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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.
NORTH CAROLINA COURT OF APPEALS
Filed: 19 February 2008
THE NORTH CAROLINA STATE BAR
Plaintiff Disciplinary Hearing
Commission of the North
v. State Bar
No. 06 DHC 22
JAMES B. ETHRIDGE, ATTORNEY
Appeal by defendant from order by the Disciplinary Hearing
Commission of the North Carolina State Bar entered 16 November
2006. Heard in the Court of Appeals 15 January 2008.
The North Carolina State Bar, by Counsel Katherine Jean and by
Deputy Counsels A. Root Edmonson and David R. Johnson, for
Woodruff, Reece & Fortner, by Michael J. Reece, for
James B. Ethridge (defendant) appeals the order of a panel
of the Disciplinary Hearing Commission (DHC) disbarring him from
the practice of law. We affirm.
Defendant received a license to practice law in the State of
North Carolina in 1973. In 2004, after practicing law for over
thirty years in North Carolina, defendant was elected district
court judge. On 16 August 2001, Rosalind W. Sweet (Ms. Sweet)
met with defendant in his law office in Smithfield, North Carolina
for assistance to safeguard property she owned. At the time of
this meeting, Ms. Sweet was 69 years old and was suffering fromdementia. After the meeting, defendant prepared a deed describing
Ms. Sweet's property as lot number eleven Old Mill Property (Ms.
Sweet's property or the property). The grantor on the deed for
the property was Ms. Sweet and defendant was the grantee. The next
day, on 17 August 2001, defendant drove Ms. Sweet to the State
Employees Credit Union, where Ms. Sweet maintained a savings
account. Ms. Sweet withdrew $14,249.11 from her account and
obtained a money order made payable to her in the amount of
$14,249.11. Defendant and Ms. Sweet then took the money order to
Four Oaks Bank where defendant opened a new, personal account in
his name only with the account number ending 706 (account No.
706"). After endorsing the money order, defendant deposited the
entire proceeds into his new account.
Also on 17 August 2001, defendant recorded the deed in the
Register of Deed's Office of Johnston County that transferred Ms.
Sweet's property to defendant. He then attached $24 in revenue
stamps to the deed. Defendant mistakenly believed that the $24
value of revenue stamps would reflect that a purchase price of
$48,000 had been paid for the property. However, the $24 in
revenue stamps represented on the public record only $12,000, not
$48,000 of consideration for the property.
On 28 August 2001, Ms. Sweet was placed in a family care home.
On 20 September 2001, defendant withdrew $750 from account No. 706.
On 24 September 2001, defendant wrote a check payable to the Four
Oaks Bank in the amount of $13,499.11, that was drawn on account
No. 706, and opened another personal checking account at the FourOaks Bank in his name only, with the account number ending in 606
(account No. 606"). Defendant deposited the $13,499.11 into his
personal account No. 606.
Between 24 September 2001 and 28 September 2001, defendant
paid a contractor, Broderick Parrott (Parrott), $3,000 in cash
from his personal funds as a deposit for repairs to the property.
Specifically, Parrott replaced siding, windows, and doors on the
property Ms. Sweet deeded to defendant. Between 24 September 2001
and 18 October 2001, defendant wrote three checks, drawn on account
No. 606, to himself, his wife, and a third party. The sum of these
three checks totaled $850.
On 2 October 2001, attorney Thomas S. Berkau (Berkau) filed
a petition, on behalf of Ms. Sweet's nephew, Roosevelt Williams,
Jr. (Williams), to have Ms. Sweet adjudicated as incompetent
because she suffered from dementia and Alzheimer's disease. On 18
October 2001, Ms. Sweet was adjudicated as incompetent and Williams
was appointed as her general guardian.
On 30 October 2001, defendant went to Berkau's office. Berkau
told defendant that he was the attorney for William, Ms. Sweet's
general guardian. Defendant acknowledged to Berkau that Ms. Sweet
had conveyed her real property to him and that she had withdrawn
funds from her account with the State Employees Credit Union.
