Opinion
No. COA10-1200
Filed 7 June 2011 This case not for publication
Appeal by Defendant from a disciplinary order entered 5 April 2010 by the Disciplinary Hearing Commission of the North Carolina State Bar. Heard in the Court of Appeals 9 March 2011.
The North Carolina State Bar, by Deputy Counsel David R. Johnson and Counsel Katherine Jean, for Plaintiff-Appellee. J. Clark Fischer for Defendant-Appellant.
North Carolina State Bar No. 09 DHC 6.
Mark H. Badgett (Defendant) appeals from an order of the Disciplinary Hearing Commission of the North Carolina State Bar (DHC), disbarring him from the practice of law. For the following reasons, we affirm.
I. Factual and Procedural Background
Admitted to the North Carolina State Bar (Bar) in 1984, Defendant has been either in private practice or a member of the judiciary since then. While this appeal arises from a complaint filed by the Bar after Defendant had been removed from judicial office, the request for disciplinary action was based on various instances of misconduct during Defendant's tenure as a district court judge in dereliction of the Revised Rules of Professional Conduct.
A. Judicial Standards Proceedings
During 2005 and 2006, the Judicial Standards Commission (JSC) commenced two investigations into alleged violations of the Code of Judicial Conduct by Defendant and recommended censure both times. See In re Badgett ( Badgett I), 362 N.C. 202, 657 S.E.2d 346 (2008) (censuring Defendant and suspending him from the bench for violations related to his existing business relationship with a lawyer often appearing before him); In re Badgett ( Badgett II), 362 N.C. 482, 666 S.E.2d 743 (2008) (removing Defendant from judiciary for persistent acts of willful misconduct and behavior that brought the judicial office into disrepute). Although the facts involved in the judicial standards proceedings are laid out in these opinions, we discuss those upon which this DHC action is largely based.
Prior to his service as a district court judge, Defendant maintained a private law practice and, after being elected as a district court judge in November 2004, arranged to lease his building and sell his client files to attorney Clarke Dummit. Mr. Dummit represented clients before Defendant on multiple occasions, but Defendant never disclosed their business relationship. Complaints from the district attorney's office about Defendant's perceived favorable treatment of Mr. Dummit led to a JSC investigation in December 2005 (JSC Proceeding I). The Executive Director of the JSC advised Defendant that his business relationship with Mr. Dummit was potentially grounds for disqualification from matters in which Mr. Dummit was involved. The JSC found that Defendant then directed Mr. Dummitt to draft a document titled "In re Remittal of Disqualification," asserting that, "pursuant to an opinion rendered by the [JSC]," the landlord-tenant relationship between them was "both insubstantial and immaterial to the administration of justice in the District Courts of Stokes County." Although no such opinion was ever rendered by the JSC, Defendant signed the Remittal and made several unsuccessful efforts to obtain District Attorney Ricky Bowman's signature. On one occasion, at the bench in open court, Defendant lied to Mr. Bowman telling him that JSC Proceeding I was over and that the JSC had instructed Mr. Bowman to sign the Remittal.
On 2 October 2006, the JSC filed a complaint based on these facts, and several hearings were conducted. Defendant testified under oath that he neither directed Mr. Dummit to prepare the Remittal nor made the untrue statements to Mr. Bowman. The JSC specifically found Defendant's testimony lacked credibility and on 19 March 2007, recommended censure. Our Supreme Court held that the JSC's findings were supported by clear and convincing evidence and that Defendant's actions not only prejudiced the administration of justice but also constituted willful misconduct, including:
(1) his participation in the preparation of a remittal of disqualification, despite provisions of the Code of Judicial Conduct to the contrary; (2) his untruthful statements concerning the state of the investigation and the opinions purportedly tendered by the [JSC]; and (3) his pressure on Mr. Bowman to sign the remittal, using threats and the power of his office.
Badgett I, 362 N.C. at 209, 657 S.E.2d at 351. Of particular concern to the Court was Defendant's testimony regarding the remittal of disqualification, noting that,
although [Defendant] testified under oath that he did not direct Dummit to prepare the remittal, plenary evidence contradicted him.
. . . .
. . . . The [JSC] also found that [Defendant] told Mr. Bowman that Paul Ross [of the JSC] had said that Bowman needed to sign the document and the [JSC's] investigation was over. Neither of these statements was true. In addition, the [JSC] also determined that [Defendant] became angry and threatened Mr. Bowman upon his refusal to sign the form. The [JSC] made an explicit determination that [Defendant's] "testimony concerning his conversation at the bench with Mr. Bowman was not credible."
