The NC State Bar v. Sutton ( 2016 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA15-1198
Filed: 18 October 2016
Disciplinary Hearing Commission of the North Carolina State Bar, No. 13 DHC 11
The NORTH CAROLINA STATE BAR, Plaintiff,
v.
DAVID C. SUTTON, Attorney, Defendant
Appeal by defendant from order entered 13 November 2014 by the Disciplinary
Hearing Commission of the North Carolina State Bar. Heard in the Court of Appeals
25 April 2016.
The North Carolina State Bar, by Deputy Counsel Carmen Hoyme Bannon and
Deputy Counsel David R. Johnson, for plaintiff-appellee.
David C. Sutton, pro se, for defendant-appellant.
DAVIS, Judge.
David C. Sutton (“Defendant”) appeals from an order of discipline entered by
the Disciplinary Hearing Commission (the “DHC”) of the North Carolina State Bar
suspending his law license for a period of five years after determining that he had
committed numerous violations of the North Carolina Rules of Professional Conduct.
In addition to asserting challenges to various constitutional and procedural aspects
of his disciplinary proceeding, Defendant argues on appeal that a number of the
DHC’s findings of fact were not supported by evidence in the record and that several
of its legal conclusions were incorrect. After careful review, we affirm.
Factual Background
NORTH CAROLINA STATE BAR V. SUTTON
Opinion of the Court
The State Bar initiated this disciplinary proceeding by filing a complaint on 3
April 2013. At all relevant times, Defendant, who was admitted to the North Carolina
Bar in 2001, was engaged in the practice of law and maintained an office in
Greenville, North Carolina. Defendant’s disciplinary proceeding concerned
allegations of misconduct by him that spanned multiple years and involved his
representation of clients in a number of different cases.
The matter was assigned to a hearing panel of the DHC on 23 April 2013. After
an earlier amended complaint was filed, the DHC permitted the State Bar to file its
second amended complaint on 4 December 2014.
Disciplinary proceedings are divided into two phases: (1) the adjudicatory
phase, during which the DHC determines whether the defendant has committed
misconduct; and (2) the dispositional phase, during which the DHC determines the
appropriate sanction for any misconduct that was found to exist. N.C. State Bar v.
Talford, 356 N.C. 626, 636, 576 S.E.2d 305, 312 (2003). The DHC received evidence
and heard arguments in connection with the adjudicatory phase of the proceeding
from 5–9 May and 9–11 June 2014. On 8 August 2014, the DHC issued its final
findings and conclusions relating to the adjudicatory phase in which it determined
that Defendant had committed 28 separate violations of the Rules of Professional
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Opinion of the Court
Conduct.1
The allegations against Defendant stemmed from his actions in seven specific
matters during the course of his practice of law. The following is an overview of the
facts relating to these matters and the accompanying findings of misconduct made by
the DHC in connection with each of them.
I. The Pollard Matter
Defendant represented Barbara Pollard in a wrongful death lawsuit against
her daughter-in-law in connection with the 2005 death of Pollard’s son, Stacey
Pollard. During Pollard’s May 2011 deposition, which was taken by attorney Kathryn
Fagan, Defendant repeatedly interjected his own questions and commentary, made
sarcastic remarks, coached Pollard on how to respond to particular questions, and
answered questions for Pollard. After the deposition had concluded, Defendant stated
— in the presence of his client, the court reporter, and a law student in attendance
— “Fagan, you know what your problem is? Your problem is that you need a
boyfriend or a husband or something. . . . I understand your client goes both ways so
. . . maybe you could have a little lickety-lick with her.”2
1 The DHC had issued an initial version of its findings and conclusions regarding the
adjudicatory phase on 18 July 2014. The DHC subsequently released a corrected version of these
findings and conclusions on 8 August 2014.
2 The DHC concluded that these actions violated Rule 3.5(a)(4) (conduct intended to disrupt a
tribunal), Rule 8.4(d) (conduct prejudicial to the administration of justice), and Rule 4.4(a) (using
means that have no substantial purpose other than to embarrass or burden a third person).
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Opinion of the Court
In connection with Defendant’s representation of Pollard, a website
(justice4stacey.com) was created in July 2007 to solicit information from members of
the public who may have had knowledge relating to the death of Pollard’s son. News
articles were also posted on the website, and there was a section where members of
the public could post public comments.
In August 2011, Fagan filed a motion for a change of venue based on what she
characterized as the “vilification” of her client resulting from the website, which she
asserted was “sponsored” by Defendant. In response, Defendant filed an affidavit in
which he falsely stated that he “did not ‘sponsor’ any website[.]” Defendant made this
representation despite the fact that he (1) had taken part in discussions with Pollard’s
family regarding setting up the website; (2) was the initial registrant and
administrator of the website and paid the web hosting fees; (3) possessed the
password necessary to post materials on the website and did, in fact, post certain
items; and (4) was listed as the website’s contact person along with his email address
and phone number.3
II. The Langston Matter
In 2011, Defendant represented Rita Langston in a family law case in which
the opposing counsel was Brantley Peck, Jr. During Langston’s May 2011 deposition,
3 The DHC concluded that Defendant’s misrepresentation regarding his sponsorship of the
website violated Rule 8.4(c) (conduct involving dishonesty, fraud, deceit, or misrepresentation) and
Rule 8.4(d) (conduct prejudicial to the administration of justice).
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Opinion of the Court
Defendant repeatedly interrupted Peck’s questioning, provided testimony for
Langston, and interjected his own questions. Defendant also accused Peck during
the deposition of being “complicit” with theft and referred to one of Peck’s statements
as “a damn lie.” Shortly after this attack, Defendant abruptly terminated the
deposition and refused to allow Peck to complete his deposition of Langston.4
Approximately one year later, Defendant made two false statements in
connection with the Langston Matter. First, Defendant informed the court that a
corporation formed by the parties in the case had been “annulled” by North Carolina’s
Secretary of State because the opposing party had forged corporate documents. In
reality, Defendant knew that the corporation had been administratively dissolved by
the Secretary of State rather than dissolved because of fraud. Second, Defendant
accused opposing counsel in open court of “slipping” a handwritten provision into a
settlement agreement without Defendant’s knowledge or approval when, in fact,
Defendant knew about — and had actually agreed to — the added provision.5
III. The Gorham Matter
During a trial in Greene County Superior Court in 2012 at which Defendant
4 The DHC concluded that Defendant’s actions during this deposition violated Rule 3.4(c)
(knowingly disobeying an obligation under the rules of a tribunal), Rule 3.5(a)(4) (conduct intended to
disrupt a tribunal), and Rule 8.4(d) (conduct prejudicial to the administration of justice).
5 The DHC concluded that these misrepresentations violated Rule 8.4(c) (conduct involving
dishonesty, deceit or misrepresentation), Rule 8.4(d) (conduct prejudicial to the administration of
justice), and Rule 3.3(a)(1) (making a false statement of material fact to a tribunal).
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was representing a defendant charged with murder, Judge Phyllis Gorham
admonished Defendant for repeatedly failing to display respect for the court and to
yield to its rulings. Later in the trial, with the jury present in the courtroom,
Defendant approached the bench without having received permission and in a “loud
and argumentative” tone accused the prosecutor of attempting to offer inadmissible
evidence. He then noticeably grimaced at Judge Gorham. This behavior necessitated
Judge Gorham calling a recess in order to address Defendant’s behavior.6
IV. The Davenport Matter
In 2012, Defendant represented Jonathan Davenport in a dispute arising from
a previous business relationship between Davenport and Billy Roughton. Davenport
was ultimately charged by state and federal authorities with crimes arising from this
business relationship. Defendant recorded, and then uploaded to YouTube, a video
of an incident in which he confronted Pasquotank County Sheriff’s Office Investigator
Sam Keith, the investigating officer in Davenport’s case, and accused the Sheriff’s
Office of engaging in criminal conduct by not handing over certain property to
Davenport. Defendant later admitted that his purpose in uploading the video to
YouTube was not to further his representation of Davenport but rather to be a “smart
6 The DHC concluded that Defendant’s behavior before Judge Gorham violated Rule 3.4(c)
(knowingly disobeying an obligation under the rules of a tribunal), Rule 8.4(d) (conduct prejudicial to
the administration of justice), and Rule 3.5(a)(4)(B) (conduct intended to disrupt a tribunal).
