Betsy Wolfenden amends her complaint against the North Carolina State Bar

STATE OF NORTH CAROLINA

WAKE COUNTY

IN THE GENERAL COURT OF JUSTICESUPERIOR COURT DIVISION

09 CVS 21955

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LUNSFORD LONG, Individually, and as a )Principal of LONG & LONG, )

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THE NORTH CAROLINA STATE BAR, )Defendants. )

)

ELIZABETH "BETSY" 1. WOLFENDEN,Individually, and as Principal ofLAW OFFICES OF BETSY J.WOLFENDEN,

Plaintiff,vs.

DONNA AMBLER DAVIS,Individually, and as a Principal ofDONNA AMBLER DAVIS, P.c.,a North Carolina Professional Corporation,

LEIGH A. PEEK, Individually, and as aPrincipal of COLEMAN, GLEDHILL,HARGRAVE & PEEK, P.C., a NorthCarolina Professional Corporation,

JOSEPH M. BUCKNER, Individually andin his official capacity as Chief DistrictCourt Judge of North Carolina JudicialDistrict 15-B, and the STATE OFNORTH CAROLINA,

BEVERL Y SCARLETT, Individually andin her official capacity as District CourtJudge of North Carolina of North CarolinaJudicial District 15-B, and the STATE OFNORTH CAROLINA,

CARMEN BANNON, Individually and inher official capacity as anagent for theNorth Carolina State Bar.

AMENDED COMPLAINT

JURy TRIAL DEMANDED

JURISDICTIONAL ALLEGATIONS

1. Plaintiff Elizabeth "Betsy" J. Wolfenden ("plaintiff') is a citizen and resident of

Chatham County, North Carolina. Plaintiff was an attorney licensed to practice law by the State

of North Carolina since 2000 until she was disbarred on 8 July 2010. Plaintiff was owner of the

Law Offices of Betsy J. Wolfenden in Chapel Hill, North Carolina. Plaintiff practiced family

law in Orange, Chatham, Durham, Alamance and Wake Counties. Plaintiff was also assigned

counsel for the Office of the Appellate Defender, representing indigent criminal defendants and

indigent parents.

2. Defendant Long & Long is a law firm doing business in Chapel Hill, North

Carolina as a partnership, with Lunsford Long as a Principal.

3. Defendant Lunsford Long ("Long") is a citizen and resident of Orange County,

North Carolina. Long is currently a district court judge in Judicial District 15-B, having been

appointed by Governor Beverly Perdue on or about August 25,2009 to the judicial seat of the

Honorable Alonzo B. Coleman, Jr. Before being appointed to Judge Coleman's seat, Long was

an attorney licensed to practice law in the State of North Carolina. Long is a partner of Long &

Long with his wife, Florence Long. At all times relevant to this action, Long was an attorney

employed by Long & Long.

4. Defendant Donna Ambler Davis, P.C. ("Davis P.C.") is a professional corporation

licensed to do business in the State of North Carolina. Donna Ambler Davis, P.C. is a law firm

doing business in Chapel Hill, North Carolina.

5. Defendant Donna Ambler Davis, Individually ("Davis"), is a citizen and resident

of Orange County, North Carolina. Davis is an attorney licensed to practice law in the State of

North Carolina. At all times relevant to this action, Davis was employed by Davis' firm.

6. Coleman, Gledhill, Hargrave & Peek P.C. ("CGHP"), is a professional

corporation licensed to do business in the State of North Carolina. CGHP is a law firm doing

business in Hillsborough, North Carolina.

7. Defendant Leigh A. Peek, Individually ("Peek"), is a citizen and resident of

Orange County, North Carolina. Peek is an equity partner ofCGHP.

8. Joseph M. Buckner, Individually ("Buckner"), is a citizen and resident of Orange

County. Buckner is employed by the State of North Carolina. Buckner is the Chief District

Court Judge in Judicial District 15-B.

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9. Beverly Scarlett, Individually ("Scarlett"), is a citizen and resident of Orange

County. Scarlett is employed by the State of North Carolina. Scarlett is a District Court Judge

in Judicial District IS-B.

10. Upon information and belief, Carmen Bannon, ("Bannon"), is a citizen and

resident of Wake County. Bannon is employed by the North Carolina State Bar.

11. The North Carolina State Bar ("The State Bar") is the state agency responsible for

regulating the practice of law in North Carolina. The State Bar is located in Raleigh, North

Carolina in Wake County.

FACTUAL ALLEGATIONS

Paragraphs 1-11 are incorporated herein by reference as though fully set forth herein.

12. In January of 2006, former 15-B Superior Court Judge Wade Barber retired from

his seat on the bench.

13. Lunsford Long sought appointment by the former Governor Michael Easley to

Judge Barber's seat on the bench. On or about February 15,2006, former Governor Michael

Easley appointed Allen Baddour to Judge Barber's seat. After Baddour was appointed to Judge

Barber's seat, Long spoke bitterly to plaintiff and others regarding Baddour's appointment,

stating that Baddour was ''just a kid" and that he had been appointed solely due to his father's

political influence as Director of Athletics for the University of North Carolina at Chapel Hill.

Long told plaintiff and others that House Majority Leader State Representative Joe Hackney had

promised him that Governor Easley would appoint Long to Judge Barber's seat.

14. On or about 22 February 2006, Judge Baddour filed to run to keep his seat on the

bench.

15. Long did not seek election to Judge Baddour's s seat as Long did not want to run

for a judicial seat, but wanted to be appointed. Long told plaintiff on more than one occasion

had to become judge in order to get medical benefits for him and his wife, Florence.

16. On or about November 4, 2006, Baddour was re-elected to his seat.

17. After Baddour won the election, Long began looking for another judicial seat to

which he could be appointed.

18. In 2008, 15-B District Court Judge Alonzo B. Coleman, Jr. ("Coleman") was up

for re-election. During a campaign speech on 5 May 2008 before the Orange County Family

Bar at Bailey's Pub and Grill in Chapel Hill, Coleman told plaintiff and the other attorneys

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present that he originally decided not to run since he could only serve six months of the term due

to the mandatory retirement at age 72; however, he was approached by a group of attorneys in

Judicial District 15-B who encouraged him to run.

19. Long encouraged Coleman to run so that he could be appointed to Coleman's seat

after he retired and get medical benefits for him and his wife, Florence.

20. In October of2007, Plaintiff was retained by Emily McManaway, a mother of

two young children, who alleged that Davis and Peek and their law firms had conspired with two

Mormon couples and a Mormon adoption agency to kidnap Ms. McManaway's son from Nevada

to facilitate an illegal adoption in North Carolina without her knowledge or consent. Ms.

McManaway also alleged that Davis and Peek had violated numerous Rules of Professional

Conduct and she sought compensatory and punitive damages.

