               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                    No. COA17-443

                              Filed: 19 December 2017

Disciplinary Hearing Commission of the North Carolina State Bar, No. 14 DHC 7

THE NORTH CAROLINA STATE BAR, Plaintiff,

              v.

JENNIFER NICOLE FOSTER, Attorney, Defendant.


      Appeal by defendant from order entered 13 September 2016 by the

Disciplinary Hearing Commission of the North Carolina State Bar. Heard in the

Court of Appeals 18 October 2017.


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

      Jennifer Nicole Foster, pro se, for defendant-appellant.


      ELMORE, Judge.


      Attorney Jennifer Nicole Foster (“defendant”) appeals from an order of

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

Carolina State Bar. In its order, the DHC determined that defendant violated Rules

of Professional Conduct 3.5 and 8.4. The DHC thus imposed a two-year suspension

of defendant’s law license, stayed for the duration of the suspension so long as

defendant complies with certain conditions. After careful review, we affirm the order

of the DHC.
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                                   I. Background

       Defendant was admitted to the North Carolina State Bar in 1995 and was

practicing law in Asheville as of 2011. On the evening of 5 November 2011, defendant

entered the magistrate’s office in the Buncombe County Detention Center to inquire

about arrest warrants that had been issued for several members of the Occupy

Asheville movement. Defendant encountered Magistrate Amanda Fisher, one of two

magistrates on duty at the time, and identified herself as an attorney there on behalf

of the movement. Defendant then asked Magistrate Fisher “what the hell is going on

around here” regarding the warrants. Magistrate Fisher warned defendant to watch

her language and told her that she was in a courtroom.          Defendant, however,

maintains that Magistrate Fisher never mentioned the word “court” or warned

defendant to watch her language.

       Office policy prohibited Magistrate Fisher from providing defendant with

information regarding outstanding warrants on other individuals, but she did inform

defendant there were no outstanding warrants on defendant herself. Defendant

responded “what the f*** is going on around here,” prompting Magistrate Fisher to

renew her warning to defendant, but defendant nevertheless repeated the profanity

multiple times. As Magistrate Fisher told defendant she was being held in contempt

of court, defendant walked out of the magistrate’s office, loudly repeating more

vulgarities as she left.



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      At Magistrate Fisher’s request, detention officers stopped defendant from

leaving the premises and returned her to the magistrate’s office.       The second

magistrate on duty that evening appeared and witnessed the remainder of

defendant’s profanities while Magistrate Fisher entered the order for contempt. On

17 January 2012, defendant was convicted of direct criminal contempt of court

following a 1 December 2011 hearing in Buncombe County Superior Court.

Defendant appealed, and this Court ultimately reversed her conviction on procedural

grounds. In re Foster, 227 N.C. App. 454, 744 S.E.2d 496, 2013 WL 2190072 (2013)

(unpublished).

      Based on these events, the State Bar filed a complaint against defendant with

the DHC on 25 March 2014. The proceedings were continued pending federal action

initiated by defendant against Magistrate Fisher, among others, and the DHC

eventually held a hearing on 8 July 2016.        In its order of discipline dated 13

September 2016, the DHC found that defendant’s conduct violated Rules of

Professional Conduct 3.5(a)(4)(B) and 8.4(d), and it stayed a two-year suspension of

her license pending compliance with certain conditions (e.g., that defendant follow

the recommendations and treatment program of her therapist). Defendant filed

timely notice of appeal.

                                  II. Discussion




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      Any attorney admitted to practice law in this state is subject to the disciplinary

jurisdiction of the DHC for, inter alia, violation of the Rules of Professional Conduct

adopted by the State Bar. N.C. Gen. Stat. §§ 84-28(a)–(b)(3) (2015). Either party

may appeal a final order from the DHC to this Court, where our review is limited to

“matters of law or legal inference.” N.C. Gen. Stat. § 84-28(h).

