{ "id": 6769045, "name": "THE NORTH CAROLINA STATE BAR, Plaintiff v. GEOFFREY H. SIMMONS, Attorney, Defendant", "name_abbreviation": "North Carolina State Bar v. Simmons", "decision_date": "2014-05-06", "docket_number": "No. COA13-1140", "first_page": "669", "last_page": "682", "citations": [ { "type": "official", "cite": "233 N.C. App. 669" } ], "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": "356 N.C. 626", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511427 ], "opinion_index": -1, "case_paths": [ "/nc/356/0626-01" ] }, { "cite": "632 S.E.2d 183", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12636285 ], "year": 2006, "pin_cites": [ { "page": "191" } ], "opinion_index": 0, "case_paths": [ "/se2d/632/0183-01" ] }, { "cite": "644 S.E.2d 573", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12638411 ], "year": 2007, "pin_cites": [ { "page": "576" } ], "opinion_index": 0, "case_paths": [ "/se2d/644/0573-01" ] }, { "cite": "657 S.E.2d 378", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12640472 ], "weight": 4, "year": 2008, "pin_cites": [ { "page": "383" }, { "page": "383" } ], "opinion_index": 0, "case_paths": [ "/se2d/657/0378-01" ] }, { "cite": "178 N.C. App. 432", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8378205 ], "year": 2006, "pin_cites": [ { "page": "446" } ], "opinion_index": 0, "case_paths": [ "/nc-app/178/0432-01" ] }, { "cite": "466 S.E.2d 340", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1996, "pin_cites": [ { "page": "341-42", "parenthetical": "\"The rule does not require a conviction, only that a criminal act be committed.... Therefore, conviction of a crime is not a necessary element in a disciplinary proceeding.\"" } ], "opinion_index": 0 }, { "cite": "121 N.C. App. 488", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11918109 ], "year": 1996, "pin_cites": [ { "page": "490", "parenthetical": "\"The rule does not require a conviction, only that a criminal act be committed.... Therefore, conviction of a crime is not a necessary element in a disciplinary proceeding.\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/121/0488-01" ] }, { "cite": "678 S.E.2d 351", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2009, "pin_cites": [ { "page": "354", "parenthetical": "quotation marks and citation omitted" } ], "opinion_index": 0 }, { "cite": "363 N.C. 334", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4151090 ], "year": 2009, "pin_cites": [ { "page": "337", "parenthetical": "quotation marks and citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/363/0334-01" ] }, { "cite": "183 N.C. App. 229", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8202621 ], "year": 2007, "pin_cites": [ { "page": "233" } ], "opinion_index": 0, "case_paths": [ "/nc-app/183/0229-01" ] }, { "cite": "188 N.C. App. 653", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4155506 ], "weight": 2, "year": 2008, "pin_cites": [ { "page": "660" }, { "page": "660" } ], "opinion_index": 0, "case_paths": [ "/nc-app/188/0653-01" ] }, { "cite": "182 S.E. 700", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1935, "pin_cites": [ { "page": "702" } ], "opinion_index": 0 }, { "cite": "209 N.C. 38", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2221583 ], "year": 1935, "pin_cites": [ { "page": "40" } ], "opinion_index": 0, "case_paths": [ "/nc/209/0038-01" ] }, { "cite": "360 S.E.2d 291", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "292" } ], "opinion_index": 0 }, { "cite": "87 N.C. App. 152", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358008 ], "year": 1987, "pin_cites": [ { "page": "153" } ], "opinion_index": 0, "case_paths": [ "/nc-app/87/0152-01" ] }, { "cite": "743 S.E.2d 55", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2013, "pin_cites": [ { "page": "59", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 14-90", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2013, "opinion_index": 0 }, { "cite": "719 S.E.2d 182", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 2011, "pin_cites": [ { "page": "188" }, { "parenthetical": "quotation marks, citations, and alteration omitted" }, { "page": "188" }, { "page": "188-89" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 84-28", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 5, "year": 2013, "pin_cites": [ { "page": "(b)(2)" }, { "page": "(h)" }, { "page": "(h)" }, { "page": "(b)(2)" } ], "opinion_index": 0 }, { "cite": "576 S.E.2d 305", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 7, "year": 2003, "pin_cites": [ { "page": "309-10", "parenthetical": "describing this task as determining whether the DHC's decision \"has a rational basis in the evidence\" (quotation marks and citations