The N.C. State Bar v. Merritt ( 2022 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
2022-NCCOA-633
No. COA22-191
Filed 20 September 2022
Disciplinary Hearing Commission, No. 21 DHC 5
THE NORTH CAROLINA STATE BAR, Plaintiff,
v.
LONNIE P. MERRITT, Defendant.
Appeal by defendant from order entered 21 September 2021 by the
Disciplinary Hearing Commission. Heard in the Court of Appeals 23 August 2022.
The North Carolina State Bar, by Deputy Counsel David R. Johnson, for
Plaintiff-Appellee.
Narain Legal PLLC, by Lucky Narain, for Defendant-Appellant.
CARPENTER, Judge.
¶1 Lonnie P. Merritt (“Defendant”) appeals from an order of discipline (the
“Order”) entered by the Disciplinary Hearing Commission (the “DHC”) of the North
Carolina State Bar (the “State Bar”), concluding he attempted to engage in sexual
relations with his current client, C.T., and did engage in sexual relations with C.T.
while she was a current client, in violation of the North Carolina Rules of Professional
Conduct (the “Rules”). The Order suspended Defendant’s license to practice law for
one year. After careful review, we affirm the Order.
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I. Factual & Procedural Background
¶2 This is an attorney discipline case arising from a complaint filed by the State
Bar alleging Defendant had an extramarital affair with his current client, C.T.
¶3 Defendant was admitted to the State Bar in August 2008. Defendant lived
with his wife in Wilmington, North Carolina, where he practiced law. C.T. initially
contacted Defendant in December 2017 to discuss marital separation and divorce. In
March 2018, C.T. contacted Defendant again after receiving a proposed court filing
from her spouse related to their domestic dispute. Defendant agreed to represent
C.T. in the matter.
¶4 On 9 March 2018, C.T. and Defendant executed an agreement for C.T.’s
representation, the Non-Litigation Client Agreement (the “Initial Agreement”).
Pursuant to the Initial Agreement, the “Covered Services” included in the
representation were, inter alia, drafting a consent order for equitable distribution,
child custody, and child support. The Initial Agreement also included “seeking an
[a]bsolute [d]ivorce” as one of the Covered Services, if such service was requested by
C.T. Representation under the Initial Agreement “terminate[d] upon either: (1) the
entry of an order with the court, or (2) when the Firm . . . provided Covered Services
. . . or (3) [C.T.’s] fail[ure] to pay any fee that [became] due” under the agreement.
¶5 On 3 August 2018, C.T. and Defendant signed a second agreement, the
Litigation Client Agreement (the “Second Agreement”), in which Defendant was to
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represent C.T. in the matters of child custody and child support. The Second
Agreement explicitly excluded the “[f]iling for absolute divorce” from the scope of
representation. There was no language in the Second Agreement that superseded or
nullified the Initial Agreement.
¶6 On Saturday, 4 August 2018, Defendant met C.T. after business hours at the
health clinic where she worked and where he was not a client, following C.T.’s
invitation. C.T. performed an ultrasound of Defendant’s heart at no charge and
without authorization of the clinic. For the procedure, Defendant removed his shirt
at C.T.’s direction. As Defendant parted ways with C.T. at the end of the visit,
Defendant advised C.T. that he and her husband’s attorney had negotiated a consent
order (the “Consent Order”), and it was ready to be signed.
¶7 Later that day, Defendant met C.T. at her house to execute the Consent Order,
although Defendant never met clients at his own house and normally met clients at
a coffee shop or an office space of a colleague. After C.T. and Defendant signed the
Consent Order, Defendant sat on the couch with C.T. Defendant “perceived a mutual
attraction at the [health] clinic” and “again at [C.T.’s] house.” Defendant asked C.T.
if he could kiss her, and she consented. The two “made out” on the couch, and
Defendant moved his hand under her dress, touching her leg. Defendant also
“snapped [C.T.’s Spanx bodysuit undergarment] on her side,” causing Defendant and
C.T. to laugh. At some point, C.T. asked Defendant to stop. Thereafter, they spoke
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but did not continue kissing, and Defendant went home. C.T. and Defendant had
several “lengthy late-night phone calls,” beginning that evening and through August
2018.
¶8 On 8 August 2018, the Consent Order was countersigned by C.T.’s husband
and her husband’s attorney. On 28 August 2018, the Consent Order was filed in the
New Hanover County District Court and signed by a district court judge. The
Consent Order allowed Defendant to withdraw as counsel for C.T., although there is
no evidence in the record of Defendant doing so.
¶9 By mid-September, Defendant and C.T. began having sexual intercourse. On
24 September 2018, Defendant signed a divorce complaint on behalf of C.T. as the
attorney of record, and the complaint was filed on 26 September 2018. Defendant
filed a motion for summary judgment and represented C.T. at the hearing on the
motion. On 2 November 2018, a divorce judgment was entered, granting C.T. an
absolute divorce.
¶ 10 On 11 January 2021, the State Bar filed a complaint with the DHC against
Defendant alleging Defendant violated the Rules by:
(a) “making out” with C.T. at her home because he
“perceived a mutual attraction[.]” Defendant attempted
to engage in sexual relations with a current client in
violation of Rule 8.4(a);
(b) continuing to represent C.T. after they began a
romantic relationship, Defendant represented a client
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under circumstances where his ability to represent her
could be materially limited by his personal interests in
violation of Rule 1.7(a)(2);
(c) engaging in a sexual relationship with his current
client[ in violation of] Rule 1.19(a); and
(d) falsely telling C.T. that his wife had threatened to sue
her for alienation of affection, Defendant engaged in
conduct involving dishonesty, deceit, or
misrepresentation in violation of Rule 8.4(c).
The complaint sought disciplinary action against Defendant in accordance with N.C.
Gen. Stat. § 84-28. On 10 February 2021, Defendant filed a pro se answer to the State
Bar’s complaint.
