The opinion
IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA23-980
Filed 7 May 2024
N.C. State Bar, No. 23BCR1
IN RE: THE MATTER OF THE PETITION FOR REINSTATEMENT OF: GREGORY
BARTKO, Petitioner.
Appeal by defendant from orders entered 13 September 2023 by the
Disciplinary Hearing Commission of the North Carolina State Bar. Heard in the
Court of Appeals 2 April 2024.
The North Carolina State Bar, by Deputy Counsels J. Cameron Lee and
Kathryn H. Shields, for the respondent-appellee.
Gregory Bartko, pro se for the petitioner-appellant.
TYSON, Judge.
Gregory Bartko (“Petitioner”) appeals from orders dismissing his petition for
reinstatement to the North Carolina State Bar (the “State Bar”). We affirm.
I. Background
Petitioner was licensed to practice law and admitted to the State Bar on 29
June 1988. Petitioner was convicted in the United States District Court for the
Eastern District of North Carolina of one count of: conspiracy to commit mail fraud,
selling unregistered securities, laundering money instruments, engaging in unlawful
monetary transactions, making false statements, aiding and abetting the sell of
unregistered securities, and obstructing the Securities and Exchange Commission’s
IN RE BARTKO
Opinion of the Court
proceedings and four counts of: mail fraud and aiding and abetting mail fraud on 18
November 2010. See United States of America v. Gregory Bartko, 728 F.3d 327 (2013).
Petitioner tendered an affidavit and surrendered his license to practice law to
the Wake County Superior Court on 4 January 2011. Petitioner was disbarred by
order entered on 8 February 2011. Petitioner was sentenced to an active term of 23
years in the United States Bureau of Prisons, to be followed by a three-year term of
supervised release with the United States Probation Office. He was ordered to pay
restitution of $885,946.89 to more than 170 victims.
Petitioner was incarcerated at a United States Bureau of Prisons facility until
9 September 2020 when he was transferred to home confinement during the COVID-
19 pandemic to serve out the remainder of his sentence. Petitioner is scheduled for
release to the United States Probation Office on 21 June 2029.
Petitioner filed a verified petition seeking reinstatement of his license to
practice law in North Carolina, along with a supporting memorandum with the
Disciplinary Hearing Commission (“DHC”) on 12 May 2023. The State Bar moved to
dismiss the petition pursuant to 27 N.C.A.C. 1B § .0129(a)(9). Petitioner also filed a
motion for declaratory relief under the North Carolina Administrative Procedures
Act seeking the DHC to declare, inter alia, 27 N.C.A.C. 1B § .0129(a)(3)(E) was
unconstitutionally vague in violation of the Due Process clauses of the Fifth and
Fourteenth Amendments of the Constitution of the United States.
The DHC granted the State Bar’s motion to dismiss the petition on 17 July
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Opinion of the Court
2023. The same day the DHC entered an order denying Petitioner’s motion for a
declaratory ruling. Petitioner appealed both orders to the State Bar Council. The
State Bar Council rejected all appeals.
Petitioner appealed.
II. Jurisdiction
Jurisdiction lies in this Court pursuant to N.C. Gen. Stat. §§ 7A-27(b)(1); 84-
28(h) (2023) (“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.”).
III. Issues
Petitioner argues the DHC erred by: (1) granting the State Bar’s motion to
dismiss; (2) failing to convert the State Bar’s Rule 12(b)(6) motion to dismiss to a Rule
56 motion for summary judgment; (3) failing to address Petitioner’s constitutional
challenges; and, (4) refusing to consider Petitioner’s verified statements on his ability
and competence to carry out the responsibilities of a practicing lawyer. Petitioner
further argues the N. C. State Bar Council erred in refusing to hear his appeal of the
DHC orders.
IV. Standard of Review
“A Rule 12(b)(6) motion tests the legal sufficiency of the pleading.” Kemp v.
Spivey, 166 N.C. App. 456, 461, 602 S.E.2d 686, 690 (2004) (citation and quotation
marks omitted). “When considering a [Rule] 12(b)(6) motion to dismiss, the
[reviewing authority] need only look to the face of the [pleading] to determine whether
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Opinion of the Court
it reveals an insurmountable bar to plaintiff’s recovery.” Carlisle v. Keith, 169 N.C.
App. 674 ,681, 614 S.E.2d 542, 547 (2005) (citation and quotation marks omitted).
