N.C. State Bar v. Musinguzi

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA24-661

Filed 18 June 2025

North Carolina State Bar Disciplinary Hearing Commission No. 22 DHC 21

THE NORTH CAROLINA STATE BAR, Plaintiff,

v.

MARTIN MUSINGUZI, Attorney, Defendant.

Appeal by defendant from orders entered 11 January 2024 and 10 June 2024

by the North Carolina State Bar Disciplinary Hearing Commission. Heard in the

Court of Appeals 29 January 2025.

The North Carolina State Bar, by Deputy Counsel Robert W. Weston and

Counsel Carmen H. Bannon, for plaintiff-appellee.

Dowling PLLC, by Troy D. Shelton, for defendant-appellant.

STROUD, Judge.

Defendant appeals from an Order of Discipline and an Order on Motion for

Relief from Judgment and Lifting Stay from the North Carolina State Bar

Disciplinary Hearing Commission. Defendant is an attorney licensed by the State of

New York who practices in the federal immigration court in North Carolina, but he

is not and has never been admitted to practice in the North Carolina courts. Based

on the plain language of North Carolina General Statute Section 84-28, which grants

“disciplinary jurisdiction” to the Disciplinary Hearing Commission over “[a]ny

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Opinion of the Court

attorney admitted to practice law in this State[,]” the Disciplinary Hearing

Commission did not have subject matter jurisdiction to issue an Order of Discipline

of Defendant, so we reverse the Order of Discipline and the Order on Motion for Relief

from Judgment and Lifting Stay. N.C. Gen. Stat. § 84-28 (2023).

I. Background

The facts in this case are not in dispute. Defendant is a licensed attorney who

is a member of the New York Bar. He is not and has never been a member of the

North Carolina State Bar (“State Bar”). He lives in North Carolina, maintains a law

office in Charlotte, North Carolina, and represents clients in the federal immigration

court in Charlotte. His practice is limited to federal immigration law and Defendant

does not appear in North Carolina state courts, although his clientele in the

immigration court “regularly included North Carolina clients.” Defendant’s law

practice maintained a trust account in North Carolina with Bank of America and as

required by North Carolina Rule of Professional Conduct 1.15-2, this trust account

was registered with the North Carolina Interest on Lawyer’s Trust Account

(“IOLTA”) program.1 In North Carolina, all trust accounts used by attorneys must

be registered with IOLTA. See 27 N.C. Admin. Code 1D.1316. If a lawyer’s trust

1 IOLTA was created by order of the Supreme Court of North Carolina on 23 June 1983 and was

implemented by the North Carolina Bar Association in January 1984. See Amendments to the Code

of Professional Responsibility, 307 N.C. 707, 716-20. It is currently administered by the Board of

Trustees of the North Carolina State Bar Plan for Interest on Lawyers’ Trust Accounts, which is a

standing committee of the North Carolina State Bar Council. See 27 N.C. Admin. Code 1D.1302.

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account has insufficient funds, the bank at which the account is maintained is

required by law to report the insufficient funds to the State Bar. See N.C. R. Pro.

Conduct 1.15-2(f).

In 2017, Bank of America sent the State Bar notices of insufficient funds in

Defendant’s trust account. The notices of insufficient funds resulted from

Defendant’s misappropriation of funds during his representation of clients A.B. and

P.M., both North Carolina residents.2 Ultimately, the State Bar “opened grievance

file number 17G0374 against [Defendant] after receiving” the notice of insufficient

funds. On 27 June 2017, the State Bar served Defendant with a “Letter of Notice in

17G0374” and he responded to the Letter of Notice. The Disciplinary Hearing

Commission (“DHC”) found that as the investigation progressed, Defendant

continued to acknowledge both the State Bar’s disciplinary

jurisdiction over him and his obligation to comply with the

North Carolina Rules of Professional Conduct, including a

Consent Order of Preliminary Injunction he executed in an

action the State Bar brought against him in Wake County

Superior Court, bearing the caption The North Carolina

State Bar v. [Defendant], File No. 17-CVS-15617.

The “consent injunction enjoined [Defendant] from handling entrusted funds.” The

State Bar also reported Defendant’s trust account issue to New York’s First Judicial

Department Attorney Grievance Committee (“Attorney Grievance Committee”). On

26 September 2019, the Attorney Grievance Committee sent a letter to the State Bar

2 The State Bar does not contend that it has disciplinary jurisdiction over Defendant based on his

maintenance of an IOLTA account.

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stating it had “completed its investigation” and “issued a Letter of Admonition” to

Defendant. Later, Defendant “stopped participating in the . . . State Bar disciplinary

process at all.”

On 19 July 2022, the State Bar filed a complaint against Defendant with the

Disciplinary Hearing Commission (“DHC”). The State Bar alleged Defendant failed

to respond to its grievance and requested Defendant be disciplined by the DHC under

North Carolina General Statute Section 84-28. Defendant did not respond to the

complaint and the State Bar eventually “moved for entry of default against

[Defendant], which [the DHC] entered” on 9 May 2023. The State Bar filed an

amended motion for entry of default on 22 August 2023 and an amended entry of

default was entered 23 August 2023. On 11 January 2024, the DHC entered an Order

of Discipline ordering that “Defendant, Martin Musinguzi, is hereby DISBARRED

from the practice of law.” The Order of Discipline also required Defendant to “comply

with all provisions of 27 N.C. Admin. Code 1B.0128” and to take other actions to

terminate his law practice.

On 2 February 2024, Defendant filed a Motion for Relief from Judgment under

Rules 55(d) and 60(b)(4) of the North Carolina Rules of Civil Procedure alleging that

the State Bar and the DHC “lack jurisdiction and authority to discipline someone who

is not a member of the . . . State Bar.” On 5 February 2024, Defendant filed a notice

of appeal from the Order of Discipline to this Court. On 12 February 2024, the parties

filed a Joint Motion to Stay the Order of Discipline pending consideration of

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Defendant’s Motion for Relief from Judgment. On the same date, this Court entered

an order holding the appeal in abeyance and remanding the matter to the DHC to

consider the Motion for Relief from Judgment and certify its order to the Court of

Appeals.3

After hearing on the Motion for Relief from Judgment, the DHC entered an

Order on Motion for Relief from Judgment and Lifting Stay (“Order on Motion for

Relief”) on 10 June 2024. The DHC concluded that “[a]s a licensed lawyer practicing

in North Carolina, [Defendant] is subject to the disciplinary jurisdiction of the . . .

