Defendant attorney was ordered to be disbarred by the North Carolina Disciplinary Hearing Commission (DHC). He appealed this opinion as well as the exclusion of his expert witness. The appeals court confirmed the opinions of the DHC.
This case (The North Carolina State Bar v. William S. Britt – Court of Appeals of North Carolina – September 1st, 2015) centers on the disbarment of attorney William S. Britt. Mr. Britt appeals the opinion of the DHC and challenges the exclusion of his expert witness, a CPA. This case will be of interest to forensic accounting expert witnesses.
Facts: Defendant was an attorney in Lumberton, North Carolina and had a client trust account at RBC bank from January 2009 to May 2001. In April 2013, the State Bar started a disciplinary action against him in relation to mishandling client funds, the and not managing the client trust account correctly, in violation of many of the Rules of Professional Conduct. Mr. Britt filed an answer to the complaint an admitted to most of the allegations except: 1) that he failed to notify a client of received settlement checks and 2) that he endorsed settlement checks without their permission.
In a partial summary judgment ruling for the State Bar, the DHC stated that Mr. Britt violated all of the allegations except two. The DHC ordered a hearing on those allegations as well as any appropriate discipline. After the hearing, the attorney was disbarred from practice. He then filed a motion for consideration, which was denied. The defendant appeals on two grounds, one of which we will discuss here. The defendant states that the DHC erred when it excluded the testimony of his CPA expert witness.
Discussion: At the disciplinary hearing in front of the DHC, Mr . Britt called Robert Norman as an expert witness to testify that his actions were not consistent with criminal acts. Mr. Norman, a CPA, stated that he reviewed the defendant’s trust accounts and found that there was a shortage of funds. When Mr. Norman was asked whether he was a forensic accountant, he stated that everything in accounting is forensic, as everything “happened yesterday”. The State Bar questioned the court as to whether Mr. Norman was qualified as an expert in forensic accounting and requested a voir dire.
Upon more questioning by the State Bar, Mr. Norman stated that he had testified in the past on accounting practices in several cases, but never on the topic of attorney trust accounts. He also admitted that he did not have credentials necessary to be a forensic accountant. The DHC decided that Mr. Norman was not able to opine on whether or not there was embezzlement or fraud, but would be able to testify on what he found while looking through Mr. Britt’s files.
Mr. Britt appealed to the present court, stating that the lower court should not have excluded the testimony of Mr. Norman. The appeals court upheld the opinion of the lower court, stating that they did not abuse their discretion.
Held: The lower court exclusion of Mr. Norman as an expert witness is upheld.