An unpublished opinion of the North Carolina Court of Appeals does not constitute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.



                                NO. COA13-1249
                       NORTH CAROLINA COURT OF APPEALS

                               Filed:     20 May 2014


THE NORTH CAROLINA STATE BAR,
     Plaintiff

      v.                                      Disciplinary Hearing Commission
                                              of The North Carolina State Bar
                                              No. 12 DHC 31
JEFFREY S. BERMAN, Attorney,
     Defendant


      Appeal by defendant from order entered 1 May 2013 by the

Disciplinary Hearing Commission of the North Carolina State Bar.

Heard in the Court of Appeals 6 March 2014.


      The North Carolina State Bar, by Counsel Katherine Jean and
      Deputy Counsel David R. Johnson, for plaintiff-appellee.

      The Law Office of Bryce D. Neier, by Bryce D. Neier, for
      defendant-appellant.


      CALABRIA, Judge.


      Attorney Jeffrey S. Berman (“Berman”) appeals from an Order

of   Discipline     issued    by   the    Disciplinary      Hearing    Commission

(“DHC”) of the North Carolina State Bar (“State Bar”) finding

him in violation of the North Carolina Rules of Professional
                                               -2-
Conduct and suspending his license to practice law for one year.

We affirm.

                                       I. Background

     Berman was admitted to the North Carolina State Bar in

1988.     During the period relevant to the matters before the DHC,

Berman     was    actively           engaged     in        the    practice      of    law    in

Greensboro,       North      Carolina,       focusing        largely      on    custody     and

child support matters.                 The State Bar divided its complaint

against Berman into three claims for relief:                             Berman’s handling

of   a     custody          matter     for      Vanessa          Greeson,      his     renewal

applications for mediation certification, and his handling of a

custody matter for Lisa Goins.

A. The Greeson Matter

     In    May     2011,       Vanessa       Greeson        (“Greeson”)        sought    legal

advice from Berman regarding her five-month-old granddaughter’s

status and placement.            Greeson’s granddaughter (“K.C.”) had been

hospitalized      with       serious     injuries,          and    the    Guilford      County

Department       of     Social       Services        (“DSS”)       had    been       notified.

Greeson and K.C.’s parents agreed to a DSS safety plan that

placed K.C. with a family friend (“the friend”).                            Because it was

unclear     who       had     caused     K.C.’s        injuries,         only    supervised

visitation       with    K.C.’s       parents        was    permitted.          Greeson     was
                                            -3-
concerned    that       DSS    would     attempt    to    petition    the      court      for

custody of K.C.

    Berman        prepared      a   child    custody      complaint       on   Greeson’s

behalf.      Berman       intentionally        omitted      any     allegations          that

K.C.’s parents acted inconsistently with their constitutionally

protected     parental         rights.       According       to    the    accompanying

Affidavit    as    to     Status    of    Minor    Child,    K.C.    lived        with    her

“mother and/or third party,” but the affidavit failed to provide

specific addresses or to state that                      the friend       had physical

custody of K.C.

    Berman also prepared a consent order granting Greeson joint

legal custody and primary physical custody of K.C. When Berman

presented the consent order to the court, ex parte, he did not

inform the court that DSS was involved with the family or that

K.C. was living with the friend.                  Berman informed the court that

K.C. was already living with Greeson.                    When DSS discovered that

Greeson    had     obtained      custody     of    K.C.     by    consent      order,     it

immediately       filed    a    petition     alleging      that    K.C.     was    abused,

neglected,       and    dependent.         K.C.    was    subsequently         placed     in

foster    care    for     six   months      before    she    was    returned       to    her

family.

B. Mediation Certification
                                       -4-
    Berman was also a mediator certified by the North Carolina

Dispute Resolution Commission.              To maintain his certification,

Berman    was    required     to   submit    annual    Mediator      Certification

Renewal         Applications        (“renewal         applications”),         which

specifically ask applicants to disclose pending complaints and

disciplinary proceedings.

    Berman       received     notice   in   August    2011    that    a   grievance

regarding his conduct in the Greeson matter had been filed with

the State Bar.        In September 2011, and again in August 2012,

Berman submitted renewal applications to the Dispute Resolution

Commission, but did not disclose the pending grievance or that a

complaint had been filed against him with the State Bar in the

applications.        On both applications, Berman certified that he

had given “true, accurate, and complete information.”

