willie d. gilbert, ii v. north carolina state bar
DESCRIPTION
Like Attorney Betsy Wolfenden, Attorney Willie Gilbert sues the North Carolina State Bar for constitutional violations, vindictive prosecution, civil conspiracy to interfere with business and contractual relations, and defamation.TRANSCRIPT
IN THE UNITED STATES DISTRICT COURTFOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DNISIONN S":(),-c.",-:J'3-Po. __ ~ _ FILED
WILLIE D. GILBERT, II ))
Plaintiff, ))
v. ))
THE NORTH CAROLINA STATE BAR; and )A. ROOT EDMONSON, individually and in his )official capacity as an agent of the North Carolina )SWeB~ )
)Defendants. )
--------------------------------)
AUG J 12009~,.. ..•.-.....,. ... ' ..111 OfSTJitl{ •. ,,'\.., . .8Y G. ~--COMPLAINT --'1?'.~_ v-, ---.
Plaintiff, complaining of the Defendants, hereby alleges and says as follows:
OVERVIEW OF THE ACTION
1. This is a civil rights action by which the Plaintiff, an attorney duly licensed to
practice law in the State of North Carolina, seeks, inter alia. to temporarily restrain, and to
preliminarily and permanently enjoin an attorney disciplinary proceeding that the North Carolina
State Bar has filed against the Plaintiff and is prosecuting in bad faith and for vindictive reasons.
2. As set forth in greater detail below, this Complaint alleges that, for at least the last
nine (9) years, the North Carolina State Bar has engaged in an ongoing, systematic, and wide-
ranging series of legal and administrative tactics that unnecessarily, unjustifiably, and by
inappropriate and unlawful means seek to: (a) prevent the Plaintiff from exercising his
constitutional right to practice law; (b) harass, menace, and intimidate the Plaintiff; and (c)
retaliate against the Plaintiff for having exercised his clearly established and lawful right to
defend himself zealously against repeated claims and charges of professional misconduct
Case 5:09-cv-00383-D Document 7-13 Filed 08/27/09 Page 1 of 45
brought, not by his own clients, but by the North Carolina State Bar.
3. While the more generalized aspects of this Complaint reveal a need for
meaningful checks and balances on the way the North Carolina State Bar exercises its
disciplinary power and authority, the more specific allegations expose the abusive and unlawful
manner in which the North Carolina State Bar has exercised that power and authority with
respect to the Plaintiff, highlight the Plaintiffs so far futile efforts to put an enduring stop to this
abuse of power and authority, and underscore the inescapable conclusion that federal court
intervention is now necessary to put a permanent stop to the abusive and unlawful conduct in
which the North Carolina State Bar has been engaging.
4. As set forth below, the wrongful acts at issue in this case have caused the Plaintiff
to sustain a multitude of damages, and the Plaintiff is entitled to recover a judgment against the
defendants consisting of monetary, declaratory, and injunctive relief.
5. It is against this backdrop that the following more specific factual allegations are
made.
THE PARTIES
6. Plaintiff Willie D. Gilbert, IT ("Plaintiff') is a citizen and resident of Wilson,
Wilson County, North Carolina.
7. Defendant The North Carolina State Bar (hereinafter sometimes referred to as
"the State Bar") is an agency of the State of North Carolina created under and by virtue of Article
4 of Chapter 84 of the North Carolina General Statutes.
8. Upon information and belief, Defendant A. Root Edmonson ("Edmonson") is a
citizen and resident of Raleigh, Wake County, North Carolina. Edmonson is employed as a
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prosecutor in the North Carolina State Bar's Office of Counsel, and is being sued here both in his
individual capacity and in his official capacity as an agent of The North Carolina State Bar.
JURISDICTION AND VENUE
9. This is a civil rights action under 42 U.S.C. § 1983 for the violation of Plaintiffs
rights under the First and Fourteenth Amendments of the United States Constitution, for the
violation of Plaintiffs rights under the federal common law. and for the violation of Plaintiffs
rights under various related North Carolina state laws.
10. This Court has original jurisdiction over the subject matter of this action pursuant
to 28 U.S.C. §§ 1331 and 1343.
11. This Court has supplemental jurisdiction over the related state law claims that
have been asserted herein pursuant to 28 U.S.C. § 1367.
12. Venue of this action in the United States District Court for the Eastern District of
North Carolina is proper pursuant to 28 U.S.C. § 1391(b), in that, as herein alleged: (a) each of
the defendants named herein resides in this judicial district; and (b) a substantial part of the
transactions, occurrences and events giving rise to Plaintiffs claims occurred within this judicial
district.
FACTUAL BACKGROUND
13. Plaintiff is a 1987 magna cum Laude graduate of North Carolina A&T State
University, and a 1990 cum Laude graduate of North Carolina Central University School of Law.
14. In July of 1990, Plaintiff took and passed the North Carolina Bar Examination,
and, in August of 1990, obtained a license to practice law in the State of North Carolina from the
North Carolina Board of Law Examiners.
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15. For two years immediately following his licensure, the Plaintiff served the people
of the State of North Carolina as a judicial law clerk, first for the North Carolina Court of
Appeals (from 1990-91) and later for the United States District Court for the Eastern District of
North Carolina (from 1991-92).
16. Plaintiff then entered the private practice of law, where, for the next three and
one-half years, he practiced as a litigation associate at one of North Carolina's oldest and largest
law firms.
17. In January of 1996, Plaintiff established his own law firm and embarked upon the
sole practice of law. In July of 1999, the outrage that has become the historical background of
this case first began to take shape.
18. As previously stated, the North Carolina State Bar is an agency of the State of
North Carolina created under and by virtue of Article 4 of Chapter 84 of the North Carolina
General Statutes. Though the Plaintiff questions the constitutionality of numerous aspects of
Article 4 of Chapter 84 under the North Carolina Constitution, the North Carolina State Bar,
under the putative authority of Chapter 84, has traditionally governed itself by and through a
body known as the "North Carolina State Bar Council," and has regulated the professional
conduct of attorneys licensed to practice law in the State of North Carolina by and through both
the North Carolina State Bar Council itself, and through a commission known as the Disciplinary
Hearing Commission.
19. In furtherance of its putative authority to regulate the professional conduct of
licensed attorneys, the State Bar regularly investigates and prosecutes claims of alleged attorney
misconduct, and, by and through its Disciplinary Hearing Commission (hereinafter sometimes
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referred to as the "DHC"), regularly holds hearings to determine whether an attorney is subject to
being disciplined for engaging in alleged professional misconduct.
20. To that purported end, on September 12, 2003, the North Carolina State Bar filed
a Complaint with its Disciplinary Hearing Commission alleging that in April of 1998, the
Plaintiff had misspent $290 in client funds, and therefore was subject to professional discipline
pursuant to N.C. Gen. Stat. § 84-28. ~ Exhibit A. It is this attorney disciplinary action, styled
The North Carolina State Bar v. Willie D. Gilbert, II, No. 03 DHC 16 (hereinafter sometimes
referred to as "Gilbert III"), and currently pending before the Disciplinary Hearing Commission
of the North Carolina State Bar, which the Plaintiff seeks to have this Court temporarily,
preliminarily, and permanently enjoin from proceeding any further on the grounds that it is being
prosecuted in bad faith and for vindictive reasons.
21. Although the disciplinary proceeding sought to be enjoined in this case (i.e.,
Gilbert III) was filed by the State Bar on September 12,2003, in order to appreciate the context
in which the case sub judice has been brought, one cannot ignore the adversarial aspects of the
parties' history with one another, which began more than 10 years ago on or about July 19, 1999.
Cf. United States v. P.H.E.. Inc., 965 F.2d 848,857 (lOth Cir. 1992)(examining "prosecutorial
conduct dating back some five years"); Shaw v. Garrison, 467 F.2d 113, 114-15 (5th Cir. 1972)
(same); Wichert v. Walter, 606 F. Supp. 1516, 1521 (D. N.J. 1985)(examining bad faith claim in
light of "the surrounding circumstances" and "the context in which the charges were brought").
22. More specifically, on or about July 19, 1999, the Plaintiff was served with a
"grievance" alleging that he had engaged in professional misconduct while representing one of
his former clients before the North Carolina Industrial Commission. This grievance, dated July
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13, 1999, was not filed by the subject former client, but was filed by and in the name of the
North Carolina State Bar.
23. Along with the July 13, 1999 grievance with which the Plaintiff was served came
a Subpoena requiring him to turn over to the State Bar all of his trust account records for the
period of January 1, 1998 to the present. Specifically, the Plaintiff was required to turn over "all
records relating to any account into which client or fiduciary funds have been deposited from
Jan. 1, 1998 to the present, including, but not limited to cancelled checks, deposited items,
deposit slips, debit memos and monthly bank statements."
24. Shortly after receiving the State Bar's July 13, 1999 grievance and Subpoena (to
wit, later that same month), the Plaintiff provided the State Bar not only with copies of all of the
subpoenaed trust account records that were in his possession, but also with a "Release" granting
the State Bar direct and unrestricted access to those of the subpoenaed trust account records that
were in the possession of the bank at which the Plaintiff had been maintaining his trust account.
In fact, the Release for the Plaintiffs trust account records was provided to the State Bar on the
very same day that the Plaintiff was served with the Subpoena for copies of the records (i.e., on
July 19, 1999).
