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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
THE NORTH CAROLINA STATE BAR, Plaintiff, v. K.E. KRISPEN
CULBERTSON, Attorney, Defendant
Filed: 4 April 2006
1. Attorneys--disciplinary hearing--inherently misleading communications--letterhead
The whole record test revealed that the Disciplinary Hearing Committee of the North
Carolina State Bar (DHC) did not err by concluding that defendant attorney's statements on his
letterhead and website that he was published in Federal Law Reports, 3d series were false and
misleading communications under the North Carolina Revised Rules of Conduct, Rules 7.1 and
7.5, because: (1) contrary to defendant's assertion, where the possibility of public deception is
self-evidence, DHC is not required to survey the public to determine whether the communication
has a tendency to mislead; (2) while defendant's name and his appearance as counsel for a party
is published in the official court's reports, nowhere in the opinions is he credited or cited by
the court, and defendant did not author any of the opinions contained in the volumes; (3)
defendant's statements are inherently misleading since a member of the general public could
easily be led to believe from defendant's assertions on his firm letterhead and website that he
authored the opinion contained in the federal reporter; (4) defendant's statements that he is a
member of an elite percentage of attorneys who have been published in the federal reporter are
inherently misleading since admission to practice before the United States Court of Appeals does
not depend upon a licensed attorney's ability; and (5) defendant's statement on his website that
the federal reporters are the large law books that contain the controlling case law of the United
States is inherently misleading when the United States Supreme Court routinely reviews and
decides cases reaching conflicting interpretations on the law from the United States Court of
2. Attorneys--disciplinary hearing--admonition--inherently misleading
communications on letterhead and website
The Disciplinary Hearing Committee of the North Carolina State Bar (DHC) did not
abuse its discretion by ordering the issuance of an admonition as opposed to a less serious
sanction for defendant attorney who used false or misleading communications on his letterhead
and website, because: (1) contrary to defendant's contention, no showing of actual public harm is
required; (2) DHC's disciplinary action and sanction was issued within the statutory limits of
N.C.G.S. § 82-28; and (3) the Court of Appeals has stated that so long as the punishment
imposed is within the limits allowed by the statute, it does not have authority to modify or change
Appeal by defendant from order entered 11 March 2005 and
admonition entered 8 April 2005 by Hearing Committee Chair
Elisabeth Bunting for the Disciplinary Hearing Commission of the
North Carolina State Bar. Heard in the Court of Appeals 9 March
David R. Johnson, for plaintiff-appellee.
K.E. Krispen Culbertson, defendant-appellant, pro se.
K.E. Krispen Culbertson, Attorney (defendant) appeals from
order and admonition of the Disciplinary Hearing Committee of the
North Carolina State Bar (DHC) admonishing him for using false or
misleading communications in violation of the North Carolina
Revised Rules of Professional Conduct. We affirm.
Defendant is a duly licensed and practicing attorney in
Greensboro and was admitted to practice as a member of the North
Carolina State Bar (State Bar) in 1991. In November 2004, the
State Bar filed a complaint against defendant alleging he violated
the North Carolina Revised Rules of Professional Conduct. The
complaint alleged defendant's law office letterhead contained an
asterisk beside his name. Below defendant's name is printed
another asterisk and the phrase, Published in Federal Reports, 3d
Series surrounded by parentheses. The complaint also alleged
defendant is described on the firm's website as also one of the
elite percentage of attorneys to be published in Federal Law
Reports - the large law books that contain the controlling caselaw
[sic] of the United States.
This matter was heard before the DHC on 27 January 2005. The
DHC concluded as follows: 2. Culbertson's conduct, as set out above,
constitutes grounds for discipline pursuant to
N.C. Gen. Stat. § 84-28(a) & (b)(2) as
(a) By using letterhead stationery that
indicates that he is published in Federal
Reports, 3d Series when only opinions issued
by the Court are published in the Federal
Reports, Culbertson used letterhead that made
a false or misleading communication about the
lawyer in violation of Revised Rules 7.1 and
(b) By maintaining a website that states that
[he] is also one of the elite percentage of
attorneys to be published in Federal Law
Reports - the large law books that contain the
controlling caselaw [sic] of the United
States when only opinions of the Court are
published in the Federal Reports, Culbertson
maintained a website that made a false or
misleading communication about the lawyer in
violation of Revised Rules 7.1.
