An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance with
the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.


               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                    No. COA14-1116

                                Filed: 1 September 2015

From the Disciplinary Hearing Commission of the N.C. State Bar, No. 13 DHC 13

THE NORTH CAROLINA STATE BAR, Plaintiff,

              v.

WILLIAM S. BRITT, Attorney, Defendant.


       Appeal by defendant from order entered 22 April 2014 by the North Carolina

State Bar Disciplinary Hearing Commission.             Heard in the Court of Appeals

17 March 2015.


       The North Carolina State Bar, by Deputy Counsels David R. Johnson and
       Maria Brown, for plaintiff-appellee.

       Ronnie M. Mitchell for defendant-appellant.


       McCULLOUGH, Judge.


       Attorney William S. Britt (“defendant”) appeals from an order of discipline

issued by the Disciplinary Hearing Commission (“DHC”) of the North Carolina State

Bar (“State Bar”). In the order of discipline, the DHC found defendant had committed

numerous violations of the North Carolina Rules of Professional Conduct and ordered

defendant disbarred. For the following reasons, we affirm the order of discipline.

                                   I.     Background
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                                   Opinion of the Court



      Defendant was licensed to practice law in North Carolina in 1981 and actively

engaged in the practice of law and maintained a law office in Lumberton, North

Carolina, during the times relevant to this case. In connection with defendant’s law

practice, defendant maintained a client trust account (the “trust account”) with RBC

Bank between 1 January 2009 and 20 May 2011 in which defendant deposited and

disbursed client funds.

      On 8 April 2013, the State Bar initiated this disciplinary action against

defendant by filing a complaint with the DHC alleging the mishandling of client funds

and the mismanagement of the trust account in violation of the following rules of the

Rules of Professional Conduct: 1.4(a)(3) (failing to keep client reasonably informed);

1.15-2(a) (failing to properly maintain entrusted funds); 1.15-2(b) (failing to promptly

deposit entrusted funds in trust account); 1.15-2(f) (failing to maintain entrusted

funds separate from the property of the lawyer); 1.15-2(j) (benefiting from entrusted

funds); 1.15-2(l) (failing to notify client of the receipt of entrusted funds); 1.15-2(m)

(failing to properly disburse entrusted funds); 1.15-3(d) (failing to reconcile the trust

account quarterly); 8.4(b) (engaging in criminal conduct that reflects adversely on the

lawyer’s honesty, trustworthiness, or fitness as a lawyer); and 8.4(c) (engaging in

conduct involving dishonesty, fraud, deceit, or misrepresentation).

      Defendant filed an answer to the complaint on 22 May 2013 admitting to most

of the factual allegations underlying the State Bar’s claims.         The only factual



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allegations denied by defendant were that he (1) failed to notify a client of settlement

checks he received for the client and (2) endorsed the settlement checks for the client

without the client’s permission. In contrast to the State Bar’s allegations, defendant

claimed he gave proper notification of the receipt of the settlement checks to the client

and was granted permission by the client to endorse each settlement check and to

deposit the settlement checks into the trust account.

      Subsequent to defendant’s answer, the State Bar filed a motion for summary

judgment on 10 July 2013. In the motion, the State Bar abandoned the factual

allegations denied by defendant and the corresponding allegations that defendant

violated Rules 1.4(a)(3), 1.15-2(l), 8.4(b), and 8.4(c). The State Bar then asserted the

admitted factual allegations constituted rule violations warranting discipline,

specifically disbarment. The State Bar contended the issue of whether the rule

violations justified disbarment was a question of law and, therefore, summary

judgment was appropriate. On 24 August 2013, defendant filed a response to the

State Bar’s motion for summary judgment. Although defendant acknowledged his

admission to the substantial majority of the factual allegations in the complaint,

defendant claimed he “specifically denies any allegations or inferences that [he]

engaged in any willfully wrongful conduct” and contended “[t]he facts admitted . . .

do not prove the . . . rule violations alleged[.]” Defendant further claimed additional

evidence was needed to determine the appropriate discipline and the State Bar was



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                                   Opinion of the Court



unable to demonstrate intent or significant or potential harm to clients, the public,

the administration of justice, or the legal profession. The State Bar filed a reply to

defendant’s response on 4 September 2013.

