At the outset, we note that the order appealed in this case was dated and filed by the Commission on 9 April 1980. Respondent gave immediate notice of appeal, both in the open hearing and in writing. Appeal entries were dated and filed 9 April 1980. On 14 May 1980, he again purported to give written notice of appeal. After having given notice of appeal in open hearing and appeal entries having been entered, respondent cannot thereafter extend the time for filing the record on appeal by giving another notice of appeal, albeit in compliance with Rule 18(d) of the North Carolina Rules of Appellate Procedure.
See
Rule 3, N.C.R. App. Proc., and Drafting Committee Note thereto; N.C. Gen. Stat. 1A-1, Rule 58. This appeal was filed with this Court on 29 September 1980, twenty-three days beyond the maximum of 150 days for filing appeals.
See
Rule 12(a), N.C.R. App. Proc. No order by this Court extending time for filing beyond 150 days is contained in the record on appeal. It thus appears from the record on appeal, stipulated to and аgreed upon as the record on appeal by respondent’s counsel, that this appeal should be dismissed. Rule 12(a), N.C.R. App. Proc.;
Pruitt v. Wood,
I.
Respоndent first urges that the Commission never obtained jurisdiction over the person of DuMont or over the subject matter of the proceeding. We recognize respondent’s argument that as the events in question occurred prior to 1 July 1975, the effective date of the 1975 amendments to Chapter 84 of the General Statutes of North Carolina, his proceeding should be controlled and governed by N.C.G.S. 84-28 as it existed prior to the passage of Chapter 582 of the 1975 Session Laws. Respondent, however, has judicially alleged that this proсeeding is governed by the amendments effective 1 July 1975. In his reply to the Commission’s motion to consolidate, he alleged “case number 78 DHC 17 is governed by the provisions of Chapter 84 of the General Statutes of North Carolina in effect after 1 July 1975.” A party is bound by an allegation contained in his own pleading and may not thereafter take a position contrary thereto.
Watson v. Clutts,
Regardless of the foregoing, we hold that the 1975 amendmеnts were appropriately applied to this proceeding. Respondent relies upon the language of Section 13 of the Act: “This act shall become effective on July 1, 1975, and shall apply to all cases, actions and proceedings arising on and after said date.” This reliance is misplaced. Had the legislature intended that the 1975 act be limited to causes that arose after 1 July 1975, it would have used such words as “claims,” “causes” or “causes of action.” Rather, it employed the words “cases, actions and proceedings,” evidencing the intent that the act apply to all such lawsuits begun or instituted after 1 July 1975. “Arising,” as respondent notes, means beginning, originating or commencing. Thus, it appears that the legislature intended that the act apply to disciplinary hearings commenced after 1 July 1975. It can be assumed that the General Assembly realized that proceedings regarding infractions by attorneys of the disciplinary standards of the profession are not barred by any statute of limitations, and intended that such violations occurring before 1 July 1975 wоuld be addressed in ac *15 tions, cases or proceedings instituted under the amendments.
This reasoning is supported by the amendments to the Rules and Regulations of The North Carolina State Bar adopted and approved as reported in
Be It Further Resolved that these amendments shall become effective upon their approval by the Supreme Court in accordance with Section 84-21 of the General Statutes of North Carolina and shall apply to any grievance pertaining to cases, actions or proceedings received in the office of the Secretary-Treasurer on or after that date.
The Chief Justice stated: “[I]t is my opinion that the same are not inconsistent with Article 4, Chapter 84, of the General Statutes.” Id. at 773.
Respondent’s argument that application of the procedures contained in the 1975 amendment to his hearing constitutes an
ex post facto
application of the law is without merit. Constitutional prohibitions of
ex post facto
legislation apply only to criminal proceedings.
Mazda Motors v. Southwestern Motors,
DuMont further argues that use of the 1975 amendments unlawfully interferes with his vested right to practice law in North Carolina. It is granted that the practice of law is a property right requiring due process of law before it may be impaired.
In re Burton, supra; In re Bonding Co., supra.
Here, however, the amendments in no way interfere with DuMont’s right to practice law. They only establish procedures by which he may be disciplined in the event that he violates the standards of professional conduct. Without some wrongful action оn the part of an attorney, the
*16
amendments (or the old statute) in no way interfere with an attorney’s right to practice law. While the legislature may not destroy or interfere with vested rights, it may enact valid retroactive legislation affecting procedure.
Spencer v. Motor Co.,
II.
Respondent further contends that by the use of the 1975 amendments he was deрrived of a jury trial. Under former N.C. G.S. 84-28 the Council of The North Carolina State Bar was to make provision by rules for an attorney to demand trial by jury in the superior court. N.C. Gen. Stat. 84-28(3) (d) (1) (amended 1975). Our Court has held that under this statute an attorney had a right to a jury trial in disciplinary proceedings.
