Opinion
No. COA09-1269
Filed 7 September 2010 This case not for publication
Appeal by defendant from a disciplinary order entered 1 July 2009 by the Disciplinary Hearing Commission of the North Carolina State Bar. Heard in the Court of Appeals 25 February 2010.
The North Carolina State Bar, by Counsel Katherine Jean and Deputy Counsel David R. Johnson, for plaintiff. Sharpless Stavola, P.A., by Eugene E. Lester III, for defendant.
North Carolina State Bar No. 07 DHC 9.
This is the second appeal to arise from a disciplinary order entered 15 April 2008 by the Disciplinary Hearing Commission (DHC) of the North Carolina State Bar (plaintiff). The 2008 order suspended the law license of Creighton W. Sossomon (defendant) for one year. See North Carolina State Bar v. Sossomon, ___ N.C. App. ___, 676 S.E.2d 910 (2009). Defendant appealed the 2008 order, and we held that "the DHC's findings of fact in the adjudicatory phase fail[ed] to support the conclusions made in the dispositional section of the order, and thus the order [fell] short of containing clear, cogent, and convincing evidence supporting the discipline imposed upon defendant." Id. at ___, 676 S.E.2d at 922. We reversed and remanded to the DHC "to make proper findings of fact and conclusions of law and to reconsider defendant's sanction" if warranted. Id. On remand, the DHC addressed the insufficiencies identified by this Court and filed a second order of discipline on 1 July 2009, from which defendant now appeals. After careful consideration, we affirm the DHC's order of discipline.
The underlying facts and procedural history in this matter are set out in our previous opinion as follows:
Linda David ("Mrs. David" or the "Seller") retained defendant to represent her in the sale of approximately 19 acres of mountain land adjacent to her home as early as 10 October 2003. Mrs. David told defendant that she wished to sell the property only if restrictive covenants limited its use to single-family homes. On 11 October 2003, Mrs. David contracted to sell the property to Sanders Dupree ("Dupree") for $ 700,000.00. The offer, prepared by a realtor, was on Standard Form 2-T copyrighted July 2002 and approved by the North Carolina Bar Association and the North Carolina Association of Realtors ("Standard Form 2T"). Dupree intended to subdivide the property and establish a subdivision entitled "Old Hemlock Cove."
Among the provisions contained in Standard Form 2-T are numbered paragraphs, some containing blank spaces which require completion by the parties. Section "5. CONDITIONS (b)," reads: "There must be no restriction, easement, zoning, or other governmental regulation that would prevent the reasonable use of the Property for SINGLE FAMILY RESIDENTIAL purposes" ("Condition 5(b)"). Section "12. PROPERTY DISCLOSURE AND INSPECTIONS:" reads "(e) CLOSING SHALL CONSTITUTE ACCEPTANCE OF EACH OF THE SYSTEMS, ITEMS AND CONDITIONS LISTED ABOVE IN ITS THEN EXISTING CONDITION UNLESS PROVISION IS OTHERWISE MADE IN WRITING." Section 14. "CLOSING:" states "Closing shall be defined as the date and time of recording of the deed. All parties agree to execute any and all documents and papers necessary in connection with Closing and transfer of title on or before December 23, 2003, at a place designated by Buyer." In Section 16, "Other Provisions and Conditions," the contract provides for two attachments: Standard Form 2A5-T "Seller Financing Addendum" and an "Addendum B." Addendum B to the contract provides "Buyer and Seller shall mutually agree on restrictive covenants similar to Highlands Point." ("Addendum B"). Highlands Point is an existing single family residential community developed by Dupree. Addendum B also required Dupree to complete a survey showing individual lots as a pre-condition to closing.
Following contractual negotiations, Mrs. David reviewed a draft entitled "Declaration of Restrictive Covenants for Old Hemlock Cove," prepared by her real estate agent, Molly Leonard ("the draft"). The draft was similar to the Highlands Point restrictive covenants in that it limited homes to "single family" residences. Additionally, the covenants contained terms not present in the 11 October agreement including design criteria, limitations on building materials and/or fixtures, architectural standards, the required approval of an Architectural Review Committee, and the preservation of surrounding woodlands.
