North Carolina State Bar v. McLaurin

609 S.E.2d 491, 169 N.C. App. 144, 2005 N.C. App. LEXIS 508
CourtCourt of Appeals of North Carolina
DecidedMarch 15, 2005
DocketNo. COA04-722.
StatusPublished
Cited by4 cases

This text of 609 S.E.2d 491 (North Carolina State Bar v. McLaurin) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
North Carolina State Bar v. McLaurin, 609 S.E.2d 491, 169 N.C. App. 144, 2005 N.C. App. LEXIS 508 (N.C. Ct. App. 2005).

Opinion

*492STEELMAN, Judge.

Defendant, Ralph Edward McLaurin, Jr., appeals from an order of the Disciplinary Hearing Commission of the North Carolina State Bar (DHC) suspending his license to practice law for ninety days. For the reasons *493stated herein, we affirm the DHC's order.

Defendant was licensed to practice law in North Carolina in 1975 and practiced in Chatham County. On 29 June 1999, defendant was charged in federal court with five counts of willful failure to timely file federal income tax returns for the calendar years 1992 through 1996 in violation of 26 U.S.C. § 7203. On 7 October 1999, defendant pled guilty to one count of misdemeanor failure to timely file a federal income tax return for 1992. On 10 April 2000, judgment was entered finding defendant guilty on one count and dismissing the remaining four counts. The judgment placed defendant on probation for one year subject to standard and special conditions of supervision.

Following entry of judgment in federal court, the North Carolina State Bar began its own investigation of defendant and instituted disciplinary proceedings. The matter came on for hearing before the DHC on 9 November 2001. Following that hearing, defendant entered into a consent order of discipline with the State Bar, in which he consented to the findings of fact, conclusions of law, and an order of discipline. Specifically, the consent order found that defendant "wilfully failed to timely file federal individual income tax returns with the Internal Revenue Service for the calendar years 1992 through 1996." The DHC concluded that defendant had been "convicted of a criminal offense showing professional unfitness in violation of N.C. Gen.Stat. § 84-28(b)(1)," and that defendant had "committed criminal acts that reflect adversely on his honesty, trustworthiness, or fitness as a lawyer in other respects, in violation of Rule 8.4(b) of the Revised Rules of Professional Conduct." The consent order suspended defendant's law license for a period of two years, but stayed the suspension for three years subject to certain conditions. The conditions relevant to this appeal required defendant to: (1) timely file all state and federal tax returns; (2) timely pay all required estimated or annual state and federal taxes; and (3) provide the Secretary of the State Bar written verification on or before April 15 of each year of the stayed suspension that all required state and federal tax returns had been filed or written verification that a timely extension was sought, to be submitted within one week of the filing date of that return. Finally, the consent order provided that if defendant failed to comply with any one or more of the conditions, the DHC could lift the stay and activate his suspension, or any portion thereof, pursuant to § B.0114(x) of the North Carolina State Bar Discipline and Disability Rules.

By the terms of the consent order, defendant was required to provide written verification of his compliance as to his 2001 tax returns by 15 April 2002. Having received no correspondence from defendant, the State Bar wrote to defendant on 13 August 2002, notifying him of the delinquency and asking him to produce the required documentation. In response, defendant sent a handwritten note, dated 22 August 2002, stating he had filed his 2000 tax returns and had received an extension to file his 2001 returns.

On 13 January 2003, the State Bar requested defendant produce copies of any extensions received for his 2001 tax returns, and to advise the State Bar whether the 2001 return had been filed and the taxes paid. When defendant failed to respond to the letter, the State Bar filed a motion seeking an order to show cause. On 12 February 2003, the DHC issued a show cause order. Shortly thereafter, defendant sent a letter to the State Bar stating that his 2001 tax returns were timely filed after an extension was granted. Defendant provided none of the documents requested in the 13 January 2003 letter. The 15 April 2003 deadline for submitting written verification of the filing of his 2002 tax returns also passed without defendant submitting any documentation to the State Bar.

On 9 May 2003, the DHC held a hearing on the motion to show cause and issued an order suspending defendant's license for ninety days. Defendant moved to have the order set aside for lack of notice of the hearing. On 9 July 2003, the DHC granted defendant's motion for a stay of the order suspending his license for ninety days. By order entered 2 September 2003, the DHC set a hearing on defendant's motion for a new hearing for 7 November 2003. The *494order also contained specific language notifying defendant that if his motion was allowed, the new hearing on the State Bar's motion to show cause would commence on 7 November 2003 immediately following the conclusion of the hearing on defendant's motion.

On 7 November 2003, the DHC granted defendant's motion for a new trial, and defendant immediately moved for a continuance of the hearing on the motion to show cause. Defendant argued he was awaiting "other information" from his accountant that would show he was in compliance with the consent order. The DHC denied defendant's motion to continue. A hearing was held on 7 November 2003 on the DHC's show cause order.

After hearing evidence presented by the State Bar and defendant, the DHC concluded that defendant committed knowing and willful violations of the consent order, and ordered defendant's license be suspended for ninety days. Defendant appeals.

In defendant's first assignment of error he contends the DHC erred in denying his motion to continue the show cause hearing. We disagree.

Although defendant's assignment of error is couched in terms of the DHC abusing its discretion in denying his motion for a continuance, defendant argues in his brief the appellate standard of review is the "whole record test." It is true that the "whole record test" is the standard of judicial review to be employed when considering the adequacy of an administrative agency's findings of fact in its final decision. See N.C. State Bar v. Talford, 356 N.C. 626, 632, 576 S.E.2d 305, 309-10 (2003); N.C. State Bar v. DuMont, 304 N.C. 627, 642-43, 286 S.E.2d 89, 98-99 (1982) (DuMont II). However, the "whole record test" is not the correct standard of review when considering the appropriateness of a preliminary, discretionary decision, such as a motion to continue.

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Bluebook (online)
609 S.E.2d 491, 169 N.C. App. 144, 2005 N.C. App. LEXIS 508, Counsel Stack Legal Research, https://law.counselstack.com/opinion/north-carolina-state-bar-v-mclaurin-ncctapp-2005.