C. The Goins Matter

    In December 2012, Berman represented Lisa Goins in a child

custody matter in Guilford County.              On 5 December 2012, Berman’s

request for an ex parte emergency custody order was denied by

Chief     District    Court    Judge    Wendy     Enochs     (“Judge      Enochs”).

Because    the    local   rules     required    parties      to   participate   in

mediation before scheduling a hearing, Judge Enochs also denied

Berman’s request for the matter to be heard within ten days.
                                       -5-
Berman   then      approached     another    District     Court   Judge    in    the

hallway, who allowed Berman to schedule the matter for hearing

on 18 December 2012.            Berman did not inform the second judge

that Judge Enochs had previously denied his ex parte motion for

emergency custody and his request to schedule a hearing.

D. Disciplinary Hearing

       On 16 July 2012, the State Bar filed a complaint against

Berman regarding his conduct in the Greeson matter.                      The State

Bar amended its complaint in January 2013 to include Berman’s

conduct in all three matters.              After a hearing, the DHC issued

an    Order   of   Discipline     on   1    May   2013,    concluding     Berman’s

conduct violated the Rules of Professional Conduct as the State

Bar claimed.       The DHC specifically concluded that Berman brought

a proceeding that lacked basis in law and/or fact in violation

of Rule 3.1; that he knowingly made false statements to the

tribunal in violation of Rule 3.3(a); that he failed to disclose

all   material     facts   that    would    enable   the    judge   to    make    an

informed decision in violation of Rule 3.3(d); that he engaged

in conduct involving dishonesty, deceit, or misrepresentation in

violation of Rule 8.4(c); and that his conduct was prejudicial

to the administration of justice in violation of Rule 8.4(d).

       Based on its conclusions and the evidence presented, the
                                        -6-
DHC suspended Berman’s license to practice law for one year.

Berman appeals.

       Berman    argues   that    the    DHC        erred    in    finding     that    he

committed ethical violations in all three matters, and that the

suspension of his license was disproportionate and unwarranted.

We disagree.

                          II. Standard of Review

       Appeals from the DHC are reviewed under the “whole record”

test,    which     requires   a   determination             of    whether    the   DHC’s

findings of fact are supported by substantial evidence in view

of the record, and whether the findings support the conclusions

of law.     N. Carolina State Bar v. Talford, 356 N.C. 626, 632,

576 S.E.2d 305, 309 (2003).                  To determine whether the DHC’s

decision has a rational basis in the evidence, the whole record

test    requires    consideration       of    any    contradictory          evidence   or

evidence from which conflicting inferences may be drawn, and

that the DHC used clear, cogent, and convincing evidence to

support its findings and conclusions.                 Id., 576 S.E.2d at 310.

       Rule 3.1 states that a lawyer “shall not bring or defend a

proceeding . . . unless there is a basis in law and fact for

doing so that is not frivolous, which includes a good faith

argument[.]”       N.C. Rev. R. Prof. Conduct 3.1 (2013).                      Rule 3.3
                                          -7-
concerns    candor      towards    the    tribunal,     stating          that    a   lawyer

shall not knowingly make false statements of material fact to

the court and, in ex parte proceedings, shall inform the court

of all material facts known to the lawyer that will enable the

court to make an informed decision, “whether or not the facts

are adverse.” N.C. Rev. R. Prof. Conduct 3.3 (a)(1), (d) (2013).

Rule 8.4 states that it is professional misconduct for a lawyer

to engage in conduct that involves dishonesty, fraud, deceit, or

misrepresentation, or prejudices the administration of justice.

N.C. Rev. R. Prof. Conduct 8.4 (c), (d) (2013).                           Comment 4 to

Rule 8.4 states that a showing of a reasonable likelihood of

prejudicing the administration of justice is sufficient.                                Id.,

Cmt. 4.     In addition, “the phrase ‘conduct prejudicial to the

administration     of    justice’     .   .     .   should    be    read    broadly      to

proscribe    a   wide    variety     of   conduct,      including         conduct      that

occurs outside the scope of judicial proceedings.”                        Id.

    As an initial matter, we note that Berman’s answer to the

State   Bar’s    complaint        admitted      the   majority       of    the       factual

allegations.            Therefore,        those       facts        are     conclusively

established.      Harris v. Pembaur, 84 N.C. App. 666, 670, 353

S.E.2d 673, 677 (1987).