State Bar under N.C. Gen. Stat. § 84-23(a) and Rule 8.5(a) of the Rules of Professional

Conduct, and this Hearing Panel has subject matter jurisdiction over this matter.”

The Order on Motion for Relief did not amend the Order of Discipline, but stated in

the findings of fact that Defendant was

incorrect to interpret the directions in paragraphs 3

through 7 of the decretal section of the Order of Discipline

as requiring him to wind down any portion of his

presentation and practice in North Carolina that is

permitted by federal law before federal courts. Paragraphs

3 through 7 of the decretal section of the Order of Discipline

only apply to any portion of his presentation and practice

in North Carolina not permitted by federal law before

federal courts.

3 This Court’s order required DHC to consider the motion under the procedure established in Bell v.

Martin, 43 N.C. App. 134, 142, 258 S.E.2d 403, 409 (1979), rev'd on other grounds, 299 N.C. 715, 264

S.E.2d 101 (1980), which states “[t]his procedure allows the trial court to rule in the first instance on

the Rule 60(b) motion and permits the appellate court to review the trial court’s decision on such

motion at the same time it considers other assignments of error.”

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Defendant filed written notice of appeal of the DHC’s Order on Motion for Relief that

same day.

II. Jurisdiction

The Order of Discipline was entered on 11 January 2024 and Defendant filed

written notice of appeal on 5 February 2024. The Order on Motion for Relief was

entered on 10 November 2024 and Defendant filed written notice of appeal that same

day.

Under North Carolina General Statute Section 7A-29(a), governing “[a]ppeals

of right from certain administrative agencies[,]” a defendant may appeal “any final

order or decision of . . . the North Carolina State Bar under G.S. 84-28 . . . appeal as

of right lies directly to the Court of Appeals.” N.C. Gen. Stat. § 7A-29(a) (2023).

Under Rule 18(b)(2) of our Rules of Appellate Procedure,

[a]ny party to the proceeding may appeal from a final

decision of an administrative tribunal to the appropriate

court of the appellate division for alleged errors of law by

filing and serving a notice of appeal within thirty days after

receipt of a copy of the final decision of the administrative

tribunal.

N.C. R. App. P. 18(b)(2). Thus, Defendant properly filed his notice of appeal of the

Order of Discipline within 30 days of its entry in compliance with North Carolina

General Statute Section 7A-29(a) and North Carolina Rule of Appellate Procedure

18(b)(2). Defendant then filed a Joint Motion to Stay the Order of Discipline on 12

February 2024 pursuant to this Court’s decision in Bell v. Martin, 43 N.C. App. 134,

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142, 258 S.E.2d 403, 409 (1979), rev'd on other grounds, 299 N.C. 715, 264 S.E.2d 101

(1980).

As Defendant filed timely written notice of appeal of the Order of Discipline

and of the Order on Motion for Relief, this Court has jurisdiction to hear Defendant’s

appeal of each order.

III. Analysis

Defendant contends that the State Bar does not have disciplinary jurisdiction

over him because he is not a member of the State Bar and has not been “otherwise

admitted to practice in North Carolina.” Defendant argues the DHC does not have

subject matter jurisdiction over him for three reasons: (1) “jurisdiction is barred by

the disciplinary jurisdiction statute[,]” North Carolina General Statute Section 84-

28; (2) “jurisdiction is barred by the Supreme Court’s decision in” Disciplinary

Hearing Commission v. Frazier, 354 N.C. 555, 556 S.E.2d 262 (2001); and (3)

“jurisdiction is barred by the [State] Bar’s own rules.” (Capitalization altered.)

Because North Carolina General Statute Section 84-28 limits the DHC’s disciplinary

jurisdiction to attorneys admitted to practice in this State, we reverse the DHC’s

Order of Discipline and Order on Motion for Relief.

A. Standard of Review

“[W]hen the pertinent inquiry on appeal is based on a question of law—such as

whether the trial court properly interpreted and applied the language of a statute—

we conduct de novo review.” Da Silva v. WakeMed, 375 N.C. 1, 5, 846 S.E.2d 634, 638

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(2020) (footnote omitted). Further, “[w]hether a trial court has subject-matter

jurisdiction is a question of law, reviewed de novo on appeal.” Hillard v. Hillard, 223

N.C. App. 20, 22, 733 S.E.2d 176, 179 (2012) (citation and quotation marks omitted).

“When conducting de novo review, this Court considers the matter anew and freely

substitutes its own judgment for that of the trial court.” Bracey v. Murdock, 286 N.C.

App. 191, 193, 880 S.E.2d 707, 709 (2022) (citation and quotation marks omitted).

To resolve the question of the State Bar’s subject matter jurisdiction over

Defendant, we must consider several statutes:

Under our canons of statutory interpretation, where the

language of a statute is clear, the courts must give the

statute its plain meaning. However, where a statute is

ambiguous or unclear as to its meaning, the courts must

interpret the statute to give effect to the legislative intent.

Additionally, although the interpretation of a statute by an

agency created to administer that statute is traditionally

accorded some deference by appellate courts, those

interpretations are not binding. Our Supreme Court has

also stated that

it is ultimately the duty of the courts to construe

administrative statutes and they may not defer that

responsibility to the agency charged with administering

those statutes. While the interpretation of the agency

responsible for their administration may be helpful and

entitled to great consideration when the Court is called

upon to construe the statutes, that interpretation is not

controlling. It is the Court and not the agency that is the

final interpreter of legislation.

