Jack Nichols State Bar Complaint

NORTH CAROLINA STATE BAR COMPLAINT Monroe Jackson Nichols Page 1 of 111
STATE OF NORTH CAROLINA COUNTY OF WAKE
THE GRIEVANCE COMMITTEE OF THE NORTH CAROLINA STATE BAR ) ) ) ) ) ) ) ) )
KENNETH C. JOHNSON COMPLAINANT, v. MONROE JACKSON NICHOLS State Bar No. 7933 DEFENDANT
COMPLAINT
Complainant, complaining of Defendant, alleges and says;
1. The North Carolina State Bar (hereinafter State Bar) is a body duly organized under the Laws of North Carolina and is the proper party to bring a proceeding under the authority granted it in Chapter 84 of the General Statutes of North Carolina and the Rules and Regulations of the North Carolina State Bar promulgated thereunder. 2. Defendant, Monroe Jackson Nichols, aka M. Jackson Nichols, aka Jack Nichols (hereinafter Nichols or Defendant), was admitted to the North Carolina State Bar August 21, 1977 and is, and was at all times referred to herein, an Attorney at Law licensed to practice in North Carolina, subject to the rules, regulations, and Rules of Professional Conduct of the North Carolina State Bar and the laws of the State of North Carolina. Upon information and belief, the Complainant alleges: 3. During the times relevant herein, Defendant actively engaged in the practice of law in the State of North Carolina and was employed, inter alia, as the purported General Counsel to the North Carolina Board of Nursing, located in Raleigh, North Carolina. 4. During the times relevant herein, Defendant was assigned to represent the respondent board in North Carolina Board of Nursing v. Kenneth C. Johnson (07 BON 1679) and 07 CVS 9037 case originally begun in March of 2005. 5. In 2005, Nichols orchestrated the removal of attorney John Bryant as general counsel for the North Carolina Board of Nursing and replaced him with himself in the case of North Carolina Board of Nursing v. Kenneth C. Johnson (07 BON 1679) and 07 CVS 9037.
NORTH CAROLINA STATE BAR COMPLAINT Monroe Jackson Nichols Page 2 of 111 I MENTAL HEALTH EVALUATION: IMPROPER PURPOSE 6. Nichols exercised improper influence upon the board staff and encouraged unethical and illegal conduct of the staff without the knowledge of his client, the board itself. One of the most egregious unethical acts of pre-hearing tactics to discredit and humiliate Johnson was to insist he be required to undergo a mental health evaluation, without a good faith basis to require such an evaluation. 7. On September 8, 2005 Donna Mooney, (hereinafter Mooney) Director of Disciplinary Proceedings for the North Carolina Board of Nursing, issued Johnson a Letter of Charges in association with the case. (R pp 7A-7E) Mooney, proposed, inter alia, a sanction requirement for Johnson to maintain his nursing license, that he obtains a Mental Health Evaluation (R p 7C) by a board approved Psychiatrist/ Psychologist. There was never any probable cause stated or evidence presented that would suggest that Johnsons mental health was in question. 8. Mooney has repeatedly stated publicly that during the disciplinary process, if two different licensees violate the Nursing Practice Act in the same way, one may need verbal reprimand, while the other may need to have their license taken and be publicly humiliated, based upon nothing more than their age. She teaches this theory as fact in a class she has repeatedly given across the country. At a conference she stated (R p 8) Where remediation and
probation may work for one generation, only removal from practice will get the attention of another. Reflection and introspection may make a difference in one generations practice, but only shame and public humiliation gets response from another generation.
9. On November 18, 2005 Nichols and Mooney offered Johnson a Settlement Agreement (R pp 9A-9E) in association with the case. As evidence of lack of a good faith basis to demand a mental health evaluation, Nichols and Mooney changed the requirement that Johnson obtain a Mental Health Evaluation by a board approved Psychiatrist/ Psychologist, to a requirement that Johnson obtain an Anger Management Assessment (R p 9B) by a board approved Psychiatrist/ Psychologist. However, there was never any evidence presented throughout the process that Johnson ever had an anger control problem. Johnson declined to sign the agreement and requested a full hearing. 10. Nichols exercised improper influence upon the board staff and when another settlement offer (R pp 10A-10G) was presented to Johnson on July 20, 2006, the Anger Management Assessment requirement was replaced with a requirement that Johnson, once again obtain a Mental Health Evaluation by a board approved Psychiatrist/ Psychologist as a sanction. (R p 10C) An Anger Management Assessment or a Mental Health Evaluation by a Psychiatrist/ Psychologist is a medical diagnostic test and thus cannot be ordered by the state as sanction or punishment absent probable cause to support its necessity. The arbitrary nature of the changing requirements from Mental Health Evaluation to Anger Management and then back to Mental Health Evaluation is evidence, inter alia, of the arbitrary and improper purpose.
11. Between the September 8, 2005 Letter of Charges, the November 18, 2005 offer of settlement and the July 2006 offer of settlement, the only behavior exhibited by Johnson that could have been the basis for the abrupt change in the requirement of an Anger Management Assessment; to a requirement for a Mental Health Evaluation was Johnsons demand for a full hearing and his initiation of discovery and public records requests of the board staff. Although, Johnsons petitioning the board staff for redress may have been troubling to Nichols and the board staff, it is nevertheless protected under the First Amendment and retaliation for the exercise of that right is strictly forbidden under state and federal law. 12. Johnson repeatedly sought an explanation for this demand for a mental health evaluation and Nichols has repeatedly refused to give a credible answer. When pressed, Nichols and the board staff stated repeatedly over the years and as late as in a letter dated April 20, 2010 (R pp 12A-12B) As to your question about the Boards reason for requiring you to complete a mental health evaluation, that decision was made during Board deliberation and fell well within the purview of the Board. (R p 12B). 13. Additionally, at the January 29, 2007 hearing, Johnson asked Mooney under crossexamination why the Board decided that Johnson must obtain a mental health evaluation. Her response, under oath, was interesting. Mooney said inter alia: each case is individual, and they look at the individual as to how they appear that day. So in answering that, I would say it would be based upon how you [Johnson] appeared that day that made these members feel that that was an appropriate sanction to be offered. [emphasis added sanction]
14. However, it is the clear that the proposed settlement orders were drafted by Nichols and Mooney; and therefore the arbitrary decision to demand a mental health evaluation was made by them well before presentation to the actual board for their deliberation. Additionally, as trained nurses, the board staff is uniquely qualified to present specific diagnostic probable cause to justify and support a requirement for a mental health evaluation. However, they did not. It is improper to require a medical diagnostic test as a sanction. 15. Additionally, attorney John Bryant, the Boards original general counsel, had told Johnson, They are making you get the mental evaluation because they know it pisses you off. 16. During previous discovery, the board staff was asked, How many other nurses had been charged with the same offense? Answer: 65. Then they were asked, Of the 65 nurses charged with breaching patient confidentiality, how many were required to obtain a mental health evaluation prior to Johnson? Answer: 0. (R pp 16A-16D) Therefore, it is obvious that the mental health evaluation requirement was based upon retaliation and pre-hearing strategy; not a reasoned decision based upon Johnsons behavior or probable cause.
COUNT ONE 17. Complainant repeats, re-alleges and incorporates by reference the allegations made in paragraphs 1-16 above with the same force and effect as if herein set forth. THEREFORE, Complainant alleges that Defendants foregoing actions constitute grounds for discipline pursuant to N.C. Gen Stat. 84-28(b)(2) in that Nichols violated the revised Rules of Professional Conduct in effect at the time of the conduct as follows: (a) By advising and supporting the board staff to require Johnson to obtain a mental health evaluation as a sanction, without probable cause to support this medical diagnostic test, Nichols used means that have no substantial purpose other than to embarrass and burden a third person in violation of Rule 4.4(a); By advising and supporting the board staff to require Johnson to obtain a mental health evaluation to humiliate him, without probable cause to support this medical diagnostic test, Nichols used means that have no substantial purpose other than to embarrass and burden a third person in violation of Rule 4.4(a);
(b)
COUNT TWO 18. Complainant repeats, re-alleges and incorporates by reference the allegations made in paragraphs 1-17 above with the same force and effect as if herein set forth. (a) By misstating and advising the board staff to misrepresent that the decision to require Johnson to obtain a mental health evaluation was a decision of the Board, and not a decision of Nichols and the Board staff reached well before Board deliberations, Nichols affirmed a statement of another that he knows is false and/or misleading in violation of Rule 4.1. By misstating and advising the board staff to misrepresent that the decision to require Johnson to obtain a mental health evaluation was a decision of the Board, and not a decision of Nichols and the Board staff reached well before Board deliberations, Nichols engaged in conduct involving deceit and misrepresentation in violation of Rule 8.4(c).
(b)
II MENTAL HEALTH EVALUATION: MISREPRESENTATION OF BOARD APPROVAL 19. Although Johnson believes the mental health evaluation was punitive and meant merely to harass and humiliate, he nevertheless followed the directions of the board and located a psychiatrist to perform the mental health evaluation. Johnson contacted Dr. Anne Hendricks, M.D. of First Step Services, LLC. and informed her of the board staffs demand for a mental health evaluation. 20. After Dr. Hendricks agreed to conduct the evaluation and scheduled an appointment, Johnson contacted Carol Walker, Investigation and Monitoring Consultant for the board; and provided her with Dr. Hendricks contact information and date of the scheduled evaluation, per the direction of the Settlement Agreement. 21. Carol Walker contacted Dr. Hendricks and forwarded paperwork to her that outlined the board staffs requirements for the evaluation. Seven days later, on July 28, 2006, Johnson arrived at First Step Services, LLC and Dr. Hendricks conducted a mental health evaluation. Johnson paid First Step Services $151.50. The receipt (R p 21) stated payment was for psych evaluation; not initial interview, as Nichols would later claim. Dr. Hendricks said that she would forward the report to the Board and Johnson left. There was NO SCHEDULED further evaluation discussed.
22. Some three weeks later, on August 17, 2006, Dr. Hendricks contacted Johnson and informed him that she had contacted Carol Walker and was informed that the mental health evaluation was not adequate and Dr. Hendricks would have to conduct another evaluation. Further, Walker told her, that this additional evaluation would also not adequately comply with the Boards approval. 5
23. Johnson called Ms. Walker and was informed that the mental evaluation was not acceptable to Ms. Walker and the Board and that Dr. Hendricks was not qualified to conduct the testing and was therefore, not Board approved. 24. Johnson protested and asked why he was not informed prior to the mental evaluation that Dr. Hendricks was not acceptable to the Board and asked what constituted Board Approved, if Carol Walkers pre-evaluation contact with Dr. Hendricks did not approve or disqualify the doctor for this evaluation. Carol Walker gave no coherent answer to either question. 25. Johnson called attorney John Bryant, the then co-general counsel for the Board and explained that the Board was demanding that he take another mental health evaluation. Johnson recorded the call. (Audio EXHIBIT A - John Bryant Psych Call) and was told by Bryant: BRYANT: that aint right. That aint going to happen. I aint gonna let that happen Johnson told Bryant that he believes he was being set-up by the board staff. Bryant stated, BRYANT: sounds like a legitimate beef to me. So let me see what I can do to help you. Why does she say she didnt approve the person when she called and she talked to the person and they said it was O.K. for you to go there?
26. After consultation with Carol Walker, Bryant called Johnson and stated that Walker would not change her position, but she decided to extend the deadline for Johnson to get another mental evaluation. Johnson protested this development as being unfair and stated that he lacked the confidence that the board staff would oversee any subsequent evaluation fairly. Therefore, on September 5, 2006, Johnson filed a Petition for Contested Case Hearing with the Office of Administrative Hearings (R p 26) to object to the clear violations of his rights. 27. Because the Petition for Contested Case Hearing was pending and the Board, through attorney Bryant had stated to Johnson that the Board staff was making him take the mental evaluation to piss [him] off and the obvious attempt to set him up for failure and because they refused to give Johnson a clear answer as to what constituted a Board Approved Psychiatrist, On October 2, 2006 Johnson filed a motion for a Temporary Restraining Order (TRO) in Wake County Superior Court. 28. At the October 5, 2006 hearing, presiding Superior Court Judge, Carl Fox, signed an order granting the Boards Motion To Dismiss, which was crafted by attorney Nichols, which stated that since the Board had not suspended Johnsons nursing license yet, the TRO was premature.
29. During the Superior Court hearing, attorney Nichols falsely testified to the judge that Carol Walker never talked to Dr. Hendricks prior to Johnsons appointment with her, a statement he knew to be false; the implication being that Johnson, contrary to the settlement agreement, simply picked a psychiatrist, went and obtained the evaluation and hoped it was board approved. Johnson immediately objected and asked Ms. Walker directly on cross-examination, if she had talked to Dr. Hendricks prior to his appointment. Ms. Walker refused to answer. 30. However, the evidence contradicts this bold misrepresentation. At the January 29, 2007 hearing, (R p 30) Dr. Hendricks was asked if Johnson had provided any documents to her in reference to his evaluation upon his arrival. Her answer was as follows: DR. HENDRICKS: He didnt provide me documents, but I think he had something with him. Im not sure. But I think they were actually the same thing I had from the Board of Nursing.
31. Dr. Hendricks testimony makes it clear that she had been contacted by Carol Walker and provided with documentation PRIOR to the evaluation.
COUNT THREE 32. Complainant repeats, re-alleges and incorporates by reference the allegations made in paragraphs 1-31 above with the same force and effect as if herein set forth. THEREFORE, Complainant alleges that Defendants foregoing actions constitute grounds for discipline pursuant to N.C. Gen Stat. 84-28(b)(2) in that Nichols violated the revised Rules of Professional Conduct in effect at the time of the conduct as follows: (a) By falsely stating during the October 5, 2006 hearing, that Walker never talked to Dr. Hendricks prior to Johnsons appointment with her, a statement he knew to be false, with full knowledge of its falsity, Nichols alluded to a matter that Nichols knew or should have known was not supported by the evidence, in violation of State Bar Rule 3.4(e).
COUNT FOUR 33. Complainant repeats, re-alleges and incorporates by reference the allegations made in paragraphs 1-32 above with the same force and effect as if herein set forth. (a) By falsely stating during the October 5, 2006 hearing, that Walker never talked to Dr. Hendricks prior to Johnsons appointment with her, a statement he knew to be false, with full knowledge of its falsity, Nichols asserted personal knowledge of facts in issue although he was not testifying as a witness, in violation of State Bar Rule 3.4(e).
COUNT FIVE 34. Complainant repeats, re-alleges and incorporates by reference the allegations made in paragraphs 1-33 above with the same force and effect as if herein set forth. (a) By falsely stating during the October 5, 2006 hearing, that Walker never talked to Dr. Hendricks prior to Johnsons appointment with her, a statement he knew to be false, with full knowledge of its falsity, Nichols engaged in conduct involving deceit and misrepresentation in violation of Rule 8.4(c).
COUNT SIX 35. Complainant repeats, re-alleges and incorporates by reference the allegations made in paragraphs 1-34 above with the same force and effect as if herein set forth. (a) By falsely stating during the October 5, 2006 hearing, that Walker never talked to Dr. Hendricks prior to Johnsons appointment with her, a statement he knew to be false, with full knowledge of its falsity, Nichols knowingly made a false statement of material fact to the tribunal in violation of Rule 3.3(a).
36. To support and conceal his obvious misrepresentation that Carol Walker never talked to Dr. Hendricks prior to Johnsons appointment with her, Nichols continued to willfully misrepresent the supporting facts. In his January 24, 2007 (R pp 36A-36K) response to interrogatories, Nichols stated: NICHOLS: Ms. Walker did not become aware, and still is not aware that Dr. Hendricks is not a qualified provider to meet the mental health requirements of the Settlement Order. (R p 36D)
37. However, Nichols stated in the PROPOSAL FOR DECISION (R pp 37A-37K) and in multiple other pleadings: 42.b. Dr. Hendricks informed Petitioner Johnson that he needed to have additional testing performed by a psychologist or someone other than her(emphasis added). (R p 37G)
COUNT SEVEN 38. Complainant repeats, re-alleges and incorporates by reference the allegations made in paragraphs 1-37 above with the same force and effect as if herein set forth. (a) By misstating Ms. Walker did not become aware, and still is not aware that Dr. Hendricks is not a qualified provider to meet the mental health requirements of the Settlement Order, with the full knowledge that Johnson had been informed by attorney John Bryant and Dr. Hendricks that Carol Walker had demanded additional testing that Dr. Hendricks was purportedly unqualified to perform, and by affirming this knowledge in multiple pleadings in which he stated Dr. Hendricks informed Petitioner Johnson that he needed to have additional testing performed by a psychologist or someone other than her, Nichols engaged in conduct involving deceit and misrepresentation in violation of Rule 8.4(c).
39. Also to support and conceal his obvious misrepresentation that Carol Walker never talked to Dr. Hendricks prior to Johnsons appointment with her, Nichols willfully misrepresented another supporting fact. In his January 24, 2007 response to the question What constitutes a Board approved Psychiatrist/Psychologist?, (R p 36C) Nichols stated: NICHOLS: A Board approved Psychiatrist/Psychologist is one that is currently licensed and has the ability to perform/provide the requested services. 9
40. However, in his 23 June 2010 response letter to another Public Records Request (R pp 40A 40C) Nichols was asked again for the definition of a Board Approved Psychiatrist/Psychologist. This time realizing that Dr. Hendricks was more than qualified to perform any and all of the Board requested services; Nichols responded (R p 40B) as follows: NICHOLS: As I have stated to you on previous occasions, there is no Definition of a Board Approved Doctor in the form of as (sic) a written regulation or policy of the Board
COUNT EIGHT 41. Complainant repeats, re-alleges and incorporates by reference the allegations made in paragraphs 1-40 above with the same force and effect as if herein set forth. (a) By misstating in the August 2010 response to a public records request, letter, there is no Definition of a Board Approved Doctor, after stating in January 2007 the definition of a Board Approved Doctor, Nichols, once again, engaged in conduct involving deceit and misrepresentation in violation of Rule 8.4(c).
42. On October 5, 2006 at the conclusion of the TRO hearing, Johnson expressed to attorney Nichols that he conceded to take another mental evaluation and to resume the Ethical Legal Decision Making course that he had placed on hold pending the outcome of the hearing. Johnson then asked how long he would have to obtain the mental evaluation; and possibly not trying to seem unreasonable in the presence of the judge, attorney Nichols stated You need to get it as soon as possible. It turned out, however, that statement was misleading, at best, because on October 10, 2006, Johnson informed Nichols via email, (R p 42) that he was having difficulty obtaining the evaluation over that holiday weekend and later that evening, attorney Nichols contacted Johnson via email and stated that the evaluation was to be completed within three (3) days or Nichols would file for a Show Cause Hearing. However, in the same email, (R p 42) Nichols also stated that Johnson must have contacted the board five (5) days before the evaluation with the name of the psychiatrist; making Johnsons ability to comply before the Show Cause filing impossible. Amazingly, in the same email Nichols also states that Johnson could have also contacted a Licensed Psychological Associate, Licensed Professional Counselor or even a Licensed Certified Social Worker; making his earlier claim that Dr. Hendricks, a licensed psychologist, was not qualified to conduct the exam, especially egregious.
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COUNT NINE 43. Complainant repeats, re-alleges and incorporates by reference the allegations made in paragraphs 1-42 above with the same force and effect as if herein set forth. THEREFORE, Complainant alleges that Defendants foregoing actions constitute grounds for discipline pursuant to N.C. Gen Stat. 84-28(b)(2) in that Nichols violated the revised Rules of Professional Conduct in effect at the time of the conduct as follows: (a) By misstating to Johnson, before the judge at the October 5, 2006 hearing, You need to get it [mental evaluation] as soon as possible and sending Johnson an email that stated Johnson must contact the board at least five days before the mental evaluation; but also demanding that Johnson obtain a mental health evaluation within three days of the holiday weekend, Nichols engaged in conduct involving deceit and misrepresentation in violation of Rule 8.4(c).
(b)
By misstating to Johnson, before the judge at the October 5, 2006 hearing, You need to get it [mental evaluation] as soon as possible and sending Johnson an email that stated Johnson must contact the board at least five days before the mental evaluation; but also demanding that Johnson obtain a mental health evaluation within three days of the holiday weekend, Nichols knowingly made a false statement of material fact to the tribunal in violation of Rule 3.3(a). By misstating to Johnson, before the judge at the October 5, 2006 hearing, You need to get it [mental evaluation] as soon as possible and sending Johnson an email that stated Johnson must contact the board at least five days before the mental evaluation; but also demanding that Johnson obtain a mental health evaluation within three days of the holiday weekend, Nichols sought to use means that had no substantial purpose other than to embarrass and severely burden Johnson, in violation of Rule 4.4(a).
(c)
44. When Johnson tried to obtain the evaluation, he discovered that the Wake County Mental Health Department, The Veterans Administration Medical Center and several private psychologists and psychiatrists, either could not or would not perform such an extensive test for the purpose outlined by the Board. The main issue continued to be that the mental health professionals didnt have a stated rationale, questionable behavior or probable cause for conducting the evaluation other than the board staff just wanted it done as a punishment.
11
45. Johnson informed the Board staff that he was having great difficulty in obtaining someone to do the test and asked the Board staff for a recommendation as to whom in the area did such a test, but the Board staff steadfastly refused to suggest an option for Johnson to obtain the test. It was later learned by Johnson that although the Board staff has referred nurses for mental health evaluations in the past, those cases traditionally involved nurses accused of physical, mental, or substance abuse, hence the difficulty in securing a mental health professional to conduct the evaluation for breach of confidentiality issues as a punishment. 46. At a hearing on 29 January 2007 before Administrative Law Judge Donald Overby, Nichols testified as follows: NICHOLS: It is clear that he [Johnson] has been absolutely evasive about any effort to have this mental health evaluation done. And in part its because he doesnt want his wife to get hold of it to affect their pending custody case. (R p 46)
47. However, in January 2007, Johnson had no wife, having been divorced in 1996 and there was no pending custody case in 2007 in that his child was within months of her 18th birthday; and custody had been adjudicated many years earlier. Nichols simply manufactured these purported facts.
COUNT TEN 48. Complainant repeats, re-alleges and incorporates by reference the allegations made in paragraphs 1-47 above with the same force and effect as if herein set forth. THEREFORE, Complainant alleges that Defendants foregoing actions constitute grounds for discipline pursuant to N.C. Gen Stat. 84-28(b)(2) in that Nichols violated the revised Rules of Professional Conduct in effect at the time of the conduct as follows: (a) By misstating at an administrative hearing, It is clear that he [Johnson] has been absolutely evasive about any effort to have this mental health evaluation done., with full knowledge that Johnson scheduled, obtained and paid for a mental health evaluation with Dr. Hendricks, Nichols alluded to a matter that Nichols knew was not supported by the evidence, in violation of State Bar Rule 3.4(e).
12
COUNT ELEVEN 49. Complainant repeats, re-alleges and incorporates by reference the allegations made in paragraphs 1-48 above with the same force and effect as if herein set forth. (a) By misstating at an administrative hearing, It is clear that he [Johnson] has been absolutely evasive about any effort to have this mental health evaluation done., with full knowledge that Johnson scheduled, obtained and paid for a mental health evaluation with Dr. Hendricks, Nichols falsely stated a personal opinion as to the Johnsons credibility, culpability and guilt, in violation of State Bar Rule 3.4(e).
COUNT TWELVE 50. Complainant repeats, re-alleges and incorporates by reference the allegations made in paragraphs 1-49 above with the same force and effect as if herein set forth. (a) By misstating at an administrative hearing, It is clear that he [Johnson] has been absolutely evasive about any effort to have this mental health evaluation done., with full knowledge that Johnson scheduled, obtained and paid for a mental health evaluation with Dr. Hendricks, Nichols engaged in conduct involving deceit and misrepresentation in violation of Rule 8.4(c).
COUNT THIRTEEN 51. Complainant repeats, re-alleges and incorporates by reference the allegations made in paragraphs 1-50 above with the same force and effect as if herein set forth. (a) By misstating at an administrative hearing, It is clear that he [Johnson] has been absolutely evasive about any effort to have this mental health evaluation done., with full knowledge that Johnson scheduled, obtained and paid for a mental health evaluation with Dr. Hendricks, Nichols knowingly made a false statement of material fact to the tribunal in violation of Rule 3.3(a).
13
COUNT FOURTEEN 52. Complainant repeats, re-alleges and incorporates by reference the allegations made in paragraphs 1-51 above with the same force and effect as if herein set forth. (a) By misstating at an administrative hearing, And in part its because he doesnt want his wife to get hold of it to affect their pending custody case. Nichols alluded to a matter that Nichols knew was not supported by the evidence, in violation of State Bar Rule 3.4(e).
COUNT FIFTEEN 53. Complainant repeats, re-alleges and incorporates by reference the allegations made in paragraphs 1-52 above with the same force and effect as if herein set forth. (a) By misstating at an administrative hearing, And in part its because he doesnt want his wife to get hold of it to affect their pending custody case., Nichols falsely stated a personal opinion as to the Johnsons credibility, culpability and guilt, in violation of State Bar Rule 3.4(e).
COUNT SIXTEEN 54. Complainant repeats, re-alleges and incorporates by reference the allegations made in paragraphs 1-53 above with the same force and effect as if herein set forth. (a) By misstating at an administrative hearing, And in part its because he doesnt want his wife to get hold of it to affect their pending custody case., Nichols engaged in conduct involving deceit and misrepresentation in violation of Rule 8.4(c).
COUNT SEVENTEEN 55. Complainant repeats, re-alleges and incorporates by reference the allegations made in paragraphs 1-54 above with the same force and effect as if herein set forth. (a) By misstating at an administrative hearing, And in part its because he doesnt want his wife to get hold of it to affect their pending custody case., Nichols knowingly made a false statement of material fact to the tribunal in violation of Rule 3.3(a). 14
COUNT EIGHTEEN 56. Complainant repeats, re-alleges and incorporates by reference the allegations made in paragraphs 1-55 above with the same force and effect as if herein set forth. (a) By misstating at an administrative hearing, It is clear that he [Johnson] has been absolutely evasive about any effort to have this mental health evaluation done. And in part its because he doesnt want his wife to get hold of it to affect their pending custody case., with full knowledge that Johnson scheduled, obtained and paid for a mental health evaluation with Dr. Hendricks, Nichols knowingly made a false statement of material fact to the tribunal and failed to correct his false statement of material fact previously made to the tribunal, in violation of Rule 3.3(a)(1).
COUNT NINTEEN 57. Complainant repeats, re-alleges and incorporates by reference the allegations made in paragraphs 1-56 above with the same force and effect as if herein set forth. (a) By misstating at an administrative hearing, It is clear that he [Johnson] has been absolutely evasive about any effort to have this mental health evaluation done. And in part its because he doesnt want his wife to get hold of it to affect their pending custody case., with full knowledge that Johnson scheduled, obtained and paid for a mental health evaluation with Dr. Hendricks, and that Johnson was not married nor had a pending custody case, Nichols knowingly offered evidence that he knew to be false and/or became aware of its falsity, but failed to take any remedial measures to disclose these falsities to the tribunal, in violation of State Bar Rule 3.3(a)(3).