On 8 and 10 December 2003, Mrs. David and Dupree subsequently modified Addendum B. The typed and handwritten modifications were labeled "WAIVER." The waiver reads "Buyer hereby acknowledges completion and/or waives contingency items in above referenced attachment of Offer to Purchase and Contract[.]" Condition 5(b) was not referenced in the waiver. Dupree waived the completion of certain preconditions concerning survey work. In exchange, Mrs. David acknowledged receiving a copy of the Highlands Point Declarations, agreed to accept these declarations, and agreed to be appointed to the Architectural Review Committee. Defendant had reviewed the draft with Mrs. David no later than 23 December 2003, after which he faxed a letter to Dupree's counsel regarding possible changes.
A general warranty deed dated 12 January 2004 prepared by defendant from Mrs. David and spouse Keaton David ("Mr. David" collectively, the "Davids") conveyed 19.24 acres of property to Old Hemlock Cove Development, LLC ("2004 Closing"). The deed was recorded simultaneously with a $400,000 purchase money deed of trust. A survey of the property, without interior lot lines, showing only the outer perimeter was also recorded. No restrictive covenants were recorded with these instruments, and the instruments do not mention restrictive covenants.
After the closing, defendant was contacted by the Davids concerning the omitted restrictive covenants. Defendant told the Davids that he believed Old Hemlock's obligation to restrict the use of the property survived the closing and that, if necessary, "they could sue to enforce the obligation." On at least two occasions, one as late as February 2006, defendant contacted counsel for Old Hemlock to request that the covenants be recorded. No restrictive covenants were ever recorded. No subdivision survey was platted.
In July 2006, Dupree sought to sell the unrestricted 19-acre tract to William Shephard ("Shephard"). On 19 July 2006, defendant agreed to represent Shephard in the purchase of the same 19 acres from Old Hemlock ("2006 closing") without first obtaining the Davids' informed consent. Shephard planned to develop multi-story condominiums on the property. During their initial meeting, defendant disclosed to Shephard the existence of a potential cloud on title posed by Dupree's obligations to record restrictive covenants, which could have survived the 2004 closing.
Shephard owned a development company, Highlands Views, which purchased the properties.
The 2006 closing was not limited to the 19-acre tract. The sale also included the purchase of an adjacent parcel of land from Lloyd Wagner ("Wagner"). Defendant agreed to represent not only Shephard in this 2006 closing, but also Dupree and Wagner (collectively, "2006 clients"). Defendant did not obtain informed consent from Old Hemlock, Dupree, or Shephard, despite the conflicts of interest derived from the prior representation of the Davids.
Defendant contacted the Davids in connection with modifying or waiving the restrictive covenants but did not inform them that he was representing Shephard. The parties dispute whether defendant's representation of Dupree began before or after these conversations. The Davids indicated they would waive the restrictive covenants in return for payment of one million dollars. Defendant's 2006 clients refused this demand and declined to make a counteroffer. Defendant then advised the Davids they could sue Dupree to enforce recording the restrictive covenants, but he explained that he could not represent them.
The 2006 closing was scheduled to take place on 12 September 2006, at 11:00 a.m. at defendant's law office. During the closing, Mr. David arrived at defendant's office unannounced and requested copies of the draft restrictions contained within defendant's records of the 2004 closing. After Mr. David obtained these records, Dupree and Shephard asked defendant if the Davids could potentially interfere with their transfer of title. Defendant advised them that the Davids could file a lis pendens and explained its legal significance. After this explanation, the parties to the 2006 closing offered to drive defendant to the Macon County Courthouse immediately, so their transfer could be recorded before a potential lis pendens could be filed. Defendant declined, wanting to wait until after 2:00 p.m. when his next scheduled closing would be completed.