                           III. The Greeson Matter
                                           -8-
       We first address the issue of whether the DHC erred in

finding Berman failed in his duty of candor and honesty as an

attorney       and     officer     of    the     court      by     omitting       material

information and making a false statement in his submission of

the Greeson consent order to the court.                      Berman argues that the

DHC’s findings do not show that he committed ethical violations

in the Greeson matter.            We disagree.

       In   the      instant     case,   Berman      testified         at   the    hearing

regarding the requirements for third-party custody complaints,

indicating that there must be an allegation that the parents are

either unfit or that they acted in a manner inconsistent with

their constitutionally protected parental rights.                              Berman also

testified       that    he     intentionally        omitted      allegations       in   the

complaint regarding the fitness or constitutionally protected

status of K.C.’s parents.                Berman neither made an effort to

contact the friend, who had physical custody of K.C., nor gave

her    notice     of   the    consent    order.        He    also      admitted    at   the

hearing     that     the     Affidavit   as    to    Status      of    Minor    Child   was

inadequate and did not identify the person who had custody of

K.C.

       Judge    Jan    Samet     (“Judge      Samet”)       also      testified    at   the

hearing regarding the consent order.                     Judge Samet stated that
                                     -9-
when   Berman   presented   the   consent   order      for   his    signature,

Berman did not mention that K.C. had been hospitalized, that DSS

was involved with the family, or that Greeson was not permitted

visitation with K.C.        Judge Samet also testified that Berman

told him Greeson had physical custody of K.C.                If he had known

that K.C. was living with a third party at the time, Judge Samet

testified, he would not have approved the consent order.                 Judge

Enochs testified that Berman later characterized the case as a

“friendly suit” with all parties in agreement.                  The evidence

regarding   the   Greeson   matter    supports   the    DHC’s      findings   of

fact, which in turn support the DHC’s conclusions that Berman

violated Rules 3.1, 3.3(a), 3.3(d), 8.4(c), and 8.4(d) of the

Rules of Professional Conduct.

       Berman contends that since the complaint was an action for

temporary custody    with all parties in agreement,                he was not

required to make allegations regarding the parental status of

K.C.’s parents, citing Price v. Howard, 346 N.C. 68, 484 S.E.2d

528 (1997).     Similarly, Berman contends that he was not required

to disclose DSS involvement with the family to the court when he

presented the consent order.         However, Berman fails to recognize

that the complaint he filed in the matter alleged a disputed

custody matter, and thus required the allegations regarding the
                                        -10-
parents’ constitutionally protected status pursuant to Petersen

v. Rogers, 337 N.C. 397, 403-04, 445 S.E.2d 901, 905 (1994).

    Even if Berman expected the lawsuit to be “friendly,” he

cites    no   authority      to    support   his     proposition       that    legally

required allegations can be omitted from a custody complaint

simply    because     an    attorney    expects      that    a   lawsuit      will   be

“friendly.”        Even consent orders must contain legally required

findings of fact and conclusions of law, particularly in custody

cases, as the court’s jurisdiction is based upon the required

findings      of   fact    and    conclusions   of    law.       See    Bohannan     v.

McManaway, 208 N.C. App. 572, 584, 705 S.E.2d 1,9 (2010) (“The

parties cannot confer subject matter jurisdiction upon the court

by entry of a consent order regarding child custody.”)                        In Foley

v. Foley, this Court addressed the effect of entry of a consent

order regarding child custody:

              Defendant argues, and plaintiff concedes,
              the signing of the Consent Order did not
              waive   any   challenge   to  subject  matter
              jurisdiction.         The    UCCJEA   is    a
              jurisdictional      statute,      and     the
              jurisdictional requirements of the UCCJEA
              must be met for a court to have power to
              adjudicate child custody disputes. . . .
              [S]ee N.C.G.S. §§ 50A–101 to –317 (2001).
              The PKPA is a federal statute also governing
              jurisdiction over child custody actions and
              is designed to bring uniformity to the
              application of the UCCJEA among the states.
              . . . [S]ee 28 U.S.C.A. § 1738A (2002).
                                         -11-
            Subject   matter   jurisdiction   cannot   be
            conferred by consent, waiver, or estoppel.
            Accordingly, the trial court erred in ruling
            the   signing   of  the   Consent   Order  by
            defendant   waived  any   challenge   to  the
            subject matter jurisdiction of the trial
            court.