21. Ms. McManaway further alleged that Buckner had engaged in judicial misconduct

by signing a permanent custody order without holding a custody hearing or taking evidence,

giving custody of her son to a Mormon couple when they had already given her son away to

another Mormon couple so they could adopt Ms. McManaway's son. The custody order was

prepared by Peek and it gave the appearance that Buckner held a custody hearing on 15 March

2007 when he had not. Buckner allowed his assistant, Mindy Harris, to sign the custody order,

knowing that he had not held a hearing or taken any evidence.

22. On 28 February 2008, plaintiff filed to run for Judge Alonzo B. Coleman's

judicial seat because the McManaway case is just one example ofthe many cases in 15-B

District Court in which the laws of this state are disregarded and the public is harmed.

23. After she filed to run for judge, Long, Davis, Peek, Scarlett and Buckner entered

into a conspiracy to get her disbarred.

24. On 13 March 2008, plaintiff requested calendaring assistance from the Judge

Ralph Walker, Executive Director of the Administrative Office of the Courts in a case, Klein v.

Klein, involving Buckner and Long. Plaintiff told Judge Walker that for three years Long had

refused to consent to court hearings, and that Buckner had failed for three years to calendar her

client's motions.

25. After plaintiff requested calendaring assistance from Judge Walker, Buckner

retaliated against plaintiff by filing an anonymous grievance with the State Bar. Buckner

backdated his letter to 12 March 2008 so it would not look like he was retaliating against plaintiff

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for contacting Judge Walker with her concerns. Buckner brought his grievance against plaintiff

anonymously because he did not want plaintiff to take legal action against him for filing the

grievance with malice.

26. On 7 April 2008, plaintiff wrote Davis informing her that Ms. McManaway

intended on suing Davis and Peek for unethical conduct and for depriving her of custody of her

son.

27. After Davis received plaintiff's letter, she consulted with Long because Long had

developed professional relationships with employees at the State Bar when he served as 15-B

Bar Councilor from 1998 to 2007. Davis knew that Long would be willing to use his influence

at the State Bar to help Davis avoid being disciplined by the State Bar if Davis would help Long

subvert the judicial election so he could be appointed to Judge Coleman's seat. In order for

Davis and Long to both get what they wanted, they needed to get plaintiff disbarred.

28. To further the conspiracy to get plaintiff disbarred, Long initiated an anonymous

grievance against plaintiff by writing a letter to Katherine Jean, Counsel for the North Carolina

State Bar, on 30 April 2008, stating that "[t]he State Bar should take my grievance, and any other

grievances against Ms. Wolfenden, currently in its hands or on the way, as very serious ones.

Ms. Wolfenden is running for judge, and has no business being a lawyer, much less being on the

bench; the State Bar needs to deal with her harshly and swiftly, and impose severe public

discipline." Long filed his grievance with the State Bar anonymously to impede plaintiff from

bringing a legal action against him for defaming her with malice.

29. In addition to filing an anonymous grievance against plaintiff on 30 April 2008,

Long communicated with the State Bar on 11 November 2008; 26 November 2008 (two days

after plaintiff represented Ms. McManaway in Orange County District Court); 17 March 2009

(one day after plaintiff represented Ms. McManaway in Orange County Superior Court); 16

April 2009; May 14,2009; 10 June 2009; and 26 June 2009. The State Bar refused to provide

plaintiff with Long's statements to the State Bar in discovery. When plaintiff questioned Long

under oath on 22 April 2010 at her disciplinary hearing regarding the substance of his statements

with the State Bar on those dates, he said he could not remember his statements. Long's self-

serving memory lapse is not credible and the State Bar should provide the plaintiff with

discovery in this action.

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30. In April of2008, Wolfenden ran a campaign ad in The Independent Weekly. The

ad consisted of a photo of Wolfenden, a link to her campaign website at betsyforjudge.com, and

the slogan, "It Takes a Strong Woman to Stand up to a Good 01' Boys Network." Judge Beverly

Scarlett ("Scarlett"), who was appointed to the bench in 2007 by Governor Michael Easley,

found Wolfenden's ad "personally offensive."

31. On 5 June 2008, Judge Scarlett complained anonymously to the North Carolina

State Bar that in her personal opinion Wolfenden could not have used the phrase "good 01' boy

network" without having the intent of provoking civil unrest in Scarlett's community. Scarlett

filed her grievance anonymously because she did not want plaintiff to have a basis for recusing

Scarlett from her cases and she wanted to impede plaintiff from taking legal action against her.

If Scarlett hid her bias against plaintiff, Scarlett could obstruct justice in plaintiff's cases with

impunity. Even in plaintiff's cases in which other judges had previously been assigned, Buckner

re-assigned those cases to Scarlett so she could obstruct justice in those cases as well. When

plaintiff wrote Judge Scarlett a letter on 8 April 2009, asking her to recuse herself so that her

clients would receive fair hearings, Judge Scarlett threatened to "immediately commence a

Judicial Disciplinary Action" against plaintiff. Plaintiff was unable to protect her clients from

Scarlett's malice and, therefore, was effectively blackballed by Scarlett from practicing law in

15-B District Court.

32. To ensure that plaintiff was disbarred, Long, Davis, Peek, Scarlett and Buckner

maliciously initiated multiple anonymous grievances against plaintiff with the State Bar.

Another part of their common scheme was to destroy plaintiff's business and contractual

relations with her clients and prospective clients. To further the conspiracy, Buckner (1) ignored

Black letter law and denied plaintiff's clients all relief, (2) delayed plaintiff's court hearings, (3)

calendared plaintiff's cases without providing her with notice, (4) refused to enter court orders so

plaintiff's clients could not seek appellate relief, (5) refused to continue plaintiff's cases even

when good cause was shown; (6) refused to assist plaintiff with calendaring issues, (7)

repeatedly engaged in ex parte communications with Long and Davis; (8) held ex parte hearings

with Peek; and (9) re-assigned Scarlett to plaintiff's cases because Buckner knew she was willing

to interfere with plaintiff's contract and business relations and to obstruct justice.

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33. Even though Buckner was a co-conspirator in the scheme to get plaintiff

disbarred, like Scarlett, he refused to recuse himself from plaintiff's cases. Buckner and Scarlett

conspired to make sure plaintiff was blackballed from practicing law in 15-B District Court.

34. In June 2008, plaintiff filed grievances against Long and Davis with the State Bar

for abusing the State Bar's disciplinary process by filing anonymous grievances for their own

personal gain.

35. On 28 August 2008, James Fox, Chair of the North Carolina State Bar Grievance

Committee, dismissed plaintiff s grievances against Long and Davis, claiming the "available

information" did not show that Long and Davis had violated any Rules of Professional Conduct.

