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rf\Xo G,'. <-MX £©oo ^. a ^i NC-st4ii« iar* 200 i-.t.'^S^ ^^^-^^^^"^b.-**^ State Bar Rules and Regulations page 8 Revised Rules of Professional Conduct page 65 Ethics Opinions page 128 Index to Ethics Opinions page 246 Trust Accoimt Guidelines page 256 lOLTA Questions and Answers page 264 The: North fCardlirifa ^ite";aat Lawyier's Handbo6tc20bO:(Abfidged)| /^'hvofficial publicatibh -of the VflortK'^arolina^jf.'^ Oiaic . uiai -^. y^i iiaii m ly li re:- 1 1 ivjot,': ll CVJUCI Illy referencecj Tules^arid r^ulatibr^pf tftlNorth-j;- Garolina State- Bar,^;annbtafed''^evisiy;'Rules^^^ 0f Professionar Conduct,-;a1I Ethics Spiqions , adopted under Revised Roles ahd SuperSeiQiiB^ (1985) Rules, and Trust Accbuhfguldelinelp^'^ - 'W&-: Take Yo ur Practice To A H • igh er m^^ ^^«J90 Enhance Your Professionalism A Increase i Knowledge ~ in Your Practice Area Demonstrate Your Skill and Experience Applications are accepted annually in June And July. Examinations given in November of each year. Board of Legal Specialization Increase Business and Referrals For information, contact: Alice Neece Moseley North Carolina State Bar P. O. Box 25908 Riileigh, NC 27611 Phone: (919) 828-4620 Selected Provisions from the Rules ^f^^^^S North Carolina State Bar Table of Contents OCT 2 5 2010 OliiiLuumi1V(S= 27 NCAC Chapter 1 8 Subchapter A: Organization of the North Carolina State Bar 8 Section .0200 Membership - Annual Membership Fees .0201 Classes of Membership .0202 Register of Members .0203 Annual Membership Fees; When Due . . . . Subchapter B: Discipline and Disability Rules .0102 .0103 .0104 .0105 .0106 .0107 .0108 .0109 .0110 .0111 .0112 .0113 .0114 .0115 .0116 .0117 .0118 .0119 .0120 .0121 .0122 .0123 .0124 .0125 .0126 .0127 Section .0100 Discipline and Disability of Attorneys .0101 General Provisions Procedure for Discipline Definitions State Bar Council: Powers and Duties in Discipline and Disability Matters Chairperson of the Grievance Comminee: Powers and Duties Grievance Comminee: Powers and Duties Counsel: Powers and Duties Chairperson of the Hearing Commission: Powers and Duties Hearing Committee: Powers and Duties Secretary: Powers and Duties in Discipline and Disability Matters Grievances: Form and Filing Investigations: Initial Determination Proceedings before the Grievance Committee Formal Hearing Effect of a Finding of Guilt in Any Criminal Case . . Reciprocal Discipline Surrender of License While Under Investigation . . . Disability Hearings Enforcement of Powers Notice to Member of Action and Dismissal Notice to Complainant Appointment of Counsel to Protea Clients Interests When Attorney Disappears, Dies, or is Transferred to Disability Inactive Status Imposition of Discipline; Findings of Incapacity or Disability; Notice to Courts Obligations of Disbarred or Suspended Attorneys . . Reinstatement Address of Record Disqualification Due to Interest .8 .8 .0201 .8 .0202 .8 .0203 ,9 .0204 .0205 .9 .0206 .9 .0207 .9 .9 .0208 .10 .10 .11 .11 .11 .12 .12 .12 .12 .13 .14 .16 .17 .17 .18 .19 .19 .19 .19 .19 .19 .20 .22 .22 .0128 Trust Accounts; Audit . . . .N.ORTH .CAR.OUNA . . .22 .0129 Confidentiality RALEIGH 23 .0130 Disciplinary Amnesty in Illicit Drug Use Cases 23 Section .0200 Rules Governing Judicial District Grievance Committees 23 Organization of Judicial District Grievance Committees . .23 Jurisdiction and Authority of District Grievance Committee 24 Meetings of the District Grievance Committees 24 Procedure Upon Institution of a Grievance 25 Record Keeping 25 Miscellaneous 26 Conflicts of Interest 26 Lener to Complainant Where Local Grievance Alleges Fee Dispute Only 26 Letter to Complainant Where Local Grievance Alleges Fee Dispute and Other Violations 26 Letter to Complainant/Respondent Where District Committee Recommends Finding of No Probable Cause .26 Lener to Respondent Where District Comminee Recommends Finding of Probable Cause 27 Lener to Complainant Where District Comminee Recommends Finding of Probable Cause 27 Letter to Complainant Acknowledging Grievance 27 Lener to Investigating Attorney Assigning Grievance 27 Lener to Complainant from Investigating Anomey 28 Letter of Notice to Respondent Attorney 28 Lener Transmitting Completed File to North Carolina State Bar 28 -k, Subchapter D: Rules of the Standing Committees of the North Carolina State Bar 28 Section .0100 Procedures for Ruling on Questions of Legal Ethics 28 .0101 Definitions 28 .0102 General Provisions 29 .0103 Informal Ethics Advisories and Ethics Advisories 29 .0104 Formal Ethics Opinions and Ethics Decisions 29 Section .0400 Rules and Regulations Relating to the Appointment of Counsel for Indigent Defendants in Certain Criminal Cases 30 .0401 Authority 30 .0402 Determinanon of Indigency 30 .0403 Waiver of Counsel 30 .0404 Appointment of Counsel 30 .0405 Withdrawal by Counsel 31 .0209 .0210 .0211 .0212 .0213 .0214 .0215 .0216 .0217 For a complete listing of all Rules of the State Bar, see page 265 The North Carolina State Bar Lawyer's Handbook page 3 .0406 Procedure for Payment of Compensation 31 Section .0500 Model Plan for Appointment of Counsel for Indigent Defendants in Certain Criminal Ctses 31 .0501 Purpose 31 .0502 Applicability -31 .0503 List of Attorneys 31 .0504 Committee on Indigent Appointments 32 .0505 Placement of Attorneys on List 32 .0506 Appointment Procedure (Noncapital Cases) 33 .0507 Appointments in Capital Cases 33 .0508 Appellate Appointments 33 .0509 Administration 33 .0510 Miscellaneous 34 Section .0700 Procedures for Fee Dispute Arbitration 34 .0701 Implementation of a Model Plan 34 .0702 Alternative to District Bar-Sponsored Aibitration 34 .0703 Coordinator of Fee Arbitration 34 .0704 Volunteer Committee Service 34 Section .0900 Procedures for Administrative Committee 34 .0901 Transfer to Inactive Status 34 .0902 Reinstatement from Inactive Status 34 .0903 Suspension for Nonpayment of Membership Fee, Late Fee, Client Security Fund Assessment, or Assessed Costs 35 .0904 Reinstatement After Suspension for Failure to Pay Fees or Assessed Costs 36 Section .1400 Rules Governing the Administration of the Client Security Fund of the North Carolina State Bar 36 .1401 Purpose; Definitions 36 .1402 Jurisdiction: Authority 37 .1403 Operational Responsibility 37 .1404 Size of Board 37 .1405 Lay Participation 37 .1406 Appointment of Members; When; Removal 37 .1407 Term of Office 37 .1408 Staggered Terms 37 .1409 Succession 37 .1410 Appointment of Chairperson 37 .1411 Appointment of Vice-Chairperson 37 .1412 Source of Funds 38 .1413 Fiscal Responsibility 38 .1414 Meetings 38 .1415 Annual Report 38 .1416 Appropriate Uses of the Client Security Fund ..38 .1417 Applications for Reimbursement 38 .1418 Processing Applications 38 .1419 Subrogation for Reimbursement 39 .1420 Authority Reserved by the Supreme Court 39 Section .1500 Rules Governing the Administration of the Continuing Legal Education Program 39 . 1 50 1 Purpose and Definitions 39 .1502 Jurisdiction: Authority 40 .1503 Operational Responsibility 40 .1504 Size of Board 40 . 1 505 Lay Participation 40 .1506 Appointment of Members; When; Removal 40 .1507 Term of Office 40 . 1 508 Staggered Terms 40 .1509 Succession 40 .1510 Appointment of Chairperson 40 .151 1 Appointment of Vice-Chairperson 41 .1512 Source of Funds 41 .1513 Fiscal Responsibility 41 .1514 Meetings 41 .1515 Annual Report 41 .1516 Powers and Duties of the Board 41 .1517 Scope and Exemptions 41 .1518 Continuing Legal Education Program 42 .1519 Accreditation Standards 42 . 1 520 Accreditation of Sponsors and Programs 42 .1521 Credit Hours 42 .1522 Annual Report 42 . 1 523 Noncompliance 43 . 1 524 Reinstatement 43 .1525 Confidentiality 44 .1526 Effective Date 44 . 1 527 Regulations 44 Section .1600 Regulations Governing the Administration of the Continuing Legal Education Program 44 . 1 60 1 Organization 44 .1602 General Course Approval 44 .1603 Accredited Sponsors 45 . 1 604 Accreditation of Prerecorded Programs and Live Programs Broadcast to Remote Locations by Telephone, Satellite or Video Conferencing Equipment 45 .1605 Computation of Credit 46 .1606 Fees 46 .1607 Special Cases and Exemptions 46 .1608 General Compliance Procedures 46 .1609 Noncompliance Procedures 46 .1610 Authority for Appeals 47 Section .1700 The Plan of Legal Specialization 47 .1701 Purpose 47 .1702 Jurisdiction; Authority 47 .1703 Operational Responsibility 47 .1704 Size of Board 47 .1705 Lay Participation 47 .1706 Appointment of Members; When; Removal 47 .1707 Term of Office 47 .1708 Staggered Terms 47 .1709 Succession 47 .1710 Appointment of Chairperson 47 .1711 Appointment of Vice-Chairperson 47 .1712 Source of Funds 47 .1713 Fiscal Responsibility 47 .1714 Meetings 48 .1715 Annual Report 48 .1716 Powers and Duties of the Board 48 .1717 Retained Jurisdiction of the Council 48 page 4 The North Carolina State Bar Lawyer's Handbook .1718 Privileges Conferred and Limitations imposed 48 .1719 Specialty Committees 49 .1720 Minimum Standards for Certification of Specialists 49 .1721 Minimum Standards for Continued Certification4 of Specialists 49 .1722 Establishment of Additional Standards 50 .1723 Suspension or Revocation of Certification as a Specialist ..50 .1724 Right to Hearing and Appeal to Council 50 .1725 Areas of Specialty 50 . 1 726 Certification Standards of the Specialties of Bankruptcy Law, Estate Planning and Probate Law, Real Property Law, Family Law, and Criminal Law 50 Section .2100 Certification Standards for the Real Property Law Specialty 50 .2101 Establishment of Specialty Field 50 .2102 Definition of Specialty 50 .2103 Recognition as a Specialist in Real Property Law 51 .2 1 04 Applicability of Provisions of the North Carolina Plan of Legal Specialization 51 .2105 Standards for Certification as a Specialist in Real Property Law .5 1 .2106 Standards for Continued Certification as a Specialist 51 .2107 Applicability of Other Requirements 51 Section .2200 Certification Standards for the Bankruptcy Law Specialty 51 .2201 Establishment of the Specialty Field 51 .2202 Definition of Specialty 52 .2203 Recognition as a Specialist in Bankruptcy Law 52 .2204 Applicability of Provisions of the North Carolina Plan of Legal Specialization 52 .2205 Standards for Certification as a Specialist in Bankruptcy Law 52 .2206 Standards for Continued Certification as a Specialist 52 .2207 Applicability of Other Requirements 53 Section .2300 Certification Standards for the Estate Planning and Probate Law Specialty 53 .2301 Establishment of Specialty Field 53 .2302 Definition of Specialty 53 .2303 Recognition as a Specialist in Estate Planning and Probate Law 53 .2304 Applicability of Provisions of the North Carolina Plan of Legal Specialization 53 .2305 Standards for Certification as a Specialist in Estate Planning and Probate Law 53 .2306 Standards for Continued Certification as a Specialist 54 .2307 Applicability of Other Requirements 54 Section .2400 Certification Standards for the Family Law Specialty . .54 .2401 Establishment of Specialty Field 54 .2402 Definition of Specialty 54 .2403 Recognition as a Specialist in Family Law 54 .2404 Applicability of Provisions of the North Carolina Plan of Legal Specialization 54 .2405 Standards for Certification as a Specialist in Family Law . .54 .2406 Standards for Continued Certification as a Specialist 55 .2407 Applicability of Other Requirements 55 Section .2500 Certification Standards for the Criminal Law Specialty .55 .2501 Establishment of Specialty Field 55 .2502 Definition of Specialty 55 .2503 Recognition as a Specialist in Criminal Law 55 .2504 Applicability of Provisions of the North Carolina Plan of Legal Specialization 55 .2505 Standards for Certification as a Specialist 56 .2506 Standards for Continued Certification as a Specialist 57 .2507 Applicability of Other Requirements 57 Section .2600 Certification Standards for the Immigration Law Specialty 57 .2601 Establishment of Specialty Field 57 .2602 Definition of Specialty 57 .2603 Recognition as a Specialist in Immigration Law 57 .2604 Applicability of Provisions of the North Carolina Plan of Legal Specialization 57 .2605 Standards for Certification as a Specialist in Immigration Law 58 .2606 Standards for Continued Certification as a Specialist 58 .2607 Applicability of Other Requirements 58 Subchapter E: Regulations for Organizations Practicing Law 59 Section .0100 Regulations for Professional Corporations and Professional Limited Liability Companies Practicing Law 59 .0101 Authority, Scope, and Definitions 59 .0102 Name of Professional Corporation or Professional Limited Liability Company 59 .0103 Registration with the North Carolina State Bar 59 .0104 Management and Financial Matters 61 .0105 General and Administrative Provisions 61 .0106 Forms 62 Section .0200 Registration of Interstate and International Law Firms 64 .0201 Registration Requirement 64 .0202 Conditions of Registration 64 .0203 Registration Fee 64 .0204 Certificate of Registration 64 .0205 Effect of Registration 64 Title 27 of the North Carolina Administrative Code: The North Carolina State Bar Chapter 2: Revised Rules of Professional Conduct 65 0.1 Preamble: A Lawyer's Responsibihties 66 0.2 Scope 67 0.3 Terminology 68 Client-Lawyer Relationship Rule 1.1 Competence 68 Rule 1 .2 Scope Of Representation 69 Rule 1.3 Diligence 70 Rule 1 .4 Communication 71 Rule 1.5 Fees . 72 Rule 1.6 Confidentiality of Information 75 Rule 1.7 Conflict of Interest: General Rule 77 The North Carolina State Bar Lawyers Handbook Rule 1 .8 Conflict of Interest: Prohibited Transactions and Other Specific Applications 82 Rule 1.9 Conflict of Interest: Former Client 84 Rule 1.10 Imputed Disqualification: General Rule 85 Rule 1.11 Successive Government and Private Employment 86 Rule 1.12 Former Judge or Arbitrator 87 Rule 1.13 Organization As Client '. 88 Rule 1.14 Client Under a Disability 89 Rule 1.15-1 Preserving Identity of Funds and Property of a Client 90 Rule 1.15-2 Record Keeping and Accounting for Client Funds and Property 92 Rule 1.15-3 Interest on Lawyers' Trust Accounts 93 Rule 1.16 Declining or Terminating Representation 94 Rule 1.17 Sale of a Law Practice 95 Rule 1.18 Sexual Relations with Clients Prohibited 97 Counselor Rule 2.1 Advisor 97 Rule 2.2 Intermediary 98 Rule 2.3 Evaluation for Use by Third Persons 99 Advocate Rule 3.1 Meritorious Claims and Contentions 99 Rule 3.2 Expediting Litigation 100 Rule 3.3 Candor Toward the Tribunal 100 Rule 3.4 Fairness to Opposing Party and Counsel 102 Rule 3.5 Impartiality and Decorum of the Tribunal 103 Rule 3.6 Trial Publicity 104 Rule 3.7 Lawyer as Witness 105 Rule 3.8 Special Responsibilities of a Prosecutor 106 Rule 39 Reserved 107 Transactions with Persons Other Than Clients Rule 4.1 Truthfulness in Statements to Others 107 Rule 4.2 Communication with Person Represented by Counsel . . .107 Rule 4.3 Dealing with Unrepresented Person 108 Rule 4.4 Respect for Rights ofThird Persons 109 Law Firms and Associations Rule 5.1 Responsibilities of a Partner or Supervisory Lawyer 109 Rule 5.2 Responsibilities of a Subordinate Lawyer 109 Rule 5.3 Responsibilities Regarding Nonlawyer Assistants 110 Rule 5.4 Professional Independence of a Lawyer 110 Rule 5.5 Unauthorized Practice of Law Ill Rule 5.6 Restrictions on Right to Praaice 112 Public Service Rule 6.1 Reserved 112 Rule 6.2 Reserved .' 112 Rule 6.3 Membership in Legal Services Organization 112 Rule 6.4 Law Reform Activities Affecting Client Interests 112 Rule 6.5 Action as a Public Official 1 13 Information About Legal Services Rule 7.1 Communications Concerning a Lawyer's Services 113 To Reiterate Since 1996 the State Bar has published the North Carolina State Bar Lawyer's Handbook on an annual basis. Not surprisingly, the Handbook, a compendium of most things relating to the State Bar, has increased in size each year since its inception. The accretion of ethics opinions, new regulations, and miscellaneous information have made the book more costly to publish and distribute. Realizing that this trend toward textual obesity could only be arrested by a ces-sation of regulatory activity or surgery, the publisher elected editori-al liposuaion. The result is a svelte new printed version of the Handbook that contains only those materials deemed essential to the average lawyer's understanding of his or her professional obligations and relationship to the North Carolina State Bar. You will note par-ticularly the retention of the Annotated Revised Rules of Professional Conduct and the fiill text of all formal ethics opinions issued since the adoption of the Rules of Professional Conduct in 1985. But wait, there is more. Realizing that the fiiture of legal research is digital and that an ever growing percentage of our lawyers are com-puter literate, we decided to make our Handbook available on CD-ROM in tandem with the fat free publication just described. In con-trast with the printed Handbook, the CD-ROM is an enhanced product containing all of the information presented in the old Handbook and a great deal more, including a list of the State Bar's entire membership. It is fully searchable and can be downloaded onto your personal computer's hard drive for ready reference during the entire year. We would like your comments concerning the printed Handbook and, particiJarly, the CD- ROM version. Although we plan to make a printed version available on some basis for the next few years, we envision a future that is increasingly digital. Unlike printed hand-books, compact discs can accommodate vast quantities of supple-mental information from year to year without getting larger and heavier. Just as important, they cost very little to produce, reproduce, and mail. We hope that these qualities, in combination with the ease with which digitally encoded information can be accessed, manipu-lated, and updated, will lead us into a brave new world in which we can give you more and better for less. L. Thomas L.unsford II page 6 The North Carolina State Bar Lawyer's Handbook Rule 7.2 Advertising 114 Rule 7.3 Direct Contact with Prospective Clients 115 Rule 7.4 Communication of Fields of Practice 116 Rule 7.3 Firm Names and Letterheads 117 Maintaining the Integrity of the Profession Rule 8.1 Bar Admission and Disciplinary Matters 118 Rule 8.2 Judges and Other Adjudicatory Officers 118 Rule 8.3 Reporting Professional Misconduct 118 Rule 8.4 Misconduct 119 Rule 8.5 Disciplinary Authority; Choice of Law 122 Correlation Tables Correlation Table 1: Revised Rules of Professional Conduct and Superseded N.C. Rules of Professional Conduct (1985) 123 Correlation Table 2; Superseded N.C. Rules of Professional Conduct, Revised Rules of Professional Conduct, and Superseded Code of Professional Responsibility 125 Ethics Opinions 128 Ethics Opinion Index 246 Trust Account Guidelines 256 lOLTA Questions and Answers 264 The North Carolina State Bar Lawyers Handbook page 7 Title 27 of the North Carolina Administrative Code The North Carolina State Bar Chapter 1 Rules and Regulations of the North Carolina State Bar Editor's Note: The Rules and Regulations of the Notth Carolina State Bar are published ofFicially in the North Carolina Reports and the Notth Carolina Administtative Code - Title 27. They may be cited ptoperly with reference to the Administtative Code. For example, Rule 7.4 of the Revised Rules of Professional Conduct would be cited as 27 NCAC 2 7.4. SUBCHAPTER A Organization of the North Carolina State Bar Section .0200 Membership - Annual IVIembership Fees .0201 Classes of Membership (a) Two Classes of Membership Members of the North Carolina State Bar shall be divided into two classes; active members and inactive membeis. (b) Active Members The active members shall be all persons who have obtained licenses enti-tling them to practice law in North Catolina, including persons serving as jus-tices or judges of any state or federal court in this state, unless classified as inac-tive membeis by the council. All active members must pay the annual mem-bership fee. (c) Inactive Membeis The inactive membeis shall include all peisons who have been admitted to the piactice of law in Noith Carolina but who the council has found are not engaged in the practice of law or holding themselves out as practicing attorneys and who do not occupy any public or private position in which they may be called upon to give legal advice or counsel or to examine the law or to pass upon the legal effect of any act, document or law. Inactive members of the North Carolina State Bai may not piactice law and ate exempt from payment of membership dues during the period in which they are inactive membeis. Foi puiposes of the State Bats membership records, the category of inactive mem-bers shall be further divided into the following subcategories; (1) Retired/ nonpracticing This subcategory includes those membeis who are not engaged in the practice of law or holding themselves out as practicing attorneys and who ate letiied, hold positions unrelated to the piactice of law, or piactice law in other juiisdictions. (2) Disability inactive status This subcategory includes members who suffer from a mental or physi-cal condition which significantly impairs the professional judgment, pei-formance oi competence of an attorney, as determined by the couits, the council 01 the Disciplinaiy Heating Commission. (3) Disciplinary suspensions/disbarments This subcategory includes those members who have been suspended from the practice of law or who have been disbarred by the couits, the council 01 the Disciplinaiy Heating Commission foi one or more viola-tions of the Rules of Professional Conduct. (4) Administtative suspensions This subcategory includes those members who have been suspended from the piactice of law for failure to comply with the legulations legard-ing mandatoiy continuing legal education, payment of membership fi:es, or payment of late fees pursuant to these lules. History Note; Statutory Authority G.S. 84-16; G.S. 84-23 Readopted Effective December 8, 1994 .0202 Register of Members (a) Initial Registiation with State Bar Every member shall register by completing and returning to the North Carolina State Bar a signed registration card containing the following information: (1) name and address; (2) date; (3) date passed examination to practice in North Carolina; (4) date and place sworn in as an attorney in Notth Carolina; (5) date and place of biith; (6) list of all othei jurisdictions where the membei has been admitted to the piactice of law and date of admission; (7) whethei suspended oi disbaiied from the piactice of law in any juris-diction or court, and if so, when and where, and when readmitted. (b) Membeiship Records of State Bar The secretary shall keep a permanent register for the enrollment of mem-bers of the North Carolina State Bar. In appropriate places therein entries shall be made showing the address of each member, date of registration and class of membeiship, date of tiansfei from one class to anothei, if any, date and peiiod of suspension, if any, and such othei usefiji data which the council may from time to time lequiie. Histoiy Note; Statutoiy Authoiity G.S. 84-23; G.S. 84-34 Readopted Effective Decembei 8, 1994 Amended Decembei 7, 1995 .0203 Annual Membership Fees; When Due (a) Amount and Due Date The annual membeiship fee shall be in the amount as provided by law and shall be due and payable to the secretaiy of the Noith Carolina State Bar on January 1 of each year and the same shall become delinquent if not paid before July 1 of each year. (b) Late Fee Any attorney who fails to pay the entire annual membership fee in the amount provided by law and the annual Client Security Fund assessment approved by the North Caiolina Supreme Couit before July 1 of each year shall also pay a late fee of $30. (c) Waivei of All or Part of Dues No part of the annual membership fee or Client Security Fund assessment shall be prorated ot apportioned to fractional parts of the year, and no part of the membership fee or Client Security Fund assessment shall be waived or rebated for any reason with the following exceptions: (1) A person licensed to practice law in North Carolina for the first time by examination shall not be liable for dues or the Client Security Fund assessment duiing the yeai in which the peison is admitted; (2) A peison licensed to piactice law in Noith Carolina serving in the armed forces, whether in a legal or nonlegal capacity, will be exempt from payment of dues and Client Security Fund assessment for any year in which the member is on active duty in the military service; (3) A person licensed to practice law in North Carolina who files a peti-page 8—Subchapter A The North Carolina State Bar Lawyer's Handbook tion for inactive status on or before December 31 of a given year shall not be liable for the membership fee or the Client Security Fund assessment for the following year if the petition is granted. A petition shall be deemed timely if it is postmarked on or before December 31. History Note: Statutory Authority G.S. 84-23; G.S. 84-34 Readopted Effective December 8, 1994 Amended September 7, 1995 Amended December 7, 1995 Amended March 7, 1996 SUBCHAPTER B Discipline and Disability Rules Section .0100 Discipline and Disability of Attorneys .0101 General Provisions Discipline for misconduct is not intended as punishment for wrongdoing but is for the protection of the public, the courts, and the legal profession. The fact that certain misconduct has remained unchallenged when done by others, or when done at other times, or that it has not been made the subject of earli-er disciplinary proceedings, will not be a defense to any charge of misconduct by a member. History Note: Statutory Authority G.S. 84-23 Readopted Effective December 8, 1994 .0102 Procedure for Discipline (a) The procedure to discipline members of the bar of this state will be in accordance with the provisions hereinafter set forth. (b) District bars will not conduct separate proceedings to discipline mem-bers of the bar but will assist and cooperate with the North Carolina State Bar in reporting and investigating matters of alleged misconduct on the part of its members. (c) Concurrent Jurisdiction of State Bar and Courts (1) The Council of the North Carolina State Bar is vested, as an agency of the state, with the control of the discipline, disbarment, and restora-tion of attorneys practicing law in this state. (2) The courts of this state have inherent authority to take disciplinary action against attorneys practicing therein, even in relation to matters not pending in the court exercising disciplinary authority. (3) The authority of the North Carolina State Bar and the courts to dis-cipline attorneys is separate and distinct, the North Carolina State Bar having derived its jurisdiction by legislative act and the courts from the inherent power of the courts themselves. (4) Neither the North Carolina State Bar nor the courts are authorized or empowered to act for or in the name of the other, and the disciplinary action taken by either entity should be clearly delineated as to the source or basis for the action being taken. (5) It is the position of the North Carolina State Bar that no trial court has the authority to preempt a North Carolina State Bar disciplinary pro-ceeding with a pending civil or criminal court proceeding involving attor-ney conduct, or to dismiss a disciplinary proceeding pending before the North Carolina State Bar. (6) Whenever the North Carolina State Bar learns that a court has initi-ated an inquiry or proceeding regarding alleged improper or unethical conduct of an attorney, the Notth Carolina State Bar may defer to the court and stay its own proceeding pending completion of the court's inquiry or proceeding. Upon request, the North Carolina State Bar will assist in the court's inquiry or proceeding. (7) If the North Carolina State Bar finds probable cause and institutes dis-ciplinary proceedings against an attorney for conduct which subsequent-ly becomes an issue in a criminal or civil proceeding, the court may, in its discretion, defer its inquiry pending the completion of the North Carolina State Bar's proceedings. (8) Upon the filing of a complaint by the North Carolina State Bar, the North Carolina State Bar will send a copy of the complaint to the chief resident superior court judge and to all superior court judges regularly assigned to the district in which the attorney maintains his or her law office. The North Carolina State Bar will send a copy of the complaint to the district attorney in the district in which the attorney maintains a law office if the complaint alleges criminal activity by the attorney (9) The North Carolina State Bar will encourage judges to contact the North Carolina State Bar to determine the status of any relevant com-plaints filed against an attorney before the court takes disciplinary action against the attorney. History Note: Statutory Authority G .8. 