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14 DHC 7






Now comes Defendant and moves the Panel, pursuant to N.C. Civ. P. Rule 59(e)
and 27 N.C.A.C. Chapter 1B Section .0117, to Alter or Amend it's September 13, 2016
Order Suspending Defendant from the practice of law for two years, as such Order lacks
any basis in law or fact.1,2
The Panel found that Defendant disrespected a tribunal under Rule 3.5 by
cursing at Magistrate Fisher in the Magistrate Office in the bottom of the Buncombe
County Detention Facility upon a warrant check for Occupy Asheville protesters. In so
1 The Panel stayed the suspension imposing conditions of mental health reporting,
specifically stating that it did not intend it's decision to prevent Defendant from returning
to the practice of law, so long as she complied with mental health reporting conditions.
The Administrative Committee, however, at it's July meeting, granted Defendant's
Petition to Reinstate her law license, yet stayed that decision until Defendant either
abandons her appeal of the disciplinary order, or until such time as the appeal concludes.
Defendant will not be coerced into abandoning her right to a meritorious appeal, and is
hopeful that the Administrative Committee will lift this wholly inappropriate condition to
her reinstatement at the October meeting upon her voluntary agreement for mental health
2Defendant's law license was administratively suspended at the time of the hearing,
thereafter, reinstated yet stayed pending outcome of the appeal. Defendant asserts the
Panel lacked any jurisdiction at the time of the hearing to suspend her license that was not
in effect until thereafter.

ruling, the Panel found, as a matter of law, that Magistrate Fisher herself was a tribunal
for purposes of Rule 3.4. Without citing any authority in support, the Panel specifically
held that the definition of tribunal did not require underlying adversarial proceedings:
Rule 1.0(n) defines "tribunal," for purposes of Rule 3.5(a)(4)(8), as
denoting "a court, an arbitrator in a binding arbitration proceeding or a
legislative body, administrative agency or other body acting in an
adjudicative capacity."
As written, the phrase "acting in an adjudicative capacity" in the
first sentence of Rule l.O(n) modifies only "a legislative body,
administrative agency or other body," and does not modify "Court" or "an
arbitrator in a binding arbitration proceeding."
6. Therefore, it is unnecessary to also show that, for purposes of Rule
3.5(a)(4)(B), a "Court" also was "acting in an adjudicative capacity" or
that there was an adversarial hearing ongoing at the time.
Even with only initial statutory research, as seen below, the Panel's holding is
manifest clear error. Defendant asks the Panel to vacate it's decision on it's own
initiative, rather forcing her to seek relief from the North Carolina Court of Appeals.
Definition of Tribunal
The Rules of Professional Responsibility define tribunal as follows:
Rule 1, Definitions
(n) Tribunal denotes a court, an arbitrator in a binding arbitration
proceeding, or a legislative body, administrative agency, or other body
acting in an adjudicative capacity. The term encompasses any proceeding
conducted in the course of a trial or litigation, or conducted pursuant to
the tribunals rules of civil or criminal procedure or other relevant rules of
the tribunal, such as a deposition, arbitration, or mediation. A legislative
body, administrative agency or other body acts in an adjudicative capacity
when a neutral official, after the presentation of evidence or legal argument
by a party or parties, may render a binding legal judgment directly
affecting a partys interests in a particular matter.

