Attorneys--comity applicant--failure to actively and substantially engage in practice of law
The Board of Law Examiners did not err in denying a comity applicant's admission to
the Bar based on her failure to actively and substantially engage in the practice of law for at least
four out of the last six years immediately preceding the filing of the application, and based on
character and general fitness grounds, since petitioner's statements purporting to show a practice
of law while owning and operating a restaurant during the five-year period from November 1991
to December 1996 lacked candor, because: (1) misrepresentations and evasive or misleading
responses that could obstruct full investigation into moral character are inconsistent with the
truthfulness and candor required of a practicing attorney; and (2) the whole record reveals that
petitioner did not hold herself out as a practicing attorney from November 1991 to November
1996, did not maintain a separate law office, did not maintain professional malpractice
insurance, did not attend formal continuing legal education classes, did not keep
contemporaneous time or billing records, did not present affidavits from others for whom she
claimed to have performed legal work while opening and operating a new restaurant business,
and did not report on her tax returns the fair value of what she received in “barter” for her legal
services.
Appeal of right pursuant to section .1405 of the Rules
Governing Admission to Practice of Law in the State of North
Carolina from an order of Farmer, J., signed 3 September 1999 in
Superior Court, Wake County, affirming the 1 December 1997 order
of the Board of Law Examiners denying the applicant's application
for admission to the North Carolina Bar by comity. Heard in the
Supreme Court 15 May 2000.
Harry H. Harkins, Jr., for petitioner-applicant-appellant.
Michael F. Easley, Attorney General, by Robert O. Crawford,
III, Special Deputy Attorney General, for respondent-
appellee North Carolina Board of Law Examiners.
FREEMAN, Justice.
Petitioner Nancy E. Braun, a 1988 graduate of the State
University of New York at Buffalo School of Law, was admitted topractice in the State of New York (4th Department) in 1989 and in
the District of Columbia by reciprocity in 1991. On 5 December
1996, Braun applied for admission to the North Carolina Bar by
comity. Braun appeared before a two-member panel of the North
Carolina Board of Law Examiners (Board) on 15 July 1997. The
panel ordered that her comity application be denied, and,
thereafter, Braun requested a de novo hearing before the full
Board. On 24 October 1997, she appeared before the full Board
for the purpose of receiving evidence from which the Board could
determine whether Braun had met all the requirements of section
.0502 of the Rules Governing Admission to Practice of Law in
North Carolina. Following this hearing, the Board, by order of
1 December 1997, denied the comity application concluding that
Braun had failed to prove to its satisfaction that she met “all
the requirements of section .0502 and especially Rule .0502(3)”
(comity applicants must prove they are duly licensed to practice
law in another state or territory of the United States and have
been for at least four out of the last six years immediately
preceding the filing of the application actively and
substantially engaged in the practice of law in that
jurisdiction). Additionally, the Board denied Braun's
application on the grounds of character and general fitness.
Braun then appealed the Board's determination to Superior Court,
Wake County. On 3 September 1999, the trial court entered an
order affirming the decision of the Board. Braun appeals to this
Court only the Board's determination that she is unfit to be
admitted to the Bar of the State of North Carolina, assigning aserror the Board's findings of fact as too vague to permit
judicial review and further contending that the trial court's
ruling is erroneous as a matter of law.
Among the Board's lengthy findings are the following:
7. From September 1988 to October 1990, the
Applicant was an associate attorney in the law firm of
Moot & Sprague in Buffalo, New York.
8. From November 1990 to November 1991, the
Applicant was an associate attorney in the law firm of
Phillips, Lytle, Hitchcock, Blaine & Huber in Buffalo,
New York.
9. In November 1991, the Applicant went into
business for herself as a co-owner and operator of a
restaurant business known as Harvest Moon Cafe &
Catering in Buffalo, New York.
10. The Applicant operated Harvest Moon Cafe &
Catering as a partnership, sole proprietorship, or
corporation from November 1991 until November 1996.
11. In November 1996, the Applicant moved from
Buffalo, New York, to Charlotte, North Carolina.
12. Section .0502(3) of the Rules Governing
Admission to Practice Law in the State of North
Carolina requires comity applicants to prove to the
satisfaction of the Board that the applicant is duly
licensed to practice law in another state, or territory
of the United States, or the District of Columbia
having comity with North Carolina, and that while so
licensed therein, the applicant has been for at least
four out of the last six years immediately preceding
the filing of his application been [sic] actively and
substantially engaged in the practice of law in that
jurisdiction.
