In re Burke
| Decision Date | 21 August 2015 |
| Docket Number | No. 410A14.,410A14. |
| Citation | 775 S.E.2d 815,368 N.C. 226 |
| Parties | In the Matter of: LYNN MARIE BURKE. |
| Court | North Carolina Supreme Court |
Robert F. Orr ; Asheville and Poyner Spruill LLP, by Andrew H. Erteschik, Carrie V. McMillan, Raleigh and J.M. Durnovich, Charlotte, for petitioner-appellant Lynn Marie Burke.
Roy Cooper, Attorney General, by Robert C. Montgomery, Senior Deputy Attorney General, and H. Dean Bowman, Special Deputy Attorney General, for respondent-appellee North Carolina Board of Law Examiners.
In this case we consider whether the Board of Law Examiners (the Board) erred by concluding that petitioner Lynn Marie Burke "failed to carry her burden of proving she possesses the requisite general fitness and good moral character expected of attorneys licensed to practice law in North Carolina." We conclude that the Board's decision is supported by substantial evidence in view of the whole record. Accordingly, we affirm.
In May 2010, petitioner received her Juris Doctor degree from North Carolina Central University School of Law. After law school, petitioner initially applied for, and later received, a license to practice law in Washington, D.C. In October 2010, while her District of Columbia Bar application still was pending, petitioner applied to take the North Carolina Bar Examination. In her North Carolina Bar application, petitioner disclosed forty incidents between 1983 and 2004 in which she had been accused of criminal offenses including forgery, larceny, shoplifting, writing worthless checks, using a stolen credit card, possessing stolen property, and obtaining property by false pretenses. Petitioner acknowledged that many of these incidents had resulted in criminal convictions.
Because of concerns about her application, the Board sent petitioner a notice instructing her to appear at a hearing before a panel of the Board. The notice stated that during the hearing, petitioner would be asked to testify regarding the criminal charges that she had disclosed in her application. In addition, the notice stated that petitioner would be questioned about several criminal charges that she failed to disclose in her applications for admission to law school, the District of Columbia Bar, and the North Carolina Bar. The hearing was conducted on 28 September 2011, and subsequently, the panel directed petitioner to appear at a de novo hearing before the full Board.
The de novo hearing was held on 9 and 10 January 2013. Petitioner testified at the hearing in support of her application and explained that, beginning in the 1980s, she committed a number of criminal offenses, which she characterized as being motivated by financial necessity. Yet she also stated that her life started to change after a particular incident of shoplifting that occurred in 2002. Petitioner testified that on this occasion, which occurred the day of her twin daughters' prom, she had attempted to take prom dresses from a department store by concealing them in a bag. Petitioner stated that after she was caught and her daughters learned what she had done, the extent of her criminal conduct was "put in front of [her] face." She testified that subsequently, she began going to counseling and started working for her father. She testified that she had not stolen anything since the incident in 2002.
Petitioner stated that she had been truthful about her criminal history when applying to law school, the District of Columbia Bar, and the North Carolina Bar. Although petitioner acknowledged that she had "neglected" to include some of her criminal history in her law school application and her two bar applications, she testified that the omissions occurred because she "just forgot." Petitioner stated that she had amended each application to correct the omissions.
Petitioner was questioned about discrepancies between her testimony concerning the shoplifting incident from 2002 and two written statements she had drafted. Specifically, petitioner was asked about the following statement initially submitted as part of amendments to her District of Columbia and North Carolina Bar applications, which appeared to contain materially different facts when compared with her testimony:
I was at Crabtree Valley mall with my twin daughters. They were going to the prom in a week. I had their prom dresses in a shopping bag to take them to be hemmed at the tailor shop. While I was waiting for them, I went to Dillard's Department store. I knew that they did not have the proper undergarments to wear under the dresses and I attempted to take them.... [T]he store security guard.... charged me with larceny of the dresses and shoplifting of the undergarments. My daughter went back later on that day with the receipts for the dresses and was given them back.
Next, petitioner was asked about a later filing submitted to the District of Columbia Court of Appeals Committee on Admissions (District of Columbia Bar Committee) asserting that the incident occurred one day before the prom and involved the attempted theft of two prom dresses and shoes. Petitioner stated that the discrepancy arose because she had difficulty obtaining records related to the incident. Petitioner testified that the statement made in the amendments to her District of Columbia and North Carolina Bar applications came from memory and contained inaccurate details. She stated that "it took ... a couple of weeks" to obtain relevant documents, but explained that she had more complete information by the time she prepared the later filing submitted to the District of Columbia Bar Committee. Although the revised narrative was introduced at the hearing and was part of the record before the Board, petitioner acknowledged that she also "should have re-amended" her North Carolina Bar application to reflect the updated information.
On 14 May 2013, the Board entered an order denying petitioner's application. In its order the Board noted that petitioner had committed a substantial number of criminal offenses throughout the 1980s and 1990s. The Board found that petitioner had failed to disclose six criminal convictions on her law school application and that she had received a letter of caution from the school "remind[ing]" her of her "obligation to provide full disclosure." In addition, the Board stated that petitioner had omitted seven criminal charges on her District of Columbia Bar application and six charges of failure to appear on her North Carolina Bar application.
The Board discussed how petitioner's accounts of the 2002 shoplifting incident differed. The Board explained that in petitioner's initial written account, she asserted that "she had taken the prom dresses (previously purchased) to a tailor to be hemmed," and after unsuccessfully attempting to steal undergarments to go with the dresses, she eventually produced receipts for the dresses and had them returned to her. The Board noted that this written account differed from petitioner's testimony describing the event and concluded that the differences "showed a lack of candor."
The Board concluded that "the foregoing conduct, individually and collectively, as well as [petitioner's] testimony at her full Board hearing regarding these matters demonstrate a lack of candor and truthfulness." Accordingly, the Board ruled that petitioner had failed to carry her burden of proving that she possesses the requisite general fitness and good moral character expected of North Carolina attorneys. Petitioner filed a petition for judicial review in the Superior Court, Wake County. Applying the whole record test, the court found that the Board's decision was supported by substantial evidence and therefore affirmed that decision. Petitioner appealed to this Court as of right pursuant to section .1405 of the Rules Governing Admission to the Practice of Law in the State of North Carolina.
In her appeal petitioner argues that the Board's findings and conclusions related to her alleged misstatements and omissions are not supported by the evidence. Specifically, petitioner contends that these misstatements and omissions were unintentional and immaterial, and did not demonstrate a lack of candor and truthfulness. We disagree.
This Court uses the whole record test when reviewing decisions of the Board. In re Gordon, 352 N.C. 349, 352, 531 S.E.2d 795, 797 (2000) (citations omitted). The whole record test requires this Court to evaluate all the evidence, including "that which supports as well as that which detracts from the Board's findings," and...
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- State v. Attorney Gen. Roy Cooper
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Burke v. N.C. Bd. of Law Examiners
...10] is GRANTED.BACKGROUND In 2013, defendant denied plaintiff's application for a license to practice law in North Carolina. In re Burke, 368 N.C. 226, 229 (2015). Defendant found that plaintiff had failed to disclose a number of criminal convictions, primarily related to larceny and shopli......