The North Carolina State Bar v. Key, COA06-1666-2.

• Decision Date: 04 March 2008
• Docket Number: No. COA06-1666-2.,COA06-1666-2.
• Citation: 658 S.E.2d 493
• Parties: THE NORTH CAROLINA STATE BAR, Plaintiff v. Mark A. KEY, Attorney, Defendant.
• Court: North Carolina Court of Appeals

658 S.E.2d 493

THE NORTH CAROLINA STATE BAR, Plaintiff v. Mark A. KEY, Attorney, Defendant.

No. COA06-1666-2.

Court of Appeals of North Carolina.

March 4, 2008.

On rehearing of appeal from an Order of Discipline entered 8 June 2006 by the Disciplinary Hearing Commission of the North Carolina State Bar. Originally heard in the Court of Appeals 30 August 2007.

On 22 January 2008, defendant filed a Petition for Rehearing of this case, which was decided with a published opinion filed 18 December 2007. On 13 February 2008, we allowed that petition for the limited purpose of considering defendant's challenge to finding of fact 26 of the Order of Discipline. The following opinion supersedes and replaces the opinion filed on 18 December 2007.

The North Carolina State Bar, by Deputy Counsel David R. Johnson, for plaintiff-appellee.

Mark A. Key, pro se.

STEELMAN, Judge.

Because there was substantial evidence from which the Disciplinary Hearing Commission of the North Carolina State Bar could conclude that defendant violated N.C. Rev. R. Prof. Conduct 1.16, 1.3, and 8.4 in violation of the terms of a 2003 Consent Order of Discipline, we affirm the Disciplinary Hearing Commission.

I: Procedural History

On 9 December 2005, the North Carolina State Bar ("Bar") filed a motion for Order to Show Cause against defendant Mark Anthony Key ("Key"), alleging that Key had failed to comply with a 2003 Consent Order of Discipline by violating the North Carolina Revised Rules of Professional Conduct. Key is an attorney whose license to practice law in the State of North Carolina was suspended for two years in 2003. That suspension had been stayed for three years. The facts upon which the Show Cause order was based arose from Key's representation of Tammy Faircloth on a series of probation violation matters in the Superior Court of Wake County in 2005.

This matter was heard by the Disciplinary Hearing Commission ("DHC" or "Commission") of the State Bar on 5 May 2006. On 26 June 2006, the DHC entered an Order of Discipline, lifting the stay of the suspension of Key's license for a period of ninety days. Key appealed.

A panel of this Court heard the matter on 30 August 2007. In an opinion filed 18 December 2007, the panel affirmed the Order of Discipline. Key filed a petition for re-hearing on 22 January 2008. His petition was allowed for the limited purpose of reviewing Key's challenge to finding of fact 26 of the Order of Discipline.

II: Factual Background

On 8 August 2005, Key appeared in the Superior Court of Wake County, representing Faircloth on two probation violations. At the time of the hearing, Faircloth was served with a third probation violation, for absconding supervision ("the absconder violation"). Key requested that Judge Abraham Penn Jones "consider disposing of [all] charges in one order." Although Key thought that all three charges had been resolved, Judge Jones' written order did not include a disposition of the absconder violation. In late August, Faircloth's probation officer told her that a hearing had been scheduled for 12 September 2005. Faircloth relayed this information to Key, who agreed to appear on Faircloth's behalf.

Faircloth and Key appeared before Judge Stafford G. Bullock on 12 September 2005, where Key admitted the absconder violation on her behalf. Key did not in any manner limit his representation. When the court refused to provide assurances that it would follow a recommendation of the probation officer, Key moved to continue Faircloth's case. The motion was granted, and the hearing was rescheduled for 10 October 2005. Following the continuance, Faircloth agreed to pay Key an additional $200 fee to represent her on the absconder violation.

In preparation for the 10 October 2005 hearing, Key issued a subpoena for a probation officer from Cumberland County to be present at the hearing. On 10 October 2005, Faircloth and her probation officer were present in the courtroom for calendar call. In the common area outside the courtrooms, Faircloth told Key that she did not have the $200 for his fee. Key then released the Cumberland County probation officer from the subpoena, advising the officer that he had not been "fully retained" and would not be representing Faircloth. Shortly thereafter, Key left the Wake County Courthouse to attend a conference at his daughter's school.

When Faircloth's case was called for hearing, Key was not present. Judge Thomas D. Haigwood instructed the courtroom clerk, Sonya Clodfelter, to call Key and tell him that his presence was required in court to resolve Faircloth's absconder violation. After a series of phone calls between Clodfelter and Key, in which Key adamantly stated that he did not represent Faircloth, Judge Haigwood agreed to continue the matter until 9:30 a.m. on 11 October 2005. When Clodfelter called Key back to inform him of the continuance, he became angry and, when told that the judge may issue a show cause order or a bench warrant, stated that "he didn't give a s____" what the judge did.

