N.C. State Bar v. Berman ( 2014 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA13-1249
NORTH CAROLINA COURT OF APPEALS
Filed: 20 May 2014
THE NORTH CAROLINA STATE BAR,
Plaintiff
v. Disciplinary Hearing Commission
of The North Carolina State Bar
No. 12 DHC 31
JEFFREY S. BERMAN, Attorney,
Defendant
Appeal by defendant from order entered 1 May 2013 by the
Disciplinary Hearing Commission of the North Carolina State Bar.
Heard in the Court of Appeals 6 March 2014.
The North Carolina State Bar, by Counsel Katherine Jean and
Deputy Counsel David R. Johnson, for plaintiff-appellee.
The Law Office of Bryce D. Neier, by Bryce D. Neier, for
defendant-appellant.
CALABRIA, Judge.
Attorney Jeffrey S. Berman (“Berman”) appeals from an Order
of Discipline issued by the Disciplinary Hearing Commission
(“DHC”) of the North Carolina State Bar (“State Bar”) finding
him in violation of the North Carolina Rules of Professional
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Conduct and suspending his license to practice law for one year.
We affirm.
I. Background
Berman was admitted to the North Carolina State Bar in
1988. During the period relevant to the matters before the DHC,
Berman was actively engaged in the practice of law in
Greensboro, North Carolina, focusing largely on custody and
child support matters. The State Bar divided its complaint
against Berman into three claims for relief: Berman’s handling
of a custody matter for Vanessa Greeson, his renewal
applications for mediation certification, and his handling of a
custody matter for Lisa Goins.
A. The Greeson Matter
In May 2011, Vanessa Greeson (“Greeson”) sought legal
advice from Berman regarding her five-month-old granddaughter’s
status and placement. Greeson’s granddaughter (“K.C.”) had been
hospitalized with serious injuries, and the Guilford County
Department of Social Services (“DSS”) had been notified.
Greeson and K.C.’s parents agreed to a DSS safety plan that
placed K.C. with a family friend (“the friend”). Because it was
unclear who had caused K.C.’s injuries, only supervised
visitation with K.C.’s parents was permitted. Greeson was
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concerned that DSS would attempt to petition the court for
custody of K.C.
Berman prepared a child custody complaint on Greeson’s
behalf. Berman intentionally omitted any allegations that
K.C.’s parents acted inconsistently with their constitutionally
protected parental rights. According to the accompanying
Affidavit as to Status of Minor Child, K.C. lived with her
“mother and/or third party,” but the affidavit failed to provide
specific addresses or to state that the friend had physical
custody of K.C.
Berman also prepared a consent order granting Greeson joint
legal custody and primary physical custody of K.C. When Berman
presented the consent order to the court, ex parte, he did not
inform the court that DSS was involved with the family or that
K.C. was living with the friend. Berman informed the court that
K.C. was already living with Greeson. When DSS discovered that
Greeson had obtained custody of K.C. by consent order, it
immediately filed a petition alleging that K.C. was abused,
neglected, and dependent. K.C. was subsequently placed in
foster care for six months before she was returned to her
family.
B. Mediation Certification
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Berman was also a mediator certified by the North Carolina
Dispute Resolution Commission. To maintain his certification,
Berman was required to submit annual Mediator Certification
Renewal Applications (“renewal applications”), which
specifically ask applicants to disclose pending complaints and
disciplinary proceedings.
Berman received notice in August 2011 that a grievance
regarding his conduct in the Greeson matter had been filed with
the State Bar. In September 2011, and again in August 2012,
Berman submitted renewal applications to the Dispute Resolution
Commission, but did not disclose the pending grievance or that a
complaint had been filed against him with the State Bar in the
applications. On both applications, Berman certified that he
had given “true, accurate, and complete information.”
C. The Goins Matter
In December 2012, Berman represented Lisa Goins in a child
custody matter in Guilford County. On 5 December 2012, Berman’s
request for an ex parte emergency custody order was denied by
Chief District Court Judge Wendy Enochs (“Judge Enochs”).
Because the local rules required parties to participate in
mediation before scheduling a hearing, Judge Enochs also denied
Berman’s request for the matter to be heard within ten days.
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Berman then approached another District Court Judge in the
hallway, who allowed Berman to schedule the matter for hearing
on 18 December 2012. Berman did not inform the second judge
that Judge Enochs had previously denied his ex parte motion for
emergency custody and his request to schedule a hearing.