      After considering the pleadings, other materials, and arguments presented by

the parties, the DHC filed an order granting partial summary judgment in favor of

the State Bar on 18 November 2013. The DHC specifically determined “there [were]

no genuine issues as to any material fact regarding the violation of Rules 1.15-2(a),

(b), (f), (j) and (m) and Rule 1.15-3(d), and that [the State Bar was] entitled to partial

summary judgment in its favor as a matter of law as to those violations.” The DHC,

however, “reserve[d] for hearing the question of whether [d]efendant violated Rules

8.4(b) and (c) of the Rules of Professional Conduct.” Thus, in addition to granting the

State Bar’s motion for summary judgment in part and denying the State Bar’s

motions in part, the DHC ordered that a hearing be scheduled on the remaining

issues of “a) whether [d]efendant violated Rules 8.4(b) and (c) of the Rules of

Professional Conduct and b) what discipline, if any, is appropriate.”

      Those remaining issues came on for hearing before the DHC on

17 January 2014 and 28 March 2014. An order of discipline was then filed by the

DHC on 22 April 2014 and later personally served on defendant on 29 April 2014.

Pursuant to the order, defendant was disbarred.




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                                    Opinion of the Court



      On 1 May 2014, defendant filed a motion for reconsideration and to set aside

the order of discipline. Along with the above motion, defendant also filed a motion to

stay the order of discipline so that he could continue to practice law. The State Bar

filed responses opposing defendant’s motions on 9 May 2014 and, on 13 May 2014,

the DHC filed orders denying defendant’s motions. Defendant then filed notice of

appeal from the order of discipline on 22 May 2014.

                                    II.     Discussion

      Defendant raises two issues on appeal:               whether the DHC (1) erred by

excluding defendant’s CPA as an expert witness and (2) failed to make sufficient

findings and conclusions to support its determination that defendant engaged in

misconduct for which disbarment was warranted.

                               A.         Expert Witness

      During the disciplinary hearing on 17 January 2014, defendant called Robert

Norman, a CPA, as his first witness to testify that defendant did not act in a manner

consistent with criminal acts. Norman testified that he had been in practice for over

forty years and, as part of his practice, has helped ten to twelve attorneys review

trust accounts. For purposes of the present case, Norman testified that he reviewed

the trust account and determined it was not balanced and there was a shortage.

When defendant asked Norman whether his practice included what would be

considered forensic accounting, Norman explained that “[m]ost all accounting is



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                                 Opinion of the Court



forensic, quite frankly[,]” because “[e]verything happened yesterday.” Defendant

then questioned whether Norman looked for evidence of embezzlement or fraud in his

review of the trust account and the State Bar objected on the basis that “[defendant]

hasn’t established [Norman] is qualified to determine whether embezzlement or

fraud has taken place.” The DHC sustained the State Bar’s objection.

      In order to qualify Norman as an expert, defendant questioned Norman further

on his background. In response, Norman testified that he had previously reviewed

other accounting cases with his partner who had clients going to court. Based on his

knowledge, training, and experience, Norman testified he believed he had the

expertise to make an embezzlement or fraud determination. Norman testified that

when making such a determination,

             [y]ou look for things out of the ordinary. You look for a
             reason for somebody to embezzle money or commit fraud.
             An intent on their part. When you sit and talk with them,
             you can tell pretty much--pretty quickly whether or not
             they’re telling you the truth or not. Most people who
             commit embezzlement or fraud will not look you straight in
             the face, and they definitely won’t look at you eye-to-eye.
             Some do, but those are really professionals. But most of
             the ones that I’ve seen would not.

Norman then testified that people attempting to embezzle money or commit fraud

will sometimes make up invoices and write checks to sham companies; and he looks

for those things when performing audits.

      When defendant then sought to tender Norman as an expert witness in forensic

accounting following Norman’s additional testimony, the State Bar requested a voir

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                                  Opinion of the Court



dire. In response to the State Bar’s questioning during voir dire, Norman indicated

he had testified about accounting practices in several prior cases, but never

concerning attorneys’ accounts. Norman had only reviewed attorneys’ trust accounts

at the request of the attorneys who operated them in order to make sure they were

balanced. Lastly, when asked what training he had in forensic accounting, Norman

reiterated his prior testimony that accounting, by nature, is forensic because it deals

with the past. Norman, however, also acknowledged there are credentials for forensic

accounting that he had neither sought, nor received.