13. The six years immediately preceding the
filing of the Applicant's Application were December 5,
1990, to December 5, 1996.
14. In addition to operating the restaurant, from
November 1991 to November 1996 the Applicant performed
certain law related activities for Harvest Moon Cafe &
Catering, such as obtaining a business loan;
negotiating a lease and resolving disputes with the
landlord; attending an unemployment hearing;
negotiating dissolution of the partnership;
incorporating the business; obtaining an ABC license;negotiating a settlement with the telephone company;
responding to Labor Board audit inquiries; andnegotiating contracts.
15. The Applicant was not paid for her
law related activities for Harvest Moon Cafe
& Catering from November 1991 to November
1996.
16. During the period from November
1991 to November 1996, the Applicant
performed miscellaneous legal services for
various employees and vendors, such as
drafting a consignment form agreement,
appearing in traffic court, writing demand
letters, and negotiating settlements of
disputes.
17. The Applicant was paid “in kind” or
did not charge for her various miscellaneous
legal services for other persons from
November 1991 to November 1996. These “in
kind” payments were not reported as income on
her federal income tax returns for those
years.
18. The Applicant did not maintain a
legal office separate and apart from her
restaurant business from November 1991 to
November 1996.
19. The Applicant did not advertise her
legal services in the yellow pages or
otherwise hold herself out to the general
public as a practicing lawyer from November
1991 to November 1996.
20. The Applicant did not maintain
professional malpractice insurance from
November 1991 to November 1996.
21. The Applicant did not maintain
contemporaneous records of billable hours for
her law related activities for Harvest Moon
Cafe & Catering or her miscellaneous legal
services for other persons from November 1991
to November 1996.
22. The Applicant did not attend formal
continuing legal education (CLE) from
November 1991 to November 1996.
23. While the Applicant operated
Harvest Moon Cafe & Catering between 1991 and
November 1996 she was not engaged in the
active and substantial practice of law.
. . . .
25. The Applicant's answers to
questions attempting to show that her work at
Harvest Moon Cafe & Catering was the active
and substantial practice of law showed a lack
of candor.
26. The Applicant's statements and
answers to questions showed a lack of candor;
was [sic] misleading to the Board; and have a
significant bearing on her character and
fitness.
27. The Applicant has failed to satisfy
the Board that she possesses the
qualifications of character and general
fitness required of an attorney and counselor
of law and she is of such good moral
character and is entitled to the high regard
and confidence of the public.
Braun argues that the above findings of fact, in
particular numbers 25 and 26, fail to identify which of her
specific statements show a lack of candor or are misleading and
that the findings are therefore too vague to permit judicial
review. We disagree.
Braun contends that her case is precisely on point with
our decision in In re Moore, 301 N.C. 634, 272 S.E.2d 826 (1981).
Among its four findings of fact in that case, the Board stated in
finding number three that “[o]n several occasions in [the
applicant's] testimony before the Board, the applicant made false
statements under oath on matters material to his fitness of
character.” Id. at 638, 272 S.E.2d at 829. This Court held that
the finding “fails adequately to resolve this issue and lacks the
requisite specificity to permit adequate judicial review of the
Board's order.” Id. at 640, 272 S.E.2d at 830.
Contrary to Braun's assertions, Moore can be
differentiated from the present case in several ways. First,unlike the present case, the evidence in Moore was in conflict,
and thus there was a need to resolve crucial facts before any
meaningful judicial review could be made. Id. at 639-40, 272
S.E.2d at 829-830. In the instant case, Braun was the only
witness. There is no conflicting evidence in either the record
or the transcript. Second, the Board in Moore made only four
findings of fact, whereas in the present case, the Board made
twenty-seven findings of fact. Unlike the four findings in
Moore, these twenty-seven findings provide ample information to
permit appropriate judicial review. Third, in Moore, the Court
determined that the applicant had satisfied his burden of making
a prima facie showing of good moral character and that the Board
had failed to rebut that showing. Id. at 640, 272 S.E.2d at 830.
