                                  NO. COA13-1140

                        NORTH CAROLINA COURT OF APPEALS

                                Filed: 6 May 2014


THE NORTH CAROLINA STATE BAR,
     Plaintiff,

      v.                                     Disciplinary Hearing Commission
                                             of the North Carolina State Bar
                                             No. 12 DHC 38
GEOFFREY H. SIMMONS, Attorney,
     Defendant.


      Appeal by defendant from order of discipline entered 19

April 2013 by the Disciplinary Hearing Commission of the North

Carolina State Bar.        Heard in the Court of Appeals 17 February

2014.


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

      Poyner Spruill LLP, by M. Jillian DeCamp and Carrie V.
      McMillan, for defendant-appellant.


      HUNTER, JR., Robert N., Judge.


      Geoffrey     H.   Simmons      (“Defendant”)      appeals   from     a   final

order of the Disciplinary Hearing Commission (“DHC”) disbarring

him   from   the   practice     of    law   for   embezzling      client       funds.

Defendant    contends     (1)   that    there     was   insufficient     evidence

before the DHC that he intended to embezzle client funds, (2)

that the DHC could not impose discipline based on embezzlement
                                               -2-
without a criminal conviction, and (3)                         that the DHC’s order

failed   to   conform        to    the    requirements         of     N.C.   State        Bar    v.

Talford, 356 N.C. 626, 576 S.E.2d 305 (2003), for disbarring

attorneys.       For the following reasons, we disagree and affirm

the DHC’s order.

                      I.      Factual & Procedural History

       Defendant      was     licensed         to     practice       law     by     the    North

Carolina State Bar in 1977 and practiced law for over thirty

years.     Defendant’s career was, in many respects, a decorated

one.     After       graduating      from      Duke     University         School     of    Law,

Defendant     worked         for     the       General        Assembly        and     in        the

administration        of    former       Governor      James     B.    Hunt.         Defendant

engaged in significant pro bono work during his career.                                          In

1987, the North Carolina Bar Association named Defendant the Pro

Bono Lawyer of the year.                  In 1990, Defendant was elected the

first black President of the Wake County Bar Association and the

Tenth    Judicial      District      Bar.            During    his     career,       Defendant

established      a    reputation         for    good     character,          veracity,          and

truthfulness          in     both         social        and         legal         communities.

Notwithstanding            Defendant’s         accomplishments,              however,           the

allegations in the State Bar’s complaint against Defendant are
                                    -3-
serious, and are based on the following facts gleaned from the

record.

    From     1985   until   his   disbarment,   Defendant   was   a   solo-

practitioner focusing on criminal and personal injury work, with

an office in Raleigh.       The record reflects that Defendant had an

assistant on his payroll, who performed paralegal work.               During

the course of his law practice, Defendant maintained a trust

account on behalf of his clients.

    In March 2012, a medical provider filed a complaint with

the State Bar alleging that Defendant had not paid one of his

client’s bills.     A subsequent audit of Defendant’s trust account

by the State Bar revealed disbursements made by Defendant from

2010–2012 to himself and his assistant for which Defendant had

no supporting documentation.         The investigation also revealed

instances of insufficient client funds to cover disbursements to

those clients and their medical providers.

    As a result of the investigation, the State Bar filed a

complaint alleging,       inter alia, misappropriation      of entrusted

funds with respect to eight of Defendant’s clients.          On 15 March

2013, the DHC held a hearing to determine if Defendant’s alleged

misconduct    warranted     disciplinary   action.    At    the   hearing,

documentary exhibits were received into evidence and testimony
                                              -4-
was heard from, among others, the State Bar’s investigator, two

of    the    eight   clients        who     were    named      in     the      complaint,      and

Defendant.

       The     State        Bar’s         investigator          testified             concerning

Defendant’s trust account activity and bookkeeping for the eight

clients.       His     testimony,         along     with    accompanying          documentary

exhibits,      established          undocumented        disbursements            to   Defendant

and     Defendant’s         assistant,         as       well      as      occasions        where

disbursements        were    made     from     insufficient            client     funds.           In

those instances where Defendant disbursed funds from the trust

account to himself and/or his assistant, a pattern was observed.