¶ 11 On 23 August 2021, the matter was heard before a three-member DHC panel,
pursuant to N.C. Gen. Stat. § 84-28.1(b). Defendant was represented by counsel at
the hearing. On 21 September 2021, the DHC entered its written Order, in which it
made the following findings of fact by clear, cogent, and convincing evidence in the
adjudication phase:
(1) Plaintiff, the North Carolina State Bar, is a body duly
organized under the laws of North Carolina and is the
proper party to bring this proceeding 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 (Chapter 1
of Title 27 of the North Carolina Administrative Code).
(2) Defendant, Lonnie P. Merritt, was admitted to the
North Carolina State Bar in August 2008, and is, and
was at all times referred to herein, an attorney at law
licensed to practice in North Carolina, subject to the
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laws of the State of North Carolina, the Rules and
Regulations of the North Carolina State Bar and the
Rules of Professional Conduct.
(3) During all or part of the relevant periods referred to
herein, Merritt was engaged in the practice of law in
Wilmington, New Hanover County, North Carolina.
(4) Merritt was properly served with the summons and
complaint in this matter.
(5) C.T. hired Merritt in March 2018 for representation in
her domestic case.
(6) On Saturday 4 August 2018, Merritt went to C.T.’s
home to have her sign a consent order regarding
equitable distribution, alimony, child custody, and child
support.
(7) After C.T. signed the document, Merritt perceived that
there was a mutual attraction, so he asked permission
to kiss C.T. and she said yes. When they broke away
from “making out” C.T. stated they could not “go any
further,” so they did not have sexual intercourse that
day.
(8) C.T’.’s spouse didn’t sign the consent order until 8
August 2018, and it wasn’t filed until 23 [sic] August
2018.
(9) After their interaction on 4 August 2018, Merritt and
C.T. began a romantic relationship that included
lengthy late-night phone calls.
(10) In mid-September 2018, Hurricane Florence hit the
Wilmington area. After the storm, Merritt stayed with
C.T. at C.T.’s mother’s house for two days. Merritt then
stayed with C.T. at her home for several more days.
Merritt and C.T. began having sex.
(11) Merritt filed a complaint for absolute divorce on
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C.T.’s behalf on 26 September 2018 and continued to
represent C.T. until her divorce was finalized in
November 2018.
¶ 12 Based on these findings of fact, the DHC then made the following conclusions
of law in the adjudication phase:
(1) All parties are properly before the Hearing Panel and
this tribunal has jurisdiction over Defendant, Lonnie P.
Merritt, and the subject matter of this proceeding.
(2) Defendant’s conduct, as set out in the Findings of Fact
above, constitutes grounds for discipline pursuant to
N.C. Gen. Stat. § 84-28(b)(2) in that Merritt violated the
Rules of Professional Conduct in effect at the time of his
conduct as follows:
(a) By “making out” with C.T. at her home because
he “perceived a mutual attraction,” Defendant
attempted to engage in sexual relations with a
current client in violation of Rule 8.4(a); and
(b) By engaging in a sexual relationship with his
current client, Defendant violated Rule 1.19(a).
¶ 13 Finally, the DHC made additional findings of fact and conclusions of law
regarding discipline in the dispositional phase. Based on all findings of fact and
conclusions of law made by the DHC, it entered its order of discipline, suspending
Defendant’s license to practice law in the State of North Carolina for one year.
¶ 14 On 19 October 2021, Defendant filed timely written notice of appeal from the
Order.
II. Jurisdiction
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¶ 15 This Court has jurisdiction to address Defendant’s appeal from a final order of
the DHC. N.C. Gen. Stat. § 84-28(h) (2021).
III. Issues
¶ 16 The issues before this Court are whether the DHC: (1) erred in concluding
Defendant attempted to engage in sexual relations with his current client C.T. by
“making out” with her after he “perceived a mutual attraction”; (2) erred in
concluding C.T. was a current client when Defendant and C.T. engaged in sexual
relations; (3) erred in finding that Defendant had inadequate boundaries between his
professional and personal relationships; (4) erred in finding that Defendant chose to
undermine the fiduciary relationship he shared with C.T., intentionally causing harm
to C.T. and the profession; (5) erred in concluding the factors of “selfish motive” and
“pattern of misconduct” are present in Defendant’s case; and (6) abused its discretion
in suspending Defendant from the practice of law for one year.
IV. Standard of Review
¶ 17 This Court reviews decisions of the DHC using 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.” N.C. State Bar v. Leonard, 178 N.C. App. 432, 437,
632 S.E.2d 183, 187 (2006) (citation and quotation mark omitted); see also N.C. Gen.
Stat. § 150B-51(5) (2021). “The evidence is substantial if, when considered as a whole,
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it is such that a reasonable person might accept as adequate to support a conclusion.”
N.C. State Bar v. DuMont, 304 N.C. 627, 643, 286 S.E.2d 89, 99 (1982) (citation
omitted). Moreover, the evidence “must rise to the standard of ‘clear[, cogent,] and
convincing.’” N.C. State Bar v. Talford, 356 N.C. 626, 632, 576 S.E.2d 305, 310 (2003)
(citation omitted). “[U]nchallenged findings of fact[ ] are binding on appeal.” N.C.
State Bar v. Key, 189 N.C. App. 80, 87, 658 S.E.2d 493, 498 (2008) (citation omitted).
After reviewing the whole record, this Court must
determine whether the DHC’s decision has a rational basis
in the evidence. [T]he following steps are necessary as a
means to decide if a lower body’s decision has a “rational
basis in the evidence”: (1) Is there adequate evidence to
support the order’s expressed finding(s) of fact? (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? We note, too, that in
cases such as the one at issue, e.g., those involving an
“adjudicatory phase” (Did the defendant commit the
offense or misconduct?), and a “dispositional phase” (What
is the appropriate sanction for committing the offense or
misconduct?), the whole-record test must be applied
separately to each of the two phases.
N.C. State Bar v. Ethridge, 188 N.C. App. 653, 658–59, 657 S.E.2d 378, 382 (2008)
(citation and quotation marks omitted).
