8
_'"'\b 9 lD II 12 to ..d /? - ~ "'.~ \."- JA -;F f'--) N2011 C;; STATEOFNORTHCAROLIN PILl:- ~ BEFORETIIE - cl.A-n6:C.fPL Y HEARlNG COMMISSION ~-~. "-. 'a <s OFTIIE - WAKE COUNTY ~.::'.>£ ~ CAROLINA STATE BAR ~~((9zSZ~ri.fU 09 DHC 9 ) ) TIIE NORTH CAROLINA STATE BAR, ) ) Plaintiff ) ) v. ) ) ) ELIZABETH J. WOLFENDEN, Attorney, ) ) Defendant ) ) RULE 60(b} MOTION NOW COMES Defendant Elizabeth J. Wolfenden pursuant to Rule 60(b) of the North Carolina Rules of Civil Procedure and 27 NCAC OlB § .01 14(z)(4) who moves to vacate the 29 July 2010 Order of Discipline on the grounds that the order was procured through the collective fraud of Plaintiff' s witnesses. In support of her motion, Defendant respectfully shows as follows: 1. At Defendant's DHC hearing on 22 and 23 April 2010 and 8 July 2010, Plaintiff's witnesses consisting of the Honorable Joseph M. Buckner C;Buckner'J, the Honorable Beverly Scarlett ("Scarlett~). Donna Ambler Rice (formerly Davis) ("Rice"). Leigh A. Peek ("Peek"), Lunsford Long (Long"). and Susan Lewis ("Lewis'') perpetuated a fraud upon the panel by making false statements about the Defendant and the facts surrounding her Orange County District Court cases. Plaintiff's witnesses' perjury was material because it involved each and every claim in Plaintiff's complaint and amended complaint and resulted in Defendant's disbarment. 2. Based on Plaintiff's witnesses' perjured statements, the DHC panel disbarred Defendant, concluding that We obviously are very distressed to hear what bas occurred in Orange County, particularly in open court, As we (the panel) have debated the seriousness .:.-with Mr. Castro not having ever served really as an officer of the court - and the idea that an officer of the

Betsy Wolfenden moves to have disbarment order vacated

Embed Size (px)

DESCRIPTION

Due to the collective perjury of the North Carolina State Bar's witnesses, Betsy Wolfenden moves to have the disbarment order vacated.

Citation preview

Page 1: Betsy Wolfenden moves to have disbarment order vacated

_'"'\b 9 lD II 12to ..d /?

- ~ "'.~\."- JA -;Ff'--) N2011 C;;

STATEOFNORTHCAROLIN PILl:- ~ BEFORETIIE- cl.A-n6:C.fPL YHEARlNG COMMISSION~-~. "-.'a <s OFTIIE -

WAKE COUNTY ~.::'.>£ ~ CAROLINA STATE BAR~~((9zSZ~ri.fU 09 DHC 9

))

TIIE NORTH CAROLINA STATE BAR, ))

Plaintiff ))

v. )))

ELIZABETH J. WOLFENDEN, Attorney, ))

Defendant ))

RULE 60(b} MOTION

NOW COMES Defendant Elizabeth J. Wolfenden pursuant to Rule 60(b) of the North

Carolina Rules of Civil Procedure and 27 NCAC OlB § .01 14(z)(4) who moves to vacate the 29

July 2010 Order of Discipline on the grounds that the order was procured through the collective

fraud of Plaintiff' switnesses. In support of her motion, Defendant respectfully shows as follows:

1. At Defendant's DHC hearing on 22 and 23 April 2010 and 8 July 2010,

Plaintiff's witnesses consisting of the Honorable Joseph M. Buckner C;Buckner'J, the Honorable

Beverly Scarlett ("Scarlett~). Donna Ambler Rice (formerly Davis) ("Rice"). Leigh A. Peek

