North Carolina State Bar v. Simmons , 233 N.C. App. 669 ( 2014 )

NO. COA13-1140
NORTH CAROLINA COURT OF APPEALS
Filed: 6 May 2014
THE NORTH CAROLINA STATE BAR,
Plaintiff,
v. Disciplinary Hearing Commission
of the North Carolina State Bar
No. 12 DHC 38
GEOFFREY H. SIMMONS, Attorney,
Defendant.
Appeal by defendant from order of discipline entered 19
April 2013 by the Disciplinary Hearing Commission of the North
Carolina State Bar. Heard in the Court of Appeals 17 February
2014.
The North Carolina State Bar, by Deputy Counsel David R.
Johnson and Counsel Katherine Jean, for plaintiff-appellee.
Poyner Spruill LLP, by M. Jillian DeCamp and Carrie V.
McMillan, for defendant-appellant.
HUNTER, JR., Robert N., Judge.
Geoffrey H. Simmons (“Defendant”) appeals from a final
order of the Disciplinary Hearing Commission (“DHC”) disbarring
him from the practice of law for embezzling client funds.
Defendant contends (1) that there was insufficient evidence
before the DHC that he intended to embezzle client funds, (2)
that the DHC could not impose discipline based on embezzlement
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without a criminal conviction, and (3) that the DHC’s order
failed to conform to the requirements of N.C. State Bar v.
Talford, 356 N.C. 626, 576 S.E.2d 305 (2003), for disbarring
attorneys. For the following reasons, we disagree and affirm
the DHC’s order.
I. Factual & Procedural History
Defendant was licensed to practice law by the North
Carolina State Bar in 1977 and practiced law for over thirty
years. Defendant’s career was, in many respects, a decorated
one. After graduating from Duke University School of Law,
Defendant worked for the General Assembly and in the
administration of former Governor James B. Hunt. Defendant
engaged in significant pro bono work during his career. In
1987, the North Carolina Bar Association named Defendant the Pro
Bono Lawyer of the year. In 1990, Defendant was elected the
first black President of the Wake County Bar Association and the
Tenth Judicial District Bar. During his career, Defendant
established a reputation for good character, veracity, and
truthfulness in both social and legal communities.
Notwithstanding Defendant’s accomplishments, however, the
allegations in the State Bar’s complaint against Defendant are
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serious, and are based on the following facts gleaned from the
record.
From 1985 until his disbarment, Defendant was a solo-
practitioner focusing on criminal and personal injury work, with
an office in Raleigh. The record reflects that Defendant had an
assistant on his payroll, who performed paralegal work. During
the course of his law practice, Defendant maintained a trust
account on behalf of his clients.
In March 2012, a medical provider filed a complaint with
the State Bar alleging that Defendant had not paid one of his
client’s bills. A subsequent audit of Defendant’s trust account
by the State Bar revealed disbursements made by Defendant from
2010–2012 to himself and his assistant for which Defendant had
no supporting documentation. The investigation also revealed
instances of insufficient client funds to cover disbursements to
those clients and their medical providers.
As a result of the investigation, the State Bar filed a
complaint alleging, inter alia, misappropriation of entrusted
funds with respect to eight of Defendant’s clients. On 15 March
2013, the DHC held a hearing to determine if Defendant’s alleged
misconduct warranted disciplinary action. At the hearing,
documentary exhibits were received into evidence and testimony
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was heard from, among others, the State Bar’s investigator, two
of the eight clients who were named in the complaint, and
Defendant.
The State Bar’s investigator testified concerning
Defendant’s trust account activity and bookkeeping for the eight
clients. His testimony, along with accompanying documentary
exhibits, established undocumented disbursements to Defendant
and Defendant’s assistant, as well as occasions where
disbursements were made from insufficient client funds. In
those instances where Defendant disbursed funds from the trust
account to himself and/or his assistant, a pattern was observed.
Once Defendant received personal injury settlement proceeds on
behalf of a client, Defendant deposited those proceeds into his
trust account. Afterwards, Defendant withdrew his one-third
contingency fee and paid the client a one-third share. The
remaining funds were intended to satisfy medical liens and
obligations. However, in addition to paying on the medical
liens, Defendant wrote additional checks to himself and his
assistant in varying amounts between $200 and $600. As a
result, some medical providers with statutory liens against
client funds were not paid in full for their share of the
recovery. To cover shortfalls, Defendant used trust account
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funds belonging to others and not identified to the client to
cover checks written to that client or the client’s medical
providers.
