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North Carolina State Bar v. Foster

Court of Appeals of North Carolina

December 19, 2017

THE NORTH CAROLINA STATE BAR, Plaintiff,
v.
JENNIFER NICOLE FOSTER, Attorney, Defendant.

          Heard in the Court of Appeals 18 October 2017.

         Appeal by defendant from order entered 13 September 2016 by the Disciplinary Hearing Commission of the North Carolina State Bar, No. 14 DHC 7

          The 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.

          ELMORE, JUDGE.

         Attorney 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.

         I. Background

         Defendant 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.

         Office 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 she left.

         At 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) (unpublished).

         Based 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.

         II. Discussion

         Any 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).

         Disciplinary 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 . . . ...


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