Defendant agreed to return Ms. Sweet's property and Berkau told
defendant he would send Williams to get Ms. Sweet's funds from
defendant. On 31 October 2001, defendant reconveyed the property
to Ms. Sweet, wrote a check payable to cash in the amount of$8,000, drawn on account No. 606, and deposited the check into his
On 16 November 2001, Williams went to defendant's office to
retrieve Ms. Sweet's funds. Defendant wrote a check from his trust
account in the amount of $8,000 and gave the check to Williams. On
21 December 2001, defendant wrote a check in the amount of $500
payable to cash from account No. 606. Later, on an undetermined
date, prior to 2 January 2002, Parrott returned the $3,000 deposit
to defendant that defendant previously gave him.
On 2 January 2002, Williams went to defendant's office
demanding that defendant return the remainder of Ms. Sweet's money.
Defendant subsequently wrote a check, from a personal account
ending in number 364 (account No. 364"), in the amount of $4,000
to Williams as guardian ad litem for Ms. Sweet. In addition,
defendant prepared a written release for Williams' signature that
releases and discharges [defendant] from all claims, damages or
money that maybe [sic] owed to [Ms. Sweet] arising out of a
disputed amount of money that was given to [defendant] to hold for
her. Williams signed the release and received the check.
On 17 January 2001, defendant wrote a check payable to cash,
drawn on account No. 606, in the amount of $85. On 4 February
2002, defendant wrote a check to himself in the amount of $3,700
that was drawn on account No. 606, and on the same day deposited
this check into his personal bank account No. 364. On 11 August
2003, defendant closed account No. 606 at the Four Oaks Bank by
withdrawing the balance in the amount of $243.01. On 17 May 2006, the State Bar filed a complaint with the DHC
against defendant. The State Bar alleged defendant's conduct
violated Rules 8.4, 1.17, and 1.15(a) of the Revised Rules of
Professional Conduct. Based on the evidence presented above, the
DHC concluded that defendant had violated each of the Rules of
Professional Conduct the State Bar claimed. The DHC's conclusions
of law were stated as follows:
a. by depositing the entrusted funds of Ms.
Sweet into his own personal checking
account, by writing checks from this
account to himself and others, by taking
cash from this account, and by failing to
return portions of Ms. Sweet's funds to
the rightful owner, Defendant
misappropriated Ms. Sweet's funds that
had been entrusted to him in a fiduciary
capacity to his own use, and thus engaged
in criminal acts reflecting on his
honesty, trustworthiness, or fitness as a
lawyer in violation of Rule 8.4(b),
engaged in conduct involving dishonesty,
fraud, deceit or misrepresentation in
violation of Rule 8.4(c) and prejudiced
or damaged his client during the course
of the professional relationship in
violation of Rule 8.4(g).
b. by depositing the $14,249.11 of Ms.
Sweet's funds into his own personal bank
account, Defendant failed to maintain
fiduciary funds separate from his
property in violation of Rule 1.15-2(a)
and failed to deposit funds belonging to
another received by him as a lawyer in a
trust or fiduciary account in violation
of Rule 1.15-2(c);
c. by disbursing funds belonging to Ms.
Sweet for the benefit of himself and
third parties, Defendant used entrusted
property for his own personal benefit and
the benefit of other persons other than
the legal or beneficial owner of the
property in violation of Rule 1.15(j);
d. by preparing and recording a deed
conveying Ms. Sweet's 11 Old Mill
property to himself when it was never Ms.Sweet's intent for him to own the
property, Defendant failed to maintain
fiduciary property identified separately
from the property of the lawyer in
violation of Rule 1.15-2(a); engaged in
conduct involving dishonesty, fraud,
deceit or misrepresentation in violation
of Rule 8.4(c); engaged in conduct
prejudicial to the administration of
justice in violation of Rule 8.4(d);
prejudiced or damaged his client during
the course of the professional
relationship in violation of Rule 8.4(g);
and engaged in a conflict of interest in
violation of Rule 1.7(a)(2); and
e. by falsely representing on the public
record that he had given Ms. Sweet
$48,000 in consideration for the property
she deeded to him on August 17, 2001,
Defendant engaged in conduct involving
dishonesty, fraud, deceit or
misrepresentation in violation of Rule
8.4(c) and engaged in conduct prejudicial
to the administration of justice in
violation of Rule 8.4(d).
