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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.
STATE OF NORTH CAROLINA v. MARK ANTHONY KEY
Filed: 17 April 2007
1. Attorneys_abandonment of client_criminal contempt_jurisdiction
The trial court had subject matter and personal jurisdiction to enter a judgment of
criminal contempt against an attorney who abandoned his client. Although the attorney
contended that the client's matter had previously been resolved and that there was nothing for the
judge to hear at the hearing at which the he did not appear, there was ample evidence in the
record to support the trial court's findings as to what transpired. The trial court's findings are
binding on appeal if supported by competent evidence.
2. Attorneys_abandonment of client_criminal contempt_motion to dismiss denied
The trial court did not err by denying a motion to dismiss a contempt proceeding against
an attorney who abandoned a client. The attorney was present at the courthouse and left, the
family appointment to which he pointed was later in the day and had nothing to do with his
abandonment of his client, and he did not give a specific and reasonable notice of his intent to
withdraw based upon nonpayment of fees. It is also clear that his conduct interfered with the
business of the Superior Court; a matter which could have been disposed of within five minutes
resulted in a significant expenditure of time and effort by the court, its staff, and its officers over
a two-day period.
3. Attorneys_abandonment of client_criminal contempt_no bias by judge
A show cause order in a contempt proceeding against an attorney did not demonstrate
bias by the judge and a need for recusal ex mero motu, assuming the issue was properly
preserved for appeal. Considered in its entirety, the amended show cause order reflects a careful
and conscientious effort to apprise defendant of the specific instances of conduct that were
alleged to be the basis of contempt, and the statutes and rules that may have been violated. The
order does not reflect actual or perceived bias.
4. Contempt_criminal_sanction of attorney
A contempt sanction imposed on an attorney for abandoning a client that consisted of a
jail sentence suspended upon certain conditions, including not practicing in the courts of that
county for one year, was not unreasonable. It was within the limits of the law and defendant did
not argue that it constituted an abuse of discretion. The order for attorney discipline which was
also entered is the subject of a separate appeal.
Appeal by defendant 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.
Attorney General Roy Cooper, by Assistant Attorney General
Derrick C. Mertz, for the State.
Mark A. Key, pro se defendant-appellant.
The abandonment of a client outside the courtroom prior to a
probation violation hearing by an attorney, together with his
subsequent refusal to represent the client constituted willful
substantial interference with the business of the court and
supported the trial court holding the attorney in contempt of
Mark Anthony Key (Key) is an attorney licensed to practice
law in the State of North Carolina. On 8 August 2005, Key appeared
before Judge Abraham Penn Jones in the Superior Court of Wake
County, representing Tammy Faircloth (Faircloth) on two probation
violations. At the time of the hearing, Faircloth was served with
a third probation violation, for absconding supervision, and was
taken into custody for that violation. Key thought that all three
probation violations had been resolved before Judge Jones on 8
August 2005. However, Judge Jones' written order did not dispose
of the absconder violation. The notice of the absconder violation
set the matter for hearing on 12 September 2005.
Faircloth and Key appeared before Judge Stafford G. Bullock on
12 September 2005 on the absconder violation. Key appeared at the
hearing as attorney for Faircloth and did not in any manner limit
his representation. When Judge Bullock refused to give Key
assurances that he would follow a recommendation of the probation
officer, Key moved to continue Faircloth's case. This motion was
granted, and the hearing was rescheduled for 10 October 2005. Following the 12 September 2005 hearing, Key advised Faircloth that
he was charging her an additional $200 fee for representing 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. Key signed the subpoena as Faircloth's
attorney. On 10 October 2005, the absconder violation was
calendared before Judge Thomas D. Haigwood. Faircloth and Key met
in the hall outside of the courtroom. Key demanded his $200 fee.
Faircloth did not have the money. Key then released the probation
officer from the subpoena, after he had driven from Fayetteville to
Raleigh for the hearing, advised him that he had not been fully
retained, and would not represent Faircloth. Key left the Wake
County Courthouse without advising Faircloth that he would not
represent her. Rather, he left it to the probation officer to
advise Faircloth. When advised of this, Judge Haigwood instructed
the courtroom clerk to call Key and tell him that his presence was
required in court to resolve Faircloth's absconder violation. Key
told the clerk that he had a parent-teacher conference that
afternoon and was unavailable. Judge Haigwood agreed to continue
the matter until 9:30 a.m. on 11 October 2005. When this was
communicated to Key, he adamantly stated that he did not represent
Faircloth, and I don't see where the Judge has the authority to
tell me to be there whenever I haven't been paid or retained in
this case. Key then inquired of the clerk, what would the judge
do if I don't show up? The clerk advised him that the judgewould probably issue a show cause order or an order for arrest.