This course of events is especially troubling because respondent was under oath and sworn to tell the truth.
Id.
A second JSC investigation (JSC Proceeding II), also resulting in the filing of a complaint, examined Defendant's conduct in a domestic violence case. On 24 February 2005, Defendant presided over a hearing in the matter of Carreon v. Carreon, 05 CVD 164, in which Mrs. Carreon sought a domestic violence protective order against Mr. Carreon. Mr. Carreon was compelled to proceed pro se after Defendant gave him only an hour to retain an attorney. Although Mrs. Carreon did not request support in her complaint or offer any evidence therefor, Defendant ordered Mr. Carreon to pay her $150.00 per week in spousal support after she indicated that she had no money. As Mr. Carreon attempted to object to the award of support, Defendant replied that "you people always find a way" to get money and remarked, "I don't know how you treat women in Mexico, but here you don't treat them that way." Defendant then ordered the courtroom clerk to search Mr. Carreon's wallet and give any cash to Mrs. Carreon. Mr. Carreon subsequently filed a motion for relief on the grounds that he needed more time to procure counsel. Defendant granted the motion but instructed Mr. Carreon's counsel to draw an order stating that, due to a language barrier, he had not understood that Mr. Carreon wanted an attorney. Upon notice of JSC Proceeding II, Defendant discussed the events of the 24 February hearing with the courtroom clerk and Mrs. Carreon's attorney, both potential witnesses in the matter. Attempting to influence her recollection, Defendant suggested to the clerk that Mr. Carreon had appeared violent and requested that she prepare a written statement to that effect. Defendant was interviewed by an SBI agent and denied ever directing the clerk to search Mr. Carreon's wallet or take his money, stating that the clerk approached Mr. Carreon because she was suspicious of him and concerned for the safety of others in the courtroom. Defendant made other inconsistent, false, and misleading statements to the SBI agent, and the JSC recommended censure for Defendant's conduct during both the Carreon case and the investigation.
Our Supreme Court adopted the JSC's findings that: Defendant made remarks "directed to [Mr. Carreon's] ethnicity as an Hispanic person", who was clearly aware he wanted to hire an attorney; the clerk approached Mr. Carreon only after Defendant twice ordered her to and not out of any concern for courtroom security; and Defendant made untrue statements "with the intent to deceive" the SBI agent during the investigation. Badgett II, 362 N.C. at 485-87, 666 S.E.2d at 745-46. "greeing that censure was warranted for the statements "indicative of a bias against Mr. Carreon" and misuse of judicial power, the Court viewed as more serious Defendant's untruthful and deceptive statements to the SBI agent and "his attempts to influence the recollections" of potential witnesses. The Court reproached Defendant for the willful misconduct of "attempt[ing] to cover up his misdeeds" rather than "merely relating the truth and letting the chips fall where they may," noting "[t]his behavior is entirely unacceptable for a lawyer or a judge." Id. at 490, 666 S.E.2d at 748 (emphasis added). The Court thus ordered, not only censure, but also removal from judicial office. Id. at 483, 666 S.E.2d at 744.
B. DHC Proceedings
On 10 June 2009, the Bar filed an amended complaint seeking disciplinary action for the misconduct that led to Badgett I and Badgett II. The Bar alleged discipline was warranted under N.C. Gen. Stat. § 84-28(b)(2) in that Defendant violated several of the Revised Rules of Professional Conduct (Rules), first, by "directing Mr. Dummit to prepare the Remittal containing false statements," thus knowingly assisting or inducing him to violate the Rules and engaging in misconduct through another's acts in violation of Rule 8.4(a), and in conduct involving dishonesty, fraud, deceit, or misrepresentation in violation of Rule 8.4(c). The Bar alleged that Defendant also violated the Rules by: (i) "knowingly making false representations to the District Attorney about the [JSC's] investigation and statements by Paul Ross" in violation of Rule 8.4(c); (ii) "falsely testifying under oath at the hearing in [JSC] Proceeding I," thus making false statements of material fact to a tribunal in violation of Rule 3.3(a)(1), committing a criminal act (i.e. perjury) reflecting adversely on his honesty, trustworthiness or fitness as a lawyer in violation of Rule 8.4(c) and engaging in conduct prejudicial to the administration of justice in violation of Rule 8.4(d); (iii) "making comments from the bench indicative of bias and directed toward [a] defendant's Hispanic ethnicity and by depriving the defendant of his rights without due process," thus violating Rule 8.4(d); (iv) "directing defense counsel in Carreon to prepare an order containing false statements and by signing that order on behalf of the court" and then "attempting to influence the recollection of potential witnesses about the 24 February 2005 events," thus violating Rules 8.4(c) and (d); and (v) "knowingly making false statements [of material fact] to the SBI agent investigating [JSC] Proceeding II," in violation of Rules 4.1 and 8.4(c).