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aleck.”7
The following day, Defendant sent a letter on behalf of Davenport directly to
Roughton and the Sheriff of Pasquotank County accusing them of conspiring to
violate Davenport’s rights and engaging in malicious prosecution. At the time
Defendant sent this letter — in which he demanded $3 million to settle the matter —
he knew that both Roughton and the sheriff were represented by counsel.8
V. The Shackley Matter
In 2013, Defendant represented Norman Shackley on a charge of
impersonating a law enforcement officer. In connection with the case, Defendant
obtained by subpoena phone records from one of the State’s witnesses, Jimmy
Hughes. At 10:00 p.m. one evening, Defendant called a phone number listed in these
records and told the person who answered the phone, Jean Sugg (whom Defendant
did not know), that Hughes had “hit on” Shackley’s wife, who had “big boobs” and ran
a prostitute website.9
VI. The Dolenti Matter
7 The DHC concluded that these actions violated Rule 4.4(a) (using means in representing a
client that have no substantial purpose other than to embarrass or burden a third person).
8The DHC concluded that Defendant’s actions in sending the letter violated Rule 4.2
(communicating with persons known to be represented by counsel).
9 The DHC concluded that this conduct violated Rule 4.4(a) (using means in representing a
client that have no substantial purpose other than to embarrass or burden a third person).
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Defendant defended a client charged with child abuse in 2013. Upon learning
that the district attorney had refused to drop the charges against his client,
Defendant left a voicemail for Detective Nikki Dolenti, the investigating officer in the
case, in which he made the following statement in a harsh and threatening tone: “You
obviously don’t know what the hell you’re doing. So I’m just gonna whoop your ass
real bad next week unless you get your ass down there and get this case dismissed.
And do your job and have some sense.”10
VII. The Deans Matter
Defendant was arrested by the Pitt County Sheriff’s Office as a result of his
voicemail to Detective Dolenti. At the time, Defendant was representing the Pitt
County Sheriff’s daughter, Laura Deans, and son-in-law in an adoption proceeding
that was set to be finalized within the month. Defendant, who was “mad as hell” and
“wanted to get back at the [Sheriff],” left a voicemail with Deans stating that he had
been handling her case “as a favor to your dad when I thought that he wasn’t trying
to f*** me too, but I can’t do that anymore, and I don’t know that you need to be in
my office or I need to have y’all around.” Defendant also made explicit and crude
comments during the voicemail regarding the sheriff, his wife, and the Pitt County
10 The DHC concluded that this conduct violated Rule 4.4(a) (using means in representing a
client that have no substantial purpose other than to embarrass or burden a third person) and Rule
8.4(d) (conduct prejudicial to the administration of justice).
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district attorney.11
During a subsequent phone call with Deans, Defendant demanded immediate
payment of his fee — despite the lack of a prior agreement as to when his fee would
be due — and refused to respond to Deans’ questions regarding the status of the
adoption or the steps she needed to take to finalize the adoption. Defendant ceased
work on the case and did not have any further interaction with Deans.12
****
After determining in its 8 August 2014 order that Defendant had violated the
Rules of Professional Conduct in connection with the seven matters summarized
above, the DHC held hearings from 16–18 September and 22–23 October 2014 for the
dispositional phase of the proceeding during which it received additional evidence
and heard arguments. On 13 November 2014, the DHC issued its Order of Discipline
— upon which the present appeal is based — in which it (1) recited the violations of
the Rules of Professional Conduct it had found in its 8 August 2014 order; (2) made
11The DHC concluded that Defendant’s statements on the voicemail violated Rule 4.4(a) (using
means in representing a client that have no substantial purpose other than to embarrass or burden a
third person).
12 The DHC concluded that by virtue of his actions with regard to Deans’ case, Defendant
violated Rules 8.4(a) and (g) (attempting to intentionally prejudice a client during the course of the
professional relationship), Rule 1.16(d) (failing to take reasonably practicable steps to protect a client’s
interests upon termination of the representation), Rule 1.4(a) (failing to comply with a reasonable
request for information), and Rule 1.4(b) (failing to explain a matter to the extent reasonably necessary
to permit a client to make informed decisions about the representation).
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additional findings of fact relating to the dispositional phase; and (3) imposed a five-
year suspension of Defendant’s law license.
The extensive additional findings of fact in the Order of Discipline relating to
the dispositional stage described numerous other instances of abusive, belligerent,
threatening, and profane communications and conduct by Defendant — both inside
and outside of the courtroom — that occurred between 2008 and 2014.13 The Order
of Discipline also noted numerous examples of
a recurrent pattern in Defendant’s practice of law. When
Defendant believes someone with whom he interacts
professionally is wrong about the facts, the law, procedure,
or a matter of judgment, he demands instant redress. If the
person with whom he disagrees does not immediately
capitulate, Defendant threatens to harm that individual in
some way.
The Order of Discipline further noted numerous incidents demonstrating
Defendant’s penchant for “us[ing] graphic sexual commentary to embarrass and/or
demean others in professional contexts.” It also cited numerous instances showing
that “in retaliation for perceived wrongs, [Defendant] is willing to breach his duty of
13 These additional incidents included, without limitation, Defendant referring to the
Pasquotank County Attorney as an “idiot” who made “asinine” assertions and “should be ashamed of
himself”; accusing attorney Shearin of engaging in “Gestapo tactics”; acting “disruptive and
disrespectful” to a Superior Court judge in Hertford County and accusing the district attorney in that
case — in front of a jury — of lying; accusing another assistant district attorney of being “mentally ill”
and a “f***ing Nazi” and stating to him, “I am telling you this son, and I can call you son because that’s
what you deserve to be called, if I didn’t have a bar license, you would be a greasy spot on that table”;
referring to the Greensboro Police Chief alternatively as “Mohammed,” “Sahheb,” and “Ahmed” when
his name was actually Hassan Aden; and ordering a Superior Court judge — in open court and in the
presence of the public — to “wipe the smirk off [his] face.”
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loyalty to clients and former clients by disclosing confidential information and/or
attempting to prejudice their interests.” Finally, the Order of Discipline stated that
[t]here is no indication that Defendant has taken
ownership of his misconduct or its consequences. He has
not acknowledged violating the Rules of Professional
Conduct, expressed remorse, or shown any insight
regarding his lack of professionalism. In his testimony
during the discipline phase of this case, Defendant
maintained that he didn’t do anything wrong, has nothing
to apologize for, and will continue to conduct himself in the
same manner if permitted to continue practicing law.
Defendant filed a timely notice of appeal on 10 December 2014.
Analysis
Defendant raises a variety of arguments on appeal, which can be organized
into two general categories. First, he makes several constitutional and procedural
arguments in connection with his disciplinary proceeding and the Order of Discipline.
Second, he challenges the validity of certain findings of fact and conclusions of law
made by the DHC in determining that he had violated the Rules of Professional
Conduct. We address each category below.
I. Standard of Review
Pursuant to N.C. Gen. Stat. § 84-28, the DHC has the power to discipline any
attorney admitted to practice law in the State of North Carolina upon determining
that the attorney has violated the North Carolina Rules of Professional Conduct.
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N.C. Gen. Stat. § 84-28(b)(2) (2015). A party may appeal to this Court from a final
order of the DHC. N.C. Gen. Stat. § 84-28(h).
We review disciplinary orders of the DHC under the whole record test, which
requires the reviewing court to determine if the DHC’s
findings of fact are supported by substantial evidence in
view of the whole record, and whether such findings of fact
support its conclusions of law[.] Such supporting evidence
is substantial if a reasonable person might accept it as
adequate backing for a conclusion.