Here, the Board concluded, and we agree, that Braun failed to
satisfy her burden of establishing a prima facie showing of good
moral character and fitness. Finally, the Board's finding in
Moore was conclusory, failing to identify which of Moore's
“several” statements were false. In contrast, the Board in the
present case clearly sets forth in its finding of fact 25 which
of Braun's statements were found lacking: “[t]he Applicant's
answers to questions attempting to show that her work at Harvest
Moon Cafe & Catering was the active and substantial practice of
law showed a lack of candor.” (Emphasis added.) This is a
specific factual finding that identifies Braun's statements about
her work at Harvest Moon Cafe as those showing a lack of candor.
The finding allows adequate judicial review because the wholeevidentiary record, coupled with the fact that the Board observed
Braun's demeanor, supports this finding.
When reviewing decisions of the Board of
Law Examiners, this Court employs the whole
record test. In re Legg, 325 N.C. 658, 669,
386 S.E.2d 174, 180 (1989), cert. denied, 496
U.S. 906, 110 L. Ed. 2d 270, (1990). Under
this test, there must be substantial evidence
supporting the Board's findings of fact and
conclusions of law. Id. “Substantial
evidence” has been defined as relevant
evidence which a reasonable mind, not
necessarily our own, could accept as adequate
to support a conclusion. In re Moore, 308
N.C. 771, 779, 303 S.E.2d 810, 815-16 (1983).
In re Golia-Paladin, 344 N.C. 142, 149, 472 S.E.2d 878, 881
(1996), cert. denied, 519 U.S. 1117, 136 L. Ed. 2d 847(1997).
Here, the Board determined that Braun's statements
regarding her active and substantial practice of law for four out
of the last six years immediately preceding 5 December 1996 were
misleading; in particular, those statements purporting to show a
practice at the Harvest Moon Cafe during the five-year period
from November 1991 to December 1996. Misrepresentations and
evasive or misleading responses that could obstruct full
investigation into moral character are inconsistent with the
truthfulness and candor required of a practicing attorney. See
In re Willis, 288 N.C. 1, 18, 215 S.E.2d 771, 781, appeal
dismissed, 423 U.S. 976, 46 L. Ed. 2d 300 (1975). The record in
this case is replete with such responses by Braun justifying the
Board's determination that she did not actively and substantially
engage in the practice of law for at least four out of the last
six years immediately prior to filing for comity in North
Carolina. Further, after examination of the whole record, theevidence in this case also shows that the Board was fully
justified in its determination that Braun's statements showed a
lack of candor and had a negative bearing on her character.
The Board may accept or reject in whole or in part the
testimony of any witness. See In re Legg, 337 N.C. 628, 638, 447
S.E.2d 353, 358 (1994). The Board has the opportunity to observe
the applicant's demeanor during the hearing and thus is in a
better position to determine the weight and sufficiency of the
evidence and the credibility of the witness. See Moore, 308 N.C.
at 780-81, 303 S.E.2d at 816.
Braun claimed that she worked five hundred hours in
excess of the hours required for comity admission. She
calculated the time she devoted to the legal profession during
the five-year period in question in fractions of months. Braun
claimed six months of law practice related to starting her
restaurant, working “well over 60 hours per week” between
November 1991 and April 1992, the same period of time she devoted
to opening and operating her restaurant. Among Braun's claims
related to her business, quoted verbatim from her memorandum in
support of her application, were the following:
A. November 1991-April 1992; Prepared
Partnership Agreement; Filed D/B/A;
Prepared Business Plan; Negotiated with
Commercial Lenders, Negotiated and
drafted 2 Commercial Leases; obtained
all licenses and permits, Filed with all
appropriate labor boards and government
agencies, Negotiated equipment and
company van leases; Negotiated lines of
credit and purchase contracts with
suppliers; Drafted catering contracts,
Negotiated agreements with advertisers
and Drafted employment applications and
Company Policy. During this periodApplicant worked well over 60 hours per
week (6 Months).
B. 1992; On behalf of Harvest Moon Cafe
appeared before the Appeal Board of
Unemployment Insurance Division of the
Labor Board in a matter regarding a
former employee's application for
unemployment. . . . (.5 month)
C. 1993; On behalf of Harvest Moon Cafe
appeared before the Sanitation Hearing
Officer regarding an alleged waste
disposal violation. . . . (.25 month).
D. January 1991-November 1996; Represented
and Assisted in representing Harvest
Moon Cafe with on going legal disputes
with it's [sic] Landlord, including but
not limited to lack of necessary
services (water and heat), contractor
delays and quality of workmanship,
excess utility charges, premises not
meeting code, constructive eviction
(excessive odors from neighboring beauty
salon) and eviction. Applicant devoted
at least 2 full months each year to
these matters affecting Harvest Moon
Cafe (12 months).