On 21 July 2009, the Bar filed a motion for summary judgment, requesting that preclusive effect be given to Badgett I and Badgett II to dispose of any factual issues. The DHC entered an order for partial summary judgment on 16 November 2009, finding that the Bar complaint's allegations "mirror the findings and conclusions of the [JSC] as affirmed and adopted by [our] Supreme Court," and that the offensive use of non-mutual collateral estoppel would not be inequitable to Defendant. Therefore, the factual issues proven before the JSC and articulated in Badgett I and Badgett II would not be relitigated and conclusively established the facts alleged by the Bar. The DHC concluded as a matter of law that the established facts were sufficient to support the alleged Rules violations and granted the Bar's motion to that extent, thus leaving for determination only of the type of appropriate discipline. After the dispositional hearing on 19 February 2010, the DHC entered an order disbarring Defendant. The order sets out the findings of fact "established by summary judgment," consistent with the factual history recited above and the allegations of the Bar complaint. As set forth in the partial summary judgment order, the DHC concluded Defendant's conduct constituted violations of the Rules as alleged and thus grounds for discipline pursuant to N.C. Gen. Stat. § 84-28(b)(2). On appeal, Defendant does not challenge any of these findings of fact or conclusions of law related to the adjudicatory phase, which established his violations of the Rules as grounds for discipline. Rather, Defendant's issues on appeal concern only the dispositional phase, and additional portions of the DHC order related thereto are further discussed below.
II. Newspaper Evidence
Defendant first argues that the DHC committed prejudicial error by admitting into evidence copies of several local newspaper articles and editorials covering the JSC proceedings involving Defendant. Specifically, Defendant contends that the particulars of the newspaper coverage regarding Defendant's judicial discipline constituted hearsay, were irrelevant to the determination of an adequate sanction, and unfairly prejudiced Defendant. We disagree.
A. Relevance
Following the testimony of local attorney Stephen Royster on the impact Defendant's conduct had on the administration of justice and the public, the Bar offered a compilation of newspaper articles as a sample of the local press coverage of the JSC proceedings. Defendant objected on the grounds that the information contained in the articles was "irrelevant and hearsay and should not factor into the Committee's deliberations." The Bar believed that the articles were relevant to show "[h]arm to the profession," often proved by evidence "that demonstrates what effect the misconduct had on public perception," and were not hearsay because they were "not offered for the truth of the matter asserted" but, rather, "to show what was out there and what effect they may have on the public perception in this case." The exhibit was allowed "for the limited purpose of . . . tending to show harm, to the profession," specifically sustaining Defendant's objection to the extent that the panel would not "consider these articles for the[ir] truth."
The DHC is clearly bound by the Rules of Evidence in any hearing, N.C. Admin. Code tit. 27, r. 1B.0114(t) (2009), "including the rules excluding hearsay statements [and irrelevant evidence], as in any other case," N.C. State Bar v. Mulligan, 101 N.C. App. 524, 527, 400 S.E.2d 123, 125 (1991), and DHC procedures are also to resemble bench trials, N.C. Admin. Code tit. 27, r. 1B.0114(n) (encouraging hearing panels to "conform as nearly as practicable" with the rules "for trials of nonjury civil causes"). Thus, "[t]he Commission [sits] as both judge and jury in this proceeding, much as a trial judge in Superior Court hears nonjury trials." N.C. State Bar v. Talman, 62 N.C. App. 355, 361, 303 S.E.2d 172, 179 (1983); see also N.C. State Bar v. Sheffield, 73 N.C. App. 349, 361, 326 S.E.2d 320, 327 (1985) ("Defendant initially observes that the rules of evidence are relaxed in a disciplinary hearing, modeled as it is after a non-jury trial in a civil case.").