25. Pursuant to a subsequent request by the State Bar for copies of his operating
account records, on or about October 6, 1999, the Plaintiff also provided the State Bar with: (a)
copies of his operating account records for the period of January I, 1998 to the present; and (b) a
second "Release," covering the period of January 1, 1995 until revoked, and granting the State
Bar direct and unrestricted access to those of the Plaintiffs operating account records that were
in the possession of the bank at which the Plaintiff maintained his operating account.
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26. In addition to providing copies of, and voluntarily permitting the State Bar's
access to, his attorney trust and operating account records in July and October of 1999,
respectively, the Plaintiff also consented at or about the same time (by way of a Consent Order of
Preliminary Injunction) to having his entire trust account, including his own access thereto,
completely frozen. In fact, since the Consent Order freezing the Plaintiff's trust account has
never been lifted or dissolved, the reality is that, since July of 1999, there has been no activity in
the Plaintiff's trust account, there has been no change in the records that reflect the transactions
involving the Plaintiffs trust account, and the State Bar has been in possession of, and has had
direct and unrestricted access to, all of the Plaintiffs trust account records covering the period of
January 1, 1998 through at least July 19, 1999.
27. On February 15,2000, the State Bar filed a Complaint with the Disciplinary
Hearing Commission of the North Carolina State Bar alleging, in pertinent part, that in 1998 and
1999, the Plaintiff had "misappropriate[ed]" the trust account funds of not only the Industrial
Commission client mentioned in the July 1999 "grievance", but also at least three additional
clients who never before had complained about the Plaintiffs conduct and who previously had
not been mentioned by the State Bar -- Michelle Munavalli, Sanjay Munavalli (collectively "the
Munavallis"), and one or more unnamed "clients". That case was styled The North Carolina
State Bar v. Willie D. Gilbert. Attorney, No. 00 DHC 3 (hereinafter "Gilbert I"). See Exhibit B.
28. On Apri126, 2000, and without affording the Plaintiff an opportunity to be heard,
the State Bar sought and obtained from the DHC ang parte Order allowing it to amend its
original Complaint in Gilbert I. J In its Amended Complaint, the State Bar, among other things,
dropped its original allegation that the Plaintiff had misappropriated money from the Munavallis,
The State Bar's g parte motion to amend the Complaint was filed more than 6 weeks after the Plaintiff hadfiled and served his answer to the Complaint.
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and substituted therefor two entirely new and substantively different allegations -- one of which
alleged that notwithstanding the existence of an express agreement between the Plaintiff and the
Munavallis that permitted the Plaintiff to do so, the Plaintiff violated the Revised Rules of
Professional Conduct by accepting reimbursement from the Munavallis for the costs of certain
expenses. See Exhibit c.
29. Significantly, neither the original Complaint, nor the Amended Complaint in
Gilbert I alleged that the Plaintiff had taken any other steps that constituted a mishandling or
misappropriation of client funds in 1998.
30. At no time prior to the February IS, 2000 filing of the Complaint in Gilbert Idid
the Munavallis lodge a complaint or grievance with, or otherwise notify the North Carolina State
Bar or the Plaintiff that they had any lingering concerns or complaints about the Plaintiffs
conduct or quality of representation. Nor at any time prior to the filing of the Complaint in
Gilbert I did the State Bar notify or give the Plaintiff an opportunity to respond to any claim or
charge that there was a question about his conduct during his representation of the Munavallis.
31. The preceding circumstances suggest that the State Bar instigated the conflict
concerning the Munavallis in Gilbert I. and that it did so by covertly resurrecting (i.e.,
unbeknownst to the Plaintiff) an issue that, for nearly two years, was treated and regarded by the
interested parties as having been satisfactorily resolved.
32. Prior to July 17, 2000, which was the first day of the disciplinary hearing in
Gilbert I, the State Bar urged or otherwise encouraged Michelle Munavalli, who as stated had not
previously raised a complaint or filed a grievance with the State Bar about the Plaintiff s
conduct, fees or expenses, to file an application with the North Carolina State Bar Client Security
Fund ("Client Security Fund") for reimbursement ofaB the attorney's fees and expenses she had
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paid the Plaintiff. The State Bar did this despite the fact that more than 2 years earlier (i.e., on or
about May 23, 1998), the Plaintiffs and the Munavallis had negotiated a resolution of all fee and
expense issues between them.
33. The State Bar also did this with the presumed knowledge that under the Rules
Governing the Administration of the Client Security Fund, a valid claim for reimbursement
requires a showing of financial loss as a result of "dishonest conduct" on the part of an attorney,
that the issue of the Plaintiffs honesty/dishonesty vis-a-vis the Munavallis was directly before
the DHC as a result of the allegations made in the State Bar's own Amended Complaint, and
especially that no determination of fraud, dishonesty or any other misconduct on the part of the
Plaintiff had yet been made by the DHC.
34. Indeed, after four days of hearings in Gilbert I, no determination that the Plaintiff
had engaged in any fraudulent, deceitful or dishonest conduct vis-a-vis the Munavallis was ever
made by the DHC.
35. On November 1, 2000, the Disciplinary Hearing Commission entered an Order of
Discipline in Gilbert I. Though the DHC concluded that the Plaintiff had violated certain
provisions of the Revised Rules of Professional Conduct, contrary to the State Bar's demands, it
did not enter an Order of disbarment against the Plaintiff. Instead, the discipline imposed -- a
five-year suspension from the practice oflaw, with the last three years of such suspension being
stayed on certain conditions -- essentially was intended to be a two-year suspension from the
practice of law.
36. On December 4,2000, the Plaintiff filed a Notice of Appeal from the DHC's
Order of Discipline in Gilbert I. As part of the appellate process in that case, and as permitted by
N.C.G.S. § 84-28(h) and Rule 23 of the North Carolina Rules of Appellate Procedure, the
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Plaintiff sought and obtained, first from the North Carolina Court of Appeals, and later from the
North Carolina Supreme Court, two consecutive writs of supersedeas partially staying the
enforcement of the DHC's Order of Discipline.
37. Significantly, these writs of supersedeas did not grant the complete stay of the
Order of Discipline sought by the Plaintiff in Gilbert I. In particular, they did not permit the
Plaintiff to handle or otherwise deal with client or fiduciary funds in any way. Nor did they
permit the Plaintiff to "accept any new retainer or engage as attorney for another in any new case
or legal matter of any nature." Instead, these writs of supersedeas stayed only those aspects of
the Order of Discipline in Gilbert I which, by operation of Rules .0I24(a) and .0124(b) of the
Discipline and Disability Rules of the North Carolina State Bar, otherwise would have required
the Plaintiff to: (a) immediately notify his then-existing clients that he had been suspended; and
(b) either resolve, or withdraw from, the pending litigation matters of these clients within 30
days of the entry of the Order of Discipline.
38. Since the writs of supersedeas issued by the appellate courts in Gilbert I
prohibited the Plaintiff from accepting any new clients or cases, and from handling or otherwise
dealing with any client or fiduciary funds in any way, the practical effect of these writs was
simply to extend, for the benefit of those who were among the Plaintiffs clients as of November
I,2000, the time for the Plaintiff to complete the work that he had been asked to perform by
those clients. Otherwise and consequently, the Plaintiff was unable to practice law in the
customary sense, and effectively began serving the suspension imposed in Gilbert I, from and
after November 1, 2000.
39. Notwithstanding the Plaintiffs inability, even after the issuance of the writs of
supersedeas, to practice law in the customary sense from and after November I,2000, in a July
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23, 2002 letter written in direct response to the issuance of these writs, counsel for the North
Carolina State Bar advised Plaintiffs counsel that the State Bar's intentions were to deal with the
Plaintiff and his reinstatement to the practice of law in such a manner as to discourage the
Plaintiff and similarly situated attorneys from fully exercising their appellate rights "in future
cases" by seeking and obtaining, as part of the appellate process, orders staying or otherwise
affecting the immediate and total enforcement of adverse Orders of Discipline secured by the
State Bar and entered by the DHC. See Exhibit D.
40. On or about January 18,2001, and in spite of the fact that the DHC concluded in
Gilbert I that the Plaintiff had not engaged in any fraudulent, deceitful or dishonest conduct with
respect to Michelle and Sanjay Munavalli, the State Bar caused its Client Security Fund to pay
Michelle Munavalli more than $4,600.00 following her testimony in Gilbert I. This payment,
which the State Bar previously has conceded was meant to be a partial refund of the money that
the MunavaIlis had agreed to pay the Plaintiff pursuant to the negotiated resolution of the fee and
expense issue referenced in the preceding paragraphs, was made in direct contravention of the
Rules Governing the Administration of the Client Security Fund of the North Carolina State Bar,
which require, at a minimum, that an applicant receiving a payment from the Client Security
Fund: (a) be the victim of, and have suffered financial loss as a result of, "dishonest" conduct;
and (b) first seek to collect any amounts claimed to be due directly from the subject attorney.
41. In the Plaintiffs case, Michelle Munavalli never attempted to recover any amount
of money directly from the Plaintiff.
