An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.


             IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA14-1196

                                 Filed: 21 April 2015

Disciplinary Hearing Commission of the North Carolina State Bar, No. 13 DHC

25

THE NORTH CAROLINA STATE BAR, Plaintiff,

             v.

WILLIAM T. BATCHELOR, II, Attorney, Defendant.


      Appeal by defendant from order entered 22 June 2014 by the Disciplinary

Hearing Commission of the North Carolina State Bar. Heard in the Court of Appeals

2 March 2015.


      The North Carolina State Bar, by David R. Johnson, Deputy Counsel, Maria J.
      Brown, Deputy Counsel, and Katherine Jean, Counsel, for plaintiff-appellee.

      Crawford & Crawford, LLP, by Robert O. Crawford, III, for defendant-
      appellant.


      STEELMAN, Judge.


      Where defendant conceded that he had committed a violation of the North

Carolina Rules of Professional Conduct, the Disciplinary Hearing Commission did not

err in concluding that the violation had occurred. The DHC did not err in suspending

defendant’s license to practice law.

                        I. Factual and Procedural Background
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                                 Opinion of the Court



      William T. Batchelor (defendant) was admitted to the practice of law on 21

March 1986. After one year working for another lawyer at Carolina Legal Associates

in Wilmington, defendant purchased the practice, and has practiced law since that

time. To reconcile his trust account, defendant used a form developed by his father,

a non-lawyer, rather than the State Bar reconciliation form. Although defendant

reconciled his trust account monthly, he did not do so in accordance with State Bar

specifications, and did not conduct proper quarterly reconciliations. Defendant did

not put client names on deposit slips, making it virtually impossible to track client

funds in the trust account.

      In the mid-1990s, defendant established a flat fee system to cover office

expenses, charging clients $16 for bankruptcy cases and $25 for family law cases.

This system was explained to clients. Defendant paid office supply vendors directly

out of the trust account. Defendant was audited by the State Bar in the early 1990s.

He acknowledged that he did not listen carefully to the recommendations of the

auditor.

      From 2007 to 2010, defendant engaged four employees in his bankruptcy and

family law practice. He maintained his trust account with BB&T. In 2009, BB&T

changed its policies, prohibiting defendant from using a credit card with his trust

account. Defendant opened a new trust account with RBC Bank, which did allow a

credit card, and transferred $1,000 from the BB&T trust account to the RBC trust



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                                   Opinion of the Court



account. The owners of the $1,000 were not identified. Defendant was subsequently

sanctioned by the Bankruptcy Court in March of 2010.           Defendant disgorged

bankruptcy fees and was barred from filing bankruptcy petitions for one month.

Defendant was also reprimanded, and paid a $5,000 monetary sanction in another

Bankruptcy Court matter in November of 2010. Subsequently, defendant reduced

his caseload, studied the State Bar’s Lawyer’s Trust Account Handbook, and made

efforts to correct his trust accounting practices.

      In late 2010 or early 2011, a former employee filed a grievance with the State

Bar, which resulted in an investigation of defendant’s trust accounting practices

between 1 January 2007 and 1 January 2010. During this investigation, the State

Bar also reviewed two prior reprimands in defendant’s history: the first, from

November of 1990, for failure to adequately handle a client’s separation agreement;

the second, in 2007, for collecting a flat fee from a client and then unilaterally

converting to an hourly billing rate.      After the grievance was filed, defendant

consulted a certified public accountant recommended by the State Bar, but there is

no evidence in the record that the accountant was retained by defendant to assist

with his trust account practices, nor that defendant implemented any suggestions

that may have been made by the accountant.

      The matter was heard by the State Bar Disciplinary Hearing Commission (the

DHC) on 9 May 2014. Based upon the stipulated facts and the testimony at the



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                                   Opinion of the Court



hearing, the DHC concluded that defendant was subject to discipline pursuant to N.C.

