The N.C. State Bar v. Merritt

IN THE COURT OF APPEALS OF NORTH CAROLINA

2022-NCCOA-633

No. COA22-191

Filed 20 September 2022

Disciplinary Hearing Commission, No. 21 DHC 5

THE NORTH CAROLINA STATE BAR, Plaintiff,

v.

LONNIE P. MERRITT, Defendant.

Appeal by defendant from order entered 21 September 2021 by the

Disciplinary Hearing Commission. Heard in the Court of Appeals 23 August 2022.

The North Carolina State Bar, by Deputy Counsel David R. Johnson, for
Plaintiff-Appellee.

Narain Legal PLLC, by Lucky Narain, for Defendant-Appellant.

CARPENTER, Judge.

¶1 Lonnie P. Merritt (“Defendant”) appeals from an order of discipline (the

“Order”) entered by the Disciplinary Hearing Commission (the “DHC”) of the North

Carolina State Bar (the “State Bar”), concluding he attempted to engage in sexual

relations with his current client, C.T., and did engage in sexual relations with C.T.

while she was a current client, in violation of the North Carolina Rules of Professional

Conduct (the “Rules”). The Order suspended Defendant’s license to practice law for

one year. After careful review, we affirm the Order.
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I. Factual & Procedural Background

¶2 This is an attorney discipline case arising from a complaint filed by the State

Bar alleging Defendant had an extramarital affair with his current client, C.T.

¶3 Defendant was admitted to the State Bar in August 2008. Defendant lived

with his wife in Wilmington, North Carolina, where he practiced law. C.T. initially

contacted Defendant in December 2017 to discuss marital separation and divorce. In

March 2018, C.T. contacted Defendant again after receiving a proposed court filing

from her spouse related to their domestic dispute. Defendant agreed to represent

C.T. in the matter.

¶4 On 9 March 2018, C.T. and Defendant executed an agreement for C.T.’s

representation, the Non-Litigation Client Agreement (the “Initial Agreement”).

Pursuant to the Initial Agreement, the “Covered Services” included in the

representation were, inter alia, drafting a consent order for equitable distribution,

child custody, and child support. The Initial Agreement also included “seeking an

[a]bsolute [d]ivorce” as one of the Covered Services, if such service was requested by

C.T. Representation under the Initial Agreement “terminate[d] upon either: (1) the

entry of an order with the court, or (2) when the Firm . . . provided Covered Services

. . . or (3) [C.T.’s] fail[ure] to pay any fee that [became] due” under the agreement.

¶5 On 3 August 2018, C.T. and Defendant signed a second agreement, the

Litigation Client Agreement (the “Second Agreement”), in which Defendant was to
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represent C.T. in the matters of child custody and child support. The Second

Agreement explicitly excluded the “[f]iling for absolute divorce” from the scope of

representation. There was no language in the Second Agreement that superseded or

nullified the Initial Agreement.

¶6 On Saturday, 4 August 2018, Defendant met C.T. after business hours at the

health clinic where she worked and where he was not a client, following C.T.’s

invitation. C.T. performed an ultrasound of Defendant’s heart at no charge and

without authorization of the clinic. For the procedure, Defendant removed his shirt

at C.T.’s direction. As Defendant parted ways with C.T. at the end of the visit,

Defendant advised C.T. that he and her husband’s attorney had negotiated a consent

order (the “Consent Order”), and it was ready to be signed.

¶7 Later that day, Defendant met C.T. at her house to execute the Consent Order,

although Defendant never met clients at his own house and normally met clients at

a coffee shop or an office space of a colleague. After C.T. and Defendant signed the

Consent Order, Defendant sat on the couch with C.T. Defendant “perceived a mutual

attraction at the [health] clinic” and “again at [C.T.’s] house.” Defendant asked C.T.

if he could kiss her, and she consented. The two “made out” on the couch, and

Defendant moved his hand under her dress, touching her leg. Defendant also

“snapped [C.T.’s Spanx bodysuit undergarment] on her side,” causing Defendant and

C.T. to laugh. At some point, C.T. asked Defendant to stop. Thereafter, they spoke
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but did not continue kissing, and Defendant went home. C.T. and Defendant had

several “lengthy late-night phone calls,” beginning that evening and through August

2018.

¶8 On 8 August 2018, the Consent Order was countersigned by C.T.’s husband

and her husband’s attorney. On 28 August 2018, the Consent Order was filed in the

New Hanover County District Court and signed by a district court judge. The

Consent Order allowed Defendant to withdraw as counsel for C.T., although there is

no evidence in the record of Defendant doing so.

¶9 By mid-September, Defendant and C.T. began having sexual intercourse. On

24 September 2018, Defendant signed a divorce complaint on behalf of C.T. as the

attorney of record, and the complaint was filed on 26 September 2018. Defendant

filed a motion for summary judgment and represented C.T. at the hearing on the

motion. On 2 November 2018, a divorce judgment was entered, granting C.T. an

absolute divorce.

¶ 10 On 11 January 2021, the State Bar filed a complaint with the DHC against

Defendant alleging Defendant violated the Rules by:

(a) “making out” with C.T. at her home because he
“perceived a mutual attraction[.]” Defendant attempted
to engage in sexual relations with a current client in
violation of Rule 8.4(a);

(b) continuing to represent C.T. after they began a
romantic relationship, Defendant represented a client
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under circumstances where his ability to represent her
could be materially limited by his personal interests in
violation of Rule 1.7(a)(2);

(c) engaging in a sexual relationship with his current
client[ in violation of] Rule 1.19(a); and

(d) falsely telling C.T. that his wife had threatened to sue
her for alienation of affection, Defendant engaged in
conduct involving dishonesty, deceit, or
misrepresentation in violation of Rule 8.4(c).

The complaint sought disciplinary action against Defendant in accordance with N.C.

Gen. Stat. § 84-28. On 10 February 2021, Defendant filed a pro se answer to the State

Bar’s complaint.