¶ 18 “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. at 660, 657 S.E.2d at 383 (citation omitted). However, “[t]he whole
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record test does not allow the reviewing court to replace the [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).
V. Analysis
A. Challenges to the Adjudication Phase
1. Conclusion of Law 2(a)
¶ 19 In his first argument, Defendant contends conclusion of law 2(a) is not
supported by findings or substantial evidence. Defendant further contends “the word
‘attempt’ . . . is generally found within the context of criminal actions,” and “[a]ttempt
offenses are not listed in the [Rules].” The State Bar argues conclusion of law 2(a) is
fully supported by Defendant’s stipulations and the undisputed evidence.
¶ 20 Rule 8.4 provides “[i]t is professional misconduct for a lawyer to . . . violate or
attempt to violate the Rules of Professional Conduct . . . .” N.C. R. Pro. Conduct 8.4(a).
Thus, under the Rules, professional misconduct occurs, inter alia, when there is an
attempt to violate any other rule of professional conduct. See N.C. R. Pro. Conduct
8.4(a). Rule 1.19 prohibits a lawyer from “hav[ing] sexual relations with a current
client of the lawyer” unless “a consensual sexual relationship existed between the
lawyer and the client before the legal representation commenced.” N.C. R. Pro.
Conduct 1.19(a)–(b). “Sexual relations” is defined as “(1) [s]exual intercourse; or (2)
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[a]ny touching of the sexual or other intimate parts of a person or causing such person
to touch the sexual or other intimate parts of the lawyer for the purpose of arousing
or gratifying the sexual desire of either party.” N.C. R. Pro. Conduct 1.19(d).
¶ 21 This Court has applied the elements of criminal attempt to an attorney
disciplinary action notwithstanding its acknowledgment that the Rules do not
contain such a requirement. See N.C. State Bar v. Livingston, 257 N.C. App. 121,
129, 809 S.E.2d 183, 189–90 (2017), disc. rev. denied, 371 N.C. 112, 812 S.E.2d 853(2018). The elements for common law criminal attempt are: “(1) the intent to commit
the substantive offense, and (2) an overt act done for that purpose which goes beyond
mere preparation, but (3) falls short of the completed offense.” Id. at 129, 809 S.E.2d
at 189–90 (quoting State v. Coble, 251 N.C. 448, 449, 527 S.E.2d 45, 46 (2000)).
“Intent is a mental attitude so it must ordinarily be proven by circumstances from
which it can be inferred.” State v. English, 241 N.C. App. 98, 106, 772 S.E.2d 740,
746 (citation and quotation marks omitted), disc. rev. denied, 368 N.C. 287, 776
S.E.2d 201 (2015).
¶ 22 Here, it can be reasonably inferred from the findings of fact, and the underlying
substantial circumstantial evidence supporting these findings, that Defendant
attempted to have sexual relations with C.T. on 15 August 2018. See id. at 106, 772
S.E.2d at 746. Despite Defendant’s testimony to the contrary, the substantial
evidence of record, viewed as a whole, reveals Defendant intended to have sexual
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relations with C.T. on 15 August 2018. Defendant’s intent is evidenced by meeting
C.T. inside her home on a Saturday and asking to kiss her. See id. at 106, 772 S.E.2d
at 746; Coble, 251 N.C. at 449, 527 S.E.2d at 46. He performed the overt acts of
kissing C.T., touching C.T.’s leg under her dress, and snapping C.T.’s undergarment
against her body. See Coble, 251 N.C. at 449, 527 S.E.2d at 46. Finally, Defendant
did not have sexual intercourse with C.T. because C.T. did not want to “go any
further”; thus, Defendant’s actions fell short of a completed rule violation. See id. at
449, 527 S.E.2d at 46. We conclude the findings show Defendant attempted to have
sexual relations with C.T. on 15 August 2018, in violation of Rule 1.19(a). See id. at
449, 527 S.E.2d at 46; Livingston, 257 N.C. App. at 129, 809 S.E.2d at 189–90; see
also N.C. R. Pro. Conduct 1.19(a).
¶ 23 Relying on Romulus v. Romulus, 215 N.C. App. 495, 715 S.E.2d 308 (2011) and
citing a lower court’s finding of fact in that case, Defendant argues “this Court [has]
found kissing not to be ‘sexual relations.’” Not only is this proposition inaccurate, the
question of whether “kissing” constitutes “sexual relations” was not decided by the
Romulus Court. Furthermore, Romulus did not concern whether an attorney had
attempted to violate any rule of professional conduct. Rather, the pertinent issue was
whether the plaintiff was barred from alimony pursuant to N.C. Gen. Stat. § 50-
16.3A(a) for the “illicit sexual behavior” she was alleged to have engaged in during
her marriage. Id. at 497, 715 S.E.2d at 310. This case is not applicable to the case
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before us, and Defendant’s argument is without merit.
¶ 24 Defendant argues “[t]here was no sexual contact or even the exchange of words
to substantiate an allegation of an attempt to engage in sexual relations.” We
disagree. By Defendant’s own admissions at the hearing, he “wouldn’t have seen
[C.T. on 15 August 2018 had he] not gone to the clinic. . . . [He] probably would’ve just
met her at Starbucks or wherever on the following Monday . . . .” Following the clinic
visit, C.T. told Defendant “[i]t would be nice to see you again.” At that point,
Defendant made the decision to go to C.T.’s house later that day, based on their
“mutual attraction” he perceived and his feelings of “lonel[iness].”
¶ 25 Defendant testified to feeling C.T.’s Spanx undergarment, which he described
as being “very high up and low on her legs.” He “snapped [C.T.’s undergarment] on
her side,” and they laughed. Defendant then asked C.T. what the undergarment was,
and she said, “[y]ou know, we can’t--.” Defendant further testified their consensual
kiss “was not a chaste kiss,” and “probably” involved tongue.