156 N.C. App. 409, 411-12, 576 S.E.2d 383, 385 (2003) (citations

omitted).          If    the     complaint       had    included      the     required

allegations    as       to    K.C.’s    residency      and   DSS     involvement    as

required by the UCCJEA, the trial court would not have entered

the consent order.              The evidence also shows that Berman was

aware of the requirements for a third-party custody complaint,

and that the information regarding DSS involvement constituted a

material fact that would have influenced the court’s decision.

These arguments are without merit.

                     IV. Dispute Resolution Commission

      The   next    issue       is   whether    the    DHC   erred    in    concluding

Berman’s failure to disclose pending disciplinary matters to the

Dispute Resolution Commission violated the Rules of Professional

Conduct.

      The factual basis for the State Bar’s claim in this matter

is   undisputed.             However,   Berman    contends     that     he    was   not

required to disclose the pending grievance                   because it was not a

formal complaint, citing N. Carolina State Bar v. Braswell, 67
                                         -12-
N.C. App. 456, 313 S.E.2d 272 (1984).                       However, the Braswell

language that Berman cites is an explanation of the disciplinary

procedures      of     the     State     Bar    and    does    not    address     the

requirements of disclosure.              In addition, Braswell addresses an

attorney’s right to notice and opportunity to be heard in a

State Bar disciplinary proceeding.                Braswell does not authorize

a   lawyer     to    conceal    material       information     or    provide    false

certifications of fact.             This argument is without merit.

       Because the facts in this matter are undisputed, the DHC’s

findings of fact are supported by the record.                   The findings show

that   Berman       twice    concealed    the    pending      grievance    from   the

Dispute      Resolution      Commission,       and    thus    support     the   DHC’s

conclusions that Berman violated Rules 8.4(c) (conduct involving

dishonesty, deceit, or misrepresentation) and 8.4(d) (conduct

prejudicial to the administration of justice) of the Rules of

Professional Conduct.

                               V.    The Goins Matter

       Next,   we    consider       whether    the    DHC    erred   in   concluding

Berman failed to disclose material information to the second

District Court Judge in his request for a custody hearing after

his initial request had been denied by Judge Enochs.

       Berman’s precise argument concerning this issue is unclear.
                                     -13-
However, the majority of the facts related to this matter are

undisputed.      The State Bar also presented evidence showing that

Berman approached the second District Court Judge in the hallway

after Judge Enochs had denied his request for emergency custody.

Berman asked if a request for emergency custody in the case

could be added to the second judge’s calendar for 18 December

2012, and did not inform the second judge that the request for

emergency custody had already been heard and denied.               The State

Bar also presented evidence showing that a continuance order in

the case had been modified by marking out Judge Enochs’s name as

the presiding judge at the hearing for the request for emergency

custody.      The document appeared to indicate that the second

judge had heard Berman’s motion and set the case for hearing.

Judge   Enochs    testified   that   she    told   Berman   that   since   his

request for emergency custody was denied, the case would have to

proceed to mediation in accordance with the local rules.

    Berman argues that the DHC incorrectly found that he had

engaged in an improper ex parte communication with the second

judge and that he had asked for an ex parte emergency custody

order from the second judge after Judge Enochs had previously

denied it.    Berman mischaracterizes the DHC’s findings.            The DHC

specifically found that Berman requested the second judge to
                                         -14-
hear his request for emergency custody on 18 December 2012, that

Berman     did   not     give     the    opposing       party        notice        of    this

communication, and that Berman did not inform the second judge

that his request for emergency custody had already been heard

and denied.      The DHC did not find or conclude that Berman asked

the second judge for an emergency custody order.

    The     evidence       and     undisputed         facts      support      the        DHC’s

findings of fact regarding the Goins matter.                         In addition, the

findings support the DHC’s conclusion that Berman’s failure to

disclose to the second judge that his request for emergency

custody     in   the     Goins      matter      had     previously          been        denied

constituted a failure to inform the tribunal of all material

facts    that    would     enable    the     tribunal       to      make    an     informed

decision in violation of Rule 3.3(d).