COUNT TWENTY 58. Complainant repeats, re-alleges and incorporates by reference the allegations made in paragraphs 1-57 above with the same force and effect as if herein set forth. (a) Even if Nichols falsely believed that Johnson was facing a pending hearing that would have decided the custody of his child; (emphasis added) to then aggressively push for Johnson to obtain, not one, but two mental health evaluations, without sufficient probable cause, and with the certain knowledge that a purported state mandated mental health evaluation could seriously impact the outcome of a custody proceeding; it is evidence that Nichols, with no regard to the seriousness of his conduct, sought to use means that had no substantial purpose other than to embarrass and severely burden Johnson, in violation of Rule 4.4(a). 15
59. At a show cause hearing on 23 October 2006 before Administrative Law Judge Beecher Gray, Nichols asked Dr. Hendricks under oath, (R pp 59A-59B) the following: NICHOLS: After you conducted this [mental evaluation] would you say this evaluation, this meeting with Mr. Johnson, was a preliminary evaluation, a complete evaluation or a consultation? DR. HENDRICKS: Well, for what I felt I was being asked to do, I felt like that first - - that appointment was adequate, that I felt that I contacted the Board after that meeting, and I felt that I had I could write a report that was going to answer the questions they needed, the issues addressed. So in my mind, that was our last meeting. (emphasis added)
60. Hendricks testimony makes it clear that both Johnson and Dr. Hendricks complied with the instructions of the board staff as relayed to both of them prior to the evaluation. However, Nichols consistently misrepresented that Hendricks told Johnson that their meeting was just an initial clinical interview. (R p 37G) 61. As stated supra, Nichols drafted multiple documents and misstated this assertion multiple times during oral argument (R p 111) before multiple tribunals. In the PROPOSAL FOR DECISION filed February 16, 2007, inter alia, Nichols falsely states: 42.b. Dr. Anne Hendricks performed an initial evaluation (emphasis added) of the Petitioner, but felt that she (she felt emphasis added) needed to have further diagnostic evaluations by testing in order to complete the evaluation necessary to satisfy the requirements of Respondent. (R p 37G) 42.c. Dr. Hendricks informed Petitioner Johnson that he needed to have additional testing performed by a psychologist or someone other than her, that she could not finish the evaluation until she had the results of the testing, and she informed Petitioner of the particular importance of finishing the process so that she could prepare the report for the Respondent [Board]. (R p 37G)
62. Nichols knew that Dr. Hendricks had contacted the board prior to the evaluation, had received the guidelines for the evaluation from Walker prior to the evaluation, had informed Johnson that the evaluation was complete at the conclusion of the evaluation, and had informed Johnson that she would prepare the report for the Board based solely on that evaluation.
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COUNT TWENTY-ONE 63. Complainant repeats, re-alleges and incorporates by reference the allegations made in paragraphs 1-62 above with the same force and effect as if herein set forth. THEREFORE, Complainant alleges that Defendants foregoing actions constitute grounds for discipline pursuant to N.C. Gen Stat. 84-28(b)(2) in that Nichols violated the revised Rules of Professional Conduct in effect at the time of the conduct as follows: (a) By misstating multiple times in documents and oral argument before several tribunals Dr. Hendricks informed Petitioner Johnson that he needed to have additional testing performed by a psychologist or someone other than her, that she could not finish the evaluation until she had the results of the testing, and she informed Petitioner of the particular importance of finishing the process so that she could prepare the report for the Respondent, without informing the tribunal that Johnson and Dr. Hendricks had both complied with the directions of the board as originally directed, Nichols engaged in conduct involving deceit and misrepresentation in violation of Rule 8.4(c). By misstating multiple times in documents and oral argument before several tribunals that it was Dr. Hendricks who felt that she needed further diagnostic testing without informing the tribunal that Johnson and Dr. Hendricks had both complied with the directions of the board as originally directed, Nichols engaged in conduct involving deceit and misrepresentation in violation of Rule 8.4(c).
(b)
COUNT TWENTY-TWO 64. Complainant repeats, re-alleges and incorporates by reference the allegations made in paragraphs 1-63 above with the same force and effect as if herein set forth. (a) By misstating multiple times in documents and oral argument before several tribunals Dr. Hendricks informed Petitioner Johnson that he needed to have additional testing performed by a psychologist or someone other than her, that she could not finish the evaluation until she had the results of the testing, and she informed Petitioner of the particular importance of finishing the process so that she could prepare the report for the Respondent, without informing the tribunal that Johnson and Dr. Hendricks had both complied with the directions of the board as originally directed, Nichols alluded to a matter that Nichols knew or should have known was not supported by the evidence, in violation of State Bar Rule 3.4(e).
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III ETHICAL LEGAL DECISION MAKING COURSE: EXCULPATORY EMAIL EVIDENCE 65. On August 14, 2006, at 5:45 am, Johnson emailed Carol Walker and expressed concern that Frankie Ballard, the instructor for the Board-mandated Ethical Legal Decision Making Course, had not contacted him to conduct the course after their initial contact and time was running short. Johnson had left numerous messages for Ballard with no results. The email (hereinafter the concerned email) (R p 65) stated as follows:
Subj: Date: From: To: Concerned 8/14/2006 5:45:24 AM Eastern Standard Time KenJohnsonMusic carolw@ncbon.com
Dear Carol, I am increasingly concerned about the Ethical Decision making course. I contacted the instructor, she told me she had to contact you and then we could begin. This has been weeks and I have heard nothing. When I contacted her last, she told me she had to get something from you before we could start. With the time limit looming, I am very concerned that I may not make it if I am not allowed to begin soon. Also could you email me the contact information for the Office of Inspector General that you sent my case to. There are dozens of OIG offices on the web and I cant narrow it down. Thanks. Ken Johnson
66. Shortly after the concerned email was received by Carol Walker, she contacted Frankie Ballard (hereinafter Ballard) and informed her that Johnson was having difficulty getting in touch with Ballard. This was confirmed by Ballards sworn testimony during the October 23, 2006 and January 29-30, 2007 show cause hearings. Ballard stated: October 23, 2006 JOHNSON: So you do remember Ms. Walker contacting you[concerning the email] BALLARD: Right. And I called you after that (R p 66A)
January 29-30, 2007 BALLARD: I talked to Carol [Walker]. In the beginning when I was having - - when she called me, she was talking about that he [Johnson] said that he was having difficulty getting in touch with me. (R p 66B)
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67. However, at the October 23, 2006 show cause hearing, Johnson asked Carol Walker under cross-examination if she recalled him contacting her for assistance in contacting Ms. Ballard because he was having a problem contacting her and he was worried about the time limit running down on completing the Ethical Legal Decision Making Course; Walker, inexplicably said No, I do not. (R pp 67A-67B) 68. At the January 29-30, 2007 hearing, Nichols, faced with the email evidence contrary to his assertion that Johnson simply disregarded the course, falsely stated that Johnson must have created the concerned email after the fact. 69. Astoundingly, Judge Overby disregarded the testimony of Frankie Ballard and chose to believe Nichols false allegation that the concerned email was created after the fact. At the January 29-30, 2007 hearing, concerning the concerned email, Judge Overby stated: OVERBY: And it appears, quite honestly, that it may have been, and I emphasize the word may have been created after the fact. The only credible evidence about that particular document is that Ms. Walker did not receive it. So little or no weight is given to that particular document that was received into evidence. (R p 69)
70. Inexplicably, when confronted by exculpatory evidence, supported by witness testimony, Nichols simply convinced the Court that Johnson must have fabricated it. Because of Nichols deception, Johnson was forced to move his email account from America Online (AOL) to Google Mail (Gmail). Insofar as AOL only archives their emails for 30 days or so; and Gmail archives their emails forever, Nichols would be less likely (presumably) to deceive the Court in the future concerning delivered or received emails. 71. On August 23, 2007, in Nichols RESPONDENTS MEMORANDUM OF LAW IN OPPOSITION TO THE PETITION FOR JUDICIAL REVIEW (R p 71_21), and in his September 24, 2007 RESPONSE TO PETITIONERS MOTION FOR SANCTIONS (R p 126), Nichols used Judge Overbys words to further falsely attack Johnsons credibility. Nichols wrote: Secondly, the Administrative Law Judge did make a credibility determination and it was adverse to Petitioner. Indeed, there is a strong implication that it was Petitioner who had committed perjury. At the hearing on January 29, 2007, Petitioner attempted to offer a purported e-mail as an exhibit and Respondents Counsel objected.
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COUNT TWENTY-THREE 72. Complainant repeats, re-alleges and incorporates by reference the allegations made in paragraphs 1-71 above with the same force and effect as if herein set forth. THEREFORE, Complainant alleges that Defendants foregoing actions constitute grounds for discipline pursuant to N.C. Gen Stat. 84-28(b)(2) in that Nichols violated the revised Rules of Professional Conduct in effect at the time of the conduct as follows: (a) By misrepresenting to the Court that the concerned email must have been fabricated after the fact, although Ballards testimony was clear evidence of its authenticity, Nichols engaged in conduct involving deceit and misrepresentation in violation of Rule 8.4(c).
COUNT TWENTY-FOUR 73. Complainant repeats, re-alleges and incorporates by reference the allegations made in paragraphs 1-72 above with the same force and effect as if herein set forth. (a) By misrepresenting to the Court that the concerned email must have been fabricated after the fact, although Ballards testimony was clear evidence of its authenticity, Nichols alluded to a matter that Nichols knew or should have known was not supported by the evidence, in violation of State Bar Rule 3.4(e).
COUNT TWENTY-FIVE 74. Complainant repeats, re-alleges and incorporates by reference the allegations made in paragraphs 1-73 above with the same force and effect as if herein set forth. (a) By misrepresenting to the Court that the concerned email must have been fabricated after the fact, although Ballards testimony was clear evidence of its authenticity, Nichols knowingly made a false statement of material fact to the tribunal in violation of Rule 3.3(a).
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COUNT TWENTY-SIX 75. Complainant repeats, re-alleges and incorporates by reference the allegations made in paragraphs 1-74 above with the same force and effect as if herein set forth. (a) By misrepresenting to the Court that the concerned email must have been fabricated after the fact, although Ballards testimony was clear evidence of its authenticity, Nichols falsely stated a personal opinion as to Johnsons credibility, culpability and guilt, in violation of State Bar Rule 3.4(e).
COUNT TWENTY-SEVEN 76. Complainant repeats, re-alleges and incorporates by reference the allegations made in paragraphs 1-75 above with the same force and effect as if herein set forth. (a) By misrepresenting to the Court that the concerned email must have been fabricated after the fact, although Ballards testimony was clear evidence of its authenticity, Nichols asserted personal knowledge of facts in issue although he was not testifying as a witness, in violation of State Bar Rule 3.4(e).
COUNT TWENTY-EIGHT 77. Complainant repeats, re-alleges and incorporates by reference the allegations made in paragraphs 1-76 above with the same force and effect as if herein set forth. (a) By misrepresenting to the Court that the concerned email must have been fabricated after the fact, although Ballards testimony was clear evidence of its authenticity, Nichols unlawfully obstructed Johnsons access to evidence and unlawfully concealed a document having potential evidentiary value, in violation of State Bar Rule 3.4(a).
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COUNT TWENTY-NINE 78. Complainant repeats, re-alleges and incorporates by reference the allegations made in paragraphs 1-77 above with the same force and effect as if herein set forth. (a) By misrepresenting to the Court that the concerned email must have been fabricated after the fact, although Ballards testimony was clear evidence of its authenticity; and further declaring Judge Overbys false conclusions about the authenticity of the e-mail, which were drawn from Jack Nichols improper misrepresentation of the email; and then to suggest that Johnson had committed perjury pursuant to those false statements, Nichols knowingly made a false statement of material fact to the tribunal (Baddour) in violation of Rule 3.3(a).
IV UNLAWFUL PRACTICE OF NURSING ALLEGATION 79. At a hearing on 29 January 2007 before Administrative Law Judge Donald Overby, Nichols falsely testified as follows: NICHOLS: Hes [Johnson] supposed to keep the Board informed of his nursing positions. There was some evidence today that he [Johnson] was doing something in South Carolina. We have no knowledge of that. He [Johnson] signed an agreement saying that he wouldnt work in other states. I dont even want to know what thats about. (R p 46)
80. However, Johnson has never worked in South Carolina and has not held a nursing position in any state since the North Carolina Board of Nursing suspended his license on November 3, 2006. Nichols simply manufactured these purported facts to wrongly cast Johnson in a false and unfavorable light before the tribunal. Nichols had informed Johnson in a letter dated November 3, 2006 of his license suspension and stated the following: the Board of Nursing adopted the Proposal for Decision, your license to practice nursing is suspended as of today. That suspension will be entered into NURSYS, which is the nationally reporting system for nurses, and your right to practice in other jurisdictions will also be suspended. (R p 254C)
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COUNT THIRTY 81. Complainant repeats, re-alleges and incorporates by reference the allegations made in paragraphs 1-80 above with the same force and effect as if herein set forth. THEREFORE, Complainant alleges that Defendants foregoing actions constitute grounds for discipline pursuant to N.C. Gen Stat. 84-28(b)(2) in that Nichols violated the revised Rules of Professional Conduct in effect at the time of the conduct as follows: (a) By falsely claming at an administrative hearing, There was some evidence today that he was doing something [nursing] in South Carolina., with full knowledge that Johnson never worked in South Carolina, Nichols alluded to a matter that Nichols knew was not supported by the evidence, in violation of State Bar Rule 3.4(e).
COUNT THIRTY-ONE 82. Complainant repeats, re-alleges and incorporates by reference the allegations made in paragraphs 1-81 above with the same force and effect as if herein set forth. (a) By falsely claming at an administrative hearing, There was some evidence today that he was doing something [nursing] in South Carolina., with full knowledge that Johnson never worked in South Carolina, Nichols stated a personal opinion as to the Johnsons credibility, culpability and guilt, in violation of State Bar Rule 3.4(e).
COUNT THIRTY-TWO 83. Complainant repeats, re-alleges and incorporates by reference the allegations made in paragraphs 1-82 above with the same force and effect as if herein set forth. (a) By falsely claming at an administrative hearing, There was some evidence today that he was doing something [nursing] in South Carolina., Nichols asserted personal knowledge of facts in issue although he was not testifying as a witness, in violation of State Bar Rule 3.4(e).
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NORTH CAROLINA STATE BAR COMPLAINT Monroe Jackson Nichols Page 24 of 111 COUNT THIRTY-THREE 84. Complainant repeats, re-alleges and incorporates by reference the allegations made in paragraphs 1-83 above with the same force and effect as if herein set forth. (a) By falsely claming at an administrative hearing, There was some evidence today that he was doing something [nursing] in South Carolina., with full knowledge that Johnson never worked in South Carolina, Nichols knowingly made a false statement of material fact to the tribunal and failed to correct his false statement of material fact previously made to the tribunal, in violation of Rule 3.3(a)(1).
COUNT THIRTY-FOUR 85. Complainant repeats, re-alleges and incorporates by reference the allegations made in paragraphs 1-84 above with the same force and effect as if herein set forth. (a) By falsely claming at an administrative hearing, There was some evidence today that he was doing something [nursing] in South Carolina., Nichols knowingly offered evidence that he knew to be false and/or became aware of its falsity, but failed to take any remedial measures to disclose these falsities to the tribunal, in violation of State Bar Rule 3.3(a)(3). By falsely claming at an administrative hearing, There was some evidence today that he was doing something [nursing] in South Carolina., Nichols engaged in conduct involving deceit and misrepresentation in violation of Rule 8.4(c).
(b)
COUNT THIRTY-FIVE 86. Complainant repeats, re-alleges and incorporates by reference the allegations made in paragraphs 1-85 above with the same force and effect as if herein set forth. (a) By falsely claming at an administrative hearing, There was some evidence today that he was doing something [nursing] in South Carolina., Nichols falsely accused Johnson of the unlawful practice of nursing (N.C. 90-171.43), punishable as a Class 1 misdemeanor (N.C. 90-171.45); and thus Nichols used means that had no substantial purpose other than to embarrass and burden Johnson, in violation of Rule 4.4(a).
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V RETALIATORY ATTORNEY FEES 87. Nichols repeatedly sought to obtain unwarranted attorney fees from the pro se litigant to not only enrich himself, but to use as a threat and an economic bar against Johnsons attempts to seek legal redress. 88. Many judges fail to draft their own judgments and rely on counsel to draft the proposed order consistent with the decisions reached in court. 89. Nichols frequently uses this opportunity to draft proposed orders that not only places a self-serving spin on the orders of the judge, but immortalizes that spin as fact when the judge, relying on Nichols candor, signs the order. 90. Nichols then refers to the self-serving findings of fact to support subsequent arguments as factually based pursuant to a purportedly reasoned finding by the trier of fact. One of the best examples of this involved his repeated requests for attorney fee sanctions. 91. Nichols drafted a PROPOSAL FOR DECISION that was signed by ALJ Overby and filed on 16 February 2007. (R pp 37A-37K) Throughout, Nichols places his own self-serving spin on the purported findings of fact and conclusions of law of Administrative Law Judge Donald Overby. In paragraph 49, Nichols wrote the following: 49. These among other examples of extrajudicial conduct on the part of the Petitioner are sufficient to warrant that the undersigned Administrative Law Judge entertain a motion from respondent Board for Attorney Fees and Costs under N.C.Gen.Stat. 6-21.5 and Rule 37 of the N.C. Rules of Civil Procedure. (R p 37H)
92. These purported conclusions of law were not ALJ Overbys conclusions of law at all; although, relying on Nichols to draft a proposed order that was true and fair, Judge Overby signed it, but later rejected Nichols findings and conclusions of law in subsequent orders. However, Nichols still cited this document before The North Carolina Board of Nursing at the April 27, 2007 hearing (R p 95) and before Judge Baddour in his Response to a Motion for Sanctions (R p 129), as evidence that ALJ Overby believed Johnsons conduct was sufficient to warrant attorney fees and costs sanctions. 93. However, on 16 March 2007, after Judge Overby signed the PROPOSAL FOR DECISION, attorney Mary B. Shuping, co-counsel of Nichols filed a purported MOTION & AFFIDAVIT FOR ATTORNEYS FEES & COSTS. (R pp 27-29) The document was HIGHLY flawed.
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94. The MOTION & AFFIDAVIT FOR ATTORNEYS FEES & COSTS incorrectly states The undersigned [Shuping] is the attorney of record for Respondent (R p 27) However, although Shuping signed the document, Nichols was the attorney of record. 95. The MOTION & AFFIDAVIT FOR ATTORNEYS FEES & COSTS also states, in pertinent part, The skill required for these services can be determined by the court upon consideration of the preparedness and ability shown at the hearingby the undersigned [Shuping], (R p 28) although it was Nichols, not Shuping at the hearing(s). 96. The MOTION & AFFIDAVIT FOR ATTORNEYS FEES & COSTS demanded $17, 701.94 in attorney fees and $1,165.94 in costs for a total of $18,887.88 to prosecute the case. 97. However, the MOTION & AFFIDAVIT FOR ATTORNEYS FEES & COSTS states that attorney Shuping did not charge for her services. Thus, the fees claimed by Nichols and his paralegal staff, by his own calculations, amounts to a total of $16,703.50 in attorney fees; not $17,701.94. 98. Together with the claimed support costs, the total should have been $17,869.44; not $18,887.88 as stated in the MOTION & AFFIDAVIT FOR ATTORNEYS FEES & COSTS. Consequently, the MOTION & AFFIDAVIT FOR ATTORNEYS FEES & COSTS demanded $1,018.44 more than Nichols billable hours claimed he earned. Therefore, the State of North Carolina was overcharged $1,018.44. 99. Additionally, in 2010, Nichols, in response to a public records request, submitted a summary of attorney fees in this case, (R p 13) [image detail R p14] and although the MOTION & AFFIDAVIT FOR ATTORNEYS FEES & COSTS demanded $18,887.88 for the period ending March 2007, the 2010 summary shows that Nichols was paid $22,845.32 for the same period; a discrepancy of $3,957.44 from the amount demanded in the MOTION and $4,975.88 more than his 2007-2007 itemized bills reflect.
COUNT THIRTY-SIX 100. Complainant repeats, re-alleges and incorporates by reference the allegations made in paragraphs 1-99 above with the same force and effect as if herein set forth. THEREFORE, Complainant alleges that Defendants foregoing actions constitute grounds for discipline pursuant to N.C. Gen Stat. 84-28(b)(2) in that Nichols violated the revised Rules of Professional Conduct in effect at the time of the conduct as follows: (a) By misstating and demanding an attorney fee which was $1,018.44 more than Nichols, himself, claimed he was entitled to, Nichols charged the North Carolina Board of Nursing; and attempted to charge Johnson, an illegal and clearly excessive fee in violation of Rule 1.5 of the State Bar Rules of Professional Conduct. 26
(b)
By misstating and demanding an attorney fee which was $4,975.88 more than Nichols, himself, claimed he was entitled to, Nichols charged the North Carolina Board of Nursing; and attempted to charge Johnson, an illegal and clearly excessive fee in violation of Rule 1.5 of the State Bar Rules of Professional Conduct.
101. The MOTION & AFFIDAVIT FOR ATTORNEYS FEES & COSTS was notarized (R p 29) by Nichols paralegal and North Carolina State Notary, Shanon Gerger, who Nichols claimed in the motion, earned $4,335.00 (R p 28) for her paralegal services. 102. Under North Carolina General Statute 10B-20(c), a notary shall not perform a notarial act if the notary is a beneficiary of the record. Therefore, it is improper for Nichols to have his paralegal, Shanon Gerger notarize a document in which she has a financial stake.
COUNT THIRTY-SEVEN 103. Complainant repeats, re-alleges and incorporates by reference the allegations made in paragraphs 1-102 above with the same force and effect as if herein set forth. THEREFORE, Complainant alleges that Defendants foregoing actions constitute grounds for discipline pursuant to N.C. Gen Stat. 84-28(b)(2) in that Nichols violated the revised Rules of Professional Conduct in effect at the time of the conduct as follows: (a) By allowing, supporting or directing his paralegal, Shanon Gerger, a nonlawyer that he has supervisory authority over to notarize a document that she was listed within as a beneficiary, he failed to ensure the nonlawyers conduct was compatible with his [Nichols] professional obligations; and thus he is in violation of Rule 5.3.
104. In a letter dated 25 March 2007, (R pp 256A-256D) attorney Nichols not only wrongfully stated that the OAH were considering attorney fee sanctions to be imminent, but also falsely threatened Johnson (R p 256B) that additional attorney fees and costs might be awarded against Johnson if he were to file any appeal. Nichols stated: There are no additional fees pertaining to the disciplinary action that are due, except those attorney fees and costs that might be awarded by the Office of Administrative Hearings and also [he boldly emphasizes and also] any fees and costs that might be incurred in any subsequent appeal that you might file. (R p 256B)
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105. ALJ Donald Overby, to his credit, in an order dated 26 March 2007, denied Nichols MOTION & AFFIDAVIT FOR ATTORNEYS FEES & COSTS, (R pp 17A-17C) as not authorized by North Carolina 6-19.1 and further stated Nichols was not entitled to attorney fees. 106. As an attorney specializing in administrative law, Nichols is most certainly aware that North Carolina 6-19.1 states: In any civil action, other thana disciplinary action by a licensing board, [emphasis added] brought by the State or brought by a party who is contesting State actionthe court may, in its discretion, allow the prevailing party to recover reasonable attorney's fees
107. However, on 9 April 2007, in what can only be described as statute shopping, Nichols filed MOTION FOR RECONSIDERATION OF MARCH 26, 2007 ORDER; RENEWED MOTION & AFFIDAVIT OF ATTORNEYS FEES & COSTS UNDER N.C.G.S. 6-21.5 and RULE 37. (R pp 11A-11E) This time he actually signed the pleading. 108. His new theory to support attorney fees, abandons his previous theory pursuant to N.C. 6-19.1 and demands attorney fees as sanction pursuant to N.C.G.S. 6-21.5. and Rule 37. Astoundingly, just as in the previous pleading, his claimed fees and purported associated costs continued to exceed the rates demanded in the motion.
COUNT THIRTY-EIGHT 109. Complainant repeats, re-alleges and incorporates by reference the allegations made in paragraphs 1-108 above with the same force and effect as if herein set forth. THEREFORE, Complainant alleges that Defendants foregoing actions constitute grounds for discipline pursuant to N.C. Gen Stat. 84-28(b)(2) in that Nichols violated the revised Rules of Professional Conduct in effect at the time of the conduct as follows: (a) By again misstating and demanding an attorney fee, which was $1,018.44 more than Nichols, himself, claimed he was entitled to, in his MOTION FOR RECONSIDERATION OF MARCH 26, 2007 ORDER; RENEWED MOTION & AFFIDAVIT OF ATTORNEYS FEES & COSTS UNDER N.C.G.S. 6-21.5 and RULE 37, Nichols charged the North Carolina Board of Nursing; and attempted to charge Johnson, an illegal and clearly excessive fee in violation of Rule 1.5.
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110. Nichols unique theory to support attorney fees was falsely based upon his claim that he purportedly established factual matters which Petitioner [Johnson] refused to admit and therefore, Respondent is [purportedly] entitled to an award of attorney fees under Rule 37(c). 111. Nichols never states, either in his motion, affidavit or billing records, just what factual matters Johnson refused to admit, which were subsequently established; and further he fails to identify the costs claimed and charged to the board for his purported effort in establishing the purported falsehood(s). Clearly, it is because there are none. Rule 37(c) states, inter alia: 37(c) Expenses on failure to admit. If a party fails to admit the genuineness of any document or the truth of any matter as requested under Rule 36, and if the party requesting the admissions thereafter proves the genuineness of the document or the truth of the matter, he may apply to the court for an order requiring the other party to pay him the reasonable expenses incurred in making that proof, including reasonable attorney's fees.
112. Therefore, it was improper for Nichols to rely on Rule 37(c) as a basis for attorney fee sanctions, absent identification of the purported false matter and the time, effort and expense incurred in making the proof. 113. Also, Nichols sought attorney fee sanctions pursuant to N.C.G.S. 6-21.5, which states in pertinent part: In any civil action or special proceeding the court, upon motion of the prevailing party, may award a reasonable attorney's fee to the prevailing party if the court finds that there was a complete absence of a justiciable issue of either law or fact raised by the losing party in any pleading A party who advances a claim or defense supported by a good faith argument for an extension, modification, or reversal of law may not be required under this section to pay attorney's fees.
114. It was improper for Nichols to falsely cite N.C.G.S. 6-21.5 as a basis for attorney fee sanctions, because the case against Johnson was an administrative hearing; not a civil action brought by Johnson or a special proceeding. Although the distinction between these types of cases is clear, Nichols repeatedly attempted to re-litigate the issue, although he, as an attorney specializing in administrative law, was most certainly aware, or should have been aware of the standing law on this matter. In the end he was unsuccessful, but not for lack of trying.
