{ "id": 11092737, "name": "THE NORTH CAROLINA STATE BAR, Plaintiff/Appellee v. DOUGLAS S. HARRIS, ATTORNEY, Defendant", "name_abbreviation": "North Carolina State Bar v. Harris", "decision_date": "2000-04-04", "docket_number": "No. COA99-580", "first_page": "207", "last_page": "221", "citations": [ { "type": "official", "cite": "137 N.C. App. 207" } ], "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": "177 S.E. 176", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1934, "pin_cites": [ { "page": "177" } ], "opinion_index": 0 }, { "cite": "207 N.C. 362", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626000 ], "year": 1934, "pin_cites": [ { "page": "363" } ], "opinion_index": 0, "case_paths": [ "/nc/207/0362-01" ] }, { "cite": "252 S.E.2d 784", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "296 N.C. 638", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569874 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc/296/0638-01" ] }, { "cite": "59 S.E. 134", "category": "reporters:state_regional", "reporter": "S.E.", "weight": 2, "year": 1907, "pin_cites": [ { "parenthetical": "holding that proof to impeach a notary's certificate must be clear and convincing" } ], "opinion_index": 0 }, { "cite": "145 N.C. 339", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11253399 ], "year": 1907, "pin_cites": [ { "parenthetical": "holding that proof to impeach a notary's certificate must be clear and convincing" } ], "opinion_index": 0, "case_paths": [ "/nc/145/0339-01" ] }, { "cite": "235 S.E.2d 828", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "pin_cites": [ { "parenthetical": "holding that a judge must order in camera inspection when a specific request is made at trial for disclosure of evidence which is in the State's possession and which is obviously relevant, competent and not privileged" } ], "opinion_index": 0 }, { "cite": "293 N.C. 105", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561617 ], "year": 1977, "pin_cites": [ { "parenthetical": "holding that a judge must order in camera inspection when a specific request is made at trial for disclosure of evidence which is in the State's possession and which is obviously relevant, competent and not privileged" } ], "opinion_index": 0, "case_paths": [ "/nc/293/0105-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 84-31", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1995, "pin_cites": [ { "parenthetical": "stating that \"the North Carolina State Bar . . . may authorize counsel to employ assistant counsel, investigators ... in such numbers as it deems necessary. . . .\"" } ], "opinion_index": 0 }, { "cite": "466 S.E.2d 317", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "parenthetical": "holding that the trial court erred reversibly by releasing certain documents to plaintiffs without addressing defendants' claims that those documents were privileged" } ], "opinion_index": 0 }, { "cite": "121 N.C. App. 425", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11917629 ], "year": 1996, "pin_cites": [ { "parenthetical": "holding that the trial court erred reversibly by releasing certain documents to plaintiffs without addressing defendants' claims that those documents were privileged" } ], "opinion_index": 0, "case_paths": [ "/nc-app/121/0425-01" ] }, { "cite": "229 S.E.2d 191", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "pin_cites": [ { "parenthetical": "holding that any materials prepared in anticipation for any litigation by a party from whom discovery is sought are protected under the rule of civil procedure governing the scope of discovery" } ], "opinion_index": 0 }, { "cite": "291 N.C. 19", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8557249 ], "year": 1976, "pin_cites": [ { "parenthetical": "holding that any materials prepared in anticipation for any litigation by a party from whom discovery is sought are protected under the rule of civil procedure governing the scope of discovery" } ], "opinion_index": 0, "case_paths": [ "/nc/291/0019-01" ] }, { "cite": "708 A.2d 568", "category": "reporters:state_regional", "reporter": "A.2d", "case_ids": [ 688136 ], "weight": 3, "year": 1998, "pin_cites": [ { "page": "570" }, { "page": "571" } ], "opinion_index": 0, "case_paths": [ "/vt/167/0379-01" ] }, { "cite": "91 L. Ed. 2d 451", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1947, "opinion_index": 0 }, { "cite": "329 U.S. 495", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6158152 ], "year": 1947, "opinion_index": 0, "case_paths": [ "/us/329/0495-01" ] }, { "cite": "477 S.E.2d 697", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "699" } ], "opinion_index": 0 }, { "cite": "124 N.C. App. 495", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11889910 ], "year": 1996, "pin_cites": [ { "page": "498" } ], "opinion_index": 0, "case_paths": [ "/nc-app/124/0495-01" ] }, { "cite": "406 S.E.2d 613", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "616" } ], "opinion_index": 