In a letter sent to Chief Judge Thomas Cochran on his last day as attorney general, Davis wrote that Saunooke had committed ethical and criminal violations by appearing as legal representation for Tribal Council during the impeachment hearing in May and for Councilmember Albert Rose during a Board of Elections hearing the day before the letter was written.
Saunooke, an enrolled member of the Eastern Band of Cherokee Indians, is a member of the Florida Bar but not of the North Carolina Bar. Tribal laws require attorneys to be members of the North Carolina Bar in order to gain admission to the Cherokee Bar and practice on the Qualla Boundary.
Out-of-state attorneys can get permission from a judge to represent a client — with a licensed attorney present — for individual cases by securing an order called a pro hac vice. Saunooke had secured such an order for court cases he argued surrounding the impeachment, but the order did not apply to out-of-court hearings before Tribal Council and the Board of Elections.
According to Davis, it was illegal for him to appear as an attorney in these settings without having a Cherokee Bar license.
“This is not the kind of conduct that I believe should be representative of the Cherokee Bar, and I am formally requesting that the Court investigate and take the appropriate action to rescind Mr. Saunooke’s pro hac vice order and his privileges to practice in the Cherokee Court as well as any other action the Court may deem appropriate,” Davis wrote.
Saunooke, meanwhile, called Davis’ complaint “frivolous and meritless,” stating that he intends to seek sanctions against him for bringing it. Saunooke believes the complaint is merely an attempt to tarnish his reputation as an attorney.
“It was only after he (Davis) was fired from the Tribe that he took this action,” Saunooke wrote in an email. “It is clear to me what is behind this act.”
Both Davis and Principal Chief Richard Sneed said that Davis was not fired from his post as attorney general, but that both agreed that his decision to resign was for the best. Davis was hired by Lambert, with Saunooke instrumental in Lambert’s removal by impeachment.
Saunooke believes that the laws pertaining to his practice as an out-of-state attorney apply only to court proceedings, not to quasi-judicial proceedings like the impeachment or the Board of Elections hearing, referencing a 2008 court order stating that the requirement to be licensed in North Carolina did not apply to Saunooke, who was admitted to the Cherokee Bar prior to that licensing requirement going into effect. The Tribal Council and Board of Elections authorized him to appear before them as an attorney, he said, and in that context that’s all the permission that was necessary.
In 2011 the Cherokee Court issued a decision disbarring Saunooke from the Cherokee Bar due to his lack of a North Carolina license. The disbarment didn’t stem from any misconduct on Saunooke’s part, the decision read, but rather from an attempt to “perfect the regulation of Bar admission” and “comport with the public policy of the Eastern Band of Cherokee Indians.”
“Nothing we determine today prohibits Mr. Saunooke from seeking to appear pro hac vice in the future,” the decision read. “Mr. Saunooke may also choose to take the North Carolina Bar Exam.”
While Saunooke concedes that the 2011 decision prevented him from appearing before the court without a pro hac vice, he said that it does not apply to practice outside the court, as the piece of Cherokee code referenced in the court decision speaks exclusively to court appearances.
A different section, not referenced in the 2011 decision, covers practice by attorneys outside the court and states that an N.C. license is required for such practice. However, Saunooke said, a court decision issued in 2008 found that this section did not apply to him.
However, the contents of Davis’ letter evidently concerned Temporary Associate Judge Sharon Barrett — who issued the pro hac vice Saunooke had obtained in April — enough to prompt her to issue an order to show cause.
According to legal website Nolo, an order show cause is “an order from a judge that directs a party to come to court and convince the judge why the judge shouldn’t grant an action proposed by the other side or, occasionally, by the judge.”
Barrett’s order states that Saunooke has until 4 p.m. Friday, Nov. 17, to file an affidavit with his response, though he is advised that, because the allegations include criminal conduct, “you are specially advised that you are not precluded from asserting your right against self-incrimination, in lieu of a full statement of facts.”
Section 87-2 of the Cherokee Tribal Code states that each count of practicing law without a license carries a maximum punishment of a $5,000 fine and one-year prison sentence. If the court were to side with Davis, multiple counts could result.
After reviewing the affidavit and any other documents submitted, the court will decide whether a hearing should be held in open court. In the meantime, the order states, Saunooke is prohibited from practicing law in Cherokee.
“Mr. Saunooke is further advised that the practice of law, for purposes of this Order, is not limited to appearances in the Cherokee Courts, but encompasses the full ambit of the definition set forth in N.C. Gen. Stat. 84-2.1,” the order reads.
Davis copied N.C. Bar Executive Director Tom Lunsford on his email notifying Cochran of the alleged misconduct, and the bar’s general counsel Katherine Jean said the bar’s unauthorized practice committee is aware of the issue but does not intend to act on it.
“They will not take action, and that is because these allegations would be better addressed by the Florida Bar, where he is licensed, or by the Cherokee Court, which had admitted him pro hac vice,” Jean said.
While Saunooke has never been a member of the N.C. Bar, he applied to take the exam in 1998, 2000 and 2001. Outcomes of bar exam applications are not public record, but Saunooke said that he opted not to take the exam in 2000 due to the birth of his son and that in 2001 his test was not initially graded because his admission was challenged by then-Principal Chief Joyce Dugan.
“After three background checks and a full board hearing, my test was graded,” he wrote in an email. “I missed assign by one point.”
Saunooke has been part of the Florida Bar since 1993. He is a member in good standing with nothing listed on his 10-year disciplinary history. Saunooke said that he has not had any complaints on his record there prior to the current issue. He is also admitted to the Sixth, Fourth, Ninth and 11th federal circuit courts of appeal, the U.S. Supreme Court, the U.S. Tax Court and the U.S. Bankruptcy Court, and is a professor of federal Indian law and policy at Emory Law School and a presidential appointee to numerous American Bar Association commissions, he wrote in an email.
In response to a request for comment, Davis said that he couldn’t make any public statements in this matter, as the case is pending.