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115. At the April 27, 2007 hearing before the Board of Nursing, Nichols, having been denied attorney fee sanctions against Johnson, presented the PROPOSAL FOR DECISION, signed by ALJ Overby, to the full Board. During oral arguments (R p 100) he stated to the Board: NICHOLS: we had submitted a motion for attorneys fees, and - - in fact, it was erroneously submitted under the wrong statute, and I have since filed a motion to reconsider. We had requested attorneys fees in the amount of $17,701.94. The Board has two options there. It can not accept Judge Overbys order and issue an order of attorneys fees in that amount, or it can refer the matter back to the [OAH] and ask them to hear because, after I filed my motion - - second motion for attorneys fees, a motion to reconsider, Mr. Johnson filed a motion to strike that
116. His oral argument makes it clear that although ALJ Overby had denied his first motion for attorney fees, Nichols filed a motion to have ALJ Overby reconsider his decision pursuant to other statutes, and then attempted to have the Board simply grant the fees themselves by improperly suggesting that they could reject ALJ Overbys decision on the first motion and disregard the second motion and Johnsons motion to strike. To their credit, the Board sent the motion back to Judge Overby and once again, he denied the fees.
COUNT THIRTY-NINE 117. Complainant repeats, re-alleges and incorporates by reference the allegations made in paragraphs 1-116 above with the same force and effect as if herein set forth. THEREFORE, Complainant alleges that Defendants foregoing actions constitute grounds for discipline pursuant to N.C. Gen Stat. 84-28(b)(2) in that Nichols violated the revised Rules of Professional Conduct in effect at the time of the conduct as follows: (a) By misstating to the Board that they could simply ignore ALJ Overbys ruling that attorney fee sanctions are not authorized in administrative disciplinary proceedings, in an attempt to obtain attorney fees, Nichols engaged in conduct involving deceit and misrepresentation in violation of Rule 8.4(c).
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COUNT FORTY 118. Complainant repeats, re-alleges and incorporates by reference the allegations made in paragraphs 1-117 above with the same force and effect as if herein set forth. (a) By misstating to the Board that they could simply ignore ALJ Overbys ruling that attorney fee sanctions are not authorized in administrative disciplinary proceedings, in an attempt to obtain attorney fees, Nichols failed to disclose to the tribunal, his client, the Board, legal authority known to him to be directly adverse to his position, in violation of Rule 3.3(a)(2).
COUNT FORTY-ONE 119. Complainant repeats, re-alleges and incorporates by reference the allegations made in paragraphs 1-118 above with the same force and effect as if herein set forth. (a) By including the purported finding These among other examples of extrajudicial conduct on the part of the Petitioner are sufficient to warrant that the undersigned Administrative Law Judge entertain a motion for Attorney Fees and Costs within the 16 February 2007, PROPOSAL FOR DECISION, even after the ALJ informed him that it was not sufficient, Nichols falsely immortalize as fact, a false suggestion that the finding was an opinion of the ALJ; in violation of Rule 8.4. By including the purported finding These among other examples of extrajudicial conduct on the part of the Petitioner are sufficient to warrant that the undersigned Administrative Law Judge entertain a motion for Attorney Fees and Costs within the 16 February 2007, PROPOSAL FOR DECISION, even after the ALJ informed him that it was not sufficient, Nichols failed to disclose to the tribunal, legal authority known to him to be directly adverse to standing law, in violation of Rule 3.3(a)(2).
(b)
120. Although ALJ Overby corrected the Nichols drafted alleged finding These among other examples of extrajudicial conduct on the part of the Petitioner are sufficient to warrant that the undersigned Administrative Law Judge entertain a motion for Attorney Fees and Costs by denying Nichols motion twice, Nichols nevertheless refers to the denied finding in his 24 September 2007 RESPONSE TO PETITIONERS MOTION FOR SANCTIONS (R p 129) by again requesting attorney fee sanctions and referring the Court to the false finding by stating: See Judge Overbys February 16, 2007 Proposal for Decision
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COUNT FORTY-TWO 121. Complainant repeats, re-alleges and incorporates by reference the allegations made in paragraphs 1-120 above with the same force and effect as if herein set forth. THEREFORE, Complainant alleges that Defendants foregoing actions constitute grounds for discipline pursuant to N.C. Gen Stat. 84-28(b)(2) in that Nichols violated the revised Rules of Professional Conduct in effect at the time of the conduct as follows: (a) By including the purported finding These among other examples of extrajudicial conduct on the part of the Petitioner are sufficient to warrant that the undersigned Administrative Law Judge entertain a motion for Attorney Fees and Costs within the 24 September 2007 RESPONSE TO PETITIONERS MOTION FOR SANCTIONS, although the finding had been denied months prior by ALJ Overby, Nichols engaged in conduct involving deceit and misrepresentation in violation of Rule 8.4(c).
COUNT FORTY-THREE 122. Complainant repeats, re-alleges and incorporates by reference the allegations made in paragraphs 1-121 above with the same force and effect as if herein set forth. (a) By including the purported finding These among other examples of extrajudicial conduct on the part of the Petitioner are sufficient to warrant that the undersigned Administrative Law Judge entertain a motion for Attorney Fees and Costs within the 24 September 2007 RESPONSE TO PETITIONERS MOTION FOR SANCTIONS, although the finding had been denied months prior by ALJ Overby, Nichols failed to disclose to the tribunal legal authority known to him to be directly adverse to his position, in violation of Rule 3.3(a)(2).
123. Throughout the pendency of the case, Nichols consistently attempted to use the threat of attorney fee sanctions to place an economic bar between Johnson and his attempts at seeking legal redress. However, amazingly, on December 5, 2007, during a hearing before Judge Baddour, with both his MOTION & AFFIDAVIT FOR ATTORNEYS FEES & COSTS; and his MOTION FOR RECONSIDERATION OF MARCH 26, 2007 ORDER; RENEWED MOTION & AFFIDAVIT OF ATTORNEYS FEES & COSTS UNDER N.C.G.S. 6-21.5 and RULE 37; in the record before the Court, Nichols falsely stated: AUDIO EXHIBIT NICHOLS: weve filed a Motion to Quash. Weve not asked for this in the past (emphasis added) but now we are asking that in addition to quash, that you treat this Motion as frivolous and that you access costs, including reasonable attorney fees 32
124. Nichols claims that he usually charges $230.00 for his services, but further claims that under his retainer agreement with the North Carolina Board of Nursing, he has agreed to charge only $140.00. (R p152C) [later increased to $145.00(R p153C)]. 125. However, Nichols charges the board separately for his paralegal expenses. Therefore, by piling on purported paralegal charges, he essentially inflates his charges to the State of North Carolina at an extreme rate of $495.00 an hour. 126. Additionally, a review of Nichols billing records (R pp 133-151) shows the effective pay rate for Nichols paralegal Alice S. Knowles [ASK] was $67.96. (R p137) However, in both Nichols MOTION & AFFIDAVIT FOR ATTORNEYS FEES & COSTS; (R p28) as well as his MOTION FOR RECONSIDERATION OF MARCH 26, 2007 ORDER; RENEWED MOTION & AFFIDAVIT OF ATTORNEYS FEES & COSTS UNDER N.C.G.S. 6-21.5 and RULE 37; (R p 11C) Nichols falsely stated her effective pay rate to be $75.00. 127. Nichols alleges (R p 11B) and (R p 27) Alice S. Knowles worked on the Johnson case a purported 27.4 hours at $75.00 an hour. Insofar as his billing records show that her effective rate was only $67.96 an hour (R p137), Nichols overcharged the State of North Carolina and was overpaid $192.89. 128. Although some of these inflated attorney fees were relatively small, they exhibit a pattern that consistently favored Nichols, to the detriment of the state and increased exponentially, as he discovered that his bills were paid unchallenged by members of the Board.
COUNT FORTY-FOUR 129. Complainant repeats, re-alleges and incorporates by reference the allegations made in paragraphs 1-128 above with the same force and effect as if herein set forth. (a) By demanding an attorney fee which is improperly supplemented with purported fees of paralegal and other support personnel, Nichols increased the agreed upon attorney fee rate in violation of the retainer agreement. The resulting fee compensated Nichols paralegals at a higher rate than the previous attorney representing the Board and is illegal and a clearly excessive cost to the taxpayers of North Carolina, in violation of Rule 1.5 of the State Bar Rules of Professional Conduct.
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NORTH CAROLINA STATE BAR COMPLAINT Monroe Jackson Nichols Page 34 of 111 COUNT FORTY-FIVE 130. Complainant repeats, re-alleges and incorporates by reference the allegations made in paragraphs 1-129 above with the same force and effect as if herein set forth. (a) By presenting the North Carolina Board of Nursing, a state agency, with billing records that state the effective rate of pay for Ms. Knowles to be $67.96, but then filing two affidavits demanding fees and costs for Ms. Knowles at the effective rate of $75.00, Nichols overcharged the state and attempted to overcharge Johnson for purported attorney fees and costs, in violation of Rule 1.5 of the State Bar Rules of Professional Conduct.
COUNT FORTY-SIX 131. Complainant repeats, re-alleges and incorporates by reference the allegations made in paragraphs 1-130 above with the same force and effect as if herein set forth. (a) By presenting the North Carolina Board of Nursing, a state agency, with billing records that state the effective rate of pay for Ms. Knowles to be $67.96, but then filing two affidavits demanding fees and costs for Ms. Knowles at the effective rate of $75.00, Nichols engaged in conduct involving deceit and misrepresentation in violation of Rule 8.4(c).
132. Once again, contrary to North Carolina General Statute 10B-20(c), the MOTION FOR RECONSIDERATION OF MARCH 26, 2007 ORDER; RENEWED MOTION & AFFIDAVIT OF ATTORNEYS FEES & COSTS UNDER N.C.G.S. 6-21.5 and RULE 37 was improperly notarized (R p 11D) by Nichols paralegal and North Carolina State Notary, Shanon Gerger, who Nichols, again demanded $4,335.00 for her paralegal services.
COUNT FORTY-SEVEN 133. Complainant repeats, re-alleges and incorporates by reference the allegations made in paragraphs 1-132 above with the same force and effect as if herein set forth. (a) By again allowing, supporting or directing his paralegal, Shanon Gerger, a nonlawyer that he has supervisory authority over to notarize a document that she was listed within as a beneficiary, he again failed to ensure the nonlawyers conduct was compatible with his [Nichols] professional obligations; and thus he is in violation of Rule 5.3.
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COUNT FORTY-EIGHT 134. Complainant repeats, re-alleges and incorporates by reference the allegations made in paragraphs 1-133 above with the same force and effect as if herein set forth. (a) By falsely stating on December 5, 2007, before the tribunal, Weve not asked for this in the past but now we are asking that in addition to quash, that you treat this Motion as frivolous and that you access costs, including reasonable attorney fees with full knowledge that he had previously asked the court to access costs and attorney fees on multiple occasions, attorney Nichols engaged in conduct involving deceit and misrepresentation in violation of Rule 8.4(c).
135. As evidenced later in the record, Nichols became aware that certain employees associated with the board had engaged in conduct that is in violation of the legal obligations of his client, the North Carolina Board of Nursing. 136. Additionally, as evidenced in the record, Nichols became aware that certain employees associated with the board had engaged in conduct that is in violation of the law, which reasonably might be imputed to his client, the North Carolina Board of Nursing. 137. Although Nichols had a duty to proceed in the best interest of his client, the North Carolina Board of Nursing, he chose to proceed in the best interest of certain employees of the board support staff, who had interests in direct conflict with the interests of his client. 138. During the period when the employees interests were being improperly defended by Nichols, to include Nichols preventing his client, the North Carolina Board of Nursing from discovering the misconduct of the employees, Nichols verbally renewed the retainer agreement between himself and his client. (R p 249). 139. The renewed retainer agreement (R pp 153A-153D) modified the original version (R pp 152A-152D) by increasing the hourly compensation rate by $5.00 for himself and $3.00 for his paralegals. Additionally, however, the verbally modified retainer agreement added an additional provision to provide, not only an hourly rate for legal services, which had been standard practice for many years, but also an additional monthly flat rate of $5,300.00. 140. The additional flat rate of $5,300.00 a month translates into a clearly excessive fee of $63,600 a year, paid by the taxpayers of the State of North Carolina; or a total of $318,000 since 2007 which is prohibited by statute. The average salary of a North Carolina Assistant Attorney General, (R p 273) charged with representing state agencies in litigation matters is $43,000.
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141. Insofar as Nichols had direct knowledge of employee misconduct, adverse to the interests of his client, the North Carolina Board of Nursing, such as making false statements under oath concerning Board of Nursing investigations and subpoenas, his defense of the employees, to include Nichols preventing his client from discovering the misconduct of the employees, created a clear conflict of interest. 142. Because of the conflict of interest, it was improper for Nichols to verbally negotiate an attorney fee increase of $63,600 with employees, Donna Mooney and Mary P. Johnson, who were in no position to deny him the increase for fear that their misconduct would be discovered by their employer and Nichols client, the North Carolina Board of Nursing. The record fails to show if his client, the N.C. Board of Nursing was made aware of the significant increase in his legal fees or the clients acknowledgement of the verbal increase by a member of the Board staff.
COUNT FORTY-NINE 143. Complainant repeats, re-alleges and incorporates by reference the allegations made in paragraphs 1-142 above with the same force and effect as if herein set forth. THEREFORE, Complainant alleges that Defendants foregoing actions constitute grounds for discipline pursuant to N.C. Gen Stat. 84-28(b)(2) in that Nichols violated the revised Rules of Professional Conduct in effect at the time of the conduct as follows: (a) By making an agreement for, charging and collecting an illegal and clearly excessive fee, in that the fee customarily charged for similar legal services, is considerably less, as reflected in his initial retainer agreement, Nichols violated Rule 1.5(a)(3).
COUNT FIFTY 144. Complainant repeats, re-alleges and incorporates by reference the allegations made in paragraphs 1-143 above with the same force and effect as if herein set forth. (a) By making an agreement for, charging and collecting an illegal and clearly excessive fee, in concert with employees with interests adverse to his client, the North Carolina Board of Nursing, Nichols representation involved a concurrent conflict of interest and a breach of his fiduciary responsibility, in that the representation was both directly adverse to his client and materially affected by his personal interest and financial gain, and thus was in violation of Rule 1.7(a).
36
NORTH CAROLINA STATE BAR COMPLAINT Monroe Jackson Nichols Page 37 of 111 145. During an investigation by the Complainant, he requested the retainer agreements between several other North Carolina state agencies and their general counsels. Each agency responded and stated that although they do contract outside legal counsel from time to time on an hourly rate basis, they did not have general counsels because state agencies are supported by the Attorney Generals Office for litigation purposes. 146. In response to the information concerning general counsels that work for state agencies, the North Carolina Department of Transportation stated the following: The NCDOT doesn't have a general counsel. All legal issues involving the agency are handled by the state Attorney General's office, which is the same policy for all state agencies, as established by legislation. There are about 40 assistant attorney generals involved with the agency. 147. The North Carolina Department of Transportation went on to cite the following statutes governing litigation with state agencies: 114-2. Duties. It shall be the duty of the Attorney General: (1) To defend all actions in the appellate division in which the State shall be interested, or a party, and to appear for the State in any other court or tribunal in any cause or matter, civil or criminal, in which the State may be a party or interested. 147-17 May employ counsel in cases wherein State is interested. (a) No department, officer, agency, institution, commission, bureau or other organized activity of the State which receives support in whole or in part from the State shall employ any counsel, except with the approval of the Governor. The Governor shall give his approval only if the Attorney General has advised him, as provided in subsection (b) of this section, that it is impracticable for the Attorney General to render the legal services. In any case or proceeding, civil or criminal, in or before any court or agency of this State or any other state or the United States, or in any other matter in which the State of North Carolina is interested, the Governor may employ such special counsel as he may deem proper or necessary to represent the interest of the State, and may fix the compensation for their services. (b) The Attorney General shall be counsel for all departments, officers, agencies, institutions, commissions, bureaus or other organized activities of the State, which receive support in whole or in part from the State. Whenever the Attorney General shall advise the Governor that it is impracticable for him to render legal services to any State agency, officer, institution, commission, bureau or other organized activity, or to defend a State employee or former employee as authorized by Article 31A of Chapter 143 of the General Statutes, the Governor may authorize the employment of such counsel, as in his judgment, should be employed to render such services, and may fix the compensation for their services. 37
NORTH CAROLINA STATE BAR COMPLAINT Monroe Jackson Nichols Page 38 of 111 148. Nichols verbally negotiated a new and unique provision to the retainer agreement. Unlike the retainer agreement signed September 13, 2006 (R pp 152A-152D), the retainer agreement signed June 25, 2007 (R pp 153A-153D), not only included a monthly fee of $5,300, but also included a provision that allowed Nichols to represent the Board in litigation matters up to and including before the North Carolina Court of Appeals. Therefore it is clear that Nichols is assuming the role statutorily reserved for the Attorney Generals office, and his duties as outlined in the retainer agreement with the North Carolina Board of Nursing is in violation of state law. 149. As an administrative law attorney, it is absolutely clear that Nichols knew that the North Carolina Board of Nursing, a state agency, was prevented by statute from paying these extreme attorney fees, because in one of his many instances of legislative deception, Nichols convinced the Board to make change to the Nursing Practice Act that would help hide his misconduct. 150. Pursuant to N.C. 90-171.23, the Board kept a record of all proceedings and provided a summary of all actions taken by the Board to the Governor of North Carolina. Nichols knew that pursuant to 147-17, no agency could employ an attorney or authorize attorney fees for litigation purposes, except with the approval of the Governor. 151. If the Governor received the required records and annual summaries of the cases that Nichols was litigating before the Board, it would become immediately apparent that Nichols was defrauding the state of hundreds of thousands of dollars in attorney fees. 152. Therefore, Nichols convinced the Board to change the Nursing Practice Act to remove the requirement to forward the records to the Governor. The legislative change was drafted (R p 276A) as follows: Technical Change Re: Board Proceedings. Requires that the Board simply make available its annual summary by removing language requiring that they only be made available to the Governor and licensees. Draft Language: 90-171.23 Duties, power, and meetings. (b) Duties, power. The Board is empowered to: (12) Keep a record of all proceedings and make available to the Governor and licensees an annual summary of all actions taken. NOTE: This purported technical change also includes a critical misrepresentation. The language of the statute states that the annual summary is made available to the Governor and licensees. (R p 274) It did not state it was to be made available only to the Governor and licensees. This annual summary has always been available to the general public under the public records law. This is a critical point, if you are trying to make people believe that you are doing the people of North Carolina a favor and not simply trying to youre misconduct from the Governors office. 38
COUNT FIFTY-ONE 153. Complainant repeats, re-alleges and incorporates by reference the allegations made in paragraphs 1-152 above with the same force and effect as if herein set forth. THEREFORE, Complainant alleges that Defendants foregoing actions constitute grounds for discipline pursuant to N.C. Gen Stat. 84-28(b)(2) in that Nichols violated the revised Rules of Professional Conduct in effect at the time of the conduct as follows: (a) By directing his client, The North Carolina Board of Nursing, a state agency, to change the Nursing Practice Act, to make it more difficult for the Governor to discover that he was illegally receiving attorney fees for litigation that was statutorily reserved for the Attorney Generals office, Nichols engaged in conduct that is prejudicial to the administration of justice, in violation of Rule 8.4. (b) By directing his client, The North Carolina Board of Nursing, a state agency, to change the Nursing Practice Act, to make it more difficult for the Governor to discover that he was illegally receiving attorney fees for litigation that was statutorily reserved for the Attorney Generals office, Nichols engaged in conduct involving deceit and misrepresentation in violation of Rule 8.4(c). 154. Insofar as Nichols serves the North Carolina Board of Nursing in the capacity of prosecutor, his influence upon the Board staff in prosecutorial litigation decisions constitutes an extreme conflict of interest. His excessive compensation for prosecuting nurses constitutes an extreme conflict of interest, as he essentially was paid a bounty to prosecute. 155. Nichols drafted a PROPOSAL FOR DECISION to present to the Administrative Law Judge (hereinafter ALJ). The ALJ adopted the proposal. Nichols convened a Hearing Panel of members of the North Carolina Board of Nursing to either accept of reject the decision of the ALJ and on November 3, 2006, the board voted to adopt the Administrative Law Judges Finding of Fact and Conclusions of Law and Proposal for Decision as the boards Final Agency Decision; and on that day, pursuant to that order, (R p 279), Johnsons nursing license was suspended. 156. Pursuant to N.C.G.S. 150B-43 of the Administrative Procedures Act, upon a Final Agency Decision that suspended Johnsons nursing license, Johnson could immediately petition the Superior Court for Judicial Review. 157. However, Nichols circumvented the statute by taking the position that although Johnsons license had been suspended on November 3, 2006 and he could no longer be employed from that day forward, absent permission from the North Carolina Board of Nursing, Johnson, nevertheless could not seek judicial review until another Final Agency Decision was reached months later at a hearing scheduled on January 29, 2007. 39
158. On January 30, 2007, the ALJ, again reached another decision in favor of Nichols and the board and continued the suspension of Johnsons license. Johnson again notified the ALJ that he intended to immediate seek Judicial Review. At that hearing, Nichols threatened Johnson with attorney fee sanctions to again prevent Johnson from seeking Judicial Review. 159. Upon hearing that Johnson intended to seek immediate Judicial Review, Nichols issued the following threat: And I dont want you to take this as a threat, Mr. Johnson, because Ive told you about this before, but if you do it [seek judicial review] and I have to go and get it dismissed, then Im going to make a motion for attorneys fees for filing a nonjurisdictional action in court, because you have been told several times by Judge Overby and by Judge Fox that if you file this claim before the Board reaches its decision, its a basis for the court to award attorneys fees to the Board for having to get it dismissed. So Im just putting you on notice. (R p 278). 160. Johnsons license had been suspended pursuant to a Final Agency Decision Order of the Board on November 3, 2006; (R p 279) and then again pursuant to an order of the ALJ to continue the suspension at a hearing on January 30, 2007. However, contrary to the provisions of N.C.G.S. 150B-43 of the Administrative Procedures Act, although Johnson could have immediately sought Judicial Review of both these agencys decisions, because of Nichols threats Johnson was prevented for many months from seeking Judicial Review. 161. Nichols threat of attorney fee sanctions prevented Johnson from exercising his right to seek Judicial Review and he had to wait for the next scheduled hearing of the board, which was held on April 27, 2007. On the date of that hearing, Johnson had been suspended and therefore unemployed for 175 days, through a process Nichols falsely claimed was un-appealable. 162. In a letter dated May 9, 2007, (R p 258) Nichols and Mary P. Johnson notified Johnson that the board had adopted the FINAL AGENCY DECISION reached at the April 27, 2007 hearing. Upon receipt of that letter, Johnson had, been suspended and therefore unemployed for 187 days. COUNT FIFTY-TWO 163. Complainant repeats, re-alleges and incorporates by reference the allegations made in paragraphs 1-162 above with the same force and effect as if herein set forth. THEREFORE, Complainant alleges that Defendants foregoing actions constitute grounds for discipline pursuant to N.C. Gen Stat. 84-28(b)(2) in that Nichols violated the revised Rules of Professional Conduct in effect at the time of the conduct as follows: (a) By preventing Johnson, by threat of illegal attorney fee sanctions, from seeking Judicial Review for 187 days after the agency had reached its decision to suspend his license on November 3, 2006, Nichols used means that had no substantial purpose other than to severely burden Johnson, in violation of Rule 4.4(a). 40
COUNT FIFTY-THREE 164. Complainant repeats, re-alleges and incorporates by reference the allegations made in paragraphs 1-163 above with the same force and effect as if herein set forth. (a) By making the threat of attorney fee sanctions before the tribunal, with the knowledge that upon the decision by the Board to suspend Johnsons license, Johnson, by statute, was immediately able to seek judicial review of that decision, Nichols failed to disclose to the tribunal legal authority that he knew was directly adverse to his position, in violation of Rule 3.3(a)(2). By making the threat of attorney fee sanctions before the tribunal, with the knowledge that upon the decision by the Board to suspend Johnsons license, Johnson, by statute, was immediately able to seek judicial review of that decision, Nichols engaged in conduct involving deceit and misrepresentation in violation of Rule 8.4(c).
(b)
165. Although the Johnson case highlights this conflict of interest in the extreme, Nichols improper influence was legally, financially and ethically ill advised in at least one other case that went all the way through to the Court of Appeals level, in absolute violation of North Carolina 114-2. TERESA ELSHOFF v. N. C. BOARD OF NURSING.
VI - TERESA ELSHOFF v. N. C. BOARD OF NURSING Allen and Pinnix, P.A. by M. Jackson Nichols and Mary B. Shuping for respondent-appellee 166. On or about 13 August 2004, Teresa Elshoff, (hereinafter Elshoff) a registered nurse, opened some drawers and cabinets at the home of a patient, searching for some missing medication. The mentally compromised elderly woman became upset at what she perceived as an invasion of her privacy. 167. On or about 25 February 2005, Elshoff was informed by the North Carolina Board of Nursing, that she was to be given a reprimand, a probationary license and required to take an Ethical Legal Decision Making Course ($500.00) because of her purported violations of the Nursing Practice Act.
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168. Realizing she had done nothing wrong, Elshoff chose to challenge the Board action through judicial review. Insofar as judicial review of state agency actions almost always results in a judgment in favor of the state agency, Elshoff lost and appealed the decision in favor of the agency to the North Carolina Court of Appeals. 169. The North Carolina Court of Appeals concluded, (R p 280) in a decision filed 18 March 2008, that contrary to the Nichols and the Boards findings, Elshoff did not willfully harass, abuse or intimidate the patient. 170. Monroe Jackson Jack Nichols was the prosecuting attorney representing the Board in the Teresa Elshoff case. Nichols was the one that drafted the multiple pleadings that stated Elshoff had willfully harassed, abused and intimidated the patient; and Nichols represented the Appellees before the North Carolina Court of Appeals. 171. At the conclusion of the matter which spanned over four and a half years, although Elshoff was vindicated, she had spent thousands of dollars in legal fees to clear her good name, which in the age of Google, will never be the same; and the North Carolina Board of Nursing was embarrassed and made to look petty and vindictive. Both lost. 172. The only real winner in this whole sordid affair was Jack Nichols, who pocketed $21,248.77 in legal fees, (R p 15A-15B) from a state agency that is mandated by state law to be represented by the (salaried) Attorney Generals office; all because a nurse looked in a drawer for some missing medication. Amazingly, Nichols continued to bill the state for attorney fees months after the conclusion of the case. Nichols billing records show he received a total of $4,579.12 for attorney fees several months after the 18 March 2008 (R p 15A) North Carolina Court of Appeals ruling in favor of Elshoff.
