Tuesday, December 19, 2017

F Bomb Ethics

The North Carolina Court of Appeals has affirmed the imposition of a stayed two-year suspension.

Attorney Jennifer Nicole Foster (“defendant”) appeals from an order of discipline issued by the Disciplinary Hearing Commission (“DHC”) of the North Carolina State Bar. In its order, the DHC determined that defendant violated Rules of Professional Conduct 3.5 and 8.4. The DHC thus imposed a two-year suspension of defendant’s law license, stayed for the duration of the suspension so long as defendant complies with certain conditions. After careful review, we affirm the order of the DHC.

The misconduct

Defendant was admitted to the North Carolina State Bar in 1995 and was practicing law in Asheville as of 2011. On the evening of 5 November 2011, defendant entered the magistrate’s office in the Buncombe County Detention Center to inquire about arrest warrants that had been issued for several members of the Occupy Asheville movement. Defendant encountered Magistrate Amanda Fisher, one of two magistrates on duty at the time, and identified herself as an attorney there on behalf of the movement. Defendant then asked Magistrate Fisher “what the hell is going on around here” regarding the warrants. Magistrate Fisher warned defendant to watch her language and told her that she was in a courtroom. Defendant, however, maintains that Magistrate Fisher never mentioned the word “court” or warned defendant to watch her language.

Office policy prohibited Magistrate Fisher from providing defendant with information regarding outstanding warrants on other individuals, but she did inform defendant there were no outstanding warrants on defendant herself. Defendant responded “what the f*** is going on around here,” prompting Magistrate Fisher to renew her warning to defendant, but defendant nevertheless repeated the profanity multiple times. As Magistrate Fisher told defendant she was being held in contempt of court, defendant walked out of the magistrate’s office, loudly repeating more vulgarities as she left.

At Magistrate Fisher’s request, detention officers stopped defendant from leaving the premises and returned her to the magistrate’s office. The second magistrate on duty that evening appeared and witnessed the remainder of defendant’s profanities while Magistrate Fisher entered the order for contempt. On 17 January 2012, defendant was convicted of direct criminal contempt of court following a 1 December 2011 hearing in Buncombe County Superior Court. Defendant appealed, and this Court ultimately reversed her conviction on procedural grounds. In re Foster, 227 N.C. App. 454, 744 S.E.2d 496, 2013 WL 2190072 (2013) (unpublished).

The court here concludes that a magistrate is a tribunal.

The definitions and core functions described above and applied here indicate that a magistrate is a tribunal as that term appears in Rule 3.5. Consistent with Rule 1.0, the State Bar defines “tribunal” as a court or other adjudicative body that administers justice. Like a tribunal, a magistrate is an adjudicative body led by a judicial officer, but typically with limited jurisdiction over criminal or civil matters. However, it is clear based on the powers conferred upon them by our legislature that magistrates administer justice within their limited jurisdiction.

And the F bombs were prejudicial to the administration of justice

Here, defendant made vulgar and profane statements toward and in the presence of Magistrate Fisher, who is a judicial officer of the district court. As to defendant’s criminal contempt conviction, this Court reversed her conviction on procedural grounds while expressing serious concern with defendant’s underlying behavior, which is at issue in this action.

We are, however, very troubled by defendant’s use of profanity in the magistrate’s office while conducting court related business despite warnings by the magistrate about the inappropriate language. Such disrespect, particularly by an attorney familiar with proper courtroom practices, is wholly inappropriate. . . . Given defendant is a lawyer practicing in our State’s courts, we find defendant’s attitude offensive and incomprehensible.

Foster, 2013 WL 2190072, at *8. We again emphasize that defendant’s conduct  regardless of whether it occurred in a courtroom or a magistrate’s office  was clearly offensive and inappropriate. Further, there is a reasonable likelihood that such conduct encourages disrespect for our court system and damages the reputation of the legal profession. We thus hold that the DHC did not err in finding that defendant exhibited conduct prejudicial to the administration of justice in violation of Rule 8.4(d).

Citizen Times reported in 2014 that the attorney no longer practices law. (Mike Frisch)


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