Key responded, Well, he doesn't have the authority, and I don't
give a s--- what he does. This terminated the telephone
Faircloth's matter came on before Judge Haigwood on 11 October
2005, with Key present. Judge Haigwood found that Key made a
general appearance in the absconder violation case by continuing
the case on 12 September 2005 and issuing a subpoena for the
scheduled 10 October 2005 hearing. He then continued Faircloth's
case and directed that Key appear before the Senior Resident
Superior Court Judge for the Tenth Judicial District to show cause
why he should not be subject to disciplinary action and/or punished
for contempt. Judge Haigwood placed the case before Judge Donald
W. Stephens because of an earlier incident involving Key in
September 2005. This hearing was set for 31 October 2005.
Following receipt of this order, Judge Stephens issued an
amended show cause order, which set forth in detail the basis for
the alleged criminal contempt, and also advised Key that there was
probable cause to believe that his conduct may subject him to
discipline for violations of the Revised Rules of Professional
Conduct for Attorneys. The amended order set the matter for
hearing before Judge Stephens on 14 November 2005.
As a result of the hearing on 14 November 2005, Judge Stephens
found Key guilty of criminal contempt of court and sentenced him to
thirty days in the Wake County jail. This sentence was suspended
for eighteen months, and Key was placed on probation on conditionthat he not violate any law of this State, not speak profanely to
any court official, and not appear as an attorney in any matter in
the District or Superior Courts of Wake County for one year.
Judge Stephens entered a separate order of attorney discipline
for violations of the Revised Rules of Professional Conduct. Key
filed separate appeals from the two orders. This appeal pertains
only to criminal contempt.
 In his first argument, Key contends that the trial court
lacked subject matter jurisdiction and personal jurisdiction to
enter the judgment finding him in contempt of court because
Faircloth's absconder violation was resolved before Judge Jones on
8 August 2005, and there was nothing for Judge Haigwood to hear on
10 October 2005. We disagree.
If a trial court's finding is supported by competent evidence
in the record, it is binding upon an appellate court, regardless of
whether there is evidence in the record to the contrary . State v.
Phillips, 151 N.C. App. 185, 188, 565 S.E.2d 697, 700 (2002). In
this case, there is ample evidence in the record to support the
trial court's findings as to what transpired on 8 August 2005, 12
September 2005 and 10 October 2005.
Regardless of whether Key believed that Faircloth's absconder
violation was resolved on 8 October 2005, evidence shows that Key
was aware after that date that the matter was not resolved. Judge
Jones' order arising out of the 8 August 2005 hearing did not
dispose of the absconder violation. The evidence shows that Keymade a general appearance on behalf of Faircloth at the 12
September 2005 hearing before Judge Bullock and sought a
continuance. At that hearing, Key certainly knew that the matter
was not resolved. Further, in preparation for the 10 October 2005
hearing, Key signed and issued a subpoena for a probation officer
from Fayetteville as attorney for Faircloth. This evidence
supports the findings in Judge Stephens' order that the absconder
violation was not resolved before Judge Jones, and was pending
before Judge Haigwood on 10 October 2005.
Key's argument is essentially that this Court should accept
his testimony that the absconder violation was resolved before
Judge Jones. Where there is competent evidence supporting the
findings of fact of the trial court, this Court cannot reweigh the
evidence and make its own findings, but is bound by the trial
court's findings. See Phillips, 151 N.C. App. 185, 565 S.E.2d 697.
We find Key's argument on jurisdiction to be disingenuous at best,
and without merit.
II: Denial of Key's Motion to Dismiss
 In his second argument, Key argues that the trial court
erred in denying his motion to dismiss the contempt proceedings.
On a hearing for criminal contempt, the State must prove all
of the requisite elements under the applicable statute, beyond a
reasonable doubt. In this case, Key was noticed in the show cause
order for two specific instances of conduct: (1) falsely
representing to the court, in violation of G.S. 5A-11(a)(2), thathe did not represent the defendant, Tammy Faircloth, in a probation
matter; and (2) intentionally failing to appear and remain, in
violation of G.S. 5A-11(a)(7), at the date and time set for the
aforesaid probation hearing to represent his client[.] Judge
Stephens' judgment held defendant in contempt of court based only
upon a violation of N.C. Gen. Stat. . 5A-11(a)(7).
This statute defines the following as criminal contempt:
[w]illful or grossly negligent failure to comply with schedules
and practices of the court resulting in substantial interference
with the business of the court. N.C. Gen. Stat. . 5A-11(a)(7).