COUNT FIFTY-FOUR 173. Complainant repeats, re-alleges and incorporates by reference the allegations made in paragraphs 1-172 above with the same force and effect as if herein set forth. THEREFORE, Complainant alleges that Defendants foregoing actions constitute grounds for discipline pursuant to N.C. Gen Stat. 84-28(b)(2) in that Nichols violated the revised Rules of Professional Conduct in effect at the time of the conduct as follows: (a) By prosecuting Elshoff for a charge that he knew or should have known was not supported by probable cause, Nichols violated Rule 3.8(a).
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COUNT FIFTY-FIVE 174. Complainant repeats, re-alleges and incorporates by reference the allegations made in paragraphs 1-173 above with the same force and effect as if herein set forth. (a) Nichols systematic abuse of prosecutorial discretion, as evidenced by the Johnson and Elshoff cases, is improper and a violation of Rule 8.4.
COUNT FIFTY-SIX 175. Complainant repeats, re-alleges and incorporates by reference the allegations made in paragraphs 1-174 above with the same force and effect as if herein set forth. (a) By representing a state agency that is mandated by statute to be represented by the (salaried) Attorney Generals Office; and representing them up to and including before the North Carolina Court of Appeals, in direct violation of N.C. 114-2, Nichols financial rewards ($21,248.77) conflicted with his prosecutorial obligations in violation of Rule 1.7 (b)(2). By receiving attorney fees from a state agency that is mandated by statute to be represented by the (salaried) Attorney Generals Office; and representing them up to and including before the North Carolina Court of Appeals, in direct violation of N.C. 114-2, Nichols willfully violated North Carolina law for personal gain, in violation of Rule 8.4. By representing a state agency that is mandated by statute to be represented by the (salaried) Attorney Generals Office; and representing them up to and including before the North Carolina Court of Appeals, absent prior approval of the Governor or the Attorney Generals Office, Nichols engaged in misconduct in violation of Rule 8.4. By collecting $4,579.12 in attorney fees from a state agency that is mandated by statute to be represented by the (salaried) Attorney Generals Office; and collecting those fees for litigation services, purportedly performed months after the case had been dismissed by the North Carolina Court of Appeals, Nichols engaged in misconduct in violation of Rule 8.4.
(b)
(c)
(d)
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VII LEGISLATIVE DECEPTION HEARING PANELS 176. On 5 September 2006, Johnson filed (R p 281) a Petition for Contested Case Hearing, which alleged that members of the Board staff (Nichols, Mooney and Walker) had violated his due process rights, gave perjured testimony and violated both the Administrative Procedures and Nursing Practice Acts. 177. Nichols feared that if the full Board held a hearing on these charges, they would discover, through sworn testimony and other evidence, the misconduct of both he and the other Board staff members. 178. Consequently, on 22 September 2006, during a Regular Board Meeting of the North Carolina Board of Nursing, (R pp 43A-43K) Nichols exercised his influence over the Board and convinced them to send the matter to the Office of Administrative Hearings. (R p 43F). 179. Additionally, at that same meeting, to further limit the Boards review of the evidence of misconduct against Board staff, Nichols exercised his influence over the Board and convinced them to move to seek legislative changes to the Nursing Practice Act to obtain the authority to use hearing panels of three or more Board members to conduct show cause or contested case hearings. (R pp 43C-43D). 180. Nineteen days later, on 11 October 2006, Nichols filed a Motion to Show Cause alleging that Johnson had failed to comply with the terms of the purported Consent Order. The hearing was held on 23 October 2006 and the Administrative Law Judge, Beecher Gray, sided with Nichols and issued a PROPOSAL FOR DECISION FOR AN ORDER GRANTING MOTION TO SHOW CAUSE. (R pp 284A-284E). 181. Johnson immediately filed notice of objection with the Board. The terms of the Settlement Order, the PROPOSAL FOR DECISION FOR AN ORDER GRANTING MOTION TO SHOW CAUSE, and the Administrative Procedures Act all clearly state the following: (19) When the licensee has properly filed notice of objection with the Board, then the Licensee will be provided a Hearing before the Board at the next scheduled Board meeting for which appropriate notice can be provided, or scheduled by consent of the parties.
182. Therefore, although Nichols had convinced the Board that Johnson had violated the conditions of the Settlement Order, (R pp 10A-10G) under the provisions of that same Settlement Order, (R p 10E) Johnson had from the date he filed the notice of objection with the Board in early October 2006 until the NEXT SCHEDULED BOARD MEETING on January 2526, 2007 to prepare for the defense of his occupational license and to be employed at least four months, prior to the potential suspension of his license. 44
183. However, Nichols, contrary to the Settlement Order, the PROPOSAL FOR DECISION FOR AN ORDER GRANTING MOTION TO SHOW CAUSE, and the Administrative Procedures Act, moved quickly for a hearing to suspend Johnsons license and on 23 October 2006, the Show Cause hearing was held at the OAH before ALJ Beecher Gray, over Johnsons strong objections. 184. On 30 October 2006 (R pp 284A-284E) ALJ Gray issued his PROPOSAL FOR DECISION, which recommended the suspension of Johnsons nursing license until the conclusion of an unscheduled 29 January 2007 hearing or until Johnson purportedly, complied with the Settlement Order. (R p 284D). 185. At this point, the suspension was just a recommended sanction. Pursuant to Chapter 150B of the Administrative Procedure Act and Nurse Practice Act, the Board must adopt the PROPOSAL FOR DECISION as the agencys final decision before the suspension can take effect. 186. However, on 3 November 2006, Nichols, again contrary to law or rule, and contrary to the PROPOSAL FOR DECISION, exercised his influence over the board and illegally convened a Hearing Panel of members of the North Carolina Board of Nursing to either accept or reject the decision of the ALJ, just 4 days after the PROPOSAL FOR DECISION. 187. In an unprecedented move, Nichols convened the 3 November 2006, meeting whereby some board members attended in person and Nichols had others inexplicably phone in conference call style. This was absolutely in violation of Chapter 150B of the Administrative Procedure Act and Nurse Practice Act. 188. Johnson filed a Civil Rights Petition (R p 19) and a Motion to Stay the proceedings. Astoundingly, the OAH Civil Rights Division only investigates charges of civil rights violations against former and current state employees. Nichols successfully argued that both be denied; and the meeting continued. 189. Nichols, again contrary to law, stated that Johnson was to be given only 5 minutes to present his case before the Board; further limiting the amount of information the Board would hear. Not surprisingly, the Board adopted the Findings of Fact and Conclusions of Law of the ALJ in its entirety as the final decision of the North Carolina Board of Nursing; and Johnsons nursing license was immediately suspended. In a letter to Johnson (R pp 254A-254C) written that day Nichols wrote: after the Board of Nursing adopted the Proposal for Decision, your license to practice nursing is suspended as of today. That suspension will be entered into NURSYS, which is the nationally reporting system for nurses, and your right to practice in other jurisdictions will also be suspended. (R p 254C)
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190. Over the next many months, Johnson repeatedly argued that the impromptu meeting was held contrary to law and rule; citing the following: 150B-40. (c) Except as provided under subsection (e) of this section, hearings under this Article shall be conducted by a majority of the agency.
191. G.S. 150B-40(b) isnt just an arbitrary rule of the North Carolina Board of Nursing. It is a provision of the Administrative Procedure Act that protects every person appearing before every occupational licensing board and has been a key protective due process provision for generations. 192. As stated supra, on 22 September 2006, Nichols exercised his influence over the Board and convinced them to move to seek legislative changes to the Nursing Practice Act to obtain the authority to use hearing panels to conduct show cause or contested case hearings. 193. However, the law in effect at the time of the 3 November 2006 telephonic hearing panel stated that the hearing must be conducted by a majority of the Board. Astoundingly, Nichols excuses his telephonic hearing by alleging that the hearing is authorized pursuant to the Open Meetings Law. However, he fails to acknowledge that hearings to determine the suspension of an occupational license are governed by N.C.G.S. 150B, not the Open Meetings Law. 194. Upon information and belief, Nichols and the Board staff failed to inform the Board that the rationale for the Authorization for the Board to Use Hearing Panels was to provide legal cover for Nichols to prosecute Johnson without the full Board examining the allegations of misconduct against Nichols and the Board staff. The Fall 2006 Bulletin of the North Carolina Board of Nursing stated the given rationale for the hearing panels as follows: Rationale: Smaller panels will decrease the amount of time that all Board members must commit to the administrative hearing process and increase flexibility with and timeliness of cases being heard. (R p 20)
195. At the January 26, 2007 Board meeting, (R pp 22A-22C) after much discussion the Board voted on the proposed language for Authorization for the Board to Use Hearing Panels. 196. The legislation was sponsored by then Senator Anthony E. Tony Rand and filed on 27 February 2007 and ultimately became law when the Governor signed Senate Bill 376 / S.L. 2007-148 on 29 June 2007. (R p 22C).
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197. Astoundingly, the legislation acknowledges the conflict between the amendment and the due process protections afforded all others subject to the Administrative Procedures Act. Although G.S. 150B-40(b) demands that hearings be conducted by a majority of the agency, the amendment implicitly states: Proceed in accordance with G.S. 90-171.37A, notwithstanding G.S. 150B-40(b), when conducting a contested case hearing
198. Consequently, to specifically target Johnson for prosecution and prevent the Board from discovering the allegations of misconduct surrounding himself and members of the Board staff, Nichols orchestrated a legislative change to the Nursing Practice Act that has ever since denied to the thousands of nurses in North Carolina, the same due process protections afforded every other person holding an occupational license subject to the Administrative Procedures Act. 199. The November 1997 edition of the Newsletter of the North Carolina Bar Association Administrative Law Section, entitled Administrative Lawyer contains a five-page article warning of the various potential constitutional violation issues surrounding legislative oversight and agency rulemaking. Inexplicably, the articles author was attorney M. [Monroe] Jackson Nichols.
COUNT FIFTY -SEVEN 200. Complainant repeats, re-alleges and incorporates by reference the allegations made in paragraphs 1-199 above with the same force and effect as if herein set forth. (a) By advising his client, the North Carolina Board of Nursing, to seek legislative change to the Nursing Practice Act, to allow hearing panels rather than the majority of the Board to conduct show cause and contested case hearings, Nichols conduct resulted in his client becoming the only state agency to strip away this long standing due process protection from its licensees. By not revealing his true self-serving motives for that advice, Nichols failed to exercise independent, professional judgment and render candid advice; in violation of Rule 2.1.
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COUNT FIFTY-EIGHT 201. Complainant repeats, re-alleges and incorporates by reference the allegations made in paragraphs 1-200 above with the same force and effect as if herein set forth. (a) By advising his client, the North Carolina Board of Nursing, to seek legislative change to the Nursing Practice Act, to allow hearing panels to prevent the majority of the Board from discovering allegations and evidence of misconduct against himself and other Board staff members, Nichols failed to sufficiently inform the client of the true purpose of such a significant change to the due process rights of the Boards licensees, in violation of Rule 1.4.
COUNT FIFTY-NINE 202. Complainant repeats, re-alleges and incorporates by reference the allegations made in paragraphs 1-201 above with the same force and effect as if herein set forth. (a) By improperly convening a telephonic hearing panel pursuant to the Open Meetings Law, to adjudicate the suspension of Johnsons occupational license, with full knowledge that suspensions of occupational licenses are governed by the Administrative Procedures Act, not the Open Meetings Law, Nichols failed to disclose to the tribunal legal authority that he knew was directly adverse to his position, in violation of Rule 3.3(a)(2). By illegally convening a telephonic hearing panel to adjudicate the suspension of Johnsons occupational license, just four days after the ALJ had made his PROPOSAL FOR DECISION, over the strong objections of the licensee, with full knowledge that the PROPOSAL FOR DECISION and the Settlement Agreement provided the licensee until the next scheduled Board meeting, some 90 days away, to prepare for the hearing, Nichols used means that had no substantial purpose other than to severely burden Johnson, in violation of Rule 4.4(a). By illegally convening a telephonic hearing panel to adjudicate the suspension of Johnsons occupational license, just four days after the ALJ had made his PROPOSAL FOR DECISION, in violation of the Administrative Procedures Act; and over the strong objections of the licensee, with full knowledge that the PROPOSAL FOR DECISION and the Settlement Agreement provided the licensee until the next scheduled Board meeting, some 90 days away, to prepare for the hearing, Nichols engaged in conduct involving deceit and misrepresentation in violation of Rule 8.4(c).
(b)
(c)
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COUNT SIXTY 203. Complainant repeats, re-alleges and incorporates by reference the allegations made in paragraphs 1-202 above with the same force and effect as if herein set forth. (a) By convincing his client, the North Carolina Board of Nursing, to conduct a telephonic administrative hearing panel that resulted in the suspension of Johnsons nursing license; with the full knowledge that the legislative change to the Nursing Practice Act, that he helped to orchestrate, was still pending and not the law in affect at the time, Nichols engaged in misconduct, in violation of Rule 8.4.
VIII THE FALSE FINAL AGENCY DECISION 204. Nichols stated that Johnsons license was suspended on November 3, 2006; and would remain so until, inter alia, the conclusion of the hearing on January 29, 2007. Although from that point, Johnson was suspended and therefore unemployed, acting on Nichols threats of attorney fee sanctions, Johnson did not seek Judicial Review, but waited for the January 29, 2007 hearing. 205. However, at the January 29, 2007 hearing, Nichols, adamantly disagreeing with the ALJ and Johnson himself, argued that the order, while confusing, did not lift the suspension at the conclusion of the hearing. Although the ALJ forcefully disagreed, initially, (R pp 24A-24C) he finally acquiesced and supported Nichols position. 206. Insofar as the North Carolina Board of Nursing had reached a Final Agency Decision on November 3, 2006, resulting in the suspension of Johnsons license; and Johnson had thus, been unemployed for 87 days by the January 29, 2007 hearing, Johnson, again asked the court if he could then seek Judicial Review. 207. Pursuant to N.C. 150B-43, any person who is aggrieved by the final decision in a contested case, and who has exhausted all administrative remedies made available to him by statute or agency rule, is entitled to judicial review of the decision. Therefore, at the conclusion of the January 29, 2006 hearing, Johnson asked the Court: MR. JOHNSON: Is it your position that I have not exhausted by administrative remedies until [the Board makes another Final Agency Decision at the next board meeting]? 49
208. Nichols interjected and stated that the November 3, 2006 order and decision by the Board was not a Final Agency Decision and Johnson had no right to seek Judicial Review at that time. In addition to the threat of attorney fee sanctions, as outlined supra, Nichols also stated the following: MR. NICHOLS: To go to Superior Court before the Board has done that [reached another Final Agency Decision] would be premature. The court will just send it back. (R p 25). 209. Pursuant to N.C. 150B-44, the agency has 60 days to reach a Final Agency decision to adopt or decline the Proposal For Decision of the ALJ. To improperly extend this deadline, Nichols simply filed for another Proposal For Decision after the November 3, 2006 Final Agency Decision. He simply called the January 29, 2007 meeting a Hearing on the Merits which continued the suspension purportedly again without a Final Agency Decision (R p 37F), which could be appealed to the Superior Court. 210. Nichols economic threat of seeking attorney fee sanctions and his denial that the decision was a final agency decision had no basis in fact or law and was maliciously used by Nichols to punish Johnson, prevent him from seeking judicial review and also to prevent Nichols client, the North Carolina Board of Nursing, from discovering that Nichols and certain employees had engaged in misconduct. 211. As stated supra, Nichols REPEATEDLY acknowledged that the November 3, 2006 Order was the final agency decision. However, when confronted, he also REPEATEDLY denied that the November 3, 2006 order was a final agency decision. (a) In his Response of N.C. Board of Nursing to Petition for Judicial Review Page 9 of 22, dated July 16, 2007, Nichols states in paragraph 78: It is admitted that on November 11, 2006, Respondent Board issued an Order accepting the Proposal for Decision of the ALJ as to suspension of Petitioners license after a Show Cause hearingIt is specifically denied that the Order was a Final Agency Decision. (R p 32I) As stated supra, at the conclusion of the January 30, 2007 hearing, Johnson asked if he could finally seek judicial review, insofar as the November 3, 2006 order was an appealable Final Agency Decision. Nichols disagreed and threatened: And I dont want you to take this as a threat, Mr. Johnson, because Ive told you about this before, but if you do it [seek judicial review] and I have to go and get it dismissed, then Im going to make a motion for attorneys fees for filing a nonjurisdictional action in court, because you have been told several times by Judge Overby and by Judge Fox that if you file this claim before the Board reaches its decision, its a basis for the court to award attorneys fees to the Board for having to get it dismissed. So Im just putting you on notice. (R p 278)
(b)
50
(c)
In his Response to Petitioners Motion for Sanctions, dated September 24, 2007, Nichols states on Page 5 of 17: Despite repeated explanations from the undersigned Counsel for the BoardPetitioner still insists that his November, 2006 suspension was a Final Agency Decision (R p 120)
212. However, there is overwhelming evidence that the November 3, 2006 decision and order was the Final Agency Decision. The evidence, inter alia, is as follows: (a) Astoundingly, a current review of the North Carolina Board of Nursings website (http://www.ncbon.com) shows that, as of the date of this complaint, some four (4 ) years later, a check of the licensure verification status of Kenneth Johnson, (R p 33) states that he was suspended on 11/3/2006. It shows that the suspension was the result of a Disciplinary Action. (R p 34) The Disciplinary Action was pursuant to a Final Decision and Order. The provided link to the Boards supporting document (R p 35) reveals the November 3, 2006 order suspending Johnsons license. In that order, it states, The Findings of Facts, Conclusions of Law, and Proposal for Decision by the Administrative Law Judge Beecher R. Gray are hereby adopted in their entirety as the Decision of the North Carolina Board of Nursing in this matter. In the February 16, 2007 PROPOSAL FOR DECISION, drafted by Nichols, he admits in paragraph 29, On November 3, 2006the Board of Nursing voted to adopt the Administrative Law Judges Findings of Fact, Conclusions of Law, and Proposal for Decision as its Final Agency Decision that Petitioners license was suspended (R p 37E) In the August 23, 2007 RESPONDENTS MEMORANDUM OF LAW IN OPPOSITION TO THE PETITION FOR JUDICIAL REVIEW, drafted and filed by Nichols, he admits on page 5 of 33, the Board voted to adopt the Administrative Law Judges Findings of Fact, Conclusions of Law, and Proposal for Decision as its Final Agency Decision. (R p 71E) Also, in the August 23, 2007 RESPONDENTS BRIEF IN OPPOSITION TO THE PETITION FOR JUDICIAL REVIEW, drafted and filed by Nichols, he again admits on page 5 of 33, On November 3, 2006the Board voted to adopt the Administrative Law Judges Findings of Fact, Conclusions of Law, and Proposal for Decision as its Final Agency Decision. (R p 292)
(b)
(c)
(d)
51
(e)
Amazingly, Mr. Flick, the attorney acting as hearing officer for the full Board, addressed the Board at the April 27, 2007 hearing and read to them, inter alia, (R p 88) On November 3, 2006The Board voted to adopt the administrative law judges findings of fact, conclusions of law, and proposals and proposal for decision as its final agency decision As stated, supra, Nichols informed Johnson in a letter dated November 3, 2006, the same day as Johnsons license suspension: the Board of Nursing adopted the Proposal for Decision, your license to practice nursing is suspended as of today. That suspension will be entered into NURSYS, which is the nationally reporting system for nurses, and your right to practice in other jurisdictions will also be suspended. (R p 254C)
(f)
(g)
The PROPOSAL FOR DECISION FOR ORDER GRANTING MOTION TO SHOW CAUSE, signed by Administrative Law Judge Beecher Gray, filed October 30, 2006 (R p 284A-284E) granted Nichols the preliminary suspension of Johnsons nursing license but also stated on the last page: The North Carolina Board of Nursing is the agency that will make the Final Decision in this case. (R p 284E) Four days later on November 3, 2006, the agency did; and Johnsons license was suspended pursuant to a Final Agency Decision order. (R p 279) However, the most telling evidence that the November 3, 2006 order was a Final Agency Decision is that the order (R p 279) resulted in the immediate suspension of Johnsons license. Although Nichols has repeatedly misstated otherwise, a state agency can only suspend an occupational license pursuant to a Final Agency Decision. The Administrative Procedures Act does not allow for a preliminary suspension pending a Final Agency Decision. To do so would violate due process. Even in cases when the Board must act immediately to prevent imminent harm to the public, they can suspend the occupational license of a nurse immediately, pursuant to an immediately appealable FINAL AGENCY DECISION.
(h)
52
COUNT SIXTY-ONE 213. Complainant repeats, re-alleges and incorporates by reference the allegations made in paragraphs 1-212 above with the same force and effect as if herein set forth. THEREFORE, Complainant alleges that Defendants foregoing actions constitute grounds for discipline pursuant to N.C. Gen Stat. 84-28(b)(2) in that Nichols violated the revised Rules of Professional Conduct in effect at the time of the conduct as follows: (a) By falsely stating after the conclusion of the November 3, 2006 telephonic hearing that the Final Agency Decision of the Board was not a Final Agency Decision, in order to prevent Johnson from seeking immediate Judicial Review, Nichols used means that had no substantial purpose other than to severely burden Johnson, in violation of Rule 4.4(a).
COUNT SIXTY-TWO 214. Complainant repeats, re-alleges and incorporates by reference the allegations made in paragraphs 1-213 above with the same force and effect as if herein set forth. (a) By again, falsely stating after the conclusion of the January 29, 2007 hearing on the merits that the November 3, 2006 Final Agency Decision of the Board was not a Final Agency Decision, in order to prevent Johnson from seeking Judicial Review, Nichols used means that had no substantial purpose other than to severely burden Johnson, in violation of Rule 4.4(a).
COUNT SIXTY-THREE 215. Complainant repeats, re-alleges and incorporates by reference the allegations made in paragraphs 1-214 above with the same force and effect as if herein set forth. (a) By falsely stating after the conclusion of the January 29, 2007 hearing that the November 3, 2006 Final Agency Decision of the Board was not a Final Agency Decision, in order to prevent Johnson from seeking immediate Judicial Review, Nichols alluded to a matter that Nichols knew or should have known was not supported by the evidence, in violation of State Bar Rule 3.4(e).
53
COUNT SIXTY-FOUR 216. Complainant repeats, re-alleges and incorporates by reference the allegations made in paragraphs 1-215 above with the same force and effect as if herein set forth. (a) By falsely stating after the conclusion of the January 29, 2007 hearing that the November 3, 2006 Final Agency Decision of the Board was not a Final Agency Decision, in order to prevent Johnson from seeking immediate Judicial Review, Nichols knowingly made a false statement of material fact to the tribunal and failed to correct his false statement of material fact previously made to the tribunal, in violation of Rule 3.3(a)(1).
COUNT SIXTY-FIVE 217. Complainant repeats, re-alleges and incorporates by reference the allegations made in paragraphs 1-216 above with the same force and effect as if herein set forth. (a) By falsely stating after the conclusion of the January 29, 2007 hearing that the November 3, 2006 Final Agency Decision of the Board was not a Final Agency Decision, in order to prevent Johnson from seeking immediate Judicial Review, Nichols failed to disclose to the tribunal legal authority that he knew was directly adverse to his position, in violation of Rule 3.3(a)(2).
COUNT SIXTY-SIX 218. Complainant repeats, re-alleges and incorporates by reference the allegations made in paragraphs 1-217 above with the same force and effect as if herein set forth. (a) By repeatedly stating the November 3, 2006 Final Agency Decision of the Board was not a Final Agency Decision, in multiple pleadings and in oral argument; and then repeatedly stating the November 3, 2006 Final Agency Decision of the Board actually was a Final Agency Decision, in multiple pleadings; Nichols engaged in conduct involving deceit and misrepresentation in violation of Rule 8.4(c). By repeatedly stating the November 3, 2006 Final Agency Decision of the Board was not a Final Agency Decision, in multiple pleadings and in oral argument; and then repeatedly stating the November 3, 2006 Final Agency Decision of the Board actually was a Final Agency Decision, in multiple pleadings and oral argument, in the face of Johnsons repeated objections, Nichols failed to disclose to the tribunal legal authority that he knew was directly adverse to his position, in violation of Rule 3.3(a)(2). 54
(b)
NORTH CAROLINA STATE BAR COMPLAINT Monroe Jackson Nichols Page 55 of 111 IX THE SUBPOENA PERJURY 219. In a letter dated February 7, 2006, the North Carolina Board of nursing detailed the rights afforded licensees during the disciplinary process (R p 38). Prior to the 20 July 2006 Administrative Hearing, the North Carolina Board of Nursing informed Johnson of his right to present witnesses and to have those witnesses subpoenaed. The notice of administrative hearing stated: You have the right to present witnesses on your behalf at the Hearing. If you wish to have witnesses subpoenaed, the Board may issue subpoenas for you, in preparation for, or in conduct of, a contested case. If you wish for us to subpoena witnesses, you MUST provide the full name and/or business address of all persons to be subpoenaed. A list of all witnesses to be called at the Hearing should be filed with the Board not less than ten (10) calendar days prior to the scheduled date of the Hearing.
220. On 10 July 2006, Johnson served the Board with a REQUEST FOR SUBPOENA OF WITNESSES AND DOCUMENTS (R p 154A). The REQUEST listed fourteen witnesses and further requested production of thirteen documents, mostly from the Laurels of Forest Glenn, a skilled nursing care facility in Garner, North Carolina. 221. The evidence shows that although the Board of Nursing did fax a copy of the REQUEST (R p 154A) to the Laurels of Forest Glenn at 11:15 AM on 12 July 2006, they never drafted or served actual subpoenas on the witnesses or the nursing facility, requested by Johnson. 222. On 19 July 2006, the Board held a prehearing conference. At the prehearing conference, Sean Partrick, an attorney representing the Laurels of Forest Glenn, moved to quash and made two objections to the subpoenas. First, although Partrick acknowledged that the Laurels did receive a copy of the subpoena request, he stated that NO SUBPOENAS WERE SERVED and he was clear that he was not authorized to accept service of any subpoenas if they were to be served that day. 223. Secondly, Partrick falsely claimed the witnesses and documents requested were peer-review protected and therefore, could not be lawfully produced. Astoundingly, Nichols replied that the Board had no objection to the motion to quash and had no objection to Partrick improperly invoking peer-review privilege. 224. Surprisingly, it was learned that on 12 July 2006, subpoenas were actually served by the Board to Alan Finlayson (R p 321), the Administrator and Sandra Wood (R p 324), the Director of Nursing for The Laurels. These were the witnesses that attorney Nichols requested to be present to support his case. Not surprisingly, Partrick agreed that Finlayson and Wood would agree to testify for the prosecution, as long as Johnson was not permitted to ask questions surrounding issues protected by purported privilege. Once again, Nichols agreed.