36. On 9 October 2008, Peek filed an anonymous grievance against plaintiff in the

McManaway case, alleging that plaintiff violated "§48-10-102." Peek filed her grievance

anonymously because she knew it was without merit and was being filed with malice. Peek also

knew that her clients had unlawfully paid Peek's law firm $16,896.25 in exchange for Ms.

McManaway's son. See 24 January 2008 Disclosure of Fees & Expenses attached hereto as

Exhibit A and incorporated herein by reference.

37. Plaintiff lost the election to Judge Coleman on November 4,2008 after spending

most of the campaign responding to the individual defendants' anonymous grievances.

38. On 13 November 2008, the State Bar issued three reprimands and a censure to

plaintiff.

39. On 18 November 2008, plaintiff rejected the State Bar's disciplinary notices and

requested a full hearing.

40. On 24 November 2008 plaintiff filed a lawsuit on behalf of Ms. McManaway in

Orange County Superior Court against Peek and Davis, their clients, and the Mormon adoption

agency after discovering that a court order that Davis and Peek had referred to in numerous

pleadings as "valid" was invalid because Peek failed to initiate a proper legal action.

41. After plaintiff filed Ms. McManway's lawsuit against Davis and Peek, the State

Bar, through its agent, Bannon, conspired with Davis and Long to "fix" the outcome of Ms.

McManaway's lawsuit because the State Bar did not want a judicial determination that Davis or

Peek had violated the Rules of Professional Conduct when the State Bar had already decided that

Davis had not engaged in unethical conduct.

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42. To further the conspiracy to fix the outcome of the McManaway case, Davis

retained Long to influence the judge. Long's role was to show up at the 16 March 2009 hearing

in Orange County Superior Court on Davis' motion to dismiss to influence the judge if it

appeared the judge was not going to dismiss Ms. McManaway's lawsuit. Bannon knew Davis

had retained Long in order to influence the judge. Bannon, Davis, and Long did not want

plaintiff to know that Davis had retained Long to influence the judge, so Long failed to file a

notice of appearance with the court.

43. After the 16 March 2009 court hearing in Orange County Superior Court, Ms.

McManaway brought a complaint against Long and Davis for abuse of process and obstruction

of justice. Plaintiff did not know until she received discovery from the State Bar in January 2010

that Bannon was involved in the conspiracy. After Ms. McManaway sued Long and Davis,

Bannon amended the State Bar's complaint against plaintiff to add a claim that plaintiff had

brought a frivolous lawsuit against Long and Davis. Bannon's conduct was in bad faith and

amounted to prosecutorial misconduct.

44. On 9 April 2009, the State Bar held a probable cause hearing to determine if

plaintiff should be put on disability status for mental illness. Prior to the hearing, Long urged

Susan Lewis to contact the State Bar because Lewis had told Long earlier that she had an excerpt

from a court transcript in which plaintiff purportedly told the judge she enjoyed torturing

lawyers. Lewis knew this information was false because she was at the court hearing in question.

Long also disseminated Ms. Lewis' false information to the State Bar because he wanted to get

plaintiff disbarred so he could be appointed to Judge Coleman's seat. Ms. Lewis faxed the

transcript excerpt to Bannon in which plaintiff purportedly told Judge Brown,

"because you all are -- you know, and I haven't been able to review the pleadings, too, and for

whatever reason I seemed to have taken an interest in this proceeding from a legal point of view,

which is always fun, because that means I can torture the lawyers better -" The problem with

that quote is that it's Judge Brown's, not plaintiff's. In addition, Ms. Lewis was present at the

court hearing when Judge Craig made his funny comment about torturing lawyers and she

laughed along with everyone else. See Susan Lewis' letter with transcript excerpt to plaintiff and

Bannon dated 12 April 2010 attached hereto as Exhibit B.

45. Upon information and belief, when Ms. Lewis falsely told the State Bar on 9

April 2009 that the plaintiff had told Judge Brown she wanted to torture lawyers, Ms. Lewis

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failed to inform the State Bar that plaintiff had resigned from Ms. Lewis' firm in 2002 after she

discovered that Ms. Lewis had lied to the court in another case about her personal relationship

with a court-appointed expert. The Honorable Judge Ann McKown subsequently discharged the

expert due to Ms. Lewis' malfeasance. See the 19 July 2001 Order in Madan v. Madan attached

hereto as Exhibit C.

46. On 23 April 2009, the State Bar filed a complaint against plaintiff containing the

statements in the anonymous grievances filed by Long, Davis, Peek, Scarlett and Buckner but

also included a claim that plaintiff was mentally ill. Plaintiff received notice and an opportunity

to heard on all ofthe claims in the complaint except for the claim that plaintiff was mentally ill.

The State Bar intentionally and maliciously failed to give plaintiff prior notice that it was

bringing a claim against plaintiff for mentally illness because the State Bar wanted to retaliate

against plaintiff for exercising her due process rights by requesting a DHC hearing.

47. Between 9 April 2009 and 23 April 2009, plaintiff was represented at all times by

counsel. When the State Bar has such strict rules of confidentiality for its FRIENDS and PALS

Programs, it is unfathomable that the State Bar would fail to give plaintiff notice before bringing

a claim that would destroy her business and personal reputations for the rest of her life.

48. On 27 April 2009, an article was published in a local newspaper re-publishing the

State Bar's complaint that she was mentally ill.

49. Plaintiff's 17-year old daughter saw the article online and called plaintiff at the

Orange County Courthouse to tell her about the article. Plaintiff was shocked, traumatized and

humiliated when her daughter read the article to her over the phone. From the moment the State

bar published the false claim that plaintiff is mentally ill, plaintiff's law practice and business

reputation was destroyed as was her ability to earn a living.

50. On 11 June 2009, plaintiff filed her answer with the North Carolina State Bar

denying all claims of misconduct as well as the claim that she is mentally ill. The State Bar

waited until 15 October 2009 to post plaintiff's answer on its website containing her denial of

mental illness. During that time, the public had no idea plaintiff denied the State Bra's claim.

51. On 21 July 2009, plaintiff underwent a complete psychological evaluation and

was found not mentally ill.

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52. After it was determined that plaintiff was not mentally ill, Long, Davis, Peek,

Scarlett and Buckner conspired to file more anonymous grievances in hopes that the additional

grievances would get plaintiff disbarred at the DHC hearing.

53. On or about 25 August 2009 Governor Beverly Perdue appointed Long to Judge

Coleman's seat.

54. On 23 September 2009, plaintiff was informed by Lawyers Mutual that the

company would not be reissuing her malpractice insurance policy. When plaintiff asked

Lawyers Mutual why it was not reissuing her malpractice insurance policy, she was told it was

because of the State Bar complaint containing the allegation that she was mentally ill.

55. On 22 October 2009, plaintiff filed the complaint in the instant action. After

plaintiff filed the complaint, the State Bar and its agent, Bannon, conspired with the other

defendants to maliciously prosecute plaintiff for the purpose of getting her disbarred at the DHC

hearing The State Bar wanted plaintiff disbarred in order to make it more diificult for her to

prevail against the State Bar in this action.