Talford, 356 N.C. at 632, 576 S.E.2d at 309-10 (internal citation and quotation marks
omitted). “Moreover, in order to satisfy the evidentiary requirements of the whole-
record test in an attorney disciplinary action, the evidence used by the DHC to
support its findings and conclusions must rise to the standard of clear, cogent, and
convincing.” Id. at 632, 576 S.E.2d at 310 (citation, quotation marks, and brackets
omitted).
The whole record test also mandates that “the reviewing court must take into
account any contradictory evidence or evidence from which conflicting inferences may
be drawn.” Id. However, “[t]he mere presence of contradictory evidence does not
eviscerate challenged findings, and the reviewing court may not substitute its
judgment for that of the DHC. The DHC determines the credibility of the witnesses
and the weight of the evidence.” N.C. State Bar v. Adams, __ N.C. App. __, __, 769
S.E.2d 406, 411 (2015) (internal citation, quotation marks, and brackets omitted).
Thus, “[t]he whole record test does not allow the reviewing court to replace the
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[DHC’s] judgment as between two reasonably conflicting views, even though the court
could justifiably have reached a different result had the matter been before it de
novo.” N.C. State Bar v. Nelson, 107 N.C. App. 543, 550, 421 S.E.2d 163, 166 (1992)
(citation and quotation marks omitted), aff’d per curiam, 333 N.C. 786, 429 S.E.2d
716 (1993).
II. Constitutional and Procedural Arguments
A. Constitutionality of the DHC’s Disciplinary Authority
Defendant asserts that the Order of Discipline is null and void because the
“DHC encroaches on the judiciary and violates separation of powers” principles. In
making this argument, Defendant directs our attention to Article III, Section 11 of
the North Carolina Constitution, which states that
all administrative departments, agencies, and offices of the
State and their respective functions, powers, and duties
shall be allocated by law among and within not more than
25 principal administrative departments so as to group
them as far as practicable according to major purposes.
Regulatory, quasi-judicial, and temporary agencies may,
but need not, be allocated within a principal department.
N.C. Const. art. III, § 11. He then points to Article IV, Section 3, which provides that
the “General Assembly may vest in administrative agencies established pursuant to
law such judicial powers as may be reasonably necessary as an incident to the
accomplishment of the purposes for which the agencies were created.” N.C. Const.
art. IV, § 3.
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Defendant contends that the State Bar — through the DHC — may not
constitutionally exercise judicial power because it is not housed in one of the 25
principal departments referenced in Article III, Section 11. However, Defendant
provides no authority for this assertion, and we fail to see how it could be supported,
given that the same constitutional language he relies upon specifically states that
“[r]egulatory [and] quasi-judicial . . . agencies may, but need not, be allocated within
a principal department.”14 N.C. Const. art. III, § 11 (emphasis added).
We also find meritless Defendant’s contention that the State Bar
impermissibly encroaches on the power of North Carolina’s Judicial Branch to impose
discipline in cases involving attorney misconduct. Our Supreme Court has
specifically held that the State Bar and the courts of North Carolina “share
concurrent jurisdiction over matters of attorney discipline” and that “questions
relating to the propriety and ethics of an attorney are ordinarily for the consideration
of the North Carolina State Bar.” N.C. State Bar v. Randolph, 325 N.C. 699, 701, 386
S.E.2d 185, 186 (1989) (citation omitted). That concurrent jurisdiction does not
undermine the “inherent powers of a court to deal with its attorneys.” Id. (citation
omitted). This Court has explained that
under the system of concurrent jurisdiction over attorney
conduct and discipline in effect in North Carolina, both the
14In his brief, Defendant cites to N.C. State Bd. of Dental Examiners v. F.T.C., __ U.S. __, 135
S. Ct. 1101, 191 L. Ed. 2d 35 (2015), a case considering whether the North Carolina Board of Dental
Examiners was entitled to immunity from suit under federal antitrust law. However, he fails to
demonstrate how that case is relevant to the present action.
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State Bar and the courts have an important role to play in
assuring that attorneys conduct themselves properly, with
the courts focusing on protecting themselves from fraud
and impropriety and serving the ends of the administration
of justice, while the State Bar has responsibility for the
broad range of questions relating to the propriety and
ethics of an attorney, and with neither to act in such a
manner as to disable or abridge the powers of the other.
Cunningham v. Selman, 201 N.C. App. 270, 284, 689 S.E.2d 517, 526 (2009) (internal
citations, quotation marks, and brackets omitted).
Defendant provides no basis for his assertion that the State Bar’s actions in
the present case usurped the role of North Carolina’s judiciary in regulating attorney
misconduct. Accordingly, we overrule Defendant’s argument on this issue.
B. Due Process
In his brief, Defendant makes the sweeping assertion that the entire
disciplinary “process was biased and void of fairness and due process and must be
vacated.” In support of this contention, Defendant expresses his disagreement with
various witnesses’ testimony, actions of the State Bar, statements of DHC members,
and rulings of the DHC.
However, because Defendant fails to provide any substantive arguments or
legal authority supporting his contention that the proceeding as a whole violated his
right to due process on account of bias or unfairness, we deem this issue abandoned
pursuant to Rule 28(b)(6) of the North Carolina Rules of Appellate Procedure. See
N.C. R. App. P. 28(b)(6) (“Issues not presented in a party’s brief, or in support of which
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no reason or argument is stated, will be taken as abandoned.”); N.C. State Bar v.
Ethridge, 188 N.C. App. 653, 668, 657 S.E.2d 378, 387 (2008) (“[D]efendant fails to
cite any authority for his assignments of error regarding DHC’s failure to properly
weigh the aggravating and mitigating factors. As such, these assignments of error
are deemed abandoned pursuant to N.C.R. App. P. 28(b)(6)[.]”).
Moreover, based on our own thorough review of the extensive record in this
case, we are satisfied that the DHC conducted a fair and unbiased process that fully
comported with principles of due process. Defendant was given proper notice of the
allegations against him; he was allowed access to the evidence supporting these
allegations; he was permitted to call his own witnesses, introduce evidence, and cross-
examine opposing witnesses; and he was able to file motions and make legal
arguments. This disciplinary action spanned one-and-a-half years and produced a
record exceeding 10,000 pages. The DHC ruled on numerous motions filed by
Defendant and issued orders containing extensive and detailed findings of fact and
conclusions of law. Therefore, the record belies Defendant’s assertion that he was
denied due process in connection with his disciplinary proceeding.
C. Freedom of Speech
Defendant next makes the broad assertion that the Rules of Professional
Conduct are unconstitutional — either facially or as applied to him — to the extent
that they allowed him to be punished for speech that is protected by the First
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Amendment to the United States Constitution.15 However, Defendant fails to make
any particularized arguments as to which rules he specifically believes are either
facially unconstitutional or have been unconstitutionally applied to him. As such, he
has waived his right to appellate review of this issue by failing to satisfy his burden
as the appellant in this appeal to show a specific deprivation of his legal rights. See
State v. Billups, 301 N.C. 607, 616, 272 S.E.2d 842, 849 (1981) (“[T]he appellant must
show error positive and tangible, that has affected his rights substantially and not
merely theoretically, and that a different result would have likely ensued.” (citation
and quotation marks omitted)).
Nevertheless, we take this opportunity to reject Defendant’s categorical
assertion that the First Amendment provides attorneys with blanket immunity from
facing disciplinary sanctions for violating the ethical rules applicable to lawyers in
North Carolina simply because those violations involve some form of speech. As a
general proposition, the First Amendment does not immunize an attorney from being
disciplined for violating the Rules of Professional conduct simply because the attorney
employs “speech” in committing the violations. As with all constitutional rights, the
right to free speech is not absolute.
15 We note that while this case was pending before the DHC, Defendant asserted several First
Amendment claims arising from this disciplinary proceeding in a lawsuit against the State Bar filed
in Wake County Superior Court. That complaint was dismissed, and Defendant did not appeal the
decision.