55
225. Faced with an administrative hearing in which none of the witnesses would appear and none of the requested documents would be produced, for the defense; but witnesses for the prosecution would be present, Johnson acquiesced and signed the Settlement Agreement. 226. However, as litigation continued amid charges on both sides that the Settlement Agreement/Order had been breached; discovery began. It was during the hearing and discovery process that Nichols and Mooney continually offered false testimony and discovery responses. 227. On 21 August 2006, Nichols responded to an 8 August 2006 public records request from Johnson. In response to a request for copies of the subpoenas that he claimed were served on the Laurels witnesses, Nichols responded: Copies of subpoenas that were requested and sent to employees of The Laurels including service information will be provided, once they located. Some employees were never served. (R p 325)
228. Forty-three days later, in a Letter to Kenneth Johnson RE: Supplemental Response, dated October 3, 2006 in response to a public records request for the subpoenas, Nichols stated: To date, we have been unable to locate copies of the subpoenas which were sent to The Laurel. They were apparently not saved on the computer network maintained by the Board of Nursing. I have written to the attorney for The Laurel and asked them to provide copies to me. Once I receive them, I will forward them to you. (R p 253)
229. This implausible dog ate my homework explanation demanded further inquiry. In a letter response to ADMISSIONS file 25 January 2007, (R pp 39A-39E) in response to a request to admit that no subpoenas were ever served, Nichols stated: NICHOLS: Admitted and Denied. It is admitted that no Subpoenas were served because a Motion to Quash was granted. (R p 39E) 230. However, the Motion to Quash was granted 19 July 2006, at the prehearing Conference, one day before the hearing; and well after the subpoenas were allegedly served on 12 July 2006. Additionally, in the RESPONDENTS RESPONSE TO INTERROGATORIES AND REQUEST FOR PRODUCTION OF DOCUMENTS (R pp 36A-36K) also dated 24 January 2007, Nichols was asked for copies of the subpoenas, requested by Johnson and proof of service for each. Nichols stated: NICHOLS: The Board cannot locate copies of the Subpoenas and the originals were never served because the Motion to Quash was granted, there was no need to follow up as to service. (R p 36I) 56
NORTH CAROLINA STATE BAR COMPLAINT Monroe Jackson Nichols Page 57 of 111 231. Also, in the RESPONDENTS RESPONSE TO INTERROGATORIES AND REQUEST FOR PRODUCTION OF DOCUMENTS, (R pp 36A-36K) Nichols was asked to Identify who typed the subpoenas that were issued to the requested witnesses Nichols stated: NICHOLS: The Board is unable to determine who typed the subpoenas because several temporary staff were being utilized in the department during this time. The Board is also unable to determine with certainty which method of delivery was used for service. (R p 36D)
232. At the 29 January 2007 hearing, under direct examination, Mooney was asked if the REQUEST for subpoenas went out [to the witnesses] or was it an actual subpoena. Her sworn testimony was, An actual subpoena. (R p 340) 233. As additional inquiry into her testimony continued, Johnson asked if he could get a copy of the subpoenas, Nichols suddenly testified as follows: MR.NICHOLS: We cant find itAs we explained in our discovery responses, there was a temporary clerical person involved, and weve been unable to provide copies. (R pp 340-341) MR.NICHOLS: He asked for copies of the subpoenas, and we told him we couldnt provide them , because we cant find that. (R p 352) MR.NICHOLS: He asked for proof of service and we told him we cant find them (R pp 352-353)
234. Johnson has requested this information multiple times over the years. Each time Nichols seems to offer a different explanation. The last attempt to obtain this information was met with a response by Nichols in a letter (R pp 370A-370C) dated June 23, 2010. In response to a request for copies of the subpoenas, Nichols wrote: As you know, attorneys for The Laurels at Forest Glen filed a Motion to quash. As a result, none of the requested subpoenas were ever issued. (R p 370A)
235. Finally, taking the belated position that he simply did not have to respond to the public records request, Nichols misrepresents that the Board, a state agency, does not maintain records of those who worked in their offices. In response to identify the purported temporary worker that purportedly typed the subpoenas, Nichols dropped his we cant figure out who she was explanation, and wrote: the Public records Act does not require you [the Board] to answer questions, or produce a document which does not exist. (R p 370A) 57
COUNT SIXTY-SEVEN 236. Complainant repeats, re-alleges and incorporates by reference the allegations made in paragraphs 1-235 above with the same force and effect as if herein set forth. THEREFORE, Complainant alleges that Defendants foregoing actions constitute grounds for discipline pursuant to N.C. Gen Stat. 84-28(b)(2) in that Nichols violated the revised Rules of Professional Conduct in effect at the time of the conduct as follows: (a) By affirming Mooneys sworn testimony that actual subpoenas were served upon Johnsons requested witnesses, with full knowledge that only the request for subpoenas were faxed to members of the Laurels administration, Nichols suborned perjury and affirmed a statement of another that he knows is false and/or misleading in violation of Rule 4.1.
COUNT SIXTY-EIGHT 237. Complainant repeats, re-alleges and incorporates by reference the allegations made in paragraphs 1-236 above with the same force and effect as if herein set forth. (a) By affirming Mooneys sworn testimony that actual subpoenas were served upon Johnsons requested witnesses, with full knowledge that only the request for subpoenas were faxed to members of the Laurels administration, Nichols alluded to a matter that Nichols knew or should have known was not supported by the evidence, in violation of State Bar Rule 3.4(e).
COUNT SIXTY-NINE 238. Complainant repeats, re-alleges and incorporates by reference the allegations made in paragraphs 1-237 above with the same force and effect as if herein set forth. (a) By affirming Mooneys sworn testimony that actual subpoenas were served upon Johnsons requested witnesses, with full knowledge that only the request for subpoenas were faxed to members of the Laurels administration, Nichols counseled and/or assisted a witness to testify falsely, in violation of State Bar Rule 3.4(b).
58
NORTH CAROLINA STATE BAR COMPLAINT Monroe Jackson Nichols Page 59 of 111 COUNT SEVENTY 239. Complainant repeats, re-alleges and incorporates by reference the allegations made in paragraphs 1-238 above with the same force and effect as if herein set forth. (a) By repeatedly misstating that the subpoenas were not served only because a Motion to Quash had been granted, with full knowledge that the Motion to Quash was granted well after he alleged the subpoenas had been served, Nichols asserted personal knowledge of facts in issue although he was not testifying as a witness, in violation of State Bar Rule 3.4(e).
COUNT SEVENTY-ONE 240. Complainant repeats, re-alleges and incorporates by reference the allegations made in paragraphs 1-239 above with the same force and effect as if herein set forth. (a) By repeatedly misstating that the subpoenas were not served only because a Motion to Quash had been granted, with full knowledge that the Motion to Quash was granted well after he alleged the subpoenas had been served, Nichols engaged in conduct involving deceit and misrepresentation in violation of Rule 8.4(c).
COUNT SEVENTY-TWO 241. Complainant repeats, re-alleges and incorporates by reference the allegations made in paragraphs 1-240 above with the same force and effect as if herein set forth. (a) By repeatedly misstating that copies of the subpoenas could not be located, with full knowledge that the subpoenas had never been drafted, Nichols engaged in conduct involving deceit and misrepresentation in violation of Rule 8.4(c).
COUNT SEVENTY-THREE 242. Complainant repeats, re-alleges and incorporates by reference the allegations made in paragraphs 1-241 above with the same force and effect as if herein set forth. (a) By repeatedly misstating that copies of the subpoenas could not be located because they had inadvertently not been saved on a computer system, with full knowledge that the subpoenas had never been drafted, Nichols engaged in conduct involving deceit and misrepresentation in violation of Rule 8.4(c).
59
NORTH CAROLINA STATE BAR COMPLAINT Monroe Jackson Nichols Page 60 of 111 COUNT SEVENTY-FOUR 243. Complainant repeats, re-alleges and incorporates by reference the allegations made in paragraphs 1-242 above with the same force and effect as if herein set forth. (a) By repeatedly misstating that copies of the subpoenas could not be located because they had been typed by an unidentifiable temporary worker, with full knowledge that the subpoenas had never been drafted, Nichols engaged in conduct involving deceit and misrepresentation in violation of Rule 8.4(c).
COUNT SEVENTY-FIVE 244. Complainant repeats, re-alleges and incorporates by reference the allegations made in paragraphs 1-243 above with the same force and effect as if herein set forth. (a) By repeatedly misstating that copies of the subpoenas could not be located because they had been typed by an unidentifiable temporary worker, with full knowledge that the subpoenas had never been drafted, Nichols attempted to alter or conceal a document or other material having potential evidentiary value, in violation of Rule 3.4(a).
COUNT SEVENTY-SIX 245. Complainant repeats, re-alleges and incorporates by reference the allegations made in paragraphs 1-244 above with the same force and effect as if herein set forth. (a) By repeatedly misstating that copies of the subpoenas could not be located because they had been typed by an unidentifiable temporary worker, with full knowledge that every state agency maintains records of all full time and temporary employees, Nichols engaged in conduct involving deceit and misrepresentation in violation of Rule 8.4(c).
COUNT SEVENTY-SEVEN 246. Complainant repeats, re-alleges and incorporates by reference the allegations made in paragraphs 1-245 above with the same force and effect as if herein set forth. (a) By refusing to comply with the Public Records Act by falsely stating that the North Carolina Board of Nursing, a state agency, does not maintain records that would identify the purportedly unidentifiable temporary worker, with full knowledge that every state agency maintains records of all full time and temporary employees, Nichols engaged in conduct that is prejudicial to the administration of justice, in violation of Rule 8.4. 60
247. The record is replete with multiple paper copies of subpoenas and of the U.S. Post Office return receipts for subpoenas (R pp 155-164) that the Board actually served in this case. However, there are none for Johnsons requested subpoenas; making it clear that there has been a long-standing procedure for service of subpoenas and a like-wise long-standing policy for maintaining copies of the proof of service in the file and not on some mysterious computer system as Nichols continuously misrepresents (R p 253B). 248. Further, during the multiple times that Johnson reviewed the file with Public Information Officer David Kalbacher, the record folder had multiple paper copies of the subpoenas and the U.S. Post Office return receipts for subpoenas (R pp 155-164) that the Board actually served in this case. However, there are none for Johnsons requested subpoenas; again making it clear that there was a long-standing procedure for service of subpoenas and a like-wise longstanding policy for maintaining copies of the proof of service in the file and not on some mysterious computer system, as Nichols continuously misrepresents (R p 253B).
COUNT SEVENTY-EIGHT 249. Complainant repeats, re-alleges and incorporates by reference the allegations made in paragraphs 1-248 above with the same force and effect as if herein set forth. THEREFORE, Complainant alleges that Defendants foregoing actions constitute grounds for discipline pursuant to N.C. Gen Stat. 84-28(b)(2) in that Nichols violated the revised Rules of Professional Conduct in effect at the time of the conduct as follows: (a) By misstating The Board is also unable to determine with certainty which method of delivery was used for service of the subpoenas, with full knowledge that the subpoenas had never been drafted, Nichols engaged in conduct involving deceit and misrepresentation in violation of Rule 8.4(c). By misstating To date, we have been unable to locate copies of the subpoenas which were sent to The Laurel. They were apparently not saved on the compute network maintained by the Board of Nursing. with full knowledge that the subpoenas had never been drafted, Nichols engaged in conduct involving deceit and misrepresentation in violation of Rule 8.4(c). By misstating To date, we have been unable to locate copies of the subpoenas which were sent to The Laurel. They were apparently not saved on the compute network maintained by the Board of Nursing. with full knowledge that the subpoenas had never been drafted, Nichols knowingly made a false statement of material fact to the tribunal and failed to correct his false statement of material fact previously made to the tribunal, in violation of Rule 3.3(a)(1). 61
(b)
(c)
COUNT SEVENTY-NINE 250. Complainant repeats, re-alleges and incorporates by reference the allegations made in paragraphs 1-249 above with the same force and effect as if herein set forth. (a) By misstating The Board is also unable to determine with certainty which method of delivery was used for service of the subpoenas, with full knowledge that copies of the subpoenas would have been included in the file, along with copies of the U.S. Postal return receipt, had they actually been drafted, Nichols engaged in conduct involving deceit and misrepresentation in violation of Rule 8.4(c). By misstating The Board is also unable to determine with certainty which method of delivery was used for service of the subpoenas, with full knowledge that copies of the subpoenas would have been included in the file, along with copies of the U.S. Postal return receipt, had they actually been drafted, Nichols unlawfully obstructed another party's access to evidence and unlawfully concealed a document or other material having potential evidentiary value, in violation of Rule 3.4(a). By misstating The Board is also unable to determine with certainty which method of delivery was used for service of the subpoenas, with full knowledge that copies of the subpoenas would have been included in the file, along with copies of the U.S. Postal return receipt, had they actually been drafted, Nichols failed to make a reasonably diligent effort to comply with a legally proper discovery request by an opposing party, in violation of Rule 3.4(d)(2). By misstating affirming Mooneys sworn testimony that actual subpoenas had been served and that The Board is also unable to determine with certainty which method of delivery was used for service of the subpoenas, with full knowledge that copies of the subpoenas would have been included in the file, along with copies of the U.S. Postal return receipt, had they actually been drafted, Nichols counseled and/or assisted a witness to testify falsely, in violation of Rule 3.4(b). By misstating affirming Mooneys sworn testimony that actual subpoenas had been served and that The Board is also unable to determine with certainty which method of delivery was used for service of the subpoenas, with full knowledge that copies of the subpoenas would have been included in the file, along with copies of the U.S. Postal return receipt, had they actually been drafted, Nichols engaged in conduct that is prejudicial to the administration of justice, in violation of Rule 8.4.
(b)
(c)
(d)
(e)
62
251. As a prosecutor representing the State of North Carolina, Nichols had a responsibility of a minister of justice and not simply that of an advocate for the Board or the Board staff. His prosecutorial duty was to seek justice, not merely to convict. This responsibility carries with it specific obligations, under the North Carolina Rules of Professional Conduct, to see that the defendant is accorded procedural justice. Nichols repeatedly breached that duty.
COUNT EIGHTY 252. Complainant repeats, re-alleges and incorporates by reference the allegations made in paragraphs 1-251 above with the same force and effect as if herein set forth. THEREFORE, Complainant alleges that Defendants foregoing actions constitute grounds for discipline pursuant to N.C. Gen Stat. 84-28(b)(2) in that Nichols violated the revised Rules of Professional Conduct in effect at the time of the conduct as follows: (a) By affirming and supporting the Motion to Quash the subpoenas on the erroneous basis that all of the witnesses and documents requested by Johnson were peer-review protected, with full knowledge that none of the requested witnesses ever sat on a peer-review committee and none of the requested documents had been produced by a peer-review committee, Nichols, assisted by the attorney for The Laurels, failed to disclose all evidence or information required to be disclosed by applicable law, rules of procedure, or court opinions including all evidence or information known to Nichols that tended to negate the guilt of Johnson or mitigate the offense, and, in connection with sentencing, disclose to Johnson and to the tribunal all unprivileged mitigating information known to Nichols; in violation of Rule 3.8(d).
(b)
By affirming and supporting the Motion to Quash the subpoenas on the erroneous basis that all of the witnesses and documents requested by Johnson were peer-review protected, with full knowledge that none of the requested witnesses ever sat on a peer-review committee and none of the requested documents had been produced by a peer-review committee, Nichols, failed to make timely disclosure to the defense, all evidence or information required to be disclosed by applicable law, rules of procedure, or court opinions including all evidence or information known to him, acting as prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the him, acting as prosecutor, and thus, Nichols engaged in conduct that is prejudicial to the administration of justice, in violation of Rule 8.4.
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X LEGISLATIVE DECEPTION THE SUBPOENA PERJURY 253. On August 8, 2006, Johnson, as stated supra, submitted a public records request to Nichols that requested, inter alia, copies of the subpoenas and the corresponding proof of service. Nichols discovered that the North Carolina Board of Nursing had never obtained the authority to serve subpoenas or other legal papers. 254. Nichols had a duty to turn over to the defense (Johnson) the information that the Board had never obtained the authority to serve subpoenas. Nichols breached that duty. Instead Nichols chose not to reveal that information during the discovery process, but rather decided, once again, to seek legislative cover for unauthorized actions previously taken. 255. Consequently on 22 September 2006, (R pp 22A-22C) during a Regular Board Meeting of the North Carolina Board of Nursing Nichols exercised his influence over the Board and convinced them to move to seek legislative changes to the Nursing Practice Act to obtain the authority to serve subpoenas and other legal papers. (R pp 22A-22B) 256. Therefore, the North Carolina Board of Nursing did not have the legal authority to serve subpoenas or legal documents at the time Nichols alleges that the subpoenas were served. 257. Upon information and belief, Nichols and the Board staff failed to inform the Board that one of the rationales for seeking authorization for the Board to serve subpoenas and other legal papers, was to provide legal cover for Nichols to continuously allege that the challenged subpoenas had, indeed, been served in accordance with G.S. 1A-1, Rule 45, as required by law. 258. At the January 26, 2007 Board meeting, after much discussion the Board voted on the proposed language for Authorization for the Board to serve subpoenas and other legal papers. 259. As stated supra, the legislation was sponsored by then Senator Anthony E. Tony Rand and filed on 27 February 2007 and ultimately became law when the Governor signed Senate Bill 376 / S.L. 2007-148 on 29 June 2007. (R p 23) 260. Consequently, to specifically provide legislative cover for the statutory misconduct of improperly serving purported subpoenas; and to prevent the Board from discovering the allegations of misconduct surrounding himself and members of the Board staff in relationship to the subpoena issue, Nichols orchestrated a legislative change to the Nursing Practice Act without informing either the Board, during the board meeting, the Court or Johnson, during discovery; that when he and Mooney claimed, under oath, that the subpoenas were served lawfully in this case, they made a false statement of material fact.
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COUNT EIGHTY-ONE 261. Complainant repeats, re-alleges and incorporates by reference the allegations made in paragraphs 1-260 above with the same force and effect as if herein set forth. THEREFORE, Complainant alleges that Defendants foregoing actions constitute grounds for discipline pursuant to N.C. Gen Stat. 84-28(b)(2) in that Nichols violated the revised Rules of Professional Conduct in effect at the time of the conduct as follows:
(a)
By advising his client, the North Carolina Board of Nursing, to change the Nursing Practice Act, to seek Authorization for the Board to serve subpoenas and other legal papers, but not revealing his true selfserving motives for that advice, Nichols failed to exercise independent, professional judgment and render candid advice; in violation of Rule 2.1. By advising his client, the North Carolina Board of Nursing, to change the Nursing Practice Act, to seek Authorization for the Board to serve subpoenas and other legal papers, but not revealing this fact during testimony before the tribunal or to Johnson during discovery, Nichols unlawfully obstructed Johnsons access to evidence and unlawfully concealed a document having potential evidentiary value, in violation of State Bar Rule 3.4(a).
(b)
COUNT EIGHTY-TWO 262. Complainant repeats, re-alleges and incorporates by reference the allegations made in paragraphs 1-261 above with the same force and effect as if herein set forth. (a) By advising his client, the North Carolina Board of Nursing, to change the Nursing Practice Act, to seek Authorization for the Board to serve subpoenas and other legal papers, but not revealing his true selfserving motives for that advice, Nichols failed to sufficiently inform the client of the true purpose of such a change, in violation of Rule 1.4. By advising his client, the North Carolina Board of Nursing, to change the Nursing Practice Act, to seek Authorization for the Board to serve subpoenas and other legal papers, but not revealing this fact during testimony before the tribunal or to Johnson during discovery, Nichols knowingly made a false statement of material fact to the tribunal and failed to correct his false statement of material fact previously made to the tribunal, in violation of Rule 3.3(a)(1). 65
(b)
XI CONFLICT OF INTEREST TRIER OF FACT 263. During the prehearing conference, attorney Frank Gray, an attorney hired by the Board as administrative law counsel to preside at the prehearing conference, (R p 374) made evidentiary and other rulings that essentially gutted Johnsons planned defense. The most significant of these was the granting of the Motion to Quash the subpoenas. 264. However, because the hearing officer is employed by the agency in this adversarial process, the enumerated actions that he can perform pursuant to 150B-40 do not include evidentiary rulings such as quashing subpoenas.
265. Johnson, a pro se defendant, was never informed prior to or during the prehearing conference, that Mr. Gray was not an Administrative Law Judge, that he was paid by the North Carolina Board of Nursing, that he had a fiduciary responsibility to the Board; or that his rulings were that of the Board and not an independent trier of fact; and thus, subject to appellate review. 266. In a Notice of Hearing, served on the parties, dated April 6, 2006 and signed by attorney John Bryant, Mr. Bryant stated, in pertinent part: BRYANT: TAKE NOTICE that the North Carolina Board of Nursing has calendared for hearing the Board of Nursings Motion to Compel before the Administrative Law Judge [emphasis added] on April 12, 2006 at 9:00 a.m. in the offices of the North Carolina Board of Nursing (R p 373)
267. In a decision served on the parties after the April 12, 2006 and signed by Frank Gray, himself, Mr. Gray stated, in pertinent part: FRANK GRAY: A hearing was conducted by the undersigned administrative law judge [emphasis added] on April 12, 2006 in the offices of the North Carolina Board of Nursing (R p 375) . 268. Indeed, although he refers to himself as an Administrative Law Counsel, the transcript of the April 12, 2006 Pre-Hearing Conference repeatedly refers to Frank Gray as an Administrative Law Judge: THE ADMINISTRATIVE LAW JUDGE: [emphasis added] This will convene the pre-hearing conference in the matter of Kenneth Charles Johnson, LPN. My name is Frank Gray (R p 372)
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269. During the January 29, 2007 hearing, Administrative Law Judge Overby also erroneously refers to Frank Gray as an Administrative Law Judge. ALJ Overby says: THE COURT: Weve got two Judge Grays. [referring to ALJ Beecher Gray and attorney Frank Gray] Lets try to keep them straight. (R p 351) 270. As a prosecutor representing the State of North Carolina, Nichols had the responsibility to insure that Johnson be made aware of this significant conflict of interest and that Johnsons informed consent, confirmed in writing, be given prior to Frank Gray making these client-serving evidentiary rulings in favor of the state agency and to the detriment of Johnson. 271. However, not only did Nichols breach that duty, he failed to correct the record and failed to disclose to Johnson that Frank Gray was not a judge, as multiple documents were served on Johnson or when, before the tribunal, Mr. Gray was erroneously referred to as Administrative Law Judge. 272. Additionally, because the administrative disciplinary process is an adversarial process, the licensee is at a distinct disadvantage if, unknown to the defendant, the trier of fact has a fiduciary responsibility to his employer; the agency. 273. This obvious conflict of interest is further exacerbated if the prosecutor, who also has a fiduciary responsibility to the agency, disregards Rule 3.8 Special Responsibilities of a Prosecutor; as Nichols consistently did.
COUNT EIGHTY-THREE 274. Complainant repeats, re-alleges and incorporates by reference the allegations made in paragraphs 1-273 above with the same force and effect as if herein set forth. THEREFORE, Complainant alleges that Defendants foregoing actions constitute grounds for discipline pursuant to N.C. Gen Stat. 84-28(b)(2) in that Nichols violated the revised Rules of Professional Conduct in effect at the time of the conduct as follows: (a) By seeking, affirming and supporting the decision to quash the subpoenas; and the decision to otherwise prevent witnesses, documents and legitimate areas of questioning of the witnesses that were allowed to testify, Nichols disregarded his obligation to see that the defendant is accorded procedural justice in violation of Rule 3.8. By failing to ensure that the pro se defendant was made aware that the Administrative Law Counsel was not an Administrative Law Judge, and the difference between the two, Nichols failed to reveal this conflict of interest and disregarded his obligation to see that the defendant is accorded procedural justice in violation of Rule 3.8. 67
(b)
COUNT EIGHTY-FOUR 275. Complainant repeats, re-alleges and incorporates by reference the allegations made in paragraphs 1-274 above with the same force and effect as if herein set forth. (a) By seeking, affirming and supporting the decision to quash the subpoenas; and the decision to otherwise prevent witnesses, documents and legitimate areas of questioning of the witnesses that were allowed to testify, Nichols unlawfully obstructed another party's access to evidence in violation of Rule 3.4(a).
XII DOCTOR-PATIENT CONFIDENTIALITY 276. Pursuant to RPC 162, a lawyer may not communicate with the opposing party's nonparty treating physician about the physician's treatment of the opposing party unless the opposing party consents. 277. Upon learning that Nichols and the Board staff had not only rejected the mental evaluation performed by Dr. Anne Hendricks, but also stated that she was not qualified to perform a complete evaluation, even given an opportunity to conduct additional testing, Johnson concluded the mental evaluation performed by Dr. Hendricks was inconsequential to the future proceedings. 278. Therefore, on August 18, 2006, Johnson wrote a letter, (R p 384) to Dr. Hendricks that stated in pertinent part: Effective immediately, I revoke and rescind any and all authorization for Dr. Hendricks or any others associated with First Step, LLC to release information to second or third parties concerning my care or me.
279. However, Nichols repeatedly contacted Dr. Anne Hendricks, M.D. of First Step Services, LLC (R pp 144 and 146) concerning Johnsons mental health evaluation. These multiple communications, which included, inter alia, telephone conferences, emboldened Jack Nichols and his co-counsel Mary Shuping, to serve Dr. Hendricks with a deposition subpoena, (R p 378) for a deposition scheduled for 10:00 am, January 15, 2007 at his law office. (R p 377) 280. Amazingly, these attorneys erroneously listed the doctors name as Dr. Susan Hendricks instead of Dr. Anne Hendricks, when drafting both the Subpoena and Notice of Deposition R pp 377-378).
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281. Insofar as the underlying complaint against Johnson was that he placed patient identifiable information into the public domain, Nichols attempt to breach Johnsons doctorpatient confidentiality, was especially and ironically troubling. 282. Once Johnson received the copy of the Notice of Deposition, he drafted a preemptive Proposed Civil Complaint, (R pp 376A-376F) naming Dr, Hendricks as a defendant in a proposed civil action if she chose to breach Johnsons doctor-patient confidentiality. 283. Dr. Hendricks informed Nichols that she had been served with Johnsons proposed civil complaint. Undaunted, Nichols moved forward with plans for the deposition. However on January 15, 2007, the morning of the deposition, Nichols and Dr. Hendricks cancelled the deposition forty-five minutes before she was to be deposed. 284. That same day (January 15, 2007) Nichols prepared a Motion for Protective Order to present to the Administrative Law Judge to compel Dr. Hendricks to breach doctor-patient confidentiality. Nichols alleged in his (R pp 381A-381F) RESPONDENTS SECOND MOTION FOR PROTECTIVE ORDER REGARDING PETITIONERS DISCOVERY REQUESTS & ATTEMPTS TO PREVENT RESPONDENTS DEPOSITION OF DR. HENDRICKS, inter alia: Petitioner has filed the Complaint in order to intimidate Dr. Hendricks from providing relevant testimony regarding Petitioners consultation with Dr. Hendricks (R p 381D) The Administrative Law Judge granted the Order.
