in the Court of Appeals 18 October 2017.
by defendant from order entered 13 September 2016 by the
Disciplinary Hearing Commission of the North Carolina State
Bar, No. 14 DHC 7
North Carolina State Bar, by Counsel Katherine Jean and
Deputy Counsel David R. Johnson, for plaintiff-appellee.
Jennifer Nicole Foster, pro se, for defendant-appellant.
Jennifer Nicole Foster ("defendant") appeals from
an order of discipline issued by the Disciplinary Hearing
Commission ("DHC") of the North Carolina State Bar.
In its order, the DHC determined that defendant violated
Rules of Professional Conduct 3.5 and 8.4. The DHC thus
imposed a two-year suspension of defendant's law license,
stayed for the duration of the suspension so long as
defendant complies with certain conditions. After careful
review, we affirm the order of the DHC.
was admitted to the North Carolina State Bar in 1995 and was
practicing law in Asheville as of 2011. On the evening of 5
November 2011, defendant entered the magistrate's office
in the Buncombe County Detention Center to inquire about
arrest warrants that had been issued for several members of
the Occupy Asheville movement. Defendant encountered
Magistrate Amanda Fisher, one of two magistrates on duty at
the time, and identified herself as an attorney there on
behalf of the movement. Defendant then asked Magistrate
Fisher "what the hell is going on around here"
regarding the warrants. Magistrate Fisher warned defendant to
watch her language and told her that she was in a courtroom.
Defendant, however, maintains that Magistrate Fisher never
mentioned the word "court" or warned defendant to
watch her language.
policy prohibited Magistrate Fisher from providing defendant
with information regarding outstanding warrants on other
individuals, but she did inform defendant there were no
outstanding warrants on defendant herself. Defendant
responded "what the f*** is going on around here, "
prompting Magistrate Fisher to renew her warning to
defendant, but defendant nevertheless repeated the profanity
multiple times. As Magistrate Fisher told defendant she was
being held in contempt of court, defendant walked out of the
magistrate's office, loudly repeating more vulgarities as
Magistrate Fisher's request, detention officers stopped
defendant from leaving the premises and returned her to the
magistrate's office. The second magistrate on duty that
evening appeared and witnessed the remainder of
defendant's profanities while Magistrate Fisher entered
the order for contempt. On 17 January 2012, defendant was
convicted of direct criminal contempt of court following a 1
December 2011 hearing in Buncombe County Superior Court.
Defendant appealed, and this Court ultimately reversed her
conviction on procedural grounds. In re Foster, 227
N.C.App. 454, 744 S.E.2d 496, 2013 WL 2190072 (2013)
on these events, the State Bar filed a complaint against
defendant with the DHC on 25 March 2014. The proceedings were
continued pending federal action initiated by defendant
against Magistrate Fisher, among others, and the DHC
eventually held a hearing on 8 July 2016. In its order of
discipline dated 13 September 2016, the DHC found that
defendant's conduct violated Rules of Professional
Conduct 3.5(a)(4)(B) and 8.4(d), and it stayed a two-year
suspension of her license pending compliance with certain
conditions (e.g., that defendant follow the recommendations
and treatment program of her therapist). Defendant filed
timely notice of appeal.
attorney admitted to practice law in this state is subject to
the disciplinary jurisdiction of the DHC for, inter
alia, violation of the Rules of Professional Conduct
adopted by the State Bar. N.C. Gen. Stat. §§
84-28(a)-(b)(3) (2015). Either party may appeal a final order
from the DHC to this Court, where our review is limited to
"matters of law or legal inference." N.C. Gen.
Stat. § 84-28(h).
actions are reviewed under the whole record test. N.C.
State Bar v. Talford, 356 N.C. 626, 632-33, 576 S.E.2d
305, 309-10 (2003). The whole record test "requires the
reviewing court to determine if the DHC's findings of
fact are supported by substantial evidence in view of the
whole record, and whether such findings of fact support its
conclusions of law. Such supporting evidence is substantial
if a reasonable person might accept it as adequate backing
for a conclusion." Id. (citation omitted). In
addition to being substantial, the evidence the DHC uses to
support its findings and conclusions must be clear, cogent,
and convincing. Id. (citing In re Suspension of
Palmer, 296 N.C. 638, 648, 252 S.E.2d 784, 790 (1979)).
Although the reviewing court must consider contradictory
evidence, the presence of such evidence "does not
eviscerate challenged findings, and the reviewing court may
not substitute its judgment for that of the DHC. The DHC
determines the credibility of the witnesses and the weight of
the evidence." N.C. State Bar v. Adams, 239
N.C.App. 489, 495, 769 S.E.2d 406, 411 (2015). Thus, when
there are two reasonably conflicting views, " 'the
whole record test does not allow the reviewing court to
replace the DHC's judgment . . . ...