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As our Supreme Court has stated,
[f]reedom of speech is not an unlimited, unqualified right.
Speech may be subordinated to other values and
considerations, and may be reasonably restrained as to
time and place. It is well settled that, within proper limits,
the right of free speech is subject to legislative restriction
when such restriction is in the public interest. . . . The
constitutional right of freedom of speech does not extend . . .
to every use and abuse of the spoken and written word.
State v. Leigh, 278 N.C. 243, 250, 179 S.E.2d 708, 712 (1971) (internal citation
omitted).
Indeed, the United States Supreme Court has recognized that certain
restrictions on speech apply uniquely to attorneys.
It is unquestionable that in the courtroom itself, during a
judicial proceeding, whatever right to “free speech” an
attorney has is extremely circumscribed. An attorney may
not, by speech or other conduct, resist a ruling of the trial
court beyond the point necessary to preserve a claim for
appeal. Even outside the courtroom, a majority of the Court
in two separate opinions [has] observed that lawyers in
pending cases were subject to ethical restrictions on speech
to which an ordinary citizen would not be.
Gentile v. State Bar of Nev., 501 U.S. 1030, 1071, 115 L. Ed. 2d 888, 921 (1991); see,
e.g., id. at 1073, 115 L. Ed. 2d at 922 (noting that in cases relating to regulation of
advertising the Supreme Court has “not suggested that lawyers are protected by the
First Amendment to the same extent as those engaged in other businesses”);
Sheppard v. Maxwell, 384 U.S. 333, 363, 16 L. Ed. 2d 600, 620 (1966) (explaining that
“[c]ollaboration between counsel and the press as to information affecting the fairness
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of a criminal trial is not only subject to regulation, but is highly censurable and
worthy of disciplinary measures”).
In balancing the First Amendment rights of attorneys against the ability of
states to discipline attorneys for unethical conduct, courts are to “engage[ ] in a
balancing process, weighing the State’s interest in the regulation of a specialized
profession against a lawyer’s First Amendment interest in the kind of speech that
was at issue.” Gentile, 501 U.S. at 1073, 115 L. Ed. 2d at 922. The Supreme Court
has explained that “[s]tates have a compelling interest in the practice of professions
within their boundaries, and as part of their power to protect the public health, safety,
and other valid interests they have broad power to establish standards for licensing
practitioners and regulating the practice of professions.” Fla. Bar v. Went For It, Inc.,
515 U.S. 618, 625, 132 L. Ed. 2d 541, 550 (1995) (citation, quotation marks, and
ellipses omitted).
Moreover, “[t]he interest of the States in regulating lawyers is especially great
since lawyers are essential to the primary governmental function of administering
justice, and have historically been ‘officers of the courts.’ ” Goldfarb v. Va. State Bar,
421 U.S. 773, 792, 44 L. Ed. 2d 572, 588 (1975) (citation omitted). As such, the
Supreme Court has recognized the substantial interest possessed by states both in
“protect[ing] the integrity and fairness of a State’s judicial system,” Gentile, 501 U.S.
at 1075, 115 L. Ed. 2d at 923, and in “protect[ing] the flagging reputations of . . .
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lawyers by preventing them from engaging in conduct that . . . is universally regarded
as deplorable and beneath common decency . . . [,]” Went For It, 515 U.S. at 625, 132
L. Ed. 2d at 550 (quotation marks omitted).
We recognize that the precise contours of the restrictions that the First
Amendment imposes on the power of states to regulate attorney speech are not
always clear. However, judicial resolution of such questions may only occur in cases
where, unlike here, the issues have been properly presented to the court.
D. Assistance of Co-counsel
Defendant next contends that the DHC violated his right to counsel by
granting the State Bar’s motion that he be required to choose between either
representing himself or being represented by counsel. At the beginning of his
disciplinary proceeding, Defendant attempted to simultaneously represent himself
and employ the assistance of co-counsel. The DHC ruled that Defendant would have
to choose between proceeding pro se or, alternatively, being represented by counsel.
According to N.C. Gen. Stat. § 1-11, “[a] party may appear either in person or
by attorney in actions or proceedings in which he is interested.” N.C. Gen. Stat. § 1-
11 (2015). Our Supreme Court has construed this provision to mean that a litigant
“has no right to ‘appear’ both by himself and by counsel.” Hamlin v. Hamlin, 302
N.C. 478, 482, 276 S.E.2d 381, 384-85 (1981). While Defendant argues that this
general rule should be modified when the party is an attorney, he cites no legal
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Opinion of the Court
authority for this position, and we have been unable to locate any caselaw that would
support his argument. Accordingly, we conclude that the DHC’s ruling on this issue
was proper.
E. Amendment to Complaint
Defendant also contends that the DHC improperly allowed the State Bar to file
a second amended complaint containing additional allegations that were not
sufficiently related to the allegations in the original complaint. The motion seeking
leave to file the second amended complaint was filed on 4 November 2013, and it was
granted on 3 December 2013 without any response from Defendant having been filed.
The DHC heard evidence relating to the new allegations during the hearings for the
adjudicatory phase, which concluded on 11 June 2014. Defendant did not raise any
challenge to this amendment until 6 August 2014 — approximately eight months
after the motion to amend was granted and almost two months after the DHC
concluded its evidentiary hearings on all of the allegations, including those contained
in the second amended complaint.
Unless an issue is automatically preserved by law, “[i]n order to preserve an
issue for appellate review, a party must have presented to the trial court a timely
request, objection, or motion, stating the specific grounds for the ruling the party
desired the court to make if the specific grounds were not apparent from the context.”
N.C. R. App. P. 10(a)(1) (emphasis added). Defendant has presented no legal
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Opinion of the Court
authority supporting the proposition that this issue was automatically preserved or
was preserved by his untimely objection filed months after the motion to amend was
filed and granted. Accordingly, we hold that due to his failure to raise a timely
objection to the filing of the second amended complaint, Defendant has waived his
right to appellate review of this issue. See N.C. State Bar v. Beaman, 100 N.C. App.
677, 684, 398 S.E.2d 68, 72 (1990) (because “no objection to the State Bar’s motion to
amend its complaint to include [the defendant]’s alleged violation of Rule 1.2(D) was
made and . . . his alleged violation of this rule was argued before the Committee . . .
[,] the issue will be treated as being properly pled”).
F. Signatures on Complaints
Defendant next argues that the DHC lacked subject matter jurisdiction
because the chairperson of the State Bar’s Grievance Committee did not physically
sign the original complaint or the second amended complaint. According to the State
Bar Discipline and Disability Rules, once the Grievance Committee has determined
that probable cause exists to believe that a violation of the Rules of Professional
Conduct has occurred, a formal complaint is filed. 27 N.C. Admin Code 1B.0113(a).
“Formal complaints will be issued in the name of the North Carolina State Bar as
plaintiff and signed by the chairperson of the Grievance Committee. Amendments to
complaints may be signed by the counsel alone, with the approval of the chairperson
of the Grievance Committee.” 27 N.C. Admin Code 1B.0113(n).
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Here, the original complaint contained a digital image of the signature of the
then-chairperson of the Grievance Committee, Margaret M. Hunt. That complaint,
as well as the second amended complaint, also bore the signatures of counsel for the
State Bar.16 Defendant has cited to no legal authority providing that it was
impermissible for the Grievance Committee chairperson to use an electronic
reproduction of her signature on the initial complaint.
Indeed, our Supreme Court has explained that “public documents may be
authenticated by mechanical reproduction of the signature of the authorized officer
when he intends to adopt the mechanical reproduction as his signature.” State v.
Watts, 289 N.C. 445, 449, 222 S.E.2d 389, 392 (1976); see id. at 448, 222 S.E.2d at 391
(“[I]n legal contemplation ‘to sign’ means to attach a name or cause it to be attached
by any of the known methods of impressing the name on paper with the intention of
signing it.”). Accordingly, we reject Defendant’s argument that subject matter
jurisdiction was lacking simply because Hunt signed the original complaint by means
of an electronic signature.17
G. Notice of Factors to be Considered at Dispositional Phase
16 After Defendant challenged the lack of an original signature on the initial complaint, the
DHC allowed the State Bar to retroactively file versions of the complaints containing Hunt’s original
ink signature.