0 }, { "cite": "103 N.C. App. 527", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522023 ], "year": 1991, "pin_cites": [ { "page": "532" } ], "opinion_index": 0, "case_paths": [ "/nc-app/103/0527-01" ] }, { "cite": "509 S.E.2d 165", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1998, "pin_cites": [ { "page": "170", "parenthetical": "quoting Rector v. N.C. Sheriffs Educ. & Training Standards Comm'n, 103 N.C. App. 527, 532, 406 S.E.2d 613, 616 (1991)" }, { "page": "170" } ], "opinion_index": 0 }, { "cite": "349 N.C. 656", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 571673 ], "weight": 2, "year": 1998, "pin_cites": [ { "page": "663", "parenthetical": "quoting Rector v. N.C. Sheriffs Educ. & Training Standards Comm'n, 103 N.C. App. 527, 532, 406 S.E.2d 613, 616 (1991)" }, { "page": "663" } ], "opinion_index": 0, "case_paths": [ "/nc/349/0656-01" ] }, { "cite": "326 S.E.2d 320", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1985, "pin_cites": [ { "page": "323" }, { "page": "323" }, { "page": "323" }, { "page": "324" } ], "opinion_index": 0 }, { "cite": "73 N.C. App. 349", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524018 ], "weight": 4, "year": 1985, "pin_cites": [ { "page": "354" }, { "page": "354" }, { "page": "354" }, { "page": "355" } ], "opinion_index": 0, "case_paths": [ "/nc-app/73/0349-01" ] } ], "analysis": { "cardinality": 1049, "char_count": 31745, "ocr_confidence": 0.763, "pagerank": { "raw": 5.823272924716459e-07, "percentile": 0.9516101131764825 }, "sha256": "8e6aaa05149ff31a33624cdde948b2d4ec2db9e4cb23ed6dd0534c0e312d33b3", "simhash": "1:a46bb57bf2fe3069", "word_count": 5052 }, "last_updated": "2023-07-14T18:42:18.277293+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges MARTIN and HUNTER concur." ], "parties": [ "THE NORTH CAROLINA STATE BAR, Plaintiff/Appellee v. DOUGLAS S. HARRIS, ATTORNEY, Defendant" ], "opinions": [ { "text": "WYNN, Judge.\nThe North Carolina State Bar brought this action before the Hearing Committee of the Disciplinary Hearing Commission of the State Bar by a complaint alleging that the defendant, a licensed attorney, violated various Disciplinary Rules of the Code of Professional Responsibility while representing Brenda Capps in a personal injury action.\nA hearing on this matter was held before the Hearing Committee on 8 and 9 October 1998 and 6 November 1998. The evidence showed that Capps discharged the defendant by letter dated 16 August 1996. Then she consulted with another attorney whom she hired later to represent her in the action. That attorney sent the defendant a letter dated 22 August 1996 requesting that he notify Allstate Insurance Company, the insurance carrier for the tortfeasor under Capps\u2019 claim, of his discharge.\nOn 23 August 1996, the defendant negotiated a settlement of Capps\u2019 claim with an adjuster of Allstate Insurance Company. Under the settlement agreement, the adjuster sent the defendant a check in the amount of $12,000.00, issued to the defendant and Capps in full and final settlement of the claim. Along with the check, the defendant received a form releasing any further claims in the settled matter.\nThe defendant presented evidence that on 18 January 1997, Capps came to his office in Greensboro, North Carolina and signed the release form and a limited power of attorney authorizing him to sign her name to the settlement check. In fact, the defendant\u2019s secretary, a public notary, testified during the hearing that she had acknowledged Capps\u2019 signature on the release and power of attorney on that particular day. Also, the defendant testified that he wrote a check for $8,900.00 out of his operating account and gave Capps the check during her visit to his office.\nThe State Bar, however, presented evidence that on 18 January 1997 Capps was in Largo, Florida attending organ lessons in the morning; attending an organ concert in the afternoon; and dining out with friends in the evening. Further, the State Bar\u2019s audit revealed no evidence of a check clearing the defendant\u2019s operating account in the amount of $8,900.00 made payable to Capps.\nFollowing the hearing, the Hearing Committee entered an order disbarring the defendant from the practice of law. From this order, he appeals.\nThe appellate courts\u2019 standard of review for attorney discipline cases is the \u201cwhole record test.\u201d See N.C. State Bar v. Sheffield, 73 N.C. App. 349, 354, 326 S.E.2d 320, 323 (1985). Under that standard, this Court examines all competent evidence in the whole record on appeal to determine whether the agency decision is supported by substantial evidence. See In re Meads, 349 N.C. 656, 663, 509 S.E.2d 165, 170 (1998) (quoting Rector v. N.C. Sheriffs Educ. & Training Standards Comm\u2019n, 103 N.C. App. 527, 532, 406 S.E.2d 613, 616 (1991)). Therefore, under the whole record test, the Hearing Committee\u2019s ruling should be affirmed if it is supported by substantial evidence which is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. See Retirement Villages, Inc. v. N.C. Dept. of Human Resources, 124 N.C. App. 495, 498, 477 S.E.2d 697, 699 (1996); In re Meads, 349 N.C. at 663, 509 S.E.2d at 170.