Relevant evidence is that which has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." N.C. Gen. Stat. § 8C-1, Rule 401 (2009). We accord great deference to DHC's rulings on the admission of evidence based on relevancy. N.C. State Bar v. Gilbert, 151 N.C. App. 299, 307, 566 S.E.2d 685, 690 (2002), aff'd per curiam, 357 N.C. 502, 586 S.E.2d 89 (2003). Where the DHC has authority to consider various aggravating and mitigating factors in arriving at an appropriate sanction, see N.C. Admin. Code tit. 27, r. 1B.0114(w), when disbarment is an option, a panel must consider whether the defendant's actions had a "negative impact" on the "public's perception of the profession" and "on the administration of justice." Id. at r. 1B.0114(w)(1)(E)-(F). Thus, evidence that has even a slight logical tendency to make more or less likely the existence of these factors in aggravation is admissible.
Defendant acknowledges that the DHC was required to consider matters in aggravation and that the panel specifically limited its consideration of the newspaper articles to whether they showed harm to the profession, but he argues that "there is no authority for basing a disciplinary ruling, either in whole or in part, on what may have been said about a lawyer in a newspaper." Defendant focuses on the articles' including "far more than factual accounts of [his] travails before the [JSC] and the North Carolina Supreme Court," such as "numerous statements of opinion from lawyers and editorial columnists" and "a disparaging political cartoon." However, the newspaper articles were to be treated as evidence, not of those certain statements or opinions, but, rather, to illustrate that Defendant's misconduct in general had garnered considerable media coverage. That this issue merited repeated publication tended to show that Defendant's misconduct had attained a palpable interest, was widely known among the community, and contributed to a negative public perception of those critical to the operation of the court system and the administration of justice. Thus, the media attention and resultant publicity were certainly relevant to prove that Defendant's actions leading to his removal from the bench and the instant DHC action negatively impacted the public's perception of the legal profession and the administration of justice. Accordingly, the newspaper articles were indeed admissible as evidence of these aggravating factors.
Moreover, the newspaper evidence was relevant to corroborate the testimony of various witnesses at the dispositional hearing who agreed that Defendant's misconduct had harmed the reputation of the profession and the courts among the public at large and indicated that such notoriety was due, at least in part, to local press coverage thereof. The clerk who was in the courtroom during the Carreon matter testified that Defendant's JSC cases were covered in her local newspaper and followed by people in her community: "It's a small town and . . . when the story was in the paper, it seemed like it was on everybody's topic of discussion at that time." Mr. Royster testified that Defendant's misconduct had "an impact on the administration of justice in [his] judicial district" and "upon the public, as well," explaining that the "matter was in the newspapers on a regular basis, and it was discussed . . . in public." He referenced particular local newspapers that had covered the matter and testified that the coverage "was clearly a horrible black eye on the judicial system in our district." District Court Judge Angela Puckett also referenced the impact of the newspapers in connection with whether the events of Defendant's JSC hearings and removal from office had any effect on the public's perception of the openness and honesty of the justice system in Stokes and Surry Counties. She attributed harm to the profession, in part, to the newspaper articles that were the talk of both counties for many months. Judge Puckett also indicated the fact that the events of Defendant's JSC proceedings were circulated in the newspapers proved "significant discredit [was] brought upon the judicial system." Even witnesses who testified favorably to Defendant's character and reputation agreed that members of the public formed a negative opinion of Defendant from reading the newspaper accounts. In fact, Defendant himself testified that his clients had "known about what happened" because "[t]hey all read the newspapers." Defendant acknowledged that "[t]his has pretty much been all over Surry and Stokes County" and that "The Surry Messenger . . . had a lot of articles in the newspaper" and then apologized "for all the adverse publicity that . . . appeared in the newspapers." Accordingly, a sampling of the newspaper articles that were so heavily referenced during the hearing was properly admitted as corroborative evidence.
Defendant also contends that even if relevant, the newspaper evidence should have been excluded under Rule 403, under which even relevant evidence "may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." N.C. Gen. Stat. § 8C-1, Rule 403 (2009). However, as noted above, the DHC clearly stated that the articles were admitted for the limited purpose of showing harm to the profession, and they were clearly relevant to prove that the JSC proceedings were widely publicized. While it is possible to speculate that inadmissible or unfairly prejudicial evidence could be gleaned therefrom-Defendant points to the articles' inclusion of "subjective opinions of third parties not directly involved in the case against him"-we presume that the Commission did not consider the incompetent evidence. Talman, 62 N.C. App. at 361, 303 S.E.2d at 178; see also In re Paul, 84 N.C. App. 491, 497, 353 S.E.2d 254, 258 (1987) ("In a trial before a judge without a jury, it is presumed that the judge disregarded any incompetent evidence and did not draw inferences from testimony otherwise competent which would render such testimony incompetent.").