17 We note that pursuant to 27 N.C. Admin Code 1B.0113(n), the Grievance Committee
chairperson was only required to approve, rather than sign, the amended complaints.
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Opinion of the Court
Defendant also argues that he was not provided advance “notice of the
aggravating factors that the [State] Bar intended to use against him” during the
dispositional phase of the proceeding. Pursuant to the Discipline and Disability
Rules, “[i]f the charges of misconduct are established, the hearing panel will then
consider any evidence relevant to the discipline to be imposed.” 27 N.C. Admin. Code
1B.0114(w). These rules, in turn, list factors that the DHC is to consider in all cases,
see 27 N.C. Admin. Code 1B.0114(w)(3), as well as additional factors to be considered
in cases where the DHC imposes a sanction of disbarment or suspension, see 27 N.C.
Admin. Code 1B.0114(w)(1).
Defendant provides no authority — nor have we found any — in support of his
contention that the State Bar was required to notify him in advance of which
particular factors in 27 N.C. Admin. Code 1B.0114(w) it planned to argue were
relevant at the dispositional phase. Moreover, the statute itself gave Defendant
notice of the list of factors that the State Bar could rely upon. We note that Defendant
does not dispute that he received in discovery notice of all the facts the State Bar
sought to establish in both the adjudicatory and dispositional phases of the
proceedings. Accordingly, we do not find merit in Defendant’s argument on this issue.
H. Adequacy of Findings and Conclusions at Dispositional Phase
In addition, Defendant contends that the DHC never provided him with
adequate reasons for the sanction it imposed against him and that the DHC acted
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Opinion of the Court
improperly in largely adopting the proposed findings and conclusions submitted by
the State Bar.
In imposing a disciplinary sanction, the DHC must support its “choice with
written findings that . . . are consistent with the statutory scheme of N.C.G.S. § 84-
28[.]” Talford, 356 N.C. at 638, 576 S.E.2d at 313. N.C. Gen. Stat. § 84-28 provides
five levels of punishment for attorney misconduct: disbarment, suspension, censure,
reprimand, and admonition. N.C. Gen. Stat. § 84-28(c). Our Supreme Court has
explained that the statutory scheme set out in N.C. Gen. Stat. § 84-28 “clearly
evidences an intent to punish attorneys in an escalating fashion keyed to: (1) the
harm or potential harm created by the attorney’s misconduct, and (2) a demonstrable
need to protect the public.” Talford, 356 N.C. at 637-38, 576 S.E.2d at 313 (emphasis
omitted). Furthermore,
in order to merit the imposition of suspension or
disbarment, there must be a clear showing of how the
attorney’s actions resulted in significant harm or potential
significant harm to [a client, the administration of justice,
the profession, or members of the public], and there must
be a clear showing of why suspension and disbarment are
the only sanction options that can adequately serve to
protect the public from future transgressions by the
attorney in question. . . . Thus, upon imposing a given
sanction against an offending attorney, the DHC must
provide support for its decision by including adequate and
specific findings that address these two key statutory
considerations.
Id. at 638, 576 S.E.2d at 313 (quotation marks and emphasis omitted).
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Opinion of the Court
Here, the dispositional portion of the Order of Discipline included (1) extensive
factual findings as to Defendant’s actions that clearly caused significant — or
potentially significant — harm to clients, the administration of justice, the profession,
and members of the public;18 (2) conclusions of law regarding the specific factors set
forth in 27 N.C. Admin. Code 1B.0114(w) relevant to this case; and (3) an explanation
as to why a five-year suspension was the least severe sanction necessary to protect
the public from future transgressions by Defendant.
On this last point, the DHC stated the following in its Order of Discipline:
7. Defendant’s persistent pattern of misconduct
up through and including his actions in this disciplinary
proceeding indicate that Defendant is either unwilling or
unable to conform his behavior to the requirements of the
Rules of Professional Conduct. Defendant refuses to
acknowledge the wrongfulness of his conduct and stated
that he does not intend to modify his behavior. Accordingly,
if Defendant were permitted to continue practicing law, he
would pose a significant risk of continued harm to clients,
the profession, the public, and the administration of
justice.
8. The Hearing Panel finds that admonition,
18 The DHC dedicated 13 single-spaced pages of the dispositional portion of its Order of
Discipline to describe numerous incidents involving actual or potential harm caused by Defendant’s
actions. Defendant does not make any specific challenges to these findings. Rather, he asserts that
(1) the DHC did not tie the incidents described in those findings to specific violations of the Rules of
Professional Conduct; and (2) some of those incidents occurred outside of the six-year statute of
limitations that generally applies to the filing of attorney misconduct grievances, see 27 N.C. Admin.
Code 1B.0111(f)(4). However, Defendant fails to point to any authority mandating that facts relevant
at the dispositional phase — as opposed to facts underlying a particular adjudication of misconduct —
must be specifically tied to a particular disciplinary rule or have occurred within six years of the filing
of a grievance. In fact, “[i]f the charges of misconduct are established, the hearing panel will then
consider any evidence relevant to the discipline to be imposed.” 27 N.C. Admin. Code 1B.0114(w)
(emphasis added).
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Opinion of the Court
reprimand, or censure would not be sufficient discipline
because of the gravity of the harm to the administration of
justice and to the legal profession in the present case.
Furthermore, the Panel finds that any sanction less than
suspension would fail to acknowledge the seriousness of
the offenses committed by Defendant, would not
adequately protect the public, and would send the wrong
message to attorneys and the public regarding the conduct
expected of members of the Bar in this State.
9. Notwithstanding repeated prior warnings
about the impropriety of his conduct and an attempt to
reform his behavior through mentoring, Defendant
exhibits escalating misconduct and a wholly unrepentant
attitude. Accordingly, the protection of the public requires
that Defendant be required to demonstrate rehabilitation
and reformation before he may be permitted to resume
practicing law.
10. The Hearing Panel finds and concludes that
the public can only be adequately protected by an active
suspension of Defendant’s law license, with reinstatement
to the practice of law conditioned upon a showing of
reformation and other reasonable conditions precedent to
reinstatement.
Defendant also asserts that the Order of Discipline is deficient because many
of its findings were taken verbatim from the proposed order of discipline submitted
by the State Bar. Defendant asserts that such action amounts to an abdication of the
DHC’s authority. We are not persuaded.
It is the accepted practice in North Carolina for the prevailing party to draft
and submit a proposed order that the decision-making body may then issue as its own
— with or without amendments. See, e.g., In re J.B., 172 N.C. App. 1, 25, 616 S.E.2d
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Opinion of the Court
264, 279 (2005) (“Nothing in the statute or common practice precludes the trial court
from directing the prevailing party to draft an order on its behalf.”); Farris v. Burke
Cty. Bd. of Educ., 355 N.C. 225, 242, 559 S.E.2d 774, 784 (2002) (upholding propriety
of school superintendent’s counsel preparing findings of fact to be adopted by board
of education and noting that “[s]imilar procedures are routine in civil cases, where a
judge is permitted to ask the prevailing party to draft a judgment”); Johnson v.
Johnson, 67 N.C. App. 250, 257, 313 S.E.2d 162, 166 (1984) (“The trial judge properly
directed the attorney for the [prevailing party] to prepare proposed findings and
conclusions and draft the judgment, and adopted the judgment as his own when
tendered and signed.”).
Here, Defendant has not directed our attention to any applicable statute or
regulation prohibiting the DHC from adopting the proposed findings and conclusions
submitted by the State Bar. Accordingly, he has failed to show error. Moreover, we
conclude that the DHC fully complied with the requirements of N.C. Gen. Stat. § 84-
28 in imposing its sanction in this case.