¶ 11 On 23 August 2021, the matter was heard before a three-member DHC panel,

pursuant to N.C. Gen. Stat. § 84-28.1(b). Defendant was represented by counsel at

the hearing. On 21 September 2021, the DHC entered its written Order, in which it

made the following findings of fact by clear, cogent, and convincing evidence in the

adjudication phase:

(1) Plaintiff, the North Carolina State Bar, is a body duly
organized under the laws of North Carolina and is the
proper party to bring this proceeding under the
authority granted it in Chapter 84 of the General
Statutes of North Carolina, and the Rules and
Regulations of the North Carolina State Bar (Chapter 1
of Title 27 of the North Carolina Administrative Code).

(2) Defendant, Lonnie P. Merritt, was admitted to the
North Carolina State Bar in August 2008, and is, and
was at all times referred to herein, an attorney at law
licensed to practice in North Carolina, subject to the
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laws of the State of North Carolina, the Rules and
Regulations of the North Carolina State Bar and the
Rules of Professional Conduct.

(3) During all or part of the relevant periods referred to
herein, Merritt was engaged in the practice of law in
Wilmington, New Hanover County, North Carolina.

(4) Merritt was properly served with the summons and
complaint in this matter.

(5) C.T. hired Merritt in March 2018 for representation in
her domestic case.

(6) On Saturday 4 August 2018, Merritt went to C.T.’s
home to have her sign a consent order regarding
equitable distribution, alimony, child custody, and child
support.

(7) After C.T. signed the document, Merritt perceived that
there was a mutual attraction, so he asked permission
to kiss C.T. and she said yes. When they broke away
from “making out” C.T. stated they could not “go any
further,” so they did not have sexual intercourse that
day.

(8) C.T’.’s spouse didn’t sign the consent order until 8
August 2018, and it wasn’t filed until 23 [sic] August
2018.

(9) After their interaction on 4 August 2018, Merritt and
C.T. began a romantic relationship that included
lengthy late-night phone calls.

(10) In mid-September 2018, Hurricane Florence hit the
Wilmington area. After the storm, Merritt stayed with
C.T. at C.T.’s mother’s house for two days. Merritt then
stayed with C.T. at her home for several more days.
Merritt and C.T. began having sex.

(11) Merritt filed a complaint for absolute divorce on
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C.T.’s behalf on 26 September 2018 and continued to
represent C.T. until her divorce was finalized in
November 2018.

¶ 12 Based on these findings of fact, the DHC then made the following conclusions

of law in the adjudication phase:

(1) All parties are properly before the Hearing Panel and
this tribunal has jurisdiction over Defendant, Lonnie P.
Merritt, and the subject matter of this proceeding.

(2) Defendant’s conduct, as set out in the Findings of Fact
above, constitutes grounds for discipline pursuant to
N.C. Gen. Stat. § 84-28(b)(2) in that Merritt violated the
Rules of Professional Conduct in effect at the time of his
conduct as follows:

(a) By “making out” with C.T. at her home because
he “perceived a mutual attraction,” Defendant
attempted to engage in sexual relations with a
current client in violation of Rule 8.4(a); and

(b) By engaging in a sexual relationship with his
current client, Defendant violated Rule 1.19(a).

¶ 13 Finally, the DHC made additional findings of fact and conclusions of law

regarding discipline in the dispositional phase. Based on all findings of fact and

conclusions of law made by the DHC, it entered its order of discipline, suspending

Defendant’s license to practice law in the State of North Carolina for one year.

¶ 14 On 19 October 2021, Defendant filed timely written notice of appeal from the

Order.

II. Jurisdiction
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¶ 15 This Court has jurisdiction to address Defendant’s appeal from a final order of

the DHC. N.C. Gen. Stat. § 84-28(h) (2021).

III. Issues

¶ 16 The issues before this Court are whether the DHC: (1) erred in concluding

Defendant attempted to engage in sexual relations with his current client C.T. by

“making out” with her after he “perceived a mutual attraction”; (2) erred in

concluding C.T. was a current client when Defendant and C.T. engaged in sexual

relations; (3) erred in finding that Defendant had inadequate boundaries between his

professional and personal relationships; (4) erred in finding that Defendant chose to

undermine the fiduciary relationship he shared with C.T., intentionally causing harm

to C.T. and the profession; (5) erred in concluding the factors of “selfish motive” and

“pattern of misconduct” are present in Defendant’s case; and (6) abused its discretion

in suspending Defendant from the practice of law for one year.

IV. Standard of Review

¶ 17 This Court reviews decisions of the DHC using the “whole record” test, “which

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.” N.C. State Bar v. Leonard, 178 N.C. App. 432, 437,

632 S.E.2d 183, 187 (2006) (citation and quotation mark omitted); see also N.C. Gen.

Stat. § 150B-51(5) (2021). “The evidence is substantial if, when considered as a whole,
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it is such that a reasonable person might accept as adequate to support a conclusion.”

N.C. State Bar v. DuMont, 304 N.C. 627, 643, 286 S.E.2d 89, 99 (1982) (citation

omitted). Moreover, the evidence “must rise to the standard of ‘clear[, cogent,] and

convincing.’” N.C. State Bar v. Talford, 356 N.C. 626, 632, 576 S.E.2d 305, 310 (2003)

(citation omitted). “[U]nchallenged findings of fact[ ] are binding on appeal.” N.C.

State Bar v. Key, 189 N.C. App. 80, 87, 658 S.E.2d 493, 498 (2008) (citation omitted).

After reviewing the whole record, this Court must
determine whether the DHC’s decision has a rational basis
in the evidence. [T]he following steps are necessary as a
means to decide if a lower body’s decision has a “rational
basis in the evidence”: (1) Is there adequate evidence to
support the order’s expressed finding(s) of fact? (2) Do the
order’s expressed finding(s) of fact adequately support the
order’s subsequent conclusion(s) of law? and (3) Do the
expressed findings and/or conclusions adequately support
the lower body’s ultimate decision? We note, too, that in
cases such as the one at issue, e.g., those involving an
“adjudicatory phase” (Did the defendant commit the
offense or misconduct?), and a “dispositional phase” (What
is the appropriate sanction for committing the offense or
misconduct?), the whole-record test must be applied
separately to each of the two phases.