¶ 26 Finally, we consider the plain words of finding of fact 7, which provides: “[a]fter
C.T. signed the [consent order], [Defendant] perceived that there was a mutual
attraction, so he asked permission to kiss C.T. and she said yes. When they broke
away from ‘making out’ C.T. stated they could not ‘go any further,’ so they did not
have sexual intercourse that day.”
¶ 27 The second sentence of finding of fact 7 contains two independent clauses, (1)
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“[w]hen they broke away from ‘making out’ C.T. stated they could not ‘go any
further,’” and (2) “they did not have sexual intercourse that day.” These two clauses
are separated by the word “so,” which acts as a coordinating conjunction. The
Merriam-Webster Dictionary defines “so” when used as a conjunction, as “with the
result that,” or “for that reason.” So, Merriam-Webster, https://www.merriam-
webster.com/dictionary/so (last visited 9 Sept. 2022). Thus, this finding indicates C.T.
made a statement they “could not ‘go any further,’” and for that reason Defendant and
C.T. did not have sexual intercourse on 15 August 2018.
¶ 28 In his pro se answer, Defendant admitted to the State Bar’s averment, from
which finding of fact 7 was taken verbatim. Defendant later stipulated and agreed
to this fact as part of a pre-hearing conference with the State Bar. Defendant did not
specifically challenge finding of fact 7 on appeal. Therefore, we conclude adjudicatory
finding of fact 7 is undisputed, binding on appeal, and supports conclusion law of 2(a).
See Leonard, 178 N.C. App. at 437, 632 S.E.2d at 187; Key, 189 N.C. App. at 87, 658
S.E.2d at 498.
2. Conclusion of Law 2(b)
¶ 29 Defendant asserts conclusion of law 2(b) is not supported by substantial
evidence. Defendant further argues the DHC “erred in usurping authority to
substantially modify [the Consent Order] to create an attorney-client relationship.”
In other words, Defendant argues the DHC’s disregard of the provision of the Consent
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Order, which allowed Defendant to withdraw as counsel for C.T., had the practical
effect of substantively changing the terms of the Consent Order. Moreover,
Defendant contends the DHC, by concluding C.T. was a current client when sexual
relations between Defendant and C.T. commenced, “appli[ed] unpromulgated
legislative rules . . . and violate[d] Defendant’s due process rights.” Finally,
Defendant maintains he was not practicing law in representing C.T. in the divorce
proceeding because the representation was “administrative in nature.” The State Bar
contends “[t]he attorney-client relationship between C.T. and Defendant began in or
before March 2018 and did not conclude before the entry of C.T.’s divorce judgment
in November 2018”; thus, their sexual relations occurred while C.T. was a current
client. We agree with the State Bar.
¶ 30 As an initial matter, we reject Defendant’s assertion he was not practicing law
when he: signed C.T.’s divorce complaint, communicated to opposing counsel he would
be filing the complaint, filed a motion for summary judgment, and represented C.T.
at the hearing on the motion for summary judgment.
¶ 31 In North Carolina, the practice of law is defined as “performing any legal
service for any other person, firm or corporation, with or without compensation . . . .”
N.C. Gen. Stat. § 84-2.1(a) (2021). Defendant does not contend he was performing
any acts that are explicitly excluded from the phrase “practice of law” under the
statute. Certainly, Defendant was practicing law when he drafted and filed the
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divorce complaint and summary judgment motion on behalf of C.T. and represented
C.T. before the New Hanover County District Court on the motion. See id.¶ 32 Conclusion of law 2(b) provides: “[b]y engaging in a sexual relationship with
his current client, Defendant violated Rule 1.19(a).” We first consider whether the
findings demonstrate an attorney-client relationship existed between C.T. and
Defendant before their sexual relations commenced.
¶ 33 The existence of an attorney-client relationship “is a question of fact for the
[fact-finder.]” Cornelius v. Helms, 120 N.C. App. 172, 175, 461 S.E.2d 338, 339 (1995).
“[T]he relation of attorney and client may be implied from the conduct of the parties,
and is not dependent on the payment of a fee, nor upon the execution of a formal
contract.” N.C. State Bar. v. Sheffield, 73 N.C. App. 349, 358, 326 S.E.2d 320, 325
(citation omitted), writ denied, 474 U.S. 981, 106 S. Ct. 385, 88 L. Ed. 2d 338 (1985).
Whether an attorney-client relationship exists depends on whether the “relationship
could reasonably be inferred” from the attorney’s conduct. Id. at 358, 326 S.E.2d 325.
¶ 34 Defendant correctly identifies the duties of the DHC, as an administrative
agency.
[O]nce all the evidence has been presented and considered,
to determine the weight and sufficiency of the evidence and
the credibility of the witnesses, to draw inferences from the
facts, and to appraise conflicting and circumstantial
evidence. The credibility of witnesses and the probative
value of particular testimony are for the administrative
body to determine, and it may accept or reject in whole or
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part the testimony of the any witness.
Ethridge, 188 N.C. App. at 665, 657 S.E.2d at 386.
¶ 35 In this case, the record reveals Defendant entered into the Initial Agreement
with C.T. on 9 March 2018. This agreement included filing for an absolute divorce as
a Covered Service of the representation. On 3 August 2018—one day before
Defendant’s interaction with C.T. at her house—Defendant and C.T. entered into the
Second Agreement, which specifically excluded the filing for absolute divorce from
the Covered Services. On 28 August 2018, the Consent Order was filed with the court,
which could have terminated Defendant’s representation under the Initial
Agreement; however, the Initial Agreement could have also been terminated when
Defendant provided the Covered Services, based on the plain words of the agreement.
Defendant’s handling of C.T.’s divorce, consistent with the terms of the Initial
Agreement and without the execution of a separate agreement, demonstrates his
representation under the Initial Agreement was not complete until he sought C.T.’s
absolute divorce.
