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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
In Re: MARK KEY, Attorney
Filed: 17 April 2007
1. Jurisdiction--subject matter--same argument already presented and dismissed
Although respondent attorney contends the trial court erred by concluding it had subject
matter jurisdiction to enter a judgment of attorney discipline, this argument is virtually identical to
his first argument presented in a prior Court of Appeals case and is dismissed for the same reasons
as in that opinion.
2. Attorneys--violation of Rules of Professional Conduct--withdrawal from representation
The trial court did not err by concluding that respondent attorney violated Rule 1.16 of the
Revised Rules of Professional Conduct, because: (1) this argument violates N.C. R. App. P. 28(b)(6)
by failing to have any references to the assignments of error upon which it is based; (2) even if this
argument had been properly preserved, there was competent evidence in the record to support the
trial court's finding that on 10 October 2005, respondent did willfully fail to appear and remain at
a scheduled court hearing in which he was counsel of record; (3) respondent's telephone call to the
clerk's office of his intent to withdraw from representation based on the fact that he was not paid was
not compliant with applicable law requiring notice to or permission of a tribunal when terminating
a representation; and (4) respondent gave no notice to his client of his intent to withdraw until they
were at the courthouse for the 10 October 2005 hearing, which did not comply with the requirement
of reasonable warning before withdrawal.
3. Judges_recusal--bias or prejudice-- absence of motion by a party
The trial judge did not exhibit bias and prejudice toward respondent attorney, and was not
required to recuse himself ex mero motu, because: (1) respondent makes no argument, nor does he
cite any authority, for the proposition that the judge should have recused himself ex mero motu, and
thus this portion of the argument is deemed abandoned; and (2) while Canon 3D of the Code of
Judicial Conduct encourages a judge to recuse himself in cases where his impartiality may
reasonably be questioned upon his own motion, he is not required to do so in the absence of a motion
by a party.
4. Attorneys_civil discipline order--suspension of attorney's right to practice in county
The trial court did not abuse its discretion by providing as a sanction the suspension of the
right of an attorney to practice in the trial courts of Wake County for a period of one year, because:
(1) the State Bar has authority to discipline attorneys under the provisions of Chapter 84 of the
General Statutes whereas the trial judges have inherent powers of the court to deal with its attorneys;
and (2) although the sanction was severe, respondent willfully abandoned his client at her probation
hearing on 10 October 2005; he refused to represent her when confronted with his ethical and legal
obligations by the trial judge; he made comments questioning the authority of the trial court, he
stated that he didn't give a s_ what the trial judge did; and he behaved rudely toward the
Appeal by respondent from judgment entered 16 November 2005 by
Judge Donald W. Stephens in Wake County Superior Court. Heard in
the Court of Appeals 12 December 2006.
Mark A. Key, pro se respondent-appellant.
David R. Johnson, Deputy Counsel to the North Carolina State
Bar, for appellee.
A trial court has the inherent power to discipline attorneys
separate and apart from the North Carolina State Bar. The sanction
of suspension of the right of an attorney to practice in the trial
courts of Wake County for a period of one year was not an abuse of
discretion by the trial judge.
The facts of this case are recited in detail in the opinion
for the case State v. Key, 182 N.C. App. __, __ S.E.2d __ (2007),
and are not repeated here. This case is the appeal of the Civil
Judgment of Attorney Discipline, rather than the Judgment of
Criminal Contempt. Judge Stephens found that the conduct of
attorney Mark Anthony Key (Key) was in violation of Rule 1.16 of
the Revised Rules of Professional Conduct. The Judgment of
Attorney Discipline suspended Key's privilege of appearing as
counsel in the District and Superior Courts of Wake County for one
year. From this judgment, Key appeals.
I: Subject Matter Jurisdiction
 In his first argument, Key contends that the trial court
did not have subject matter jurisdiction to enter a judgment of
attorney discipline because Tammy Faircloth's (Faircloth)absconder violation was resolved before Judge Jones on 8 August
2005. Therefore, he argues there was nothing for Judge Haigwood to
hear on 10 October 2005. We disagree.
This argument is virtually identical to Key's first argument
presented in State v. Key, 182 N.C. App. __, __ S.E.2d __ (2007).
For the reasons stated in that opinion, we find this argument to be
II: Rules of Professional Conduct
 In his second argument, Key contends that he did not
violate Rule 1.16 of the Revised Rules of Professional Conduct
that the trial court erred in finding a violation. We disagree.
We note initially that this argument is unaccompanied by any
references to the assignments of error upon which it is based, in
violation of N.C. R. App. P. 28(b)(6). The pertinent portion of
this rule reads as follows:
Each question shall be separately stated.
Immediately following each question shall be a
reference to the assignments of error
pertinent to the question, identified by their
numbers and by the pages at which they appear
in the printed record on appeal. Assignments
of error not set out in the appellant's brief,
or in support of which no reason or argument
is stated or authority cited, will be taken as
N.C. R. App. P. 28(b)(6).