In support of his argument, Defendant cites only criminal cases arising from jury trials, but where DHC hearings are to mimic nonjury trials unless otherwise specified, we apply the presumption that the DHC panel members disregarded any incompetent information in the newspaper articles and understood the limitations under which they were admitted. The DHC did not recite any of the challenged statements or opinions from the newspaper articles in its findings of fact. That the DHC panel even considered the articles is reflected in only one finding, which demonstrates that the evidence was indeed limited to the purpose for which it was allowed-namely, that the story was covered by the media:
2. Some of Defendant's misconduct occurred in open court. All of Defendant's misconduct became publicly known. As a result of Defendant's misconduct, the [JSC] held two hearings which received media coverage. Defendant's misconduct received public attention, bringing the legal profession into disrepute and significantly undermining the public's confidence in the integrity of the justice system.
While Defendant attacks the impropriety of allowing "media accounts and opinions to factor into a bar disciplinary determination under the guise of showing harm to the public," there is no indication in the record that the panel based any of its findings, conclusions, or its final decision on the contents of the articles. In fact, the DHC found that the "[e]vidence relating to Defendant's character and reputation was in conflict" and made no definitive finding on the issue, suggesting that the panel did not rely on the controverted aspects of the evidence. Thus, any adverse thoughts or views appearing in the newspapers caused no unfair prejudice, and Defendant points to nothing in the order itself or otherwise in the panel's words or conduct that would indicate improper evidence was relied upon. See In re Oghenekevebe, 123 N.C. App. 434, 438, 473 S.E.2d 393,397 (1996) ("In a nonjury trial, if incompetent evidence is admitted and there is no showing that the judge acted on it, the trial court is presumed to have disregarded it."). As such, Defendant fails to overcome the presumption that the panel disregarded any incompetent newspaper evidence.
B. Hearsay
Defendant also challenges the admission of the articles on hearsay grounds, "notwithstanding the assertion that they were neither offered nor received for the truth thereof." See Rankin v. Food Lion, ___ N.C. App. ___, ___, 706 S.E.2d 310, 315 (2011) (noting the common understanding among courts in the Fourth Circuit that newspaper articles are hearsay when "introduce[d] in reliance upon the truth of their contents" (emphasis added)). Initially, as noted above, we presume that the panel observed the restrictions placed on the evidence and did not, as the chairman specified would not be done, "consider these articles for the[ir] truth."
In another Fourth Circuit case, United States v. ReBrook, 58 F.3d 961, 967 (4th Cir. 1995), the defendant argued "he was attempting to use [various newspaper] articles solely to establish what information was available in the public domain," and although the district court's refusal to admit them into evidence was upheld, the Court distinguished "the permissible use of the articles to demonstrate general public knowledge and the impermissible use of the articles . . . to prove the factual matters asserted therein." Id. at 58 F.3d at 968. Whereas the DHC in this case sat as both the judge and jury, we have no reason to believe the panel members did not understand the hearsay nature of the articles, to the extent inadmissible hearsay was contained therein, or were unable to observe the line between permissible and impermissible uses of the evidence. The newspaper articles at issue, therefore, were properly admitted by the DHC as evidence tending to show harm to the legal profession through the negative impact Defendant's conduct had on the public's perception thereof.
III. The Disciplinary Order
Defendant argues that his "disbarment was disproportionate to his ethical violations which had already been the subject of discipline by the Supreme Court."
We first note that, while Defendant accurately states that we review a DHC order "under the `whole record test,'" N.C. State Bar v. Talford, 356 N.C. 626, 632, 576 S.E.2d 305, 309 (2003), our Supreme Court has expressly disavowed any notion that the appellate courts conduct a proportionality review of attorney disciplinary actions. Id. at 641 n. 4, 576 S.E.2d at 315 n. 4. The whole-record test
requires the reviewing court to determine if the DHC's findings of fact are supported by substantial evidence in view of the whole record, and whether such findings of fact support its conclusions of law. Such supporting evidence is substantial if a reasonable person might accept it as adequate backing for a conclusion. 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. Moreover, in order to satisfy the evidentiary requirements of the whole-record test in an attorney disciplinary action, the evidence used by the DHC to support its findings and conclusions must rise to the standard of "clear[, cogent,] and convincing." Ultimately, the reviewing court must apply all the aforementioned factors in order to determine whether the decision of the lower body, e.g., the DHC, "has a rational basis in the evidence."