¶ 36 C.T. testified she did not remember signing the Second Agreement. Defendant
testified that he had the Second Agreement executed for tax-related purposes, and he
needed the agreement to prove his earned income. According to Defendant, the
Second Agreement had the same fee and same covered services. Contrary to
Defendant’s contentions, neither the fees nor the covered services were the same
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across the two agreements. The Second Agreement raised the fees by $600.00 and
did not include filing for absolute divorce. Nevertheless, Defendant testified he did
not intend to change the substantive terms of his Initial Agreement with C.T.; he only
intended to create a duplicate agreement to provide to a third party. Defendant
ultimately found the original Initial Agreement in his files. Lastly, despite
Defendant’s reference in his brief to the Second Agreement as a “superseding”
agreement, the terms of the Second Agreement did not terminate the Initial
Agreement or otherwise render the Initial Agreement void.
¶ 37 The DHC was presented with evidence of the two representation agreements,
which it admitted, as well as other evidence, including testimony. From this
evidence, the DHC “determine[d] the weight and sufficiency of the evidence and the
credibility of the witnesses, . . . dr[e]w inferences from the facts, and . . . appraise[d]
conflicting and circumstantial evidence.” See Ethridge, 188 N.C. App. at 665, 657
S.E.2d at 386.
¶ 38 In this proceeding, “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.” See
N.C. State Bar v. Sutton, 250 N.C. App. 85, 95, 791 S.E.2d 881, 891 (2016) (rejecting
the defendant’s argument he was denied due process in his disciplinary proceeding),
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appeal dismissed, 369 N.C. 534, 797 S.E.2d 296 (2017). Therefore, we are not
persuaded by Defendant’s argument that his due process rights were violated when
the DHC made findings supported by the substantial evidence in view of the record,
even if the evidence may have supported contrary findings. See Nelson, 107 N.C. App.
at 550, 421 S.E.2d at 166; see also Harding v. Bd. of Adjustment, 170 N.C. App. 392,
398, 612 S.E.2d 431, 436 (2005) (explaining this Court cannot substitute its judgment
for that of another administrative body even when “evidence in the record would have
supported contrary findings and conclusions”). Additionally, we note Defendant did
not challenge on appeal any findings of fact made during the adjudicatory phase;
therefore, these findings are deemed supported by substantial evidence and “are
binding on appeal.” See Key, 189 N.C. App. at 87, 658 S.E.2d at 498.
¶ 39 The DHC did not make an explicit finding of fact that the attorney-client
relationship existed between C.T. and Defendant from March 2018 and continued
through November 2018; however, the findings show the representation began in
March 2018, and Defendant “continued to represent C.T. until her divorce was
finalized in November 2018.” These findings were not contested on appeal and are
therefore binding. See Key, 189 N.C. App. at 87, 658 S.E.2d at 498. Further, the DHC
did not make a finding indicating the representation had terminated at any point in
this time period, so we infer from these findings that the representation was
continuous. Notwithstanding the formal representation agreements executed by C.T.
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and Defendant, and the timing of the orders filed in C.T.’s domestic case, there is
substantial evidence in view of the whole record, that an attorney-client relationship
existed between Defendant and C.T. in March 2018 and continued after entry of the
Consent Order. See Sheffield, 73 N.C. App. at 358, 326 S.E.2d at 325.
¶ 40 Specifically, on 6 August 2018, Defendant wrote an email to the attorney
representing C.T.’s husband in the domestic dispute indicating, “I will tell [C.T.] I we
[sic] will file for absolute divorce after we get a signed order on this other stuff.” That
same day, C.T. replied to Defendant’s email, acknowledging she read Defendant’s
email to opposing counsel. Based on Defendant’s statement that Defendant—or
Defendant and C.T.—would file for C.T.’s absolute divorce, C.T. could reasonably
infer an attorney-client relationship continued to exist between her and Defendant
after she signed the Initial Agreement, and until the divorce judgment was entered.
See Sheffield, 73 N.C. App. at 358, 326 S.E.2d at 325. Additionally, Defendant’s
statement that he would be filing for C.T.’s absolute divorce was consistent with the
purpose for which C.T. originally sought his legal services as well as the terms of the
Initial Agreement, which included absolute divorce within the scope of
representation. No separate representation agreement was entered with respect to
the service of filing for absolute divorce. Although Defendant argues the filed
Consent Order allowed him to withdraw as counsel, there is no evidence he did in
fact withdraw, and his actions demonstrate his continued representation of C.T. See
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N.C. R. Pro. Conduct 1.16(d) (“Upon termination of representation, a lawyer shall
take steps to the extent reasonably practicable to protect a client’s interests, such as
giving reasonable notice to the client . . . .”). Hence, it can be reasonably inferred
from DHC’s findings that the attorney-client relationship was established in March
2018 and was ongoing until C.T.’s divorce judgment was entered on 2 November 2018.
¶ 41 Finding of fact 10, which is not challenged on appeal, states “[Defendant] and
C.T. began having sex” in mid-September. Thus, this finding is “binding on appeal.”
See Key, 189 N.C. App. at 87, 658 S.E.2d at 498. As discussed above, the attorney-
client relationship existed between March 2018 and 2 November 2018, when C.T.’s
divorce judgment was entered. Therefore, the conclusion of law 2(b), which provides
Defendant had sexual relations with a current client in violation of Rule 1.19(a), is
supported by the unchallenged findings of fact. See Leonard, 178 N.C. App. at 437,
632 S.E.2d at 187.
B. Challenges to the Dispositional Phase
¶ 42 Defendant challenges two findings of fact made regarding discipline. He also
challenges two conclusions of law regarding discipline relating to factors under 27
N.C. Admin. Code 1B.0116(f)(3) (2021). Finally, Defendant argues the DHC abused
its discretion in ordering suspension.