    Berman       appears    to    take   issue      specifically           with    what    he

terms the “draconian” policies and local rules of court for

Guilford    County,      and     contends    that      he     was    not    required        to

provide the second judge with any information concerning the

denial of his initial ex parte custody motion.                              While Berman

appears to disagree with the local rules, he does not dispute

that as a practicing attorney in Guilford County, he was still

subject to those rules.
                                              -15-
                                      VI. Discipline

     Finally,        we    consider       whether      a    one    year     suspension     of

Berman’s license to practice law was appropriate discipline.

     “[T]he statutory scheme set out in N.C.G.S. § 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.”         Talford, 356 N.C. at 637-38, 576 S.E.2d at 313.

In order to merit the imposition of suspension, there must be a

clear      showing    of        how     the   attorney’s          actions    resulted       in

significant or potentially significant harm, and 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.                     Id. at 638, 576 S.E.2d at 313.

The Rules of the North Carolina State Bar also set forth several

specific factors for the DHC to consider in imposing discipline.

27 N.C.A.C. 1B § .0114(w) (2013).

     In the instant case, the DHC made additional findings of

fact for the dispositional stage regarding, inter alia, Berman’s

experience     in     the       practice       of     law   and      in     custody    cases

specifically; K.C.’s vulnerability as a five-month-old infant;

Greeson’s reliance on Berman’s professional judgment and legal
                                          -16-
knowledge to effectuate her goal of preventing K.C.’s potential

placement in foster care, and that Berman’s actions caused the

very outcome she sought to avoid; that Berman’s lack of candor

with    the   court     undermined       the       integrity      of    the   adjudicative

process; that Berman had no prior professional discipline; and

that Berman sought to justify his actions and did not express

remorse.      The DHC specifically found that Berman’s conduct in

the Greeson matter “created a foreseeable risk of potentially

catastrophic harm to the infant by seeking to place her in the

care    of    someone     who    had     not       yet     been     ruled     out   as   the

perpetrator      of     abuse     against          K.C.”      and      that   he    “caused

significant     harm     to     K.C.’s    mother,        in    that     she    experienced

substantial anxiety and distress about her daughter’s placement

in a foster home[.]”

       The DHC expressly concluded that several of the enumerated

factors in 27 N.C.A.C. 1B § .0114(w) were present in the instant

case,    including,      inter     alia,       a    negative        impact    of    Berman’s

actions on the administration of justice; acts of dishonesty,

misrepresentation,         or     deceit;          refusal        to    acknowledge      the

wrongful nature of his conduct in Berman’s initial response to

the State Bar; and a pattern of misconduct.                         The DHC stated that

it considered lesser discipline, but that discipline less than
                                          -17-
suspension was insufficient given the gravity of the harm to the

administration of justice and the actual and potential harm to

the public.       The DHC then suspended Berman’s license to practice

law   for   one    year,   and    provided       that    he    could   apply    to   be

reinstated at the end of the one year suspension.

      The DHC’s findings support a clear showing that Berman’s

conduct resulted in significant or potentially significant harm

to Greeson, K.C., and K.C.’s mother.                     In addition, the DHC’s

findings     support       its        conclusions       that    Berman’s       conduct

constituted a pattern of misconduct having a negative impact on

the administration of justice, and that suspension was the only

viable sanction that could adequately protect the public from

future transgressions.           Berman contends that there is nothing in

the record to indicate that he attempted to deceive anyone.

However,    the    evidence      in    the   record     contradicts    this    claim.

Berman’s arguments to this Court constitute rationalizations and

excuses for his misconduct, and it is clear that Berman has

failed show any remorse for his misconduct.

                                 VII. Conclusion

      Berman’s conduct in all three matters that comprised the

State Bar’s claims for relief constituted misconduct pursuant to

the Rules of Professional Conduct.                    While Berman admits that
                                   -18-
there is a factual basis for the discipline, his claim that his

misconduct   did    not    rise   to     violations   of    the   Rules   of

Professional Conduct is mistaken.           The DHC’s findings of fact

are   supported    by     the   record    evidence    and    Berman’s     own

admissions, and its conclusions are supported by the findings.

The DHC also provided substantial findings sufficient to support

the suspension of Berman’s license.           Therefore, we affirm the

order of the DHC.

      Affirmed.

      Judges STROUD and DAVIS concur.

      Report per Rule 30(e).
