{ "id": 4181426, "name": "THE NORTH CAROLINA STATE BAR, Plaintiff v. BRENT E. WOOD, Attorney, Defendant", "name_abbreviation": "North Carolina State Bar v. Wood", "decision_date": "2011-02-01", "docket_number": "No. COA10-463", "first_page": "454", "last_page": "460", "citations": [ { "type": "official", "cite": "209 N.C. App. 454" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "437 S.E.2d 892", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "898", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "113 N.C. App. 205", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521514 ], "year": 1994, "pin_cites": [ { "page": "216", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/113/0205-01" ] }, { "cite": "264 S.E.2d 101", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1980, "pin_cites": [ { "page": "105", "parenthetical": "citation omitted" }, { "page": "105" } ], "opinion_index": 0 }, { "cite": "299 N.C. 715", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575818 ], "weight": 2, "year": 1980, "pin_cites": [ { "page": "721", "parenthetical": "citation omitted" }, { "page": "721" } ], "opinion_index": 0, "case_paths": [ "/nc/299/0715-01" ] }, { "cite": "663 N.E.2d 625", "category": "reporters:state_regional", "reporter": "N.E.2d", "case_ids": [ 8594715 ], "weight": 2, "year": 1996, "pin_cites": [ { "page": "626" } ], "opinion_index": 0, "case_paths": [ "/ny-2d/87/0508-01" ] }, { "cite": "273 S.E.2d 448", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "301 N.C. 403", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567190, 8567224, 8567258, 8567163, 8567295 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc/301/0403-02", "/nc/301/0403-03", "/nc/301/0403-04", "/nc/301/0403-01", "/nc/301/0403-05" ] }, { "cite": "268 S.E.2d 879", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "48 N.C. App. 418", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550982 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc-app/48/0418-01" ] }, { "cite": "524 S.E.2d 815", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "817" } ], "opinion_index": 0 }, { "cite": "136 N.C. App. 524", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11240854 ], "year": 2000, "pin_cites": [ { "page": "527" } ], "opinion_index": 0, "case_paths": [ "/nc-app/136/0524-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 84-28", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 7, "year": 2006, "pin_cites": [ { "page": "(b)(l)" }, { "page": "(d)" }, { "page": "(b)(l) and (2)" }, { "page": "(d)" }, { "page": "(d)" }, { "page": "(h)" }, { "page": "(h)" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 584, "char_count": 15592, "ocr_confidence": 0.734, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.13738851183987946 }, "sha256": "3ba00d578781dbe1e52661ea8042c9a23846dfd725d2550df8de1fa6c3a291ba", "simhash": "1:f04c90635a29aa25", "word_count": 2517 }, "last_updated": "2023-07-14T17:06:47.704823+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges STEPHENS and ROBERT N. HUNTER, Jr., concur." ], "parties": [ "THE NORTH CAROLINA STATE BAR, Plaintiff v. BRENT E. WOOD, Attorney, Defendant" ], "opinions": [ { "text": "STEELMAN, Judge.\nWhere the Disciplinary Hearing Commission of the North Carolina State Bar was only required to find defendant was convicted of a criminal offense in order to impose discipline, the Disciplinary Hearing Commission did not err in imposing discipline on defendant prior to entry of a judgment of conviction. Defendant did not seek review of the 6 August 2007 order conditionally vacating his disbarment; therefore, any arguments relating to that order were not timely made and will not be considered. Where the original order of discipline was based upon a default, the allegations contained in the original complaint are deemed admitted, and defendant was not entitled to a new hearing when his disbarment was reinstated.\nI. \u2014 Factual and Procedural History\nOn 11 May 2006, Brent E. Wood (\u201cdefendant\u201d) was convicted in the United States District Court for the Eastern District of North Carolina of one count of conspiracy to commit mail fraud and wire fraud, six counts of mail fraud, and one count of conspiracy to commit money laundering. On 20 May 2006, the North Carolina State Bar (\u201cBar\u201d) filed a complaint against defendant before its Disciplinary Hearing Commission (\u201cDHC\u201d) requesting that disciplinary action be taken against defendant for violations of N.C. Gen. Stat. \u00a7 84-28(b)(l) (2006) and Revised Rules of Professional Conduct 8.4(b) and (c). The Bar alleged that \u201c[t]he offenses of which Wood was convicted [were] criminal acts showing professional unfitness in violation of N.C. Gen. Stat. 84-28(b)(l)\u201d and \u201cconstitute^] criminal conduct that reflects adversely upon his honesty, trustworthiness or fitness as a lawyer in violation of Revised Rule 8.4(b) and conduct involving dishonesty, fraud, deceit or misrepresentation in violation of Revised Rule 8.4(c).