¶ 43 “Suspension or disbarment is appropriate where there is evidence that the
defendant’s actions resulted in significant harm or potential significant harm to the
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clients, the public, the administration of justice, or the legal profession, and lesser
discipline is insufficient to adequately protect the public.” 27 N.C. Admin. Code
1B.0116(f)(1) (2021). The DHC considers the following factors in imposing
suspension:
(A) intent of the defendant to cause the resulting harm or
potential harm;
(B) intent of the defendant to commit acts where the harm
or potential harm is foreseeable;
(C) circumstances reflecting the defendant’s lack of
honesty, trustworthiness, or integrity;
(D) elevation of the defendant’s own interest above that of
the client;
(E) negative impact of defendant’s actions on client’s or
public’s perception of the profession;
(F) negative impact of the defendant’s actions on the
administration of justice;
(G) impairment of the client’s ability to achieve the goals of
the representation;
(H) effect of defendant’s conduct on third parties;
(I) acts of dishonesty, misrepresentation, deceit, or
fabrication; [and]
(J) multiple instances of failure to participate in the legal
professional’s self-regulation process.
27 N.C. Admin. Code 1B.0116(f)(1). In all disciplinary cases, the DHC considers
certain factors, including inter alia, “dishonest or selfish motive,” “a pattern of
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misconduct,” and “any other factors found to be pertinent to the consideration of the
discipline to be imposed.” 27 N.C. Admin. Code 1B.0116(f)(3)(C), (F), (V).
1. Finding of Fact 3 regarding Discipline
¶ 44 Defendant argues finding of fact 3 “is not substantially supported by competent
evidence and unfairly attempts to cast a harsh light on Defendant despite Finding of
Fact 2 confirming that Defendant has no prior professional discipline and Finding of
Fact 6 stating that there is no indication of sexual relationships with other clients or
a pattern of such misconduct.” In support of his argument, Defendant points to his
completion of a course addressing boundary concerns. We disagree.
¶ 45 Finding of fact 3 provides “Defendant’s conduct demonstrates that he had
inadequate boundaries between his professional and personal relationships.” We
note whether Defendant had prior professional discipline or sexual relations with his
clients is not dispositive as to whether Defendant “had inadequate boundaries
between his professional and personal relationships.” There was substantial
evidence in the record of Defendant’s “inadequate boundaries,” including: (1)
Defendant meeting C.T. on a Saturday—after business hours—in the health clinic
where she worked for Defendant to obtain unauthorized services; (2) Defendant
meeting C.T. inside her home when his usual practice was meeting his clients in a
public place; (3) Defendant acting on his feelings of attraction toward his current
client; (4) Defendant asking C.T. if he could kiss her while she was his current client;
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(5) Defendant having lengthy late-night phone calls with C.T. while she was his
client; and (6) Defendant beginning a sexual relationship with C.T. while his conduct
and actions inferred an attorney-client relationship existed.
¶ 46 Regarding Defendant’s completion of a course, the record indicates Defendant
completed a one-and-a-half-credit continuing legal education (“CLE”) course entitled
“The High Cost of Exercising Poor Professional Judgment” on 30 July 2021,
approximately three weeks before the DHC hearing. The completion of said course
roughly three years after the incidents in question is irrelevant to the DHC’s
disciplinary findings as to his conduct in 2018. Moreover, Defendant raises in his
brief that “[c]oncerns about boundary issues for a kiss [were] not addressed within
the context” of the CLE course he completed, which undermines his argument that
completion of the course eliminated DHC’s concerns for Defendant’s blurred
boundaries between professional and personal relationships. For the above reasons,
finding of fact 3 is “supported by substantial evidence in view of the whole record.”
See Leonard, 178 N.C. App. at 437, 632 S.E.2d at 187.
2. Finding of Fact 4 regarding Discipline
¶ 47 Defendant contests finding of fact 4 on the basis there was no fiduciary
relationship between him and C.T. when they began an intimate relationship, and
“[n]o evidence supports a finding that an attorney-client relationship existed” at that
time. Defendant also asserts he did not intend to cause C.T. harm, and there is no
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evidence the State Bar determined that his trust account contained funds received
from C.T.
¶ 48 Finding of fact 4 provides “[a]t the time Defendant began an intimate
relationship with C.T., it was foreseeable that his actions would undermine the
fiduciary relationship that he shared with her. By choosing to undermine the
fiduciary attorney-client relationship, Defendant intentionally caused harm to the
client and the profession.”
¶ 49 It is well-established “[t]he relationship between attorney and client is a
fiduciary relationship.” Booher v. Frue, 98 N.C. App. 585, 587, 392 S.E.2d 105, 106
(1990), disc. rev. denied, 328 N.C. 89, 402 S.E.2d 410 (1991). As stated above, an
attorney-client relationship may exist even when no fees are received from a client;
thus, any funds received by a client held in trust are unrelated to the inquiry of
whether a fiduciary relationship exists with that client. See Sheffield, 73 N.C. App.
at 358, 326 S.E.2d at 325. “[A] fiduciary relationship is generally described as arising
when there has been a special confidence reposed in one who in equity and good
conscience is bound to act in good faith and with due regard to the interests of the
one reposing confidence.” Dallaire v. Bank of Am., N.A., 367 N.C. 363, 367, 760 S.E.2d
263, 266 (2014) (citations and quotations omitted).
¶ 50 As discussed in Sections A(1) and A(2) above, Defendant intended to engage,
and did engage, in sexual relations with C.T. after establishing an attorney-client
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relationship, and therefore a fiduciary relationship. See Booher, 98 N.C. App. at 587,
392 S.E.2d at 106. The factor under 27 N.C. Admin. Code 1B.0116(f)(1) at issue in
this finding concerns whether Defendant “intended to cause the resulting harm or
potential harm.” See 27 N.C. Admin. Code 1B.0116(f)(1)(A). Accordingly, we turn to
the question of whether Defendant intended to cause harm to C.T. and the profession.