N.C. State Bar v. Ethridge, 188 N.C. App. 653, 658–59, 657 S.E.2d 378, 382 (2008)

(citation and quotation marks omitted).

¶ 18 “The whole-record test also mandates that the reviewing court must take into

account any contradictory evidence or evidence from which conflicting inferences may

be drawn.” Id. at 660, 657 S.E.2d at 383 (citation omitted). However, “[t]he whole
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record test does not allow the reviewing court to replace the [DHC’s] judgment as

between two reasonably conflicting views, even though the court could justifiably

have reached a different result had the matter been before it de novo.” N.C. State

Bar v. Nelson, 107 N.C. App. 543, 550, 421 S.E.2d 163, 166 (1992).

V. Analysis

A. Challenges to the Adjudication Phase

1. Conclusion of Law 2(a)

¶ 19 In his first argument, Defendant contends conclusion of law 2(a) is not

supported by findings or substantial evidence. Defendant further contends “the word

‘attempt’ . . . is generally found within the context of criminal actions,” and “[a]ttempt

offenses are not listed in the [Rules].” The State Bar argues conclusion of law 2(a) is

fully supported by Defendant’s stipulations and the undisputed evidence.

¶ 20 Rule 8.4 provides “[i]t is professional misconduct for a lawyer to . . . violate or

attempt to violate the Rules of Professional Conduct . . . .” N.C. R. Pro. Conduct 8.4(a).

Thus, under the Rules, professional misconduct occurs, inter alia, when there is an

attempt to violate any other rule of professional conduct. See N.C. R. Pro. Conduct

8.4(a). Rule 1.19 prohibits a lawyer from “hav[ing] sexual relations with a current

client of the lawyer” unless “a consensual sexual relationship existed between the

lawyer and the client before the legal representation commenced.” N.C. R. Pro.

Conduct 1.19(a)–(b). “Sexual relations” is defined as “(1) [s]exual intercourse; or (2)
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[a]ny touching of the sexual or other intimate parts of a person or causing such person

to touch the sexual or other intimate parts of the lawyer for the purpose of arousing

or gratifying the sexual desire of either party.” N.C. R. Pro. Conduct 1.19(d).

¶ 21 This Court has applied the elements of criminal attempt to an attorney

disciplinary action notwithstanding its acknowledgment that the Rules do not

contain such a requirement. See N.C. State Bar v. Livingston, 257 N.C. App. 121,

129, 809 S.E.2d 183, 189–90 (2017), disc. rev. denied, 371 N.C. 112, 812 S.E.2d 853

(2018). The elements for common law criminal attempt are: “(1) the intent to commit

the substantive offense, and (2) an overt act done for that purpose which goes beyond

mere preparation, but (3) falls short of the completed offense.” Id. at 129, 809 S.E.2d

at 189–90 (quoting State v. Coble, 251 N.C. 448, 449, 527 S.E.2d 45, 46 (2000)).

“Intent is a mental attitude so it must ordinarily be proven by circumstances from

which it can be inferred.” State v. English, 241 N.C. App. 98, 106, 772 S.E.2d 740,

746 (citation and quotation marks omitted), disc. rev. denied, 368 N.C. 287, 776

S.E.2d 201 (2015).

¶ 22 Here, it can be reasonably inferred from the findings of fact, and the underlying

substantial circumstantial evidence supporting these findings, that Defendant

attempted to have sexual relations with C.T. on 15 August 2018. See id. at 106, 772

S.E.2d at 746. Despite Defendant’s testimony to the contrary, the substantial

evidence of record, viewed as a whole, reveals Defendant intended to have sexual
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relations with C.T. on 15 August 2018. Defendant’s intent is evidenced by meeting

C.T. inside her home on a Saturday and asking to kiss her. See id. at 106, 772 S.E.2d

at 746; Coble, 251 N.C. at 449, 527 S.E.2d at 46. He performed the overt acts of

kissing C.T., touching C.T.’s leg under her dress, and snapping C.T.’s undergarment

against her body. See Coble, 251 N.C. at 449, 527 S.E.2d at 46. Finally, Defendant

did not have sexual intercourse with C.T. because C.T. did not want to “go any

further”; thus, Defendant’s actions fell short of a completed rule violation. See id. at

449, 527 S.E.2d at 46. We conclude the findings show Defendant attempted to have

sexual relations with C.T. on 15 August 2018, in violation of Rule 1.19(a). See id. at

449, 527 S.E.2d at 46; Livingston, 257 N.C. App. at 129, 809 S.E.2d at 189–90; see

also N.C. R. Pro. Conduct 1.19(a).

¶ 23 Relying on Romulus v. Romulus, 215 N.C. App. 495, 715 S.E.2d 308 (2011) and

citing a lower court’s finding of fact in that case, Defendant argues “this Court [has]

found kissing not to be ‘sexual relations.’” Not only is this proposition inaccurate, the

question of whether “kissing” constitutes “sexual relations” was not decided by the

Romulus Court. Furthermore, Romulus did not concern whether an attorney had

attempted to violate any rule of professional conduct. Rather, the pertinent issue was

whether the plaintiff was barred from alimony pursuant to N.C. Gen. Stat. § 50-

16.3A(a) for the “illicit sexual behavior” she was alleged to have engaged in during

her marriage. Id. at 497, 715 S.E.2d at 310. This case is not applicable to the case
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before us, and Defendant’s argument is without merit.

¶ 24 Defendant argues “[t]here was no sexual contact or even the exchange of words

to substantiate an allegation of an attempt to engage in sexual relations.” We

disagree. By Defendant’s own admissions at the hearing, he “wouldn’t have seen

[C.T. on 15 August 2018 had he] not gone to the clinic. . . . [He] probably would’ve just

met her at Starbucks or wherever on the following Monday . . . .” Following the clinic

visit, C.T. told Defendant “[i]t would be nice to see you again.” At that point,

Defendant made the decision to go to C.T.’s house later that day, based on their

“mutual attraction” he perceived and his feelings of “lonel[iness].”