Meanwhile the Davids raced to the Macon County Courthouse and filed a summons without complaint and a lis pendens against Old Hemlock Cove and Dupree at 3:00 p.m., identifying the 19-acre tract as the subject of the litigation. Defendant arrived at the Macon County Register of Deeds at 3:30 p.m. After conducting his final title examination and learning of the lis pendens, defendant did not record any instruments. The Davids subsequently filed a complaint against Dupree and Old Hemlock in Macon County Superior Court on 2 October 2006, alleging breach of contract.
Following the failed 2006 closing, the following events occurred. Pursuant to a Letter of Notice dated 4 January 2007, the North Carolina State Bar informed defendant it had received a grievance from Dupree. Defendant responded to the grievance on 22 January 2007. The Davids filed a professional negligence claim against defendant in Macon County Superior Court on 24 January 2007. In his amended answer, filed 16 April 2007, defendant filed a third-party complaint against Dupree and Old Hemlock seeking indemnity and contribution.
The complaint in the case sub judice was filed 29 June 2007 and heard before the DHC on 29 February 2008 and 1 March 2008. The Chair of the DHC filed its "Findings Of Fact, Conclusions Of Law, And Order Of Discipline" on 15 April 2008. Pursuant to N.C. Gen. Stat. § 84-28(b)(2), the DHC found defendant's conduct violated the following Revised Rules of Professional Conduct (the "Rules"): Rule 1.3 "Diligence"; Rule 1.4(a) (b) "Communication"; Rule 1.6(a) "Confidentiality of information"; Rule 1.8(b), "Conflict of interest"; and Rule 1.9(a) "Duties to former clients."
The DHC's conclusions of law read as follows:
(a) By failing to ensure that the single family lot restriction requested by Linda David was in effect and enforceable upon transfer of the property to Old Hemlock/Dupree, Sossomon failed to act with reasonable diligence in representing a client in violation of Rule 1.3;
(b) By failing to inform Linda David prior to the January 2004 closing of the legal effect of failing to execute and record the restrictive covenants, Sossomon failed to explain a matter to the extent reasonably necessary to permit his client to make informed decisions regarding the representation in violation of Rule 1.4(b);
(c) By undertaking representation of Shephard and Old Hemlock/Dupree to transfer the land free from the restrictions that the Davids sought to place on the property without obtaining Linda David's informed consent, confirmed in writing, Sossomon represented persons whose interests were materially adverse to the interests of a former client, without the former client's informed consent confirmed in writing, in violation of Rule 1.9(a);
(d) By negotiating with his former client, Linda David, about waiving the property restrictions without disclosing that he was representing Shephard and Ol [ sic] Hemlock/Dupree, Sossomon failed to inform his former client of a circumstance for which her informed consent was required in violation of Rule 1.4(a);
(e) By discussing with Shephard some of the terms of the prior contract between Old Hemlock/Dupree and Linda David without first obtaining David's informed consent to this disclosure, Sossomon revealed information acquired during the professional relationship with a client in violation of Rule 1.6(a); and
(f) By disclosing to the Davids that the closing in the Shephard/Dupree transaction was imminent without obtaining Shephard and Old Hemlock/Dupree's informed consent to this disclosure, Sossomon revealed information acquired during the professional relationship with a client in violation of Rule 1.6(a), and used information relating to the representation of a client to the disadvantage of the client in violation of Rule 1.8(b).
Based on authority pursuant to N.C. Gen. Stat. § 84-28(c)(2), the DHC ordered defendant be "hereby suspended from the practice of law in North Carolina for one year[.]" Defendant agreed with the DHC that he violated Rule 1.9 conflict of interest (Conclusion (c), above) but appealed the remaining findings.
