chapter 7 case, while, at the same time, there is a criminal investigation of the debtor for bankruptcy fraud involving concealment of the same asset..“5-13.2 NEED FOR PARALLEL PROCEEDINGS.“Because both civil and criminal investigations and proceedings may consume a great deal of time, it is usually impractical to hold one in abeyance for any substantial length of time while the other proceeds to conclusion. Thus, it is normal for both criminal and civil cases to proceed at the same time. Due consideration must be given to both proceedings to ensure that one does not improperly impact the other.”
“We do note, however, that concurrent disciplinary proceedings against Judge Ryman have concluded in the Judicial Tenure Commission and are now pending on petition for review before this Court. These Tenure Commission proceedings involve a number of charges of misconduct concerning activities both prior to and during Judge Ryman's judicial tenure. The present State Bar and General Court Rules regarding the jurisdiction of the State Bar Grievance Board (State Bar Rules 15 and 16) and the Judicial Tenure Commission (GCR 1963, 932) appear to permit such parallel proceedings (Cf. In re Kapcia, 389 Mich 306; 205 NW2d 436 ).” …“We conclude that the hearing panel's and board's findings and conclusions are properly supported on the whole record. We further conclude that these findings and conclusions fully support and warrant disciplinary action.”
“The following is a sample of the representations handled by Mr. Lynch:“Defense of attorney in parallel proceedings before the Grievance Committee and in District Court, resulting in dismissal for the Defendant attorney.”
“We regularly represent corporate officers and directors in both judicial and regulatory proceedings, covering cases involving insider trading, stock manipulation, revenue recognition issues, other accounting practices, mergers and acquisitions, and issues of corporate control and management. We routinely provide clients with securities advice.
“We frequently represent parties in parallel proceedings that include securities class actions, Securities Exchange Commission regulatory and enforcement matters, and grand jury proceedings.”
“We understand and have had long experience in dealing with “parallel proceedings,” which involve regulatory, criminal, and civil issues simultaneously. Depending on how matters are investigated and prosecuted by the government and private parties, these may include:
- Civil forfeiture and penalty proceedings brought by the government
- Civil litigation by private parties or by class action plaintiffs
- “Whistle blower" lawsuits or Qui Tam actions under the Federal False Claims Act or similar state laws
- Unfair competition litigation under the antitrust statutes, California’s Unfair Competition Law (§ 17200) and other state laws Employment problems
- Regulatory proceedings
- Legislative oversight inquiries
- Adverse publicity and its potential to generate further investigation
- Disbarment proceedings"