In re Petition for Reinstatement of McGee

719 S.E.2d 222, 217 N.C. App. 325, 2011 N.C. App. LEXIS 2487
CourtCourt of Appeals of North Carolina
DecidedDecember 6, 2011
DocketNo. COA11-471
StatusPublished

This text of 719 S.E.2d 222 (In re Petition for Reinstatement of McGee) 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
In re Petition for Reinstatement of McGee, 719 S.E.2d 222, 217 N.C. App. 325, 2011 N.C. App. LEXIS 2487 (N.C. Ct. App. 2011).

Opinion

ERVIN, Judge.

Petitioner Michael H. McGee appeals from an order denying his motion to amend the records of the North Carolina State Bar to state that his law license had been reinstated and to strike portions of the North Carolina State Bar’s record reflecting otherwise. On appeal, Petitioner argues that the Disciplinary Hearing Commission was required, as a matter of law, to reinstate his law license at the end of his five year period of suspension and should, for that reason, amend [326]*326the applicable North Carolina State Bar records by removing from public view any documents that are inconsistent with that determination. After carefully reviewing Petitioner’s challenges to the DHC’s order in light of the record and the applicable law, we conclude that the DHC did not err by denying Petitioner’s motion.

I. Factual and Procedural Background

Petitioner, “a 1971 graduate of the University of North Carolina School of Law, was admitted to the North Carolina Bar and practiced law in North Carolina until his suspension on 1 October 2004. . . . [As justification for that action, tjhe DHC concluded that [Petitioner had] engaged in criminal acts that adversely reflected] on his honesty, trustworthiness, or fitness as a lawyer . . . and entered an Order of Discipline suspending [him] from the practice of law for five years.... [Petitioner] did not appeal the decision of the DHC. Instead, [he] filed suit against the North Carolina Bar and individually against various persons involved in his multiple disciplinary hearings[.] . . . The suit was dismissed . . . for failure to state a claim upon which relief could be granted. . . . [I]n November 2007, [Petitioner] petitioned for a stay of suspension as well as the removal of his two orders of discipline from the public record. Following an evidentiary hearing held in February 2008, the DHC concluded that [Petitioner] did not meet his burden of showing that a stay of suspension was warranted and issued an order denying reinstatement in March 2008. . . . The DHC also denied [Petitioner’s] petition to remove his past orders of discipline from the public record. [Petitioner’s] subsequent motion for a new trial, alleging retaliation against him for his prior federal lawsuit and various other errors with the DHC’s decision, was also denied. [Petitioner] appealed the DHC’s decision to this Court in April 2008.” N.C. State Bar v. McGee, 197 N.C. App 231, 676 S.E.2d 668, appeal dismissed, _ N.C. _, 683 S.E.2d 215 (2009) (unpublished) (McGee I). In McGee I, we held that Petitioner’s failure to note an appeal from the DHC’s disciplinary order precluded him from raising issues that should properly have been asserted in such an appeal by means of a subsequent motion, that his failure to appeal the two earlier orders of discipline also barred him from attempting to have the relevant orders stricken from the record, and that Petitioner’s remaining arguments were devoid of merit.

On appeal, Petitioner admits that, “[a]t the conclusion of his five-year period of suspension, [he] . . . filed a petition for reinstatement. The [North Carolina State] Bar denied reinstatement in a published [327]*327decision dated February 11, 2010.” Petitioner did not appeal the denial of his reinstatement petition. Instead, on 17 November 2010, Petitioner filed a motion asking the DHC to “[ajmend the records of the NC State Bar to restore the petitioner’s license to practice law, effective retroactively to a date five years to the day from the date of his suspension,” and to “[sjtrike from the public records of the NC State Bar ... all documents and records showing or finding that the petitioner was or had been denied the restoration of his license to practice law at any time after a date five years from the date of his suspensión!)]” On 1 February 2011, the DHC conducted a hearing, consisting of a telephone conference call, for the purpose of addressing Petitioner’s motion. On 3 February 2011, the DHC entered an order denying Petitioner’s motion and concluding, in pertinent part, that