Once Defendant received personal injury settlement proceeds on

behalf of a client, Defendant deposited those proceeds into his

trust    account.        Afterwards,         Defendant         withdrew         his    one-third

contingency fee and paid the client a one-third share.                                         The

remaining      funds    were        intended       to   satisfy        medical        liens    and

obligations.         However, in addition to paying                          on the     medical

liens,      Defendant       wrote    additional         checks      to      himself     and    his

assistant      in    varying       amounts     between         $200      and    $600.         As   a

result,      some    medical        providers       with    statutory          liens    against

client      funds    were    not     paid    in     full    for     their       share    of    the

recovery.       To cover shortfalls, Defendant used trust account
                                               -5-
funds belonging to others and not identified to the client to

cover checks written to that client or the client’s medical

providers.

       In his defense, Defendant admitted to poor record keeping

practices but denied misappropriating client funds.                                 Defendant

attributed         the         undocumented           disbursements          to     expenses,

additional legal work, accounting mistakes, and, in some cases,

Defendant claimed the disbursements were at the behest of his

clients.         Both clients who testified at the hearing indicated

that    Defendant         did      not     tell       them   about      any        additional

disbursements made from their account.                           One of the clients,

after being contacted by the State Bar, filed a Client Security

Fund    Application            against        Defendant      claiming         he     took     an

additional disbursement dishonestly.1

       On   19    April        2013,    the    DHC     entered    a   written        order    of

discipline.              The     order’s       findings      of       fact        recite     the

transactions made for each of the eight clients, including the

disbursements        at        issue.         After     reciting      each        undocumented

disbursement made to Defendant and his assistant, the DHC found

that Defendant and his assistant were “not entitled” to the

additional         disbursements              and      concluded       that         Defendant

1
  Defendant reimbursed the client during the pendency of the
State Bar’s investigation.
                                      -6-
“misappropriated” these funds.          The DHC’s order also concludes

that    Defendant    misappropriated        each   disbursement   made    from

insufficient funds and each disbursement made from funds owed to

medical providers with statutory liens.             Furthermore, the order

states:

             91. The misappropriations      . .           .   were
             committed knowingly and willfully.

             92. The misappropriations . . . were not
             authorized   by   the    parties   for   whom
             [Defendant] was holding the funds in trust.

             93. The Hearing Panel specifically finds
             that [Defendant’s] testimony at this hearing
             was not credible.    [Defendant’s] testimony
             was inconsistent with other testimony of his
             at the hearing and at his deposition.
             [Defendant’s]     testimony     was     also
             inconsistent with the documentation and with
             the testimony given by the other witnesses
             at the hearing.

Based   on   its    findings,   the   DHC    concluded,   inter   alia,   that

Defendant “committed the crime of embezzlement” and was subject

to discipline pursuant to N.C. Gen. Stat. § 84-28(b)(2) (2013).

After making additional findings of fact and conclusions of law

regarding discipline, the DHC ordered Defendant disbarred from

the practice of law.      Defendant filed timely notice of appeal.

                            II.   Jurisdiction

       “There shall be an appeal of right by either party from any

final order of the Disciplinary Hearing Commission to the North
                                     -7-
Carolina Court of Appeals.”         N.C. Gen. Stat. § 84-28(h) (2013);

accord N.C. Gen. Stat. § 7A-29(a) (2013).                 Thus, Defendant’s

appeal is properly before this Court.

                                 III. Analysis

     Defendant’s appeal presents three questions for our review:

(1) whether there was sufficient evidence upon which the DHC

could find that Defendant intended to embezzle client funds; (2)

whether    the     DHC   could     impose    discipline        based   on   the

embezzlement of client funds without a criminal conviction; and

(3) whether the DHC’s order conforms to the requirements of

Talford   for    imposing   disbarment      as   a   sanction    for   attorney

misconduct.      We address each in turn.

A. Sufficiency of the Evidence Regarding Intent

     Defendant      challenges     the   sufficiency      of    the    evidence

regarding his intent to embezzle client funds.                   Specifically,

Defendant contends that the State Bar failed to present “clear,

cogent, and convincing” evidence that Defendant knowingly and

willfully misappropriated or embezzled client funds.

     By statute, our review of the DHC’s disciplinary order is

limited to “matters of law or legal inference.”                N.C. Gen. Stat.