Id. at 632, 576 S.E.2d at 309-10 (internal citations omitted). We undertake a three-part inquiry, which must be applied separately to both the adjudicatory and dispositional phases, to determine whether the DHC's decision "has a rational basis in the evidence" under the whole-record test: A(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?" Id. at 634, 576 S.E.2d at 311. Defendant does not challenge any aspects of the adjudicatory phase establishing his misconduct, and we thus limit our review to the DHC's determination of the appropriate sanction for committing such misconduct.
The order sets out "findings of fact regarding discipline," including findings that: Mr. Carreon was vulnerable as a non-native English speaker who had little knowledge of the court system and was unrepresented by counsel; while evidence showed that Defendant experienced a MRSA infection and clinical depression at the relevant times herein, "the misconduct at issue was not caused by the physical afflictions" or the mental and emotional ones-as Defendant's expert testified, uncontradicted, that "dishonesty is not a symptom of depression" and such problems did not mitigate Defendant's misconduct; our Supreme Court characterized Defendant's behavior as willful conduct, "entirely unacceptable for a lawyer or a judge, . . . amounting to a serious betrayal of the trust that the public invests in the judiciary," and has described his "tenure as a district court judge as . . . fraught with disrespect for the parties appearing before him, persistent failure to be truthful and a disregard for the laws and ethical rules that govern the judiciary[;]" "Defendant has a persistent tendency to blame others for his predicament and not to acknowledge that he himself engaged in deceitful conduct[;]" and our Supreme Court saw his removal and disqualification from future judicial office as "essential to the protection of the people of this State."
The panel concluded that several factors in aggravation listed in N.C. Admin. Code tit. 27, r. 1B.0114(w) were applicable here, including: acts of dishonesty, misrepresentation, deceit, or fabrication and dishonest or selfish motive; vulnerability of the victim, Mr. Carreon; a pattern of misconduct and multiple offenses; Defendant's refusal to acknowledge the wrongful nature of his conduct; and his more than twenty years of experience in the practice of law. Evidence relating to Defendant's character and reputation was conflicting, and the panel did "not conclude that Defendant has good character or . . . a good reputation for truthfulness." Mitigating factors, such as an absence of prior disciplinary offenses and "[t]he imposition of other penalties or sanctions, i.e., the removal of Defendant from the district court," were also considered before the DHC made the following "conclusions regarding discipline": (i) as a result of Defendant's misconduct, some of which occurred in open court and all of which became publicly known, the JSC "held two hearings which received media coverage," and "Defendant's misconduct received public attention, bringing the legal profession into disrepute and significantly undermining the public's confidence in the integrity of the justice system[;]" (ii) "[b]y committing acts of dishonesty, including giving untruthful testimony under oath to the [JSC], Defendant has shown himself to be a person who lacks the character necessary to be a lawyer" and "a person who cannot be trusted to serve as an officer of the court; and (iii) while "Defendant testified that he was sorry that his conduct had caused a stain on the honor of his family," he "has not expressed remorse for his misconduct" and "[b]y continuing to deny that he engaged in acts of dishonesty and by failing to acknowledge the wrongfulness of his conduct, Defendant has indicated that he has not been rehabilitated." Carefully considering all forms of discipline available, the panel concluded that the lesser alternatives of license suspension, public censure, reprimand, or admonition
We note that some of these "conclusions" or parts thereof are better evaluated as findings of fact and will treat them as such in our review pursuant to the standard articulated below. See N.C. State Bar v. Key, 189 N.C. App. 80, 88, 658 S.E.2d 493, 499 (2008) ("The classification of a determination as either a finding of fact or a conclusion of law is admittedly difficult," but an order's classification "is not determinative, and, when necessary, the appellate court can reclassify an item before applying the appropriate standard of review.").
would not be sufficient discipline because of the gravity of the actual harm Defendant's conduct caused to the public, the administration of justice, and the legal profession and because of the gravity of the significant potential harm to potential clients, the public, the administration of justice, and the legal profession if Defendant were permitted to continue practicing law.
Sanctions short of disbarment would not adequately "protect the public, the profession and the administration of justice" because:
(a) Defendant committed misdeeds involving violations of the public trust, including material misrepresentations and deceit[,] . . . [which] are among the most serious that an attorney can commit. Such offenses demonstrate that the offending attorney is not trustworthy. The public should be able to assume that all lawyers are trustworthy.