After filing notice of appeal on 8 May 2008 ("first appeal"), defendant failed to timely file a notice that arrangements to obtain a transcript had been made or to obtain the transcript under Rule 18(b)(2) (3) and Rule 7 of the Rules of Appellate Procedure. After the expiration of the time period as provided by the Rules, plaintiff moved for dismissal on 31 July 2008, which was subsequently granted by the DHC on 5 August 2008. Following this dismissal, defendant moved for relief from the order dismissing the appeal on 11 August 2008 on grounds of excusable neglect. Defendant filed a motion for stay of the order of discipline pending his appeal. Subsequently, he filed a second notice of appeal on 2 September 2008 ("second appeal"). The motion for relief was denied by the DHC; however, in its order, the DHC granted the stay and stated that but for its lack of jurisdiction, it would have granted defendant's motion for relief.
Sossomon at ___, 676 S.E.2d at 912-15.
In our previous opinion, we held that the findings of fact did not support the trial court's conclusion that defendant violated Rule 1.6(a) because the DHC did not address an important exception to the rule: whether defendant's disclosure was "impliedly authorized in order to carry out the representation[.]" Revised Rules of Professional Conduct, Rule 1.6(a) (2009). We explained, "In order to conclude defendant violated Rule 1.6(a), the DHC must address all three of the exceptions to the disclosure of confidential information." Sossomon at ___, 676 S.E.2d at 919. The DHC addressed these issues in its second order by adding these additional findings of fact:
23. Sossomon's disclosure to Shephard of information about the Old Hemlock/David contract was not impliedly authorized in order to carry out the terms of Sossomon's representation of David.
24. No evidence was offered to show that Sossomon was permitted, pursuant to any of the exceptions set forth in Rule 1.6(b), to reveal to Shephard information about the Old Hemlock/David Contract.
* * *
34. Sossomon's disclosure to the Davids that transfer of the property was imminent was not impliedly authorized in order to carry out the terms of Sossomon's representation of Shephard or Old Hemlock.
35. No evidence was offered to show that Sossomon was permitted, pursuant to any of the exceptions set forth in Rule 1.6(b), to reveal to the Davids that transfer of the property was imminent.
With respect to the sanction imposed by the DHC, we held that the order was sufficient to show that defendant's conduct had violated the Rules, but that the order did not comply "with the requirements that the findings of fact support the discipline imposed." Sossomon at ___, 676 S.E.2d at 920. Specifically, we held that the order suffered from the following deficiencies:
1. The order found defendant's misconduct to be aggravated by the "[v]ulnerability of the victim, Linda David." Mrs. David may in fact be vulnerable, however, there is no finding of fact in the adjudicatory section which supports this characterization of Mrs. David. Therefore in reviewing the order, one simply does not know the factual predicate which forms this conclusion.
2. No factual findings support the mitigating factors that defendant had an absence of a prior disciplinary record.
3. While one may assume defendant contested the imposition of discipline, there are no findings of fact which support the conclusion that defendant refused to acknowledge the wrongful nature of his conduct other than the finding in paragraph 40 of the order that "Sossomon admitted that his conduct violated Rule 1.9[.]" Findings of Fact and Conclusions Regarding Discipline 1(c) notes defendant's acknowledgment of his Rule 1.9 violation as part of an aggravating factor: "Except as to a single instance of misconduct, a refusal to acknowledge the wrongful nature of his conduct[.]" Conversely, the DHC made no parallel finding of this acknowledgment within the mitigating factors.
4. In its disciplinary order, the DHC found that Dupree and Wagner sustained economic loss due to the six-month delay in selling their respective properties to Shephard. No factual finding supports this conclusion.
5. In paragraph 5(b), the DHC found that Mrs. David "experienced, and continues to experience, emotional distress" tied to a number of factors with regard to lack of restrictions on the property, including "the cutting of the old growth forest on her former property." It is unclear how, even if defendant had placed single-family restrictions on the 19-acre tract, Mrs. David's distress arising from the loss of forest land could have been prevented by defendant. No prior findings of fact support this conclusion.
Id. at ___, 676 S.E.2d at 920-21. As a result of these deficiencies, we could not "find that the order's expressed findings of fact adequately support[ed] the order's subsequent conclusions of law and that the expressed findings and/or conclusions adequately support[ed] the DHC's ultimate decision." Id. at ___, 676 S.E.2d at 921.