This argument is deemed abandoned. State v. Elliott
, 360 N.C.
400, 628 S.E.2d 735 (2006); State v. McNeill
, 360 N.C. 231, 624
S.E.2d 329 (2006). Even had this argument been properly preserved, it has no
merit. The relevant portions of N.C. Rev. R. Prof. Conduct 1.16
are as follows:
Rule 1.16 Declining or terminating representation.
(b) Except as stated in paragraph (c), a
lawyer may withdraw from representing a
(1) withdrawal can be accomplished
without material adverse effect on
the interests of the client, or: . .
(6) the client fails substantially to
fulfill an obligation to the lawyer
regarding the lawyer's services and
has been given reasonable warning
that the lawyer will withdraw unless
the obligation is fulfilled[.]
(c) A lawyer must comply with applicable law
requiring notice to or permission of a
tribunal when terminating a
representation. When ordered to do so by
a tribunal, a lawyer shall continue
representation notwithstanding good cause
for terminating the representation.
N.C. Rev. R. Prof. Conduct 1.16
Key's argument is that the evidence presented was so
confusing, unclear and contradictory that it could not support
the trial court's decision. He then argues that the evidence, in
fact, supports his position that no violation of Rule 1.16 took
In reviewing a trial court's findings of fact, our review is
limited to whether there is competent evidence in the record to
support the findings. State v. Ripley, 360 N.C. 333, 626 S.E.2d
289 (2006); State v. Fowler, 353 N.C. 599, 548 S.E.2d 684 (2001). It is irrelevant that the evidence would also support contrary
findings of fact. State v. Phillips, 151 N.C. App. 185, 565 S.E.2d
697 (2002). We note that Key does not argue that there is no
competent evidence to support Judge Stephens' findings, only that
there is evidence to support what Key asserts to have been the
Key first argues that with respect to the absconder violation,
he never had an attorney-client relationship with Faircloth, and
therefore there was no need for him to withdraw from
representation. We find there to be ample competent evidence in
the record to support Judge Stephens' finding that Key made a
general appearance on behalf of Faircloth at the 12 September 2005
hearing before Judge Bullock. This includes Key's own testimony
where he freely admitted that by obtaining a continuance on 12
September 2005 that he became Faircloth's attorney of record.
Key next asserts that even if he made a general appearance, he
nonetheless lacked the requisite intent to violate Rule 1.16(c).
However, Key makes no argument pertaining to his intent, other than
the bare assertion, and as such, this argument is deemed abandoned.
We further hold that there was competent evidence in the
record to support Judge Stephens' finding that on October 10, 2005
he did wilfully fail to appear and remain at a scheduled court
hearing in which he was counsel of record.
Key next argues that if he made an appearance that he complied
with Rule 1.16 by giving the court notice of his intent to withdraw
in his telephone calls with the clerk on 10 October 2005. Ineffect, Key argues that when he told the clerk that he did not
represent Faircloth because he had not been paid, this constituted
notice to the court of his intent to withdraw from representation.
We hold that this telephone call, in which Key merely denied
representation, was not compliant with applicable law requiring
notice to or permission of a tribunal when terminating a
representation. N.C. Rev. R. Prof. Conduct 1.16(c). We further
note that Key gave no notice to Faircloth of his intent to withdraw
until they were at the Wake County courthouse for the 10 October
2005 hearing. This clearly did not comply with the requirement of
reasonable warning before withdrawal. Further, we hold that
there is sufficient competent evidence in the record to support
Judge Stephens' finding that Key's conduct was in violation of Rule
1.16. This argument is without merit.
III: Judicial Recusal
 In his third argument, Key contends that Judge Stephens
exhibited bias and prejudice towards Key, and should have recused
himself, ex mero motu. We disagree.
We first note that Key makes no argument, nor does he cite any
authority, for the proposition that Judge Stephens should have
recused himself ex mero motu. As such, the portion of the argument
pertaining to the duty to recuse ex mero motu is deemed abandoned.
We note that the Code of Judicial Conduct Canon 3, 2007 Ann.
R. N.C. 445-47, does not impose an affirmative duty upon a trial
judge to disqualify himself or herself, upon their own motion.
Canon 3C(1) provides that: On motion of any party, a judge shoulddisqualify himself/herself in a proceeding in which the judge's
impartiality may reasonably be questioned[.] Id.
at 446. Canon
3D provides that [n]othing in this Canon shall preclude a judge
from disqualifying himself/herself from participating in any
proceeding upon the judge's own initiative. Code of Judicial
Conduct Canon 3D, 2007 Ann. R. N.C. 447
. While this provision
certainly encourages a judge to recuse himself or herself in cases
where his or her impartiality may reasonably be questioned upon
their own motion, they are not required to do so in the absence of
a motion by a party. Code of Judicial Conduct Canon 3, 2007 Ann.