In his defense, Defendant admitted to poor record keeping
practices but denied misappropriating client funds. Defendant
attributed the undocumented disbursements to expenses,
additional legal work, accounting mistakes, and, in some cases,
Defendant claimed the disbursements were at the behest of his
clients. Both clients who testified at the hearing indicated
that Defendant did not tell them about any additional
disbursements made from their account. One of the clients,
after being contacted by the State Bar, filed a Client Security
Fund Application against Defendant claiming he took an
additional disbursement dishonestly.1
On 19 April 2013, the DHC entered a written order of
discipline. The order’s findings of fact recite the
transactions made for each of the eight clients, including the
disbursements at issue. After reciting each undocumented
disbursement made to Defendant and his assistant, the DHC found
that Defendant and his assistant were “not entitled” to the
additional disbursements and concluded that Defendant
1
Defendant reimbursed the client during the pendency of the
State Bar’s investigation.
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“misappropriated” these funds. The DHC’s order also concludes
that Defendant misappropriated each disbursement made from
insufficient funds and each disbursement made from funds owed to
medical providers with statutory liens. Furthermore, the order
states:
91. The misappropriations . . . were
committed knowingly and willfully.
92. The misappropriations . . . were not
authorized by the parties for whom
[Defendant] was holding the funds in trust.
93. The Hearing Panel specifically finds
that [Defendant’s] testimony at this hearing
was not credible. [Defendant’s] testimony
was inconsistent with other testimony of his
at the hearing and at his deposition.
[Defendant’s] testimony was also
inconsistent with the documentation and with
the testimony given by the other witnesses
at the hearing.
Based on its findings, the DHC concluded, inter alia, that
Defendant “committed the crime of embezzlement” and was subject
to discipline pursuant to N.C. Gen. Stat. § 84-28(b)(2) (2013).
After making additional findings of fact and conclusions of law
regarding discipline, the DHC ordered Defendant disbarred from
the practice of law. Defendant filed timely notice of appeal.
II. Jurisdiction
“There shall be an appeal of right by either party from any
final order of the Disciplinary Hearing Commission to the North
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Carolina Court of Appeals.” N.C. Gen. Stat. § 84-28(h) (2013);
accord N.C. Gen. Stat. § 7A-29(a) (2013). Thus, Defendant’s
appeal is properly before this Court.
III. Analysis
Defendant’s appeal presents three questions for our review:
(1) whether there was sufficient evidence upon which the DHC
could find that Defendant intended to embezzle client funds; (2)
whether the DHC could impose discipline based on the
embezzlement of client funds without a criminal conviction; and
(3) whether the DHC’s order conforms to the requirements of
Talford for imposing disbarment as a sanction for attorney
misconduct. We address each in turn.
A. Sufficiency of the Evidence Regarding Intent
Defendant challenges the sufficiency of the evidence
regarding his intent to embezzle client funds. Specifically,
Defendant contends that the State Bar failed to present “clear,
cogent, and convincing” evidence that Defendant knowingly and
willfully misappropriated or embezzled client funds.
By statute, our review of the DHC’s disciplinary order is
limited to “matters of law or legal inference.” N.C. Gen. Stat.
§ 84-28(h). In examining the record, we apply the whole record
test. N.C. State Bar v. Hunter, ___ N.C. App. ___, ___, 719
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S.E.2d 182, 188 (2011). “Under the whole record test there must
be substantial evidence to support the findings, conclusions,
and result. The evidence is substantial if, when considered as
a whole, it is such that a reasonable person might accept as
adequate to support a conclusion.” Id. (quotation marks,
citations, and alteration omitted); see also Talford, 356 N.C.
at 632, 576 S.E.2d at 309–10 (describing this task as
determining whether the DHC’s decision “has a rational basis in
the evidence” (quotation marks and citations omitted)). In
engaging in this inquiry, we consider the evidence supporting
the DHC’s findings as well as evidence tending to contradict
those findings. Hunter, ___ N.C. App. at ___, 719 S.E.2d at
188. However, “the mere presence of contradictory evidence does
not eviscerate challenged findings, and [this Court] may not
substitute its judgment for that of the [DHC].” Id. Moreover,
the evidence used by the DHC to support its findings must rise
to the standard of “clear, cogent, and convincing.” Talford,
356 N.C. at 632, 576 S.E.2d at 310.
In Talford, our Supreme Court set forth a three-step
process to determine if the DHC’s decision has a rational basis
in the evidence:
(1) Is there adequate evidence to support
the order’s expressed finding(s) of fact?
