IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA16-809

Filed: 21 March 2017

Wake County, No. 15-CVD-9308

HARRIS & HILTON, P.A., Plaintiff,

v.

JAMES C. RASSETTE, a/k/a CHAD RASSETTE, Defendant.

Appeal by plaintiff from order entered 20 June 2016 by Judge Debra S. Sasser

in Wake County District Court. Heard in the Court of Appeals 31 January 2017.

Harris & Hilton, P.A., by Nelson G. Harris, for plaintiff-appellant.

Williams Mullen, by Kelly Colquette Hanley, for defendant-appellee.

DAVIS, Judge.

This case presents the question of whether a categorical exception to the 

applicability of Rule 3.7 of the North Carolina Rules of Professional Conduct exists in 

fee collection cases. Harris & Hilton, P.A. (“Harris & Hilton”) appeals from the trial 

court’s order disqualifying Nelson G. Harris (“Mr. Harris”) and David N. Hilton (“Mr. 

Hilton”) from appearing as trial counsel in this action based on their status as

necessary witnesses. Because this Court lacks the authority to create a new exception 

to Rule 3.7, we affirm the trial court’s order.

Factual and Procedural Background
HARRIS & HILTON, P.A. V. RASSETTE

Opinion of the Court

- 2 -

On 10 June 2015, Harris & Hilton filed the present action in Wake County 

District Court against James C. Rassette (“Defendant”) to recover attorneys’ fees for 

legal services the firm had allegedly provided to Defendant prior to that date. The 

complaint asserted that Harris & Hilton was entitled to recover $16,935.69 in unpaid 

legal fees. On 13 November 2015, Defendant filed an answer in which he asserted

various defenses, including an assertion that no contract had ever existed between 

the parties.

On 10 June 2016, a pre-trial conference was held before the Honorable Debra 

S. Sasser. During the conference, Judge Sasser expressed a concern about the fact 

that Harris & Hilton’s trial attorneys — Mr. Harris and Mr. Hilton — were also listed 

as witnesses who would testify at trial on behalf of Harris & Hilton. After 

determining that Mr. Harris and Mr. Hilton were, in fact, necessary witnesses who 

would be testifying regarding disputed issues such as whether a contract had actually 

been formed, Judge Sasser entered an order on 20 June 2016 disqualifying the two 

attorneys from representing Harris & Hilton at trial pursuant to Rule 3.7. On 27 

June 2016, Harris & Hilton filed a notice of appeal to this Court.

Analysis

I. Appellate Jurisdiction

As an initial matter, we must determine whether we possess jurisdiction over 

this appeal. “[W]hether an appeal is interlocutory presents a jurisdictional issue, and 
HARRIS & HILTON, P.A. V. RASSETTE

Opinion of the Court

- 3 -

this Court has an obligation to address the issue sua sponte.” Duval v. OM 

Hospitality, LLC, 186 N.C. App. 390, 392, 651 S.E.2d 261, 263 (2007) (citation, 

quotation marks, and brackets omitted). “A final judgment is one which disposes of 

the cause as to all the parties, leaving nothing to be judicially determined between 

them in the trial court.” Id. (citation omitted). Conversely, an order or judgment is 

interlocutory if it does not settle all of the issues in the case but rather “directs some 

further proceeding preliminary to the final decree.” Heavner v. Heavner, 73 N.C. App. 

331, 332, 326 S.E.2d 78, 80, disc. review denied, 313 N.C. 601, 330 S.E.2d 610 (1985).

“Generally, there is no right of immediate appeal from interlocutory 

orders . . . .” Paradigm Consultants, Ltd. v. Builders Mut. Ins. Co., 228 N.C. App. 

314, 317, 745 S.E.2d 69, 72 (2013) (citation and quotation marks omitted). The 

prohibition against interlocutory appeals “prevents fragmentary, premature and 

unnecessary appeals by permitting the trial court to bring the case to final judgment 

before it is presented to the appellate courts.” Russell v. State Farm Ins. Co., 136 

N.C. App. 798, 800, 526 S.E.2d 494, 496 (2000) (citation and brackets omitted).

However, there are two avenues by which a party may 

immediately appeal an interlocutory order or judgment. 