      Upon the conclusion of the voir dire, the State Bar objected to Norman’s

designation as an expert, noting “he’s not certified in it[,]” “he hasn’t handled very

many attorneys’ accounts[,]” and “it sounds like he does regular accounting and has

very little experience with presenting those results in court.” In response, defendant

argued Norman is a very experienced accountant and could add information that

would be beneficial to the DHC.

      After conferring off the record, the DHC sustained the State Bar’s objection to

Norman being admitted as an expert, precluding Norman from offering his opinion

as to whether or not there was embezzlement or fraud. Norman was, however,

allowed to testify about what he observed and found during his review of the trust

account. When defendant sought clarification on the ruling, the DHC reiterated that

its decision was based on Norman’s experience and background.



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                                  Opinion of the Court



      Now on appeal, defendant first argues the DHC’s exclusion of Norman as an

expert witness constitutes reversible error.

             It is well-established that trial courts must decide
             preliminary questions concerning the qualifications of
             experts to testify or the admissibility of expert testimony.
             When making such determinations, trial courts are not
             bound by the rules of evidence. In this capacity, trial courts
             are afforded wide latitude of discretion when making a
             determination about the admissibility of expert testimony.
             Given such latitude, it follows that a trial court’s ruling on
             the qualifications of an expert or the admissibility of an
             expert’s opinion will not be reversed on appeal absent a
             showing of abuse of discretion.

Howerton v. Arai Helmet, Ltd., 358 N.C. 440, 458, 597 S.E.2d 674, 686 (2004)

(citations and quotation marks omitted). However, “[w]here the [defendant] contends

the trial court’s decision is based on an incorrect reading and interpretation of the

rule governing admissibility of expert testimony, the standard of review on appeal is

de novo.” Cornett v. Watauga Surgical Grp., P.A., 194 N.C. App. 490, 493, 669 S.E.2d

805, 807 (2008).

      Here, defendant argues the DHC applied the wrong standard to determine the

admissibility of expert testimony under N.C. Gen. Stat. § 8C-1, Rule 702(a), and erred

in sustaining the State Bar’s objection to Norman’s opinion testimony. We review the

standard applied de novo and the trial court’s analysis for abuse of discretion.

      Regarding the standard applied, defendant contends the DHC improperly

applied the standard related to scientific evidence set forth in Daubert v. Merrell Dow

Pharmaceuticals, Inc., 509 U.S. 579, 125 L. Ed. 2d 469 (1993), to the proffered

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                                  Opinion of the Court



testimony of Norman instead of the standards adopted by the North Carolina

Supreme Court in State v. Goode, 341 N.C. 513, 461 S.E.2d 631 (1995), and Howerton

v. Aria Helmet, Ltd., 358 N.C. 440, 597 S.E.2d 674.         Upon review, we are not

persuaded the trial court applied the incorrect standard and, notwithstanding the

standard applied, hold the DHC did not abuse its discretion by excluding Norman’s

opinion testimony.

      Rule 702 of the North Carolina Rules of Evidence governs testimony by

experts. The current version provides, in pertinent part, as follows:

             (a) If scientific, technical or other specialized knowledge
                 will assist the trier of fact to understand the evidence
                 or to determine a fact in issue, a witness qualified as an
                 expert by knowledge, skill, experience, training, or
                 education, may testify thereto in the form of an opinion,
                 or otherwise, if all of the following apply:

                (1) The testimony is based upon sufficient facts or data.

                (2) The testimony is the product of reliable principles
                    and methods.

                (3) The witness has applied the principles and methods
                    reliably to the facts of the case.

N.C. Gen. Stat. § 8C-1, Rule 702 (2013).

      In Daubert, the United States Supreme Court held the long recognized

“general acceptance” test for the admissibility of expert opinion based on scientific

evidence formulated in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), was

superseded by Rule 702 of the Federal Rules of Evidence (“Federal Rule 702”). 509


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U.S. at 587, 125 L. Ed. 2d at 479. In so holding, the Court noted that although there

was no longer a general acceptance standard, under Federal Rule 702, “the trial judge

must ensure that any and all scientific testimony or evidence admitted is not only

relevant, but reliable.”1 509 U.S. at 589, 125 L. Ed. 2d at 480. Thus, when

                [f]aced with a proffer of expert scientific testimony, . . . the
                trial judge must determine at the outset . . . whether the
                expert is proposing to testify to (1) scientific knowledge
                that (2) will assist the trier of fact to understand or
                determine a fact in issue. This entails a preliminary
                assessment of whether the reasoning or methodology
                underlying the testimony is scientifically valid and of
                whether that reasoning or methodology properly can be
                applied to the facts in issue.