\nI. DISCOVERY INFORMATION\nThe defendant challenges the Hearing Committee\u2019s order of discipline on the grounds that his due process rights were violated when he was denied access to necessary discovery information by: (A) the Hearing Committee and (B) the State Bar.\nA. The Hearing Committee\nThe defendant first contends that the Hearing Committee erred in denying his motion to compel discovery of the reports and witness interview notes of the State Bar\u2019s investigator because that evidence was not protected under the attorney-work product privilege. We disagree.\nIn Hickman v. Taylor, 329 U.S. 495, 91 L. Ed. 2d 451 (1947), the United States Supreme Court held that oral and written statements of witnesses obtained or prepared by an adverse party\u2019s counsel in the course of preparation for possible litigation are not discoverable without a showing of necessity. In effect, the Hickman Court recognized the attorney-work product rule which is \u201ca qualified privilege for witness statements prepared at the request of the attorney and an almost absolute privilege for attorney notes taken during a witness interview.\u201d In re PCB, 708 A.2d 568, 570 (Vt. 1998); see also Hickman. Also, under the attorney-work product rule, the mental impressions, conclusions, opinions and legal theories of an attorney are absolutely protected from discovery regardless of any showing of need. See Hickman.\nIndeed, the North Carolina Rules of Civil Procedure provide for the attorney-work product privilege by stating that\na party may obtain discovery of documents and tangible things otherwise discoverable under subsection (b)(1) of this rule and prepared in anticipation of litigation or for trial by or for another party or by or for that other party\u2019s consultant, surety, indemnitor, insurer, or agent only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of his case and that he is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the court may not permit disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation in which the materials sought or work product of the attorney or attorneys of record in the particular action.\nN.C. Gen. Stat. \u00a7 1A-1, Rule 26(b)(3) (1990).\nAlthough our courts have applied the attorney-work product rule in many different contexts, the question of its applicability in the context of an attorney discipline case is a matter of first impression for our Courts. See Willis v. Duke Power Co., 291 N.C. 19, 229 S.E.2d 191 (1976) (holding that any materials prepared in anticipation for any litigation by a party from whom discovery is sought are protected under the rule of civil procedure governing the scope of discovery); Hall v. Cumberland County Hospital System, 121 N.C. App. 425, 466 S.E.2d 317 (1996) (holding that the trial court erred reversibly by releasing certain documents to plaintiffs without addressing defendants\u2019 claims that those documents were privileged).\nWe are, however, aware of a recent decision of the Vermont Supreme Court, which addressed the question presently before this Court \u2014 whether a bar investigator\u2019s reports and witness interview notes are protected under the attorney-work product rule. In re PCB, 708 A.2d 568. In that case, the Vermont Supreme Court determined that witness statements and notes taken by the bar counsel or bar investigator are privileged and not discoverable absent a showing of substantial need and undue hardship and a finding of good cause by the Professional Conduct Board. See id. at 571.\nAs in In re PCB, the discovery information requested in the case at bar includes notes and witness statements taken by the State Bar\u2019s investigator. And, the investigator in the case at bar is a representative or agent of the State Bar. See N.C. Gen. Stat. \u00a7 84-31 (1995) (stating that \u201cthe North Carolina State Bar . . . may authorize counsel to employ assistant counsel, investigators ... in such numbers as it deems necessary. . . .\u201d). Since we are persuaded by the reasoning in In re PCB, we hold that the notes and reports in this case were not discoverable until there was a showing by the defendant that he had a \u201csubstantial need of the materials in the preparation of his case and that he is unable without undue hardship to obtain the substantial equivalent.\u201d N.C.G.S. \u00a7 1A-1, Rule 26(b)(3).\nAssuming for the sake of argument that the defendant in this case has shown a substantial need of the materials in preparation of his case, he has failed to show that he was unable to obtain the substantial equivalent without undue hardship. In fact, he failed to exercise his right to depose the witnesses who were the subject of the investigator\u2019s notes and reports which would have given him the substantial equivalent of the requested information. Since he failed to make the appropriate showing under our attorney-work product rule, the investigator\u2019s notes and reports were privileged and not discoverable by the defendant.