The term is Latin, and derives its origin from the elevated seat where the tribunes
administered justice. It is a body convened to hear a dispute,3 which can be a court,
judicial body, or board which has quasi-judicial functions (such as a public utilities board
which sets rates or a planning commission which can allow variances from zoning
regulations). The Free Dictionary Gerald N. Hill and Kathleen T. Hill (2005).
It is a general term for a court, or the seat of a judge. In Roman Law, the term
applied to an elevated seat occupied by the chief judicial magistrate when he heard
causes. West's Encyclopedia of American Law, edition 2 (2008).
A tribunal is the seat of a judge; the place where he administers justice; but by
this term is more usually understood the whole body of judges who compose a
jurisdiction sometimes it is taken for the jurisdiction which they exercise.4
It's synonyms include: bench, chancery, court, court of jussice, court of law,
forum, iudicium, judges, judgment seat, judiciary, law court, panel of judges, associated
concepts include: administrative tribunal, appellate tribunal, fair tribunal, inferior
tribunal, tribunal of limited jurisdiction. See also: assembly, bar, bench, board, body,
3 A tribunal is a body convened to hear a dispute. While a court is a kind of tribunal, the
word is often used for something which is not a court. In the constitutional law of the
UK, an alternative forum for the resolution of disputes instead of the ordinary courts.
They are mostly miscellaneous and are set up by statutes for various purposes. They quite
often have entirely different rules of evidence and procedure from ordinary courts. They
are generally supposed to be more flexible, more expert and speedier than the normal
courts. They operate in many fields, including taxation, immigration, and landlord and
tenant cases. The lives of many are affected by social security tribunals and the
EMPLOYMENT TRIBUNALS appear to have been so much of a success that they are
busy, respected and are given new jurisdictions from time to time. Some form of appeal
usually lies from a tribunal, at least on law, to the ordinary courts, and there is a
supervisory jurisdiction in the COUNCIL ON TRIBUNALS. In the international sphere
where the legal foundations are less solid, the German and Japanese war criminals were
tried by an International Military Tribunal. At the time of writing the International
Tribunal for the Former Yugoslavia is still sitting. It was established under the Charter of
the United Nations. See also WAITANGI TRIBUNAL. Collins Dictionary of Law W.J.
Stewart (2006).

chamber, council, court, forum, judicatory, judicature, judiciary, jury. Burton's Legal
Thesaurus 4E (2007).
The concept of a tribunal includes any court, but can also be broader to include
other bodies empaneled to decide disputes:
A tribunal, generally, is any person or institution with authority to judge,
adjudicate on, or determine claims or disputeswhether or not it is called
a tribunal in its title. For example, an advocate who appears before a court
with a single judge could describe that judge as 'their tribunal'. Many
governmental bodies that are titled 'tribunals' are so described to
emphasize that they are not courts of normal jurisdiction. For example, the
International Criminal Tribunal for Rwanda is a body specially constituted
under international law; in Great Britain, employment tribunals are bodies
set up to hear specific employment disputes. Private judicial bodies are
also often styled 'tribunals'. The word tribunal is not conclusive of a
body's function. For example, in Great Britain, the Employment Appeal
Tribunal is a superior court of record.5
As applied in this case, tribunal denotes a court. Surprisingly, Defendant has
not yet been able to locate any North Carolina statute specifically defining court.
Black's Law Dictionary defines a court as [a]n organ of the government, belonging
to the judicial department, whose function is the application of the laws to controversies
brought before it and the public administration of justice. Blacks Law Dictionary. It
continues, clearly explaining that a court is a body for the hearing and decision of
causes, over which, a judge presides:
A court may be more particularly described as an organized body with
defined powers, meeting at certain times and places for the hearing and
decision of causes and other matters brought before it. and aided in this,
its proper business, by its proper officers, viz., attorneys and counsel to
present and manage the business, clerics to record and attest its acts and
decisions, and ministerial officers to execute its commands, and secure
due order in its proceedings. Ex parte Gardner, 22 Nev. 280, 39 Pac. 570.
The place where justice is judicially administered. Co. Litt. 58a; 3 Bl.
Comm. 23. Railroad Co. v. Harden, 113 Ga. 450, 38 S. E. 950. The judge,
or the body of judges, presiding over a court. The words court and

judge, or judges, are frequently used in our statutes as synonymous.

