Creighton W. Sossomon ("defendant") appeals from orders
entered 15 April 2008
and 16 September 2008
by the Disciplinary
Hearing Commission (the DHC) of the North Carolina State Bar
(plaintiff). We affirm in part, reverse in part, and remand to
Defendant was admitted to the North Carolina State Bar in1969 and has since maintained a practice in the Town of Highlands.
Linda David ("Mrs. David" or the "Seller") retained defendant to
represent her in the sale of approximately 19 acres of mountain
land adjacent to her home as early as 10 October 2003.
told defendant that she wished to sell the property only if
restrictive covenants limited its use to single-family homes.
October 2003, Mrs. David contracted to sell the property to Sanders
Dupree ("Dupree") for $700,000.00. The offer, prepared by a
realtor, was on Standard Form 2-T copyrighted July 2002 and
approved by the North Carolina Bar Association and the North
Carolina Association of Realtors ("Standard Form 2T"). Dupree
intended to subdivide the property and establish a subdivision
entitled "Old Hemlock Cove."
Among the provisions contained in Standard Form 2-T are
numbered paragraphs, some containing blank spaces which require
completion by the parties. Section "5. CONDITIONS (b), reads:
There must be no restriction, easement, zoning, or other
governmental regulation that would prevent the reasonable use of
the Property for SINGLE FAMILY RESIDENTIAL purposes ("Condition
Section "12. PROPERTY DISCLOSURE AND INSPECTIONS: reads
"(e) CLOSING SHALL CONSTITUTE ACCEPTANCE OF EACH OF THE SYSTEMS,
ITEMS AND CONDITIONS LISTED ABOVE IN ITS THEN EXISTING CONDITION
UNLESS PROVISION IS OTHERWISE MADE IN WRITING.
CLOSING: states Closing shall be defined as the date and time of
recording of the deed. All parties agree to execute any and all
documents and papers necessary in connection with Closing andtransfer of title on or before December 23, 2003, at a place
designated by Buyer. In Section 16, "Other Provisions and
Conditions," the contract provides for two attachments: Standard
Form 2A5-T "Seller Financing Addendum" and an Addendum B.
Addendum B to the contract provides Buyer and Seller shall
mutually agree on restrictive covenants similar to Highlands
Point. ("Addendum B"). Highlands Point is an existing single
family residential community developed by Dupree. Addendum B also
required Dupree to complete a survey showing individual lots as a
pre-condition to closing.
Following contractual negotiations, Mrs. David reviewed a
draft entitled "Declaration of Restrictive Covenants for Old
Hemlock Cove," prepared by her real estate agent, Molly Leonard
("the draft"). The draft was similar to the Highlands Point
in that it limited homes to "single family"
residences. Additionally, the covenants contained terms not present
in the 11 October agreement including design criteria, limitations
on building materials and/or fixtures, architectural standards, the
required approval of an Architectural Review Committee, and the
preservation of surrounding woodlands.
On 8 and 10 December 2003, Mrs. David and Dupree subsequently
modified Addendum B. The typed and handwritten modifications were
labeled WAIVER. The waiver reads Buyer hereby acknowledges
completion and/or waives contingency items in above referenced
attachment of Offer to Purchase and Contract[.] Condition 5(b)
was not referenced in the waiver. Dupree waived the completion ofcertain preconditions concerning survey work. In exchange, Mrs.
David acknowledged receiving a copy of the Highlands Point
Declarations, agreed to accept these declarations, and agreed to be
appointed to the Architectural Review Committee. Defendant had
reviewed the draft with Mrs. David no later than 23 December 2003,
after which he faxed a letter to Dupree's counsel regarding
A general warranty deed dated 12 January 2004 prepared by
defendant from Mrs. David and spouse Keaton David ("Mr. David"
collectively, the "Davids") conveyed 19.24 acres of property to Old
Hemlock Cove Development, LLC ("2004 Closing"). The deed was
recorded simultaneously with a $400,000 purchase money deed of
trust. A survey of the property, without interior lot lines,
showing only the outer perimeter was also recorded. No restrictive
covenants were recorded with these instruments, and the instruments
do not mention restrictive covenants.
After the closing, defendant was contacted by the Davids
concerning the omitted restrictive covenants. Defendant told the
Davids that he believed Old Hemlock's obligation to restrict the
use of the property survived the closing and that, if necessary,
they could sue to enforce the obligation. On at least two
occasions, one as late as February 2006, defendant contacted
counsel for Old Hemlock to request that the covenants be recorded.