N.C. State Bar v. Brewer, 183 N.C. App. 229, 236, 644 S.E.2d 573, 577 (2007)

(citations, quotation marks, and brackets omitted). If two or more statutes apply to

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the same “matter or subject,” we must also construe the statutes together: “It is, of

course, a fundamental canon of statutory construction that statutes which are in pari

materia, i.e., which relate or are applicable to the same matter or subject, must be

construed together in order to ascertain legislative intent.” Morris v. Rodeberg, 385

N.C. 405, 409, 895 S.E.2d 328, 331 (2023) (citation, quotation marks, and ellipses

omitted).

B. Statutory Basis for Disciplinary Jurisdiction of the State Bar

Defendant first argues “jurisdiction is barred by the disciplinary jurisdiction

statute[,]” North Carolina General Statute Section 84-28. (Capitalization altered.)

Specifically, Defendant contends North Carolina General Statute Section 84-28

grants the State Bar “disciplinary jurisdiction” only as to “attorneys admitted to

practice in North Carolina,” and since he has not been admitted to practice in North

Carolina, the State Bar has no jurisdiction to disbar him. The State Bar argues the

General Assembly has granted it disciplinary jurisdiction over all “licensed lawyers”

who practice in North Carolina, including Defendant, who is licensed as a lawyer by

the State of New York, under North Carolina General Statute Section 84-23(a) and

Rule 8.5 of the Rules of Professional Conduct. Specifically, the State Bar contends

that North Carolina General Statute Section 84-23(a) grants it the authority to

“regulate the professional conduct of licensed lawyers,” and under Rule 8.5(a), even a

lawyer not admitted in North Carolina “is also subject to the disciplinary authority

of North Carolina if the lawyer renders or offers to render any legal services in North

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Carolina.”

1. Jurisdiction cannot be Conferred by Consent

We first note that the State Bar states in its brief that Defendant

“acknowledged the State Bar’s disciplinary jurisdiction and his obligation to comply

with the rules.” (Emphasis in original.) The State Bar also concedes “a litigant cannot

consent to subject matter jurisdiction” but then contends Defendant’s “extensive

history of recognizing the State Bar’s jurisdiction over his practice . . . is a significant

data point demonstrating the correct, most reasonable interpretation of Chapter 84.”

But Defendant’s initial belief about subject matter jurisdiction is simply not a

relevant “data point.” It is well-established that “[p]arties cannot stipulate to give a

court subject matter jurisdiction where no such jurisdiction exists. A lack of

jurisdiction of the subject matter may always be raised by a party, or the court may

raise such defect on its own initiative.” Conner Bros. Mach. Co., Inc. v. Rogers, 177

N.C. App. 560, 561, 629 S.E.2d 344, 345 (2006) (citations and quotation marks

omitted). Thus, even if Defendant first believed the DHC had subject matter

jurisdiction over this matter, his belief is immaterial and we will not consider it in

this analysis. Likewise, the State Bar’s interpretation of North Carolina General

Statute Sections 84-23 and 84-28 and its determination that Section 84-23 grants it

subject matter jurisdiction is also of limited relevance. “While the interpretation of

the agency responsible for [the administration of a statute] may be helpful and

entitled to great consideration when the Court is called upon to construe the statutes,

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that interpretation is not controlling. It is the Court and not the agency that is the

final interpreter of legislation.” Brewer, 183 N.C. App. at 236, 644 S.E.2d at 577

(citation omitted).

2. North Carolina General Statute Sections 84-23 and 84-28

Because we must construe statutes in pari materia, we consider North

Carolina General Statute Sections 84-23 and 84-28 in the context of Chapter 84 of

the North Carolina General Statutes, which is entitled “Attorneys-at-Law.” N.C.

Gen. Stat. Ch. 84 (2023). Article 4, entitled “North Carolina State Bar,” establishes

the State Bar as “an Agency of the State” in Section 84-15 and the rest of the Article

sets out provisions addressing the membership in the State Bar and the organization,

governance, structure, powers, and duties of the State Bar. N.C. Gen. Stat. § 84-15

(2023); see generally N.C. Gen. Stat. Ch. 84, art. 4.

North Carolina General Statute Section 84-16, entitled “[m]embership and

privileges[,]” defines the “membership” of the State Bar. N.C. Gen. Stat. § 84-16

(2023). There are two classes of members, active and inactive:

The active members shall be all persons who have obtained

a license or certificate, entitling them to practice law in the

State of North Carolina, who have paid the membership

dues specified, and who have satisfied all other obligations

of membership. No person other than a member of the

North Carolina State Bar shall practice in any court of the

State except foreign attorneys as provided by statute and

natural persons representing themselves.

Id.

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The governing body of the State Bar is the Council, which is created by North

Carolina General Statute Section 84-17:

The government of the North Carolina State Bar is vested

in a council of the North Carolina State Bar referred to in

this Chapter as the “Council.” . . . . The Council shall be

competent to exercise the entire powers of the North

Carolina State Bar in respect of the interpretation and

administration of this Article, the borrowing of money, the

acquisition, lease, sale, or mortgage of property, real or

personal, the seeking of amendments to this Chapter, and

all other matters.

N.C. Gen. Stat. § 84-17 (2023).

The powers of the Council are established by North Carolina General Statute

Section 84-23:

(a) The Council is vested, as an agency of the State, with

the authority to regulate the professional conduct of licensed

lawyers and State Bar certified paralegals. Among other

powers, the Council shall administer this Article; take

actions that are necessary to ensure the competence of

lawyers and State Bar certified paralegals; formulate and

adopt rules of professional ethics and conduct; investigate

and prosecute matters of professional misconduct; expunge

disciplinary actions; grant or deny petitions for

reinstatement; resolve questions pertaining to

membership status; arbitrate disputes concerning legal

fees; certify legal specialists and paralegals and charge fees

to applicants and participants necessary to administer

these certification programs; determine whether a member

is disabled; maintain an annual registry of interstate and

international law firms doing business in this State; and

formulate and adopt procedures for accomplishing these

purposes. The Council may do all things necessary in the

furtherance of the purposes of this Article that are not

otherwise prohibited by law.