I. Assessment of Fees and Costs
Defendant next asserts that the DHC erred in assessing fees and costs against
him in the amount of $35,315.95. However, because Defendant neither cites to any
legal authority in support of this argument nor explains why he believes the amount
of fees and costs assessed was unreasonable, we deem this issue waived pursuant to
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Opinion of the Court
Rule 28(b)(6) of the North Carolina Rules of Appellate Procedure. See Ethridge, 188
N.C. App. at 668, 657 S.E.2d at 387 (holding that because “defendant fail[ed] to cite
any authority” for certain assignments of error, those “assignments of error are
deemed abandoned pursuant to N.C.R. App. P. 28(b)(6)”).19
III. Challenges to Factual Findings and Conclusions of Law
Having rejected all of Defendant’s constitutional and procedural arguments,
we next turn our attention to Defendant’s specific challenges to the DHC’s findings
of fact and conclusions of law as to each of the seven matters summarized earlier in
this opinion that formed the basis for his disciplinary proceeding. We address in turn
each of Defendant’s arguments regarding these seven matters.
A. The Pollard Matter
Defendant contends that the DHC’s findings of fact do not support its
conclusion of law that his behavior during the deposition of Pollard constituted
“conduct intended to disrupt a tribunal” in violation of Rule 3.5(a)(4) because the
deposition did not constitute a “tribunal.” Defendant asserts that depositions were
only included within the meaning of the term “tribunal” by virtue of a 2015
19 Moreover, we note that N.C. Gen. Stat. § 84-34.2 expressly permits the State Bar to impose
certain types of fees, including an “administrative fee for any attorney against whom discipline has
been imposed.” N.C. Gen. Stat. § 84-34.2 (2015). In its brief, the State Bar has represented to this
Court that “[i]n April 2010, the [State Bar] Council adopted a schedule of administrative fees for the
disciplinary program that included a fee of $1,500.00 per day for each day spent in a contested DHC
hearing that resulted in the imposition of discipline.”
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Opinion of the Court
amendment to the Rules of Professional Conduct such that a deposition could not
properly have been considered a “tribunal” at the time of Pollard’s 2011 deposition.
However, at the time of Pollard’s deposition, the official commentary to the
Rules of Professional Conduct stated, in pertinent part, that “[t]he duty to refrain
from disruptive conduct applies to any proceeding of a tribunal, including a
deposition.” N.C. Rev. R. Prof. Conduct 3.5, cmt. 10 (2011) (emphasis added). “The
Comment accompanying each Rule [of Professional Conduct] explains and illustrates
the meaning and purpose of the Rule.” N.C. Rev. R. Prof. Conduct 0.2[8]. As such,
the official commentary does “not add obligations to the Rules but provide[s] guidance
for practicing in compliance with the Rules.” N.C. Rev. R. Prof. Conduct 0.2[1].
This Court has previously utilized the commentary to the Rules of Professional
Conduct in construing their meaning. See, e.g., N.C. State Bar v. Merrell, __ N.C.
App. __, __, 777 S.E.2d 103, 114 (2015) (scope of Rule 1.7(a) regarding representation
involving conflict of interest); N.C. State Bar v. Simmons, __ N.C. App. __, __, 757
S.E.2d 357, 363-64 (meaning of “criminal act” under Rule 8.4(b)), disc. review denied,
367 N.C. 791, 766 S.E.2d 848 (2014); N.C. State Bar v. Key, 189 N.C. App. 80, 91-92,
658 S.E.2d 493, 501 (2008) (scope of “conduct prejudicial to the administration of
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Opinion of the Court
justice” under Rule 8.4). Therefore, we dismiss Defendant’s argument that the DHC
erred in treating a deposition as a “tribunal” for purposes of Rule 3.5.20
Defendant also argues that the DHC did not make sufficient findings to
support its conclusion that his comments during the Pollard deposition constituted
“conduct prejudicial to the administration of justice in violation of Rule 8.4(d).” The
Comment to Rule 8.4 states that
[a] showing of actual prejudice to the administration of
justice is not required to establish a violation of Paragraph
(d). Rather, it must only be shown that the act had a
reasonable likelihood of prejudicing the administration of
justice. . . . The phrase “conduct prejudicial to the
administration of justice” in paragraph (d) should be read
broadly to proscribe a wide variety of conduct, including
conduct that occurs outside the scope of judicial
proceedings.
N.C. Rev. R. Prof. Conduct 8.4, cmt. 4 (emphasis added). We have previously adopted
the standard set forth in this Comment in construing Rule 8.4. See Key, 189 N.C.
App. at 91-92, 658 S.E.2d at 501 (applying “reasonable likelihood of prejudicing the
administration of justice” standard contained in Comment to Rule 8.4).
Here, we are satisfied that the DHC’s findings — which showed that Defendant
repeatedly interjected his own questions and commentary, made sarcastic remarks,
coached Pollard on how to respond to particular questions, and answered questions
20 Our holding on this issue applies equally to Defendant’s challenges to Conclusions Nos. 2(d)-
(e) of the DHC’s conclusions of law from the adjudicatory phase in which he makes the same argument
with respect to his conduct during the Langston deposition.
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Opinion of the Court
for Pollard — supported its conclusion that Defendant violated Rule 8.4(d) as it was
reasonable to conclude that such disruptive and improper tactics “had a reasonable
likelihood of prejudicing the administration of justice.” N.C. Rev. R. Prof. Conduct
8.4, cmt. 4.
Defendant also contests several of the DHC’s findings of fact relating to his
statement in an affidavit that he did not sponsor the justice4stacey.com website.
Defendant specifically challenges Finding No. 31, which states that “Defendant never
specifically billed Barbara Pollard to be reimbursed for the website expenses.” He
argues that “Barbara Pollard and [Defendant] testified that she reimbursed all
website expenses and no one testified otherwise.” However, the fact that Pollard may
at some point have reimbursed Defendant for the website costs does not undermine
Finding No. 31, which simply states that he never specifically billed her for these
expenses.
Defendant next challenges Finding No. 32, which states that
[a]lthough Defendant has contended that he was
reimbursed by his client for the cost of registering the
website, he did not produce any documents in response to
a request for production of all documents reflecting
payments by him in connection with the justice4stacey
website and his efforts to obtain reimbursement from Ms.
Pollard. At this hearing, Defendant testified that he did not
produce the documents because he did not have them.
Defendant asserts that he attempted to enter such documentation into
evidence during the hearing but the DHC denied his request. Our review of the
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Opinion of the Court
hearing transcript reveals that based upon the State Bar’s objection, the DHC denied
Defendant’s attempt to enter the receipts into evidence because he had failed to
provide them in discovery despite the State Bar’s unambiguous request for him to do
so. Defendant has not presented any argument that this evidentiary ruling was
erroneous. Accordingly, we find no merit to Defendant’s challenge to Finding No. 32.
Defendant also challenges Conclusion No. 2(c), which states as follows:
By swearing in an affidavit submitted to the court that he
did not sponsor the website and that another person was
responsible for the expenses of the website when in fact he
was the initial registrant and administrator of the website
and paid for the registration, Defendant engaged in
conduct involving dishonesty, fraud, deceit or
misrepresentation in violation of Rule 8.4(c), and engaged
in conduct prejudicial to the administration of justice in
violation of Rule 8.4(d)[.]
Defendant contends that “[t]here is no supportive finding that [Defendant] was the
‘sponsor’ of the website . . . .” However, the DHC made the following findings
regarding the website:
24. Defendant was involved in discussions and
meetings about setting up the website.
....
26. Defendant was the initial registrant and
administrator of the website which was registered on July
11, 2007.
27. Defendant paid the domain registrar for the
website to be registered.
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28. Defendant was identified as the contact
person on the website and his name, address, telephone
number, and email address were listed. As a result,
Defendant received numerous phone calls and
correspondence from visitors to the website.
29. A passcode was required to post material to
the website. Defendant had the passcode and posted some
documents on the website.
30. Defendant was involved in the decision to
take the website down.