42. Upon information and belief, the payment of more than $4,600.00 to Michelle
Munavalli represents the first time in the history of the North Carolina State Bar that the Client
Security Fund has paid money to the former client of a lawyer (presumably living) who has been
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neither disbarred, nor found by the DHC, after an evidentiary hearing, to have misappropriated
money or to have engaged in fraudulent, deceitful or dishonest conduct with respect to
reimbursed client.
43. Significantly, neither the North Carolina General Statutes, nor the Rules
Governing the Administration of the Client Security Fund of the North Carolina State Bar
provide for a right of appeal from the determinations of the Client Security Fund of the North
Carolina State Bar.
44. Even more significantly, the payment of more than $4,600.00 to Michelle
Munavalli came just a few months after counsel for the State Bar stood before the DHC and,
after resting the State Bar's case-in-chief, unequivocally represented to the chairman of the panel
in Gilbert I that the North Carolina State Bar "[did not] think there was any fraud" involved with
respect to the expenses for which the Client Security Fund nevertheless gave Michelle Munavalli
a "refund".
45. On or about April 18, 2002, the State Bar filed a civil action for conversion
against the Plaintiff in Wake County (N.C.) District Court. That action, which is captioned was
The North Carolina State Bar v. Willie D. Gilbert III [sic], 02 CVD 4961 (hereinafter "Gilbert
[]"), sought to compel the Plaintiff, purportedly under the doctrine of subrogation, to pay the
State Bar, in addition to other sums, not only the $4,600.00+ that it paid to Michelle Munavalli in
direct contravention of the Rules Governing the Administration of the Client Security Fund, but
also double damages pursuant to N.C.G.S. 84-13 (titled, "Fraudulent practice, attorney liable in
double damages"). Stated differently, the goal of the State Bar in Gilbert II was to obtain a
money judgment requiring the Plaintiff to suffer the payment of more than $9,200.00, plus
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interest, as a penalty for engaging in conduct that the State Bar (and the Munavallis) judicially
admitted in Gilbert I was neither fraudulent, deceitful, nor dishonest.
46. Moreover, under the doctrine of subrogation, the State Bar has no greater right to
recover from the Plaintiff than the Munvallis had, and it is subject to the same claims and
defenses that would apply to the Munavallis.
47. On July 16,2002, a divided panel of the North Carolina Court of Appeals
affirmed the November 1, 2000 Order of Discipline entered by the DHC in Gilbert I.
48. On August 20,2002, the Plaintiff appealed the North Carolina Court of Appeals'
decision in Gilbert I to the North Carolina Supreme Court as a matter of right.
49. During his appeal to the Supreme Court, and because of uncertainty regarding the
effect of the appellate courts' writs of supersedeas on the date of the Plaintiffs eligibility for
reinstatement to the practice of law, ~ supra 'ft 36-39, the Plaintiff, in his brief to the Supreme
Court in Gilbert I, specifically asked the Court to address this issue.
50. Notwithstanding the express declaration to Plaintiffs counsel nearly a year before
that the Plaintiffs date of eligibility for reinstatement was indeed going to be a contested issue,
and that the State Bar's intention was to deal with that issue in a manner that would discourage
the Plaintiff and anyone similarly situated from exercising their appellate right to seek and obtain
a writ of supersedeas in future disciplinary cases, counsel for the State Bar misled the Supreme
Court by asserting in the State Bar's appellate brief that it was "not clear that a genuine
controversyexist[ed] as to th[e] issue" of when the Plaintiffs two-year period of suspension
would expire.'
2 Shortly after receiving the State Bar's brief suggesting that there was no genuinecontroversy between the parties as to when the Plaintiffs two-year period of suspension wouldexpire, the Supreme Court affirmed the Court of Appeals' decision in Gilbert I without
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51. On September 10, 2003, the North Carolina Supreme Court held oral arguments
in Gilbert 1.
52. Two days after the North Carolina Supreme Court held oral arguments in Gilbert
1, the State Bar filed the Complaint in Gilbert llI.3
53. In Gilbert III, the State Bar alleges that in April of 1998 -- the same period of time
that was at issue in Gilbert I - the Plaintiff misappropriated for his own use a total of $290 in
client funds by issuing trust account check no. 1078 for $100 to his mother, and trust account
check nos. 1079 and 1081 for $100 and $90, respectively, to an office employee who also was
his fiancee. According to the State Bar, neither the Plaintiff, the Plaintiffs mother, nor his office
employee had any funds that belonged to them in the Plaintiffs trust account and, as a result,
trust account checks numbered 1078, 1079 and 1081 were allegedly paid with funds that were
misappropriated from three of the Plaintiffs other clients known by the last names of Maxwell,
Hailey and Pyrtle.
54. As an apparently alternative theory of liability in Gilbert III, the State Bar also
alleges that even if check nos. 1078, )079 and 1081 were not paid with funds that were
misappropriated from the Plaintiffs clients, then they, nevertheless, were paid with personal
funds that the Plaintiff impermissibly had commingled with client funds.
addressing this crucial issue or making any other comment. Moreover, five days after theSupreme Court's decision in Gilbert I, see infra note 3 (i.e., after all briefing and oral argumentsto the Court had concluded), counsel for the State Bar unilaterally announced in a letter toPlaintiffs counsel that, contrary to the Plaintiffs position, the State Bar intended to treat thePlaintiffs suspension as becoming "effective" as of the issuance of the Supreme Court's mandateand, by implication, to require the Plaintiff to serve an additional two-year period of time duringwhich he would be unable to engage in the practice of law. See Exhibit F.3 On October 2, 2003, the North Carolina Supreme Court affirmed the Court of Appeals'decision in Gilbert Iwithout comment.
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55. Finally, the State Bar also alleges without specificity in Gilbert III that the
Plaintiff failed to "promptly payor deliver" funds that Maxwell, Hailey and Pyrtle had directed
him to pay to certain third parties.
56. Significantly, Gilbert III is based upon and was precipitated by a "grievance" that
was originally filed against the Plaintiff on July 17, 2000. This is significant because July 17,
2000 was: (a) the first day ofthe disciplinary hearing in Gilbert I, and (b) nearly 3 Y2 years
before the State Bar decided to file the Complaint in Gilbert ill based on this very same
"grievance". It is also significant because, by implication of their own terms, both the grievance
forming the basis of Gilbert ill and the Complaint in Gilbert IIIitself arise out of. and are
allegedly based upon, information known to the State Bar prior to the first day of the hearing in
Gilbert I. In fact, the very same trust account checks that are alleged in Gilbert III to represent
purported misappropriations were provided to the State Bar on or about July 19, 1999 -- nearly 1
year before the disciplinary hearing in Gilbert Ieven began.
57. Moreover, as with all previous complaints, charges and grievances filed against
the Plaintiff, save for perhaps one, the July 17, 2000 grievance giving rise to the formal
Complaint in Gilbert illwas not filed by one of the Plaintiff's own clients, but was filed by, and
in the name of, "the North Carolina State Bar".
58 For reasons which appear to be explained by numerous statements and actions of
the State Bar in Gilbert Iand Gilbert III that reveal an attitude of bad faith and vindictiveness
towards the Plaintiff,4 the July 17,2000 written "grievance" giving rise to Gilbert ill contained
the materially false allegations that: (a) the Plaintiff "never presented Maxwell with a
disbursement statement ... ": and (b) "Maxwell received ... less than $500.00[]" from her
4 See,~, supra <JrlI39 and 50; and infra u: 63(1), 63(m), 63(n), 63(p) and 63(q),respectively.
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settlement. These allegations, which were clearly meant to imply that the Plaintiff had short-
changed his client and had attempted to cover up that fact by failing to present the client with a
disbursement statement, were false when they were made, and whoever at the State Bar was
responsible for making them either knew that they were false when they were made, or was
willfully ignorant of the fact that they were false when they were made.
59. Because the July 17,2000 grievance which preceded the filing of Gilbert III
served as a basis not only for invoking the Grievance Committee's jurisdiction, but also for the
Grievance Committee's apparent decision to authorize the filing of the action, Gilbert III was
precipitated by the propagation of intentional misrepresentations of material facts.
60. Gilbert III is but one of the most recent examples in a series of examples of sharp
and unlawful acts and practices that have been designed and intended by the State Bar to: (i)
punish the Plaintiff and to exact from him a price for having avoided the disciplinary punishment
sought by the State Bar in Gilbert I (disbarment); (ii) punish and retaliate against the Plaintiff for
having exercised his statutory and constitutional rights to defend himself zealously against the
claims of misconduct asserted in Gilbert I; (iii) punish and retaliate against the Plaintiff for
having sought appellate review of the decision of in Gilbert I; (iv) erect unnecessary and
unjustified obstacles to the Plaintiff's ability to return to the practice of law and to rebuild his
professional reputation and career, (v) punish and retaliate against the Plaintiff for having
exercised his clearly-established and lawful right to defend himself zealously against the claims
and charges of professional misconduct leveled in Gilbert III; and (vi) otherwise harass, menace
and intimidate the Plaintiff by repeatedly leveling questionable accusations of misconduct and
mounting unexpected legal attacks that the Plaintiff's own clients have not leveled, mounted or
requested. See Exhibit D, at 1.1. 37 and 38.