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N.C. Gen. Stat. § 84-23(a) (2024) (emphasis added).

North Carolina General Statute Section 84-28, entitled “[d]iscipline and

[d]isbarment” sets out the disciplinary jurisdiction of the Council and procedures for

disciplinary actions against “respondent attorney[s.]” N.C. Gen. Stat. § 84-28.

Subsection (a) provides that “[a]ny attorney admitted to practice law in this State is

subject to the disciplinary jurisdiction of the Council under such rules and procedures

as the Council shall adopt as provided in G.S. 84-23.” N.C. Gen. Stat. § 84-28(a)

(emphasis added). Therefore, Section 84-23 grants the Council “the authority to

regulate the professional conduct of licensed lawyers and State Bar certified

paralegals,” including the authority to “adopt rules of professional ethics and conduct”

and to “investigate and prosecute matters of professional misconduct,” while Section

84-28 grants the Council “disciplinary jurisdiction” over “[a]ny attorney admitted to

practice law in this State” to enforce the rules the Council is empowered to adopt

under Section 84-23. N.C. Gen. Stat. § 84-23(a); N.C. Gen. Stat. § 84-28(a). Thus,

State Bar has “disciplinary jurisdiction” over “[a]ny attorney admitted to practice law

in this State” to enforce the rules adopted in accord with Section 84-23.

Subsection 84-28(b) confirms that the disciplinary jurisdiction is limited to

“[a]ny attorney admitted to practice law in this State” by identifying the specific “acts

or omissions by a member of the North Carolina State Bar or any attorney admitted

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for limited practice under G.S. 84-4.1[4]” that “shall constitute misconduct and shall

be grounds for discipline[.]” N.C. Gen. Stat. § 84-28(a), (b) (emphasis added). Thus,

the plain language of North Carolina General Statute Section 84-28(b) limits the

“grounds for discipline” to “acts of omissions by a member of the North Carolina State

Bar or any attorney admitted for limited practice under G.S. 84-4.1.” N.C. Gen. Stat.

§ 84-28(b). Subsection 84-28(c) then outlines the types of discipline available, ranging

from the least severe discipline, admonition, to the most severe, disbarment. N.C.

Gen. Stat. § 84-28(c).

In interpreting statutory language, “[w]e begin with the text of the statute and,

if that text is clear and unambiguous, we conclude that the legislature intended the

statute to be implemented according to the plain meaning of its terms.” Arter v.

Orange Cnty., 386 N.C. 352, 354, 904 S.E.2d 715, 717 (2024) (citation and quotation

marks omitted). If two statutes “apparently overlap,” the more particular statute

controls over the more general statute, unless it is clear that the General Assembly

intended for the more general statute to be controlling:

The rules of statutory construction require that a more

specific statute controls over a statute of general

applicability. When two statutes apparently overlap, it is

well established that the statute special and particular

shall control over the statute general in nature, even if the

general statute is more recent, unless it clearly appears

that the legislature intended the general statute to control.

4 North Carolina General Statute Section 84-4.1 authorizes pro hac vice limited practice and does not

apply to this case. See N.C. Gen. Stat. § 84-4.1 (2023).

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Technocom Bus. Sys. Inc., v. N.C. Dep’t of Revenue, 219 N.C. App. 207, 212, 723 S.E.2d

151, 155 (2012) (citations, quotation marks, and brackets omitted).

In comparing North Carolina General Statute Sections 84-23 and 84-28, the

State Bar contends that Section 84-23 addresses its “authority to regulate the

professional conduct of licensed lawyers and State Bar certified paralegals” while

Section 84-28 specifically addresses the “disciplinary jurisdiction of the Council” over

“[a]ny attorney admitted to practice law in this State[.]” N.C. Gen. Stat. § 84-23(a);

N.C. Gen. Stat. § 84-28(a). The State Bar contends that Section 84-23 differs from

Section 84-28 since Section 84-23 is broader in scope because it applies to “licensed

lawyers” while Section 84-28 is more limited and applies to “[a]ny attorney admitted

to practice law in this State[.]” N.C. Gen. Stat. § 84-23(a); N.C. Gen. Stat. § 84-28(a).

The Order on Motion for Relief concluded that the State Bar has subject matter

jurisdiction over Defendant based on North Carolina General Statute Section 84-

23(a) and Rule 8.5(a) of the Rules of Professional conduct because Defendant is a

“licensed lawyer” who has an office in Charlotte and represents clients who live in

North Carolina, although his practice is limited to federal immigration court. But

the plain language of the more specific statute, Section 84-28, read in conjunction

with Section 84-23, grants the State Bar disciplinary jurisdiction only over

“attorney[s] admitted to practice law in this State[.]” N.C. Gen. Stat. § 84-28.

The plain language of Section 84-23 is a general grant of authority for the

Council to perform many duties. See N.C. Gen. Stat. § 84-23. The plain language of

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Section 84-28 is a specific grant of “disciplinary jurisdiction” which only applies to

“[a]ny attorney admitted to practice law in this State[.]” N.C. Gen. Stat. § 84-28. And

if we read the statutes in pari materia, Section 84-23 is consistent with Section 84-

28. Both statutes must be read in the context of Article 4, which deals with the State

Bar of North Carolina and regulation of lawyers licensed by North Carolina. N.C.