31. Defendant never specifically billed Barbara
Pollard to be reimbursed for the website expenses.
These findings describe Defendant’s role in planning, registering, paying to set
up, controlling access to, and providing content for the website. Therefore, we
conclude the DHC’s determination that Defendant was the sponsor of the
justice4stacey.com website is sufficiently supported by the DHC’s findings of fact.
Defendant also argues that the DHC erred in Conclusion No. 2(c) in
determining that his misstatement regarding his sponsorship of the website was
“conduct prejudicial to the administration of justice[.]” However, we believe that the
DHC’s findings did, in fact, demonstrate that Defendant’s actions “had a reasonable
likelihood of prejudicing the administration of justice” as they showed that Defendant
made a false representation about a matter material to Fagan’s motion to change
venue that was pending before the court.
B. The Langston Matter
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Opinion of the Court
Defendant challenges the DHC’s conclusion that “[b]y abruptly leaving Ms.
Langston’s deposition with the deponent prior to the completion of opposing counsel’s
questioning without filing a motion to terminate the deposition, Defendant knowingly
disobeyed an obligation under the rules of the tribunal in violation of Rule 3.4(c)[.]”
He argues that this conclusion is unsupported because the DHC never specifically
named the rule that Defendant disobeyed. However, it is clear that the DHC’s
conclusion was a reference to Rule 30(d) of the North Carolina Rules of Civil
Procedure,21 which is titled “Motion to terminate or limit examination” and explains
that a judge — as opposed to counsel for a party — may “cease” or “limit” a deposition
“on motion of a party . . . .” The fact that the DHC was referring to Rule 30(d) is
apparent because the DHC specifically discussed Defendant ending the deposition
21 N.C. R. Civ. P. 30(d) provides as follows:
(d) Motion to terminate or limit examination. — At any time
during the taking of the deposition, on motion of a party or of the
deponent and upon a showing that the examination is being conducted
in bad faith or in such manner as unreasonably to annoy, embarrass,
or oppress the deponent or party, a judge of the court in which the
action is pending or any judge in the county where the deposition is
being taken may order before whom the examination is being taken to
cease forthwith from taking the deposition, or may limit the scope and
manner of the taking of the deposition as provided in Rule 26(c). If the
order made terminates the examination, it shall be resumed thereafter
only upon the order of a judge of the court in which the action is
pending. Upon demand of the objecting party or deponent, the taking
of the deposition shall be suspended for the time necessary to make a
motion for an order. The provisions of Rule 37(a)(4) apply to the award
of expenses incurred in relation to the motion.
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Opinion of the Court
without “filing a motion to terminate the deposition[.]” Accordingly, this argument is
without merit.
Defendant also challenges the following findings of fact with respect to one of
his misstatements during the Langston Matter:
55. On May 2, 2012, in a hearing on the plaintiff’s
motion to prevent waste of marital and separate property
pending equitable distribution, Defendant represented to
the presiding judge that R & L Investment Homes, LLC
had been dissolved by the North Carolina Secretary of
State because Mr. Langston[, the ex-husband of
Defendant’s client,] had forged documents, stating, “Yes,
your Honor, and the Secretary of State just annulled the
entity because he forged three of ‘em that say something
different.”
56. At the time Defendant made this statement to
the court, Defendant knew the North Carolina Secretary of
State had issued a Certificate of Administrative
Dissolution of R & L Investment Homes, LLC for failure to
file an annual report.
Defendant asserts that these findings “do not say that [he] knew the statement
at issue was false as required by RPC 8.4 and it [sic] omits undisputed testimony
from [him] and Ms. Lee that they both believed the statement to be true.” However,
the record shows that Defendant himself admitted that he knew the corporation had
been administratively dissolved rather than having been dissolved due to fraud.
Defendant further acknowledged that at the time he made the statement that the
corporation had been “annulled” because of fraud, he “knew there was a letter stating
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Opinion of the Court
that it was administratively dissolved.” Accordingly, Findings Nos. 55 and 56 are
adequately supported by the evidence.
For similar reasons, we reject Defendant’s challenge to Conclusion No. 2(g),
which states, in pertinent part, that
[b]y falsely representing to the court that the Secretary of
State had dissolved the LLC because of forgery, Defendant
engaged in conduct involving dishonesty, fraud, deceit or
misrepresentation in violation of Rule 8.4(c), and engaged
in conduct prejudicial to the administration of justice in
violation of Rule 8.4(d)[.]
Defendant argues that the DHC did not make a specific finding that he
knowingly made the false statement. However, as explained above, both the DHC’s
findings and the supporting evidence show that Defendant was indeed aware of the
falsity of his statement.
Defendant also contends that the DHC’s findings do not support its conclusion
that Defendant’s misstatement had a prejudicial impact on the administration of
justice. This assertion is meritless as the DHC could reasonably have determined
that the misrepresentation “had a reasonable likelihood of prejudicing the
administration of justice” in that it would have caused the trial court to labor under
the false notion that a party in the case had committed forgery.
Defendant next challenges Finding No. 62, which states that
Defendant’s statement accusing Mr. Miller[, Defendant’s
opposing counsel in the Langston Matter,] of slipping the
handwritten provision into the mediated settlement
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Opinion of the Court
agreement after Defendant had signed it and without
Defendant’s knowledge or approval was false and
Defendant knew at the time he made the statement that it
was false.
In his brief, Defendant states that “Finding #62 that [Defendant] knew . . . the
statement was false is not supported by the record. [W]here the Bar’s own witness
contradicted the allegation and 2 witnesses said [Defendant] did not make the
statement.” (Internal citations omitted.)
We are satisfied that the record contains sufficient evidence from which the
DHC could have found that Defendant did, in fact, knowingly make a false statement
regarding Miller “slipping” a provision into the settlement agreement without
Defendant’s knowledge. Miller testified before the DHC that “[Defendant] accused
me of slipping [the provision] in before he signed the document and without his
knowledge. And that statement was made to Judge Paul.”
Judge Paul confirmed in his testimony before the DHC that Defendant made
such an accusation in his presence. In addition, the mediator who oversaw the
settlement negotiations testified that he had “a specific recollection of pointing out
[the added provision] to [Defendant]” and then asking Defendant and his client if
“either of you have any problem” with the additional provision at which point the
mediator “showed them the provision” and “[t]hey both said they had no problem with
it.” This testimony is reflected in the DHC’s Finding No. 61, which states that “[p]rior
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Opinion of the Court
to Defendant signing the mediated settlement agreement, the mediator had pointed
out the handwritten provision to Defendant and Defendant agreed to the provision.”
We note that Defendant correctly points out that Finding No. 62 incorrectly
states that Defendant accused Miller of slipping in the provision after Defendant
signed the settlement agreement rather than before he signed it. However, we find
this discrepancy immaterial to the overall finding — which, as shown above, is
supported by the evidence — that Defendant falsely accused Miller of adding a
provision to the settlement agreement without Defendant’s knowledge or approval.
That finding, in turn, supports the DHC’s conclusion of law that Defendant
“knowingly made a false statement of material fact to a tribunal in violation of Rule
3.3(a)(1), engaged in conduct involving dishonesty, fraud, deceit or misrepresentation
in violation of Rule 8.4(c), and engaged in conduct prejudicial to the administration
of justice in violation of Rule 8.4(d).”
Therefore, even though Finding No. 62 — as written — is partially
unsupported by the evidence of record, the remaining portion of Finding No. 62, in
conjunction with Finding No. 61, adequately supports the DHC’s legal conclusion.
See, e.g., Meadows v. Meadows, __ N.C. App. __, __, 782 S.E.2d 561, 566 (2016)
(“[E]ven assuming, arguendo, that both findings are not supported by competent
evidence, it is of no consequence to the instant case. The remaining binding findings
of fact, cited above, are sufficient to support the trial court’s judgment . . . .”); Estate
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of Gainey v. S. Flooring & Acoustical Co., 184 N.C. App. 497, 503, 646 S.E.2d 604, 608
(2007) (“[W]here there are sufficient findings of fact based on competent evidence to
support the tribunal’s conclusions of law, the decision will not be disturbed because
of other erroneous findings which do not affect the conclusions.” (citation, quotation
marks, and brackets omitted)). Accordingly, we find Defendant’s argument on this
issue to be without merit.
