North Carolina State Bar v. Culbertson, COA05-1076.
| Decision Date | 04 April 2006 |
| Docket Number | No. COA05-1076.,COA05-1076. |
| Citation | 627 S.E.2d 644 |
| Parties | The NORTH CAROLINA STATE BAR, Plaintiff, v. K.E. Krispen CULBERTSON, Attorney, Defendant. |
| Court | North Carolina Court of Appeals |
David R. Johnson, Raleigh, for plaintiff-appellee.
K.E. Krispen Culbertson, defendant-appellant, pro se.
K.E. Krispen Culbertson, Attorney ("defendant") appeals from order and admonition of the Disciplinary Hearing Committee of the North Carolina State Bar ("DHC") admonishing him for using false or misleading communications in violation of the North Carolina Revised Rules of Professional Conduct. We affirm.
Defendant is a duly licensed and practicing attorney in Greensboro and was admitted to practice as a member of the North Carolina State Bar ("State Bar") in 1991. In November 2004, the State Bar filed a complaint against defendant alleging he violated the North Carolina Revised Rules of Professional Conduct. The complaint alleged defendant's law office letterhead contained an asterisk beside his name. Below defendant's name is printed another asterisk and the phrase, "Published in Federal Reports, 3d Series" surrounded by parentheses. The complaint also alleged defendant is described on the firm's website as "also one of the elite percentage of attorneys to be published in Federal Law Reports — the large law books that contain the controlling caselaw [sic] of the United States."
This matter was heard before the DHC on 27 January 2005. The DHC concluded as follows:
2. Culbertson's conduct, as set out above, constitutes grounds for discipline pursuant to N.C. Gen.Stat. § 84-28(a) & (b)(2) as follows:
(a) By using letterhead stationery that indicates that he is published in Federal Reports, 3d Series when only opinions issued by the Court are published in the Federal Reports, Culbertson used letterhead that made a false or misleading communication about the lawyer in violation of Revised Rules 7.1 and 7.5.
(b) By maintaining a website that states that "[he] is also one of the elite percentage of attorneys to be published in Federal Law Reports — the large law books that contain the controlling caselaw [sic] of the United States" when only opinions of the Court are published in the Federal Reports, Culbertson maintained a website that made a false or misleading communication about the lawyer in violation of Revised Rules 7.1.
The DHC concluded and ordered, Defendant appeals.
Defendant argues the DHC erred by: (1) concluding his statements that he was "published in Federal Law Reports, 3d Series" were false or misleading; and (2) issuing an admonition rather than a less serious sanction.
N.C. Gen.Stat. § 84-28(h) (2005) provides, "There shall be an appeal of right by either party from any final order of the Disciplinary Hearing Commission to the North Carolina Court of Appeals." The standard for judicial review of attorney discipline cases is the "whole record" test. N.C. State Bar v. DuMont, 304 N.C. 627, 643, 286 S.E.2d 89, 98 (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. at 643, 286 S.E.2d at 98-99 (citations omitted). "Under the `whole record' test, [this Court] cannot substitute our judgment for the Committee's in choosing between two reasonably conflicting views of the evidence." N.C. State Bar v. Frazier, 62 N.C.App. 172, 178, 302 S.E.2d 648, 652 (1983) (citing Boehm v. Board of Podiatry Examiners, 41 N.C.App. 567, 255 S.E.2d 328, cert. denied, 298 N.C. 294, 259 S.E.2d 298 (1979)). We review questions of law de novo. Harris v. Ray Johnson Constr. Co., 139 N.C.App. 827, 829, 534 S.E.2d 653, 654 (2000).
An attorney's violation of the Rules of Professional Conduct constitutes misconduct and is grounds for discipline. N.C. Gen.Stat. § 84-28(b)(2) (2005). Rule 7.1 of the North Carolina State Bar Revised Rules of Professional Conduct (2005) provides, "A lawyer shall not make a false or misleading communication about the lawyer or the lawyer's services." Under this rule, a communication is false or misleading if it "contains a material misrepresentation of fact or law." Rule 7.5(a) the North Carolina State Bar Revised Rules of Professional Conduct (2005) states, "A lawyer shall not use a firm name, letterhead, or other professional designation that violates Rule 7.1."