§ 84-28(h).      In examining the record, we apply the whole record

test.     N.C. State Bar v. Hunter, ___ N.C. App. ___, ___, 719
                                              -8-
S.E.2d 182, 188 (2011).              “Under the whole record test there must

be substantial evidence to support the findings, conclusions,

and result.        The evidence is substantial if, when considered as

a whole, it is such that a reasonable person might accept as

adequate      to     support    a    conclusion.”            Id.   (quotation      marks,

citations, and alteration omitted); see also Talford, 356 N.C.

at     632,    576    S.E.2d        at    309–10        (describing     this    task   as

determining whether the DHC’s decision “has a rational basis in

the    evidence”      (quotation         marks    and    citations    omitted)).       In

engaging in this inquiry, we consider the evidence supporting

the DHC’s findings as well as evidence tending to contradict

those findings.          Hunter, ___ N.C. App. at ___, 719 S.E.2d at

188.    However, “the mere presence of contradictory evidence does

not eviscerate challenged findings, and [this Court] may not

substitute its judgment for that of the [DHC].”                         Id.     Moreover,

the evidence used by the DHC to support its findings must rise

to the standard of “clear, cogent, and convincing.”                              Talford,

356 N.C. at 632, 576 S.E.2d at 310.

       In     Talford,    our       Supreme      Court    set   forth    a     three-step

process to determine if the DHC’s decision has a rational basis

in the evidence:

              (1) Is there adequate evidence to support
              the order’s expressed finding(s) of fact?
                                              -9-


             (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.                    This three-step process “must be

applied separately” to both the adjudicatory phase of the DHC’s

proceedings      (“Did       the       defendant           commit   the        offense       or

misconduct?”)        and   to    the        dispositional        phase    of    the     DHC’s

proceedings (“What is the appropriate sanction for committing

the offense or misconduct?”).                 Id.

      With   our     standard        of     review     precisely     defined,         we    now

consider Defendant’s first argument on appeal.

      As an initial matter, we note that in Defendant’s principal

brief   to    this     Court,         no     specific       findings      of    fact       were

referenced      as   being      in    error.         Nevertheless,        we    agree      with

Defendant that assignments of error to specific findings of fact

are not required to properly challenge those findings.                                     “The

scope of review on appeal is limited to issues so presented in

the   several    briefs.”            N.C.    R.     App.    P.   28(a).        Accordingly,

because Defendant’s arguments concerning the sufficiency of the

evidence address, in substance, the DHC’s finding that Defendant

“knowingly and willfully”                  misappropriated        or embezzled         client
                                       -10-
funds,    we    review   the   DHC’s       findings   related      to   Defendant’s

intent.

    The crime of embezzlement is defined by N.C. Gen. Stat. §

14-90    (2013)    and   requires      a    showing   of   the     following   four

elements:

               (1) the    defendant   was   the            agent        or
               fiduciary of the complainant;

               (2) pursuant    to    the    terms of the
               defendant’s engagement, he was to receive
               property of the complainant;

               (3) he did receive such property               in    the
               course of his engagement; and

               (4) knowing the property was not his, the
               defendant either converted it to his own use
               or fraudulently misapplied it.

State v. Tucker, ___ N.C. App. ___, ___, 743 S.E.2d 55, 59

(2013) (emphasis added).         “The intent necessary to convict on a

charge of embezzlement is an intent of the agent to embezzle or

otherwise willfully and corruptly use or misapply the property

of the principal for purposes for which the property is not

held.”    State v. Britt, 87 N.C. App. 152, 153, 360 S.E.2d 291,

292 (1987).       “Such intent may be shown by direct evidence, or by

evidence of facts and circumstances from which it may reasonably

be inferred.”       State v. McLean, 209 N.C. 38, 40, 182 S.E. 700,

702 (1935); N.C. State Bar v. Ethridge, 188 N.C. App. 653, 660,
                                        -11-
657 S.E.2d 378, 383 (2008).             “In addition, a person who deposits

funds into a personal account knowing that the money belongs to

others is sufficient evidence to show embezzlement.”                             Ethridge,

188 N.C. App. at 660, 657 S.E.2d at 383.                         Furthermore, “[t]he

intent element for misappropriation is essentially the same as

the crime of embezzlement.”             Id.     Indeed, misappropriation is a

synonym    for    embezzlement.         Id.         Thus,   we     examine       the     whole

record to determine whether there is “substantial” or “clear,

cogent, and convincing” evidence to support the finding that

Defendant knowingly and willfully misappropriated client funds.