The proper standard of review on a motion to dismiss based on
insufficiency of the evidence is the substantial evidence test.
The substantial evidence test requires a determination that there
is substantial evidence (1) of each essential element of the
offense charged, and (2) that defendant is the perpetrator of the
offense. State v. Jones
, 110 N.C. App. 169, 177, 429 S.E.2d 597,
602 (1993) (citing State v. Mercer
, 317 N.C. 87, 96, 343 S.E.2d
885, 890 (1986)). Substantial evidence is such relevant evidence
as a reasonable mind might accept as adequate to support a
conclusion. State v. Lynch
, 327 N.C. 210, 215, 393 S.E.2d 811,
814 (1990) (quotations omitted
). If there is substantial evidence
of each element of the charged offense, the motion should be
denied. State v. Bullard
, 312 N.C. 129, 160, 322 S.E.2d 370, 387
Key first argues that all of his actions on 10 October 2005
were legally justifiable and excusable and that the trial courterred in holding him in contempt. In support of his argument he
cites the case of State v. Chriscoe
, 85 N.C. App. 155, 354 S.E.2d
289 (1987). In Chriscoe
, this Court overturned the trial court's
finding of contempt. A witness in a criminal case was to be back
in court at 9:30 a.m. She was to be picked up by her mother at
The witness' mother overslept, and when she did not
arrive, the witness became concerned and went to her mother's
residence to check on her. As a result, the witness arrived at
court over one hour late. This Court held that under these facts,
the witness' actions were not willful or grossly negligent under
N.C. Gen. Stat. . 5A-11(a)(7). Key contends that as the witness in
, he had to attend to a family matter, a conference with
his daughter's teacher, and that this was adequate justification
for his not returning to court on 10 October 2005.
Key misapprehends the basis of the trial court's finding of
criminal contempt. He was not held in contempt for failing to
return to court on 10 October 2005, but rather for failing to
appear at the hearing on the absconder violation and abandoning his
client. Key was present at the courthouse at the time the case was
scheduled for hearing and then walked out. The conference with his
daughter's teacher was later in the afternoon and had nothing to do
with his abandonment of Faircloth. When Judge Haigwood learned of
the conference, Key was directed to appear the next morning.
Key next argues that because his client had not paid his fee,
he was justified in withdrawing from representation of Faircloth in
the absconder violation, citing the case of Smith v. Bryant
, 264N.C. 208, 141 S.E.2d 303 (1965). We hold that Key's reliance upon
this opinion is misplaced. Bryant
does state the general rule
that the client's failure to pay or to secure the payment of
proper fees upon reasonable demand will justify the attorney in
refusing to proceed with the case. Id.
at 211, 141 S.E.2d at 305-6
(citation omitted). However, Key ignores the remaining language of
Justice Sharp's opinion, which is the most frequently cited
Nevertheless, this does not mean that an
attorney of record can walk out of the case by
announcing to the court on the day of the
trial that he has withdrawn because he has not
been paid. 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.
at 211, 141 S.E.2d at 306.
In this case, Key violated the basic precepts set forth in
Bryant, 264 N.C. 208, 141 S.E.2d 303. He walked out on his client
on the date of the hearing, and he failed to give specific and
reasonable notice of his intent to withdraw based upon non-payment
of fees. The law concerning the entry and withdrawal of an
attorney in a criminal case is specifically set forth in Article 4
of Chapter 15A of the General Statutes. Under N.C. Gen. Stat. .15A-141(2), an attorney enters a criminal proceeding when he
appears without limiting the extent of his representation. Key did
just that at the 12 September 2005 hearing. His duties to
Faircloth were thus defined by N.C. Gen. Stat. . 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
Id. N.C. Gen. Stat. . 15A-144 provides that the court may allow an
attorney to withdraw from a criminal case for good cause. It is
clear that an attorney's failure to appear in court, thus
interfering with the court's schedule, may be the basis for
criminal contempt under N.C. Gen. Stat. . 5A-11(a)(7). See Lomax
v. Shaw, 101 N.C. App. 560, 400 S.E.2d 97 (1991) (stating that
[t]he trial judge has the power to hold a party in contempt for
willful or grossly negligent failure to comply with schedules and
practices of the court resulting in substantial interference with
the business of the court); see also In re Smith, 45 N.C. App.
123, 133, 263 S.E.2d 23, 29, rev'd on other grounds, 301 N.C. 621,
272 S.E.2d 834 (1980) (stating that generally, the willful absence
of an attorney from a scheduled trial constitutes contempt of
court). It is also clear that Key's conduct in this matter
interfered with the business of the Superior Court of Wake County.