No restrictive covenants were ever recorded.
No subdivision survey
In July 2006, Dupree sought to sell the unrestricted 19-acretract to William Shephard (Shephard). On 19 July 2006, defendant
agreed to represent Shephard in the purchase of the same 19 acres
from Old Hemlock (2006 closing) without first obtaining the
Davids' informed consent. Shephard planned to develop multi-story
condominiums on the property. During their initial meeting,
defendant disclosed to Shephard the existence of a potential cloud
on title posed by Dupree's obligations to record restrictive
covenants, which could have survived the 2004 closing.
The 2006 closing was not limited to the 19-acre tract. The
sale also included the purchase of an adjacent parcel of land from
Lloyd Wagner (Wagner).
Defendant agreed to represent not only
Shephard in this 2006 closing, but also Dupree and Wagner
(collectively, 2006 clients). Defendant did not obtain informed
consent from Old Hemlock, Dupree, or Shephard, despite the
conflicts of interest derived from the prior representation of the
Defendant contacted the Davids in connection with modifying or
waiving the restrictive covenants but did not inform them that he
was representing Shephard. The parties dispute whether defendant's
representation of Dupree began before or after these conversations.
The Davids indicated they would waive the restrictive covenants in
return for payment of one million dollars. Defendant's 2006 clients
refused this demand and declined to make a counteroffer. Defendant
then advised the Davids they could sue Dupree to enforce recording
the restrictive covenants, but he explained that he could not
The 2006 closing was scheduled to take place on 12 September
2006, at 11:00 a.m. at defendant's law office. During the closing,
Mr. David arrived at defendant's office unannounced and requested
copies of the draft restrictions contained within defendant's
records of the 2004 closing. After Mr. David obtained these
records, Dupree and Shephard asked defendant if the Davids could
potentially interfere with their transfer of title. Defendant
advised them that the Davids could file a lis pendens
its legal significance. After this explanation, the parties to the
2006 closing offered to drive defendant to the Macon County
Courthouse immediately, so their transfer could be recorded before
a potential lis pendens
could be filed. Defendant declined, wanting
to wait until after 2:00 p.m. when his next scheduled closing would
Meanwhile the Davids raced to the Macon County Courthouse and
filed a summons without complaint and a lis pendens
Hemlock Cove and Dupree at 3:00 p.m., identifying the 19-acre tract
as the subject of the litigation.
Defendant arrived at the Macon
County Register of Deeds at 3:30 p.m. After conducting his final
title examination and learning of the lis pendens
, defendant did
not record any instruments. The Davids subsequently filed a
complaint against Dupree and Old Hemlock in Macon County Superior
Court on 2 October 2006, alleging breach of contract.
Following the failed 2006 closing, the following events
occurred. Pursuant to a Letter of Notice dated 4 January 2007,
the North Carolina State Bar informed defendant it had received agrievance from Dupree. Defendant responded to the grievance on 22
January 2007. The Davids filed a professional negligence claim
against defendant in Macon County Superior Court on 24 January
2007. In his amended answer, filed 16 April 2007, defendant filed
a third-party complaint against Dupree and Old Hemlock seeking
indemnity and contribution.
The complaint in the case sub judice
was filed 29 June 2007
and heard before the DHC on 29 February 2008 and 1 March 2008. The
Chair of the DHC filed its Findings Of Fact, Conclusions Of Law,
And Order Of Discipline on 15 April 2008. Pursuant to N.C. Gen.
Stat. § 84-28(b)(2), the DHC found defendant's conduct violated the
following Revised Rules of Professional Conduct (the Rules): Rule
1.3 Diligence; Rule 1.4(a)&(b) Communication; Rule 1.6(a)
Confidentiality of information; Rule 1.8(b), Conflict of
interest; and Rule 1.9(a) Duties to former clients.