("Peek"), Lunsford Long (Long"). and Susan Lewis ("Lewis'') perpetuated a fraud upon the

panel by making false statements about the Defendant and the facts surrounding her Orange

County District Court cases. Plaintiff's witnesses' perjury was material because it involved each

and every claim in Plaintiff's complaint and amended complaint and resulted in Defendant's

disbarment.2. Based on Plaintiff's witnesses' perjured statements, the DHC panel disbarred

Defendant, concluding that

We obviously are very distressed to hear what bas occurred inOrange County, particularly in open court, As we (the panel) havedebated the seriousness .:.-with Mr. Castro not having ever servedreally as an officer of the court - and the idea that an officer of the

Page 2: Betsy Wolfenden moves to have disbarment order vacated

court, that an attorney with a license to do so would go in opencourt and say anything that's the slightest bit deceptive to addressto the court is something that is unheard of, and just absolutelyunacceptable behavior.

And, in addition to that, there are other factors in this case, andI'm not reciting these as factors we found, but the facts that wefound.

We found that there was a pattern throughout this of Ms.Wolfenden manipulating a particularly vulnerable segment of thepopulation that she served because, as several of the witnessessaid, when you have a domestic client, they are a domestic client.There are by definition distressed, distraught, and not necessarilyrational.

And there was a clear pattern of manipulating such clients thatwas shown.

This pattern, in the evidence we found, went back at least until2005 and the last acts we've got evidence of were Spring of2009.So over the course of four years this continued, and although therewas a lot of separate incidences of very similar conduct, there werealso different ways that Ms.Wolfenden, as we've already found,violated the Rules of Professional Conduct, and did detriment toour judicial system.

Her conduct did result in actual significant harm to her clientsand -- in a lot of ways, but particularly in the form of vastlyincreased legal fees; significant harm to the adverse parties andtheir counsel, as Ms. Davis has testified and as Ms. Lewis hastestified, and Mr. Long, that, you know, in terms of sometimesforgiving legal fees and in terms of just emotion distress; and anactual significant harm to the judges that she appeared in front ofand just to the -- to the system, to the administration of justice.

This conduct created obstruction of the judicial system, andthe disruption of it that resulted in her clients and other clients notbeing meted out justice in the ay that the system was established todo.

There was such an abject disrespect of our judiciary and thejudicial system shown by Ms. Wolfenden, and this was particularly-- we were particularly bothered by the fact that the times that thiswas done in open court in the presence of the general public.

We agree and find that it is of essential and basic importanceto the operation of the judicial system and to, I think as several ofthe witnesses said, is just to an orderly society that clients, that thegeneral public, that witnesses, that jurors, that everybody walk intoa courtroom with absolute confidence that the judge sitting up onthe bench is going to be fair to everybody involved.

2

Page 3: Betsy Wolfenden moves to have disbarment order vacated

And Ms. Wolfenden, it appears, set about to destroy thatconfidence, and had some success in doing so in small measure,hopefully in very small measure.

This resulted in an attack upon the very basic integrity of ourjudicial system, and harm to that integrity, at least to theappearance of the integrity of that system.

As somebody had testified, there seemed to be in herrepresentation of her clients almost an obsession of elevating theform or the procedure over the substance that resulted in a delay ormaybe even an absolute denial of due process and of justice andfairness to her clients.

There was such a disruption of the normal means ofcommunication that, again, are essential to the operations of whateach of us as lawyers need to do every day and what the judgesneed to do every day because of Ms. Wolfenden's, as JudgeBuckner put it, mischaracterization, recharacterization ofeverything that everybody said, that the normal means ofcommunication were not available to those involved in any caseinvolving Ms. Wolfenden.

And, again, it appears that there was at least if not anintentional intent to undermine the confidence in the judicialsystem, there was a willingness to take action that she clearly couldhave foreseen would result in that confidence being undermined.

