An unpublished opinion of the North Carolina Court of Appeals does not constitute 

controlling legal authority. Citation is disfavored, but may be permitted in accordance 

with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA13-1249

NORTH CAROLINA COURT OF APPEALS

Filed: 20 May 2014

THE NORTH CAROLINA STATE BAR,

Plaintiff

v. Disciplinary Hearing Commission 

of The North Carolina State Bar

No. 12 DHC 31

JEFFREY S. BERMAN, Attorney,

Defendant

Appeal by defendant from order entered 1 May 2013 by the 

Disciplinary Hearing Commission of the North Carolina State Bar. 

Heard in the Court of Appeals 6 March 2014.

The North Carolina State Bar, by Counsel Katherine Jean and 

Deputy Counsel David R. Johnson, for plaintiff-appellee.

The Law Office of Bryce D. Neier, by Bryce D. Neier, for 

defendant-appellant.

CALABRIA, Judge.

Attorney Jeffrey S. Berman (“Berman”) appeals from an Order 

of Discipline issued by the Disciplinary Hearing Commission 

(“DHC”) of the North Carolina State Bar (“State Bar”) finding 

him in violation of the North Carolina Rules of Professional 
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Conduct and suspending his license to practice law for one year. 

We affirm. 

I. Background

Berman was admitted to the North Carolina State Bar in 

1988. During the period relevant to the matters before the DHC, 

Berman was actively engaged in the practice of law in 

Greensboro, North Carolina, focusing largely on custody and 

child support matters. The State Bar divided its complaint 

against Berman into three claims for relief: Berman’s handling 

of a custody matter for Vanessa Greeson, his renewal 

applications for mediation certification, and his handling of a 

custody matter for Lisa Goins.

A. The Greeson Matter

In May 2011, Vanessa Greeson (“Greeson”) sought legal 

advice from Berman regarding her five-month-old granddaughter’s 

status and placement. Greeson’s granddaughter (“K.C.”) had been 

hospitalized with serious injuries, and the Guilford County 

Department of Social Services (“DSS”) had been notified. 

Greeson and K.C.’s parents agreed to a DSS safety plan that 

placed K.C. with a family friend (“the friend”). Because it was 

unclear who had caused K.C.’s injuries, only supervised 

visitation with K.C.’s parents was permitted. Greeson was 
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concerned that DSS would attempt to petition the court for

custody of K.C.

Berman prepared a child custody complaint on Greeson’s 

behalf. Berman intentionally omitted any allegations that 

K.C.’s parents acted inconsistently with their constitutionally 

protected parental rights. According to the accompanying 

Affidavit as to Status of Minor Child, K.C. lived with her 

“mother and/or third party,” but the affidavit failed to provide 

specific addresses or to state that the friend had physical 

custody of K.C. 

Berman also prepared a consent order granting Greeson joint 

legal custody and primary physical custody of K.C. When Berman 

presented the consent order to the court, ex parte, he did not 

inform the court that DSS was involved with the family or that 

K.C. was living with the friend. Berman informed the court that 

K.C. was already living with Greeson. When DSS discovered that 

Greeson had obtained custody of K.C. by consent order, it 

immediately filed a petition alleging that K.C. was abused, 

neglected, and dependent. K.C. was subsequently placed in 

foster care for six months before she was returned to her 

family. 

B. Mediation Certification
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Berman was also a mediator certified by the North Carolina 

Dispute Resolution Commission. To maintain his certification, 

Berman was required to submit annual Mediator Certification 

Renewal Applications (“renewal applications”), which 

specifically ask applicants to disclose pending complaints and 

disciplinary proceedings. 

Berman received notice in August 2011 that a grievance 

regarding his conduct in the Greeson matter had been filed with 

the State Bar. In September 2011, and again in August 2012, 

Berman submitted renewal applications to the Dispute Resolution 

Commission, but did not disclose the pending grievance or that a 

complaint had been filed against him with the State Bar in the 

applications. On both applications, Berman certified that he 

had given “true, accurate, and complete information.” 