Gen. Stat. Ch. 84, art. 4. For example, it would be absurd to interpret Section 84-23

as requiring the State Bar to “take actions that are necessary to ensure the

competence of lawyers” who do not practice in North Carolina or who are licensed

only in another State. N.C. Gen. Stat. § 84-23. And lawyers licensed by another

state, such as Defendant, are not required to obtain continuing legal education, which

is required for lawyers licensed in North Carolina.5 27 N.C. Admin. Code 1D.1501

(“Except as provided herein, these rules shall apply to every active member licensed

by the North Carolina State Bar.”). Nor does the State Bar purport to “certify legal

specialists and paralegals” who practice in the courts of another state or exclusively

in the federal courts; to reinstate lawyers disbarred in another jurisdiction; to

“expunge disciplinary actions” against a lawyer in another jurisdiction; or to “resolve

questions pertaining to membership status” of a lawyer who is a member of the bar

of another state. N.C. Gen. Stat. § 84-23. All these situations may involve a “licensed

lawyer,” if we define this as a lawyer licensed to practice law in any jurisdiction, but

5 The Rules of Professional Conduct require only “active member[s]” who are “licensed by the North

Carolina State Bar” to obtain Continuing Legal Education hours. 27 N.C. Admin. Code 1D.1501.

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Section 84-23 and Section 84-28 together grant the State Bar regulatory powers only

over “licensed lawyers” who are licensed in North Carolina. Under the State Bar’s

interpretation of Section 84-23 as granting disciplinary jurisdiction applicable to

“licensed lawyers” in general, the State Bar would theoretically have the authority to

discipline or disbar any “licensed lawyer” admitted to the bar in any state or

jurisdiction, not just North Carolina, but its other powers and duties granted by

Section 84-23 would be limited to lawyers (and paralegals) who are licensed in North

Carolina. So although the phrases “licensed lawyer” and “attorney admitted to

practice law in this State” are different, the meaning is the same in the context of

these two statutes. N.C. Gen. Stat. § 84-23(a); N.C. Gen. Stat. § 84-28(a). Thus, in

determining disciplinary jurisdiction, Section 84-28 controls over Section 84-23 since

Section 84-28 is the more specific statute. See Technocom Bus. Sys. Inc., 219 N.C.

App. at 212, 723 S.E.2d at 155.

The State Bar does not seriously dispute its lack of authority over lawyers who

practice only in the federal courts, as is indicated by its “clarification” in the Order

on Motion for Relief. In its brief to the DHC regarding the Motion for Relief from

Judgment, the State Bar noted that it

does not construe the Order of Discipline’s reference to §

.0128 to require [Defendant to shut down his law practice].

Rather, the State Bar construes this reference as a

requirement that [Defendant] comply with § .0128 as to

any portion of his North Carolina practice not confined to

the practice of law before federal immigration courts, as the

State Bar cannot prohibit the federal immigration courts

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from permitting a lawyer (or non-lawyer, such as an

accredited representative) from appearing before them. To

the extent the Panel feels this is not clearly expressed in

the Order of Discipline, the State Bar asks for an

appropriate conclusion of law or amendment clarifying the

same.

The original Order of Discipline ordered that Defendant “is hereby

DISBARRED from the practice of law.” Despite the State Bar’s request, the DHC’s

Order on Motion for Relief did not amend the original Order of Disbarment, nor did

it include a conclusion of law or decree provision limiting the effect of the Order of

Discipline. Instead, the Order on Motion for Relief includes a finding of fact

addressing Defendant’s erroneous “interpretation” of the Order of Discipline. It

states that Defendant

is incorrect to interpret the directions in paragraphs 3

through 7 of the decretal section of the order of discipline

as requiring him to wind down any portion of his

presentation and practice in North Carolina that is

permitted by federal law before federal courts. Paragraphs

3 through 7 of the decretal section of the Order of Discipline

only apply to any portion of his presentation and practice

in North Carolina not permitted by federal law before

federal courts.

Defendant’s brief also notes the DHC’s agreement regarding its lack of

authority over lawyers engaged only in practice in federal courts:

The State Bar recognizes attorneys can appear before

federal immigration tribunals in North Carolina without a

North Carolina law license. N.C. State Bar, Reporting and

Preventing the Unauthorized Practice of Law,

https://dub.sh/xyWv0MO. Federal law confirms that an

attorney licensed to practice law in any state may appear

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before these federal agencies and practice federal

immigration law. See 8 C.F.R. § 1001.1(f); id. §

1292.1(a)(1).

But according to the findings in the Orders on appeal, Defendant does not practice in

North Carolina courts. In addition, while the Order of Discipline disbars Defendant,

the Order on Motion for Relief specifically denied Defendant’s Motion for Relief from

Judgment and did not change the requirements of the Order of Discipline. The

finding of fact regarding Defendant’s “interpretation” of the Order of Discipline leaves

us wondering exactly what it would mean for Defendant to shut down his

“presentation and practice” in North Carolina while still being allowed to practice in

the federal immigration court in Charlotte when – according to the findings of fact –

he practices only in the federal immigration court in Charlotte.

The State Bar argues interpreting Section 84-28 to mean the State Bar only

has disciplinary jurisdiction over attorneys admitted to practice in North Carolina

would “render[ ] Section 84-23 surplusage.”

It is well established that a statute must be considered as

a whole and construed, if possible, so that none of its

provisions shall be rendered useless or redundant. It is

presumed that the legislature intended each portion to be

given full effect and did not intend any provision to be mere

surplusage.

Porsh Builders, Inc. v. City of Winston-Salem, 302 N.C. 550, 556, 276 S.E.2d 443, 447

(1981) (citation omitted). But our interpretation would not render Section 84-23

surplusage since the general grant of authority would remain unaffected. The

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Council would still have general authority to “administer this Article,” and one of the

provisions of “this Article” is Section 84-28, so the State Bar has the authority to

“administer” Section 84-28 by exercising its “disciplinary jurisdiction” under Section

84-28. See N.C. Gen. Stat. § 84-28. The State Bar has the general authority to “take

actions that are necessary to ensure the competence of lawyers and State Bar certified

paralegals; formulate and adopt rules of professional ethics and conduct; [and]

investigate and prosecute matters of professional misconduct[.]” N.C. Gen. Stat. §

84-23(a). As Defendant notes in his reply brief, Section 84-23 does not use the word

“jurisdiction.” We disagree with the State Bar that interpreting the statutes in this

way would render Section 84-23 surplusage. See Porsh Builders, Inc., 302 N.C. at

556, 276 S.E.2d at 447.