(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 to the public regarding the conduct expected of members of the Bar of this State.
(c) The protection of the public, the legal profession and the administration of justice requires that Defendant not be permitted to resume the practice of law until he demonstrates the following: that he has reformed; that he understands his obligations to his clients, the public, the legal profession and the administration of justice; and that permitting him to practice law will not be detrimental to the public or the integrity and standing of the legal profession or the administration of justice.
Based on these conclusions, the DHC resolved that disbarment was the only appropriate sanction for Defendant.
A. Findings of Fact Regarding Discipline
Defendant challenges findings that he failed to admit he had engaged in dishonest acts, acknowledge the wrongful nature of his conduct, and express remorse for his misconduct, thus indicating "that he has not been rehabilitated." Before reviewing the record, we note that Defendant does not challenge a similar finding-Finding of Fact Regarding Discipline 7-that he "has a persistent tendency to blame others for his predicament and not to acknowledge that he himself engaged in deceitful conduct." This finding is thus binding on appeal, see Key, 189 N.C. App. at 87, 658 S.E.2d at 498, and supports the disputed finding that Defendant has not been rehabilitated. Moreover, the findings are supported by adequate, substantial record evidence in Defendant's own testimony.
Defendant was given plenty of opportunities to admit that he had engaged in misconduct and vocalize that he had learned from his egregious misdeeds. However, Defendant's response to how he has been affected by the Supreme Court's findings and his removal from the bench was that he had been "denied the right to even be on the court appointed list" and had "a very slow practice." Even when defense counsel probed for a deeper response, Defendant accepted no responsibility but said only the Supreme Court's findings were "very hurtful." Defendant did testify that he had "stained [his] family name," as specifically found by the DHC, but offered no explanation as to how, instead proceeding to portray himself as the victim: "I have been embarrassed, and it's been very hurtful. And I've been very, very bothered by it. I've incurred great legal expenses, lost income." Defendant also stated that he apologized to Mr. Carreon and his bar councilor but continuously stated that he did not believe he had lied or intentionally misled anyone. That Defendant now "disclose[s] everything in court [that] is remotely relevant" seems to be the only effect the inappropriate business relationship with Mr. Dummitt had on him. For, upon the suggestion that his reputation for honesty before a tribunal was "tarnished," Defendant responded only that he had "never been accused of dishonesty by any of [his] clients in 18 years of practicing law privately, three years as a district attorney" and that "[a]ll [his] problems began the day that [he] crossed the city limits of Dobson."
As for the Carreon matter, Defendant maintained that he did not lie in stating that Mr. Carreon had trouble understanding the English language. Defendant said that he related only that which he could remember, and when asked if he accepted that he probably did direct[] the bailiff to get Mr. Carreon's wallet, Defendant said that he probably did but emphasized that "if there was a tape, [he] would know. And that tape is not there." Defendant likewise refused to acknowledge that he failed to tell the truth to the SBI and the JSC, even in the various apologies he said he had made:
Q. For what did you apologize?
A. For any disrepute to the local Bar, for the allegations that I had been, you know, mean to defendants. I can't remember what else we talked about. Mr. Gehring has known me since I was probably six years old. He's an older man, and he is our Bar Councilor. We talked about life. We talked about my mother. We talked about my father. He and my father were friends. He told me that, "Mark, you've always been a lawyer.
That's what you've got in your heart. You've always been a lawyer."
Q. Did you apologize to him for lying under oath?
A. We didn't talk about that. The only words that we used were "disrepute to the local Bar." No, I didn't use the word "lying" because I didn't intentionally mislead anybody. That's still what I think.
Q. And did you apologize to Mr. Gehring for lying to Special Agent Wilson?
A. Well, once again you use that word "lying." I didn't intentionally mislead anybody, so, no, I don't believe I did. I don't think so. I apologized for bringing disrepute, which was a word that was used in the Supreme Court opinion, to the local Bar. That's what I apologized for.
Q. So do I understand you to say that it was more of a general apology and not a specific apology about the specific things that you did?
A. I apologized for bringing disrepute to the local Bar.
Defendant believed that the Supreme Court's findings had no effect at all on public opinion of attorneys because "[p]eople have a low opinion of attorneys anyway" and expressed remorse, not for any misconduct, but only the consequences: "I'm afraid that that's true [that I will never be a judge again], although I thought that I did a decent job. But obviously others think that I didn't."