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(2) Do the order’s expressed finding(s) of
fact adequately support the order’s
subsequent conclusion(s) of law? and
(3) Do the expressed findings and/or
conclusions adequately support the lower
body’s ultimate decision?
Id. at 634, 576 S.E.2d at 311. This three-step process “must be
applied separately” to both the adjudicatory phase of the DHC’s
proceedings (“Did the defendant commit the offense or
misconduct?”) and to the dispositional phase of the DHC’s
proceedings (“What is the appropriate sanction for committing
the offense or misconduct?”). Id.With our standard of review precisely defined, we now
consider Defendant’s first argument on appeal.
As an initial matter, we note that in Defendant’s principal
brief to this Court, no specific findings of fact were
referenced as being in error. Nevertheless, we agree with
Defendant that assignments of error to specific findings of fact
are not required to properly challenge those findings. “The
scope of review on appeal is limited to issues so presented in
the several briefs.” N.C. R. App. P. 28(a). Accordingly,
because Defendant’s arguments concerning the sufficiency of the
evidence address, in substance, the DHC’s finding that Defendant
“knowingly and willfully” misappropriated or embezzled client
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funds, we review the DHC’s findings related to Defendant’s
intent.
The crime of embezzlement is defined by N.C. Gen. Stat. §
14-90 (2013) and requires a showing of the following four
elements:
(1) the defendant was the agent or
fiduciary of the complainant;
(2) pursuant to the terms of the
defendant’s engagement, he was to receive
property of the complainant;
(3) he did receive such property in the
course of his engagement; and
(4) knowing the property was not his, the
defendant either converted it to his own use
or fraudulently misapplied it.
State v. Tucker, ___ N.C. App. ___, ___, 743 S.E.2d 55, 59
(2013) (emphasis added). “The intent necessary to convict on a
charge of embezzlement is an intent of the agent to embezzle or
otherwise willfully and corruptly use or misapply the property
of the principal for purposes for which the property is not
held.” State v. Britt, 87 N.C. App. 152, 153, 360 S.E.2d 291,
292 (1987). “Such intent may be shown by direct evidence, or by
evidence of facts and circumstances from which it may reasonably
be inferred.” State v. McLean, 209 N.C. 38, 40, 182 S.E. 700,
702 (1935); N.C. State Bar v. Ethridge, 188 N.C. App. 653, 660,
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657 S.E.2d 378, 383 (2008). “In addition, a person who deposits
funds into a personal account knowing that the money belongs to
others is sufficient evidence to show embezzlement.” Ethridge,
188 N.C. App. at 660, 657 S.E.2d at 383. Furthermore, “[t]he
intent element for misappropriation is essentially the same as
the crime of embezzlement.” Id. Indeed, misappropriation is a
synonym for embezzlement. Id. Thus, we examine the whole
record to determine whether there is “substantial” or “clear,
cogent, and convincing” evidence to support the finding that
Defendant knowingly and willfully misappropriated client funds.
Our review of the record in this case reveals substantial
evidence from which Defendant’s intent to misappropriate client
funds can be reasonably inferred.
First, Defendant knew the correct way to document and
maintain his trust account yet failed to do so. Defendant
testified that he had previously been on the Trust Account
Committee of the State Bar, had attended Continuing Legal
Education workshops regarding trust accounting, and had been
audited by the State Bar on prior occasions.2
2
The State Bar provides resources and support to ensure that
lawyers manage trusts accounts properly. The Lawyer’s Trust
Account Handbook examines the Rules of Professional Conduct
pertinent to trust accounting and contains best practices for
North Carolina attorneys. See Lawyer’s Trust Account Handbook,
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Second, Defendant made numerous disbursements from his
trust account for which he had no supporting documentation.3
Third, both clients who testified at the hearing indicated
that Defendant did not tell them about taking an additional
disbursement from their account, and the clients were never
informed concerning the amount of the disbursement or its
purpose.
Fourth, one of these clients filed a Client Security Fund
Application with the State Bar alleging that Defendant took an
additional disbursement from his account dishonestly. Testimony
revealed that Defendant reimbursed the client in question after
learning that the client was going to be deposed in the State
Bar’s investigation “so that [the client] would have good
feelings towards [him].”