E. September 1994-June 1995; Assisted in
representing herself in the Partnership
Dissolution. (1 Month).
F. January-April 1996; Prepared and filed
all necessary Incorporation Documents
(including but not limited to S Corp.
status, By Laws and Certificate of
Assumed Name on behalf of Harvest Moon
Cafe. (1 Month).
. . . .
I. June 1995-September 1995; On behalf of
Harvest Moon Cafe prepared and
successfully applied for Alcoholic
Beverage Retail License. (1 Month).
J. 1992; Successfully negotiated on behalf
of Harvest Moon Cafe a settlement
agreement with telephone directory
publishing company. (.25 month).
. . . .
Q. 1991-1996; Reviewed and negotiated all
contracts entered into by Harvest Moon
Cafe[.] (2 month).
In addition, Braun claimed she represented others such
as vendors or her employees. Among those verbatim claims in her
memorandum of support to the Board were the following:
G. February-April 1996; Prepared and filed
all necessary Incorporation Documents
(including but not limited to S Corp.
status, By Laws and Certificate of
Assumed Name on behalf of client, Data
Systems, Inc. (1 Month).
. . . .
K. 1993; Successfully represented client
before Amherst Court for Vehicle Traffic
violations. (.25 month).
. . . .
R. 1996; On behalf of Client, successfully
negotiated settlement with her former
Accountant regarding her negligent
professional services. (1 month).
S. 1996; Represented corporate client with
regards to negligent omission in
telephone directory. (.25 month)
T. July 1996-November 1996; Applicant
Successfully represented herself in
lawsuit against Radio Station for value
of a trip she won as a door prize but
never received. Applicant appeared in
court a number of times and worked over
35 hours a week during this time
period[.] (5 months).
Despite these and other numerous claims, Braun had no
evidence to support her time estimates. She did not keep and
present contemporaneous time or billing records. She did not
present affidavits from her restaurant employees or others for
whom she claimed to have performed legal work. She did not show
on her tax returns any income from law practice. Further, Braun
did not hold herself out as a practicing lawyer from November
1991 to November 1996, did not maintain a separate law office,
did not maintain professional malpractice insurance, and did notattend formal continuing legal education classes. These facts
are inconsistent with one being actively and substantially
engaged in the practice of law. Testimony that is contradictory,
inconsistent, or inherently incredible is a sufficient basis upon
which to deny admission on character grounds. See In re Elkins,
308 N.C. 317, 326, 302 S.E.2d 215, 220, cert. denied, 464 U.S.
995, 78 L. Ed. 2d 685 (1983). When these inconsistencies are
coupled with her exaggerated claims for time spent as legal
counsel to her business and for representing others while at the
same time claiming to be opening and operating a new restaurant
business with all that attends that endeavor, Braun's evidence
becomes inherently incredible.
Braun further testified that she was not paid for her
legal services but instead received an in-kind exchange of trade.
However, as the Board found in its finding of fact 17, Braun
failed to report on her tax returns the fair value of what she
received in “barter” for her legal services, thus compounding her
misrepresentations. This cavalier attitude regarding her taxes
is a further factual basis for the Board's conclusion that Braun
“failed to satisfy her burden of proving to the Board that she
possesses the qualifications of character and general fitness
requisite for an attorney and counselor of law and that she is of
such good moral character as to be entitled to the high regard
and confidence of the public.”
As long as the Board does not act in an arbitrary,
capricious, or erroneous manner, it has, as an instrument of the
State, “wide freedom to gauge on a case-by-case basis the fitnessof an applicant to practice law.” Golia-Paladin, 344 N.C
. at
152, 472 S.E.2d at 883 (quoting In re Application of Griffiths,
413 U.S. 717, 725, 37 L. Ed. 2d 910, 917 (1973). Nothing in the
record indicates that the Board acted in an arbitrary,
capricious, or erroneous manner. Rather, the whole record
indicates that the Board did precisely what it is charged by law
to do -- protect the public of North Carolina from those unfit to
practice law.
We conclude that the Petitioner Braun was afforded a
careful consideration of her application and that there was
substantial evidence to support the Board's findings of fact and
conclusions. Accordingly, we affirm the order of the trial
court, which affirmed the 1 December 1997 order of the Board of
Law Examiners denying Braun's application.
AFFIRMED.
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