      Disciplinary actions are reviewed under the whole record test. N.C. State Bar

v. Talford, 356 N.C. 626, 632–33, 576 S.E.2d 305, 309–10 (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.” Id. (citation omitted). In addition to being substantial, the evidence the

DHC uses to support its findings and conclusions must be clear, cogent, and

convincing. Id. (citing In re Suspension of Palmer, 296 N.C. 638, 648, 252 S.E.2d 784,

790 (1979)). Although the reviewing court must consider contradictory evidence, the

presence of such 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.” N.C. State Bar v. Adams,

239 N.C. App. 489, 495, 769 S.E.2d 406, 411 (2015). Thus, when there are two

reasonably conflicting views, “ ‘the whole record test does not allow the reviewing



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court to replace the DHC’s judgment . . . even though the court could justifiably have

reached a different result had the matter been before it de novo.’ ” N.C. State Bar v.

Sutton, ___ N.C. App. ___, ___, 791 S.E.2d 881, 890 (2016) (brackets omitted) (quoting

N.C. State Bar v. Nelson, 107 N.C. App. 543, 550, 421 S.E.2d 163, 166 (1992)).

      A. Rule 3.5(a)(4)(B) Violation

      Rule of Professional Conduct 3.5 states in relevant part that “a lawyer shall

not . . . engage in conduct intended to disrupt a tribunal, including . . . undignified or

discourteous conduct that is degrading to a tribunal.”          N.C. R. Prof. Conduct

3.5(a)(4)(B). While defendant admits to disrespecting Magistrate Fisher, she argues

that a magistrate is not a “tribunal” as defined in Rule 1.0(n), and thus denies

disrespecting a tribunal in violation of Rule 3.5(a)(4)(B). At issue then is what

constitutes a tribunal and whether a magistrate fits within the meaning of that

definition as applied in Rule 3.5.

      Rule of Professional Conduct 1.0 defines certain terms that appear within the

substantive rules. Under Rule 1.0(n),

             “Tribunal” denotes a court, an arbitrator in a binding
             arbitration proceeding, or a legislative body, adminis-
             trative agency, or other body acting in an adjudicative
             capacity. The term encompasses any proceeding conducted
             in the course of a trial or litigation, or conducted pursuant
             to the tribunal’s rules of civil or criminal procedure or other
             relevant rules of the tribunal, such as a deposition,
             arbitration, or mediation. A legislative body, adminis-
             trative agency or other body acts in an adjudicative
             capacity when a neutral official, after the presentation of


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             evidence or legal argument by a party or parties, may
             render a binding legal judgment directly affecting a party’s
             interests in a particular matter.

N.C. R. Prof. Conduct 1.0(n). While Rule 1.0 does not include the term “magistrate,”

a magistrate may be defined as a “judicial officer with strictly limited jurisdiction and

authority, often on the local level and often restricted to criminal cases,” and a

magistrate’s court is a “court with limited jurisdiction over minor criminal and civil

matters.” Black’s Law Dictionary (10th ed. 2014).

      The North Carolina Constitution describes our General Courts of Justice to

include appellate, superior, and district courts. N.C. Const. art. IV, § 2; see also N.C.

Gen. Stat. § 7A-4 (2015). Magistrates are created in this article and declared “officers

of the District Court.” N.C. Const. art. IV, § 10; see also N.C. Gen. Stat. § 7A-170.

They are nominated by the clerk of superior court and appointed by the senior

resident superior court judge. N.C. Const. art. IV, § 10; N.C. Gen. Stat. § 7A-171(b).

Magistrates must retire and may be removed on the same grounds as a judge of the

General Courts of Justice. N.C. Gen. Stat. §§ 7A-170, 173. In sum, magistrates are

judicial officers. See Bradshaw v. Admin. Office of Courts, 320 N.C. 132, 133, 357

S.E.2d 370, 370 (1987) (holding that magistrates are “members of the judiciary” for

limited purpose of statute making members ineligible for employment benefits).

      Most powers of magistrates are rooted in criminal law. See N.C. Gen. Stat. §

7A-273.    Magistrates have the power to enter judgments for pre-determined



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infractions and misdemeanors; to issue arrest warrants, search warrants, and grant

bail in certain cases; to conduct initial appearances; and to accept waivers, pleas, and

enter judgments for certain worthless check cases. Id.; see also N.C. Gen. Stat. §§

15A-243, 304, 305 (2015). Additionally, magistrates have the power “[t]o punish for

direct criminal contempt.” N.C. Gen. Stat. § 7A-292(a)(2). Although the general

statutes are silent about the physical office for magistrates, these can vary from small

offices to large courtrooms, depending on the needs and budget of the district. John

M. Conley & William M. O’Barr, Fundamentals of Jurisprudence: An Ethnography of

Judicial Decision Making in Informal Courts, 66 N.C. L. Rev. 467, 477 (1988).

