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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. ROBERT K. LEONARD,
Filed: 18 July 2006
1. Attorneys--malpractice--embezzlement of client funds
A whole record test revealed that the trial court did not err by
concluding the State Bar Disciplinary Hearing Commission's (DHC) findings of fact were
competent to support its conclusions that defendant attorney violated the Rules of Professional
Conduct based on mismanagement of a client's settlement money in defendant's trust account,
because: (1) the State Bar does not need to show that defendant intentionally used the property
entrusted to him for his own purposes, but instead it is sufficient to show that defendant
fraudulently or knowingly and willfully misapplied the property for purposes other than those for
which he received it as agent or fiduciary; (2) the State Bar put on substantial evidence that
defendant knowingly and willfully misapplied his client's settlement money for other purposes;
and (3) a charge of embezzlement constitutes conduct involving dishonesty in violation of N.C.
Admin. Code tit. 27, r. 2.8, Rule 8.4 which warrants discipline.
2. Attorneys--malpractice--incompetent representation of a client--sharing legal fees
with a nonlawyer--failing to properly supervise--willfully mismanaging client funds
A whole record test revealed that the trial court did not err by concluding the State Bar
Disciplinary Hearing Commission's (DHC) findings of fact were competent to support its
conclusions that defendant attorney violated the Rules of Professional Conduct based on
incompetent representation of a client in a domestic relations case, sharing legal fees with a
nonlawyer, failing to properly supervise a nonlawyer, and willfully mismanaging client funds
entrusted to him in a fiduciary capacity.
The State Bar Disciplinary Hearing Commission (DHC) did not err by disbarring
defendant attorney based on violations of multiple Rules of Professional Conduct, because: (1)
neither of DHC's errant findings of aggravation regarding indifference to making restitution and
untimeliness, without the necessary finding of bad faith and intentional failure to comply,
diminished the other six appropriate aggravating factors where each of those were sufficient in
and of themselves to warrant an escalated sanction; (2) even if the Court of Appeals agreed that
DHC could have found the mitigating factors that defendant suffered from personal or emotional
problems or physical or mental disability of impairment based on his evidence of panic attacks
and stress, it cannot be said that DHC's potential error in not doing so amounted to an abuse of
discretion; (3) the presence or absence of aggravating and mitigating factors is only one part of
the evaluation of whether DHC's decision to disbar defendant was rationally based on the
evidence especially given the fact that these factors are not associated with a particular type of
sanction; (4) defendant has been adjudicated responsible for violating eight rules of Professional
Conduct, including a criminal act that tarnished his honesty, trustworthiness, or fitness as a
lawyer; and (5) defendant's violations covered a varied range of activities over a period of nearly
four years, and his disbarment had a rational basis in the evidence.
4. Attorneys--malpractice--disbarment--denial of motion for new trial--abuse of
The State Bar Disciplinary Hearing Commission did not abuse its discretion by denying
defendant attorney's motion for a new trial even though one of the DHC panel members failed to
recuse herself on her own motion after learning that an attorney from the Attorney General's
office, where she also worked, had prepared an affidavit for one of the prosecuting witnesses, and
after hearing evidence concerning the Attorney General's investigation of a convicted felon who
worked on postconviction cases with defendant, because nothing in the record indicated that the
panel member was unable to render a fair and impartial decision on defendant's interactions with
Appeal by defendant from orders entered 14 June 2005 and 27
July 2005 by the Disciplinary Hearing Commission of the North
Carolina State Bar. Heard in the Court of Appeals 7 June 2006.
Attorneys Carolin Bakewell, Katherine Jean, and David R.
Johnson of the North Carolina State Bar for plaintiff-
White and Crumpler, by Dudley A. Witt, for defendant-
Robert K. Leonard (Leonard) appeals from an order of the
Disciplinary Hearing Commission of the State Bar of North Carolina
(DHC) barring him from practicing law in this state. He also
appeals from an order of the DHC denying his motion for a new
trial. For the foregoing reasons, we affirm the decisions of the
Leonard was investigated by the State Bar for violations of
the Rules of Professional Conduct on the basis that he failed to
properly maintain his trust account, commingled trust account and
operational funds, and was negligent in the representation of
several clients. Specifically, the DHC concluded Leonard had
violated Rules 1.1, 1.3, 1.4, 1.5, 1.15-2, 5.3, 5.4, and 8.4 of theRules of Professional Conduct based on evidence submitted regarding
several clients. The relevant evidence supporting these facts is
laid out below.