Gen. Stat. § 84-28(b)(2) (2013). The DHC found the presence of three of the ten factors

enumerated in 27 N.C. Admin. Code 1B.0114(w)(1), which warranted suspension of

defendant’s license to practice law.     The DHC suspended defendant’s license to

practice law for three years, with the proviso that defendant could seek a stay of the

final two years of suspension after the first year.

      Defendant appeals.

                                II. Standard of Review

      We first note that “[t]he standard for judicial review of attorney discipline cases

is the ‘whole record’ test.” N.C. State Bar v. Sheffield, 73 N.C. App. 349, 354, 326

S.E.2d 320, 323 (1985) (citing N.C. State Bar v. DuMont, 304 N.C. 627, 286 S.E.2d 89

(1982)).

             This test requires the reviewing court to consider the
             evidence which in and of itself justifies or supports the
             administrative findings and ... also [to] take into account
             the contradictory evidence or evidence from which
             conflicting inferences can be drawn.... Under 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.

Id. (quoting DuMont, 304 N.C. at 643, 286 S.E.2d at 98-99) (internal quotations

omitted; alterations in original). “Ultimately, the reviewing court must apply all the

aforementioned factors in order to determine whether the decision of the lower body,


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                                   Opinion of the Court



e.g., the DHC, has a rational basis in the evidence.” N.C. State Bar v. Talford, 356

N.C. 626, 632, 576 S.E.2d 305, 310 (2003) (quotations and citations omitted). Our

Supreme Court has held that

             the 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?

Id. at 634, 576 S.E.2d at 311.

                                  III. Excessive Fees

      In his first argument, defendant contends that the DHC panel erred in

concluding that he charged and collected clearly excessive fees. We disagree.

      The North Carolina Rules of Professional Conduct provide that:

             (a)    A lawyer shall not make an agreement for, charge,
             or collect an illegal or clearly excessive fee or charge or
             collect a clearly excessive amount for expenses. The factors
             to be considered in determining whether a fee is clearly
             excessive include the following:

             (1)    the time and labor required, the novelty and
             difficulty of the questions involved, and the skill requisite
             to perform the legal service properly;

             (2)    the likelihood, if apparent to the client, that the
             acceptance of the particular employment will preclude
             other employment by the lawyer;

             (3)    the fee customarily charged in the locality for similar


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                                     Opinion of the Court



                legal services;

                (4)   the amount involved and the results obtained;

                (5)   the time limitations imposed by the client or by the
                circumstances;

                (6)    the nature and length           of   the   professional
                relationship with the client;

                (7)   the experience, reputation, and ability of the lawyer
                or lawyers performing the services; and

                (8)   whether the fee is fixed or contingent.

N.C. R. Prof’’l Conduct 1.5(a). In its complaint against defendant, the State Bar

alleged that:

                7.    During the period January 1, 2007 through June 30,
                2010, Defendant's practice was to collect a flat expense
                charge from clients to cover costs for mail, postage, paper
                and printer cartridges ("expense charge"). The expense
                charge collected to cover these costs was either $16.00 or
                $25.00, depending on the case, and the money collected
                from the client was deposited into the trust account
                Defendant was using at the time.

                8.    The flat expense charge referenced in paragraph 7
                was collected from clients irrespective of the actual costs
                Defendant incurred handling an individual client's case.

      The State Bar further alleged that:

                c)     By charging clients a flat expense charge of either
                $16.00 or $25.00, depending on the case, irrespective of the
                actual costs Defendant incurred in handling an individual
                client's case, Defendant charged and collected a clearly
                excessive amount for expenses in violation of Rule 1.5(a)[.]



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                                   Opinion of the Court



      In his answer to the complaint, defendant admitted to paragraphs 7 and 8,

quoted above, and contended that paragraph c) contained “legal conclusions to which

no response is appropriate or required.”

      The State Bar subsequently moved for summary judgment, alleging that:

             The facts established by Defendant's admissions prove the
             violations alleged in paragraphs a) through g), and i) and j)
             of the complaint; therefore, Plaintiff is entitled to judgment
             as a matter of law regarding the rule violations set forth in
             paragraphs a) through g), and i) and j) on pages 4 and 5 of
             Plaintiff's complaint.