We conclude that this is substantial evidence in support of the DHC's findings that Defendant has not shown remorse or acknowledged the serious wrongful nature of his conduct. We further hold that upon review of the whole record, taking into account any contradictory testimony by which Defendant's remorse could be inferred, the evidence considered by the DHC rises to the standard of clear, cogent, and convincing. The record also shows that the remaining, unchallenged findings of fact are likewise supported by clear, cogent, and convincing evidence.
B. Choice of Sanction
Defendant contends that "[t]he totality of the record did not establish by clear and convincing evidence that the ultimate sanction of disbarment was the appropriate" one. He submits that the DHC erred by failing to afford any mitigating value to his health issues and gave inadequate weight to his prior sanctions.
As referenced above, the Bar has adopted aggravating and mitigating factors that a DHC shall consider during the dispositional phase. See N.C. Admin. Code tit. 27, r. 1B.0114(w). In this case, the DHC found the following aggravating factors applicable: (1) acts of dishonesty, misrepresentation, deceit, or fabrication; (2) vulnerability of the victim; (3) pattern of misconduct; (4) multiple offenses; (5) refusal to acknowledge wrongful nature of conduct; and (6) substantial experience in practice of law. It found Defendant's conduct mitigated by the absence of prior disciplinary offenses and the imposition of other penalties or sanctions, but the mitigating factors did not convince the DHC that any sanction short of disbarment would suffice.
"In reviewing the DHC's consideration of mitigating and aggravating factors prior to imposing discipline, our standard of review is abuse of discretion[,]" under which we are "`to determine whether a decision is manifestly unsupported by reason, or so arbitrary that it could not have been the result of a reasoned decision.'" N.C. Bar v. Ethridge, 188 N.C. App. 653, 667, 657 S.E.2d 378, 386-87 (2008) (citation omitted).
Defendant argues that the panel failed "to afford any mitigating value to the uncontradicted testimony regarding [his] clinical depression during the events at issue" and that he "suffered from both physical and emotional afflictions at the time of his wrongdoing. See N.C. Admin. Code tit. 27, r. 1B.0114(w)(3) (H)-(I) (listing the "effect of any personal or emotional problems . . . [or] physical or mental disability . . . on the conduct in question" as mitigating factors). While Defendant charges the DHC for its "cavalier disregard of this evidence," the panel did indeed consider his "evidence that, during the times in question, he experienced a physical affliction, a MRSA infection, and that he experienced significant emotional or mental problems, including clinical depression," as stated in Findings of Fact Regarding Discipline 5. However, the same finding states that the panel "finds that the misconduct at issue was not caused by the physical afflictions" and notes the expert's uncontroverted testimony "that dishonesty is not a symptom of depression" before resolving "that the physical and emotional or mental problems do not mitigate Defendant's misconduct." By specifically providing its rationale for not considering Defendant's medical condition as a mitigating factor, the DHC's decision was clearly supported by reason and, thus, did not constitute an abuse of discretion.
Defendant also argues that the DHC "failed to give appropriate weight to the severity of the sanctions previously imposed upon him," including a sixty-day suspension from the bench before ultimate removal therefrom, which "resulted in severe financial hardship and tremendous public humiliation" and "was more than ample to deter [him] from similar ethical lapses in the future." In Ethridge, however, this Court also rejected a disbarred attorney's argument that the DHC should have assigned greater weight to a certain mitigating factor. Ethridge, 188 N.C. App. at 668, 657 S.E.2d at 387. In addition to the defendant's "fail[ure] to cite any authority for his [argument] regarding DHC's failure to properly weigh the aggravating and mitigating factors," id., as Defendant also fails to do here, this Court stated that
even if defendant did not abandon the[] [issue], we cannot say that the DHC improperly weighed the aggravating and mitigating factors. The record shows the DHC weighed mitigating and aggravating factors. We cannot say that the DHC's valuation of the aggravating and mitigating factors was "manifestly unsupported by reason, or so arbitrary that it could not have been the result of a reasoned decision."
Id. For the same reasoning applied in Ethridge, we cannot say that the DHC allocated insufficient weight to the prior sanctions.
Accordingly, based upon our review of the evidence, findings, and conclusions, we hold the DHC's conclusions of law declaring defendant's conduct posed significant harm to his client and the legal profession has a rational basis in the evidence.
Affirmed.
Judges CALABRIA and STEELMAN concur.