Leonard was admitted to the State Bar in 1970. Since then he
has served as an assistant county attorney and a district court
judge, but has chiefly maintained a general practice in and around
Winston-Salem. During that time he has represented thousands of
clients, both civilly and criminally, including several facing
capital murder charges. The State Bar put on evidence covering
Leonard's handling of several clients, all of which together the
Bar contends, makes its case for disbarment. These client matters
can be broken down into four categories: Leonard's handling of
Betty Wilson's funds, his work with Olin C. Robinson's divorce, his
interactions with clients associated with Richard Mears, and his
management of traffic clients' funds.
At some point prior to July 1999 Betty Wilson hired Leonard to
represent her in a personal injury claim. Leonard contracted for
a twenty-five percent fee, and on 1 July 1999 Wilson's claims were
settled for $52,000.00.
Leonard deposited the funds into his trust account at BB&T
that same day. Several days later, on 6 July 1999, Leonard paid
himself $13,000.00, an amount constituting his entire fee. On 28
January 2000, over six months later, Leonard disbursed nearly
$22,000.00 of the remaining $39,000.00 to Wilson. As of 26December 2000 the parties have stipulated that $16,584.00 should
have been held in the trust account for Wilson's benefit. Thirty-
six months later, Leonard paid $2,840.31 to Medicare on behalf of
Wilson. Three months after that payment, on 22 April 2003, he
disbursed the remaining money to Wilson. In May 2002, mid-way
through the thirty-six months Leonard was to be holding at least
$16,584.00 for Wilson, his trust account balance fell to $110.20.
This was followed by a deposit of personal funds in June 2002
totaling $19,750.00, thus restoring the trust account to at least
the minimum necessary. The State Bar alleges that Leonard's
prolonged default in the trust account constituted embezzlement,
due to his intentional withdrawals and disbursements to himself or
others of money held in trust for Wilson.
In April 1996 Leonard contracted to represent Olin C. Robinson
in a domestic relations case. An equitable distribution hearing
occurred on 26 January 1999 that led to an 18 April 2000 order in
which Robinson's wife received most of the marital property. The
State Bar contends Leonard's lack of preparation for the hearing
led to the imbalanced order. On 28 December 2001 Leonard filed an
appeal of that order and collected $2,650.00 from Robinson for the
appeal. Leonard failed to perfect the appeal and ultimately
withdrew the appeal without Robinson's consent. Robinson only
found out about the appeal's dismissal after discharging Leonard
and receiving a copy of his file. Leonard denied Robinson's claim
for a refund of the $2,650.00 fee for the appeal. When Robinsonfiled a grievance with the State Bar, Leonard apprised it that he
would resolve the issue on 17 October 2003. It was not until a
year later, after a small claims suit and an appeal to district
court, that Leonard refunded Robinson the money.
In 1997 or 1998 Leonard began to work on post-conviction cases
with Richard Mears, a convicted felon. From this time until early
2001, Leonard worked with Mears on 15 to 20 cases. Leonard and
Mears rarely met to discuss a case. Further, Leonard failed to
supervise Mears or inquire into his methods of acquiring clients
and collecting fees. Mears has since been convicted of illegally
scheming money from the relatives of prisoners during this time
frame; he apparently was promising them that their loved one would
be released from prison through his political connections. Leonard
continued to work with Mears on post-conviction cases even after
Mears approached him with an offer to join the lucrative scheme.
The State Bar brought forth evidence of three cases involving
Leonard and Mears: Johnny Chatham, Clifton Ferrell, and Larry
Allred. On 12 May 1999 Leonard signed a contract with Rev. D.L.
