{ "id": 4347882, "name": "IN RE: PETITION FOR REINSTATEMENT OF MICHAEL H. McGEE, Petitioner", "name_abbreviation": "In re Petition for Reinstatement of McGee", "decision_date": "2011-12-06", "docket_number": "No. COA11-471", "first_page": "325", "last_page": "331", "citations": [ { "type": "official", "cite": "217 N.C. App. 325" } ], "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": "92 S.E. 259", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1917, "pin_cites": [ { "page": "260", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "173 N.C. 466", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11270517 ], "year": 1917, "pin_cites": [ { "page": "469", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/173/0466-01" ] }, { "cite": "615 S.E.2d 867", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633420, 12633421 ], "year": 2005, "pin_cites": [ { "parenthetical": "citing CBP Resources, Inc. v. Mountaire Farms of N.C., Inc., 134 N.C. App. 169, 171, 517 S.E.2d 151, 154 (1999)" } ], "opinion_index": 0, "case_paths": [ "/se2d/615/0867-01", "/se2d/615/0867-02" ] }, { "cite": "N.C. Gen. Stat. \u00a7 84-23", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "pin_cites": [ { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "705 S.E.2d 782", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2011, "pin_cites": [ { "page": "786", "parenthetical": "holding that, since the defendant \"never appealed the . . . order of discipline,\" he \"cannot now challenge the findings of fact and conclusions of law contained in [this] order[ ]\"" }, { "page": "786", "parenthetical": "stating that \"Defendant failed to timely appeal the 6 August 2007 order of the DHC, and this order is not properly before this Court\"" } ], "opinion_index": 0 }, { "cite": "548 S.E.2d 527", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "opinion_index": 0 }, { "cite": "353 N.C. 452", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135974, 135980, 135596, 135797, 135800 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/nc/353/0452-02", "/nc/353/0452-03", "/nc/353/0452-01", "/nc/353/0452-05", "/nc/353/0452-04" ] }, { "cite": "542 S.E.2d 227", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "231" } ], "opinion_index": 0 }, { "cite": "142 N.C. App. 48", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9439459 ], "year": 2001, "pin_cites": [ { "page": "51" } ], "opinion_index": 0, "case_paths": [ "/nc-app/142/0048-01" ] }, { "cite": "261 S.E.2d 9", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "10" } ], "opinion_index": 0 }, { "cite": "44 N.C. App. 361", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8552947 ], "year": 1979, "pin_cites": [ { "page": "362" } ], "opinion_index": 0, "case_paths": [ "/nc-app/44/0361-01" ] }, { "cite": "577 S.E.2d 391", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "392", "parenthetical": "quoting Hearon v. Hearon, 44 N.C. App. 361, 362, 261 S.E.2d 9, 10 (1979)" } ], "opinion_index": 0 }, { "cite": "156 N.C. App. 680", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9192134 ], "year": 2003, "pin_cites": [ { "page": "682", "parenthetical": "quoting Hearon v. Hearon, 44 N.C. App. 361, 362, 261 S.E.2d 9, 10 (1979)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/156/0680-01" ] }, { "cite": "167 S.E.2d 549", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1969, "pin_cites": [ { "page": "553", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "4 N.C. App. 534", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8554841 ], "year": 1969, "pin_cites": [ { "page": "540", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/4/0534-01" ] }, { "cite": "517 S.E.2d 151", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "154" } ], "opinion_index": 0 }, { "cite": "134 N.C. App. 169", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11143552 ], "year": 1999, "pin_cites": [ { "page": "171" } ], "opinion_index": 0, "case_paths": [ "/nc-app/134/0169-01" ] }, { "cite": "359 N.C. 629", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3794693, 3804106, 3799854, 3797940, 3803604, 3802940, 3797532 ], "year": 2005, "pin_cites": [ { "parenthetical": "citing CBP Resources, Inc. v. Mountaire Farms of N.C., Inc., 134 N.C. App. 169, 171, 517 S.E.2d 151, 154 (1999)" } ], "opinion_index": 0, "case_paths": [ "/nc/359/0629-03", "/nc/359/0629-01", "/nc/359/0629-06", "/nc/359/0629-07", "/nc/359/0629-04", "/nc/359/0629-02", "/nc/359/0629-05" ] }, { "cite": "608 S.E.2d 821", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "pin_cites": [ { "page": "822" }, { "page": "822" } ], "opinion_index": 0 }, { "cite": "168 N.C. App. 717", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8472021 ], "weight": 2, "pin_cites": [ { "page": "719" }, { "page": "719" } ], "opinion_index": 0, "case_paths": [ "/nc-app/168/0717-01" ] }, { "cite": "349 S.E.2d 552", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "560", "parenthetical": "noting that \"[p]laintiff did not appeal the adverse determination,\" causing \"the judgment [to] bec[o]me final\"" } ], "opinion_index": 0 }, { "cite": "318 N.C. 421", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4736107 ], "year": 1986, "pin_cites": [ { "page": "434", "parenthetical": "noting that \"[p]laintiff did not appeal the adverse determination,\" causing \"the judgment [to] bec[o]me final\"" } ], "opinion_index": 0, "case_paths": [ "/nc/318/0421-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 84-28", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "pin_cites": [ { "page": "(h)" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 84-28.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "pin_cites": [ { "page": "(b)" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 84-15", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "683 S.E.2d 215", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2009, "pin_cites": [ { "parenthetical": "unpublished" } ], "opinion_index": 0 }, { "cite": "676 S.E.2d 668", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2009, "pin_cites": [ { "parenthetical": "unpublished" } ], "opinion_index": 0 }, { "cite": "197 N.C. App 231", "category": "reporters:state", "reporter": "N.C. App.", "year": 2009, "pin_cites": [ { "parenthetical": "unpublished" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 700, "char_count": 15037, "ocr_confidence": 0.746, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.14776208960445184 }, "sha256": "2159a7ef5503ce474d4d5326e8961d8e38d7a19c7ba75b4936e5f7f4340da3a8", "simhash": "1:f95b85e31829a560", "word_count": 2421 }, "last_updated": "2023-07-14T22:07:22.966851+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges STEELMAN and McCULLOUGH concur." ], "parties": [ "IN RE: PETITION FOR REINSTATEMENT OF MICHAEL H. McGEE, Petitioner" ], "opinions": [ { "text": "ERVIN, Judge.\nPetitioner 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\u2019s 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 the applicable North Carolina State Bar records by removing from public view any documents that are inconsistent with that determination. After carefully reviewing Petitioner\u2019s challenges to the DHC\u2019s order in light of the record and the applicable law, we conclude that the DHC did not err by denying Petitioner\u2019s motion.\nI. Factual and Procedural Background\nPetitioner, \u201ca 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\u2019s] petition to remove his past orders of discipline from the public record. [Petitioner\u2019s] subsequent motion for a new trial, alleging retaliation against him for his prior federal lawsuit and various other errors with the DHC\u2019s decision, was also denied. [Petitioner] appealed the DHC\u2019s decision to this Court in April 2008.\u201d 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\u2019s failure to note an appeal from the DHC\u2019s 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\u2019s remaining arguments were devoid of merit.\nOn appeal, Petitioner admits that, \u201c[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 decision dated February 11, 2010.\u201d Petitioner did not appeal the denial of his reinstatement petition. Instead, on 17 November 2010, Petitioner filed a motion asking the DHC to \u201c[ajmend the records of the NC State Bar to restore the petitioner\u2019s license to practice law, effective retroactively to a date five years to the day from the date of his suspension,\u201d and to \u201c[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 suspensi\u00f3n!)]\u201d On 1 February 2011, the DHC conducted a hearing, consisting of a telephone conference call, for the purpose of addressing Petitioner\u2019s motion. On 3 February 2011, the DHC entered an order denying Petitioner\u2019s motion and concluding, in pertinent part, that\nPetitioner 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.\n... 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.\nThe [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\u2019s reinstatement to the practice of law.. . .\nPetitioner noted an appeal to this Court from the DHC\u2019s order.\nII. Legal Analysis\nA. Final Order\nThe North Carolina State Bar is an agency of the State of North Carolina. N.C. Gen. Stat. \u00a7 84-15. N.C. Gen. Stat. \u00a7 84-28.1(b) provides that the DHC \u201cmay 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. . .