Based on its conclusions, and the evidence presented, the DHC
ultimately concluded disbarment was the only appropriate sanction
for defendant. From the order of discipline, defendant appeals.
On appeal, defendant argues (i) the DHC erred in finding that
defendant had engaged in conduct that violated Rule 8.4(c), 8.4(d),
and 8.4(g); (ii) the DHC erred in improperly weighing the
aggravating and mitigating factors; and (iii) the DHC erred in
concluding that disbarment rather than a lesser punishment is the
only sanction that can adequately protect the public.
I. Standard of review
Our standard of 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 wholerecord, and whether such findings of fact support its conclusions
of law. N.C. State Bar v. Leonard, 178 N.C. App. 432, 437, 632
S.E.2d 183, 187 (2006) (internal quotation marks omitted)
(citations omitted). After reviewing the whole record, this Court
must determine whether the DHC's decision has a rational basis in
the evidence. Id. (internal quotation marks omitted) (citations
[T]he following steps are necessary as a means
to decide if a lower body's decision has a
'rational basis in the evidence': (1) Is there
adequate evidence to support the order's
expressed finding(s) of fact? (2) Do the
order's expressed finding(s) of fact
adequately support the order's subsequent
conclusion(s) of law? and (3) Do the expressed
findings and/or conclusions adequately support
the lower body's ultimate decision? We note,
too, that in cases such as the one at issue,
e.g., those involving an 'adjudicatory phase'
(Did the defendant commit the offense or
misconduct?), and a 'dispositional phase'
(What is the appropriate sanction for
committing the offense or misconduct?), the
whole-record test must be applied separately
to each of the two phases.
N.C. State Bar v. Talford, 356 N.C. 626, 634, 576 S.E.2d 305, 311
II. Rule 8.4 of the North Carolina Rules of Professional Conduct
We first address defendant's argument that the DHC erred in
finding that defendant's conduct violated Rule 8.4 of the North
Carolina Rules of Professional Conduct. Specifically, defendant
contends that the DHC erred in concluding that defendant (i)
engaged in conduct involving dishonesty, fraud, deceit, or
misrepresentation in violation of Rule 8.4(c), (ii) intentionally
prejudiced or damaged his client during the course of theprofessional relationship in violation of Rule 8.4(g), and (iii)
engaged in conduct prejudicial to the administration of justice in
violation of Rule 8.4(d). Defendant also contends the DHC erred in
its finding of fact:
44. [Defendant's] handling of Ms. Sweet's
funds subsequent to the initial transfer
of August 17, 2001, and his own
conflicting explanations relating to the
handling of the funds, however, compel
the hearing committee to find that he had
an intent to misappropriate
and did in
fact misappropriate funds of Ms. Sweet by
the time he wrote checks from entrusted
funds to himself and others and took cash
from the account containing Ms. Sweet's
Defendant contends this finding was not supported by clear, cogent,
and convincing evidence. We disagree.
Adequate evidence in this circumstance is synonymous with
substantial evidence, 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. Leonard
N.C. App. at 438, 632 S.E.2d at 185 (alteration in original)
(internal quotation marks omitted) (citations omitted). 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. However, the 'whole-record test' does not
require this Court to reverse the DHC's decision for the mere
existence of contradictory evidence in the record. See Leonard
178 N.C. App. at 439, 632 S.E.2d at 187. Rather, the whole record
rule requires the court, in determining the substantiality ofevidence supporting the Board's decision, to take into account
whatever in the record fairly detracts from the weight of the
Board's evidence. Id.
(internal quotation marks omitted)
(quoting Elliott v. North Carolina Psychology Bd.
, 348 N.C. 230,
237, 498 S.E.2d 616, 620 (1998)).