C. The Goins Matter

In December 2012, Berman represented Lisa Goins in a child 

custody matter in Guilford County. On 5 December 2012, Berman’s 

request for an ex parte emergency custody order was denied by 

Chief District Court Judge Wendy Enochs (“Judge Enochs”). 

Because the local rules required parties to participate in 

mediation before scheduling a hearing, Judge Enochs also denied 

Berman’s request for the matter to be heard within ten days. 
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Berman then approached another District Court Judge in the 

hallway, who allowed Berman to schedule the matter for hearing 

on 18 December 2012. Berman did not inform the second judge 

that Judge Enochs had previously denied his ex parte motion for 

emergency custody and his request to schedule a hearing. 

D. Disciplinary Hearing

On 16 July 2012, the State Bar filed a complaint against 

Berman regarding his conduct in the Greeson matter. The State 

Bar amended its complaint in January 2013 to include Berman’s 

conduct in all three matters. After a hearing, the DHC issued 

an Order of Discipline on 1 May 2013, concluding Berman’s 

conduct violated the Rules of Professional Conduct as the State 

Bar claimed. The DHC specifically concluded that Berman brought 

a proceeding that lacked basis in law and/or fact in violation 

of Rule 3.1; that he knowingly made false statements to the 

tribunal in violation of Rule 3.3(a); that he failed to disclose 

all material facts that would enable the judge to make an 

informed decision in violation of Rule 3.3(d); that he engaged 

in conduct involving dishonesty, deceit, or misrepresentation in 

violation of Rule 8.4(c); and that his conduct was prejudicial 

to the administration of justice in violation of Rule 8.4(d). 

Based on its conclusions and the evidence presented, the 
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DHC suspended Berman’s license to practice law for one year. 

Berman appeals.

Berman argues that the DHC erred in finding that he 

committed ethical violations in all three matters, and that the 

suspension of his license was disproportionate and unwarranted. 

We disagree.

II. Standard of Review

Appeals from the DHC are reviewed under the “whole record” 

test, which requires a determination of whether the DHC’s 

findings of fact are supported by substantial evidence in view 

of the record, and whether the findings support the conclusions 

of law. N. Carolina State Bar v. Talford, 356 N.C. 626, 632, 

576 S.E.2d 305, 309 (2003). To determine whether the DHC’s 

decision has a rational basis in the evidence, the whole record 

test requires consideration of any contradictory evidence or 

evidence from which conflicting inferences may be drawn, and 

that the DHC used clear, cogent, and convincing evidence to 

support its findings and conclusions. Id., 576 S.E.2d at 310.

Rule 3.1 states that a lawyer “shall not bring or defend a 

proceeding . . . unless there is a basis in law and fact for 

doing so that is not frivolous, which includes a good faith 

argument[.]” N.C. Rev. R. Prof. Conduct 3.1 (2013). Rule 3.3 
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concerns candor towards the tribunal, stating that a lawyer 

shall not knowingly make false statements of material fact to 

the court and, in ex parte proceedings, shall inform the court 

of all material facts known to the lawyer that will enable the 

court to make an informed decision, “whether or not the facts 

are adverse.” N.C. Rev. R. Prof. Conduct 3.3 (a)(1), (d) (2013). 

Rule 8.4 states that it is professional misconduct for a lawyer 

to engage in conduct that involves dishonesty, fraud, deceit, or 

misrepresentation, or prejudices the administration of justice. 

N.C. Rev. R. Prof. Conduct 8.4 (c), (d) (2013). Comment 4 to 

Rule 8.4 states that a showing of a reasonable likelihood of 

prejudicing the administration of justice is sufficient. Id., 

Cmt. 4. In addition, “the phrase ‘conduct prejudicial to the 

administration of justice’ . . . should be read broadly to 

proscribe a wide variety of conduct, including conduct that 

occurs outside the scope of judicial proceedings.” Id.

As an initial matter, we note that Berman’s answer to the 

State Bar’s complaint admitted the majority of the factual 

allegations. Therefore, those facts are conclusively 

established. Harris v. Pembaur, 84 N.C. App. 666, 670, 353 

S.E.2d 673, 677 (1987).