See Bryant, 264 N.C. 208, 141 S.E.2d 303 . The only question is
whether this interference was substantial. We have reviewed theauthorities cited by both appellant and appellee, and find that
they provide little illumination on this question.
Substantial interference means that degree of interference
with the court's business that is real, and not momentary or
illusory. Substantial interference has been described as wilful
disobedience, resistance to, or interference with the court's
lawful process, order, direction or instructions or its execution.
Osmar v. Crosland-Osmar, Inc., 43 N.C. App. 721, 727, 259 S.E.2d
771, 774 (1979) (citing N.C. Gen. Stat. . 5A-11(a)(3) (1978)).
Judge Stephens found that: A probation matter which
ultimately took the Court less than five minutes to resolve has
been delayed for several days due entirely to Key's failure to
appear as counsel, because, in his mind, he wasn't fully paid for
his services. Key does not argue that this finding was not
supported by the evidence, and it is thus binding on this Court.
See N.C. R. App. P. 28(b)(6).
Thus, had Key acted properly in this matter, it could have
been disposed of in less than five minutes. However, Key's
actions, which he conceded in his testimony before Judge Stephens
to have been wrong, resulted in the trial court expending
considerable time and effort in tracking Key down and handling this
case. When Faircloth appeared with no attorney before Judge
Haigwood, he ascertained why Key had left the courthouse and then
instructed the clerk to contact Key. The clerk testified to nine
separate telephone calls that she made on the afternoon of 10
October 2005 in an attempt to get Key back to court to dispose ofthe absconder violation. She then reported her actions to Judge
Haigwood who directed that everything be placed in the record.
Judge Haigwood then had to continue the matter until the following
morning. Mr. Porter, a probation officer from Cumberland County
spent the afternoon of 10 October 2005 in the courtroom waiting for
Key to return, and then was required to return to Wake County the
following morning. At the hearing on 11 October 2005, Key
vehemently denied that he had any duty to represent Faircloth,
despite the fact that Judge Haigwood ruled that Key had in fact
made a general appearance on behalf of Faircloth. Finally, on the
morning of 11 October 2005, Judge Haigwood continued Faircloth's
probation violation, stating:
I think it would be more appropriate for
another Judge of the Superior Court to hear
this matter so that there won't be any
impression from anyone that whatever decision
is made is based on anything that has
transpired between Mr. Key and Ms. Clodfelter
and myself and this Court.
(See footnote 1)
Key argues that the court was able to continue to transact
other business on 10 and 11 October 2005, and therefore there was
no substantial interference with the business of the court.
Whether the court was able to transact other business is not the
test of substantial interference. Key's conduct unnecessarilyresulted in the court, its staff and its officers expending
significant time and effort in an attempt to get Faircloth's case
resolved over a two day period. We hold that this was substantial
interference within the intent and meaning of N.C. Gen. Stat. .
5A-11(a)(7). This argument is without merit.
 In his third argument, Key contends that Judge Stephens'
amended show cause order demonstrated that he was biased against
Key and should have recused himself from hearing the contempt
matter, ex mero motu
. We disagree.
In 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), this Court held that language in a show cause order
stating, [y]ou have negligently and willfully failed to perfect
the appeal or to seek appellate review through other possible
means, constituted a prejudgment by the issuing judge of
defendant's conduct. We thus held that the trial judge should have
granted defendant's motions to recuse.
We first note that this case is distinguishable from both
in that Key made no motion to recuse Judge
(See footnote 2)
This assignment of error has not been properly
preserved and is dismissed. See State v. Love
, 177 N.C. App. 614,
927-26, 630 S.E.2d 234, 243 (2006); N.C. R. App. P. 10(b)(1).
Even assuming that this issue were properly before us, Key's
arguments have no merit. The amended show cause order must be
considered in its entirety, not judged upon the single paragraph to
which Key directs us. The relevant portions of the amended show
cause order are as follows:
There is probable cause to believe that
Attorney Mark Key is subject to being held in
criminal contempt for:
(1) falsely representing to the Court, in
violation of G.S. 5A-11(a)(2), that he
did not represent the defendant, Tammy
Faircloth, in a probabion matter (04-CRS-
108515) scheduled for hearing on October
10, 2005 for which hearing Attorney Key
had issued a subpoena to a witness from
Fayetteville, North Carolina on which he
signed such subpoena as attorney for the
(2) intentionally failing to appear and to
remain, in violation of G.S. 5A-11(a)(7),
at the date and time set for the
aforesaid probation hearing to represent
his client, Tammy Faircloth, until the
matter was resolved or until he was
released by the Court.