Id. at 592-93, 125 L. Ed. 2d at 482 (footnotes omitted). Throughout the opinion, the

Court emphasized the flexible inquiry envisioned in Federal Rule 702 focuses on

whether “an expert’s testimony both rests on a reliable foundation and is relevant to

the task at hand.” Id. at 597, 125 L. Ed. 2d at 485. The Court then went on to explain

what may be shown to establish the reliability of scientific evidence.

        Subsequent to Daubert, in Goode and Howerton, the North Carolina Supreme

Court addressed the standard to be applied in admitting expert testimony under the

versions of North Carolina Rule 702 in effect at the time of the decisions. Those

versions of Rule 702 were nearly identical to the current version of Rule 702 except



        1 The Court in Daubert repeatedly referred only to scientific evidence. Yet, the Court explained
in a footnote that “[Federal] Rule 702 also applies to ‘technical, or other specialized knowledge.’ [The]
discussion is limited to the scientific context because that is the nature of the expertise offered [in the
case].” 509 U.S. at 590 n.8, 125 L. Ed. 2d at 481 n.8.

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                                   Opinion of the Court



that they did not include the three requirements now enumerated in subsection (a).

See Goode, 341 N.C. at 527, 461 S.E.2d at 639; Howerton, 358 N.C. at 458, 597 S.E.2d

at 686. Citing Daubert, the Goode Court explained as follows:

             [U]nder our Rules of Evidence, when a trial court is faced
             with a proffer of expert testimony, it must determine
             whether the expert is proposing to testify to scientific,
             technical, or other specialized knowledge that will assist
             the trier of fact to determine a fact in issue. As recognized
             by the United States Supreme Court in its most recent
             opinion addressing the admissibility of expert scientific
             testimony, this requires a preliminary assessment of
             whether the reasoning or methodology underlying the
             testimony is sufficiently valid and whether that reasoning
             or methodology can be properly applied to the facts in issue.

341 N.C. at 527, 461 S.E.2d at 639 (citing Daubert, 509 U.S. 579, 125 L. Ed. 2d 469).

The Court then adopted a three-step inquiry for evaluating the admissibility of expert

testimony. Id. at 527-29, 461 S.E.2d at 639-41.

      In Howerton, the Court listed the three steps: “(1) Is the expert's proffered

method of proof sufficiently reliable as an area for expert testimony? (2) Is the

witness testifying at trial qualified as an expert in that area of testimony? (3) Is the

expert's testimony relevant?” Howerton, 358 N.C. at 458, 597 S.E.2d at 686 (citing

Goode, 341 N.C. at 527-29, 461 S.E.2d at 639-41). In determining reliability in the

first step, where there is no precedent, “a court may look to testimony by an expert

specifically relating to the reliability, may take judicial notice, or may use a

combination of the two.” Goode, 341 N.C. at 530, 461 S.E.2d at 641. Under the second

step, “[i]t is not necessary that an expert be experienced with the identical subject

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                                   Opinion of the Court



matter at issue or be a specialist, licensed, or even engaged in a specific profession.

It is enough that the expert witness because of his expertise is in a better position to

have an opinion on the subject than is the trier of fact.” Id. at 529, 461 S.E.2d at 640

(internal quotation marks and citations omitted). In judging relevancy under the

third step, “expert testimony is properly admissible when such testimony can assist

[the fact finder] to draw certain inferences from facts because the expert is better

qualified than the [fact finder] to draw such inferences.” Id. at 529, 461 S.E.2d at

641.

       After reviewing the Goode three-step inquiry, the Howerton Court addressed

whether North Carolina had implicitly adopted the federal Daubert standard.