omitted)" }, { "page": "310" }, { "page": "311" }, { "page": "313" } ], "opinion_index": 0 }, { "cite": "356 N.C. 626", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511427 ], "weight": 4, "pin_cites": [ { "page": "632" }, { "page": "632" }, { "page": "638" } ], "opinion_index": 0, "case_paths": [ "/nc/356/0626-01" ] } ], "analysis": { "cardinality": 1025, "char_count": 30707, "ocr_confidence": 0.714, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.1820598420989023 }, "sha256": "5b4cd7347f955a9dd2305bbe4a7dbbf034ce5cad7a8a3df23d022c9ea1e6d32a", "simhash": "1:ca92f5903da52d9c", "word_count": 4760 }, "last_updated": "2023-07-14T17:57:00.832613+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge MARTIN and Judge ELMORE concur." ], "parties": [ "THE NORTH CAROLINA STATE BAR, Plaintiff v. GEOFFREY H. SIMMONS, Attorney, Defendant" ], "opinions": [ { "text": "HUNTER, JR., Robert N., Judge.\nGeoffrey H. Simmons (\u201cDefendant\u201d) appeals from a final order of the Disciplinary Hearing Commission (\u201cDHC\u201d) disbarring him from the practice of law for embezzling client funds. Defendant contends (1) that there was insufficient evidence before the DHC that he intended to embezzle client funds, (2) that the DHC could not impose discipline based on embezzlement without a criminal conviction, and (3) that the DHC\u2019s order failed to conform to the requirements of N. C. State Bar v. Talford, 356 N.C. 626, 576 S.E.2d 305 (2003), for disbarring attorneys. For the following reasons, we disagree and affirm the DHC\u2019s order.\nI. Factual & Procedural History\nDefendant was licensed to practice law by the North Carolina State Bar in 1977 and practiced law for over thirty years. Defendant\u2019s career was, in many respects, a decorated one. After graduating from Duke University School of Law, Defendant worked for the General Assembly and in the administration of former Governor James B. Hunt. Defendant engaged in significant pro bono work during his career. In 1987, the North Carolina Bar Association named Defendant the Pro Bono Lawyer of the year. In 1990, Defendant was elected the first black President of the Wake County Bar Association and the Tenth Judicial District Bar. During his career, Defendant established a reputation for good character, veracity, and truthfulness in both social and legal communities. Notwithstanding Defendant\u2019s accomplishments, however, the allegations in the State Bar\u2019s complaint against Defendant are serious, and are based on the following facts gleaned from the record.\nFrom 1986 until his disbarment, Defendant was a solo-practitioner focusing on criminal and personal injury work, with an office in Raleigh. The record reflects that Defendant had an assistant on his payroll, who performed paralegal work. During the course of his law practice, Defendant maintained a trust account on behalf of his clients.\nIn March 2012, a medical provider filed a complaint with the State Bar alleging that Defendant had not paid one of his client\u2019s bills. A subsequent audit of Defendant\u2019s trust account by the State Bar revealed disbursements made by Defendant from 2010-2012 to himself and his assistant for which Defendant had no supporting documentation. The investigation also revealed instances of insufficient client funds to cover disbursements to those clients and their medical providers.\nAs a result of the investigation, the State Bar filed a complaint alleging, inter alia, misappropriation of entrusted funds with respect to eight of Defendant\u2019s clients. On 15 March 2013, the DHC held a hearing to determine if Defendant\u2019s alleged misconduct warranted disciplinary action. At the hearing, documentary exhibits were received into evidence and testimony was heard from, among others, the State Bar\u2019s investigator, two of the eight clients who were named in the complaint, and Defendant.\nThe State Bar\u2019s investigator testified concerning Defendant\u2019s trust account activity and bookkeeping for the eight clients. His testimony, along with accompanying documentary exhibits, established undocumented disbursements to Defendant and Defendant\u2019s assistant, as well as occasions where disbursements were made from insufficient client funds. In those instances where Defendant disbursed funds from the trust account to himself and/or his assistant, a pattern was observed. Once Defendant received personal injury settlement proceeds on behalf of a client, Defendant deposited those proceeds into his trust account. Afterwards, Defendant withdrew his one-third contingency fee and paid the client a one-third share. The remaining funds were intended to satisfy medical liens and obligations. However, in addition to paying on the medical liens, Defendant wrote additional checks to himself and his assistant in varying amounts between $200 and $600. As a result, some medical providers with statutory liens against client funds were not paid in full for their share of the recovery. To cover shortfalls, Defendant used trust account funds belonging to others and not identified to the client to cover checks written to that client or the client\u2019s medical providers.