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61. In fact, the designation "Gilbert ill" is somewhat of a misnomer, since the filing
of the case styled The North Carolina State Bar v. Willie D. Gilbert. II, No. 03 DHC 16 (i.e.,
Gilbert ill), is actually the seventh occasion -- between July of 1999 and September of 2003 -- on
which the State Bar has either initiated, or caused to be initiated, legal proceedings accusing the
Plaintiff of wrongdoing or misconduct that the Plaintiffs own clients have not accused him of
committing."
62. In addition to the dubious acts and practices noted in Paragraph Nos. 27,28,30,
31,32, 33, 39, 40, 42, 44, 45, 46, 50, 52, 56, 57, 58 and 59, above, the series of sharp and
unlawful practices herein complained of include, but are not limited to, the following:
(a) Filing a grievance against and issuing a subpoena for the trust account
records of an attorney-defense witness who, within days, was expected to provide
corroborating testimony on behalf of the Plaintiff in Gilbert 1.6 This grievance, which
was filed the day after this attorney was designated as a defense witness in the Pre-trial
Order in Gilbert I, was also filed by, and in the name of, the North Carolina State Bar.
Shortly after receiving the grievance and subpoena from the State Bar, the attomey-
5 These occasions include the July 1999 grievance filed by, and in the name of, The North Carolina StateBar; the February 2000 Complaint in Gilbert I; the April 2000 Amended Complaint in Gilbert I; the July 2000grievance filed by, and in the name of, The North Carolina State Bar; the July 2000 application for reimbursementfrom the Client Security Fund and the January 2001 proceedings thereon; the April 2002 civil action for conversionfiled in Wake County District Court; and the September 2003 Complaint in Gilbert Ill. However, even theseoccasions fail to account for the State Bar's two appeals and questionable pursuit of a Writ of Prohibition and/orSupersedeas in Gilbert IV, ~ infraU 69-74. and its unilateral opposition to the reinstatement of the Plaintiffs lawlicense on grounds that are dubious at best. See infra l'64-67. All told, and including the four appeals that werespawned by Gilbert I and Gilbert II, since July of 1999, there have been at least 14 different instances in which theNorth Carolina State Bar has, in the absence of client complaints, served as the "plaintiff' or complaining party inlegal proceedings against the Plaintiff in this case.
As a direct and proximate result of prosecuting this case and having to mount defenses to Gilbert I, GilbertII. Gilbert Ill, the Plaintiff alleges that he has sustained monetary losses and incurred debts (in the form of the costsof defense, court costs, expenses, etc.) that are well in excess of $100,000.6 This witness' testimony would have been helpful to the defense in Gilbert I because the most serious issuein that case -- whether a misappropriation of funds had taken place - pitted the word of one of the Plaintiffs clientsagainst the Plaintiffs word, and because this witness' testimony would have tended to corroborate the Plaintiffsversion of events, including the fact that the Plaintiffs handling of the disputed sum of money was consistent withwhat the Plaintiff and the client had agreed.
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(b) Attempting to impeach the credibility of another defense witness in
defense witness became unavailable to testify;
Gilbert I by suggesting that the witness had been convicted of crimes of which the State
Bar knew or should have known the witness had not been convicted; 7
(c) Publishing and publicly distributing in a press release and in the North
Carolina State Bar Journal a notice that the North Carolina State Bar Client Security
Fund, whose express purpose is "to reimburse ... clients who have suffered financial loss
as the result of dishonest conduct of lawyers ... [,]" had awarded $4,627.43 to Michelle
Munavalli, knowing that the Plaintiff had not embezzled any money from or otherwise
practiced any fraud or deceit upon the Munavallis, and knowing that awarding the
Munavallis $4,627.43 was unwarranted and improper under the Rules Governing the
Administration of the Client Security Fund;
(d) Knowingly making the material misrepresentation of fact during oral
arguments before the North Carolina Supreme Court in Gilbert I that the Plaintiff "took
$45,000.00" from one of his clients, when the State Bar's own complaint in that case
asserted that the client had voluntarily paid that sum of money to the Plaintiff as a fee in a
worker's compensation case;
(e) Knowingly making the material misrepresentation offact during oral
arguments before the North Carolina Supreme Court in Gilbert I that the Plaintiff "held
the [Munavallis'] settlement hostage" in order to get the Munavallis to pay expenses,
when, in fact, the Plaintiff and the Munavallis had negotiated and resolved the expense
issue more than 1 month before the Munavallis' settlement funds were ever received;
7 Since the most serious issue in Gilbert I pitted one client's word against the Plaintiff's word, the issue ofwitness credibility was, again, especially important, and the improper effort to impeach the credibility of thiswitness, whose testimony tended to corroborate the Plaintiff's version of events, was especially repugnant.
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63. Most importantly for purposes of the instant lawsuit, the filing of Gilbert III itself
has been motivated by a retaliatory and vindictive animus which makes it clear that the North
Carolina State Bar has filed and is prosecuting Gilbert III in bad faith and for purposes of
retaliation and harassment. This animus and these purposes are reflected by, among other things,
the following indisputable facts:
(a) Gilbert III was precipitated by a "grievance" that was originally filed and
served on the Plaintiff more than 3years prior to the filing of the complaint in Gilbert
III'-'
(b) Gilbert III arises out of and is purportedly based upon information that the
State Bar knew or should have known about in July of 1999, which was approximately
one (1) year prior to the hearing in Gilbert 1;
(c) The claim now being asserted in Gilbert III -- that in 1998 the Plaintiff
"misappropriate[ed]" or otherwise mishandled funds in his trust account -- is essentially
the same claim that previously was asserted, heard and considered in Gilbert I.s In fact,
in its Order of suspension following the hearing in Gilbert I, the DHC made a number of
findings which suggest that it was taking a global approach to discipline by enhancing the
Plaintiffs punishment because of the purported existence, during the relevant period of
time, of a pattern of misconduct and multiple violations of the rules of professional
conduct;
(d) Even if the claim now being asserted in Gilbert III was not previously
asserted, heard and considered in Gilbert I, since the very same trust account checks that
are alleged in Gilbert III to represent purported misappropriations were provided to the
8 See supra 'lI 27.
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State Bar nearly 1 year before the hearing in Gilbert I, the claim now being asserted in
Gilbert III could and should have been asserted, heard and considered in Gilbert I, and is
barred by the doctrines of res judicata and/or collateral estoppel;"
(e) Gilbert III was filed after nearly three years of litigation, and just two days
after the conclusion of oral arguments before the North Carolina Supreme Court, in
Gilbert I;
(f) The State Bar purposefully waited until the Plaintiff had reached the
threshold of eligibility for reinstatement from the suspension imposed in Gilbert I before
filing the Complaint in Gilbert III;
(g) Neither the" grievance" that precipitated Gilbert III, nor the filing of
Gilbert III itself was based upon any complaint or grievance that had been made by any
client of the Plaintiff. Instead, both were generated by one or more agents of the State
Bar acting on their own accord;
(h) The State Bar failed in Gilbert III, as it did in Gilbert I, to notify the
Plaintiff of its investigation of his alleged misconduct with respect to two of his former
clients (viz., Hailey and Pyrtle, who were not mentioned in the State Bar's July 17,2000
grievance that gave rise to Gilbert lID until after it had filed a complaint against him,
thereby denying him the opportunity to respond to the charges and diminishing the
likelihood of a fair and even-handed investigation;
(i) Not one of the Plaintiffs former clients that is mentioned in Gilbert III
now contends, or has ever contended, that they (or anyone on their behalf) failed to
receive from the Plaintiff all of the money to which they were entitled. Nor is there any
9 To the extent that this claim was not encompassed by either the original. or the amended. complaint inGilbert I, nothing prevented the State Bar from seeking to file. as it did with respect to the Munavallis, yet anotheramended complaint.
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evidence that any former client of the Plaintiff that is identified in Gilbert III now
contends, or has ever contended, that the Plaintiff misspent their money, or otherwise
failed to comply with any written, verbal or other agreement, directive or understanding
regarding the care, the maintenance and/or the disbursement of their funds. In fact, it is
now nearly 10 years after the filing of the grievance giving rise to Gilbert III, and the
evidence to date reveals that of the five (5) individuals that are alleged in Gilbert III to
have either received or had funds that were allegedly misappropriated, only one has even
been interviewed by the State Bar;
(j) The grievance that precipitated the filing of Gilbert III contains the
material misrepresentations of fact that: (i) the Plaintiff "never presented [one of his
clients] with a disbursement statement ... "; and (ii) "[that same client] received ... less
than $500.00[)" from her settlement. These allegations, which were clearly meant to
imply that the Plaintiff had short-changed his client and had attempted to cover up that
fact by failing to present the client with a disbursement statement, were false when they
were made, and whoever at the State Bar was responsible for making them either knew,
or was willfully ignorant of the fact that, they were false when they were made;
(k) The authorization for the State Bar to file the complaint in Gilbert III was
secured by using material representations of fact that were false when they were made,
and that were either known, or should have been known, to be false when they were
made;
(1) The State Bar has admitted during discovery in Gilbert ITI that its intent in
Gilbert III is to seek retribution for the Plaintiffs zealous defense of the case by arguing
that the Plaintiffs use of the discovery process and unapologetic defense of the charges
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against him demonstrate a lack of character, which should be used against the Plaintiff to
aggravate any disciplinary sanction that might be imposed, ~ Exhibit D, at,. 38;
(m) The State Bar has admitted during discovery in Gilbert III that it seeks to
have the Plaintiff disbarred in Gilbert III essentially because, according to the State Bar,
the Disciplinary Hearing Commission should have disbarred him, but, contrary to the
State Bar's request, did not disbar him in Gilbert I, ~ Exhibit D, at, 37;
(n) The State Bar has admitted during discovery in Gilbert III that, contrary to
the law of this State, it intends to rely upon conduct post-dating the alleged conduct at
issue in Gilbert III -- to wit, the conduct at issue in Gilbert I -- to establish "prior
disciplinary offenses" as a factor "in aggravation" of any misconduct that might be found
in Gilbert III, ~ Exhibit D, at,. 38; and
(0) Gilbert III was filed more than six (6) years after the Plaintiff last had
professional dealings with two of the three former clients at issue in the State Bar's
complaint, and more than five and one-half (5Y2) years after the Plaintiff last had
professional dealings with the third. The prejudice engendered by the timing of these
stale claims is manifest. Over time, memories fade and witnesses often relocate,
becoming harder and harder to find with each passing day and each successive move.
