North Carolina State Bar v. Wilson

330 S.E.2d 280 (1985)

The NORTH CAROLINA STATE BAR v. Charleene WILSON, Attorney.

No. 8410NCSB1011.

Court of Appeals of North Carolina.

June 4, 1985.

*282 A. Root Edmonson, Raleigh, for North Carolina State Bar.

Wayne Eads, Raleigh, for defendant-appellant.

*283 ARNOLD, Judge.

The first issue presented for review is whether the committee erred in finding that the letters from Mr. Hodge were answers within the meaning of the rules, that as such the defendant had a duty to disclose their service upon her by Mr. Hodge and that by failing to do so she violated DR1-102(A)(4)(5) and (6) and DR7-102(A)(3) by deliberately misleading the court in a manner which was prejudicial to the administration of justice. Assuming arguendo that the committee improperly concluded that the letters were "answers" to the divorce complaint, even so we find no error in the committee's conclusion that the failure to reveal the existence of the letters to the trial court was a violation of the Code of Professional Responsibility.

In her argument defendant contends that since EC 4-5 of the Code of Professional Responsibility indicates that a lawyer should not use information acquired during her representation of a client to the disadvantage of the client, she should not have disclosed the letters to the court. In support of this argument she also cites C.P.R. Opinion # 200, issued by the Bar in October 1978, which held that an attorney should not inform the court that at sometime previous thereto the client had perpetrated a fraud in obtaining the divorce.

The fact situation set forth in the C.P.R. Opinion is distinguishable since the fraud already had occurred at the time the attorney became involved in the case. Furthermore, the defendant's actions did not consist of merely failing to disclose items which might have put her client at a disadvantage but she prepared a document which aided her client in perpetrating the fraud.

DR1-102(A)(4) of the Code of Professional Responsibility prohibits an attorney from "[e]ngaging in conduct involving dishonesty, fraud, deceit, or misrepresentation." Wilson clearly engaged in conduct which involved fraud, dishonesty, deceit and misrepresentation when she failed to inform the court of Mr. Hodge's letters which contained return addresses, while at the same time presenting to the court an affidavit, which she had drafted, in which her client swore "[t]hat the whereabouts of the defendant are [sic] unknown to the Plaintiff and cannot with due diligence be ascertained, nor can the Defendant's post office address be ascertained with reasonable diligence." When she engaged in this deceitful activity Mrs. Wilson was also involved in professional conduct prejudicial to the administration of justice and which adversely reflects upon her fitness to practice law in violation of DR1-102(5) and (6). Therefore, we find no merit in defendant's exception to Conclusion Number 4.

We also note that under this assignment of error defendant has excepted to Conclusion of Law Number 5 and seems to contend that the committee's conclusion that the letters constitutes "answers" affects the validity of this conclusion as well. As noted above it is clear that defendant's actions in preparing the false affidavit involved conduct involving fraud, deceit and misrepresentation. Furthermore, DR7-102(A)(4)(5) and (6) provides:

(A) In his representation of a client, a lawyer shall not: .... (4) Knowingly use perjured testimony or false evidence. (5) Knowingly make a false statement of law or fact. (6) Participate in the creation or preservation of evidence when he knows or it is obvious that the evidence is false.

We also believe that the committee properly concluded that the defendant's actions clearly violated the disciplinary rules set forth above. The evidence and findings of fact clearly show that the defendant drafted, presented to her client and then offered into evidence an affidavit which she knew to be false.

For the above stated reasons, we hold that regardless of whether the committee properly concluded that Mr. Hodge's letters constituted answers to the complaint, it was justified in making conclusions of law numbers 4 and 5. Furthermore, *284 we hold that conclusions of law numbers 4 and 5 standing alone are sufficient to support the committee's Order of Discipline.

Next defendant argues that finding of fact number 2 and finding of fact number 7 are not supported by the evidence. The test for determining whether the findings are supported by the evidence is the whole record test. Under this test there must be substantial evidence to support the committee's findings, conclusions and results. N.C. State Bar v. DuMont, 304 N.C. 627, 286 S.E.2d 89 (1982). A review of the record indicates that there was substantial evidence to support the committee's finding of fact number 2 and number 7. The defendant's argument is without merit.

By her third assignment of error, defendant contends that under the whole record test the findings of fact and the allegations of misconduct are insufficient to support the order of discipline because they fail to show an intent on the part of the defendant to deceive, defraud or make misrepresentation to the court in the Hodges matter. We disagree, because as stated earlier the evidence clearly shows that defendant engaged in a course of conduct involving deceit, misrepresentation and fraud. Thus, we hold that there was substantial evidence to support the committee's Order of Discipline.

Finally, defendant argues that the Order of Discipline entered in this action was in excess of that authorized by law. She states that while the one-year suspension imposed was technically within the bounds allowed by the statute, it was improper because it was "vastly more punishment than has been meted out to other attorneys in similar situations."

G.S. 84-28(h) provides that our review of these cases is limited to "matters of law or legal inference," therefore, so long as the punishment imposed is within the limits allowed by the statute this Court does not have the authority to modify or change it. N. C. State Bar v. DuMont, 304 N.C. 627, 632, 286 S.E.2d 89, 92 (1982). The defendant's discipline is, by her own admission, authorized by the statute, it is, therefore, not subject to review.

The judgment appealed from is hereby

Affirmed.

MARTIN and PARKER, JJ., concur.