84-23; G.S. 84-36 Readopted Effective December 8, 1994 .0103 Definitions Subject to additional definitions contained in other provisions of this sub-chapter, the following words and phrases, when used in this subchapter, will have, unless the context clearly indicates otherwise, the meanings given to them in this rule. (1) Admonition - a wtitten form of discipline imposed in cases in which an attorney has committed a minor violation of the Rules of Professional Conduct. (2) Appellate division - the appellate division of the general court of justice. (3) Board - the Board of Continuing Legal Education. (4) Board of Continuing Legal Education - a standing committee of the council responsible for the administration of a program of mandatory contin-uing legal education and law practice assistance. (5) Censure - a written form of discipline more serious than a reprimand issued in cases in which an attorney has violated one or more provisions of the Rules of Professional Conduct and has caused significant harm or potential sig-nificant harm to a client, the administration of justice, the profession, or a member of the public, but the misconduct does not require suspension of the attorney's license. (6) Certificate of conviction - a certified copy of any judgment wheicin a member of the North Carolina State Bar is convicted of a criminal offense. (7) Chairperson of the Grievance Committee - councilor appointed to serve as chairperson of the Grievance Committee of the North Carolina State Bar. (8) Commission - the Disciplinary Hearing Commission of the North Carolina State Bar (9) Commission chairperson - the chairperson of the Disciplinary Hearing Commission of the North Carolina State Bar. (10) Complainant or complaining witness - any person who has com-plained of the conduct of any member of the North Carolina State Bar to the North Carolina State Bar (11) Complaint - a formal pleading filed in the name of the North Carolina State Bar with the commission against a member of the North Carolina State Bar after a finding of probable cause. (12) Consolidation of cases - a hearing by a hearing committee of multiple charges, whether related or unrelated in substance, brought against one defen-dant. (13) Council - the Council of the North Carolina State Bar. (14) Councilor - a member of the Council of the North Carolina State Bar. (15) Counsel - the counsel of the North Carolina State Bar appointed by the council. ( 1 6) Court or courts of this state - a court authorized and established by the constitution or laws of the state of North Carolina. (17) Criminal offense showing professional unfitness - the commission of, attempt to commit, conspiracy to commit, solicitation or subornation of any felony or any crime that involves false swearing, misrepresentation, deceit, extortion, theft, bribery, embezzlement, false pretenses, fraud, interference with the judicial or political process, larceny, misappropriation of funds or property, overthrow of the government, perjury, willful failure to file a tax return, or any other offense involving moral turpitude or showing professional unfitness. (18) Defendant - a member of the North Carolina State Bar against whom a finding of probable cause has been made. (19) Disabled or disability - a mental or physical condition which signifi-cantly impairs the professional judgment, performance, or competence of an The North Carolina State Bar Lawyer's Handbook Subchapter B — pagt 9 attorney. (20) Grievance - alleged misconduct. (21) Grievance Committee - the Grievance Committee of the North Carolina State Bar or any of its panels acting as the Grievance Comminee respecting the grievances and other matters referred to it by the chairperson of the Grievance Committee. (22) Hearing committee - a hearing committee designated under Rule .0108(a)(2), .0114(d), .01l4(x), .0118(b)(2), .0125(a)(6), .0125(b)(7) or .0125(c)(2) of this subchapter. (23) Illicit drug - any controlled substance as defined in the North Carolina Controlled Substances Act, section 5, chapter 90, of the North Carolina General Statutes, or its successor, which is used or possessed without a pre-scription or in violation of the laws of this state or the United States. (24) Incapacity or incapacitated - condition determined in a judicial pro-ceeding under the laws of this or any other jurisdiction that an attorney is men-tally defective, an inebriate, mentally disordered, or incompetent from want of understanding to manage his or her own affairs by reason of the excessive use of intoxicants, drugs, or other cause. (25) Investigation - the gathering of information with respect to alleged misconduct, alleged disability, or a petition for reinstatement. (26) Investigator - any person designated to assist in the investigation of alleged misconduct or focts pertinent to a petition for reinstatement. (27) Lawyer Assistance Program Board - the Lawyer Assistance Program Board of the North Carolina State Bar. (28) Letter of caution - communication from the Grievance Committee to an attorney stating that the past conduct of the attorney, while not the basis for discipline, is unprofessional or not in accord with accepted professional prac-tice. (29) Letter of notice - a communication to a respondent setting forth the substance of a grievance. (30) Letter of warning - written communication from the Grievance Committee or the commission to an attorney stating that past conduct of the attorney, while not the basis for discipline, is an unintentional, minor, or tech-nical violation of the Rules of Professional Conduct and may be the basis for discipline if continued or repeated. (31) Member - a member of the North Carolina State Bar. (32) Office of the Counsel - the office and staffjnaintained by the counsel of the North Carolina State Bar. (33) Office of the secretary - the office and staff maintained by the secre-tary- treasurer of the North Carolina State Bar. (34) Party - after a complaint has been filed, the North Carolina Sute Bar as plaintiff or the member as defendant. (35) Plaintiff- after a complaint has been filed, the North Carolina State Bar. (36) Preliminary hearing - hearing by the Grievance Committee to deter-mine whether probable cause exists. (37) Probable cause - a finding by the Grievance Committee that there is reasonable cause to believe that a member of the North Carolina Sute Bar is guilty of miscondua justifying disciplinary action. (38) Reprimand - a written form of discipline more serious than an admo-nition issued in cases in which a defendant has violated one or more provisions of the Rules of Professional Conduct and has caused harm or potential harm to a client, the administration of justice, the profession, or a member of the public, but the misconduct does not require a censure. (39) Respondent - a member of the North Carolina State Bar who has been accused of misconduct or whose conduct is under investigation, but as to which conduct there has not yet been a determination of whether probable cause exists. (40) Secretary - the secretary-treasurer of the North Carolina State Bar. (41) Supreme Court - the Supreme Court of North Carolina. (42) Will - when used in these rules, means a direction or order which is mandatory or obligatory. History Note; Statutory Authority G.S. 84-23 Readopted Effective December 8, 1994 Amended February 3, 2000 .0104 State Bar Council: Powers and Duties in Discipline and Disability Matters The Council of the North Carolina State Bar will have the power and duty (1) to supervise and conduct disciplinary proceedings in accordance with the provisions hereinafter set forth; (2) to appoint members of the commission as provided by statute; (3) to appoint a counsel. The counsel will serve at the pleasure of the coun-cil. The counsel will be a member of the North Carolina State Bar but will not be permitted to engage in the private practice of law; (4) to order the transfer of a member to disability inactive status when such member has been judicially declared incompetent or has been involuntarily committed to institutional care because of incompetence or disability; (5) to accept or rejea the surrender of the license to practice law of any member of the North Carolina State Bar; (6) to order the disbarment of any member whose resignation is accepted; (7) to review the report of any hearing committee upon a petition for rein-statement of a disbarred attorney and to make final determination as to whether the license will be restored. History Note: Statutory Authority G.S. 84-23 Readopted Effective December 8, 1994 Amended September 7, 1995 .0105 Chairperson of the Grievance Committee: Powers and Duties (a) The chairperson of the Grievance Committee will have the power and duty (1) to supervise the aaivities of the counsel; (2) to recommend to the Grievance Committee that an investigation be initiated; (3) to recommend to the Grievance Comminee that a grievance be dis-missed; (4) to direct a letter of notice to a respondent or direct the counsel to issue letters of notice in such cases or under such circumstances as the chair-person deems appropriate; (5) to issue, at the direction and in the name of the Grievance Committee, a letter of caution, letter of warning, an admonition, a repri-mand, or a censure to a member; (6) to notify a respondent that a grievance has been dismissed, and to notify the complainant in accordance with Rule .0121 of this subchapter; (7) to call meetings of the Grievance Committee; (8) to issue subpoenas in the name of the North Carolina State Bar or direct the secretary to issue such subpoenas; (9) to administer or direct the administration of oaths or affirmations to witnesses; (10) to sign complaints and petitions in the name of the North Carolina State Bar; (1 1) to determine whether proceedings should be instituted to activate a suspension which has been stayed; (12) to enter orders of reciprocal discipline in the name of the Grievance Committee; (13) to direct the counsel to institute proceedings in the appropriate forum to determine if an attorney is in violation of an order of the Grievance Comminee, the commission, or the council; (14) to rule on requests for reconsideration of decisions of the Grievance Committee regarding grievances; (15) to tax costs of the disciplinary procedures against any defendant againsr whom the Grievance Comminee imposes discipline, including a minimum administrative cost of $50; (16) in his or her discretion, to refer grievances primarily attributable to unsound law office management to a program of law office management training approved by the State Bar and to so notify the complainant; (17) to dismiss a grievance upon request of the complainant, where it appears that there is no probable cause to believe that the respondent has violated the Rules of Professional Conduct and where counsel consents to the dismissal; (18) to dismiss a grievance where it appears that the grievance has not been filed within the time period set out in Rule .01 1 1(e); (19) to dismiss a grievance where it appears that the complaint, even if page 10—Subchapter B The North Carolina State Bar Lawyer's Handbook [rue, fails to state a violation of the Revised Rules of Professional Conduct and where counsel consents to the dismissal; (20) to dismiss a grievance where it appears that there is no probable cause to believe that the respondent has violated the Revised Rules of Professional Conduct and where counsel and a member of the Grievance Committee designated by the committee consent to the dismissal. (21) to appoint a subcommittee to make recommendations to the coun-cil for such amendments to the Discipline and Disability Rules as the sub-committee deems necessary or appropriate. (b) The president, vice-chairperson, or a member of the Grievance Committee designated by the president or the chairperson or vice-chairperson of the committee may perform the functions, exercise the power, and discharge the duties of the chairperson or any vice-chairperson when the chairperson or a vice-chairperson is absent or disqualified. (c) The chairperson may delegate his or her authority to the piesident, the vice chairperson of the committee, or a member of the Grievance Committee. History Note: Statutory Authority G.S. 84-23 Readopted Effective December 8, 1994 Amended February 20, 1995 Amended March 6, 1997 Amended October 2, 1997 Amended March 3, 1999 Amended February 3, 2000 .0106 Grievance Committee: Powers and Duties The Grievance Committee will have the power and duty (1) to direct the counsel to investigate any alleged misconduct or disability of a member of the North Carolina State Bar coming to its attention; (2) to hold preliminary hearings, find probable cause and direct that com-plaints be filed; (3) to dismiss grievances upon a finding of no probable cause; (4) to issue a letter of caution to a respondent in cases wherein misconduct is not established but the activities of the respondent are unprofessional or. not in accord with accepted professional practice. The letter of caution will recom-mend that the respondent be more professional in his or her practice in one or more ways which are to be specifically identified; (5) to issue a letter of warning to a respondent in cases wherein no proba-ble cause is found but it is determined by the Grievance Committee that the conduct of the respondent is an unintentional, minor, or technical violation of the Rules of Professional Conduct. The letter of warning will advise the attor-ney that he or she may be subject to discipline if such conduct is continued or repeated. The warning will specify in one or more ways the conduct or prac-tice for which the respondent is being warned. A copy of the letter of warning will be maintained in the office of the counsel for thiee years subject to the con-fidentiality provisions of Rule .0129 of this subchapter; (6) to issue an admonition in cases wherein the defendant has committed a minor violation of the Rules of Ptofessional Conduct; (7) to issue a reprimand wherein the defendant has violated one or more provisions of the Rules of Professional Conduct, and has caused harm or potential harm to a client, the administration of justice, the profession, or a member of the public, but the misconduct does not require a censure; (8) to issue a censure in cases wherein the defendant has violated one ot more provisions of the Rules of Professional Conduct and has caused signifi-cant harm or potential significant harm to a client, the administration of jus-tice, the profession, or a member of the public, but the misconduct does not require suspension of the defendant's license; (9) to direct that a petition be filed seeking a determination whether a member of the North Carolina State Bar is disabled; (10) to include in any order of admonition, reprimand, or censure a provi-sion requiring the defendant to complete a teasonable amount of continuing legal education in addition to the minimum amount required by the North Carolina Supreme Court; (U) in its discretion, to refer grievances primarily attributable to unsound law office management to a program of law office management training approved by the State Bat. History Note: Statutory Authority G.S. 84-23 Readopted Effective December 8, 1994 Amended March 3, 1999 .0107 Counsel: Powers and Duties The counsel will have the power and duty (1) to initiate an investigation concerning alleged misconduct of a member; (2) to direct a letter of notice to a respondent when authorized by the chair-person of the Gtievance Committee; (3) to investigate all matters involving alleged misconduct whether initiat-ed by the filing of a grievance or otherwise; (4) to recommend to the chairperson of the Grievance Committee that a matter be dismissed, that a letter of caution, or a letter of warning be issued, or that the Grievance Committee hold a preliminary hearing; (5) to piosecute all disciplinary proceedings before the Grievance Committee, heating committees, and the courts; (6) to represent the North Carolina State Bar in any tiial, hearing, or other proceeding concerning the alleged disability of a member; (7) to appear on behalf of the North Carolina State Bar at hearings con-ducted by the Grievance Committee, hearing committees, or any other agency or court concerning any motion or other matter arising out of a disciplinary or disability proceeding; (8) to appear at hearings conducted with respect to petitions for reinstate-ment of license by suspended or disbarred attorneys or by attorneys transferred to disability inactive status, to cross-examine witnesses testifying in support of such petitions, and to present evidence, if any, in opposition to such petitions; (9) to employ such deputy counsel, investigators, and other administrative personnel in such numbers as the council may authorize; (10) to maintain permanent records of all matters processed and of the dis-position of such matters; (11) to perform such other duties as the council may direct; (12) aftet a finding of probable cause by the Grievance Committee, to des-ignate the particular violations of the Rules of Ptofessional Conduct to be alleged in a formal complaint filed with the commission; (13) to file amendments to complaints and petitions arising out of the same transactions or occurrences as the allegations in the original complaints or peti-tions, in the name of the North Carolina State Bar, with the prior approval of the chairperson of the Grievance Committee; (14) after a complaint is filed with the commission, to dismiss any or all claims in the complaint or to negotiate and recommend consent orders of dis-cipline to the hearing committee. History Note: Statutory Authority G.S. 84-23; G.S. 84-31 Readopted Effective December 8, 1994 Amended March 3, 1999 .0108 Chairperson of the Hearing Commission: Powers and Duties (a) The chairperson of the Disciplinary Hearing Commission of the North Carolina State Bar will have the power and duty (1) to receive complaints alleging misconduct and petitions alleging the disability of a member filed by the counsel; petitions requesting rein-statement of license by members who have been involuntarily transferred to disability inactive status, suspended, ot disbarred; motions seeking the activation of suspensions which have been stayed; and proposed consent orders of disbarment; (2) to assign three members of the commission, consisting of two mem-bers of the North Catolina State Bar and one nonlawyer to hear com-plaints, petitions, motions, and posthearing motions pursuant to Rule .01 14(z)(2) of this subchapter. The chairperson will designate one of the attorney members as chairperson of the hearing committee. No commit-tee member who hears a disciplinary matter may serve on the committee which hears the attorney's reinstatement petition. The chairperson of the commission may designate himself or herself to serve as one of the attor-ney members of any hearing committee and will be chairperson of any hearing committee on which he or she serves. Posthearing motions filed pursuant to Rule .01 14(z)(2) of this subchapter will be considered by the same hearing committee assigned to the original trial proceeding. Hearing committee members who are ineligible or unable to serve for any reason will be replaced with members selected by the commission chair-person; The North Carolina State Bar Lawyer's Handbook Subchapter B — page 11 (3) 10 set (he time and place for the hearing on each complaint or peti-tion; (4) to subpoena witnesses and compel their attendance and to compel the production of books, papers, and other documents deemed necessary or material to any hearing. The chairperson may designate the secretary to issue such subpoenas; (5) to consolidate, in his or her discretion for hearing, two or more cases in which a subsequent complaint or complaints have been served upon a defendant within ninety days of the date of service of the first or a pre-ceding complaint; (6) to enter orders disbarring members by consent; (7) to enter an order suspending a member pending disposition of a dis-ciplinary proceeding when the member has been convicted of a serious crime or has pled no contest to a serious crime and the court has accept-ed the plea. (b) The vice-chairperson of the Disciplinary Hearing Commission may per-form the function of the chairperson in any matter when the chairperson is absent or disqualified. History Note; Statutory Authority G.S. 84-23 Readopted Effective December 8, 1994 Amended September 7, 1995 .0109 Hearing Committee: Powers and Duties Hearing committees of the Disciplinary Hearing Commission of the North Carolina State Bar will have the following powers and duties: (1) to hold hearings on complaints alleging misconduct, or petitions seek-ing a determination of disability or reinstatement, or motions seeking the acti-vation of suspensions which have been stayed, and to conduct proceedings to determine if persons or corporations should be held in contempt pursuant to G.S. 84-28. l(bl); (2) to enter orders regarding discovery and other procedures in connection with such hearings, including, in disability matters, the examination of a mem-ber by such qualified medical experts as the committee will designate; (3) to subpoena witnesses and compel their attendance, and to compel the production of books, papers, and other documents deemed necessary or mate-rial to any hearing. Subpoenas will be issued by the chairperson of the hearing committee in the name of the commission. The chairperson may direct the sec-retary to issue such subpoenas; (4) to administer or direct the administration of oaths or affirmations to witnesses at hearings; (5) to make findings of fact and conclusions of law; (6) to entei orders dismissing complaints in matters before the committee; (7) to enter orders of discipline against or letters of warning to defendants in matters before the committee; (8) to tax costs of the disciplinary proceedings against any defendant against whom discipline is imposed, provided, however, that such costs will not include the compensation of any member of the council, committees, or agen-cies of the North Carolina State Bar; (9) to enter orders transferring a member to disability inactive status; (10) to report to the council its findings of fact and recommendations after hearings on petitions for reinstatement of disbarred attorneys; (11) to grant or deny petitions of attorneys seeking transfer from disability inaaive status to active status; (12) to enter orders reinstating suspended attorneys or denying reinstate-ment. An order denying reinstatement may include additional sanctions in the event violations of the petitioner's order of suspension are found; (13) to enter orders activating suspensions which have been stayed or con-tinuing the stays of such suspensions. (14) to enter orders holding persons and corporations in contempt pur-suant to G.S. 84-28. l(bl) and imposing such sanaions allowed by law. History Note: Statutory Authority G.S. 84-23; G.S. 84-28; G.S. 84-28.1 Readopted Effective December 8, 1994 Amended March 3, 1999 .0110 Secretary: Powers and Duties in Discipline and Disability Matters The secretary will have the following powers and duties in regard to disci-pline and disability procedures: ( 1 ) to receive grievances for transmittal to the counsel, to receive complaints and petitions for transmittal to the commission chairperson, and to receive afFi-davits of surrender of license for transmittal to the council; (2) to issue summonses and subpoenas when so direaed by the president, the chairperson of the Grievance Committee, the chairperson of the commis-sion, or the chairperson of any hearing committee; (3) to maintain a record and file of all grievances not dismissed by the Grievance Committee; (4) to perform all necessary ministerial acts normally performed by the clerk of the superior court in complainf; filed before the commission; (5) to enter orders of reinstatement where petitions for reinstatement of suspended attorneys are unopposed by the counsel; (6) to dismiss reinstatement petitions based on the petitioner's failure to comply with the rules governing the provision and transmittal of the record of reinstatement proceedings; (7) to determine the amount of costs assessed in disciplinary proceedings by the commission. History Note - Statutory Authority G.S. 84-22; G.S. 84-23; G.S. 84-32(c) Readopted Effeaive December 8, 1994 .0111 Grievances: Fonn and Filing (a) A grievance may be filed by any person against a member of the North Carolina State Bar. Such grievance may be written or oral, verified or unveri-fied, and may be made initially to the counsel. The counsel may require that a grievance be reduced to writing in affidavit form and may prepare and distrib-ute standard forms for this purpose. (b) Upon the direction of the council or the Grievance Committee, the counsel will investigate such conduct of any member as may be specified by the council or Grievance Committee. (c) The counsel may investigate any maner coming to the attention of the counsel involving alleged misconduct of a member upon receiving authoriza-tion from the chairperson of the Grievance Committee. If the counsel receives information that a member has used or is using illicit drugs, the counsel will follow the provisions of Rule .0130 of this subchapter. (d) The North Carolina State Bar may keep confidential the identity of an anorney or judge who reports alleged misconduct of another attorney pursuant to Rule 8.3 of the Revised Rules of Professional Condua and who requests to remain anonymous. Norwithstanding the foregoing, the North Carolina State Bar will reveal the identity of a reporting anorney or judge to the respondent attorney where such disclosure is required by law, or by considerations of due process or where identification of the reporting attorney or judge is essential to preparation of the anorney's defense to the grievance and/or a formal discipli-nary complaint. (e) Grievances must be instituted by the filing of a written or oral grievance with the North Carolina State Bar Grievance Committee or a district bar Grievance Committee within six years from the accrual of the offense, provid-ed that grievances alleging fraud by a lawyer or an offense the discovery of which has been prevented by concealment by the accused lawyer shall not be barred until six years from the accrual of the offense or one year after discovery of the offense by the aggrieved party or by the North Carolina State Bar coun-sel, whichever is later. Notwithstanding the foregoing, grievances which allege felonious criminal misconduct may be filed with the Grievance Committee at any time. History Note: Statutory Authority G.S. 84-23 Readopted Effective December 8, 1994 Amended February 20, 1995 .0112 Investigations: Initial Determination (a) Subject to the policy supervision of the council and the control of the chairperson of the Grievance Committee, the counsel, or other personnel under the authority of the counsel, will investigate the grievance and submit to the chairperson of the Grievance Committee a report detailing the findings of the investigation. (b) As soon as practicable after the receipt of the initial or any interim report of the counsel concerning any grievance, the chairperson of the Grievance Committee may (1) treat the report as a final report; page 12—Subchapter B The North Carolina State Bar Lawyer's Handbook (2) direct the counsel to conduct further investigation, including con-tacting the respondent in writing or otherwise; or (3) send a letter of notice to the respondent. (c) If a letter of notice is sent to the respondent, it will be by certified mail and will direct that a response be made within 15 days of receipt of the letter of notice. Such response will be a full and fair disclosure of all the facts and cir-cumstances pertaining to the alleged misconduct. The counsel will provide the respondent with a copy of the grievance upon request, except where the com-plainant requests to remain anonymous pursuant to Rule .0111 (d) of this sub-chapter. (d) The counsel may provide a copy of the respondent's response(s) to the letter of notice to the complaining party unless the respondent objects thereto in writing. (e) After a response to a lettet of notice is received, the counsel may con-duct further investigation or terminate the investigation, subject to the control of the chairperson of the Grievance Committee. (f) For reasonable cause, the chairperson of the Grievance Committee may issue subpoenas to compel the attendance of witnesses, including the respon-dent, for examination concerning the grievance and may compel the produc-tion of books, papers, and other documents or writings deemed necessary or material to the inquiry. Each subpoena will be issued by the chairperson of the Grievance Committee, or by the secretary at the direction of the chairperson. The counsel, deputy counsel, investigator, or any members of the Grievance Committee designated by the chairperson may examine any such witness under oath or otherwise. (g) As soon as practicable after the receipt of the final report of the counsel or the teimination of an investigation, the chairperson will convene the Grievance Committee to consider the grievance except as otherwise provided in these rules. (h) The investigation into the conduct of an attorney will not be abated by the failure of the complainant to sign a grievance, settlement, compromise, or restitution. The chairperson of the Grievance Committee may dismiss a griev-ance upon request of the complainant and with consent of counsel where it appears that there is no probable cause to believe that the respondent has vio-lated the Revised Rules of Professional Conduct. (i) If at any time prior to a finding of probable cause, the chairperson of the Grievance Committee, upon the recommendation of the counsel or the Grievance Committee, determines that the alleged misconduct is primarily artributable to the respondenr's failure to employ sound law office management techniques and procedures, the chairperson of the Grievance Committee may, with the respondent's consent, tefer the case to a program of law office man-agement training approved by the State Bar. The respondent will then be required to complete a course of training in law office management prescribed by the chairperson of the Grievance Committee which may include a compre-hensive site audit of the respondent's records and procedures as well as contin-uing legal education seminars. Upon the respondent's successful completion of the prescribed training, the same will be reported to the chairperson of the Grievance Committee, who will order the dismissal of the grievance. If the respondent fails to cooperate with the training program's employees or fails to complete the prescribed tiaining, that will be reported to the chairperson of the Grievance Committee and the investigation of the original grievance shall resume. History Note: Statutory Authority G.S. 84-23 Readopted Effective December 8, 1994 Amended February 20, 1995 Amended March 6, 1997 .0113 Proceedings before the Grievance Committee (a) The Grievance Committee or any of its panels acting as the Grievance Committee with respect to grievances referred to it by the chairperson of the Giievance Committee will determine whether there is probable cause to believe that a respondent is guilty of misconduct justifying disciplinary action. In its discretion, the Gtievance Committee or a panel thereof may find probable cause regardless of wherher rhe respondent has been served with a written let-ter of notice. The respondent may waive the necessity of a finding of probable cause with the consent of the counsel and the chairperson of the Grievance Committee. A decision of a panel of the committee may not be appealed to the Grievance Committee as a whole or to another panel (except as provided in 27 N.C.A.C. 1 A, .0701(a)(3)). (b) The chairperson of the Grievance Committee will have the power to administer oaths and affirmations. (c) The chairperson will keep a record of the Grievance Commirtee's deter-mination concerning each grievance and file the record with the secretary. (d) The chairperson will have the power to subpoena witnesses, to compel their attendance, and compel the production of books, papers, and other doc-uments deemed necessary or material to any preliminary hearing. The chair-person may designate the secretary to issue such subpoenas. (e) The counsel and deputy counsel, the witness under examination, inter-preters when needed, and, if deemed necessary, a stenographer or operator of a recording device may be present while the committee is in session and deliber-ating, but no persons other than members may be present while the commit-tee is voting. (f) The results of any deliberation by the Grievance Committee will be dis-closed to the