“On appeal from a motion to dismiss under Rule 12(b)(6) this Court reviews de
novo whether, as a matter of law, the allegations of the complaint . . . are sufficient
to state a claim upon which relief may be granted[.]” Christmas v. Cabarrus Cty., 192
N.C. App. 227, 231, 664 S.E.2d 649, 652 (2008) (citation and quotation marks
omitted). This Court “consider[s] the allegations in the complaint [as] true,
construe[s] the complaint liberally, and only reverse[s] the trial court’s denial of a
motion to dismiss if [the] plaintiff is entitled to no relief under any set of facts which
could be proven in support of the claim.” Id. (citation omitted).
V. The State Bar’s Motion to Dismiss
Petitioner argues the DHC erred in granting the State Bar’s Rule 12(b)(6)
motion to dismiss his petition for reinstatement. Our Administrative Code
articulates the content of a petitioner’s reinstatement petition to the State Bar and
requires:
(6) Petition, Service, and Hearing - The petitioner shall file
a verified petition for reinstatement with the secretary and
shall contemporaneously serve a copy upon the counsel.
The petition must identify each requirement for
reinstatement and state how the petitioner has met each
requirement. The petitioner shall attach supporting
documentation establishing satisfaction of each
requirement. Upon receipt of the petition, the secretary
will transmit the petition to the chairperson of the
commission. The chairperson will within 14 days appoint a
hearing panel as provided in Rule .0108(a)(2) of this
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Opinion of the Court
Subchapter and schedule a time and place for a hearing to
take place within 60 to 90 days after the filing of the
petition with the secretary. The chairperson will notify the
counsel and the petitioner of the composition of the hearing
panel and the time and place of the hearing, which will be
conducted pursuant to the procedures set out in Rules
.0114 to .0118 of this subchapter. The secretary shall
transmit to the counsel and to the petitioner any notices in
opposition to or concurrence with the petition filed with the
secretary pursuant to .0129(a)(3)(A) or (B).
27 N.C.A.C. 1B.0129(a)(6).
The requirements Petitioner carries the bidden to meet by “clear, cogent, and
convincing evidence” are also set forth in our Administrative Code:
(A) not more than six months or less than 60 days before
filing the petition for reinstatement, a notice of intent to
seek reinstatement has been published by the petitioner in
an official publication of the North Carolina State Bar. The
notice will inform members of the Bar about the
application for reinstatement and will request that all
interested individuals file with the secretary notice of
opposition to or concurrence with the petition within 60
days after the date of publication;
(B) not more than six months or less than 60 days before
filing the petition for reinstatement, the petitioner has
notified the complainant(s) in the disciplinary proceeding
which led to the lawyer's disbarment of the notice of intent
to seek reinstatement. The notice will specify that each
complainant has 60 days from the date of publication in
which to file with the secretary notice of opposition to or
concurrence with the petition;
(C) the petitioner has reformed and presently possesses the
moral qualifications required for admission to practice law
in this state taking into account the gravity of the
misconduct which resulted in the order of disbarment;
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Opinion of the Court
(D) permitting the petitioner to resume the practice of law
within the state will not be detrimental to the integrity and
standing of the bar, to the administration of justice, or to
the public interest, taking into account the gravity of the
misconduct which resulted in the order of disbarment;
(E) the petitioner's citizenship has been restored if the
petitioner has been convicted of or sentenced for the
commission of a felony;
(F) the petitioner has complied with Rule .0128 of this
subchapter;
(G) the petitioner has complied with all applicable orders
of the commission and the council;
(H) the petitioner has complied with the orders and
judgments of any court relating to the matters resulting in
the disbarment;
(I) the petitioner has not engaged in the unauthorized
practice of law during the period of disbarment;
(J) the petitioner has not engaged in any conduct during
the period of disbarment constituting grounds for
discipline under G.S. 84-28(b);
(K) the petitioner understands the current Rules of
Professional Conduct. Participation in continuing legal
education programs in ethics and professional
responsibility for each of the three years preceding the
petition date may be considered on the issue of the
petitioner's understanding of the Rules of Professional
Conduct. Such evidence creates no presumption that the
petitioner has met the burden of proof established by this
section;
(L) the petitioner has reimbursed the Client Security Fund
of the North Carolina State Bar for all sums, including
costs other than overhead expenses, disbursed by the
Client Security Fund as a result of the petitioner's
misconduct. The petitioner is not permitted to collaterally
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Opinion of the Court
attack the decision of the Client Security Fund Board of
Trustees regarding whether to reimburse losses occasioned
by the misconduct of the petitioner. This provision shall
apply to petitions for reinstatement submitted by
petitioners who were disbarred after August 29, 1984;
(M) the petitioner has reimbursed all sums which the
Disciplinary Hearing Commission found in the order of
disbarment were misappropriated by the petitioner and
which have not been reimbursed by the Client Security
Fund;
(N) the petitioner paid all dues, Client Security Fund
assessments, and late fees owed to the North Carolina
State Bar as well as all attendee fees and late penalties due
and owing to the Board of Continuing Legal Education at
the time of disbarment.