¶ 25 Defendant testified to feeling C.T.’s Spanx undergarment, which he described

as being “very high up and low on her legs.” He “snapped [C.T.’s undergarment] on

her side,” and they laughed. Defendant then asked C.T. what the undergarment was,

and she said, “[y]ou know, we can’t--.” Defendant further testified their consensual

kiss “was not a chaste kiss,” and “probably” involved tongue.

¶ 26 Finally, we consider the plain words of finding of fact 7, which provides: “[a]fter

C.T. signed the [consent order], [Defendant] perceived that there was a mutual

attraction, so he asked permission to kiss C.T. and she said yes. When they broke

away from ‘making out’ C.T. stated they could not ‘go any further,’ so they did not

have sexual intercourse that day.”

¶ 27 The second sentence of finding of fact 7 contains two independent clauses, (1)
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“[w]hen they broke away from ‘making out’ C.T. stated they could not ‘go any

further,’” and (2) “they did not have sexual intercourse that day.” These two clauses

are separated by the word “so,” which acts as a coordinating conjunction. The

Merriam-Webster Dictionary defines “so” when used as a conjunction, as “with the

result that,” or “for that reason.” So, Merriam-Webster, https://www.merriam-

webster.com/dictionary/so (last visited 9 Sept. 2022). Thus, this finding indicates C.T.

made a statement they “could not ‘go any further,’” and for that reason Defendant and

C.T. did not have sexual intercourse on 15 August 2018.

¶ 28 In his pro se answer, Defendant admitted to the State Bar’s averment, from

which finding of fact 7 was taken verbatim. Defendant later stipulated and agreed

to this fact as part of a pre-hearing conference with the State Bar. Defendant did not

specifically challenge finding of fact 7 on appeal. Therefore, we conclude adjudicatory

finding of fact 7 is undisputed, binding on appeal, and supports conclusion law of 2(a).

See Leonard, 178 N.C. App. at 437, 632 S.E.2d at 187; Key, 189 N.C. App. at 87, 658

S.E.2d at 498.

2. Conclusion of Law 2(b)

¶ 29 Defendant asserts conclusion of law 2(b) is not supported by substantial

evidence. Defendant further argues the DHC “erred in usurping authority to

substantially modify [the Consent Order] to create an attorney-client relationship.”

In other words, Defendant argues the DHC’s disregard of the provision of the Consent
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Order, which allowed Defendant to withdraw as counsel for C.T., had the practical

effect of substantively changing the terms of the Consent Order. Moreover,

Defendant contends the DHC, by concluding C.T. was a current client when sexual

relations between Defendant and C.T. commenced, “appli[ed] unpromulgated

legislative rules . . . and violate[d] Defendant’s due process rights.” Finally,

Defendant maintains he was not practicing law in representing C.T. in the divorce

proceeding because the representation was “administrative in nature.” The State Bar

contends “[t]he attorney-client relationship between C.T. and Defendant began in or

before March 2018 and did not conclude before the entry of C.T.’s divorce judgment

in November 2018”; thus, their sexual relations occurred while C.T. was a current

client. We agree with the State Bar.

¶ 30 As an initial matter, we reject Defendant’s assertion he was not practicing law

when he: signed C.T.’s divorce complaint, communicated to opposing counsel he would

be filing the complaint, filed a motion for summary judgment, and represented C.T.

at the hearing on the motion for summary judgment.

¶ 31 In North Carolina, the practice of law is defined as “performing any legal

service for any other person, firm or corporation, with or without compensation . . . .”

N.C. Gen. Stat. § 84-2.1(a) (2021). Defendant does not contend he was performing

any acts that are explicitly excluded from the phrase “practice of law” under the

statute. Certainly, Defendant was practicing law when he drafted and filed the
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divorce complaint and summary judgment motion on behalf of C.T. and represented

C.T. before the New Hanover County District Court on the motion. See id.

¶ 32 Conclusion of law 2(b) provides: “[b]y engaging in a sexual relationship with

his current client, Defendant violated Rule 1.19(a).” We first consider whether the

findings demonstrate an attorney-client relationship existed between C.T. and

Defendant before their sexual relations commenced.

¶ 33 The existence of an attorney-client relationship “is a question of fact for the

[fact-finder.]” Cornelius v. Helms, 120 N.C. App. 172, 175, 461 S.E.2d 338, 339 (1995).

“[T]he relation of attorney and client may be implied from the conduct of the parties,

and is not dependent on the payment of a fee, nor upon the execution of a formal

contract.” N.C. State Bar. v. Sheffield, 73 N.C. App. 349, 358, 326 S.E.2d 320, 325

(citation omitted), writ denied, 474 U.S. 981, 106 S. Ct. 385, 88 L. Ed. 2d 338 (1985).

Whether an attorney-client relationship exists depends on whether the “relationship

could reasonably be inferred” from the attorney’s conduct. Id. at 358, 326 S.E.2d 325.

¶ 34 Defendant correctly identifies the duties of the DHC, as an administrative

agency.

[O]nce all the evidence has been presented and considered,
to determine the weight and sufficiency of the evidence and
the credibility of the witnesses, to draw inferences from the
facts, and to appraise conflicting and circumstantial
evidence. The credibility of witnesses and the probative
value of particular testimony are for the administrative
body to determine, and it may accept or reject in whole or
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part the testimony of the any witness.

Ethridge, 188 N.C. App. at 665, 657 S.E.2d at 386.

¶ 35 In this case, the record reveals Defendant entered into the Initial Agreement

with C.T. on 9 March 2018. This agreement included filing for an absolute divorce as

a Covered Service of the representation. On 3 August 2018—one day before

Defendant’s interaction with C.T. at her house—Defendant and C.T. entered into the

Second Agreement, which specifically excluded the filing for absolute divorce from

the Covered Services. On 28 August 2018, the Consent Order was filed with the court,

which could have terminated Defendant’s representation under the Initial

Agreement; however, the Initial Agreement could have also been terminated when

Defendant provided the Covered Services, based on the plain words of the agreement.