On 11 October 2005, Key appeared before Judge Haigwood. Both Faircloth and her probation officer also returned to court that morning for the rescheduled hearing. Judge Haigwood continued the matter and issued an order directing Key to show cause why he should not be held in contempt of court. A second show cause order was subsequently issued on 31 October 2005 directing Key to show cause why he should not be subject to attorney discipline by the court for violating provisions of the Revised Rules of Professional Conduct.

On 15 November 2005, following a two-day hearing, Judge Donald W. Stephens entered two orders, one of criminal contempt and one of attorney discipline. Key appealed these matters to this Court. See State v. Key, 182 N.C.App. 624, 643 S.E.2d 444 (affirming the trial court's contempt judgment), disc. rev. denied, 361 N.C. 433, 645 S.E.2d 382 (2007), ___ N.C. ____, 649 S.E.2d 398 (2007); In re Key, 182 N.C.App. 714, 643 S.E.2d 452 (affirming the trial court's order of discipline and sanctions), disc. rev. denied, 361 N.C. 428, 648 S.E.2d 506 (2007).

III: Standard of Review

By statute, judicial review of a disciplinary order is limited to "matters of law or legal inference." N.C. Gen.Stat. § 84-28(h) (2005). In examining the record, the reviewing court applies a "whole record" test, which requires this Court to consider the evidence which supports the Commission's findings and "also take into account the contradictory evidence or evidence from which conflicting inferences can be drawn." N.C. State Bar v. DuMont, 304 N.C. 627, 643, 286 S.E.2d 89, 98 (1982) (citation omitted).

Under the whole record test there must be substantial evidence to support the findings, conclusions and result. The evidence is substantial if, when considered as a whole, it is such that a reasonable person might accept as adequate to support a conclusion.

Id., 286 S.E.2d at 98-99 (internal citations omitted). However, the mere presence of contradictory evidence does not eviscerate challenged findings, and the reviewing court may not substitute its judgment for that of the committee. See N.C. State Bar v. Leonard, 178 N.C.App. 432, 439, 632 S.E.2d 183, 187 (2006), disc. rev. denied, 361 N.C. 220, 641 S.E.2d 693 (2007); N.C. State Bar v. Nelson, 107 N.C.App. 543, 550, 421 S.E.2d 163, 166 (1992), aff'd per curiam, 333 N.C. 786, 429 S.E.2d 716 (1993).

In N.C. State Bar v. Talford, 356 N.C. 626, 576 S.E.2d 305 (2003), the Supreme Court set forth a three-step process to determine "if the lower body's decision has a `rational basis in the evidence.'" Id., 356 N.C. at 634, 576 S.E.2d at 311.

(1) Is there adequate evidence to support the order's expressed finding(s) of fact?

(2) Do the order's expressed findings(s) of fact adequately support the order's subsequent conclusion(s) of law? and

(3) Do the expressed findings and/or conclusions adequately support the lower body's ultimate decision?

Id. Talford also requires that the evidence used by the DHC in making its findings "rise to the standard of clear, cogent, and convincing." Talford, 356 N.C. at 632, 576 S.E.2d at 310 (quotations and citations omitted).

Since the third prong of Talford is not at issue in the case sub judice, we limit our review to whether adequate and substantial evidence, rising to the level of clear, cogent, and convincing, supports the order's expressed findings of fact, and, if so, whether those findings adequately support the order's conclusions of law. Talford, 356 N.C. at 632, 634, 576 S.E.2d at 310-11.

IV. Duty of Attorney in Criminal Cases

An attorney's duty to a client in a criminal case is set forth in N.C.G.S. § 15A-143:

An attorney who enters a criminal proceeding without limiting the extent of his representation pursuant to G.S. 15A-141(3) undertakes to represent the defendant for whom the entry is made at all subsequent stages of the case until entry of final judgment, at the trial stage.

Id. (2005).

It is well-settled that an attorney's responsibilities extend not only to his client but also to the court. Smith v. Bryant, 264 N.C. 208, 211, 141 S.E.2d 303, 306 (1965).

An attorney not only is an employee of his client but also is an officer of the court. This dual relation imposes a dual obligation. To the client who refuses to pay a fee the attorney must give specific and reasonable notice so that the client may have adequate time to secure other counsel and so that he may be heard if he disputes the charge of nonpayment. To the court, which cannot cope with the ever-increasing volume of litigation unless lawyers are as concerned as is a conscientious judge to utilize completely the time of the term, the lawyer owes the duty to perfect his withdrawal in time to prevent the necessity of a continuance of the case.

Id. (internal citations omitted). See also State v. Crump, 277 N.C. 573, 591, 178 S.E.2d 366, 377 (1971) (attorney has an independent obligation to the court to...