counsel and the secietary for use in the performance of their duties. Otherwise, a member of the committee, the staff of the North Carolina State Bar, any interpreter, stenographer, operator of a recording device, or any typist who transcribes recorded testimony may disclose matters occurring before the committee only when so directed by the committee ot a coutt of record. (g) At any pieliminary hearing held by the Grievance Committee, a quo-rum of one-half of the members will be required to conduct any business. Affirmative vote of a majority of memberspresent will be necessary to find that probable cause exists. The chairperson will not be counted for quorum pur-poses and will be eligible to vote regarding the disposition of any grievance only in case of a tie among the regular voting members. (h) If probable cause is found and the committee determines that a hearing is necessary, the chairperson will direct the counsel to prepare and file a com-plaint against the defendant. If the committee finds probable cause but deter-mines that no hearing is necessary, it will direct the counsel to ptepare for the chairperson's signature an admonition, reprimand, or censure. If no probable cause is found, the grievance will be dismissed or dismissed with a letter of warning or a letter of caution. (i) If no probable cause is found but it is determined by the Grievance Committee that the conduct of the respondent is unprofessional or not in accord with accepted professional practice, the committee may issue a letter of caution to the respondent recommending that the respondent be more profes-sional in his or her practice in one or more ways which are to be specifically identified. (j) Letters of warning (1) If no probable cause is found but it is determined by the Grievance Committee that the conduct of the respondent is an unintentional, minor, or technical violation of the Rules of Professional Conducr, the committee may issue a letter of warning to the respondenr. The letter of warning will advise the respondent that he or she may be subject to dis-cipline if such conduct is continued or repeared. The letrer will specify in one or more ways the conduct or practice for which the respondent is being warned. The letter of warning will not constitute discipline of the respondent. (2) A copy of the letter of warning will be maintained in the office of the counsel for three years. If relevant, a copy of the letter of warning maybe offered into evidence in any proceeding filed against the respondent before the commission within three years after the letter of warning is issued to the respondent. In every case filed against the respondent before the commission within three years after rhe letter of warning is issued to the respondent, the letter of warning may be introduced into evidence as an aggravating factor concerning the issue of what disciplinary sanction should be imposed. A copy of the letter of warning may be disclosed to the Grievance Committee if another grievance is filed against the respon-dent within three years after the letter of warning is issued to the respon-dent. (3) A copy of the letter of warning will be served upon the respondent in person or by certified mail. A respondent who cannot, with due diligence, be served by certified mail or personal service shall be deemed served by The North Caiolina State Bar Lawyer's Handbook Subchapter B — page 13 the mailing of a copy of the lettet of warning to the respondent's last known address on file with the NC State Bar. Service shall be deemed complete upon deposit of the letter of warning in a postpaid, properly addressed wrapper in a post office or official depository under the exclu-sive care and custody of the United States Postal Service. Within 15 days after service the respondent may refuse the letter of warning and request a hearing before the commission to determine whether a violation of the Rules of Professional Conduct has occurred. Such refusal and request will be in writing, addressed to the Grievance Committee, and served on the secretary by certified mail, return receipt requested. The refusal will state that the letter of warning is refijsed. If a refusal and request are not served within 1 5 days after service upon the respondent of the letter of warning, the letter of warning will be deemed accepted by the respondent. An extension of time may be granted by the chairperson of the Grievance Committee for good cause shown. (4) In cases in which the respondent refiises the lettet of warning, the counsel will prepare and file a complaint against the lespondent for a hearing pursuant to Rule .01 14 of this subchapter. (k) Admonitions and Reprimands (1) If probable cause is found but it is determined by the Grievance Committee that a complaint and hearing are not warranted, the com-mittee may issue an admonition or reprimand to the defendant, depend-ing upon the seriousness of the violation of the Rules of Professional Conduct. A record of such admonition or reprimand will be maintained in the office of the secretary. (2) A copy of the admonition or reprimand will be served upon the defendant in person or by certified mail. A defendant who cannot, with due diligence, be served by certified mail or personal service shall be deemed served by the mailing of a copy of the admonition or reprimand to the defendant s last known address on file with the NC State Bar. Service shall be deemed complete upon deposit of the admonition or rep-rimand in a postpaid, properly addressed wrapper in a post office or offi-cial depository under the exclusive care and custody of the United States Postal Service. (3) Within 1 3 days after service the defendant may refuse the admonition or reprimand and request a hearing before the commission. Such refusal and request will be in writing, addressed to the Grievance Committee, and served upon the secretary by certified mail, return receipt requested. The refusal will state that the admonition or reprimand is refused. (4) In cases in which the defendant refuses an admonition or reprimand, the counsel will prepare and file a complaint against the defendant pur-suant to Rule .0114 of this subchapter If a refijsal and request are not served upon the sectetary within 1 5 days after service upon the defendant of the admonition or reprimand, the admonition or reprimand will be deemed accepted by the defendant. An extension of time may be granted by the chairperson of the Grievance Committee for good cause shown. (I) Censures (1) If probable cause is found and the Grievance Committee determines that the defendant has violated one or more provisions of the Rules of Professional Conduct and has caused significant harm or significant potential harm to a client, the administration of justice, the profession, or a member of the public, but the misconduct does not require suspension of the defendant's license, the committee will issue a notice of proposed censure and a proposed censure to the defendant. (2) A copy of the notice and the proposed censure will be served upon the defendant in person or by certified mail. A defendant who cannot, with due diligence, be served by certified mail or personal service shall be deemed served by the mailing of a copy of the notice and proposed cen-sure to the defendant's last known address on file with the NC State Bar. Service shall be deemed complete upon deposit of the notice and pro-posed censure in a postpaid, properly addressed wrapper in a post office or official depository under the exclusive care and custody of the United States Postal Service. The defendant must be advised that he or she may accept the censure within 13 days after service upon him or her or a for-mal complaint will be filed before the commission. (3) The defendant's acceptance must be in writing, addressed to the Grievance Committee, and served on the secretary by certified mail, return receipt requested. Once the censure is accepted by the defendant, the discipline becomes public and must be filed as provided by Rule .0123(a)(3) of this subchapter. (4) If the defendant does not accept the censure, the counsel will file a complaint against the defendant pursuant to Rule .0114 of this subchap-ter (m) Formal complaints will be issued in the name of the North Carolina State Bar as plaintiff and signed by the chairperson of the Grievance Committee. Amendments to complaints may be signed by the counsel alone, with the approval of the chairperson of the Grievance Committee. History Note: Statutory Authority G.S. 84-23; G.S. 84-28 Readopted Effective December 8, 1994 Amended March 3, 1999 Amended February 3, 2000 .0114 Formal Hearing (a) Complaints will be filed with the secretary. The secretary will cause a summons and a copy of the complaint to be served upon the defendant and thereafter a copy of the complaint will be delivered to the chairperson of the commission, informing the chairperson of the date service on the defendant was effected. (b) Service of complaints and summonses and other documents or papers will be accomplished as set forth in the North Carolina Rules of Civil Procedure. (c) Complaints in disciplinary actions will allege the charges with sufficient precision to clearly apprise the defendant of the condua which is the subject of the complaint. (d) Within 14 days of the receipt of return of service of a complaint by the secretary, the chairperson of the commission will designate a hearing commit-tee from among the commission members. The chairperson will notify the counsel and the defendant of the composition of the hearing committee. Such notice will also contain the time and place determined by the chairperson for the hearing to commence. The commencement of the hearing will be initially scheduled not less than 60 nor more than 90 days from the date of service of the complaint upon the defendant, unless one or more subsequent complaints have been served on the defendant within 90 days from the date of service of the first or a preceding complaint. When one or more subsequent complaints have been served on the defendant within 90 days from the date of service of the first or a preceding complaint, the chairperson of the commission may con-solidate the cases for heating, and the hearing will be initially scheduled not less than 60 nor more than 90 days from the date of service of the last complaint upon the defendant. (e) Within 20 days after the service of the complaint, unless further time is allowed by the chairperson of the hearing committee upon good cause shown, the defendant will file an answer to the complaint with the secretary and will serve a copy on the counsel. (0 Failure to file an answer admitting, denying or explaining the complaint Of asserting the grounds for failing to do so, within the time limited or extend-ed, will be grounds for entry of the defendant's default and in such case the alle-gations contained in the complaint will be deemed admitted. The secretary will enter the defendant's default when the fact of default is made to appear by motion of the counsel or otherwise. The counsel may thereupon apply to the hearing committee for a default order imposing discipline, and the hearing committee will thereupon enter an order, make findings of fact and conclu-sions of law based on the admissions, and order the discipline deemed appto-priate. The hearing committee may, in its discretion, hear such additional evi-dence as it deems necessary prior to entering the order of discipline. For good cause shown, the hearing committee may set aside the secretary's entry of default. After an order imposing discipline has been entered by the hearing committee upon the defendant's default, the hearing committee may set aside the order in accordance with Rule 60(b) of the North Carolina Rules of Civil Procedure. (g) Discovery will be available to the parties in accordance with the North Carolina Rules of Civil Procedure. Any discovery undertaken must be com-pleted before the date scheduled for commencement of the hearing unless the time for discovery is extended for good cause shown by the chairperson of the page 14—Subchapter B The North Carolina State Bar Lawyer's Handbook hearing committee. The chairperson of the hearing committee may thereupon reset the time for the hearing to commence to accommodate completion of reasonable discovery. (h) The parties may meet by mutual consent prior to the hearing on the complaint to discuss the possibility of settlement of the case or the stipulation of any issues, facts, or matters of law. Any proposed settlement of the case will be subject to the approval of the hearing committee. If the committee rejects a proposed settlement, another hearing committee must be empaneled to try the case, unless all parties consent to proceed with the original committee. The par-ties may submit a proposed settlement to a second hearing committee, but the parties shall not have the right to request a third hearing committee if the set-tlement order is rejected by the second hearing committee. The second hear-ing committee shall either accept the settlement proposal or hear the discipli-nary matter. (i) At the discretion of the chairperson of the hearing committee, and upon five days' notice to parties, a conference may be ordered before the date set for commencement of the hearing for the purpose of obtaining admissions or oth-erwise narrowing the issues presented by the pleadings. Such conference may be held before any member of the committee designated by its chairperson, who shall have the power to issue such orders as may be appropriate. At any conference which may be held to expedite the orderly conduct and disposition of any hearing, there may be considered, in addition to any offers of settlement or proposals of adjustment, the following: (1) the simplification of the issues; (2) the exchange of exhibits proposed to be offered in evidence; (3) the stipulation of facts not remaining in dispute or the authenticity of documents; (4) the limitation of the number of witnesses; (5) the discovery or production of data; (6) such other matters as may properly be dealt with to aid in expediting the orderly conduct and disposition of the proceeding. The chairperson may impose sanctions as set out in Rule 37(b) of the N.C. Rules of Civil Procedure against any party who willfully fails to comply with a prehearing order issued pursuant to this section. (j) The chaitperson of the hearing committee, without consulting the other committee members, may hear and dispose of all pretrial motions except motions the granting of which would result in dismissal of the charges or final judgment for either party. All motions which could result in dismissal of the charges or final judgment for either party will be decided by a majority of the members of the hearing committee. Any pretrial motion may be decided on the basis of the parties' written submissions. Oral argument may be allowed in the discretion of the chairperson of the hearing committee. (k) The initial hearing date as set by the chairperson in accordance with Rule .0114(d) above may be reset by the chairperson, and said initial hearing or reset hearing may be continued by the chairperson of the hearing commit-tee for good cause shown. (I) After a hearing has commenced, no continuances other than an adjourn-ment from day to day will be granted, except to await the filing of a control-ling decision of an appellate court, by consent of all parties, or where extreme hardship would result in the absence of a continuance. (m) The defendant will appear in person before the hearing committee at the time and place named by the chairperson. The hearing will be open to the public except that for good cause shown the chairperson of the hearing com-mittee may exclude from the hearing room all persons except the parties, coun-sel, and those engaged in the hearing. No hearing will be closed to the public over [he objection of the defendant. The defendant will, except as otherwise provided by law, be competent and compellable to give evidence for either of the parties. The defendant may be represented by counsel, who will enter an appearance. (n) Pleadings and proceedings before a hearing committee will conform as nearly as practicable with requirements of the North Carolina Rules of Civil Procedure and for trials of nonjury civil causes in the superior courts except as otherwise provided herein. (o) Pleadings or other documents in formal proceedings required or per-mitted to be filed under these rules must be received for filing by the secretary within the time limits, if any. for such filing. The date of leceipt by the secre-tary, and not the date of deposit in the mails, is determinative. (p) All papers presents * to the commission for filing will be on lettet size paper (8 1/2x11 inches) with the exception of exhibits. The sectetary will require a party to refile any paper that does not conform to this size. (q) When a defendant appears in his or her own behalf in a proceeding, the defendant will file with the secretary, with proof of delivery of a copy to the counsel, an address at which any notice or other written communication required to be served upon the defendant may be sent, if such address differs from that last reported to the secretary by the defendant. (r) When a defendant is represented by counsel in a proceeding, counsel will file with the secretary, with proof of delivery of a copy to the counsel, a written notice of such appearance which will state his or her name, address and telephone numbet, the name and address of the defendant on whose behalf he or she appears, and the caption and docket number of the ptoceeding. Any additional notice or other written communication required to be served on ot furnished to a defendant during the pendency of the hearing may be sent to the counsel of record for such defendant at the stated address of the counsel in lieu of transmission to the defendant. (s) The hearing committee will have the power to subpoena witnesses and compel their attendance, and to compel the production of books, papers, and other documents deemed necessary or material to any hearing. Such process will be issued in the name of the committee by its chairperson, or the chair-person may designate the secretary of the North Carolina State Bar to issue such process. Both parties have the right to invoke the powers of the commit-tee with respect to compulsory process for witnesses and for the production of books, papers, and other writings and documents. (t) In any hearing admissibility of evidence will be govetned by the rules of evidence applicable in the supetior court of the state at the time of the hearing. The chairperson of the hearing committee will rule on the admissibility of evi-dence, subject to the right of any member of the hearing committee to ques-tion the ruling. If a member of the hearing committee challenges a ruling relat-ing to admissibility of evidence, the question will be decided by majority vote of the hearing committee. (u) If the hearing committee finds that the charges of misconduct are not established by clear, cogent, and convincing evidence, it will enter an order dis-missing the complaint. If the hearing comminee finds that the charges of mis-conduct are established by clear, cogent, and convincing evidence, the hearing committee will enter an order of discipline. In either instance, the committee will file an order which will include the committee's findings of fact and con-clusions of law. (v) The sectetary will ensure that a complete record is made of the evidence received during the course of all hearings before the commission as provided by G.S. 7A-95 for tiials in the superior court. The secretary will preserve the record and the pleadings, exhibits, and briefs of the parties. (w) If the charges of misconduct are established, the hearing committee will then consider any evidence relevant to the discipline to be imposed, including the record of all previous misconduct for which the defendant has been disci-plined in this state or any orher jurisdiction and any evidence in aggravation or mitigation of the offense. (1) The hearing committee may consider aggravating factors in imposing discipline in any disciplinary case, including the following factors: (A) prior disciplinary offenses; (B) dishonest or selfish motive; (C) a pattern of misconduct; (D) multiple offenses; (E) bad faith obstruction of the disciplinary proceedings by intention-ally failing to comply with rules or orders of the disciplinary agency; (F) submission of false evidence, false statements, or othet deceptive practices during the disciplinary process; (G) refusal to acknowledge wrongful natute of conduct; (H) vulnerability of victim; (I) substantial experience in the practice of law; (]) indifference to making restitution; (K) issuance of a letter of warning to the defendant within the three years immediately preceding the filing of the complaint. (2) The hearing committee may considet mitigating factors in imposing The North Carolina State Bar Lawyer's Handbook Subchapter B — page 15 discipline in any disciplinary case, including the following factors: (A) absence of a prior disciplinary record; (B) absence of a dishonest or selfish motive; (C) personal or emotional problems; (D) timely good faith efforts to make restitution or to rectify conse-quences of misconduct; (E) full and free disclosure to the hearing committee or cooperative atti-tude toward proceedings; (F) inexperience in the practice of law; (G) character or reputation; (H) physical or mental disability or impairment; (I) delay in disciplinary proceedings through no fault of the defendant attorney; (J) interim rehabilitation; (K) imposition of other penalties or sanctions; (L) remorse; (M) remoteness of prior offenses, (x) In any case in which a period of suspension is stayed upon compliance by the defendant with conditions, the commission will retain jurisdiction of the matter until all conditions are satisfied. If during the petiod the stay is in effect, the counsel receives information tending to show that a condition has been violated, the counsel may, with the consent of the chairperson of the Grievance Committee, file a motion in the cause with the secretary specifying the violation and seeking an order requiring the defendant to show cause why the stay should not be lifted and the suspension activated for violation of the condition. The counsel will also serve a copy of any such motion upon the defendant. The secretary will promptly ttansmit the motion to the chairperson of the commission who, if he or she enters an order to show cause, will appoint a hearing committee as provided in Rule .0108(a)(2) of this subchapter, appointing the members of the hearing committee that originally heard the matter wherever practicable. The chairperson of the commission will also schedule a time and a place for a hearing and notify the counsel and the defen-dant of the composition of the hearing committee and the time and place for the hearing. After such a hearing, the hearing committee may enter an order lifting the stay and activating the suspension, or any portion thereof, and tax-ing the defendant with the costs, if it finds that the North Carolina State Bar has proven, by the greater weight of the evidence, that the defendant has vio-lated a condition. If the hearing committee finds that the North Carolina State Bar has not carried its burden, rhen it will enter an order continuing the stay. In any event, the hearing committee will include in its order findings of fact and conclusions of law in suppott of its decision. (y) All reports and orders of the hearing committee will be signed by the members of the committee, or by the chairperson of the committee on behalf of the committee, and will be filed with the secretary. The copy to the defen-dant will be served by certified mail, return receipt requested or personal serv-ice. A defendant who cannot, with due diligence, be served by certified mail or personal service shall be deemed served by the mailing of a copy of the order to the defendant's last known address on file with the N.C. State Bar. Service by mail shall be deemed complete upon deposit of the teport or order enclosed in a postpaid, properly addressed wrapper in a post office oi official deposito-ry under the exclusive care and custody of the United States Postal Service, (z) Posttrial Motions (1) Consent Orders After Trial - At any time after a disciplinary hearing and prior to the execution of the committee's final order pursuant to Rule .0U4(y) above, the committee may, with the consent of the parties, amend its decision regarding the findings of fact, conclusions of law, or the disciplinary sanction imposed. (2) New Trials and Amendment of Judgments (A) As provided in Rule .01 14(z)(2)(B) below, following a disciplinary hearing before the commission, either party may request a new trial or amendment of the hearing committee's final order, based on any of the grounds set out in Rule 59 of the North Carolina Rules of Civil Procedure. (B) A motion for a new trial or amendment ofjudgment will be served, in writing, on the chairperson of the hearing committee which heard the disciplinary case no later than 20 days after service of the final order upon the defendant. Supporting affidavits, if any, and a memorandum setting forth the basis of the motion together with supporting authori-ties, will be filed with the motion. (C) The opposing party will have 20 days from service of the motion to file a written response, any reply affidavits, and a memorandum with supporting authorities. (D) The hearing committee may rule on the motion based on the par-ties' written submissions or may, in its discretion, permit the parties to present oral argument. (3) Relief from Judgment or Order (A) Following a disciplinary proceeding before the commission, either party may file a motion for relief from the final judgment or order, based on any of the grounds set out in Rule 60 of the North Carolina Rules of Civil Procedure. (B) Motions made under Rule .01 H(z)(2)(B) above will be made no later than one year after the effective date of the order from which relief is sought. Motions pursuant to this section will be heard and decided in the same manner as motions submitted pursuant to Rule .0 1 1 4(z)(2) above. (4) Effect of Filing Motion - The filing of a motion under Rule .01 14(z)(2) above or Rule .01 14(z)(3) above will not automatically stay or otherwise affect the effective date of an order of the commission. History Note: Statutory Authority G.S. 84-23; G.S. 84-28; G.S. 84-28.1; G.S. 84-29; G.S. 84-30; G.S. 84-32(a) Readopted Effective December 8, 1994 Amended October 2, 1997 .0115 Effect of a Finding of Guilt in Any Criminal Case (a) Any member who has been found guilty of or has tendered and has had accepted a plea of guilty or no contest to a criminal offense showing profes-sional unfitness in any state or federal court, may be suspended from the prac-tice of law as set out in Rule .01 1 5(d) below. (b) A certificate of the conviction of an attorney for any crime or a certifi-cate of the judgment entered against an attorney where a plea of nolo con-tendere or no contest has been accepted by a court will be conclusive evidence of guilt of that crime in any disciplinary proceeding instituted against a mem-ber. (c) Upon the receipt of a certified copy of a jury verdict showing a verdict of giiilty, a certificate of the conviction of a member of a criminal offense show-ing professional unfitness, or a certificate of the judgment entered against an attorney where a plea of nolo contendere or no contest has been accepted by a court, the Grievance Committee, at its next meeting following notification of the conviction, may authorize the filing of a complaint if one is not pending. In the hearing on such complaint, the sole issue to be determined will be the extent of the discipline to be imposed. The attorney may be disciplined based upon the conviction without awaiting the outcome of any appeals of the con-viction or judgment, unless the attorney has obtained a stay of the disciplinary action as set out in G.S. §84-28(dl). Such a stay shall not prevent the North Carolina State Bar from proceeding with a disciplinary proceeding against the attorney based upon the same underlying facts or events that were the subject of the criminal proceeding. (d) Upon the receipt of a certificate of conviction of a member of a crimi-nal offense showing professional unfitness, or a certified copy of a plea of guilty or no contest to such an offense, or a certified copy of a jury verdict showing a verdict of guilty to such an offense, the commission chairperson may, in the chairperson's discretion, enter an order suspending the member pending the disposition of the disciplinary proceeding against the member before the com-mission. The provisions of Rule .0124(c) of this subchapter will apply to the suspension. (e) Upon the receipt of a certificate of conviction of a member of a crimi-nal offense which does not show professional unfitness, or a certificate of judg-ment against a member upon a plea of no contest to such an offense, or a cer-tified copy of a jury verdict showing a verdict of guilty to such an offense, the Grievance Committee will take whatever action, including authorizing the fil-ing of a complaint, it may deem appropriate. In a hearing on any such com-plaint, the sole issue to be determined will be the extent of the discipline to be imposed. The attorney may be disciplined based upon the conviction without page 16—Subchapter B The North Carolina State Bar Lawyer's Handbook awaiting the outcome of any appeals of the conviction or judgment, unless the attorney has obtained a stay of the disciplinary action as set out in G.S. §84- 28(dl). Such a stay shall not prevent the North Carolina State Bar from pro-ceeding with a disciplinary proceeding against the attorney based upon the same underlying facts or events that were the subject of the criminal proceed-ing. History Note: Statutory Authority G.S. 84-23; G.S. 84-28 Readopted Effective December 8, 1994 Amended November 7, 1 996 Amended March 6, 1997 Amended December 30, 1998 Amended February 3, 2000 .0116 Reciprocal Discipline & Disability Proceedings (a) All members who have been disciplined in any state or federal court for a violation of the Rules of Professional Conduct in effect in such state or fed-eral court or who have been transferred to disability inactive status or its equiv-alent will inform the secretary of such action in writing no later than 30 days after entry of the order of discipline or transfer to disability inactive status. Failure to make the report required in this section may subject the member to professional discipline as set out in Rule 8.3 of the Revised Rules of Professional Conduct. (b) Except as provided in subsection (c) below