In the instant case, defendant argues he lacked the intent to
deceive or defraud Ms. Sweet; therefore, his lack of intent renders
the DHC's finding that he had engaged in professional misconduct
pursuant to Rule 8.4 erroneous.
The intent element for misappropriation is essentially the
same as the crime of embezzlement. See State v. Foust
842, 843, 19 S.E. 275, 275 (1894) (To embezzle may mean to
'appropriate to one's own use,' but it embraces also the meaning
'to misappropriate.' Indeed, 'to misappropriate' is given as a
synonym of 'to embezzle' . . . .); State v. Ellis
, 33 N.C. App.
667, 672, 236 S.E.2d 299, 303 (1977). This Court previously
determined the requisite intent element for the crime of
the intent to willfully or corruptly use or
misapply the property of another for purposes
other than for which the agent or fiduciary
received it in the course of his employment.
It is not necessary, however, that the State
offer direct proof of fraudulent intent, it
being sufficient if facts and circumstances
are shown from which it may be reasonably
State v. Pate
, 40 N.C. App. 580, 583-84, 253 S.E.2d 266, 269
(1979). In addition, a person who deposits funds into a personal
account knowing that the money belongs to others is sufficientevidence to show embezzlement. See generally State v. Melvin
N.C. App. 291, 298-99, 357 S.E.2d 379, 384 (1987) (where defendant
knowingly deposited a check from the Veteran's Administration into
his personal account was sufficient evidence to show embezzlement).
The State Bar presented the
On 16 August
2001, Ms. Sweet met with defendant in his law office to seek his
advice and assistance in safeguarding her property from her
relatives. At the time of the meeting, Ms. Sweet was 69 years old
and suffered from dementia.
On 28 August 2001, Ms. Sweet was
placed in a family care home.
On 20 September 2001, defendant withdrew $750 from account No.
706 by check number 526 payable to cash. Defendant testified that
he gave Ms. Sweet $350 of the cash from check number 526 when he
visited her at the family care home. However, there is no evidence
in the record to show Ms. Sweet ever received the $350. Defendant
testified he paid Glenwood Carter $75 for lawn maintenance for Ms.
Sweet's residence. Defendant then testified that he kept the
remaining $325 as a partial reimbursement for the $3,000 deposit he
had given to Parrott for repairs to be completed on Ms. Sweet's
residence. However, both defendant and Parrott testified that
Parrott later returned the $3,000 deposit to defendant. This was
the same amount of money that defendant had previously given
On 24 September 2001, defendant closed account No. 706 at the
Four Oaks Bank. Defendant said the reason he initially closed the
account was to open a new trust account and place the funds intothe trust account. He then changed his mind and opened up a second
personal account, No. 606, in his name only. He deposited the
entire balance of $13,499.11 from the previous account No. 706 into
account No. 606 at the Four Oaks Bank. Defendant then wrote three
checks, totaling $850, that were drawn on account No. 606 to
himself, his wife, and a third party. There is no evidence in the
record to show any of these checks benefitted Ms. Sweet. Defendant
testified that these three checks totaling $850 were intended as a
partial reimbursement for the $3,000 he previously had paid to
Parrott. However, assuming arguendo, defendant's testimony is
true, his statements do not explain why he wrote a check to a third
party that was drawn on his personal account which contained Ms.
Sweet's funds if he was seeking partial reimbursement.
Furthermore, as we noted earlier, Parrott testified he returned the
$3,000 to defendant. There is no evidence in the record that
defendant reimbursed either Ms. Sweet or Williams the funds
previously taken from his personal account containing Ms. Sweet's
funds as a partial reimbursement for the deposit he gave Parrott.
Therefore, we find this evidence shows defendant had the
intent to willfully or corruptly use or misapply the property of
another for purposes other than for which the agent or fiduciary
received it in the course of his employment. Pate
, 40 N.C. App.
at 584, 253 S.E.2d at 269. Since we find defendant possessed the
requisite intent to misappropriate Ms. Sweet's funds, we therefore
hold DHC's finding of fact #44 is supported by substantial evidence
in the whole record. Defendant argues that the DHC erred in concluding he violated
Rule 8.4(c), 8.4(d), and 8.4(g).