III. The Greeson Matter
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We first address the issue of whether the DHC erred in 

finding Berman failed in his duty of candor and honesty as an 

attorney and officer of the court by omitting material 

information and making a false statement in his submission of 

the Greeson consent order to the court. Berman argues that the 

DHC’s findings do not show that he committed ethical violations 

in the Greeson matter. We disagree.

In the instant case, Berman testified at the hearing 

regarding the requirements for third-party custody complaints, 

indicating that there must be an allegation that the parents are 

either unfit or that they acted in a manner inconsistent with 

their constitutionally protected parental rights. Berman also 

testified that he intentionally omitted allegations in the 

complaint regarding the fitness or constitutionally protected 

status of K.C.’s parents. Berman neither made an effort to 

contact the friend, who had physical custody of K.C., nor gave

her notice of the consent order. He also admitted at the 

hearing that the Affidavit as to Status of Minor Child was 

inadequate and did not identify the person who had custody of 

K.C.

Judge Jan Samet (“Judge Samet”) also testified at the 

hearing regarding the consent order. Judge Samet stated that 
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when Berman presented the consent order for his signature, 

Berman did not mention that K.C. had been hospitalized, that DSS 

was involved with the family, or that Greeson was not permitted 

visitation with K.C. Judge Samet also testified that Berman 

told him Greeson had physical custody of K.C. If he had known 

that K.C. was living with a third party at the time, Judge Samet 

testified, he would not have approved the consent order. Judge 

Enochs testified that Berman later characterized the case as a 

“friendly suit” with all parties in agreement. The evidence 

regarding the Greeson matter supports the DHC’s findings of 

fact, which in turn support the DHC’s conclusions that Berman 

violated Rules 3.1, 3.3(a), 3.3(d), 8.4(c), and 8.4(d) of the 

Rules of Professional Conduct. 

Berman contends that since the complaint was an action for 

temporary custody with all parties in agreement, he was not 

required to make allegations regarding the parental status of 

K.C.’s parents, citing Price v. Howard, 346 N.C. 68, 484 S.E.2d 

528 (1997). Similarly, Berman contends that he was not required 

to disclose DSS involvement with the family to the court when he 

presented the consent order. However, Berman fails to recognize 

that the complaint he filed in the matter alleged a disputed 

custody matter, and thus required the allegations regarding the 
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parents’ constitutionally protected status pursuant to Petersen 

v. Rogers, 337 N.C. 397, 403-04, 445 S.E.2d 901, 905 (1994). 

Even if Berman expected the lawsuit to be “friendly,” he

cites no authority to support his proposition that legally 

required allegations can be omitted from a custody complaint 

simply because an attorney expects that a lawsuit will be 

“friendly.” Even consent orders must contain legally required 

findings of fact and conclusions of law, particularly in custody 

cases, as the court’s jurisdiction is based upon the required 

findings of fact and conclusions of law. See Bohannan v. 

McManaway, 208 N.C. App. 572, 584, 705 S.E.2d 1,9 (2010) (“The 

parties cannot confer subject matter jurisdiction upon the court 

by entry of a consent order regarding child custody.”) In Foley 

v. Foley, this Court addressed the effect of entry of a consent 

order regarding child custody: 

Defendant argues, and plaintiff concedes, 

the signing of the Consent Order did not 

waive any challenge to subject matter 

jurisdiction. The UCCJEA is a 

jurisdictional statute, and the 

jurisdictional requirements of the UCCJEA 

must be met for a court to have power to 

adjudicate child custody disputes. . . . 

[S]ee N.C.G.S. §§ 50A–101 to –317 (2001). 

The PKPA is a federal statute also governing 

jurisdiction over child custody actions and 

is designed to bring uniformity to the 

application of the UCCJEA among the states.

. . . [S]ee 28 U.S.C.A. § 1738A (2002). 
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Subject matter jurisdiction cannot be 

conferred by consent, waiver, or estoppel. 

Accordingly, the trial court erred in ruling 

the signing of the Consent Order by 

defendant waived any challenge to the 

subject matter jurisdiction of the trial 

court.

