{ "id": 8527937, "name": "THE NORTH CAROLINA STATE BAR v. J. BRUCE MULLIGAN", "name_abbreviation": "North Carolina State Bar v. Mulligan", "decision_date": "1991-02-05", "docket_number": "No. 9010NCSB553", "first_page": "524", "last_page": "529", "citations": [ { "type": "official", "cite": "101 N.C. App. 524" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "94 ALR3d 846", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "opinion_index": -1 }, { "cite": "58 L.Ed.2d 124", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1978, "opinion_index": 0 }, { "cite": "439 U.S. 830", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11354337, 11354755, 11354505, 11355114, 11354701, 11354576, 11355217, 11354834, 11355026, 11354643, 11354933, 11354429 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/us/439/0830-01", "/us/439/0830-07", "/us/439/0830-03", "/us/439/0830-11", "/us/439/0830-06", "/us/439/0830-04", "/us/439/0830-12", "/us/439/0830-08", "/us/439/0830-10", "/us/439/0830-05", "/us/439/0830-09", "/us/439/0830-02" ] }, { "cite": "241 S.E.2d 684", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "689" } ], "opinion_index": 0 }, { "cite": "294 N.C. 382", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573223 ], "year": 1978, "pin_cites": [ { "page": "390" } ], "opinion_index": 0, "case_paths": [ "/nc/294/0382-01" ] }, { "cite": "357 S.E.2d 379", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "86 N.C. App. 291", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12128337 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nc-app/86/0291-01" ] }, { "cite": "332 S.E.2d 482", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "314 N.C. 117", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4694848, 4685635, 4691143, 4696177, 4697201 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc/314/0117-03", "/nc/314/0117-02", "/nc/314/0117-04", "/nc/314/0117-05", "/nc/314/0117-01" ] }, { "cite": "326 S.E.2d 320", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "73 N.C. App. 349", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524018 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc-app/73/0349-01" ] }, { "cite": "212 S.E.2d 561", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "25 N.C. App. 169", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551828 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/nc-app/25/0169-01" ] }, { "cite": "277 S.E.2d 811", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "52 N.C. App. 60", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12169986 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc-app/52/0060-01" ] } ], "analysis": { "cardinality": 542, "char_count": 11718, "ocr_confidence": 0.78, "pagerank": { "raw": 7.624508387156443e-08, "percentile": 0.4506824529152086 }, "sha256": "4638c6ce19f9cf4a40bf83f8175d8238b034518ba55ba027f54cf44a0d22c499", "simhash": "1:bf7be9836e06b8ab", "word_count": 1871 }, "last_updated": "2023-07-14T19:54:53.681770+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Wells and Orr concur." ], "parties": [ "THE NORTH CAROLINA STATE BAR v. J. BRUCE MULLIGAN" ], "opinions": [ { "text": "HEDRICK, Chief Judge.\nDefendant first contends \u201cthe Hearing Committee erred by refusing to consider the affidavit of Selwyn Rose upon objection by plaintiff when nine other affidavits were admitted without objection of plaintiff.\u201d We disagree.\nThe record discloses the following: The affidavit which defendant\u2019s counsel argues should have been admitted was that of Dr. Selwyn Rose, a psychiatrist in Winston-Salem, North Carolina who had conducted a psychological examination of defendant and interviewed him for approximately two hours on 10 November 1989, just five days prior to the hearing of this case. The affidavit itself indicates that it was signed and notarized on 14 November 1989, the day before the hearing. Defendant\u2019s counsel attempted to introduce the affidavit during his redirect examination of defendant. Plaintiff\u2019s counsel objected to the affidavit being admitted into evidence on the grounds that \u201c[Dr. Rose] has . . . drawn a lot of conclusions about what precipitated the things that are in controversy here today, which obviously are conclusions that he\u2019s drawn in talking only to Mr. Mulligan and hearing just his version of what has happened.\u201d Defendant\u2019s counsel responded to plaintiff\u2019s objection as follows:\nMr. ROBINSON: Well, I realize that it is an affidavit rather than a deposition. It was something delivered quite late in the proceedings. However, I think that Mr. Edmonson\u2019s objections go more to the credibility of the document than to its truthfulness or admissibility.\nThe Chairman of the Hearing Committee sustained plaintiff\u2019s objection and refused to allow the affidavit to be admitted into evidence.\nRule 801(c) of the North Carolina Rules of Evidence defines hearsay as \u201ca statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.\u201d Rule 802 of the North Carolina Rules of Evidence further provides: \u201c[h]earsay is not admissible except as provided by statute or by these rules.