Moreover, even though the Rules of Professional Conduct did not require the Plaintiff to
retain his trust account records for more than six years after the transactions that
generated them, much of the information that the Plaintiff would need in order to
adequately defend himself and to respond to many of the State Bar's discovery requests in
Gilbert III may not be available, or would require the Plaintiff, unlike any other lawyer in
the State of North Carolina, see Revised Rule of Professional Conduct 1.15-2(b) (1997)
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("A lawyer shall retain [trust and fiduciary account] records for a period of six years
following completion of the transactions generating the record), to search for, hunt for,
recall and/or analyze and reconstruct a plethora of information generated, conversations
had and events taking place as long ago as January of 1996.
(p) During the process of discovery in Gilbert ill, the State Bar produced an
internal memorandum that revealed clearly the State Bar's intention not to press the issues
raised in Gilbert III until the Plaintiff was no longer faced with serving an active
suspension in connection with Gilbert I. In this document. dated October 27, 2000, then-
Deputy State Bar Counselor Larissa J. Erkman directs David Frederick, a State Bar
Investigator, among other things, to interview the client named in the State Bar's July 17,
2000 grievance (i.e., Maxwell, the main witness) in order to get information that the State
Bar should have had before the grievance was even filed, but advises him that, "Because
Mr. Gilbert is currently serving an active two-year suspension, there is no urgency to this
matter. II See Exhibit G.
(q) Elsewhere in this same internal document, Erkman -- at the direction of
the State Bar's chief Counsel, Carolin BakewelI -- further directs Frederick to fish around
in the Plaintiffs operating account for any other contlict or controversy that could be
generated by the State Bar. Erkman wrote:
"Look carefully at Willie Gilbert's operating account to determineif he has deposited costs and fines in his operating account alongwith fees. Carotin indicated that Willie Gilbert practiced with Mr.Hairston and that Mr. Hairston had a practice of doing so. Pleasecheck with Reggie to determine what records we have for Mr.Gilbert's operating account. II
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64. On October 14,2004, nearly four years after the Plaintiff, pursuant to the Order of
Discipline in Gilbert I, ceased practicing law in the customary sense, the Plaintiff filed with the
North Carolina State Bar a Petition for Reinstatement of his license to practice law.
65. Although one of the conditions that the DHC had imposed as a prerequisite to the
Plaintiffs reinstatement to the practice of law was a requirement that the Plaintiff reimburse the
Client Security Fund for any amounts disbursed "as a result of [the Plaintiff's] misconduct," it is
presumed that the DHC did not intend to require the Plaintiff to reimburse the Client Security
Fund for any amount of money that it may have paid to a third party wrongfully or without
lawful authority. Indeed, N.C.G.S. § 84-28 states as much in its requirement that any condition
being placed on an attorney's right to reinstatement be reasonable.
66. On or about November 2, 2004, the North Carolina State Bar, by and through its
agent, Defendant A. Root Edmonson, filed a response to the Plaintiffs application for
reinstatement pursuant to Rule .0125(b)(6) of the Discipline and Disability Rules of the North
Carolina State Bar.
67. In its response, the State Bar objected to the reinstatement of the Plaintiffs license
to practice law on the alleged grounds, among others, that: (a) the Plaintiff had not yet served the
two-year active period of suspension originally imposed by the Order of Discipline in Gilbert I;
and (b) the Plaintiff had not reimbursed the Client Security Fund for the $4,600+ that it paid
Michelle Munavalli following her testimony in Gilbert I. But since the $4,600+ payment to
Michelle Munavalli appears to have been made by the State Bar in direct contravention of the
Rules Governing the Administration of the Client Security Fund of the North Carolina State Bar,
and because, by its own duplicity, the State Bar may have thwarted a prime opportunity for the
North Carolina Supreme Court to have decided when the Plaintiff would be eligible for the
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reinstatement of his license to practice law, it appears to this Court that the primary purpose of
the State Bar in taking these positions was to engineer a draconian decision by the DHC that not
only would be expensive for the Plaintiff, but would also establish the most remote date possible
on which the Plaintiff would be eligible for reinstatement to the practice of law.
68. Because the DHC ultimately ruled that. as a matter of equity and fairness to the
Plaintiff, the Plaintiffs obligation to reimburse the Client Security Fund should be tied to the
outcome of Gilbert II, and because the outcome of Gilbert II had yet to be be determined. on or
about September 7,2006. the Plaintiff reimbursed the Client Security Fund for the $4,627.43 that
it paid to Michelle Munavalli following her testimony in Gilbert I. As a result of this payment
and the filing of a second Petition for Reinstatement of the Plaintiffs license to practice law, the
Plaintiffs license to practice law in the State of North Carolina was. on October 9, 2006, finally
restored.
69. On April 9, 2004, Plaintiff commenced a civil action in the Superior Court of
Wilson County, North Carolina in which he sought to temporarily and permanently enjoin the
State Bar's prosecution of Gilbert III on the grounds that it was being pursued in bad faith and for
vindictive reasons. ("Gilbert IV"). See Exhibit H. On that same date. Wilson County Superior
Court Judge Milton F. Fitch, Jr., entered an order temporarily restraining the North Carolina
State Bar from prosecuting or proceeding further with the prosecution of Gilbert III on the
grounds, inter alia, that it bore "significant indicia of having been brought in bad faith" and for
purposes of harassment. See Exhibit I.
70. Judge Fitch later entered a preliminary injunction against the continuing
prosecution of Gilbert III. ~ Exhibit J, and. on September 12, 2005, permanently enjoining the
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North Carolina State Bar prosecuting or proceeding further with the prosecution of the claims
and charges asserted in [Gilbert un. See Exhibit H.
71. As is demonstrated by even a cursory reading of Superior Court Judge Fitch's
permanent injunction order, Judge Fitch did not enter a permanent injunction against the North
Carolina State Bar frivolously, or on the basis of paranoid delusions having no basis in law or
fact. Rather, Judge Fitch took this action only after finding himself "deeply troubled," yet
convinced by a "staggering array" of evidence that Gilbert ill had been initiated in bad faith, and
was but "the latest" in what was then a six-year campaign (and what is now a lO-year campaign)
of "unremitting, increasingly disturbing, and, ultimately, unlawful acts and practices," the
purposes of which were/are to: (i) punish the Plaintiff and to exact from him a price for having
avoided the disciplinary sanction (disbarment) that the State Bar sought in Gilbert I; (ii) punish
and retaliate against the Plaintiff for having exercised his statutory and constitutional rights to
defend himself zealously against, and to seek appellate review of, the claims of misconduct
asserted in Gilbert I; (iii) punish and retaliate against the Plaintiff for having exercised his lawful
right to defend himself zealously against the claims and charges of professional misconduct
leveled in Gilbert III; (iv) "snuff out" the Plaintiffs legal career by erecting unjustified obstacles
to his ability to return to the practice of law and to rebuild his professional reputation and career,
(v) make an example out of the Plaintiff; and (vi) otherwise harass, menace and intimidate the
Plaintiff by repeatedly leveling dubious accusations of misconduct and mounting unilateral legal
attacks that the Plaintiff s own clients have not leveled, mounted or even countenanced. See
Exhibit H, at pp. 35-38 and 46-48.
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71. On October 11,2005, the North Carolina State Bar appealed Judge Fitch's rulings
to the North Carolina Court of Appeals, but on December 19, 2006, the North Carolina Court of
Appeals dismissed the appeal as being interlocutory.
72. On August 27, 2007, the North Carolina Supreme Court granted the State Bar's
petition for discretionary review of the Court of Appeals' December 19,2006, decision. In
allowing the State Bar's petition, the only two issues that accepted for discretionary review and
briefed by the parties were: (I) whether Judge Fitch had subject matter jurisdiction to enjoin an
ongoing State Bar disciplinary proceeding; and (2) whether the Court of Appeals erred by
dismissing the State Bar's appeal as being interlocutory.
