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COA upholds suspension for lawyer who cursed out magistrate

A two-year suspension handed down to an Asheville attorney who directed a vulgar expletive toward a magistrate judge was appropriate because a magistrate is a “tribunal” within the meaning of the state’s Rules of Professional Conduct, the North Carolina Court of Appeals has ruled.

Jennifer Nicole Foster was suspended from the practice of law for two years in September 2016 because of her behavior in front of a Buncombe County magistrate in 2011. As previously reported by Lawyers Weekly, Foster went to the magistrate’s office in the county’s detention center to inquire about arrest warrants that she had been told had been issued for several members of the Occupy Asheville movement. Upon entering, Foster asked Magistrate Amanda Fisher “what the hell is going on around here” regarding the warrants.

Fisher warned Foster to watch her language and told her that she was in a courtroom. (Foster said she disputes multiple aspects of Fisher’s version of events.) Fisher informed Foster, also an Occupy member, that there were no warrants for her arrest, but office policy prohibited Fisher from providing information about outstanding warrants on other individuals. Foster responded “what the f— is going on around here,” prompting Fisher to warn Foster again, but Foster nevertheless repeated the profanity multiple times.

Fisher held Foster in contempt of court. Foster’s criminal contempt conviction was overturned on procedural grounds on appeal in 2013. Foster subsequently appealed her suspension, which is stayed for its duration so long as Foster complies with certain conditions. She contended that a magistrate is not a “tribunal” as defined by the rules of professional conduct, and thus the state bar had erred in finding that she had violated the rule against lawyers engaging in “undignified or discourteous conduct that is degrading to a tribunal.”

In a Dec. 19 opinion, the Court of Appeals unanimously rejected Foster’s argument and affirmed the suspension. Judge Rick Elmore, writing for the court, found that the core functions of tribunals and magistrates are similar. Even though a magistrate’s jurisdiction is limited, a magistrate can render a binding legal judgment, enter judgments for pre-determined infractions, and enter orders carrying penalties including fines and imprisonment. Further, magistrates are created in the same constitutional article as the state’s judicial branch and are declared officers of the district court.

Foster argued that a magistrate did not constitute a tribunal in this case because the signage at the detention center only indicated an office and not a court. (Depending on the jurisdiction, a magistrate may have a courtroom or an office.) But the appeals court rejected this argument, finding that the signage was not a dispositive issue.

“Here, defendant made vulgar and profane statements toward and in the presence of Magistrate Fisher, who is a judicial officer of the district court,” Elmore wrote. “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.”

Foster represented herself on appeal. She said that she intends to ask the state’s Supreme Court to hear her case. Foster contends that the court erred in finding that magistrates constitute a tribunal as a matter of law, and argues instead that the question should be decided on a case-by-case basis.

“The court did not address my extensive arguments that the definition of tribunal is a body convened to hear a dispute or to decide a contested matter,” Foster said. All throughout the rules of professional conduct [in] all the different places where it references tribunals, it clearly refers to a body that’s making a decision on a contested matter. I’ve never had any problems in any court of law, and I never would have cursed if I were before a body that was contesting a matter.”

Katherine Jean and David Johnson represented the state bar.

The 13-page decision is North Carolina State Bar v. Foster (Lawyers Weekly No. 011-397-17). The full text of the opinion is available online at nclawyersweekly.com.

Follow David Donovan on Twitter @NCLWDonovan

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