The DHC concluded and ordered, Culbertson's conduct warrants
discipline because Culbertson's choice of the misleading language
on his letterhead and website was intentional. However, because
Culbertson's violation of the rules was a minor violation, it
warrants only an admonition. Defendant appeals.
Defendant argues the DHC erred by: (1) concluding his
statements that he was published in Federal Law Reports, 3d
Series were false or misleading; and (2) issuing an admonition
rather than a less serious sanction.
III. Standard of Review
N.C. Gen. Stat. § 84-28(h) (2005) provides, There shall be an
appeal of right by either party from any final order of the
Disciplinary Hearing Commission to the North Carolina Court ofAppeals. The standard for judicial review of attorney discipline
cases is the whole record test. N.C. State Bar v. DuMont, 304
N.C. 627, 643, 286 S.E.2d 89, 98 (1982). This test requires the
reviewing court to:
consider the evidence which in and of itself
justifies or supports the administrative
findings and . . . also [to] take into account
the contradictory evidence or evidence from
which conflicting inferences can be drawn. . .
. Under the whole record test there must be
substantial evidence to support the findings,
conclusions and result. . . . The evidence is
substantial if, when considered as a whole, it
is such that a reasonable person might accept
as adequate to support a conclusion.
Id. at 643, 286 S.E.2d at 98-99 (citations omitted). Under the
'whole record' test, [this Court] cannot substitute our judgment
for the Committee's in choosing between two reasonably conflicting
views of the evidence. N.C. State Bar v. Frazier, 62 N.C. App.
172, 178, 302 S.E.2d 648, 652 (1983) (citing Boehm v. Board of
Podiatry Examiners, 41 N.C. App. 567, 255 S.E.2d 328, cert. denied,
298 N.C. 294, 259 S.E.2d 298 (1979)). We review questions of law
de novo. Harris v. Ray Johnson Constr. Co., 139 N.C. App. 827,
829, 534 S.E.2d 653, 654 (2000).
IV. Revised Rules of Professional Conduct
An attorney's violation of the Rules of Professional Conduct
constitutes misconduct and is grounds for discipline. N.C. Gen.
Stat. § 84-28(b)(2) (2005). Rule 7.1 of the North Carolina State
Bar Revised Rules of Professional Conduct (2005) provides, A
lawyer shall not make a false or misleading communication about the
lawyer or the lawyer's services. Under this rule, a communicationis false or misleading if it contains a material misrepresentation
of fact or law. Rule 7.5(a) the North Carolina State Bar Revised
Rules of Professional Conduct (2005) states, A lawyer shall not
use a firm name, letterhead, or other professional designation that
violates Rule 7.1.
V. False or Misleading Communication
 Defendant argues the DHC erred by concluding his
statements on his firm letterhead and website that he was
Published in Federal Law Reports, 3d Series were false or
misleading. He asserts the evidence shows the statements were not
false or misleading and are constitutionally protected speech. We
A. First Amendment
In Bates v. State Bar of Arizona, 433 U.S. 350, 365, 53 L. Ed.
2d 810, 824-25 (1977), the United States Supreme Court held
advertising by lawyers is a form of commercial speech entitled to
protection by the First Amendment. Five years later, the Supreme
Truthful advertising related to lawful
activities is entitled to the protections of
the First Amendment. But when the particular
content or method of the advertising suggests
that it is inherently misleading or when
experience has proved that in fact such
advertising is subject to abuse, the States
may impose appropriate restrictions.
Misleading advertising may be prohibited
In re R.M.J., 455 U.S. 191, 203, 71 L. Ed. 2d 64, 74 (1982).
B. Extrinsic Evidence
At the DHC hearing, defendant introduced evidence of a
detailed survey conducted by a Wake Forest University political
science professor that asked members of the general public whether
the phrase, Published in Federal Reports, 3d on an attorney's
letterhead was misleading. Defendant also introduced a study
performed by a Duke University English and anthropology professor
which analyzed how the general public would interpret the word,
publish. Defendant argues the DHC failed to consider this
evidence of whether the public would actually be misled by the
language and erred in relying on its judgment to determine whether
this language was false or misleading.
Where the possibility of public deception is self-evident, the
DHC is not required to survey the public to determine whether the
communication has a tendency to mislead. Zauderer v. Office of
Disciplinary Counsel of The Supreme Court of Ohio, 471 U.S. 626,
652-53, 85 L. Ed. 2d 652, 673 (1985); Accountant's Soc. of Virginia
v. Bowman, 860 F.2d 602, 606 (4th Cir. 1988); see also Farrin v.