The State Bar also contends that if we interpret North Carolina General

Statute Sections 84-23 and 84-28 to limit its disciplinary jurisdiction only to

“attorney[s] admitted to practice law in this State[,]” this will create absurd and

terrible consequences. One of these absurdities is that lawyers admitted pro hac vice

would be “subject to the Rules but not to the State Bar’s investigatory powers or the

DHC’s jurisdiction[.]” (Emphasis in original.) But pro hac vice admission is not the

issue in this case, and the State Bar’s argument is also simply not correct: Attorneys

from other states who practice in North Carolina courts must be admitted pro hac

vice under North Carolina General Statute Section 84-4.1, and an attorney who is

admitted pro hac vice has subjected himself to the disciplinary jurisdiction of the

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State Bar. See Couch v. Priv. Diagnostic Clinic, 146 N.C. App. 658, 670, 554 S.E.2d

356, 365 (2001) (“Under N.C. Gen.Stat. § 84-28, attorneys admitted to practice pro

hac vice are subject to the same disciplinary jurisdiction of this State as are attorneys

licensed to practice here. That statute provides that a violation of the Rules of

Professional Conduct of this State ‘shall be grounds for discipline,’ including

disbarment or ‘suspension for a period up to but not exceeding five years.’” (citations

and brackets omitted).

We also briefly note that this opinion does not address the statutory provisions

addressing unauthorized practice of law in North Carolina, whether by a layperson

or by an attorney licensed by another jurisdiction.6 Under North Carolina General

Statute Section 84-37, the State Bar is authorized to “inquire into and investigate

any charges or complaints of (i) unauthorized or unlawful practice of law . . . by

individuals who have not been certified in accordance with the rules adopted by the

North Carolina State Bar.” N.C. Gen. Stat. § 84-37 (2023). The unauthorized

practice of law is forbidden by statute. See N.C. Gen. Stat. § 84-4 (“Persons other

than members of State Bar prohibited from practicing law.”); see also N.C. Gen. Stat.

§ 84-7 (2023) (“District attorneys, upon application, to bring injunction or criminal

proceedings.”). Any person “who is damaged by” the unauthorized practice of law is

6 The State Bar also presents an argument regarding North Carolina Rule of Professional Conduct

5.5, which deals with unauthorized practice of law. We will not address Rule 5.5 since there is no issue

of unauthorized practice of law in this case.

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also “entitled to maintain a private cause of action to recover damages and reasonable

attorneys’ fees and other injunctive relief as ordered by court.” N.C. Gen. Stat. § 84-

10.1 (2023) (“Private cause of action for the unauthorized practice of law.”). This

opinion does not affect the protections available to citizens of this State who may be

harmed by the unauthorized practice of law, but Defendant was not accused of

unauthorized practice of law. He was certified to practice in the federal immigration

court and limited his practice to that court.

The State Bar also contends that it would be absurd to interpret North

Carolina General Statute Section 84-23 and 84-28 as limiting its disciplinary

jurisdiction to “attorney[s] admitted to practice law in this State” because this would

leave “a pocket of lawyers practicing law in North Carolina and representing North

Carolinians” without being subject to disciplinary jurisdiction of the State Bar. This

is correct, but that is what the plain language of Section 84-28 requires. See N.C.

Gen. Stat. § 84-28. Defendant does not fall within the categories of professionals over

which the State Bar has disciplinary jurisdiction under Section 84-28. He is a

licensed attorney, but he is not licensed in North Carolina. He is not “admitted to

practice law in this State.” Id. He practices only in a federal court located in North

Carolina. There are many federal courts in North Carolina, including the

immigration court where Defendant practices. All federal courts, including the

immigration court, have their own requirements for attorneys to be admitted to

practice before the court. As the Order on Motion for Relief acknowledges in its

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finding regarding Defendant’s “interpretation” of the Order of Discipline, the

procedures and practices of the federal courts are not subject to control by the State

of North Carolina. Federal courts, and the admission of attorneys who practice in

federal courts, are controlled by federal law.

To obtain jurisdiction over this “pocket of lawyers,” the State Bar asks us to

rewrite North Carolina General Statute Section 84-28 to apply to “any attorney

admitted to practice law” in any state if the attorney practices in a federal court

physically located in North Carolina or has an office in North Carolina for a federal

practice. But this Court does not have the authority to rewrite the statute to cover

this group of attorneys who practice only in federal court and are licensed by another

state. Defendant is a member of and subject to discipline by the New York Bar. As

an attorney practicing before the federal immigration court, Defendant is also subject

to discipline by the Executive Office for Immigration Review. See 8 C.F.R. §

1003.1(d)(5) (“Discipline of practitioners and recognized organizations. The Board

shall have the authority pursuant to § 1003.101 et seq. to impose sanctions upon

practitioners who appear in a representative capacity before the Board, the

Immigration Courts, or DHS, and upon recognized organizations.”).

The State Bar notes that “[n]umerous courts have held that a state’s

disciplinary authority has jurisdiction to discipline—and even disbar—a lawyer who

is not licensed in the state but is practicing in a federal tribunal or agency within the

state.” The State Bar argues that

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the federal immigration courts afford great significance to

predicate discipline, reflecting the immigration courts’

expectation that a state should be able to investigate and

impose appropriate discipline upon an attorney practicing

within its borders. The Board of Immigration Appeals (the

“BIA”) may impose sanctions on practitioners appearing

before it (or before the immigration courts or Department

of Homeland Security) for professional misconduct. 8

C.F.R. § 1003.1(d)(5) (2024). The BIA routinely looks to

state disciplinary actions as a predicate for reciprocal

discipline against its practitioners. 8 C.F.R. §

1003.103(a)(1). This is true even when the practitioner is

not licensed by the state imposing the predicate suspension

or disbarment against him.

(Emphasis in original). The State Bar notes as examples cases in which the BIA

considered disciplinary actions against immigration attorneys by Colorado and

Maryland, although the attorneys in those cases were not licensed in those states.