Chatham in which Leonard agreed to seek post-conviction relief for
Rev. Chatham's brother, Johnny Chatham. Leonard collected a
$5,000.00 fee that he paid half of to Mears. A year later in May
2000 Leonard filed a motion for appropriate relief in Chatham's
case and attended a hearing on the matter in 2001. The motion was
denied in January 2002. Leonard did not pursue the matter further
or refund any money to Rev. Chatham. In February 2001 Leonard undertook representation of Clifton
Ferrell in his motion for appropriate relief, for which Clifton's
brother paid Leonard $3,500.00 of a $5,000.00 fee. Leonard paid
$1,500.00 to Mears. Leonard filed nothing on behalf of Ferrell and
never met with him, nor did he refund any part of the collected
Also, in March 2001, Mears collected a $15,500.00 fee from
Carolyn Stover, on behalf of her son Larry Allred. Mears promised
he would seek clemency for Allred and if that was unsuccessful,
refund the money. In January 2002 Stover contacted Leonard, who
agreed to file several motions on Allred's behalf. Later, in April
2002, Leonard filed a motion for appropriate relief that was
prepared by Mears. The motion was lacking supporting documents and
was facially denied as insufficient. Leonard took no other action
with regard to the Allred matter.
As of January 2000, Leonard opened a separate trust account
at Piedmont Federal designated as a cost account. He deposited
money from numerous unidentified traffic clients he was
representing on a flat fee basis. The fee charged to the client
included Leonard's fee and any court costs the client might have to
pay. On seventeen occasions between January 2000 and July 2001
Leonard paid his personal American Express bill from the funds in
the cost account without his clients' consent.
DHC Conclusions Based on this evidence, the DHC concluded that Leonard had
violated each of the Rules of Professional Conduct the State Bar
claimed. First, his actions with Wilson's entrusted funds violated
Rules 1.15-2(a) and (m) regarding trust accounts. The DHC also
concluded that since these actions were knowing and intentional_and
therefore were criminal acts that reflected adversely on his
fitness as a lawyer_Leonard also violated Rule 8.4. Second, with
regard to Leonard's actions with Robinson, the DHC concluded he
violated Rules 1.1, 1.3, and 1.4, regarding competence, diligence,
and communication. Third, with regard to Leonard's actions
involving Mears, the DHC concluded he violated Rules 1.1, 1.3, 1.5,
5.3, and 5.4 regarding competence, diligence, fees, supervision of
a non-lawyer, and the independence of a lawyer, respectively.
Based on their conclusions, and the evidence presented, the DHC
ultimately concluded disbarment was the only appropriate sanction
 Leonard argues that the DHC erred by concluding his
mismanagement of Wilson's settlement money in the trust account was
knowing and intentional, thus making his actions criminal. Leonard
argues there was no clear, cogent and convincing evidence that he
intended to misappropriate the funds; rather, he argues that the
evidence of his stress, medical illnesses, good character, and poor
record keeping contradict a criminal conclusion and favor a
conclusion of gross negligence. We disagree. Our review of the DHC's findings and conclusions has been
previously laid out in N.C. State Bar v. Talford
, 356 N.C. 626, 576
S.E.2d 305 (2003). Attorney Talford was disbarred for mismanaging
his trust account; this Court vacated that decision, and DHC
appealed to the Supreme Court arguing that this Court lacked the
authority to review a sanction by the DHC. The Court, citing to
N.C. State Bar v. DuMont
, 304 N.C. 627, 642-43, 286 S.E.2d 89, 98
(1982), noted the standard of appellate review is 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. Talford
, 356 N.C. at 632, 576 S.E.2d at
309. After reviewing the factors in this analysis the Court
concluded that a reviewing court must determine whether the DHC's
decision has a rational basis in the evidence. Id.
576 S.E.2d at 310.
[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.
at 634, 576 S.E.2d at 311. Leonard challenges several of the DHC's findings supporting
its determination that his actions were criminal.
12. By no later than April 2000, Leonard knew
that Ms. Wilson would be entitled to receive
at least $13, 066.92 of the settlement funds
even after Medicare and her medical bills were
. . .
15. Between Dec. 26, 200 and June 30, 2002,
Leonard knowingly and intentionally wrote a
number of checks drawn on his BB&T trust
account that were payable to himself and to
the Forsyth County Clerk of Superior Court.
Funds belonging to Ms. Wilson were used to pay
these checks, although the payments were made
for Leonard's benefit and the benefit of
clients other than Ms. Wilson without her
knowledge or consent.