The DHC's conclusions of law read as follows:
(a) By failing to ensure that the single
family lot restriction requested by Linda
David was in effect and enforceable upon
transfer of the property to Old
Hemlock/Dupree, Sossomon failed to act
with reasonable diligence in representing
a client in violation of Rule 1.3;
(b) By failing to inform Linda David prior to
the January 2004 closing of the legal
effect of failing to execute and record
the restrictive covenants, Sossomon
failed to explain a matter to the extent
reasonably necessary to permit his client
to make informed decisions regarding the
representation in violation of Rule
By undertaking representation of Shephard
and Old Hemlock/Dupree to transfer theland free from the restrictions that the
Davids sought to place on the property
without obtaining Linda David's informed
consent, confirmed in writing, Sossomon
represented persons whose interests were
materially adverse to the interests of a
former client, without the former
client's informed consent confirmed in
writing, in violation of Rule 1.9(a);
By negotiating with his former client,
Linda David, about waiving the property
restrictions without disclosing that he
was representing Shephard and Ol [sic]
Hemlock/Dupree, Sossomon failed to inform
his former client of a circumstance for
which her informed consent was required
in violation of Rule 1.4(a);
By discussing with Shephard some of the
terms of the prior contract between Old
Hemlock/Dupree and Linda David without
first obtaining David's informed consent
to this disclosure, Sossomon revealed
information acquired during the
professional relationship with a client
in violation of Rule 1.6(a); and
By disclosing to the Davids that the
closing in the Shephard/Dupree
transaction was imminent without
obtaining Shephard and Old
Hemlock/Dupree's informed consent to this
disclosure, Sossomon revealed information
acquired during the professional
relationship with a client in violation
of Rule 1.6(a), and used information
relating to the representation of a
client to the disadvantage of the client
in violation of Rule 1.8(b).
Based on authority pursuant to N.C. Gen. Stat. § 84-28(c)(2),
the DHC ordered defendant be hereby suspended from the practice of
law in North Carolina for one year[.]
Defendant agreed with the
DHC that he violated Rule 1.9 conflict of interest (Conclusion (c),
above) but appealed the remaining findings.
After filing notice of appeal on 8 May 2008 (first appeal),defendant failed to timely file a notice that arrangements to
obtain a transcript had been made or to obtain the transcript under
Rule 18(b)(2)&(3) and Rule 7 of the Rules of Appellate Procedure.
After the expiration of the time period as provided by the Rules,
plaintiff moved for dismissal on 31 July 2008, which was
subsequently granted by the DHC on 5 August 2008. Following this
dismissal, defendant moved for relief from the order dismissing the
appeal on 11 August 2008 on grounds of excusable neglect.
Defendant filed a motion for stay of the order of discipline
pending his appeal.
Subsequently, he filed a second notice of
appeal on 2 September 2008 (second appeal). The motion for
relief was denied by the DHC; however, in its order, the DHC
granted the stay and stated that but for its lack of jurisdiction,
it would have granted defendant's motion for relief.
II. Appellate Jurisdiction
1. Procedural History of the Motion to Dismiss Appeal
As filed, this Court has no jurisdiction to consider the
merits of defendant's first appeal, which was dismissed by the DHC.
As filed, this Court would have jurisdiction only to consider
defendant's second appeal, the denial of defendant's motion for
relief from the order dismissing the first appeal. Were the Court
in the second appeal to reverse the DHC's denial of the order
granting relief, then defendant would have to begin again with his
In examining the merits of the second appeal, the record shows
the following facts. Defendant's counsel contacted the courtreporter to prepare the transcript in a timely manner. After time
had elapsed, the court reporter informed counsel that the
transcript had not been sent because payment had not yet been
received. Payment for the transcripts was previously arranged with
a third-party insurer. The insurer admitted it failed to make
prompt payment, despite instructions from counsel to the contrary.
The chair of the DHC concluded that dismissal of defendant's
appeal was appropriate according to Rule 25(a):
Motions to dismiss shall be supported by
affidavits or certified copies of docket
entries which show the failure to take timely
action or otherwise perfect the appeal, and
shall be allowed unless compliance or a waiver
thereof is shown on the record, or unless the
appellee shall consent to action out of time,
or unless the court for good cause shall
permit the action to be taken out of time
N.C. R. App. P. 25(a) (2007) (emphasis added). In his motion filed
11 August 2008, defendant argued that good cause exists to afford
relief from the order dismissing the complaint and to extend the
time to file the transcript. Plaintiff's brief does not address
defendant's good cause argument. We agree that good cause existed
to allow the transcript to be filed out of time. Unfortunately, at
the time the request was made, the DHC had already dismissed the
Defendant also requested DHC relief from dismissal pursuant to
Rule 60(b) of the North Carolina Rules of Civil Procedure. The
basis for the 60(b) motion included excusable neglect in that
defendant's counsel did not receive notice of plaintiff's motion to
dismiss appeal or the affidavits supporting dismissal until afterthe 5 August 2008 Order Dismissing Appeal was granted. Counsel had
returned from vacation to find the relevant documents awaiting him.