Thigpen, 173 F. Supp. 2d 427, 437 (M.D.N.C. 2001) (Evidence that
actual consumers were harmed by the communication is only required
where the ad at issue contains a truthful statement that is
nonetheless misleading and is not required where the ad is
inherently misleading.). We must determine whether the DHC
correctly concluded defendant's statements are inherently
misleading. Farrin, 173 F. Supp. 2d at 437.
C. Inherently Misleading
In Joe Conte Toyota, Inc. v. Louisiana Motor Vehicle Comm'n,
24 F.3d 754, 756 (5th Cir. 1994), the United States Court of
Appeals for the Fifth Circuit discussed the meaning of inherently
The Court in In re R.M.J. suggested that
inherently misleading advertising may be
banned outright, but potentially misleading
advertising may not. In attempting to
understand the distinction, we derive
additional guidance from a later commercial
speech case, Peel v. Attorney Disciplinary
Commission, 496 U.S. 91, 110 S. Ct. 2281, 110
L. Ed. 2d 83 (1990).
. . . .
A statement is inherently misleading when,
notwithstanding a lack of evidence of actual
deception in the record, the particular
method by which the information is imparted to
consumers is inherently conducive to deception
and coercion. Id. (Marshall, J. and Brennan,
J., concurring). Included is commercial
speech that is devoid of intrinsic meaning.
Id. (Marshall, J. and Brennan, J.,
concurring). In her dissent, Justice O'Connor
added that inherently misleading means
inherently likely to deceive the public.
Id. at 121, 110 S. Ct. at 1702 (O'Connor, J.,
Rehnquist, C.J. and Scalia, J., dissenting).
Citing In re R.M.J., Justice Marshall noted
that states may prohibit actually or
inherently misleading commercial speech
entirely. Id. at 111, 110 S. Ct. at 1697
(Marshall, J. and Brennan, J., concurring).
Id. The court held, From all of this we conclude that a statement
is actually or inherently misleading when it deceives or is
inherently likely to deceive. Id. (emphasis supplied).
The Federal Reports are the official publications of the
United States Courts of Appeal. The published opinions and otherofficial documents of the Courts of Appeal are printed in hardcover
book form. The set of books consists of serial volumes. As
additional decisions and other written documents are selected for
publication, volumes are bound. The parties and names of the
attorneys representing before the Court are identified as such.
Opinions contained within the Federal Reporters are also published
by legal search engines on the internet. See
With the exception of per curiam opinions, one of the judges
of the Court is identified as the author of the opinion. Other
judges on the panel who heard and ruled upon the case are also
noted. These judges may author concurring or dissenting opinions
which follow the majority's opinion. Those judges who write
separate opinions are also identified as authors.
Defendant argues he was published in the Federal Reporter
because he submitted two briefs to the United States Court of
Appeals for the Fourth Circuit and language and arguments from his
briefs were paraphrased and summarized in the Court's opinions.
See Ficker v. Curran, 119 F.3d 1150 (4th Cir. 1997); S.E.C. v.
Dunlap, 253 F.3d 768 (4th Cir. 2001).
Webster's Dictionary defines publish as to make generally
known, to make public announcement of, to place before the
public, to produce or release for publication, to issue the
work (of an author), to put out an edition, or to have one's
work accepted for publication. Webster's New Collegiate
Dictionary 952 (9th ed. 1991). Defendant's name and his appearanceas counsel for a party is published in the court's official
reporter. While defendant may believe this fact allows him to
assert he is published in the official court's reports, nowhere
in either opinion is he credited or cited by the court. Defendant
is not a judge on any of the United States Courts of Appeal and did
not author any of the opinions contained in those volumes.