Defendant’s handling of C.T.’s divorce, consistent with the terms of the Initial

Agreement and without the execution of a separate agreement, demonstrates his

representation under the Initial Agreement was not complete until he sought C.T.’s

absolute divorce.

¶ 36 C.T. testified she did not remember signing the Second Agreement. Defendant

testified that he had the Second Agreement executed for tax-related purposes, and he

needed the agreement to prove his earned income. According to Defendant, the

Second Agreement had the same fee and same covered services. Contrary to

Defendant’s contentions, neither the fees nor the covered services were the same
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across the two agreements. The Second Agreement raised the fees by $600.00 and

did not include filing for absolute divorce. Nevertheless, Defendant testified he did

not intend to change the substantive terms of his Initial Agreement with C.T.; he only

intended to create a duplicate agreement to provide to a third party. Defendant

ultimately found the original Initial Agreement in his files. Lastly, despite

Defendant’s reference in his brief to the Second Agreement as a “superseding”

agreement, the terms of the Second Agreement did not terminate the Initial

Agreement or otherwise render the Initial Agreement void.

¶ 37 The DHC was presented with evidence of the two representation agreements,

which it admitted, as well as other evidence, including testimony. From this

evidence, the DHC “determine[d] the weight and sufficiency of the evidence and the

credibility of the witnesses, . . . dr[e]w inferences from the facts, and . . . appraise[d]

conflicting and circumstantial evidence.” See Ethridge, 188 N.C. App. at 665, 657

S.E.2d at 386.

¶ 38 In this proceeding, “Defendant was given proper notice of the allegations

against him; he was allowed access to the evidence supporting these allegations; he

was permitted to call his own witnesses, introduce evidence, and cross-examine

opposing witnesses; and he was able to file motions and make legal arguments.” See

N.C. State Bar v. Sutton, 250 N.C. App. 85, 95, 791 S.E.2d 881, 891 (2016) (rejecting

the defendant’s argument he was denied due process in his disciplinary proceeding),
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appeal dismissed, 369 N.C. 534, 797 S.E.2d 296 (2017). Therefore, we are not

persuaded by Defendant’s argument that his due process rights were violated when

the DHC made findings supported by the substantial evidence in view of the record,

even if the evidence may have supported contrary findings. See Nelson, 107 N.C. App.

at 550, 421 S.E.2d at 166; see also Harding v. Bd. of Adjustment, 170 N.C. App. 392,

398, 612 S.E.2d 431, 436 (2005) (explaining this Court cannot substitute its judgment

for that of another administrative body even when “evidence in the record would have

supported contrary findings and conclusions”). Additionally, we note Defendant did

not challenge on appeal any findings of fact made during the adjudicatory phase;

therefore, these findings are deemed supported by substantial evidence and “are

binding on appeal.” See Key, 189 N.C. App. at 87, 658 S.E.2d at 498.

¶ 39 The DHC did not make an explicit finding of fact that the attorney-client

relationship existed between C.T. and Defendant from March 2018 and continued

through November 2018; however, the findings show the representation began in

March 2018, and Defendant “continued to represent C.T. until her divorce was

finalized in November 2018.” These findings were not contested on appeal and are

therefore binding. See Key, 189 N.C. App. at 87, 658 S.E.2d at 498. Further, the DHC

did not make a finding indicating the representation had terminated at any point in

this time period, so we infer from these findings that the representation was

continuous. Notwithstanding the formal representation agreements executed by C.T.
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and Defendant, and the timing of the orders filed in C.T.’s domestic case, there is

substantial evidence in view of the whole record, that an attorney-client relationship

existed between Defendant and C.T. in March 2018 and continued after entry of the

Consent Order. See Sheffield, 73 N.C. App. at 358, 326 S.E.2d at 325.

¶ 40 Specifically, on 6 August 2018, Defendant wrote an email to the attorney

representing C.T.’s husband in the domestic dispute indicating, “I will tell [C.T.] I we

[sic] will file for absolute divorce after we get a signed order on this other stuff.” That

same day, C.T. replied to Defendant’s email, acknowledging she read Defendant’s

email to opposing counsel. Based on Defendant’s statement that Defendant—or

Defendant and C.T.—would file for C.T.’s absolute divorce, C.T. could reasonably

infer an attorney-client relationship continued to exist between her and Defendant

after she signed the Initial Agreement, and until the divorce judgment was entered.

See Sheffield, 73 N.C. App. at 358, 326 S.E.2d at 325. Additionally, Defendant’s

statement that he would be filing for C.T.’s absolute divorce was consistent with the

purpose for which C.T. originally sought his legal services as well as the terms of the

Initial Agreement, which included absolute divorce within the scope of

representation. No separate representation agreement was entered with respect to

the service of filing for absolute divorce. Although Defendant argues the filed

Consent Order allowed him to withdraw as counsel, there is no evidence he did in

fact withdraw, and his actions demonstrate his continued representation of C.T. See
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N.C. R. Pro. Conduct 1.16(d) (“Upon termination of representation, a lawyer shall

take steps to the extent reasonably practicable to protect a client’s interests, such as

giving reasonable notice to the client . . . .”). Hence, it can be reasonably inferred

from DHC’s findings that the attorney-client relationship was established in March

2018 and was ongoing until C.T.’s divorce judgment was entered on 2 November 2018.

¶ 41 Finding of fact 10, which is not challenged on appeal, states “[Defendant] and

C.T. began having sex” in mid-September. Thus, this finding is “binding on appeal.”

See Key, 189 N.C. App. at 87, 658 S.E.2d at 498. As discussed above, the attorney-

client relationship existed between March 2018 and 2 November 2018, when C.T.’s

divorce judgment was entered. Therefore, the conclusion of law 2(b), which provides

Defendant had sexual relations with a current client in violation of Rule 1.19(a), is

supported by the unchallenged findings of fact. See Leonard, 178 N.C. App. at 437,

632 S.E.2d at 187.

B. Challenges to the Dispositional Phase

¶ 42 Defendant challenges two findings of fact made regarding discipline. He also

challenges two conclusions of law regarding discipline relating to factors under 27

N.C. Admin. Code 1B.0116(f)(3) (2021). Finally, Defendant argues the DHC abused

its discretion in ordering suspension.