285. Nichols acknowledged in multiple pleadings Dr. Hendricks testified that the Petitioner withdrew his consent for release of information, which effectively prevented her from reporting any findings or anything at all concerning the Petitioner to the Respondent or anyone else (R p 37G) This statement makes it clear that Johnson refused to give his consent to Nichols to communicate with Dr. Hendricks; and more importantly, that Nichols knew it. 286. Additionally, as an attorney, Jack Nichols is aware of North Carolina General Statute 8-53.3, which states: No person, duly authorized as a licensed psychologist or licensed psychological associate, nor any of his or her employees or associates, shall be required to disclose any information which he or she may have acquired in the practice of psychology and which information was necessary to enable him or her to practice psychology.
287. Therefore, Nichols is aware that communications with a nonparty treating physician concerning any aspect of the physicians treatment or substance of the physicians testimony at trial is unethical as against public policy unless the opposing party consents. Please See Crist v. Moffatt, 326 N.C. 326, 389 S.E.2d 41 (1990). However, Nichols blatantly disregarded the law and the North Carolina Rules of Professional Conduct; and did so anyway. 69
288. In an attempt to provide legal and ethical cover for his violation of the law and violation of the Rules of Professional Conduct, Nichols, in his July 16, 2007 RESPONSE OF N.C. BOARD of NURSING to PETITION for JUDICIAL REVIEW (paragraph 185) falsely stated: Moreover, during the hearing, Johnson waived any objections to Dr. Hendricks testifying. (R p 32S)
289. However, exhibiting a clear Consciousness of Guilt, only two months later, in his September 24, 2007, RESPONSE TO PETITIONERS MOTION FOR SANCTIONS, Nichols drops the during the hearing, Johnson waived any objections to Dr. Hendricks testifying defense and stated instead: In Count IV, Petitioner has alleged that Mr. Nichols communicated with Dr. Hendricks many times, sought to depose her testimony and called her to testify at a hearing in this case. Petitioner fails to mention that Dr. Hendricks was identified by Petitioner as a witness in his version of the Prehearing Order. (R p 31H)
290. Abandoning an excuse that could be more easily fact-checked; and adopting an excuse that he felt was more palatable to the Court, Nichols willfully failed to mention that Johnson only listed Dr. Hendricks as a potential witness in his version of the Proposed Prehearing Order, AFTER his multiple unsuccessfully attempts to prevent Nichols from compelling her to testify as a witness; and she had already been subpoenaed to appear for the prosecution. 291. Additionally, insofar as Johnsons proposed version of the Prehearing Order was rejected by the ALJ, the February 16, 2007 PROPOSAL FOR DECISION lists Dr. Hendricks as one of the Respondents [Nichols] witnesses. (R p 37B) However it does not list her as one of the Petitioners [Johnsons] witnesses. 292. Nichols, purposely failing to mention that he had improperly communicated with Dr. Hendricks multiple times before asking the court to authorize it, further goes on to state in his RESPONSE TO PETITIONERS MOTION FOR SANCTIONS: Dr. Hendricks was called as a witness; Petitioner objected to her testifying. Judge Overby conducted a voir dire and denied Petitioners objection and allowed her testifying. Petitioner did not except to or address this evidentiary ruling in his Petition for Judicial review. Regardless, such technical objections are moot since the Petition was Dismissed. (R p 31H)
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293. However, once again, Nichols failed to tell the truth. A review of Johnsons Petition for Judicial Review (R pp 379-379Zg) makes it clear that Johnson ABSOLUTELY took exception to and clearly addressed this issue. In paragraph 185, Johnson states: 185. Communications with a nonparty treating physician concerning any aspect of the physicians treatment of the Petitioner or the substance of the physicians testimony at trial is unethical as against public policy unless the opposing party consents. See Crist v. Moffatt, 326 N.C. 326, 389 S.E.2d 41 (1990). However, over Johnsons strong objections, attorney Nichols communicated with Dr. Hendricks many times.(R p 379Ze)
294. Astoundingly, Nichols misstated in his July 16, 2007 RESPONSE OF N.C. BOARD of NURSING to PETITION for JUDICIAL REVIEW (paragraph 185), Moreover, during the hearing, Johnson waived any objections to Dr. Hendricks testifying. 295. Therefore, contrary to Nichols stated assertions in his RESPONSE TO PETITIONERS MOTION FOR SANCTIONS, Nichols response to Johnsons stated exception to Nichols seeking and obtaining an order compelling the testimony of Dr. Hendricks is clearly documented by Nichols himself in his RESPONSE OF N.C. BOARD of NURSING to PETITION for JUDICIAL REVIEW (paragraph 185) and his statements to the contrary are clearly false.
COUNT EIGHTY-FIVE 296. Complainant repeats, re-alleges and incorporates by reference the allegations made in paragraphs 1-295 above with the same force and effect as if herein set forth. THEREFORE, Complainant alleges that Defendants foregoing actions constitute grounds for discipline pursuant to N.C. Gen Stat. 84-28(b)(2) in that Nichols violated the revised Rules of Professional Conduct in effect at the time of the conduct as follows: (a) By stating Petitioner did not except to or address this evidentiary ruling [to allow Dr. Hendricks to testify] in his Petition for Judicial review, with full knowledge that Johnsons Petition for Judicial Review clearly does take exception and does address this ruling, Nichols engaged in conduct involving deceit and misrepresentation in violation of Rule 8.4(c).
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COUNT EIGHTY-SIX 297. Complainant repeats, re-alleges and incorporates by reference the allegations made in paragraphs 1-296 above with the same force and effect as if herein set forth. (a) By stating in his RESPONSE TO PETITIONERS MOTION FOR SANCTIONS, Petitioner did not except to or address this evidentiary ruling in his Petition for Judicial review, with full knowledge that he had previously responded to Johnsons exception within his RESPONSE OF N.C. BOARD of NURSING to PETITION for JUDICIAL REVIEW, Nichols engaged in conduct involving deceit and misrepresentation in violation of Rule 8.4(c).
COUNT EIGHTY-SEVEN 298. Complainant repeats, re-alleges and incorporates by reference the allegations made in paragraphs 1-297 above with the same force and effect as if herein set forth. (a) By stating Regardless, such technical objections are moot since the Petition was dismissed, with full knowledge that regardless of his ability to convince the ALJ to allow or compel the doctors testimony, communications with a nonparty treating physician is unethical; and as such, it is not a moot issue. Therefore, Nichols engaged in conduct involving deceit and misrepresentation in violation of Rule 8.4(c).
COUNT EIGHTY-EIGHT 299. Complainant repeats, re-alleges and incorporates by reference the allegations made in paragraphs 1-298 above with the same force and effect as if herein set forth. (a) Nichols knowingly assisting a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law, by seeking and ultimately obtaining an order from the ALJ that compelled a physician to violate physician-patient confidentiality; and therefore, Nichols engaged in professional misconduct, in violation of Rule 8.4.
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NORTH CAROLINA STATE BAR COMPLAINT Monroe Jackson Nichols Page 73 of 111 COUNT EIGHTY-NINE 300. Complainant repeats, re-alleges and incorporates by reference the allegations made in paragraphs 1-299 above with the same force and effect as if herein set forth. (a) By stating in his RESPONSE TO PETITIONERS MOTION FOR SANCTIONS Petitioner fails to mention that Dr. Hendricks was identified by Petitioner as a witness in his version of the Prehearing Order, without informing the Court that Johnson only identified Dr. Hendricks as a potential witness, after repeated unsuccessful attempts to prevent Nichols from compelling her to testify, Nichols engaged in conduct involving deceit and misrepresentation in violation of Rule 8.4(c).
301. Nichols mischaracterized Dr. Hendricks participation in the hearing; and the protective order he successfully obtained as allowing her to testify as a witness. However, Nichols gained that participation pursuant to a SUBPOENA and a PROTECTIVE ORDER, which had the effect of COMPELLING Dr. Hendricks to violate physician-patient confidentiality. 302. Nichols alleged every purported privilege, real or imagined, to prevent Johnson from obtaining documents, witness testimony and other evidence, during the course of this case. However, although physician-patient confidentiality is considered sacrosanct and the courts are generally reluctant to pierce the privilege even in cases of murder and rape; Nichols, prosecuting an administrative contested case, ironically alleging a breach of confidentiality, simply asked for and obtained permission to breach the privilege by misstating that Johnson was attempting to wrongfully intimidate Dr. Hendricks by exercising his right not to agree to the breach of his physician-patient confidentiality. 303. Additionally, Nichols fought for and eventually obtained Johnsons entire personal medical records. There was no legitimate reason for Nichols to seek and obtain the medical records of Mr. Johnson and indeed, after he obtained them, he neither referenced them in the continuing case nor returned them after he reviewed them. 304. Nichols cannot properly argue that Johnson waived physician-patient privilege because Johnson did not place his physical or mental health at issue in this case. See Midkiff, N.C. App. at ___, ___ S.E.2d at ___, 2010 WL 1957374, at *3, 2010 N.C. In Midkiff, the Court of Appeals examined the history of the physician-patient privilege and explained that case law has recognized an implied waiver where a patient by bringing an action, counterclaim, or defense directly placed his medical condition at issue. 305. Therefore, it is clear that since Johnson neither expressly, nor implicitly waived his physician-patient privilege as to production of his medical records, most of which covered his 22 years of military service, Nichols improperly obtained them during the discovery process through threats and intimidation. 73
COUNT NINETY 306. Complainant repeats, re-alleges and incorporates by reference the allegations made in paragraphs 1-305 above with the same force and effect as if herein set forth. THEREFORE, Complainant alleges that Defendants foregoing actions constitute grounds for discipline pursuant to N.C. Gen Stat. 84-28(b)(2) in that Nichols violated the revised Rules of Professional Conduct in effect at the time of the conduct as follows: (a) By repeatedly communicating with and allowing compelling Dr. Hendricks to violate physician-patient confidentiality, in violation of the law and the Rules of Professional Conduct, Nichols engaged in professional misconduct, in violation of Rule 8.4.
COUNT NINETY-ONE 307. Complainant repeats, re-alleges and incorporates by reference the allegations made in paragraphs 1-306 above with the same force and effect as if herein set forth. (a) By stating Petitioner has filed the Complaint in order to intimidate Dr. Hendricksfrom providing relevant testimony regarding Petitioners consultation with Dr. Hendricks with full knowledge that Johnson has an absolute right to deny his physician the authority to disclose any information about his medical care, Nichols mischaracterized Johnsons HIPPA rights as an attempt at wrongful intimidation. Therefore, Nichols engaged in conduct involving deceit and misrepresentation in violation of Rule 8.4(c).
COUNT NINETY-TWO 308. Complainant repeats, re-alleges and incorporates by reference the allegations made in paragraphs 1-307 above with the same force and effect as if herein set forth. (a) By communicating with and compelling Dr. Hendricks to violate physicianpatient confidentiality, in violation of state and federal law, North Carolina Medical Practice Act and the Rules of Professional Conduct, Nichols placed Dr. Hendricks in professional peril and engaged in professional misconduct, in violation of Rule 8.4.
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NORTH CAROLINA STATE BAR COMPLAINT Monroe Jackson Nichols Page 75 of 111 COUNT NINETY-THREE 309. Complainant repeats, re-alleges and incorporates by reference the allegations made in paragraphs 1-308 above with the same force and effect as if herein set forth. (a) By improperly using the discovery process to demand Johnsons entire private medical records in a case involving the purported breach of confidential patient information, and then not referring to the records or returning them, Nichols used means that had no substantial purpose other than to embarrass and burden Johnson, in violation of Rule 4.4(a).
COUNT NINETY-FOUR 310. Complainant repeats, re-alleges and incorporates by reference the allegations made in paragraphs 1-309 above with the same force and effect as if herein set forth. (a) By using the discovery process and demanding Johnsons entire private medical records in a case involving the purported breach of confidential patient information, and then not referring to the records or returning them, Nichols made a frivolous discovery request, in violation of Rule 3.4(d)(1).
311. Pursuant to N.C. 90-21.20B(b), a prosecutor receiving identifiable health information shall not disclose this information to others except as necessary to the investigation or otherwise allowed by law. 312. However, Nichols not only gave his staff and others improper access to Johnsons medical records, but also placed Johnsons medical information concerning the mental health evaluation, into Boards public records and also improperly posted the information on a website, (R pp 390A-390H) where, although redacted over the years, it remains today with full access by the public (R p 380). COUNT NINETY-FIVE 313. Complainant repeats, re-alleges and incorporates by reference the allegations made in paragraphs 1-312 above with the same force and effect as if herein set forth. THEREFORE, Complainant alleges that Defendants foregoing actions constitute grounds for discipline pursuant to N.C. Gen Stat. 84-28(b)(2) in that Nichols violated the revised Rules of Professional Conduct in effect at the time of the conduct as follows: (a) By placing Johnsons unredacted personal patient-identifiable health care information into the public record and on a website, Nichols violated state and federal privacy laws and engaged in professional misconduct, in violation of Rule 8.4. 75
COUNT NINETY-SIX 314. Complainant repeats, re-alleges and incorporates by reference the allegations made in paragraphs 1-313 above with the same force and effect as if herein set forth. (a) By facilitating the placement of Johnsons unredacted personal patientidentifiable health care information into the public record and on a website, Nichols violated state and federal privacy laws and engaged in professional misconduct, in violation of Rule 8.4.
XIII THEFT OF EXCULPATORY EVIDENCE (THE COMPACT DISC) 315. Nichols had successfully orchestrated the suspension of Johnsons nursing license on November 3, 2006. However, he scheduled another hearing for April 27, 2007 for the full Board to, again considered the Proposal For Decision of another Administrative Law Judge on the exact same issues. 316. Consistent with N.C. 150B-36, Johnson filed exceptions to the decision made by the administrative law judge, and presented written arguments to the Board, prior to their consideration of the final decision and order. 317. Johnsons written argument was hand-delivered to Nichols, the attorney for the Board, on April 26, 2007 at his law office. Billing records show (R p 151) that he charged the state $42.00 to review Johnsons Written Argument for 30 minutes on April 26, 2007. [NOTE: at an hourly rate of $140, the cost for 30 minutes should have been $70.00 Arbitrary Billing] 318. Johnsons Written Argument includes a compact disc (hereinafter the WRITTEN ARGUMENT CD). (R p 381) The WRITTEN ARGUMENT CD contains 97 EXHIBIT files. Many of these files were copies of supporting documents that were part of the record, but many of the EXHIBITS were documents critical of the process and highlighted Nichols many violations of the Administrative Procedures Act, Rules of Civil Procedure and the North Carolina Rules of Professional Conduct.
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319. Arguably, the most critical file on the WRITTEN ARGUMENT CD is a Waveform Audio File (WAVE, or more commonly known as WAV) audio file format file. As stated supra, the audio file was that of the phone call between Johnson and attorney John Bryant. Johnson called Mr. Bryant when Carol Walker had informed Johnson that the mental health evaluation would not be accepted. Mr. Bryant was recorded defending Johnson by saying: BRYANT: that aint right. That aint going to happen. I aint gonna let that happen Johnson told Bryant that he believes he was being set-up by the board staff. Bryant stated the following: BRYANT: sounds like a legitimate beef to me. So let me see what I can do to help you. Why does she say she [Carol Walker] didnt approve the person [Dr. Hendricks]when she called and she talked to the person [Dr. Hendricks] and they said it was O.K. for you to go there? [mental health evaluation with Dr. Hendricks] 320. Because of Nichols history of unethical and illegal conduct during the course of the case, Johnson was naturally concerned that Nichols would attempt to prevent the Board from completely reviewing the WRITTEN ARGUMENT and the accompanying CD; especially the exculpatory evidence contained in the audio of attorney Bryant, the initial general counsel. 321. Therefore, Johnson took steps to make it difficult for Nichols to alter the CD and/or replace it with a redacted copy. These steps included the following:
1. 2. 3. 4. 5. 6.
Johnson made multiple copies of the CD. Each CD was labeled with a photo of the actual Contested Case document. Each CD was labeled with a photo of Johnson over the photo of the document. Each CD was clearly labeled with the word EXHIBITS. A copy of the CD was served on the OAH, Nichols, and the Court. Each CD was presented with the document in a specially designed folder that highlighted the CD right up front.
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322. However, even with these multiple counter-measures in place, Nichols still chose to prevent the Board and then the Court from reviewing the CD. 323. At the hearing on April 27, 2007 before the full Nursing Board, and contrary to the Administrative Procedures Act, Nichols orchestrated that Johnson be given only 10 minutes to address the full Board. Afterwards, in rebuttal, Nichols stated that everything Johnson had said was just smoke and mirrors, (R p 110) although he knew that not to be the case. 324. Close to the conclusion of the hearing, Mr. Flick, the Hearing Officer, asked if Johnson had objections to the Boards procedure for going into closed session to deliberate. Johnson asked if the Board had received the WRITTEN ARGUMENT (misstated as the letter) that he had filed with the Board at Nichols law office the day before. (R p 112) They had not. 325. Nichols stated, Is that this written argument thing that you [served on me yesterday?] (R p 112) ATTEMPT AT DECEPTION No. 1. thing? It was obvious that Nichols, by calling it a thing, was willfully downplaying to the Board, the importance of the evidence and the fact that Johnson had a right, by statute, to file a written argument with the Board and they had an obligation to review it, even though Nichols had improperly limited Johnsons oral testimony to only 10 minutes. Johnson stated Yeah, written argument. 326. Nichols stated, I dont know. You filed it with the Office of Administrative Hearings. I dont know if you filed it here. (R p 112) ATTEMPT AT DECEPTION No. 2. However, Johnson stated on the record, I filed it with [Jack Nichols] the respondents attorney, Mr. Nichols. 327. Mr. Flick began explaining that Johnson was able to file written exceptions and Nichols then stated, Mr. Flick, if I may, Ill just hand you my copy that he gave he served on me as a written argument. (R p 113) ATTEMPT AT DECEPTION No. 3. His copy? His copy was the copy filed and served upon the Board by Johnson; not Nichols courtesy copy. Johnson had filed every document up to that point through Nichols. Nichols walked up and handed the WRITTEN ARGUMENT (R p 385) to Mr. Flick and stated, And if youll return that to Ms. Mooney so she can make it part of the official Board file.[emphasis added] (R p 113). 328. However, because Johnson had placed the document in a specially designed CD folder, Johnson could see that the WRITTEN ARGUMENT (R p 385) Nichols handed to Mr. Flick did not contain the CD. (R p 113) ATTEMPT AT DECEPTION No. 4. 329. Mr. Flick thanked Nichols; and then Johnson stated, One last thing. The CD, audio CD, is a part of that exhibit. Nichols replied, You want them to play the CD too? ATTEMPT AT DECEPTION No. 5. Johnson stated, Its part of the exhibits. Nichols acquiesced and stated, Sure. Ill take that up too. (R p 113)
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NORTH CAROLINA STATE BAR COMPLAINT Monroe Jackson Nichols Page 79 of 111 COUNT NINETY-SEVEN 330. Complainant repeats, re-alleges and incorporates by reference the allegations made in paragraphs 1-329 above with the same force and effect as if herein set forth. THEREFORE, Complainant alleges that Defendants foregoing actions constitute grounds for discipline pursuant to N.C. Gen Stat. 84-28(b)(2) in that Nichols violated the revised Rules of Professional Conduct in effect at the time of the conduct as follows: (a) By feigning confusion and stating before the tribunal, Is that this written argument thing that you with full knowledge that, upon service upon him, the WRITTEN ARGUMENT should have been presented to the tribunal for their deliberations, Nichols engaged in conduct involving deceit and misrepresentation in violation of Rule 8.4(c).
COUNT NINETY-EIGHT 331. Complainant repeats, re-alleges and incorporates by reference the allegations made in paragraphs 1-330 above with the same force and effect as if herein set forth. (a) By feigning confusion and stating before the tribunal, I dont know. You filed it with the Office of Administrative Hearings. I dont know if you filed it here. with full knowledge that, as counsel for the Board, upon service upon him, the WRITTEN ARGUMENT should have been presented to the tribunal for their deliberations, Nichols engaged in conduct involving deceit and misrepresentation in violation of Rule 8.4(c).
COUNT NINETY-NINE 332. Complainant repeats, re-alleges and incorporates by reference the allegations made in paragraphs 1-331 above with the same force and effect as if herein set forth. (a) By feigning confusion and stating before the tribunal, Mr. Flick, if I may, Ill just hand you my copy that he gave he served on me as a written argument. with full knowledge that, as counsel for the Board, the WRITTEN ARGUMENT was not simply his courtesy copy and upon service upon him, the WRITTEN ARGUMENT should have been presented to the tribunal for their deliberations, Nichols engaged in conduct involving deceit and misrepresentation in violation of Rule 8.4(c).
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COUNT ONE HUNDRED 333. Complainant repeats, re-alleges and incorporates by reference the allegations made in paragraphs 1-332 above with the same force and effect as if herein set forth. (a) By removing the attached CD containing material having potential evidentiary value, from the WRITTEN ARGUMENT, prior to placing the WRITTEN ARGUMENT into evidence, Nichols engaged in conduct involving deceit and misrepresentation in violation of Rule 8.4(c).
COUNT ONE HUNDRED-ONE 334. Complainant repeats, re-alleges and incorporates by reference the allegations made in paragraphs 1-333 above with the same force and effect as if herein set forth. (a) By removing the attached CD containing material having potential evidentiary value, from the WRITTEN ARGUMENT, prior to placing the WRITTEN ARGUMENT into evidence, Nichols attempted to unlawfully obstruct another party's access to evidence in violation of Rule 3.4(a).
COUNT ONE HUNDRED-TWO 335. Complainant repeats, re-alleges and incorporates by reference the allegations made in paragraphs 1-334 above with the same force and effect as if herein set forth. (a) By removing the attached CD containing material having potential evidentiary value, from the WRITTEN ARGUMENT, prior to placing the WRITTEN ARGUMENT into evidence, Nichols attempted to alter or conceal a document or other material having potential evidentiary value, in violation of Rule 3.4(a). By removing the attached CD containing material having potential evidentiary value, from the WRITTEN ARGUMENT, prior to placing the WRITTEN ARGUMENT into evidence, Nichols engaged in conduct that is prejudicial to the administration of justice, in violation of Rule 8.4.
(b)
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COUNT ONE HUNDRED-THREE 336. Complainant repeats, re-alleges and incorporates by reference the allegations made in paragraphs 1-335 above with the same force and effect as if herein set forth. (a) By feigning confusion and stating before the tribunal, You want them to play the CD too? with full knowledge that the WRITTEN ARGUMENT and the attached CD contained potential exculpatory evidence and should have been presented to the tribunal for their deliberations, Nichols engaged in conduct involving deceit and misrepresentation in violation of Rule 8.4(c).
COUNT ONE HUNDRED-FOUR 337. Complainant repeats, re-alleges and incorporates by reference the allegations made in paragraphs 1-336 above with the same force and effect as if herein set forth. (a) By feigning confusion and stating before the tribunal, You want them to play the CD too? with full knowledge that the WRITTEN ARGUMENT and the attached CD contained potential exculpatory evidence and should have been presented to the tribunal for their deliberations, Nichols attempted to unlawfully obstruct another party's access to evidence in violation of Rule 3.4(a).
338. On that same day (April 27, 2007) the Board filed another FINAL DECISION AND ORDER (R pp 394A-394E) and continued the suspension of Johnsons nursing license. The ORDER was served upon Johnson with an accompanying letter (R p 394A) cc to Nichols. It is doubtful that the Board reviewed the exculpatory evidence on the CD, because their final findings make no reference to it or the John Bryant phone call.
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339. On June 7, 2007, Johnson filed (R p 386) a PETITION FOR JUDICIAL REVIEW. On June 14, 2007, Nichols was personally served with a copy, again containing another copy of the WRITTEN ARGUMENT CD. Nichols moved to dismiss the petition on July 6, 2007.
WRITTEN ARGUMENT
PETITION FOR JUDICIAL REVIEW
340. On July 16, 2007, Nichols drafted and filed for the Board staff a purported CERTIFICATION OF RECORD ON JUDICIAL REVIEW. (R p 391) It was immediately clear that the CERTIFICATION did not implicitly include the WRITTEN ARGUMENT or CD, as stated supra, and although attorney Nichols himself asked the Board to insure that the document was returned to Ms. Mooney so that it could be made a part of the official file, it appeared that he was attempting to redact that evidence from the file being presented to the Court for Judicial Review; and therefore on July 24, 2007, Johnson filed and served his MOTION TO COMPEL (THE OFFICIAL RECORD) (R pp 392A-392F) to make sure the document and the CD were made part of the record. 341. Johnsons MOTION TO COMPEL (THE OFFICIAL RECORD) moved to have the entire record presented to the Court and specifically referenced the WRITTEN ARGUMENT with attached CD; and further referenced Nichols attempt to prevent its presentation to the tribunal at the April 27, 2007 hearing (R p 392E). 342. Johnsons MOTION TO COMPEL (THE OFFICIAL RECORD) moved to have the entire record presented
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343. On August 7, 2007, Judge Allen Baddour heard arguments from Johnson and Nichols. As the hearing progressed, Johnson asked Judge Baddour if he had reviewed the MOTION TO COMPEL (R pp 395A-395G) and the EXHIBIT CD (R p 382). Judge Baddour looked through the file and stated that no CD and no MOTION TO COMPEL was in the file. 344. Insofar as Johnson had served 8 copies of the CD and 5 copies of the Motion, Johnson was dumbfounded and protested the obviously redacted record. Initially, Nichols said nothing. However, Judge Baddour asked Johnson what he believed was missing from the file? Johnson stated he didnt know, because Nichols refused to give him a comprehensive list of just what the Board had included in the file prior to the hearing. Still, Nichols said nothing. 345. At that point, Judge Baddour instructed Johnson to obtain the file within the next few days after it was returned to the records room; and report to the Court, what was missing from the record. Suddenly, Nichols stood up and stated that he was aware that the CD had not been included in the record, but claimed, The staff from the Board of Nursing [had] simply failed to include the compact disc with the record that it filed with the Court. (R pp 127-128) 346. Judge Baddour asked Nichols what was on the CD. Nichols falsely claimed the CD contained Petitioners oral arguments, which he had made before the N.C. Board of Nursing on April 27, 2007 (R p 127). Judge Baddour ruled in an order signed on August 8, 2007 and filed on August 13, 2007 (R pp 393A-393E) that was drafted by Nichols: 30. Respondent Board conceded that the Compact Disc that contained Petitioners oral arguments, which he had made before the N.C. Board Of Nursing on April 27, 2007 had not been included in the Record filed With the Wake Superior Court and Counsel consented that the Compact Disc could be added to the Record. (R p 393D) 31. Pursuant to N.C. Gen. Stat. 150B-47, the Court rules that the Compact Disc containing Petitioners oral arguments, which he had made before the N.C. Board of Nursing on April 27, 2007 shall be an addition to the Record filed with the Wake Superior Court. (R p 393D) 32. The remainder of Petitioners Motion to Compel is denied. (R p 393D) 347. Later that day, (August 7, 2007) in response to the blatant misrepresentations to the Court by Nichols, Johnson filed a Motion for Sanctions and asked for a hearing to address the charges. 348. On August 8, 2007, Nichols prepared an Order for the judges signature that granted, inter alia, Johnsons Motion to Amend the Record to include the CD, although Johnson had never filed a motion to amend the record. Nichols used this order to improperly assert that Johnson had moved the court to amend the record to add an additional item (CD) to the record.