When used with reference to orders made by the court or judges, they are
to be so understood. State v. Caywood, 90 Iowa, 307, 05 N. W. 3S5;
Michigan Cent. R. Co. v. Northern Ind. R. Co.. 3 Ind. 239.
Classification. Courts may be classified and divided according to several
methods, the following being the more usual: Courts o/ record and courts
not of record; the former being those whose acts and
judicial proceedings are enrolled, or recorded, for a perpetual memory
and testimony, and which have power to fine or imprison for contempt.
Error lies to their judgments, and they generally possess a seal. Courts not
of record are those of inferior dignity, which have no power to fine or
imprison, and in which the proceedings are not enrolled or recorded. 3 Bl.
Comm. 24; 3 Steph. Comm. 383; The Thomas Fletcher (C. C.) 24 Fed.
481; Ex parte Thistleton, 52 Cal. 225; Thomas v. Robinson, 3 Wend. (X.
Y.) 208; Erwin v. U. S. (D. C.) 37 Fed. 4S8, 2 L. It. A. 229.
Superior and inferior courts; the former being courts of general original
jurisdiction in the first instance, and which exercise a control or
supervision over a system of lower courts, either by appeal, error,
or certiorari; the latter being courts of small or restricted Jurisdiction, and
subject to the review or correction of higher courts. Sometimes the former
term is used to denote a particular group or system of courts of high
powers, and all others are called inferior courts. To constitute a court
a superior court as to any class of actions, within the common law
meaning of that term, its jurisdiction of such actions must be
unconditional, so that the only thing requisite to enable the court to
take cognizance of them is the acquisition of jurisdiction of the persons of
the parties. Simons v. De Bare, 4 Bosw. (X. Y.) 547. An inferior court is a
court whose judgments or decrees can be reviewed, on appeal or writ of
error, by a higher tribunal, whether that tribunal be the circuit or supreme
court. Nugent v. State, 18 Ala. 521.
Civil and criminal courts; the former being such as are established for
the adjudication of controversies between subject and subject, or the
ascertainment, enforcement, and redress of private rights; the latter, such
as are charged with the administration of the criminal laws, and
the punishment of wrongs to the public. Equity courts and law courts; the
former being such as possess the jurisdiction of a chancellor, apply the
rules and principles of chancery law, and follow the procedure in equity;
the latter, such as have 110 equitable powers, but administer justice
according to the rules and practice of the common law.
Lay dictionaries also clearly establish that a court is a body that adjudicates
disputes between parties: (1) a formal legal meeting in which evidence about crimes,
disagreements, etc., is presented to a judge and often a jury so that decisions can be made

according to the law; (2) a place where legal cases are heard, or (3) an official group
of people (such as a judge and jury) who listen to evidence and make decisions about
legal cases6
The term tribunal runs through the Rules of Professional Responsibility and
universally denotes a body that is empaneled to decide contested matters between parties.
For example, Comment 7 to Rule 1.1, Competence refers to matter pending before a
tribunal7 Rule 1.5 allows an attorney to petition a tribunal for a legal fee and provides
that the tribunal's determination of a fee petition.8

7 Rule 1, comment [7] When lawyers from more than one law firm are providing legal
services to the client on a particular matter, the lawyers ordinarily should consult with
each other and the client about the scope of their respective representations and the
allocation of responsibility among them. See Rule 1.2. When making allocations of
responsibility in a matter pending before a tribunal, lawyers and parties may have
additional obligations that are a matter of law beyond the scope of these Rules.
8 Rule 1.5 [12] A lawyer may petition a tribunal for a legal fee if allowed by applicable
law or, subject to the requirements for fee dispute resolution set forth in Rule 1.5(f), may
bring an action against a client to collect a fee. The tribunal's determination of the merit
of the petition or the claim is reached by an application of law to fact and not by the
application of this Rule. Therefore, a tribunal's reduction or denial of a petition or claim
for a fee is not evidence that the fee request violates this Rule and is not admissible in a
disciplinary proceeding brought under this Rule.

Rule 3.3, Candor Toward the Tribunal,9 unequivocally demonstrates a tribunal is a

body empaneled to resolve disputes between parties. It prohibits attorneys from failing to
disclose legal authority, offering false evidence and making false statements to a tribunal.
Under Rule 3.5(c), a tribunal is a body that makes an informed decision: In an ex parte
proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer
that will enable the tribunal to make an informed decision.
The comments further make clear that a tribunal resolves adversarial disputes
between parties. Comment one provides: This Rule governs the conduct of a lawyer
who is representing a client in the proceedings of a tribunal. See Rule 1.0(n) for the
definition of "tribunal." It also applies when the lawyer is representing a client in an
ancillary proceeding conducted pursuant to the tribunal's adjudicative authority, such as a