\u201d According to N.C. Gen. Stat. \u00a7 84-28(h), appeals from disciplinary orders entered by the DHC are subject to the same procedures that govern appeals in civil cases:\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. . . .\nN.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 \u201c[p]laintiff did not appeal the adverse determination,\u201d causing \u201cthe judgment [to] bec[o]me final\u201d), and Clayton v. N.C. State Bar, 168 N.C. App. 717, 719, 608 S.E.2d 821, 822 (holding that, since \u201cplaintiff did not appeal the . . . order of discipline which ordered his disbarment, it became a final order\u201d), 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)).\nB. Collateral Attack on a Final Order\n\u201cA collateral attack is one in which a plaintiff is not entitled to the relief demanded in the complaint unless the judgment in another action is adjudicated invalid.\u201d Thrasher v. Thrasher, 4 N.C. App. 534, 540, 167 S.E.2d 549, 553 (1969) (citation omitted). \u201cA collateral attack on a judicial proceeding is \u2018an attempt to avoid, defeat, or evade it, or deny its force and effect, in some incidental proceeding not provided by law for the express purpose of attacking it.\u2019 \u201d Regional Acceptance Corp. v. Old Republic Surety Co., 156 N.C. App. 680, 682, 577 S.E.2d 391, 392 (2003) (quoting Hearon v. Hearon, 44 N.C. App. 361, 362, 261 S.E.2d 9, 10 (1979)).\nA final order is generally not subject to collateral attack. \u201cIf the court had jurisdiction of the subject-matter and the parties, it is altogether immaterial how grossly irregular or manifestly erroneous its proceedings may have been; its final order cannot be regarded as a nullity, and cannot, therefore, be collaterally impeached.\u201d Starnes v. Thompson, 173 N.C. 466, 469, 92 S.E. 259, 260 (1917) (citation omitted). The prohibition against collateral attacks on a final judgment is applicable to a petitioner\u2019s failure to appeal a DHC order. See, e.g., McGee I (stating that the petitioner\u2019s \u201cfailure to appeal the payment of cost requirement following entry of the order of discipline forecloses our review of the condition\u2019s reasonableness now,\u201d given that, \u201c[w]hen a party fails to appeal a ruling on a particular issue, he is then bound by that failure and may not revisit the issue in subsequent litigation\u201d) (citing McCallum v. N.C. Coop. Extension Serv., 142 N.C. App. 48, 51, 542 S.E.2d 227, 231, disc. review denied, 353 N.C. 452, 548 S.E.2d 527 (2001)), and N. C. State Bar v. Wood, _ N.C. App _, _, 705 S.E.2d 782, 786 (2011) (holding that, since the defendant \u201cnever appealed the . . . order of discipline,\u201d he \u201ccannot now challenge the findings of fact and conclusions of law contained in [this] order[ ]\u201d).\nC. Petitioner\u2019s Motion\nIn denying Petitioner\u2019s motion, the DHC noted that \u201cPetitioner [had] not filed a proper petition for reinstatement.\u201d We agree.\nAccording to N.C. Gen. Stat. \u00a7 84-23(a):\n... [The N.C. State Bar shall] formulate and adopt rules of professional ethics and conduct; investigate and prosecute matters of professional misconduct; grant or deny petitions for reinstatement; . . . and formulate and adopt procedures for accomplishing these purposes.\nActing pursuant to its rulemaking authority, the State Bar has adopted 27 N.C.A.C. \u00a7 01B.0125(b), which sets out a detailed procedure for obtaining reinstatement of a suspended attorney\u2019s law license and provides, in pertinent part, that:\n(1) No attorney who has been suspended may have his or her license restored but upon order of the commission or the secretary after the filing of a verified petition as provided herein\n(3) Any suspended attorney seeking reinstatement must file a verified petition[.] . . . The petitioner will have the burden of proving the following by clear, cogent and convincing evidence:\n(A) compliance with Rule .0124 of this subchapter;\n(B) compliance with all applicable orders of the commission and the council;\n(C) abstention from the unauthorized practice of law during the period of suspension;\n(E) abstention from conduct during the period of suspension constituting grounds for discipline under [N.C. Gen. Stat. \u00a7] 84-28(b);\n(J) payment of all membership fees, Client Security Fund assessments and late fees due and owing to the North Carolina State Bar[.[\n(7) . . . [A] hearing will be conducted in accordance with the North Carolina Rules of Civil Procedure for nonjury trials insofar as possible and the rules of evidence applicable in superior court.