73. Following oral arguments solely on the foregoing issues in December, 2007, a
divided panel of the North Carolina Supreme Court entered a ruling which concluded, inter alia,
that: (1) the trial court did have subject matter jurisdiction to issue the subject injunction; (2) the
State Bar had a substantial right to immediately pursue its interlocutory appeal; (3) the Plaintiff
could not pursue a claim for vindictive prosecution because there was no such thing as a civil
action for vindictive prosecution; and (4) the Plaintiff could not state a claim for relief for
malicious prosecution (a claim which the Plaintiff did not bring, and a ruling which the trial
court did not make) because he had not yet gone through the State Bar's unlawful prosecution,
nor had he been exonerated from the State Bar's charges. See generally Gilbert v. North Carolina
State Bar, 363 N.C. 70 (2009).
74. In reaching its decision on these issues, the latter two of which the North Carolina
Supreme Court did not even give the Plaintiff an opportunity to brief or to argue, the Supreme
Court majority did not overrule or otherwise disturb any of the trial court's findings of fact,
including, but not limited to, its findings of fact that (a) the State Bar was prosecuting Gilbert III
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in bad faith; (b) the State Bar was prosecuting Gilbert ill in order to harass the Plaintiff; (c) State
Bar was prosecuting Gilbert ITIin retaliation for the Plaintiffs having exercised his constitutional
rights to zealously defend himself against the State Bar's previous charges; and (d) State Bar did
not have a reasonable expectation of obtaining of valid outcome in its favor in Gilbert III.
Instead, the majority ultimately concluded that the Plaintiff did not have any rights under the Due
Process clause of the United States Constitution to be free from the conduct in which the trial
court found that the State Bar had engaged.
75. In or about July of 2008, Plaintiff was retained by a 74-year old female to
represent her in connection with a slip and fall injury that she sustained while boarding a
Southwest Airlines flight from Raleigh-Durham, NC to Nashville, TN.
76. The Plaintiff commenced the action on behalf of his slip and falJ client on
November 30, 2007, with the filing of a verified Complaint. On that same date, a Summons
directing Defendant Southwest Airlines Co. to answer the Complaint within 30 days of service of
the Complaint was issued by the Durham County Clerk of Superior Court.
77. On December 3, 2007, the Summons and the Complaint in this action were
properly served upon Defendant Southwest Airlines Co.
78. Because Southwest Airlines Co. did not answer, appear, or otherwise respond to
the Plaintiffs complaint within the time allowed by Rule 12 of the North Carolina Rules of Civil
Procedure, on January 14, 2008, Plaintiff obtained on behalf of his client an entry of default
against Southwest Airlines Co., and on February 4, 2008, Plaintiff obtained a default judgment
against Southwest Airlines Co.
79. Because Plaintiffs slip and fall client's damages were not for a sum certain, on
April 28, 2008, a bench trial was held during which the Honorable Abraham Penn Jones, a
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resident superior court judge in the State of North Carolina, heard sworn testimony and received
documentary evidence in support of Plaintiffs client's request for damages.
80. Thereafter, on June 26, 2008, and having reviewed the entire case file and
considered all of the evidence presented by the Plaintiff in support of her claim for damages,
Judge Abraham Penn Jones entered a final judgment in favor of the Plaintiff for $700,000.00.
81. As a result of this $700,000 judgment, Plaintiff was entitled to receive a 1/3
contingent attorney's fee from his client.
82. At some point prior to August 28, 2008, Defendant Edmonson agreed or
otherwise conspired with counsel for Southwest Airlines (one of whom is a former President of
the North Carolina State Bar) to sabotage Plaintiffs and his client's $700,000 victory against
Southwest Airlines by concocting an absolutely false and outrageous scenario by which the
Plaintiff and his client were purportedly to have misrepresented certain facts to the trial court in
order to secure the $700,000 judgment against Southwest Airlines.
83. Defendant Edmonson's role in this Kabuki dance was to draft, sign and file an
affidavit apprising the Court that the State Bar had repeatedly leveled accusations of dishonest
conduct at the Plaintiff, that the State Bar was presently engaged in litigation involving such an
accusation (Gilbert lID, and that, by innuendo, if the Plaintiff had engaged in dishonest conduct
in the past, as the State Bar maintained he had, then the Plaintiff was likely to have done so in the
case against Southwest Airlines. See Exhibit K.
84. In spite of the fact that his affidavit had not been solicited by the trial judge, and
in spite of the fact that Southwest Airlines' accusations against the Plaintiff and his client were
completely and demonstrably false, Edmonson, by his affidavit, officiously intermeddled and
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---------------------_~ __ ~ _~-
poisoned the record in Plaintiffs slip and fall client's case, and contributed to Plaintiffs client's
loss of the $700,000 default judgment when the trial judge ultimately set it aside.
85. In or about June of 1996, Plaintiff was retained to represent a screenwriter in
connection with a lawsuit for copyright infringement against a major motion picture studio and
others arising out of the unlawful copying of the screenwriter's screenplay by the studio and
others to make a major motion picture.
86. Under the law of copyright, a victim of infringement of copyright infringement is
entitled to recover from the infringer all of the profits that the infringer receives from the
commercial exploitation of the copyrighted material.
87. In the case of the movie made from Plaintiffs client's stolen screenplay, the
profits generated from the commercial exploitation of the copyrighted material exceeded $200
million.
88. On or about May 13,2008, Plaintiff commenced an action copyright infringement
on behalf of his client in the United States District Court for the Eastern District of North
Carolina.
89. In or about February of 2009, a story about Plaintiffs counsel's copyright client's
case appeared in the Raleigh News and Observer. Approximately four weeks later, Plaintiffs
copyright case was transferred from the Eastern District of North Carolina to Central District of
California. Given this transfer, Plaintiff immediately filed a motion for admission to practice in
the Central District of California pro hac vice, and, less than 24 hours later, the Defendants in
that case filed an opposition to Plaintiffs motion on the grounds that the Defendants had
obtained from Defendant Edmonson an affidavit apprising the Court that the State Bar had
repeatedly leveled accusations of dishonest conduct at the Plaintiff, that the State Bar was
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---------------------_. - ---
presently engaged in litigation involving such an accusation (Gilbert III), and that, by innuendo,
the Plaintiff was not worthy of being granted permission to appear pro hac vice in a case in
which he had been representing his client for nearly three years. See Exhibit L.
90. On the basis of Edmonson's officious intermeddling by affidavit, the trial judge
denied Plaintiffs motion to appear pro hac vice, the contractual relationship between Plaintiff
and his screenwriter client was broken, the Plaintiff lost the right to collect a 33 1/3% contingent
from his client, and both Plaintiff and his client have been forced to commit themselves to
paying local counsel in California tens of thousands and potentially millions of dollars to
represent Plaintiffs former client.
91. As a direct result of Edmonson's and the State Bar's conduct unrelenting assaults
on the Plaintiffs ability to earn a living by practicing law unmolested, the Plaintiff has been
rendered destitute and does not anticipate being able to improve his financial condition so long
as the Gilbert III prosecution remains pending.
92. The North Carolina State Bar maintains an internet website where, in the
aftermath of the North Carolina Supreme Court's decision in Gilbert N, it is again broadcasting
to the world both the Plaintiffs name, and the fact that the North Carolina State Bar has filed and
currently has pending against him the disciplinary action herein referred to as Gilbert Ill.
Though the publication of such information might not, in the ordinary case, raise any
extraordinary or remediable privacy concerns, where, as here, the attorney disciplinary action
being advertised is being prosecuted in bad faith, for purposes of harassment, and for vindictive
reasons, the worldwide publication of information on the internet suggesting that the Plaintiff is
rightfully a defendant in a disciplinary action that is known to be illicit constitutes a pernicious
and unjustified assault on the Plaintiffs dignity and professional reputation.
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CLAIMS FOR RELIEF
COUNT ONE-v-
The N.C. State Bar
BAD FAITH PROSECUTION OF ATTORNEY DISCIPLINARY PROCEEDINGSIN VIOLATION OF THE 1st and 14th AMENDMENTS TO
THE UNITED STATES CONSTITUTION
93. The allegations of Paragraphs 1 through 92 of this Complaint are re-alleged and
incorporated by reference.
94. The First and Fourteenth Amendments to the United States Constitution prohibit
the filing and pursuit of prosecutions that are brought in bad faith. and/or for purposes of
harassing an individual or retaliating against him for having exercised his First and Fourteenth
Amendment rights to petition the government for redress of grievances and to access and utilize
the courts for the settlement of legal disputes.
95. By prosecuting Gilbert Ill-- as the Wilson County Superior Court has found -- in
bad faith, for purposes of harassment and retaliation, and with no reasonable expectation of
obtaining a valid outcome in its favor. the North Carolina State Bar has deprived. and is
continuing to deprive, the Plaintiff of his rights under the First and Fourteenth Amendments to
the United States Constitution
96. As a direct and proximate result of the State Bar's conduct in this regard, the
Plaintiff is suffering irreparable damage, and is entitled to, inter alia, a temporary restraining
order, and a preliminary and permanent injunction, enjoining The North Carolina State Bar (and
any agency, board. committee, commission, officer, agent, servant, employee, or attorney
purporting to act on behalf or in the name of the North Carolina State Bar) from prosecuting or
proceeding further with the prosecution of the claims and charges asserted in the case of The
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North Carolina State Bar v. Willie D. Gilbert, II, No. 03 DHC 16, which is presently pending
before the Disciplinary Hearing Commission of the North Carolina State Bar.