9 Rule 3.3
(a) A lawyer shall not knowingly:
(1) make a false statement of material fact or law to a tribunal or fail to correct a false
statement of material fact or law previously made to the tribunal by the lawyer;
(2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to
the lawyer to be directly adverse to the position of the client and not disclosed by
opposing counsel; or
(3) offer evidence that the lawyer knows to be false. If a lawyer, the lawyer's client, or a
witness called by the lawyer, has offered material evidence and the lawyer comes to
know of its falsity, the lawyer shall take reasonable remedial measures, including, if
necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the
testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false.
(b) A lawyer who represents a client in an adjudicative proceeding and who knows that a
person intends to engage, is engaging or has engaged in criminal or fraudulent conduct
related to the proceeding shall take reasonable remedial measures, including, if necessary,
disclosure to the tribunal.
(c) The duties stated in paragraphs (a) and (b) continue to the conclusion of the
proceeding, and apply even if compliance requires disclosure of information otherwise
protected by Rule 1.6.
In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known
to the lawyer that will enable the tribunal to make an informed decision, whether or not
the facts are adverse.

Comment two makes clear a tribunal is a body with an adjudicative process and
adjudicative proceeding.10 Legal arguments are rendered in a tribunal convened to
settle a dispute.11 Comment 12 specifically describes a 'tribunal as having an
adjudicatory process with underlying proceedings12 Comment 14 clearly states that
proceedings are involved before a tribunal, which renders a final judgment in the

10 Rule 3.3, comment 2 This Rule sets forth the special duties of lawyers as officers of
the court to avoid conduct that undermines the integrity of the adjudicative process. A
lawyer acting as an advocate in an adjudicative proceeding has an obligation to present
the client's case with persuasive force. Performance of that duty while maintaining
confidences of the client, however, is qualified by the advocate's duty of candor to the
tribunal. Consequently, although a lawyer in an adjudicative proceeding is not required
to present an impartial exposition of the law or to vouch for the evidence submitted in a
cause, the lawyer must not allow the tribunal to be misled by false statements of material
fact or law or evidence that the lawyer knows to be false.
11 Rule 3.3, comment 4 Legal argument based on a knowingly false representation of law
constitutes dishonesty toward the tribunal. A lawyer is not required to make a
disinterested exposition of the law, but must recognize the existence of pertinent legal
authorities. Furthermore, as stated in paragraph (a)(2), an advocate has a duty to disclose
directly adverse authority in the controlling jurisdiction that has not been disclosed by the
opposing party. The underlying concept is that legal argument is a discussion seeking to
determine the legal premises properly applicable to the case.
12 Rule 3.3, comment 12 Preserving Integrity of Adjudicative Process
[12] Lawyers have a special obligation to protect a tribunal against criminal or fraudulent
conduct that undermines the integrity of the adjudicative process, such as bribing,
intimidating or otherwise unlawfully communicating with a witness, juror, court official
or other participant in the proceeding, unlawfully destroying or concealing documents or
other evidence or failing to disclose information to the tribunal when required by law to
do so. Thus, paragraph (b) requires a lawyer to take reasonable remedial measures,
including disclosure if necessary, whenever the lawyer knows that a person, including the
lawyer's client, intends to engage, is engaging or has engaged in criminal or fraudulent
conduct related to the proceeding.

proceeding.13 Comment 15 provides that a tribunal reaches a decision in an

adversarial matter.14
The Rule at issue here, Rule 3.5, Impartiality and Decorum of the Tribunal, makes
clear a 'tribunal' is a court empaneled to resolve a dispute between parties. Attorneys are
prohibited from engaging conduct intended to disrupt a tribunal, including:
(A) failing to comply with known local customs of courtesy or practice of
the bar or a particular tribunal without giving opposing counsel timely
notice of the intent not to comply;
(B) engaging in undignified or discourteous conduct that is degrading to a
tribunal; or; (C) intentionally or habitually violating any established rule
of procedure or evidence
Thus, tribunals, as court's empaneled to resolve a dispute, have rules of procedure
and/or evidence and local customs and practice. Opposing counsel is present. The Rule
makes clear that disruptive conduct is not part of an attorney's duty of zealous
advocacy; clearly contemplating an underlying proceeding and parties. The Rule
applies not only to open court but also to ancillary proceedings such as depositions,