     Our review of the record in this case reveals substantial

evidence from which Defendant’s intent to misappropriate client

funds can be reasonably inferred.

     First,       Defendant      knew   the    correct       way      to   document        and

maintain    his    trust    account     yet    failed       to   do      so.     Defendant

testified    that    he    had     previously       been    on     the     Trust    Account

Committee    of     the    State    Bar,      had    attended         Continuing         Legal

Education    workshops      regarding      trust      accounting,          and     had    been

audited by the State Bar on prior occasions.2



2
  The State Bar provides resources and support to ensure that
lawyers manage trusts accounts properly.    The Lawyer’s Trust
Account Handbook examines the Rules of Professional Conduct
pertinent to trust accounting and contains best practices for
North Carolina attorneys. See Lawyer’s Trust Account Handbook,
                                     -12-
     Second,   Defendant      made    numerous      disbursements     from     his

trust account for which he had no supporting documentation.3

     Third, both clients who testified at the hearing indicated

that Defendant did not tell them                 about taking an additional

disbursement   from   their    account,      and    the    clients   were     never

informed   concerning   the     amount      of    the     disbursement   or    its

purpose.

     Fourth, one of these clients filed a Client Security Fund

Application with the State Bar alleging that Defendant took an

additional disbursement from his account dishonestly.                 Testimony

revealed that Defendant reimbursed the client in question after

learning that the client was going to be deposed in the State

Bar’s   investigation   “so    that    [the       client]    would   have     good

feelings towards [him].”

     Fifth, the additional disbursements were often made when

Defendant was in financial need.



The   North    Carolina    State   Bar   (Revised    May   2011),
http://www.ncbar.com/PDFs/Trust%20Account%20Handbook.pdf.
3
  The Lawyer’s Trust Account Handbook indicates that a client’s
file should contain documentation supporting disbursements and
identifies   poor   bookkeeping   as   a  means   of   concealing
embezzlement of client funds.    Id. at 48.   As a best practice
for bookkeeping, “[a] copy of the client’s ledger card may be
provided to the client as a written accounting of the receipt
and disbursement of funds. When this is done, the client should
sign and date the original to show that the client was given a
written accounting of his or her funds . . . .” Id. at 30.
                                       -13-
       Sixth,       Defendant’s       attribution      of     the     additional

disbursements       to    expenses,   additional      legal   work,   accounting

mistakes, and compliance with client requests is inconsistent

with the other record evidence.               For example, for the first

client named in the State Bar’s complaint, Defendant took an

additional disbursement of $250 on 12 March 2010.                      Defendant

testified that this additional disbursement was for additional

legal    services,       namely,   drafting   a   complaint.        However,     the

client testified that she was unaware of this additional fee and

the memo line of the check indicated that the disbursement was

for “Office Expenses Reimbursement.”

       Likewise, for the second client named in the State Bar’s

complaint, Defendant took an additional disbursement of $250 for

himself and another $200 for his assistant on 14 and 19 January

2011, respectively.          Defendant testified that his disbursement

was for work on an unrelated criminal case the client asked

Defendant to handle and that the disbursement to his assistant

was    made    at   the    client’s   request.        However,   there     was    no

evidence of the other criminal case in the record and the memo

line    on    Defendant’s    disbursement     check    read   “fee    to   collect

MedPay.”       The memo line on the check to Defendant’s assistant

indicated that the check was for “office expenses.”
                                             -14-
       As a final example, for the third client named in the State

Bar’s complaint, Defendant took an additional disbursement of

$500     on    20        June    2011.        Defendant     testified       that   this

disbursement was for travel expenses.                     Defendant also testified

that the client consented to the payment.                       However, the client

denied consenting to the payment and the memo line of the check

indicates the additional disbursement was for “legal fees.”