\nBecause the investigator\u2019s notes and reports were privileged, the Hearing Committee was not required to examine the evidence before ruling on the defendant\u2019s motion to compel. See State v. Hardy, 293 N.C. 105, 235 S.E.2d 828 (1977) (holding that a judge must order in camera inspection when a specific request is made at trial for disclosure of evidence which is in the State\u2019s possession and which is obviously relevant, competent and not privileged). Therefore, the Hearing Committee acted properly in denying the defendant\u2019s motion to compel.\nB. The State Bar\nThe defendant next contends that the State Bar erred in: (1) allowing its counsel to answer defendant\u2019s interrogatory questions and (2) concealing certain requested evidence.\nWe find meritless the defendant\u2019s contentions that it was improper for the State Bar\u2019s counsel to answer the interrogatory questions. Under Rule 33 of our North Carolina Rules of Civil Procedure, governing a party\u2019s interrogatories,\n[a]ny party may serve upon any other party written interrogatories to be answered by the party served or, if the party served is a public or private corporation or a partnership or association or governmental agency, by any officer or agent, who shall furnish such information as is available to the party.\nN.C. Gen. Stat. \u00a7 1A-1, Rule 33 (1990).\nTherefore, the State Bar\u2019s counsel, as an agent of that governmental agency, was the proper party to answer the interrogatories.\nNext, we examine the defendant\u2019s contentions that the State Bar concealed evidence including: (1) the identity of Capps\u2019 organ teacher, David Craycroft, whose deposition testimony was admitted into evidence and (2) a statement made by Capps\u2019 brother, Harold Shelton.\nIn this case, the record shows that Craycroft was listed as a State Bar witness, via deposition transcript, in the pre-trial stipulations. Craycroft\u2019s testimony was introduced into evidence for the limited purpose of showing the 18 January 1997 student roster of the organ class was an authentic business record and to corroborate Capps\u2019 testimony as to her whereabouts on that particular day. Although Craycroft had not yet been deposed when the State Bar responded to the defendant\u2019s interrogatories, the class roster was listed in response to the interrogatory requesting identification of \u201ceach and every document known to plaintiff, its agents, and/or attorney which plaintiff knows or believes may contain [facts] or information relating to the claims asserted in the Complaint and/or the defenses raised in any answer interposed thereto.\u201d\nMoreover, the record shows that when the State Bar\u2019s investigator discussed Capps\u2019 case with Shelton, he did not take any notes. Even if he had taken notes during that conversation, the defendant' again has failed to comply with the requirement of showing undue hardship in obtaining the substantial equivalent of the requested discovery evidence under Rule 26(b)(3). In short, he could have deposed Shelton, but failed to do so. Therefore, the State Bar did not improperly conceal evidence from the defendant.\nAccordingly, we find compliance with due process requirements by both the Hearing Committee and the State Bar.\nII. STATEMENTS OF A MEMBER OF THE HEARING COMMITTEE\nNext, the defendant argues that the Hearing Committee erred in allowing one its members to: (A) act as a handwriting expert witness in questioning the State Bar\u2019s forensic handwriting expert and (B) offer testimony as to whether the notary certificates on the release and power of attorney were false. We examine each argument separately.\nA. Statements To The State Bar\u2019s Handwriting Expert\nIn support of his argument that one of the Hearing Committee\u2019s members acted as a handwriting expert, the defendant points to the following colloquy between the Hearing Committee member and the State Bar\u2019s handwriting expert witness:\nQ. . . . And I know you said you can\u2019t determine who wrote this, but can you look at certain letters and see that they have the same characteristics?\nA. I see certain writing habits, the way the letters are formed.\nQ. Okay. I happen to have to do some of this in my profession, too. So \u201cHigh Point Road,\u201d \u201cR-D\u201d in Exhibit 30, and its also on your Exhibit 34.\nQ. Mr. Harris\u2019s \u201cHigh Point Road,\u201d \u201cR-D,\u201d they seem to be extremely similar to me in the down stroke.\nA. You mean the \u201cR\u201d in \u201cRoad?\u201d\nQ. The \u201cD\u201d in \u201cRoad.\u201d\nQ. The \u201cA\u201d seems to have some similarities.