In light of all that, over the course of the many years wherejudges were admonishing her, warning her, sanctioning her, shenever -- there's no indication in any of the materials we have thatshe ever once took ownership of her misconduct or of theconsequences of her misconduct. Certainly, there has not been anacknowledgment that there was a violation of any of the Rules ofProfessional Conduct, or even that her misconduct was justimproper

And in light of those findings, we have examined the factorsto consider and we have found these factors to be present and haveweighed -- these are the factors we have weighed in determiningthe discipline.

And I'm sorry, I'm not going to have them in any particularorder, and I refer to the Rule, I can help with that afterwards ifthere's any question. But here are the factors that clearly arepresent in this matter.

Ms. Wolfenden clearly has shown an intent to commit actswhere the harm was foreseeable.

She has clearly elevated her interests over those of her clients.Her actions have resulted in a very extraordinary negative

impact on her clients and the public's perception of the legalprofession.

3

Page 4: Betsy Wolfenden moves to have disbarment order vacated

Her actions have had a negative impact on the administration ofjustice.

Her actions have clearly impaired her client's ability to achievetheir goals in the representation.

She has involved herself in acts of dishonesty,misrepresentation, deceit and fabrication.

And additionally we fmd circumstances that clearly reflect herpropensity to be dishonest, her lack of honesty, lack oftrustworthiness and lack of integrity.

We find that there was clearly a pattern of misconduct. Therehave been multiple defenses, both in terms of the same type ofoffense being repeated and different types of offenses beinginterspersed.

In this proceeding before this Commission, particularly in regardto Wolfenden's deposition testimony she has submitted -- she hasmade false statements and submitted false evidence.

She has refused to acknowledge the wrongful nature of herconduct.

We fmd that her clients are victims -- Ms. Crews and Ms.Edwards, I believe her name is now Ms. Klein, formerly Ms. Klein-- were vulnerable, and she certainly manipulated and tookadvantage of that vulnerability.

We find that her conduct has had a negative impact on thirdparties. In this case we have viewed third parties as being thejudges who have testified or about whom there has been testimony,as well as adverse counsel, and other adverse parties.

There is a lack of prior discipline. We find that there has beenshown in some of these instances a dishonest and a selfish motivefor the misconduct that's been involved.

And under just other factors, we found that just across the boardthat the sum impact of this conduct has been demoralizing foreverybody involved in the judicial system, in Orange Countyparticularly, in terms of clients, court officials, members of thejudiciary and the bar.

We have weighed the various discipline that's available. Wehave considered an active suspension, a stayed suspension, anddisbarment.

And I think the other members of the Panel may want to speak tothis. We have, after some discussion decided that there is not away to protect the members of the general public from this type ofconduct by this individual as long as she has a license to practicelaw in this state.

And so we are going to enter an order of disbarment.

3. On 21 December 2010, the North Carolina Court of Appeals issued opinions in

two cases: Bohannan (sic) v. McManaway and Mclvfanaway v. LDS Family Services, Inc. The

4

Page 5: Betsy Wolfenden moves to have disbarment order vacated

Defendant represented Ms. McManaway in both cases in the trial court and on appeal. See

opinions attached hereto as Exhibits A and B and incorporated herein by reference.

4. In Bohannan (sic) v. McManaway, the Court of Appeals was "very disturbed" by

the "entire charade of a custody case" which occurred in Orange County District Court. In

McManaway v. LDS Family Services, Inc. et al. the Court held that the facts alleged, if true,

revealed "an appalling scheme to separate a child from his mother." The judge and attorneys

involved in the McManaway "charade," Buckner, Rice, Peek and Long, testified against

Defendant at the hearing.

S. During direct examination, Buckner, Rice, Peek and Long testified falsely that

Defendant engaged in misconduct when, in fact, Defendant attempted to stop the "charades"

perpetuated by Scarlett, Buckner, Rice, Peek and Long in Orange County District Court so that a

domestic litigant, like Ms. McManaway, could not walk into court and have confidence that the

judge sitting up on the bench was going to be fair.