       Based       on    the    foregoing    evidence,     as   well   as   the    other

record evidence presented to this Court, we hold that there was

“substantial”           or   “clear,     cogent,    and   convincing”   evidence        to

support the DHC’s finding that Defendant knowingly and willfully

misappropriated client funds.                While Defendant points to his own

testimony to negate this inference of intent, the DHC found that

Defendant’s             testimony      was    not     credible     based      on    its

inconsistency with other evidence presented at the hearing.                         Our

review     has      confirmed       those     inconsistencies.          Accordingly,

Defendant’s argument regarding the sufficiency of the evidence,

on balance, lacks credibility.

B. The Absence of a Criminal Conviction

       Defendant’s second argument on appeal challenges the DHC’s

decision      to    discipline      Defendant       and   impose   disbarment      as   a

sanction       for        Defendant’s        misconduct     without     a     criminal
                                           -15-
embezzlement       conviction.         Defendant     contends      that       the   State

Bar’s   rules      forbid    the     DHC    from    concluding         that    Defendant

“committed” a felony without first being charged and convicted

of a felony in criminal court.

    Questions concerning the construction and interpretation of

the State Bar’s rules are questions of law that are reviewed de

novo on appeal.        N.C. State Bar v. Brewer, 183 N.C. App. 229,

233, 644 S.E.2d 573, 576 (2007).                  “Under a de novo review, the

court considers the matter anew and freely substitutes its own

judgment for that of the lower tribunal.”                  Craig v. New Hanover

Cnty. Bd. of Educ., 363 N.C. 334, 337, 678 S.E.2d 351, 354

(2009) (quotation marks and citation omitted).

    Here, the DHC’s order concludes as a matter of law that

“[Defendant] committed the crime of embezzlement.”                        As a result

of this conduct, the DHC concluded that Defendant was subject to

discipline    pursuant       to     N.C.   Gen.    Stat.   §    84-28(b)(2),        which

provides     for    attorney        discipline      when       there     has    been    a

“violation    of    the     Rules    of    Professional        Conduct    adopted      and

promulgated by the [State Bar] Council in effect at the time of

the act.”    One of those rules, found to have been violated here,

states “[i]t is professional misconduct for a lawyer to . . .

commit a criminal act that reflects adversely on the lawyer’s
                                       -16-
honesty,     trustworthiness      or   fitness    as      a    lawyer    in       other

respects.”      N.C.    R.    Prof’l    Conduct     8.4(b).        The     official

commentary to the rule states:

           The purpose of professional discipline for
           misconduct is not punishment, but to protect
           the public, the courts, and the legal
           profession.    Lawyer discipline affects only
           the lawyer’s license to practice law.       It
           does not result in incarceration.     For this
           reason,   to    establish   a   violation   of
           paragraph (b), the burden of proof is the
           same as for any other violation of the Rules
           of Professional Conduct: it must be shown by
           clear, cogent, and convincing evidence that
           the lawyer committed a criminal act that
           reflects adversely on the lawyer’s honesty,
           trustworthiness, or fitness as a lawyer.
           Conviction of a crime is conclusive evidence
           that the lawyer committed a criminal act
           although,   to   establish   a  violation   of
           paragraph (b), it must be shown that the
           criminal act reflects adversely on the
           lawyer’s    honesty,    trustworthiness,    or
           fitness as a lawyer.     If it is established
           by clear, cogent, and convincing evidence
           that a lawyer committed a criminal act that
           reflects adversely on the lawyer’s honesty,
           trustworthiness, or fitness as a lawyer, the
           lawyer may be disciplined for a violation of
           paragraph (b) although the lawyer is never
           prosecuted or is acquitted or pardoned for
           the underlying criminal act.

Id. cmt. 3; see also N.C. State Bar v. Rush, 121 N.C. App. 488,

490, 466 S.E.2d 340, 341–42 (1996) (“The rule does not require a

conviction,    only    that   a   criminal    act    be       committed.      .    .   .
                                          -17-
Therefore, conviction of a crime is not a necessary element in a

disciplinary proceeding.”).

       Defendant does not call our attention to this rule, rather,

Defendant cites 27 N.C. Admin. Code 1B.0114(w)(2)(D) (2012) to

support his claim that a criminal conviction is required.                            That

rule   requires     the    DHC    to     consider    disbarment       as    a    possible

sanction if the defendant is found to engage in the “commission

of a felony.”       Id.    Defendant argues that “the plain language of

the    State     Bar’s     Rule     contemplates         a    felony       conviction.”