Fifth, the additional disbursements were often made when
Defendant was in financial need.
The North Carolina State Bar (Revised May 2011),
http://www.ncbar.com/PDFs/Trust%20Account%20Handbook.pdf.
3
The Lawyer’s Trust Account Handbook indicates that a client’s
file should contain documentation supporting disbursements and
identifies poor bookkeeping as a means of concealing
embezzlement of client funds. Id. at 48. As a best practice
for bookkeeping, “[a] copy of the client’s ledger card may be
provided to the client as a written accounting of the receipt
and disbursement of funds. When this is done, the client should
sign and date the original to show that the client was given a
written accounting of his or her funds . . . .” Id. at 30.
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Sixth, Defendant’s attribution of the additional
disbursements to expenses, additional legal work, accounting
mistakes, and compliance with client requests is inconsistent
with the other record evidence. For example, for the first
client named in the State Bar’s complaint, Defendant took an
additional disbursement of $250 on 12 March 2010. Defendant
testified that this additional disbursement was for additional
legal services, namely, drafting a complaint. However, the
client testified that she was unaware of this additional fee and
the memo line of the check indicated that the disbursement was
for “Office Expenses Reimbursement.”
Likewise, for the second client named in the State Bar’s
complaint, Defendant took an additional disbursement of $250 for
himself and another $200 for his assistant on 14 and 19 January
2011, respectively. Defendant testified that his disbursement
was for work on an unrelated criminal case the client asked
Defendant to handle and that the disbursement to his assistant
was made at the client’s request. However, there was no
evidence of the other criminal case in the record and the memo
line on Defendant’s disbursement check read “fee to collect
MedPay.” The memo line on the check to Defendant’s assistant
indicated that the check was for “office expenses.”
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As a final example, for the third client named in the State
Bar’s complaint, Defendant took an additional disbursement of
$500 on 20 June 2011. Defendant testified that this
disbursement was for travel expenses. Defendant also testified
that the client consented to the payment. However, the client
denied consenting to the payment and the memo line of the check
indicates the additional disbursement was for “legal fees.”
Based on the foregoing evidence, as well as the other
record evidence presented to this Court, we hold that there was
“substantial” or “clear, cogent, and convincing” evidence to
support the DHC’s finding that Defendant knowingly and willfully
misappropriated client funds. While Defendant points to his own
testimony to negate this inference of intent, the DHC found that
Defendant’s testimony was not credible based on its
inconsistency with other evidence presented at the hearing. Our
review has confirmed those inconsistencies. Accordingly,
Defendant’s argument regarding the sufficiency of the evidence,
on balance, lacks credibility.
B. The Absence of a Criminal Conviction
Defendant’s second argument on appeal challenges the DHC’s
decision to discipline Defendant and impose disbarment as a
sanction for Defendant’s misconduct without a criminal
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embezzlement conviction. Defendant contends that the State
Bar’s rules forbid the DHC from concluding that Defendant
“committed” a felony without first being charged and convicted
of a felony in criminal court.
Questions concerning the construction and interpretation of
the State Bar’s rules are questions of law that are reviewed de
novo on appeal. N.C. State Bar v. Brewer, 183 N.C. App. 229,
233, 644 S.E.2d 573, 576 (2007). “Under a de novo review, the
court considers the matter anew and freely substitutes its own
judgment for that of the lower tribunal.” Craig v. New Hanover
Cnty. Bd. of Educ., 363 N.C. 334, 337, 678 S.E.2d 351, 354
(2009) (quotation marks and citation omitted).
Here, the DHC’s order concludes as a matter of law that
“[Defendant] committed the crime of embezzlement.” As a result
of this conduct, the DHC concluded that Defendant was subject to
discipline pursuant to N.C. Gen. Stat. § 84-28(b)(2), which
provides for attorney discipline when there has been a
“violation of the Rules of Professional Conduct adopted and
promulgated by the [State Bar] Council in effect at the time of
the act.” One of those rules, found to have been violated here,
states “[i]t is professional misconduct for a lawyer to . . .
commit a criminal act that reflects adversely on the lawyer’s
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honesty, trustworthiness or fitness as a lawyer in other
respects.” N.C. R. Prof’l Conduct 8.4(b). The official
commentary to the rule states:
The purpose of professional discipline for
misconduct is not punishment, but to protect
the public, the courts, and the legal
profession. Lawyer discipline affects only
the lawyer’s license to practice law. It
does not result in incarceration. For this
reason, to establish a violation of
paragraph (b), the burden of proof is the
same as for any other violation of the Rules
of Professional Conduct: it must be shown by
clear, cogent, and convincing evidence that
the lawyer committed a criminal act that
reflects adversely on the lawyer’s honesty,
trustworthiness, or fitness as a lawyer.