16. Between May 2001 and May 30, 2002, Leonard
knowingly and intentionally disbursed all but
$110.20 of Ms. Wilson's funds to himself and
other clients without Ms. Wilson's knowledge
. . .
19. The fact that there was no activity in the
BB&T trust account between Nov. 11, 2001 and
May 30, 2002 is evidence that Leonard was
aware that he had misappropriated Ms. Wilson's
We conclude, however, that there is adequate evidence to support
Adequate evidence in this circumstance is synonymous with
substantial evidence, see Talford, 356 N.C. at 632-34, 576 S.E.2d
at 309-11, and 'evidence is substantial if, when considered as a
whole, it is such that a reasonable person might accept [it] as
adequate to support a conclusion,' N.C. State Bar v. Frazier, 62
N.C. App. 172, 177-78, 302 S.E.2d 648, 652 (1983) (quoting DuMont,304 N.C. at 643, 286 S.E.2d at 98-99 (1982)). 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. Talford, 356 N.C. at 632, 576 S.E.2d at
310. That does not mean the mere existence of evidence in the
record contradicting the lower body's decision renders it
reversible or gives this Court discretion to substitute its
judgment between two reasonably conflicting views. Instead, the
'whole record' rule requires the court, in determining the
substantiality of evidence supporting the Board's decision, to take
into account whatever in the record fairly detracts from the weight
of the Board's evidence. Elliott v. North Carolina Psychology
Bd., 348 N.C. 230, 237, 498 S.E.2d 616, 620 (1998) (internal
quotations omitted); see also N.C. Dep't of Crime Control & Pub.
Safety v. Greene, 172 N.C. App. 530, 533, 616 S.E.2d 594, 598
The State Bar introduced evidence that after Wilson's
settlement was deposited in Leonard's trust account, the balance
was just over $57,000.00. After 26 December 2000, the date in
which the funds could not drop below $16,594.00, Leonard's trust
account fell to as little as $110.20 at the end of May 2002. From
May 2001 until Leonard deposited his personal funds in July of
2002, there was not enough money in the entire account to cover
Wilson's funds. Nonetheless, from May 2001 until November 2001,
Leonard continued to use the trust account for various unnamed
traffic cases, as well as other matters, in which he depositedfunds and made payments to himself and others, placing his account
out of balance by over $16,500.00. He stopped using the account at
all from November 2001 until the end of May 2002, when he made a
withdrawal that left the balance in the account at $110.20. Even
without attempting to reconcile the account, for over a year
Leonard received monthly statements from BB&T that at a bare
minimum would alert a reasonable person to the fact that trust
account money, in particular Wilson's money, had been spent.
There was also evidence in the record to support the fact that
Medicare alerted Leonard in an April 2000 letter that unless Wilson
filed other claims related to the 1997 accident, her bills would
not exceed $4,000.00 when finalized; in fact the final bill was
$2,840.31. Still, Leonard did not release any of the remaining
$16,584.00 until April 2003.
Both parties agree that the criminality, if any, of Leonard's
actions arises from section 14-90 of our General Statutes, which
establishes embezzlement as a crime. Leonard could be found guilty
of embezzlement only if he:
(1) . . . being more than sixteen years of
age, acted as an agent or fiduciary for his
principal, (2) that he received money or
valuable property of his principal in the
course of his employment and by virtue of his
fiduciary relationship, and (3) that he
fraudulently or knowingly and willfully
misapplied or converted to his own use such
money or valuable property of his principal
which he had received in his fiduciary
State v. Pate, 40 N.C. App. 580, 583, 253 S.E.2d 266, 269, cert.
denied, 297 N.C. 616, 257 S.E.2d 222 (1979); N.C. Gen. Stat. § 14-90 (2005). Leonard challenges the third element; rather than
intentionally misapplying the funds in his trust account, he
contends he is responsible for no more than gross negligence.
Leonard is correct in his statement that the Bar, under these
circumstances, must prove that he had the intent to to embezzle or
otherwise willfully and corruptly use or misapply the property of
the principal for purposes for which the property is not held.
State v. Britt, 87 N.C. App. 152, 153, 360 S.E.2d 291, 292 (1987).
