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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.
THE NORTH CAROLINA STATE BAR, Plaintiff, v. MARK A. KEY,
Filed: 18 December 2007
1. Attorneys_discipline--violation of Revised Rules of Professional Conduct--
sufficiency of findings of fact
The Disciplinary Hearing Commission did not err in a disciplinary case based upon a
violation of the North Carolina Revised Rules of Professional Conduct by determining its
findings of fact numbers 28, 29, and 35 were supported by substantial evidence, because: (1) in
regard to number 28, it was uncontroverted that the attorney never sought or obtained
permission from the court to withdraw, and it was properly classified as a finding of fact even
though it was more in the nature of an ultimate finding of fact since it was based upon other
evidentiary facts; (2) in regard to numbers 28 and 29, it was uncontroverted that the attorney left
a client who did not have the money to pay him at the courthouse without representation
knowing that a probation matter was scheduled for hearing; and uncontested findings of fact
numbers 22, 24, 25, 26, 27, and 34 support numbers 28 and 29; and (3) in regard to number 35,
it was uncontroverted that the attorney was required to make three additional court appearances
to resolve his client's absconder violation and was required to appear at the disciplinary hearing
before a judge, and the portion of the finding stating the client was adversely affected by the
attorney's refusal to appear on her behalf was an ultimate finding of fact based upon the balance
of the finding.
2. Appeal and Error--preservation of issues--failure to argue--failure to cite authority
Although defendant attorney assigned error to findings of fact twelve and fifteen in a
legal malpractice case, these assignments of error are deemed abandoned, because defendant
failed to argue these issues and failed to cite any authority as required by N.C. R. App. P.
3. Appeal and Error--preservation of issues--failure to assign error
Although defendant attorney presented argument in his brief concerning finding of fact
26 in a legal malpractice case, this issue is not properly before the Court of Appeals, because: (1)
defendant did not assign error to this finding as required by N.C. R. App. P. 10(a); and (2) the
Court of Appeals declined to invoke the provisions of N.C. R. App. P. 2 to consider this
4. Attorneys_discipline--violation of Revised Rules of Professional Conduct
The Disciplinary Hearing Commission did not err in a disciplinary case by concluding
that defendant attorney violated Rules 1.16, 1.3, and 8.4(d) of the North Carolina Revised Rules
of Professional Conduct, because there was a rational basis in the evidence supporting DHC's
conclusion that: (1) the attorney violated Rules 1.3 and 8.4 by refusing to appear on his client's
behalf at a probation violation hearing after he had entered a general appearance since willful
refusal to appear in contravention of N.C.G.S. § 15A-143 violated the Rule of Diligence to the
client and amounted to conduct that has a reasonable likelihood of prejudicing the
administration of justice; and (2) the attorney violated Rule 1.16(c) by failing to seek the court'spermission before effectively concluding his representation of the client because she did not
have his $200.00 fee for the additional hearing.
Appeal by defendant from Order of Discipline entered 8 June
2006 by the Disciplinary Hearing Commission of the North Carolina
State Bar. Heard in the Court of Appeals 30 August 2007.
The North Carolina State Bar, by Deputy Counsel David R.
Johnson, for plaintiff-appellee.
Mark A. Key, pro se.
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 fromKey'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) 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 appeals.
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 thatmorning 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
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,
649 S.E.2d 398 (2007); In re Key, 182 N.C. App. 624, 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)
In examining the record, the reviewing court applies a
whole record test, which requires this Court to determine that
there is substantial evidence to support the findings, conclusions
and result. N.C. State Bar v. DuMont, 304 N.C. 627, 643, 286
S.E.2d 89, 98-99 (1982) (citing G.S. § 150A-51(5)).
court follows a three-step process to determine if the lower
body's decision has a 'rational basis in the evidence.' N.C.State Bar v. Talford, 356 N.C. 626, 634, 576 S.E.2d 305, 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. Section (3) is not at issue in this case.
In applying the whole record test to the facts disclosed by
the record, a reviewing court must consider the evidence which in
and of itself justifies or supports the administrative findings and
must also take into account the contradictory evidence or evidence
from which conflicting inferences can be drawn.