D. Disciplinary Hearing
On 16 July 2012, the State Bar filed a complaint against
Berman regarding his conduct in the Greeson matter. The State
Bar amended its complaint in January 2013 to include Berman’s
conduct in all three matters. After a hearing, the DHC issued
an Order of Discipline on 1 May 2013, concluding Berman’s
conduct violated the Rules of Professional Conduct as the State
Bar claimed. The DHC specifically concluded that Berman brought
a proceeding that lacked basis in law and/or fact in violation
of Rule 3.1; that he knowingly made false statements to the
tribunal in violation of Rule 3.3(a); that he failed to disclose
all material facts that would enable the judge to make an
informed decision in violation of Rule 3.3(d); that he engaged
in conduct involving dishonesty, deceit, or misrepresentation in
violation of Rule 8.4(c); and that his conduct was prejudicial
to the administration of justice in violation of Rule 8.4(d).
Based on its conclusions and the evidence presented, the
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DHC suspended Berman’s license to practice law for one year.
Berman appeals.
Berman argues that the DHC erred in finding that he
committed ethical violations in all three matters, and that the
suspension of his license was disproportionate and unwarranted.
We disagree.
II. Standard of Review
Appeals from the DHC are reviewed under the “whole record”
test, which requires a determination of whether the DHC’s
findings of fact are supported by substantial evidence in view
of the record, and whether the findings support the conclusions
of law. N. Carolina State Bar v. Talford, 356 N.C. 626, 632,
576 S.E.2d 305, 309 (2003). To determine whether the DHC’s
decision has a rational basis in the evidence, the whole record
test requires consideration of any contradictory evidence or
evidence from which conflicting inferences may be drawn, and
that the DHC used clear, cogent, and convincing evidence to
support its findings and conclusions. Id., 576 S.E.2d at 310.
Rule 3.1 states that a lawyer “shall not bring or defend a
proceeding . . . unless there is a basis in law and fact for
doing so that is not frivolous, which includes a good faith
argument[.]” N.C. Rev. R. Prof. Conduct 3.1 (2013). Rule 3.3
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concerns candor towards the tribunal, stating that a lawyer
shall not knowingly make false statements of material fact to
the court and, in ex parte proceedings, shall inform the court
of all material facts known to the lawyer that will enable the
court to make an informed decision, “whether or not the facts
are adverse.” N.C. Rev. R. Prof. Conduct 3.3 (a)(1), (d) (2013).
Rule 8.4 states that it is professional misconduct for a lawyer
to engage in conduct that involves dishonesty, fraud, deceit, or
misrepresentation, or prejudices the administration of justice.
N.C. Rev. R. Prof. Conduct 8.4 (c), (d) (2013). Comment 4 to
Rule 8.4 states that a showing of a reasonable likelihood of
prejudicing the administration of justice is sufficient. Id.,Cmt. 4. In addition, “the phrase ‘conduct prejudicial to the
administration of justice’ . . . should be read broadly to
proscribe a wide variety of conduct, including conduct that
occurs outside the scope of judicial proceedings.” Id.As an initial matter, we note that Berman’s answer to the
State Bar’s complaint admitted the majority of the factual
allegations. Therefore, those facts are conclusively
established. Harris v. Pembaur, 84 N.C. App. 666, 670, 353
S.E.2d 673, 677 (1987).
III. The Greeson Matter
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We first address the issue of whether the DHC erred in
finding Berman failed in his duty of candor and honesty as an
attorney and officer of the court by omitting material
information and making a false statement in his submission of
the Greeson consent order to the court. Berman argues that the
DHC’s findings do not show that he committed ethical violations
in the Greeson matter. We disagree.
In the instant case, Berman testified at the hearing
regarding the requirements for third-party custody complaints,
indicating that there must be an allegation that the parents are
either unfit or that they acted in a manner inconsistent with
their constitutionally protected parental rights. Berman also
testified that he intentionally omitted allegations in the
complaint regarding the fitness or constitutionally protected
status of K.C.’s parents. Berman neither made an effort to
contact the friend, who had physical custody of K.C., nor gave
her notice of the consent order. He also admitted at the
hearing that the Affidavit as to Status of Minor Child was
inadequate and did not identify the person who had custody of
K.C.
Judge Jan Samet (“Judge Samet”) also testified at the
hearing regarding the consent order. Judge Samet stated that
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when Berman presented the consent order for his signature,
Berman did not mention that K.C. had been hospitalized, that DSS
was involved with the family, or that Greeson was not permitted
visitation with K.C. Judge Samet also testified that Berman
told him Greeson had physical custody of K.C. If he had known
that K.C. was living with a third party at the time, Judge Samet
testified, he would not have approved the consent order. Judge
Enochs testified that Berman later characterized the case as a
“friendly suit” with all parties in agreement. The evidence
regarding the Greeson matter supports the DHC’s findings of
fact, which in turn support the DHC’s conclusions that Berman
violated Rules 3.1, 3.3(a), 3.3(d), 8.4(c), and 8.4(d) of the
Rules of Professional Conduct.