\nQ. The \u201cA\u201d seems to be opened in two or three of his places too. A. Yes, I agree with you.\nQ. The only two \u201cP-P\u2019s\u201d I could find where \u2014 but he generally does like me, nobody can read his writing, so he prints quite often, but he seems to have this loop in the \u201cP\u2019s\u201d the same in the only two I could find.\nWe do not, however, find the challenged colloquy to be evidence that the Hearing Committee member was acting as an expert witness. Rather, the colloquy shows that the Hearing Committee member requested that the State Bar\u2019s expert witness compare the defendant\u2019s known handwriting samples with Capps\u2019 purported signature on the release and settlement check. In questioning the expert witness about the comparison between the aforementioned documents, the Hearing Committee member merely observed similarities in the way the defendant wrote the letters \u201cd\u201d and \u201ca\u201d in the known writing samples and the manner in which those letters appeared on the release and settlement check. In effect, the Hearing Committee member was not testifying as an expert but was attempting to get the State Bar\u2019s expert witness to explain the significance of his observations of the defendant\u2019s handwriting as compared to that on the release and^settlement check.\nIn response, the expert noted that there \u201cwas no possible way\u201d that Capps could have signed the release. But the expert \u2014 despite the questions of the Hearing Committee member regarding the similarities between the defendant\u2019s known handwriting samples and the signatures on the release and settlement check \u2014 was unable to determine who signed the rel\u00e9ase and settlement check.\nGiven the foregoing evidence, we find no error in the Hearing Committee member\u2019s questions to the State Bar\u2019s expert witness.\nB. Statements About The Notary Certificates\nIn support of his argument that one of the Hearing Committee\u2019s members offered testimony regarding whether the notary certificates on the release and power of attorney were false, the defendant first points out that in North Carolina, there is a presumption that the recitations contained in a notary\u2019s certificate or acknowledgment are true. See Johnson Lumber Co. v. Leonard, 145 N.C. 339, 59 S.E. 134 (1907) (holding that proof to impeach a notary\u2019s certificate must be clear and convincing). This presumption, however, may be rebutted by clear, cogent, and convincing proof. See id.\nHere, the State Bar offered evidence that on 18 January 1997 \u2014 the day that the defendant\u2019s secretary allegedly witnessed Capps sign a release and power of attorney at the defendant\u2019s office \u2014 Capps was in Largo, Florida. Such evidence included: (1) Capps\u2019 signature on the organ lesson\u2019s roster, (2) Capps\u2019 testimony, (3) the testimony of a friend who had dinner and went to a karaoke lounge with Capps in Florida during the evening of January 18, and (4) an ATM withdrawal slip and a bank statement reflecting her withdrawal of $50.00 on 18 January 1997 from a bank in Florida.\nBased on this evidence, the Hearing Committee found that:\n30. Defendant allowed Watkins to acknowledge falsely that Capps appeared before Watkins and signed the release on January 18, 1997.\n31. Defendant allowed Watkins to acknowledge falsely that Capps appeared before Watkins and signed the limited power of attorney on January 18, 1997.\nWe find the evidence supporting the Hearing Committee\u2019s findings of fact numbers 30 and 31 to be clear, cogent, and convincing proof that the notary certificates of the defendant\u2019s secretary were false.\nNext, the defendant supports his argument that the Hearing Committee member offered testimony regarding the veracity of the notary certificates by pointing to the Hearing Committee member\u2019s statements to the defendant\u2019s secretary:\nI know at home quite frequently, the secretary in a law firm will sign a power of attorney where they have not actually seen a person. The attorney said they were there, and they walk out to the desk or they are back in the back, and I have witnessed this.\nConstruing the dialogue between the Hearing Committee member and the defendant\u2019s secretary as a whole, we find that the Hearing Committee member was merely asking the defendant\u2019s secretary whether the statements in her notary acknowledgment were truthful. The Hearing Committee member, however, prefaced his questions with the above-mentioned statements. Thus, the Hearing Committee member did not himself provide testimony that the information contained in the secretary\u2019s acknowledgment was false.\nMoreover, even if the Hearing Committee member\u2019s statements constituted testimony in support of findings of fact numbers 30 and 31, the resulting error would be harmless because there was other evidence which constituted clear, cogent, and convincing proof to support these findings of fact.