However, we cannot agree with Defendant’s interpretation given

the    fact      that     the     rule     uses     “commission”        rather      than

“conviction”      and given       the clear mandate found in the State

Bar’s commentary and our caselaw interpreting N.C. R. Prof’l

Conduct 8.4(b).           The rationale for not requiring a criminal

conviction       under    N.C.    R.     Prof’l     Conduct    8.4(b)       is    equally

persuasive        when      interpreting            27       N.C.      Admin.       Code

1B.0114(w)(2)(D).          Thus, because clear, cogent, and convincing

evidence supports the DHC’s conclusion that Defendant committed

the crime of embezzlement in violation of N.C. R. Prof’l Conduct

8.4(b),    the    DHC     was    required     to    consider        disbarment     as   a

possible       sanction         pursuant     to       27      N.C.     Admin.       Code
                                      -18-
1B.0114(w)(2)(D).4       Defendant’s         second   argument       on   appeal    is

without merit.

C. The DHC’s Order and Talford

     Defendant’s      third   argument       on   appeal   is   that      the   DHC’s

order   failed   to   conform    to    the    requirements      of    Talford      for

imposing disbarment as a sanction for attorney misconduct.

     In Talford, our Supreme Court held 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 [a client, the
           administration of justice, the profession,
           or members of the public], 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.

Talford,   356   N.C.   at    638,    576    S.E.2d   at   313.       “Thus,     upon

imposing a given sanction against an offending attorney, the DHC

must provide support for its decision by including adequate and




4
  Notably, the DHC also considered disbarment as a possible
sanction pursuant to 27 N.C. Admin. Code 1B.0114(w)(2)(C), which
states that “[d]isbarment shall be considered where the
defendant is found to engage in: . . . (C) misappropriation or
conversion of assets of any kind to which the defendant or
recipient is not entitled, whether from a client or any other
source.”   Like 27 N.C. Admin. Code 1B.0114(w)(2)(D), the plain
language of this provision does not suggest that a criminal
conviction is required.
                                         -19-
specific      findings        that     address     these      two      key      statutory

considerations.”        Id.

       Here, after concluding that Defendant’s conduct warranted

discipline     in    the     adjudicative       part    of    the    order,      the     DHC

reincorporated       its      previous    findings       of     fact      and    made     16

additional findings of fact regarding discipline.                         Defendant has

not     challenged     these     additional       findings       with      argument       on

appeal, we therefore consider them binding before this Court.

Hunter, ___ N.C. App. at ___, 719 S.E.2d at 188–89.                             Moreover,

because we have determined that the DHC’s finding concerning

Defendant’s intent to misappropriate client funds is supported

by substantial evidence, we consider that fact established as

well.

       With respect to the first inquiry, i.e., whether the order

clearly shows how Defendant’s actions resulted in significant

harm or potential significant harm, we hold that the DHC’s order

is sufficient.         Implicit in the DHC’s conclusion that Defendant

violated      N.C.     R.     Prof’l     Conduct       8.4(b)       and    (c)     “is     a

determination that his misconduct poses a significant potential

harm to clients.”           N.C. State Bar v. Leonard, 178 N.C. App. 432,

446,    632   S.E.2d    183,    191    (2006).         Furthermore,       we     find    the
                                   -20-
following   findings   of   fact   in   the   DHC’s   disciplinary   order

compelling:

            2. Defendant put his own personal interests
            ahead of his clients’ interests.

            . . . .

            7.   Defendant,  by  engaging   in   conduct
            involving                  misappropriation,
            misrepresentation and deceit over a number
            of years and by making false statements
            about his conduct, has shown himself to be
            untrustworthy.

            8. Defendant, through his misappropriation,
            misrepresentation, and deceit, has caused
            harm   to   the   standing   of   the   legal
            profession,   by   undermining    trust   and
            confidence in lawyers and the legal system.

            9. Defendant’s misappropriation has caused
            significant harm to his clients and to third
            parties, namely the medical providers of his
            clients.