DuMont, 304 N.C.
at 643, 286 S.E.2d at 98-99
(citing Thompson v. Wake County Bd. of
Educ., 292 N.C. 406, 233 S.E.2d 538 (1977)). 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. 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, __ S.E.2d __ (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). [S]upporting evidence is
substantial if a reasonable person might accept it as adequate
backing for a conclusion.
Talford, 356 N.C. at 632, 576 S.E.2d
at 309-10 (citing DuMont, 304 N.C. at 643, 286 S.E.2d at 98-99
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
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 continue to represent a
client until the court grants permission to withdraw).
V. Findings of Fact
 In his first argument, Key contends that findings of fact
28, 29, and 35 were not supported by the evidence, and that
findings of fact 28 and 35 are actually conclusions of law. We
disagree. The challenged findings of fact are as follows:
28. Key did not seek or obtain the Court's
permission to withdraw as Faircloth's
attorney, nor did he take any steps to protect
Faircloth's interests before he effectively
concluded his involvement in the case.
29. As a result of Key's refusal to complete
his representation, Faircloth was left without
representation at the Oct. 10, 2005 hearing on
the absconder violation.
. . . .
35. Faircloth was adversely affected by Key's
refusal to appear on her behalf in that she
was required to return to court on Oct. 11 and
by the fact that she was also subpoenaed to
testify at a disciplinary hearing regarding
Key conducted by the Court on Nov. 14 and 15,
Key argues that there was absolutely no evidence that he refused
to appear in court or that Faircloth was adversely impacted. Key
contends that he never refused to appear and made a number of
efforts to protect [his client's] interest. We review the whole
record to determine whether
there is substantial evidence to
support these findings. See DuMont, 304 N.C. at 643, 286 S.E.2d
Before analyzing each of the challenged findings of fact, we
note that there are a number of findings of fact contained in the
Order of Discipline, which are unchallenged on appeal by Key, anddeal with facts that are the same or similar to those contained in
the challenged findings of fact. These are:
21. Key did not limit the scope of his
representation of Faircloth during the hearing
before Judge Bullock on Sept. 12.
22. The hearing on the absconder violation
was rescheduled for Oct. 10, 2005.
. . . .
24. On Oct. 5, 2005, Key issued a subpoena to
[probation officer] Porter to appear at the
Oct. 10 hearing.
25. Before court began on the afternoon of
Oct. 10, 2005, Key knew that the matter on the
calendar was the absconder violation charge.
26. Shortly before court was to commence on
Oct. 10, Faircloth told Key that she did not
have the additional $200 fee. Key left the
courtroom area, and told Faircloth that he was
not going to return to court because she had
not paid his fee.
27. Thereafter, Key told Porter than he (Key)
had not been fully retained by Faircloth and
released Porter from the subpoena.
. . . .
32. Judge Haigwood ordered Key to return to
court on Oct. 11 to handle Faircloth's case.
. . . .
34. Because Key failed to handle Faircloth's
case on Oct. 10, and did not return to court
that day, Faircloth's case was continued until
the following day.
These unchallenged findings of facts are binding on appeal.
Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991).
A. Finding of Fact 28
We have reviewed the record in this case and find that there
is adequate and substantial evidence contained therein to support
this finding. It is uncontroverted that Key never sought or
obtained permission from the court to withdraw as Faircloth's
attorney. It is further uncontroverted that he left Faircloth
alone and without representation at the Wake County Courthouse on
10 October 2005, knowing that the probation matter was scheduled
for hearing. In addition, findings of fact 22, 24, 25, 26, 27, and
34, uncontested on appeal, are evidentiary facts that support
finding of fact 28. Key also contends that finding of fact 28 is
really a conclusion of law.
The classification of a determination as
either a finding of fact or a conclusion of
law is admittedly difficult. As a general
rule, however, any determination requiring the
exercise of judgment, see Plott v. Plott, 313
N.C. 63, 74, 326 S.E.2d 863, 870 (1985), or
the application of legal principles, see Quick
v. Quick, 305 N.C. 446, 452, 290 S.E.2d 653,
657-58 (1982), is more properly classified a
conclusion of law. Any determination reached
through 'logical reasoning from the
evidentiary facts' is more properly classified
a finding of fact. Quick, 305 N.C. at 452,
290 S.E.2d at 657-58 (quoting Woodard v.
Mordecai, 234 N.C. 463, 472, 67 S.E.2d 639,
In re Helms, 127 N.C. App. 505, 510, 491 S.E.2d 672, 675 (1997).