\u201d\nDefendant\u2019s counsel sought to introduce Dr. Rose\u2019s affidavit during defendant\u2019s testimony. At no time has defendant attempted to show that Dr. Rose was unavailable to testify at the hearing on 15 November 1989. Under these circumstances, Dr. Rose\u2019s affidavit was clearly inadmissible hearsay, and it was incumbent upon defendant to show that the affidavit could have been admitted under one of the exceptions to the general rule. Defendant, however, did not argue at the hearing nor does he argue in his brief on appeal that the affidavit would be admissible under any exception to the hearsay rule.\nInstead, defendant argues that \u201c[a]dministrative hearings are not subject to the same stringent eviden[t]iary rules as jury trials . ...\u201d We note, however, that Article IX, Section 14(17) of the Rules and Regulations of the North Carolina State Bar provides in pertinent part:\nIn any hearing admissibility of evidence shall be governed by the rules of evidence applicable in the superior court of the State at the time of the hearing.\nThus, the Chairman of the Hearing Committee was bound to apply the Rules of Evidence, including the rules excluding hearsay statements, as in any other case.\nDefendant further argues that the affidavit should have been admitted because \u201cnine affidavits reflecting upon defendant\u2019s reputation and character were offered and admitted into evidence without objection\u201d and \u201c[b]y the admission of the other affidavits, plaintiffs [sic] objection was waived.\u201d Defendant cites us to Fidelity Bank v. Garner, 52 N.C. App. 60, 277 S.E.2d 811 (1981), and Gaddy v. Bank, 25 N.C. App. 169, 212 S.E.2d 561 (1975), for the proposition that \u201cexceptions to admission of evidence should not be sustained when similar evidence of like import has already been introduced or thereafter introduced without objection.\u201d Defendant, however, fails to demonstrate how Dr. Rose\u2019s affidavit, containing his report of the psychological exam he performed on defendant and his conclusions drawn therefrom, is in any way \u201csimilar and of like import\u201d to the nine affidavits reflecting on defendant\u2019s reputation and character which were admitted into evidence without objection. Furthermore, the fact that nine affidavits attesting to defendant\u2019s reputation and character were admitted into evidence and considered by the committee tends to show that defendant was not prejudiced by the exclusion of the particular affidavit about which he now complains.\nWe find defendant\u2019s arguments with respect to this contention to be wholly frivolous and without basis in fact or law. We further note that defendant never attempted to depose Dr. Rose which would have afforded plaintiff an opportunity to cross-examine him with respect to this matter. See N.C. State Bar v. Sheffield, 73 N.C. App. 349, 326 S.E.2d 320, cert. denied, 314 N.C. 117, 332 S.E.2d 482 (1985). For the foregoing reasons, we hold the Hearing Committee did not err in excluding Dr. Rose\u2019s affidavit from evidence.\nDefendant next contends \u201cthe Committee erred in finding that defendant violated Rules 1.2(B) and (C) of the Rules of Professional Conduct.\u201d Again, we disagree.\nIn the present case, defendant admitted that he had transferred funds from his trust account into his general account for office purposes and into his personal savings account, and the Hearing Committee made detailed findings of fact with respect to these transfers. The Hearing Committee then concluded as a matter of law that defendant had violated Rules 1.2(B) and (C) \u201c[b]y removing funds belonging to his clients from his trust account and appropriating those funds to his own use.\u201d On appeal, defendant argues that although these transfers constitute violations of Rules 10.1(A) and (C), \u201cthe record is devoid of any evidence that defendant committed any acts constituting clear, cogent and convincing evidence that he violated [Rules 1.2(B) and (C)].\u201d\nRules 1.2(B) and (C) of the Rules of Professional Conduct provide:\nIt is professional misconduct for a lawyer to:\n(B) Commit a criminal act that reflects adversely on the lawyer\u2019s honesty, trustworthiness or fitness as a lawyer in other respects;\n(C) Engage in conduct involving dishonesty, fraud, deceit or misrepresentation;\nDefendant first asserts that he has not committed \u201ca criminal act\u201d in violation of Rule 1.2(B). This Court has held, however, that evidence tending to show that an attorney deposited funds belonging to his client into his own personal account rather than into his trust account was sufficient to support a charge of embezzlement. State v. Melvin, 86 N.C. App. 291, 357 S.E.2d 379 (1987). Defendant tries to distinguish his case from Melvin by the fact that at all times he intended to return and did in fact return the transferred funds to his trust account. \u201cIt is no defense to a prosecution for embezzlement, however, that the defendant intended to return the property obtained or was able and willing to do so at a later date.