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349. However, there was no motion nor request from Johnson to amend or add an additional item to the record, because CD was a part of the record all along. Once again, Nichols was providing himself cover for the improper removal of the evidence. 350. Days later, after reviewing the courthouse file and realizing the only way Nichols could have known the CD (he did not address the missing MOTION TO COMPEL at the hearing) was missing from the file, was if he had removed it himself, on August 30, 2007, Johnson filed an AMENDED MOTION FOR SANCTIONS against Nichols to include the misconduct surrounding the improper removal of the CD. 351. On September 24, 2007, Nichols filed a RESPONSE TO PETITIONERS MOTION FOR SANCTIONS. Nichols disputed each and every allegation; and astoundingly chose to continuously misrepresent the contents of the CD that was missing from the record. 352. In his RESPONSE TO PETITIONERS MOTION FOR SANCTIONS, in response to the allegation that he removed the WRITTEN ARGUMENT CD, Nichols misrepresented that the CD simply contained the audio of Johnsons ORAL ARGUMENT given at the April 27, 2007 hearing. 353. Astoundingly, Nichols successfully repeated his conflicting arguments to confuse the Court. Nichols States in Section VI. RESPONSE TO COUNT VI ALLEGATIONS THAT NICHOLS MADE FALSE STATEMENTS TO THE COURT CONCERNING PETITIONERS CD BEING IN THE RECORD: Petitioner has alleged a compact disc (CD) that he offered at the oral Arguments [WRITTEN ARGUMENT CD] before the Board on April 27, 2007 and which contained Petitioners written argument was removed from the record and that the undersigned Counsel had falsely stated to this Court that the CD [WRITTEN ARGUMENT CD] Contained Petitioners oral argument of the April 27, 2007 hearing. Again, Petitioner has again misrepresented the facts. At the August 7, 2007 hearing, Judge Baddour heard Petitioners Motion to Amend the Record. [Note: there was no Motion to Amend the record] Petitioner made these same allegations and also filed a Motion to Compel. Clearly, there are no false misrepresentations. The staff from the Board of Nursing simply failed to include the [WRITTEN ARGUMENT CD] Compact Disc with the Record that it filed with the Court. At the Petitioners request, the Record was amended and the [WRITTEN ARGUMENT CD] Compact Disc was added to the Record. Regardless, the Record also includes the verbatim transcript [NOTE: ORAL ARGUMENT] from the April 27, 2007 hearing. Therefore, whether Petitioners arguments [NOTE: ORAL ARGUMENT] are on the Compact Disc [NOTE: ORAL ARGUMENT CD] or in the Transcript is irrelevant; Petitioner requested that his [WRITTEN ARGUMENT CD] CD be part of the Record and his request was granted. 85
354. Astoundingly, the hearing transcript that Nichols refers to (April 27, 2007 hearing) details how Nichols attempted to place the WRITTEN ARGUMENT into the record without the WRITTEN ARGUMENT CD. The transcript also details that Nichols ultimately placed the WRITTEN ARGUMENT CD into the record. 355. After making this amazingly contradictory argument, Nichols goes on to supplement his misrepresentations with unsuccessful demands for additional sanctions against Johnson. Nichols, citing the criteria for sanctions pursuant to Rule 11, states, inter alia: Again, this Count of the Motion for Sanctions is frivolous, without merit and clearly intended to be harassing of the Board and its Counsel. Based upon the above, the Court should deny Count VI as a ground for sanctions. -ANDIn summary, the Board denies each and every basis for Petitioners Motion for Sanctions. Respondent submits that the Motion for Sanctions was not presented for proper purpose, but merely intended to harass the Board and its Counsel. -ANDThe Court should take judicial notice that such motions are unnecessary and should determine them to be frivolous and issue sanctions to prevent the continual abuse of process.
COUNT ONE HUNDRED-FIVE 356. Complainant repeats, re-alleges and incorporates by reference the allegations made in paragraphs 1-355 above with the same force and effect as if herein set forth. THEREFORE, Complainant alleges that Defendants foregoing actions constitute grounds for discipline pursuant to N.C. Gen Stat. 84-28(b)(2) in that Nichols violated the revised Rules of Professional Conduct in effect at the time of the conduct as follows: (a) By remaining silent to the absence of the CD and the Motion to Compel until the judge directed Johnson to review the file and report back to the Court, although he had knowledge that they were not in the file, Nichols engaged in conduct involving deceit and misrepresentation in violation of Rule 8.4(c).
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COUNT ONE HUNDRED-SIX 357. Complainant repeats, re-alleges and incorporates by reference the allegations made in paragraphs 1-356 above with the same force and effect as if herein set forth. (a) By admitting, during the hearing, of prior knowledge of the absence of the CD and the Motion to Compel, it is clear that Nichols had removed the items himself and therefore, he attempted to unlawfully obstruct another party's access to evidence in violation of Rule 3.4(a).
COUNT ONE HUNDRED-SEVEN 358. Complainant repeats, re-alleges and incorporates by reference the allegations made in paragraphs 1-357 above with the same force and effect as if herein set forth. (a) By admitting, during the hearing, of prior knowledge of the absence of the CD and the Motion to Compel, although Johnson had made repeated significant prior attempts to ensure that the Board would make sure the CD would be in the record, it is clear that Nichols had removed the items himself and therefore, he attempted to alter or conceal a document or other material having potential evidentiary value, in violation of Rule 3.4(a).
COUNT ONE HUNDRED-EIGHT 359. Complainant repeats, re-alleges and incorporates by reference the allegations made in paragraphs 1-358 above with the same force and effect as if herein set forth. (a) By falsely claiming before the tribunal that the WRITTEN (emphasis added) ARGUMENT CD contained audio of Johnsons ORAL (emphasis added) argument before the April 27, 2007 hearing, with full knowledge that it actually contained 97 EXHIBIT files, Nichols engaged in conduct involving deceit and misrepresentation in violation of Rule 8.4(c).
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COUNT ONE HUNDRED-NINE 360. Complainant repeats, re-alleges and incorporates by reference the allegations made in paragraphs 1-359 above with the same force and effect as if herein set forth. (a) By claiming before the tribunal The staff from the Board of Nursing simply failed to include the compact disc with the record that it filed with the Court, although Johnson had made repeated significant prior attempts to ensure that the Board would make sure the CD would be in the record, Nichols falsely accused his client, the Board, of misconduct, with full knowledge of the falsity of the accusation, and intentionally prejudiced or damaged his client during the course of the professional relationship, in violation of Rule 8.4.
COUNT ONE HUNDRED-TEN 361. Complainant repeats, re-alleges and incorporates by reference the allegations made in paragraphs 1-360 above with the same force and effect as if herein set forth. (a) By claiming before the tribunal that Johnson had requested amending the record to include the WRITTEN ARGUMENT CD as an addition to record, with full knowledge that Johnson had not requested an addition to the record, but was inquiring as to why the WRITTEN ARGUMENT CD and the Motion to Compel had been removed, Nichols engaged in conduct involving deceit and misrepresentation in violation of Rule 8.4(c).
362. After the Court Dismissed the Petition for Judicial Review, based upon Nichols misrepresentations, Johnson filed a Motion for Relief from Judgment and Motion for Criminal Sanctions on November 20, 2007. 363. In preparation for the upcoming hearing, Johnson issued a Subpoena Duces Tecum to Mary P. Johnson, Executive Director of the North Carolina and the staff member that had purportedly certified and submitted the CERTIFICATION AND RECORD ON JUDICIAL REVIEW on July 16, 2007. 364. The Subpoena Duces Tecum asked Ms. Johnson to testify and produce two items. She was asked to produce all copies of the WRITTEN ARGUMENT CD that had been served upon the Board. Additionally, she was asked to produce the purported Compact Disc that Nichols had claimed was inadvertently excluded from the record and which purportedly contained Johnsons oral arguments that he had made before the Board at the April 27, 2007 hearing. 88
365. Although Nichols had claimed The staff from the Board of Nursing [Ms. Johnson] simply failed to include the compact disc with the record that it filed with the Court, he did not want Ms. Johnson to testify because she would have to explain how that purported failure had taken place in light of the numerous prior attempts by the Petitioner to ensure that the WRITTEN ARGUMENT CD would be in the record. 366. Additionally, although Nichols had claimed Respondent Board conceded that the Compact Disc that contained Petitioners oral arguments, which he had made before the N.C. Board of Nursing on April 27, 2007 had not been included in the Record filed with the Wake Superior Court and Counsel consented that the Compact Disc could be added to the Record, Nichols did not want Ms. Johnson to testify because she would have to produce and explain a compact disc that did not exist. Therefore, Nichols filed a Motion to Quash the Subpoena Duces Tecum of Mary P. Johnson. 367. In his November 21, 2007 Motion to Quash the Subpoena Duces Tecum, Nichols raises multiple procedural reasons why the Subpoena Duces Tecum should purportedly be quashed, but what is most interesting is paragraph 14, in which he writes: NICHOLS: Respondent submits that the CD about which Petitioner is seeking testimony has been included in the Record and Petitioners attempts to glean some inference from it are irrelevant because no further testimony is admissible. NOTE: No such CD existed on Nov 21, 2007. It wasnt ordered until Dec 3, 2007. 368. The hearing was held on December 5, 2007. Nichols feared the evidence would reveal that although he had repeatedly claimed that the Compact Disc contained Petitioners oral arguments, which he had made before the N.C. Board of Nursing on April 27, 2007, no such compact disc existed. 369. Therefore, on December 3, 2007, Nichols, through Mr. David Kalbacher, the public information officer for the Board, contacted Garrett Reporting Services, Inc. and requested from the stenographer who transcribed the record at the April 27, 2007 hearing, a copy of the audio tape that she used as back up for the hearing transcription, be placed on a CD.
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370. However, on the day of the hearing (December 5, 2007) to consider sanctions against Nichols for removing the WRITTEN ARGUMENT CD, the compact disc (hereinafter the TRANSCRIPT CD) had yet to be delivered to Kalbacher. (NOTE: It arrived at the Boards offices that day, but after the hearing). Therefore, when the issue of the removal of the WRITTEN ARGUMENT CD arose during the hearing, Nichols feigned confusion as to why Johnson cared if some CD was in the record or not. 371. Nichols knew that the WRITTEN ARGUMENT CD contained, inter alia, the audio of his co-general counsel, John Bryant, saying that the Johnsons argument concerning the initial mental exam was a legitimate beef and the Boards demand for additional testing was unfair. He further knew that this evidence was potentially exculpatory. 372. During oral arguments before the Court, Nichols continuously asserted that the CD Johnson claimed had been removed from the file [WRITTEN ARGUMENT CD] was simply the TRANSCRIPT CD (that had not been produced yet). He further avers, that since the transcript of the hearing was already in the record, providing Johnson with the audio of the actual words spoken was simply redundant and just a method of harassing the Board in general and Nichols in particular. Nichols successfully confused the Court by stating the following: NICHOLS: Johnson has also made a public records request for the audio tape, so we have contacted the court reporter. We are in the process of getting the audio recording of that day [April 27, 2007]. Now the transcript from that audio recording has already been produced and its in the record. Um, so I dont know why he cares about whether or not some CD or Ms. Johnson testifying about it, but we will independently provide to him, once we get itum, (clears throat the clears throat) ahthe audio recording, but the transcript of that hearing is Tab 10 in front of you and thats the one thats in your hand. So I dont understand what difference it makes whether or not theres a transcriptan audio recording 90
373. Amazingly, Nichols was successful in confusing the trial court judge concerning the compact discs. After Nichols arguments, Judge Baddour believed that the CD in question either contained audio of the April 27, 2007 hearing or audio of another hearing. Attempts to explain that the compact disc contained exhibit files and audio of the John Bryant phone call, were unsuccessful, as shown below: JUDGE BADDOUR: Let me ask you [Johnson] this. The audio that you are concerned about is the audio of this hearing JOHNSON: No, no JUDGE BADDOUR: April 27th? JOHNSON: No, Your HonorI filed my CD JUDGE BADDOUR: No, no, no. Im not talking about where the CD went or what you think happened to the CDAnswer the questionWhere is, what is, what hearing are you talking about besides the April 27, 2007, 8:18am hearing that there is an audio for? JOHNSON: Your Honor, can you hear me out for a moment JUDGE BADDOUR: Im asking youIm going to ask it one more time. The audio that youre concerned about is of the April 27th 2007 hearing? Yes or No? JOHNSON: No. JUDGE BADDOUR: What date? What date? JOHNSON: There was no date JUDGE BADDOUR: Wait a minute. Theres a hearing or theres not a hearing. OK, if there is an audio of a hearing, what date is the hearing? JOHNSON: There is no hearing, there JUDGE BADDOUR: OK fine. Thank you. The Motion to Quash is allowed.
COUNT ONE HUNDRED-ELEVEN 374. Complainant repeats, re-alleges and incorporates by reference the allegations made in paragraphs 1-373 above with the same force and effect as if herein set forth. THEREFORE, Complainant alleges that Defendants foregoing actions constitute grounds for discipline pursuant to N.C. Gen Stat. 84-28(b)(2) in that Nichols violated the revised Rules of Professional Conduct in effect at the time of the conduct as follows: (a) By claiming The staff from the Board of Nursing [Ms. Mary P. Johnson] simply failed to include the compact disc with the record that it filed with the Court, and then moving to quash her testimony on the false basis that the subpoena was frivolous and issued simply to harass, with full knowledge that her testimony would reveal the redaction of the official Board file was not a simple oversight, Nichols engaged in conduct involving deceit and misrepresentation in violation of Rule 8.4(c).
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COUNT ONE HUNDRED-TWELVE 375. Complainant repeats, re-alleges and incorporates by reference the allegations made in paragraphs 1-374 above with the same force and effect as if herein set forth. (a) By claiming The staff from the Board of Nursing [Ms. Mary P. Johnson] simply failed to include the compact disc with the record that it filed with the Court, and then moving to quash production of the TRANSCRIPT CD on the false basis that the subpoena was frivolous and issued simply to harass, with full knowledge that the TRANSCRIPT CD did not yet exist, Nichols engaged in conduct involving deceit and misrepresentation in violation of Rule 8.4(c).
COUNT ONE HUNDRED-THIRTEEN 376. Complainant repeats, re-alleges and incorporates by reference the allegations made in paragraphs 1-375 above with the same force and effect as if herein set forth. (a) By feigning confusion before the Trial Court, as to why Johnson cared about whether Ms. Johnson testified or not concerning the removal of the TRANSCRIPT CD from record, with full knowledge that the Motion for Sanctions hearing was specifically convened to address the improper removal of the WRITTEN ARGUMENT CD, Nichols engaged in conduct involving deceit and misrepresentation in violation of Rule 8.4(c).
COUNT ONE HUNDRED-FOURTEEN 377. Complainant repeats, re-alleges and incorporates by reference the allegations made in paragraphs 1-376 above with the same force and effect as if herein set forth. (a) By feigning confusion before the Trial Court, as to why Johnson cared about whether or not the TRANSCRIPT CD was in the record, because the trial transcript was in the record; with full knowledge that the Motion for Sanctions hearing was specifically convened to address the improper removal of the WRITTEN ARGUMENT CD, not the TRANSCRIPT CD, Nichols engaged in conduct involving deceit and misrepresentation in violation of Rule 8.4(c).
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378. Although on August 7, 2007, Judge Baddour had ordered that the Compact Disc containing Petitioners oral arguments, which he had made before the N.C. Board of Nursing on April 27, 2007 shall be an addition to the record filed with the Wake Superior Court no such Compact Disc existed until Nichols had Garrett Reporting Services craft one on December 5, 2007. 379. Upon receipt of the Compact Disc, Nichols mailed the CD to Johnson but since he had only ordered one copy from Garrett Reporting Services (at a cost of $29.60) he never complied with the Courts order by adding a copy to the file at the Wake Superior Court. As of the date of this complaint, the record remains absent the court ordered inclusion of the TRANSCRIPT CD.
COUNT ONE HUNDRED-FIFTEEN 380. Complainant repeats, re-alleges and incorporates by reference the allegations made in paragraphs 1-379 above with the same force and effect as if herein set forth. THEREFORE, Complainant alleges that Defendants foregoing actions constitute grounds for discipline pursuant to N.C. Gen Stat. 84-28(b)(2) in that Nichols violated the revised Rules of Professional Conduct in effect at the time of the conduct as follows: (a) By failing to add the purported Compact Disc to the Wake County Superior Court file, after being ordered to do so by the Court, Nichols engaged in misconduct, in violation of Rule 8.4(b), Rule 8.4 (c), and Rule 8.4 (d).
XIII WILLFUL MISREPRESENTATION BEFORE THE TRIBUNAL CUSTODIAN OF PUBLIC RECORDS - KALBACHER 381. Beginning in the Fall of 2006 and continuing throughout the subsequent years of this case, Johnson asked the North Carolina Board of Nursing for public record documents on multiple occasions. The board has consistently directed Johnson to contact and work with David Kalbacher to review and obtain copies of all North Carolina Board of Nursing held public records. 382. In a September 28, 2007 letter from Mary Johnson, the Executive Director of the Board, (R pp 396A-396C) Complainant Johnson was told You may inspect the public records at the Board office by notifying David KalbacherThe public records will be placed in a conference room where you may view themAgain, please coordinate your requests and visits with Mr. Kalbacher.
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NORTH CAROLINA STATE BAR COMPLAINT Monroe Jackson Nichols Page 94 of 111 383. Kalbacher is listed on the Boards website (R pp 397A-397C) as the Boards Director of Public Information and Johnson met with him multiple times in the Boards conference room to review, select and copy public records from Johnsons official Board file. 384. However, Johnson had been accused of publishing private protected patient information. Johnson argued that not only was the information in question, not private patient identifiable information, but it also was included in the public records of several state agencies, including the North Carolina Board of Nursing. 385. Therefore, to assert his right of access to these public records, on 21 September 2009, Johnson filed a MOTION FOR ACCESS N.C.G.S. 1-72.1 (R pp 399A-399C) to present evidence to the Court that all the information is included within the North Carolina Board of Nursing file for Kenneth Johnson and is therefore public. 386. To properly lay a foundation to introduce the file as evidence into the record, Johnson served subpoenas on David Kalbacher, (R p 5) who is the custodian of public records; Diane Jenkins, (R p 1) who is the Office Operations Manager who had also arraigned for access of the public records; and Jack Nichols, (R p 6) who together with the Board officials had informed Johnson that he had to go through Nichols to obtain his Board file. 387. Upon service of these subpoenas, Nichols filed a MOTION(s) TO QUASH the subpoena issued to him (R pp 402A-402C) and the subpoenas issued to Jenkins and Kalbacher (R pp 403A-403D). 388. Contrary to his obligations as an officer of the court, in his MOTION(s) TO QUASH, Nichols failed to inform the Court that each of these subpoenaed persons are custodians of these public records. Instead, he simply refers to himself as an attorney for the Board and refers to Jenkins and Kalbacher, simply as employees of the Board; creating the misperception that Johnson just picked random employees unassociated with the public records, to subpoena.
COUNT ONE HUNDRED-SIXTEEN 389. Complainant repeats, re-alleges and incorporates by reference the allegations made in paragraphs 1-388 above with the same force and effect as if herein set forth. THEREFORE, Complainant alleges that Defendants foregoing actions constitute grounds for discipline pursuant to N.C. Gen Stat. 84-28(b)(2) in that Nichols violated the revised Rules of Professional Conduct in effect at the time of the conduct as follows: (a) By failing to inform the court that the subpoenaed persons were custodians of the public records and not simply some random employees of the board; with the knowledge that a witness had to take the stand to lay a foundation to enter the records into the record as evidence, Nichols engaged in conduct involving deceit and misrepresentation in violation of Rule 8.4(c).
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390. Amazingly, although the North Carolina Board of Nursing had informed Johnson on multiple occasions that David Kalbacher is the custodian of public records and despite all the other evidence to the contrary, Nichols misrepresented to the Court that he didnt understand why David Kalbacher was subpoenaed because Kalbacher was not the custodian of public records. In an October 19, 2007 email (R p 195), Nichols tells Johnson, You are to continue to work with Mr. Kalbacher in reviewing and obtaining the public records that are part of your public records request. In order to obtain those records, you are to meet with him on the terms that he has described to you. 391. As further evidence that David Kalbacher was functioning as the custodian of public records, one of the public records documents (R p 413) was even headlined as redacted by him. At the top of the document [00031] someone typed David. Redact the names; he gave us this, but it is still wrong to Further, Kalbacher repeatedly responded to Johnson via email, as the custodian of public records (R p 190).
COUNT ONE HUNDRED-SEVENTEEN 392. Complainant repeats, re-alleges and incorporates by reference the allegations made in paragraphs 1-391 above with the same force and effect as if herein set forth. THEREFORE, Complainant alleges that Defendants foregoing actions constitute grounds for discipline pursuant to N.C. Gen Stat. 84-28(b)(2) in that Nichols violated the revised Rules of Professional Conduct in effect at the time of the conduct as follows: (a) By misrepresenting to the Court that David Kalbacher was not the custodian of public records; and by not divulging to the Court; in an attempt to prevent Mr. Kalbacher from testifying, that Mr. Kalbachers duties include custodian of public records, Nichols engaged in conduct involving deceit and misrepresentation in violation of Rule 8.4(c).
393. In response to an written inquiry by Johnson (R p 398 and R p 401A-B) to explain why he told the judge that Mr. Kalbacher was not the custodian of public records, Nichols stated in a letter dated April 6, 2010, (R p 269A-C) that the Executive Director, Julie George, is the actual custodian of public records and that she may retain or delegate those duties. Ms. George has chosen to retain those duties, although she frequently asks Mr. Kalbacher to respond to public inquires. 394. Although, Julie George is the custodian of public records by statute, as an officer of the court, Nichols had an obligation to reveal to the Court that Kalbacher is the one functioning in that position; and by misrepresenting that Kalbacher was simply an employee of the Board, working in the office; in order to advance a motion to quash, Nichols engaged in conduct involving deceit and misrepresentation. 95
COUNT ONE HUNDRED-EIGHTEEN 395. Complainant repeats, re-alleges and incorporates by reference the allegations made in paragraphs 1-394 above with the same force and effect as if herein set forth. THEREFORE, Complainant alleges that Defendants foregoing actions constitute grounds for discipline pursuant to N.C. Gen Stat. 84-28(b)(2) in that Nichols violated the revised Rules of Professional Conduct in effect at the time of the conduct as follows: (a) By misrepresenting to the Court that Julie George was the person acting as custodian of public records and not David Kalbacher; without informing the Court; in an attempt to prevent Mr. Kalbacher from testifying; that Kalbacher was the one functioning in that position and was the one that assisted Johnson on multiple occasions as the custodian of public records, Nichols engaged in conduct involving deceit and misrepresentation in violation of Rule 8.4(c). By misrepresenting to the Court that Julie George was the person acting as custodian of public records and not David Kalbacher; without informing the Court; in an attempt to prevent Mr. Kalbacher from testifying; that Kalbacher was the one functioning in that position and was the one that assisted Johnson on multiple occasions as the custodian of public records, Nichols engaged in conduct that is prejudicial to the administration of justice, in violation of Rule 8.4.
(b)
XIV WILLFUL MISREPRESENTATION BEFORE THE TRIBUNAL PURPORTED THREATS TO STATE OFFICIALS 396. Although, attorney Nichols has misrepresented the facts time and time again before the tribunal, one of the most outrageous statements that he ever made before the tribunal was made before Judge Pittman on 9 November 2009, during his Motion To Quash. 397. Nichols, during oral argument, was trying everything he could to quash the subpoenas served on the Board staff by Johnson; and in a crowded courtroom where Johnson was the only African American in the room, Nichols stated loudly that Johnson has repeatedly requested to meet with the members of the Board staff, but those requests have been denied because Mr. Johnson has threatened members of the Board staff.
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398. When he made this outrageously false statement, every head in the room, including Judge Pittmans turned and everyone stared at Johnson as if he were some out of control thug. Johnson couldnt believe that Nichols had made such a false claim; and as he waited for Judge Pittman to ask the obvious question: Mr. Nichols, what steps have you taken to prosecute Mr. Johnson for threatening these public officials, who are your clients? Judge Pittman asked no such question, but simply granted the Motion to Quash. 399. Following up with an email and letters, on 6 April 2010 and 19 April 2010, in response to this outrageous lie, Johnson sent letters (R p 398 and R pp 401A-B) to the Board staff that stated, in pertinent part: Lastly, your general counsel, Mr. Nichols, made some troubling statements in court recently that I would like an opportunity to address. Mr. Nichols stated that the reason I could not meet with the board directly was due to an allegation that I had made threats toward members of board. This very serious allegation is absolutely false and I request a complete explanation of this defamatory allegation. 400. In a letter dated 6 April 2010, (R pp 269A-C) Nichols offered a completely different explanation to support the decision to deny Johnson a meeting with the Board staff. Nichols states: In your letter to both Ms. Welch and Ms. George, you have requested a meeting on several other issues. As a matter of long standing practice, neither the Chair nor the Executive Director meet with licensees about discrete matters, particularly those licensees who are involved in disciplinary proceedings, present or past. Therefore, they have asked me to respectfully decline your request for a meeting. 401. Insofar as this explanation differed greatly from the statement he made before Judge Pittman, Johnson asked again for an explanation. In a letter dated 23 June 2010, (R pp 270A-C) Nichols offered another completely different explanation to support the decision to deny Johnson a meeting with the Board staff. Nichols response to a request for an explanation of what he meant when he stated in open court that Johnson had threatened the board staff; was as follows: This request does not fall within the N.C. Statutes definition of public record as stated in paragraph 2 of this response.