There is also probably cause to believe that
Attorney Mark Key is subject to attorney
discipline for the aforesaid conduct and for
the additional attorney misconduct of cursing
the courtroom clerk on two occasions, which
cursing is more particularly described in the
transcript attached to the first show cause
order and in the additional transcript
attached to this amended order.
This conduct is in violation of Rule
3.5(a)(4)(B) of the Revised Rules of
Professional Conduct for Attorneys which
prohibits lawyers from engaging in
undignified or discourteous conduct that is
degrading to a tribunal. Mr. Key's conduct
is also in violation of Rule 3.3(a)(1) for
making false material statements to the Court
and in violation of Rule 1.16 by abandoninghis client without reasonable notice to the
client and without permission of the Court.
The first two paragraphs are prefaced by the words, [t]here
is probable cause to believe . . . The third paragraph, of which
Key complains, is not so prefaced. However, the third paragraph
recites no specific instance of conduct. Rather, it commences with
[t]his conduct, which refers back to the specific conduct
described in the first two paragraphs, which contained the probable
Read as a whole, the amended show cause order does not reflect
any actual or perceived bias on the part of Judge Stephens.
Rather, it reflects a careful and conscientious effort to apprise
Key of the specific instances of conduct that were alleged to be
the basis of contempt, and the statutes and rules that they may
Even assuming this argument is preserved before this Court, it
is without merit.
 In his fourth and final argument, Key argues that the
sanction imposed by the court was unreasonable. We disagree.
Key's assignment of error cited as the basis of this argument
reads as follows: The court's ruling in paragraph 22 on the
grounds that there was insufficient evidence to support it, the
findings of facts does [sic] not support it and it was contrary to
law. While it is highly questionable whether this assignment of
error bears any relationship to Key's argument, we nonetheless
address it. Key argues that under the case of N.C. State Bar v. Talford
356 N.C. 626, 576 S.E.2d 305 (2003) the trial court could not
impose a sanction of suspension or disbarment without findings of
fact keyed to: (1) the harm or potential harm created by the
attorney's misconduct, and
(2) a demonstrable need to protect the
at 637-38, 576 S.E.2d at 313 (emphasis in original).
Key fundamentally misapprehends the nature of this particular
appeal. This is an appeal from a judgment of criminal contempt
under Chapter 5A of the General Statutes. While Judge Stephens
also entered an order of attorney discipline, that is the subject
of a separate appeal, In re Key,
182 N.C. App. __, __ S.E.2d __
(2007). The cited language from Talford
is inapplicable to our
review of a judgment of criminal contempt.
Under N.C. Gen. Stat. . 5A-12, the court could have sentenced
Key to up to thirty days imprisonment and a fine of five hundred
It has long been the accepted rule in North
Carolina that within the limits of the
sentence authorized by law, the character and
the extent of the punishment imposed is within
the discretion of the trial court and is
subject to review only in cases of gross
State v. Goode,
16 N.C. App. 188, 189, 191 S.E.2d 241, 241-2 (1972)
(citation omitted). Defendant argues in his brief, without any
supporting authority, that the sanction imposed was unreasonable
and inappropriate. However, he makes no argument whatsoever that
the suspended sentence imposed constituted an abuse of discretion
or gross abuse on the part of the trial court. We further notethat Key makes no argument that the special conditions of his
probation were not reasonably related to his rehabilitation under
N.C. Gen. Stat. . 15A-1343(b1)(10).
An abuse of discretion is a decision unsupported by reason or
one so arbitrary that it could not be the result of a reasoned
decision. Briley v. Farabow
, 348 N.C. 537, 547, 501 S.E.2d 649,
656 (1998). We discern no abuse of discretion, and clearly no
gross abuse of discretion on the part of the trial judge in
sentencing defendant and imposing conditions of probation.
This assignment of error is without merit.
Judges WYNN and HUNTER concur.
Judge Haigwood's reference is to a prior incident that
occurred on 23 September 2005, where Key, in a telephone
conversation overheard by Ms. Clodfelter referred to the stupid
m***** f***** in the courtroom. When admonished by Ms.
Clodfelter, Key cursed her with regard to what he would and would
not do. This incident resulted in Judge Haigwood having a
conference with a court reporter present. To avoid embarrassing
Key, this was conducted in chambers.
We further note that in criminal cases, a motion to
disqualify a judge must be in writing, accompanied by supporting
affidavit(s) and filed at least five days before the call of the
case for trial. See
N.C. Gen. Stat. . 15A-1223.
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