      The definitions and core functions described above and applied here indicate

that a magistrate is a tribunal as that term appears in Rule 3.5. Consistent with

Rule 1.0, the State Bar defines “tribunal” as a court or other adjudicative body that

administers justice. Like a tribunal, a magistrate is an adjudicative body led by a

judicial officer, but typically with limited jurisdiction over criminal or civil matters.

However, it is clear based on the powers conferred upon them by our legislature that

magistrates administer justice within their limited jurisdiction.

      The State Bar’s definition of tribunal also includes “a court or other body acting

in an adjudicative capacity.” N.C. R. Prof. Conduct 1.0(n) (emphasis added). “A . . .

body acts in an adjudicative capacity when a neutral official, after the presentation

of evidence or legal argument by a party or parties, may render a binding legal



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judgment directly affecting a party’s interests in a particular matter.” Id. (emphasis

added). Like a tribunal, a magistrate can render a binding legal judgment; she

possesses   the   power   to   enter   judgments      for   pre-determined   infractions,

misdemeanors, and worthless check cases. After the presentation of evidence by a

law enforcement officer, a magistrate may issue search warrants and arrest

warrants, which directly affect a party’s liberty interests. When a magistrate enters

an order for contempt, as Magistrate Fisher did here, it is based on a magistrate’s

own observations of the party in contempt.           The order itself carries penalties

including fines and imprisonment. N.C. Gen. Stat. § 5A-12 (2015).

      The nature of our state constitution and general statutes also indicates that

magistrates are intended to be a court. Significantly, magistrates are created in the

same constitutional article as the state’s judicial branch and are declared officers of

the district court. The laws that establish the confines of magistrates  such as

method for appointment, qualifications, age limits, hours, and salary  are listed in

the same chapter of the general statutes as the laws of the judicial department.

Moreover, the rules governing the removal and retirement of magistrates are the

same as those for any judge of the appellate, superior, or district courts. In re Kiser,

126 N.C. App. 206, 208, 484 S.E.2d 441, 442 (1997). Thus, a magistrate appears to

be a tribunal according to the definition set forth in Rule 1.0 and applied in Rule 3.5.




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       Defendant first contends that a magistrate does not constitute a tribunal here

because the signage at the detention center only indicated an office and not a court.

However, whether the signs indicated an office or a court is not dispositive of this

issue. Depending on the jurisdiction, a magistrate in this state may have a courtroom

or an office. Conley & O’Barr, Fundamentals of Jurisprudence, at 477. Defendant

also argues that a magistrate is not a tribunal because the comments to Rule 3.5

indicate that a judge, as opposed to a judicial official, presides over a tribunal. This

assertion is simply incorrect. Although comment 8 to Rule 3.5 states that “a lawyer

should not communicate with a judge relative to a matter pending before . . . a

tribunal over which the judge presides,” a great leap in logic is required to conclude

from this comment that a tribunal only exists when presided over by a judge.

       For the reasons stated above, we find defendant’s contention that a magistrate

is not a tribunal to be unpersuasive. We therefore hold that the DHC did not err in

concluding that defendant disrespected a tribunal in violation of Rule 3.5(a)(4)(B).

       B. Rule 8.4(d) Violation

       Rule of Professional Conduct 8.4 states that “[i]t is professional misconduct for

a lawyer to . . . engage in conduct that is prejudicial to the administration of justice[.]”

N.C. R. Prof. Conduct 8.4(d). Defendant does not deny her conduct itself; rather, she

contends that the DHC “rendered wholly conclusory findings of fact” that her conduct




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harmed the administration of justice and interfered with the ability of the

magistrates to perform their duties on the night at issue. We disagree.

      “Threats, bullying, harassment, and other conduct serving no substantial

purpose other than to intimidate, humiliate, or embarrass anyone associated with the

judicial process including judges, opposing counsel, litigants, witnesses, or court

personnel violate the prohibition on conduct prejudicial to the administration of

justice.” N.C. R. Prof. Conduct 8.4, cmt. 5 (emphasis added).