See People v. Hooker, 318 P.3d 77 (Colo. 2013); Att’y Grievance Comm’n of Md. v. Ndi,

184 A.3d 25 (Md. 2018). It is true that the BIA may consider discipline imposed by a

state as a factor in the federal disciplinary process, but the question before us is

whether North Carolina’s State Bar has jurisdiction to impose discipline on an

attorney not licensed in this State who is practicing only in the federal court. The

other states noted by the State Bar have different regulatory schemes for attorneys;

for example, in Colorado and Maryland, and many other states, the state’s appellate

court has exclusive authority to regulate the practice of law. See In re Wimmershoff,

3 P.3d 417, 420 (Colo. 2000) (“The regulation of the practice of law, including the

determination of a lawyer’s compliance or noncompliance with the Code of

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Professional Responsibility (such as Colo. RPC 1.5(a)), resides exclusively with this

court.”); see In re Application of Kimmer, 896 A.2d 1006, 1017 (Md. 2006) (“Therefore,

it has been clear, since 1898, that the Court of Appeals has had exclusive jurisdiction

over the regulation of, and admission to, the practice of law.” (citations omitted)). In

other states, statutes or caselaw may support subject matter jurisdiction for

disciplinary action as to attorneys not licensed in those states, but we are bound by

North Carolina’s statutes.

The State Bar also contends Defendant’s “assumption that he cannot be

disbarred because he was not admitted to practice in North Carolina misapprehends

the broad public-protection function of attorney discipline.” We appreciate the

“public-protection function of attorney discipline,” but the extent of the disciplinary

power granted to the State Bar by the General Assembly is a public policy matter.

“Absent [a] constitutional restraint, questions as to public policy are for legislative

determination.” Home Sec. Life Ins. Co. v. McDonald, 277 N.C. 275, 285, 177 S.E.2d

291, 298 (1970) (citation omitted). This Court’s role is to interpret and apply the law

as it is written. If the General Assembly would like to expand the disciplinary

jurisdiction of the State Bar to cover attorneys who are not admitted to practice in

North Carolina, it may do so by statutory amendment, but this Court may not re-

write the statutes.

C. Jurisdiction Based on the Rules of Professional Conduct

The Order on Motion for Relief also concluded that the State Bar had subject

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matter jurisdiction to discipline Defendant under Rule 8.5 of the Rules of Professional

conduct. Rule 8.5 addresses “disciplinary authority [and] choice of law” and provides:

(a) Disciplinary Authority. A lawyer admitted to practice in

North Carolina is subject to the disciplinary authority of

North Carolina, regardless of where the lawyer’s conduct

occurs. A lawyer not admitted in North Carolina is also

subject to the disciplinary authority of North Carolina if the

lawyer renders or offers to render any legal services in North

Carolina. A lawyer may be subject to the disciplinary

authority of both North Carolina and another jurisdiction

for the same conduct.

N.C. R. Pro. Conduct 8.5(a) (emphasis added). Defendant contends “Rule 8.5

doesn’t create disciplinary jurisdiction” over Defendant. Specifically, Defendant

contends “the [State] Bar argued, and DHC agreed, that the [State] Bar had lawfully

expanded its jurisdiction beyond the disciplinary jurisdiction statute through

administrative rulemaking” and “[t]hat argument, however, runs counter to basic

principles of administrative law.” The State Bar argues it has jurisdiction over

Defendant under Rule 8.5, and this rule is consistent with Chapter 84 since our

Supreme Court “approved and caused [Rule 8.5] to go into effect after finding it

consistent with Chapter 84.” The State Bar’s argument that our Supreme Court has

already decided Rule 8.5 is consistent with Chapter 84 is based on North Carolina

General Statute Section 84-21, which states

The rules and regulations adopted by the Council under

this Article may be amended by the Council from time to

time in any manner not inconsistent with this Article.

Copies of all rules and regulations and of all amendments

adopted by the Council shall be certified to the Chief

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Justice of the Supreme Court of North Carolina, entered by

the North Carolina Supreme Court upon its minutes, and

published in the next ensuing number of the North

Carolina Reports and in the North Carolina

Administrative Code: Provided, that the court shall decline

to have so entered upon its minutes any rules, regulations

and amendments which in the opinion of the Chief Justice

are inconsistent with this Article.

N.C. Gen. Stat. § 84-21(b) (2023).

The State Bar’s argument turns on the meaning of rendering or offering to

render “legal services in North Carolina.” The State Bar’s argument is based on the

physical location of Defendant’s practice in North Carolina, even if he only practices

in federal court. The State Bar argues that based on Rule 8.5(b), by having an office

in this State and representing clients who live in North Carolina, even if his practice

was limited to federal immigration court, Defendant was “render[ing] or offer[ing] to

render any legal services in North Carolina.” (Emphasis added.) In other words, the

State Bar argues that Defendant may appear in federal immigration court and

represent clients there, but if he “establish[es] an office or other systematic and

continuous presence in this jurisdiction for the practice of law” even in federal court

only, he is “rendering legal services” in North Carolina and is subject to the

disciplinary jurisdiction of the State Bar. See N.C. R. Pro. Conduct 5.5(b)(1); N.C. R.

Pro. Conduct 8.5.

The State Bar’s claim regarding its definition of the practice of law focuses on

the physical location where Defendant, as an attorney, consults with clients, prepares

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documents, or appears in a court, and not the subject matter or purpose of his work

or the court he appears in. Yet the definition of the practice of law in North Carolina

General Statute 84-2.1(a) does not mention the physical location where an attorney

may meet with a client or do his work; it addresses the specific legal services

performed for the purpose of advising a client or preparing documents or representing

a client before a particular tribunal:

The phrase “practice law” as used in this Chapter is defined

to be performing any legal service for any other person,

firm or corporation, with or without compensation,

specifically including the preparation or aiding in the

preparation of deeds, mortgages, wills, trust instruments,

inventories, accounts or reports of guardians, trustees,

administrators or executors, or preparing or aiding in the

preparation of any petitions or orders in any probate or

court proceeding; abstracting or passing upon titles, the

preparation and filing of petitions for use in any court,

including administrative tribunals and other judicial or

quasi-judicial bodies, or assisting by advice, counsel, or

otherwise in any legal work; and to advise or give opinion

upon the legal rights of any person, firm or corporation:

Provided, that the above reference to particular acts which

are specifically included within the definition of the phrase

“practice law” shall not be construed to limit the foregoing

general definition of the term, but shall be construed to

include the foregoing particular acts, as well as all other

acts within the general definition.