which applies to disciplinary proceedings in certain federal courts, reciprocal discipline and disability pro-ceedings will be administered as follows: (1) Upon receipt of a certified copy of an order demonstrating that a member has been disciplined or transferred to disability inactive status or its equivalent in another jurisdiction, state or federal, the Grievance Committee will forthwith issue a notice directed to the member contain-ing a copy of the order from the other jurisdiction and an order directing that the member inform the committee within 30 days from service of the notice of any claim by the member that the imposition of the identi-cal discipline or an order transferring the member to disability inactive status in this state would be unwarranted and the reasons therefor. This notice is to be served on the member in accordance with the provisions of Rule 4 of the North Carolina Rules of Civil Procedure. (2) If the discipline or transfer order imposed in the other jurisdiction has been stayed, any reciprocal discipline or transfer to disability inactive sta-tus imposed in this state will be deferred until such stay expires. (3) Upon the expiration of 30 days from service of the notice issued pur-suant to the provisions of Rule .01 16(b)(1) above, the chairperson of the Grievance Committee will impose the identical discipline or enter an order transferring the member to disability inactive status unless the Grievance Committee concludes (A) that the procedure was so lacking in notice or opportunity to be heard as to constitute a deprivation of due process; or (B) that there was such an infirmity of proof establishing the miscon-duct as to give rise to the clear conviction that the Grievance Committee could not, consistent with its duty, accept as final the con-clusion on that subject; (C) that the imposition of the same discipline would result in grave injustice; or (D) that the misconduct established warrants substantially different dis-cipline in this state; or (E) that the reason for the original transfer to disability inactive status no longer exists. (4) Where the Grievance Committee determines that any of the elements listed in Rule .01 16(b)(3) above exist, the committee will dismiss the case or direct that a complaint be filed. (5) If the elements listed in Rule .01 16(b)(3) above are found not to exist, a final adjudication in another jurisdiction that an attorney has been guilty of misconduct or should be transferred to disability inactive status will establish the misconduct or disability for purposes of reciprocal dis-cipline or disability proceedings in this state. (c) Reciprocal discipline with certain fedetal courts will be administered as follows: (1) Upon receipt of a certified copy of an order demonstrating that a member has been disciplined in a United States District Court in North Carolina, in the United States Fourth Circuit Court of Appeals, or in the United States Supreme Court, the chairperson of the Grievance Committee will forthwith issue a notice directed to the member. The notice will contain a copy of the order from the court and an order direct-ing the member to inform the committee within 10 days from service of the notice whether the member will accept reciprocal discipline which is substantially similar to that imposed by the federal court. This notice is to be served on the member in accordance with the provisions of Rule 4 of the North Carolina Rules of Civil Procedure. The member will have 30 days from service of the notice to file a written challenge with the com-mittee on the grounds that the imposition of discipline by the North Carolina State Bar would be unwarranted because the facts found in the federal disciplinary proceeding do not involve conduct which violates the North Carolina Rules of Professional Conduct. If the member notifies the North Carolina State Bar within 10 days after service of the notice that he or she accepts reciprocal discipline which is substantially similar to that imposed by the federal court, substantially similar discipline will be ordered as provided in Rule .01 16(c)(2) below and will run concurrendy with the discipline ordered by the federal court. (2) If the member notifies the North Carolina State Bar of his or her acceptance of reciprocal discipline as provided in Rule .0116(c)(1) above the chairperson of the Grievance Comminee will execute an order of dis-cipline which is of a type permitted by these rules and which is substan-tially similar to that ordered by the federal court and will cause said order to be served upon the member. (3) If the discipline imposed by the federal court has been stayed, any reciprocal discipline imposed by the North Carolina State Bar will be deferred until such stay expires. (4) Upon the expiration of 30 days from service of the notice issued pur-suant to the provisions of Rule .01 16(c)(1) above, the chairperson of the Grievance Committee will enter an order of reciprocal discipline impos-ing substantially similar discipline of a type permitted by these rules to be effective throughout North Carolina unless the member requests a hear-ing before the Gtievance Committee and at such hearing (A) the member demonstrates that the facts found in the federal disci-plinary proceeding did not involve conduct which violates the North Carolina Rules of Professional Conduct, in which event the case will be dismissed; or (B) the Grievance Committee determines that the discipline imposed by the federal court is not of a type described in Rule .0123(a) of this subchapter and, therefore, cannot be imposed by the North Carolina State Bar, in which event the Grievance Committee may dismiss the case or direct that a complaint be filed in the commission. (5) All findings of fact in the federal disciplinary proceeding will be bind-ing upon the North Carolina State Bar and the member. (6) Discipline imposed by any other federal court will be administered as provided in Rule .01 16(b) above. (d) If the member fails to accept reciprocal discipline as provided in Rule .01 16(c) above or if a hearing is held before the Grievance Committee under either Rule .01 16(b) above or Rule .01 16(c) above and the committee orders the imposition of reciprocal discipline, such discipline will run from the date of service of the final order of the chairperson of the Grievance Committee unless the committee expressly provides otherwise. History Note: Statutory Authority G.S. 84-23; G.S. 84-28 Readopted Effective December 8, 1994 Amended March 7, 1996 .0117 Surrender of License While Under Investigation (a) A member who is the subject of an investigation into allegations of mis-conduct, but against whom no formal complaint has been filed before the commission may tender his or her license to practice by delivering to the sec-retary for transmittal to the council an affidavit staling that the member desires to resign and that (1) the resignation is freely and voluntarily rendered, is not the result of coercion or duress, and the member is fully aware of the implications of submitting the resignation; The North Carolina State Bar Lawyer's Handbook Subchapter B — page 17 (2) the member is aware that there is presently pending an investigation or other proceedings regarding allegations that the member has been giiilty of misconduct, the nature of which will specifically be set forth; (3) the member acknowledges that the material facts upon which the grievance is predicated are true; (4) the resignation is being submitted because the member knows that if charges were predicated upon the misconduct under investigation, the member could not successfully defend against them. (b) The council may accept a member's resignation only if the affidavit required under Rule .0117(a) above satisfies the requirements stated therein and the member has provided to the North Carolina State Bar all documents and financial records required to be kept pursuant to the Rules of Professional Conduct and requested by the counsel. If the council accepts a member's res-ignation, it will enter an order disbarring the member. The order of disbarment is effective on the date the council accepts the member's resignation. (c) The order disbarring the member and the affidavit required under Rule .01 17(a) above are matters of public record. (d) If a defendant against whom a formal complaint has been filed wishes to consent to disbarment, the defendant may do so by filing an affidavit with the chairperson of the commission. If the chairperson determines that the affi-davit meets the requirements set out above, the chairperson will accept the sur-render and issue an order of disbarment. The order of disbarment becomes effeciive 30 days after service of the order upon the defendant. If the affidavit does not meet the requirements set out above, the consent to disbarment will not be accepted and the disciplinary complaint will be heard pursuant to Rule .01 H of this subchapter. (e) After a member tenders his or her license or consents to disbarment under this section the member may not undertake any new legal matters. The member may complete any legal matters which were pending on the date of the tender of the affidavit or consent to disbarment which can be completed within 30 days. The member has 30 days from the date on which the member tenders the affidavit of surrender or consent to disbarment in which to comply with all of the duties set out in Rule .0124 of this subchapter. History Note: Statutory Authority G.S. 84-23; G.S. 84-28; G.S. 84-32(b) Readopted Effective December 8, 1994 .0118 Disability Hearings (a) Disability Proceedings Where Member Involuntarily Committed or Judicially Declared Incompetent Where a member of the North Carolina State Bar has been judicially declared incapacitated or mentally ill under the provisions of Chapter 122C of the General Statutes or similar laws of any jurisdiction, the secretary, upon proper proof of the fact, will enter an order transferring the member to dis-ability inactive status effective immediately and for an indefinite period until further order of the commission. A copy of the order will be served upon the member, the member's guardian, or the director of the institution to which the member has been committed. (b) Disability Proceedings Initiated by the North Carolina State Bar (1) When the North Carolina State Bar obtains evidence that a member has become disabled, the Grievance Committee will conduct a hearing in a manner that will conform as nearly as is possible to the procedures set fotth in Rule .0113 of this subchapter. The Grievance Committee will determine whether there is probable cause to believe that the member is disabled within the meaning of Rule .0103(18) of this subchapter. If the committee finds probable cause, a petition alleging disability will be filed in the name of the North Carolina State Bar by the counsel and signed by the chairperson of the Grievance Committee. (2) Whenever the counsel files a petition alleging the disability of a mem-ber, the chairperson of the commission will appoint a hearing committee as provided in Rule .0108(a)(2) of this subchapter to determine whether such member is disabled. The hearing committee will conduct a hearing on the petition in the same manner as a disciplinary proceeding under Rule .0114 of this subchapter. The hearing will be open to the public. (3) The heating committee may tequire the member to undergo psychi-atric, physical, or othet medical examination or testing by qualified med-ical experts selected by the hearing committee. (4) In any proceeding seeking a transfer to disability inactive status under this rule, the North Carolina State Bar will have the burden of proving by clear, cogent, and convincing evidence that the member is disabled with-in the meaning of Rule .0103(18) of this subchapter. (5) The hearing committee may appoint an attorney to represent the member in a disability proceeding, if the hearing committee concludes that justice so requires. (6) If the hearing committee finds that the member is disabled, the com-mittee will enter an order transferring the member to disability inactive status. The order of transfer will become effective immediately. A copy of the order will be served upon the member or the member's guardian or attorney. (c) Disability Proceedings Where Defendant Alleges Disability in Disciplinary Proceeding (1) If, during the course of a disciplinary proceeding, the defendant con-tends that he or she is disabled within the meaning of Rule .0103(18) of this subchapter, the disciplinary proceeding will be stayed pending a determination by the hearing committee whether such disability exists. The defendant will be immediately transferred to disability inactive sta-tus pending the conclusion of the disability hearing. (2) The hearing committee scheduled to hear the disciplinary charges will hold the disability proceeding. The hearing will be conducted pursuant to the procedures outlined in Rule .01 18(b)(3) and (5)-(6) above. (3) The defendant will have the burden of proving by clear, cogent, and convincing evidence that he or she is disabled within the meaning of Rule .0 1 03( 1 8) of this subchapter. If the hearing committee concludes that the defendant is disabled, the disciplinary proceedings will be stayed as long as the defendant remains in disability inactive status. (4) If the hearing committee determines that the defendant is not dis-abled, the chairperson of the hearing committee will set a date foi resumption of the disciplinary proceeding. (d) Disability Hearings Initiated by a Hearing Committee (1) If during the pendency of a disciplinary proceeding a majority of the members of the hearing committee find reason to believe that the defen-dant is disabled, the committee will enter an order staying the disciplinary proceeding until the question of disability can be determined by the com-mittee in accordance with the procedures set out in Rules .01 18(b)(2)-(6) above. The State Bar will have the burden of proving by clear, cogent, and convincing evidence that the defendant is disabled within the meaning of Rule .0103(18) of this subchapter. (2) If the hearing committee determines that the defendant is not dis-abled, the chairperson of the hearing committee will set a date for resumption of the disciplinary proceeding. (3) If the hearing committee determines that the defendant is disabled, the disciplinary proceeding will be stayed as long as the defendant remains in disability inactive status. If the defendant is returned to active status by the commission, the disciplinary proceeding will be rescheduled by the chairperson of the commission. (e) Fees and Costs The hearing committee may direct the member to pay the costs of the dis-ability proceeding, including the cost of any medical examination and the fees of any attorney appointed to represent the member. (0 Preservation of Evidence In any case in which disciplinary proceedings against a defendant have been stayed by reason of the defendant's disability, counsel may continue to investi-gate allegations of misconduct and may seek orders from the chairperson of the commission to preserve evidence of any alleged professional misconduct by the disabled defendant, including orders which permit the taking of depositions. The chairperson may order appointment of counsel to represent the disabled dtfendant when necessary to protect the interests of the disabled defendant. (g) A member of the North Carolina State Bar may be transferred to dis-ability inactive status with the consent of the member, the counsel, and the chairperson of the Grievance Committee. History Note: Statutory Authority G.S. 84-23; G.S. 84-28(g); G.S. 84- 28.1;G.S. 84-29; G.S. 84-30 Readopted Effective December 8. 1994 page 18—Subchapter B The North Carolina State Bar Lawyer's Handbook Amended March 5, 1998 .0119 Enforcement of Powers In addition to the other powers contained herein, in proceedings before any committee or subcommittee of the Grievance Committee or the commission, if any person refuses to respond to a subpoena, refuses to take the oath or afFir-maiion as a witness or thereafter refuses to be examined, refuses to obey any order in aid of discovery, or refuses to obey any lawful order of the committee contained in its decision rendered after hearing, the counsel or secretary may apply to the appropriate court for an order directing that person to comply by taking the tequislte action. History Note: Statutory Authority G.S. 84-23; G.S. 84-28(1) Readopted Effective December 8, 1994 .0120 Notice to Member of Action and Dismissal In every disciplinary case wherein the respondent has received a letter of notice and the grievance has been dismissed, the respondent will be rlbtified of the dismissal by a letter by the chairperson of the Grievance Committee. The chairperson will have discretion to give similar notice to the respondent in cases wherein a letter of notice has not been issued but the chairperson deems such notice to be appropriate. History Note: Statutory Authority G.S. 84-23 Readopted Effective December 8, 1994 .0121 Notice to Complainant (a) If the Grievance Committee finds probable cause and imposes disci-pline, the chairperson of the Grievance Committee will notify the complainant of the action of the committee. (b) If the Grievance Committee finds probable cause and refers the matter to the commission, the chairperson of the Grievance Committee will advise the complainant that the grievance has been received and considered and has been referred to the commission for hearing. (c) If the Grievance Committee finds that there is no probable cause to believe that misconduct occurred and votes to dismiss a grievance, the chair-person of the Grievance Committee will advise the complainant that the com-mittee did not find probable cause to justify imposing discipline and dismissed the grievance. (d) If final action on a grievance is taken by the Grievance Committee in the form of a letter of caution or a letter of warning, the chairperson of the Grievance Committee will so advise the complainant. The communication to the complainant will explain that the letter of caution or lener of warning is not a form of discipline. (e) If a grievance is referred to the Board of Continuing Legal Education, [he chairperson of the Grievance Committee will advise the complainant of that fact and the reason for the referral. If the respondent successfully completes the prescribed training and the grievance is dismissed, the chairperson of the Grievance Committee will advise the complainant. If the respondent does not successfully complete the prescribed course of training, the chairperson of the Grievance Committee will advise the complainant that investigation of the original grievance has resumed. History Note: Statutory Authority G.S. 84-23; Readopted Effective December 8, 1994 Amended March 7, 1996 .0122 Appointment of Counsel to Protect Clients' Interests When Attorney Disappears, Dies, or Is Transferred to Disability Inactive Status (a) Whenever a member of the North Carolina State Bar has been trans-ferred to disability inactive status, disappears, or dies and no parmer or other member of the North Carolina State Bar capable of protecting the interests of the attorneys clients is known to exist, the seniot resident judge of the superi-or court in the district of the member's most recent address on file with the North Carolina State Bar, if it is in this state, will be requested by the secretary to appoint an attorney or attorneys to inventory the files of the member and to take action to protect the interests of the member and his or her clients. (b) Any member so appointed will not be permitted to disclose any infor-mation contained in any files inventoried without the consent of the client to whom such files relate except as necessary to carry out the order of the court which appointed the anorney to make such inventory. History Note; Statutory Authority G.S. 84-23; G.S. 84-28(j) Readopted Effective December 8, 1994 .0123 Imposition of Discipline; Findings of Incapacity or Disability; Notice to Courts (a) Upon the final determination of a disciplinary proceeding wherein dis-cipline is imposed, one of the following actions will be taken: (1) Admonition - An admonition will be prepared by the chairperson of the Grievance Committee or the chairperson of the hearing committee depending upon the agency ordering the admonition. The admonition will be served upon the defendant. The admonition will not be recorded in the judgment docket of the North Carolina State Bar. Where the admonition is imposed by the Grievance Committee, the complainant will be notified that the defendant has been admonished, but will not be entitled to a copy of the admonition. An order of admonition imposed by the commission will be a public document. (2) Reprimand - The chairperson of the Grievance Committee or chair-person of the hearing committee depending upon the body ordering the discipline, will file an order of reprimand with the secretary, who will record the order on the judgment docket of the North Carolina State Bar and will forward a copy to the complainant. (3) Censure, suspension, or disbarment - The chairperson of the hearing committee will file the censure, order of suspension, or disbarment with the secretary, who will record the order on the judgment docket of the North Carolina State Bar and will forward a copy to the complainant. The secretary will also cause a certified copy of the order to be entered upon the judgment docket of the superior court of the county of the defendant's last known address and of any county where the defendant maintains an office. A copy of the censure, order of suspension, or dis-barment will also be sent to the North Carolina Court of Appeals, the North Carolina Supreme Court, the United States District Courts in North Carolina, the Fourth Circuit Court of Appeals, and to the United States Supreme Court. Censures imposed by the Grievance Committee will be filed by the committee chairperson with the secretary. Notice of the censure will be given to the complainant and to the courts in the same manner as censures imposed by the commission. (b) Upon the final determination of incapacity or disability, the chairperson of the hearing committee or the secretary, depending upon the agency enter-ing the order, will file with the secretary a copy of the order transferring the member to disability inactive status. The secretary will cause a certified copy of the order to be entered upon the judgment docket of the superior court of the county of the disabled member's last address on file with the North Carolina State Bar and any county where the disabled member maintains an office and will forward a copy of the order to the courts referred to in Rule .0123(a)(3) above. History Note: Statutory Authority G.S. 84-23; G.S. 84-32(a) Readopted Effective December 8, 1994 Amended November 7, 1996 .0124 Obligations of Disbarred or Suspended Attorneys (a) A disbarred or suspended member of the North Carolina State Bar will promptly notify by certified mail, return receipt requested, all clients being rep-resented in pending matters of the disbarment or suspension, the reasons for the disbarment or suspension, and consequent inability of the member to act as an attorney after the effective date of disbarment or suspension and will advise such clients to seek legal advice elsewhere. The written notice must be received by the client before a disbarred or suspended attorney enters into any agreement with or on behalf of any client to settle, compromise, or resolve any claim, dispute, or lawsuit of the client. The disbarred or suspended attorney will take reasonable steps to avoid foreseeable prejudice to the rights of his or her clients, including prompdy delivering all file materials and property to which the clients are entitled to the clients or the clients' substituted attorney. No disbarred or suspended attorney will transfer active client files containing confidential information or property to another attorney, nor may another attorney receive such files or property, without prior written permission from the client. (b) The disbarred or suspended member will withdraw from all pending The North Carolina State Bar Lawyer's Handbook Subchapter B — page 19 administrative or litigation matters before the effective date of the suspension or disbarment and will follow all applicable laws and disciplinary rules regard-ing the manner of withdrawal. (c) In cases not governed by Rule .0117 of this subchapter, orders impos-mg suspension or disbarment will be effective 30 days after being served upon the defendant. In such cases, after entry of the disbarment or suspension order, the disbarred or suspended attorney will not accept any new retainer or engage as atrorney for another in any new case or legal matter of any nature. However, between the entry date of the order and its effective date, the member may complete, on behalf of any client, matters which were pending on the entry date and which can be completed before the effective date of the order. (d) Within 10 days after the effective date of the disbarment or suspension order, the disbarred or suspended attorney will file with the secretary an affi-davit showing that he or she has fully complied with the provisions of the order, with the provisions of this section, and with the provisions of all other state, federal, and administtative jurisdictions to which he or she is admitted to prac-tice. The affidavit will also set forth the residence or other address of the dis-barred or suspended member to which communications may thereafter be directed. (e) The disbarred or suspended member will keep and maintain records of the various steps taken under this section so that, upon any subsequent pro-ceeding, proof of compliance with this section and with the disbarment or sus-pension order will be available. Proof of compliance with this section will be a condition precedent to consideration of any petition for reinstatement. (f) A suspended or disbarred attorney who fails to comply with Rules .0124(a)-(e) above may be subject to an action for contempt instituted by the appropriate authority. Failure to comply with the requirements of Rule .0124(a) above will be grounds for appointment of counsel pursuant to Rule .0122 of this subchapter. History Note: Statutory Authority G.S. 84-23 Rcadopted Effective December 8, 1994 Amended March 6, 1997 .0125 Reinstatement (a) After disbarment (1) No person who has been disbarred may have his or her license restored but upon order of the council after the filing of a verified petition for rein-statement and the holding of a hearing before a hearing committee as provided herein. No such hearing will commence until security for the costs of such hearing has been deposited with the secretary in an amount not to exceed $500.00. (2) No disbarred attorney may petition for reinstatement until the expi-ration of at least five years from the effective date of the disbarment. (3) The petitionet will have the burden of proving by clear, cogent, and convincing evidence that (A) not more than six months or less than 60 days before filing the peti-tion 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 notice of their opposition or concurrence with the sec-retary within 60 days after the date of publication; (B) not more than six months or less than 60 days before filing the peti-tion 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 raise objections or support the lawyei's petition; (C) the petitioner has reformed and presently possesses the moral qual-ifications required for admission to practice law in this state taking into account the gravity of the misconduct which resulted in the order of disbarment; (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 administtation 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 .0124 of this subchapter; (G) the petitioner has complied with all applicable orders of the com-mission 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 cuircnt Rules of Professional Conduct. Participation in continuing legal education programs in ethics and professional responsibility for each of the three years preced-ing the petition date may be considered on the issue of the petitioner's understanding of the Rules of Professional Conduct. Such evidence cre-ates 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 over-head expenses, disbursed by the Client Security Fund as a result of the petitioner's misconduct. This section shall not be deemed to permit rhe petitioner to collaterally 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 attorneys who were disciplined after the effective date of this amendment; (M) the petitioner has reimbursed all sums which the Disciplinary Hearing Commission found in the order of disbarment were misap-propriated 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 disbarmenr. (4) Petitions filed less than seven years after disbarment (A) If less than seven years have elapsed berwecn the effective date of the disbarment and the filing date of the petition for reinstatement, the petitioner will also have the burden of proving by clear, cogent, and convincing evidence that the petitioner has the competency and learn-ing in the law required to practice law in this state. (B) Factors which may be considered in deciding the issue of compe-tency include (i) experience in the practice of law; (ii) areas of expertise; (iii) certification of expertise; (iv) participation In continuing legal education programs in each of the three years immediately-preceding the petition date; (v) certification by three attorneys who are familiar with the peti-tioner's present knowledge of the law that the petitioner is competent to engage in the practice of law. (C)The factors listed in Rule .0125(a)(4)(B) above are provided byway of example only. The petitioner's satisfaction of one or all of these fac-tors creates no presumption that the petitionet has met the burden of proof established by this section. (D) The attainment of a passing grade on a regularly scheduled wrinen bar examination administered by the North Carolina Board of Law Examiners and taken voluntarily by the petitioner shall be conclusive evidence on the issue of the petitioner's comperence to practice law. (5) If seven years or more have elapsed between the effective date of dis-barment and the filing of the petition for reinstatement, reinstatement will be conditioned upon the petitioner's attaining a passing grade on a regularly scheduled written bar examination administered by the Norrh Carolina Board of Law Examiners. (6) Verified petitions for reinstateme
Object Description
Description
Title | North Carolina State Bar lawyer's handbook |
Description | 2000 |
Digital Characteristics-A | 276 p.; 21.63 MB |
Digital Format | application/pdf |
