North Carolina State Bar v. Nelson , 107 N.C. App. 543 ( 1992 )

421 S.E.2d 163 (1992) 107 N.C. App. 543

NORTH CAROLINA STATE BAR
v.
Edward Daniels NELSON.

No. 9110NCSB789.

Court of Appeals of North Carolina.

October 6, 1992.

Carolin Bakewell, Raleigh, for plaintiff-appellee.

Cheshire, Parker, Hughes & Manning by Joseph B. Cheshire, V. and Alan M. Schneider, Raleigh, for defendant-appellant.

EAGLES, Judge.

I

Initially we note that appellant raised seventeen assignments of error on appeal. However, appellant failed to support assignments 1, 3, 8, 9, 10, 12, 13, 14, 15 or 16 with reason, argument or authority. Accordingly, those assignments have been abandoned. N.C.R.App.Pro. 28(b)(5).

II

Appellant argues that findings of fact numbers 17, 22, 24, 35 and 40 made by the DHC are not supported by clear, cogent and convincing evidence drawn from the whole record. We disagree and affirm.

The standard of proof and the standard for judicial review for attorney discipline cases is set out in North Carolina State Bar v. Whitted, 82 N.C.App. 531, 347 S.E.2d 60 (1986), affirmed, 319 N.C. 398, 354 S.E.2d 501 (1987).

The standard of proof in attorney discipline and disbarment proceedings is one of "clear, cogent and convincing" evidence. Rules of the North Carolina State Bar, Art IX, Sec. 14(18). See In re Palmer, 296 N.C. 638, 647-48, 252 S.E.2d 784, 789-90 (1979) (adopting standard); N.C. State Bar v. Sheffield, 73 N.C.App. 349, 354, 326 S.E.2d 320, 323, cert. denied, 314 N.C. 117, 332 S.E.2d 482, cert. denied, [474] U.S. [981], 88 L. Ed. 2d 338, 106 S. Ct. 385 (1985). "Clear, cogent and convincing describes an evidentiary standard stricter than the preponderance of the evidence, but less stringent than proof beyond a reasonable doubt.... It has been defined as ``evidence which should fully convince.'" Sheffield, supra (citations omitted).

The standard for judicial review of attorney discipline cases is the "whole record" test. N.C. State Bar v. Du-Mont, 304 N.C. 627, 642, 286 S.E.2d 89, 98 (1982). "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. at 643, 286 S.E.2d at 98-99.

* * * * * *

"The ``whole record' test does not allow the reviewing court to replace the [Committee'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." Thompson v. Board of Education, 292 N.C. 406, 410, 233 S.E.2d 538, 541 (1977).

Whitted, 82 N.C.App. at 536, 347 S.E.2d at 63 (1986).

On appeal the appellant, both in his brief and during oral argument, highlighted evidence in the record which tends to establish facts contra to those found by the DHC. However, this Court's task is not to replace the DHC's judgment with our own. Id. Rather, our task is to determine whether after applying the whole record test, the DHC's findings are properly supported by the record even though we might have reached a different result had the matter been before us de novo. We hold that the record before us contains substantial evidence to support the contested findings of fact. Accordingly, we find no error.

Appellant also argues that the DHC lacked authority to determine whether the firm was a partnership or a professional association. We are not required to address this question. If the firm was a partnership, the DHC found that the appellant had no reasonable good faith belief that he was a partner. If the firm was a professional association, the DHC found that neither Kellum nor Stallings ever promised the appellant that his compensation would be based on a portion of the fees he brought into the firm, nor did they ever promise him a bonus or additional compensation above his annual salary. Under either interpretation the appellant, according to the DHC's findings, could not have had a reasonable good faith belief that he was entitled to additional sums over his salary. This argument is overruled.

III

Appellant next argues that the DHC wrongfully concluded that appellant acted dishonestly by retaining the Department of Insurance check without a reasonable good faith belief that he had a legitimate claim to any of the funds. We disagree.

Appellant first argues that he acted pursuant to a good faith belief that he was entitled to additional sums from the firm when he retained the Department of Insurance check. This argument is essentially a restatement of the argument addressed under heading II supra and we disagree for the reasons stated there.

Appellant next argues that he acted reasonably because he acted in conformity with the advice of counsel. However, the DHC made the following findings of fact: On 11 May 1987 appellant billed the Department of Insurance, which issued a check to the appellant on 21 May 1987. Appellant did not inform the firm that he had billed the Department of Insurance or that he had received the check. The DHC also found that the appellant first sought the advice of legal counsel, James Mills, in late June or early July, and that appellant did not seek the counsel of Bob Bode until September 1987. We note that the back of the check indicates that the appellant negotiated the check on 21 May 1987. DHC's findings are sufficient to support the conclusion that the appellant was not acting upon the advice of counsel when he retained and deposited the Department of Insurance check into his personal account. Accordingly, this argument fails.

IV

In his final assignment, appellant argues that the DHC abused its discretion by suspending the appellant from the practice of law for nine months. We disagree.

Appellant contends that "neither the North Carolina State Bar nor the Disciplinary Hearing Commission were the proper parties to bring or hear this case under the authority granted it in Chapter 84 of the General Statutes of North Carolina and the Rules and Regulations of the North Carolina State Bar." According to the appellant, "[t]here is no rule in the Code of Professional Responsibility or the North Carolina Rules of Professional Conduct that governs accounting procedures for law firm funds and under no circumstances should the State Bar have involved itself in an intra-partnership accounting dispute." In support of its argument appellant cites Matter of Rice, 99 Wash.2d 275, 661 P.2d 591 (1983). During oral argument, however, the appellant conceded that whenever there is a question of dishonesty, beyond the rudimentary need for an accounting to resolve internal law firm disputes, the DHC has jurisdiction to hear matters involving internal law firm disputes. Here, the DHC specifically concluded that the appellant engaged in dishonest conduct by retaining the Department of Insurance check without a reasonable good faith belief that he was entitled to any funds from the firm. This assignment is without merit.

Finally, appellant argues that the DHC abused its discretion by suspending him from the practice of law for nine months. "The discipline imposed was within the statutory limits. N.C.Gen.Stat. 84-28(b), (c). This Court [has] stated that ``so long as the punishment imposed is within the limits allowed by the statute this Court does not have the authority to modify or change it.'" Whitted, 82 N.C.App. at 539-40, 347 S.E.2d at 65 (quoting N.C. State Bar v. Wilson, 74 N.C.App. 777, 784, 330 S.E.2d 280, 284 (1985). This assignment is likewise without merit and therefore overruled.

Affirmed.

JOHNSON and PARKER, JJ., concur.