\nIn his defense, Defendant admitted to poor record keeping practices but denied misappropriating client funds. Defendant attributed the undocumented disbursements to expenses, additional legal work, accounting mistakes, and, in some cases, Defendant claimed the disbursements were at the behest of his clients. Both clients who testified at the hearing indicated that Defendant did not tell them about any additional disbursements made from their account. One of the clients, after being contacted by the State Bar, filed a Client Security Fund Application against Defendant claiming he took an additional disbursement dishonestly.\nOn 19 April 2013, the DHC entered a written order of discipline. The order\u2019s findings of fact recite the transactions made for each of the eight clients, including the disbursements at issue. After reciting each undocumented disbursement made to Defendant and his assistant, the DHC found that Defendant and his assistant were \u201cnot entitled\u201d to the additional disbursements and concluded that Defendant \u201cmisappropriated\u201d these funds. The DHC\u2019s order also concludes that Defendant misappropriated each disbursement made from insufficient funds and each disbursement made from funds owed to medical providers with statutory liens. Furthermore, the order states:\n91. The misappropriations... were committed knowingly and willfully.\n92. The misappropriations . . . were not authorized by the parties for whom [Defendant] was holding the funds in trust.\n93. The Hearing Panel specifically finds that [Defendant\u2019s] testimony at this hearing was not credible. [Defendant\u2019s] testimony was inconsistent with other testimony of his at the hearing and at his deposition. [Defendant\u2019s] testimony was also inconsistent with the documentation and with the testimony given by the other witnesses at the hearing.\nBased on its findings, the DHC concluded, inter alia, that Defendant \u201ccommitted the crime of embezzlement\u201d and was subject to discipline pursuant to N.C. Gen. Stat. \u00a7 84-28(b)(2) (2013). After making additional findings of fact and conclusions of law regarding discipline, the DHC ordered Defendant disbarred from the practice of law. Defendant filed timely notice of appeal.\nII. Jurisdiction\n\u201cThere shall be an appeal of right by either party from any final order of the Disciplinary Hearing Commission to the North Carolina Court of Appeals.\u201d N.C. Gen. Stat. \u00a7 84-28(h) (2013); accord N.C. Gen. Stat. \u00a7 7A-29(a) (2013). Thus, Defendant\u2019s appeal is properly before this Court.\nIII. Analysis\nDefendant\u2019s appeal presents three questions for our review: (1) whether there was sufficient evidence upon which the DHC could find that Defendant intended to embezzle client funds; (2) whether the DHC could impose discipline based on the embezzlement of client funds without a criminal conviction; and (3) whether the DHC\u2019s order conforms to the requirements of Talford for imposing disbarment as a sanction for attorney misconduct. We address each in turn.\nA. Sufficiency of the Evidence Regarding Intent\nDefendant challenges the sufficiency of the evidence regarding his intent to embezzle client funds. Specifically, Defendant contends that the State Bar failed to present \u201cclear, cogent, and convincing\u201d evidence that Defendant knowingly and willfully misappropriated or embezzled client funds.\nBy statute, our review of the DHC\u2019s disciplinary order is limited to \u201cmatters of law or legal inference.\u201d N.C. Gen. Stat. \u00a7 84-28(h). In examining the record, we apply the whole record test. N. C. State Bar v. Hunter, _N.C. App._,_, 719 S.E.2d 182, 188 (2011). \u201cUnder the whole record test there must be substantial evidence to support the findings, conclusions, and result. The evidence is substantial if, when considered as a whole, it is such that a reasonable person might accept as adequate to support a conclusion.