Pres File Name-M | pubs_serial_ncsblawyershandbook2000.pdf |
Pres Local File Path-M | \Preservation_content\StatePubs\pubs_borndigital\images_master\ |
Full Text | rf\Xo G,'. <-MX £©oo ^. a ^i NC-st4ii« iar* 200 i-.t.'^S^ ^^^-^^^^"^b.-**^ State Bar Rules and Regulations page 8 Revised Rules of Professional Conduct page 65 Ethics Opinions page 128 Index to Ethics Opinions page 246 Trust Accoimt Guidelines page 256 lOLTA Questions and Answers page 264 The: North fCardlirifa ^ite";aat Lawyier's Handbo6tc20bO:(Abfidged)| /^'hvofficial publicatibh -of the VflortK'^arolina^jf.'^ Oiaic . uiai -^. y^i iiaii m ly li re:- 1 1 ivjot,': ll CVJUCI Illy referencecj Tules^arid r^ulatibr^pf tftlNorth-j;- Garolina State- Bar,^;annbtafed''^evisiy;'Rules^^^ 0f Professionar Conduct,-;a1I Ethics Spiqions , adopted under Revised Roles ahd SuperSeiQiiB^ (1985) Rules, and Trust Accbuhfguldelinelp^'^ - 'W&-: Take Yo ur Practice To A H • igh er m^^ ^^«J90 Enhance Your Professionalism A Increase i Knowledge ~ in Your Practice Area Demonstrate Your Skill and Experience Applications are accepted annually in June And July. Examinations given in November of each year. Board of Legal Specialization Increase Business and Referrals For information, contact: Alice Neece Moseley North Carolina State Bar P. O. Box 25908 Riileigh, NC 27611 Phone: (919) 828-4620 Selected Provisions from the Rules ^f^^^^S North Carolina State Bar Table of Contents OCT 2 5 2010 OliiiLuumi1V(S= 27 NCAC Chapter 1 8 Subchapter A: Organization of the North Carolina State Bar 8 Section .0200 Membership - Annual Membership Fees .0201 Classes of Membership .0202 Register of Members .0203 Annual Membership Fees; When Due . . . . Subchapter B: Discipline and Disability Rules .0102 .0103 .0104 .0105 .0106 .0107 .0108 .0109 .0110 .0111 .0112 .0113 .0114 .0115 .0116 .0117 .0118 .0119 .0120 .0121 .0122 .0123 .0124 .0125 .0126 .0127 Section .0100 Discipline and Disability of Attorneys .0101 General Provisions Procedure for Discipline Definitions State Bar Council: Powers and Duties in Discipline and Disability Matters Chairperson of the Grievance Comminee: Powers and Duties Grievance Comminee: Powers and Duties Counsel: Powers and Duties Chairperson of the Hearing Commission: Powers and Duties Hearing Committee: Powers and Duties Secretary: Powers and Duties in Discipline and Disability Matters Grievances: Form and Filing Investigations: Initial Determination Proceedings before the Grievance Committee Formal Hearing Effect of a Finding of Guilt in Any Criminal Case . . Reciprocal Discipline Surrender of License While Under Investigation . . . Disability Hearings Enforcement of Powers Notice to Member of Action and Dismissal Notice to Complainant Appointment of Counsel to Protea Clients Interests When Attorney Disappears, Dies, or is Transferred to Disability Inactive Status Imposition of Discipline; Findings of Incapacity or Disability; Notice to Courts Obligations of Disbarred or Suspended Attorneys . . Reinstatement Address of Record Disqualification Due to Interest .8 .8 .0201 .8 .0202 .8 .0203 ,9 .0204 .0205 .9 .0206 .9 .0207 .9 .9 .0208 .10 .10 .11 .11 .11 .12 .12 .12 .12 .13 .14 .16 .17 .17 .18 .19 .19 .19 .19 .19 .19 .20 .22 .22 .0128 Trust Accounts; Audit . . . .N.ORTH .CAR.OUNA . . .22 .0129 Confidentiality RALEIGH 23 .0130 Disciplinary Amnesty in Illicit Drug Use Cases 23 Section .0200 Rules Governing Judicial District Grievance Committees 23 Organization of Judicial District Grievance Committees . .23 Jurisdiction and Authority of District Grievance Committee 24 Meetings of the District Grievance Committees 24 Procedure Upon Institution of a Grievance 25 Record Keeping 25 Miscellaneous 26 Conflicts of Interest 26 Lener to Complainant Where Local Grievance Alleges Fee Dispute Only 26 Letter to Complainant Where Local Grievance Alleges Fee Dispute and Other Violations 26 Letter to Complainant/Respondent Where District Committee Recommends Finding of No Probable Cause .26 Lener to Respondent Where District Comminee Recommends Finding of Probable Cause 27 Lener to Complainant Where District Comminee Recommends Finding of Probable Cause 27 Letter to Complainant Acknowledging Grievance 27 Lener to Investigating Attorney Assigning Grievance 27 Lener to Complainant from Investigating Anomey 28 Letter of Notice to Respondent Attorney 28 Lener Transmitting Completed File to North Carolina State Bar 28 -k, Subchapter D: Rules of the Standing Committees of the North Carolina State Bar 28 Section .0100 Procedures for Ruling on Questions of Legal Ethics 28 .0101 Definitions 28 .0102 General Provisions 29 .0103 Informal Ethics Advisories and Ethics Advisories 29 .0104 Formal Ethics Opinions and Ethics Decisions 29 Section .0400 Rules and Regulations Relating to the Appointment of Counsel for Indigent Defendants in Certain Criminal Cases 30 .0401 Authority 30 .0402 Determinanon of Indigency 30 .0403 Waiver of Counsel 30 .0404 Appointment of Counsel 30 .0405 Withdrawal by Counsel 31 .0209 .0210 .0211 .0212 .0213 .0214 .0215 .0216 .0217 For a complete listing of all Rules of the State Bar, see page 265 The North Carolina State Bar Lawyer's Handbook page 3 .0406 Procedure for Payment of Compensation 31 Section .0500 Model Plan for Appointment of Counsel for Indigent Defendants in Certain Criminal Ctses 31 .0501 Purpose 31 .0502 Applicability -31 .0503 List of Attorneys 31 .0504 Committee on Indigent Appointments 32 .0505 Placement of Attorneys on List 32 .0506 Appointment Procedure (Noncapital Cases) 33 .0507 Appointments in Capital Cases 33 .0508 Appellate Appointments 33 .0509 Administration 33 .0510 Miscellaneous 34 Section .0700 Procedures for Fee Dispute Arbitration 34 .0701 Implementation of a Model Plan 34 .0702 Alternative to District Bar-Sponsored Aibitration 34 .0703 Coordinator of Fee Arbitration 34 .0704 Volunteer Committee Service 34 Section .0900 Procedures for Administrative Committee 34 .0901 Transfer to Inactive Status 34 .0902 Reinstatement from Inactive Status 34 .0903 Suspension for Nonpayment of Membership Fee, Late Fee, Client Security Fund Assessment, or Assessed Costs 35 .0904 Reinstatement After Suspension for Failure to Pay Fees or Assessed Costs 36 Section .1400 Rules Governing the Administration of the Client Security Fund of the North Carolina State Bar 36 .1401 Purpose; Definitions 36 .1402 Jurisdiction: Authority 37 .1403 Operational Responsibility 37 .1404 Size of Board 37 .1405 Lay Participation 37 .1406 Appointment of Members; When; Removal 37 .1407 Term of Office 37 .1408 Staggered Terms 37 .1409 Succession 37 .1410 Appointment of Chairperson 37 .1411 Appointment of Vice-Chairperson 37 .1412 Source of Funds 38 .1413 Fiscal Responsibility 38 .1414 Meetings 38 .1415 Annual Report 38 .1416 Appropriate Uses of the Client Security Fund ..38 .1417 Applications for Reimbursement 38 .1418 Processing Applications 38 .1419 Subrogation for Reimbursement 39 .1420 Authority Reserved by the Supreme Court 39 Section .1500 Rules Governing the Administration of the Continuing Legal Education Program 39 . 1 50 1 Purpose and Definitions 39 .1502 Jurisdiction: Authority 40 .1503 Operational Responsibility 40 .1504 Size of Board 40 . 1 505 Lay Participation 40 .1506 Appointment of Members; When; Removal 40 .1507 Term of Office 40 . 1 508 Staggered Terms 40 .1509 Succession 40 .1510 Appointment of Chairperson 40 .151 1 Appointment of Vice-Chairperson 41 .1512 Source of Funds 41 .1513 Fiscal Responsibility 41 .1514 Meetings 41 .1515 Annual Report 41 .1516 Powers and Duties of the Board 41 .1517 Scope and Exemptions 41 .1518 Continuing Legal Education Program 42 .1519 Accreditation Standards 42 . 1 520 Accreditation of Sponsors and Programs 42 .1521 Credit Hours 42 .1522 Annual Report 42 . 1 523 Noncompliance 43 . 1 524 Reinstatement 43 .1525 Confidentiality 44 .1526 Effective Date 44 . 1 527 Regulations 44 Section .1600 Regulations Governing the Administration of the Continuing Legal Education Program 44 . 1 60 1 Organization 44 .1602 General Course Approval 44 .1603 Accredited Sponsors 45 . 1 604 Accreditation of Prerecorded Programs and Live Programs Broadcast to Remote Locations by Telephone, Satellite or Video Conferencing Equipment 45 .1605 Computation of Credit 46 .1606 Fees 46 .1607 Special Cases and Exemptions 46 .1608 General Compliance Procedures 46 .1609 Noncompliance Procedures 46 .1610 Authority for Appeals 47 Section .1700 The Plan of Legal Specialization 47 .1701 Purpose 47 .1702 Jurisdiction; Authority 47 .1703 Operational Responsibility 47 .1704 Size of Board 47 .1705 Lay Participation 47 .1706 Appointment of Members; When; Removal 47 .1707 Term of Office 47 .1708 Staggered Terms 47 .1709 Succession 47 .1710 Appointment of Chairperson 47 .1711 Appointment of Vice-Chairperson 47 .1712 Source of Funds 47 .1713 Fiscal Responsibility 47 .1714 Meetings 48 .1715 Annual Report 48 .1716 Powers and Duties of the Board 48 .1717 Retained Jurisdiction of the Council 48 page 4 The North Carolina State Bar Lawyer's Handbook .1718 Privileges Conferred and Limitations imposed 48 .1719 Specialty Committees 49 .1720 Minimum Standards for Certification of Specialists 49 .1721 Minimum Standards for Continued Certification4 of Specialists 49 .1722 Establishment of Additional Standards 50 .1723 Suspension or Revocation of Certification as a Specialist ..50 .1724 Right to Hearing and Appeal to Council 50 .1725 Areas of Specialty 50 . 1 726 Certification Standards of the Specialties of Bankruptcy Law, Estate Planning and Probate Law, Real Property Law, Family Law, and Criminal Law 50 Section .2100 Certification Standards for the Real Property Law Specialty 50 .2101 Establishment of Specialty Field 50 .2102 Definition of Specialty 50 .2103 Recognition as a Specialist in Real Property Law 51 .2 1 04 Applicability of Provisions of the North Carolina Plan of Legal Specialization 51 .2105 Standards for Certification as a Specialist in Real Property Law .5 1 .2106 Standards for Continued Certification as a Specialist 51 .2107 Applicability of Other Requirements 51 Section .2200 Certification Standards for the Bankruptcy Law Specialty 51 .2201 Establishment of the Specialty Field 51 .2202 Definition of Specialty 52 .2203 Recognition as a Specialist in Bankruptcy Law 52 .2204 Applicability of Provisions of the North Carolina Plan of Legal Specialization 52 .2205 Standards for Certification as a Specialist in Bankruptcy Law 52 .2206 Standards for Continued Certification as a Specialist 52 .2207 Applicability of Other Requirements 53 Section .2300 Certification Standards for the Estate Planning and Probate Law Specialty 53 .2301 Establishment of Specialty Field 53 .2302 Definition of Specialty 53 .2303 Recognition as a Specialist in Estate Planning and Probate Law 53 .2304 Applicability of Provisions of the North Carolina Plan of Legal Specialization 53 .2305 Standards for Certification as a Specialist in Estate Planning and Probate Law 53 .2306 Standards for Continued Certification as a Specialist 54 .2307 Applicability of Other Requirements 54 Section .2400 Certification Standards for the Family Law Specialty . .54 .2401 Establishment of Specialty Field 54 .2402 Definition of Specialty 54 .2403 Recognition as a Specialist in Family Law 54 .2404 Applicability of Provisions of the North Carolina Plan of Legal Specialization 54 .2405 Standards for Certification as a Specialist in Family Law . .54 .2406 Standards for Continued Certification as a Specialist 55 .2407 Applicability of Other Requirements 55 Section .2500 Certification Standards for the Criminal Law Specialty .55 .2501 Establishment of Specialty Field 55 .2502 Definition of Specialty 55 .2503 Recognition as a Specialist in Criminal Law 55 .2504 Applicability of Provisions of the North Carolina Plan of Legal Specialization 55 .2505 Standards for Certification as a Specialist 56 .2506 Standards for Continued Certification as a Specialist 57 .2507 Applicability of Other Requirements 57 Section .2600 Certification Standards for the Immigration Law Specialty 57 .2601 Establishment of Specialty Field 57 .2602 Definition of Specialty 57 .2603 Recognition as a Specialist in Immigration Law 57 .2604 Applicability of Provisions of the North Carolina Plan of Legal Specialization 57 .2605 Standards for Certification as a Specialist in Immigration Law 58 .2606 Standards for Continued Certification as a Specialist 58 .2607 Applicability of Other Requirements 58 Subchapter E: Regulations for Organizations Practicing Law 59 Section .0100 Regulations for Professional Corporations and Professional Limited Liability Companies Practicing Law 59 .0101 Authority, Scope, and Definitions 59 .0102 Name of Professional Corporation or Professional Limited Liability Company 59 .0103 Registration with the North Carolina State Bar 59 .0104 Management and Financial Matters 61 .0105 General and Administrative Provisions 61 .0106 Forms 62 Section .0200 Registration of Interstate and International Law Firms 64 .0201 Registration Requirement 64 .0202 Conditions of Registration 64 .0203 Registration Fee 64 .0204 Certificate of Registration 64 .0205 Effect of Registration 64 Title 27 of the North Carolina Administrative Code: The North Carolina State Bar Chapter 2: Revised Rules of Professional Conduct 65 0.1 Preamble: A Lawyer's Responsibihties 66 0.2 Scope 67 0.3 Terminology 68 Client-Lawyer Relationship Rule 1.1 Competence 68 Rule 1 .2 Scope Of Representation 69 Rule 1.3 Diligence 70 Rule 1 .4 Communication 71 Rule 1.5 Fees . 72 Rule 1.6 Confidentiality of Information 75 Rule 1.7 Conflict of Interest: General Rule 77 The North Carolina State Bar Lawyers Handbook Rule 1 .8 Conflict of Interest: Prohibited Transactions and Other Specific Applications 82 Rule 1.9 Conflict of Interest: Former Client 84 Rule 1.10 Imputed Disqualification: General Rule 85 Rule 1.11 Successive Government and Private Employment 86 Rule 1.12 Former Judge or Arbitrator 87 Rule 1.13 Organization As Client '. 88 Rule 1.14 Client Under a Disability 89 Rule 1.15-1 Preserving Identity of Funds and Property of a Client 90 Rule 1.15-2 Record Keeping and Accounting for Client Funds and Property 92 Rule 1.15-3 Interest on Lawyers' Trust Accounts 93 Rule 1.16 Declining or Terminating Representation 94 Rule 1.17 Sale of a Law Practice 95 Rule 1.18 Sexual Relations with Clients Prohibited 97 Counselor Rule 2.1 Advisor 97 Rule 2.2 Intermediary 98 Rule 2.3 Evaluation for Use by Third Persons 99 Advocate Rule 3.1 Meritorious Claims and Contentions 99 Rule 3.2 Expediting Litigation 100 Rule 3.3 Candor Toward the Tribunal 100 Rule 3.4 Fairness to Opposing Party and Counsel 102 Rule 3.5 Impartiality and Decorum of the Tribunal 103 Rule 3.6 Trial Publicity 104 Rule 3.7 Lawyer as Witness 105 Rule 3.8 Special Responsibilities of a Prosecutor 106 Rule 39 Reserved 107 Transactions with Persons Other Than Clients Rule 4.1 Truthfulness in Statements to Others 107 Rule 4.2 Communication with Person Represented by Counsel . . .107 Rule 4.3 Dealing with Unrepresented Person 108 Rule 4.4 Respect for Rights ofThird Persons 109 Law Firms and Associations Rule 5.1 Responsibilities of a Partner or Supervisory Lawyer 109 Rule 5.2 Responsibilities of a Subordinate Lawyer 109 Rule 5.3 Responsibilities Regarding Nonlawyer Assistants 110 Rule 5.4 Professional Independence of a Lawyer 110 Rule 5.5 Unauthorized Practice of Law Ill Rule 5.6 Restrictions on Right to Praaice 112 Public Service Rule 6.1 Reserved 112 Rule 6.2 Reserved .' 112 Rule 6.3 Membership in Legal Services Organization 112 Rule 6.4 Law Reform Activities Affecting Client Interests 112 Rule 6.5 Action as a Public Official 1 13 Information About Legal Services Rule 7.1 Communications Concerning a Lawyer's Services 113 To Reiterate Since 1996 the State Bar has published the North Carolina State Bar Lawyer's Handbook on an annual basis. Not surprisingly, the Handbook, a compendium of most things relating to the State Bar, has increased in size each year since its inception. The accretion of ethics opinions, new regulations, and miscellaneous information have made the book more costly to publish and distribute. Realizing that this trend toward textual obesity could only be arrested by a ces-sation of regulatory activity or surgery, the publisher elected editori-al liposuaion. The result is a svelte new printed version of the Handbook that contains only those materials deemed essential to the average lawyer's understanding of his or her professional obligations and relationship to the North Carolina State Bar. You will note par-ticularly the retention of the Annotated Revised Rules of Professional Conduct and the fiill text of all formal ethics opinions issued since the adoption of the Rules of Professional Conduct in 1985. But wait, there is more. Realizing that the fiiture of legal research is digital and that an ever growing percentage of our lawyers are com-puter literate, we decided to make our Handbook available on CD-ROM in tandem with the fat free publication just described. In con-trast with the printed Handbook, the CD-ROM is an enhanced product containing all of the information presented in the old Handbook and a great deal more, including a list of the State Bar's entire membership. It is fully searchable and can be downloaded onto your personal computer's hard drive for ready reference during the entire year. We would like your comments concerning the printed Handbook and, particiJarly, the CD- ROM version. Although we plan to make a printed version available on some basis for the next few years, we envision a future that is increasingly digital. Unlike printed hand-books, compact discs can accommodate vast quantities of supple-mental information from year to year without getting larger and heavier. Just as important, they cost very little to produce, reproduce, and mail. We hope that these qualities, in combination with the ease with which digitally encoded information can be accessed, manipu-lated, and updated, will lead us into a brave new world in which we can give you more and better for less. L. Thomas L.unsford II page 6 The North Carolina State Bar Lawyer's Handbook Rule 7.2 Advertising 114 Rule 7.3 Direct Contact with Prospective Clients 115 Rule 7.4 Communication of Fields of Practice 116 Rule 7.3 Firm Names and Letterheads 117 Maintaining the Integrity of the Profession Rule 8.1 Bar Admission and Disciplinary Matters 118 Rule 8.2 Judges and Other Adjudicatory Officers 118 Rule 8.3 Reporting Professional Misconduct 118 Rule 8.4 Misconduct 119 Rule 8.5 Disciplinary Authority; Choice of Law 122 Correlation Tables Correlation Table 1: Revised Rules of Professional Conduct and Superseded N.C. Rules of Professional Conduct (1985) 123 Correlation Table 2; Superseded N.C. Rules of Professional Conduct, Revised Rules of Professional Conduct, and Superseded Code of Professional Responsibility 125 Ethics Opinions 128 Ethics Opinion Index 246 Trust Account Guidelines 256 lOLTA Questions and Answers 264 The North Carolina State Bar Lawyers Handbook page 7 Title 27 of the North Carolina Administrative Code The North Carolina State Bar Chapter 1 Rules and Regulations of the North Carolina State Bar Editor's Note: The Rules and Regulations of the Notth Carolina State Bar are published ofFicially in the North Carolina Reports and the Notth Carolina Administtative Code - Title 27. They may be cited ptoperly with reference to the Administtative Code. For example, Rule 7.4 of the Revised Rules of Professional Conduct would be cited as 27 NCAC 2 7.4. SUBCHAPTER A Organization of the North Carolina State Bar Section .0200 Membership - Annual IVIembership Fees .0201 Classes of Membership (a) Two Classes of Membership Members of the North Carolina State Bar shall be divided into two classes; active members and inactive membeis. (b) Active Members The active members shall be all persons who have obtained licenses enti-tling them to practice law in North Catolina, including persons serving as jus-tices or judges of any state or federal court in this state, unless classified as inac-tive membeis by the council. All active members must pay the annual mem-bership fee. (c) Inactive Membeis The inactive membeis shall include all peisons who have been admitted to the piactice of law in Noith Carolina but who the council has found are not engaged in the practice of law or holding themselves out as practicing attorneys and who do not occupy any public or private position in which they may be called upon to give legal advice or counsel or to examine the law or to pass upon the legal effect of any act, document or law. Inactive members of the North Carolina State Bai may not piactice law and ate exempt from payment of membership dues during the period in which they are inactive membeis. Foi puiposes of the State Bats membership records, the category of inactive mem-bers shall be further divided into the following subcategories; (1) Retired/ nonpracticing This subcategory includes those membeis who are not engaged in the practice of law or holding themselves out as practicing attorneys and who ate letiied, hold positions unrelated to the piactice of law, or piactice law in other juiisdictions. (2) Disability inactive status This subcategory includes members who suffer from a mental or physi-cal condition which significantly impairs the professional judgment, pei-formance oi competence of an attorney, as determined by the couits, the council 01 the Disciplinaiy Heating Commission. (3) Disciplinary suspensions/disbarments This subcategory includes those members who have been suspended from the practice of law or who have been disbarred by the couits, the council 01 the Disciplinaiy Heating Commission foi one or more viola-tions of the Rules of Professional Conduct. (4) Administtative suspensions This subcategory includes those members who have been suspended from the piactice of law for failure to comply with the legulations legard-ing mandatoiy continuing legal education, payment of membership fi:es, or payment of late fees pursuant to these lules. History Note; Statutory Authority G.S. 84-16; G.S. 84-23 Readopted Effective December 8, 1994 .0202 Register of Members (a) Initial Registiation with State Bar Every member shall register by completing and returning to the North Carolina State Bar a signed registration card containing the following information: (1) name and address; (2) date; (3) date passed examination to practice in North Carolina; (4) date and place sworn in as an attorney in Notth Carolina; (5) date and place of biith; (6) list of all othei jurisdictions where the membei has been admitted to the piactice of law and date of admission; (7) whethei suspended oi disbaiied from the piactice of law in any juris-diction or court, and if so, when and where, and when readmitted. (b) Membeiship Records of State Bar The secretary shall keep a permanent register for the enrollment of mem-bers of the North Carolina State Bar. In appropriate places therein entries shall be made showing the address of each member, date of registration and class of membeiship, date of tiansfei from one class to anothei, if any, date and peiiod of suspension, if any, and such othei usefiji data which the council may from time to time lequiie. Histoiy Note; Statutoiy Authoiity G.S. 84-23; G.S. 84-34 Readopted Effective Decembei 8, 1994 Amended Decembei 7, 1995 .0203 Annual Membership Fees; When Due (a) Amount and Due Date The annual membeiship fee shall be in the amount as provided by law and shall be due and payable to the secretaiy of the Noith Carolina State Bar on January 1 of each year and the same shall become delinquent if not paid before July 1 of each year. (b) Late Fee Any attorney who fails to pay the entire annual membership fee in the amount provided by law and the annual Client Security Fund assessment approved by the North Caiolina Supreme Couit before July 1 of each year shall also pay a late fee of $30. (c) Waivei of All or Part of Dues No part of the annual membership fee or Client Security Fund assessment shall be prorated ot apportioned to fractional parts of the year, and no part of the membership fee or Client Security Fund assessment shall be waived or rebated for any reason with the following exceptions: (1) A person licensed to practice law in North Carolina for the first time by examination shall not be liable for dues or the Client Security Fund assessment duiing the yeai in which the peison is admitted; (2) A peison licensed to piactice law in Noith Carolina serving in the armed forces, whether in a legal or nonlegal capacity, will be exempt from payment of dues and Client Security Fund assessment for any year in which the member is on active duty in the military service; (3) A person licensed to practice law in North Carolina who files a peti-page 8—Subchapter A The North Carolina State Bar Lawyer's Handbook tion for inactive status on or before December 31 of a given year shall not be liable for the membership fee or the Client Security Fund assessment for the following year if the petition is granted. A petition shall be deemed timely if it is postmarked on or before December 31. History Note: Statutory Authority G.S. 84-23; G.S. 84-34 Readopted Effective December 8, 1994 Amended September 7, 1995 Amended December 7, 1995 Amended March 7, 1996 SUBCHAPTER B Discipline and Disability Rules Section .0100 Discipline and Disability of Attorneys .0101 General Provisions Discipline for misconduct is not intended as punishment for wrongdoing but is for the protection of the public, the courts, and the legal profession. The fact that certain misconduct has remained unchallenged when done by others, or when done at other times, or that it has not been made the subject of earli-er disciplinary proceedings, will not be a defense to any charge of misconduct by a member. History Note: Statutory Authority G.S. 84-23 Readopted Effective December 8, 1994 .0102 Procedure for Discipline (a) The procedure to discipline members of the bar of this state will be in accordance with the provisions hereinafter set forth. (b) District bars will not conduct separate proceedings to discipline mem-bers of the bar but will assist and cooperate with the North Carolina State Bar in reporting and investigating matters of alleged misconduct on the part of its members. (c) Concurrent Jurisdiction of State Bar and Courts (1) The Council of the North Carolina State Bar is vested, as an agency of the state, with the control of the discipline, disbarment, and restora-tion of attorneys practicing law in this state. (2) The courts of this state have inherent authority to take disciplinary action against attorneys practicing therein, even in relation to matters not pending in the court exercising disciplinary authority. (3) The authority of the North Carolina State Bar and the courts to dis-cipline attorneys is separate and distinct, the North Carolina State Bar having derived its jurisdiction by legislative act and the courts from the inherent power of the courts themselves. (4) Neither the North Carolina State Bar nor the courts are authorized or empowered to act for or in the name of the other, and the disciplinary action taken by either entity should be clearly delineated as to the source or basis for the action being taken. (5) It is the position of the North Carolina State Bar that no trial court has the authority to preempt a North Carolina State Bar disciplinary pro-ceeding with a pending civil or criminal court proceeding involving attor-ney conduct, or to dismiss a disciplinary proceeding pending before the North Carolina State Bar. (6) Whenever the North Carolina State Bar learns that a court has initi-ated an inquiry or proceeding regarding alleged improper or unethical conduct of an attorney, the Notth Carolina State Bar may defer to the court and stay its own proceeding pending completion of the court's inquiry or proceeding. Upon request, the North Carolina State Bar will assist in the court's inquiry or proceeding. (7) If the North Carolina State Bar finds probable cause and institutes dis-ciplinary proceedings against an attorney for conduct which subsequent-ly becomes an issue in a criminal or civil proceeding, the court may, in its discretion, defer its inquiry pending the completion of the North Carolina State Bar's proceedings. (8) Upon the filing of a complaint by the North Carolina State Bar, the North Carolina State Bar will send a copy of the complaint to the chief resident superior court judge and to all superior court judges regularly assigned to the district in which the attorney maintains his or her law office. The North Carolina State Bar will send a copy of the complaint to the district attorney in the district in which the attorney maintains a law office if the complaint alleges criminal activity by the attorney (9) The North Carolina State Bar will encourage judges to contact the North Carolina State Bar to determine the status of any relevant com-plaints filed against an attorney before the court takes disciplinary action against the attorney. History Note: Statutory Authority G .8. 