\nIII. THE HEARING COMMITTEE\u2019S FINDINGS OF FACT\nFinally, the defendant contends that three of the Hearing Committee\u2019s findings of fact were not supported by clear, cogent and convincing evidence drawn from the whole record. We disagree.\n\u201cThe standard of proof in attorney discipline and disbarment proceedings is one of \u2018clear, cogent and convincing\u2019 evidence.\u201d Sheffield, 73 N.C. App. at 354, 326 S.E.2d at 323; see also In re Palmer, 296 N.C. 638, 252 S.E.2d 784 (1979). \u201cClear, cogent and convincing describes an evidentiary standard stricter than a preponderance of the evidence, but less stringent than proof beyond a reasonable doubt.\u201d Sheffield, 73 N.C. App. at 354, 326 S.E.2d at 323. And, it \u201chas been defined as \u2018evidence which should fully convince.\u2019 \u201d Id. (quoting Williams v. Blue Ridge Bldg. & Loan Ass\u2019n, 207 N.C. 362, 363, 177 S.E. 176, 177 (1934)).\nThe defendant first asserts that the Hearing Committee erred in finding his bank account balance was below $8,900.00 because the \u201cuncontradicted evidence was that ... at all time [the] aggregate accounts held in excess of $100,000.00.\u201d\nHowever, his assertions are without merit because he has mistakenly focused on his aggregate accounts rather than his operating account which was the basis of the Hearing Committee\u2019s findings. The Hearing Committee\u2019s specific findings relating to the defendant\u2019s assertions are:\n39. The balance in Defendant\u2019s CCB operating account remained below $8,900.00 from January 22, 1997 to May 19, 1998.\n40. At all times when Defendant\u2019s bank account balance was below $8,900.00, this amount should have been in Defendant\u2019s bank account since no check made payable to Capps in the amount of $8,900.00 had cleared Defendant\u2019s bank account.\n41. Defendant appropriated $8,900.00 from Capps\u2019 Allstate settlement to his own use or benefit.\nClear, cogent and convincing evidence exists in the record to support these findings of fact. For instance, the insurance adjuster who handled the settlement of Capps\u2019 claim testified at the hearing that on 23 August 1996 the defendant allegedly acting on Capps\u2019 behalf settled the claim for $12,000.00. At that time, however, the adjuster was unaware that the defendant\u2019s employment had been terminated, thereby discharging his ability to act on her behalf as an attorney.\nThereafter, on 15 January 1997, the defendant wrote check number 11494 on his Central Carolina Bank operating account to the Internal Revenue Service in the amount of $10,235.89. Six days later, on 21 January 1997, he deposited the following amounts into his operating account: (1) the $12,000.00 settlement check, (2) a $4,617.19 check and (3) a $10.00 check. That same day, his bank paid check number 11494 to the Internal Revenue Service.\nAfter that check was paid, the balance in the defendant\u2019s operating account at Central Carolina Bank remained below $8,900.00 \u2014 the portion of the settlement owed to Capps \u2014 from 21 January 1997 to May 1998. Thus, the defendant appropriated Capps\u2019 portion of the settlement for his own use or purpose. See Rule 10.1(C) of the North Carolina Rules of Professional Conduct (stating that \u201c[a]ll money or funds received by a lawyer either from a client or from a third party to be delivered all or in part to a client, except that received for payment of fees presently owed to the lawyer by the client or as reimbursement for expenses properly advanced by the lawyer on behalf of the client shall be deposited in a lawyer trust account.\u201d)\nThe defendant next challenges the Hearing Committee\u2019s finding that \u201c[i]n July 1997, [he] sent a private investigator to Largo, Florida to give $8,900.00 to Capps.\u201d\nAt the hearing, Capps testified that in 1997 a private investigator identifying himself as the defendant\u2019s courier called her Florida home stating that \u201che was going to bring [Capps] a replacement for a lost settlement check.\u201d During the conversation, Capps informed him not to come to her home and \u201cany business to do with [the defendant] whatsoever he would do with Mr. Snow, [her] attorney in High Point, North Carolina.\u201d Several days later, on 4 July 1997, the investigator came to her home but did not discuss the settlement check at that time.\nOn appeal, however, the defendant challenges Capps\u2019 testimony regarding statements allegedly made by the private investigator during their telephone conversation on the grounds that these statements constituted inadmissible hearsay. But, he failed to object to this testimony during the hearing, thereby waiving his right to present such an error on appeal. See North Carolina Rules of Appellate Procedure, Rule 10(b)(1) (stating that \u201c[i]n order to preserve a question for appellate review, a party must have presented to the trial court a timely request, objection or motion, stating the specific grounds for the ruling the party desired the court to make if the specific ground were not apparent from the context. . . .