¶ 51 The issue of whether an inherent conflict of interest exists when an attorney
engages in sexual relations with his or her divorce client has not been decided in
North Carolina, and we need not decide it here. Nonetheless, we note other
jurisdictions have concluded that when an attorney engages in consensual sexual
relations with a divorce client where child custody, child support, alimony, and
division of marital asserts are to be decided, there is a per se violation of the rules of
professional conduct. In re DiPippo, 678 A.2d 454, 456 (R.I. 1996) (concluding it is
impermissible for an attorney “to engage in sexual relations with a divorce client
when issues of child custody, support, and distribution of marital assets are at stake
. . . .”); In re Lewis, 262 Ga. 37, 38, 415 S.E.2d 173, 175 (1992) (“Every lawyer must
know that an extramarital relationship can jeopardize every aspect of a client’s
matrimonial case . . . .”); Att’y Grievance Comm’n v. Culver, 381 Md. 241, 274, 849
A.2d 423, 443 (2002) (explaining an attorney who engages in consensual sexual
relations with a domestic relations client has an inherent conflict of interest when
divorce, child custody, and alimony, or distribution of marital assets are at issue).
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The reasoning for this bright-line rule is such a relationship may: (1) affect the client’s
ability to secure child custody, alimony, and attorney’s fees; (2) create a conflict of
interest; (3) impact marital property distribution; (4) interfere with the client’s ability
to reconcile with his or her spouse; (5) jeopardize the client’s rights; or (6) prevent the
attorney from exercising independent judgment. See In re DiPippo, 678 A.2d at 456;
In re Lewis, 262 Ga. at 38, 415 S.E.2d at 175; Att’y Grievance Comm’n v. Culver, 381
Md. At 274, 849 A.2d at 443.
¶ 52 A divorce client in North Carolina who engages in a sexual relationship with
his or her attorney faces similar dangers. See, e.g., N.C. Gen. Stat. § 60-16.3A(a)
(2021) (prohibiting a dependent spouse from being awarded alimony where “the
dependent spouse participated in an act of illicit sexual behavior”); N.C. Gen. Stat. §
50-16.4 (2021) (allowing a court to enter an order for reasonable attorney’s fees where
a dependent spouse is entitled to alimony); Darden v. Darden, 20 N.C. App. 433, 435,
201 S.E.2d 538, 539 (1974) (explaining that evidence of adultery is relevant to the
inquiry of a parent’s fitness for being awarded custody of minor children); Sebastian
v. Kluttz, 6 N.C. App. 201, 207, 209, 170 S.E.2d 104, 107–09 (1969) (explaining two
torts arising from adultery: alienation of affection and criminal conversation).
Further, comments to Rule 1.19, prohibiting sexual relations with a client, explain:
(2) [t]he relationship [between an attorney and a client is]
inherently unequal. The client comes to a lawyer with a
problem and puts his or her faith in the lawyer’s special
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knowledge, skills, and ability to solve the client’s problem.
The same factors that lead the client to place his or her
trust and reliance in the lawyer also have the potential to
place the lawyer in a position of dominance and the client
in a position of vulnerability.
(3) A sexual relationship between a lawyer and a client may
involve unfair exploitation of the lawyer’s fiduciary
position. Because of the dependence that so often
characterizes the attorney-client relationship, there is a
significant possibility that a sexual relationship with a
client resulted from the exploitation of the lawyer’s
dominant position and influence. Moreover, if a lawyer
permits the otherwise benign and even recommended
client reliance and trust to become the catalyst for a sexual
relationship with a client, the lawyer violates one of the
most basic ethical obligations, i.e., not to use the trust of
the client to the client’s disadvantage. This same principle
underlies the rules prohibiting the use of client confidences
to the disadvantage of the client and the rules that seek to
ensure that lawyers do not take financial advantage of
their clients.
....
(4) A sexual relationship also creates the risk that the
lawyer will be subject to a conflict of interest.
N.C. R. Pro. Conduct 1.19 cmt. n.2–4. It follows, a sexual relationship between an
attorney and his or her divorce client may cause, or threaten to cause, significant
harm to the client and the profession alike.
¶ 53 The potential harm inherent in a consensual sexual relationship between an
attorney and a client, whom the attorney represents in family law matters, is present
in the instant case where Defendant was representing C.T in divorce, alimony,
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equitable distribution, child support, and child custody matters while he began an
extramarital affair with her. The significant harm was foreseeable to Defendant, a
family law attorney who had been licensed in North Carolina for approximately ten
years when he began an affair with C.T. The DHC found C.T. to be “especially
vulnerable” considering she was facing divorce and experiencing “significant turmoil”
associated with her new single-parent status. Thus, the significant harm to C.T. was
not merely financial harm, but emotional harm.
¶ 54 There were also allegations that Defendant’s wife threatened to bring a claim
against C.T. for alienation of affection. To limit harm to C.T., Defendant presented
his wife with a settlement agreement, which waived Defendant’s and his wife’s rights
to bring third-party claims, including claims for alienation of affection. Although
Defendant and his wife executed the settlement agreement, Defendant’s relationship
with C.T. had the potential of causing significant financial harm to C.T. as her
relationship with Defendant exposed her to the risk of liability from a third party.
¶ 55 Furthermore, C.T. sought advice from independent legal counsel regarding
potential malpractice claims relating to the Consent Order Defendant negotiated just
prior to attempting to have sexual relations with C.T. C.T. testified the Consent
Order was not in her best interest because it did not allow her to claim both of her
children on her tax returns and did not provide adequate child support. We do not
foreclose the possibility Defendant’s professional judgment in finalizing the Consent
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Order may have been impaired, as evidenced by his desire to immediately kiss C.T.
after she and Defendant signed it.
¶ 56 Defendant argues on appeal DHC “ignore[d] the evidence that C.T. engaged
the services of an attorney to extort $14,000 from Defendant of which he paid an
amount.” The record shows Defendant agreed to settle with C.T., and Defendant
provides no evidence of extortion. We do not believe the DHC ignored the evidence
relating to C.T. and Defendant’s settlement; rather, the DHC properly considered the
evidence and the duties owed by Defendant to C.T. as her fiduciary, and concluded
Defendant intended to cause the resulting harm to C.T. and the profession by
engaging in deliberate, unethical conduct with a vulnerable client in contravention of
a fiduciary relationship and Rule 1.19(a). Therefore, we conclude finding of fact 4
regarding discipline is “supported by substantial evidence in view of the whole
record.” See Leonard, 178 N.C. App. at 437, 632 S.E.2d at 187.