            10. Defendant misappropriated funds for his
            own benefit that should have been used for
            the benefit of his clients, either by
            payment to the client or payment to the
            client’s medical provider(s).

            . . . .

            13. . . . [Defendant] has not otherwise made
            any restitution for amounts misappropriated
            from clients. [Defendant] has not rectified
            the deficit in his trust account.

            . . . .

            15. Defendant has failed to acknowledge that
            he misappropriated client funds.   Defendant
                              -21-
         has provided explanations that are not
         consistent with the evidence received at the
         hearing in this matter.

Based on these and other findings, the DHC concluded:

         3. Defendant caused significant harm to his
         clients by misappropriating their funds.

         4. Defendant caused significant harm to
         medical providers who should have received
         payments      from     funds     Defendant
         misappropriated.

         5. Defendant has caused significant harm and
         potential harm to clients whose funds he
         should have in his trust account but for
         whom he has insufficient funds in his trust
         account.

         6.   Defendant’s    repeated    commission   of
         criminal acts reflecting adversely on his
         honesty, trustworthiness or fitness as a
         lawyer, his dishonest and deceitful conduct
         in   placing   false   information   on   trust
         account      checks     to     disguise     his
         misappropriation, and the presentation of
         testimony that conflicted with the credible
         evidence   received    in   the   case   caused
         significant harm to the legal profession by
         undermining trust and confidence in lawyers
         and the legal system.

We believe that in light of these findings and conclusions, the

DHC’s order clearly shows how Defendant’s actions resulted in

significant harm to his clients, the administration of justice,

the profession, and members of the general public.

    Likewise, with respect to the second inquiry, i.e., whether

the order contains a clear showing of why disbarment is the only
                                 -22-
sanction option that can adequately serve to protect the public,

we hold that the DHC’s order is sufficient.            In addition to

considering   and   reciting   all   applicable   factors   relevant   to

attorney discipline found in 27 N.C. Admin. Code 1B.0114(w)(1),

(2), and (3), the DHC’s order stated:

         7. The Hearing Panel has considered lesser
         alternatives and finds that disbarment is
         the   only  sanction   that  can   adequately
         protect the public.    An attorney’s duty to
         preserve funds entrusted to the attorney is
         one of the most sacred that an attorney
         undertakes.     The attorney should never
         violate that duty of trust.

         8. The Hearing Panel considered lesser
         alternatives and finds that suspension of
         Defendant’s license or a public censure,
         reprimand,    or   admonition   would   not   be
         sufficient discipline because of the gravity
         of the actual and potential harm to his
         clients,    the    public,    and   the    legal
         profession caused by Defendant’s conduct,
         and the threat of potential significant harm
         Defendant poses to the public.      The Hearing
         Panel   has    considered   the   evidence    of
         Defendant’s good character and pro bono
         service.    However, given the repeated acts
         of dishonesty, misrepresentation, and deceit
         by [Defendant] established by the evidence
         presented at hearing and the significant
         harm   and     potential    harm    caused    by
         [Defendant] established by the evidence . .
         .   ,  the evidence of Defendant’s good
         character and pro bono service does not
         warrant imposition of a lesser discipline.

         9. The Hearing Panel has considered all
         lesser sanctions and finds that discipline
         short of disbarment would not adequately
                                         -23-
           protect         the    public     for        the   following
           reasons:

           a.         Defendant    engaged   in    misconduct
                      constituting felonies and violations of
                      the trust of his clients and the
                      public;

           b.         Entry of an order imposing less serious
                      discipline would fail to acknowledge
                      the   seriousness   of   the   offenses
                      Defendant committed and would send the
                      wrong message to attorneys and the
                      public regarding the conduct expected
                      of members of the Bar of this State[.]

We   believe       these     entries    clearly     establish     that     the    DHC

considered all lesser sanctions and explain why the DHC felt

disbarment      was    the     only     adequate    sanction      in    this     case.

Accordingly, we hold that the DHC’s ultimate decision to disbar

Defendant has a rational basis in the evidence and is consistent

with our Supreme Court’s decision in Talford.

                                  IV.    Conclusion

     For     the      foregoing       reasons,     we    affirm   the     order     of

discipline disbarring Defendant from the practice of law.

     AFFIRMED.

     Chief Judge MARTIN and Judge ELMORE concur.