Importantly though, the Bar does not need to show he intentionally
used the property entrusted to him for his own purposes; instead it
is sufficient to show that defendant fraudulently or knowingly and
willfully misapplied the property for purposes other than those for
which he received it as agent or fiduciary. State v. Melvin, 86
N.C. App. 291, 298, 357 S.E.2d 379, 384 (1987) (emphasis added)
(citing Pate, 40 N.C. App. at 583-84, 253 S.E.2d at 269).
We determine the State Bar put on substantial evidence that
Leonard knowingly and willfully misapplied Wilson's settlement
money for other purposes. For months he was aware that not only
was his trust account out of balance, but that it was woefully
short of the necessary funds. During this time there is evidence
that the Wilsons were checking in with Leonard about creditors, he
was receiving notices from Medicare, and he continued to deplete
the trust account by writing checks to himself and others.
Although circumstantial evidence, it is nonetheless compelling.
See Pate, 40 N.C. App. at 583-84, 253 S.E.2d at 269 (It is not
necessary, however, that the State offer direct proof of fraudulentintent, it being sufficient if facts and circumstances are shown
from which it may be reasonably inferred.).
Leonard contends that his many character witnesses, testimony
he is a bad record keeper, and medical evidence of stress during
the period of time in question negate a clear, cogent and
convincing conclusion that his actions were criminal. This
evidence may detract from the weight the DHC places on the
compelling circumstantial evidence, but it does not support
reversal. The DHC's findings of fact are supported by adequate
evidence and those findings, in turn, support the DHC's conclusions
of law that Leonard violated Rule 8.4(b) and (c) of the Rules of
It is professional misconduct for a lawyer to: . . . (2)
commit a criminal act that reflects adversely on the lawyer's
honesty, trustworthiness or fitness as a lawyer in other respects;
(3) engage in conduct involving dishonesty, fraud, deceit or
misrepresentation[.] N.C. Admin. Code tit. 27, r. 2.8, Rule 8.4
(August 2005). A violation of this rule warrants discipline. See
N.C. Gen. Stat. § 84-28(b)(2) (2005) (violation of the Rules of
Professional Conduct constitutes misconduct and shall be grounds
for discipline); N.C. State Bar v. Mulligan, 101 N.C. App. 524,
528-29, 400 S.E.2d 123, 126 (1991) (Certainly, conduct sufficient
to support a charge of embezzlement would also constitute conduct
 Aside from the aforementioned findings, Leonard also
disputes several findings related to his actions with Olin
Robinson. We have reviewed the record, exhibits, and supporting
documents and conclude these findings are also supported by
substantial and adequate evidence. The conclusions that Leonard
violated Rule 1.1, dealing with competence and necessary
preparation; Rule 1.3, mandating reasonable diligence and
promptness; and Rule 1.4, requiring a lawyer to communicate and
consult with their client, are all supported by the DHC's findings.
See N.C. Admin. Code tit. 27, r. 2.0 (August 2005). These
conclusions also support a determination that discipline is
necessary under N.C. Gen. Stat. § 84-28.
Several disputed findings regarding Leonard's cases with
Richard Mears are also substantially supported by the evidence
presented. These findings of fact support DHC's conclusions of law
that Leonard violated: 1) Rule 5.4 by sharing his legal fees with
Mears, a nonlawyer; and 2) Rule 5.3 by failing to properly
supervise Mears. See N.C. Admin. Code tit. 27, r. 2.5 (August
Leonard did not assign error or otherwise dispute the DHC's
findings of fact regarding his cost account. As such, these
findings are deemed conclusive. See Okwara v. Dillard Dep't
Stores, Inc., 136 N.C. App. 587, 591, 525 S.E.2d 481, 484 (2000)
(Where findings of fact are challenged on appeal, each contested
finding of fact must be separately assigned as error, and thefailure to do so results in a waiver of the right to challenge the
sufficiency of the evidence to support the finding.).
5. By January 2000, Leonard had opened a trust
account at Piedmont Federal which he
designated as a cost account (Piedmont
Federal cost account) to hold funds entrusted
to him by clients whose traffic matters
Leonard was handling.
6. From January 1, 2000 forward, Leonard
regularly deposited into the Piedmont Federal
cost account funds that had been paid to him
by clients for the purpose of paying the
clients' court costs.