\u201d Id. (quotation marks, citations, and alteration omitted); see also Talford, 356 N.C. at 632, 576 S.E.2d at 309-10 (describing this task as determining whether the DHC\u2019s decision \u201chas a rational basis in the evidence\u201d (quotation marks and citations omitted)). In engaging in this inquiry, we consider the evidence supporting the DHC\u2019s findings as well as evidence tending to contradict those findings. Hunter, _N.C. App. at_, 719 S.E.2d at 188. However, \u201cthe mere presence of contradictory evidence does not eviscerate challenged findings, and [this Court] may not substitute its judgment for that of the [DHC].\u201d Id. Moreover, the evidence used by the DHC to support its findings must rise to the standard of \u201cclear, cogent, and convincing.\u201d Talford, 356 N.C. at 632, 576 S.E.2d at 310.\nIn Talford, our Supreme Court set forth a three-step process to determine if the DHC\u2019s decision has a rational basis in the evidence:\n(1) Is there adequate evidence to support the order\u2019s expressed finding(s) of fact?\n(2) Do the order\u2019s expressed finding(s) of fact adequately support the order\u2019s subsequent condusion(s) of law? and\n(3) Do the expressed findings and/or conclusions adequately support the lower body\u2019s ultimate decision?\nId. at 634, 576 S.E.2d at 311. This three-step process \u201cmust be applied separately\u201d to both the adjudicatoiy phase of the DHC\u2019s proceedings (\u201cDid the defendant commit the offense or misconduct?\u201d) and to the dispositional phase of the DHC\u2019s proceedings (\u201cWhat is the appropriate sanction for committing the offense or misconduct?\u201d). Id. '\nWith our standard of review precisely defined, we now consider Defendant\u2019s first argument on appeal.\nAs an initial matter, we note that in Defendant\u2019s principal brief to this Court, no specific findings of fact were referenced as being in error. Nevertheless, we agree with Defendant that assignments of error to specific findings of fact are not required to properly challenge those findings. \u201cThe scope of review on appeal is limited to issues so presented in the several briefs.\u201d N.C. R. App. R 28(a). Accordingly, because Defendant\u2019s arguments concerning the sufficiency of the evidence address, in substance, the DHC\u2019s finding that Defendant \u201cknowingly and willfully\u201d misappropriated or embezzled client funds, we review the DHC\u2019s findings related to Defendant\u2019s intent.\nThe crime of embezzlement is defined by N.C. Gen. Stat. \u00a7 14-90 (2013) and requires a showing of the following four elements:\n(1) the defendant was the agent or fiduciary of the complainant;\n(2) pursuant to the terms of the defendant\u2019s engagement, he was to receive property of the complainant;\n(3) he did receive such property in the course of his engagement; and\n(4) knowing the property was not his, the defendant either converted it to his own use or fraudulently misapplied it.\nState v. Tucker,_N.C. App._,_, 743 S.E.2d 55, 59 (2013) (emphasis added). \u201cThe intent necessary to convict on a charge of embezzlement is an intent of the agent to embezzle or otherwise willfully and corruptly use or misapply tlie property of the principal for purposes for which the property is not held.\u201d State v. Britt, 87 N.C. App. 152, 153, 360 S.E.2d 291, 292 (1987). \u201cSuch intent may be shown by direct evidence, or by evidence of facts and circumstances from which it may reasonably be inferred.\u201d State v. McLean, 209 N.C. 38, 40, 182 S.E. 700, 702 (1935); N.C. State Bar v. Ethridge, 188 N.C. App. 653, 660, 657 S.E.2d 378, 383 (2008). \u201cIn addition, a person who deposits funds into a personal account knowing that the money belongs to other's is sufficient evidence to show embezzlement.\u201d Ethridge, 188 N.C. App. at 660, 657 S.E.2d at 383. Furthermore, \u201c[t]he intent element for misappropriation' is essentially the same as the crime of embezzlement.\u201d Id. Indeed, misappropriation is a synonym for embezzlement. Id. Thus, we examine the whole record to determine whether there is \u201csubstantial\u201d or \u201cclear, cogent, and convincing\u201d evidence to support the finding that Defendant knowingly and willfully misappropriated client funds.\nOur review of the record in this case reveals substantial evidence from which Defendant\u2019s intent to misappropriate client funds can be reasonably inferred.\nFirst, Defendant knew the correct way to document and maintain his trust account yet failed to do so. Defendant testified that he had previously been on the Trust Account Committee of the State Bar, had attended Continuing Legal Education workshops regarding trust accounting, and had been audited by the State Bar on prior occasions.\nSecond, Defendant made numerous disbursements from his trust account for which he had no supporting documentation.\nThird, both clients who testified at the hearing indicated that Defendant did not tell them about taking an additional disbursement from their account, and the clients were never informed concerning the amount of the disbursement or its purpose.