3. Challenged Conclusions of Law regarding Discipline & Suspension
¶ 57 In his final arguments, Defendant challenges two conclusions of law regarding
discipline and contends the DHC abused its discretion in suspending him from the
practice of law for one year.
¶ 58 We review the DHC’s imposition of sanctions for an abuse of discretion.
Nelson, 107 N.C. App. at 552, 421 S.E.2d at 167. “[S]o long as the punishment
imposed is within the limits allowed by the statute[,] this Court does not have the
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authority to modify or change it.” N.C. State Bar v. Wilson, 74 N.C. App. 777, 784,
330 S.E.2d 280, 284 (1985) (citation omitted); see also N.C. Gen. Stat. § 84-28(h)
(“Review by the appellate division shall be upon matters of law or legal inference.”).
Under N.C. Gen. Stat. § 84-28, “[m]isconduct by any attorney” is grounds for
“[s]uspension for a period up to but not exceeding five years . . . .” N.C. Gen. Stat. §
84-28(c)(2) (2021).
The DHC must support its punishment choice with written
findings that are consistent with the statutory scheme of
N.C. Gen. Stat. § 84-28(c). The order must also include
adequate and specific findings that address how the
punishment choice (1) is supported by the particular set of
factual circumstances and (2) effectively provides
protections for the public.
N.C. State Bar v. Adams, 239 N.C. App. 489, 495–96, 769 S.E.2d 406, 411 (2015)
(citations omitted); see also N.C. Gen. Stat. § 84-28(c).
¶ 59 Defendant reiterates his arguments as to the adjudicatory findings of fact and
conclusions of law. He also challenges portions of conclusion of law 4 regarding
discipline.
¶ 60 Conclusion of law 4 provides:
The Hearing Panel concludes that the following factors
from § .0116(f)(3), which are to be considered in all cases,
are present in this case:
(a) the absence of prior disciplinary offenses in this state or
any other jurisdiction;
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(b) selfish motive;
(c) a pattern of misconduct;
(d) vulnerability of victim; and
(e) degree of experience in the practice of law.
¶ 61 Defendant argues the factor of “selfish motive” was inappropriate because no
sexual relationship existed with a current client. As explained above, this argument
is unconvincing. Defendant also challenges the factor of “a pattern of misconduct” as
being unsupported by the evidence. Assuming arguendo this factor is not supported
by the evidence, Defendant has failed to show the DHC’s decision would have been
different had this factor not been found. Thus, Defendant has failed to show
prejudicial error. See N.C. State Bar v. Frazier, 62 N.C. App. 172, 180, 302 S.E.2d
648, 654 (1983) (concluding the defendant failed to show prejudicial error in arguing
his due process rights were violated in the hearing before the DHC).
¶ 62 Here, the DHC made findings of fact stating how Defendant’s conduct was
inconsistent with his role as fiduciary and caused harm to C.T. and the profession. It
then considered admonition, reprimand, and censure but found these sanctions
“would not be sufficient discipline because of the gravity of the harm to the
administration of justice and the potential harm to the public and the profession in
the present case.” The DHC concluded “[e]ntry of an order imposing less serious
discipline would fail to acknowledge the seriousness of the offenses Defendant
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committed and would send the wrong message to attorneys and to the public
regarding the conduct expected of members of the Bar in this state.” Additionally,
the DHC made findings consistent with the factors set out in 27 N.C. Admin. Code
1B.0116(f) to support the imposition of suspension: (1) an “intent of the defendant to
cause the resulting harm or potential harm”; and (2) an “elevation of the defendant’s
own interest above that of the client.” Thus, the Order adequately shows that
Defendant’s punishment is supported by the factual circumstances of the case and
that the public will be protected from Defendant’s conduct. See Adams, 239 N.C. App.
at 495–96, 769 S.E.2d at 411.
¶ 63 Although Defendant does not raise the issue in his brief, we acknowledge the
DHC did not make specific findings stating Defendant’s conduct caused “significant
harm,” as required by the Administrative Code for the imposition of suspension. See
27 N.C. Admin. Code 1B.0116(f)(1); see also Talford, 356 N.C. at 637, 576 S.E.2d at
313 (“[F]indings must be made explaining how the misconduct caused significant
harm or threatened significant harm, and why the suspension of the offending
attorney’s license is necessary in order to protect the public.”). Nonetheless, we
conclude implicit in the DHC’s conclusion that Defendant violated Rules 8.4(a) and
1.19(a) is a determination that his misconduct presented “significant harm” to C.T.
and the profession. See Leonard, 178 N.C. App. at 446, 632 S.E.2d at 191 (affirming
the DHC’s disbarment of the defendant and concluding the DHC implicitly found that
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the defendant posed a significant potential harm to clients and the profession where
his violation of the Rules of Professional Conduct constituted misconduct).
¶ 64 Therefore, we hold there was substantial evidence to support the findings in
the DHC’s order of discipline, and these findings support the conclusions of law. See
Ethridge, 188 N.C. App. at 658–59, 657 S.E.2d at 382. We find no abuse of discretion
in the DHC’s imposition of suspension as a disciplinary sanction. See Nelson, 107
N.C. App. at 552, 421 S.E.2d at 167.
VI. Conclusion
¶ 65 Our review under the whole record test reveals the DHC’s findings of fact are
adequately supported by substantial evidence, and these findings of fact support its
conclusions of law that, inter alia, Defendant violated Rules 1.19(a) and 8.4(a).
Together, the DHC’s findings of fact and conclusions of law have a rational basis in
evidence supporting the suspension of Defendant’s license to practice law in North
Carolina for one year.
AFFIRMED.
Judges DILLON and GORE concur.