56. On 8 January 2010, plaintiff moved the federal district court for leave to amend

her complaint in this action to add agents of the North Carolina State Bar, James P. Fox, Carmen

Bannon and Melissa Donahue, as defendants in their official and individual capacity.

57. Bannon continued to prosecute plaintiff at the DHC hearing while conspiring

with the other defendants to get plaintiff disbarred.

58. At the DHC hearing, Bannon failed to inform the DHC panel that she was

conspiring with the other individual defendants to get plaintiff disbarred because she stood to

personally gain from plaintiff's disbarment. Bannon also failed to inform the DHC panel that

prior to plaintiff rejecting the State Bar's disciplinary notices in November of 2008, she had

received three reprimands and a censure which did not even call for suspension of her law

license, let alone her disbarment.

FIRST CLAIM FOR RELIEFCIVIL CONSPIRACY


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59. Long, Davis, Peek, Scarlett and Buckner entered into a common scheme after

plaintiff filed to run for Judge Coleman's seat to get her disbarred by filing numerous false

grievances against plaintiff with the State Bar.

60. Long wanted plaintiff disbarred so she could not serve as judge and Long could

be appointed to Judge Coleman's seat. Davis, Peek and Buckner wanted plaintiff disbarred

because they did not want plaintiff to expose their misconduct in the McManaway custody case,

and they wanted to prevent plaintiff from continuing to represent Ms. McManaway. Scarlett

wanted plaintiff disbarred because she believed plaintiff s campaign ad impugned her reputation

and made her unsafe in her community.

61. When the first series of false grievances filed by Long, Davis, Peek, Scarlett and

Buckner did not result in getting plaintiff disbarred, they conspired to falsely allege to the State

Bar that plaintiff was mentally ill.

62. The conspiratorial conduct engaged in by Long, Davis, Peek, Scarlett and

Buckner made it impossible for plaintiff to maintain business relations with her clients in Judicial

District 15-B, destroyed her business reputation, and caused her to lose her malpractice

msurance.

63. Plaintiff spent hundreds of hours during the judicial election responding to the

anonymous grievances filed by Long, Davis, Peek, Scarlett and Buckner, was unable to run an

effective judicial campaign, and subsequently lost to Judge Coleman.

64. The anonymous complaints filed by Long, Davis, Peek, Scarlett and Buckner

during plaintiffs judicial campaign were libelous and interfered with the electoral process.

65. After plaintiff brought Ms. McManaway's lawsuit against Davis and Peek in

Orange County Superior Court for abuse of process and obstruction of justice, Bannon and Long

and Davis conspired to "fix" the outcome of that lawsuit by using Long to influence the judge.

66. When Ms. McManaway discovered the conspiracy and sued Long and Davis,

Bannon retaliated by bringing additional claims against plaintiff.

67. After plaintiff initiated this action, Bannon conspired with the other individual

defendants to get disbarred at the DHC hearing. In order to do that, Bannon encouraged the

defendants to bring more anonymous grievances against the plaintiff, no matter how groundless.

Because the defendants in this action were willing to lie under oath, and did lie under oath, it did

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not matter how groundless their grievances were because they outnumbered plaintiff at the DHC

hearing.

SECOND CLAIM FOR RELIEFOBSTRUCTION OF JUSTICE


68. As early as 24 November 2008 when plaintiff filed Ms. McManaway's lawsuit

against Davis and Peek in Orange County Superior Court, Bannon began conspiring with Long

and Davis to get the lawsuit dismissed. Bannon encouraged Long to influence a superior court

judge in order to fix the outcome of the McManaway lawsuit.

69. Buckner and Scarlett intentionally and willfully obstructed justice by repeatedly

refusing to recuse themselves from plaintiffs cases though they were personally biased against

her.

70. Bannon obstructed justice at plaintiff's disciplinary hearing by allowing Long,

Davis, Peek, Scarlett and Buckner to testify when she knew or should have known they would

testify falsely. Bannon's conduct amounted to prosecutorial misconduct.

THIRD CLAIM FOR RELIEFTORTIOUS INTERFERENCE WITH BUSINESS RELATIONS


71. The purpose ofthe conspiracy concocted by Long, Davis, Peek, Scarlett and

Buckner was to interfere with plaintiff s business relations by getting her disbarred or put on

disability status so she could no longer represent clients in Judicial District 15-B, including but

not limited to Ms. McManaway.

72. Buckner and Scarlett made it impossible for plaintiff to represent clients in 15-B

District Court by obstructing justice in plaintiffs cases.

73. By recklessly and maliciously making a false claim against plaintiff that she was

mentally ill and then by publishing that claim in a document of public record which was posted

on its website, the State Bar interfered with plaintiff's business relations, present and

prospective.

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74. By maliciously conspiring to get plaintiff disbarred at the DHC hearing to gain an

advantage in this lawsuit, defendants interfered with plaintiff's prospective business relations.

FOURTH CLAIM FOR RELIEFTORTIOUS INTERFERENCE WITH CONTRACTS

Paragraphs 1-74 are incorporated herein by reference as though fully set forth herein

75. On 16 October 2009, plaintiff's client, Kathryn H. Klein, terminated plaintiffs

services after Buckner repeatedly refused to hear Ms. Klein's motions or claims and repeatedly

refused to order Ms. Klein's husband to produce any discovery. Long was opposing counsel in

the Klein case until 2008. After he withdrew, Peek represented Mr. Klein.

76. In 2005, the marital estate in Klein was valued at 1.5 million. Apart from a

$6,000 cash advance Ms. Klein took on a marital credit card on the date of separation, the entire

marital estate is in Mr. Klein's possession. Because Judge Buckner refused to order Mr. Klein to

provide Ms. Klein with an interim distribution of assets, plaintiff provided Ms. Klein with over

$70,000 in legal services from 2005 to 2009 without getting paid.

77. To retaliate for plaintiff seeking Judge Ralph Walker's calendaring assistance in

March of2008, Buckner refused to hear Ms. Klein's equitable distribution claim.

78. Ms. Klein terminated plaintiffs services because she lost faith in plaintiff's

ability to resolve her equitable distribution claim after Buckner retaliated against plaintiff and

Ms. Klein for seeking calendaring assistance from Judge Ralph Walker at the Aoe on 13 March

2008.

FIFTH CLAIM FOR RELIEFDEFAMATION


79. Defendants Long, Davis, Peek, Scarlett and Buckner, acted in bad faith and with

malice by making a false claim regarding plaintiff's mental health to the State Bar, which caused

an article to be published in the local press and on the Internet that humiliated and disgraced

plaintiff and impeached her in her profession.