Rule 8.4 of the Rules of
Professional Conduct states in relevant part:
It is professional misconduct for a lawyer to:
. . . .
c. engage in conduct involving dishonesty,
fraud, deceit or misrepresentation;
d. engage in conduct that is prejudicial to
the administration of justice;
. . . .
g. intentionally prejudice or damage his or
her client during the course of the
professional relationship, except as may
be required by Rule 3.3
N.C. Rev. R. Prof. Conduct 8.4 (2006).
In the instant case, Berkau said that when defendant came to
his office on 30 October 2001, defendant told him that after he
cashed Ms. Sweet's money order, he gave her $7,000 in cash and
placed the remaining amount in an account until Ms. Sweet or her
family could decide what to do with the money. Berkau also
testified defendant later told Berkau that if the $7,000 could not
be found and [Williams] was insistent on all the money being
returned, [defendant] would have to make arrangements to borrow the
rest of the money to pay back the full $14,249.11. This statement
implies defendant never gave Ms. Sweet the $7,000 since he
apparently anticipated that the money would not be missed.
Moreover, aside from defendant asserting he gave Ms. Sweet $7,000,
there is no evidence in the record to show that he did, in fact,
give Ms. Sweet her funds after he cashed the money order. However,
defendant testified that he never gave Ms. Sweet $7,000 in cash. On 30 October 2001, defendant transferred $8,000 from his
personal account No. 606 to his trust account. This was the
account that held Ms. Sweet's funds. After this transfer,
defendant still retained a balance of $4,633.36 of Ms. Sweet's
funds in his personal account No. 606. Defendant then wrote a check
for $8,000 drawn on his trust account and gave it to Williams.
After receiving the check for $8,000, Williams continued to call
defendant's office because he believed defendant had not given him
all of Ms. Sweet's money. On 2 January 2002, defendant paid $4,000
to Williams. Defendant contends he did not give Williams the
entire balance of Ms. Sweet's funds because he had promised Ms.
Sweet that he would hold her money for her because she told him not
to allow her relatives to have all her money. Defendant required
Williams to sign a handwritten release that asserted there was a
disputed claim for the funds, but that Williams discharges
defendant from all claims, damages or money maybe [sic] owed to
However, the record shows defendant owed more than $4,000 to
Williams. After defendant gave Williams the check for $4,000,
defendant had paid Williams a total amount of $12,000. However,
defendant initially received a money order from Ms. Sweet that
totaled $14,249.11. Thus, after 2 January 2002, defendant still
owed Williams $2,249.11. Yet, although defendant still owed
Williams money, defendant required Williams to sign a release
discharging defendant from any liability. Moreover, the record shows defendant used Ms. Sweet's funds in
account No. 606 for purposes other than for Ms. Sweet's benefit.
The 27 November 2001 bank statement for account No. 606 revealed a
balance of $4,633.36. On 21 December 2001, defendant wrote a check
for $200 that was drawn on account No. 606. The 26 December 2001
bank statement for account No. 606 showed a balance of $4,133.36,
with $500 of debits. There is no evidence in the record to show
the $500 worth of debits was used to benefit Ms. Sweet. On 17
January 2001, defendant wrote a check for $85 that was drawn on
account No. 606. The 25 January 2002 bank statement revealed a
balance of $4,048.36 in account No. 606. On 31 January 2002,
defendant wrote a check to himself for $3,700 that was drawn on
account No. 606. The 26 February 2002 bank statement for account
No. 606 showed a balance of $348.36. Between February 2002 and
July 2003, Four Oaks Bank removed monthly service charges from
account No. 606. On 11 August 2003, defendant closed his personal
account No. 606 by withdrawing the balance of $243.01. Thus, the
record reveals defendant used his client's own funds for purposes
other than her benefit.
Defendant contends Ms. Sweet wanted him to hold her funds for
her in order that her relatives, particularly Williams, could not
steal her money. Defendant argues that as soon as Williams was
appointed as guardian for Ms. Sweet, he began to take Ms. Sweet's
money for his own benefit, and not for the benefit of Ms. Sweet.