Defendant argues the DHC erred by concluding his statements on his firm letterhead and website that he was "Published in Federal Law Reports, 3d Series" were false or misleading. He asserts the evidence shows the statements were not false or misleading and are constitutionally protected speech. We disagree.
In Bates v. State Bar of Arizona, 433 U.S. 350, 365, 97 S.Ct. 2691, 2699-2700, 53 L.Ed.2d 810, 824-25 (1977), the United States Supreme Court held advertising by lawyers is a form of commercial speech entitled to protection by the First Amendment. Five years later, the Supreme Court stated:
Truthful advertising related to lawful activities is entitled to the protections of the First Amendment. But when the particular content or method of the advertising suggests that it is inherently misleading or when experience has proved that in fact such advertising is subject to abuse, the States may impose appropriate restrictions. Misleading advertising may be prohibited entirely.
In re R.M.J., 455 U.S. 191, 203, 102 S.Ct. 929, 937, 71 L.Ed.2d 64, 74 (1982).
At the DHC hearing, defendant introduced evidence of a detailed survey conducted by a Wake Forest University political science professor that asked members of the general public whether the phrase, "Published in Federal Reports, 3d" on an attorney's letterhead was misleading. Defendant also introduced a study performed by a Duke University English and anthropology professor which analyzed how the general public would interpret the word, "publish." Defendant argues the DHC failed to consider this evidence of whether the public would actually be misled by the language and erred in relying on its judgment to determine whether this language was false or misleading.
Where the possibility of public deception is self-evident, the DHC is not required to survey the public to determine whether the communication has a tendency to mislead. Zauderer v. Office of Disciplinary Counsel of The Supreme Court of Ohio, 471 U.S. 626, 652-53, 105 S.Ct. 2265, 2282-83, 85 L.Ed.2d 652, 673 (1985); Accountant's Soc. of Virginia v. Bowman, 860 F.2d 602, 606 (4th Cir.1988); see also Farrin v. Thigpen, 173 F.Supp.2d 427, 437 (M.D.N.C.2001) (). We must determine whether the DHC correctly concluded defendant's statements are "inherently misleading." Farrin, 173 F.Supp.2d at 437.
In Joe Conte Toyota, Inc. v. Louisiana Motor Vehicle Comm'n, 24 F.3d 754, 756 (5th Cir.1994), the United States Court of Appeals for the Fifth Circuit discussed the meaning of "inherently misleading."
The Court in In re R.M.J. suggested that "inherently" misleading advertising may be banned outright, but "potentially" misleading advertising may not. In attempting to understand the distinction, we derive additional guidance from a later commercial speech case, Peel v. Attorney Disciplinary Commission, 496 U.S. 91, 110 S.Ct. 2281, 110 L.Ed.2d 83 (1990).
. . . .
A statement is "inherently" misleading when, notwithstanding a lack of evidence of actual deception in the record, "the particular method by which the information is imparted to consumers is inherently conducive to deception and coercion." Id. (Marshall, J. and Brennan, J., concurring). Included is "commercial speech that is devoid of intrinsic meaning." Id. (Marshall, J. and Brennan, J., concurring). In her dissent, Justice O'Connor added that "inherently misleading" means "inherently likely to deceive the public." Id. at 121, 110 S.Ct. at 1702[2299] (O'Connor, J., Rehnquist, C.J. and Scalia, J., dissenting). Citing In re R.M.J., Justice Marshall noted that states may prohibit actually or inherently misleading commercial speech entirely. Id. at 111, 110 S.Ct. at 1697[2293] (Marshall, J. and Brennan, J., concurring).
Id. The court held, "From all of this we conclude that a statement is actually or inherently misleading when it deceives or is inherently likely to deceive." Id. (emphasis supplied).
The Federal Reports are the official publications of the United States Courts of Appeal. The published opinions and other official documents of the Courts of Appeal are printed in hardcover book form. The set of books consists of serial volumes. As additional decisions and other written documents are selected for publication, volumes are bound. The parties...
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