\u201d).\nAlso, the defendant appears to be challenging the credibility of Capps\u2019 witness testimony by suggesting that the finding of fact at issue was not supported by sufficient evidence since the only evidence in support of the finding was Capps\u2019 testimony. But, our \u201creview is concerned only with the sufficiency of the evidence, not the credibility of witnesses.\u201d Sheffield, 73 N.C. App. at 355, 326 S.E.2d at 324. Applying this standard of review, we find that Capps\u2019 testimony alone constitutes clear, cogent and convincing proof to support the Hearing Committee\u2019s finding regarding the defendant\u2019s private investigator.\nLastly, the defendant challenges the Hearing Committee\u2019s findings that:\n53. Defendant lent or advanced his brother\u2019s company\u2019s money to three of Defendant\u2019s clients as follows: a) Alan Morton-to pay for his surgery; b) Natashia Nelson-to pay her rent and car note; and c) Pamela Moffit-to pay surgery medical expenses, and travel to doctors. The expenses of Alan Morton, Natashia Nelson, and Pamela Moffit were not litigation expenses.\nBased on this finding of fact, the Hearing Committee concluded that the defendant \u201cadvanced financial assistance of client in violation of Rule 5.3(B) and violated the Rules of Professional Conduct through the acts of another in violation of Rule 1.2(A).\u201d The defendant also challenges the Hearing Committee\u2019s conclusion.\nRule 5.3(B) of the North Carolina Rules of Professional Responsibility provides that:\nWhile representing a client in connection with contemplated or pending litigation, a lawyer shall not advance or guarantee financial assistance to his client, except that a lawyer may advance or guarantee the expenses of litigation, including court costs, expenses of investigation, expenses of medical examination and costs of obtaining and presenting evidence, provided the client remains ultimately liable for such expenses.\nRule 1.2(A) states that it is professional misconduct for a lawyer to \u201c[v]iolate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another . . . .\u201d\nIn the present case, the undisputed facts are that: (1) the defendant kept $20,000.00 in his trust account for several years which came from his brother\u2019s company, Castle McCullough, and (2) he loaned money from his brother\u2019s company to three clients: Alan Morton, Natashia Nelson and Pamela Moffit. In fact, the money was loaned to Morton for his surgery; to Nelson for rent and payments on a car note; and to Moffitt for payment of surgical, medical and travel expenses.\nThe foregoing facts constitute clear, cogent and convincing proof to support the Hearing Committee\u2019s finding that the defendant loaned money to his three clients. Thus, the Hearing Committee\u2019s finding adequately supports its conclusion that the defendant violated Rules of Professional Conduct 5.3(B) and 1.2(A); therefore, we uphold the Hearing Committee\u2019s ruling in this regard.\nFinding the defendant\u2019s remaining assignments of error to be either abandoned or without merit, we need not address them on appeal. See North Carolina Rules of Appellate Procedure, Rule 28(b)(5).\nThe order appealed from is,\nAffirmed.\nJudges MARTIN and HUNTER concur.", "type": "majority", "author": "WYNN, Judge." } ], "attorneys": [ "Fern Gunn Simeon for the North Carolina State Bar.", "Douglas S. Harris, Pro Se." ], "corrections": "", "head_matter": "THE NORTH CAROLINA STATE BAR, Plaintiff/Appellee v. DOUGLAS S. HARRIS, ATTORNEY, Defendant\nNo. COA99-580\n(Filed 4 April 2000)\n1. Discovery\u2014 attorney disciplinary hearing \u2014 privileged documents\nThe Disciplinary Hearing Commission did not err in an attorney discipline case for misappropriation of client funds by denying defendant\u2019s motion to compel discovery of the reports and witness interview notes of the State Bar\u2019s investigator because witness statements and notes taken by the bar counsel or bar investigator are privileged and not discoverable absent a showing of substantial need and that the person seeking the materials was unable, without undue hardship, to obtain the substantial equivalent. N.C.G.S. \u00a7 1A-1, Rule 26(b)(3).\n2. Discovery\u2014 attorney disciplinary hearing \u2014 interrogatories \u2014 answers by counsel\nThe State Bar. did not err in allowing its counsel to answer defendant\u2019s interrogatory questions in an attorney discipline case for misappropriation of client funds because the State Bar\u2019s counsel, as an agent of that governmental agency, was the proper party to answer the interrogatories under N.C.G.S. \u00a7 1A-1, Rule 33.