             A showing of actual prejudice to the administration of
             justice is not required to establish a violation of paragraph
             (d). Rather, it must only be shown that the act had a
             reasonable likelihood of prejudicing the administration of
             justice. . . . The phrase “conduct prejudicial to the
             administration of justice” in paragraph (d) should be read
             broadly to proscribe a wide variety of conduct, including
             conduct that occurs outside the scope of judicial
             proceedings.

N.C. R. Prof. Conduct 8.4, cmt. 4. Rule 3.5, which prohibits disrespectful conduct

toward a tribunal as described above, discusses similar conduct.

             Therefore, the prohibition against conduct intended to
             disrupt a tribunal applies to conduct that does not serve a
             legitimate goal of advocacy or a requirement of a
             procedural rule and includes angry outbursts, insults,
             slurs, personal attacks, and unfounded personal
             accusations as well as to threats, bullying, and other
             attempts to intimidate or humiliate judges, opposing
             counsel, litigants, witnesses, or court personnel. . . .
             “Conduct of this type breeds disrespect for the courts and
             for the legal profession. Dignity, decorum, and respect are
             essential ingredients in the proper conduct of a courtroom,
             and therefore in the proper administration of justice.”


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             Attorney Grievance Comm’n v. Alison, 317 Md. 523, 536,
             565 A.2d 660, 666 (1989).

N.C. R. Prof. Conduct 3.5, cmt. 10.

      In Attorney Grievance Comm’n v. Alison, the defendant was found guilty of

misconduct by the Maryland State Bar for, inter alia, directing vulgarities and

profanities at two judges separately in open court, opposing counsel in open court,

and two clerks of court. 317 Md. at 536, 565 A.2d at 666. The defendant appealed

and alleged that his conduct was not prejudicial to the administration of justice. Id.

at 525, 565 A.2d at 661. The Maryland Court of Appeals disagreed, reasoning that it

does not matter if the conduct “delay[s] the proceedings or cause[s] a miscarriage of

justice” because “[c]onduct of this type breeds disrespect for the courts and for the

legal profession.” Id. at 536, 565 A.2d at 666. With respect to the clerks, the court

determined the analysis is the same even though clerks do not have courtrooms. Id.

at 538, 565 A.2d at 667. The court ultimately upheld the defendant’s disciplinary

sanctions, noting “[i]t is not difficult to visualize the damage to the court system and

to the reputation of the legal profession that would result if attorneys were free to

conduct their daily business with court clerks in the manner employed by [the

defendant].” Id.

      Defendant’s case is similar to Alison.        Here, defendant made vulgar and

profane statements toward and in the presence of Magistrate Fisher, who is a judicial

officer of the district court. As to defendant’s criminal contempt conviction, this Court


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reversed her conviction on procedural grounds while expressing serious concern with

defendant’s underlying behavior, which is at issue in this action.

                We are, however, very troubled by defendant’s use of
                profanity in the magistrate’s office while conducting court-
                related business despite warnings by the magistrate about
                the inappropriate language. Such disrespect, particularly
                by an attorney familiar with proper courtroom practices, is
                wholly inappropriate. . . . Given defendant is a lawyer
                practicing in our State’s courts, we find defendant’s
                attitude offensive and incomprehensible.

Foster, 2013 WL 2190072, at *8. We again emphasize that defendant’s conduct 

regardless of whether it occurred in a courtroom or a magistrate’s office  was clearly

offensive and inappropriate. Further, there is a reasonable likelihood that such

conduct encourages disrespect for our court system and damages the reputation of

the legal profession. We thus hold that the DHC did not err in finding that defendant

exhibited conduct prejudicial to the administration of justice in violation of Rule

8.4(d).

                                     III. Conclusion

          Because the definitions and core functions of tribunals and magistrates are

similar, and in light of the nature of our state constitution and general statutes, the

DHC did not err in finding that defendant disrespected a tribunal in violation of Rule

of Professional Conduct 3.5(a)(4)(B). Additionally, because defendant disrespected a

judicial officer and damaged the reputation of the legal profession, the DHC did not

err in finding that defendant exhibited conduct prejudicial to the administration of


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justice in violation of Rule of Professional Conduct 8.4(d). Accordingly, we affirm the

disciplinary order of the DHC.

      AFFIRMED.

      Judges DIETZ and INMAN concur.




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