Attorneys – Rules of Professional Responsibility – Rule 8.4(c) – Order of Discipline

The Disciplinary Hearing Commission of the North Carolina State Bar erred in finding defendant attorney knowingly made false statements of fact and concluding defendant’s statements to an associate attorney employed at defendant’s law firm violate Rule 8.4(c) of the North Carolina Rules of Professional Conduct.

We reversed the Order of Discipline entered by the DHC of the North Carolina State Bar.

Defendant attorney appealed from an Order of Discipline by a Disciplinary Hearing Panel of the DHC of the North Carolina State Bar. The issues on appeal were whether the DHC erred in finding defendant knowingly made false statements of fact and concluding defendant’s statements to an associate attorney employed at defendant’s law firm violate Rule 8.4(c) of the North Carolina Rules of Professional Conduct.

First, defendant argued the record did not support a finding by clear, cogent, and convincing evidence he knowingly made false statements to the associate in a February 2021 email. We agreed. In making its findings, the State Bar relied on defendant’s email and a May 2020 Webex recording and transcript. These documents reflect defendant’s February 2021 statements were incorrect; however, they do not establish defendant knew these statements were incorrect. Applying the whole-record test, there is not clear, cogent, and convincing evidence to support the Order’s Finding of Fact defendant knew his statements were false at the time he made those statements in his email to the associate. Therefore, the court erred in finding defendant “knew these statements were false at the time he made them.”

Next, defendant argued the DHC erred in concluding his statements to the associate in the email violated Rule 8.4(c) of the North Carolina Rules of Professional Conduct. The State Bar contended defendant’s “false statement adversely reflects on his fitness as an attorney.” The DHC’s order found defendant made statements concerning some of the associate’s personal struggles during a Webex call; defendant denied making these statements in an email; and defendant’s statements to the associate about his Webex discussion with K.D. were false. The order did not, however, find that defendant’s statements reflected on defendant’s fitness as a lawyer. Further, nothing in the order indicates any rationale for why such a misstatement—knowing or not—would justify discipline under Rule 8.4(c) in this particular case. Moreover, the State Bar on appeal offers no support for its contention that a misstatement in the midst of a professional dispute with another lawyer necessarily constitutes conduct reflecting adversely on a lawyer’s fitness as a lawyer.

Therefore, the DHC’s findings did not support its conclusion defendant violated Rule 8.4(c) of the North Carolina Rules of Professional Responsibility. The DHC erred in concluding grounds existed to discipline defendant under N.C. Gen. Stat. § 84-28(b)(2).

Reversed.

The North Carolina State Bar v. DeMayo (Lawyers’ Weekly No. 011-044-24, 10 pp.) (Tobias Hampson, J.) Appealed from the Disciplinary Hearing Commission of the North Carolina State Bar. The North Carolina State Bar, by Deputy Counsel Kathryn H. Shields and Katherine Jean, for plaintiff-appellee; Womble Bond Dickinson LLP, by Raymond M. Bennett, James P. Cooney III and Jonathon D. Townsend, for defendant-appellant. North Carolina Court of Appeals