Petitioner has not filed a proper petition for reinstatement!.] . . . Instead, Petitioner is seeking an Order directing his reinstatement without his first satisfying the conditions precedent as required in the Order of Discipline entered by the DHC. In addition, Petitioner is seeking an Order requiring the North Carolina State Bar to change its public records to reflect reinstatement effective at the end of the fifth year of his suspension.
... A lawyer seeking reinstatement from a suspension that contains conditions precedent must satisfy those conditions even if reinstatement is sought more than five years after the effective date of the suspension.
The [DHC] has no authority to direct the State Bar to strike any document or record from the public records of the State Bar relating to the denial of petitioner’s reinstatement to the practice of law.. . .

Petitioner noted an appeal to this Court from the DHC’s order.

II. Legal Analysis

A. Final Order

The North Carolina State Bar is an agency of the State of North Carolina. N.C. Gen. Stat. § 84-15. N.C. Gen. Stat. § 84-28.1(b) provides that the DHC “may hold hearings in discipline, incapacity and disability matters, make findings of fact and conclusions of law after these hearings, [and] enter orders necessary to carry out the duties delegated to it by the Council. . .” According to N.C. Gen. Stat. § 84-28(h), [328]*328appeals from disciplinary orders entered by the DHC are subject to the same procedures that govern appeals in civil cases:

There shall be an appeal of right by either party from any final order of the Disciplinary Hearing Commission to the North Carolina Court of Appeals. Review by the appellate division shall be upon matters of law or legal inference. The procedures governing any appeal shall be as provided by statute or court rule for appeals in civil cases. . . .

N.C.R. App. R 18(b)(2) provides that appeals from administrative agencies, such as the North Carolina State Bar, must be filed within thirty days after receipt of the final agency decision. As a result, upon denial of a petition for the reinstatement of a suspended law license, the petitioner must note an appeal from the underlying order within thirty days. In the absence of such an appeal, the order denying reinstatement becomes final. See Thomas M. McInnis & Associates, Inc. v. Hall, 318 N.C. 421, 434, 349 S.E.2d 552, 560 (1986) (noting that “[p]laintiff did not appeal the adverse determination,” causing “the judgment [to] bec[o]me final”), and Clayton v. N.C. State Bar, 168 N.C. App. 717, 719, 608 S.E.2d 821, 822 (holding that, since “plaintiff did not appeal the . . . order of discipline which ordered his disbarment, it became a final order”), cert. denied, 359 N.C. 629, 615 S.E.2d 867 (2005) (citing CBP Resources, Inc. v. Mountaire Farms of N.C., Inc., 134 N.C. App. 169, 171, 517 S.E.2d 151, 154 (1999)).

B.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Clayton v. North Carolina State Bar
608 S.E.2d 821 (Court of Appeals of North Carolina, 2005)
Regional Acceptance Corp. v. Old Republic Surety Co.
577 S.E.2d 391 (Court of Appeals of North Carolina, 2003)
Thomas M. McInnis & Associates, Inc. v. Hall
349 S.E.2d 552 (Supreme Court of North Carolina, 1986)
North Carolina State Bar v. McGee
676 S.E.2d 668 (Court of Appeals of North Carolina, 2009)
Thrasher v. Thrasher
167 S.E.2d 549 (Court of Appeals of North Carolina, 1969)
CBP Resources, Inc. v. Mountaire Farms of North Carolina, Inc.
517 S.E.2d 151 (Court of Appeals of North Carolina, 1999)
North Carolina State Bar v. Wood
705 S.E.2d 782 (Court of Appeals of North Carolina, 2011)
Starnes v. . Thompson
92 S.E. 259 (Supreme Court of North Carolina, 1917)
Hearon ex rel. Willey v. Hearon
261 S.E.2d 9 (Court of Appeals of North Carolina, 1979)

Cite This Page — Counsel Stack

Bluebook (online)
719 S.E.2d 222, 217 N.C. App. 325, 2011 N.C. App. LEXIS 2487, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-petition-for-reinstatement-of-mcgee-ncctapp-2011.