North Carolina State Bar v. Merritt

• Decision Date: 20 September 2022
• Docket Number: COA22-191
• Citation: 877 S.E.2d 892
• Parties: The NORTH CAROLINA STATE BAR, Plaintiff, v. Lonnie P. MERRITT, Defendant.
• Court: North Carolina Court of Appeals

877 S.E.2d 892

The NORTH CAROLINA STATE BAR, Plaintiff,

v.Lonnie P. MERRITT, Defendant.

No. COA22-191

Court of Appeals of North Carolina.

Filed September 20, 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.

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 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 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 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 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 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

¶ 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"...