Howerton, 358 N.C. at 458, 597 S.E.2d at 686. Although the Court noted similarities

between the principles underlying Goode and Daubert, the Court distinguished the

North Carolina approach, noting “[it] is decidedly less mechanistic and rigorous than

the ‘exacting standards of reliability’ demanded by the federal approach.” Id. at 464,

597 S.E.2d at 690.

       Defendant now argues application of “less mechanistic and rigorous” Goode

inquiry in the present case should have resulted in the admission of Norman’s expert

opinion testimony because his testimony would have benefitted the trier of fact.

       Upon review, there is no indication that the DHC applied the Daubert standard

in this case. In sustaining the State Bars’ objection to Norman’s testimony, the DHC



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                                   Opinion of the Court



noted only that it based its decision on Norman’s experience and background.

Nevertheless, if the DHC did apply the Daubert standard, it did not err. Although

our Supreme Court held in Howerton that North Carolina is not a Daubert

jurisdiction, see id. at 469, 597 S.E.2d at 693, this Court has recently acknowledged

that the October 2011 amendment to Rule 702, as quoted above, mirrors Federal Rule

702 and “represents a departure from our previous understanding of Rule 702, which

eschewed the Supreme Court’s decision in Daubert. Given the changes . . . it is clear

that amended Rule 702 should [now] be applied pursuant to the federal standard as

articulated in Daubert.” State v. McGrady, __ N.C. App. __, __, 753 S.E.2d 361, 367

(citation omitted), review allowed, 367 N.C. 505, 758 S.E.2d 864 (2014); see also Wise

v. Alcoa, Inc., __ N.C. App. __, __ n. 1, 752 S.E.2d 172, 175 n. 1 (2013); Pope v. Bridge

Broom, Inc., __ N.C. App. __, __, 770 S.E.2d 702, 707-08 (2015).

      Moreover, assuming arguendo that Daubert does not apply, the trial court did

not abuse its discretion in sustaining the State Bar’s objection under the Goode

standard. As noted above, the DHC’s decision was based on Norman’s experience and

background.    While the Goode Court explained that the witness need not be

experienced with the identical subject matter or be certified, we cannot hold the DHC

abused its discretion in this case where defendant specifically tendered Norman as

an expert in forensic accounting.     Although Norman had years of experience in

accounting, he had reviewed very few attorneys’ trust accounts for the number of



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                                  Opinion of the Court



years in practice. Moreover, while Norman did explain his procedure for analyzing

accounts for embezzlement or fraud, Norman did not indicate how many times he had

reviewed accounts for embezzlement or fraud. Norman only testified that he had

reviewed accounts with his partner and had testified in court on prior occasions

concerning accounting practices, but never regarding attorneys’ trust accounts.

Despite acknowledging there were credentials for forensic accounting which he had

not sought, nor received, Norman believed he had the requisite experience to make

an embezzlement or fraud determination because “[m]ost all accounting is forensic.”

      Where Norman was tendered as an expert in forensic accounting, we cannot

say the DHC abused its discretion in sustaining the State Bar’s objection in this case.

      Additionally, we note there are questions as to the reliability of Norman’s

method and whether his testimony would have been helpful to the DHC. Norman

explained that his process for making an embezzlement or fraud determination was

based, at least in part, on his impression of the person suspected of embezzlement or

fraud when he speaks with them. Norman testified that he could tell pretty quickly

whether or not the person is telling the truth based on whether the person would look

him straight in the face. Norman, however, also indicated that some people will look

you in the face even if they were not telling the truth, “but those are really

professionals.”




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                                  Opinion of the Court



      Regardless of the standard applied, Norman’s testimony did not establish his

methodology as reliable, but instead raised further doubt as to the reliability.

                                 B.     DHC’s Order

      Defendant next argues the DHC failed to make sufficient findings and

conclusions to support its determination that defendant should be disbarred, which

he asserts is an unwarranted, unduly harsh, and disproportionate punishment.

      “We review the DHC’s order of discipline under the ‘whole record’ test.” N.C.

State Bar v. Adams, __ N.C. App. __, __, 769 S.E.2d 406, 411 (2015) (citing N.C. State

Bar v. Talford, 356 N.C. 626, 632, 576 S.E.2d 305, 309 (2003)). The whole record test

             requires the reviewing court to determine if the DHC's
             findings of fact are supported by substantial evidence in
             view of the whole record, and whether such findings of fact
             support its conclusions of law. Such supporting evidence is
             substantial if a reasonable person might accept it as
             adequate backing for a conclusion. 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.
             Ultimately, the reviewing court must apply all the
             aforementioned factors in order to determine whether the
             decision of the lower body, e.g., the DHC, has a rational
             basis in the evidence.