Defendant's counsel has acknowledged full responsibility in the
matter. Nonetheless, defendant contends these events deprived him
of a notice and hearing.
The DHC filed its order on 11 September 2008, whereby it
neither allowed nor denied defendant's motion, for lack of
jurisdiction. Conclusions of law set forth in the order stated
that defendant's notice of appeal on 8 May 2008 deprived the DHC of
jurisdiction to allow or deny his Rule 60(b) motion. Pursuant to
Talbert v. Mauney, 80 N.C. App. 477, 478-79, 343 S.E.2d 5, 7-8
(1986), however, the DHC also stipulated in its order that it would
have otherwise allowed defendant's motion.
2. Appellate Review
We affirm the DHC's conclusion that it lacked jurisdiction to
rule upon defendant's Rule 60(b) motion. The trial court does not
have jurisdiction . . . to rule on motions pursuant to Rule 60(b)
where such motion is made after the notice of appeal has been
given. York v. Taylor, 79 N.C. App. 653, 655, 339 S.E.2d 830, 831
(1986). We note that no motion for relief was filed with this
Court; however, we are guided by the following principle. The
imperative to correct fundamental error, however, may necessitate
appellate review of the merits despite the occurrence of default.
Dogwood Dev. & Mgmt. Co., LLC v. White Oak Transp. Co., 362 N.C.
191, 196, 657 S.E.2d 361, 364 (2008).
We examine the rule violation in light of Dogwood Dev. v.White Oak Transp. Co. (Dogwood Analysis). [D]efault under the
appellate rules arises primarily from the existence of one or more
of the following circumstances: (1) waiver occurring in the trial
court; (2) defects in appellate jurisdiction; and (3) violation of
nonjurisdictional requirements. Id. at 194, 657 S.E.2d at 363. We
must first determine whether the appellate rule violation is
jurisdictional or nonjurisdictional, because a jurisdictional
default renders the Dogwood Analysis moot under N.C. R. App. P. 2.
[I]n the absence of jurisdiction, the appellate courts lack
authority to consider whether the circumstances of a purported
appeal justify application of Rule 2. . . . Accordingly, Rule 2
may not be used to reach the merits of an appeal in the event of a
jurisdictional default. Id. at 198, 657 S.E.2d at 365 (citations
omitted). If the violations are nonjurisdictional, on the other
hand, the Dogwood Analysis imposes three requirements: (1) [T]he
court should first determine whether the noncompliance is
substantial or gross under Rules 25 and 34. Id. at 201, 657 S.E.2d
at 367; (2) If it so concludes, it should then determine which, if
any, sanction under Rule 34(b) should be imposed. Id.; and (3)
[I]f the court concludes that dismissal is the appropriate
sanction, it may then consider whether the circumstances of the
case justify invoking Rule 2 to reach the merits of the appeal.
Although the DHC's legal conclusions concerning Rule 60(b)
were indeed correct, Rule 60(b) was not the exclusive basis for
defendant's motion for relief. His good cause argumentconstituted two additional components of the motion under Rules 25
and 27(c). The Rule 27(c) component can be dismissed at the outset
as a jurisdictional default. See id. at 198, 657 S.E.2d at 365 (As
the Commentary to Rule 2 provides, our appellate courts have
authority to suspend the rules in exceptional situations 'except
as otherwise expressly provided by these rules' . . . this 'refers
to the provision in Rule 27(c) that the time limits for taking
appeal . . . may not be extended by any court.') (citation
omitted) (emphasis added).
The third component of defendant's motion, stemming from his
failure to comply with Rule 7, was brought pursuant to Rule 25.
Since Rule 25 will inevitably be considered in the first step of
the Dogwood Analysis, the true genesis of this default lies in the
Rule 7 violation it sought to cure.
Rule 7 is a nonjurisdictional defect.
(See footnote 1)
See Lawrence v.Sullivan, __ N.C. App. __, 666 S.E.2d 175, 181 (2008) ([W]e do not
deem these nonjurisdictional failures [under N.C. R. App. P.
7(a)(1)] on the part of plaintiff to be so egregious that they
warrant dismissal of plaintiff's appeal[.]). Id. (emphasis added).
We accordingly limit our Dogwood Analysis to that part of
defendant's motion brought pursuant to Rule 25, based upon the
nonjurisdictional defect arising under Rule 7.