Berman contends that since the complaint was an action for
temporary custody with all parties in agreement, he was not
required to make allegations regarding the parental status of
K.C.’s parents, citing Price v. Howard, 346 N.C. 68, 484 S.E.2d
528 (1997). Similarly, Berman contends that he was not required
to disclose DSS involvement with the family to the court when he
presented the consent order. However, Berman fails to recognize
that the complaint he filed in the matter alleged a disputed
custody matter, and thus required the allegations regarding the
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parents’ constitutionally protected status pursuant to Petersen
v. Rogers, 337 N.C. 397, 403-04, 445 S.E.2d 901, 905 (1994).
Even if Berman expected the lawsuit to be “friendly,” he
cites no authority to support his proposition that legally
required allegations can be omitted from a custody complaint
simply because an attorney expects that a lawsuit will be
“friendly.” Even consent orders must contain legally required
findings of fact and conclusions of law, particularly in custody
cases, as the court’s jurisdiction is based upon the required
findings of fact and conclusions of law. See Bohannan v.
McManaway, 208 N.C. App. 572, 584, 705 S.E.2d 1,9 (2010) (“The
parties cannot confer subject matter jurisdiction upon the court
by entry of a consent order regarding child custody.”) In Foley
v. Foley, this Court addressed the effect of entry of a consent
order regarding child custody:
Defendant argues, and plaintiff concedes,
the signing of the Consent Order did not
waive any challenge to subject matter
jurisdiction. The UCCJEA is a
jurisdictional statute, and the
jurisdictional requirements of the UCCJEA
must be met for a court to have power to
adjudicate child custody disputes. . . .
[S]ee N.C.G.S. §§ 50A–101 to –317 (2001).
The PKPA is a federal statute also governing
jurisdiction over child custody actions and
is designed to bring uniformity to the
application of the UCCJEA among the states.
. . . [S]ee 28 U.S.C.A. § 1738A (2002).
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Subject matter jurisdiction cannot be
conferred by consent, waiver, or estoppel.
Accordingly, the trial court erred in ruling
the signing of the Consent Order by
defendant waived any challenge to the
subject matter jurisdiction of the trial
court.
156 N.C. App. 409, 411-12, 576 S.E.2d 383, 385 (2003) (citations
omitted). If the complaint had included the required
allegations as to K.C.’s residency and DSS involvement as
required by the UCCJEA, the trial court would not have entered
the consent order. The evidence also shows that Berman was
aware of the requirements for a third-party custody complaint,
and that the information regarding DSS involvement constituted a
material fact that would have influenced the court’s decision.
These arguments are without merit.
IV. Dispute Resolution Commission
The next issue is whether the DHC erred in concluding
Berman’s failure to disclose pending disciplinary matters to the
Dispute Resolution Commission violated the Rules of Professional
Conduct.
The factual basis for the State Bar’s claim in this matter
is undisputed. However, Berman contends that he was not
required to disclose the pending grievance because it was not a
formal complaint, citing N. Carolina State Bar v. Braswell, 67
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N.C. App. 456, 313 S.E.2d 272 (1984). However, the Braswell
language that Berman cites is an explanation of the disciplinary
procedures of the State Bar and does not address the
requirements of disclosure. In addition, Braswell addresses an
attorney’s right to notice and opportunity to be heard in a
State Bar disciplinary proceeding. Braswell does not authorize
a lawyer to conceal material information or provide false
certifications of fact. This argument is without merit.
Because the facts in this matter are undisputed, the DHC’s
findings of fact are supported by the record. The findings show
that Berman twice concealed the pending grievance from the
Dispute Resolution Commission, and thus support the DHC’s
conclusions that Berman violated Rules 8.4(c) (conduct involving
dishonesty, deceit, or misrepresentation) and 8.4(d) (conduct
prejudicial to the administration of justice) of the Rules of
Professional Conduct.
V. The Goins Matter
Next, we consider whether the DHC erred in concluding
Berman failed to disclose material information to the second
District Court Judge in his request for a custody hearing after
his initial request had been denied by Judge Enochs.
Berman’s precise argument concerning this issue is unclear.
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However, the majority of the facts related to this matter are
undisputed. The State Bar also presented evidence showing that
Berman approached the second District Court Judge in the hallway
after Judge Enochs had denied his request for emergency custody.
Berman asked if a request for emergency custody in the case
could be added to the second judge’s calendar for 18 December
2012, and did not inform the second judge that the request for
emergency custody had already been heard and denied. The State
Bar also presented evidence showing that a continuance order in
the case had been modified by marking out Judge Enochs’s name as
the presiding judge at the hearing for the request for emergency
custody. The document appeared to indicate that the second
judge had heard Berman’s motion and set the case for hearing.
Judge Enochs testified that she told Berman that since his
request for emergency custody was denied, the case would have to
proceed to mediation in accordance with the local rules.