In re Bonding Co., supra.
If this proceeding had been held prior to 1 July 1975, respondent would have been entitled to demand a jury trial. “It is almost universally held that in the absence of a statute so providing, procedural due process does not require that an attorney have a jury trial in a disciplinary or disbarment proceeding.”
Id.
at 277,
The question, what constitutes due process of law within the meaning of the Constitution, was much considered by this court in the case of Davidson v. New Orleans,96 U.S., 97 [XXIV., 616]; and Mr. Justice Miller, speaking for the court, said: “It is not possible to hold that a party has, without due process of law, been deprived of his property, when, as regards the issues affecting it, he has by the laws of the State, a fair trial in a court of justice, according to the modes of proceeding applicable to such a case.”
*17
Had attorney DuMont been entitled to a jury trial, the record indicates that he waived it. His answer was filed 2 October 1978, without a demand for jury trial. Thereafter, notice of hearing before the Commission, dated 29 September 1978, was filed. On 2 November 1978, respondent filed motion for trial by jury. He did not request that the cause be transferred to the superior court for trial at regular term. Rule 38(b) of the North Carolina Rules of Civil Procedure requires that request for jury trial be made within ten days after the service of the last pleading directed to issues triable of right by jury. N.C. Gen. Stat. 1A-1, Rule 38(b). The last such pleading was respondent’s answer, filed 2 October 1978. Ten days from that date respondent was precluded from demanding a jury trial.
Schoolfield v. Collins,
III.
Respondent contends he did not receive a fair and impartial hearing. A fair trial is an essential of due process.
Re Murchison,
DuMont appears to contend that because Mr. Bennett was chairman of the Commission, the Commission was charged with whatever knowledge he had about the actions of DuMont, and, with that knowledge, unnecessarily delayed the commencement of these proceedings. He further argues that because of this he was deprived of the testimony of Brothers, who died 28 March 1976. Mr. Bennett’s knowledge can only be imputed to the Commission if it were acquired within the scope of his authority for the Commission.
Norburn v. Mackie,
Respondent further argues the Commission erred in consolidating, for the purpose of hearing, this proceeding with three other proceedings involving respondent. One of the proceedings was dismissed at the close of the Bar’s case, and the other two were dismissed at the close of all the evidence. The record on appeal does not contain any description as to the nature of the three other proceedings, and no testimony concerning them is in the record. Ordinarily, the consolidation of cases for trial is a matter in the sound discretion of the court. The State Bar Rules provide that the Commission may in its discretion consolidate for hearing two or more proceedings. State Bar Rules, art. IX, § 8(6). On the record before this Court, without any of the testimony or other matters in the other proceedings, we do not find any abuse of that discretion.
*19 Respondent objects to the refusal of the Commission to allow into evidence for non-hearsay purposes only, statements made by Grayson Brothers, who died before the proceeding was commenced. The statements, through the witnesses DuMont and Tom Starnes, were to the effect that Brothers, the hospital administrator, stated prior to the depositions that he had no knowledge of the James letter of 23 Octobеr 1972. The statements were not offered for the truth of what they contained, but only to show that the statements had been made. The record shows, however, that testimony to this same effect is in the evidence without objection. DuMont testified:
Yes, sir, at or near the close of the conference on December 27, 1974, I was taken aside by Mr. Kaufman, who, as I recall I had met for the first time, and Mr. Kaufman said, “I have some information which has not —which apparently has not been revealed to you.” And I said, “Well, what is it? Please let me know.” He said, “Well, I don’t have it here.” And I said, “Well, I would like to see it —a copy of it, or I would like to have it to show to Mr. Brothers.” He said, “Well, I don’t have it here. I will try and get it to you.” And I said, “Well, I’d like to see it as quickly as possible.”
As to whether at that conference and at other times I had talked to Mr. Brothers regarding whether or not he had provided me with all the documents relating to this case, we had requested —the Company had requested documents. I had requested all documents. He had been furnished with copies of all Motions to Produce. I had requested every single thing from the files of the hospital. He represented and told me that the only reports that he had were those —in reference to the Advisory Committee —were those that had been furnished to me. He repeatedly told me and the carrier that. I was surprised at the comment made by Mr. Kaufman, and I said, “I would like to see what you’re talking about.” He said he did not have it, and I said, “Well, I will stay here. Will you go home and get it?” He said, “No, I will not.” As to whether that was brought to Mr. Brothers’ attention at that time, he was present at all times. Mr. Brothers commented, “I can’t imagine what it is because I have furnished you with copies of everything we have.” . . .