      In his response to the motion for summary judgment, defendant stated:

             Defendant does not oppose the entry of summary judgment
             on the for the plaintiff [sic] on the Rule violations alleged
             in paragraphs a) through g) and i) and j) of the complaint,
             and agrees that the sole issue remaining in this case is the
             issue of what, if any, discipline is appropriate for the Rule
             violations.

      “Final pleadings which define the issues to be litigated and upon which the

case goes to trial can embody a judicial admission of a matter and serve to

conclusively remove the establishment of that fact from the issues which are to be

tried.” Outer Banks Contractors, Inc. v. Forbes, 302 N.C. 599, 606, 276 S.E.2d 375,

380 (1981). “A judicial admission is a formal concession which is made by a party in

the course of litigation for the purpose of withdrawing a particular fact from the realm

of dispute.” Id. at 604, 276 S.E.2d at 379.




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                                  Opinion of the Court



      In the instant case, defendant, in his response to the State Bar’s motion for

summary judgment, conceded the alleged rules violations, including the excessive

fees as alleged in paragraph c). Defendant explicitly stated that the sole issue

remaining in the case was that of “what, if any, discipline is appropriate for the Rule

violations.” We hold that this constitutes a judicial admission, designed to withdraw

the question of whether defendant charged excessive fees from the realm of dispute.

We further note that, although defendant appeals from the final order of discipline,

he does not appeal from the summary judgment order which established his judicial

admission. Accordingly, we hold that because there was a binding judicial admission

that defendant committed the violations alleged, the DHC did not err in concluding

that defendant charged and collected clearly excessive fees.

      This argument is without merit.

                                   IV. Suspension

      In his second and third arguments, defendant contends that the DHC panel

erred in suspending his license to practice law. We disagree.

                       A. 27 N.C. Admin. Code 1B.0114(w)(1)

      Defendant first contends that the DHC hearing panel erred in concluding that

three factors enumerated in 27 N.C. Admin. Code 1B.0114(w)(1) were present to

justify a suspension of his license to practice law. We disagree.




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                                  Opinion of the Court



      Title 27, Chapter 1 of the North Carolina Administrative Code, concerning the

rules and regulations of the North Carolina State Bar, provides the following:

              (1) Suspension or disbarment is appropriate where
             there is evidence that the defendant's actions resulted in
             significant harm or potential significant harm to the
             clients, the public, the administration of justice, or the
             legal profession, and lesser discipline is insufficient to
             adequately protect the public. The following factors shall
             be considered in imposing suspension or disbarment:

             (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;

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


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                                   Opinion of the Court




27 N.C. Admin. Code 1B.0114(w)(1) (2013). The Administrative Code lists other

factors to be considered, in addition to those set forth above, in any instance in which

discipline is imposed. 27 N.C. Admin. Code 1B.0114(w)(3). In its order of discipline,

the DHC concluded:

             1.     The Hearing Panel has carefully considered all of
             the different forms of discipline available to it. In addition,
             the Hearing Panel has considered all of the factors
             enumerated in 27 N.C.A.C. 1B §.0114(w)(1) of the Rules
             and Regulations of the North Carolina State Bar and
             concludes the following factors are present which warrant
             suspension of Defendant's license:

             a.    Intent of Defendant to commit acts where the harm
             or potential harm is foreseeable, to wit: failing to comply
             with trust account rules to ensure proper maintenance of
             and accounting for entrusted funds;

             b.      Elevation of Defendant's own interest above that of
             his clients; and

             c.     Negative impact of Defendant's actions on the
             client's or public's perception of the legal profession.

             ...