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80. Defendants' false claim that plaintiff was mentally ill was made after defendants

Long, Davis, Peek and Scarlett and Buckner discovered their first set of anonymous complaints

filed with the State Bar were insufficient to get plaintiff disbarred.

81. Defendants Long, Davis, Peek, Scarlett and Buckner defamed plaintiff

maliciously and for their own personal and pecuniary gain. Bannon published the false claim

regarding plaintiff's mental illness to retaliate against plaintiff for rejecting the State Bar's

disciplinary notices.

82. The State Bar acted with malice as it knew or should have known that the

statement that plaintiff is mentally ill was false as plaintiff informed the State Bar on numerous

occasions that Long, Davis, Peek and Buckner were conspiring to get plaintiff disbarred for their

own personal, political and pecuniary gain.

83. The State Bar had a duty to investigate the claims being made by the defendants

that plaintiff was mentally ill prior to publishing the statement in a document of public record as

the State Bar knew or should have known that the claim was false and would unnecessarily

traumatize, humiliate and disgrace plaintiff and impeach her in her profession and in her personal

life and that the stigma associated with mental illness would prevent her from finding

employment.

84. Although the State Bar dismissed its claim against plaintiff for mental illness on

20 August 2009, the State Bar took no steps to mitigate the damage done to plaintiff's

professional or personal reputation. Because of the stigma associated with mental illness,

plaintiff doubts that she will ever be employed again at a salary commensurate with her abilities.

SIXTH CLAIM FOR RELIEFINTENTIONAL AND NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS


85. Defendants Long, Davis, Peek and Buckner intentionally and unreasonably

subjected the plaintiff to severe emotional distress for their own personal, political and pecuniary

gain.

86. The State Bar knew or should have known that the false statement that plaintiff

was mentally ill would bring her severe public humiliation and emotional distress. The State Bar

showed a callous disregard for plaintiff's wellbeing and acted intentionally, maliciously,

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wantonly and recklessly by publishing in a document of public record a statement it knew or

should have known was false and that would destroy plaintiff s law practice and impeach her

business reputation. The State Bar has a record for engaging in outrageously and extreme

malicious and vindictive conduct when attorneys attempt to exercise their constitutional right to

due process. See, e.g., Willie Gilbert's federal lawsuit against the State Bar attached to

plaintiff s motion for leave to amend.

87. As a result of defendants' behavior, the plaintiff has suffered severe emotional

and psychological distress.

88. A reasonable person would have had an emotional, psychological or physical

breakdown as a result of defendants' conduct. But for plaintiffs faith in God, plaintiff would

have had an emotional, psychological or physical breakdown from defendants' conduct as

defendants' actions have irreparably harmed plaintiff's law practice, reputation in the

community, and her relations with her clients and colleagues.

89. Defendants' conduct was intentional, outrageous, willful and wanton and was

committed with the intent to inflict harm upon plaintiff with reckless disregard of the harm that

would be inflicted by such conduct upon the plaintiff.

90. As a result of defendants' conduct, plaintiffwas damaged and should recover

compensatory and punitive damages from defendants in excess of TEN THOUSAND

DOLLARS ($10,000.00).

SEVENTH CLAIM FOR RELIEFCIVIL CONSPIRACY TO VIOLATE THE DUE PROCESS AND PRIVILEGES

CLAUSE OF THE 14TH AMENDMENT TO THE UNITES STATES CONSTITUTION


91. A license to practice law is a property right which cannot be taken away or

otherwise abridged without due process of law.

92. In addition, the Privileges and Immunities Clause of the 14th Amendment to the

United States Constitution protects plaintiff's right to enjoy the same rights and privileges that

are enjoyed by other citizens of the United States.

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93. By conspiring with the other defendants throughout the plaintiffs disciplinary

proceedings to fix the outcome of a million dollar lawsuit by getting plaintiff disbarred, and by

signing the 23 April 2009 complaint containing the false allegation that plaintiff was mentally ill

pursuant to an unlawful agreement or conspiracy, Bannon violated plaintiff's clearly established

rights under the Privileges and Immunities Clause of the United States Constitution, and

deprived plaintiff of her clearly established right not to be deprived of license to practice law

without due process of law.

94. As a direct and proximate result of Bannon's conduct, plaintiff has sustained

actual damages in excess of $10,000.00 and is entitled to a judgment for compensatory damages

against Bannon, in her individual capacity, in an amount to be proven at trial.

95. Furthermore, since Bannon engaged in the conduct herein complained for no

legitimate reason, and with a malicious and corrupt intention, plaintiff is entitled to a judgment

for punitive damages against Bannon, and Bannon is not entitled to escape liability in this action

on grounds of qualified or prosecutorial immunity.

SIXTH CLAIM FOR RELIEFMALICIOUS PROSECUTION


96. Plaintiff has a constitutionally protected property interest in her law license, her

law practice and her business reputation.

97. Instead of prosecuting plaintiff in good faith, Bannon began conspiring with Long

and Davis as early as 24 November 2008 to "fix" the outcome of Ms. McManaway's million

dollar lawsuit so Davis and Peek would not be held liable to Ms. McManaway for their

malfeasance.

98. Bannon prosecuted plaintiff in bad faith throughout plainitff's disciplinary

proceedings.

99. Defendants Long, Davis, Peek, Scarlett and Buckner maliciously instigated an

anonymous claim of mental illness against plaintiff for the purpose of having her disbarred or put

on disability status.

100. The State Bar through its agent, Bannon, maliciously prosecuted the claim that

plaintiff was mentally ill, knowing the claim was false and knowing that publishing the claim in

16

a document of public record, which it then posted on its website, would adversely affect

plaintiffs business and personal reputation for the rest of her life and would prevent her from

obtaining employment.

101. The State Bar did not have probable cause on 27 April 2009 to bring a claim

against plaintiff for mental illness but brought the claim without providing plaintiff or her

attorneys with notice to punish plaintiff for exercising her right to due process.

102. The State Bar deprived plaintiff of procedural due process before irreparably

harming her law practice and business reputation by filing a complaint containing a claim that

plaintiff is mentally ill, which the State Bar knew or should have known was false.

103. The day after the State Bar filed its complaint and posted it on its website, a local

newspaper, The Herald Sun, published an article containing details of The State Bar complaint

including the claim that plaintiff is mentally ill.

104. The Herald Sun article was also published online and was subsequently posted

online at other websites, including a website for mental health practitioners.

105. The State Bar could easily have determined the falsity of the statement regarding

plaintiffs mental illness before it published the statement in a document of public record if the

State Bar had provided plaintiff with procedural due process, such as notice and opportunity to

be heard.

106. The State Bar's act of publishing in a document of public record a false statement

that irreparably harmed plaintiff's law practice and business reputation without providing

plaintiff with procedural due process was malicious, willful, wanton and reckless and violated

plaintiff s constitutional rights.