In Dogwood, our Supreme Court gave three factors to consider
among others, when determining whether a party's noncompliance
with the appellate rules rises to the level of a substantial
failure or gross violation[.] 362 N.C. at 200, 657 S.E.2d at 366:
(1) whether and to what extent the noncompliance impairs the
court's task of review[;] id.; (2) whether and to what extent
review on the merits would frustrate the adversarial process[;]
id. at 200, 657 S.E.2d at 366-67; and (3) [t]he court may also
consider the number of rules violated, although in certain
instances noncompliance with a discrete requirement of the rules
may constitute a default precluding substantive review. Id. at200, 657 S.E.2d at 367.
Regarding the first factor, any impairment of this Court's
ability to review the merits is minimal. To guide our
determination, we have a complete and accurate record on appeal and
copies of the evidence made available to the DHC. As such, the
merits are identifiable. C.f. Sugar Creek Charter Sch., Inc. v.
Charlotte-Mecklenburg Bd. of Educ., __ N.C. App. __, 673 S.E.2d
667, 674 (2009). (We note that Defendants include no authority in
their brief in support of several of the following arguments
. . . . Applying the Dogwood Dev. guidelines, we choose to address
most of Defendants' arguments on the merits despite this violation
of our appellate rules[.]).
Most notable, however, is that this case presents the unique
circumstance whereby this Court's task of review has been eased.
Although defendant's Rule 60(b) motion is not reviewable on its
merits, it is not irrelevant.
After appeal, the trial court is without
jurisdiction to grant relief under Rule 60.
But the trial court does have limited
jurisdiction to consider a Rule 60(b) motion
after an appeal for the purpose of indicating
what action it could take if it did have
jurisdiction. Such an indication can be an aid
to the appellate court, since it can review
the trial court's indication on the Rule 60(b)
motion at the same time it considers other
assignments of error.
1 Woodlief, Shuford N.C. Civil Prac. and Proc. § 60:11, 1131 (6th
ed. 2003) (emphasis added) (footnotes omitted). Accordingly, the
DHC acknowledged that it would have otherwise granted defendant's
Motion for Relief from Order Dismissing Appeal. This type of legalconclusion is also relevant to the second factor because it
protects an appellee from being left without notice of the basis
upon which an appellate court might rule. Viar v. N.C. Dep't of
Transp., 359 N.C. 400, 402, 610 S.E.2d 360, 361, reh'g denied, 359
N.C. 643, 617 S.E.2d 662 (2005). There has been no showing of any
procedural burden on the part of plaintiff should review of the
merits be allowed. Plaintiff's brief did not address defendant's
argument that good cause exists under the Rule 25 exception,
leaving support to the notion that any frustration of the
adversarial process remains minimal under the second factor as
As to the third factor, the violations of the deadlines
prescribed by Rule 18(b)(3) & (d)(2) were the direct consequence of
the Rule 7 violation. Despite the existence of multiple violations,
none occurred independent of each other.
The three articulated factors are not exclusive, and other
factors can be gleaned from our case law. In Harvey v. Stokes, 137
N.C. App. 119, 527 S.E.2d 336 (2000), we considered whether a
court which is deciding a motion to dismiss an appeal, [can]
determine whether appellant has contributed to the delay in
preparation of a proposed record on appeal. Id. at 124, 527 S.E.2d
at 340. In Lawrence v. Sullivan, the record did not contain an
explanation of the court reporter's delay in producing the
transcript or a reason for the appellant's failure to seek an
extension of time. ___ N.C. App. ___, 666 S.E.2d at 181. Thus, the
appellants' attorney was found to have violated Rule 7(a)(1). Id. Like the attorney in Lawrence, defendant's counsel was responsible
for the Rule 7 violations. Unlike Lawrence, however, the record
provides both an explanation from the court reporter and an excuse
for counsel's delay. Regardless of its acceptability, providing an
excuse bolsters reasons given in Lawrence for allowing review.
Another factor for determining whether noncompliance rises to
the level of substantial failure or gross violation is whether,
prior to the Dogwood ruling, there was a long tradition of
dismissing such assignments of error. Odom v. Clark, __ N.C. App.