13 Rule 3.3, comment 14 Duration of Obligation

[14] A practical time limit on the obligation to rectify false evidence or false statements of
material fact or law has to be established. The conclusion of the proceeding is a
reasonably definite point for the termination of the obligation. A proceeding has
concluded within the meaning of this Rule when no matters in the proceeding are still
pending before the tribunal or the proceeding has concluded pursuant to the rules of the
tribunal such as when a final judgment in the proceeding is affirmed on appeal, a
bankruptcy case is closed, or the time for review has passed.
14 Rule 3.3, comment 15 Ex Parte Proceedings
[15] Ordinarily, an advocate has the limited responsibility of presenting one side of the
matters that a tribunal should consider in reaching a decision; the conflicting position is
expected to be presented by the opposing party. However, in any ex parte proceeding,
such as an application for a temporary restraining order, there is no balance of
presentation by opposing advocates. The object of an ex parte proceeding is nevertheless
to yield a substantially just result. The judge has an affirmative responsibility to accord
the absent party just consideration. The lawyer for the represented party has the
correlative duty to make disclosures of material facts known to the lawyer and that the
lawyer reasonably believes are necessary to an informed decision.

as well as documents filed with the tribunal.15 The duty to refrain from disruptive
conduct applies to any proceeding of a tribunal, including a deposition or mediation.
The comments to Rule 3.5 also make clear that a judge presides over a tribunal to
resolve a dispute between parties.16

Rule 3.5 As professionals, lawyers are expected to avoid disruptive, undignified,

discourteous, and abusive behavior. Therefore, the prohibition against conduct intended
to disrupt a tribunal applies to conduct that does not serve a legitimate goal of advocacy
or a requirement of a procedural rule and includes angry outbursts, insults, slurs, personal
attacks, and unfounded personal accusations as well as to threats, bullying, and other
attempts to intimidate or humiliate judges, opposing counsel, litigants, witnesses, or court
personnel. Zealous advocacy does not rely upon such tactics and is never a justification
for such conduct. This conduct is prohibited both in open court and in ancillary
proceedings conducted pursuant to the authority of the tribunal (e.g., depositions). See
comment [11], Rule 1.0(n). Similarly, insults, slurs, threats, personal attacks, and
groundless personal accusations made in documents filed with the tribunal are also
prohibited by this Rule. Conduct of this type breeds disrespect for the courts and for the
legal profession. Dignity, decorum, and respect are essential ingredients in the proper
conduct of a courtroom, and therefore in the proper administration of justice. Atty.
Grievance Commn v. Alison, 565 A.2d 60, 666 (Md. 1989). See also Rule 4.4(a)
(prohibiting conduct that serves no substantial purpose other than to embarrass, delay, or
burden a third person) and Rule 8.4(d) (prohibiting conduct prejudicial to the
administration of justice).
The duty to refrain from disruptive conduct applies to any proceeding of a tribunal,
including a deposition or mediation. See Rule 1.0(n).
16 Rule 3.5, comment 8 All litigants and lawyers should have access to tribunals on an
equal basis. Generally, in adversary proceedings, a lawyer should not communicate with
a judge relative to a matter pending before, or which is to be brought before, a tribunal
over which the judge presides in circumstances which might have the effect or give the
appearance of granting undue advantage to one party. For example, a lawyer should not
communicate with a tribunal by a writing unless a copy thereof is promptly delivered to
opposing counsel or to the adverse party if unrepresented. Ordinarily, an oral
communication by a lawyer with a judge or hearing officer should be made only upon
adequate notice to opposing counsel or, if there is none, to the opposing party. A lawyer
should not condone or lend himself or herself to private importunities by another with a
judge or hearing officer on behalf of the lawyer or the client.