107. There are no post deprivation remedies available to plaintiff.

108. Additionally, the State Bar failed to mitigate the damage done to plaintiff's law

practice and business reputation when it filed a complaint containing a false statement regarding

plaintiffs mental health. Although the State Bar entered an order on August 20,2009 dismissing

its claim against plaintiff that she was mentally ill, the State Bar failed to post its order on its

website.

109. The State Bar knew or should have known that the anonymous grievance brought

against plaintiff that she was mentally ill was false and made in bad faith as the plaintiff had

previously informed the State Bar that the anonymous grievances being filed against her by

17

Long, Davis, Peek, Scarlett and Buckner were brought for their own personal, political and

pecuniary gain. Furthermore, The State Bar could have contacted plaintiff's supervisors and

colleagues at the Office of the Appellate Defender to make inquiries regarding plaintiff's mental

health, but chose not to. As the State Bar failed in its duty to properly investigate the false

statements pertaining to plaintiff's mental health, including the false statements made by Susan

Lewis, the State Bar should have given plaintiff the opportunity to refute the false statements

before the State Bar destroyed plaintiff's business reputation and personal reputation by

publishing the false statements in a document of public record.

110. The State Bar showed malice and a reckless indifference to plaintiff's

constitutional right to procedural due process by publishing in a document of public record a

statement that The State Bar knew or should have known was false and that the State Bar knew

or should have known would destroy plaintiff's law practice and business reputation.

111. The State Bar prosecuted a claim it knew would destroy plaintiff's law practice

without providing plaintiff with procedural due process in order to punish plaintiff for requesting

a hearing on the State Bar's claims.

112. Section .0105 of Subchapter B of the North Carolina Administrative Code gives

the chairperson of the Grievance Committee the power and duty "to issue letters of notice in such

cases and under such circumstances as the chairperson deems appropriate."

113. Section .0105 of Subchapter B of the North Carolina Administrative Code gives

the chairperson the discretion to issue a letter of notice to a member of the Bar so the member

has the opportunity to respond to grievances before a complaint is filed and becomes a document

of public record.

114. Upon information and belief, the chairpersons of the Bar Grievance Committees

exercise their discretion in an arbitrary and capricious manner so that some member attorneys of

the State Bar receive notice and a chance to be heard prior to a complaint being filed while others

do not.

115. The State Bar gave plaintiff no notice and therefore no opportunity to disprove the

false statement that she mentally ill until after the Bar filed its complaint. When the State Bar

filed its complaint in which it published the false statement regarding plaintiff's alleged mental

illness, plaintiff's law practice and business reputation were destroyed, even though the

statement was later proven false.

18

SEVENTH CLAIM FOR RELIEFPUNITIVE DAMAGES


116. Defendants' conduct was malicious, outrageous, reckless, willful and wanton, and

plaintiff is entitled to recover punitive as well as compensatory damages from defendants.

117. Defendants' acts were particularly outrageous and malicious as they were made

for their own personal, political, and pecuniary gain.

118. Because Davis and Peek were afraid that a jury would award Ms. McManaway

compensatory and punitive damages for their tortious conduct, they decided to get plaintiff

disbarred or put on disability status so she could not pursue legal relief on behalf of Ms.

McManaway.

119. Because Buckner and Scarlett did not want their misconduct exposed by plaintiff,

they wanted plaintiff disbarred or put on disability status so she could no longer practice law in

15-B District Court.

120. Because Long wanted to be appointed to be Judge Coleman's seat, he wanted

plaintiff disbarred or put on disability status so she could not win the election and serve as judge.

121. Bannon engaged in prosecutorial misconduct throughout plaintiff's disciplinary

proceeding.

122. The State Bar could have given plaintiff an opportunity to prove the falsity of the

statement that she was mentally ill, prior to publishing its complaint on its website, but chose not

to because the State Bar wished to punish plaintiff for exercising her right to due process.

123. Plaintiff should be awarded punitive damages pursuant to N.C. Gen. Stat. § 1D-

15. Awarding plaintiff punitive damages will deter defendants and others from engaging in

similar misconduct.

124. This is not the first time Buckner has been accused of willful and wanton

misconduct. In 1998, Buckner's assistant brought a complaint against him in Orange County

Superior Court for sexual harassment, alleging that Buckner engaged in conduct that was

19

offensive, insulting, inappropriate, and demeaning toward female staff members, clerks and

members of the Bar, and that he created a "hostile work environment and atmosphere saturated

with sexual suggestion, innuendo and proposition."

125. This is not the first time the State Bar and its agents have been accused of willful

and wanton misconduct. See Willie Gilbert's federal lawsuit against the State Bar attached to

her motion for leave to amend.

MOTION FOR INJUNCTIVE RELIEF


125. The disciplinary order disbarring plaintiff is currently on appeal. If the order is

reversed or vacated, the State Bar and its Disciplinary Hearing Commission should be

permanently enjoined from prosecuting plaintiff.

126. Plaintiff moves the Court for an order permanently enjoining the North Carolina

State Bar and its Disciplinary Hearing Commission from prosecuting plaintiff and requests that if

she is afforded a new hearing on appeal, she be heard in a court of law before a jury of her peers.

127. In the alternative, Plaintiff moves the Court for an order enjoining the North

Carolina State Bar and its Disciplinary Hearing Commission from prosecuting plaintiff until

damages have been determined in this action.

WHEREFORE, the plaintiff prays the following relief, of all defendants:

1. Compensatory damages, jointly and severally, in an amount in excess of

$10,000.00;

2. Punitive damages, jointly and severally, in an amount in excess of $10,000.00;

3. Pre- and post-judgment interest;

4. That the costs of this action be taxed against the defendants;

5. That plaintiff be awarded reasonable attorney's fees;

6. That Long be removed from his position as North Carolina District Court Judge

for corrupt and malicious acts;

7. That Buckner be removed from his position as North Carolina Chief District

Court Judge for corrupt and malicious acts;

20

8. That the North Carolina State Bar be permanently enjoined from prosecuting

plaintiff as plaintiff is unable to receive a fair hearing before the North Carolina State Bar's

Disciplinary Hearing Commission; and

10. For such other and further relief the Court deems fair and just.

A JURy TRIAL IS DEMANDED.

This the 27th day of October, 2010.

21

STATE OF NORTH CAROLINA IN THE GENERAL COURT OF JUSTICEDISTRICT COURT DIVISION

~S=URR==~Y COUNTY

--,<:0..!-7__ ,SP_-.:2=0=5 __

"-,JO~HNNY~~L"",E=""E~B~RAN~,-",C,,,-,H'--- -f7''*'~''I;~~ p.~l211 A 8= ij 1(Full name of petitioning father) ~,,~\l ~f).~

KRISTIN BRADLEY BRANCH(Full name of petitioning mother)

FOR THE ADOPTION OF

COLIN ALEXANDER BRANCH(Full name by which adoptee is to be known if adoption granted)

In accordance with G.S. 48-2-602, this Affidavit is being made to account for any payments or disbursements made or agreedto be made by petitioner(s) in connection with this adoption and is being filed with the court at least 10 days before the entryof the Final Decree. This Affidavit includes the amount of each payment or disbursement and name and address of eachrecipient as allowed by G.S. 48-10-103.

