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TIIE NORTH CAROLINA STATE BAR, )
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Plaintiff )
) RULE 60(b} MOTION
v. )
)
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ELIZABETH J. WOLFENDEN, Attorney, )
)
Defendant )
)

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
court, that an attorney with a license to do so would go in open
court and say anything that's the slightest bit deceptive to address
to the court is something that is unheard of, and just absolutely
unacceptable behavior.
And, in addition to that, there are other factors in this case, and
I'm not reciting these as factors we found, but the facts that we
found.
We found that there was a pattern throughout this of Ms.
Wolfenden manipulating a particularly vulnerable segment of the
population that she served because, as several of the witnesses
said, when you have a domestic client, they are a domestic client.
There are by definition distressed, distraught, and not necessarily
rational.
And there was a clear pattern of manipulating such clients that
was shown.
This pattern, in the evidence we found, went back at least until
2005 and the last acts we've got evidence of were Spring of2009.
So over the course of four years this continued, and although there
was a lot of separate incidences of very similar conduct, there were
also different ways that Ms.Wolfenden, as we've already found,
violated the Rules of Professional Conduct, and did detriment to
our judicial system.
Her conduct did result in actual significant harm to her clients
and -- in a lot of ways, but particularly in the form of vastly
increased legal fees; significant harm to the adverse parties and
their counsel, as Ms. Davis has testified and as Ms. Lewis has
testified, and Mr. Long, that, you know, in terms of sometimes
forgiving legal fees and in terms of just emotion distress; and an
actual significant harm to the judges that she appeared in front of
and just to the -- to the system, to the administration of justice.
This conduct created obstruction of the judicial system, and
the disruption of it that resulted in her clients and other clients not
being meted out justice in the ay that the system was established to
do.
There was such an abject disrespect of our judiciary and the
judicial system shown by Ms. Wolfenden, and this was particularly
-- we were particularly bothered by the fact that the times that this
was done in open court in the presence of the general public.
We agree and find that it is of essential and basic importance
to the operation of the judicial system and to, I think as several of
the witnesses said, is just to an orderly society that clients, that the
general public, that witnesses, that jurors, that everybody walk into
a courtroom with absolute confidence that the judge sitting up on
the bench is going to be fair to everybody involved.

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And Ms. Wolfenden, it appears, set about to destroy that
confidence, 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 our
judicial system, and harm to that integrity, at least to the
appearance of the integrity of that system.
As somebody had testified, there seemed to be in her
representation of her clients almost an obsession of elevating the
form or the procedure over the substance that resulted in a delay or
maybe even an absolute denial of due process and of justice and
fairness to her clients.
There was such a disruption of the normal means of
communication that, again, are essential to the operations of what
each of us as lawyers need to do every day and what the judges
need to do every day because of Ms. Wolfenden's, as Judge
Buckner put it, mischaracterization, recharacterization of
everything that everybody said, that the normal means of
communication were not available to those involved in any case
involving Ms. Wolfenden.
And, again, it appears that there was at least if not an
intentional intent to undermine the confidence in the judicial
system, there was a willingness to take action that she clearly could
have foreseen would result in that confidence being undermined.
In light of all that, over the course of the many years where
judges were admonishing her, warning her, sanctioning her, she
never -- there's no indication in any of the materials we have that
she ever once took ownership of her misconduct or of the
consequences of her misconduct. Certainly, there has not been an
acknowledgment that there was a violation of any of the Rules of
Professional Conduct, or even that her misconduct was just
improper
And in light of those findings, we have examined the factors
to consider and we have found these factors to be present and have
weighed -- these are the factors we have weighed in determining
the discipline.
And I'm sorry, I'm not going to have them in any particular
order, and I refer to the Rule, I can help with that afterwards if
there's any question. But here are the factors that clearly are
present in this matter.
Ms. Wolfenden clearly has shown an intent to commit acts
where 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 legal
profession.

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Her actions have had a negative impact on the administration of
justice.
Her actions have clearly impaired her client's ability to achieve
their goals in the representation.
She has involved herself in acts of dishonesty,
misrepresentation, deceit and fabrication.
And additionally we fmd circumstances that clearly reflect her
propensity to be dishonest, her lack of honesty, lack of
trustworthiness and lack of integrity.
We find that there was clearly a pattern of misconduct. There
have been multiple defenses, both in terms of the same type of
offense being repeated and different types of offenses being
interspersed.
In this proceeding before this Commission, particularly in regard
to Wolfenden's deposition testimony she has submitted -- she has
made false statements and submitted false evidence.
She has refused to acknowledge the wrongful nature of her
conduct.
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 took
advantage of that vulnerability.
We find that her conduct has had a negative impact on third
parties. In this case we have viewed third parties as being the
judges 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 been
shown in some of these instances a dishonest and a selfish motive
for the misconduct that's been involved.
And under just other factors, we found that just across the board
that the sum impact of this conduct has been demoralizing for
everybody involved in the judicial system, in Orange County
particularly, in terms of clients, court officials, members of the
judiciary and the bar.
We have weighed the various discipline that's available. We
have considered an active suspension, a stayed suspension, and
disbarment.
And I think the other members of the Panel may want to speak to
this. We have, after some discussion decided that there is not a
way to protect the members of the general public from this type of
conduct by this individual as long as she has a license to practice
law 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

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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

1 See brief in Harrington v. Wall attached hereto as Exhibit C detailing the misconduct and obstruction of justice by
the 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.

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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 her
motion to continue on 8 July 2010, which resulted in Defendant presenting only a small portion of her case on 23
April 2010. The denial of her motion to continue coupled with Plaintiffs witnesses' fraud was highly prejudicial to
Defendant.

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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:

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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 Se


1829 E. Franklih St., Bldg. 600
Chapel Hill, NC 27514
NC Bar# 29521
PH: (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 25908
Raleigh, NC 27611-5908

David R. Johnson, Esq.


P.O. Box 25908
Raleigh, NC 27611-5908

This the 10th day of January, 201 L

enden, Defendant, Pro Se


1829 E. Frankl' St., Bldg. 600
Chapel Hill, NC 27514
PH: (919) 932-7680
bwolfelaw(a),att.net