6. During cross examination, Buckner, Rice, Peek and Long denied they had

engaged in misconduct in the McManaway cases.

7. Statements made by Plaintiff's witnesses regarding Defendant's misconduct

which were purported to be true have now been established by the Court of Appeals as false. For

example, Defendant did not obstruct justice in Orange County District Court or manipulate her

clients or increase their legal fees. On the contrary, Defendant made every effort to uphold the

integrity of the legal system by (1) running for judge and advocating for reform of 15-B District

Court to stop the misconduct; (2) seeking assistance from the North Carolina State Bar, the North

Carolina Chief Justice's Commission on Professionalism, the Administrative Office of the

Courts and the Judicial Standards Commission to stop the misconduct; (3) filing motions to

recuse the judges who were engaging in misconduct; (4) filing Rule 60 motions to set aside

unlawful orders entered by the judges engaging in misconduct; (5) filing Rule 11 motions to stop

the attorney misconduct; (6) appealing from unlawful court orders to expose the misconduct'; (7)

filing correspondence detailing the misconduct to protect the record on appeal; and (8)

confronting the attorneys engaging in misconduct in court when the judge either failed to stop

the misconduct or furthered the misconduct, such as informing Judge Scarlett that Peek was

1See brief in Harrington v. Wall attached hereto as Exhibit C detailing the misconduct and obstruction of justice bythe Honorable Beverly M. Scarlett. The Harrington case is being heard in the NC Court of Appeals on 1/11/2011.No brief was filed by Appellee or the Office of the Attorney General.

5

Page 6: Betsy Wolfenden moves to have disbarment order vacated

engaging in "legal games" in the Lyons case, or informing Judge Buckner that Rice and Peek

were engaging in misconduct in the McManaway case.

8. By engaging in collective fraud at Defendant's DHC hearing, Scarlett, Buckner,

Rice, Peek, Long and Lewis --all officers of the court -- subverted the administration of justice

and prevented Defendant from presenting her case on the merits.'

9. Rule 60(b)( 6) provides relief from a judgment or order for "any reason justifying

relief from the operation of the judgment." N.C. Gen. Stat. § lA-I, Rule 60(b)(6). "Rule

60(b )(6) is equitable in nature and authorizes the trial court to exercise its discretion in granting

or denying the relief sought." Kennedy v. Starr, 62 N.C. App. 182,302 S.E. 2d 497, disc. rev.

denied, 309 N.C. 321, 307 S.E.2d 164 (1983).

10. Rule 60 empowers the trial court to set aside or modify a final judgment, order or

proceeding whenever such action is necessary to do justice under the circumstances. Norton v.

Sawyer, 30 N.C. App. 420, 227 S.E. 2d 148, disc. rev. denied, 291 N.C. 176,229 S.E.2d 689

(1976). The test for whether a judgment, order or proceeding should be modified or set aside

under Rule 60(b)(6) is two pronged: (1) extraordinary circumstances must exist, and (2) there

must be a showing that justice demands that relief be granted. Baylor v. Brown, 46 N.C. App.

664, 266 S.E.2d 9 (1980). In addition to these requirements, the movant must show that [s]he

has a meritorious defense. State ex rel. Environmental Management Comm 'n v. House of

Raeford Farms, Inc., 101 N.C. App. 433, 448, 400 S.E. 2d 107, 117 (1991).

11. The extraordinary circumstances in this case are that Plaintiff's witnesses, all

officers of the court, engaged in a collective fraud by testifying falsely, and the evidence of their

perjury was not available until 21 December 2010. Defendant's answer and amended answer in

which she denied all allegations of wrongdoing constitute a meritorious defense.