The DHC addressed the deficiencies in the dispositional phase of the case by separating the findings of fact and conclusions regarding discipline. It added the following findings of fact, which address Mrs. David's vulnerability, Mssrs. Dupree and Shephard's economic loss, and defendant's refusal to acknowledge the wrongful nature of his conduct:
1. The property at issue in this case belonged to David's family for generations. David sought to limit use of the property because it had substantial sentimental value to David and because it is immediately adjacent to the Davids' house.
2. Linda David was vulnerable at the time Sossomon represented her in the sale of her property, as she did not understand the legal requirements for restricting land use, and therefore relied upon Sossomon to explain the situation and to effectuate her wishes.
3. As a result of her experience with Sossomon, David is "dubious" of lawyers and "leery" about dealing with them.
4. As a result of his experience with Sossomon, Mr. David has "very little faith" that lawyers will tell clients "the whole story."
5. The Shephard/Old Hemlock transaction and the Shephard/Wagner transaction were completed in March 2007, six months after the failed closing at issue in this case.
6. At the time of the September 2006 failed closing, Wagner had already acquired another property on which he was living. Due to the delay in closing the Shephard/Wagner transaction, Wagner was obligated to pay an additional six months of interest and principal, utilities, taxes, insurance, and maintenance on the property he contracted to sell to Shephard.
7. At the time of the September 2006 failed closing, Old Hemlock's principal Dupree was relying on receiving the closing proceeds in order to avoid foreclosure on another property he owned. Due to the delay in closing the Shephard/Dupree transaction, Dupree was unable to avoid foreclosure of that property and bankruptcy, and Dupree's credit was damaged.
8. Sossomon was forthcoming during his testimony before the DHC in this case when he acknowledged that he failed to obtain written confirmation of his clients' informed consent to the conflict of interest.
9. During his testimony, Sossomon testified that "the Bar's approach to this thing is wrong" and stated, despite his post-closing advice to Ms. David on her rights against subsequent owners of the property, "You're not connected to a client for the rest of your life simply because you close a real estate transaction for them." The committee found, despite his admission that he violated Rule 1.9, that these statements were a substantially incorrect minimization of his continuing ethical obligations to his clients and former clients.
10. Although he acknowledged that he was "representing the seller" in the David-Old Hemlock transaction, in his testimony Sossomon repeatedly testified to the effect that his obligations were limited to effecting the seller's contract rather than achieving the client's goals in the transaction, especially the recording of restrictive covenants that would limit future use of the property to single-family residences.
11. A lawsuit initiated by the Davids against Dupree on 12 September was still ongoing at the time of the hearing in this matter.
12. On 24 January 2007, David filed suit against Sossomon alleging legal malpractice, among other things. On 16 April 2007, Sossomon added Old Hemlock/Dupree as a third party defendant in that case. This lawsuit was also still pending at the time of the hearing in this matter.
13. As of the date of the hearing in this case, Dupree and the Davids had incurred substantial legal fees litigating the two cases described above.
14. Sossomon has not previously been disciplined by the North Carolina State Bar.
(Citations to the transcript omitted.) The conclusions regarding discipline were modified to reflect the new findings of fact.
On appeal, defendant challenges the findings of fact and conclusions of law from both phases of the trial.
The standard of review for attorney discipline is the whole record test. N.C. State Bar v. DuMont, 304 N.C. 627, 642, 286 S.E.2d 89, 98 (1982). "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). However, we note that some of defendant's challenged findings and conclusions are not reviewable on appeal. Findings of fact and conclusions of law previously affirmed by this Court cannot be challenged for a second time if they are later involved in another appeal:
[W]hen an appellate court passes on a question and remands the cause for further proceedings, the questions there settled become the law of the case, both in subsequent proceedings in the trial court and on subsequent appeal, provided the same facts and same questions which were determined in the previous appeal are involved in the second appeal.