\nFourth, one of these clients filed a Client Security Fund Application with the State Bar alleging that Defendant took an additional disbursement from his account dishonestly. Testimony revealed that Defendant reimbursed the client in question after learning that the client was going to be deposed in the State Bar\u2019s investigation \u201cso that [the client] would have good feelings towards [him].\u201d\nFifth, the additional disbursements were often made when Defendant was in financial need.\nSixth, Defendant\u2019s attribution of the additional disbursements to expenses, additional legal work, accounting mistakes, and compliance with client requests is inconsistent with the other record evidence. For example, for the first client named in the State Bar\u2019s complaint, Defendant took an additional disbursement of $250 on 12 March 2010. Defendant testified that this additional disbursement was for additional legal services, namely, drafting a complaint. However, the client testified that she was unaware of this additional fee and the memo line of the check indicated that the disbursement was for \u201cOffice Expenses Reimbursement.\u201d\nLikewise, for the second client named in the State Bar\u2019s complaint, Defendant took an additional disbursement of $250 for himself and another $200 for his assistant on 14 and 19 January 2011, respectively. Defendant testified that his disbursement was for work on an unrelated criminal case the client asked Defendant to handle and that the disbursement to his assistant was made at the client\u2019s request. However, there was no evidence of the other criminal case in the record and the memo line on Defendant\u2019s disbursement check read \u201cfee to collect MedPay.\u201d The memo line on the check to Defendant\u2019s assistant indicated that the check was for \u201coffice expenses.\u201d\nAs a final example, for the third client named in the State Bar\u2019s complaint, Defendant took an additional disbursement of $500 on 20 June 2011. Defendant testified that this disbursement was for travel expenses. Defendant also testified that the client consented to the payment. However, the client denied consenting to the payment and the memo line of the check indicates the additional disbursement was for \u201clegal fees.\u201d\nBased on the foregoing evidence, as well as the other record evidence presented to this Court, we hold that there was \u201csubstantial\u201d or \u201cclear, cogent, and convincing\u201d evidence to support the DHC\u2019s finding that Defendant knowingly and willfully misappropriated client funds. While Defendant points to his own testimony to negate this inference of intent, the DHC found that Defendant\u2019s testimony was not credible based on its inconsistency with other evidence presented at the hearing. Our review has confirmed those inconsistencies. Accordingly, Defendant\u2019s argument regarding the sufficiency of the evidence, on balance, lacks credibility.\nB. The Absence of a Criminal Conviction\nDefendant\u2019s second argument on appeal challenges the DHC\u2019s decision to discipline Defendant and impose disbarment as a sanction for Defendant\u2019s misconduct without a criminal embezzlement conviction. Defendant contends that the State Bar\u2019s rules forbid the DHC from concluding that Defendant \u201ccommitted\u201d a felony without first being charged and convicted of a felony in criminal court.\nQuestions concerning the construction and interpretation of the State Bar\u2019s rules are questions of law that are reviewed de novo on appeal. N.C. State Bar v. Brewer, 183 N.C. App. 229, 233, 644 S.E.2d 573, 576 (2007). \u201cUnder a de novo review, the court considers the matter anew and freely substitutes its own judgment for that of the lower tribunal.\u201d Craig v. New Hanover Cnty. Bd. of Educ., 363 N.C. 334, 337, 678 S.E.2d 351, 354 (2009) (quotation marks and citation omitted).\nHere, the DHC\u2019s order concludes as a matter of law that \u201c [Defendant] committed the crime of embezzlement.\u201d As a result of this conduct, the DHC concluded that Defendant was subject to discipline pursuant to N.C. Gen. Stat. \u00a7 84-28(b)(2), which provides for attorney discipline when there has been a \u201cviolation of the Rules of Professional Conduct adopted and promulgated by the [State Bar] Council in effect at the time of the act.\u201d One of those rules, found to have been violated here, states \u201c[i]t is professional misconduct for a lawyer to . . . commit a criminal act that reflects adversely on the lawyer\u2019s honesty, trustworthiness or fitness as a lawyer in other respects.