¶ 43 “Suspension or disbarment is appropriate where there is evidence that the

defendant’s actions resulted in significant harm or potential significant harm to the
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clients, the public, the administration of justice, or the legal profession, and lesser

discipline is insufficient to adequately protect the public.” 27 N.C. Admin. Code

1B.0116(f)(1) (2021). The DHC considers the following factors in imposing

suspension:

(A) intent of the defendant to cause the resulting harm or
potential harm;

(B) intent of the defendant to commit acts where the harm
or potential harm is foreseeable;

(C) circumstances reflecting the defendant’s lack of
honesty, trustworthiness, or integrity;

(D) elevation of the defendant’s own interest above that of
the client;

(E) negative impact of defendant’s actions on client’s or
public’s perception of the profession;

(F) negative impact of the defendant’s actions on the
administration of justice;

(G) impairment of the client’s ability to achieve the goals of
the representation;

(H) effect of defendant’s conduct on third parties;

(I) acts of dishonesty, misrepresentation, deceit, or
fabrication; [and]

(J) multiple instances of failure to participate in the legal
professional’s self-regulation process.

27 N.C. Admin. Code 1B.0116(f)(1). In all disciplinary cases, the DHC considers

certain factors, including inter alia, “dishonest or selfish motive,” “a pattern of
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misconduct,” and “any other factors found to be pertinent to the consideration of the

discipline to be imposed.” 27 N.C. Admin. Code 1B.0116(f)(3)(C), (F), (V).

1. Finding of Fact 3 regarding Discipline

¶ 44 Defendant argues finding of fact 3 “is not substantially supported by competent

evidence and unfairly attempts to cast a harsh light on Defendant despite Finding of

Fact 2 confirming that Defendant has no prior professional discipline and Finding of

Fact 6 stating that there is no indication of sexual relationships with other clients or

a pattern of such misconduct.” In support of his argument, Defendant points to his

completion of a course addressing boundary concerns. We disagree.

¶ 45 Finding of fact 3 provides “Defendant’s conduct demonstrates that he had

inadequate boundaries between his professional and personal relationships.” We

note whether Defendant had prior professional discipline or sexual relations with his

clients is not dispositive as to whether Defendant “had inadequate boundaries

between his professional and personal relationships.” There was substantial

evidence in the record of Defendant’s “inadequate boundaries,” including: (1)

Defendant meeting C.T. on a Saturday—after business hours—in the health clinic

where she worked for Defendant to obtain unauthorized services; (2) Defendant

meeting C.T. inside her home when his usual practice was meeting his clients in a

public place; (3) Defendant acting on his feelings of attraction toward his current

client; (4) Defendant asking C.T. if he could kiss her while she was his current client;
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(5) Defendant having lengthy late-night phone calls with C.T. while she was his

client; and (6) Defendant beginning a sexual relationship with C.T. while his conduct

and actions inferred an attorney-client relationship existed.

¶ 46 Regarding Defendant’s completion of a course, the record indicates Defendant

completed a one-and-a-half-credit continuing legal education (“CLE”) course entitled

“The High Cost of Exercising Poor Professional Judgment” on 30 July 2021,

approximately three weeks before the DHC hearing. The completion of said course

roughly three years after the incidents in question is irrelevant to the DHC’s

disciplinary findings as to his conduct in 2018. Moreover, Defendant raises in his

brief that “[c]oncerns about boundary issues for a kiss [were] not addressed within

the context” of the CLE course he completed, which undermines his argument that

completion of the course eliminated DHC’s concerns for Defendant’s blurred

boundaries between professional and personal relationships. For the above reasons,

finding of fact 3 is “supported by substantial evidence in view of the whole record.”

See Leonard, 178 N.C. App. at 437, 632 S.E.2d at 187.

2. Finding of Fact 4 regarding Discipline

¶ 47 Defendant contests finding of fact 4 on the basis there was no fiduciary

relationship between him and C.T. when they began an intimate relationship, and

“[n]o evidence supports a finding that an attorney-client relationship existed” at that

time. Defendant also asserts he did not intend to cause C.T. harm, and there is no
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evidence the State Bar determined that his trust account contained funds received

from C.T.

¶ 48 Finding of fact 4 provides “[a]t the time Defendant began an intimate

relationship with C.T., it was foreseeable that his actions would undermine the

fiduciary relationship that he shared with her. By choosing to undermine the

fiduciary attorney-client relationship, Defendant intentionally caused harm to the

client and the profession.”

¶ 49 It is well-established “[t]he relationship between attorney and client is a

fiduciary relationship.” Booher v. Frue, 98 N.C. App. 585, 587, 392 S.E.2d 105, 106

(1990), disc. rev. denied, 328 N.C. 89, 402 S.E.2d 410 (1991). As stated above, an

attorney-client relationship may exist even when no fees are received from a client;

thus, any funds received by a client held in trust are unrelated to the inquiry of

whether a fiduciary relationship exists with that client. See Sheffield, 73 N.C. App.

at 358, 326 S.E.2d at 325. “[A] fiduciary relationship is generally described as arising

when there has been a special confidence reposed in one who in equity and good

conscience is bound to act in good faith and with due regard to the interests of the

one reposing confidence.” Dallaire v. Bank of Am., N.A., 367 N.C. 363, 367, 760 S.E.2d

263, 266 (2014) (citations and quotations omitted).

¶ 50 As discussed in Sections A(1) and A(2) above, Defendant intended to engage,

and did engage, in sexual relations with C.T. after establishing an attorney-client
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relationship, and therefore a fiduciary relationship. See Booher, 98 N.C. App. at 587,

392 S.E.2d at 106. The factor under 27 N.C. Admin. Code 1B.0116(f)(1) at issue in

this finding concerns whether Defendant “intended to cause the resulting harm or

potential harm.” See 27 N.C. Admin. Code 1B.0116(f)(1)(A). Accordingly, we turn to

the question of whether Defendant intended to cause harm to C.T. and the profession.