(O) if a trustee was appointed by the court to protect the
interests of the petitioner's clients, the petitioner has
reimbursed the State Bar all sums expended by the State
Bar to compensate the trustee and to reimburse the trustee
for any expenses of the trusteeship;
(P) the petitioner has properly reconciled all trust or
fiduciary accounts, and all entrusted funds of which the
petitioner took receipt have been disbursed to the
beneficial owner(s) of the funds or the petitioner has taken
all necessary steps to escheat the funds.
27 N.C.A.C. 1B.0129(3) (A)-(P) (emphasis supplied).
The DHC granted the State Bar’s motion to dismiss on the grounds Petitioner
failed to have “complied with the orders and judgments of any court relating to the
matters resulting in the disbarment.” 27 N.C.A.C. 1B.0129(a)(3)(H). Petitioner
alleged he could comply with this provision. Petitioner failed to carry his burden to
show show he has completed his federal active and probationary sentences under
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Opinion of the Court
“judgments of any court relating to the matters resulting in the disbarment.” Id.
Petitioner’s argument is overruled.
The State Bar also alleged Petitioner has failed to comply with 27 N.C.A.C.
1B.0129(3)(E), which requires a petitioner to have had their citizenship restored if
they have been convicted of a felony in support of its motion to dismiss. Petitioner
was convicted of multiple felonies and is still serving his active federal sentence, to
be followed by three years of mandatory probation, and his citizenship has not been
restored.
The DHC did not err in granting the State Bar’s motion to dismiss. In light of our
holding, we need not address Petitioner’s remaining arguments relating to the State
Bar’s motion to dismiss. Petitioner’s allegations are insufficient “to state a claim upon
which relief may be granted[.]” Christmas, 192 N.C. App. at 231, 664 S.E.2d at 652,
or to assert any grounds to carry his burden by “clear, cogent, and convincing
evidence” to meet the requirements for reinstatement as forth in our Administrative
Code. 27 N.C.A.C. 1B.0129(3).
VI. Constitutional Challenges Before the DHC
Petitioner argues the DHC erred in dismissing his motion seeking a
declaratory ruling concluding 27 N.C.A.C. 1B.0129(a)(3iE) is unconstitutional.
Petitioner’s argument is misplaced. “The Legislature has expressly and specifically
delegated to the State Bar Council and DHC the power to regulate and handle
disciplinary proceedings of the State Bar.” N.C. State. Bar v. Rogers, 164 N.C. App.
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648, 654, 596 S.E.2d 337, 341 (2004) (citations omitted).
The Administrative Procedures Act “is a statute of general applicability, and
does not apply where the Legislature has provided for a more specific administrative
procedure to govern a state agency.” Id. (citation omitted). Petitioner asserts the
DHC was required to apply N.C. Gen. Stat. § 150B-4(a) (2023). The Administrative
Procedures Act is not applicable to the DHC in Petitioner’s motion for a declaratory
ruling. The Legislature has not delegated authority to the DHC hear motions for
declaratory relief under the Administrative Procedures Act. Id.
VII. Appellate Jurisdiction of the State Bar Council
Petitioner argues the State Bar Council erred in dismissing his appeal of the
dismissal of his motion for a declaratory ruling. Our General Statutes provide: “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.” N.C. Gen. Stat. § 84-
28(h). The State Bar Council did not err in dismissing Petitioner’s purported appeal.
Id.
VIII. Conclusion
Petitioner has not complied with execution and terms of the judgment and
completed his federal sentence, and he has not had his citizenship restored following
serving his sentence. The DHC does not have jurisdiction to hear motions for
declaratory relief under the Administrative Procedures Act. The DHC did not err in
dismissing Petitioner’s petition and motion. The State Bar Council did not have
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appellate jurisdiction over a final order of the DHC. Id. The orders of the DHC and
State Bar Council are affirmed. It is so ordered.
AFFIRMED.
Judges STROUD and GORE concur.
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