N.C. Gen. Stat. § 84-2.1(a) (2023).

Here, the DHC found that Defendant “practices law in North Carolina, where

he maintains a law office in Charlotte, North Carolina, and appears in federal

immigration courts in Charlotte on behalf of his clients.” (Emphasis added.) But

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Defendant was practicing only in federal immigration court, although that court is in

North Carolina and he maintained an office in Charlotte. To the extent that Rule 8.5

may purport to extend the disciplinary jurisdiction of the State Bar beyond

“attorney[s] admitted to practice law in this State” to attorneys not admitted in North

Carolina practicing only in a federal court simply because the attorney has a home or

office in North Carolina, this Rule is not in accord with North Carolina General

Statute Section 84-28. See N.C. R. Pro. Conduct 8.5(a); N.C. Gen. Stat. § 84-28. The

State Bar has “disciplinary jurisdiction” over “attorney[s] admitted to practice law in

this State” no matter where they live or where their offices are located or where they

do their work. It does not have disciplinary jurisdiction over attorneys who are not

admitted to practice in North Carolina and who practice only in federal court just

because they may live in North Carolina or have an office in North Carolina.

Rule 8.5 does not change our analysis because the Rules of Professional

Conduct cannot grant or expand the subject matter jurisdiction of the State Bar

beyond the boundaries set by North Carolina General Statute Section 84-28. As we

concluded above, North Carolina General Statute Section 84-28 only gives the DHC

disciplinary jurisdiction over those attorneys admitted to practice in this State. See

N.C. Gen. Stat. § 84-28.

We next address the State Bar’s argument that since our Supreme Court

allowed the rules to be “entered . . . upon its minutes,” the rules have been found to

be consistent with Chapter 84. N.C. Gen. Stat. § 84-21(b). Under Section 84-21, the

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rules must be approved only by the Chief Justice. See N.C. Gen. Stat. § 84-21. And

even if we assumed that the Chief Justice’s decision to allow a rule to be “entered . . .

upon [the Court’s] minutes” could be considered as a form of approval of the rule, this

approval is not a decision of the Supreme Court. The Chief Justice’s action is part of

the rule-making authority of the Supreme Court, which is distinct from the Supreme

Court’s authority to adjudicate disputed cases brought before the Supreme Court on

appeal or petition for review from a lower court. A binding decision of the Supreme

Court requires a vote of at least four of the seven justices. See N.C. Gen. Stat. § 7A-

10 (2023) (“Four justices shall constitute a quorum for the transaction of the business

of the court.”). While we are bound by the decisions of our Supreme Court, see Snipes

v. TitleMax of Va., Inc., 285 N.C. App. 176, 184, 876 S.E.2d 864, 870 (2022) (“Of

course, we are also bound by decisions of our Supreme Court and by prior panels of

this Court” (emphasis added) (citations omitted)), the Chief Justice’s approval of a

rule is not a decision of the Supreme Court. Neither the Chief Justice nor the

Supreme Court ruled on the disputed issue raised in this case of the State Bar’s

disciplinary jurisdiction over attorneys who are not admitted to practice in North

Carolina and the interpretation of Sections 84-23 and 84-28 simply by the Chief

Justice’s approval of Rule 8.5.

More fundamentally, this Court and our Supreme Court have long concluded

an administrative agency only has those powers given to it by statute. See Rouse v.

Forsyth Cnty. Dep’t of Soc. Servs., 373 N.C. 400, 407, 838 S.E.2d 390, 395 (2020) (“[A]n

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administrative agency has no power to promulgate rules and regulations which alter

or add to the law it was set up to administer or which have the effect of substantive

law.” (citation and quotation marks omitted)); see also Hart v. Thomasville Motors,

Inc., 244 N.C. 84, 89, 92 S.E.2d 673, 677 (1956) (“The jurisdiction of the Industrial

Commission in relation to the subject matter over which it may exercise authority is

limited by the North Carolina Workmen’s Compensation Act, and this jurisdiction

can be enlarged or extended only by the General Assembly its creator.”). While

Defendant cites both Rouse and Hart, the State Bar does not address these cases and

instead relies on its argument that Section 84-28 does not limit the DHC’s jurisdiction

and Rule 8.5 is valid since it was approved by the Chief Justice. But as both of those

arguments fail, we agree with Defendant that since the General Assembly limited the

DHC’s disciplinary jurisdiction to “[a]ny attorney admitted to practice law in this

State[,]” the State Bar cannot enlarge the DHC’s jurisdiction via rulemaking. N.C.

Gen. Stat. § 84-28. Based on this interpretation of the disciplinary jurisdiction of the

State Bar under Section 84-28, we need not address Defendant’s remaining

arguments on appeal.

IV. Conclusion

The DHC did not have subject matter jurisdiction over Defendant since North

Carolina General Statute Section 84-28 limits its disciplinary jurisdiction to “[a]ny

attorney admitted to practice law in this State” and Defendant is licensed in New

York, not North Carolina, and limits his practice to federal immigration court. N.C.

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Gen. Stat. § 84-28 (emphasis added). The more specific language in Section 84-28

controls over the more general grant of authority in Section 84-23. Further, Rule 8.5

of the Rules of Professional Conduct cannot confer subject matter jurisdiction over

Defendant beyond the plain language of North Carolina General Statute Section 84-

28. The DHC’s Order of Discipline and Order on Motion for Relief are both reversed.

REVERSED.

Chief Judge DILLON and Judge CARPENTER concur.

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