156 N.C. App. 409, 411-12, 576 S.E.2d 383, 385 (2003) (citations 

omitted). If the complaint had included the required 

allegations as to K.C.’s residency and DSS involvement as 

required by the UCCJEA, the trial court would not have entered 

the consent order. The evidence also shows that Berman was 

aware of the requirements for a third-party custody complaint, 

and that the information regarding DSS involvement constituted a 

material fact that would have influenced the court’s decision. 

These arguments are without merit.

IV. Dispute Resolution Commission

The next issue is whether the DHC erred in concluding 

Berman’s failure to disclose pending disciplinary matters to the 

Dispute Resolution Commission violated the Rules of Professional 

Conduct. 

The factual basis for the State Bar’s claim in this matter 

is undisputed. However, Berman contends that he was not 

required to disclose the pending grievance because it was not a 

formal complaint, citing N. Carolina State Bar v. Braswell, 67 
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N.C. App. 456, 313 S.E.2d 272 (1984). However, the Braswell

language that Berman cites is an explanation of the disciplinary 

procedures of the State Bar and does not address the 

requirements of disclosure. In addition, Braswell addresses an 

attorney’s right to notice and opportunity to be heard in a 

State Bar disciplinary proceeding. Braswell does not authorize 

a lawyer to conceal material information or provide false 

certifications of fact. This argument is without merit.

Because the facts in this matter are undisputed, the DHC’s 

findings of fact are supported by the record. The findings show 

that Berman twice concealed the pending grievance from the 

Dispute Resolution Commission, and thus support the DHC’s 

conclusions that Berman violated Rules 8.4(c) (conduct involving 

dishonesty, deceit, or misrepresentation) and 8.4(d) (conduct 

prejudicial to the administration of justice) of the Rules of 

Professional Conduct.

V. The Goins Matter

Next, we consider whether the DHC erred in concluding 

Berman failed to disclose material information to the second

District Court Judge in his request for a custody hearing after 

his initial request had been denied by Judge Enochs. 

Berman’s precise argument concerning this issue is unclear. 
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However, the majority of the facts related to this matter are 

undisputed. The State Bar also presented evidence showing that 

Berman approached the second District Court Judge in the hallway 

after Judge Enochs had denied his request for emergency custody. 

Berman asked if a request for emergency custody in the case 

could be added to the second judge’s calendar for 18 December 

2012, and did not inform the second judge that the request for 

emergency custody had already been heard and denied. The State 

Bar also presented evidence showing that a continuance order in 

the case had been modified by marking out Judge Enochs’s name as 

the presiding judge at the hearing for the request for emergency 

custody. The document appeared to indicate that the second 

judge had heard Berman’s motion and set the case for hearing. 

Judge Enochs testified that she told Berman that since his 

request for emergency custody was denied, the case would have to 

proceed to mediation in accordance with the local rules.

Berman argues that the DHC incorrectly found that he had 

engaged in an improper ex parte communication with the second 

judge and that he had asked for an ex parte emergency custody 

order from the second judge after Judge Enochs had previously 

denied it. Berman mischaracterizes the DHC’s findings. The DHC 

specifically found that Berman requested the second judge to 
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hear his request for emergency custody on 18 December 2012, that 

Berman did not give the opposing party notice of this 

communication, and that Berman did not inform the second judge 

that his request for emergency custody had already been heard 

and denied. The DHC did not find or conclude that Berman asked 

the second judge for an emergency custody order. 

The evidence and undisputed facts support the DHC’s 

findings of fact regarding the Goins matter. In addition, the 

findings support the DHC’s conclusion that Berman’s failure to 

disclose to the second judge that his request for emergency 

custody in the Goins matter had previously been denied 

constituted a failure to inform the tribunal of all material 

facts that would enable the tribunal to make an informed 

decision in violation of Rule 3.3(d). 

Berman appears to take issue specifically with what he 

terms the “draconian” policies and local rules of court for 

Guilford County, and contends that he was not required to 

provide the second judge with any information concerning the 

denial of his initial ex parte custody motion. While Berman

appears to disagree with the local rules, he does not dispute 

that as a practicing attorney in Guilford County, he was still 

subject to those rules. 
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VI. Discipline

Finally, we consider whether a one year suspension of 

Berman’s license to practice law was appropriate discipline. 