97. The Plaintiff is also entitled to a judgment and/or order for equitable relief against
the State Bar:
a) Declaring the filing and prosecution of Gilbert ill to have been in bad faith
and/or the result of an intent to harass or retaliate against the Plaintiff;
b) Declaring the filing and prosecution of Gilbert III to be the result of the
perpetration of a fraud upon the Grievance Committee of the North
Carolina State Bar; and
c) Declaring the filing and prosecution of Gilbert III to be unconstitutional,
and without legal justification or authority.
COUNT TWO-v-
The N.C. State Bar
BAD FAITH PROSECUTION OF ATTORNEY DISCIPLINARY PROCEEDINGSIN VIOLATION OF FEDERAL COMMON LAW
98. The allegations of Paragraphs 1 through 97 of this Complaint are re-alleged and
incorporated by reference.
99. Under long-standing United States Supreme Court precedent, it is well-
established that there is a federal right to not be subjected to a prosecution that has been brought
in bad faith. See, ~ Dombrowski v. Pfister. 380 U.S. 479, 490 (1965).
100. Prosecutorial bad faith can take many forms, but essentially there are four types of
prosecutions that are universally recognized as being prosecutions that are being pursued "in bad
faith": (1) those that are conducted in such a way as to constitute harassment and/or an abuse of
prosecutorial discretion; (2) those that are brought in retaliation for, or to discourage, the exercise
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of federal or constitutional rights; (3) those that are pursued without a reasonable expectation of
obtaining a valid outcome in favor of the prosecution; and (4) those that are pursued with a
combination of two or more of the aforementioned characteristics.
101. By prosecuting Gilbert III -- as the Wilson County Superior Court has found -- in
bad faith, for purposes of harassment and retaliation, and with no reasonable expectation of
obtaining a valid outcome in its favor, the North Carolina State Bar has deprived, and is
continuing to deprive, the Plaintiff of his rights under federal common law.
102. As a direct and proximate result of the State Bar's conduct in this regard, the
Plaintiff is suffering irreparable damage, and is entitled to, inter alia, a temporary restraining
order, and a preliminary and permanent injunction, enjoining The North Carolina State Bar (and
any agency, board, committee, commission, officer, agent, servant, employee, or attorney
purporting to act on behalf or in the name of the North Carolina State Bar) from prosecuting or
proceeding further with the prosecution of the claims and charges asserted in the case of The
North Carolina State Bar v. Willie D. Gilbert. n,No. 03 DHC 16, which is presently pending
before the Disciplinary Hearing Commission of the North Carolina State Bar.
103. The Plaintiff is also entitled to a judgment and/or order for equitable relief against
the State Bar:
a) Declaring the filing and prosecution of Gilbert III to have been in bad faith
and/or the result of an intent to harass or retaliate against the Plaintiff;
b) Declaring the filing and prosecution of Gilbert ill to be the result of the
perpetration of a fraud upon the Grievance Committee of the North
Carolina State Bar; and
c) Declaring the filing and prosecution of Gilbert III to be unconstitutional,
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and without legal justification or authority;
COUNT THREE-v-
The N.C. State Bar
VINDICTIVE PROSECUTIONIENFORCEMENT OF ATTORNEY DISCIPLINARY PROCEEDINGSIN VIOLATION OF THE 1st and 14th AMENDMENTS TO
THE UNITED STATES CONSTITUTION
104. The allegations of Paragraphs I through 103 of this Complaint are re-alleged and
incorporated by reference.
105. The Due Process and Equal Protection Clauses of the Fourteenth Amendment to
the United States Constitution prohibit the vindictive enforcement and/or prosecution of state
laws.
106. By prosecuting Gilbert III --as the Wilson County Superior Court has found -- for
purposes of retaliating against the Plaintiff for having exercised his First and Fourteenth
Amendment rights to petition the government for redress of grievances and to access and utilize
the courts for the settlement of legal disputes., the North Carolina State Bar has engaged, and is
continuing to engage, in a vindictive prosecution of the Plaintiff
107. As a direct and proximate result of the State Bar's conduct in this regard, the
Plaintiff is suffering irreparable damage, and is entitled to, inter alia, a temporary restraining
order, and a preliminary and permanent injunction, enjoining The North Carolina State Bar (and
any agency, board, committee, commission, officer, agent, servant, employee, or attorney
purporting to act on behalf or in the name of the North Carolina State Bar) from prosecuting or
proceeding further with the prosecution of the claims and charges asserted in the case of The
North Carolina State Bar v. Willie D. Gilbert. II,No. 03 DHC 16, which is presently pending
before the Disciplinary Hearing Commission of the North Carolina State Bar.
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108. The Plaintiff is also entitled to a judgment and/or order for equitable relief against
the State Bar:
a) Declaring the filing and prosecution of Gilbert IIIto be a vindictive
prosecution;
b) Declaring the filing and prosecution of Gilbert IIIto be the result of the
perpetration of a fraud upon the Grievance Committee of the North
Carolina State Bar; and
c) Declaring the filing and prosecution of Gilbert III to be unconstitutional,
and without legal justification or authority;
COUNT FOUR-v-
A. Root Edmonson, individually and in his official capacity
DEPRIVATION OF RIGHTS UNDER THE 14th AMENDMENT TOTHE UNITED STATES CONSTITUTION
109. The allegations of Paragraphs I through 108 of this Complaint are re-alleged and
incorporated by reference.
110. A license to practice law is a property right which cannot be taken away or
otherwise abridged without due process of law.
Ill. By drafting, signing and filing (or causing to be filed) the affidavit that was
submitted to the Durham County (N.C.) Superior Court in Plaintiffs slip and fall case,
Edmonson deprived the Plaintiff of his clearly established right to practice law without undue
interference.
112. As a direct and proximate result of Edmonson's conduct in this regard, the
Plaintiff has sustained actual damages in excess of $200,000.00, and is entitled to a judgment for
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compensatory damages against Edmonson, in his individual capacity, in an amount to be proven
at trial.
113. Furthermore, since Edmonson engaged in the conduct herein complained for no
legitimate reason, and with a malicious and corrupt intention, Plaintiff is entitled to a judgment
for punitive damages against Edmonson, and Edmonson is not entitled to escape liability in this
action on the grounds of qualified or prosecutorial immunity.
114. Finally, since Edmonson perpetrated the conduct herein complained of while in
the employ of The North Carolina State Bar, the Plaintiff is entitled to the equitable remedy of a
preliminary and permanent injunction prohibiting both Edmonson and any other agent of The
North Carolina State Bar from engaging in the conduct herein complained of in the future.
COUNT FIVE-v-
A. Root Edmonson, in his individual capacity
CIVIL CONSPIRACY TO VIOLATE THE DUE PROCESS AND PRIVILEGES ANDIMMUNITIES CLAUSES OF THE 14th AMENDMENT TO
THE UNITED STATES CONSTITUTION
115. The allegations of Paragraphs I through 114of this Complaint are re-alleged and
incorporated by reference.
116. A license to practice law is a property right which cannot be taken away or
otherwise abridged without due process of law.
117. In addition, the Privileges and Immunities Clause of the 14th Amendment to the
United States Constitution protects the Plaintiffs right to freely travel and to enjoy the same
rights and privileges that are enjoyed by other citizens of the United States.
118. By drafting, signing and filing (or causing to be filed), pursuant to an unlawful
agreement or conspiracy with Plaintiffs opposing counsel, the affidavit that was submitted to the
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United States District Court for the Central District of California in Plaintiffs copyright
infringement case, Edmonson violated Plaintiffs clearly established rights under the Privileges
and Immunities Clause of the United State Constitution, and deprived the Plaintiff of his clearly
established right not to be deprived of license to practice law (pro hac vice) without due process
of law.
119. As a direct and proximate result of Edmonson's conduct in this regard, the
Plaintiff has sustained actual damages in excess of $25,000.00, and is entitled to a judgment for
compensatory damages against Edmonson, in his individual capacity, in an amount to be proven
at trial.
120 Furthermore, since Edmonson engaged in the conduct herein complained for no
legitimate reason, and with a malicious and corrupt intention, Plaintiff is entitled to a judgment
for punitive damages against Edmonson, and Edmonson is not entitled to escape liability in this
action on the grounds of qualified or prosecutorial immunity.
121. Finally, Plaintiff is entitled to the equitable remedy of a preliminary and
permanent injunction prohibiting both Edmonson and any other agent of The North Carolina
State Bar from engaging in the conduct herein complained of in the future.
COUNT SIX-v-
A. Root Edmonson, in his individual capacity
CIVIL CONSPIRACY TO TORTIOUSLY INTERFERE WITH BUSINESS RELATIONS
122. The allegations of Paragraphs 1 through 121 of this Complaint are re-alleged and
incorporated by reference.
123. By drafting, signing and filing (or causing to be filed), pursuant to an unlawful
agreement or conspiracy with Plaintiffs opposing counsel, the affidavit that was submitted to the
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Durham County (N.C.) Superior Court in Plaintiffs slip and fall case, Edmonson tortiously
124. As a direct and proximate result of Edmonson's conduct in this regard, the
interfered with Plaintiffs business relations
Plaintiff has sustained actual damages in excess of $200,000.00, and is entitled to a judgment for
compensatory damages against Edmonson, in his individual capacity, in an amount to be proven
at trial.