84-23; G.S. 84-36 Readopted Effective December 8, 1994 .0103 Definitions Subject to additional definitions contained in other provisions of this sub-chapter, the following words and phrases, when used in this subchapter, will have, unless the context clearly indicates otherwise, the meanings given to them in this rule. (1) Admonition - a wtitten form of discipline imposed in cases in which an attorney has committed a minor violation of the Rules of Professional Conduct. (2) Appellate division - the appellate division of the general court of justice. (3) Board - the Board of Continuing Legal Education. (4) Board of Continuing Legal Education - a standing committee of the council responsible for the administration of a program of mandatory contin-uing legal education and law practice assistance. (5) Censure - a written form of discipline more serious than a reprimand issued in cases in which an attorney has violated one or more provisions of the Rules of Professional Conduct and has caused significant harm or potential sig-nificant harm to a client, the administration of justice, the profession, or a member of the public, but the misconduct does not require suspension of the attorney's license. (6) Certificate of conviction - a certified copy of any judgment wheicin a member of the North Carolina State Bar is convicted of a criminal offense. (7) Chairperson of the Grievance Committee - councilor appointed to serve as chairperson of the Grievance Committee of the North Carolina State Bar. (8) Commission - the Disciplinary Hearing Commission of the North Carolina State Bar (9) Commission chairperson - the chairperson of the Disciplinary Hearing Commission of the North Carolina State Bar. (10) Complainant or complaining witness - any person who has com-plained of the conduct of any member of the North Carolina State Bar to the North Carolina State Bar (11) Complaint - a formal pleading filed in the name of the North Carolina State Bar with the commission against a member of the North Carolina State Bar after a finding of probable cause. (12) Consolidation of cases - a hearing by a hearing committee of multiple charges, whether related or unrelated in substance, brought against one defen-dant. (13) Council - the Council of the North Carolina State Bar. (14) Councilor - a member of the Council of the North Carolina State Bar. (15) Counsel - the counsel of the North Carolina State Bar appointed by the council. ( 1 6) Court or courts of this state - a court authorized and established by the constitution or laws of the state of North Carolina. (17) Criminal offense showing professional unfitness - the commission of, attempt to commit, conspiracy to commit, solicitation or subornation of any felony or any crime that involves false swearing, misrepresentation, deceit, extortion, theft, bribery, embezzlement, false pretenses, fraud, interference with the judicial or political process, larceny, misappropriation of funds or property, overthrow of the government, perjury, willful failure to file a tax return, or any other offense involving moral turpitude or showing professional unfitness. (18) Defendant - a member of the North Carolina State Bar against whom a finding of probable cause has been made. (19) Disabled or disability - a mental or physical condition which signifi-cantly impairs the professional judgment, performance, or competence of an The North Carolina State Bar Lawyer's Handbook Subchapter B — pagt 9 attorney. (20) Grievance - alleged misconduct. (21) Grievance Committee - the Grievance Committee of the North Carolina State Bar or any of its panels acting as the Grievance Comminee respecting the grievances and other matters referred to it by the chairperson of the Grievance Committee. (22) Hearing committee - a hearing committee designated under Rule .0108(a)(2), .0114(d), .01l4(x), .0118(b)(2), .0125(a)(6), .0125(b)(7) or .0125(c)(2) of this subchapter. (23) Illicit drug - any controlled substance as defined in the North Carolina Controlled Substances Act, section 5, chapter 90, of the North Carolina General Statutes, or its successor, which is used or possessed without a pre-scription or in violation of the laws of this state or the United States. (24) Incapacity or incapacitated - condition determined in a judicial pro-ceeding under the laws of this or any other jurisdiction that an attorney is men-tally defective, an inebriate, mentally disordered, or incompetent from want of understanding to manage his or her own affairs by reason of the excessive use of intoxicants, drugs, or other cause. (25) Investigation - the gathering of information with respect to alleged misconduct, alleged disability, or a petition for reinstatement. (26) Investigator - any person designated to assist in the investigation of alleged misconduct or focts pertinent to a petition for reinstatement. (27) Lawyer Assistance Program Board - the Lawyer Assistance Program Board of the North Carolina State Bar. (28) Letter of caution - communication from the Grievance Committee to an attorney stating that the past conduct of the attorney, while not the basis for discipline, is unprofessional or not in accord with accepted professional prac-tice. (29) Letter of notice - a communication to a respondent setting forth the substance of a grievance. (30) Letter of warning - written communication from the Grievance Committee or the commission to an attorney stating that past conduct of the attorney, while not the basis for discipline, is an unintentional, minor, or tech-nical violation of the Rules of Professional Conduct and may be the basis for discipline if continued or repeated. (31) Member - a member of the North Carolina State Bar. (32) Office of the Counsel - the office and staffjnaintained by the counsel of the North Carolina State Bar. (33) Office of the secretary - the office and staff maintained by the secre-tary- treasurer of the North Carolina State Bar. (34) Party - after a complaint has been filed, the North Carolina Sute Bar as plaintiff or the member as defendant. (35) Plaintiff- after a complaint has been filed, the North Carolina State Bar. (36) Preliminary hearing - hearing by the Grievance Committee to deter-mine whether probable cause exists. (37) Probable cause - a finding by the Grievance Committee that there is reasonable cause to believe that a member of the North Carolina Sute Bar is guilty of miscondua justifying disciplinary action. (38) Reprimand - a written form of discipline more serious than an admo-nition issued in cases in which a defendant has violated one or more provisions of the Rules of Professional Conduct and has caused harm or potential harm to a client, the administration of justice, the profession, or a member of the public, but the misconduct does not require a censure. (39) Respondent - a member of the North Carolina State Bar who has been accused of misconduct or whose conduct is under investigation, but as to which conduct there has not yet been a determination of whether probable cause exists. (40) Secretary - the secretary-treasurer of the North Carolina State Bar. (41) Supreme Court - the Supreme Court of North Carolina. (42) Will - when used in these rules, means a direction or order which is mandatory or obligatory. History Note; Statutory Authority G.S. 84-23 Readopted Effective December 8, 1994 Amended February 3, 2000 .0104 State Bar Council: Powers and Duties in Discipline and Disability Matters The Council of the North Carolina State Bar will have the power and duty (1) to supervise and conduct disciplinary proceedings in accordance with the provisions hereinafter set forth; (2) to appoint members of the commission as provided by statute; (3) to appoint a counsel. The counsel will serve at the pleasure of the coun-cil. The counsel will be a member of the North Carolina State Bar but will not be permitted to engage in the private practice of law; (4) to order the transfer of a member to disability inactive status when such member has been judicially declared incompetent or has been involuntarily committed to institutional care because of incompetence or disability; (5) to accept or rejea the surrender of the license to practice law of any member of the North Carolina State Bar; (6) to order the disbarment of any member whose resignation is accepted; (7) to review the report of any hearing committee upon a petition for rein-statement of a disbarred attorney and to make final determination as to whether the license will be restored. History Note: Statutory Authority G.S. 84-23 Readopted Effective December 8, 1994 Amended September 7, 1995 .0105 Chairperson of the Grievance Committee: Powers and Duties (a) The chairperson of the Grievance Committee will have the power and duty (1) to supervise the aaivities of the counsel; (2) to recommend to the Grievance Committee that an investigation be initiated; (3) to recommend to the Grievance Comminee that a grievance be dis-missed; (4) to direct a letter of notice to a respondent or direct the counsel to issue letters of notice in such cases or under such circumstances as the chair-person deems appropriate; (5) to issue, at the direction and in the name of the Grievance Committee, a letter of caution, letter of warning, an admonition, a repri-mand, or a censure to a member; (6) to notify a respondent that a grievance has been dismissed, and to notify the complainant in accordance with Rule .0121 of this subchapter; (7) to call meetings of the Grievance Committee; (8) to issue subpoenas in the name of the North Carolina State Bar or direct the secretary to issue such subpoenas; (9) to administer or direct the administration of oaths or affirmations to witnesses; (10) to sign complaints and petitions in the name of the North Carolina State Bar; (1 1) to determine whether proceedings should be instituted to activate a suspension which has been stayed; (12) to enter orders of reciprocal discipline in the name of the Grievance Committee; (13) to direct the counsel to institute proceedings in the appropriate forum to determine if an attorney is in violation of an order of the Grievance Comminee, the commission, or the council; (14) to rule on requests for reconsideration of decisions of the Grievance Committee regarding grievances; (15) to tax costs of the disciplinary procedures against any defendant againsr whom the Grievance Comminee imposes discipline, including a minimum administrative cost of $50; (16) in his or her discretion, to refer grievances primarily attributable to unsound law office management to a program of law office management training approved by the State Bar and to so notify the complainant; (17) to dismiss a grievance upon request of the complainant, where it appears that there is no probable cause to believe that the respondent has violated the Rules of Professional Conduct and where counsel consents to the dismissal; (18) to dismiss a grievance where it appears that the grievance has not been filed within the time period set out in Rule .01 1 1(e); (19) to dismiss a grievance where it appears that the complaint, even if page 10—Subchapter B The North Carolina State Bar Lawyer's Handbook [rue, fails to state a violation of the Revised Rules of Professional Conduct and where counsel consents to the dismissal; (20) to dismiss a grievance where it appears that there is no probable cause to believe that the respondent has violated the Revised Rules of Professional Conduct and where counsel and a member of the Grievance Committee designated by the committee consent to the dismissal. (21) to appoint a subcommittee to make recommendations to the coun-cil for such amendments to the Discipline and Disability Rules as the sub-committee deems necessary or appropriate. (b) The president, vice-chairperson, or a member of the Grievance Committee designated by the president or the chairperson or vice-chairperson of the committee may perform the functions, exercise the power, and discharge the duties of the chairperson or any vice-chairperson when the chairperson or a vice-chairperson is absent or disqualified. (c) The chairperson may delegate his or her authority to the piesident, the vice chairperson of the committee, or a member of the Grievance Committee. History Note: Statutory Authority G.S. 84-23 Readopted Effective December 8, 1994 Amended February 20, 1995 Amended March 6, 1997 Amended October 2, 1997 Amended March 3, 1999 Amended February 3, 2000 .0106 Grievance Committee: Powers and Duties The Grievance Committee will have the power and duty (1) to direct the counsel to investigate any alleged misconduct or disability of a member of the North Carolina State Bar coming to its attention; (2) to hold preliminary hearings, find probable cause and direct that com-plaints be filed; (3) to dismiss grievances upon a finding of no probable cause; (4) to issue a letter of caution to a respondent in cases wherein misconduct is not established but the activities of the respondent are unprofessional or. not in accord with accepted professional practice. The letter of caution will recom-mend that the respondent be more professional in his or her practice in one or more ways which are to be specifically identified; (5) to issue a letter of warning to a respondent in cases wherein no proba-ble cause is found but it is determined by the Grievance Committee that the conduct of the respondent is an unintentional, minor, or technical violation of the Rules of Professional Conduct. The letter of warning will advise the attor-ney that he or she may be subject to discipline if such conduct is continued or repeated. The warning will specify in one or more ways the conduct or prac-tice for which the respondent is being warned. A copy of the letter of warning will be maintained in the office of the counsel for thiee years subject to the con-fidentiality provisions of Rule .0129 of this subchapter; (6) to issue an admonition in cases wherein the defendant has committed a minor violation of the Rules of Ptofessional Conduct; (7) to issue a reprimand wherein the defendant has violated one or more provisions of the Rules of Professional Conduct, and has caused harm or potential harm to a client, the administration of justice, the profession, or a member of the public, but the misconduct does not require a censure; (8) to issue a censure in cases wherein the defendant has violated one ot more provisions of the Rules of Professional Conduct and has caused signifi-cant harm or potential significant harm to a client, the administration of jus-tice, the profession, or a member of the public, but the misconduct does not require suspension of the defendant's license; (9) to direct that a petition be filed seeking a determination whether a member of the North Carolina State Bar is disabled; (10) to include in any order of admonition, reprimand, or censure a provi-sion requiring the defendant to complete a teasonable amount of continuing legal education in addition to the minimum amount required by the North Carolina Supreme Court; (U) in its discretion, to refer grievances primarily attributable to unsound law office management to a program of law office management training approved by the State Bat. History Note: Statutory Authority G.S. 84-23 Readopted Effective December 8, 1994 Amended March 3, 1999 .0107 Counsel: Powers and Duties The counsel will have the power and duty (1) to initiate an investigation concerning alleged misconduct of a member; (2) to direct a letter of notice to a respondent when authorized by the chair-person of the Gtievance Committee; (3) to investigate all matters involving alleged misconduct whether initiat-ed by the filing of a grievance or otherwise; (4) to recommend to the chairperson of the Grievance Committee that a matter be dismissed, that a letter of caution, or a letter of warning be issued, or that the Grievance Committee hold a preliminary hearing; (5) to piosecute all disciplinary proceedings before the Grievance Committee, heating committees, and the courts; (6) to represent the North Carolina State Bar in any tiial, hearing, or other proceeding concerning the alleged disability of a member; (7) to appear on behalf of the North Carolina State Bar at hearings con-ducted by the Grievance Committee, hearing committees, or any other agency or court concerning any motion or other matter arising out of a disciplinary or disability proceeding; (8) to appear at hearings conducted with respect to petitions for reinstate-ment of license by suspended or disbarred attorneys or by attorneys transferred to disability inactive status, to cross-examine witnesses testifying in support of such petitions, and to present evidence, if any, in opposition to such petitions; (9) to employ such deputy counsel, investigators, and other administrative personnel in such numbers as the council may authorize; (10) to maintain permanent records of all matters processed and of the dis-position of such matters; (11) to perform such other duties as the council may direct; (12) aftet a finding of probable cause by the Grievance Committee, to des-ignate the particular violations of the Rules of Ptofessional Conduct to be alleged in a formal complaint filed with the commission; (13) to file amendments to complaints and petitions arising out of the same transactions or occurrences as the allegations in the original complaints or peti-tions, in the name of the North Carolina State Bar, with the prior approval of the chairperson of the Grievance Committee; (14) after a complaint is filed with the commission, to dismiss any or all claims in the complaint or to negotiate and recommend consent orders of dis-cipline to the hearing committee. History Note: Statutory Authority G.S. 84-23; G.S. 84-31 Readopted Effective December 8, 1994 Amended March 3, 1999 .0108 Chairperson of the Hearing Commission: Powers and Duties (a) The chairperson of the Disciplinary Hearing Commission of the North Carolina State Bar will have the power and duty (1) to receive complaints alleging misconduct and petitions alleging the disability of a member filed by the counsel; petitions requesting rein-statement of license by members who have been involuntarily transferred to disability inactive status, suspended, ot disbarred; motions seeking the activation of suspensions which have been stayed; and proposed consent orders of disbarment; (2) to assign three members of the commission, consisting of two mem-bers of the North Catolina State Bar and one nonlawyer to hear com-plaints, petitions, motions, and posthearing motions pursuant to Rule .01 14(z)(2) of this subchapter. The chairperson will designate one of the attorney members as chairperson of the hearing committee. No commit-tee member who hears a disciplinary matter may serve on the committee which hears the attorney's reinstatement petition. The chairperson of the commission may designate himself or herself to serve as one of the attor-ney members of any hearing committee and will be chairperson of any hearing committee on which he or she serves. Posthearing motions filed pursuant to Rule .01 14(z)(2) of this subchapter will be considered by the same hearing committee assigned to the original trial proceeding. Hearing committee members who are ineligible or unable to serve for any reason will be replaced with members selected by the commission chair-person; The North Carolina State Bar Lawyer's Handbook Subchapter B — page 11 (3) 10 set (he time and place for the hearing on each complaint or peti-tion; (4) to subpoena witnesses and compel their attendance and to compel the production of books, papers, and other documents deemed necessary or material to any hearing. The chairperson may designate the secretary to issue such subpoenas; (5) to consolidate, in his or her discretion for hearing, two or more cases in which a subsequent complaint or complaints have been served upon a defendant within ninety days of the date of service of the first or a pre-ceding complaint; (6) to enter orders disbarring members by consent; (7) to enter an order suspending a member pending disposition of a dis-ciplinary proceeding when the member has been convicted of a serious crime or has pled no contest to a serious crime and the court has accept-ed the plea. (b) The vice-chairperson of the Disciplinary Hearing Commission may per-form the function of the chairperson in any matter when the chairperson is absent or disqualified. History Note; Statutory Authority G.S. 84-23 Readopted Effective December 8, 1994 Amended September 7, 1995 .0109 Hearing Committee: Powers and Duties Hearing committees of the Disciplinary Hearing Commission of the North Carolina State Bar will have the following powers and duties: (1) to hold hearings on complaints alleging misconduct, or petitions seek-ing a determination of disability or reinstatement, or motions seeking the acti-vation of suspensions which have been stayed, and to conduct proceedings to determine if persons or corporations should be held in contempt pursuant to G.S. 84-28. l(bl); (2) to enter orders regarding discovery and other procedures in connection with such hearings, including, in disability matters, the examination of a mem-ber by such qualified medical experts as the committee will designate; (3) to subpoena witnesses and compel their attendance, and to compel the production of books, papers, and other documents deemed necessary or mate-rial to any hearing. Subpoenas will be issued by the chairperson of the hearing committee in the name of the commission. The chairperson may direct the sec-retary to issue such subpoenas; (4) to administer or direct the administration of oaths or affirmations to witnesses at hearings; (5) to make findings of fact and conclusions of law; (6) to entei orders dismissing complaints in matters before the committee; (7) to enter orders of discipline against or letters of warning to defendants in matters before the committee; (8) to tax costs of the disciplinary proceedings against any defendant against whom discipline is imposed, provided, however, that such costs will not include the compensation of any member of the council, committees, or agen-cies of the North Carolina State Bar; (9) to enter orders transferring a member to disability inactive status; (10) to report to the council its findings of fact and recommendations after hearings on petitions for reinstatement of disbarred attorneys; (11) to grant or deny petitions of attorneys seeking transfer from disability inaaive status to active status; (12) to enter orders reinstating suspended attorneys or denying reinstate-ment. An order denying reinstatement may include additional sanctions in the event violations of the petitioner's order of suspension are found; (13) to enter orders activating suspensions which have been stayed or con-tinuing the stays of such suspensions. (14) to enter orders holding persons and corporations in contempt pur-suant to G.S. 84-28. l(bl) and imposing such sanaions allowed by law. History Note: Statutory Authority G.S. 84-23; G.S. 84-28; G.S. 84-28.1 Readopted Effective December 8, 1994 Amended March 3, 1999 .0110 Secretary: Powers and Duties in Discipline and Disability Matters The secretary will have the following powers and duties in regard to disci-pline and disability procedures: ( 1 ) to receive grievances for transmittal to the counsel, to receive complaints and petitions for transmittal to the commission chairperson, and to receive afFi-davits of surrender of license for transmittal to the council; (2) to issue summonses and subpoenas when so direaed by the president, the chairperson of the Grievance Committee, the chairperson of the commis-sion, or the chairperson of any hearing committee; (3) to maintain a record and file of all grievances not dismissed by the Grievance Committee; (4) to perform all necessary ministerial acts normally performed by the clerk of the superior court in complainf; filed before the commission; (5) to enter orders of reinstatement where petitions for reinstatement of suspended attorneys are unopposed by the counsel; (6) to dismiss reinstatement petitions based on the petitioner's failure to comply with the rules governing the provision and transmittal of the record of reinstatement proceedings; (7) to determine the amount of costs assessed in disciplinary proceedings by the commission. History Note - Statutory Authority G.S. 84-22; G.S. 84-23; G.S. 84-32(c) Readopted Effeaive December 8, 1994 .0111 Grievances: Fonn and Filing (a) A grievance may be filed by any person against a member of the North Carolina State Bar. Such grievance may be written or oral, verified or unveri-fied, and may be made initially to the counsel. The counsel may require that a grievance be reduced to writing in affidavit form and may prepare and distrib-ute standard forms for this purpose. (b) Upon the direction of the council or the Grievance Committee, the counsel will investigate such conduct of any member as may be specified by the council or Grievance Committee. (c) The counsel may investigate any maner coming to the attention of the counsel involving alleged misconduct of a member upon receiving authoriza-tion from the chairperson of the Grievance Committee. If the counsel receives information that a member has used or is using illicit drugs, the counsel will follow the provisions of Rule .0130 of this subchapter. (d) The North Carolina State Bar may keep confidential the identity of an anorney or judge who reports alleged misconduct of another attorney pursuant to Rule 8.3 of the Revised Rules of Professional Condua and who requests to remain anonymous. Norwithstanding the foregoing, the North Carolina State Bar will reveal the identity of a reporting anorney or judge to the respondent attorney where such disclosure is required by law, or by considerations of due process or where identification of the reporting attorney or judge is essential to preparation of the anorney's defense to the grievance and/or a formal discipli-nary complaint. (e) Grievances must be instituted by the filing of a written or oral grievance with the North Carolina State Bar Grievance Committee or a district bar Grievance Committee within six years from the accrual of the offense, provid-ed that grievances alleging fraud by a lawyer or an offense the discovery of which has been prevented by concealment by the accused lawyer shall not be barred until six years from the accrual of the offense or one year after discovery of the offense by the aggrieved party or by the North Carolina State Bar coun-sel, whichever is later. Notwithstanding the foregoing, grievances which allege felonious criminal misconduct may be filed with the Grievance Committee at any time. History Note: Statutory Authority G.S. 84-23 Readopted Effective December 8, 1994 Amended February 20, 1995 .0112 Investigations: Initial Determination (a) Subject to the policy supervision of the council and the control of the chairperson of the Grievance Committee, the counsel, or other personnel under the authority of the counsel, will investigate the grievance and submit to the chairperson of the Grievance Committee a report detailing the findings of the investigation. (b) As soon as practicable after the receipt of the initial or any interim report of the counsel concerning any grievance, the chairperson of the Grievance Committee may (1) treat the report as a final report; page 12—Subchapter B The North Carolina State Bar Lawyer's Handbook (2) direct the counsel to conduct further investigation, including con-tacting the respondent in writing or otherwise; or (3) send a letter of notice to the respondent. (c) If a letter of notice is sent to the respondent, it will be by certified mail and will direct that a response be made within 15 days of receipt of the letter of notice. Such response will be a full and fair disclosure of all the facts and cir-cumstances pertaining to the alleged misconduct. The counsel will provide the respondent with a copy of the grievance upon request, except where the com-plainant requests to remain anonymous pursuant to Rule .0111 (d) of this sub-chapter. (d) The counsel may provide a copy of the respondent's response(s) to the letter of notice to the complaining party unless the respondent objects thereto in writing. (e) After a response to a lettet of notice is received, the counsel may con-duct further investigation or terminate the investigation, subject to the control of the chairperson of the Grievance Committee. (f) For reasonable cause, the chairperson of the Grievance Committee may issue subpoenas to compel the attendance of witnesses, including the respon-dent, for examination concerning the grievance and may compel the produc-tion of books, papers, and other documents or writings deemed necessary or material to the inquiry. Each subpoena will be issued by the chairperson of the Grievance Committee, or by the secretary at the direction of the chairperson. The counsel, deputy counsel, investigator, or any members of the Grievance Committee designated by the chairperson may examine any such witness under oath or otherwise. (g) As soon as practicable after the receipt of the final report of the counsel or the teimination of an investigation, the chairperson will convene the Grievance Committee to consider the grievance except as otherwise provided in these rules. (h) The investigation into the conduct of an attorney will not be abated by the failure of the complainant to sign a grievance, settlement, compromise, or restitution. The chairperson of the Grievance Committee may dismiss a griev-ance upon request of the complainant and with consent of counsel where it appears that there is no probable cause to believe that the respondent has vio-lated the Revised Rules of Professional Conduct. (i) If at any time prior to a finding of probable cause, the chairperson of the Grievance Committee, upon the recommendation of the counsel or the Grievance Committee, determines that the alleged misconduct is primarily artributable to the respondenr's failure to employ sound law office management techniques and procedures, the chairperson of the Grievance Committee may, with the respondent's consent, tefer the case to a program of law office man-agement training approved by the State Bar. The respondent will then be required to complete a course of training in law office management prescribed by the chairperson of the Grievance Committee which may include a compre-hensive site audit of the respondent's records and procedures as well as contin-uing legal education seminars. Upon the respondent's successful completion of the prescribed training, the same will be reported to the chairperson of the Grievance Committee, who will order the dismissal of the grievance. If the respondent fails to cooperate with the training program's employees or fails to complete the prescribed tiaining, that will be reported to the chairperson of the Grievance Committee and the investigation of the original grievance shall resume. History Note: Statutory Authority G.S. 84-23 Readopted Effective December 8, 1994 Amended February 20, 1995 Amended March 6, 1997 .0113 Proceedings before the Grievance Committee (a) The Grievance Committee or any of its panels acting as the Grievance Committee with respect to grievances referred to it by the chairperson of the Giievance Committee will determine whether there is probable cause to believe that a respondent is guilty of misconduct justifying disciplinary action. In its discretion, the Gtievance Committee or a panel thereof may find probable cause regardless of wherher rhe respondent has been served with a written let-ter of notice. The respondent may waive the necessity of a finding of probable cause with the consent of the counsel and the chairperson of the Grievance Committee. A decision of a panel of the committee may not be appealed to the Grievance Committee as a whole or to another panel (except as provided in 27 N.C.A.C. 1 A, .0701(a)(3)). (b) The chairperson of the Grievance Committee will have the power to administer oaths and affirmations. (c) The chairperson will keep a record of the Grievance Commirtee's deter-mination concerning each grievance and file the record with the secretary. (d) The chairperson will have the power to subpoena witnesses, to compel their attendance, and compel the production of books, papers, and other doc-uments deemed necessary or material to any preliminary hearing. The chair-person may designate the secretary to issue such subpoenas. (e) The counsel and deputy counsel, the witness under examination, inter-preters when needed, and, if deemed necessary, a stenographer or operator of a recording device may be present while the committee is in session and deliber-ating, but no persons other than members may be