Defendant's statements are also inherently misleading because
they are likely to deceive the general public. Joe Conte Toyota,
24 F.3d at 756. A member of the general public could easily be led
to believe from defendant's assertions on his firm letterhead and
website that he authored the opinion contained in the Federal
Defendant's statements on his website are inherently
misleading in other respects. First, defendant's statement
professes he is a member of an elite percentage of attorneys who
have been published in the Federal Reporter. Admission to
practice before the United States Courts of Appeal does not depend
upon a licensed attorney's ability. Any licensed attorney who is
in good standing may move to be admitted upon application to appear
before these courts. Fed. R. App. P. 46(a) (2005) (An attorney is
eligible for admission to the bar of a court of appeals if that
attorney is of good moral and professional character and is
admitted to practice before the Supreme Court of the United States,
the highest court of a state, another United States court of
appeals, or a United States district court[.]). Second, defendant's statement on his website states that the
Federal Reporters are the large law books that contain the
controlling caselaw [sic] of the United States. The opinions of
a federal Court of Appeals are controlling precedent on the cases
before it and on the cases heard within the Circuit in which the
Court sits, but are not the controlling caselaw [sic] of the
United States. The Supreme Court of the United States routinely
reviews and decides cases reaching conflicting interpretations of
the law from the United States Courts of Appeal. See, e.g., Dooley
v. Korean Air Lines Co., 524 U.S. 116, 121, 141 L. Ed. 2d 102, 108
(1998) (We granted certiorari . . . to resolve a Circuit split
concerning the availability of a general maritime survival action
in cases of death on the high seas.).
In Bates, the Supreme Court recognized that advertising by
professionals poses special risks of deception because the public
lacks sophistication concerning legal services, misstatements that
might be overlooked or deemed unimportant in other advertising may
be found quite inappropriate in legal advertising. 433 U.S. at
383, 53 L. Ed. 2d at 835. The Supreme Court in In re R.M.J. later
stated, [t]he public's comparative lack of knowledge, the limited
ability of the professions to police themselves, and the absence of
any standardization in the 'product' renders advertising for
professional services especially susceptible to abuses that the
States have a legitimate interest in controlling. 455 U.S. at
202, 71 L. Ed. 2d at 73. Because defendant's statements are inherently misleading, the
DHC was not required to consider extrinsic evidence of whether the
public was actually misled. Zauderer, 471 U.S. at 652-53, 85 L.
Ed. 2d at 673. Substantial evidence in the record supports DHC's
conclusion that defendant's statements published on his letterhead
and website asserting he is Published in the Federal Law Reports
are false or misleading. DuMont, 304 N.C. at 643, 286 S.E.2d at
98-99. Defendant's statutory and First Amendment rights were not
violated by the DHC's disciplining him for using misleading
advertising. In re R.M.J., 455 U.S. at 203, 71 L. Ed. 2d at 74.
This assignment of error is overruled.
 Defendant argues the DHC erred by ordering the issuance of
an admonition as opposed to a less serious sanction. We disagree.
The DHC's choice of discipline is reviewed under an abuse of
discretion standard. North Carolina State Bar v. Nelson, 107 N.C.
App. 543, 552, 421 S.E.2d 163, 167 (1992), aff'd, 333 N.C. 756, 429
S.E.2d 716 (1993). As noted in the DHC's order, An admonition is
a written form of discipline imposed in cases in which an attorney
has committed a minor violation of the Rules of Professional
Conduct. N.C. Gen. Stat. § 84-28(c)(5) (2005). An admonition is
a lesser form of discipline the DHC may impose for a violation of
the Rules of Professional Conduct. N.C. Gen. Stat. § 84-28(c)
(Misconduct by an attorney shall be grounds for disbarment,
suspension up to five years, censure, reprimand or admonition.). Defendant contends an admonition was improper because there
was no showing of actual public harm. Such a showing is not
required. The DHC's disciplinary action and sanction issued were
within the statutory limits of N.C. Gen. Stat. § 82-28. This
Court [has] stated that 'so long as the punishment imposed is
within the limits allowed by the statute this Court does not have
the authority to modify or change it.' Nelson, 107 N.C. App at
552, 421 S.E.2d at 167 (quoting N.C. State Bar v. Whitted, 82 N.C.
App. 531, 539-40, 347 S.E.2d 60, 65 (1986), aff'd, 319 N.C. 398,
354 S.E.2d 501 (1987)). Defendant failed to show the DHC abused
its discretion in admonishing him for his conduct. This assignment
of error is overruled.
The DHC did not err in concluding defendant's statements on
his letterhead and website were false and misleading communications
under the North Carolina Revised Rules of Professional Conduct,
Rules 7.1 and 7.5. No showing is made that the DHC abused its
discretion in admonishing defendant for his violations of these
Rules. The DHC's order is affirmed.
Judges MCCULLOUGH and ELMORE concur.
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