“I Don’t Want To Pay Taxes”

The North Carolina Court of Appeals remanded a bar discipline matter for a renewed sanction determination

Mark Key (“Defendant”) appeals, and the North Carolina State Bar (“Plaintiff”) cross-appeals, from an order of discipline entered by the Disciplinary Hearing Commission of the North Carolina State Bar (“DHC”) suspending Defendant’s law license for five years and allowing him to seek a stay of the balance of the suspension after three years if he complies with certain conditions. For the reasons stated herein, we affirm in part, dismiss in part, and vacate and remand in part.

The attorney was charged with tax-related offenses, client misconduct, mortgage fraud, misconduct during the grievance proceedings and 

Defendant represented a client charged with felonious restraint, and the matter came on for trial in Wake County Superior Court on 11 June 2019. During the State’s direct examination of a witness, Defendant continuously raised the same objection that had been previously overruled. Defendant repeatedly attempted to elicit testimony from a witness on cross-examination that the trial court had previously ruled inadmissible. Defendant became angry and raised his voice at the trial court in the presence of the jury. At that point, the trial court ended the proceedings for the day.

After the jury left the courtroom, the trial court said, “Mr. Key let me tell you something. . . [.]” Before the trial court could finish the statement, Defendant stood up, aggressively pointed his finger, and said, “Let me tell you something. . . .” The trial court instructed Defendant to sit down and informed him that it could initiate contempt proceedings against him based on his misconduct. The trial court gave Defendant the opportunity to apologize, but he did not do so. Due to Defendant’s misconduct in the presence of the jury, the trial court entered an order declaring a mistrial on 17 June 2019.

He appealed all the misconduct findings.

Taxes

Defendant stated during his interview with Plaintiff, “I don’t want to pay taxes.”

Me too, today in particular.

Conclusion here

Defendant’s extensive history of failing to timely file and pay his income taxes, coupled with his statements to Plaintiff, constitutes substantial evidence to support a finding that Defendant willfully failed to timely file and pay his state income taxes. Finding of Fact 33(b) is therefore supported by substantial evidence.

For the reasons stated above, the DHC did not err by finding and concluding that Defendant committed multiple tax-related crimes in his capacity as owner of The Key Law Office and in his individual capacity.

The employee tax and trust account violations were also sustained.

Client related allegations

These findings of fact support the DHC’s conclusion of law that, “[b]y providing confidential information to the lawyer he sent to represent T.M. at the May 2019 hearing, who was not a member of Defendant’s law firm, Defendant revealed information acquired during the professional relationship in violation of Rule 1.6(a)[.]” Accordingly, the DHC did not err by concluding that Defendant violated Rule 1.6(a).

…the DHC did not err by concluding that Defendant violated Rule 1.16(a) and (d).

The misconduct findings relating to the mistrial, mortgage fraud and in the disciplinary process were affirmed.

Sanction

the DHC erred by failing to consider Defendant’s commission of multiple felonies in imposing the appropriate discipline…

Plaintiff argues that “the DHC abused its discretion by suspending Defendant’s license to practice law rather than disbarring him, when suspension was inconsistent with prior cases and not reasonably related to the protection of the public, the profession, and the administration of justice.” (capitalization altered). Because we have determined that the DHC erred by failing to consider Defendant’s commission of multiple felonies and bad faith obstruction of the disciplinary proceedings in imposing the appropriate discipline, we do not address Plaintiff’s argument.

Thus

The DHC did not err by finding and concluding that Defendant engaged in misconduct, and we dismiss the arguments that are not properly before us. However, because the DHC failed to consider Defendant’s commission of multiple felonies and bad faith obstruction of the disciplinary proceedings in imposing the appropriate discipline, we vacate the portion of the order of discipline suspending Defendant’s law license and remand for further proceedings consistent with this opinion.

(Mike Frisch)