402. Again, this explanation differed greatly from the statement he made before Judge Pittman, therefore Johnson asked again for an explanation. Again, in a letter (R pp 272A-B) dated 24 August 2010, Nichols stated the following: As a matter of long standing practice, neither the Chair nor the Executive Director meet with licensees about discrete matters, particularly those licensees who are involved in disciplinary proceedings, present or past. Therefore, they have asked me to respectfully decline your request for a meeting. 403. It is clear that had Johnson actually threatened the staff members of the North Carolina Board of Nursing, a state agency, Nichols would have called the police, obtained an order of protection for his clients, moved the Court for an order to sanction Johnson in some way; or at the very least, been able to answer the question of why he made that statement before Judge Pittman, by stating I stated to Judge Pittman that you had threatened the staff members of the Board because on ____ 200_, you threatened _____ by doing/stating _____. 97
COUNT ONE HUNDRED-NINETEEN 404. Complainant repeats, re-alleges and incorporates by reference the allegations made in paragraphs 1-403 above with the same force and effect as if herein set forth. THEREFORE, Complainant alleges that Defendants foregoing actions constitute grounds for discipline pursuant to N.C. Gen Stat. 84-28(b)(2) in that Nichols violated the revised Rules of Professional Conduct in effect at the time of the conduct as follows: (a) By falsely stating before the tribunal that Johnson had threatened the staff members of the North Carolina Board of Nursing, with full knowledge of the falsity of that statement, Nichols engaged in conduct involving deceit and misrepresentation in violation of Rule 8.4(c). By falsely stating before the tribunal that Johnson had threatened the staff members of the North Carolina Board of Nursing, with full knowledge of the falsity of that statement, Nichols used means that have no substantial purpose other than to embarrass and burden a third person in violation of Rule 4.4(a). By falsely stating before the tribunal that Johnson had threatened the staff members of the North Carolina Board of Nursing, with full knowledge of the falsity of that statement, Nichols knowingly made a false statement of material fact to the tribunal in violation of Rule 3.3(a).
(b)
(c)
XV MISREPRESENTATION AND VIOLATION OF PUBLIC RECORDS ACT 405. From the beginning attorney Nichols has repeatedly stated before multiple tribunals and in several responses to public records requests, that the staff of the North Carolina Board of Nursing investigated Johnsons allegations of misconduct against several nurses and members of the Board staff. However, the evidence is clear that these investigations were not done. 406. On December 15, 2005, Johnson served complaints upon the North Carolina Board of Nursing for the following nurses: Melissa Collins (R p 405), Paula Ross (R p 406), Ebony Dudley (R pp 407A-407B), Donna Mooney (R pp 408A-408B), Mary Howard (R pp 409A-409B) and followed up with a letter on January 17, 2006.
98
407. The North Carolina Board of nursing ignored the complaints for many months and after several attempts by Johnson to obtain an update on the status of the complaints, on August 8, 2006, Julia George, Director Education and Practice Department, finally sent a letter (R p 417) to Johnson that claimed, we give careful and due diligence to all complaints related to patient care and safety. We are held to a standard of ensuring there is both clear and convincing evidence to substantiate a violation of the Nursing Practice Act. We have carefully reviewed the circumstances leading to your concerns and were unable to substantiate violations of the Nursing Practice Act. Therefore, in this instance the Board cannot take formal action. 408. More than just responding to the complaints almost eight months after they were served, the response letter was conspicuously absent the names of Donna Mooney and Mary Howard, both nurse employees of the Board. Inexplicably, the Board staff willfully disregarded the complaints as it pertained to the nurses on the Board staff. 409. However, the decision to simply disregard the complaints just because members of the Board staff were the subject of those complaints; was not legally within their discretion. Under Section 4, 90-171.37 of the Nursing Practice Act, it stated the Board shall (emphasis added) initiate an investigation upon receipt of information about practice that might violate Nursing Practice Act. Therefore, when the Board staff refused to investigate Johnsons complaints, they were violating the Nursing Practice Act. 410. The charges that Johnson made in the complaints were also investigated and substantiated by a North Carolina Department of Health and Human Services (DHHS) investigator during an investigation of the nursing facility from April 19, 2005 through April 21, 2005 (R pp 410-413). The investigators notes were given to the Board staff and were in their custody when they made the amazing statement: We have carefully reviewed the circumstances leading to your concerns and were unable to substantiate violations of the Nursing Practice Act. 411. The DHHS investigator noted that Collins, indeed had improperly administered an IV Push medication (LASIX), (R p 411) even though, as an LPN and not an RN, she was not authorized to do so. The investigator also noted that Collins had given an overdose of narcotic ointment (R p 411) to the patient and that the patient had died. 412. The month after the August 8, 2006 letter from the Board staff stating : We have carefully reviewed the circumstances leading to your concerns and were unable to substantiate violations of the Nursing Practice Act the Board of Nursing held a September 22, 2006 board meeting (R pp 418-427). Attorney Nichols attended that meeting in his role as legal counsel. 413. Nichols did several things at that meeting to ensure the Board staffs refusal to investigate the nurses in Johnsons complaint, would not be addressed by the full Board, prevent the full Board from learning about the charges levied against Mooney, who had perjured herself on the witness stand concerning investigations and subpoenas; and sought legislative cover for violations of the Nursing Practice Act.
99
414. Johnson had refused a settlement offer from the Board staff and opted instead for a full hearing before the full Board where he could cross-exam Mooney and others as to why they had claimed subpoenas had been properly served, why investigations had not been conducted, why Mooney had claimed that LPN Paula Ross charting that all eleven patients receiving a specific medication, all having the exact same pulse rate (76) essentially everyday for 3 weeks was not a violation of the Nursing Practice Act; etc. As trained nurses, the full Board was sure to realize that these complaints of violations of the Nursing Practice Act were valid; so at 11:45am, Nichols met in closed Executive Session with the Board (R p 423) to discuss upcoming litigation concerning Johnson. 415. When the Board came back into public session, they, guided by Nichols held an impromptu public hearing (R p 423) to receive comments regarding proposed revisions of the Nursing Practice Act. These proposed revisions were clearly sought to provide legislative cover for violations of the Act that has already occurred. 416. Insofar as Johnson was repeatedly asking for an explanation as to why the investigations had not been done on the nurses in the complaint; and he also was asking for copies of the investigative reports of the investigations that had been purportedly done in regard to the nurses listed in the complaints; Nichols proposed the Nursing Practice Act be revised by changing the one word in the rule that mandated an investigation upon receipt of a complaint, by making the initiation of an investigation, discretionary. The change was proposed as: Board shall may initiate an investigation upon receipt of information about practice that might violate Nursing Practice Act.
417. Attorney Nichols also presented a report and discussed Johnsons refusal to accept a settlement offer. He also asked for and received the Boards authorization (R p 423) to prevent the case from being presented to the Board and transfer the hearing to the Office of Administrative Hearings where the violations of the Nursing Practice Act would be less likely to be questioned by the Board. 418. As further evidence that Johnsons complaint was disregarded and that the Board staff failed to investigate the charges in Johnsons complaint; during this entire process, The North Carolina Board of Nursing website placed a caution symbol with the words Under Investigation (R p 428) on Johnsons license verification page. When asked why, this was, Nichols stated that it was common practice for all nursing licenses under investigation. However, a check of the other nurses license verification pages (R pp 429-434) that were purportedly under investigation during the same period showed a complete absence of any caution symbol with the words Under Investigation. When questioned about this inconsistency, Nichols refused to explain. 100
419. As an attorney representing his client, The North Carolina Board of Nursing, Nichols had the fiduciary and ethical duty of full disclosure of the evidence, allegations and circumstances surrounding the complaints. However, it is clear that Nichols not only kept the Board in the dark, but also used deception in obtaining the Boards approval to seek and obtain legislative cover for past misconduct; thereby abdicating his responsibility in favor of helping the Board staff conceal misconduct from the Board.
COUNT ONE HUNDRED-TWENTY 420. Complainant repeats, re-alleges and incorporates by reference the allegations made in paragraphs 1-419 above with the same force and effect as if herein set forth. THEREFORE, Complainant alleges that Defendants foregoing actions constitute grounds for discipline pursuant to N.C. Gen Stat. 84-28(b)(2) in that Nichols violated the revised Rules of Professional Conduct in effect at the time of the conduct as follows: (a) By deceiving his client, The North Carolina Board of Nursing, in order to obtain their approval to move Johnsons hearing from the Board to the Office of Administrative Hearings, to prevent his client form discovering the misconduct of his clients staff, Nichols engaged in conduct involving deceit and misrepresentation in violation of Rule 8.4(c).
COUNT ONE HUNDRED-TWENTY-ONE 421. Complainant repeats, re-alleges and incorporates by reference the allegations made in paragraphs 1-420 above with the same force and effect as if herein set forth. THEREFORE, Complainant alleges that Defendants foregoing actions constitute grounds for discipline pursuant to N.C. Gen Stat. 84-28(b)(2) in that Nichols violated the revised Rules of Professional Conduct in effect at the time of the conduct as follows: (a) By deceiving his client, The North Carolina Board of Nursing, in order to obtain their approval to seek and obtain a legislative rule change to the Nursing Practice Act, to make investigations discretionary; without informing his client that his purpose was to conceal the fact that their staff had violated the Nursing Practice Act by failing to conduct statutorily mandated investigations, Nichols engaged in conduct involving deceit and misrepresentation in violation of Rule 8.4(c).
101
COUNT ONE HUNDRED-TWENTY-TWO 422. Complainant repeats, re-alleges and incorporates by reference the allegations made in paragraphs 1-421 above with the same force and effect as if herein set forth. THEREFORE, Complainant alleges that Defendants foregoing actions constitute grounds for discipline pursuant to N.C. Gen Stat. 84-28(b)(2) in that Nichols violated the revised Rules of Professional Conduct in effect at the time of the conduct as follows: (a) By deceiving The North Carolina Legislature, in order to obtain their approval to seek and obtain a legislative rule change to the Nursing Practice Act, to make investigations discretionary; without informing them that his purpose was to conceal the fact that Board staff had violated the Nursing Practice Act by failing to conduct statutorily mandated investigations, Nichols engaged in conduct involving deceit and misrepresentation in violation of Rule 8.4(c).
423. Johnson repeatedly asked the Board staff for the public records of the purported investigations. Johnson requested the public records of the complaints, to include when the Board became aware of the allegations; and when or if investigations were begun. On August 21, 2006, Nichols, amazingly responded by stating (R p 321) G.S. 132-1.4 indicates that records of investigations conducted by public law enforcement agencies are exempt from the definition of a public recordThe NCBON is charged with investigating violations of the Nursing Practice Act and therefore meets this definition. Thus, any records connected with an investigation conducted by NCBON are not subject to the Public Records Act. 424. North Carolinas Public Records Law G.S. 132-1.4 is one of the toughest in the nation, however under Nichols misinterpretation of the law, NO state agency would have to respond to a public records request, because almost every agency investigates, in one way or the other, violations of law. 425. Additionally, at the time of Nichols response, the Board staff stated that they had concluded their investigations as they related to Johnsons complaint, making those reports public record. Even law enforcement agencies reports of investigations, become public record at the conclusion of the investigation. Also, even when law enforcement agency investigation reports are not considered public record, certain aspects of the reports are always public record. 426. Notwithstanding Nichols improper interpretation of "Records of criminal investigations", G.S. 132-1.4(c) states the time, date, and nature of a violation of the law; the name, sex, age, address, employment, and alleged violation; the contents of communications between or among employees of the public agency that are broadcast over the public airways (internet); are all public records and Nichols refusal to release this minimum information, was improper and a violation of state law. 102
427. The North Carolina Attorney Generals office has issued guidelines for the public and state agencies concerning public records, entitled Guide to Open Government and Public Records. (R p 435) Within this guide the Attorney General answers the question: 6. Which government agencies must permit inspection and furnish copies of records? All state agencies must permit inspection and furnish copies of public records.
COUNT ONE HUNDRED-TWENTY-THREE 428. Complainant repeats, re-alleges and incorporates by reference the allegations made in paragraphs 1-427 above with the same force and effect as if herein set forth. THEREFORE, Complainant alleges that Defendants foregoing actions constitute grounds for discipline pursuant to N.C. Gen Stat. 84-28(b)(2) in that Nichols violated the revised Rules of Professional Conduct in effect at the time of the conduct as follows: (a) By refusing to cooperate with a lawful public records request, by stating the North Carolina Board of Nursing is a law enforcement agency and therefore exempt from the public records law, Nichols unlawfully obstructed Johnsons access to evidence and unlawfully concealed a document having potential evidentiary value, in violation of State Bar Rule 3.4(a).
429. Nichols has repeatedly complained in writing and in oral argument before multiple tribunals, that he was hampered from producing public records to Johnson, because Johnson asked for multiple documents, but placed a $20 cap on what he was willing to pay for copying. (R p 321) However, Johnson always asked to come to the board offices, inspect the public record, flag the documents he wanted and then pay for the copying of each, as he had done several times with David Kalbacher. Nichols would state that Johnson could not arrive at the offices to inspect the record, further state that he would compile the documents and mail them.
103
430. Therefore, Johnson had to place a monetary cap on the public records request, due to Nichols propensity for responding to a request for a specific document by sending hundreds of pages of unrelated documents and then demanding payment. Years later, Nichols was still misrepresenting Johnsons $20 monetary cap on the copying costs of public records, as evidenced by an October 12, 2009 email (R p 173). 431. Over the years, Johnson has repeatedly requested the public records and Nichols has repeatedly failed to comply with the public records law. Nichols convinced the Board staff to not allow Johnson to review the public records at the Board offices. He initially stated that the Board staff had simply asked that Johnson coordinate his public records request through Nichols law office. Nichols never offered a legal justification for this action. However, under the public records law, 132-7, All public records should be kept in the buildings in which they are ordinarily used.
COUNT ONE HUNDRED-TWENTY-FOUR 432. Complainant repeats, re-alleges and incorporates by reference the allegations made in paragraphs 1-430 above with the same force and effect as if herein set forth. THEREFORE, Complainant alleges that Defendants foregoing actions constitute grounds for discipline pursuant to N.C. Gen Stat. 84-28(b)(2) in that Nichols violated the revised Rules of Professional Conduct in effect at the time of the conduct as follows: (a) By refusing to allow Johnson to inspect the public record at the place they are held, and then misstating to the tribunal that Johnson had requested copious unrelated documents for which he had either refused to pay for; or had set an unreasonable monetary limit for copying costs, Nichols unlawfully obstructed Johnsons access to evidence and unlawfully concealed a document having potential evidentiary value, in violation of State Bar Rule 3.4(a). By refusing to allow Johnson to inspect the public record at the place they are held, and then misstating to the tribunal that Johnson had requested copious unrelated documents for which he had either refused to pay for; or had set an unreasonable monetary limit for copying costs, Nichols engaged in conduct involving deceit and misrepresentation in violation of Rule 8.4(c). By refusing to allow Johnson to inspect the public record at the place they are held, and then misstating to the tribunal that Johnson had requested copious unrelated documents for which he had either refused to pay for; or had set an unreasonable monetary limit for copying costs, Nichols used means that have no substantial purpose other than to embarrass and burden a third person in violation of Rule 4.4(a); 104
(b)
(c)
433. Johnson repeatedly requested the reports of the investigations and during the litigation discovery process and through public records requests. In every instance Nichols repeatedly refused, citing various implausible reasons to deny turning over the records. 434. In his January 24, 2007 response to discovery, (R pp 36A-36K) Nichols stated that an inquiry into allegations of misconduct of Ross and Collins was initiated on June 20, 2005 and concluded on July 1, 2005. Mooney confirmed under cross-examination (R pp 333-335) that an inquiry was done by nurse investigator Howard. Nichols further stated that upon receipt of Johnsons December 15, 2005 complaint, investigations were initiated on Ross and Collins on January 17, 2006 and concluded on June 14, 2006. 435. Nichols goes on to allege in his discovery response, that the investigator, who he identifies as Julie George, Director of Practice and Education, interviewed Collins, Ross, several others, and LPN Wanda Seymour. However Ms. Seymour denies she was ever interviewed by anyone from the Board of Nursing, but she does state that an attorney representing the nursing facility interviewed her. 436. Nichols also alleged that the Board is unable to determine the exact documents that were reviewed because the Boards Records Retention Policy for closed cases sends them to archives and the files cannot be obtained in a short period of time for discovery. However, Kalbacher coordinated the inspection of Johnsons NCBON file in the Boards offices and Johnson was made aware that all of the supporting documents were file-stamped and held in the manila folders of the Boards records that are statutorily maintained on site.
COUNT ONE HUNDRED-TWENTY-FIVE 437. Complainant repeats, re-alleges and incorporates by reference the allegations made in paragraphs 1-436 above with the same force and effect as if herein set forth. THEREFORE, Complainant alleges that Defendants foregoing actions constitute grounds for discipline pursuant to N.C. Gen Stat. 84-28(b)(2) in that Nichols violated the revised Rules of Professional Conduct in effect at the time of the conduct as follows: (a) By claiming that there had been multiple inquiries and investigations into the allegations raised in Johnsons complaint; and then refusing to turn over the records of those inquiries and investigations during the litigation discovery process, by falsely claiming the records were somehow unattainable, Nichols unlawfully obstructed Johnsons access to evidence and unlawfully concealed a document having potential evidentiary value, in violation of State Bar Rule 3.4(a).
105
COUNT ONE HUNDRED-TWENTY-SIX 438. Complainant repeats, re-alleges and incorporates by reference the allegations made in paragraphs 1-437 above with the same force and effect as if herein set forth. THEREFORE, Complainant alleges that Defendants foregoing actions constitute grounds for discipline pursuant to N.C. Gen Stat. 84-28(b)(2) in that Nichols violated the revised Rules of Professional Conduct in effect at the time of the conduct as follows: (a) By claiming that there had been multiple inquiries and investigations into the allegations raised in Johnsons complaint; and then refusing to turn over the records of those inquiries and investigations during the litigation discovery process, by falsely claiming the records were somehow unattainable, Nichols failed to make a reasonably diligent effort to comply with a legally proper discovery request by an opposing party, in violation of Rule 3.4(d)(2).
COUNT ONE HUNDRED-TWENTY-SEVEN 439. Complainant repeats, re-alleges and incorporates by reference the allegations made in paragraphs 1-438 above with the same force and effect as if herein set forth. THEREFORE, Complainant alleges that Defendants foregoing actions constitute grounds for discipline pursuant to N.C. Gen Stat. 84-28(b)(2) in that Nichols violated the revised Rules of Professional Conduct in effect at the time of the conduct as follows: (a) By claiming that there had been multiple inquiries and investigations into the allegations raised in Johnsons complaint; and then refusing to turn over the records of those inquiries and investigations during the litigation discovery process, by falsely claiming the records were somehow unattainable, Nichols engaged in conduct that is prejudicial to the administration of justice, in violation of Rule 8.4.
106
440. Nichols initially stated the investigation records were not available through discovery or public records request because the Board is a law enforcement agency and therefore the records of ongoing investigations are not public. When Johnson pointed out that the records are public upon conclusion of the investigation, Nichols stated the records were confidential under the HIPPA privacy rule. 441. However, when Johnson pointed out that the records of investigations are not covered by the HIPPA Privacy Rule and that any confidential information within the documents could easily be redacted, Nichols then stated the records were attorney-client protected between the board and himself. 442. Johnson then pointed out that he was not seeking any records that were between the Board and their attorney, but was looking to inspect the records of the investigations that were purportedly conducted, at taxpayer expense, by the Boards nursing investigators. It was absolutely clear that no substantive investigations were conducted and although evidence of the overdose of the patient and the improper IV Push medication administration, which may have clearly led to the death of the patient, was confirmed by DFS and presented to the Board staff, the clearest evidence that no investigations were done is that the complaint alleged and the documents revealed that Ross had documented that all eleven patients had essentially the same pulse rate of 76, everyday she worked for 3 weeks. Nichols knew that no nurse could write an investigative report stating that was possible, so he used various misleading rationale to support his decision not to turn over the purported records of investigations.
COUNT ONE HUNDRED-TWENTY-EIGHT 443. Complainant repeats, re-alleges and incorporates by reference the allegations made in paragraphs 1-442 above with the same force and effect as if herein set forth. THEREFORE, Complainant alleges that Defendants foregoing actions constitute grounds for discipline pursuant to N.C. Gen Stat. 84-28(b)(2) in that Nichols violated the revised Rules of Professional Conduct in effect at the time of the conduct as follows: (a) By falsely claiming that he could not release the records of investigations because the Board was a law enforcement agency, then because they were confidential under the HIPPA Privacy Rule, then because they were attorney-client privileged, Nichols engaged in conduct that is prejudicial to the administration of justice, in violation of Rule 8.4.
107
NORTH CAROLINA STATE BAR COMPLAINT Monroe Jackson Nichols Page 108 of 111 COUNT ONE HUNDRED-TWENTY-NINE 444. Complainant repeats, re-alleges and incorporates by reference the allegations made in paragraphs 1-443 above with the same force and effect as if herein set forth. THEREFORE, Complainant alleges that Defendants foregoing actions constitute grounds for discipline pursuant to N.C. Gen Stat. 84-28(b)(2) in that Nichols violated the revised Rules of Professional Conduct in effect at the time of the conduct as follows: (a) By falsely claiming that he could not release the records of investigations because the Board was a law enforcement agency, then because they were confidential under the HIPPA Privacy Rule, then because they were attorney-client privileged, Nichols engaged in conduct involving deceit and misrepresentation in violation of Rule 8.4(c). COUNT ONE HUNDRED-THIRTY 445. Complainant repeats, re-alleges and incorporates by reference the allegations made in paragraphs 1-444 above with the same force and effect as if herein set forth. THEREFORE, Complainant alleges that Defendants foregoing actions constitute grounds for discipline pursuant to N.C. Gen Stat. 84-28(b)(2) in that Nichols violated the revised Rules of Professional Conduct in effect at the time of the conduct as follows: (a) By falsely claiming that he could not release the records of investigations because the Board was a law enforcement agency, then because they were confidential under the HIPPA Privacy Rule, then because they were attorney-client privileged, Nichols unlawfully obstructed Johnsons access to evidence and unlawfully concealed a document having potential evidentiary value, in violation of State Bar Rule 3.4(a).
446. Finally, Nichols purportedly decided to acquiesce and present Johnson with the records of the investigations. However, a close review of the documents (R pp 438-440B) reveals that they were false documents created by Nichols to pretend he was complying with the public records law. 447. To support his earlier contention that the records were attorney client protected, Nichols places the words (R pp 438-440B) ATTORNEY WORK PRODUCT PRIVILEGED COMMUNICATION at the top of the documents. He doesnt say why, after all these years, he finally purportedly releases the documents, even though they are purportedly attorney work product and privileged communication between he and his client. 448. Additionally, as further evidence these documents were falsely created after the fact, in his haste to draft these fraudulent documents, Nichols confused the substantive underlying facts. He states On 1/17/06, the Board received a complaint from Kenneth Johnson, LPN, reporting four (4) nurses However, the actual number was (6), to include Mooney and Howard. 108
449. Additionally, the documents entitled ATTORNEY WORK PRODUCT PRIVILEGED COMMUNICATION were curiously authored by Julie George, not by attorney Nichols. It is unlikely that a non-lawyer would draft a document entitled ATTORNEY WORK PRODUCT PRIVILEGED COMMUNICATION. 450. Nichols states in his document that Johnson had it out for Ross; and Each of the allegations by this former employee (Johnson) was found to be without merit. However, it was the Division of Facility Services investigator that had confirmed the violations after they had conducted their own investigation. 451. Nichols repeatedly stated within pleadings and during oral argument before the Court, that Johnson could no longer meet with the Board staff to inspect the record because the Board now maintains it in electronic. However, on September 17, 2009, Shanon Gerger, Nichols paralegal sent an email (R p 206) that stated Our office has been contacted by Mr. Kalbacherin regards to your public records request. Our office will be receiving your Board file around lunchtime. Please contact me to set a time where you can come in and review the file 452. The next day Gerger followed up with another email and stated I have scanned in most of your file but the have broken the scanner in the process. However, Nichols falsely stated in his November 6, 2009 Motion to Quash (R pp 402A-B) The Board maintains its filesin an electronic format. The undersigned [Nichols] does not maintain Board filesSince Defendant placed a $20.00 limitation for copies, his file was scanned and emailed to him. 453. Amazingly, he tells the Court that Johnson cant simply arrive and review the records because they are maintained in electronic format; and also amazingly, within the same document, he also tells the Court that his office did receive the file and manually scanned it. A closer look at the Motion to Quash also reveals that to support the motion and prevent his testimony concerning the records, he told the Court that he does not maintain the records. Although this is true, his statement misrepresents that he had custody and control over those records and controlled Johnsons access to the records.
COUNT ONE HUNDRED-THIRTY-ONE 454. Complainant repeats, re-alleges and incorporates by reference the allegations made in paragraphs 1-453 above with the same force and effect as if herein set forth. THEREFORE, Complainant alleges that Defendants foregoing actions constitute grounds for discipline pursuant to N.C. Gen Stat. 84-28(b)(2) in that Nichols violated the revised Rules of Professional Conduct in effect at the time of the conduct as follows: (a) By presenting false documents as genuine record attorney work product internal communication internal working notes, and knowing them to be false and created to deceive, Nichols engaged in conduct involving deceit and misrepresentation in violation of Rule 8.4(c). 109
NORTH CAROLINA STATE BAR COMPLAINT Monroe Jackson Nichols Page 110 of 111 COUNT ONE HUNDRED-THIRTY-TWO 455. Complainant repeats, re-alleges and incorporates by reference the allegations made in paragraphs 1-454 above with the same force and effect as if herein set forth. (a) By misrepresenting to the tribunal that he did not maintain the records, without also informing the Court that he had custody and control over the records and controlled Johnsons access to them, Nichols engaged in conduct involving deceit and misrepresentation in violation of Rule 8.4(c).
COUNT ONE HUNDRED-THIRTY-THREE 456. Complainant repeats, re-alleges and incorporates by reference the allegations made in paragraphs 1-455 above with the same force and effect as if herein set forth. (a) By misrepresenting to the tribunal that Johnson could not simply inspect the records because they are maintained in electronic form, without also informing the Court they are also maintained as a paper file copy, Nichols engaged in conduct involving deceit and misrepresentation in violation of Rule 8.4(c). SUMMARY 457. Guided by racial animus, ego and guile, and an opportunity to steal money from the people of North Carolina, attorney Monroe Jackson (Jack) Nichols, began this endeavor by simply covering up a lie. When he discovered that Johnson wasnt going to simply acquiesce to the misconduct, he told increasingly more and more lies to support the first one. Along the way, he decided to repeatedly violate the North Carolina Rules of Professional Conduct, as well as state and federal law. He stole evidence and lied about it when discovered. He lied to judges, state agencies and co-workers and it seems, maybe even to himself. He determined there was money to be made from an agency that had abdicated its oversight responsibilities to him. A copy of this complaint will be served on multiple state and federal agencies, members of the legislature, the judiciary, and several media outlets. I will attend any and all hearings, meetings and be available by phone or in person to answer any question of the State Bar investigators or investigators of any state or federal agency investigating these charges. I request, consistent with the State Bar rules, that all documents that I am allowed to review, such as the Defendants response, be forwarded to me. This, the 25th day of October 2011.
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Jack Nichols State Bar Complaint

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NORTH CAROLINA STATE BAR COMPLAINT Monroe Jackson Nichols Page 1 of 111

STATE OF NORTH CAROLINA COUNTY OF WAKE

THE GRIEVANCE COMMITTEE OF THE NORTH CAROLINA STATE BAR ) ) ) ) ) ) ) ) )

Complainant, complaining of Defendant, alleges and says;

PETITION FOR JUDICIAL REVIEW

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