First, if the order or judgment is final as to some but not 

all of the claims or parties, and the trial court certifies the 

case for appeal pursuant to N.C. Gen. Stat. § 1A-1, Rule 

54(b), an immediate appeal will lie. Second, an appeal is 

permitted under N.C. Gen. Stat. §§ 1-277(a) and 7A27(d)(1) if the trial court’s decision deprives the appellant 

of a substantial right which would be lost absent 

immediate review.
HARRIS & HILTON, P.A. V. RASSETTE

Opinion of the Court

- 4 -

N.C. Dep’t of Transp. v. Page, 119 N.C. App. 730, 734, 460 S.E.2d 332, 334 (1995) 

(internal citations omitted).

In the present case, the trial court’s order is not a final judgment, and Judge 

Sasser’s order does not contain a certification under Rule 54(b). Therefore, this

appeal is proper only if Harris & Hilton is able to show the existence of a substantial 

right that would be lost absent an immediate appeal. See Embler v. Embler, 143 N.C. 

App. 162, 166, 545 S.E.2d 259, 262 (2001) (“The burden is on the appellant to 

establish that a substantial right will be affected unless he is allowed immediate 

appeal from an interlocutory order.”).

Harris & Hilton contends that because the trial court’s order serves to 

disqualify its chosen trial counsel, the order affects a substantial right that would 

otherwise be lost in the absence of an immediate appeal. This Court has held that 

“an order disqualifying counsel is immediately appealable because it affects a 

substantial right.” Robinson & Lawing, L.L.P. v. Sams, 161 N.C. App. 338, 339 n.3, 

587 S.E.2d 923, 925 n.3 (2003) (citation omitted). Thus, we possess jurisdiction over

this appeal.

II. Applicability of Rule 3.7

Harris & Hilton’s sole argument is that the trial court abused its discretion by 

disqualifying Mr. Harris and Mr. Hilton pursuant to Rule 3.7. “Decisions regarding 

whether to disqualify counsel are within the discretion of the trial judge and, absent 
HARRIS & HILTON, P.A. V. RASSETTE

Opinion of the Court

- 5 -

an abuse of discretion, a trial judge’s ruling on a motion to disqualify will not be 

disturbed on appeal.” Oliver v. Bynum, 163 N.C. App. 166, 169, 592 S.E.2d 707, 710 

(2004) (citation and quotation marks omitted). Under the abuse of discretion

standard, “we review to determine whether a decision is manifestly unsupported by 

reason, or so arbitrary that it could not have been the result of a reasoned decision.” 

Brewer v. Hunter, 236 N.C. App. 1, 8, 762 S.E.2d 654, 658 (citation and quotation 

marks omitted), disc. review dismissed, 367 N.C. 800, 766 S.E.2d 769 (2014).

Rule 3.7 states, in pertinent part, as follows:

(a) A lawyer shall not act as advocate at a trial in which 

the lawyer is likely to be a necessary witness unless:

(1) the testimony relates to an uncontested issue;

(2) the testimony relates to the nature and value of 

legal services rendered in the case; or

(3) disqualification of the lawyer would work 

substantial hardship on the client.

N.C. Rev. R. Prof. Conduct 3.7(a).

Rule 3.7 prohibits a lawyer from simultaneously serving in these dual roles 

because “[c]ombining the role of advocate and witness can prejudice the tribunal and 

the opposing party and can also involve a conflict of interest between the lawyer and 

client.” N.C. Rev. R. Prof. Conduct 3.7, cmt. 1. We have previously applied Rule 3.7 

in the context of fee collection cases. See, e.g., Robinson & Lawing, L.L.P., 161 N.C. 
HARRIS & HILTON, P.A. V. RASSETTE

Opinion of the Court

- 6 -

App. at 341, 587 S.E.2d at 925 (holding that trial court properly disqualified defense 

counsel based on her status as necessary witness in action to recover legal fees).

Harris & Hilton does not dispute the fact that (1) Mr. Harris and Mr. Hilton 

will both be necessary witnesses at trial; (2) their testimony will encompass material, 

disputed issues; and (3) none of the three above-quoted exceptions contained within 

Rule 3.7 are applicable. Nor does it contest the fact that a literal reading of Rule 3.7 

supports the trial court’s ruling. Instead, it asks this Court to adopt a new exception 

based on its contention that Rule 3.7 should not be applied in fee collection actions to 

disqualify counsel from both representing their own firm and testifying on its behalf.

Harris & Hilton argues that permitting a law firm’s attorney to serve both as 

trial counsel and as a witness in a fee collection case is no different than allowing 

litigants to represent themselves pro se. It is true that litigants are permitted under 

North Carolina law to appear pro se — regardless of whether the litigant is an 

attorney or a layperson. See N.C. Gen. Stat. § 1-11 (2015) (“A party may appear either 

in person or by attorney in actions or proceedings in which he is interested.”); N.C. 