¶ 51 The issue of whether an inherent conflict of interest exists when an attorney

engages in sexual relations with his or her divorce client has not been decided in

North Carolina, and we need not decide it here. Nonetheless, we note other

jurisdictions have concluded that when an attorney engages in consensual sexual

relations with a divorce client where child custody, child support, alimony, and

division of marital asserts are to be decided, there is a per se violation of the rules of

professional conduct. In re DiPippo, 678 A.2d 454, 456 (R.I. 1996) (concluding it is

impermissible for an attorney “to engage in sexual relations with a divorce client

when issues of child custody, support, and distribution of marital assets are at stake

. . . .”); In re Lewis, 262 Ga. 37, 38, 415 S.E.2d 173, 175 (1992) (“Every lawyer must

know that an extramarital relationship can jeopardize every aspect of a client’s

matrimonial case . . . .”); Att’y Grievance Comm’n v. Culver, 381 Md. 241, 274, 849

A.2d 423, 443 (2002) (explaining an attorney who engages in consensual sexual

relations with a domestic relations client has an inherent conflict of interest when

divorce, child custody, and alimony, or distribution of marital assets are at issue).
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The reasoning for this bright-line rule is such a relationship may: (1) affect the client’s

ability to secure child custody, alimony, and attorney’s fees; (2) create a conflict of

interest; (3) impact marital property distribution; (4) interfere with the client’s ability

to reconcile with his or her spouse; (5) jeopardize the client’s rights; or (6) prevent the

attorney from exercising independent judgment. See In re DiPippo, 678 A.2d at 456;

In re Lewis, 262 Ga. at 38, 415 S.E.2d at 175; Att’y Grievance Comm’n v. Culver, 381

Md. At 274, 849 A.2d at 443.

¶ 52 A divorce client in North Carolina who engages in a sexual relationship with

his or her attorney faces similar dangers. See, e.g., N.C. Gen. Stat. § 60-16.3A(a)

(2021) (prohibiting a dependent spouse from being awarded alimony where “the

dependent spouse participated in an act of illicit sexual behavior”); N.C. Gen. Stat. §

50-16.4 (2021) (allowing a court to enter an order for reasonable attorney’s fees where

a dependent spouse is entitled to alimony); Darden v. Darden, 20 N.C. App. 433, 435,

201 S.E.2d 538, 539 (1974) (explaining that evidence of adultery is relevant to the

inquiry of a parent’s fitness for being awarded custody of minor children); Sebastian

v. Kluttz, 6 N.C. App. 201, 207, 209, 170 S.E.2d 104, 107–09 (1969) (explaining two

torts arising from adultery: alienation of affection and criminal conversation).

Further, comments to Rule 1.19, prohibiting sexual relations with a client, explain:

(2) [t]he relationship [between an attorney and a client is]
inherently unequal. The client comes to a lawyer with a
problem and puts his or her faith in the lawyer’s special
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knowledge, skills, and ability to solve the client’s problem.
The same factors that lead the client to place his or her
trust and reliance in the lawyer also have the potential to
place the lawyer in a position of dominance and the client
in a position of vulnerability.

(3) A sexual relationship between a lawyer and a client may
involve unfair exploitation of the lawyer’s fiduciary
position. Because of the dependence that so often
characterizes the attorney-client relationship, there is a
significant possibility that a sexual relationship with a
client resulted from the exploitation of the lawyer’s
dominant position and influence. Moreover, if a lawyer
permits the otherwise benign and even recommended
client reliance and trust to become the catalyst for a sexual
relationship with a client, the lawyer violates one of the
most basic ethical obligations, i.e., not to use the trust of
the client to the client’s disadvantage. This same principle
underlies the rules prohibiting the use of client confidences
to the disadvantage of the client and the rules that seek to
ensure that lawyers do not take financial advantage of
their clients.

....

(4) A sexual relationship also creates the risk that the
lawyer will be subject to a conflict of interest.

N.C. R. Pro. Conduct 1.19 cmt. n.2–4. It follows, a sexual relationship between an

attorney and his or her divorce client may cause, or threaten to cause, significant

harm to the client and the profession alike.

¶ 53 The potential harm inherent in a consensual sexual relationship between an

attorney and a client, whom the attorney represents in family law matters, is present

in the instant case where Defendant was representing C.T in divorce, alimony,
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equitable distribution, child support, and child custody matters while he began an

extramarital affair with her. The significant harm was foreseeable to Defendant, a

family law attorney who had been licensed in North Carolina for approximately ten

years when he began an affair with C.T. The DHC found C.T. to be “especially

vulnerable” considering she was facing divorce and experiencing “significant turmoil”

associated with her new single-parent status. Thus, the significant harm to C.T. was

not merely financial harm, but emotional harm.

¶ 54 There were also allegations that Defendant’s wife threatened to bring a claim

against C.T. for alienation of affection. To limit harm to C.T., Defendant presented

his wife with a settlement agreement, which waived Defendant’s and his wife’s rights

to bring third-party claims, including claims for alienation of affection. Although

Defendant and his wife executed the settlement agreement, Defendant’s relationship

with C.T. had the potential of causing significant financial harm to C.T. as her

relationship with Defendant exposed her to the risk of liability from a third party.

¶ 55 Furthermore, C.T. sought advice from independent legal counsel regarding

potential malpractice claims relating to the Consent Order Defendant negotiated just

prior to attempting to have sexual relations with C.T. C.T. testified the Consent

Order was not in her best interest because it did not allow her to claim both of her

children on her tax returns and did not provide adequate child support. We do not

foreclose the possibility Defendant’s professional judgment in finalizing the Consent
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Order may have been impaired, as evidenced by his desire to immediately kiss C.T.

after she and Defendant signed it.