__, 668 S.E.2d 33, 35 (2008). Prior to Dogwood, there is authority
that supports not dismissing upon a Rule 7 error. See, e.g.,
Thompson v. Town of Warsaw, 120 N.C. App. 471, 475 n.1, 462 S.E.2d
691, 693 n.1 (1995) (At most, failing to comply with Rule 7 should
result in excluding the transcript from the record.) (Wynn, J.,
concurring in part (emphasis added)) (dissenting in that part
which assesses costs against appellant's attorney for violating
Rule 7), id. at 474, 462 S.E.2d at 693.
Most notable, however, is one of the principles established by
this Court in Lawrence: '[F]ail[ing] to seek an extension of time
in which to produce [the] transcript is not a valid reason to
dismiss [appellant's] appeal.' Lawrence at __, 666 S.E.2d at 181
(citation omitted). Moreover, Dogwood instructs that in most
cases the appellate courts should impose less drastic sanctions
than dismissal and reach the merits of the case. Odom, __ N.C.
App. at __, 668 S.E.2d at 35. We apply these rules together to
hold no egregious error exists to constitute substantial failure orgross violation of Rule 7's nonjurisdictional requirements.
[T]he appellate court may not consider
sanctions of any sort when a party's
noncompliance with nonjurisdictional
requirements of the rules does not rise to the
level of a "substantial failure" or "gross
violation." In such instances, the appellate
court should simply perform its core function
of reviewing the merits of the appeal to the
Dogwood, 362 N.C. at 199, 657 S.E.2d at 366.
Although not required to consider the appellant's appeal as a
petition for writ of certiorari, this Dogwood Analysis informs our
treatment of defendant's appeal. If we were to reverse the Rule
60(b) motion decision and grant an extension of time to prepare the
record, a second appeal would be necessitated. Given the non-
jurisdictional nature of the complaint, this Court in its
discretion will treat defendant's first appeal as a petition for
writ of certiorari.
In treating the first appeal as a petition for writ of
certiorari, this Court may, in its discretion, consider all or part
of the assignments of error raised by the appellant. Based upon
our review of the record under the standard of review discussed
infra, we find substantial evidence that a reasonable person might
accept as adequate to support the conclusions that defendant's
conduct was violative of each of the Rules of Professional Conduct
found in the DHC's Conclusions of Law, except for Rule 1.6(a) in
Conclusion No. 2(e). We find adequate factual support for the
DHC's legal conclusions that defendant disclosed confidential
information, and that he did so without obtaining informed consent. This finding does not alone support the decision that defendant
violated Rule 1.6(a). Rule 1.6(a) contains an important exception
that was not addressed by the DHC in either its findings or
conclusions: disclosure . . . impliedly authorized in order to
carry out the representation[.] Revised Rules of Professional
Conduct, Rule 1.6(a) (2009). In order to conclude defendant
violated Rule 1.6(a), the DHC must address all three of the
exceptions to the disclosure of confidential information. Because
the order contains no finding of fact with regard to the issue of
whether the disclosure was implicitly required, we cannot say that
the order has properly addressed the rule to the required
reasonable person standard. A reasonable person would require
some factual finding on the issue of implicit disclosure before
reaching a conclusion of law.
Put differently, with this sole exception, the DHC properly
concluded defendant committed the offense or misconduct. N.C. State
Bar v. Talford, 356 N.C. 626, 632, 576 S.E.2d 305, 309-10 (2003).
We find that the DHC's conclusions derive from complications which
inherently flow from a violation of Rule 1.9, which both parties
agree was violated in this case. The representation of a second
client would have necessarily impeded defendant's ability to
satisfactorily complete the representation of the previous client.
Negotiating a compromise or settlement between two clients is
always problematic. Failing to completely disclose all facts to
both clients creates ethical dilemmas such as those faced by
defendant. Zealous representation of one client shortchanges theother, and disclosure of confidential information to one violates
a basic duty to the other. Defendant's defense that his
representation of the Davids had ended with the closing is
undermined by his efforts to see that restrictive covenants were
subsequently recorded. It is clear that the prior representation
had not ended, when the second representation began. Defendant
drank the hemlock of multiple representations too often.
The remainder of our grant of the writ is limited to only one
of the four assignments of error presented by defendant: Did the
DHC err in failing to find that a lesser sanction, other than a
one-year suspension of defendant's law license, would be sufficient
discipline and protect the public? In the language of Talford, 356
N.C. at 634, 576 S.E.2d at 311, (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?
III. Standard of Review
By statute, judicial review of a disciplinary order is
limited to 'matters of law or legal inference.' N.C. State Bar v.