C. The Gorham Matter
Defendant next challenges the following conclusion of law with regard to
Defendant’s conduct toward Judge Gorham:
By being disrespectful to the judge during a jury trial after
having been warned by the Court about his conduct,
Defendant knowingly disobeyed an obligation under the
rules of the tribunal in violation of Rule 3.4(c), engaged in
conduct prejudicial to the administration of justice in
violation of Rule 8.4(d), and engaged in conduct intended
to disrupt a tribunal by engaging in undignified or
discourteous conduct that is degrading to a tribunal in
violation of Rule 3.5(a)(4)(B)[.]
Defendant contends that there is no finding or evidence indicating that he
“knowingly disobeyed an obligation under the rules of the tribunal” or engaged in
conduct “degrading to a tribunal.” Rather, he asserts that the record shows that
nothing happened “more than the morning recess in a murder trial.”
The DHC made the following findings with regard to this incident:
64. During the course of the trial Defendant
spoke disrespectfully to the judge at a bench conference
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Opinion of the Court
and Judge Gorham admonished Defendant about engaging
in disrespectful behavior toward the court.
65. Subsequently, at another bench conference on
August 1, 2012, while the jury was present in the
courtroom, Defendant grimaced at Judge Gorham and in
an angry tone of voice accused Judge Gorham of allowing
the prosecutor to get inadmissible evidence to the jury.
66. Defendant’s conduct prompted Judge Gorham
to declare a recess in the trial and give the jury a break so
that she could address Defendant’s conduct.
67. During the in-chambers discussion about
Defendant’s conduct, Defendant stated: a) “And I do think
if I was angry, I am sorry that I was angry and I expressed
it. I’m not going to deny that I was.” and b) “you said that I
appeared disrespectful and I had a grimace and I am trying
to explain that I was upset and the reasons that have gone
into my [being] upset.”
68. Rule 12 of the North Carolina General Rules
of Practice for the Superior and District Courts provides:
“Counsel are at all times to conduct themselves with
dignity and propriety … Counsel should yield gracefully to
rulings of the court and avoid detrimental remarks both in
court and out. He should at all times promote respect for
the court.”
These findings — which are supported in the record by the testimony of
Assistant District Attorney Mike Muskus, who was the prosecutor present during
these events — clearly support the DHC’s conclusions. To the extent Defendant
argues there is no evidence that he knew he was violating a rule or causing a
disruption, it is axiomatic that one’s state of mind is rarely shown by direct evidence
and must often be inferred from the circumstances. See Johnson v. Phoenix Mut. Life
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Ins. Co., 300 N.C. 247, 260, 266 S.E.2d 610, 619 (1980) (“A litigant’s state of mind is
seldom provable by direct evidence but must ordinarily be proven by circumstances
from which it may be inferred.”). Here, it was eminently reasonable for the DHC to
conclude that Defendant understood he was not conducting himself “with dignity and
propriety,” “yield[ing] gracefully to rulings of the court,” “avoid[ing] detrimental
remarks both in court and out[,]” and “promot[ing] respect for the court.”
D. The Davenport Matter
With respect to his representation of Davenport, Defendant first challenges the
DHC’s finding that he “sent a demand letter” to Roughton and the Sheriff of
Pasquotank County. However, Defendant admitted in his answer filed with the DHC
that he sent the demand letter. Accordingly, he may not challenge on appeal the
DHC’s finding as to that fact. See Baker v. Mauldin, 82 N.C. App. 404, 406, 346
S.E.2d 240, 241 (1986) (holding that a defendant is bound by admissions in his
answer).
Defendant also challenges Finding No. 84, which states, in relevant part, that
Defendant “was aware that [Norman] Shearin represented Roughton in the dispute
with Davenport . . . .” However, among other evidence establishing that Defendant
knew Roughton was represented by counsel, the record shows that (1) Roughton’s
attorney, Shearin, testified that he had conversations with Phillip Hayes,
Defendant’s co-counsel, regarding the dispute between Roughton and Davenport; and
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(2) within a month prior to sending the demand letter, Defendant contacted Shearin’s
office about taking Roughton’s deposition. Accordingly, this evidence supports the
DHC’s finding that Defendant did indeed know Roughton was represented by counsel
at the time he sent the demand letter.
Defendant next challenges the DHC’s Conclusion No. 2(j), which states that
[b]y impugning the integrity of the investigating officer in
Davenport’s pending criminal cases and accusing the
Sheriff’s Department of a criminal act in a video posted
online, Defendant used means in representing a client that
had no substantial purpose other than to embarrass or
burden a third person in violation of Rule 4.4(a)[.]
Specifically, Defendant contends that “[t]here is no finding or fact in the record which
shows that [he] accused [Investigator] Keith of being dishonest or lacking in integrity
nor even that Keith was ‘the investigating officer.’ ”
However, the Pasquotank County Attorney, Mike Cox, testified that
Investigator Keith was indeed the officer investigating Davenport. Moreover, both
the DHC’s findings of fact and the video evidence of the encounter, which is in the
record, establish that when Investigator Keith refused to release certain property to
Defendant, Defendant referenced North Carolina’s embezzlement statute and stated
that it was a “class C felony by the sheriff” for him not to return to the proper owner
property obtained under color of law.
Given the contents of the video and Defendant’s admission that he put the
video on the Internet to be “a smart aleck” rather than to further his representation
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Opinion of the Court
of Davenport, we are satisfied that there is support in the record for the DHC’s
conclusion that Defendant “used means in representing a client that had no
substantial purpose other than to embarrass or burden a third person in violation of
Rule 4.4(a).”
E. The Shackley Matter
Defendant challenges Findings Nos. 95 and 97 in connection with the Shackley
Matter, which state as follows:
95. Thereafter during the phone conversation,
Defendant made a number of assertions about Hughes,
including that Hughes had “hit on” Shackley’s wife, who
“had big boobs” and ran a prostitution website.
....
97. Immediately after the phone conversation,
Hughes’s acquaintance called Hughes and reported —
among other things — that Defendant had referenced
Hughes’[s] preference for bigbreasted women, and his
interest in a “prostitute.”
While Defendant contends that these findings are “misleading to a fraudulent
degree,” he fails to explain how this is so. Moreover, these findings are largely
supported both by Sugg’s testimony and the handwritten notes she made on the
evening of the call.
F. The Dolenti Matter
Defendant argues that the characterization in Finding No. 103 of the tone of
the voicemail he left for Dolenti as “threatening, insulting, and intimidating” is
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unsupported because Detective Dolenti never testified at the disciplinary proceeding.
However, based on our consideration of the voicemail — which is contained in the
record on appeal as an audio recording — we believe that the evidence fully supported
the DHC’s finding that Defendant’s tone was “threatening, insulting, and
intimidating.”
G. The Deans Matter
We also find no merit in Defendant’s challenge to Finding No. 110, which states
that “Defendant’s comments to Mrs. Deans about her father and stepmother and the
Pitt County District Attorney were malicious and vindictive.” Defendant’s sole
ground for challenging this finding is that neither the complaint nor the Order of
Discipline included the actual words used in the voicemail. However, the voicemail
was entered into evidence during the proceeding and is part of the record on appeal.
The recording supports the DHC’s determination that the comments made about
Deans’ father and stepmother and the district attorney were “malicious and
vindictive.” Nor are we persuaded by Defendant’s argument that the DHC was
required to quote verbatim the inappropriate comments he made.
Conclusion
For the reasons stated above, we affirm the DHC’s 13 November 2014 Order of
Discipline.
AFFIRMED.
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Opinion of the Court
Chief Judge McGEE and Judge STEPHENS concur.
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