\u201d State v. Agnew, 294 N.C. 382, 390, 241 S.E.2d 684, 689, cert. denied, 439 U.S. 830, 58 L.Ed.2d 124 (1978).\nDefendant further asserts that it was error for the Committee to conclude that he had violated Rule 1.2(C) because \u201c[t]here is absolutely no evidence that [he] committed fraud, lied to clients or intended to deceive anyone.\u201d In making this argument, defendant disregards the language in Rule 1.2(C) which also prohibits lawyers from engaging in conduct involving \u201cdishonesty.\u201d Certainly, conduct sufficient to support a charge of embezzlement would also constitute conduct involving dishonesty.\nTherefore, we find the Hearing Committee\u2019s conclusion that defendant had violated Rules 1.2(B) and (C) of the Rules of Professional Conduct by removing his client\u2019s funds from his trust account and appropriating those funds to his own use was amply supported by the facts found, and that the Committee\u2019s detailed findings of fact were supported by clear, cogent and convincing evidence in the record. The Order of Discipline entered by the Hearing Committee based upon these findings and conclusions will be affirmed.\nAffirmed.\nJudges Wells and Orr concur.", "type": "majority", "author": "HEDRICK, Chief Judge." } ], "attorneys": [ "A. Root Edmonson for plaintiff, appellee.", "Hendrick, Zotian, Cocklereece & Robinson, by Gray Robinson, for defendant, appellant." ], "corrections": "", "head_matter": "THE NORTH CAROLINA STATE BAR v. J. BRUCE MULLIGAN\nNo. 9010NCSB553\n(Filed 5 February 1991)\n1. Attorneys at Law \u00a7 87 (NCI4th)\u2014 disciplinary hearing-affidavit of psychiatrist excluded \u2014defendant not prejudiced\nA hearing committee of the Disciplinary Hearing Commission of the State Bar did not err in excluding from evidence an affidavit of a psychiatrist, since defendant did not attempt to show that the witness was unavailable to testify at the hearing and the affidavit was thus inadmissible hearsay; defendant did not argue that the affidavit would be admissible under any exception to the hearsay rule; and plaintiff did not waive its objection to admission of the affidavit where defendant made no showing that the affidavit, containing the report of a psychological exam performed on defendant and conclusions drawn therefrom, was in any way similar and of like import to the nine affidavits reflecting on defendant\u2019s reputation and character which were admitted into evidence without objection.\nAm Jur 2d, Attorneys at Law \u00a7 94.\n2. Attorneys at Law \u00a7 77 (NCI4th) \u2014 client\u2019s funds deposited to personal account \u2014embezzlement \u2014intent to return funds no defense\nEvidence tending to show that an attorney deposited funds belonging to his client into his own personal account rather than into his trust account was sufficient to support a charge of embezzlement, and it was no defense that at all times he intended to return and did in fact return the transferred funds to his trust account; moreover, conduct sufficient to support a charge of embezzlement would also constitute conduct involving dishonesty and the hearing committee therefore properly determined that defendant violated Rules 1.2(B) and (C) of the Rules of Professional Conduct.\nAm Jur 2d, Attorneys at Law \u00a7 51.\nAttorney\u2019s commingling of client\u2019s funds with his own as ground for disciplinary action \u2014 modern cases. 94 ALR3d 846.\nAPPEAL by defendant from an order of the Disciplinary Hearing Committee of the North Carolina State Bar entered on 11 January 1990. Heard in the Court of Appeals 14 January 1991.\nOn 23 August 1989, plaintiff, The North Carolina State Bar, filed a complaint against defendant, a practicing attorney, based upon his alleged violations of Rules 1.2(B) and (C) and Rules 10.1(A) and (C) of the Rules of Professional Conduct.\nOn 15 November 1989, a hearing was held before a hearing committee of the Disciplinary Hearing Commission of the State Bar. Following the hearing, the committee made detailed findings of fact and concluded that:\nDefendant\u2019s foregoing actions constitute grounds for discipline pursuant to N.C. Gen. Stat. Sec. 84-28(b)(2) in that Defendant violated the Rules of Professional Conduct as follows:\n(a) By removing funds belonging to his clients from his trust account and appropriating those funds to his own use, Defendant committe[d] criminal acts that reflect adversely on the lawyer\u2019s honesty, trustworthiness or fitness as a lawyer in other respects in violation of Rule 1.2(B) and engaged in conduct involving dishonesty, fraud, deceit in violation of Rule 1.2(C).\n(b) By failing to preserve his clients\u2019 funds received in a fiduciary capacity separately from his own funds in a trust account, Defendant violated Rules 10.1(A) and (C).\nBased upon these conclusions of law, the committee entered an order of discipline on 11 January 1990, suspending defendant from the practice of law for a period of three years. Defendant appealed.\nA. Root Edmonson for plaintiff, appellee.\nHendrick, Zotian, Cocklereece & Robinson, by Gray Robinson, for defendant, appellant." }, "file_name": "0524-01", "first_page_order": 552, "last_page_order": 557 }