Defendant's argument is without merit. Pursuant to N.C. Gen. Stat.
. 35A-1241 (2006), once a guardian has been appointed, the guardianhas various powers and duties including making provisions for the
incompetent person's care, comfort, and maintenance. While the
guardian has statutory powers, the guardian is supervised by the
clerk of the superior court. In re Caddell
, 140 N.C. App. 767,
769, 538 S.E.2d 626, 627-28 (2000) (The Clerk of Superior Court
has original jurisdiction over matters involving the management by
a guardian of her ward's estate.). Furthermore, if Williams
failed to use Ms. Sweet's money for her benefit, he would be held
liable for any loss Ms. Sweet incurred as a result of Williams'
actions. See generally Kuykendall v. Proctor
270 N.C. 510, 155
S.E.2d 293 (1967) (a guardian is liable to the ward's estate for
any loss incurred as a result of the guardian's failure to act in
Thus, assuming arguendo, defendant's statements are true,
defendant could have and should have requested a hearing with the
clerk of the superior court to hold Williams liable for misusing
Ms. Sweet's funds. Defendant's conduct in failing to immediately
deliver all of Ms. Sweet's funds to her guardian and requiring her
guardian to sign a release before giving him Ms. Sweet's funds
shows defendant's intent to hide Ms. Sweet's funds from the
Regarding Ms. Sweet's deed, defendant contends that he mistakenly
placed stamps on the deed that he thought showed a value of $48,000
instead of the actual value in the amount of $12,000. However, on 12
September 2001, defendant called Wendy Whitfield (Ms. Whitfield),
a Johnston County social worker, to inform her of his intent tosafeguard Ms. Sweet's property since she had been placed in a family
care home. Ms. Whitfield's written notes of the telephone
conversation state in relevant part:
[Defendant stated] that he want[ed] to know what
was happening with [Ms. Sweet] because the
property that she use to live on was deeded to
him. . . . He [stated] that property was deeded
on 8/17/01 and that [Ms. Sweet] decided to do
this because she owed him for past
representation. . . . [Defendant stated] that he
just wanted to know if [Ms. Sweet] was going to
return home so that he could do something with
her things such as putting them into storage.
[Social worker] inquired if it was an option for
[Ms. Sweet] to return home. [Defendant stated]
that he felt like [Ms. Sweet] was where she
needed to be and that he does not think he would
allow her to return to the home.
Defendant avers that although he mistakenly placed an incorrect
number of stamps on the deed, he did not engage in conduct involving
dishonesty, deceit, fraud or misrepresentation in violation of Rule
8.4(c) and 8.4(d). Defendant contends it was Ms. Sweet's idea to hide
the nature of the transaction from her family by placing the revenue
stamps on the deed. If we take defendant's statements as true,
defendant is still admitting that he engaged in an inherently
While defendant's statements contradict the State Bar's evidence,
this evidence does not support reversal. We note the role of an
it is the prerogative and duty of that
administrative body, once all the evidence has
been presented and considered, to determine the
weight and sufficiency of the evidence and the
credibility of the witnesses, to draw inferences
from the facts, and to appraise conflicting and
circumstantial evidence. The credibility of
witnesses and the probative value of particulartestimony are for the administrative body to
determine, and it may accept or reject in whole
or part the testimony of any witness.
Woodlief v. North Carolina State Bd. of Dental Examiners, 104 N.C.
App. 52, 57-58, 407 S.E.2d 596, 599-600 (1991) (internal quotation
marks omitted) (citation omitted).
Thus, the DHC had the opportunity to observe defendant and judge
his credibility and the probative value of his testimony. Id. As
such, we find the DHC's findings of fact are supported by adequate
evidence and those findings support the DHC's conclusions of law that
defendant violated Rule 8.4(c), 8.4(d), and 8.4(g). These assignments
of error are overruled.
III. Aggravating and Mitigating Factors
Defendant next argues that although he presented substantial
evidence of his remorse, the DHC erred in failing to consider
defendant's remorse as a mitigating factor, and improperly weighed the
aggravating and mitigating factors. We disagree.