\u201d N.C. R. Prof\u2019l Conduct 8.4(b). The official commentary to the rule states:\nThe purpose of professional discipline for misconduct is not punishment, but to protect the public, the courts, and the legal profession. Lawyer discipline affects only the lawyer\u2019s license to practice law. It does not result in incarceration. For this reason, to establish a violation of paragraph (b), the burden of proof is the same as for any other violation of the Rules of Professional Conduct: it must be shown by clear, cogent, and convincing evidence that the lawyer committed a criminal act that reflects adversely on the lawyer\u2019s honesty, trustworthiness, or fitness as a lawyer. Conviction of a crime is conclusive evidence that the lawyer committed a criminal act although, to establish a violation of paragraph (b), it must be shown that the criminal act reflects adversely on the lawyer\u2019s honesty, trustworthiness, or fitness as a lawyer. If it is established by clear, cogent, and convincing evidence that a lawyer committed a criminal act that reflects adversely on the lawyer\u2019s honesty, trustworthiness, or fitness as a lawyer, the lawyer may be disciplined for a violation of paragraph (b) although the lawyer is never prosecuted or is acquitted or pardoned for the underlying criminal act.\nId. cmt. 3; see also N.C. State Bar v. Rush, 121 N.C. App. 488, 490, 466 S.E.2d 340, 341-42 (1996) (\u201cThe rule does not require a conviction, only that a criminal act be committed.... Therefore, conviction of a crime is not a necessary element in a disciplinary proceeding.\u201d).\nDefendant does not call our attention to this rule, rather, Defendant cites 27 N.C. Admin. Code lB.0114(w)(2)(D) (2012) to support his claim that a criminal conviction is required. That rule requires the DHC to consider disbarment as a possible sanction if the defendant is found to engage in the \u201ccommission of a felony.\u201d Id. Defendant argues that \u201cthe plain language of the State Bar\u2019s Rule contemplates a felony conviction.\u201d However, we cannot agree with Defendant\u2019s interpretation given the fact that the rule uses \u201ccommission\u201d rather than \u201cconviction\u201d and given the clear mandate found in the State Bar\u2019s commentary and our caselaw interpreting N.C. R. Prof\u2019l Conduct 8.4(b). The rationale for not requiring a criminal conviction under N.C. R. Prof\u2019l Conduct 8.4(b) is equally persuasive when interpreting 27 N.C. Admin. Code lB.0114(w)(2)(D). Thus, because clear, cogent, and convincing evidence supports the DHC\u2019s conclusion that Defendant committed the crime of embezzlement in violation of N.C. R. Prof\u2019l Conduct 8.4(b), the DHC was required to consider disbarment as a possible sanction pursuant to 27 N.C. Admin. Code lB.0114(w)(2)(D). Defendant\u2019s second argument on appeal is without merit.\nC. The DHC\u2019s Order and Talford\nDefendant\u2019s third argument on appeal is that the DHC\u2019s order failed to conform to the requirements of Talford for imposing disbarment as a sanction for attorney misconduct.\nIn Talford, our Supreme Court held that\nin order to merit the imposition of \u201csuspension\u201d or \u201cdisbarment,\u201d there must be a clear showing of how the attorney\u2019s actions resulted in significant harm or potential significant harm to [a client, the administration of justice, the profession, or members of the public], and there must be a clear showing of why \u201csuspension\u201d and \u201cdisbarment\u201d are the only sanction options that can adequately serve to protect the public from future transgressions by the attorney in question.\nTalford, 356 N.C. at 638, 576 S.E.2d at 313. \u201cThus, upon imposing a given sanction against an offending attorney, the DHC must provide support for its decision by including adequate and specific findings that address these two key statutory considerations.\u201d Id.\nHere, after concluding that Defendant\u2019s conduct warranted discipline in the adjudicative part of the order, the DHC reincorporated its previous findings of fact and made 16 additional findings of fact regarding discipline. Defendant has not challenged these additional findings with argument on appeal, we therefore consider them binding before this Court. Hunter,_N.C. App. at_, 719 S.E.2d at 188-89. Moreover, because we have determined that the DHC\u2019s finding concerning Defendant\u2019s intent to misappropriate client funds is supported by substantial evidence, we consider that fact established as well.