¶ 56 Defendant argues on appeal DHC “ignore[d] the evidence that C.T. engaged

the services of an attorney to extort $14,000 from Defendant of which he paid an

amount.” The record shows Defendant agreed to settle with C.T., and Defendant

provides no evidence of extortion. We do not believe the DHC ignored the evidence

relating to C.T. and Defendant’s settlement; rather, the DHC properly considered the

evidence and the duties owed by Defendant to C.T. as her fiduciary, and concluded

Defendant intended to cause the resulting harm to C.T. and the profession by

engaging in deliberate, unethical conduct with a vulnerable client in contravention of

a fiduciary relationship and Rule 1.19(a). Therefore, we conclude finding of fact 4

regarding discipline is “supported by substantial evidence in view of the whole

record.” See Leonard, 178 N.C. App. at 437, 632 S.E.2d at 187.

3. Challenged Conclusions of Law regarding Discipline & Suspension

¶ 57 In his final arguments, Defendant challenges two conclusions of law regarding

discipline and contends the DHC abused its discretion in suspending him from the

practice of law for one year.

¶ 58 We review the DHC’s imposition of sanctions for an abuse of discretion.

Nelson, 107 N.C. App. at 552, 421 S.E.2d at 167. “[S]o long as the punishment

imposed is within the limits allowed by the statute[,] this Court does not have the
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authority to modify or change it.” N.C. State Bar v. Wilson, 74 N.C. App. 777, 784,

330 S.E.2d 280, 284 (1985) (citation omitted); see also N.C. Gen. Stat. § 84-28(h)

(“Review by the appellate division shall be upon matters of law or legal inference.”).

Under N.C. Gen. Stat. § 84-28, “[m]isconduct by any attorney” is grounds for

“[s]uspension for a period up to but not exceeding five years . . . .” N.C. Gen. Stat. §

84-28(c)(2) (2021).

The DHC must support its punishment choice with written
findings that are consistent with the statutory scheme of
N.C. Gen. Stat. § 84-28(c). The order must also include
adequate and specific findings that address how the
punishment choice (1) is supported by the particular set of
factual circumstances and (2) effectively provides
protections for the public.

N.C. State Bar v. Adams, 239 N.C. App. 489, 495–96, 769 S.E.2d 406, 411 (2015)

(citations omitted); see also N.C. Gen. Stat. § 84-28(c).

¶ 59 Defendant reiterates his arguments as to the adjudicatory findings of fact and

conclusions of law. He also challenges portions of conclusion of law 4 regarding

discipline.

¶ 60 Conclusion of law 4 provides:

The Hearing Panel concludes that the following factors
from § .0116(f)(3), which are to be considered in all cases,
are present in this case:

(a) the absence of prior disciplinary offenses in this state or
any other jurisdiction;
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(b) selfish motive;

(c) a pattern of misconduct;

(d) vulnerability of victim; and

(e) degree of experience in the practice of law.

¶ 61 Defendant argues the factor of “selfish motive” was inappropriate because no

sexual relationship existed with a current client. As explained above, this argument

is unconvincing. Defendant also challenges the factor of “a pattern of misconduct” as

being unsupported by the evidence. Assuming arguendo this factor is not supported

by the evidence, Defendant has failed to show the DHC’s decision would have been

different had this factor not been found. Thus, Defendant has failed to show

prejudicial error. See N.C. State Bar v. Frazier, 62 N.C. App. 172, 180, 302 S.E.2d

648, 654 (1983) (concluding the defendant failed to show prejudicial error in arguing

his due process rights were violated in the hearing before the DHC).

¶ 62 Here, the DHC made findings of fact stating how Defendant’s conduct was

inconsistent with his role as fiduciary and caused harm to C.T. and the profession. It

then considered admonition, reprimand, and censure but found these sanctions

“would not be sufficient discipline because of the gravity of the harm to the

administration of justice and the potential harm to the public and the profession in

the present case.” The DHC concluded “[e]ntry of an order imposing less serious

discipline would fail to acknowledge the seriousness of the offenses Defendant
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committed and would send the wrong message to attorneys and to the public

regarding the conduct expected of members of the Bar in this state.” Additionally,

the DHC made findings consistent with the factors set out in 27 N.C. Admin. Code

1B.0116(f) to support the imposition of suspension: (1) an “intent of the defendant to

cause the resulting harm or potential harm”; and (2) an “elevation of the defendant’s

own interest above that of the client.” Thus, the Order adequately shows that

Defendant’s punishment is supported by the factual circumstances of the case and

that the public will be protected from Defendant’s conduct. See Adams, 239 N.C. App.

at 495–96, 769 S.E.2d at 411.

¶ 63 Although Defendant does not raise the issue in his brief, we acknowledge the

DHC did not make specific findings stating Defendant’s conduct caused “significant

harm,” as required by the Administrative Code for the imposition of suspension. See

27 N.C. Admin. Code 1B.0116(f)(1); see also Talford, 356 N.C. at 637, 576 S.E.2d at

313 (“[F]indings must be made explaining how the misconduct caused significant

harm or threatened significant harm, and why the suspension of the offending

attorney’s license is necessary in order to protect the public.”). Nonetheless, we

conclude implicit in the DHC’s conclusion that Defendant violated Rules 8.4(a) and

1.19(a) is a determination that his misconduct presented “significant harm” to C.T.

and the profession. See Leonard, 178 N.C. App. at 446, 632 S.E.2d at 191 (affirming

the DHC’s disbarment of the defendant and concluding the DHC implicitly found that
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the defendant posed a significant potential harm to clients and the profession where

his violation of the Rules of Professional Conduct constituted misconduct).

¶ 64 Therefore, we hold there was substantial evidence to support the findings in

the DHC’s order of discipline, and these findings support the conclusions of law. See

Ethridge, 188 N.C. App. at 658–59, 657 S.E.2d at 382. We find no abuse of discretion

in the DHC’s imposition of suspension as a disciplinary sanction. See Nelson, 107

N.C. App. at 552, 421 S.E.2d at 167.

VI. Conclusion

¶ 65 Our review under the whole record test reveals the DHC’s findings of fact are

adequately supported by substantial evidence, and these findings of fact support its

conclusions of law that, inter alia, Defendant violated Rules 1.19(a) and 8.4(a).

Together, the DHC’s findings of fact and conclusions of law have a rational basis in

evidence supporting the suspension of Defendant’s license to practice law in North

Carolina for one year.

AFFIRMED.

Judges DILLON and GORE concur.