During a disciplinary hearing, the DHC considers the following
(w) If the charges of misconduct are
established, the hearing committee will then
consider any evidence relevant to the discipline
to be imposed, including the record of all
previous misconduct for which the defendant has
been disciplined in this state or any other
jurisdiction and any evidence in aggravation or
mitigation of the offense.
. . . .
(2) The hearing committee may consider
mitigating factors in imposing discipline in any
disciplinary case, including the following
(A) absence of a prior disciplinary record;
(B) absence of a dishonest or selfish motive;
(C) personal or emotional problems;
(D) timely good faith efforts to make
restitution or to rectify consequences of
(E) full and free disclosure to the hearing
committee or cooperative attitude toward
(F) inexperience in the practice of law;
(G) character or reputation;
(H) physical or mental disability or impairment;
(I) delay in disciplinary proceedings through no
fault of the defendant attorney;
(J) interim rehabilitation;
(K) imposition of other penalties or sanctions;
(M) remoteness of prior offenses.
N.C. Admin. Code tit. 27, r. 1B.0114(w) (August 2006) (emphasis
In reviewing the DHC's consideration of mitigating and
aggravating factors prior to imposing discipline, our standard of
review is abuse of discretion. Leonard, 178 N.C. App. at 444, 632
S.E.2d at 191. Under the abuse-of-discretion standard, we review 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. Mark Group Int'l, Inc. v. Still, 151 N.C. App. 565, 566,
566 S.E.2d 160, 161 (2002).
In the instant case, defendant argues that pursuant to N.C.
Admin. Code tit. 27, rule 1B.0114(w), the DHC was required to
consider any evidence relevant to the discipline imposed.
Therefore, because the evidence was clear defendant deeply regretted
how he handled Ms. Sweet's property and finances, the DHC should have
considered his remorse as a mitigating factor. Defendant's
interpretation of the administrative code is mistaken. Section1B.0114(w) of the Code states that the DHC will consider any evidence
relevant to the discipline imposed and included in this evidence is
any evidence in aggravation or mitigation of the offense. However,
N.C. Admin. Code tit. 27, r. 1B.0114(w)(2) states, [t]he hearing
committee may consider mitigating factors in imposing discipline[.]
Therefore, it is in the discretion of the DHC whether to consider the
mitigating factor of remorse before imposing discipline.
Because it was in the DHC's discretion whether to consider the
mitigating factor of remorse, the DHC was not required to consider
defendant's remorse. Thus, we cannot say the DHC abused its
discretion in not considering defendant's remorse before imposing
Defendant also contends the DHC erred in failing to properly
weigh the aggravating and mitigating factors. The DHC found the
following aggravating and mitigating factors:
1. [Defendant's] misconduct is aggravated by
the following factors:
(a) A dishonest or selfish motive; and
(b) Substantial experience in the practice
2. [Defendant's] misconduct is mitigated by the
(a) Absence of a prior disciplinary
(b) Good character and reputation; and
(c) Delay in the disciplinary proceedings
not attributable to him.
Defendant avers that although the DHC found substantial
experience in the practice of law, as an aggravating factor,
defendant's substantial experience in the practice of law was not in
the area of trusts and estates but rather, criminal law. Defendantcontends that the DHC should have assigned greater weight to
defendant's lack of a previous disciplinary record. In addition,
defendant argues the DHC should have given more weight to the fact
that there was a delay in the disciplinary proceedings not
attributable to him.
We first note that defendant fails to cite any authority for his
assignments of error regarding DHC's failure to properly weigh the
aggravating and mitigating factors. As such, these assignments of
error are deemed abandoned pursuant to N.C.R. App. P. 28(b)(6) (2006)
(Assignments of error not set out in the appellant's brief, or in
support of which no reason or argument is stated or authority cited,
will be taken as abandoned.). Moreover, even if defendant did not
abandon these assignments of error, 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. Mark Group Int'l,
151 N.C. App. at 566, 566 S.E.2d at 161. Therefore, these assignments
of error are overruled.