\u201d An amended complaint was filed by the Bar on 18 July 2006. Defendant failed to answer the Bar\u2019s complaint, and default was entered against defendant on 20 September 2006. Defendant was disbarred in an order of discipline dated 27 October 2006. The order of disbarment was based upon both his criminal convictions and conduct involving dishonesty, fraud, deceit or misrepresentation under Revised Rule 8.4(c).\nFollowing the return of the verdict, defendant moved the United States District Court for a judgment of acquittal, or alternatively for a new trial. On 20 July 2007, the Honorable Terrence W. Boyle entered an order granting defendant\u2019s motion for judgment of acquittal and conditionally granting defendant\u2019s motion for new trial should the judgment of acquittal be reversed or vacated. On 6 August 2007, based upon this order, the DHC vacated defendant\u2019s disbarment upon the express proviso that if defendant\u2019s conviction was reinstated by an appellate court, his disbarment would be reinstated. This order also provided that the Bar was not precluded from conducting a disciplinary proceeding based upon the underlying facts as provided in N.C. Gen. Stat. \u00a7 84-28(d). On 14 August 2009, the United States Court of Appeals for the Fourth Circuit reversed the district court\u2019s judgment of acquittal and conditional grant of a new trial, and remanded the matter to the district court for further proceedings consistent with its opinion. Based upon the Court of Appeals\u2019 reversal, on 10 December 2009 the DHC reinstated the 27 October 2006 order of disbarment.\nDefendant appeals.\nII. \u2014 Judgment of Conviction\nIn his first argument, defendant contends that the DHC erred in disbarring defendant in 2006 and reinstating this disbarment in 2009 based solely upon his conviction of criminal offenses when no judgment of conviction has been entered against him. We disagree.\nDefendant\u2019s argument conflates a conviction and a judgment of conviction. In defendant\u2019s brief he states that \u201cfederal law... requires both a jury verdict and sentencing before a defendant is convicted.\u201d However, Black\u2019s Law Dictionary defines \u201cconviction\u201d as \u201c1. The act or process of judicially finding someone guilty of a crime; the state of having been proved guilty. 2. The judgment (as by a jury verdict) that a person is guilty of a crime.\u201d 358 (8th ed. 2004). \u201cJudgment of conviction\u201d is defined as \u201c1. The written record of a criminal judgment, consisting of the plea, the verdict or findings, the adjudication, and the sentence. Fed. R. Crim. P. 32(d)(1). 2. A sentence in a criminal case.\u201d Black\u2019s Law Dictionary 860 (8th ed. 2004). A judgment of conviction is one step beyond conviction. A judgment of conviction involves not only conviction but also the imposition of a sentence. This distinction has been recognized in both North Carolina statutes and case law. N.C. Gen. Stat. \u00a7 15A-1331(b) (2009) states \u201c[f]or the purpose of imposing sentence, a person has been convicted when he has been adjudged guilty or has entered a plea of guilty or no contest.\u201d This Court has \u201cinterpreted N.C. Gen. Stat. \u00a7 15A-1331(b) to mean that formal entry of judgment is not required in order to have a conviction.\u201d State v. Hatcher, 136 N.C. App. 524, 527, 524 S.E.2d 815, 817 (2000), citing State v. Fuller, 48 N.C. App. 418, 268 S.E.2d 879, disc. review denied, 301 N.C. 403, 273 S.E.2d 448 (1980).\nDefendant correctly notes that no judgment of conviction has been entered against him for his federal criminal convictions; however, a judgment of conviction is not necessary in order for the DHC to impose discipline. The DHC in its original order disbarred defendant based upon his violations of N.C. Gen. Stat. \u00a7 84-28(b)(l) and (2) (2006), which read as follows:\n(b) The following acts or omissions by a member of the North Carolina State Bar or any attorney admitted for limited practice under G.S. 84-4.1, individually or in concert with any other person or persons, shall constitute misconduct and shall be grounds for discipline whether the act or omission occurred in the course of an attorney-client relationship or otherwise:\n(1) Conviction of, or a tender and acceptance of a plea of guilty or no contest to, a criminal offense showing professional unfitness;\n(2) The violation of the Rules of Professional Conduct adopted and promulgated by the Council in effect at the time of the act.