There are two kinds of facts: Ultimate facts,
and evidentiary facts. Ultimate facts are the
final facts required to establish the
plaintiff's cause of action or the defendant's
defense; and evidentiary facts are those
subsidiary facts required to prove the
Woodard v. Mordecai, 234 N.C. 463, 470, 67 S.E.2d 639, 644 (1951)
(internal citations omitted). Moreover, classification of an item
within the order is not determinative, and, when necessary, the
appellate court can reclassify an item before applying the
appropriate standard of review. See Helms, 127 N.C. App. at 510,
491 S.E.2d at 675 (classifying the trial court's neglect,
reasonable efforts, and best interest determinations as conclusions
We hold that the DHC properly classified finding of fact 28
as a finding of fact, although since it is based upon other
evidentiary facts, it is more in the nature of an ultimate finding
of fact, and that the finding is adequately supported by
B. Finding of Fact 29
We have reviewed the record in this case and find that there
is adequate and substantial evidence contained therein to support
this finding. It is uncontroverted that Key left Faircloth alone
and without representation at the Wake County Courthouse on 10
October 2005, knowing that the probation matter was scheduled for
hearing. In addition, findings of fact 22, 24, 25, 26, 27, and 34,
uncontested on appeal, are evidentiary facts that support finding
of fact 29.
C. Finding of Fact 35
We have reviewed the record in this case and find that there
is adequate and substantial evidence contained therein to supportthis finding. It is uncontroverted that Faircloth was required to
make three additional court appearances to resolve her absconder
violation and was required to appear at the disciplinary hearing
before Judge Stephens.
The portion of finding of fact 35 stating that Faircloth was
adversely affected by Key's refusal to appear on her behalf is an
ultimate finding of fact, based upon the balance of finding of fact
35. See Woodard v. Mordecai, 234 N.C. at 470, 67 S.E.2d at 644.
, Key assigned error to findings of fact twelve and
fifteen, in support of which no reason or argument is stated or
authority cited. Pursuant to N.C.R. App. P. 28(b)(6)(2007), we
deem these assignments of error to be abandoned. Key presented
argument in his brief concerning finding of fact 26, to which he
did not assign error. Without a proper assignment of error, this
finding is not properly before this Court. N.C.R. App. P.
10(a)(2007). We decline Key's invitation to invoke the provisions
of Rule 2 of the Rules of Appellate Procedure to consider his
arguments concerning finding of fact 26.
This argument is without merit.
VI: Rules of Professional Conduct
 In his second argument, defendant contends that he did not
violate Rules 1.16, 1.3, and 8.4(d) of the Revised Rules of
Professional Conduct, that the evidence supports his position that
no violation of the rules occurred, and that the DHC erred in
concluding that such violations occurred. We disagree. With respect to Rules 1.3 and 8.4, Key contends that: (1) this
case presents a matter of first impression before this Court; (2)
the comments following Rule 1.3 suggest that a violation of
diligence occurs when there is a pattern
of negligent conduct and
his refusal to appear on October 10 fails to establish such a
violation; (3) the sole basis for the Rule 8.4 charge is the
unsupported allegation that he 'refused to appear' in court on
October 10, 2005[;] and (4) rather than a refusal to appear, the
evidence demonstrates his diligence on Faircloth's behalf.
Finally, he argues that mere refusal to appear does not constitute
a violation of Rule 8.4 for three reasons: (1) these circumstances
are insufficiently egregious, (2) Key had a good faith belief
that no legal obligation existed, and (3) DHC failed to adduce
evidence of harm to Faircloth or of a reasonable likelihood of
prejudice to the administration of justice.
The Order of Discipline contained the following conclusions
2. Key entered a general appearance regarding
the absconder violation pending against
Faircloth on Sept. 12, 2005. Consequently, he
could not properly refuse to appear at the
Oct. 10, 2005 hearing on the grounds that she
had not paid his fee, without first seeking
permission to withdraw from the court.