present while the commit-tee is voting. (f) The results of any deliberation by the Grievance Committee will be dis-closed to the counsel and the secietary for use in the performance of their duties. Otherwise, a member of the committee, the staff of the North Carolina State Bar, any interpreter, stenographer, operator of a recording device, or any typist who transcribes recorded testimony may disclose matters occurring before the committee only when so directed by the committee ot a coutt of record. (g) At any pieliminary hearing held by the Grievance Committee, a quo-rum of one-half of the members will be required to conduct any business. Affirmative vote of a majority of memberspresent will be necessary to find that probable cause exists. The chairperson will not be counted for quorum pur-poses and will be eligible to vote regarding the disposition of any grievance only in case of a tie among the regular voting members. (h) If probable cause is found and the committee determines that a hearing is necessary, the chairperson will direct the counsel to prepare and file a com-plaint against the defendant. If the committee finds probable cause but deter-mines that no hearing is necessary, it will direct the counsel to ptepare for the chairperson's signature an admonition, reprimand, or censure. If no probable cause is found, the grievance will be dismissed or dismissed with a letter of warning or a letter of caution. (i) If no probable cause is found but it is determined by the Grievance Committee that the conduct of the respondent is unprofessional or not in accord with accepted professional practice, the committee may issue a letter of caution to the respondent recommending that the respondent be more profes-sional in his or her practice in one or more ways which are to be specifically identified. (j) Letters of warning (1) If no probable cause is found but it is determined by the Grievance Committee that the conduct of the respondent is an unintentional, minor, or technical violation of the Rules of Professional Conducr, the committee may issue a letter of warning to the respondenr. The letter of warning will advise the respondent that he or she may be subject to dis-cipline if such conduct is continued or repeared. The letrer will specify in one or more ways the conduct or practice for which the respondent is being warned. The letter of warning will not constitute discipline of the respondent. (2) A copy of the letter of warning will be maintained in the office of the counsel for three years. If relevant, a copy of the letter of warning maybe offered into evidence in any proceeding filed against the respondent before the commission within three years after the letter of warning is issued to the respondent. In every case filed against the respondent before the commission within three years after rhe letter of warning is issued to the respondent, the letter of warning may be introduced into evidence as an aggravating factor concerning the issue of what disciplinary sanction should be imposed. A copy of the letter of warning may be disclosed to the Grievance Committee if another grievance is filed against the respon-dent within three years after the letter of warning is issued to the respon-dent. (3) A copy of the letter of warning will be served upon the respondent in person or by certified mail. A respondent who cannot, with due diligence, be served by certified mail or personal service shall be deemed served by The North Caiolina State Bar Lawyer's Handbook Subchapter B — page 13 the mailing of a copy of the lettet of warning to the respondent's last known address on file with the NC State Bar. Service shall be deemed complete upon deposit of the letter of warning in a postpaid, properly addressed wrapper in a post office or official depository under the exclu-sive care and custody of the United States Postal Service. Within 15 days after service the respondent may refuse the letter of warning and request a hearing before the commission to determine whether a violation of the Rules of Professional Conduct has occurred. Such refusal and request will be in writing, addressed to the Grievance Committee, and served on the secretary by certified mail, return receipt requested. The refusal will state that the letter of warning is refijsed. If a refusal and request are not served within 1 5 days after service upon the respondent of the letter of warning, the letter of warning will be deemed accepted by the respondent. An extension of time may be granted by the chairperson of the Grievance Committee for good cause shown. (4) In cases in which the respondent refiises the lettet of warning, the counsel will prepare and file a complaint against the lespondent for a hearing pursuant to Rule .01 14 of this subchapter. (k) Admonitions and Reprimands (1) If probable cause is found but it is determined by the Grievance Committee that a complaint and hearing are not warranted, the com-mittee may issue an admonition or reprimand to the defendant, depend-ing upon the seriousness of the violation of the Rules of Professional Conduct. A record of such admonition or reprimand will be maintained in the office of the secretary. (2) A copy of the admonition or reprimand will be served upon the defendant in person or by certified mail. A defendant who cannot, with due diligence, be served by certified mail or personal service shall be deemed served by the mailing of a copy of the admonition or reprimand to the defendant s last known address on file with the NC State Bar. Service shall be deemed complete upon deposit of the admonition or rep-rimand in a postpaid, properly addressed wrapper in a post office or offi-cial depository under the exclusive care and custody of the United States Postal Service. (3) Within 1 3 days after service the defendant may refuse the admonition or reprimand and request a hearing before the commission. Such refusal and request will be in writing, addressed to the Grievance Committee, and served upon the secretary by certified mail, return receipt requested. The refusal will state that the admonition or reprimand is refused. (4) In cases in which the defendant refuses an admonition or reprimand, the counsel will prepare and file a complaint against the defendant pur-suant to Rule .0114 of this subchapter If a refijsal and request are not served upon the sectetary within 1 5 days after service upon the defendant of the admonition or reprimand, the admonition or reprimand will be deemed accepted by the defendant. An extension of time may be granted by the chairperson of the Grievance Committee for good cause shown. (I) Censures (1) If probable cause is found and the Grievance Committee determines that the defendant has violated one or more provisions of the Rules of Professional Conduct and has caused significant harm or significant potential harm to a client, the administration of justice, the profession, or a member of the public, but the misconduct does not require suspension of the defendant's license, the committee will issue a notice of proposed censure and a proposed censure to the defendant. (2) A copy of the notice and the proposed censure will be served upon the defendant in person or by certified mail. A defendant who cannot, with due diligence, be served by certified mail or personal service shall be deemed served by the mailing of a copy of the notice and proposed cen-sure to the defendant's last known address on file with the NC State Bar. Service shall be deemed complete upon deposit of the notice and pro-posed censure in a postpaid, properly addressed wrapper in a post office or official depository under the exclusive care and custody of the United States Postal Service. The defendant must be advised that he or she may accept the censure within 13 days after service upon him or her or a for-mal complaint will be filed before the commission. (3) The defendant's acceptance must be in writing, addressed to the Grievance Committee, and served on the secretary by certified mail, return receipt requested. Once the censure is accepted by the defendant, the discipline becomes public and must be filed as provided by Rule .0123(a)(3) of this subchapter. (4) If the defendant does not accept the censure, the counsel will file a complaint against the defendant pursuant to Rule .0114 of this subchap-ter (m) Formal complaints will be issued in the name of the North Carolina State Bar as plaintiff and signed by the chairperson of the Grievance Committee. Amendments to complaints may be signed by the counsel alone, with the approval of the chairperson of the Grievance Committee. History Note: Statutory Authority G.S. 84-23; G.S. 84-28 Readopted Effective December 8, 1994 Amended March 3, 1999 Amended February 3, 2000 .0114 Formal Hearing (a) Complaints will be filed with the secretary. The secretary will cause a summons and a copy of the complaint to be served upon the defendant and thereafter a copy of the complaint will be delivered to the chairperson of the commission, informing the chairperson of the date service on the defendant was effected. (b) Service of complaints and summonses and other documents or papers will be accomplished as set forth in the North Carolina Rules of Civil Procedure. (c) Complaints in disciplinary actions will allege the charges with sufficient precision to clearly apprise the defendant of the condua which is the subject of the complaint. (d) Within 14 days of the receipt of return of service of a complaint by the secretary, the chairperson of the commission will designate a hearing commit-tee from among the commission members. The chairperson will notify the counsel and the defendant of the composition of the hearing committee. Such notice will also contain the time and place determined by the chairperson for the hearing to commence. The commencement of the hearing will be initially scheduled not less than 60 nor more than 90 days from the date of service of the complaint upon the defendant, unless one or more subsequent complaints have been served on the defendant within 90 days from the date of service of the first or a preceding complaint. When one or more subsequent complaints have been served on the defendant within 90 days from the date of service of the first or a preceding complaint, the chairperson of the commission may con-solidate the cases for heating, and the hearing will be initially scheduled not less than 60 nor more than 90 days from the date of service of the last complaint upon the defendant. (e) Within 20 days after the service of the complaint, unless further time is allowed by the chairperson of the hearing committee upon good cause shown, the defendant will file an answer to the complaint with the secretary and will serve a copy on the counsel. (0 Failure to file an answer admitting, denying or explaining the complaint Of asserting the grounds for failing to do so, within the time limited or extend-ed, will be grounds for entry of the defendant's default and in such case the alle-gations contained in the complaint will be deemed admitted. The secretary will enter the defendant's default when the fact of default is made to appear by motion of the counsel or otherwise. The counsel may thereupon apply to the hearing committee for a default order imposing discipline, and the hearing committee will thereupon enter an order, make findings of fact and conclu-sions of law based on the admissions, and order the discipline deemed appto-priate. The hearing committee may, in its discretion, hear such additional evi-dence as it deems necessary prior to entering the order of discipline. For good cause shown, the hearing committee may set aside the secretary's entry of default. After an order imposing discipline has been entered by the hearing committee upon the defendant's default, the hearing committee may set aside the order in accordance with Rule 60(b) of the North Carolina Rules of Civil Procedure. (g) Discovery will be available to the parties in accordance with the North Carolina Rules of Civil Procedure. Any discovery undertaken must be com-pleted before the date scheduled for commencement of the hearing unless the time for discovery is extended for good cause shown by the chairperson of the page 14—Subchapter B The North Carolina State Bar Lawyer's Handbook hearing committee. The chairperson of the hearing committee may thereupon reset the time for the hearing to commence to accommodate completion of reasonable discovery. (h) The parties may meet by mutual consent prior to the hearing on the complaint to discuss the possibility of settlement of the case or the stipulation of any issues, facts, or matters of law. Any proposed settlement of the case will be subject to the approval of the hearing committee. If the committee rejects a proposed settlement, another hearing committee must be empaneled to try the case, unless all parties consent to proceed with the original committee. The par-ties may submit a proposed settlement to a second hearing committee, but the parties shall not have the right to request a third hearing committee if the set-tlement order is rejected by the second hearing committee. The second hear-ing committee shall either accept the settlement proposal or hear the discipli-nary matter. (i) At the discretion of the chairperson of the hearing committee, and upon five days' notice to parties, a conference may be ordered before the date set for commencement of the hearing for the purpose of obtaining admissions or oth-erwise narrowing the issues presented by the pleadings. Such conference may be held before any member of the committee designated by its chairperson, who shall have the power to issue such orders as may be appropriate. At any conference which may be held to expedite the orderly conduct and disposition of any hearing, there may be considered, in addition to any offers of settlement or proposals of adjustment, the following: (1) the simplification of the issues; (2) the exchange of exhibits proposed to be offered in evidence; (3) the stipulation of facts not remaining in dispute or the authenticity of documents; (4) the limitation of the number of witnesses; (5) the discovery or production of data; (6) such other matters as may properly be dealt with to aid in expediting the orderly conduct and disposition of the proceeding. The chairperson may impose sanctions as set out in Rule 37(b) of the N.C. Rules of Civil Procedure against any party who willfully fails to comply with a prehearing order issued pursuant to this section. (j) The chaitperson of the hearing committee, without consulting the other committee members, may hear and dispose of all pretrial motions except motions the granting of which would result in dismissal of the charges or final judgment for either party. All motions which could result in dismissal of the charges or final judgment for either party will be decided by a majority of the members of the hearing committee. Any pretrial motion may be decided on the basis of the parties' written submissions. Oral argument may be allowed in the discretion of the chairperson of the hearing committee. (k) The initial hearing date as set by the chairperson in accordance with Rule .0114(d) above may be reset by the chairperson, and said initial hearing or reset hearing may be continued by the chairperson of the hearing commit-tee for good cause shown. (I) After a hearing has commenced, no continuances other than an adjourn-ment from day to day will be granted, except to await the filing of a control-ling decision of an appellate court, by consent of all parties, or where extreme hardship would result in the absence of a continuance. (m) The defendant will appear in person before the hearing committee at the time and place named by the chairperson. The hearing will be open to the public except that for good cause shown the chairperson of the hearing com-mittee may exclude from the hearing room all persons except the parties, coun-sel, and those engaged in the hearing. No hearing will be closed to the public over [he objection of the defendant. The defendant will, except as otherwise provided by law, be competent and compellable to give evidence for either of the parties. The defendant may be represented by counsel, who will enter an appearance. (n) Pleadings and proceedings before a hearing committee will conform as nearly as practicable with requirements of the North Carolina Rules of Civil Procedure and for trials of nonjury civil causes in the superior courts except as otherwise provided herein. (o) Pleadings or other documents in formal proceedings required or per-mitted to be filed under these rules must be received for filing by the secretary within the time limits, if any. for such filing. The date of leceipt by the secre-tary, and not the date of deposit in the mails, is determinative. (p) All papers presents * to the commission for filing will be on lettet size paper (8 1/2x11 inches) with the exception of exhibits. The sectetary will require a party to refile any paper that does not conform to this size. (q) When a defendant appears in his or her own behalf in a proceeding, the defendant will file with the secretary, with proof of delivery of a copy to the counsel, an address at which any notice or other written communication required to be served upon the defendant may be sent, if such address differs from that last reported to the secretary by the defendant. (r) When a defendant is represented by counsel in a proceeding, counsel will file with the secretary, with proof of delivery of a copy to the counsel, a written notice of such appearance which will state his or her name, address and telephone numbet, the name and address of the defendant on whose behalf he or she appears, and the caption and docket number of the ptoceeding. Any additional notice or other written communication required to be served on ot furnished to a defendant during the pendency of the hearing may be sent to the counsel of record for such defendant at the stated address of the counsel in lieu of transmission to the defendant. (s) The hearing committee will have the power to subpoena witnesses and compel their attendance, and to compel the production of books, papers, and other documents deemed necessary or material to any hearing. Such process will be issued in the name of the committee by its chairperson, or the chair-person may designate the secretary of the North Carolina State Bar to issue such process. Both parties have the right to invoke the powers of the commit-tee with respect to compulsory process for witnesses and for the production of books, papers, and other writings and documents. (t) In any hearing admissibility of evidence will be govetned by the rules of evidence applicable in the supetior court of the state at the time of the hearing. The chairperson of the hearing committee will rule on the admissibility of evi-dence, subject to the right of any member of the hearing committee to ques-tion the ruling. If a member of the hearing committee challenges a ruling relat-ing to admissibility of evidence, the question will be decided by majority vote of the hearing committee. (u) If the hearing committee finds that the charges of misconduct are not established by clear, cogent, and convincing evidence, it will enter an order dis-missing the complaint. If the hearing comminee finds that the charges of mis-conduct are established by clear, cogent, and convincing evidence, the hearing committee will enter an order of discipline. In either instance, the committee will file an order which will include the committee's findings of fact and con-clusions of law. (v) The sectetary will ensure that a complete record is made of the evidence received during the course of all hearings before the commission as provided by G.S. 7A-95 for tiials in the superior court. The secretary will preserve the record and the pleadings, exhibits, and briefs of the parties. (w) If the charges of misconduct are established, the hearing committee will then consider any evidence relevant to the discipline to be imposed, including the record of all previous misconduct for which the defendant has been disci-plined in this state or any orher jurisdiction and any evidence in aggravation or mitigation of the offense. (1) The hearing committee may consider aggravating factors in imposing discipline in any disciplinary case, including the following factors: (A) prior disciplinary offenses; (B) dishonest or selfish motive; (C) a pattern of misconduct; (D) multiple offenses; (E) bad faith obstruction of the disciplinary proceedings by intention-ally failing to comply with rules or orders of the disciplinary agency; (F) submission of false evidence, false statements, or othet deceptive practices during the disciplinary process; (G) refusal to acknowledge wrongful natute of conduct; (H) vulnerability of victim; (I) substantial experience in the practice of law; (]) indifference to making restitution; (K) issuance of a letter of warning to the defendant within the three years immediately preceding the filing of the complaint. (2) The hearing committee may considet mitigating factors in imposing The North Carolina State Bar Lawyer's Handbook Subchapter B — page 15 discipline in any disciplinary case, including the following factors: (A) absence of a prior disciplinary record; (B) absence of a dishonest or selfish motive; (C) personal or emotional problems; (D) timely good faith efforts to make restitution or to rectify conse-quences of misconduct; (E) full and free disclosure to the hearing committee or cooperative atti-tude toward proceedings; (F) inexperience in the practice of law; (G) character or reputation; (H) physical or mental disability or impairment; (I) delay in disciplinary proceedings through no fault of the defendant attorney; (J) interim rehabilitation; (K) imposition of other penalties or sanctions; (L) remorse; (M) remoteness of prior offenses, (x) In any case in which a period of suspension is stayed upon compliance by the defendant with conditions, the commission will retain jurisdiction of the matter until all conditions are satisfied. If during the petiod the stay is in effect, the counsel receives information tending to show that a condition has been violated, the counsel may, with the consent of the chairperson of the Grievance Committee, file a motion in the cause with the secretary specifying the violation and seeking an order requiring the defendant to show cause why the stay should not be lifted and the suspension activated for violation of the condition. The counsel will also serve a copy of any such motion upon the defendant. The secretary will promptly ttansmit the motion to the chairperson of the commission who, if he or she enters an order to show cause, will appoint a hearing committee as provided in Rule .0108(a)(2) of this subchapter, appointing the members of the hearing committee that originally heard the matter wherever practicable. The chairperson of the commission will also schedule a time and a place for a hearing and notify the counsel and the defen-dant of the composition of the hearing committee and the time and place for the hearing. After such a hearing, the hearing committee may enter an order lifting the stay and activating the suspension, or any portion thereof, and tax-ing the defendant with the costs, if it finds that the North Carolina State Bar has proven, by the greater weight of the evidence, that the defendant has vio-lated a condition. If the hearing committee finds that the North Carolina State Bar has not carried its burden, rhen it will enter an order continuing the stay. In any event, the hearing committee will include in its order findings of fact and conclusions of law in suppott of its decision. (y) All reports and orders of the hearing committee will be signed by the members of the committee, or by the chairperson of the committee on behalf of the committee, and will be filed with the secretary. The copy to the defen-dant will be served by certified mail, return receipt requested or personal serv-ice. A defendant who cannot, with due diligence, be served by certified mail or personal service shall be deemed served by the mailing of a copy of the order to the defendant's last known address on file with the N.C. State Bar. Service by mail shall be deemed complete upon deposit of the teport or order enclosed in a postpaid, properly addressed wrapper in a post office oi official deposito-ry under the exclusive care and custody of the United States Postal Service, (z) Posttrial Motions (1) Consent Orders After Trial - At any time after a disciplinary hearing and prior to the execution of the committee's final order pursuant to Rule .0U4(y) above, the committee may, with the consent of the parties, amend its decision regarding the findings of fact, conclusions of law, or the disciplinary sanction imposed. (2) New Trials and Amendment of Judgments (A) As provided in Rule .01 14(z)(2)(B) below, following a disciplinary hearing before the commission, either party may request a new trial or amendment of the hearing committee's final order, based on any of the grounds set out in Rule 59 of the North Carolina Rules of Civil Procedure. (B) A motion for a new trial or amendment ofjudgment will be served, in writing, on the chairperson of the hearing committee which heard the disciplinary case no later than 20 days after service of the final order upon the defendant. Supporting affidavits, if any, and a memorandum setting forth the basis of the motion together with supporting authori-ties, will be filed with the motion. (C) The opposing party will have 20 days from service of the motion to file a written response, any reply affidavits, and a memorandum with supporting authorities. (D) The hearing committee may rule on the motion based on the par-ties' written submissions or may, in its discretion, permit the parties to present oral argument. (3) Relief from Judgment or Order (A) Following a disciplinary proceeding before the commission, either party may file a motion for relief from the final judgment or order, based on any of the grounds set out in Rule 60 of the North Carolina Rules of Civil Procedure. (B) Motions made under Rule .01 H(z)(2)(B) above will be made no later than one year after the effective date of the order from which relief is sought. Motions pursuant to this section will be heard and decided in the same manner as motions submitted pursuant to Rule .0 1 1 4(z)(2) above. (4) Effect of Filing Motion - The filing of a motion under Rule .01 14(z)(2) above or Rule .01 14(z)(3) above will not automatically stay or otherwise affect the effective date of an order of the commission. History Note: Statutory Authority G.S. 84-23; G.S. 84-28; G.S. 84-28.1; G.S. 84-29; G.S. 84-30; G.S. 84-32(a) Readopted Effective December 8, 1994 Amended October 2, 1997 .0115 Effect of a Finding of Guilt in Any Criminal Case (a) Any member who has been found guilty of or has tendered and has had accepted a plea of guilty or no contest to a criminal offense showing profes-sional unfitness in any state or federal court, may be suspended from the prac-tice of law as set out in Rule .01 1 5(d) below. (b) A certificate of the conviction of an attorney for any crime or a certifi-cate of the judgment entered against an attorney where a plea of nolo con-tendere or no contest has been accepted by a court will be conclusive evidence of guilt of that crime in any disciplinary proceeding instituted against a mem-ber. (c) Upon the receipt of a certified copy of a jury verdict showing a verdict of giiilty, a certificate of the conviction of a member of a criminal offense show-ing professional unfitness, or a certificate of the judgment entered against an attorney where a plea of nolo contendere or no contest has been accepted by a court, the Grievance Committee, at its next meeting following notification of the conviction, may authorize the filing of a complaint if one is not pending. In the hearing on such complaint, the sole issue to be determined will be the extent of the discipline to be imposed. The attorney may be disciplined based upon the conviction without awaiting the outcome of any appeals of the con-viction or judgment, unless the attorney has obtained a stay of the disciplinary action as set out in G.S. §84-28(dl). Such a stay shall not prevent the North Carolina State Bar from proceeding with a disciplinary proceeding against the attorney based upon the same underlying facts or events that were the subject of the criminal proceeding. (d) Upon the receipt of a certificate of conviction of a member of a crimi-nal offense showing professional unfitness, or a certified copy of a plea of guilty or no contest to such an offense, or a certified copy of a jury verdict showing a verdict of guilty to such an offense, the commission chairperson may, in the chairperson's discretion, enter an order suspending the member pending the disposition of the disciplinary proceeding against the member before the com-mission. The provisions of Rule .0124(c) of this subchapter will apply to the suspension. (e) Upon the receipt of a certificate of conviction of a member of a crimi-nal offense which does not show professional unfitness, or a certificate of judg-ment against a member upon a plea of no contest to such an offense, or a cer-tified copy of a jury verdict showing a verdict of guilty to such an offense, the Grievance Committee will take whatever action, including authorizing the fil-ing of a complaint, it may deem appropriate. In a hearing on any such com-plaint, the sole issue to be determined will be the extent of the discipline to be imposed. The attorney may be disciplined based upon the conviction without page 16—Subchapter B The North Carolina State Bar Lawyer's Handbook awaiting the outcome of any appeals of the conviction or judgment, unless the attorney has obtained a stay of the disciplinary action as set out in G.S. §84- 28(dl). Such a stay shall not prevent the North Carolina State Bar from pro-ceeding with a disciplinary proceeding against the attorney based upon the same underlying facts or events that were the subject of the criminal proceed-ing. History Note: Statutory Authority G.S. 84-23; G.S. 84-28 Readopted Effective December 8, 1994 Amended November 7, 1 996 Amended March 6, 1997 Amended December 30, 1998 Amended February 3, 2000 .0116 Reciprocal Discipline & Disability Proceedings (a) All members who have been disciplined in any state or federal court for a violation of the Rules of Professional Conduct in effect in such state or fed-eral court or who have been transferred to disability inactive status or its equiv-alent will inform the secretary of such action in writing no later than 30 days after entry of the order of discipline or transfer to disability inactive status. Failure to make the report required in this section may subject the member to professional