Conviction of a crime is conclusive evidence
that the lawyer committed a criminal act
although, to establish a violation of
paragraph (b), it must be shown that the
criminal act reflects adversely on the
lawyer’s honesty, trustworthiness, or
fitness as a lawyer. If it is established
by clear, cogent, and convincing evidence
that a lawyer committed a criminal act that
reflects adversely on the lawyer’s honesty,
trustworthiness, or fitness as a lawyer, the
lawyer may be disciplined for a violation of
paragraph (b) although the lawyer is never
prosecuted or is acquitted or pardoned for
the underlying criminal act.
Id. cmt. 3; see also N.C. State Bar v. Rush, 121 N.C. App. 488,
490, 466 S.E.2d 340, 341–42 (1996) (“The rule does not require a
conviction, only that a criminal act be committed. . . .
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Therefore, conviction of a crime is not a necessary element in a
disciplinary proceeding.”).
Defendant does not call our attention to this rule, rather,
Defendant cites 27 N.C. Admin. Code 1B.0114(w)(2)(D) (2012) to
support his claim that a criminal conviction is required. That
rule requires the DHC to consider disbarment as a possible
sanction if the defendant is found to engage in the “commission
of a felony.” Id. Defendant argues that “the plain language of
the State Bar’s Rule contemplates a felony conviction.”
However, we cannot agree with Defendant’s interpretation given
the fact that the rule uses “commission” rather than
“conviction” and given the clear mandate found in the State
Bar’s commentary and our caselaw interpreting N.C. R. Prof’l
Conduct 8.4(b). The rationale for not requiring a criminal
conviction under N.C. R. Prof’l Conduct 8.4(b) is equally
persuasive when interpreting 27 N.C. Admin. Code
1B.0114(w)(2)(D). Thus, because clear, cogent, and convincing
evidence supports the DHC’s conclusion that Defendant committed
the crime of embezzlement in violation of N.C. R. Prof’l Conduct
8.4(b), the DHC was required to consider disbarment as a
possible sanction pursuant to 27 N.C. Admin. Code
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1B.0114(w)(2)(D).4 Defendant’s second argument on appeal is
without merit.
C. The DHC’s Order and Talford
Defendant’s third argument on appeal is that the DHC’s
order failed to conform to the requirements of Talford for
imposing disbarment as a sanction for attorney misconduct.
In Talford, our Supreme Court held that
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.
Talford, 356 N.C. at 638, 576 S.E.2d at 313. “Thus, upon
imposing a given sanction against an offending attorney, the DHC
must provide support for its decision by including adequate and
4
Notably, the DHC also considered disbarment as a possible
sanction pursuant to 27 N.C. Admin. Code 1B.0114(w)(2)(C), which
states that “[d]isbarment shall be considered where the
defendant is found to engage in: . . . (C) misappropriation or
conversion of assets of any kind to which the defendant or
recipient is not entitled, whether from a client or any other
source.” Like 27 N.C. Admin. Code 1B.0114(w)(2)(D), the plain
language of this provision does not suggest that a criminal
conviction is required.
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specific findings that address these two key statutory
considerations.” Id.Here, after concluding that Defendant’s conduct warranted
discipline in the adjudicative part of the order, the DHC
reincorporated its previous findings of fact and made 16
additional findings of fact regarding discipline. Defendant has
not challenged these additional findings with argument on
appeal, we therefore consider them binding before this Court.
Hunter, ___ N.C. App. at ___, 719 S.E.2d at 188–89. Moreover,
because we have determined that the DHC’s finding concerning
Defendant’s intent to misappropriate client funds is supported
by substantial evidence, we consider that fact established as
well.
With respect to the first inquiry, i.e., whether the order
clearly shows how Defendant’s actions resulted in significant
harm or potential significant harm, we hold that the DHC’s order
is sufficient. Implicit in the DHC’s conclusion that Defendant
violated N.C. R. Prof’l Conduct 8.4(b) and (c) “is a
determination that his misconduct poses a significant potential
harm to clients.” N.C. State Bar v. Leonard, 178 N.C. App. 432,
446, 632 S.E.2d 183, 191 (2006). Furthermore, we find the
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following findings of fact in the DHC’s disciplinary order
compelling:
2. Defendant put his own personal interests
ahead of his clients’ interests.