\n3. Attorneys\u2014 disciplinary hearing \u2014 evidence not concealed\nIn an attorney discipline case for misappropriation of client funds, the State Bar did not improperly conceal evidence of the identity of the client\u2019s organ teacher, whose deposition testimony was admitted into evidence, and a statement by the client\u2019s brother because: (1) the record reveals that the organ teacher was listed as a State Bar witness in the pretrial stipulations; and (2) the State Bar\u2019s investigator did not take any notes when he talked to the client\u2019s brother, and defendant failed to comply with the requirement of showing undue hardship under N.C.G.S. \u00a7 1A-1, Rule 26(b)(3) since he could have deposed the client\u2019s brother.\n4. Attorneys\u2014 disciplinary hearing \u2014 questions of expert not improper\nThe Disciplinary Hearing Commission did not allow one of its members to act as a handwriting expert witness during the questioning of the State Bar\u2019s forensic handwriting expert in an attorney discipline case for misappropriation of client funds because a review of the evidence reveals the Hearing Committee member merely requested that the expert compare \u25a0 defendant\u2019s known handwriting sample with the client\u2019s purported signature on the release and settlement check.\n5. Attorneys\u2014 disciplinary hearing \u2014 notary certification\u2014 presumption of truth rebutted\nEven though there is a presumption in North Carolina that the recitations contained in a notary\u2019s certificate or acknowledgment are true, the Disciplinary Hearing Commission did not err in an attorney discipline case for misappropriation of client funds by finding that the notary certificates on the release and power of attorney were false because the presumption was rebutted by clear, cogent, and convincing evidence that the client was in Florida at the time defendant\u2019s secretary allegedly witnessed the client sign the forms at the attorney\u2019s office.\n6. Attorneys\u2014 disciplinary hearing \u2014 finding of fact \u2014 misappropriation of client funds \u2014 clear, cogent, and convincing evidence\nThe Disciplinary Hearing Commission did not err in an attorney discipline case for misappropriation of client funds by finding as fact that defendant\u2019s bank account balance was below $8,900 in support of the allegation that defendant appropriated his client\u2019s portion of a settlement check for defendant\u2019s own use or purpose in violation of former Rule 10.1(C) of the North Carolina Rules of Professional Conduct, because: (1) the operating account is the basis of the finding rather than defendant\u2019s aggregate accounts; (2) defendant acted on behalf of the client in settling the claim with the insurance company when defendant\u2019s employment had already been terminated; and (3) defendant wrote a check to the Internal Revenue Service out of the same operating account into which he deposited the settlement check, and the balance remained below the portion of the settlement owed to the client.\n7. Attorneys\u2014 disciplinary hearing \u2014 finding of fact \u2014 client testimony \u2014 clear, cogent, and convincing evidence\nThe Disciplinary Hearing Commission did not err in an attorney discipline case for misappropriation of client funds by finding as fact by clear, cogent, and convincing evidence that in July 1997 defendant sent a private investigator to Florida to give $8,900 to the client based on the clients\u2019s testimony because: (1) even though defendant challenges the client\u2019s testimony regarding statements allegedly made by the private investigator during their telephone conversation as inadmissible hearsay, defendant waived this argument under N.C. R. App. P. 10(b)(1) by failing to object during the hearing; and (2) even though defendant appears to challenge the credibility of the client\u2019s testimony, the court is concerned only with the sufficiency of the evidence.\n8. Attorneys\u2014 disciplinary hearing \u2014 finding of fact \u2014 improper advance of financial assistance \u2014 clear, cogent, and convincing evidence\nThe Disciplinary Hearing Commission did not err in an attorney discipline case for misappropriation of client funds by finding as fact by clear, cogent, and convincing evidence that defendant advanced financial assistance to three clients in violation of former Rule 5.3(B) and former Rule 1.2(A) of the Rules of Professional Conduct when the evidence reveals defendant loaned money from his brother\u2019s company to one client for surgery; to another client for rent and payments on a car note; and to yet another client for payment of surgical, medical, and travel expenses.\nAppeal by defendant from order entered 6 November 1998 by the Hearing Committee of the Disciplinary Hearing Commission of the North Carolina State Bar. Heard in the Court of Appeals 24 February 2000.\nFern Gunn Simeon for the North Carolina State Bar.\nDouglas S. Harris, Pro Se." }, "file_name": "0207-01", "first_page_order": 239, "last_page_order": 253 }