12. The judgment to be set aside must also injuriously affect the rights of the movant.

See City of Salisbury v. Kirk Realty Co., 48 N.C. App. 427, 268 S.E.2d 873 (1980). Due to the

collective fraud of Plaintiffs witnesses, including claiming falsely that she is mentally ill,

Defendant lost her law license and no longer has a source of reliable income.

2 Defendant was also prevented from presenting her case on the merits when the DHC panel chair denied hermotion to continue on 8 July 2010, which resulted in Defendant presenting only a small portion of her case on 23April 2010. The denial of her motion to continue coupled with Plaintiffs witnesses' fraud was highly prejudicial toDefendant.

6

Page 7: Betsy Wolfenden moves to have disbarment order vacated

13. In McGinnis v. Robinson, 43 N.C. App. 1,258 S.E.2d 84 (1979), the Court of

Appeals affirmed the trial court's granting a new trial when a non-party witness committed

perjury concerning material aspects of the subject matter of the case.

14. The United State Supreme Court found fraud upon in the court in Hazel-Atlas Co.

v. Hartford-Empire Co., 322 U.S. 238 (1944) when an attorney was involved in the perpetration

of the fraud upon the court involving a patent. "This 'historic power of equity to set aside

fraudulently begotten judgments' is necessary to the integrity of the courts, for 'tampering with

the administration of justice in [this] manner ... involves far more than an injury to a single

litigant. It is a wrong against the institutions set up to protect and safeguard the public. '"

Chambers v. Nesco, 501 U.S. 32 (1991) quoting Hazel-Atlas Co. v. Hartford-Empire Co. "A

court has the power to conduct an independent investigation in order to determine whether it has

been a victim of fraud." Universal Oil Products Co. v. Root Refining Co., 328 U.S. 575, 580

(1946).

15. Plaintiff's witnesses in this proceeding perpetuated a fraud on the DHC panel by

their collective perjury. The effect of their perjury was so substantial that nearly every statement

made by the DHC panel Chair, Sharon B. Alexander, before disbarring Defendant was inapposite

to the truth. While Defendant may have annoyed and frustrated the judges and attorneys in

Orange County District Court in her effort to represent and protect her clients in an atmosphere

of lawlessness, zealously standing up for the law and upholding the integrity of the legal system

are not violations of the Rules of Professional Conduct.

16. It was only through Defendant's legal efforts in the McManaway case that the

"appalling scheme to separate a child from his mother" was exposed and finally halted. It is

only through Defendant's legal efforts in Harrington v. Wall that the scheme to separate Mr.

Wall from his son will be exposed and halted.

17. Likewise, this panel can and should halt the fraudulent scheme perpetuated by

Plaintiff's witnesses by vacating the 29 July 2010 Order of Discipline and affording Defendant a

new hearing so that Defendant's case can be heard on the merits without fraudulent testimony.

18. Based on the extraordinary facts of this case and pursuant to 27 NCAC 01B §

.0114(z)(2)(D), Defendant is requesting oral argument on this motion.

WHEREFORE, the Defendant prays for the following relief:

7

Page 8: Betsy Wolfenden moves to have disbarment order vacated

1. The 29 July 2010 Order of Discipline be vacated;

2. Her request for oral arguments be granted; and

3. For such other and further relief as is just and proper.

This the lOth day of January, 2011.

Eliza eth J. Wolfenden, Defendant, Pro Se1829 E. Franklih St., Bldg. 600Chapel Hill, NC 27514NC Bar# 29521PH: (919) 932-7680

CERTIFICATE OF SERVICE

Ihereby certify that Iserved a copy of this Motion by First Class U.S. mail, addressed to:

Carmen Bannon, Esq.P.O. Box 25908Raleigh, NC 27611-5908

David R. Johnson, Esq.P.O. Box 25908Raleigh, NC 27611-5908

This the 10th day of January, 201 L

enden, Defendant, Pro Se1829 E. Frankl' St., Bldg. 600Chapel Hill, NC 27514PH: (919) 932-7680bwolfelaw(a),att.net

8