             3.    The Hearing Panel has considered all of the factors
             enumerated in 27 N.C.A.C. 1B §.0114(w)(3) of the Rules
             and Regulations of the North Carolina State Bar and
             concludes the following factors are applicable in this
             matter:

             a.    Prior disciplinary offenses in this state and the
             United States Bankruptcy Court;

             b.     Pattern of misconduct;


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                                  Opinion of the Court




             c.    Multiple offenses;

             d.    Full and free disclosure to the Hearing Committee
             and Defendant's cooperative attitude toward the
             proceedings;

             e.     Defendant's good character and reputation with
             lawyers in his community and with clients as presented in
             letters written on his behalf and

             f.    Substantial experience in the practice of law.

             ...

             6.     This Hearing Panel has considered lesser
             alternatives and concludes that a suspension is
             appropriate under the facts and circumstances of this case
             to address the potential for significant harm to Defendant's
             clients, and for the protection of Defendant's clients and
             the public.

      In its conclusions of law, paragraph 1, the DHC cited three of the factors based

upon which a suspension would be appropriate. Defendant contends that there was

no evidence to support these factors.

      With respect to the first factor, intent to commit actions with foreseeable

harmful results, defendant contends that he did not intentionally commit the actions

at issue, specifically that he did not intend to err in reconciling his trust account,

believing that he was performing reconciliations properly. However, the requirement

is not that defendant had to foresee the harmful results of his actions; rather, that

the defendant intended to commit the actions, and that harmful results were



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                                   Opinion of the Court



foreseeable. The evidence at trial showed that defendant did not keep a ledger book

and did not conduct a three-way reconciliation, both of which are considered standard

practice in reconciling a trust account. Defendant’s deviation from these practices

was sufficient evidence that he was intentionally acting in a manner from which he

could foreseeably harm clients.

      Defendant further contends that no clients were actually harmed by his acts.

The North Carolina Administrative Code requires that any harm be foreseeable, not

that it actually occur. The purpose of the code section is to deter those behaviors

which may harm clients, not only to punish those which actually do.

      With respect to the second factor, that defendant elevated his interests above

those of his clients, the evidence at trial shows that defendant charged flat fees to

each client intended to cover expenses for his office, as well as for other clients. It

was not in any client’s interest to pay for costs not connected to his or her own case;

for defendant to charge them for additional office expenses, or work on other cases,

was to elevate his own interests above theirs. We hold that this was sufficient

evidence to support this factor.

      With respect to the third factor, that defendant’s conduct negatively impacted

a perception of the legal profession, defendant offers a disingenuous argument that

the Bar itself has damaged the profession’s reputation by publishing articles about

lawyers’ failures to reconcile their trust accounts. The Bar’s publication history is



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                                   Opinion of the Court



not at issue; what is at issue is the fact that defendant failed to properly reconcile his

own trust accounts, and such conduct negatively impacted the reputation of the legal

profession. We hold that there was sufficient evidence to support this factor.

      Defendant lastly contends that the trial court found none of the remaining

seven factors in 27 N.C. Admin. Code 1B.0114(w)(1), which should count in his favor.

We note that the code does require these factors to be considered. Their absence from

the DHC opinion, however, does not require us to conclude that they were not

considered; rather, it indicates that they did not factor into the DHC’s final decision.

We hold that the factors found by the DHC were sufficient to support a conclusion

that suspension was appropriate.

      This argument is without merit.

                                B. Insufficient Evidence

      Defendant next contends that the DHC hearing panel erred in suspending his

license to practice law because there was insufficient evidence to support a finding

that a lesser sanction would not be adequate. We disagree.

      The evidence at trial shows not only that defendant regularly charged

inappropriate fees, but that he performed incomplete reconciliations of his trust

account. Defendant’s failure to grasp his own mistakes, coupled with his failure to

seek assistance with the process, suggests a potential for future harm to his clients.

Defendant was previously disciplined for his fee charging practices and his handling



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                                 Opinion of the Court



of cases, both in the Bankruptcy Court and before the State Bar. This suggests a

pattern of harmful deviation from professional rules. We hold that the DHC did not

err in concluding that suspension was an appropriate sanction.

      This argument is without merit.

      AFFIRMED.

      Chief Judge McGEE and Judge BRYANT concur.

      Report per Rule 30(e).




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