The Harm

The North Carolina Court of Appeals affirmed findings of misconduct but remanded to reconsider the sanction public censure in a custody matter.

The case involved an appeal of the sanction imposed by the Disciplinary Hearing Commission.

The court applies the “whole record” test as the standard of review.

An unauthorized communication

Defendant contends “[t]he overwhelming, uncontroverted evidence in this matter is that Caldwell did not at any time ever represent [Louise] in the civil case[.]” Defendant concedes Caldwell represented Louise in the Juvenile Case but contends because her representation was limited to the Juvenile Case, he had no obligation to seek Caldwell’s consent to use Louise’s affidavit in the Civil Case. Defendant also asserts there could be no violation of RPC 4.2 because he did not directly procure the affidavit.

However, Defendant ignores the DHC’s finding that he did communicate directly with Louise regarding custody of Sally. This communication began the series of events culminating in Defendant encouraging the Connors to obtain a statement helpful to their case from Louise and, further, his use of Louise’s affidavit in the Civil Case without Caldwell’s consent in an effort to obtain custody of Sally for his clients.

Moreover, Defendant’s interpretation of RPC 4.2 is too narrow. Comment 8 to the Rule makes clear the Rule “applies to communications with any person, whether or not a party to a formal adjudicative proceeding, contract or negotiation, who is represented by counsel concerning the matter to which the communication relates.” N.C. St. B. Rev. R. Prof’l Conduct r. 4.2 cmt. 8.

Here, the matter under discussion was custody of Sally. Louise was represented by Caldwell in the Juvenile Case, which concerned custody of Sally. Defendant filed the Civil Case on behalf of the Connors, seeking custody of Sally and naming Louise and DSS as adverse parties, as an alternative to the Juvenile Case. Defendant was clearly aware the Juvenile Case and Civil Case overlapped on the issue of custody of Sally. Indeed, Defendant specifically approached Judge Fletcher on his emergency custody motion precisely because Judge Fletcher was presiding over the Juvenile Case. Applying the whole-record test, the DHC’s findings were supported by substantial evidence rising to the level of clear, cogent, and convincing, and its findings support the conclusion Defendant violated RPC 4.2 by communicating with Louise regarding custody of Sally while knowing Louise was represented by Caldwell.

Ex parte contact with judge

While the evidence before the DHC of Defendant’s ex parte interaction with Judge Fletcher is conflicting and capable of interpretation, the whole-record test “does not allow the reviewing court to replace the [Committee’s] judgment as between two reasonably conflicting views[.]” Nelson, 107 N.C. App. at 550, 421 S.E.2d at 166 (alteration in original) (citations and quotation marks omitted). The DHC’s determination—Defendant was seeking to conduct an immediate hearing in the absence of opposing counsel—is supported by substantial evidence in the record.

Remand

Notably, on appeal, both parties focus on the potential harm to Louise; however, the DHC’s Order makes clear it is imposing Censure on the basis of the potential significant harm to the administration of justice and the legal profession. The DHC references these concepts and generally found the negative impact of impermissible ex parte communications on the efficient resolution of legal issues and judicial impartiality. However, the DHC made no ultimate finding or conclusion explaining how Defendant’s misconduct in this case specifically resulted in potential significant harm to the administration of justice and the legal profession. Consequently, we remand this matter to the DHC for the limited purposes of “allowing the DHC to make proper findings of fact and conclusions of law[,] and reconsideration of [D]efendant’s sanction pursuant to N.C. Gen. Stat. § 84-28(c).” N.C. State Bar v. Sossomon, 197 N.C. App. 261, 279, 676 S.E.2d 910, 922 (2009).

(Mike Frisch)