Magistrate Fisher is not a judge, but rather a judicial official of the District
Court. When presiding over Small Claims Court, however, the magistrate acts as a judge,
deciding disputes between parties. Therefore, Small Claims Court is the 'tribunal' of the
magistrate because it is a body convened to resolve disputes.
The Panel has committed manifest error in finding that Magistrate Fisher herself
was a tribunal. She is a judicial official not a tribunal These are two separate terms.
For example, N.C.G.S. 84A-4. Scope of practice, shows this point:
Subject to the limitations set forth in subsections (b) and (c) of this section, a
person licensed as a foreign legal consultant under this Chapter may provide legal
services in the State and be compensated for those legal services.
A person licensed as a foreign legal consultant shall not engage in any of the
Appear on behalf of another person or entity as the attorney for that
person or entity in any legal proceeding or before any judicial officer
or State or municipal agency or tribunal.
Sign or file in the capacity of an attorney any pleadings, motions, or
other documents in any legal proceeding or before any judicial officer
or State or municipal agencies, or tribunal.
Thus, because judicial official and tribunal are two separate terms, with two
distinct meanings, the Panel's finding is unsupported as a matter of statutory construction.
The Panel cited no authority for it's conclusion that Magistrate Fisher herself
constituted a tribunal, nor could it. The only authority relied upon by the State at the
hearing, was not submitted as part of the Panel's order, involved a disrespecting a Clerk
of Court during a contested matter. The North Carolina State Bar v. Reginald D. Alston,
No. 09 DHC 7 (Jan. 8, 2010) (rude behavior during Special Proceeding before Clerk of
Court in violation of Rule 3.5(a)(4)(B).
The question for the determination of tribunal is whether the body was
empaneled to render a decision in a matter, whether a court has been empaneled.
Nothing of the sort existed here: Defendant went to the Magistrate Office to ask an

administrative question that could have been, and was normally, handled over the phone.
She was not representing any specific party and there was no matter pending before the
magistrate for her decision. Defendant did not seek any judicial relief from the
magistrate, such as the issuance of a warrant. There were no underlying proceedings, no
parties. It was a simple administrative inquiry. Defendant would submit this legal
question is crystal clear and will easily be reversed by the Court of Appeals.
Additional reversible error includes the admission of mental health evidence
during the guilt phase, over objection. Specifically, evidence was admitted over
objection that Defendant had been disabled from the practice of law from complex
chronic PTSD as the result of Fisher's perjury and additional consequences from
Defendants Asheville activism until 2015, but was no longer disabled from the practice
of law. Defendant vigorously objected that such evidence was not relevant and highly
prejudicial in the guilt determination.
Defendants mistake in this process was naively assuming the Panel, sitting as the
Superior Court of Wake County, would actually apply the law. That is why she contested
the original censure. The Panel made quite clear, as will be revealed by the transcript on
appeal, that it had an ulterior motive to supervise Defendant as the result of her medical
conditions and admission of prior disability.
At the July hearing, the Panel lauded Defendants passion and activism and
specifically stated it did not intend it's Order to prevent Defendants from getting back to
work. Well, that is exactly what this Order and the Administrative Committee have done.
This disciplinary order lacks any basis in law and will be reversed by the Court of
Appeals. Insufficient evidence also exists to support the disciplinary finding under Rule

8 regarding prejudice to the administration of justice. Defendant asks the Panel to vacate
the disciplinary findings as insufficient as a matter of law.

Respectfully submitted, this the 3rd day of October, 2016.

Jennifer Nicole Foster, Pro Se
259 Westover Alley
Asheville NC 28801
Telephone: (828) 407-6588

The undersigned does hereby certify that she did by electronic mail delivery this date, the
enclosed Rule 59(e) Motion to Alter or Amend to the following email addresses: Dottie
Miani, Clerk
The undersigned does hereby certify that she did by electronic mail delivery this date, the
enclosed Rule 59(e) Motion to Alter or Amend to the following email addresses: Barry
McNeill bmcneill@ncbar.go
A hard copy was placed in the U.S. Mail, return certification requested by today's date to
Disciplinary Hearing Commission, North Carolina State Bar, 217 E. Edenton Street,
Post Office Box 25908, Raleigh NC 27611-5908,
and Barry S. McNeill, Deputy Counsel, N.C. State Bar, P.O. Box 25908, Raleigh, NC

This the 3rd day of October, 2016.

Jennifer Nicole Foster, Pro Se
259 Westover Alley
Asheville NC 28801
Telephone: (828) 407-6588