Hayes v. Wilmington, 243 N.C. 525, 536, 91 S.E.2d 673, 681-82 (1956). While the DHC did add new findings of fact on remand, several of the original findings of fact remain unchanged from the previous appeal. Accordingly, we do not review findings 6, 7, 29, or 31.
Furthermore, we determined that all of the conclusions of law from the first DHC hearing, with the exception of conclusion 2(e) as it pertains to violation of Rule 1.6(a), were supported by findings of fact. Accordingly, we do not review defendant's challenge to conclusions of law 2(a), (b), (d), and (f).
Defendant first argues that findings of fact 6, 7, 9, 23, 24, 29, 31, 34, and 35 from the initial DHC hearing are not supported by substantial evidence. As discussed above, we review only findings 9, 23, 24, 24, and 35.
Finding of fact 9 is virtually the same in the second order as it was in the first. The only changes are the addition of the specific date of the closing, which was not in contention, and the specificity of Mrs. David's expectation that defendant would pursue enforcement of the restrictive covenants. This assertion is adequately supported by the unchallenged findings of fact.
Defendant next argues that the evidence in the record does not support findings 23 or 24. Finding 23 states that defendant's disclosure to Mr. Shephard was not impliedly authorized, and finding 24 states that no evidence was offered by defendant to show that the disclosure was permitted. Defendant asserts that he did not violate Rule 1.6(a) when he advised Mr. Shephard about potential restrictions on the property because this information was vital to his representation of Mr. Shephard and Highlands Views. However, defendant has misinterpreted the purpose and scope of the protection offered by Rule 1.6, which is easily discernible from the language of the Rule and the corresponding comments. Rule 1.6(a) states, "A lawyer shall not reveal information acquired during the professional relationship with a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b)." Revised Rules of Professional Conduct, Rule 1.6(a) (2009). "This Rule governs the disclosure by a lawyer of information relating to the representation of a client acquired during the lawyer's representation of the client." Revised Rules of Professional Conduct, Rule 1.6, cmt. 1 (2009). The language of the statute, coupled with the comment, makes clear that the only representation that could require disclosure is that of the client whose information is being protected. Defendant's claim that he disclosed confidential information to Mr. Shephard because "[i]t was in Highlands Views [ sic] interest to know of any potential clouds on title or potential restrictions on his proposed development" illustrates his lack of understanding as to whose interests Rule 1.6 requires him to protect.
Defendant next argues that findings of fact 34 and 35 are not supported by substantial evidence. Finding 34 states that defendant's disclosure to the Davids that a transfer of the property was imminent was not impliedly authorized in order to carry out the terms of his representation to Mr. Shephard or Old Hemlock. Finding 35 states that defendant did not present any evidence that the disclosure was permitted.
Adequate evidence supports the DHC's findings that again put defendant on the wrong side of Rule 1.6. Defendant's assertion that testimony showing he that "told the Davids that the closing would occur `soon'" as a valid refutation of the DHC's use of the word "imminent" is unconvincing. Even assuming arguendo that the necessity of payoff information did give defendant a valid reason to contact the Davids, he was not justified in telling them that filing a lis pendens would be a valid means of stopping the imminent sale. Therefore, we find sufficient evidence from the record to support findings 34 and 35.
Defendant next argues that the findings of fact from the adjudicatory phase do not adequately support the order's conclusions of law. However, as the DHC did not change any of the conclusions of law from the adjudicatory phase, they are binding on appeal. See Hayes, 243 N.C. at 536, 91 S.E.2d at 681-82.
Defendant next argues that the new findings of fact in the dispositional phase are not supported by sufficient evidence. Specifically, defendant appeals findings 2, 6, 7, and 9.
With respect to finding 2, defendant argues that no evidence supports the characterization of Mrs. David as vulnerable because there was no evidence offered that Mrs. David "was under any disability of age, mind or body when she entered into the contract to sell her Property." Instead, defendant asserts that the record demonstrates Mrs. David's lack of vulnerability, specifically that she was married and had hired a real estate agent. We hold that neither disability, being unmarried, nor the absence of a real estate agent in a real estate closing are prerequisites to establishing vulnerability. Mrs. David is not an attorney, and she did not know the legal requirements for her desired land restrictions. Accordingly, she was in a position of vulnerability in her desire to protect her interests when selling her property and hired defendant to protect those interests.