Berman argues that the DHC incorrectly found that he had
engaged in an improper ex parte communication with the second
judge and that he had asked for an ex parte emergency custody
order from the second judge after Judge Enochs had previously
denied it. Berman mischaracterizes the DHC’s findings. The DHC
specifically found that Berman requested the second judge to
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hear his request for emergency custody on 18 December 2012, that
Berman did not give the opposing party notice of this
communication, and that Berman did not inform the second judge
that his request for emergency custody had already been heard
and denied. The DHC did not find or conclude that Berman asked
the second judge for an emergency custody order.
The evidence and undisputed facts support the DHC’s
findings of fact regarding the Goins matter. In addition, the
findings support the DHC’s conclusion that Berman’s failure to
disclose to the second judge that his request for emergency
custody in the Goins matter had previously been denied
constituted a failure to inform the tribunal of all material
facts that would enable the tribunal to make an informed
decision in violation of Rule 3.3(d).
Berman appears to take issue specifically with what he
terms the “draconian” policies and local rules of court for
Guilford County, and contends that he was not required to
provide the second judge with any information concerning the
denial of his initial ex parte custody motion. While Berman
appears to disagree with the local rules, he does not dispute
that as a practicing attorney in Guilford County, he was still
subject to those rules.
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VI. Discipline
Finally, we consider whether a one year suspension of
Berman’s license to practice law was appropriate discipline.
“[T]he statutory scheme set out in N.C.G.S. § 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.
In order to merit the imposition of suspension, there must be a
clear showing of how the attorney’s actions resulted in
significant or potentially significant harm, and a clear showing
of why suspension is the only sanction option that can
adequately serve to protect the public from future
transgressions by the attorney. Id. at 638, 576 S.E.2d at 313.
The Rules of the North Carolina State Bar also set forth several
specific factors for the DHC to consider in imposing discipline.
27 N.C.A.C. 1B § .0114(w) (2013).
In the instant case, the DHC made additional findings of
fact for the dispositional stage regarding, inter alia, Berman’s
experience in the practice of law and in custody cases
specifically; K.C.’s vulnerability as a five-month-old infant;
Greeson’s reliance on Berman’s professional judgment and legal
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knowledge to effectuate her goal of preventing K.C.’s potential
placement in foster care, and that Berman’s actions caused the
very outcome she sought to avoid; that Berman’s lack of candor
with the court undermined the integrity of the adjudicative
process; that Berman had no prior professional discipline; and
that Berman sought to justify his actions and did not express
remorse. The DHC specifically found that Berman’s conduct in
the Greeson matter “created a foreseeable risk of potentially
catastrophic harm to the infant by seeking to place her in the
care of someone who had not yet been ruled out as the
perpetrator of abuse against K.C.” and that he “caused
significant harm to K.C.’s mother, in that she experienced
substantial anxiety and distress about her daughter’s placement
in a foster home[.]”
The DHC expressly concluded that several of the enumerated
factors in 27 N.C.A.C. 1B § .0114(w) were present in the instant
case, including, inter alia, a negative impact of Berman’s
actions on the administration of justice; acts of dishonesty,
misrepresentation, or deceit; refusal to acknowledge the
wrongful nature of his conduct in Berman’s initial response to
the State Bar; and a pattern of misconduct. The DHC stated that
it considered lesser discipline, but that discipline less than
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suspension was insufficient given the gravity of the harm to the
administration of justice and the actual and potential harm to
the public. The DHC then suspended Berman’s license to practice
law for one year, and provided that he could apply to be
reinstated at the end of the one year suspension.
The DHC’s findings support a clear showing that Berman’s
conduct resulted in significant or potentially significant harm
to Greeson, K.C., and K.C.’s mother. In addition, the DHC’s
findings support its conclusions that Berman’s conduct
constituted a pattern of misconduct having a negative impact on
the administration of justice, and that suspension was the only
viable sanction that could adequately protect the public from
future transgressions. Berman contends that there is nothing in
the record to indicate that he attempted to deceive anyone.
However, the evidence in the record contradicts this claim.
Berman’s arguments to this Court constitute rationalizations and
excuses for his misconduct, and it is clear that Berman has
failed show any remorse for his misconduct.
VII. Conclusion
Berman’s conduct in all three matters that comprised the
State Bar’s claims for relief constituted misconduct pursuant to
the Rules of Professional Conduct. While Berman admits that
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there is a factual basis for the discipline, his claim that his
misconduct did not rise to violations of the Rules of
Professional Conduct is mistaken. The DHC’s findings of fact
are supported by the record evidence and Berman’s own
admissions, and its conclusions are supported by the findings.
The DHC also provided substantial findings sufficient to support
the suspension of Berman’s license. Therefore, we affirm the
order of the DHC.
Affirmed.
Judges STROUD and DAVIS concur.
Report per Rule 30(e).