I Description of Expenses /Fees Name & Address of Recipient Amount

Prescription Medicines Wal-Mart Pharmacy $4.312241 Rockford St.Mt. Airy, NC 27030

Home Visit Chapel Hill Pediatric Psychology $781.25205 Sage RoadChapel Hill, NC 27514

Office Visit Chapel Hill Pediatric Psychology $17.63205 Sage RoadChapel Hill, NC 27514

Legal Fees for contested Adoption and Donna Ambler Davis, P.e. $17,400.00contested Termination of Parental Rights 1717 Legion Road, Suite 204

Chapel Hill, NC 27517Expense Reimbursement for Legal Fees Coleman, Gledhill. Hargrave & Peek $7,396.25incurred in connection with Adoption and P. O. Drawer 1529Termination of Parental Rights Hillsborough, NC 27278Wellness Exam & immunizations Mebane Pediatrics $12.75

935 S. 5th StreetMebane, NC 27302

Doctor Visit Primary Care ofMt. Airy $48.00805 Merita StMt. Airy, NC 27030

Continued on Page Two a) 1, ~/L iW\..rt..MJ. 'e- A A/I -"~ r.

I r Adoptive Father,~1&~)r8-c~.

Adoptive Mo~DSS-S191 (Rev. 812000)Children's Services

Additional AffidavitPage Two

Description of Expenses/Fees Name & Address of Recipient I AmountI I

Expense Reimbursement for Legal Fees Marvilyn Bohannan $9,500.00& Expenses in connection with 225 Dressage RoadAdoption and Termination of Parental Mebane, NC 27302Rights [for payment to Coleman, Gledhill,

Hargrave & Peek)

STATE OF NORTH CAROLlNA

F0 V sqi'h COUNTYI '

Sworn to and subscribed before me this '0.fh day of ...!J!..!::!an~u:!±lary~ ~. 2008

I Notary Public

My Commission Expires:_~Lt~I~Z----,'1!..fI=D-.:ct=-- _I I

Note: One DSS-5191 is filled in by the adoptive parent(s) for presentation to the Clerk of Superior Court whothen forwards it to the Division of Social Services, State Department of Health and Human Services.

141 PROVIDENCE ROAD, SUITE 200 • CHAPEL HILL, NC 27514

P.O. DRAWER 4825 • CHAPEL HILL, NC 27515

April 12, 2010

Ms. Betsy Wolfenden1829 E. Franklin StreetBuilding 600Chapel Hill, NC 27514

Dear Betsy:

I received a subpoena from you in last Thursday's mail. My understand-ing is that your proposed deposition has not been properly noticed and, as Iread the Rule, I also was not properly served, so I do not plan to show up.

As a courtesy, however, I would like to provide you with the informationyou are seeking, to the extent that I have any information. I am unaware ofany statement you ever made that you "are going to torture attorneys," butthere is a transcript from the Sullivan case where you said something close tothat. I no longer have the full transcript because Iwithdrew from the case, butI do have an excerpt. I am enclosing a copy.

This is the full extent of my knowledge and/ or information concerningthe matter referenced in your subpoena. I hope it is helpful.

Enclosure:Copy of Transcript Excerpt

cc: Ms. Carmen Hoyme BannonN.C. BarP.O. Box 25908Raleigh, NC 27611

PHONE • 919-967-8989 FAX. 919-419-1429 • WWW. LPHLAW.COM

PARTNERS • SUSAN H. LEWIS • J. DICKSON PHILLIPS III • CHRISTINA GOSHAW HINKLE

ASSOCIATES • BETH POINSETT VON HAGEN • BRIAN C. JOHNSTON • CHELLIE MARTIN JOINES • ELLIOT I. BRADY

Sullivan v Sullivan, 06 CVD 1135, VOL IIDurham County, Durham, NC, 05/26/06

1

2

Page 35not only that you dismiss it on the basis ofthe inadequacy of the pleading; but that you

3 go beyond that and say that Rule 35, as a4

5

6

matter of law, is not appropriate In thiscircumstance. Thank you.

THE COURT: (To Ms. Lewis) All7 right. Thank you, Ms. Lewis.8 (To Ms. Wolfenden)9

10Wolfenden.

MS. WOLFENDEN: (To The Court)11 Thank you, Your Honor, very much. Let me121314

start out by addressing the inadequacy of mymotion. Unfortunately what I think Ms.Lewis did, was that she did not properly

15 interpret the wording in Rule 35. So, letme just begin, Your Honor, and maybe it's16

17 something that I was able to catch because181920

my mom was an English teacher. Rule 35states so, let's listen to this -- theorder may be made only on motion for good

21 cause shown; and upon notice to the personto be examined, and to all parties, and22

23 shall specify the time, place, manner,24 conditions, and scope of the examination,25 and the person or persons by whom it is to

(Pages 1-100) ADM Associates (919) 755-0081

Sullivan v Sullivan, 06 CVD 1135, VOL IIDurham County, Durham, NC, 05/26/06

1 be made. All of those modifiers, Your2 Honor, apply to the order; not to the

motion. And though it is a bit confusing,3

4

5

and it confused me as well when I firstlooked at it, and when I was beginning towrite the motion, which you will ~emember,6

7 Your Honor, I wrote, as per your8

9

instructions, as per The Court's request.So, what I do when I start writing motionsis, I go to two books. I go to North10

11 Carolina Trial Practice Forms, Thorp's; andI also go to the North Carolina CivilProcedure written by G. Gray Wilson. I

12131415

drafted my motion, Your Honor, based on themotion in Thorp's the example given.

16 THE COURT: (To Ms. Wolfenden)17181920212223

24

I understand.(To The Court) Yes.MS. WOLFENDEN:

THE COURT: (To Ms. Wolfenden)Now, here's -- here's my -- here's myquestion, though. I mean --

MS. WOLFENDEN: (To The Court) Okay.THE COURT: (To Ms. Wolfenden)

you know, Ido have a clue in this case25

(Pages 1-100) ADM Associates (919) 755-0081

Sullivan v Sullivan, 06 CVD 1135, VOL IIDurham County, Durham, NC, 05126/06

1

234

5

67

8

9

1011121314151617181920

21222324

( 25

~

MS . WOLFENDEN : (To The Court)(y=-------_ .._---------------

MS. WOLFENDEN: (To The Court)because you all are -- you know, and Ihaven't been able to review the pleadings,too, and for whatever reason I've seemed tohave taken an interest in this proceedingfrom a legal point of view, which is alwaysfun, because that means I can torture thelawyers better --

MS. WOLFENDEN: (To The Court)Uh-huh (yes).