\nWith respect to the first inquiry, i.e., whether the order clearly shows how Defendant\u2019s actions resulted in significant harm or potential significant harm, we hold that the DHC\u2019s order is sufficient. Implicit in the DHC\u2019s conclusion that Defendant violated N.C. R. Prof\u2019l Conduct 8.4(b) and (c) \u201cis a determination that his misconduct poses a significant potential harm to clients.\u201d N.C. State Bar v. Leonard, 178 N.C. App. 432, 446, 632 S.E.2d 183, 191 (2006). Furthermore, we find the following findings of fact in the DHC\u2019s disciplinary order compelling:\n2. Defendant put his own personal interests ahead of his clients\u2019 interests.\n7. Defendant, by engaging in conduct involving misappropriation, misrepresentation and deceit over a number of years and by making false statements about his conduct, has shown himself to be untrustworthy.\n8. Defendant, through his misappropriation, misrepresentation, and deceit, has caused harm to the standing of the legal profession, by undermining trust and confidence in lawyers and the legal system.\n9. Defendant\u2019s misappropriation has caused significant harm to his clients and to third parties, namely the medical providers of his clients.\n10. Defendant misappropriated funds for his own benefit that should have been used for the benefit of his clients, either by payment to the client or payment to the Ghent\u2019s medical provider(s).\n13.... [Defendant] has not otherwise made any restitution for amounts misappropriated from clients. [Defendant] has not rectified the deficit in his trust account.\n15. Defendant has failed to acknowledge that he misappropriated client funds. Defendant has provided explanations that are not consistent with the evidence received at the hearing in this matter.\nBased on these and other findings, the DHC concluded:\n3. Defendant caused significant harm to his clients by misappropriating their funds.\n4. Defendant caused significant harm to medical providers who should have received payments from funds Defendant misappropriated.\n5. Defendant has caused significant harm and potential harm to clients whose funds he should have in his trust account but for whom he has insufficient funds in his trust account.\n6. Defendant\u2019s repeated commission of criminal acts reflecting adversely on his honesty, trustworthiness or fitness as a lawyer, his dishonest and deceitful conduct in placing false information on trust account checks to disguise his misappropriation, and the presentation of testimony that conflicted with the credible evidence received in the case caused significant harm to the legal profession by undermining trust and confidence in lawyers and the legal system.\nWe believe that in light of these findings and conclusions, the DHC\u2019s order clearly shows how Defendant\u2019s actions resulted in significant harm to his clients, the administration of justice, the profession, and members of the general public.\nLikewise, with respect to the second inquiry, i.e., whether the order contains a clear showing of why disbarment is the only sanction option that can adequately serve to protect the public, we hold that the DHC\u2019s order is sufficient. In addition to considering and reciting all applicable factors relevant to attorney discipline found in 27 N.C. Admin. Code lB.0114(w)(l), (2), and (3), the DHC\u2019s order stated:\n7. The Hearing Panel has considered lesser alternatives and finds that disbarment is the only sanction that can adequately protect the public. An attorney\u2019s duty to preserve funds entrusted to the attorney is one of the most sacred that an attorney undertakes. The attorney should never violate that duty of trust.\n8. The Hearing Panel considered lesser alternatives and finds that suspension of Defendant\u2019s license or a public censure, reprimand, or admonition would not be sufficient discipline because of the gravity of the actual and potential harm to his clients, the public, and the legal profession caused by Defendant\u2019s conduct, and the threat of potential significant harm Defendant poses to the public. The Hearing Panel has considered the evidence of Defendant\u2019s good character and pro bono service. However, given the repeated acts of dishonesty, misrepresentation, and deceit by [Defendant] established by the evidence presented. at hearing and the significant harm and potential harm caused by [Defendant] established by the evidence . . . , the evidence of Defendant\u2019s good character and pro bono service does not warrant imposition of a lesser discipline.\n9. The Hearing Panel has considered all lesser sanctions and finds that discipline short of disbarment would not adequately protect the public for the following reasons:\na. Defendant engaged in misconduct constituting felonies and violations of the trust' of his clients and the public;\nb. Entry of an order imposing less serious discipline would fail to acknowledge the seriousness of the offenses Defendant committed and would send the wrong message to attorneys and the public regarding the conduct expected of members of the Bar of this Statef.]