\n(8) The hearing panel will determine whether the petitioner\u2019s license should be reinstated and enter an appropriate order which may include additional sanctions in the event violations of the petitioner\u2019s order of suspension are found... [and which] must include . . . findings of fact and conclusions of law in support of its decision[.]\nAs a result, in order to obtain the reinstatement of his license to practice law, Petitioner was required to petition for such relief in the form and subject to the substantive rules set out in 27 N.C.A.C. \u00a7 01B.0125(b) and was not entitled to attempt to short-circuit these requirements through the use of some other procedural device.\nAs the record clearly reflects, Petitioner\u2019s motion completely fails to address any of the substantive criteria that must be satisfied in order to obtain the reinstatement of a license to practice law, the reasons that led to the suspension of Petitioner\u2019s law license, or Petitioner\u2019s present fitness to practice law. Given that set of circumstances, Petitioner has failed to request reinstatement of his license to practice law in the manner required by 27 N.C.A.C. \u00a7 01B.0125(b). As a result, the DHC correctly determined that Petitioner\u2019s motion was not a petition for reinstatement, so that he had not properly sought restoration of his license to practice law.\nAside from the procedural and substantive deficiencies inherent in the approach embodied in Petitioner\u2019s motion, his motion also represents an impermissible collateral attack on the DHC\u2019s order refusing to reinstate Petitioner\u2019s law license. As we have already noted, Petitioner unsuccessfully sought restoration of his law license approximately one year before filing the motion that is at issue in this case. When Petitioner failed to seek appellate review of the denial of his reinstatement petition in a timely manner, the order refusing to reinstate his license to practice law became final and thus is insulated from collateral attack. Clayton, 168 N.C. App. at 719, 608 S.E.2d at 822. The motion that led to the entry of the DHC order that is before us in this case requests the DHC to \u201ccorrect the record\u201d by \u201camending] the records\u201d of the N.C. State Bar to reflect that Petitioner\u2019s license to practice law had been restored and to \u201cstrike from the public records\u201d all indications that his license to practice law remained suspended after the expiration of the five year suspension period. As justification for the requested relief, Plaintiff asserts that, as a matter of law, the DHC was prohibited from attaching any conditions to the restoration of his law license at the end of his five year period of suspension. The argument advanced in Petitioner\u2019s motion could and should have been made at the time that Petitioner sought reinstatement of his law license or in the course of an appeal taken from the denial of his reinstatement petition. As a result, Petitioner\u2019s motion is also an impermissible collateral attack on the denial of his reinstatement petition. See Wood, _ N.C. App at _, 705 S.E.2d at 786 (stating that \u201cDefendant failed to timely appeal the 6 August 2007 order of the DHC, and this order is not properly before this Court\u201d). Thus, for the reasons set forth above, the DHC\u2019s order denying Petitioner\u2019s motion should be, and hereby is, affirmed.\nAFFIRMED.\nJudges STEELMAN and McCULLOUGH concur.", "type": "majority", "author": "ERVIN, Judge." } ], "attorneys": [ "Michael H. McGee, pro se.", "North Carolina State Bar, by Deputy Counsel David R. Johnson and Counsel Katherine Jean, for respondent-appellee." ], "corrections": "", "head_matter": "IN RE: PETITION FOR REINSTATEMENT OF MICHAEL H. McGEE, Petitioner\nNo. COA11-471\n(Filed 6 December 2011)\nAttorneys \u2014 discipline\u2014suspension of license \u2014 petition to reinstate denied \u2014 collateral attack\nThe Disciplinary Hearing Commission of the North Carolina State Bar (Bar) correctly denied petitioner's motion to amend the records of the Bar to state that his law license had been reinstated and to strike portions of the Bar's record reflecting otherwise. Petitioner did not file a proper petition for reinstatement; further, a prior order refusing reinstatement became final when petitioner did not timely appeal and may not be collaterally attacked.\nAppeal by petitioner from order entered 3 February 2011 by the Disciplinary Hearing Commission of the North Carolina State Bar. Heard in the Court of Appeals 12 October 2011.\nMichael H. McGee, pro se.\nNorth Carolina State Bar, by Deputy Counsel David R. Johnson and Counsel Katherine Jean, for respondent-appellee." }, "file_name": "0325-01", "first_page_order": 335, "last_page_order": 341 }