3. Key's conduct as set out herein violated
the Revised Rules of Professional Conduct in
the following respects:
a. By refusing to appear on Faircloth's
behalf at the Oct. 10, 2005 hearing, Key
neglected a client matter in violation of
Rule 1.3, and engaged in conductprejudicial to the administration of
justice in violation of Rule 8.4(d).
b. By failing to seek Court permission
before effectively concluding his
representation of Faircloth, Key violated
The North Carolina Revised Rules of Professional Conduct
govern proper terms of an attorney's representation of clients.
Rule 1.16. Declining or terminating
(b) Except as stated in paragraph (c), a
lawyer may withdraw from representing a client
(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.
(d) Upon termination of representation, a
lawyer shall take steps to the extent
reasonably practicable to protect a client's
interests, such as giving reasonable notice to
the client[.] . . . .
N.C. Rev. R. Prof. Conduct 1.16 (2005). Rule 1.3 requires a lawyer to act with reasonable diligence
and promptness in representing a client. N.C. Rev. R. Prof.
Conduct 1.3 (2005). Rule 8.4 proscribes a lawyer from engaging in
conduct that is prejudicial to the administration of justice.
N.C. Rev. R. Prof. Conduct 8.4(d) (2005). Comment 4 to the rule
 A showing of actual prejudice to the
administration of justice is not required to
establish a violation of Paragraph (d).
Rather, it must only be shown that the act had
a reasonable likelihood of prejudicing the
administration of justice. . . . The phrase
conduct prejudicial to the administration of
justice in Paragraph (d) should be read
broadly to proscribe a wide variety of
conduct, including conduct that occurs outside
the scope of judicial proceedings.
Id, Cmt. 4.
Under the second prong of Talford, we must determine whether
the order's expressed findings of fact adequately support its
subsequent conclusions of law.
[I]n order to satisfy the evidentiary
requirements of the whole-record test in an
attorney disciplinary action, the evidence
used by the DHC to support its findings and
conclusions must rise to the standard of
clear, cogent, and convincing. Ultimately,
the reviewing court must apply all the
aforementioned factors in order to determine
whether the decision of the lower body, e.g.,
the DHC, has a rational basis in the evidence.
Talford, 356 N.C. at 632, 576 S.E.2d at 310 (internal quotations
and citations omitted). Upon review of the record, we find that
the evidence relied upon by the DHC in reaching its conclusions of
law was clear, cogent, and convincing. Having considered the evidence supporting the DHC's findings,
as well as any evidence from which conflicting inferences could be
drawn, we hold that there is a rational basis in the evidence
supporting the DHC's conclusion that Key violated Rules 1.3 and 8.4
by refusing to appear on Faircloth's behalf at the 10 October 2005
hearing. Willful refusal to appear in contravention of N.C.G.S.
§ 15A-143 violates the Rule of Diligence to the client and amounts
to conduct that has a reasonable likelihood of prejudicing the
administration of justice. See N.C. Rev. R. Prof. Conduct 8.4,
Regarding conclusion of law 3(b), we note that the plain
language of Rule 1.16(c) states: A lawyer must comply with
applicable law requiring notice to or permission of a tribunal when
terminating representation. N.C. Rev. R. Prof. Conduct 1.16(c)
(2005) (emphasis added). Unlike other rules, Rule 1.16 makes no
mention of a scienter or intent requirement, either in its text
or comments. Cf. N.C. Rev. R. Prof. Conduct 1.3, cmt. 7
(suggesting an element of intent or scienter). Key undertook
Faircloth's representation when he appeared and entered admissions
on her behalf at the 12 September 2005 hearing, and did not seek
or obtain the court's permission to withdraw. Consequently, we
find that there is a rational basis in the evidence for the DHC to
have concluded that Key violated Rule 1.16(c) by failing to seek
the court's permission before effectively concluding his
representation of Faircloth. This argument is without merit.
Defendant's brief addresses only nine of twenty-one original
assignments of error
Pursuant to N.C.R. App. P. 28(b)(6) (2007),
the remaining assignments of error are deemed to be abandoned.
ELMORE and GEER concur.
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