, 189 N.C. App. 80, 83, 658 S.E.2d 493, 496 (2008) (quoting N.C.
Gen. Stat. § 84-28(h) (2005)). The Court of Appeals must apply the
whole record test. N.C. State Bar v. DuMont
, 304 N.C. 627, 642-
43, 286 S.E.2d 89, 98 (1982). 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 adequateto support a conclusion. Id
. at 643, 286 S.E.2d at 98-99 (citation
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.
, 356 N.C. at 632, 576 S.E.2d at 310 (citations omitted).
[T]he Supreme Court set forth a three-step process to
determine 'if the lower body's decision has a rational basis in
the evidence.' Key
, 189 N.C. App. at 84, 658 S.E.2d at 497
, 356 N.C. at 634, 576 S.E.2d at 311): (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? Talford
, 356 N.C. at 634, 576 S.E.2d at
This three-step process must be applied separately to each
disciplinary phase: (1) the 'adjudicatory phase' (Did the
defendant commit the offense or misconduct?), and (2) the
'dispositional phase' (What is the appropriate sanction for
committing the offense or misconduct?). Id.
; but cf. N.C. State
Bar v. Culbertson
, 177 N.C. App. 89, 97, 627 S.E.2d 644, 650 (2006)
([T]he DHC's choice of discipline is reviewed under an abuse of
IV. The Disciplinary Order
Because the dispositional analysis is not made until after the
adjudicatory phase, both the findings of fact and conclusions of
law from the first phase are incorporated into the disciplinary
phase. This two-step process is reflected in the DHC's order. For
its dispositional analysis, the DHC made additional findings of
fact and conclusions of law regarding discipline, basing them upon
the foregoing findings of fact made in its adjudicatory phase.
'The classification of a determination as either a finding of fact
or a conclusion of law is admittedly difficult.' (Key
, 189 N.C.
App. at 88, 658 S.E.2d at 499) (quoting In re Helms
, 127 N.C. App.
505, 510, 491 S.E.2d 672, 675 (1997)). Moreover, classification
of an item within the order is not determinative, and, when
necessary, the appellate court can reclassify an item before
applying the appropriate standard of review. Id.
(citing In re
, 127 N.C. App. at 510, 491 S.E.2d at 675).
While we agree that the DHC's order is sufficient to show
defendant's conduct violates the Rules (except as noted supra
disagree that its order complies with the requirements that the
findings of fact support the discipline imposed. The failure of
the order in this case stems from a lack of findings in the
adjudicatory phase of the order and from findings in the
adjudicatory phase which do not support the conclusions made in the
dispositional section of the order. As a result, we cannot conclude
that the second and third requirements of Talford
are met in this
order. In the order's dispositional section its deficiencies include
1. The order found defendant's misconduct to be aggravated by
the [v]ulnerability of the victim, Linda David. Mrs. David may
in fact be vulnerable, however, there is no finding of fact in the
adjudicatory section which supports this characterization of Mrs.
David. Therefore in reviewing the order, one simply does not know
the factual predicate which forms this conclusion.
2. No factual findings support the mitigating factors that
defendant had an absence of a prior disciplinary record.
3. While one may assume defendant contested the imposition of
discipline, there are no findings of fact which support the
conclusion that defendant refused to acknowledge the wrongful
nature of his conduct other than the finding in paragraph 40 of the
order that Sossomon admitted that his conduct violated Rule
1.9[.] Findings of Fact and Conclusions Regarding Discipline 1(c)
notes defendant's acknowledgment of his Rule 1.9 violation as part
of an aggravating factor: Except as to a single instance of
misconduct, a refusal to acknowledge the wrongful nature of his
conduct[.] Conversely, the DHC made no parallel finding of this
acknowledgment within the mitigating factors.
4. In its disciplinary order, the DHC found that Dupree and
Wagner sustained economic loss due to the six-month delay in
selling their respective properties to Shephard. No factual
finding supports this conclusion.
5. In paragraph 5(b), the DHC found that Mrs. Davidexperienced, and continues to experience, emotional distress tied
to a number of factors with regard to lack of restrictions on the
property, including the cutting of the old growth forest on her
former property. It is unclear how, even if defendant had placed
single-family restrictions on the 19-acre tract, Mrs. David's
distress arising from the loss of forest land could have been
prevented by defendant. No prior findings of fact support this
As a result, this Court cannot find that the order's expressed
findings of fact adequately support the order's subsequent
conclusions of law and that the expressed findings and/or
conclusions adequately support the DHC's ultimate decision.