\n(emphasis added). The plain language of this statute requires that an attorney be \u201cconvicted of... a criminal offense showing professional unfitness,\u201d not that a judgment of conviction be entered.\nDefendant argues that under Federal Rule of Criminal Procedure 32(k) he has not been convicted of any crimes, since no judgment has been imposed by the district court. He further contends that it was improper to disbar him in the absence of a judgment. Federal Rule of Criminal Procedure 32(k)(l) states:\nIn General. In the judgment of conviction, the court must set forth the plea, the jury verdict or the court\u2019s findings, the adjudication, and the sentence. If the defendant is found not guilty or is otherwise entitled to be discharged, the court must so order. The judge must sign the judgment, and the clerk must enter it.\nThis Rule refers to a judgment of conviction, not a conviction. Under the statutes and rules applicable to the entry of an order of discipline, all that is required is a conviction, not a judgment of conviction.\nDefendant further contends that the instant case is analogous to the New York Court of Appeals case of In re Delany, that held a final order of sanction against an attorney was prematurely imposed because the attorney had pled guilty to several federal crimes but had not yet been sentenced. 663 N.E.2d 625 (N.Y. Ct. App. 1996). However, the applicable New York law stated that \u201cupon a judgment of conviction against an attorney becoming final the appellate division of the supreme court shall order the attorney to show cause why a final order of suspension, censure or removal from office should not be made.\u201d Id. at 626. The requirements of the New York law differ from the applicable North Carolina statutes and rules, requiring a judgment of conviction rather than a conviction. We hold that the DHC properly entered an order of discipline against defendant based upon his convictions.\nThis argument is without merit.\nHI.' \u2014 2007 Order Vacating Order of Disbarment\nIn his second argument, defendant contends the DHC erred in only granting a conditional reinstatement of Wood\u2019s right to practice law rather than vacating the original order of disbarment. We disagree.\nOn 6 August 2007, the DHC ordered that the 27 October 2006 order of discipline entered against defendant be vacated; \u201cprovided, however, that should Defendant\u2019s conviction be reinstated by an appellate court, the Order of Discipline dated October 27, 2006 in this matter shall be reinstated.\u201d The order vacating the order of disbarment was entered pursuant to N.C. Gen. Stat. \u00a7 84-28(d) (2007) which provides in relevant part:\nAn order of discipline based solely upon a conviction of a criminal offense showing professional unfitness shall be vacated immediately upon receipt by the Secretary of the North Carolina State Bar of a certified copy of a judgment or order reversing the conviction. The fact that the attorney\u2019s criminal conviction has been overturned on appeal shall not prevent the North Carolina State Bar from conducting a disciplinary proceeding against the attorney based upon the same underlying facts or events that were the subject of the criminal proceeding.\nDefendant argues that under N.C. Gen. Stat. \u00a7 84-28(d) the Bar was required to vacate his disbarment unconditionally, and was without authority to provide that the disbarment would be reinstated if his convictions were reinstated by an appellate court.\nWe first note that defendant did not appeal the reinstatement order of 6 August 2007. N.C. Gen. Stat. \u00a7 84-28(h) (2007) provides in part that:\nThere 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.\nRule 3(c)(1) of the North Carolina Rules of Appellate Procedure requires that a party must give notice of appeal within thirty days of entry of judgment. In this case, defendant did not appeal the 6 August 2007 order vacating his disbarment. The only question is whether that order was a \u201cfinal order\u201d as contemplated by N.C. Gen. Stat. \u00a7 84-28(h). We hold that it was a final order. Even though the order contained a provision dealing with the possibility that the disbarment could be reinstated, any future action was dependent upon a decision of the federal court, and not upon a further decision or action by the DHC. The Rules and Regulations of the North Carolina State Bar clearly contemplate the DHC imposing conditions on a lawyer\u2019s reinstatement. Section B.0125(d) of the Rules states \u201c[t]he hearing committee may impose reasonable conditions on a lawyer\u2019s reinstatement from disbarment, suspension or disability inactive status in any case in which the hearing committee concludes that such conditions are necessary for the protection of the public.\u201d Annotated Rules of North Carolina 522 (2007). Defendant failed to timely appeal the 6 August 2007 order of the DHC, and this order is not properly before this Court.