Gen. Stat. § 84-4 (2015) (“[I]t shall be unlawful for any person or association of 

persons, except active members of the Bar . . . to practice as attorneys-at-law, to 

appear as attorney or counselor at law in any action or proceeding before any judicial 

body . . . except in his own behalf as a party thereto[.]” (emphasis added)). 
HARRIS & HILTON, P.A. V. RASSETTE

Opinion of the Court

- 7 -

However, the present case does not involve the ability of Mr. Harris or Mr. 

Hilton to represent themselves on a pro se basis. Instead, they seek to represent their 

law firm — a professional corporation — in a suit against a third party while 

simultaneously serving as witnesses on their firm’s behalf as to disputed issues of 

fact. It is well established that an entity such as Harris & Hilton is treated differently 

under North Carolina law than a pro se litigant. See LexisNexis, Div. of Reed Elsevier, 

Inc. v. Travishan Corp., 155 N.C. App. 205, 209, 573 S.E.2d 547, 549 (2002) (holding 

that under North Carolina law, a corporation is not permitted to represent itself pro 

se).

Harris & Hilton also makes a policy argument, contending that the current 

version of Rule 3.7 is archaic and fails to take into account the disproportionate 

economic burden on small law firms that are forced to hire outside counsel to litigate 

fee collection cases. However, in making this argument, Harris & Hilton 

misunderstands the role of this Court given that it is asking us not to interpret Rule 

3.7 but rather to rewrite it — a power that we simply do not possess.

N.C. Gen. Stat. § 84-23(a) states as follows:

The [North Carolina State Bar] is vested with the authority 

to regulate the professional conduct of licensed lawyers and 

State Bar certified paralegals. Among other powers, the 

[State Bar] shall . . . formulate and adopt rules of 

professional ethics and conduct . . . .
HARRIS & HILTON, P.A. V. RASSETTE

Opinion of the Court

- 8 -

N.C. Gen. Stat. § 84-23(a) (2015); see also Mebane v. Iowa Mut. Ins. Co., 28 N.C. App.

27, 30, 220 S.E.2d 623, 625 (1975) (“Chapter 84, Article 4 [of the North Carolina 

General Statutes] creates the [North Carolina] State Bar as the agency, subject to 

the superior authority of the General Assembly, to formulate and adopt rules of 

professional ethics and conduct for licensed attorneys.”).

Just as this Court lacks the authority to rewrite the General Statutes, see State 

v. Wagner, __ N.C. App. __, __, 790 S.E.2d 575, 582 (2016) (“Our courts lack the 

authority to rewrite a statute, and instead, the duty of a court is to construe a statute 

as it is written.” (citation, quotation marks, and brackets omitted)), disc. review 

denied, __ N.C. __, 795 S.E.2d 221 (2017), we similarly lack the ability to rewrite the 

Rules of Professional Conduct. Thus, the appropriate audience for Harris & Hilton’s

policy argument is the State Bar rather than this Court.

In sum, we cannot say that the trial court abused its discretion by applying 

Rule 3.7 as written as opposed to creating a new exception that neither appears 

within the Rule itself nor has been recognized by North Carolina’s appellate courts. 

Accordingly, we affirm the trial court’s disqualification order. See State v. Rogers, 

219 N.C. App. 296, 306, 725 S.E.2d 342, 348-49 (2012) (“[T]here is competent evidence 

in the record to support the trial court’s conclusion that [defense counsel] was likely 

to be a necessary witness at defendant’s trial and that none of the exceptions to Rule 

3.7 apply.”), appeal dismissed and disc. review denied, 366 N.C. 232, 731 S.E.2d 171 
HARRIS & HILTON, P.A. V. RASSETTE

Opinion of the Court

- 9 -

(2012); cert. denied, __ U.S. __, 133 S. Ct. 1604, 185 L. Ed. 2d 595 (2013); Braun v. Tr. 

Dev. Grp., LLC, 213 N.C. App. 606, 611, 713 S.E.2d 528, 531 (2011) (trial court did 

not err in granting defendants’ motion to disqualify pursuant to Rule 3.7 because 

plaintiff’s attorneys were necessary witnesses).

Conclusion

For the reasons stated above, the trial court’s 20 June 2016 order is affirmed.

AFFIRMED.

Judges DILLON and INMAN concur.