Talford, 356 N.C. at 632, 576 S.E.2d at 309-10 (citations, quotation marks, and

footnotes omitted).

             [T]he following steps are necessary as a means to decide if

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                                  Opinion of the Court



             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?

Id. at 634, 576 S.E.2d at 311 (quotation marks omitted). “[T]he mere presence of

contradictory evidence does not eviscerate challenged findings, and the reviewing

court may not substitute its judgment for that of the [DHC]. The DHC determines

the credibility of the witnesses and the weight of the evidence.” Adams, __ N.C. App.

at __, 769 S.E.2d at 411 (quotation marks and citations omitted).

      N.C. Gen. Stat. § 84-28 governs attorney discipline and provides five levels of

punishment for misconduct: disbarment, suspension, censure, reprimand, and

admonition. N.C. Gen. Stat. § 84-28(c) (2013). In Talford, the Court explained as

follows:

             [T]he statutory scheme set out in [N.C. Gen. Stat.] § 84-28
             clearly evidences an intent to punish attorneys in an
             escalating fashion keyed to: (1) the harm or potential harm
             created by the attorney's misconduct, and (2) a
             demonstrable need to protect the public. Thus, we conclude
             that in order to merit the imposition of “suspension” or
             “disbarment,” there must be a clear showing of how the
             attorney's actions resulted in significant harm or potential
             significant harm to the entities listed in the statute, and
             there must be a clear showing of why “suspension” and
             “disbarment” are the only sanction options that can
             adequately serve to protect the public from future
             transgressions by the attorney in question.

             In sum, then, it is clear to this Court that each level of

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                                  Opinion of the Court



             punishment in the escalating statutory scheme: (1)
             requires its own particular set of factual circumstances in
             order to be imposed, and (2) is measured in light of how it
             will effectively provide protection for the public. Thus, upon
             imposing a given sanction against an offending attorney,
             the DHC must provide support for its decision by including
             adequate and specific findings that address these two key
             statutory considerations.

356 N.C. at 637-38, 576 S.E.2d at 313. Yet, citing N.C. State Bar v. Nelson, 107 N.C.

App. 543, 421 S.E.2d 163 (1992), defendant admits that the choice of which sanction

is most appropriate rests in the discretion of the DHC.

      A disciplinary proceeding consists of an adjudicatory phase, in which the DHC

determines whether the defendant committed the offense or misconduct, and a

dispositional phase, in which the DHC determines the appropriate sanction. See

Talford, 356 N.C. at 634, 576 S.E.2d at 311. “[T]he whole-record test must be applied

separately to each of the two phases.” Id. Although defendant mentions a lack of

evidence supporting finding and conclusions in both the adjudicatory and

dispositional phases, defendant only challenges findings and conclusions related to

the discipline imposed.    Thus, we accept the DHC’s findings and conclusions

concerning adjudication and limit our review to the dispositional phase.

      Specifically, defendant contends the DHC’s “findings and conclusions do not

address the degree of potential harm that [his] acts and omissions might cause, why

disbarment would be necessary to protect the public, or how [his] failure to maintain

accurate records threatens the public, the legal profession, or the administration of


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                                        Opinion of the Court



justice.” Defendant then compares his case to Talford. Upon review, we find this

case distinguishable from Talford and, applying the Talford analysis, hold the DHC

did not err or abuse its discretion in disbarring defendant.

       Defendant takes issue with a number of the DHC’s findings. As noted above,

we review the DHC’s findings to determine whether they are supported by

substantial evidence; that is clear, cogent, and convincing evidence. See id. at 632,

576 S.E.2d at 309-10. In the dispositional phase, the DHC issued the following nine

findings of fact:2

                1. Defendant was issued an Admonition in November
                   2004 for neglecting a client matter.

                2. Ms. Faggins, the administratrix of the Estate of Bruce
                   Jacobs, was unaware that the settlement funds
                   Defendant had received were no longer in his trust
                   account. Ms. Faggins repeatedly requested that the
                   funds be transferred to the clerk of court or that the
                   Clerk be provided copies of bank statements indicating
                   the funds are on deposit with Defendant. Defendant
                   was unable to take these steps as the funds were no long
                   [sic] in his account.