Defendant lastly argues the DHC erred in concluding disbarment,
rather than a lesser punishment, is the only sanction that can
adequately protect the public.
Regarding the punishment of disbarment, our Supreme Court has
held: 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
Talford, 356 N.C. at 638, 576 S.E.2d at 313.
Defendant contends that the DHC's conclusions of law that
defendant's actions caused significant harm to his client, and
[defendant's] violation of his duty to preserve his clients'
entrusted funds caused significant harm to the legal profession are
not supported by any evidence in the record. Defendant contends there
is no evidence that Ms. Sweet was harmed. Defendant avers Ms. Sweet
ultimately received all of her money and without significant harm to
her, there can be no significant harm to the legal profession.
We disagree with defendant's arguments that Ms. Sweet was not
harmed and ultimately received all her money. First, there is
conflicting evidence in the record that Ms. Sweet did, in fact,
receive all her money. As stated earlier, on 16 November 2001,
defendant gave Williams a check for $8,000. On 2 January 2002,
defendant gave Williams a check for $4,000 and required Williams to
sign a release and a receipt for receiving all the funds. On 17
August 2001, the initial deposit into defendant's personal account No.
706 was $14,249.11. However, on 2 January 2002, the total amount of
money Williams had received from defendant was $12,000. Thus,
defendant still owed Williams a balance of $2,249.11. Defendant said he did not give Williams the $2,249.11 because Ms.
Sweet did not want him and other relatives to have the money.
However, once Williams was appointed as Ms. Sweet's guardian,
defendant was not able to decide whether he should give the money to
Williams or abide by Ms. Sweet's wish. See generally N.C. Gen. Stat.
. 35A-1241. Defendant testified he placed the remaining cash balance
of $2,249.11 in a sealed envelope that he gave to Rev. Johnny B.
Woodhouse (Rev. Woodhouse). Rev. Woodhouse testified he put the
envelope in a safe deposit box and it remained there from January 2002
until January 2006. Defendant said he received the $2,249.11 from
Parrott, who returned the $3,000 he had received as a deposit for work
on Ms. Sweet's residence. However, on 20 September 2006, defendant
met with Berkau at the clerk of court's office to give Berkau the
remaining $2,249.11 of Ms. Sweet's funds. Defendant gave Berkau an
envelope containing $2,250 in cash consisting of twenty dollar bills.
Defendant testified that this was the same money that Parrott had paid
him in late 2001. Defendant's testimony conflicts with Parrott's
testimony. Parrott testified he returned the money to defendant in
one hundred dollar bills in cash. Moreover, there is no evidence in
the record to show defendant paid either Ms. Sweet or her guardian the
funds he kept as partial reimbursement for the deposit he paid to
Parrott after Parrott returned the deposit. Thus, we conclude that
defendant kept some of Ms. Sweet's funds, and as such, defendant's
conduct did harm Ms. Sweet.
In addition, aside from the fact defendant did not return all of
Ms. Sweet's or her guardian's funds, defendant's conduct furtherharmed Ms. Sweet. Between January 2002 and January 2006, Ms. Sweet's
funds totaling $2,249.11 simply remained in Rev. Woodhouse's safe
deposit box. Defendant did not invest the funds on behalf of Ms.
Sweet. Furthermore, between January 2002 and January 2006, the
$2,249.11 balance of Ms. Sweet's funds were not used for Ms. Sweet's
benefit. Berkau testified the funds were needed to support Ms. Sweet
in her assisted living status.
Therefore, 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. These assignments
of error are overruled.
After reviewing the DHC's order under the whole-record standard
of review, we find adequate and substantial evidence supporting the
DHC's findings and those findings support its conclusions that
defendant violated Rule 8.4(c), (d), and (g) of the Rules of
Professional Conduct. We determine that the DHC properly weighed the
mitigating and aggravating factors before imposing discipline. We
further find that the DHC's findings and conclusions support its
ultimate decision to disbar defendant.
Judge McGEE concurs.
Judge WYNN concurs in the result only.
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