\nWe believe these entries clearly establish that the DHC considered all lesser sanctions and explain why the DHC felt disbarment was the only adequate sanction in this case. Accordingly, we hold that the DHC\u2019s ultimate decision to disbar Defendant has a rational basis in the evidence and is consistent with our Supreme Court\u2019s decision in Talford.\nIV. Conclusion\nFor the foregoing reasons, we affirm the order of discipline disbarring Defendant from the practice of law.\nAFFIRMED.\nChief Judge MARTIN and Judge ELMORE concur.\n. Defendant reimbursed the client during the pendency of the State Bar\u2019s investigation.\n. The State Bar provides resources and support to ensure that lawyers manage trusts accounts properly. The Lawyer\u2019s Trust Account Handbook examines the Rules of Professional Conduct pertinent to trust accounting and contains best practices for North Carolina attorneys. See Lawyer\u2019s Trust Account Handbook, The North Carolina State Bar (Revised May 2011), http://www.ncbar.com/PDFs/Trust%20Account%20Handbook.pdf.\n. The Lawyer\u2019s Trust Account Handbook indicates that a client\u2019s file should contain documentation supporting disbursements and identifies poor bookkeeping as a means of concealing embezzlement of client funds. Id. at 48. As a best practice for bookkeeping, \u201c[a] copy of the client\u2019s ledger card may be provided to the client as a written accounting of the receipt and disbursement of funds. When this is done, the client should sign and date the original to show that the client was given a written accounting of his or her funds....\u201d Id. at 30.\n. Notably, the DHC also considered disbarment as a possible sanction pursuant to 27 N.C. Admin. Code lB.0114(w)(2)(C), which states that \u201c[disbarment shall be considered where the defendant is found to engage in:... (C) misappropriation or conversion of assets of any kind to which the defendant or recipient is not entitled, whether from a client or any other source.\u201d Like 27 N.C. Admin. Code lB.0114(w)(2)(D), the plain language of this provision does not suggest that a criminal conviction is required.", "type": "majority", "author": "HUNTER, JR., Robert N., Judge." } ], "attorneys": [ "The North Carolina State Bar, by Deputy Counsel David R. Johnson and Counsel Katherine Jean, for plaintiff-appellee.", "Poyner Spruill LLP, by M. Jillian DeCamp and Carrie V. McMillan, for defendant-appellant." ], "corrections": "", "head_matter": "THE NORTH CAROLINA STATE BAR, Plaintiff v. GEOFFREY H. SIMMONS, Attorney, Defendant\nNo. COA13-1140\nFiled 6 May 2014\n1. Attorneys \u2014 disciplinary action \u2014 embezzlement of client funds \u2014 sufficient evidence \u2014 knowingly and willfully\nThe State Bar did not fail to present clear, cogent, and convincing evidence that defendant knowingly and willfully misappropriated or embezzled client funds. There was substantial evidence in the record upon which the Disciplinary Hearing Commission could find that defendant intended to embezzle client funds.\n2. Attorneys \u2014 disciplinary action \u2014 embezzlement of client funds \u2014 conviction of crime not required\nThe Disciplinary Hearing Commission did not erroneously discipline defendant and impose disbarment from the practice of law as a sanction for defendant\u2019s embezzling client funds where defendant had not been convicted of embezzlement in criminal court. Conviction of a crime is not a necessary element in a disciplinary proceeding and defendant need only have committed the crime to be disciplined.\n3. Attorneys \u2014 disciplinary action \u2014 disbarment\u2014adequate factual support\nThe Disciplinary Hearing Commission\u2019s (DHC) order imposing disbarment as a sanction for defendant\u2019s misconduct conformed to the requirements of N.C. State Bar v. Talford, 356 N.C. 626. The DHC provided support for its decision by including adequate and specific findings that addressed the two key statutory considerations.\nAppeal by defendant from order of discipline entered 19 April 2013 by the Disciplinary Hearing Commission of the North Carolina State Bar. Heard in the Court of Appeals 17 February 2014.\nThe North Carolina State Bar, by Deputy Counsel David R. Johnson and Counsel Katherine Jean, for plaintiff-appellee.\nPoyner Spruill LLP, by M. Jillian DeCamp and Carrie V. McMillan, for defendant-appellant." }, "file_name": "0669-01", "first_page_order": 679, "last_page_order": 692 }