7. On 17 occasions between January 2000 and
July 2001, Leonard paid his personal American
Express bill with client funds in the Piedmont
Federal cost account.
8. Leonard did not have his clients' consent
to use funds in the Piedmont Federal cost
account for his personal benefit.
While these findings are not associated with particular conclusions
of law, each supports the DHC's conclusions that Leonard violated
the Rules of Professional Conduct regarding trust accounts and
willfully mismanaged client funds entrusted to him in a fiduciary
 Since the DHC did not err in its findings, and those
findings support its conclusions regarding violations, it was not
error for the DHC to discipline Leonard in some regard. We must
now undertake a review of whether the DHC's sanction of disbarment
was warranted by the evidence, findings, and conclusions under the
whole-record test. See Talford, 356 N.C. at 639, 576 S.E.2d at
314. Leonard makes numerous arguments on appeal regardingpotential error in DHC's determination that he be disbarred. These
can be summarized as follows: a) the DHC erred by finding several
aggravating factors and failing to find several mitigating factors;
and b) the DHC's order of disbarment lacks the appropriate findings
of fact regarding harm to the public.
As to the first of these, that the DHC erred in its finding of
aggravating and mitigating factors, there is only slight merit.
Pursuant to N.C. Gen. Stat. § 84-28, the North Carolina State Bar
has adopted aggravating and mitigating factors that can be
considered by a disciplinary hearing committee to arrive at an
The hearing committee may consider aggravating
factors in imposing discipline in any
disciplinary case, including the following
(A) prior disciplinary offenses;
(B) dishonest or selfish motive;
(C) a pattern of misconduct;
(D) multiple offenses;
(E) bad faith obstruction of the
disciplinary proceedings by
intentionally failing to comply with
rules or orders of the disciplinary
(F) submission of false evidence,
false statements, or other deceptive
practices during the disciplinary
(G) refusal to acknowledge wrongful
nature of conduct;
(H) vulnerability of victim;
(I) substantial experience in the
practice of law;
(J) indifference to making
(K) issuance of a letter of warning
to the defendant within the three
years immediately preceding the
filing of the complaint.
N.C. Admin. Code tit. 27, r. 1B.0114(w)(1) (August 2005).
The DHC found aggravating factors B, C, D, I, G, and H were
present in Leonard's case. While Leonard contends that the
evidence is insufficient to support a finding of these aggravating
factors, we disagree. The record is replete with evidence of these
factors. However, the DHC did find the following aggravating
factors not necessarily listed in the Rules:
10. Leonard's conduct is aggravated by the
. . .
d) He failed to make timely
. . .
h) Leonard was uncooperative with
Bar Counsel's attempts to conduct
discovery in this matter and failed
to produce copies of his American
Express monthly statements and
related documents as commanded by a
Leonard contends that these findings should not be allowed to
enhance his sanction because the Code section should be strictly
construed to include only the listed factors, similar to
aggravating factors for capital murder. Even though the Code's
plain language foremost allows consideration of aggravatingfactors, of which can include those listed, we nonetheless agree
Section 1B.0114(w)(1) of the Code specifically identifies
indifference in making restitution as an aggravating factor.
While untimeliness may be indicative of indifference, we do not
see the two as synonymous. Further, this same section identifies
that before an attorney's recalcitrant or sluggish response to an
order can be an aggravating factor, a finding of bad faith and
intentional failure to comply is necessary. The DHC's finding
does not rise to that level and should not support an aggravating
That said, neither of these two errant findings of aggravation
diminish the other six clearly appropriate aggravating factors.
And if those are sufficient in and of themselves to warrant an
escalated sanction, there is no prejudice to Leonard from the DHC's
The DHC also found Leonard's clean disciplinary record and the
fact that numerous lawyers and judges from his home county and
surrounding counties testified as to his good character were
mitigating factors. Despite evidence by Leonard of panic attacks
and stress, the DHC did not find that Leonard suffered from
personal or emotional problems, or physical or mental disability
or impairment, two additional mitigating factors listed in N.C.