Findings 6 and 7 state that Mssrs. Dupree and Wagner suffered economic loss. Defendant argues that the evidence did not sufficiently establish that Mr. Dupree and Mr. Wagner suffered any economic loss as a result of defendant's actions. However, both men testified to the nature of their economic loss: Mr. Wagner testified about the additional interest, utilities, and insurance he had to pay as a result of the closing falling through, and Mr. Dupree testified about the lack of anticipated funds from the closing resulting in his inability to offset other debt and the resulting foreclosure of another property. As both men testified that these events would not have occurred had the closing not failed, substantial evidence supports findings 6 and 7.
Defendant next argues that finding of fact 9 is not supported by substantial evidence. Finding of fact 9 states that defendant's admission to his violation of Rule 1.9 was a "substantially incorrect minimization" of his obligations to his clients and former clients. In his testimony, defendant admitted to failing to obtain written consent from Mrs. David before disclosing her information to the other parties, but later asserted "[y]ou're not connected to a client for the rest of your life simply because you close a real estate transaction for them." This statement demonstrates that defendant viewed his obligations to his clients as merely ministerial. However, as comment 19 to Rule 1.6 states, "The duty of confidentiality continues after the client lawyer relationship has terminated." Revised Rules of Professional Conduct, Rule 1.6, cmt. 19 (2009). Defendant had a continuing duty to Mrs. David, and as noted earlier, his failure to obtain written approval of the disclosure was not his only violation of his duties to his clients. As such, the DHC's finding is supported by sufficient evidence.
Defendant next argues that the findings of fact from the dispositional phase do not support the conclusions of law, and, therefore, they do not support the DHC's sanction. In our prior opinion, we enumerated the five specific deficiencies in the previous conclusions of law that needed to be remedied on remand. The DHC addressed each of those deficiencies by adding findings of fact. Defendant challenged each of those findings of fact on appeal, and we held that each was supported by sufficient evidence.
The DHC's original order did not meet the second and third tests laid out in Talford: "(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?" Sossoman at ___, 676 S.E.2d at 919 (quoting N.C. State Bar v. Talford, 356 N.C. 626, 634, 576 S.E.2d 305, 311 (2003)). We have already determined that the findings of fact adequately support the order's conclusions, and we turn to the final question of whether the findings and conclusions adequately support the DHC's ultimate decision to suspend defendant.
We remanded to the DHC "for the limited purpose of allowing the DHC to make proper findings of fact and conclusions of law and reconsideration of defendant's sanction pursuant to N.C. Gen. Stat. § 84-28(c)" as there were conflicting findings of fact regarding defendant's acknowledgment of his wrongdoings. Sossomon at ___, 676 S.E.2d at 922. In the first order, finding of fact and conclusion 7(c) stated that defendant refused "to appreciate or acknowledge the significance of the wrongful nature of the entirety of his misconduct," while finding of fact and conclusion 1(c) stated that one of the aggravating factors was that defendant refused to acknowledge the wrongfulness of his actions "[e]xcept as to a single instance of conduct." The DHC corrected this contradiction in the second order; conclusion of law regarding discipline 8(c) now states that one of the determining factors in the selection of suspension as a sanction was, "[w]ith the exception of his admitted violation of Rule 1.9, Sossomon's refusal to appreciate the significance of the wrongful nature of his misconduct." We have already upheld the DHC's finding that defendant was unwilling to appreciate the significance of his actions. Accordingly, we hold that the decision to suspend defendant's license is adequately supported by the findings of fact and conclusions of law.
For the foregoing reasons, we affirm the order of the DHC.
Affirmed.
Judges JACKSON and STROUD concur.
Report per Rule 30(e).