THE COURT: (To Ms. Wolfenden)and that can have fun with me, I might

add. What I'm still failing to understandis, you know, it's her mot£on forappointment of a Guardian Ad Litem. Again,I'm coming back to the same question I askedin the beginning of this hearing, why do Icare? He wants to have a Guardian AdLitem. He has mental conditions; maybe that

will help him move this case along. Eitherway, I'm going to keep -- as I said keepit on my status calendar going forward tomake sure it continues to move and thereisn't any sucker punch that's thrown by

(pages 1-100) ADM Associates (919) 755-0081

r - (;CHIlIl! t::..

NORTII CAROLINA IN THE GENERALCOURTOF mSTICE-:-aiJQUj~~~D~IS~TRICT COURTDMSION

DURHAM COUNTY r- NO.: 99 CVD2992

vs.ORDER

ROOMAMADANPlaintiff

SANJEEV MADANDefendant

TIllS ACTION WAS HEARD in Durham County District Court before the belowsigned Judge Presiding on May 1-4, and May 29-30,2001, upon Motion to StrikeCustody Evaluation Report of Dr. Ginger Calloway, and to Discharge Dr. Calloway, filedby Plaintiff on December 21.2000. R Hayes Hofler, Esq., appeared and represented thePlaintiff Susan H. Lewis, Esq., appeared and represented the Defendant. WIthout filingany written response, Defendant challenged the propriety of said motion-and asserted thatit was improperly interposed. Based on the evidence and testimony received, the Courtmakes the following,

FINDINGS OF FACT:

1. Upon motion of Defendant, Dr. Ginger Calloway was appointed as the Court'sexpert under Rule 706 of the North Carolina Rules of Evidence to conduct a childcustody evaluation regarding the parties' minor child, Savita Madan, DOB March23, 1996. Dr Calloway began her said evaluation in November, 2000.

2. A temporary custody and support order was filed herein on January 4, 2000,following a contested hearing.

3. On January 12,2000, Defendant's attorney filed a motion to withdraw as counsel,and on January 25, 2000, Susan Lewis gave written notice of her appearance asDefendant's counsel in the action, and has been representing Defendant in thisaction ever since.

4. Prior to Susan Lewis' appearance in this action as Defendant's attorney, Dr.Calloway had engaged Ms. Lewis to represent her in a child support matter. Shehad also consulted with Ms. Lewis about her own divorce and the dissolution of aprofessional corporation. Ms Lewis' associate was primary responsible for thechild support matter.

5. Dr. Calloway failed to disclose these prior attorney-client relationships to Plaintiffor her counsel at the time ofMs. Lewis' appearance in this action. Dr. Calloway

disclosed the relationship several months after Dr. Calloway has submitted herfinal report to this court while being deposed by Plaintiff's counsel

6. Dr. Calloway had her last diagnostic interview with Plaintiff on February 22,2000, and at that time informed her that she had :finished her data collection andwould be thereafter writing her evaluation report.

7. On April 3, 2999, Ms Lewis transmitted by e-mail to Dr. Calloway a 16 pageletter containing negative allegations about plaintiff: and requesting that specificrecommendations be included in Dr. Calloway's evaluation report, among themthat no parent be designated as "primary" custodian for said child, and that herclient have physical custody of her fifty percent of the time.

8. The existence of the 16 page e-mail letter was not disclosed to the plaintiff or thePlaintiff's counsel at the time of the communication. They learned of the 16 pageletter because Dr. Calloway referred to the letter in her report.

9. The Plaintiff contends, and the Defendant denies, that Susan Lewis' letter of April3, 2000 is completely outlined in Dr. Calloway' s report/evaluation, and that all ofSusan Lewis' requests for recommendations as contained in said letter arecontained in the recommendations that Dr. Calloway submitted to the Court. TheCourt makes no finding as to this issue .

. 10. The Plaintiff contends, and the Defendant denies, that Dr. Calloway breached theethical standards of her profession by failing to disclose her attorney-clientrelationship with Susan Lewis and failing to disclose Ms. Lewis ex partecommunications to the Plaintiff or the Plaintiff's counsel. The Court makes nofinding as to this issue.

11. However, the Court does find that Dr. Calloway's failure to disclose her attomey-client relationship with Ms. Lewis coupled with the existence of a 16 page ex-parte communication from Ms. Lewis gives the appearance of bias and that Dr.Calloway therefore, should be discharged as the court-appointed expert in thismatter.

12. Either party may hire Dr. Calloway as his or her own expert and attempt toqualify her as an expert to give testimony at the custody trial.

BASED ON THE FORGOING FINDING OF FACT, THE COURT MAKESTHE FOLLOWING,

CONCLUSIONS OF LAW:

1. Plaintiff's Motion to Strike Custody Evaluation Report of Dr. Ginger Calloway,and to Discharge Dr. Calloway was properly filed and heard pursuant to Rules

103, 104, 702, 703, 403, and 706, of the North Carolina Rules of evidence, andappellate court decisions interpreting these rules.

2. Insofar as Plaintiff's motion would be construed as a motion to disqualify thewitness, Dr. Calloway, and prohibit her testimony, Plaintiff's motion should bedenied, in the Court's discretion.

3. In the Court's discretion, Dr. Calloway's evaluation!report should be a part of therecord in this cause only to the extent that it may be admitted as an exhibit at trial,upon a proper tender of the report by either party, and determination of anyobjections at that time. It would be part of the record only to the extent that anyother properly admitted exhibit is part of the record.

4. The failure to disclose the relationships coupled with the exparte communicationfrom Susan Lewis give the appearance of bias and therefore warrant discharge of

-Dr. Calloway as the court-appointed expert.

5. Either party should be allowed to hire Dr. Calloway as his or her own expert. ifthey so choose, and attempt to qualify her as an expert to give testimony at thecustody trial

BASED UPON THE FOREGOING FINDINGS OF FACT ANDCONCLUSIONS OF LAW, THE COURT HEREBY,

ORDERS AS FOLLOWS:

1. Dr. Calloway is hereby discharges as the court-appointed expert in this action.

2. This order does not prohibit either party from hiring Dr. Calloway as an expertand attempting to qualify her as his or her own expert to give testimony in thatcapacity at trial

3. Either party may tender Dr. Calloway's report/evaluation, or any parts thereof attrail, and the Court shall make determination concerning its admissibility at thattime, after hearing any objections interposed. The report/evaluation shall be partof the Court record only to the extent that it is admitted into evidence at trial.

This. the :Ill day of ~~ ~ ,2001~ t

t\-"'-\. '---

Ann E. McKownJudge Presiding

Betsy Wolfenden amends her complaint against the North Carolina State Bar

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