. . . .
7. Defendant, by engaging in conduct
involving misappropriation,
misrepresentation and deceit over a number
of years and by making false statements
about his conduct, has shown himself to be
untrustworthy.
8. Defendant, through his misappropriation,
misrepresentation, and deceit, has caused
harm to the standing of the legal
profession, by undermining trust and
confidence in lawyers and the legal system.
9. Defendant’s misappropriation has caused
significant harm to his clients and to third
parties, namely the medical providers of his
clients.
10. Defendant misappropriated funds for his
own benefit that should have been used for
the benefit of his clients, either by
payment to the client or payment to the
client’s medical provider(s).
. . . .
13. . . . [Defendant] has not otherwise made
any restitution for amounts misappropriated
from clients. [Defendant] has not rectified
the deficit in his trust account.
. . . .
15. Defendant has failed to acknowledge that
he misappropriated client funds. Defendant
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has provided explanations that are not
consistent with the evidence received at the
hearing in this matter.
Based on these and other findings, the DHC concluded:
3. Defendant caused significant harm to his
clients by misappropriating their funds.
4. Defendant caused significant harm to
medical providers who should have received
payments from funds Defendant
misappropriated.
5. Defendant has caused significant harm and
potential harm to clients whose funds he
should have in his trust account but for
whom he has insufficient funds in his trust
account.
6. Defendant’s repeated commission of
criminal acts reflecting adversely on his
honesty, trustworthiness or fitness as a
lawyer, his dishonest and deceitful conduct
in placing false information on trust
account checks to disguise his
misappropriation, and the presentation of
testimony that conflicted with the credible
evidence received in the case caused
significant harm to the legal profession by
undermining trust and confidence in lawyers
and the legal system.
We believe that in light of these findings and conclusions, the
DHC’s order clearly shows how Defendant’s actions resulted in
significant harm to his clients, the administration of justice,
the profession, and members of the general public.
Likewise, with respect to the second inquiry, i.e., whether
the order contains a clear showing of why disbarment is the only
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sanction option that can adequately serve to protect the public,
we hold that the DHC’s order is sufficient. In addition to
considering and reciting all applicable factors relevant to
attorney discipline found in 27 N.C. Admin. Code 1B.0114(w)(1),
(2), and (3), the DHC’s order stated:
7. The Hearing Panel has considered lesser
alternatives and finds that disbarment is
the only sanction that can adequately
protect the public. An attorney’s duty to
preserve funds entrusted to the attorney is
one of the most sacred that an attorney
undertakes. The attorney should never
violate that duty of trust.
8. The Hearing Panel considered lesser
alternatives and finds that suspension of
Defendant’s license or a public censure,
reprimand, or admonition would not be
sufficient discipline because of the gravity
of the actual and potential harm to his
clients, the public, and the legal
profession caused by Defendant’s conduct,
and the threat of potential significant harm
Defendant poses to the public. The Hearing
Panel has considered the evidence of
Defendant’s good character and pro bono
service. However, given the repeated acts
of dishonesty, misrepresentation, and deceit
by [Defendant] established by the evidence
presented at hearing and the significant
harm and potential harm caused by
[Defendant] established by the evidence . .
. , the evidence of Defendant’s good
character and pro bono service does not
warrant imposition of a lesser discipline.
9. The Hearing Panel has considered all
lesser sanctions and finds that discipline
short of disbarment would not adequately
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protect the public for the following
reasons:
a. Defendant engaged in misconduct
constituting felonies and violations of
the trust of his clients and the
public;
b. Entry of an order imposing less serious
discipline would fail to acknowledge
the seriousness of the offenses
Defendant committed and would send the
wrong message to attorneys and the
public regarding the conduct expected
of members of the Bar of this State[.]
We believe these entries clearly establish that the DHC
considered all lesser sanctions and explain why the DHC felt
disbarment was the only adequate sanction in this case.
Accordingly, we hold that the DHC’s ultimate decision to disbar
Defendant has a rational basis in the evidence and is consistent
with our Supreme Court’s decision in Talford.
IV. Conclusion
For the foregoing reasons, we affirm the order of
discipline disbarring Defendant from the practice of law.
AFFIRMED.
Chief Judge MARTIN and Judge ELMORE concur.