\nFurther, we hold that the DHC had the inherent authority to place the condition upon the vacation of its order of disbarment based upon future actions of an appellate court. The Bar has no control over either the criminal trial or appellate process in the state or federal court, and acted appropriately in issuing an order of reinstatement conditioned upon the result of future action in the federal court.\nIV. \u2014 Reinstatement of Disbarment without Hearing\nIn his third argument, defendant contends the DHC erred by reinstating defendant\u2019s disbarment without conducting a hearing in violation of defendant\u2019s due process rights and the North Carolina Administrative Code. We disagree.'\nWhen default is entered due to defendant\u2019s failure to answer, the substantive allegations raised by plaintiff\u2019s complaint are no longer in issue, and for the purposes of entry of default and default judgment are deemed admitted. However, following entry of default in favor of plaintiff, defendant is entitled to a hearing where he may move to vacate such entry.\nBell v. Martin, 299 N.C. 715, 721, 264 S.E.2d 101, 105 (1980) (citation omitted). Defendant never moved to vacate the 20 September 2006 entry of default against him and never appealed the 27 October 2006 order of discipline based thereon. Defendant cannot, now challenge the findings of fact and conclusions of law contained in those orders. \u201cFailure to attack the judgment at the trial court level precludes such an attack on appeal.\u201d University of N. Carolina v. Shoemate, 113 N.C. App. 205, 216, 437 S.E.2d 892, 898 (1994) (citation omitted).\nThe findings of fact and conclusions of law supporting the defendant\u2019s disbarment had been affirmatively established by the prior unchallenged entry of default and order of discipline entered against defendant. Defendant was not entitled to a hearing, because all of the facts supporting the reinstatement of defendant\u2019s disbarment had been affirmatively established in the prior proceedings against defendant. See Martin, 299 N.C. at 721, 264 S.E.2d at 105.\nAFFIRMED.\nJudges STEPHENS and ROBERT N. HUNTER, Jr., concur.", "type": "majority", "author": "STEELMAN, Judge." } ], "attorneys": [ "The North Carolina State Bar, by Counsel Katherine Jean and Deputy Counsel David R. Johnson, for plaintiff-appellee.", "Brent E. Wood, pro se defendant-appellant." ], "corrections": "", "head_matter": "THE NORTH CAROLINA STATE BAR, Plaintiff v. BRENT E. WOOD, Attorney, Defendant\nNo. COA10-463\n(Filed 1 February 2011)\n1. Attorneys\u2014 disciplinary action \u2014 convicted of criminal offense\nThe North Carolina State Bar Disciplinary Hearing Commission did not err by disbarring defendant attorney in 2006 and reinstating this disbarment in 2009 based solely upon his conviction of criminal offenses even though no judgment of conviction had been entered against him. N.C.G.S. \u00a7 87- 28(b)(1) provides that an attorney must be convicted of a criminal offense showing professional unfitness instead of requiring a judgment of conviction be entered.\n2. Attorneys\u2014 disbarment \u2014 conditional reinstatement of right to practice law\nThe North Carolina State Bar Disciplinary Hearing Commission (DHC) did not err by granting only a conditional reinstatement of defendant attorney\u2019s right to practice law rather than vacating the original order of disbarment. Defendant failed to appeal from the 6 August 2007 order vacating his disbarment. Further, DHC had the inherent authority to place the condition upon the vacation of its order of disbarment upon future actions of an appellate court.\n3. Appeal and Error\u2014 preservation of issues \u2014 default judgment \u2014 failure to attack trial court judgment\nThe North Carolina State Bar Disciplinary Hearing Commission did not violate defendant attorney\u2019s due process rights and the North Carolina Administrative Code by reinstating defendant\u2019s disbarment without conducting a hearing. Defendant never moved to vacate the 20 September 2006 entry of default against him and never appealed the 27 October 2006 order of discipline based thereon. Further, all of the facts supporting the reinstatement of defendant\u2019s disbarment had been affirmatively established in the prior proceedings.\nAppeal by defendant from a disciplinary order entered 10 December 2009 by the Disciplinary Hearing Commission of the North Carolina State Bar. Heard in the Court of Appeals 3 November 2010.\nThe North Carolina State Bar, by Counsel Katherine Jean and Deputy Counsel David R. Johnson, for plaintiff-appellee.\nBrent E. Wood, pro se defendant-appellant." }, "file_name": "0454-01", "first_page_order": 464, "last_page_order": 470 }