Mindful that we may not substitute our judgment for that of the
committee, we nonetheless deem the disciplinary findings inadequate
in this regard. Thus, we hold that the order falls short of
containing clear, cogent, and convincing evidence, which is needed
to support the discipline imposed upon defendant.
The statutory scheme for disciplining attorneys is set out
in N.C.G.S. § 84-28. Talford
, 356 N.C. at 635, 576 S.E.2d at 312.
Subsection (b) defines such a violation as 'misconduct,' and
subsection (c) provides that any such misconduct 'shall be grounds
for' one of the five sanctions listed in the statute. Id
. at 636
n.3, 576 S.E.2d at 312 n.3. These five sanctions include:
disbarment, suspension, censure, reprimand, and admonition. '[S]o
long as the punishment imposed is within the limits allowed by the
statute this Court does not have the authority to modify or changeit.' N.C. State Bar v. Nelson
, 107 N.C. App. 543, 552, 421 S.E.2d
163, 167 (1992), aff'd per curiam,
333 N.C. 786, 429 S.E.2d 716
(1993). When suspension is imposed,
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
be a clear showing of why suspension [is]
the only sanction option 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. We note as to finding
6 of the disciplinary findings that admonition was not considered
by the DHC in making its determination with regard to lesser
sanctions. This finding is mitigated by finding 7 which recites the
committee has considered lesser sanctions. This Court holds this
mixed finding does not meet the requirements of Talford or Nelson,
that lesser sanctions be considered. The DHC must show a reviewing
court that all potential lesser sanctions have been considered
before discipline of a greater nature is imposed.
Since the DHC has shown significant harm to defendant's
clients, we must now review the DHC's determination that suspension
was the only sanction that could adequately serve to protect the
public from defendant's future transgressions. See Talford, 356
N.C. at 638, 576 S.E.2d at 313. In Findings of Fact and
Conclusions Regarding Discipline No. 7, the DHC gave four reasons
for concluding in the affirmative: defendant's pattern of
continuing conduct; defendant's continuing course of multiple
undisclosed offenses; defendant's refusal to appreciate or
acknowledge the significance of the wrongful nature of the entiretyof his misconduct; and entry of an order imposing less serious
discipline would fail to acknowledge the seriousness of the
offenses . . . and would send the wrong message to attorneys and
the public regarding the conduct expected of members of the Bar of
Only that portion of the third reason which refers to refusal
to appreciate or acknowledge . . . the entirety of his misconduct
is unsupported by the record, because it contradicts one of the
previously listed aggravating factors: Except as to a single
instance of misconduct, a refusal to acknowledge the wrongful
nature of his conduct. (Emphasis added.) Defendant acknowledged
he violated Rule 1.9. The remainder of the third reason still
shows a future harm to the public, as do the other reasons in their
Subsection (h) states there shall be an appeal of right by
either party from any final order of the DHC. N.C. Gen. Stat. §
84-28(h) (2007) (emphasis added). Mindful that [r]eview by the
appellate division shall be upon matters of law or legal
inference[,] our review is limited only to whether suspension in
this case was proper. Id.; see Talford, 356 N.C. at 631, 576 S.E.2d
at 309 ('G.S. 84-28(h) does not give a reviewing court the
authority to modify or change the discipline properly imposed by
the Commission.') (citation omitted). Therefore, we remand for
the limited purpose of allowing the DHC to make proper findings of
fact and conclusions of law and reconsideration of defendant's
sanction pursuant to N.C. Gen. Stat. § 84-28(c). Whether to lessenthe suspension or impose another appropriate measure of discipline
is left to the discretion of the DHC.
We affirm the DHC's conclusion that it lacked jurisdiction to
rule upon defendant's Rule 60(b) motion. We further affirm the
DHC's orders showing defendant's conduct violated the Rules, with
the exception of Conclusion of Law 2(e), which lacks a complete
factual predicate. As discussed supra
, the DHC's findings of fact
in the adjudicatory phase fail to support the conclusions made in
the dispositional section of the order, and thus the order falls
short of containing clear, cogent, and convincing evidence
supporting the discipline imposed upon defendant. We reverse and
remand to allow the DHC to make proper findings of fact and
conclusions of law and to reconsider defendant's sanction as it
Affirmed in part, reversed in part, and remanded.
Judges HUNTER, Robert C., and CALABRIA concur.