In reference to anything further from Mr. Kaufman, I received a telephone call from him on Saturday morning, the *20 day after the meeting, around noontime. He said, “I have a copy of the document that I was referring to you —that I referred to you which I wanted to read to you.” ... I said, “Well, can you see me before the deposition on Monday in Morganton so that I can see what you’re referring to and so Mr. Brothers can see what you’re referring to?” He said, “I will try to bring it to you on Monday.”
. . . Before the depositions began and upon the arrival of Mr. Brothers, Mr. Kaufman, Ms. Houston and Mr. Roye, Mr. Kaufman handed me a document which was a carbon, unsigned copy, and I said, “Mr. Kaufman, I don’t want to see it. Hand it to Mr. Brothers.” I glanced at the document but did not read it and handed it to Mr. Brothers. Mr. Brothers appeared to read it in my presence. Mr. Kaufman, Mr. Roye, Mrs. Houston as well as myself were present there. Mr. Brothers said, “I have never seen this document. I do not knоw the contents. I have never seen the original of any such document such as this. Mr. James was never employed by Grace Hospital to do anything other than make a consultation for us.” . . . My only recollection of any other discussion by Mr. Brothers and Kaufman is that Mr. Brothers told Mr. Kaufman that he had never received that letter. Mr. Brothers continued to insist that he had not received any letter from Dr. James other than the consultation report, that being the only thing that Mr. James had been employed to do and that they had paid him for that consultation report.
... I received a letter from Mr. Grayson Brothers on or about January 3, with a copy of the letter from Dr. James attached to it. That is right, he refers in that letter to his looking through archives on the preceding day. That is right, sir, he refers in that letter that it was put away prior to June 23, 1973, when the hospital moved. Definitely this is the first time that Mr. Brothers had in any way indicated to me that he had it in his possession or had ever received a letter from Dr. James, dated October 23, 1972. According to Dr. [sic] Brothers’ letter, this was two years after the date of Dr. James’ letter. No, sir, I did not at any time have any occasion to doubt the integrity of Mr. Grayson Brothers.
*21 . . . No, sir, Mr. Brothers did not provide any document to me in response to said Motion. Yes, sir, I discussed with Mr. Grayson Brothers whether or not there was in his possession or in the possession of the hospital any such document as is described in the Supplemental Motion.
Respondent’s Exhibit No. 20, a letter from DuMont to Tom Starnes, 27 March 1975, contained the following:
In addition, as you have doubtless been advised, I did not receive a coрy of Dr. James’ letter of October 23, 1972, until when the same was attached to a letter from Mr. Brothers, although I have specifically made inquiry regarding the same prior thereto, and was advised by Mr. Brothers that he did not recall any such letter having been received.
The witness Sheline testified:
Mr. JARVIS: What policy violation did you think gave rise to that possible defense?
WITNESS: The existence of a letter which they said didn’t exist.
Mr. JARVIS: Which who had said didn’t exist?
WITNESS: I beg your pardon?
Mr. Jarvis: Which who said did not exist?
WITNESS: Grace Hospital representatives.
Mr. Jarvis: Specifically.
WITNESS: Mr. Brothers.
Kaufman testified: “Yes, Mr. Brothers denied receiving the letter.” The affidavit of DuMont (a part of the record) contains:
I was assured by Mr. Brothers that I would be furnishеd with all such records and related documents. . ..
... I received a number of documents, following which I was repeatedly advised that such constituted all of the hospital records and all other documents relative to said action.
. . . [I]n my contacts with Mr. Brothers he repeatedly advised me that this was the only report which had been received by him or by Grace Hospital from Dr. James.
*22 ... I was assured by Mr. Brothers that I had been furnished copies of all documents, including all letters from Dr. James, which had been received by the hospital.
... On Monday, December 30, 1974, at the time of the taking of the deposition, Mr. Kaufman brought to me a document which he advised was a copy of a letter from Dr. Dennis James. I advised Mr. Kaufman in the presence of Mr. Brothers to deliver this letter to Mr. Brothers so that he might thoroughly examine the same. After so doing, Mr. Kaufman handed this document to Mr. Brothers. Mr. Brothers explicitly stated to me and to Mr. Kaufman that the hospital had never received such a letter and that he could not recall receiving any information regarding the contents therеof. . . .
. . . Subsequent to the taking of the depositions, I received notification for the first time from Mr. Brothers that a second letter from Dr. James, dated October 23, 1972, had been received by the hospital but that he had been unable to locate the same prior to the taking of the deposition, despite repeated efforts to do so in response to the request of both myself and my client. . . .
. . . Mr. Brothers would testify that this was the first time that I had ever been furnished with a copy of the letter attached to his letter of January 2, 1975, and that I had been repeatedly advised that no such letter had been received by the hospital.