125. Furthermore, since Edmonson engaged in the conduct herein complained for no
legitimate reason, and with a malicious and corrupt intention, Plaintiff is entitled to a judgment
for punitive damages against Edmonson, and Edmonson is not entitled to escape liability in this
action on the grounds of qualified or prosecutorial immunity.
126. Finally, Plaintiff is entitled to the equitable remedy of a preliminary and
permanent injunction prohibiting both Edmonson and any other agent of The North Carolina
State Bar from engaging in the conduct herein complained of in the future.
COUNT SEVEN-v-
A. Root Edmonson, in bis individual capacity
CIVIL CONSPIRACY TO TORTIOUSLY INTERFERE WITHCONTRACTUAL RELATIONS
127. The allegations of Paragraphs 1 through 126 of this Complaint are re-alleged and
incorporated by reference.
128. By drafting, signing and filing (or causing to be filed), pursuant to an unlawful
agreement or conspiracy with Plaintiffs opposing counsel, the affidavit that was submitted to the
United States District Court for the Central District of California in Plaintiffs copyright
infringement case, Edmonson tortiously interfered with Plaintiffs contractual relations
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129. As a direct and proximate result of Edmonson's conduct in this regard, the
Plaintiff has sustained actual damages in excess of $25,000.00, and is entitled to a judgment for
compensatory damages against Edmonson, in his individual capacity, in an amount to be proven
at trial.
130. Furthermore, since Edmonson engaged in the conduct herein complained for no
legitimate reason, and with a malicious and corrupt intention, Plaintiff is entitled to a judgment
for punitive damages against Edmonson, and Edmonson is not entitled to escape liability in this
action on the grounds of qualified or prosecutorial immunity.
131. Finally, Plaintiff is entitled to the equitable remedy of a preliminary and
permanent injunction prohibiting both Edmonson and any other agent of The North Carolina
State Bar from engaging in the conduct herein complained of in the future.
COUNT EIGHT-v-
A. Root Edmonson, in his individual capacity
CIVIL CONSPIRACY TO ENGAGE IN UNFAIR AND DECEPTIVETRADEPRACTICES
132. The aIJegations of Paragraphs I through 131 of this Complaint are re-alleged and
incorporated by reference.
133. By drafting, signing and filing (or causing to be filed), pursuant to an unlawful
agreement or conspiracy with Plaintiffs opposing counsel, the affidavits that were submitted to
the Durham County (N.C.) Superior Court in Plaintiffs slip and fall case and to the United States
District Court for the Central District of California in Plaintiffs copyright infringement case,
Edmonson engaged in unfair and deceptive acts or practice, in or affecting commerce.
134. As a direct and proximate result of Edmonson's conduct in this regard, the
Plaintiff has sustained actual damages in excess of $225,000.00, and is entitled to a judgment for
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compensatory damages against Edmonson, in his individual capacity, in an amount to be proven
135. Furthermore, since Edmonson engaged in the conduct herein complained for no
at trial.
legitimate reason, and with a malicious and corrupt intention, Plaintiff is entitled to a judgment
for punitive damages against Edmonson, and Edmonson is not entitled to escape liability in this
action on the grounds of qualified or prosecutorial immunity.
136. Finally, Plaintiff is entitled to the equitable remedy of a preliminary and
permanent injunction prohibiting both Edmonson and any other agent of The North Carolina
State Bar from engaging in the conduct herein complained of in the future.
COUNT NINE-v-
A. Root Edmonson, in his individual capacity
CIVIL CONSPIRACY TO ENGAGE IN DEFAMATION PER QUOD
137. The allegations of Paragraphs 1 through 136 of this Complaint are re-alleged and
incorporated by reference.
138. By drafting, signing and filing (or causing to be filed), pursuant to an unlawful
agreement or conspiracy with Plaintiffs opposing counsel, the affidavits that were submitted to
the Durham County (N.C.) Superior Court in Plaintiffs slip and fall case and to the United States
District Court for the Central District of California in Plaintiffs copyright infringement case,
Edmonson engaged in a defamation of the Plaintiff per quod.
139. As a direct and proximate result of Edmonson's conduct in this regard, the
Plaintiff has sustained actual damages in excess of $225,000.00, and is entitled to a judgment for
compensatory damages against Edmonson, in his individual capacity, in an amount to be proven
at trial.
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140. Furthermore, since Edmonson engaged in the conduct herein complained for no
legitimate reason, and with a malicious and corrupt intention, Plaintiff is entitled to a judgment
for punitive damages against Edmonson, and Edmonson is not entitled to escape liability in this
action on the grounds of qualified or prosecutorial immunity.
141. Finally, Plaintiff is entitled to the equitable remedy of a preliminary and
permanent injunction prohibiting both Edmonson and any other agent of The North Carolina
State Bar from engaging in the conduct herein complained of in the future.
COUNT TEN-v-
A. Root Edmonson, in his individual capacity
INTENTION INFLICTION OF EMOTIONAL DISTRESS
142. The allegations of Paragraphs I through 141 of this Complaint are re-alleged and
incorporated by reference.
143. By drafting, signing and filing (or causing to be filed) the affidavits that were
submitted to the Durham County (N.C.) Superior Coun in Plaintiffs slip and fall case and to the
United States District Court for the Central District of California in Plaintiffs copyright
infringement case, Edmonson engaged in extreme and outrageous conduct, and intentionally
inflicted severe emotional distress upon the Plaintiff.
144. As a direct and proximate result of Edmonson's conduct in this regard, the
Plaintiff has been damaged, and is entitled to a judgment for compensatory damages against
Edmonson, in his individual capacity, in an amount to be proven at trial.
145. Furthermore, since Edmonson engaged in the conduct herein complained for no
legitimate reason, and with a malicious and corrupt intention, Plaintiff is entitled to a judgment
for punitive damages against Edmonson. and Edmonson is not entitled to escape liability in this
action on the grounds of qualified or prosecutorial immunity.
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]46. Finally, Plaintiff is entitled to the equitable remedy of a preliminary and
permanent injunction prohibiting both Edmonson and any other agent of The North Carolina
State Bar from engaging in the conduct herein complained of in the future.
COUNT ELEVEN-v-
A. Root Edmonson, in his individuaJ capacity
NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS
147. The allegations of Paragraphs 1 through ]46 of this Complaint are re-alleged and
incorporated by reference.
148. By drafting, signing and filing (or causing to be filed) the affidavits that were
submitted to the Durham County (N.C.) Superior Court in Plaintiffs slip and fall case and to the
United States District Court for the Central District of California in Plaintiffs copyright
infringement case, Edmonson negligently inflicted severe emotional distress upon the Plaintiff.
149. As a direct and proximate result of Edmonson's conduct in this regard, the
Plaintiff has been damaged, and is entitled to a judgment for compensatory damages against
Edmonson, in his individual capacity, in an amount to be proven at trial.
150. Furthermore, since Edmonson engaged in the conduct herein complained for no
legitimate reason, and with a malicious and corrupt intention, Plaintiff is entitled to a judgment
for punitive damages against Edmonson, and Edmonson is not entitled to escape liability in this
action on the grounds of qualified or prosecutorial immunity.
151. Finally, Plaintiff is entitled to the equitable remedy of a preliminary and
permanent injunction prohibiting both Edmonson and any other agent of The North Carolina
State Bar from engaging in the conduct herein complained of in the future.
PRA YER FOR RELIEF
WHEREFORE, Plaintiff prays for relief as follows:
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1. As to Counts One, Two, Three and Four, Plaintiff have and recover appropriate
injunctive and other equitable relief, including, but not limited to, a temporary restraining order,
and a preliminary and permanent injunction, enjoining The North Carolina State Bar (and any
agency, board, committee, commission, officer, agent, servant, employee. or attorney purporting
to act on behalf or in the name of the North Carolina State Bar) from prosecuting or proceeding
further with the prosecution of the claims and charges asserted in the case of The North Carolina
State Bar v. Willie D. Gilbert, II. No. 03 DHC 16. which is presently pending before the
Disciplinary Hearing Commission of the North Carolina State Bar;
2. As to Counts Four. Five, Six, Seven, Eight. Nine. Ten and Eleven. Plaintiff has
and recover from Defendant A. Root Edmonson, in his individual capacity, an award of both
compensatory and punitive damages in an amount to be proven at trial.
3. That the State Bar be ordered to have and recover nothing in Gilbert III;
4. That the costs of Gilbert III and this action. including reasonable attorney's fees
be taxed against Edmonson and the State Bar; and
5. That this Court order such other and further reJief as may seem just and proper.
Respectfully submitted. this 27th day of August, 2009.
MICHAUX & MICHAUX. P.A.
By Is/ Eric C. MichauxEric C. MichauxCounsel for the PlaintiffPost Office Box 2152Durham. North Carolina 27702emichaux @aol.comPh.: (919) 596-8181N.C. State Bar No.: 2988
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VERIFICATION
North Carolina
Wilson County
Willie D. Gilbert, II, being first duly sworn, deposes and says that he is the Plaintiff in theforegoing action and that the allegations set forth in the foregoing Complaint are true to the bestof his knowledge and belief. except for those allegations set forth upon information and belief,and as to those allegations, he believes them to be true.
Sworn to and subscribed beforeme this ~ day of August, 2009.
Case 5:09-cv-00383-D Document 7-13 Filed 08/27/09 Page 45 of 45