“[T]he statutory scheme set out in N.C.G.S. § 84-28 clearly 

evidences an intent to punish attorneys in an escalating fashion 

keyed to: (1) the harm or potential harm created by the 

attorney’s misconduct, and (2) a demonstrable need to protect 

the public.” Talford, 356 N.C. at 637-38, 576 S.E.2d at 313. 

In order to merit the imposition of suspension, there must be a 

clear showing of how the attorney’s actions resulted in 

significant or potentially significant harm, and a clear showing 

of why suspension is the only sanction option that can 

adequately serve to protect the public from future 

transgressions by the attorney. Id. at 638, 576 S.E.2d at 313. 

The Rules of the North Carolina State Bar also set forth several 

specific factors for the DHC to consider in imposing discipline. 

27 N.C.A.C. 1B § .0114(w) (2013).

In the instant case, the DHC made additional findings of 

fact for the dispositional stage regarding, inter alia, Berman’s 

experience in the practice of law and in custody cases 

specifically; K.C.’s vulnerability as a five-month-old infant; 

Greeson’s reliance on Berman’s professional judgment and legal 
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knowledge to effectuate her goal of preventing K.C.’s potential 

placement in foster care, and that Berman’s actions caused the 

very outcome she sought to avoid; that Berman’s lack of candor 

with the court undermined the integrity of the adjudicative 

process; that Berman had no prior professional discipline; and

that Berman sought to justify his actions and did not express 

remorse. The DHC specifically found that Berman’s conduct in 

the Greeson matter “created a foreseeable risk of potentially 

catastrophic harm to the infant by seeking to place her in the 

care of someone who had not yet been ruled out as the 

perpetrator of abuse against K.C.” and that he “caused 

significant harm to K.C.’s mother, in that she experienced 

substantial anxiety and distress about her daughter’s placement 

in a foster home[.]” 

The DHC expressly concluded that several of the enumerated

factors in 27 N.C.A.C. 1B § .0114(w) were present in the instant 

case, including, inter alia, a negative impact of Berman’s 

actions on the administration of justice; acts of dishonesty, 

misrepresentation, or deceit; refusal to acknowledge the 

wrongful nature of his conduct in Berman’s initial response to 

the State Bar; and a pattern of misconduct. The DHC stated that 

it considered lesser discipline, but that discipline less than 
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suspension was insufficient given the gravity of the harm to the 

administration of justice and the actual and potential harm to 

the public. The DHC then suspended Berman’s license to practice 

law for one year, and provided that he could apply to be 

reinstated at the end of the one year suspension.

The DHC’s findings support a clear showing that Berman’s 

conduct resulted in significant or potentially significant harm 

to Greeson, K.C., and K.C.’s mother. In addition, the DHC’s 

findings support its conclusions that Berman’s conduct 

constituted a pattern of misconduct having a negative impact on 

the administration of justice, and that suspension was the only 

viable sanction that could adequately protect the public from 

future transgressions. Berman contends that there is nothing in 

the record to indicate that he attempted to deceive anyone. 

However, the evidence in the record contradicts this claim. 

Berman’s arguments to this Court constitute rationalizations and 

excuses for his misconduct, and it is clear that Berman has 

failed show any remorse for his misconduct.

VII. Conclusion

Berman’s conduct in all three matters that comprised the 

State Bar’s claims for relief constituted misconduct pursuant to 

the Rules of Professional Conduct. While Berman admits that 
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there is a factual basis for the discipline, his claim that his 

misconduct did not rise to violations of the Rules of 

Professional Conduct is mistaken. The DHC’s findings of fact 

are supported by the record evidence and Berman’s own 

admissions, and its conclusions are supported by the findings. 

The DHC also provided substantial findings sufficient to support 

the suspension of Berman’s license. Therefore, we affirm the 

order of the DHC.

Affirmed.

Judges STROUD and DAVIS concur.

Report per Rule 30(e).