It thus appears that the testimony respondent complains was excluded was received in evidence without objection at several places throughout the record. Error in exclusion of evidence is harmless when other evidence of the same import is admitted. State
v. Smith,
Next, respondent contends the Commission erred in limiting the number of character witnesses he could present. Respondent
*23
cites no authority in support of his argument. He was allowed to present twenty witnesses and numerous letters as to character. The law is clear in North Carolina that the number of character witnesses may be limited by the court in the exercise of its discretion.
State v. Wright,
Respondent complains he was prejudiced by quеstions on cross-examination concerning incidents of which he had been acquitted in criminal trials. He was asked if he had been charged with the offense of attempting to tamper with a juror. This question was, of course, objectionable. 1 Stansbury’s N.C. Evidence §112 (Brandis rev. 1973). Later, however, respondent testified at length about his criminal trial, without objection. Any prejudice arising from the one question objected to was rendered harmless beyond a reasonable doubt by respondent’s subsequent testimony of the same import without objеction.
State v. Wills,
IV.
Respondent argues that the Commission erred in using the “greater weight of the evidence” rule as the standard of proof. He urges that the proper standard is the “clear, cogent and convincing” test, contending that the requirements of due process require a higher standard of proof when vested interests are to be affected.
Respondent recognizes that Article IX, Section 14(18), of the State Bar Rules, as in effect at the time of his hearing, adopts the standard of proof “by the greater weight of the evidence” in attorney disciplinary hearings. He urges us, nevertheless, to adopt the “clear, cogent and convincing” rule. Our Supreme Court, in
In re Palmer,
We are not convinced that we should impose our conception as to the appropriate standard of proof to these proceedings, when the General Assembly has empowered the State Bar to make such determination, and it has exercisеd that authority. We are aware that on 16 October 1980 the Council of The North Carolina State Bar adopted an amendment to section 14(18), changing the standard of proof to the “clear, cogent, and convincing” standard. However, the question before this Court is whether the rule in effect at the time of respondent’s hearing was violative of his constitutional rights. We hold that it was not. The Council acted within its authority in amending the rule, but such amendment does not invalidate proceedings conducted under the former rule. Moreover, we find the evidence in this proceeding ample to sustain a burden of proof beyond a reasonable doubt. The assignment of error is overruled.
V.
Last, respondent contends the findings of fact are not supported by substantial evidence and that those findings do not support the conclusions of the Commission and its decision. Without repeating our extensive review of the evidence, we hold there is substantial, competent evidence to support the findings of fact. This is true whether the “whole record” test is apрlied, or the “any competent evidence” standard of review is used. The whole record test
requires the Board’s judgment to be affirmed if upon consideration of the whole record as submitted, the facts found by the Board are supported by competent, material and substantia] evidence, taking into account any contradictory evidence, or evidence from which conflicting inferences could be drawn. Thompson v. Board of Education,292 N.C. 406 ,233 S.E. 2d 538 (1977). This test is distinguishable from both de novo review and the “any competent evidence” standard *25 of review. Under the “whole record” test the reviewing court cannot replace the Board’s judgment between two reasonably conflicting views, even though the court could have reached a different conclusion had the matter been before it de novo. “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Comr. of Insurance v. Rating Bureau,292 N.C. 70 , 80,231 S.E. 2d 882 , 888 (1977).
Boehm v. Board of Podiatry Examiners,
Further, we hold the findings of fact amply support the conclusions of law stated by the Commission. Respondent complains of the description of the testimony as “perjured,” but the Commission did not use the word in its technical legal sense, as used in the сriminal law. It was using the word as meaning “false swearing.” See Webster’s Third New International Dictionary 1682 (1971).
Respondent argues eloquently in his brief reasons why the Commission should have adopted his view of the facts from the evidence presented. Presumably, these arguments were made to the trier of the facts and rejected by it. At any rate, we cannot substitute our judgment for the Commission’s under either standard of review. Boehm, supra. Likewise, although the Commission makes strong arguments that this Court has the authority on this appeal to replace the discipline imposed upon respondent by one of оur own choosing, we do not find the law to be so. Under the statute, our review is limited to “matters of law or legal inference.” N.C. Gen. Stat. 84-28(h). Under that statute, we do not find authority for this Court to modify or change the discipline ordered by the Commission. By this ruling, we do not express any intimation of the authority of this Court to modify or change the *26 discipline ordered by a court, upon appellate review of a judicial disciplinary proceeding.
We hold that respondent had a full and fair hearing, in full compliance with the constitutional safeguards of due process. Upon the certification of this opinion to the Commission, the automatic stay imposed by the statute, N.C.G.S. 84-28(h), will be vacated.
Affirmed.