Disliking rules no excuse not to follow them

A one-year suspension handed down to a Greensboro attorney by the North Carolina State Bar has been upheld by the state’s Court of Appeals in a unanimous unpublished decision.

Jeffrey Berman had prepared a child custody complaint on behalf of the grandmother of a five-month-old who had been hospitalized with serious injuries. Berman left essential information out of the complaint, however, which led to the Department of Social Services placing the child in foster care for six months, an outcome the grandmother had sought to avoid. The grandmother filed a grievance against Berman with the state bar in August 2011.

Later that year, and again the following year, Berman submitted applications to the state’s Dispute Resolution Commission to renew his certification as a mediator. On both applications he failed to disclose the pending grievance against him, despite being required to do so. Later, in an unrelated matter, Berman approached a Guilford County District Court judge in a hallway to get the judge’s signature on an ex parte motion, without telling the judge that the motion had previously been denied by another judge.

In May 2013 the state’s Disciplinary Hearing Commission suspended Berman’s license to practice law for one year. Berman appealed, arguing 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. His suspension was stayed during the appeal.

The Court of Appeals rejected Berman’s appeal, finding that in all three cases, Berman had either made false statements or intentionally withheld pertinent information. On the issue of the Berman’s hallway conversation with the judge, the court said it had trouble even understanding Berman’s argument. Apparently, Berman didn’t like the court’s rules in Guilford County and figured he was therefore entitled to a free pass on them, an argument that did not impress the court.

“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,” Judge Ann Marie Calabria wrote.

The court also found that the one-year suspension was an appropriate sanction given the misconduct.

Two weeks ago, we discussed in this space how the appellate courts are not particularly likely to overturn discipline by the state bar, and this decision is one more piece of evidence for that. But in this case, the court not only rejected the attorney’s argument, the judges seemed actively annoyed at the attorney’s combative stance, finding that “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.”

As attorneys, much of what we do depends on honesty and the integrity of our word. If we make false representations to our colleagues, it drives cracks into the trust that underpins our entire adversarial system of justice. Although the court didn’t address this, it seems very much to me that given the pattern of dishonesty displayed in this case, the DHC would have been well within its sound discretion to hand down an even longer suspension if it had chosen to.

North Carolina Lawyers Weekly’s regular Ethics & Professionalism column covers bar discipline, malpractice suits and other related topics. Follow columnist David Donovan on Twitter @NCLWDonovan