North Carolina State Bar lawyer's handbook

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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.'^
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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
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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