discipline as set out in Rule 8.3 of the Revised Rules of Professional Conduct. (b) Except as provided in subsection (c) below which applies to disciplinary proceedings in certain federal courts, reciprocal discipline and disability pro-ceedings will be administered as follows: (1) Upon receipt of a certified copy of an order demonstrating that a member has been disciplined or transferred to disability inactive status or its equivalent in another jurisdiction, state or federal, the Grievance Committee will forthwith issue a notice directed to the member contain-ing a copy of the order from the other jurisdiction and an order directing that the member inform the committee within 30 days from service of the notice of any claim by the member that the imposition of the identi-cal discipline or an order transferring the member to disability inactive status in this state would be unwarranted and the reasons therefor. This notice is to be served on the member in accordance with the provisions of Rule 4 of the North Carolina Rules of Civil Procedure. (2) If the discipline or transfer order imposed in the other jurisdiction has been stayed, any reciprocal discipline or transfer to disability inactive sta-tus imposed in this state will be deferred until such stay expires. (3) Upon the expiration of 30 days from service of the notice issued pur-suant to the provisions of Rule .01 16(b)(1) above, the chairperson of the Grievance Committee will impose the identical discipline or enter an order transferring the member to disability inactive status unless the Grievance Committee concludes (A) that the procedure was so lacking in notice or opportunity to be heard as to constitute a deprivation of due process; or (B) that there was such an infirmity of proof establishing the miscon-duct as to give rise to the clear conviction that the Grievance Committee could not, consistent with its duty, accept as final the con-clusion on that subject; (C) that the imposition of the same discipline would result in grave injustice; or (D) that the misconduct established warrants substantially different dis-cipline in this state; or (E) that the reason for the original transfer to disability inactive status no longer exists. (4) Where the Grievance Committee determines that any of the elements listed in Rule .01 16(b)(3) above exist, the committee will dismiss the case or direct that a complaint be filed. (5) If the elements listed in Rule .01 16(b)(3) above are found not to exist, a final adjudication in another jurisdiction that an attorney has been guilty of misconduct or should be transferred to disability inactive status will establish the misconduct or disability for purposes of reciprocal dis-cipline or disability proceedings in this state. (c) Reciprocal discipline with certain fedetal courts will be administered as follows: (1) Upon receipt of a certified copy of an order demonstrating that a member has been disciplined in a United States District Court in North Carolina, in the United States Fourth Circuit Court of Appeals, or in the United States Supreme Court, the chairperson of the Grievance Committee will forthwith issue a notice directed to the member. The notice will contain a copy of the order from the court and an order direct-ing the member to inform the committee within 10 days from service of the notice whether the member will accept reciprocal discipline which is substantially similar to that imposed by the federal court. This notice is to be served on the member in accordance with the provisions of Rule 4 of the North Carolina Rules of Civil Procedure. The member will have 30 days from service of the notice to file a written challenge with the com-mittee on the grounds that the imposition of discipline by the North Carolina State Bar would be unwarranted because the facts found in the federal disciplinary proceeding do not involve conduct which violates the North Carolina Rules of Professional Conduct. If the member notifies the North Carolina State Bar within 10 days after service of the notice that he or she accepts reciprocal discipline which is substantially similar to that imposed by the federal court, substantially similar discipline will be ordered as provided in Rule .01 16(c)(2) below and will run concurrendy with the discipline ordered by the federal court. (2) If the member notifies the North Carolina State Bar of his or her acceptance of reciprocal discipline as provided in Rule .0116(c)(1) above the chairperson of the Grievance Comminee will execute an order of dis-cipline which is of a type permitted by these rules and which is substan-tially similar to that ordered by the federal court and will cause said order to be served upon the member. (3) If the discipline imposed by the federal court has been stayed, any reciprocal discipline imposed by the North Carolina State Bar will be deferred until such stay expires. (4) Upon the expiration of 30 days from service of the notice issued pur-suant to the provisions of Rule .01 16(c)(1) above, the chairperson of the Grievance Committee will enter an order of reciprocal discipline impos-ing substantially similar discipline of a type permitted by these rules to be effective throughout North Carolina unless the member requests a hear-ing before the Gtievance Committee and at such hearing (A) the member demonstrates that the facts found in the federal disci-plinary proceeding did not involve conduct which violates the North Carolina Rules of Professional Conduct, in which event the case will be dismissed; or (B) the Grievance Committee determines that the discipline imposed by the federal court is not of a type described in Rule .0123(a) of this subchapter and, therefore, cannot be imposed by the North Carolina State Bar, in which event the Grievance Committee may dismiss the case or direct that a complaint be filed in the commission. (5) All findings of fact in the federal disciplinary proceeding will be bind-ing upon the North Carolina State Bar and the member. (6) Discipline imposed by any other federal court will be administered as provided in Rule .01 16(b) above. (d) If the member fails to accept reciprocal discipline as provided in Rule .01 16(c) above or if a hearing is held before the Grievance Committee under either Rule .01 16(b) above or Rule .01 16(c) above and the committee orders the imposition of reciprocal discipline, such discipline will run from the date of service of the final order of the chairperson of the Grievance Committee unless the committee expressly provides otherwise. History Note: Statutory Authority G.S. 84-23; G.S. 84-28 Readopted Effective December 8, 1994 Amended March 7, 1996 .0117 Surrender of License While Under Investigation (a) A member who is the subject of an investigation into allegations of mis-conduct, but against whom no formal complaint has been filed before the commission may tender his or her license to practice by delivering to the sec-retary for transmittal to the council an affidavit staling that the member desires to resign and that (1) the resignation is freely and voluntarily rendered, is not the result of coercion or duress, and the member is fully aware of the implications of submitting the resignation; The North Carolina State Bar Lawyer's Handbook Subchapter B — page 17 (2) the member is aware that there is presently pending an investigation or other proceedings regarding allegations that the member has been giiilty of misconduct, the nature of which will specifically be set forth; (3) the member acknowledges that the material facts upon which the grievance is predicated are true; (4) the resignation is being submitted because the member knows that if charges were predicated upon the misconduct under investigation, the member could not successfully defend against them. (b) The council may accept a member's resignation only if the affidavit required under Rule .0117(a) above satisfies the requirements stated therein and the member has provided to the North Carolina State Bar all documents and financial records required to be kept pursuant to the Rules of Professional Conduct and requested by the counsel. If the council accepts a member's res-ignation, it will enter an order disbarring the member. The order of disbarment is effective on the date the council accepts the member's resignation. (c) The order disbarring the member and the affidavit required under Rule .01 17(a) above are matters of public record. (d) If a defendant against whom a formal complaint has been filed wishes to consent to disbarment, the defendant may do so by filing an affidavit with the chairperson of the commission. If the chairperson determines that the affi-davit meets the requirements set out above, the chairperson will accept the sur-render and issue an order of disbarment. The order of disbarment becomes effeciive 30 days after service of the order upon the defendant. If the affidavit does not meet the requirements set out above, the consent to disbarment will not be accepted and the disciplinary complaint will be heard pursuant to Rule .01 H of this subchapter. (e) After a member tenders his or her license or consents to disbarment under this section the member may not undertake any new legal matters. The member may complete any legal matters which were pending on the date of the tender of the affidavit or consent to disbarment which can be completed within 30 days. The member has 30 days from the date on which the member tenders the affidavit of surrender or consent to disbarment in which to comply with all of the duties set out in Rule .0124 of this subchapter. History Note: Statutory Authority G.S. 84-23; G.S. 84-28; G.S. 84-32(b) Readopted Effective December 8, 1994 .0118 Disability Hearings (a) Disability Proceedings Where Member Involuntarily Committed or Judicially Declared Incompetent Where a member of the North Carolina State Bar has been judicially declared incapacitated or mentally ill under the provisions of Chapter 122C of the General Statutes or similar laws of any jurisdiction, the secretary, upon proper proof of the fact, will enter an order transferring the member to dis-ability inactive status effective immediately and for an indefinite period until further order of the commission. A copy of the order will be served upon the member, the member's guardian, or the director of the institution to which the member has been committed. (b) Disability Proceedings Initiated by the North Carolina State Bar (1) When the North Carolina State Bar obtains evidence that a member has become disabled, the Grievance Committee will conduct a hearing in a manner that will conform as nearly as is possible to the procedures set fotth in Rule .0113 of this subchapter. The Grievance Committee will determine whether there is probable cause to believe that the member is disabled within the meaning of Rule .0103(18) of this subchapter. If the committee finds probable cause, a petition alleging disability will be filed in the name of the North Carolina State Bar by the counsel and signed by the chairperson of the Grievance Committee. (2) Whenever the counsel files a petition alleging the disability of a mem-ber, the chairperson of the commission will appoint a hearing committee as provided in Rule .0108(a)(2) of this subchapter to determine whether such member is disabled. The hearing committee will conduct a hearing on the petition in the same manner as a disciplinary proceeding under Rule .0114 of this subchapter. The hearing will be open to the public. (3) The heating committee may tequire the member to undergo psychi-atric, physical, or othet medical examination or testing by qualified med-ical experts selected by the hearing committee. (4) In any proceeding seeking a transfer to disability inactive status under this rule, the North Carolina State Bar will have the burden of proving by clear, cogent, and convincing evidence that the member is disabled with-in the meaning of Rule .0103(18) of this subchapter. (5) The hearing committee may appoint an attorney to represent the member in a disability proceeding, if the hearing committee concludes that justice so requires. (6) If the hearing committee finds that the member is disabled, the com-mittee will enter an order transferring the member to disability inactive status. The order of transfer will become effective immediately. A copy of the order will be served upon the member or the member's guardian or attorney. (c) Disability Proceedings Where Defendant Alleges Disability in Disciplinary Proceeding (1) If, during the course of a disciplinary proceeding, the defendant con-tends that he or she is disabled within the meaning of Rule .0103(18) of this subchapter, the disciplinary proceeding will be stayed pending a determination by the hearing committee whether such disability exists. The defendant will be immediately transferred to disability inactive sta-tus pending the conclusion of the disability hearing. (2) The hearing committee scheduled to hear the disciplinary charges will hold the disability proceeding. The hearing will be conducted pursuant to the procedures outlined in Rule .01 18(b)(3) and (5)-(6) above. (3) The defendant will have the burden of proving by clear, cogent, and convincing evidence that he or she is disabled within the meaning of Rule .0 1 03( 1 8) of this subchapter. If the hearing committee concludes that the defendant is disabled, the disciplinary proceedings will be stayed as long as the defendant remains in disability inactive status. (4) If the hearing committee determines that the defendant is not dis-abled, the chairperson of the hearing committee will set a date foi resumption of the disciplinary proceeding. (d) Disability Hearings Initiated by a Hearing Committee (1) If during the pendency of a disciplinary proceeding a majority of the members of the hearing committee find reason to believe that the defen-dant is disabled, the committee will enter an order staying the disciplinary proceeding until the question of disability can be determined by the com-mittee in accordance with the procedures set out in Rules .01 18(b)(2)-(6) above. The State Bar will have the burden of proving by clear, cogent, and convincing evidence that the defendant is disabled within the meaning of Rule .0103(18) of this subchapter. (2) If the hearing committee determines that the defendant is not dis-abled, the chairperson of the hearing committee will set a date for resumption of the disciplinary proceeding. (3) If the hearing committee determines that the defendant is disabled, the disciplinary proceeding will be stayed as long as the defendant remains in disability inactive status. If the defendant is returned to active status by the commission, the disciplinary proceeding will be rescheduled by the chairperson of the commission. (e) Fees and Costs The hearing committee may direct the member to pay the costs of the dis-ability proceeding, including the cost of any medical examination and the fees of any attorney appointed to represent the member. (0 Preservation of Evidence In any case in which disciplinary proceedings against a defendant have been stayed by reason of the defendant's disability, counsel may continue to investi-gate allegations of misconduct and may seek orders from the chairperson of the commission to preserve evidence of any alleged professional misconduct by the disabled defendant, including orders which permit the taking of depositions. The chairperson may order appointment of counsel to represent the disabled dtfendant when necessary to protect the interests of the disabled defendant. (g) A member of the North Carolina State Bar may be transferred to dis-ability inactive status with the consent of the member, the counsel, and the chairperson of the Grievance Committee. History Note: Statutory Authority G.S. 84-23; G.S. 84-28(g); G.S. 84- 28.1;G.S. 84-29; G.S. 84-30 Readopted Effective December 8. 1994 page 18—Subchapter B The North Carolina State Bar Lawyer's Handbook Amended March 5, 1998 .0119 Enforcement of Powers In addition to the other powers contained herein, in proceedings before any committee or subcommittee of the Grievance Committee or the commission, if any person refuses to respond to a subpoena, refuses to take the oath or afFir-maiion as a witness or thereafter refuses to be examined, refuses to obey any order in aid of discovery, or refuses to obey any lawful order of the committee contained in its decision rendered after hearing, the counsel or secretary may apply to the appropriate court for an order directing that person to comply by taking the tequislte action. History Note: Statutory Authority G.S. 84-23; G.S. 84-28(1) Readopted Effective December 8, 1994 .0120 Notice to Member of Action and Dismissal In every disciplinary case wherein the respondent has received a letter of notice and the grievance has been dismissed, the respondent will be rlbtified of the dismissal by a letter by the chairperson of the Grievance Committee. The chairperson will have discretion to give similar notice to the respondent in cases wherein a letter of notice has not been issued but the chairperson deems such notice to be appropriate. History Note: Statutory Authority G.S. 84-23 Readopted Effective December 8, 1994 .0121 Notice to Complainant (a) If the Grievance Committee finds probable cause and imposes disci-pline, the chairperson of the Grievance Committee will notify the complainant of the action of the committee. (b) If the Grievance Committee finds probable cause and refers the matter to the commission, the chairperson of the Grievance Committee will advise the complainant that the grievance has been received and considered and has been referred to the commission for hearing. (c) If the Grievance Committee finds that there is no probable cause to believe that misconduct occurred and votes to dismiss a grievance, the chair-person of the Grievance Committee will advise the complainant that the com-mittee did not find probable cause to justify imposing discipline and dismissed the grievance. (d) If final action on a grievance is taken by the Grievance Committee in the form of a letter of caution or a letter of warning, the chairperson of the Grievance Committee will so advise the complainant. The communication to the complainant will explain that the letter of caution or lener of warning is not a form of discipline. (e) If a grievance is referred to the Board of Continuing Legal Education, [he chairperson of the Grievance Committee will advise the complainant of that fact and the reason for the referral. If the respondent successfully completes the prescribed training and the grievance is dismissed, the chairperson of the Grievance Committee will advise the complainant. If the respondent does not successfully complete the prescribed course of training, the chairperson of the Grievance Committee will advise the complainant that investigation of the original grievance has resumed. History Note: Statutory Authority G.S. 84-23; Readopted Effective December 8, 1994 Amended March 7, 1996 .0122 Appointment of Counsel to Protect Clients' Interests When Attorney Disappears, Dies, or Is Transferred to Disability Inactive Status (a) Whenever a member of the North Carolina State Bar has been trans-ferred to disability inactive status, disappears, or dies and no parmer or other member of the North Carolina State Bar capable of protecting the interests of the attorneys clients is known to exist, the seniot resident judge of the superi-or court in the district of the member's most recent address on file with the North Carolina State Bar, if it is in this state, will be requested by the secretary to appoint an attorney or attorneys to inventory the files of the member and to take action to protect the interests of the member and his or her clients. (b) Any member so appointed will not be permitted to disclose any infor-mation contained in any files inventoried without the consent of the client to whom such files relate except as necessary to carry out the order of the court which appointed the anorney to make such inventory. History Note; Statutory Authority G.S. 84-23; G.S. 84-28(j) Readopted Effective December 8, 1994 .0123 Imposition of Discipline; Findings of Incapacity or Disability; Notice to Courts (a) Upon the final determination of a disciplinary proceeding wherein dis-cipline is imposed, one of the following actions will be taken: (1) Admonition - An admonition will be prepared by the chairperson of the Grievance Committee or the chairperson of the hearing committee depending upon the agency ordering the admonition. The admonition will be served upon the defendant. The admonition will not be recorded in the judgment docket of the North Carolina State Bar. Where the admonition is imposed by the Grievance Committee, the complainant will be notified that the defendant has been admonished, but will not be entitled to a copy of the admonition. An order of admonition imposed by the commission will be a public document. (2) Reprimand - The chairperson of the Grievance Committee or chair-person of the hearing committee depending upon the body ordering the discipline, will file an order of reprimand with the secretary, who will record the order on the judgment docket of the North Carolina State Bar and will forward a copy to the complainant. (3) Censure, suspension, or disbarment - The chairperson of the hearing committee will file the censure, order of suspension, or disbarment with the secretary, who will record the order on the judgment docket of the North Carolina State Bar and will forward a copy to the complainant. The secretary will also cause a certified copy of the order to be entered upon the judgment docket of the superior court of the county of the defendant's last known address and of any county where the defendant maintains an office. A copy of the censure, order of suspension, or dis-barment will also be sent to the North Carolina Court of Appeals, the North Carolina Supreme Court, the United States District Courts in North Carolina, the Fourth Circuit Court of Appeals, and to the United States Supreme Court. Censures imposed by the Grievance Committee will be filed by the committee chairperson with the secretary. Notice of the censure will be given to the complainant and to the courts in the same manner as censures imposed by the commission. (b) Upon the final determination of incapacity or disability, the chairperson of the hearing committee or the secretary, depending upon the agency enter-ing the order, will file with the secretary a copy of the order transferring the member to disability inactive status. The secretary will cause a certified copy of the order to be entered upon the judgment docket of the superior court of the county of the disabled member's last address on file with the North Carolina State Bar and any county where the disabled member maintains an office and will forward a copy of the order to the courts referred to in Rule .0123(a)(3) above. History Note: Statutory Authority G.S. 84-23; G.S. 84-32(a) Readopted Effective December 8, 1994 Amended November 7, 1996 .0124 Obligations of Disbarred or Suspended Attorneys (a) A disbarred or suspended member of the North Carolina State Bar will promptly notify by certified mail, return receipt requested, all clients being rep-resented in pending matters of the disbarment or suspension, the reasons for the disbarment or suspension, and consequent inability of the member to act as an attorney after the effective date of disbarment or suspension and will advise such clients to seek legal advice elsewhere. The written notice must be received by the client before a disbarred or suspended attorney enters into any agreement with or on behalf of any client to settle, compromise, or resolve any claim, dispute, or lawsuit of the client. The disbarred or suspended attorney will take reasonable steps to avoid foreseeable prejudice to the rights of his or her clients, including prompdy delivering all file materials and property to which the clients are entitled to the clients or the clients' substituted attorney. No disbarred or suspended attorney will transfer active client files containing confidential information or property to another attorney, nor may another attorney receive such files or property, without prior written permission from the client. (b) The disbarred or suspended member will withdraw from all pending The North Carolina State Bar Lawyer's Handbook Subchapter B — page 19 administrative or litigation matters before the effective date of the suspension or disbarment and will follow all applicable laws and disciplinary rules regard-ing the manner of withdrawal. (c) In cases not governed by Rule .0117 of this subchapter, orders impos-mg suspension or disbarment will be effective 30 days after being served upon the defendant. In such cases, after entry of the disbarment or suspension order, the disbarred or suspended attorney will not accept any new retainer or engage as atrorney for another in any new case or legal matter of any nature. However, between the entry date of the order and its effective date, the member may complete, on behalf of any client, matters which were pending on the entry date and which can be completed before the effective date of the order. (d) Within 10 days after the effective date of the disbarment or suspension order, the disbarred or suspended attorney will file with the secretary an affi-davit showing that he or she has fully complied with the provisions of the order, with the provisions of this section, and with the provisions of all other state, federal, and administtative jurisdictions to which he or she is admitted to prac-tice. The affidavit will also set forth the residence or other address of the dis-barred or suspended member to which communications may thereafter be directed. (e) The disbarred or suspended member will keep and maintain records of the various steps taken under this section so that, upon any subsequent pro-ceeding, proof of compliance with this section and with the disbarment or sus-pension order will be available. Proof of compliance with this section will be a condition precedent to consideration of any petition for reinstatement. (f) A suspended or disbarred attorney who fails to comply with Rules .0124(a)-(e) above may be subject to an action for contempt instituted by the appropriate authority. Failure to comply with the requirements of Rule .0124(a) above will be grounds for appointment of counsel pursuant to Rule .0122 of this subchapter. History Note: Statutory Authority G.S. 84-23 Rcadopted Effective December 8, 1994 Amended March 6, 1997 .0125 Reinstatement (a) After disbarment (1) No person who has been disbarred may have his or her license restored but upon order of the council after the filing of a verified petition for rein-statement and the holding of a hearing before a hearing committee as provided herein. No such hearing will commence until security for the costs of such hearing has been deposited with the secretary in an amount not to exceed $500.00. (2) No disbarred attorney may petition for reinstatement until the expi-ration of at least five years from the effective date of the disbarment. (3) The petitionet will have the burden of proving by clear, cogent, and convincing evidence that (A) not more than six months or less than 60 days before filing the peti-tion 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 notice of their opposition or concurrence with the sec-retary within 60 days after the date of publication; (B) not more than six months or less than 60 days before filing the peti-tion 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 raise objections or support the lawyei's petition; (C) the petitioner has reformed and presently possesses the moral qual-ifications required for admission to practice law in this state taking into account the gravity of the misconduct which resulted in the order of disbarment; (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 administtation 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 .0124 of this subchapter; (G) the petitioner has complied with all applicable orders of the com-mission 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 cuircnt Rules of Professional Conduct. Participation in continuing legal education programs in ethics and professional responsibility for each of the three years preced-ing the petition date may be considered on the issue of the petitioner's understanding of the Rules of Professional Conduct. Such evidence cre-ates 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 over-head expenses, disbursed by the Client Security Fund as a result of the petitioner's misconduct. This section shall not be deemed to permit rhe petitioner to collaterally 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 attorneys who were disciplined after the effective date of this amendment; (M) the petitioner has reimbursed all sums which the Disciplinary Hearing Commission found in the order of disbarment were misap-propriated 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 disbarmenr. (4) Petitions filed less than seven years after disbarment (A) If less than seven years have elapsed berwecn the effective date of the disbarment and the filing date of the petition for reinstatement, the petitioner will also have the burden of proving by clear, cogent, and convincing evidence that the petitioner has the competency and learn-ing in the law required to practice law in this state. (B) Factors which may be considered in deciding the issue of compe-tency include (i) experience in the practice of law; (ii) areas of expertise; (iii) certification of expertise; (iv) participation In continuing legal education programs in each of the three years immediately-preceding the petition date; (v) certification by three attorneys who are familiar with the peti-tioner's present knowledge of the law that the petitioner is competent to engage in the practice of law. (C)The factors listed in Rule .0125(a)(4)(B) above are provided byway of example only. The petitioner's satisfaction of one or all of these fac-tors creates no presumption that the petitionet has met the burden of proof established by this section. (D) The attainment of a passing grade on a regularly scheduled wrinen bar examination administered by the North Carolina Board of Law Examiners and taken voluntarily by the petitioner shall be conclusive evidence on the issue of the petitioner's comperence to practice law. (5) If seven years or more have elapsed between the effective date of dis-barment and the filing of the petition for reinstatement, reinstatement will be conditioned upon the petitioner's attaining a passing grade on a regularly scheduled written bar examination administered by the Norrh Carolina Board of Law Examiners. (6) Verified petitions for reinstateme |
OCLC Number-Original | (OCoLC)ocm34763727 |