                3. Ms. Locklear, the administratrix of the Estate of
                   Samuel Locklear, has been unable to close out the
                   estate or pay out the funds due to their heirs. The funds
                   from Ms. Locklear’s personal injury case have not been
                   paid out to her since her case was settled in November
                   2010.

                4. Because of their experiences with Defendant, Ms.
                   Faggins and Ms. Locklear no longer trust attorneys to


       2   The DHC misnumbered the findings, labeling two findings with the number 6.

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                                  Opinion of the Court



                act in their best interests.

             5. Although Defendant testified that he made
                arrangements to have sufficient funds to cover the
                deficiencies in the trust account, Defendant has not
                paid restitution to the clients whose funds should be
                held in his general trust account.

             6. Defendant’s comingling of his funds in the trust
                account, by failing to promptly withdraw his earned
                fees from a client’s settlement funds, was motivated by
                his desire to prevent the IRS from seizing the funds
                from his operating account.

             6. The crimes of embezzlement, forgery and uttering are
                felonies.

             7. Defendant was diagnosed in 2011 with adjustment
                disorder and mild cognitive disorder. In 2013 he was
                again diagnosed with adjustment disorder and mild
                cognitive disorder by history.

             8. Several of Defendant’s colleagues and his pastor believe
                Defendant is truthful, trustworthy and a good attorney.

      On appeal, defendant identifies findings 1, 3, 5, and 7 as illustrative of the

deficiencies in the DHC’s order of discipline. Although defendant identifies the above

findings, he only contests the evidence to support finding 3. His arguments regarding

the remaining findings concern whether the findings support the DHC’s conclusions

in the order of disbarment. Nevertheless, we note that findings 1, 5, and 7 are

supported by substantial evidence.

      In support of finding 3, Ms. Locklear testified she never received any money

from the settlement and has not been able to pay out funds from the Estate of Samuel


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                                  Opinion of the Court



Locklear. Ms. Locklear, however, acknowledged receiving a letter from defendant

dated 31 March 2011 informing her that defendant was holding money for the estate

and advising that she needed to come to his office and sign papers authorizing

defendant to pay out the funds. Thus, while finding 3 is supported by the evidence,

the insinuation that Ms. Locklear was unable to close out the estate because of

defendant’s actions is not founded in the evidence and is not a valid reason to base

punishment.

      Yet, we hold the findings are sufficient to support the trial court’s conclusions

absent consideration of finding 3.    Likewise, we find the DHC issued adequate

conclusions to support the order of disbarment.          Specifically, the DHC issued

conclusions showing that it considered the factors provided in Section .0114(w) of the

North Carolina State Bar Rules and Regulations. The DHC then listed each factor

that it found present in this case. We find the DHC’s findings support its conclusions

that the factors listed are present. The DHC then issued conclusions indicating it

considered lesser alternatives to disbarment but determined the lesser alternatives

would not be sufficient to protect the public, the profession, and the administration

of justice. Among the reasons disbarment was the only suitable punishment, the

DHC explained that “[d]isbarment is the only sanction that requires Defendant to




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                                      Opinion of the Court



demonstrate reformation before he may resume the practice of law.”3 The DHC found

this important, recognizing that “[p]rotection of the public requires that Defendant

not be permitted to resume the practice of law unless and until he demonstrates that

he has reformed, that he understand his obligations as an attorney, officer of the

court, and as a citizen of this state and country.”

       After a thorough review of the order of discipline, we hold the findings and

conclusions issued by the DHC were sufficient to show significant harm to the public

and the legal profession caused by defendant’s numerous rule violations and to show

why disbarment was the only appropriate sanction.

                                      III.   Conclusion

       For the reasons discussed, we affirm the DHC’s order of discipline disbarring

defendant from the practice of law in North Carolina.

       AFFIRMED.

       Judges CALABRIA and DIETZ concur.

       Report per Rule 30(e).




       3 Defendant argues the DHC’s reasoning is flawed because suspension may also require a
demonstration of reformation. While a demonstration of reformation may be shown as a condition to
stay a suspension, the suspension may not exceed five years, at which time the suspension ends
without a demonstration of reformation. See N.C. Gen. Stat. § 84-28(c).

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