Admin. Code tit. 27, r. 1B.0114(w)(2) (August 2005). Leonard
contends that the DHC failed to consider these factors for which
substantial evidence was presented and this failure was an abuse ofdiscretion. Even if we were to agree with Leonard that the DHC
could have found these mitigating factors, we cannot say that the
DHC's potential error in not doing so amounted to an abuse of
discretion_the standard of review Leonard admits is applicable to
Foremost though, the presence or absence of aggravating and
mitigating factors is only one part of our evaluation of whether
the DHC's decision to disbar Leonard was rationally based on the
evidence, especially given the fact that these factors are not
associated with a particular type of sanction.
The Supreme Court in Talford held that:
in order to merit the imposition of
'suspension' or 'disbarment,' there must be a
clear showing of how the attorney's actions
resulted in significant harm or potential
significant harm to the entities listed in the
statute, and there must be a clear showing of
why 'suspension' and 'disbarment' are the only
sanction options that can adequately serve to
protect the public from future transgressions
by the attorney in question.
Talford, 356 N.C. at 638, 576 S.E.2d at 313. Leonard contends that
findings supporting these two necessary factors are absent from the
DHC's order and thereby warrant remand.
In Talford the Supreme Court reviewed a DHC order disbarring
attorney Talford after discovery that he had for four years
mismanaged his trust account in violation of the Rules of
Professional Conduct. The Supreme Court found there was no
evidence of clients losing money, and without something more, theState Bar had only demonstrated the potential for harm to Talford's
clients. Therefore the Court held that:
within the confines of defendant's
circumstances, we can find no grounds_from
among either the underlying evidence or the
DHC's discipline-related findings of fact_that
would support a conclusion that his misconduct
resulted in either: (1) potential harm to
clients beyond that attributable to any
commingling of attorney and client funds, or
(2) significant potential harm to clients.
* * *
Thus, in our view, the expressed parameters of
the statute preclude the DHC on the facts of
this case from imposing on defendant any
sanction that requires such a showing.
Id. at 640-41, 576 S.E.2d at 315.
Notably though, Talford only dealt with mismanagement of a
trust account. Here Leonard has been adjudicated responsible for
violating eight rules of Professional Conduct, including a criminal
act that tarnishes Leonard's honesty, trustworthiness, or fitness
as a lawyer. These violations cover a varied range of activities
and a period of nearly four years. Implicit in a finding that
Leonard has violated Rule 8.4(b) and (c) is a determination that
his misconduct poses a significant potential harm to clients.
Accordingly, based upon our review of the evidence, findings, and
conclusions, we hold the DHC's ultimate decision to disbar Leonard
has a rational basis in the evidence. See e.g. N.C. State Bar v.
Mulligan, 101 N.C. App. 524, 400 S.E.2d 123 (1991); N.C. State Bar
v. Frazier, 62 N.C. App. 172, 302 S.E.2d 648 (1983).
 Leonard also raises an issue regarding the DHC's denial of
his motion for a new trial. The basis for his motion is that one
of the DHC panel members, M. Ann Reed, a Senior Deputy Attorney
with the North Carolina Attorney General's Office, failed to
recuse herself on her own motion after learning that an attorney
from the Attorney General's office had prepared an affidavit for
one of the prosecuting witnesses, Carolyn Stover, and hearing
evidence concerning the Attorney General's investigation of Mears.
We find no error, much less an abuse of discretion, in the
DHC's denial of Leonard's motion on this basis. Carolyn Stover
filed a grievance against Leonard with the State Bar regarding his
interactions with Mears on a case involving her son, Larry Allred.
Mears was under investigation by the Consumer Protection Division
of the Attorney General's office and as a part of that
investigation Ms. Stover signed a two-page affidavit, apparently
prepared by a person within the Office of the Attorney General,
summarizing the exact same statements she made in her grievance.
Both documents were presented to the DHC. Nothing in the record
suggests Ms. Reed was unable to render a fair and impartial
decision on Leonard's interactions with his clients.
In conclusion, after reviewing the DHC's order under the
whole-record test, we find substantial evidence supporting the
lower body's findings and that those findings support its
conclusions. We further determine that DHC's findings and
conclusions support its ultimate decision to disbar Robert Leonard.Finally, we can discern no abuse of discretion in the DHC's denial
of Leonard's motion for a new trial.
Judges McGEE and STEELMAN concur.
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