R. N.C. 446
Key's argument is based upon the cases of In re Robinson, 37
N.C. App. 671, 247 S.E.2d 241 (1978) and In re Dale, 37 N.C. App.
680, 247 S.E.2d 246 (1978), and upon language contained in the
Amended Show Cause Order entered by Judge Stephens on 28 October
In each of these cases, the respondent-attorney moved that the
trial judge recuse himself, thus preserving the issue for appellate
review. In the instant case, Key made no motion for Judge Stephens
to recuse himself, and under N.C. R. App. P. 10(b)(1) this issue is
not preserved for our review. State v. Love, 177 N.C. App. 614,
627-28, 630 S.E.2d 234, 243 (2006). Even though this case is a
civil proceeding, we hold that Love is controlling on this issue.
Further, even if this issue were properly preserved for
appellate review, it would be without merit. See State v. Key, 182
N.C. App. __, __ S.E.2d __ (2007).
IV: Reasonable Sanction
 In his fourth argument, Key contends that the sanction
imposed by the trial court does not comply with the reasonableness
standard enunciated by the North Carolina Supreme Court in the case
of N.C. State Bar v. Talford
, 356 N.C. 626, 576 S.E.2d 305 (2003)
We first note that Key's assignment of error does not comport
with his argument in his brief, which subjects this argument to
dismissal. His assignment of error reads: The court's ruling in
paragraph #24 on the grounds that there was insufficient evidence
to support it, the findings of fact does [sic] not support it and
it was contrary to law. N.C. R. App. P. 10(c)(1) provides that:
An assignment of error is sufficient if it
directs the attention of the appellate court
to the particular error about which the
question is made, with clear and specific
record or transcript references.
Key's assignment of error does not direct this Court to the
particular error complained of, nor does it contain any reference
to the record or transcript.
While it is highly questionable
whether this assignment of error bears any relationship to Key's
we decline to dismiss this assignment of error for
violations of the North Carolina Rules of Appellate Procedure.
Key argues that since Judge Stephens imposed the sanction of
suspension of Key's ability to practice law in Wake County, he was
required to make findings of fact concerning (1) the harm or
potential harm created by the attorney's misconduct, and
demonstrable need to protect the public[,] as required underTalford
at 637-8, 576 S.E.2d at 313 (emphasis in original). He
contends that in the absence of such findings, the sanction imposed
was unreasonable and inappropriate.
Key misapprehends the nature of the proceedings that took
place before Judge Stephens. Talford
was a proceeding before the
North Carolina State Bar, not a proceeding where a trial court was
exercising its inherent authority to discipline an attorney.
The State Bar has authority to discipline attorneys pursuant
to the provisions of Chapter 84 of the General Statutes. The
courts have the inherent authority to discipline attorneys. Beard
v. N.C. State Bar
, 320 N.C. 126, 130, 357 S.E.2d 694, 696 (1987).
Inherent power is that which a court
necessarily possesses irrespective of
constitutional provisions. Such power may not
be abridged by the legislature and is
essential to the court's existence and the
orderly and efficient administration of
State v. Buckner,
351 N.C. 401, 411, 527 S.E.2d 307, 313 (2000)
(citation omitted). The existence of this inherent authority of
the courts to discipline attorneys was recognized by the General
Assembly in N.C. Gen. Stat. . 84-36, which provides: Nothing
contained in this Article shall be construed as disabling or
abridging the inherent powers of the court to deal with its
[T]he proper standard of review for an act of the trial court
in the exercise of its inherent authority is abuse of discretion.
Couch v. Private Diagnostic Clinic
, 146 N.C. App. 658, 663, 554
S.E.2d 356, 361 (2001). An abuse of discretion is a decisionmanifestly unsupported by reason or one so arbitrary that it could
not have been the result of a reasoned decision. Briley v.
, 348 N.C. 537, 547, 501 S.E.2d 649, 656 (1998).
Sanctions available to a trial court in the discipline of an
citations for contempt, censure, informing the
North Carolina State Bar of the misconduct,
imposition of costs, suspension for a limited
time of the right to practice before the
court, suspension for a limited time of the
right to practice law in the State, and
at 676, 247 S.E.2d at 244. We review the appropriateness
of the sanction imposed under an abuse of discretion standard.
at 663, 554 S.E.2d at 361; Dunn v. Canoy
, 180 N.C. App. 30,
48, 636 S.E.2d 243, 255 (2006).
Clearly, the sanction imposed in this case of a one year
suspension from practicing law in Wake County is a severe one. In
light of the facts that Key willfully abandoned Faircloth at her
probation hearing on 10 October 2005
, refused to represent her when
confronted with his ethical and legal obligations by Judge
Haigwood, made comments questioning the authority of the trial
court, stated that he didn't give a s--- what he does (referring
to Judge Haigwood), and behaved rudely towards the courtroom clerk,
we cannot say that the sanction imposed by Judge Stephens was an
abuse of discretion.
This argument is without merit.
Judges WYNN and HUNTER concur.
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